Fanatec Affiliate Programm (“FAP”) Membership Agreement
To participate in FAP, You must first agree to the terms and conditions (“T&Cs”) of this Membership Agreement (the "Agreement"). By checking “I AGREE TO THE TERMS AND CONDITION´s box on FAP´s Affiliate sign-up page on the Fanatec website, “You” submit your application to become an Affiliate in the FAP, which is “Your” offer to enter into an agreement with Fanatec under the terms described in this Agreement. If Fanatec accepts Your offer, You will become an Affiliate, subject to the terms of this Agreement. So, it is important for you to carefully review this Agreement prior to accepting it. If you do not wish to apply to become an Affiliate in FAP, then do not check the “I AGREE TO THE TERMS AND CONDITION´s box, but that will mean that you will not be able to participate in FAP. Your continued participation in FAP constitutes your continuing acceptance of the T&Cs of this Agreement. The parties agree as follows:
I. WHAT DO CERTAIN WORDS MEAN?
A. Definitions. Certain terms in this Agreement have special definitions, which either appear below or are defined in the body of the Agreement itself.
1. “Affiliate” means those persons or other entities referring business to Fanatec through FAP.
2. “Chargeback” means an amount of money:
(i) which has been deemed to have been refunded by or returned by Fanatec to a Customer based on a Referral Sale which has been voided, retracted, subject to returns, been reversed, due to fraud, or otherwise rescinded for any reason under the terms of the terms of sale on the Web Shop; or
(ii) which has been retrieved from, reserved against and/or charged against Fanatec or Fanatec’s credit card/debit card merchant accounts under the terms of any applicable credit card merchant account agreements; or
(iii) which has been retrieved from, reserved against and/or charged against Fanatec, Fanatec’s bank accounts or Fanatec’s credit card merchant accounts because of government actions including but not limited to embargo, court order, levy, security interest or other form of lien, reclamation, escheat or civil forfeiture.
3. “Customers” means the purchasers and potential purchasers of Fanatec’s products.
4. “Fanatec” means Fanatec, an Endor AG brand, which allow persons, entities and organizations to participate in the Fanatec Affiliate Program.
5. "FAP” means the Fanatec Affiliate Program provided by Fanatec as described in this Agreement in which Fanatec (in its sole discretion) has granted You the right to participate as an Affiliate.
6. “T&Cs” means Terms and Conditions within FAP.
7. “Payouts” means financial compensation earned by an Affiliate from Fanatec, for Referral Sales.
8. “Program" means a marketing program offered by Fanatec to Affiliates for the referral of potential customers to Fanatec’s Web Shop.
9. “Web Shop” means an online commerce site hosted on the Fanatec website.
10. “Referral Link” means an Internet URL, intended for use as a hyperlink to direct a Customer to Fanatec’s Web Shop which identifies You as the Affiliate who referred that Customer to the Web Shop.
11. “Referral Sale” means the purchase of certain Fanatec products and/or services by a Customer referred to Fanatec through a Referral Link during the term of this Agreement which is in accordance with Fanatec’s T& Conditions for FAP.
12. “Regulated Business” means any activity conducted by You which, due to being subject to special laws and/or regulations that ordinarily do not apply to commercial establishments generally, causes or could reasonably be likely to cause Fanatec to be subject to those laws and/or regulations if promoted, solicited or otherwise marketed through Your activities (examples of Regulated Businesses include selling or providing insurance, securities, mortgages, loans or other extensions of credit, banking services such as the maintenance of deposit accounts, investment advice or investment advisory services, prescription drugs or firearms, conducting sweepstakes or games of chance, or acting as a broker, agent or finder for any person engaged in any of the above).
13. “You" means the person or business that is shown as the Affiliate on FAP’s sign-up page.
14. "Your" or "yours" refers to things that You own.
