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Web Linking Referral Fee Agreement

The following is a binding legal agreement between you (“You” or “you”) and LyricFind Inc., 40 Eglinton Avenue East, Suite 400, Toronto, Ontario M4P 3A2, Canada,  (“LyricFind”) (each sometimes referred to individually as a “Party” and collectively as the “Parties”) on the following terms (the “Agreement”):

It is important you read the Agreement below. Enrolling in the LyricMerch Affiliate Program means you accept this Agreement. If you do not agree with its terms, do not make available the Links or enroll in the LyricMerch Affiliate Program.

 

You and LyricFind hereby agree as follows:

  1. The LyricFind Merchandise Service. LyricFind operates a service at www.lyricmerch.com and www.lyricmerch.ca that permits users of such service (“Customers”) to, among other things, select portions of lyrics or the titles of compositions (collectively, the “Lyrics”) that shall be reproduced on various types of merchandise items (“Products”) to be manufactured on an on-demand basis and shipped to the applicable Customer (the “Service”).
  2. Your Account. You are a registered user of the Service and, as a registered user, you have your account page (the “Account Page) on the Service. After you have entered into this Agreement, LyricFind will present to you on your Account Page an online form (the “Payment Form”) which you may complete and submit with your payment and other relevant information.
  3. Links to the Service. LyricFind shall notify you on your Account Page of your affiliate identification number (“Affiliate ID”) along with instructions how you may create links that include your Affiliate ID and that connect to the Service (the “Links”). You may make such Links available to third parties. LyricFind may add, change or delete Products and/or Lyrics from its Service (and related Links) at any time.
  4. Your Responsibilities. You shall be solely responsible for the development, operation, and maintenance relating to you and/or your web site, if any, and for all materials relating thereto, including, without limitation: (a) the technical operation of your web site, if any, and all related equipment; (b) creating and posting descriptions of the Service including, without limitation, on your web site, if any, and linking those descriptions to the Service; (c) the accuracy and appropriateness of any materials you post or incorporate into any web site (including among other things, all Service-related materials); (d) ensuring that all materials that you post and/or incorporated into any web site do not violate or infringe upon the rights of any third party (including, without limitation, copyrights, trademarks, trade secrets, privacy or other personal or proprietary rights); and (e) ensuring that materials that you post and/or incorporate into any web site are not libelous or illegal.
  5. Order Processing. As between you and LyricFind, LyricFind (and/or its designees) shall be responsible for all aspects of processing and fulfilling orders placed by Customers who follow the Links to Products on the Service; provided, however, that LyricFind reserves the right to reject orders in its sole discretion including, without limitation, any orders that do not comply with any requirements that LyricFind periodically may establish. LyricFind (and/or its designees) shall be responsible for preparing orders, processing payments, cancellations, returns and exchanges, and customer service, and shall track sales made to Customers who purchase a Product using a Link to such Product in the Service.  LyricFind shall send you a summary of such sales activity. To permit accurate tracking, reporting, and fee accrual, you shall be solely responsible for ensuring that the Links comply with LyricFind’s instructions and are properly formatted.
  6. Referral Fees.
  7. a) LyricFind shall notify you on your Account Page of the referral fee(s) (each a “Referral Fee”) that LyricFind offers to pay hereunder. LyricFind shall pay you the applicable Referral Feewith respect to each Customer who enters the Service via a Link hereunder that pays to purchase a Product during the Term as a direct result of using a Link to the Service in accordance with the terms hereunder. No referral fee shall be due with respect to any Product(s) with respect to which the Customer does not accept delivery and remit full payment therefor to LyricFind, or that is returned or exchanged. No referral fee shall be due with respect to any Product(s) purchased after the Term. No referral fee shall be due with respect to any Customer that enters or reenters the Service other than through a direct Link hereunder (e.g., through a link other than a Link hereunder, through a link from another site, a bookmark or by manually entering the URL of the Service). LyricFind reserves the right to change or modify the Referral Fee(s) at any time in accordance with any revision thereof on your Account Page.

