Last updated 12/05/2019
Affiliate Agreement and Affiliate Terms and Conditions
Please read this Agreement carefully. It is a legal document that explains your rights and obligations related to your use of the Elegant Software Solutions Affiliate Portal (“Affiliate Portal”) and related content. The terms and definitions set forth in the Affiliate Agreement shall constitute the entire agreement (the “Agreement”) between Elegant Software Solutions, Inc. (“Elegant Software Solutions” or “Company”) and the individual or entity accepting this Agreement (“Affiliate”) in connection with your use of the Affiliate Portal, and no other terms or conditions shall apply unless expressly agreed to by Elegant Software Solutions in writing.
IF AFFILIATE IS AN INDIVIDUAL, BUT NOT A MINOR (AS DEFINED BELOW): BY CLICKING ON THE “ACCEPT” BUTTON, YOU ARE ACKNOWLEDGING THAT YOU HAVE READ THIS ENTIRE AGREEMENT INCLUDING ALL OF ITS TERMS AND CONDITIONS AND THAT YOU ARE 18 YEARS OF AGE OR OLDER, AND ARE CONSENTING TO BECOME A PARTY TO THIS AGREEMENT AND ARE BOUND BY THIS AGREEMENT AND ALL OF ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THIS AGREEMENT AND ALL OF ITS TERMS AND CONDITIONS, PLEASE LEAVE THE AFFILIATE PORTAL.
IF AFFILIATE IS AN INDIVIDUAL AND A MINOR: BY CLICKING ON THE “ACCEPT” BUTTON, YOU ARE ACKNOWLEDGING THAT YOU ARE THE PARENT OR LEGAL GUARDIAN OF MINOR, AND THAT YOU HAVE READ THIS ENTIRE AGREEMENT INCLUDING ALL OF ITS TERMS AND CONDITIONS, AND ARE CONSENTING, ON MINOR’S BEHALF, TO BECOME A PARTY TO THIS AGREEMENT AND ARE BOUND BY THIS AGREEMENT AND ALL OF ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THIS AGREEMENT AND ALL OF ITS TERMS AND CONDITIONS, PLEASE LEAVE THE AFFILIATE PORTAL.
By clicking “ACCEPT” you (or in case of a parent or legal guardian, you on behalf of the Minor you represent) are further (a) agreeing to be bound by the terms of this Agreement as a party to it; (b) acknowledging that you have read this Agreement in its entirety and that you fully understand its terms and conditions; and (c) agreeing to all such terms and conditions. If you are entering into this Agreement on behalf of an entity, you represent and warrant that you have all necessary right, authority, and consent to bind such entity to this Agreement. If you do not or cannot agree to the terms of this Agreement, please do not click “ACCEPT” and leave the Affiliate Portal.
Employees, officers, directors, agents, and representatives of Company (including the legal, promotion, and advertising agencies of Company) and their immediate family members (defined as spouse, mother, father, sisters, brothers, sons, daughters, uncles, aunts, nephews, nieces, and in-laws, regardless of where they live) and those living in their household (whether or not related), and each parent company, subsidiary, agent and representative of Company are not eligible to agree to the terms of this Agreement.
If you are an individual between the ages of 14 and 17 (a “Minor”), the use of “you,” “your,” and “Affiliate” in this Agreement refers to you as the Affiliate and the parent or legal guardian providing permission, as applicable.
The term of this Agreement will commence on the date that Affiliate accepts this Agreement by clicking “SUBMIT” (the “Effective Date”) and will continue unless and until terminated by Company or Affiliate in accordance with the Termination Section. (the “Term”).
Affiliate shall create content in order to promote Street Cred through an attributable link or an affiliate tag that Affiliate will receive through the Affiliate Portal or email (collectively, the “Affiliate Content”). As used herein, the term “Street Cred” means, collectively, the website software known as Street Cred (https://streetcred.gg) and any other Company or third-party software that Company may enable for promotion through the Affiliate Portal in connection with this Agreement.
Affiliate must (a) have a validated email address, (b) register using Affiliate’s real name, and (c) provide a list of affiliated social media channels. Affiliate must agree to the Affiliate Portal Code of Conduct (“Code of Conduct). Affiliate must be approved by Elegant Software Solutions and, if so approved, will receive an email notifying Affiliate of Elegant Software Solutions' approval. If Affiliate is found in violation of this Agreement or the Code of Conduct (in each case as determined by Elegant Software Solutions), Affiliate will be banned from further use of the Affiliate Portal and Affiliate acknowledges that he/she/it shall have no right to any current earned funds or any future funds generated by Affiliate’s tags in the event of any such ban.
A review becomes an “Attributed Review” when the user enters an affiliate tag when writing a review for a player/character on Street Cred. Affiliate will receive compensation in the form of a commission for Attributed Reviews if attributed to Affiliate.