II. WHAT DOES THIS AGREEMENT COVER?
A. In General. Fanatec will allow You to apply to participate in FAP, as described in this Agreement.
Once the Affiliate Manager has accepted you to promote products and/or services (whether automatically or otherwise), unless prohibited by FAP´s T&Cs or Special Terms, You may describe Yourself as having received approval to act as a non-exclusive affiliate marketing participant with Fanatec.
C. What You Can And Can’t Do. As an approved FAP Affiliate, You may post Referral Links on Your web site or through other acceptable means in compliance with all laws, rules and regulations applicable to You and Your business. If Fanatec has made any additional marketing materials (e.g., banner ads, logos or other artwork or branding) (“Marketing Support Materials”) available via FAP, You may use these Marketing Support Materials in Your promotional activities. However, Fanatec may, through Special Terms, limit how You may use, distribute or display any Referral Link or Marketing Support Materials.
Without limiting the foregoing, You also agree that:
1. You shall not place Referral Links or Marketing Support Materials in newsgroups, message boards, unsolicited email and other types of spam, banner networks, counters, chatrooms, guestbooks, Internet relay chat channels or through similar Internet resources.
2. You shall not place Referral Links in any manner which may (intentionally or unintentionally) mislead any Customer.
3. You shall not cause any use of a Referral Link, or any subsequent Referral Sales, to be made in bad faith or through fraudulent means, including, but not limited to, using any device, program, robot, inline frames, hidden frames, or redirects.
4. You may be restricted (via Special Terms) from receiving Payouts for Referral Sales made directly by You or on Your behalf by Fanatec.
5. You shall only be entitled to Payouts that are a direct result of a Customer completing a Referral Sale directly through the use of Your Referral Link.
6. Fanatec may impose time limits in which a Referral Sale must be completed after the Customer has used Your Referral Link.
D. Tracking and Reporting. Fanatec shall provide You with access to tracking and reporting tools regarding Your participation in FAP, to the extent those tools are then-currently described and are generally available to Affiliates via the Affiliate Panel.
E. Provision of Service. You and Fanatec each agree to use commercially reasonable efforts to keep its web site operational at all times. However, both parties acknowledge that downtime due to force majeure events (i.e., events outside of a party’s control) and scheduled maintenance will occur from time to time. Neither party will be liable to the other for any interruption to its service for any reason.
F. Support. On-line support is available through the Contact Us section of FAP Affiliate Panel. Email support is available Monday through Friday, (through the Affiliate Manager’s email or such other email address as may be specified through the Affiliate Panel) during normal local business hours excluding holidays, bank holidays, or on such other schedule as Fanatec may determine from time to time.
G. Confidential Information. Either Fanatec or You may provide the other with information that is confidential and/or proprietary to the discloser or its partners ("Confidential Information"). Each party agrees to maintain the confidentiality of such information using the same degree of care as it does with your own information of similar importance (but in no case less than reasonable care). Confidential Information shall not include information to the extent such information (a) is or becomes part of the public domain through no act or omission of the recipient, or (b) is lawfully received by the recipient from a third party without restriction on use or disclosure and without breach of this Agreement or any other confidentiality or legal obligation, or (c) was in its possession of the recipient on a non-confidential basis prior to the date of this Agreement (except to the extent unlawfully misappropriated).
You expressly agree that notwithstanding the foregoing Fanatec may provide Your email address(es) and basic Affiliate account detail (including but not limited to Your address, phone, web site name (if applicable), date You first entered into operation or under this Agreement, and visitor demographics to Your web sites) to a third party.
In the event a third party seeks to compel disclosure of a disclosing party’s Confidential Information from a recipient by judicial, governmental or administrative process, requirement or order, the recipient shall promptly notify the discloser of such occurrence and furnish to the discloser a copy of the demand, summons, subpoena or other process served upon the recipient to compel such disclosure, and will permit the discloser to assume, at its expense, but with the recipient’s cooperation, defense of such disclosure demand. In the event that the discloser fails or refuses to contest such a third-party disclosure demand, or a final judicial order is issued compelling disclosure of Confidential Information by the recipient, the recipient shall be entitled to disclose such Confidential Information as is (in the opinion of the recipient’s legal counsel) legally required to be disclosed in compliance with the terms of such process, requirement or order, provided that such Confidential Information so disclosed shall otherwise remain subject to the terms of this Agreement.
