The Woodwind & Brasswind Golden Note Affiliate Program Agreement

This Agreement contains the complete terms and conditions that apply to your participation in The Woodwind & Brasswind Affiliate Program and the establishment of links from your Web site to our Web site "The Woodwind & Brasswind". As used in this Agreement, "we" or "us" means The Woodwind & Brasswind, "you" or "your" or "our" means the applicant, and "Products" means any item offered for sale by us on The Woodwind & Brasswind web site. THIS IS A BINDING LEGAL AGREEMENT BETWEEN YOU AND THE WOODWIND & BRASSWIND, INC., A DIVISION OF MUSICIAN’S FRIEND, ("THE WOODWIND & BRASSWIND"). BY APPLYING TO OUR PROGRAM, YOU (IF YOU ARE ACTING ON BEHALF OF YOURSELF AS AN INDIVIDUAL) OR YOUR COMPANY (IF YOU ARE ACTING ON BEHALF OF YOUR COMPANY) (THE "PARTICIPANT") AGREE(S) TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY BEFORE ACCEPTING ITS TERMS.

1. Enrollment in the Program.

To begin the enrollment process, submit a completed Affiliate Program Application via our web site. 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 (in our sole discretion) that your site is unsuitable for the Affiliate Program for any reason, including, but not limited to, if your site incorporates images or content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethically or otherwise objectionable, such as sites that facilitate illegal activity, depict sexually explicit images; promote violence; promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; promote illegal activities or incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights (collectively "Content Restrictions").

2A. Utilizing Our Links on Your Site.

As a The Woodwind & Brasswind affiliated site, we will make available to you banner advertisements, button links to our site and/or a text links to our site, containing The Woodwind & Brasswind logos and words identifying The Woodwind & Brasswind (each of these links sometimes being referred to herein as "Links," or individually as a "Link"), which subject to the terms and conditions hereof, you may display on your site. In utilizing the Links, you agree that you will cooperate fully with us in order to establish and maintain such Links or Links. All Affiliate Sites shall display such graphic images prominently throughout your site as you see fit and with our consent. A Link may only be modified and/or expanded with our consent. Each Link connecting users of your site to our site will in no way alter the look, feel or functionality of our site. We have the right in our sole discretion to monitor your site at any time and from time to time to determine if you are in compliance with the terms of this Agreement.

2B. Utilizing Our Trade Names in Your Search Advertising and Contextual Advertising.

As a The Woodwind & Brasswind affiliated site, we do not permit you to bid on or conduct targeted online marketing efforts on trade names, trademark brands or variations of our trade names / trademark brands in Pay Per Click Search Engine (PPC) or through contextual advertising. We have the right in our sole discretion to monitor your site and the search engines at any time and from time to time to determine if you are in compliance with the terms of this Agreement.

The following rules of engagement are to be followed:

• Negative broad matches must be applied to any PPC activities you are conducting on our behalf on the brand terms, especially using terms ‘woodwind brasswind’.
• No "Exact" or "Broad" match bidding on the brand terms or derivatives of its spelling.
• No "Term Misspelling" bidding on the brand terms or derivatives of its spelling.
• No use of the following display urls or in your copy: www.wwbw.com.
• No "Broad" match bidding on any combinations of the brand terms.
• No "Phrase" match bidding on the brand terms.
• No contextual marketing efforts of any kind may be focused or targeted through a keyword match on the brand terms or derivatives of its spelling.
• No attempts at cyber squatting through the misspelling or use of the brand terms or their derivatives within URL strings and domain names.

3. Order Processing.

The Woodwind & Brasswind will process product orders placed by customers who follow links from Affiliate's Site to The Woodwind & Brasswind’s Site in accordance with applicable legal requirements. The Woodwind & Brasswind reserves the right to accept or reject for any reason any order for products at The Woodwind & Brasswind’ Site. Order processing will include, but not be limited to: preparing orders; processing payments, cancellations, and returns; and handling customer service issues. The Woodwind & Brasswind will track sales made to customers who purchase products using qualifying links that Affiliate will generate using LS' technology, from Affiliate's Site to The Woodwind & Brasswind’ Site and reports summarizing this sales activity will be available to Affiliate through the LS Program. The form, content, and frequency of the reports are limited to those reports and capabilities available through the LS system. The Woodwind & Brasswind is not responsible for any changes that LS may make in their reporting format, timing, or types of reports available to members of LS and The Woodwind & Brasswind’ Affiliate Program. To permit accurate tracking, reporting, and fee accrual, Affiliate must ensure that the qualifying links between The Woodwind & Brasswind and Affiliate Sites are properly formatted. The Woodwind & Brasswind will not be responsible for improperly formatted links regardless of whether the Affiliate has made amendments to the code or not.

