The full terms and conditions for marketplace membership are listed below. Please read in full prior to joining the marketplace.
AF Member Subscription Agreement
WHEREAS, AF offers an annual membership subscription to approved vendors under a program entitled “AF Marketplace” under the terms and conditions set forth herein (the “Marketplace Program” or “Program”);
WHEREAS, Subscriber is the owner of the following Brands:__________________; and _______________ (the “Brand(s)”) and desires to apply to AF to become a Member of the AF Marketplace Program for each of the Brands, and to thereby participate in AF’s on-line store as provided in and under the terms and conditions of this Agreement;
NOW THEREFORE, for and in consideration of the mutual promises, covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the Parties do hereby agree to the following;
1. Membership Application. Subscriber agrees to fully fill out the Application For Membership form attached hereto and made a part hereof as Exhibit A to this Agreement (the “Application”) for an annual membership in the Marketplace Program (the “Membership”). Within sixty (60) days after AF’s receipt of a fully completed Application from Subscriber, AF will, in its sole and unfettered discretion, either accept or deny Subscriber’s Application and payment. In the event that AF notifies Subscriber that Subscriber’s Application has been accepted by AF, then Subscriber will pay to AF in good funds either the Annual Fee or the first Monthly Fee (each as defined below) prior to the Subscriber’s Membership becoming effective and to Subscriber becoming a member of the Marketplace Program (a “Member”).
2. Subscriber’s Obligations Upon Becoming a Member. Upon becoming a Member, Subscriber shall have and agrees to perform the following obligations during the Term of this Agreement:
A. Subscriber shall provide AF with all of the content required by AF to build a profile webpage for Subscriber on the AF Marketplace website (the “Website, including without limitation professional product and lifestyle imagery, survey answers, and a mobile phone video of the founder or CEO of Subscriber, in accordance with AF’s then current content guidelines. In the event that AF requests that Subscriber update or supplement Subscriber’s content, Subscriber will, within sixty (60) days after its receipt of such request, provide AF with the requested updated and/or supplemental content and information.
B. Subscriber may elect to pay its annual Membership fees as follows, subject to the restrictions below.
(1) The first year’s annual Membership fee shall be $499.00 if paid in full up front or $600 if paid pursuant on a monthly installment basis as provided herein. If Subscriber elects to pay its annual Membership Fee up front, it shall do so within ten (10) days after Subscriber is notified that its Application has been accepted by AF. AF shall have the right to increase the annual fee for subsequent years by giving Subscriber at least forty five (45) days prior written notice of any such increase, and in such event Subscriber shall have thirty (30) days from the date of such notice within which to notify AF that it is not renewing its annual Membership in the Program at the end of the then current Term.
(2) If Subscriber elects to pay AF the annual fee on a monthly installment basis, Subscriber will pay to AF (i) a monthly fee (the “Monthly Fee”) in the amount of $50 per month for the Initial Term of the Subscriber’s Membership in the Program, and for each subsequent Term thereafter unless increased by AF as provided herein. The Monthly Fee shall be paid to AF on or before the first day of each calendar month (the first and last month’s fee shall be prorated, as applicable). AF shall have the right to increase the amount of the monthly fee at least forty five (45) days before the end of the then current Term, and in such event Subscriber shall have thirty (30) days from the date of such notice within which to notify AF that it is not renewing its annual Membership in the Program at the end of the then current Term.
C. Subscriber shall ensure that the tracking pixel is active on the required pages (homepage, newsletter signup completion page, add to cart page, checkout completion page) of Subscriber’s website so that traffic driven by AF and sales of Subscriber’s products can be tracked by AF.