H. ID and Password. You will have a password and User ID to access certain parts of the FAP Affiliate Panel, including the tracking tools. You shall be responsible for all usage and activity on Your User ID account and for loss, theft or unauthorized disclosure of Your password. You shall immediately notify Fanatec in writing of any known or suspected unauthorized use of Your User ID account.
III. WHAT RIGHTS ARE GRANTED TO YOU AND TO FANATEC?
A. Grant of Rights by Fanatec. Once You have been accepted, Fanatec grants to You a revocable, non-transferable, non-assignable, non-sub-licensable, royalty free, worldwide, limited right to display Referral Links as well as any applicable Marketing Support Materials provided by Fanatec, in all cases for the limited purposes of promoting FAP, and in any event subject to the terms and conditions of this Agreement and FAP´s T&C´s. This grant of rights is conditioned upon You: (a) not otherwise copying nor modifying, in any way, any Marketing Support Materials or other materials made available to You through FAP; and (b) not removing or altering any copyright, trademark, or other notices or legends in any such materials.
B. Grant of Rights by You. You grant to Fanatec a revocable, royalty free, international license to display and distribute Your name, branding and/or logos for the limited purposes of promoting You to Fanatec and advertising that You are a participant and member in FAP.
C. Ownership of Rights. The Referral Links and Marketing Support Materials are owned or licensed solely and exclusively by Fanatec, as appropriate, and You agree not to challenge any of their respective proprietary rights. Your use of these shall inure to the benefit of Fanatec, as appropriate. You agree, upon Fanatec’s demand, to promptly stop or alter any of Your uses of these which Fanatec deems to be improper or which may have the potential to put the business of Fanatec at risk, and/or to increase the risk of liability to Fanatec.
D. Restrictions of Use of IP. You may not use Fanatec’s names, trademarks, service marks or domain names in any manner would reasonably lead a person to believe that You are Fanatec or that You are acting in any manner other than as an non-exclusive approved Affiliate. Unless expressly allowed in the Special Terms, You may not describe Yourself as an ‘authorized dealer,’ ‘agent,’ ‘sales representative,’ or otherwise through the use of any other term or in any other manner which implies you are anything other than an Affiliate as described in this Agreement. You may not claim that You or Your business has been ‘approved’ or ‘endorsed’ by Fanatec.
IV. HOW DO WE MAKE PAYOUTS?
A. How Calculated. Fanatec shall determine (where possible) actual Payouts that should be paid to You by Fanatec under and pursuant to the terms of FAP for which You are an approved Affiliate. On a monthly basis, Fanatec will deliver the Payouts that Fanatec has calculated that You are owed by Fanatec, provided in each case that Fanatec has an outstanding balance of funds held by Fanatec which may be used for Payouts (the “Funds”). If Funds are insufficient to allow Fanatec to make Payouts to You, your Payouts will accrue without interest until Fanatec has sufficient Funds to allow Fanatec to make such Payouts to You. Your first affiliate payment shall be made in the payment cycle following the sixty (60) day anniversary of Your first non-refunded sale, unless otherwise agreed to by Fanatec in writing. The delivery of Payouts will be made via PayPal payment and will be no more often than monthly, on a schedule to be determined by Fanatec unless otherwise specified. If You qualify and meet certain minimum thresholds set by Fanatec, Fanatec may (at its sole discretion), provide weekly payments via PayPal only.
B. Fanatec Acting as Payment Agent Only. You agree that any Payout payments delivered to You by Fanatec are, in fact, payments to You from Fanatec in satisfaction of Fanatec’s Payout obligations to You. You agree that Fanatec’s delivery of Payouts shall in no way create any obligation on Fanatec’s part to further satisfy these obligations, and that Fanatec disclaims any and all liability for these payments.