4. Commissions.

We will pay you a base commission equal to six (6%) percent, (the "Commission Rate") of the Net Sales to us by users of your site who purchase utilizing the Links between our site and your site, excluding amounts collected that include any fraud, bad debt, sales tax, cancellations, shipping/restocking charges ("Net Sales"). Commissions will only be paid on sales delivered to the customer in acceptable condition. The Commission Rate is subject to change at any time or from time to time, in our sole and absolute discretion. You will be notified of any change in the Commission Rate, pursuant to the provisions of Section 11 of this Affiliate Program Agreement. Net Sales will also be reduced for amounts due to credit card fraud, bad debts and credits for returned goods. No commissions will be paid if the visitor to our site cannot be tracked by our system.

Only products that are sold by us (to users of your site through Links to our site), shipped to a customer and for which we have received full payment will qualify for a commission. For a sale to generate a commission, the customer must follow the Link from your site to our site, purchase the product or products in question online in our shopping cart.

5. Commission Payment.

We will pay you commissions on a monthly basis. Approximately 30 days following the end of each month, we will pay you for the commissions earned on products that we shipped during that month, less any taxes that we are required by law to withhold via the LS system. If products that generated a commission are returned or cancelled by the customer, we will deduct the corresponding commission from your next monthly payment. The Woodwind & Brasswind retains the option of reviewing all commissions prior to disbursing funds to you. This process may require a period of approximately thirty (30) days. The Woodwind & Brasswind also retains the right to review all commissions for possible fraud, including but not limited to the use of software that generates real and fictitious email addresses for newsletter and other subscriptions. Any incidence of fraud constitutes a breach of this Agreement and The Woodwind & Brasswind retains full authority to terminate the contract immediately.

6. Policies and Pricing.

Customers who buy products through the Affiliate Program will be deemed to be customers of The Woodwind & Brasswind. Accordingly, all The Woodwind & Brasswind Ordering Terms and Conditions, rules, policies, and operating procedures concerning customer orders, customer service, and sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for items of products sold under the Affiliate Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular item or product.

7A. Nonexclusive Limited License and Use of The Woodwind & Brasswind Logos and Trademarks.

We grant you a nonexclusive, non-transferable, revocable right to (i) access our site through links solely in accordance with the terms of this Agreement, and (ii) solely in connection with such links, to use our logos, trade names, trademarks and similar identifying material (collectively "Licensed Materials"), solely for the purpose of selling products on your site for The Woodwind & Brasswind. You may not alter, modify or change the Licensed Materials in any way. You are only entitled to use the Licensed Materials to the extent you are a member, in good standing, of the Affiliate Program. You shall not make any specific use of any Licensed Materials for purposes other than selling products for The Woodwind & Brasswind without first submitting a sample of such use to us and obtaining our prior written consent. You agree not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays The Woodwind & Brasswind in a negative light. We reserve all of our rights in the Licensed Materials, and all other intellectual property rights. We may revoke your license at any time by giving you notice in accordance with the provisions of Section 11 of this Affiliate Program Agreement. You shall obtain no rights in and to the Licensed Materials. You shall not create, publish, distribute or permit any written material that makes reference to us, without first submitting such material to us and receiving our written consent. You shall not bid or use our trademark brands or trade names in any search advertising, without receiving our written consent. This license shall terminate upon the effective date of the expiration or termination of this Agreement.

7B. Nonexclusive Limited License and Use of Approved Publishers' Images.

