BYOAudio.com Service Agreement
I understand that the BYOAudio.com system is a proprietary system created by BYOAudio.com and that any and all information pertaining to that system is the exclusive property of BYOAudio.com. Such systems and information may include, without limitation, all documents and materials, whether printed, graphic, or in machine-readable form, source or object code, or other tangible form, which is disclosed by BYOAudio.com or its affiliates, relating to the development of certain software systems and technology relating to communication systems and services initially for the exchange of information between buyers and sellers via electronic means or any other means now known or hereafter devised, including, without limitation, all processes, hardware, software, inventions, know how, business methods, pricing, operating, performance, non-public technical and business information, financial statements, appraisals, list of inventories, list of clients or customers, business plans or forecast strategies, production plans and marketing plans relating thereto (the "Information" or the "System".) I hold BYOAudio.com harmless for any and all injury incurred, either financially or personally, as a result of my use of the BYOAudio.com system and its technology.
In consideration of the disclosure of any proprietary information that I may come in contact with, I agree as follows:
1. The Information shall be treated as confidential and I shall not disclose that Information to any third party without the prior written consent of BYOAudio.com. I acknowledge that the disclosure of all or any part of such Information may be detrimental to the interests of BYOAudio.com and its affiliates and I shall take reasonably prudent measures to preserve the confidentiality of such information. I acknowledge that the disclosure of all or any part of such Information may be detrimental to the interests of BYOAudio.com and its affiliates and I shall take reasonably prudent measures to preserve the confidentiality of such information. BYOAudio.com will not disclose information or media contained in your account or that is obtained by monitoring or other server processing, which is not already publicly available, to any third parties unless required by law or requested in writing by a law enforcement agency or court of competent jurisdiction.
2. The Information shall not be used for any commercial purpose, reproduced in whole or part, nor revealed to others without prior written consent, of which consent may be withheld for any reason or no reason, and may be granted upon such terms as BYOAudio.com chooses.
3. I understand that BYOAudio.com does not condone nor tolerate the sending of unsolicited email by users of the system. I understand and acknowledge that I am solely responsible for mail received and/or sent on my behalf. I further understand that BYOAudio.com will immediately terminate my service for violating the BYOAudio.com Spam Policy as specified in that policy. In the event that my spamming has caused a BYOAudio.com service interruption, I understand that BYOAudio.com will charge me a $1000 per hour fee until service is fully restored. I understand that I will not be eligible for a refund when my account has been terminated for violating the Anti Spam Policy. I understand that I forfeit all Affiliate commissions that were due me when my account has been terminated for violating the Anti Spam Policy. BYOAudio.com reserves the right to take legal action against any member found violating this spam policy.
4. I understand that BYOAudio.com reserves the right to change or modify the terms of this Agreement or deny services to anyone, without notice, for any reason, including but not limited to any unusual use of bandwidth and/or spamming.
5. I understand that I am responsible for providing BYOAudio.com with accurate contact and payment information at all times. BYOAudio.com is not responsible for service interruptions that may result from my payment information becoming out of date.
6. I authorize BYOAudio.com to charge the credit card listed in my online application form for BYOAudio.com services provided on a month to month basis, and for any past due balances in order to bring the account balance current. I understand that credit card payments shall be billed and charged automatically. BYOAudio.com may charge my credit card account at any time for any outstanding invoice.
7. I understand that accounts are considered past due when payment is not received within 3 days after the date of invoice. I understand that accounts that remain unpaid after 7 days may have their service interrupted or terminated. Such interruption or termination does not relieve me from financial obligation to pay the monthly charge. Outstanding balances are subject to a $10 late fee. I agree to pay BYOAudio.com all reasonable expenses, including attorney and collection agency fees incurred by BYOAudio.com to enforce the terms and conditions of this Service Agreement.
8. I agree that all information, files and email will be deleted from an unpaid account 10 days past due or when my membership is terminated by either party. If I choose to use BYOAudio.com service again thereafter, I must reapply as a new member. I agree that my money-back guarantee trials are NOT available to me in the event that I reapply for membership.