Affiliate’s compensation under this Agreement will consist of compensation for commissions on attributed reviews that total, in the aggregate, more than $50 (the “Compensation Threshold”) during any calendar month (each such period, a “Compensation Period”). Compensation for attributions that meet the Compensation Threshold occur at least 45 days from the end of the applicable Compensation Period, and, in the case of Affiliate’s first compensation, his/her/its compensation will occur at least 45 days after the end of the first calendar month as an Affiliate. An Affiliate’s commission rate for attributed reviews will be reflected in the Affiliate Portal or communicated to Affiliate via email. Company will use commercially reasonable efforts to provide advance notice of any rate changes. Any changes will only affect Affiliate links and tags created after the applicable rate change.
Affialite Terms and Conditions
Affiliate shall use all reasonable efforts and exercise good faith in fulfilling his/her/its obligations under this Agreement. Affiliate shall use official terminology in connection with Company’s products or services, in each case as provided by Company. Affiliate shall promptly remove/delete any Affiliate Content upon Company’s request. In connection with this Agreement, Affiliate shall comply with all applicable laws and guidance, including, without limitation, the Federal Trade Commission Guides Concerning the Use of Endorsements and Testimonial in Advertising (as they may be updated) (the “FTC Endorsement Guides”).
Affiliate shall ensure that the Affiliate Content will comply with any Company instructions, and also shall ensure that no Affiliate Content will (a) include inappropriate or offensive content (as solely determined by Company in its reasonable discretion); (b) misrepresent the source of anything in the Affiliate Content, including impersonation of another individual or entity; (c) include links to external sites that violate these provisions; or (d) include content that is protected by intellectual property laws, rights of privacy or publicity, or any other applicable law unless Affiliate owns or controls the rights thereto or has received all necessary consents such that the use thereof in accordance with this Agreement by Company, and its licensees, successors, assigns and agents (collectively, the “Permitted Parties”) shall not violate the rights of any third party.
Grant of Rights/Usage
Company shall retain ownership of materials created by Company or provided by Company (including, without limitation, any Company trademarks, logos, or other intellectual property) for incorporation into the Affiliate Content (“Company Materials”). Ownership of the Affiliate Content, excluding Company Materials that may be incorporated therein, shall vest in Affiliate, provided that Affiliate may not use the Affiliate Content except as provided herein or as approved by Company. If, and only to the extent that, Affiliate is not a Minor, Affiliate grants the Permitted Parties the royalty-free, worldwide, fully paid-up right and license to use, reproduce, distribute, modify, publicly perform, translate, create derivative works from, publicly display and otherwise exploit the Affiliate Content solely for the purpose of advertising and promoting Street Cred in accordance with the terms of this Agreement during the Term. In addition, without limiting the foregoing, Company shall have the right to use, copy, modify, adapt, distribute, and otherwise commercially exploit the Affiliate Content in connection with the development and exploitation of new features or elements for Street Cred, as applicable, or for archival purposes, as applicable. In all cases, Affiliate shall have no claim to compensation (other than as specified herein) and no claim (including, without limitation, claims based upon invasion of privacy or right of publicity) arising out of any use or blurring of the Affiliate Content. The parties acknowledge that the Affiliate Content and other materials distributed or made available during the Term may be retained by third parties and may be available and accessible, including, without limitation, online through third party websites, platforms, and/or services, whether during or after the Term, and that (i) Company cannot control all of such availability or accessibility, (ii) such availability or accessibility shall not be deemed a breach of this Agreement, (iii) Company will not have any obligation related thereto, and (iv) Company will not be responsible or liable for such availability or accessibility or for the acts or omissions of third parties with respect to such materials. The foregoing limit on Company’s liability with respect to third party use of the Affiliate Content shall survive the expiration or termination of this Agreement. It is further understood and agreed that Company is not obligated to use in any manner any Affiliate Content or any other materials or services provided under this Agreement. Except for with respect to any content, Affiliate can withdraw the aforementioned license at any time during the Term and thereafter; provided, however, that this shall not affect the lawfulness of the use Elegant Software Solutions has made of such license before its withdrawal. Compensation. In full consideration to Affiliate for entering into this Agreement and for all of Affiliate’s services hereunder and all rights granted by Affiliate herein, and provided that Affiliate fully and completely performs all of Affiliate’s services as contemplated herein, Company agrees to pay Affiliate (and Affiliate agrees to accept) the compensation as set forth in the Compensation Section. Company shall not be liable for any broker’s and/or agent’s fees or commissions, taxes, production company fees, or other payments to third parties payable by Affiliate in connection with this Agreement or Affiliate’s services hereunder.