All images, trademarks, service marks, product names, company names or logos appearing on The Woodwind & Brasswind Web site, other than the Licensed Materials owned by The Woodwind & Brasswind, are the property of their respective owners. Any use of such images, trademarks, service marks, product names, company names or logos, including the reproduction, modification, distribution or republication of same, without the prior written permission of the owner of same, is strictly prohibited.

The Woodwind & Brasswind has been granted permission to utilize certain images (the "Approved Publishers' Images") in The Woodwind & Brasswind's merchandising and marketing endeavors. The Approved Publishers' Images are all images on The Woodwind & Brasswind Web site, except for those images set forth on the list of Unapproved Publishers' Images.

We grant you a nonexclusive, non-transferable, revocable right to use the Approved Publishers' Images, solely for the purpose of selling Supplies on your site for The Woodwind & Brasswind, in accordance with our Affiliate Program. Pursuant to this license, you may not alter, modify or change the Approved Publishers' Images in any way. Pursuant to this license, you may not reproduce, modify, distribute or republish any of the Approved Publishers' Images, except as permitted pursuant to this Affiliate Program Agreement. You are only entitled to use the Approved Publishers' Images to the extent you are a member, in good standing, of the Affiliate Program. You may not use any Unapproved Publishers' Image, under any circumstances. If you use any Unapproved Publishers' Image you agree to indemnify and hold us harmless, in accordance with the provisions of Section 17 of this Affiliate Program Agreement, from all claims, damages, and expenses (including, without limitation, attorneys' fees and expert witness fees) in connection with your use of an Unapproved Publishers' Image. We disclaim all liability for such matters. You shall not make any use of the Approved Publishers' Images for purposes other than selling products for The Woodwind & Brasswind. You agree not to use the Approved Publishers' Images in any manner that is disparaging or that otherwise portrays the Publisher or The Woodwind & Brasswind in a negative light. We reserve all of our rights in the Approved Publishers' Images, and all other intellectual property rights. We may revoke your license at any time by giving you notice in accordance with the provisions of Section 11 of this Affiliate Program Agreement. You shall obtain no rights in and to the Approved Publishers' Images.

This license shall terminate upon the effective date of the expiration or termination of this Agreement.

8. Nonexclusive Limited License and Use of Affiliates Logos and Trademarks.

You grant us a nonexclusive license to utilize your names, titles and logos, trademarks (collectively the "Affiliate Trademarks"), to advertise, market, promote and publicize in any manner our rights hereunder. Notwithstanding anything herein to the contrary, we shall not be required to so advertise, market, promote or publicize. You hereby represent and warrant that you are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to us the license to use same in the manner contemplated herein, and such grant does not or will not (i) breach, conflict with or constitute a default under any agreement or other instrument applicable to you or binding upon you, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.

This license shall terminate upon the effective date of the expiration or termination of this Agreement.

9. Responsibility for Your Site.

You will be solely responsible for the development, operation and maintenance of your site and for all materials that appear on your site. We shall have no responsibility for the development, operation and maintenance of your site and for all materials that appear on your site. You shall also be responsible for ensuring that materials posted on your site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights), and ensuring that materials posted on your site are not libelous or otherwise illegal. You must have express permission to use another party's copyrighted or other proprietary material. We will not be responsible if you use another party's copyrighted or other proprietary material in violation of the law. We disclaim all liability for such matters. Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees and expert witness fees) relating to the development, operation, maintenance, and contents of your site.

10. Term of the Agreements.

The term of this Agreement will begin upon our acceptance of your Affiliate 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, by giving the other party notice of termination. Notice by e-mail, to your address on our records, is considered sufficient notice for terminating this Agreement. If this Agreement is terminated because you have violated the terms of this Agreement or if this Agreement is terminated because your site becomes subject to the Content Restrictions set forth in Section 1, you are not eligible to receive any commission payments, even for commissions earned prior to the date of termination. If this Agreement is terminated for any other reason, you are only eligible to earn a commission on sales occurring during the term of the Agreement, and commissions earned through the date of termination will remain payable only if the related orders are not canceled or returned. We reserve the right to withhold your final payment for a reasonable time to ensure that the correct amount is paid.