9. I acknowledge that my BYOAudio membership cannot be transferred or used by anyone other than me. I understand that any membership found in violation shall be subject to immediate termination.
9a. I acknowledge that I may NOT resell, offer in whole or as part of any other service or product, imply ownership or co-ownership, rebrand or remarket any BYOAudio.com facilities or services without the express written consent of BYOAudio.com. Any account found in violation of this is subject to termination without notice.
10. I agree that BYOAudio shall have the right to suspend my service at any time for any reason without any prior notice. If service is to be suspended for more than 15 days, I will be notified in advance as to the reason.
11. I understand that BYOAudio.com does not issue refunds on any unused portion of a Membership.
12. I understand that I may cancel my Membership at any time and that I am required to use the Membership Cancellation Form when canceling my Membership. Cancellation is considered in effect when confirmed by BYOAudio.com.
13. I understand that BYOAudio.com may issue a one-time full refund of my membership fees, at its sole discretion, and will not refund any surcharged service charges, including but not limited to toll-free access usage or excess bandwith usage.
14. I understand that BYOAudio.com reserves the right to change the membership rates and charges by notifying me 30 days in advance of the effective date of the change.
15. I understand that if I am dissatisfied with the Service or with any terms, conditions, rules, policies, practices or guidelines of BYOAudio.com in providing the Service, I understand that my sole and exclusive remedy is to discontinue using the Service.
16. I understand that I cannot become an Affiliate Member of my own BYOAudio.com Affiliate account.
BY REGISTERING FOR THE BYOAUDIO.COM MEDIA STREAMING SYSTEM, I HEREBY ACKNOWLEDGE THAT I HAVE READ AND FULLY UNDERSTAND THIS USAGE AGREEMENT AND AGREE TO ALL OF ITS TERMS AND CONDITIONS.
BYOAudio Affiliate Agreement
This Agreement contains the complete terms and conditions that apply to an individual or entity's participation in the BYOAudio Affiliate Program (the "Program"). As used in this Agreement, "we" means BYOAudio, and "you" means the applicant. "Site" means a World Wide Web site and, depending on the context, refers either to BYOAudio's site located at the URL www.BYOAudio.com, or to the site that you will link to our site (as identified in your application).
1. Enrollment in the Program
To begin the enrollment process, please submit a complete Program application. We will evaluate your application in good faith and will notify you of your acceptance or rejection. We may reject your application if we determine (at our sole discretion) that your content or Web site is unsuitable for the Program. Unsuitable content or Web sites include those that:
o Promote illegal activities
o Include "BYOAudio" or variations or misspellings thereof in their domain names
o Otherwise violate intellectual property rights
If we reject your application, you are welcome to reapply to the Program at any time. You should also note that if we accept your application and your site is thereafter determined (at our sole discretion) to be unsuitable for the Program, we may terminate this Agreement.
2. Links on Your Site
Once you have been notified that your site has been accepted into the Program, you may provide a general link on your site to our home page at http://www.BYOAudio.com. We will provide you with guidelines and graphical artwork to use in linking to our home page. To permit accurate tracking, reporting, and referral fee accrual, we will provide you with special "tagged" link formats to be used in all links between your site and our site. You must ensure that each of the links between your site and our site properly utilizes such special link formats. Links to our site placed on your site pursuant to this Agreement and which properly utilize such special link formats are referred to as "Special Links." You will only earn referral fees with respect to activity on our site occurring directly through Special Links: we will not be liable to you with respect to any failure by you to use Special 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.
3. Order Processing
We will process product orders placed by customers who follow special links from your site to our site. We reserve the right to reject orders that do not comply with any requirements that we periodically may establish. We will be responsible for all aspects of order processing and fulfillment. Among other things, we will prepare order forms; process payments, cancellations, and returns; and handle customer service. We will track sales made to customers who purchase products using special links from your site to our site and will make available to you reports summarizing this sales activity. The form, content, and frequency of the reports may vary from time to time at our discretion.