C. Payout Threshold. If the total balance of Payouts owed to You in any particular month is less than €250 EUR, Fanatec shall withhold the payments for that month and until the month in which the total payments meet or exceed the minimum payment threshold specified above. The balance of Payouts owed to You (even if less than €250 EUR) will be paid to You upon Your request to [email protected] upon the end of your participation in FAP.
D. Chargebacks. You acknowledge and agree that your Payouts are subject to Chargebacks that accrue after the month You have received a Payout, that Fanatec will calculate these Chargebacks as charges against any other Payout amounts owed to You in subsequent months, and that You will remain responsible to Fanatec in any event for outstanding negative balances which arise out of Chargebacks related to Your Referral Sales. Fanatec is not obligated to pay You any amounts in Your account connected with activities deemed to be fraudulent or criminal by Fanatec in its sole and reasonable discretion or for suppressed orders. The existence or possibility of fraud or criminal activity will be determined by Fanatec in its reasonable discretion, and Fanatec may make any inquiries and investigations Fanatec deems appropriate.
E. Payout Currency. Payouts shall be calculated in EUR. If Fanatec agrees (in its sole discretion) to make payment to You in another currency, the conversion rate shall be determined in accordance with Fanatec's operating standards using the rates prevailing upon the date that payment is made to You, or upon the basis of historical conversion rates if rates are unavailable at that time (Fanatec may charge You for reimbursement of any service fees or other fees that Fanatec may owe to financial institutions or money transmitters as a result of conversion).
F. Holdback. In certain circumstances, Fanatec may hold back some or all of any Payouts that may be owed to You as a reserve to cover potential future Refunds or Chargebacks that may be charged against Your prior Referral Sales, or other liabilities You may owe to Fanatec (any such amounts, the “Reserves”). Any Reserves will be liquidated within one (1) year of the time they are initially held back. Fanatec may, in its sole discretion, impose higher than normal Reserves, or extend the holding periods for any Reserves, either temporarily or permanently, in order to reduce Fanatec’s risk of loss or damage to business under varying circumstances. Fanatec is in no way responsible for any losses You sustain, including claims for lost income, profits or interest, on account of the imposition of Reserves for any reason. Regardless of any Reserve Fanatec may choose to keep, You agree to pay Fanatec, upon demand, for any shortfall owed to Fanatec including shortfalls due to Refunds or Chargebacks.
V. WHAT DO YOU PROMISE TO US?
A. Representations. You make the following representations, warranties and covenants to Fanatec:
1. You have and shall have at all times all rights necessary to enter into this Agreement, to grant the licenses You grant hereunder, and to perform your obligations hereunder, and that You are of legal age and otherwise competent to be contractually bound to this Agreement. If You are a corporation or other form of business entity, the person who has entered into this Agreement on Your behalf is authorized to bind You to this Agreement, and the board of directors or others who control the corporation or other business entity have authorized the entity to enter into the Agreement.
2. You are solely responsible for compliance with, and will comply at all times with, all civil and criminal laws, rules and regulations applicable to You and Your business (including without limitation the CAN-SPAM Act of 2003 for US.The CAN-SPAM Act of 2003 establishes standards for the sending of commercial e-mail and requires the Federal Trade Commission (FTC) to enforce its provisions. For the UK, The British government implemented the relevant EU directive in December 2003 with the Privacy and Electronic Communications Regulations. Tougher legislation can be expected in the future. Mainstream advertisers also need to comply with industry self-regulation in the form of various codes of practice. For Australia, Australia's anti-spam law is the Spam Act 2003. A 2006 review confirmed the usefulness of the legislation such that significant changes are not expected. There are also two important codes of practice relevant to email marketers. For Canada, Canada's Personal Information Protection and Electronic Documents Act (PIPEDA) covers online privacy in detail and contains many provisions relevant to email marketing. In addition, a government-initiated task force recommended specific anti-spam legislation in a 2005 report and in May 2008 an anti-spam law began progressing through the Canadian parliament. In New Zealand, Legislation regulating commercial email finally passed through the New Zealand Parliament at the end of February 2007 in the form of the Unsolicited Electronic Messages Act. It was referred to the Commerce Select Committee who reported back at the end of August 2006 with suggested amendments and enhancements).