    (b) LyricFind (and/or its designee) shall send you a report on a quarterly basis within thirty (30) days following the end of each calendar quarter, showing in reasonable detail the calculation of all Referral Fees earned under this Agreement during the previous calendar quarter, which shall be accompanied by payment to you of any Referral Fees due to you with respect to such calendar quarter.  Such report and payment shall be sent to you in accordance with the information that you provide to LyricFind on the Payment Form.  It is acknowledged and agreed that LyricFind shall have no obligations to you hereunder including, without limitation, any obligation to pay any Referral Fees until and unless you submit to LyricFind all requested information on the Payment Form in a complete and accurate manner.  LyricFind reserves the right to delay payment and accrue Referral Fees hereunder until such time that such Referral Fees owing hereunder exceed One Hundred Dollars ($100) USD at which time they shall be paid in accordance with the provisions hereof, with no interest due as a result of such delay and accrual.(c) LyricFind shall keep for three (3) years after the applicable accounting period hereunder proper records relating to Referral Fees hereunder. In the event that you believe in good faith that the Referral Fees paid to you are not accurate, then you may request in writing that LyricFind verify the accuracy of its records and calculations relating to the Referral Fees payable hereunder, provided that such request shall not be made more often than once each year. Upon such request, LyricFind shall recalculate the amount of the Referral Fees and deliver a report stating the correct amount of Referral Fees payable under the Agreement, with any payment shortfall.

  1. Policies and Pricing. Customers who buy Products hereunder shall be deemed to be customers of LyricFind. Accordingly, all LyricFind policies and operating procedures concerning customer orders, customer service and Product sales will apply to those Customers.  LyricFind may change its policies and operating procedures at any time, and LyricFind will determine the prices to be charged for Products sold in the Service in accordance with LyricFind’s own pricing policies.  Product prices and availability may vary from time to time. Because price changes may affect Products with respect to which you may make Links available, you may not include price information in your Product descriptions.  LyricFind does not guarantee the availability or price of any particular Product.
  2. Intellectual Property Rights.

(a) Subject to the license granted to you under Section 8(b) below, LyricFind reserves all of its right, title and interest in its intellectual property rights including, without limitation, all patents, copyrights, trade secrets, trademarks and other intellectual property rights. Subject to the license granted to LyricFind under Section 8(c) below, you reserve all of its right, title and interest in your intellectual property rights.

(b) LyricFind hereby grants to you during the term of this Agreement a non-exclusive, non-transferable, royalty-free license to establish hyperlinks to the Service and to use the trade names, logos, trademarks and service marks (collectively, “Marks”) that may from time to time be supplied to you hereunder by LyricFind (the “LyricFind Marks”) including on your web site, if any, as is reasonably necessary to establish and promote such Links and otherwise to perform your  obligations under this Agreement; provided, however, that any promotional materials or other uses containing any of the LyricFind Marks will be subject to LyricFind’s prior written approval.

(c) You hereby grant to LyricFind during the term of this Agreement a non-exclusive, non-transferable, royalty-free license to establish hyperlinks between the Service and you and/or your web site, if any, and to use your trade names, logos, trademarks and service marks (“Your Marks”) as is reasonably necessary to establish and promote such hyperlinks and to otherwise perform its obligations under this Agreement and display Your Marks in any of its promotional materials.

(d) Neither Party will modify, alter or obfuscate the other party’s Marks or use the other Party’s Marks in a manner that disparages the other party or its products or services, or portrays the other Party or its products or services in a false, competitively adverse or poor light. Each Party will comply with the other party’s instructions as to the form of use of the other party’s Marks and will avoid any action that diminishes the value of such Marks. Either party’s unauthorized use of the other’s Marks is strictly prohibited. Upon termination of this Agreement and upon written request, the Party in receipt of the requesting Party’s intellectual or proprietary property and/or information pursuant to this Agreement shall return such information to the requesting Party.