4. Referral Fees
We will pay you (in accordance with Sections 5 and 6 below) referral fees on certain Product sales to third parties. For a Product sale to be eligible to earn a referral fee, the customer must follow a Special Link from your site to our site, select and purchase the Product using our automated ordering system, accept delivery of the Product at the shipping destination, and remit full payment to us. You may not: (a) directly or indirectly offer any person or entity any consideration or incentive (including, without limitation, payment of money (including any rebate), or granting of any discount or other benefit) for using Special Links on your site to access our site (e.g., by implementing any "rewards" program for persons or entities who use Special Links on your site to access our site); or (b) post any Special Links on any Web site or other platform that is accessible through any Internet Access Appliance. If we determine, in our sole discretion, that you have offered any person or entity any such consideration or incentive, or posted Special Links on any such Web site or platform, we may (without limiting any other rights or remedies available to us) withhold any referral fees otherwise payable to you under this Agreement and/or terminate this Agreement. Excess bandwidth usage and/or toll-free usage are non-commissionable.
5. Referral Fee Schedule
You will earn referral fees based solely on the sale of BYOAudio service accounts. The current referral fee schedule is 33 1/3% commission on each BYOAudio sale originated by you from your affiliate Website (Level One). Commissions are paid on a recurring basis for as long as BYOAudio.com bills the referred members.
6. Referral Fee Payment
Affiliate commission checks are made available every 30 days and are typically paid out within 15 days of the previous month's activity. All payments shall be made in U.S. dollars. BYOAudio reserves the right to hold commission checks until commission payout is $25 or more. In the event that the commission check is less than $25, that commission amount will be added to the next month's commission total. A $2.00 check-processing fee shall be deducted from the check amount when issued.
To request a check payment, BYOAudio.com Affiliates must request a check using the "Send Me A Check" button viewable on the Affiliate Summary page.
7. Policies and Pricing
Customers who buy services through this Program will be deemed to be customers of BYOAudio. Accordingly, all BYOAudio rules, policies, and operating procedures will apply to those customers. We may change our policies, operating procedures and prices at any time.
8. Identifying Yourself as an Affiliate
We will make available to you an affiliate web site with a unique URL that identifies you as a Program participant. In order to be credited for a BYOAudio sale, your visitors must enter BYOAudio.com via your Affiliate URL. These visitors will be tracked with your id and you will be credited for any sale associated with those visitors. You may not make any press release with respect to this Agreement or your participation in the Program without our prior written consent, which may be given or withheld in our sole discretion. In addition, you may not in any manner misrepresent or embellish the relationship between us and you, or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement (including by expressing or implying that BYOAudio supports, sponsors, endorses or contributes money to any charity or other cause). As an affiliate, you agree not to send any spam Email to announce your BYOAudio affiliation. This action will result in your immediate termination and will cancel any pending commissions that may be pending.
9. Limited License
We grant you a nonexclusive, revocable right to use the graphic image and text described in Section 8 and such other images for which we grant express permission, solely for the purpose of identifying your site as a Program participant and to assist in generating product sales. You may not modify the graphic image or text, or any other of our images, in any way. We reserve all of our rights in the graphic image and text, any other images, our trade names and trademarks, and all other intellectual property rights. We may revoke your license at any time by giving you written notice.
10. Term of the Agreement
The term of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all links to our site, and all BYOAudio trademarks, trade dress and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program. You are only eligible to earn referral commissions on BYOAudio sales during the term, and referral fees earned through the date of termination will remain payable only if the related sales are not canceled or returned or rules of this agreement were not violated by you. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on our site. Modifications may include, for example, changes in the scope of available referral fees, referral fee schedules, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, 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 OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
12. Relationship of Parties
You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section. as an independent contractor, you are responsible for your own local, state, or federal taxes.
13. Limitation of Liability
We will not be liable for indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the Program, even if we have been advised of the possibility of such damages. Further, our 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.
We make no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
15. Independent Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS. 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.
This Agreement will be governed by the laws of the United States and the state of Texas, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Dallas, TX and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
Louisiana residents only: In the event of a dispute for jurisdictional purposes, a distributor shall be entitled to file an adjudicatory claim or lawsuit in the jurisdiction of Louisiana and the governing law shall be Louisiana law.