AFFILIATE AGREEMENT
INTRODUCTION
By submitting your application for the Wonderman Nation Affiliate program you agree to be bound by this AFFILIATE AGREEMENT (this “Agreement”) between Alt Shift Development Limited., a BVI company (“Company”) and you (“Affiliate”). Company and Affiliate may be collectively referred to as the “Parties,” and individually as a “Party.”
RECITALS
WHEREAS, Company, through its affiliates, operates a game platform and service (the “Wonderman Nation”), whereby customers may play the collection of games, participate in skill based gameplay to receive rewards in prized leaderboards, participate in developer and community judged competitions for community created content, compete in player vs player battles, and trade in-game items, pursuant to the Terms of Use, as in effect from time to time and set forth on Company’s website; and
WHEREAS, the Parties desire to enter into a relationship whereby Affiliate will have the opportunity to refer potential customers to Wonderman Nation, as specified herein, in exchange for a percentage of the fees charged by Company and its affiliates to such customers.
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NOW, THEREFORE, in consideration of the covenants contained herein, the Parties agree to the following:​​​​​​​​​​
1. DESIGNATED SERVICE
This Agreement relates to the service(s), which may be updated from time to time in Company’s sole discretion, identified and selectable on Affiliate’s dashboard as made available on www.account.wondermannation.com (the “Dashboard”). Each selected service is referred to herein as a “Designated Service.”
2. REGISTRATION PROCESS
Referrer will provide the following information though the Dashboard: the name, e-mail, and phone number of the individual from Affiliate who will be designated contacts in connection with this Agreement.
3. REFERRAL PROCESS
3.1. Links. Company will provide Affiliate website addresses that potential customers may use to enter the websites for the Designated Service(s) (the “Link(s)”). Referrer will provide the Links to potential customers using the methods and/or media as set forth in the Designated Service.
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3.2. Linked Referrals. The Links will direct potential customers to the websites for the Designated Service(s) (the “Company Websites”), where they will have the opportunity to become customers of the same.
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3.3. Customer Referrals. Each potential customer that becomes a customer of a Designated Service after arriving at the Company Website of the Designated Service via the applicable Link is referred to herein as a “Customer Referral.”
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A Customer Referral with respect to each Designated Service excludes any customer that is an Existing Customer of such Designated Service at the time of such referral. An “Existing Customer” means any customer that is: (i) already a customer of the Designated Service, (ii) a beneficial owner of a customer of the Designated Service, or (iii) an entity that controls, is controlled by, or is under common control with, the customer of the Designated Service, in each case, whether or not such customer is active, or any entity with whom the Company or one of its affiliates is then negotiating to provide such Designated Service.
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3.4. Existing Customers. For the avoidance of doubt, a potential customer of one Designated Service can become a Customer Referral of such Designated Service, notwithstanding that such person is an Existing Customer of the other Designated Service (if applicable).
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3.3. No Obligation. The Company will have the sole discretion whether to accept a referral as a customer.
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3.5. Sub-Publishing. Affiliate may solicit third parties that are not parties to this Agreement (“Sub-Affiliate") to perform the Designated Service, provided that each Sub-Affiliate agrees in writing to be bound by and subject to the restrictions and conditions substantially similar to those set forth in this Agreement. Each Sub-Affiliate will, for purposes of this Agreement, be deemed to be an agent of Affiliate, and Affiliate will be responsible in all respects for all acts and omissions of its Sub-Affiliate. Any breach by Sub-Affiliate of the restrictions and conditions set forth in this Agreement will be deemed a breach by Affiliate. Notwithstanding the foregoing, (a) Company is not and will not be party to any agreement between Affiliate and any
Sub-Affiliate; (b) Affiliate will not and is not authorized to make any commitments on behalf of Company to any Sub-Affiliate, including but not limited to any payment or other commitment by Company; (c) no license other than the licenses set forth in section 6 of this Agreement may be extended by Affiliate to any Sub-Affiliate; and (d) nothing herein will be construed as extending to any Sub-Affiliate the status of third-party beneficiary of any agreement between Company and Affiliate, including without limitation this Agreement.
4. AFFILIATE REPRESENTATIONS AND WARRANTIES
4.1. Affiliate will not make any representations or warranties, including but not limited to false or misleading representations with respect to the specifications, features, or functionality of the Designated Service(s).
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4.2. Affiliate agrees that it will not impose or collect any fee of any kind, including but not limited to an application fee or referral fee, from any potential customer for any product or service offered by Company or its affiliates, including the Designated Service(s).
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4.3. If Affiliate displays either Link on a website, Affiliate represents and warrants that such website does not contain or link to any content, web page or site that contains any:
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a. pornography or other sexual or adult material;
b. hate propaganda or material that encourages or promotes illegal activity or violence;
c. content that violates or infringes in any way upon the statutory, common law, or proprietary rights of others, including but not limited to copyrights, trademark rights, patents, or any other third-party intellectual property, contract, privacy or publicity rights;
d. material that violates any local, state or national law, rule or regulations; e.viruses, Trojan horses, worms, time bombs, cancel bots or other similar harmful or deleterious programming routines; or
e. material that is threatening, abusive, harassing, defamatory, obscene, profane or indecent.