3. Any of Your Content which You in any way associate with Fanatec and/or the FAP does not infringe the intellectual property rights of Fanatec.
4. All of the information You provide to Fanatec is correct as of the time You entered it, and You will promptly update any of that information when it has changed.
B. Non-Solicitation. During the term of this Agreement, You may not enter into any agreement with Fanatec which concerns the referral of potential customers of Fanatec’s products and services or would in any manner compete against FAP. You acknowledge that Your breach of this paragraph will result in irreparable injury to Fanatec for which monetary damages alone would not be an adequate remedy. Therefore, You agree that in the event of a breach or threatened breach of this paragraph, Fanatec shall be entitled to injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages. In addition, Fanatec shall be entitled to collect its reasonable attorneys’ fees and expenses from You in obtaining such injunctive and/or other relief.
VI. WHAT RIGHTS DO WE HAVE AND KEEP?
A. Use of Data. Fanatec reserves the right to be able to utilize any data it derives from use of the Referral Links or Referral Sales, which may include information about Your performance statistics, to analyze FAP trends, monitor FAP efficiencies, maintain the integrity of the Referral Link code system, and promote FAP capabilities and efficiencies. Further, where a particular Customer has authorized release of information to You (for example, as part of a rewards program You operate), Fanatec may also disclose data regarding the Customer’s Referral Sales transaction to You if You referred the Customer to the Web Shop.
B. Nature of Relationship with Fanatec. Your relationship with Fanatec is non-exclusive, and Fanatec may enter into similar relationships with others without regard to competition with You or any of Your other interests. Fanatec neither approves nor endorses, nor are you permitted to state that Fanatec approves or endorses, Your businesses or other efforts other than approving Your rights to act as an Affiliate in FAP as described in this Agreement, and You shall not in any way imply any other approval or endorsement by Fanatec.
C. Other Restrictions. Fanatec reserves the right to impose limits on sales of products through the Web Shop in Fanatec’s sole discretion and to refuse to process transactions to specific Customers for any reason. Specifically, Fanatec may limit or restrict sales to a minimum or maximum retail price, impose limits on the amount or number of purchases which may be charged to an individual payment account during any time period, or refuse to accept orders from Customers with a prior history of questionable charges.
VII. WHAT WARRANTIES DO WE DISCLAIM?
Fanatec makes no promises or warranties to You that Customers will purchase products from the Web Shop, that Referral Links will be functional at all times, or that Fanatecs’ Web Shop will operate at all times or without error. FANATEC PROVIDES ITS SERVICES TO YOU UNDER THIS AGREEMENT “AS-IS, WITH ALL FAULTS.” TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, FANATEC DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WHICH MAY ARISE UNDER LAW OR EQUITY OUT OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ACCURACY OF INFORMATION. Except for any obligations Fanatec has to pay You the Payouts, You agree that Your sole and exclusive remedy for any breach of this Agreement by Fanatec is for You to terminate this Agreement.
VIII. HOW IS OUR LIABILITY LIMITED?
Fanatec’s total liability to You arising out of or under this Agreement shall be limited to One Hundred Euros (€100 EUR).
