THIS AFFILIATE AGREEMENT ("AGREEMENT") IS MADE BY AND BETWEEN YOU ("YOU" OR "AFFILIATE") AND STINGRAY MUSIC USA INC. ("STINGRAY"), A DELAWARE CORPORATION WITH AN ADDRESS AT 2127 AYRSLEY TOWN BOULEVARD, SUITE 202, CHARLOTTE, NORTH CAROLINA 28273. THIS AGREEMENT CONTAINS THE COMPLETE TERMS AND CONDITIONS THAT SHALL GOVERN YOUR PARTICIPATION IN ALL AFFILIATE PROGRAMS FOR WEBSITES THAT ARE OPERATED BY STINGRAY (THE "PROGRAM"). YOUR PARTICIPATION IN THE PROGRAM IS IRREFUTABLE ACKNOWLEDGEMENT BY YOU THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO EACH AND EVERY TERM AND CONDITION OF THIS AGREEMENT.
1. Definitions
"Affiliate" shall mean a company or individual that participates in the Program for the purposes of promoting the Stingray Site (as defined below) in an effort to earn performance-based compensation as a result of Qualifying Transactions (as defined below).
"Affiliate Marks" shall mean the Affiliate's names or company names, its trademarks, service marks, trade names, logos, design marks, copyrighted material, patents or other intellectual property, domain names, URLs, and similar identifying material.
"Confidential Information" shall mean any information which is confidential in nature or that is treated as being confidential by Stingray and that is furnished to you by or on behalf of Stingray, whether such information is or has been conveyed verbally or in written or other tangible form, and whether such information is acquired directly or indirectly such as in the course of discussions or other investigations by you, including, but not limited to, technical, financial, business or sales information, data, concepts or know-how and any information related to Stingray's customers.
"Eligible Site" shall mean any website that is not an Ineligible Site (as defined below).
"Ineligible Site" shall mean any website that is involved in unlawful activity or contain objectionable material including, but not limited to, (i) a site containing images or content that is harmful, threatening, defamatory, obscene, or otherwise legally prohibited; (ii) a site facilitating illegal activity; (iii) a site promoting fraudulent, unlawful, misleading, or unfair business practices; (iv) a site promoting violence; (v) a site that has sent unsolicited commercial e-mails within the past four years; (vi) a site that intends on sending unsolicited commercial e-mails at any time during the term of this Agreement; (vii) a site promoting discrimination of any kind, including but not limited to, discrimination based on race, sex, religion, nationality, disability, or age; (viii) a site incorporating any materials which infringe or assist others to infringe on any copyright, trademarks, patents, or other intellectual property rights; or (ix) a site involves in unfair competition.
"Link" shall mean a URL, embedded in text or graphics, which provides an online connection from Your Site (as defined below) to the Stingray Site (as defined below), and which was provided by Stingray following your acceptance in the Program.
"Qualifying Transaction" shall have the meaning set forth in Section 11 of this Agreement.
"Stingray Marks" shall mean Stingray's company names, trademarks, service marks, trade names, logos, design marks, copyrighted material, patents or other intellectual property, domain names owned or used by Stingray, URLs, and similar identifying material, including "The Karaoke Channel" and "The Karaoke Channel ONLINE" trademarks and trade names, and their respective logos and design marks.
"Stingray Site" shall mean The Karaoke Channel website and/or the Karaoke Channel ONLINE website, as applicable, located at www.thekaraokechannel.com and www.thekaraokechannelonline.com.
"Your Site" shall mean any Eligible Site that you will link to the Stingray Site, which was identified in your Affiliate Program Online Application and approved by Stingray.
2. Privacy Policy
The Program is subject to Stingray's Privacy Policy, which is expressly made a part of this Agreement. Please review Stingray's Privacy Policy posted on the Stingray Site.
3. Enrolment in the Program
To participate in the Program, you must submit a complete Affiliate Program Online Application via the Stingray Site. You may not submit an application if your participation to the Program have been previously rejected or terminated by Stingray.