D. Subscriber hereby grants and conveys to AF a non-exclusive, world-wide, royalty free license and right to use and display on AF’s Website and in or on any of the materials and medium referenced in Section 3.B. and C. below, all of Subscriber’s logos. Brand names, imagery copy, and other tradenames and trademarks associated therewith. This license and right shall be extended for a period of thirty (30) days beyond the expiration or termination of this Agreement to enable AF time to delete and remove Subscriber’s content from the Website, and shall also survive the expiration or termination of this Agreement with respect to any printed and/or digital marketing efforts and/or any articles in publications that were already submitted or published prior to such expiration or termination.
3. AF Marketplace Services. During the Term, AF will provide to Subscriber as a Member the following Services subject to the terms of this Agreement:
A. AF will maintain and operate the Website for the AF Marketplace (the “Website”), subject to reasonable downtime for maintenance and repair of the Website. On the Website, AF will provide Subscriber with a page that features and presents Subscriber’s Brands, tells Subscriber’s story, is searchable on-line and features a selection of Subscriber’s products that will link directly to Subscriber’s website for consumer purchasing. Upon its receipt of the Subscriber’s content as provided in Section 2.A. above, AF will build out the page or pages for Subscriber’s content on the Website. AF will allow Subscriber to feature up to twelve (12) products at any given time, and Subscriber may, upon thirty (30) days prior notice to AF and the payment of a $150 fee for each change, change out the featured products on the Website up to four times per year. Subscriber’s notice of any such product feature change must be accompanied with a high-resolution images and data on the respective products set out on white backgrounds in accordance with AF’s then current content guidelines. In addition, AF shall have the right at its sole discretion to request that Subscriber provide AF with updated content, and Subscriber will within sixty (60) days from its receipt thereof generate and provide AF with such content in accordance with AF’s then current content guidelines.
B. AF may in its sole discretion elect to feature Subscriber on AF’s homepage and/or journal, and in emails and/or social content. In addition, AF may provide Subscriber with the right to purchase a featured post, email or homepage feature at a fee to be determined at the time by AF.
C. AF may, in its sole discretion, elect to feature Subscriber in paid printed and/or digital marketing efforts and/or in proposed feature articles for publications, and AF shall have the right to use Subscriber’s brand name, imagery, copy and logo’s therein.
D. As a Member, Subscriber will have priority over non-Members to book booth spaces at AF sponsored events, and shall receive a five (5%) percent discount on all regular booth fees (but excluding any discounts on any add-on fees such as power and on any premium placement fees) at such events.
4. Payment of AF Fees and Compensation. Subscriber will pay to AF fees in the amount of twenty (20%) percent of the revenues generated during the Term from the sales of Subscriber’s products: (i) to persons or entities that have accessed the Website and Subscriber’s page or pages on the Website; and, (ii) that are generated through the marketing efforts of AF. All fees are due and owing to AF within ten days after the end of each calendar month, and may be paid as follows: direct ACH withdrawal from Subscribers bank account or automatic credit card payment (subject to 3% fee).
In the event that Subscriber’s pixel is not active at any time during the Term (the “Inactive Period”), then for any sales of Subscriber’s products during the Inactive Period, Subscriber will pay to AF fees in the amount of the greater of (a) 20% of the average daily sales during the same period of time as the Inactive Period during the immediately preceding year, or (b) $30 per day during the Inactive Period.
5. The Term and Termination. The initial term of this Agreement shall be for a period of one year from the date on which AF first approves Subscriber’s Application unless terminated prior thereto pursuant to the terms of this Agreement (the “Initial Term”), and shall automatically renew on an annual basis thereafter unless and until terminated or not renewed as provided herein (the “Term”).
Subscriber shall have the right not to renew this Agreement beyond the then current Term by providing AF with written notice of its intention not to renew its Membership at the end of the then current Term at least sixty (60) days prior to the end of such Term. AF shall have the right to terminate this Agreement at time and for any reason and without prior notice to Subscriber. If AF terminates this Agreement without cause during the Term, AF will refund to Subscriber the prorated portion of Subscriber’s paid annual Membership fee less any monies owed by Subscriber to AF under or pursuant to this Agreement.