FANATEC SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY CLAIMING THROUGH YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF ANY DESCRIPTION (INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOSS OR INTERRUPTION OF BUSINESS), WHETHER BASED ON CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY, REGARDLESS OF WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND IRRESPECTIVE OF THE NUMBER OR NATURE OF CLAIMS. THE LIMITATIONS UPON DAMAGES AND CLAIMS SET FORTH IN THIS AGREEMENT IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE BEEN HELD TO BE INVALID OR INEFFECTIVE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
THE TERMS OF THIS AGREEMENT REFLECT AN AGREED UPON ALLOCATION OF RISK BETWEEN THE PARTIES SUPPORTED BY (AMONG OTHER THINGS) THE PRICING AGREED TO BETWEEN THE PARTIES, AND THIS ALLOCATION IS A FUNDAMENTAL PART OF THE BASIS OF THE BARGAIN BETWEEN THEM.
IX. YOU INDEMNIFY US FOR CERTAIN LOSSES
You and Your successors and assigns shall indemnify, defend, and hold harmless Fanatec, its corporate affiliates and subsidiaries and each of their respective directors, officers, employees, agents and subcontractors, and their respective successors and assigns from and against and in respect of any and all third party claims, demands, losses, costs, expenses (including, but not limited to, the cost of obtaining an opinion of counsel in response to a notice of potential infringement of the intellectual property rights of any other person or organization), obligations, liabilities, damages, recoveries and deficiencies, including interest, civil or criminal penalties or fines, reasonable attorneys’ fees and costs, that an indemnified party may incur or suffer, which arise, result from, or relate to (a) Your failure to perform, violation or breach of any of Your representations, warranties, covenants and/or obligations under this Agreement; or (b) an actual or alleged breach of any applicable civil or criminal laws by Fanatec caused directly or indirectly by Your actions or inactions (other than breaches of law due to Fanatec’s own knowing and intentional violation); or (c) Your participation in FAP, including without limitation any taxes, liens, duties or other civil obligations which may be imposed on Fanatec directly as a result of Your participation (other than taxes directly imposed on Fanatec based on Fanatec’s own income); or (d) claims arising out of any other activities You perform, services You provide, or products You sell which are associated publicly in any manner with FAP; or (e) the assertion of any infringement or other claims alleging that Your Content violates the intellectual property rights of any other person or organization (including those rights held by Fanatec); or (f) claims relating to the violation of any privacy policies You are required to comply with under this Agreement; or (g) the negligence or willful acts or omissions of You or Your employees or agents.
Fanatec will promptly provide You with written notice of any claim for which Fanatec seeks indemnification and will tender the defense of that claim to You. You will respond in writing to the tender of defense within twenty (20) business days of Your receipt of this notice, notifying Fanatec of any claim, demand, suit or proceeding for which You have agreed to indemnify and hold Fanatec harmless, and You will, upon Fanatec’s written request, will promptly defend and continue the defense of that claim, demand, suit or proceeding at Your expense. A failure by You to respond in writing to the tender of defense within the time specified in this paragraph will be deemed a waiver of any objection to its obligation to defend Fanatec, but a reservation of Your rights to object to any subsequent obligation to indemnify or to hold harmless Fanatec. In the event You accept the tender of defense with a reservation of rights, reject the tender of defense or fail to respond to a tender of defense, Fanatec shall thereafter have the right to control of the defense of that claim, including the right to select which firm defends the claim. In the event You reject the tender of defense, You will be liable for any legal fees and expenses incurred by Fanatec to compel You to honor Your indemnification obligations. You will obtain Fanatec’s express prior written approval to settle any claim if the settlement (i) arises from or is part of any criminal action, suit or proceeding, or (ii) contains a stipulation to or admission or acknowledgment of any liability or wrongdoing on the part of Fanatec, or (iii) requires any specific performance or non pecuniary remedy by Fanatec. If You fail to undertake and continue the defense or fail (in Fanatec’s sole and reasonable opinion) to adequately pursue or conduct the defense, Fanatec will have the right (but not the obligation) to make and continue the defense as it considers appropriate, and the expenses and costs thereof (including without limitation the amounts of any judgment rendered against Fanatec) will be paid by You. You further agree that You shall indemnify Fanatec for any reasonable attorneys' fees or other costs incurred by Fanatec in investigating or enforcing its rights under this Agreement.