Stingray will evaluate your application and will notify you by e-mail of its acceptance or rejection. Stingray may reject your application for any reason whatsoever in its entire and sole discretion. If you are an individual, you must be at least the age of majority in the jurisdiction in which you reside in order to become an Affiliate of Stingray.
4. Information Provided
You agree to provide Stingray with complete and accurate information about you (including Your Site) and to maintain such information up-to-date by sending emails to Stingray via the Contact Us Section of the Program posted on the Stingray Site. Stingray has the right to confirm or otherwise verify, in its sole discretion, the truth and accuracy of any registration information at any time. Stingray may suspend your participation in the Program or terminate this Agreement, at any time, if any information you provide is false, inaccurate or incomplete.
5. Ineligible Sites
By participating in the Program, you agree that you will not engage in any activity that would make Your Site an Ineligible Site. If Stingray accepts your application and Your Site is after determined, in Stingray's entire and sole discretion, to be ineligible for the Program, Stingray may terminate this Agreement.
6. Links on Your Site
Provided you have been notified by Stingray that you and Your Site have been accepted into the Program, Stingray grants you a revocable, non-exclusive, non-transferable, worldwide, royalty-free license, for the term of this Agreement, to display on Your Site one or more Links to the Stingray Site in accordance with this Agreement for the purposes of facilitating referrals from Your Site to the Stingray Site. Stingray may revoke this license at any time for any reason, in its sole discretion.
Stingray will provide you with the Links and the necessary guidelines and information to install these Links on Your Site correctly. You must ensure that the Links between Your Site and the Stingray Site are properly installed. You will earn referral fees only with respect to activity on the Stingray Site occurring directly through these Links. Stingray will not be liable to you with respect to any failure by you to use these Links or to install them properly, including to the extent that such failure may result in any reduction of amounts that would otherwise be paid to you pursuant to this Agreement.
You may display Links throughout Your Site as you see fit and you may add or delete the Links from Your Site at any time without Stingray's approval. You may feature on Your Site as many Links to the Stingray Site as you like. You may not alter, modify or expand the Links in any way unless it is specifically designed to be modified, and, then, only in accordance with the stated modification parameters. Each Link connecting visitors of Your Site to the Stingray Site may not alter the look, feel or functionality of the Stingray Site.
The Links may contain Stingray Marks. You acknowledge and agree that you will ensure that any Stingray Marks included in a Link is not obscured or altered in any way or made invisible, illegible or indecipherable to visitors of Your Site. You further acknowledge and agree that you will use any data, images, text, or other information obtained from Stingray only in a lawful manner and only in accordance with the terms and conditions of this Agreement.
7. Prohibition to Use the Content of the Stingray Site
You may not link to, display or by any other way utilize any photos, audio or video files, lyrics or any other information or content available on the Stingray Site, including any information or content pertaining to any of the members or users of the Stingray Site.
8. Monitoring
You acknowledge and agree that Stingray may monitor Your Site or your activities to determine if you are in compliance with the terms of this Agreement and/or for the purpose of ensuring the quality and reliability of the Links on Your Site. Therefore, you will not seek to block or otherwise interfere with such monitoring, and Stingray may use technical means to overcome any methods you may use to block or interfere with such monitoring.
9. Audits
You acknowledge and agree that Stingray may audit Your Site or your activities in relation to your participation in the Program. Audits may include requests for documents and information and visits to your facilities. Your failure to reasonably comply with Stingray's efforts to audit your compliance with this Agreement shall constitute a material breach of this Agreement.
10. Order Processing
Stingray will process orders placed by customers who follow the Links from Your Site to the Stingray Site. Stingray reserves the right to reject orders that do not comply with any requirement that it has now established, or that it may in the future establish. Stingray will be solely responsible for all aspects of order processing and fulfillment, including, but not limited to, order entry, payment processing, shipping, cancellations, returns and related customer service.