  1. Confidentiality. The terms of this Agreement and any negotiations related hereto or any information provided by the Parties in connection therewith shall be confidential. The Parties hereby represent and warrant that neither they nor any of their respective officers, directors or employees shall disclose to any third party the financial terms of this Agreement or any other information which the disclosing party identifies as confidential or which is of such a nature that the receiving party should reasonably understand that the disclosing party desires to protect against unrestricted disclosure or use including, without limitation, site traffic and performance data, business information, financial data and marketing data (except as may be required by law) without the express prior written consent of the other Party hereto. Notwithstanding the foregoing sentence, in the event of a dispute with regard to this Agreement, the Parties shall have the right to disclose the terms of this Agreement in court or similar proceedings. Either Party shall have the right to issue a press release disclosing the existence and non-monetary details of this Agreement. Either party shall have the right to use the other Party’s name and/or logo to publicize the existence of this Agreement.
  2. Disclaimers and Limitation of Liability.

(a) Each Party (i) acknowledges that the operation of the Service and your web site, if any, shall not be uninterrupted or error-free and may be subject to temporary shutdowns including due to causes beyond the operating party’s reasonable control, and (ii) subject to the specific terms of this Agreement, retains sole right and control over the programming, content and conduct of transactions over its respective site or service.

(b) EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, EACH PARTY SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, WITH REPSECT TO (I) ITS WEB SITE OR SERVICE AND ANY OF THE PRODUCTS OR SERVICES IT PROVIDES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; (II) THE AMOUNT OF SALES OR REFERRAL FEES THAT MAY BE GENERATED DURING THE TERM; AND (III) ANY ECONOMIC OR OTHER BENEFIT THAT THE OTHER PARTY MIGHT OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT.

(c) NEITHER LYRICFIND NOR YOU SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF THIS AGREEMENT. EACH PARTY’S ENTIRE LIABILITY ARISING FROM THIS AGREEMENT (EXCEPT FOR LIABILITIES ARISING UNDER SECTION 12 OR RESULTING FROM THE PARTY’S WILLFUL MISCONDUCT), WHETHER IN CONTRACT OR TORT, WILL NOT EXCEED THE AMOUNTS TO BE PAID BY LYRICFIND UNDER THIS AGREEMENT.

  1. Term and Termination.

(a) The term of this Agreement will begin on the date that you enter into this Agreement and shall continue until either Party terminates this Agreement upon notice to the other Party.

(b) Sections 6, 9, 10, 12 and 13-15 of this Agreement (together with all other provisions that reasonably may be interpreted as surviving termination or expiration of this Agreement) will survive the termination or expiration of this Agreement.

  1. Indemnification.

(a) LyricFind shall defend and indemnify you and your affiliates (and your respective employees, directors and representatives) against any claim or action brought by a third party, to the extent relating to (i) the operation or content of the Service, (ii) any breach or alleged breach of its obligations under this Agreement, or (iii) the violation of third-party intellectual property rights by any materials provided by LyricFind for display by you including on your web site, if any, provided that you have promptly notified LyricFind of any such claims. Subject to your compliance with the procedures described hereunder, LyricFind shall pay any award against you or your affiliates (or their respective employees, directors or representatives) and any costs and reasonable attorneys’ fees reasonably incurred by your or your affiliates resulting from any such claim or action. This indemnity and the Parties’ representations and warranties shall survive the termination of this Agreement.

(b) You shall defend and indemnify LyricFind and its affiliates (and their respective employees, directors and representatives) against any claim or action brought by a third party, to the extent relating to (i) your activities hereunder including, without limitation, the operation or content of your web site, if any, (ii) any breach or alleged breach of your obligations under this Agreement, or (iii) the violation of third-party intellectual property rights by any materials provided by you for display on the Service provided that LyricFind has promptly notified you of any such claims.  Subject to LyricFind’s compliance with the procedures described hereunder, you shall pay any award against LyricFind or its affiliates (or their respective employees, directors or representatives) and any costs and reasonable attorneys’ fees reasonably incurred by LyricFind and its affiliates resulting from any such claim or action. This indemnity and the Parties’ representations and warranties shall survive the termination of this Agreement.

