This Affiliate Agreement governs the business relationship between Hurlbut Visuals dba Filmmakers Academy (“FA”) and its Affiliates under which Affiliates may refer potential members to FA in exchange for a Referral Fee as defined in this Agreement.
TERMS AND CONDITIONS
A “Referral” means a person or entity referred to FA by Affiliate who or which becomes a paying member of the FA Annual All Access Membership (the “Program”). Existing Members and FA students and all military personnel are excluded from being a Referral. A “prospective Referral” is a person or entity referred by Affiliate to FA who or which has not yet purchased the
The “Affiliate” means the signatory to this Agreement who has agreed to refer to FA a prospective member with the intent of having the prospective member become a Referral.
Date. The “Referral Date” means the date a Referral is first introduced to FA.
1.4 Existing Member.
An “Existing member” means any person or entity who is or has been a paying member of one or more FA courses within the period of twelve (12) months prior to the applicable Referral Date of a Referral.
1.5 Amount Collected.
The “Amount Collected” means the total received in US Dollars(after conversion from non-US currency to US Dollars, if necessary) from a Referral less (a) credit card or other charges attributable to the payment method used by the Referral, (b) currency conversion fees, or (c) discounts,credit, cancellations or allowances granted by FA in its sole and absolute discretion.
1.6 Referral Fee.
The “Referral Fee” is the percentage of the Amount Collected from a Referral.
The “Term” means the Initial Term and each Renewal Term of this Agreement.
2.1 Engagement.During the term of this Agreement, Affiliate shall undertake commercially reasonable efforts to send prospective Referrals to FA. The Affiliate shall not participate in any sales, meetings or negotiations with a prospective Referral or have authority to sell the products or services of FA.
2.2 Non-Exclusive. The referral relationship between FA and Affiliate is non-exclusive.
Subject to this Agreement. The Program (the FA Annual All Access Membership) is the only FA course for which Affiliate can refer
prospective Referrals and for which a Referral Fee will be paid.
3.2 Acceptance. FA shall have complete discretion whether or not to accept or reject any prospective Referral. Nothing in this Agreement shall obligate FA to consummate any transaction with a Referral.
3.3 Pricing and Referral Fee. FA shall determine the pricing for the Program at its sole discretion, which pricing may change from time to time. The Referral Fee will only be paid on the first year a Referral signs up for the Program and will not be paid on any renewal by a Referral of the Program.
3.4 Payment of Referral Fees. FA shall pay Affiliate a Referral Fee on the Amounts Collected from Affiliate’s Referrals each calendar month of this Agreement.
4. LICENSE TO USE CERTAIN FA INTELLECTUAL PROPERTY; MARKETING AND OTHER RESTRICTIONS
4.1 Subject to these terms, FA hereby grants Affiliate (a) a non-exclusive and revocable personal, non-sublicensable license during the Term to use FA marketing materials as provided by FA and FA trademarks for use in marketing the Program to prospective Referrals in all media, including social media, and (b) the right to identify as an Affiliate solely in the format(s) provided to Affiliate by FA, on website(s) owned or controlled by Affiliate (“Affiliate Sites”), in social media, in emails, and other digital campaigns pre-approved by FA.
4.2 Affiliate acknowledges FA’s ownership of FA’s intellectual property, which includes the content in the Program, and all of FA’s trademarks, service marks (including FILMMAKERS ACADEMY, HURLBUT VISUALS, MASTERING THE IMAGE), logos and marketing materials (collectively, the “FA IP”). Affiliate shall not, at any time, challenge or assist others to challenge any FA IP or
the registrations thereof, nor will Affiliate attempt directly or with or through others to use or register any designs, banner ads, trademarks or service marks that are confusingly or substantially similar to those of FA, or to use, produce, stream, display or transmit any videos, courses or other content owned by or licensed to FA.
4.3 In marketing to prospective Referrals, Affiliate can only use ads approved or provided by FA and only as permitted under this Agreement. Affiliate cannot not use any domain names, FA trademarks or service marks, business names, URL extensions, metatags or key words that contain the names FILMMAKERS ACADEMY, HURLBUT VISUALS, SHANE HURLBUT, MASTERING THE IMAGE, or any other words that create the impression that Affiliate is in any way affiliated with FA other than as an Affiliate of the Program.
4.4 Affiliate cannot use any Pay Per Click ads (for example Google AdSense), spam emails or other spam technology, or any other marketing methods or techniques not specifically authorized by the FA.
4.5 Further, Affiliate may not, nor permit or encourage any third party on its behalf to:
(i) Display, reproduce or otherwise use any FA IP on any website which in whole or part:
(a) promotes sexually explicit material or violence;
(b) promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
(c) promotes illegal activities;
(d) promotes or incorporates any materials that infringe or assist others to infringe the intellectual property or proprietary
rights of others;
(e) contains software downloads that potentially enable diversions of Referral Fees from other members in the Affiliate
(f) is otherwise, in any way, unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or
otherwise objectionable to FA.