11. Referral Fees
All customers that you refer to the Stingray Site will be monitored by Stingray's tracking system from the time that the Link is activated until the time a transaction is made. Stingray will only pay referral fees for the orders that are processed within twenty-four (24) hours of the activation of a Link on Your Site ("Qualifying Transaction"). With respect to a Link from Your Site to The Karaoke Channel ONLINE website, an order has been processed when the customer has signed up completely and successfully for a membership to the service through the online registration system. With respect to a Link from Your Site to The Karaoke Channel website, an order has been processed when the customer has created an account completely and successfully, and has purchased one or more regularly priced item offered in the store of such website. Any order where you or your agents are the customers will not constitute a Qualifying Transaction.
For purposes of illustration only: (i) if a customer comes to the Stingray Site through a link from Site A, but no order is processed, and such customer returns to the Stingray Site from a link from Site B where he signs up for a membership, all referral fees will be paid to Site B; (ii) if a customer comes to the Stingray Site through a link from Site A, but no order is processed, and such customer later returns directly to the Stingray Site when he signs up for a membership, no referral fees will be paid.
For each Qualifying Transaction, Stingray will pay you the referral fees established in the Compensation Section of the Program posted on the Stingray Site, which may change or be modified from time to time at Stingray's sole discretion. With respect to a Qualifying Transaction made on The Karaoke Channel ONLINE website, the referral fee is a fixed bounty fee. With respect to a Qualifying Transaction made on The Karaoke Channel website, the referral fee is a percentage of the Net Sale Amount. "Net Sale Amount" shall mean the amount received by Stingray from the customer, less any tax, duty and shipping costs that Stingray collect from the customers, or withhold for same.
12. Certain Restrictions
You may not (and may not permit any person within your control to) do any of the following: (i) directly or indirectly offer any person or entity any consideration, reward, rebate, discount, payment of money or other incentive for using the Links on Your Site to access the Stingray Site (for example, by implementing any rewards program for persons or entities who use the Links on Your Site to access the Stingray Site); (ii) read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to Stingray by any person or entity; (iii) modify, redirect, suppress, or substitute the operation of any button, link, or other interactive feature of the Stingray Site; and (iv) make any orders or subscription requests, or engage in other transactions of any kind on the Stingray Site on behalf of any third party, or authorize, assist, or encourage any other person or entity to do so.
If Stingray determines, in its sole discretion, that you have engaged in any of the foregoing activities Stingray may, without limiting any other rights or remedies available to Stingray, withhold any referral fee otherwise payable to you under this Agreement and/or terminate this Agreement.
13. Reporting
Stingray will track the volume and amount of sales generated by the Links from Your Site to the Stingray Site, and will send you monthly unaudited reports via email approximately ten days following the end of each calendar month. You must bring to Stingray's attention any discrepancy or error in such reports within thirty (30) days of receipt or all figures and numbers included in such reports shall be final and binding on you.
14. Payment of Referral Fees
Approximately twenty (20) days following the end of each calendar month, Stingray will send you a check for the referral fees earned during the month, provided in each case that the accrued referral fees due to you for such month equal or exceed fifty dollars ($50.00) (the "Payment Floor"). The Payment Floor is subject to change at any time by Stingray. If the referral fees due to you in any one month total less than the Payment Floor, such referral fees shall be transferred to the next month and paid together with the referral fees for the next month if the aggregate referral fees of the two (2) months equal or exceed the Payment Floor. The transfer of the referral fees to the subsequent month(s) shall apply up to six (6) months. If after six (6) months, the aggregate referral fees due to you total less than the Payment Floor, Stingray may terminate this Agreement immediately and send you a check for the total amount of referral fees due to you.
The referral fees established in the Compensation Section of the Program posted on the Stingray Site and paid to you in accordance with this Section are inclusive of any and all taxes due by you. In no cases, will any additional compensation be paid to you for taxes. If the withholding of any tax is required by law or by the authorities with respect to any payment made to you, Stingray will withhold the applicable amount from such payment, and pay such amount to the relevant authorities in accordance with the applicable law.
If a customer cancels his membership or returns an item purchased on the Stingray Site and receives a credit or a refund from Stingray when Stingray has already paid referral fees to you for this Qualifying Transaction, Stingray will deduct the amount of such referral fees from your next monthly payment. If there are no subsequent referral fees due to you, Stingray will send you an invoice for the amount due and you agree to pay such invoice within thirty (30) days of receipt.