X. HOW LONG DOES THIS AGREEMENT LAST?
A. Term. This Agreement starts on the date You acknowledge Your agreement with its terms to Fanatec, and will last until the day either of us should provide notice to the other terminate this Agreement by email (if to You, to the email address you have provided to Fanatec, and if to Fanatec, to [email protected]). Neither You nor Fanatec are obligated to continue under this Agreement for any period of time, and You should not rely upon whether or not Your participation in FAP will continue for any period of time.
B. Termination of Program Participation. Fanatec may terminate Your agreement to participate in FAP, or this Agreement in its entirety, at any time with or without cause upon notice to You.
C. Breach. If You are in breach of any provision of this Agreement, Fanatec may provide You with notice of Your breach, and Fanatec may (at its sole option) either provide You with an opportunity to cure, suspend Your use of Fanatec’s services, or terminate this Agreement with or without notice to You.
If Fanatec believes You have engaged or are engaging in fraudulent activities or are otherwise in breach of any of the terms of this Agreement, Fanatec may (without notice to you) suspend any of your pending Payout payments, and suspend the tracking of any new Referral Sales (without discontinuing tracking of Chargebacks) in which event Fanatec shall not be obligated to pay you for Referral Sales made during such suspension of tracking. Such temporary conditions may continue for so long as reasonably required by Fanatec to investigate the circumstances, until You cure Your breach to Fanatec’s reasonable satisfaction, or until this Agreement has been otherwise terminated. If Fanatec believes that You are engaging any suspected fraudulent, abusive or otherwise illegal activity, Fanatec may also refer this knowledge to the appropriate law enforcement agencies (as Fanatec deems appropriate).
D. Events Upon Termination. With respect to Fanatec once this Agreement has been terminated, or in the event your participation in FAP (but not the Agreement) is terminated, Fanatec and You agree to the following:
1. You will no longer be credited for Referral Sales arising out of any transactions on Fanatecs’ Web Shop that occur on or after the termination date.
2. Your obligation to pay Fanatec for any shortfall in Your account (e.g., any obligations You may have arising out of Chargebacks) survives the termination of the Agreement. Without limiting the foregoing, You will satisfy any obligations You may have regarding Chargebacks to Fanatec upon Fanatec’s demand, or within 30 days of the effective date of termination, whichever comes sooner.
3. Fanatec will continue to make Payout payments to You as per this Agreement.
4. All grants of rights to You under by Fanatec or otherwise under this Agreement will terminate, and You will immediately remove references to Fanatec’s name, and any Referral Links and Marketing Support Materials, from Your web site, as well as from any other marketing materials which You distribute, publish or broadcast after the date of the termination.
5. You will continue to be responsible for any liability that might arise out of Your participation in FAP (including without limitation fraudulent transactions, any infringement of intellectual property rights, and any other violation of law that may have occurred as a result of that participation). The provisions of this Agreement which contemplate their survival past the term of this Agreement shall survive the termination of this Agreement, including but not limited to Fanatec’s reserve rights and all of Your indemnity obligations.
6. Fanatec’s exercise of any of its rights under this Agreement shall be non-exclusive, and Fanatec may also exercise its rights to obtain any other remedies available to it at law or in equity.
XI. ANYTHING ELSE WE AGREE UPON?
A. Entire Agreement. This Agreement is a valid and enforceable agreement between Fanatec and You that sets forth the entire understanding between the parties with respect to the subject matter hereof, there being no terms, conditions, warranties, or representations other than those contained in this Agreement.
B. Amendments. Fanatec may amend this Agreement at any time by publishing a new version on the Fanatec web site. You will be required to agree to the modified version upon your next log-in to the Affiliate Panel. However, regardless of when you may log into the Affiliate interface, Your continued participation in the FAP following the effective date of a new version (including without limitation any use, display or distribution by You of any Referral Link) will constitute Your acceptance if the new version, and all amendments to the prior forms of this Agreement, as of the effective date of their publication by Fanatec. If any amendment made by Fanatec in this manner is unacceptable to you, your only recourse is to terminate this Agreement. No other amendments to this Agreement shall be valid unless made in writing and signed by both You and Fanatec.