Each Party shall have the right to terminate this Agreement for cause in the event that the other Party is in material breach of this Agreement and fails to cure any such monetary breach within ten days of receipt of notice thereof or within twenty days (20) from its receipt of notice thereof in the event of a non-monetary breach (a termination “For Cause”). In the event that AF terminates this Agreement For Cause, AF shall be entitled to retain the entire annual Membership fee as well as to exercise any and all other rights and remedies that it might otherwise be entitled to as a result thereof.
6. Indemnification. Subscriber will indemnify, defend and hold harmless AF and each of AF’s Managers, Members, officers, employees and representatives from and against any and all claims, actions, causes of action, losses, damages , costs and expenses, including without limitation all legal fees and costs of litigation that arise out of or from (i) any claims that any of Subscriber’s trademarks, tradenames, logos, images, imagery, copy or products violate or infringe upon the rights, including without limitation any patent, copyright, tradename, trademark or other moral or intellectual property
rights of any other person or entity, or (ii) any claims that any content on the Website provided by Subscriber to AF, or developed by AF in conformance with Subscriber’s instructions, drafts or information is libelous or sets forth representations or warranties, whether express or implied, that are false, inaccurate or misleading.
7. Miscellaneous Terms.
A. A. Assignment. Neither this Agreement nor any duties or obligations under this Agreement may be assigned by either Party without the prior written consent of the other Party. There are no intended third-party beneficiaries with standing to enforce this Agreement.
B. Entire Agreement; Modification. This Agreement supersedes any and all agreements, either oral or written, between the Parties hereto with respect to the subject matter hereof. No other inducements, promises, or agreements, orally or otherwise, have been made by any Party, or anyone acting on behalf of any Party, regarding the subject matter hereof, which are not embodied herein, and no other agreement, statement, or promise not contained in this Agreement, regarding the subject matter hereof, shall be valid or binding. Any modification of this Agreement will be effective only if it is in writing signed by the Party to be charged; provided, the Parties may rely upon email and other electronic communications coming from an officer of the other Party as written consent and for other purposes hereunder.
C. Applicable Laws; Exclusive Venue and Jurisdiction; and Enforcement. This Agreement has been made in Georgia and Georgia law applies to it, and parole evidence shall not be admissible to modify, alter or vary the terms of this Agreement. The Parties expressly acknowledge and agree that through this Agreement, they do not waive any right to bring legal action to enforce this Agreement. Any action brought to enforce this Agreement or to seek a remedy for breach of this Agreement shall be brought exclusively in the Superior Court of Fulton County or the United States District Court for the Northern District of Georgia, Atlanta Division in the State of Georgia. All Parties expressly consent to exclusive personal jurisdiction and venue in the State of Georgia.
D. Counterparts. This Agreement may be executed in one or more duplicate originals which shall, either singly or together, serve to represent one agreement between the Parties.
E. Interpretation. Within this Agreement, the singular shall include the plural and the plural shall include the singular, and any gender shall include the other gender, all as the meaning in the context of this Agreement shall require. Should any provision of this Agreement require judicial interpretation, it is agreed that the court interpreting or construing the same shall not imply a presumption that the terms hereof shall be more strictly construed against one Party by reason of the rule of construction that a document is to be construed more strictly against the Party who itself or through its agent prepared this Agreement, it being agreed that all Parties have had the opportunity to review and understand this Agreement. It is the intent and understanding of the Parties that this Agreement and all Exhibits hereto shall be construed and applied in a consistent and complementary manner; however, in the event of any inconsistency or ambiguity between the terms of this Agreement and all Exhibits, the terms and provisions of said Exhibits shall control.
Notices. Any notices to be given or sent under this Agreement shall be given by registered or certified mail with adequate postage then and addressed to the other Party as provided below or by overnight delivery by a nationally recognized courier (e.g. Federal express) to such address.