Stingray may also deduct from your monthly payment any amount equal to a payment previously made to you or credited to you, if Stingray determines, in its sole discretion, that: (i) there has been duplicate entry or other clear error; (ii) there has been non-bona fide transactions or other fraudulent activity; (iii) the transaction involved was not a Qualifying Transaction; or (iv) there has been a breach of this Agreement.
You acknowledge and agree that any payment made to you by Stingray shall not waive Stingray's rights to collect or set off any prior overpayments made to you by Stingray.
15. Ownership of Customers
Customers that visit the Stingray Site through a Link on Your Site, but do not sign up for a membership or order an item, will be deemed to be your customers. Customers that sign up for a membership or order an item on the Stingray Site through a Link on Your Site will be deemed to be Stingray's customers. All of Stingray's rules, policies, terms, conditions and operating procedures concerning all aspects of the customer relationship including, but not limited to, customer orders and customer service, will apply to those customers.
16. Limited License to Use the Stingray Marks
We grant you a non-exclusive, non-transferable, revocable right to use the Stingray Marks, solely for the purpose of identifying Your Site as a Program participant. You are only entitled to use the Stingray Marks to the extent you are an Affiliate Member in good standing. You may not alter, modify or change the Stingray Marks in any way. You agree not to use the Stingray Marks in any manner that is disparaging or that otherwise portrays Stingray or its products or services in a negative or misleading light. Stingray reserves all of its rights in the Stingray Marks and all other intellectual property rights thereto. The rights granted to you herein shall terminate upon the expiration or termination of this Agreement, in which case you shall cease and desist immediately from all use of the Stingray Marks. Stingray may also revoke the rights granted to you pursuant to this Section at any time by giving you written notice.
17. Limited License to Use the Affiliate Marks
You grant Stingray a non-exclusive license to use the Affiliate Marks to advertise, market, promote and publicize in any manner your participation in the Program and Stingray's rights hereunder. Notwithstanding anything herein to the contrary, Stingray shall not be required to so advertise, market, promote or publicize in any manner your participation in the Program. The license granted herein shall terminate upon the expiration or termination of this Agreement.
18. Intellectual Property Rights
You do not obtain any rights under this Agreement in any intellectual property, including, without limitation, with respect to the Stingray Marks, the Stingray Site, the Links, the Links formats, the guidelines and the information referenced above.
19. Search Engine Guidelines
You shall ensure that your domain name, the title and description of Your Site and the meta tags you use are relevant and that Your Site only appears in search engine's result when the content of Your Site relates to the search query. You shall refrain from using search engine optimization methods that are in breach of the guidelines or best practices published by the search engine.
You shall not bid or book any terms based upon or similar to the Stingray Marks or other intellectual property rights of Stingray with search engines, not even in conjunction with other words, in order to display a link in a paid search result when someone enters this term as a search query. You must stop immediately to purchase a certain keyword after Stingray requested you to do so and will not book this term in the future. Stingray reserves the right to provide you with a list of terms that you are not allowed to book for promoting the Stingray Site.
20. Anti-Spamming Policy
You may not do any of the following: (i) engage in any form of unsolicited commercial emailing; (ii) send emails that are misleading, spoofed, contain misleading subject lines, contain inaccurate or misleading sender or recipient data, or violate applicable laws or regulations; (iii) engage in similar, abusive behaviour in a third party "chat room" or website; (iv) send unsolicited or misleading Instant Messages, Chatroom, Newsgroup, ICQ or IRC messages; and (v) send scripted text (and website URLs) disguised as "chat" or conversation into any third party chat room. In addition to any other remedy that Stingray may have under this Agreement or at law, Stingray may withhold payment, suspend or terminate this Agreement without further notice if it is determined that the Affiliate was spamming in violation of this provision or in violation of applicable law.