C. Assignment. You may not assign this Agreement, or any of Your rights under this Agreement, without the prior express written permission of Fanatec, and any attempt to assign in violation of the preceding shall, at Fanatec’s option, render this Agreement null and void. However, the provisions of this Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns. Fanatec may assign this Agreement or delegate its duties under this Agreement without Your permission. Fanatec may engage the services of subcontractors to assist Fanatec in the performance of its obligations pursuant to the provisions of this Agreement.
D. Force Majeure. Fanatec is relieved of any obligation to perform under this Agreement if it is unable to perform as a result of natural disaster, war, emergency conditions, labor strike, acts of terrorism, the substantial inoperability of the Internet, the inability to obtain supplies, or other reasons or conditions beyond Fanatec’s reasonable control.
E. Jurisdiction and Venue. This Agreement shall be governed by and interpreted under the laws of Landshut, Bavaria, Germany. The parties specifically disclaim application of the United Nations Convention on the International Sale of Goods. Any disputes or conflicts related to or arising out of this Agreement will take place exclusively in the state or federal courts located in Landshut, Germany and You expressly agree that any of these courts has personal jurisdiction over You. You waive all defenses of lack of personal jurisdiction and forum non-convenience. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys fees and costs.
F. Rules and Regulations. Fanatec may from time to time establish and revise rules and regulations regarding Your use of FAP by posting them on the Fanatec web site. Any of these rules or regulations (or revisions of the same) shall be deemed incorporated within and made a part of this Agreement as of the time they are posted.
G. Notices. If You are obligated under this Agreement to tell Fanatec something or You wish to give Fanatec legal notice of any kind, You must do so in writing and deliver it by certified mail, postage pre-paid and return receipt requested, OR by nationally recognized overnight courier which provides a written proof of delivery (e.g., FedEx, UPS, DHL, etc.). If Fanatec is obligated under this Agreement to tell You something or Fanatec wishes to give You legal notice of any kind, Fanatec may choose to do so either (a) by use of any of the addresses You gave to Fanatec during Your registration as an Affiliate, including postal mail or e-mail, or (b) by posting such notice on the Fanatec web site. If any notice fails to reach You because You gave Fanatec inaccurate address information, Fanatec’s notice shall nonetheless be deemed to have been delivered to You.
H. Other Terms. No waiver or breach of any provision of this Agreement (a) will be effective unless made in writing, or (b) will operate as or be construed to be a continuing waiver of such provision or breach. In the event any portion of this Agreement is held to be invalid, the same will not affect in any respect whatsoever the remainder of the Agreement. The provisions of this Agreement will not in any respect whatsoever be deemed to create a partnership, joint venture, or other business combination between Fanatec and the Affiliate. Notwithstanding any applicable statute of limitations, the Parties agree that any claims for breach of this Agreement will be brought by a Party within two (2) years of the date that Party first has notice of the existence of such breach. No provisions in either Party’s purchase orders or other business forms will modify, supersede or otherwise alter the terms of this Agreement. This Agreement has been negotiated by the Parties and their respective counsel, and will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either Party based on draftsmanship of the Agreement or otherwise. Headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. Any reference to a section will refer to all subsections of that section. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which will be one and the same document. A copy (including PDF) or facsimile of a signature will be binding upon the signatory as if it were an original signature. This Agreement will not become binding on either Party until each Party has received a counterpart executed by the other Party.
I. Electronic Signatures. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE FANATEC AFFILIATE PROGRAM PROVIDED BY FANATEC. Further, You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
Fanatec Affiliate Program (“FAP”) Membership Agreement Version1, dated: March 11, 2013