Welcome to the Wendy’s Music Franchising Pty Ltd affiliate program (the “Affiliate Program”), through which Wendy’s Music offers its affiliates the opportunity to earn a commission for the successful referral of qualified new customers to Wendy’s Music online shop and Education service (the “Service”) provided to its customers through the website and any associated domains or subdomains.
These affiliate program terms and conditions (these “Terms”) are a legally binding agreement between the Affiliate Member and Wendy’s Music Franchising Pty Ltd, (“Wendy’s Music”) governing your participation in the Affiliate Program. Please read these Terms carefully and save a copy of them for your records. THESE TERMS CONTAIN IMPORTANT INFORMATION REGARDING LIMITATIONS OF LIABILITY, YOUR INDEMNIFICATION OBLIGATIONS, AND THE LAW GOVERNING, AND DISPUTE RESOLUTION PROCEDURES RELATED TO THE AFFILIATE PROGRAM.
You and Wendy’s Music Franchising Pty Ltd agree as follows:
1. Your Rights and Our Obligations with Respect to the Affiliate Program are Expressly Conditioned on Your Acceptance of These Terms.
- have the power and authority to enter into these Terms on behalf of your organization, if applicable;
- are at least 18 years of age;
- are not named on any government list of persons or entities prohibited from receiving exports; and
2. About the Program
As a member of the Affiliate Program, subject to these Terms, Wendy’s Music will use commercially reasonable efforts to provide you access to a web interface dashboard (“Affiliate Dashboard”) to administer the Affiliate Program. Through the Affiliate Dashboard, you will be provided a hyperlink (“Custom Affiliate Link”) to a landing page containing a subscription form (“Affiliate Form”) that is “tagged” with a unique identifier associated with your account.
As described in more detail below, you can earn a commission on certain sales when an individual or entity (not a computer-generated user, such as a robot, spider, computer script or other automated, or artificial method with no individual person actually present) that is neither you, nor a current or former Wendy’s Music customer or an affiliate thereof (any such individual or entity, a “Prospective Customer”), Purchases via your Affiliate Link.
3. The First Step Towards Earning a Commission is Creating an Affiliate Account
To join the Affiliate Program, you must create and maintain an affiliate account (“Affiliate Account”) with Wendy’s Music so that we have the information and communication channels necessary for both parties to perform their obligations under these Terms. To create an Affiliate Account, you must provide the information requested at registration which may include:
- the first and last name of the individual creating the Affiliate Account;
- a valid email address, which the individual creating the Affiliate Account has the right to access and use;
- a valid address; and
- the name of your company, if applicable (collectively, and together with any other information you may provide us in creating your Affiliate Account, “Affiliate Account Information”).
By providing Affiliate Account Information, you acknowledge and agree that Wendy’s Music may use such information to communicate with you about the Affiliate Program and Wendy’s Music ’s available commercial offerings. Wendy’s Music may send you commercial email messages that you may or may not have the ability to opt-out of.
When you provide us Account Information, you represent and warrant that it is complete, true, current and accurate, and you agree that if a change occurs and such Account Information is no longer complete, true, current or accurate, you will, promptly update your Account to reflect such change.
4. You May Use the Custom Affiliate Link to Refer Prospective Customers to the Service
Subject to these Terms, including, without limitation, Section 10, Wendy’s Music hereby grants you a non-exclusive and revocable personal license during the Agreement Term, and solely for the purpose of facilitating the referral of Prospective Customers to the Services, to display, distribute and reproduce (but in no case modify) Wendy’s Music ’s trade names, trademarks, service marks, trade dress, logos, designs and other similar identifying materials (collectively, “Wendy’s Music IP”), solely in the format provided to you through the Affiliate Dashboard, on website(s) owned or controlled by you (“Your Sites”) and in emails and other written communications to Prospective Customers.
You shall not, at any time, challenge or assist others to challenge any Wendy’s Music IP—except to the extent expressly required by applicable federal, state and local laws, rules, regulations, guidelines or ordinances (collectively, “Laws”)—or the registration thereof or attempt to register any copyrights, trademarks or service marks that are confusingly or substantially similar to those of Wendy’s Music .
5. Commissions are Only Paid for Customers that Subscribe to the Service Through your Affiliate Form
During the Commission Term, you may earn a commission (as calculated and payable pursuant to these Terms, “Commission”), but only on certain amounts paid to Wendy’s Music by Prospective Customers who, during the Agreement Term, accurately and fully complete, and submit to Wendy’s Music , your Affiliate Links, (any such individual or entity, a “Referred Customer”).
6. Calculating Commissions
Subject to your compliance with these Terms, during the time you are listed as an operating affiliate member, you are entitled to a Commission on the sales that are charged by, and actually paid, in full, to, Wendy’s Music through the Wendy’s Music online shop.Commissions are NOT payable for music lessons or referrals for music lessons. Each Commission is to be calculated net of any (a) taxes, (b) bad debts, (c) credits due, (d) credit card fraud, and (e) third party payment processing fees.
7. Commission Payment Terms
Commissions will be processed on a calendar month basis within fourteen (14) business days after the end of each month.