You hereby represent, agree, and warrant that you shall only send commercial e-mails to customers who opted-in and consented to receive such commercial e-mails and you further represent, agree, and warrant that as proof of the above you shall maintain, use, and update a database that contains a full audit trail of all persons or entities who opted-in and consented to receive any such commercial e-mails during the term of this Agreement, as well as the requests to opt-out of such e-mailing. You further agree to fully and immediately respond to any and all requests or queries Stingray makes to you regarding information and data located in this database. In addition, upon Stingray's demand made to you during the term of this Agreement or within five years after expiration or termination of this Agreement, you agree to make the database immediately available to Stingray for inspection and auditing either remotely or in person, at Stingray's sole discretion.
21. E-mail Advertising
You will not promote or advertise, in any manner, Stingray's products and services using e-mails, links in e-mails, or other forms of electronic communication (for example, SMS or instant messaging) even if the customers have opted-in and consented to receive such electronic communication. Should it be determined that you (or someone acting on your behalf) violated this provision, Stingray, at its sole discretion, and in addition to any other remedy it may have, may withhold payment, suspend or terminate this Agreement without further notice.
22. Changes to Products and Pricing on the Stingray Site
Stingray may change its policies, rules, terms and conditions governing the use of the Stingray Site by the customers, at any time and in its sole discretion, including, without limitation, any change to the products, to their availability (or lack thereof), to their pricing and to the membership fees charged for access to Stingray's services.
23. Responsibility for Your Site
You will be solely responsible for the development, operation and maintenance of Your Site and for all materials and content that appear on Your Site. You will be responsible for ensuring that the display of Links on Your Site does not violate or infringe upon the rights of any third party, including without limitation, any restrictions or requirements placed on you by a third party that hosts Your Site. You will indemnify and hold harmless Stingray from all claims, damages, and expenses (including, without limitation, reasonable attorneys' fees) relating to or arising from the development, operation and maintenance of Your Site, and the content that appear on Your Site.
24. Representations and Warranties
You represent and warrant to Stingray that (i) you have reached the age of majority in the jurisdiction in which you reside and/or do business; (ii) you have the full power and authority to enter into and perform this Agreement without approval from any governmental entity or third party, and that such ability is not limited or restricted by any agreements or understanding between you and any third party; (iii) the execution, delivery and performance by you of this Agreement have been duly authorized by any and all necessary corporate action by you, if any, and this Agreement constitutes the legal, valid and binding obligation of you enforceable in accordance with its terms; (iv) you will comply with all applicable federal, state and local laws in the performance of this agreement; (v) you will provide accurate and complete information to Stingray in your Affiliate Program Online Application concerning your identity, address, and other required information, and you will immediately notify Stingray of any changes in such information; (vi) Your Site is an Illegible Site; (vii) nothing on Your Site or associated with Your Site violates any laws, statutes, regulations or rules, promote illegal activities or infringe the rights of a third party; (viii) you are the sole and exclusive owner of the Affiliate Marks and have the right and power to grant to Stingray the license set forth in this Agreement; (ix) Stingray's use of the Affiliate Marks will not infringe on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of a third party; and (x) Your Site do not involve any program, file, data stream or other material which contains viruses, worms, "Trojan horses" or any other destructive features that constitute a trespass or unlawfully intrude on privacy.
25. Disclaimers
All information and material provided to you in the course of this Agreement are provided "as is". Stingray makes no warranties or representations with respect to the Program and the products and services available through the Stingray Site, and all implied warranties of merchantability, non-infringement and fitness for a particular purpose are hereby specifically disclaimed and excluded. Stingray makes no representation that the operation of the Stingray Site will be uninterrupted or error-free.
26. Termination of the Program
The Program may be discontinued by Stingray at any time and for whatever reason in its absolute discretion. Stingray will notify the Affiliates of such discontinuance by email.
27. Term and Termination of this Agreement
The term of this Agreement shall begin upon Stingray's acceptance of your Affiliate Program Online Application and shall end when terminated by either party in accordance with the terms of this Agreement ("Term").