11. Modification.

We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion. Notice of any change by e-mail, to your address on our records, or the posting on our site of a change notice or a new agreement, is considered sufficient notice for notifying you of a modification to the terms and conditions of this Agreement. Modifications may include, but are not limited to, changes in the scope of available commission fees, commission schedules, payment procedures, and Affiliate Program rules. All such modifications shall take effect 48 hours after we serve notice as provided above, unless we indicate otherwise. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Affiliate 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 The Woodwind & Brasswind 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.

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 Affiliate 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 Affiliate Program will not exceed the total commissions paid or payable to you under this Agreement.

14. Disclaimers.

We make no express or implied warranties or representations with respect to the Affiliate Program or any products or other items sold through the Affiliate 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. Representations and Warranties.

You hereby represent and warrant to us that this Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid and binding obligation, enforceable against you in accordance with its terms; and that the execution, delivery and performance by you of this Agreement are within your legal capacity and power; have been duly authorized by all requisite action on your part; require the approval or consent of no other persons; and neither violate nor constitute a default under the (i) provision of any law, rule, regulation, order, judgment or decree to which you are subject or which is binding upon you, or (ii) the terms of any other agreement, document or instrument applicable to you or binding upon you.

16. Confidentiality.

We may disclose to you certain information as a result of your participation as part of the Affiliate Program, which information we consider to be confidential (herein referred to as "Confidential Information"). For purposes of this Agreement, the term "Confidential Information" shall include, but not be limited to, any modifications to the terms and provisions of this Affiliate Program Agreement made specifically for your site and not generally available to other members of the Affiliate Program, web site, business and financial information relating to The Woodwind & Brasswind customer and vendor lists relating to The Woodwind & Brasswind and pricing and sales information for The Woodwind & Brasswind and any members of the Affiliate Program, other than you. Confidential Information shall also include any information that we designate as confidential during the term of this Agreement. You agree not to disclose any Confidential Information and that such Confidential Information shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for your own business purposes or for any other purpose 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. We make no warranty, expressed or implied, with respect to any information delivered hereunder, including implied warranties of merchantability, fitness for a particular purpose or freedom from patent, trademark or copyright infringements, whether arising by law, custom or conduct, or as to the accuracy or completeness of the information and we shall not have any liability to you or to any other person resulting from your or such third person's use of the information. Except as otherwise provided in this Agreement or with the consent of the other party hereto, each of the parties hereto agrees that all information including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or you, respectively shall remain strictly confidential and secret and shall not be utilized by such party for its own business purposes or for any other purpose except and solely to the extent necessary to exercise rights and perform obligations under this Agreement. The foregoing restrictions will not apply to information to the extent it (i) was known to the receiving party at the time of disclosure; (ii) has become publicly known through no wrongful act of the receiving party; (iii) has been rightfully received from a third party under no obligation to the disclosing party; (iv) has been disclosed by court order or as otherwise required by law if the receiving party has given the disclosing party a reasonable opportunity to contest or limit the scope of such required disclosure or (v) is consumer information collected by The Woodwind & Brasswind on The Woodwind & Brasswind web site and is used for marketing purposes provided that The Woodwind & Brasswind will not sell the information to any third party for their use.

17. Indemnification.

You hereby agree to indemnify, defend and hold harmless The Woodwind & Brasswind its shareholders, officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all claims, losses, liabilities, damages or expenses (including attorneys' fees and costs) of any nature whatsoever incurred or suffered by us (collectively the "Losses"), in so far as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim or threatened claim that our use of the Affiliate Trademarks infringes on the rights of any third party; (ii) the breach of any representation or warranty made by you herein; or (iii) or any claim related to your site.

18. 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 ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETITIVE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.

19. Miscellaneous.

This Agreement will be governed by the laws of the United States and the State of Indiana, 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 South Bend, Indiana, St. Joseph County 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.

THIS IS A LEGAL AGREEMENT BETWEEN YOU AND THE WOODWIND & BRASSWIND. BY APPLYING TO OUR PROGRAM, YOU (IF YOU ARE ACTING ON BEHALF OF YOURSELF AS AN INDIVIDUAL) OR YOUR COMPANY (IF YOU ARE ACTING ON BEHALF OF YOUR COMPANY) (THE "AFFILIATE") AGREE(S) TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY BEFORE ACCEPTING ITS TERMS.