(ii) Transmit any so-called “spyware,” “interstitials,” “parasiteware,” “parasitic marketing,” “shopping assistance application,”
“toolbar installations and/or add-ons,” “shopping wallets” or “deceptive pop-ups and/or pop-unders” to prospective
(iii) Create or design a website in a manner resembling any of the FA websites or design a website in a manner that leads
third parties to believe Affiliate is associated with FA other than as an Affiliate (except that Affiliates who are FA mentors
and educators and others who are affiliated with FA other than as an Affiliate may identify themselves in such
(iv) Send any email or other form of electronic message or advertisement containing FA IP to any recipient unless FA has
pre-approved such activity. If a recipient requests to opt-out from receiving any communications from Affiliate, Affiliate
will honor such request immediately.
(vi) Make any representations, warranties or other statements concerning FA, except as expressly authorized by these
4.6 FA may, in addition to any other available rights or remedies, terminate this Agreement immediately upon notice after
determining, at FA’s sole discretion, that Affiliate has breached any of the restrictions in this Section 4.
5. TERM AND TERMINATION
5.1 Term. This Agreement shall become effective on the date this Agreement is signed by all parties and will remain in effect
until terminated by one of the parties.
5.2 Termination. A party may terminate this Agreement at any time by giving at least thirty (30) days’ notice to the other; however,
FA’s obligation to pay Referral Fees shall survive the termination of this Agreement unless the termination has been for uncured
breach by an Affiliate of any of the prohibited conduct set out in Section 4 and its sub-sections.
6. RELATIONSHIP OF PARTIES
This Agreement does not create a joint venture, partnership, or principal-agent relationship between the parties, and nothing in
this Agreement may be used to imply such a relationship. Neither party has the right, power, or authority to obligate or bind the
other in any manner unless authorized in writing by the other party in a specific instance.
Each party agrees to indemnify and hold harmless the other party and its agents and employees from and against all claims,
demands, obligations, and liabilities of any nature whatsoever, and all related costs and expenses (including reasonable
attorney’s fees), resulting solely and directly from the indemnifying party’s breach of this Agreement, negligence, or willful
misconduct. Each party agrees to give the other prompt written notice of any claim or other matter as to which it believes this
indemnification provision applies. The indemnifying party has the right to defend against any such claim with counsel of its own
choosing and to settle or compromise such claim as it deems appropriate. Each party also agrees to cooperate with the other in
the defense of any such claim or other matter.
8. LIMITATION OF LIABILITY
WITH THE EXCEPTION OF AFFILIATE’S BREACH OF SECTION 4 OR ANY OF ITS SUBSECTIONS OF THIS AGREEMENT,
IN NO EVENT WILL ANY PARTY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION,
LOSS OF DATA, DELAY, OR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION
WITH, RELATING TO OR ARISING OUT OF THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
WITH THE EXCEPTION OF AFFILIATE’S BREACH OF SECTION 4 OR ANY OF ITS SUBSECTIONS OF THIS AGREEMENT,
EACH PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THE SERVICES OR THIS AGREEMENT SHALL
NOT, IN ANY EVENT, EXCEED THE TOTAL AMOUNT OF REFERRAL FEES PAID BY EITHER PARTY.
9. WARRANTIES DISCLAIMER
FA MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND HEREUNDER AND EXPRESSLY DISCLAIMS ALL
IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, QUALITY, ACCURACY, NON-INFRINGEMENT AND TITLE, IN EACH CASE, TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FA DOES NOT
WARRANT THAT AFFILIATE’S PARTICIPATION IN THE AFFILIATE PROGRAM WILL RESULT IN THE ACCRUAL OR
PAYMENT OF ANY REFERRAL FEES.
10. MISCELLANEOUS PROVISIONS
10.1 Governing Law. The validity, interpretation, construction and performance of this Agreement, and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance
with the laws of the state of California, without giving effect to principles of conflicts of law.
10.2 Force Majeure. Either party shall be excused from the performance of this agreement and shall not be liable for any delay in whole or in part, to the extent caused by the occurrence of any fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, or any other similar cause beyond the reasonable control of the excused party.
10.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties. There are no understandings,
agreements, or representations, oral or written, not specified herein regarding this contract. No amendment, consent,or waiver
of terms of this Agreement shall bind either party unless in writing and signed by all parties. Any such amendment, consent, or
waiver shall be effective only in the specific instance and for the specific purpose given.
10.4 Notices. Any notice, demand or request required or permitted to be given under this Agreement shall be in writing and shall be
deemed sufficient when delivered personally or by overnight courier or sent by email, or 48 hours after being deposited in the
U.S mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party’s address as
set forth on the signature page, or by email.
10.5 Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree
to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable
replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded, and (iii) the balance of the Agreement shall be
enforceable in accordance with its terms.
10.6 Dispute Resolution. Any dispute arising out of or relating to this Agreement, shall be resolved exclusively by binding arbitration
under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration will be conducted in
Monterey, California by a single arbitrator knowledgeable in commercial distribution logistics and sales. The arbitrator will
provide detailed written explanations to the parties to support his/her/their award and regardless of outcome, each party shall
pay its own costs and expenses (including attorneys’ fees) associated with the arbitration proceeding and fifty percent (50%) of
the fees of the arbitrator and the AAA.
10.7 Construction. This Agreement is the result of negotiations between and has been reviewed by each of the parties hereto and
their respective counsel, if any; accordingly,this Agreement shall be deemed to be the product of all of the parties hereto,
and no ambiguity shall be construed in favor of or against any one of the parties hereto.
10.8 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered
shall be deemed an original, and all of which together shall constitute one and the same agreement.