(c) In connection with any claim or action described in this Section, the Party seeking indemnification (a) will give the indemnifying Party prompt written notice of the claim, (b) will cooperate with the indemnifying Party (at the indemnifying party’s expense) in connection with the defense and settlement of the claim, and (c) will permit the indemnifying Party to control the defense and settlement of the claim, provided that the indemnifying Party may not settle the claim without the indemnified party’s prior written consent (which will not be unreasonably withheld). Further, the indemnified Party (at its cost) may participate in the defense and settlement of the claim.

  1. Notices and Payments. All notices, statements and payments hereunder will be sent to the address set forth on page 1 hereof or to such other address as may be designated by a Party in writing from time to time. A copy of all notices sent to LyricFind hereunder will be sent to Liebenson Law, 411 Lafayette Street, Sixth Floor, New York, NY 10003 Attention: Jeff Liebenson. All notices will be in writing and (except for payments of monies and/or accounting statements) will be served by sending via a nationally recognized overnight courier service, or by registered or certified mail, all charges prepaid.  The date of mailing or transfer to a nationally recognized overnight courier service will deemed the date of delivery.
  2. Applicable Law. This Agreement shall be governed by the laws of the Province of Ontario as applied to agreements entered into and performed within Ontario by residents of that state without giving effect to its conflict of law rules and any and all legal proceedings to enforce this Agreement shall be brought only in the provincial or federal courts sitting in the City of Toronto, Canada, the parties hereto hereby waiving any claim or defense that such forum is not convenient or proper, and accordingly, each party agrees that any such court shall have in personam jurisdiction over such party and consents to service of process in any manner authorized by Ontario law.
  3. General Provisions.

(a) You and LyricFind are independent contractors for the purpose of this Agreement. Neither the execution, delivery nor performance of this Agreement will be construed to constitute either party as an agent or representative of the other for any purpose. Neither the execution, delivery nor performance of this Agreement will be deemed to establish a joint venture or partnership between the Parties. Except as otherwise provided herein, neither Party has the authority to (i) bind the other Party by or to any contract, representation, understanding, act or deed, (ii) represent that either Party is an agent of the other Party, or (iii) represent that either Party is responsible for the acts or omissions of the other Party.

(b) Neither Party will be deemed in breach of this Agreement unless and until the other Party gives notice and the notified Party fails to cure such breach within thirty (30) days after receiving such notice; provided, however, that if the breach alleged is not capable of being cured within such thirty (30) day period, and the notified Party promptly commences such cure and continues to conscientiously effect such cure, such notified Party shall be allowed an additional thirty (30) day period to complete such cure.

(c) In its performance of this Agreement, each Party will comply with all applicable laws, regulations, orders and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction. Without limiting the generality of the foregoing, each Party will pay, collect and remit such taxes as may be imposed with respect to any compensation, royalties or transactions under this Agreement. Except as expressly provided herein, each Party will be responsible for all costs and expenses incurred by it in connection with the negotiation, execution and performance of this Agreement.

(d) This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and shall supersede all previous negotiations, commitments and writings with respect to such subject matter hereof. This Agreement may not be modified or amended except by an agreement in writing signed by each of the parties hereto.

(e) This Agreement shall not be modified except by a writing duly executed by, or on behalf of, the Party against whom such modification is sought to be enforced.

(f) The failure of either Party to enforce any provision of this Agreement will not constitute a waiver of the Party’s rights to subsequently enforce the provision. The remedies specified in this Agreement are in addition to any other remedies that may be available at law or in equity. If any provision of this Agreement shall be declared by any court of competent jurisdiction to be illegal, void or unenforceable, all other provisions of this Agreement shall not be affected and shall remain in full force and effect.