Either you or Stingray may terminate this Agreement at any time, with or without cause, by giving the other party written notice with immediate effect. Notice sent by email, to the address in Stingray's records, is considered sufficient notice to terminate this Agreement, whether or not such email is in fact read by you. Upon the termination of this Agreement, you will immediately cease use of and remove from Your Site all Links to the Stingray Site and all references to Stingray, the Stingray Site and the Stingray Marks. If this Agreement is terminated because you have breached the terms of this Agreement, while it shall not act as Stingray's exclusive remedy, you shall not be eligible to receive any referral fee payments, even for referral fees earned prior to the date of termination. If this Agreement is terminated for any other reason, you shall earn referral fees for Qualifying Transactions that occurred during the term of this Agreement, which referral fees will only remain payable if the related orders are not cancelled or returned by the customers. Stingray reserves the right to withhold your final payment for a reasonable time to ensure that the correct amount is paid.
28. Survival of Provisions
Provisions of this Agreement that by their nature and context are intended to survive the termination of this Agreement, including, but not limited to, provisions relating to audit, confidentiality, indemnification and limitation of liability, shall survive the termination of this Agreement.
29. Use of Affiliate's Information
If you terminate this Agreement, Stingray may retain some information to comply with the law, prevent fraud, assist investigations, resolve disputes, analyze or troubleshoot the Program, enforce this Agreement and/or take actions otherwise permitted by law. If your participation to the Program is suspended or this Agreement is terminated by Stingray, Stingray may also retain some information to prevent re-enrolment in the Program.
30. Confidentiality
In connection with your participation in the Program, Stingray may disclose Confidential Information to you. You agree not to use such Confidential Information for any purpose other than to exercise or perform your rights or obligations under this Agreement. You shall not, without the prior written consent of Stingray, copy or otherwise reproduce Stingray's Confidential Information, or disclose or otherwise communicate, in whole or in part, Stingray's Confidential Information to any third party except to your officers, directors, employees and agents, if any, who need to know the Confidential Information and who will undertake to treat the Confidential Information in accordance with this provision. "Confidential Information" does not include: (i) information that you had in your possession prior to Stingray's acceptance of your Affiliate Program Online Application; (ii) information that is or becomes generally available to the public other than as a result of a disclosure directly or directly by you in breach of this Agreement; (iii) information that is or becomes available to you on a non-confidential basis from a source other than Stingray; and (iv) information for which Stingray has authorized the disclosure or other use. You may disclose Confidential Information if required by applicable law, rule, regulation or legal process, upon written notice to Stingray. Upon Stingray's request and in any event when this Agreement has expired or terminated, you will promptly return to Stingray or destroy all of Stingray's Confidential Information.
31. Indemnification
You hereby agree to defend, indemnify and hold harmless Stingray, its subsidiaries and affiliates, and their respective directors, officers, employees, agents, shareholders and partners from any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including costs of suit and reasonable attorneys' fees) (collectively, "Claims") arising out of or relating to (a) a breach by you of this Agreement or of any of your representations or warranties contained herein, (b) Your Site, your products, your services or the content of Your Site, including, but not limited to, any claim that Your Site or its content infringes copyrights, privacy rights or any intellectual property rights, or that Your Site or your services are engaged in unfair competition or failed to maintain proper security.
32. Limitation on Liability
Stingray, its affiliates and subsidiaries, and their respective directors, officers, employees, contractors, agents, representatives and successors, will not be liable to you or any third party for indirect, incidental, special, consequential, or punitive damages of any kind, including, without limitation, any damages for loss of use, for loss of profits, for business interruption, for loss of data, for loss of goodwill, or any other pecuniary loss in connection with this Agreement or the Program, including, but not limited to, damages resulting from (i) any Link to or from the Stingray Site, and (ii) any mistake, omission, delay, error, interruption in the transmission or receipt of Stingray's services or content, including any losses due to server problems, computer or other equipment failure, or due to incorrect placement of HTML, even if advised of the possibility of such damages. The foregoing limitation of liability shall apply regardless of the cause of action, whether it is based on breach of contract, negligence, errors and omissions, copyright, trademark, patent, or any other claim or cause of action. Stingray's aggregate liability arising with respect to this Agreement and the Program will not exceed the total referral fees paid or payable to you under this Agreement. Stingray's files and data will prevail in determining all statistics including, but not limited to, the amount of signups, referrals, cancellations, credits and refunds, and the referral fees owned to you pursuant to this Agreement.