All payments will be made in AUD dollars in the manner determined by Wendy’s Music i.e. via paypal . You are solely responsible for calculating taxes on your income (if any) arising out of the payment of any Commissions and for remitting such taxes to any applicable authority.
8. You Forfeit Your Right to Commissions if You Fail to Provide Necessary Information
Without limiting the obligations to update Affiliate Account Information pursuant to Section 3, you must provide complete, true, current and accurate tax, payment and other information reasonably necessary for Wendy’s Music to remit Commission payments to you (“Payment Information”). You are solely responsible for maintaining the accuracy and completeness of such Payment Information by promptly updating your Affiliate Account Information or otherwise informing Wendy’s Music of any change therein. If you fail to provide Payment Information requested by Wendy’s Music within a commercially reasonable time (which will in no event be deemed to exceed thirty (30) days), Wendy’s Music may, in addition to any other available rights or remedies, withhold payment of any or all Commissions until you provide such Payment Information.
If (i) upon the expiration of the Commission Term, Wendy’s Music is rightfully withholding any Commissions pursuant to this Section, (ii) any Commission payments are returned due to incorrect Payment Information, or (iii) you failure to provide Payment Information necessary for Wendy’s Music to remit payment of any Commissions in compliance with applicable Laws, such Commissions are deemed forfeited and you hereby irrevocably waive any and all right, title, interest or claim you may have in or to such Commissions.
9. Restrictions Apply to Your Use of Wendy’s Music IP and Participation in the Affiliate Program
You may not, nor permit or encourage any third party to:
(i) Display, reproduce or otherwise use any Wendy’s Music IP on any website or in any email or other written communication that in Wendy’s Music ’s sole discretion, in whole or part:
(a) promotes sexually explicit materials;
(b) promotes violence;
(c) promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
(d) promotes illegal activities;
(e) promotes or incorporates any materials that infringe or assist others to infringe the intellectual property or proprietary rights of others;
(f) contains software downloads that potentially enable diversions of Commissions from other members in the Affiliate Program; or
(g) is otherwise, in any way, unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to Wendy’s Music .
(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 Customers in connection with their use of the Custom Affiliate Link.
(iii) Create or design a website in a manner resembling the Wendy’s Music Site, or design a website in a manner that leads Prospective Customers to believe you are Wendy’s Music or an affiliated business of Wendy’s Music .
(iv) Misrepresent or embellish the relationship between you and Wendy’s Music , or express or imply any relationship or affiliation between you or any other person or entity and Wendy’s Music , except as expressly permitted by these Terms.
(v) Use Wendy’s Music IP (or any misspellings, abbreviations, combinations or alterations thereof) in any domain or website name, bids for keywords or Google Adwords (or similar programs at other search engines), search engine advertising (paid or otherwise), metatags, search terms, or code.
(vi) Send any email or other form of electronic message or advertisement containing Wendy’s Music IP, the Ordoro Site or the Custom Affiliate Link to any recipient unless the recipient has directly consented to receive such communication from you or you have a pre-existing business relationship with the recipient.
(vii) Make any representations, warranties or other statements concerning Wendy’s Music , the Wendy’s Music Site, the Service, or the Wendy’s Music Site’s policies, except as expressly authorized by these Terms.
Wendy’s Music may, in addition to any other available rights or remedies, terminate these Terms immediately upon notice after determining, at Wendy’s Music ’s sole discretion, that you have breached any of the restrictions in this Section.
10. Responsibility for Your Sites
11. You Must Comply with Applicable Laws
You must abide by and comply with all applicable Laws.
Should any internet service provider or law enforcement agency notify Wendy’s Music that you have engaged in transmission of unsolicited bulk e-mails or have otherwise engaged in unlawful conduct or conduct in violation of said service provider’s terms of service, Wendy’s Music reserves the right to cooperate in any investigation relating to your activities including, without limitation, disclosure of your Affiliate Account Information in connection therewith. Moreover, Wendy’s Music may, in addition to any other available rights or remedies, terminate these Terms immediately upon notice after determining, at Wendy’s Music ’s sole discretion, that you are not in compliance with any applicable federal, state and local laws, rules, regulations, guidelines and ordinances Wendy’s Music deems relevant.
12. Wendy’s Music May Use Your Marks in its Marketing Efforts; Wendy’s Music Reserves its Rights in its Intellectual Property
You hereby grant us a non-exclusive, world-wide and transferable license during the Agreement Term to include your logos, trademarks, trade names and similar identifying material (“Your Marks”) in Wendy’s Music ’s print and online marketing and advertising materials as part of any listing of companies participating in the Affiliate Program. You represent and warrant that you are the sole and exclusive owner of Your Marks and have the right and power to grant to the foregoing license, and such grant does not or will not breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon you; or infringe upon any intellectual property or proprietary right of any other person or entity.
Except as explicitly set forth in these Terms, no rights or licenses are granted in these Terms or your participation in the Affiliate Program by Wendy’s Music .