Affiliate represents and warrants that (i) if Affiliate is an individual, Affiliate is (A) 18 years of age or older or (B) a Minor and has a parent or legal guardian that has accepted this Agreement on Affiliate’s behalf; (ii) Affiliate has the right to enter into this Agreement and has no conflicting commitments or obligations that would interfere with Affiliate’s ability to perform the services required of Affiliate and the rights herein granted; (iii) Affiliate has not acquired the number of social media followers Affiliate has as of the Effective Date, nor shall Affiliate acquire any social media followers during the Term, by means of any automated program or similar technique/method, or fraudulent behavior of any kind, and any representation Affiliate has made to Company with respect to the number of social media followers Affiliate has acquired is truthful and accurate, to the best of Affiliate’s knowledge; (iv) in the event Affiliate makes any public statements in connection with this Agreement, Affiliate shall clearly and conspicuously disclose Affiliate’s affiliation with Company in accordance with the FTC Endorsement Guides, in a form and with a placement to be approved by Company; (v) any claims Affiliate makes about Company or Company’s products or services shall reflect Affiliate’s honest and truthful opinions; (vi) if Affiliate’s positive opinion(s) about Company or Company’s products or services should change during the Term so that Affiliate no longer can truthfully endorse Company, Affiliate shall immediately advise Company and Company shall have the right to terminate the Agreement; and (vii) Affiliate and the Affiliate Content shall comply with all applicable laws and the highest industry standards. In addition, Affiliate represents and warrants that any Affiliate Content or other materials published by Affiliate hereunder represents fair, accurate, and truthful depictions of what is represented, and specifically: (x) all products depicted are the actual products, without any enhancement, alteration, or additional ingredients, (y) any products depicted were used in conformity with relevant instructions, and (z) any demonstrations are depicted without any special effects or any other method which would enhance or alter the performance or appearance depicted, including without limitation filters or Photoshop. The parent or legal guardian referenced in above (if any) represents and warrants that she or he has the right to enter into, and has a legal right to accept, this Agreement on Affiliate’s behalf as her or his parent or legal guardian.
Company may terminate this Agreement upon written notice for any reason or no reason at all. Either party may terminate this Agreement in the event of a material breach by the other party. If an Event of Force Majeure (as defined below) occurs, in addition to any other rights and remedies that Company may have hereunder or at law or in equity, Company shall have the right to immediately terminate this Agreement. “Event of Force Majeure” is defined as a natural catastrophe, labor dispute or strike, act of God or public enemy, war, municipal ordinance, state or federal law, governmental order or regulation, or any other similar cause beyond Affiliate’s control that adversely affects Affiliate’s services or the Permitted Parties’ rights to use/create the Affiliate Content. In the event of termination of this Agreement, Affiliate shall only be entitled to payments accrued as of the date of such termination (i.e., the pro rata portion of any compensation paid or payable to Affiliate up to and including the date of such termination).
Affiliate will not disclose (including, without limitation, via social media, etc.) any trade secrets or confidential information of Company to any third parties, including, without limitation, any content of any advertising that Company has not yet released to the general public, Affiliate’s relationship with Company (unless and until publicly disclosed by Company), and any of the terms of this Agreement (including, without limitation, the amount of compensation paid hereunder).
Each party agrees to indemnify, defend and hold the other, and each of their parent, subsidiary, and affiliated corporations and their respective directors, officers, employees, agents, successors and assigns, from and against any and all third party claims, loss, liability, injury, property damage, costs or damages arising from actual or threatened claims or causes of action for (a) their alleged or actual breach of this Agreement or (b) their gross negligence or willful misconduct. In addition, Company agrees to defend, indemnify and hold Affiliate harmless from and against any and all third party claims, damages, liabilities, costs and expenses (including, without limitation, reasonable outside attorneys’ fees) arising out of any Company products or services, except as caused by Affiliate’s negligence or misconduct. This provision shall survive the expiration or termination of this Agreement. NOTWITHSTANDING ANY OTHER PROVISION HEREOF, IN NO EVENT SHALL COMPANY OR ITS DIRECT OR INDIRECT SUBSIDIARIES, CONTROLLED AFFILIATES, AGENTS, EMPLOYEES, OR REPRESENTATIVES BE LIABLE TO AFFILIATE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOST PROFITS, BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITY.
Affiliate acknowledges that Company does not provide for nor carry any insurance of any kind for Affiliate’s benefit or that of Affiliate’s heirs, executors and administrators relative to Affiliate’s obligations under this Agreement. Affiliate is solely responsible for obtaining and paying for any life, accident, automobile, property or other insurance relative to Affiliate’s services under this Agreement.
Any payments made hereunder shall be subject to any deductions required by law. The parties are solely independent contractors, and Affiliate shall not be considered an agent or employee of Company. If an agent acts on Affiliate’s behalf and affirmatively accepts this Agreement, such agent represents and warrants that it has the right and authority to act on Affiliate’s behalf and bind Affiliate to the terms hereof. This Agreement contains the entire understanding between Company and Affiliate with respect to the subject matter hereof, may not be altered or waived except by a writing signed by both parties, and shall be governed by the laws of Delaware. Any action to enforce this Agreement shall be brought exclusively in the state or federal courts located or having jurisdiction in Delaware, and Affiliate irrevocably submits to the jurisdiction of such courts and agree to waive any objection that such courts are an inconvenient forum for the resolution of such action.
Should any portion of this Agreement be rendered void or unenforceable by any court of competent jurisdiction, the remaining provisions shall nevertheless be binding upon the parties.