33. Changes to the Terms and Conditions of this Agreement
Stingray may change any of the terms and conditions contained in this Agreement, at any time and in its sole discretion. You hereby agree that a change notice sent to you by email, or the posting on the Stingray Site of a change notice or of a modified agreement, is considered sufficient notice. Modifications may include, but are not limited to, changes in the scope of available referral fees, referral fee schedules, payment procedures, Payment Floor, and Program rules. All such modifications shall take effect immediately after Stingray serves notice as provided above, unless it indicates otherwise. If any modification is unacceptable to you, you may terminate this Agreement and immediately remove the Links from Your Site to the Stingray Site. Your continued participation in the Program following Stingray's service of notice as provided above will constitute binding acceptance of the changes.
34. Applicable Law
This Agreement shall be governed by the laws of the United States and the state of North Carolina, without reference to rules governing choice of laws. The exclusive forum for any actions related to this Agreement and the Program shall be in the state or federal courts in Charlotte, North Carolina. The parties consent to such venue and jurisdiction.
35. Assignment
You may not assign this Agreement without Stingray's prior written consent. Stingray may assign this Agreement at any time without prior notice to you. Furthermore, except for Stingray's obligation to pay referral fees, which may be performed solely by Stingray, Stingray may decide that any of its obligations under this Agreement will be fulfilled by any of its affiliates on its behalf, without prior notice to you.
36. Severability
If any provision of this Agreement is held by any court of competent jurisdiction to be illegal or unenforceable under applicable laws, such provision shall be excluded from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect.
37. Headings
The headings and other captions used in this Agreement are for the convenience and ease of reference only and shall not be used in interpreting, constructing or enforcing any of the provisions of this Agreement.
38. Nature of Relationship
Nothing in this Agreement shall be construed to create any partnership, joint venture, agency, franchise, or sales representative or employment relationship between the parties. You shall have no authority or power to bind Stingray or to contract in the name of Stingray or to create a liability against Stingray in any way or for any purpose. You will not make any statement, whether on Your Site or otherwise, that contradict this provision.
39. Entire Understanding
This Agreement represents the entire understanding between the parties with respect to the subject matter hereof and supersedes all previous written or oral understandings, agreements, representations, warranties or covenants between the parties.
40. Waiver
The failure by Stingray to enforce your strict performance of any provision of this Agreement shall not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
41. Agreement Binding
This Agreement shall be binding upon the parties, their permitted assigns, successors, heirs, affiliates, directors, shareholders, officers, employees and agents.
42. Independent Investigation/Mutual Drafting
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT. FOR PURPOSES OF CONSTRUCTION OF THIS AGREEMENT, BOTH STINGRAY AND YOU SHALL BE DEEMED TO HAVE MUTUALLY DRAFTED THIS AGREEMENT AND ALL PARTS THEREOF.
43. Language
You accept that English is the language of this Agreement and that the English versions of this Agreement and of the Privacy Policy shall prevail.
44. Notices
Except as provided elsewhere herein, all notices relating to this Agreement may be send to Stingray via email through the Contact Us Section of the Program posted on the Stingray Site (effective upon actual receipt).
Except as provided elsewhere herein, all notices relating to this Agreement may be send to you by email (effective upon actual receipt) or mail to the address provided by you in your Affiliate Program Online Application (effective five (5) days after mailing).
45. Electronic Communications
YOUR ACCEPTANCE OF THIS AGREEMENT MEANS THAT YOU CONSENT TO RECEIVE COMMUNICATIONS FROM STINGRAY ELECTRONICALLY. AS A PARTICIPANT IN THE PROGRAM, STINGRAY MAY FROM TIME TO TIME SEND YOU E-MAIL UPDATES ABOUT THE PROGRAM OR THE AMENDMENTS TO THIS AGREEMENT. YOU AGREE THAT ALL THESE E-MAIL UPDATES AND OTHER COMMUNICATIONS THAT STINGRAY PROVIDES TO YOU ELECTRONICALLY SATISFY ANY LEGAL REQUIREMENT THAT SUCH COMMUNICATIONS BE IN WRITING.
Last update: January 20, 2009.