Title to and ownership of the Service, the Wendy’s Music IP, the Custom Affiliate Link and all related software and documentation, including, without limitation, derivative works, compilations, or collective works thereof, all feedback related thereto, and in each case all related intellectual property and proprietary rights therein, are and will remain the exclusive property of Wendy’s Music and its licensors and (in the case of any such feedback) are hereby assigned to Wendy’s Music .
13. Agreement Term and Termination; Commission Term
These Terms are effective as of the Effective Date and continue in effect for an initial term of one (1) year (“Initial Term”), unless earlier terminated in accordance with the provisions of these Terms. These Terms will automatically renew for additional successive one (1) year terms (each, a “Renewal Term” and together with the Initial Term, the “Agreement Term”), unless at least thirty (30) days before the end of the then-current term, either party provides written notice to the other party that it does not want to renew.
If either party is in breach of these Terms and fails to cure such breach within thirty (30) days of receiving notice thereof, the other party may terminate these Terms by giving written notice of termination. Additionally, Wendy’s Music may terminate for cause immediately upon notice as set forth in Sections 10 and 12.
In addition, either party may terminate this Agreement for its convenience by providing the other party with sixty (60) days’ written notice.
The following provisions will survive any expiration or termination of these Terms: Sections 5–9 and 14–22.
The “Commission Term” begins on the Effective Date and will continue for a period of six (6) months following the expiration or earlier termination of the Agreement Term; provided, however, if these Terms are terminated by Wendy’s Music for cause, or by you for convenience, the Commission Term will end as of the date of such termination.
14. WARRANTY DISCLAIMER.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, WENDY’S MUSIC MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND HEREUNDER AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANT ABILITY, 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, WENDY’S MUSIC DOES NOT WARRANT OR REPRESENT THAT ACCESS TO THE WENDY’S MUSIC SITE OR THE AFFILIATE DASHBOARD WILL BE ERROR FREE OR THAT YOUR PARTICIPATION IN THE AFFILIATE PROGRAM WILL RESULT IN THE ACCRUAL OR PAYMENT OF ANY COMMISSIONS.
15. Limitation of Liability
IN NO EVENT WILL WENDY’S MUSIC BE LIABLE TO YOU FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING IN CONNECTION WITH THESE TERMS OR THE AFFILIATE PROGRAM, WHETHER SUCH CLAIMS ARE BASED IN CONTRACT, TORT OR OTHER LEGAL THEORY. UNDER NO CIRCUMSTANCES WILL WENDY’S MUSIC ’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS OR THE AFFILIATE PROGRAM, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, INDEMNITY OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO YOU BY WENDY’S MUSIC UNDER THESE TERMS IN THE SIX (6) MONTHS PRECEDING THE APPLICABLE CLAIM.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
16. Confidential Information
Wendy’s Music may disclose to you certain information that Wendy’s Music considers to be confidential (“Confidential Information”) as a result of your participation in the Affiliate Program. Confidential Information includes, without limitation, non-public website, business and financial information relating to Wendy’s Music, customer and vendor lists relating to Wendy’s Music, and any members of the Affiliate Program, other than you. Confidential Information also includes any information designated as confidential or that would be reasonably understood to be confidential from the nature of the information and circumstances surrounding its disclosure. You shall keep all Confidential Information strictly confidential and secret and shall not be not, nor permit or encourage any third party to, disclose any Confidential Information or utilize, directly or indirectly, any Confidential Information for any purpose other than in connection with your participation in the Affiliate Program, except and solely to the extent that any such information is generally known or available to the public or if same is required by law or legal process.
17. Wendy’s Music is Not Responsible for Things it Cannot Control
Wendy’s Music is not responsible nor liable for any delays or failures in performance from any cause beyond Wendy’s Music’s control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power outages, strikes, weather conditions or acts of hackers, internet service providers or any other third party, or your acts or omissions.
Without limiting the foregoing or Section 15, the Wendy’s Music Site, Affiliate Dashboard, and the Affiliate Program generally rely on third party technology and services such as application programming interfaces and web hosting services. Any change to the products or services offered by any of these third-party providers may materially and adversely effect, or entirely disable, the use of or access to the Wendy’s Music Site, Affiliate Dashboard or your Affiliate Form. Likewise, Wendy’s Music cannot guarantee that any user data hosted on a third-party server will remain secure.
18. Disputes Relating to the Service Will Be Resolved Through Binding Arbitration
Any dispute arising out of or relating to the Affiliate Program or these Terms, or its subject matter, shall be resolved exclusively by binding arbitration under the Commercial Arbitration Rules of Australia. The arbitration will be conducted in Australia 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 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.
19. Assigning These Terms
You may not assign these Terms or any license set forth herein, in whole or in part, without Wendy’s Music’s prior written consent. Wendy’s Music may assign these Terms (including, for the avoidance of doubt, any rights to Affiliate Account Information Wendy’s Music may have) without your consent, to an affiliate or in connection with any merger, acquisition, corporate reorganization, or sale of all or substantially all of Wendy’s Music’s assets. Any purported assignment in violation of this section shall be null and void. These Terms shall be binding on all permitted assignees.
20. Miscellaneous Terms
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Wendy’s Music as a result of these Terms or your participation in the Affiliate Program. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, other than as provided herein.