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4.4. Affiliate represents and warrants that it will not undertake any deceptive or fraudulent methods to increase Customer Referrals. If Affiliate is found in violation of this section, this Agreement will be immediately terminated and void, and all Monthly Fees will be cancelled and forfeited.
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4.5. Affiliate will comply with all local, state and federal laws and regulations governing its actions under this Agreement. Without limiting the foregoing obligation, Referrer will comply with all applicable laws that govern financial promotions, and marketing emails, including, but not limited to UK FCA rules and guidelines, the CAN SPAM Act of 2003 and other anti-spam laws.
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4.6. Affiliate represents and warrants that it will not “frame” any Company content on any website.
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4.7. Affiliate represents and warrants that it has full power and authority to enter into this Agreement and to perform its obligations hereunder.
5. PRICING AND PAYMENT
5.1. Payment of Fees. Company will pay to Referrer an amount calculated in accordance with this Section (the “Monthly Fee”) for each month. The Monthly Fee will be payable as set forth in the Designated Service.
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5.2. Calculation of Fees. Affiliate may access the fee schedule, as may be updated from time to time in Company’s sole discretion. through the Dashboard.
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a. With respect to a revenue share Designated Service, the Monthly Fee equals the Designated Service Percentage multiplied by the Monthly Customer Revenue for that Designated Service. “Designated Service Percentage” means the percentage set forth in the Designated Service for a Designated Service. “Monthly Customer Revenue” means the revenue earned by the Company and its affiliates attributed to Customer Referrals for the applicable Designated Service for any calendar month. For the avoidance of doubt, the calculation of Monthly Customer Revenue for a Designated Service will not include revenue attributed to Customer Referrals for the
other Designated Service.
b. With respect to a cost per action Designated Service, the fee is set forth in the Designated Service.
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5.3. Report. Company will provide Affiliate a monthly report setting forth the Monthly Customer Revenue and the Monthly Fee for each Designated Service (the “Report”). The Report will be provided to Affiliate through the Dashboard within thirty (30) days of the end of the calendar month to which it relates. The Report will not include any customer identifying information. Monthly Customer Revenue data will be provided on an aggregated basis.
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5.4. Discounts and Refunds. The Company and its affiliates may, in their sole discretion, provide discounts and refunds to their customers. The Monthly Fee will be calculated on the basis of revenue earned by Company and its affiliates, taking into account any discounts or refunds. If a refund is issued after the Monthly Fee relating to that refunded transaction has been remitted to Affiliate, the next payment of the Monthly Fee to Referrer will be reduced accordingly.
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5.5. Taxes. Affiliate will pay all sales, use, withholding and other taxes, duties or fees imposed by any applicable laws and regulations as a result of the payments it receives under this Agreement.
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5.6. Audit Rights.
a. For a period of two (2) years after each Monthly Fee is made to Affiliate under this Agreement, Company agrees to maintain such books, records, and accounts as are reasonably necessary to verify such payment.
b. No more than once each year during the Term (as defined in Section 8.1 below) or within one year thereafter, upon at least ninety (90) days prior written notice to Company, Affiliate will have the right, at its own cost and expense, to review the Company’s books, records and accounts for the sole purpose of verifying the Monthly Fees; provided that Company may redact customer identifying information from such books, records and accounts. If the review reveals an understatement of the Monthly Fees, Company will pay the full amount of such underpayment to Affiliate.
6. LICENSE AND OWNERSHIP
Company grants Affiliate the non-exclusive right to use the “Wonderman Nation” trademarks (the “Marks”) for the purpose of establishing the Links to a Designated Service and for no other purpose. Affiliate acknowledges that the Company retains all ownership, right, title, and interest in and to its trademarks (including the Marks), trade names, service marks, inventions, copyrights, trade secrets, patents, technology, software, and know-how related to the design, function, or operation of the Company Websites and services provided thereunder. Affiliate will not, at any time, do or cause to be done any act or thing contesting or in any way impairing or tending to impair any part of Company’s right, title, and interest in the Marks. Affiliate’s rights are strictly limited to the rights expressly granted in this Agreement.
7. CONFIDENTIALITY
7.1. Definition. For purposes of this Agreement, “Confidential Information” means any technical or business information that might reasonably be presumed to be proprietary or confidential in nature. It shall also include all personally identifiable information of any customer. Without limitation, the terms of this Agreement will be deemed Confidential Information.
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7.2. Exceptions. Confidential Information will not include information that the receiving Party can demonstrate: (i) is now or thereafter becomes generally known or available to the public, through no act or omission on the part of the receiving Party; (ii) was known by the receiving Party prior to receiving such information from the disclosing Party and without restriction as to use or disclosure; (iii) is rightfully acquired by the receiving Party from a third Party who has the right to disclose it under the circumstances and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving Party without access to any Confidential Information of the disclosing Party.
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7.3. Obligations/Restrictions. Each Party agrees: (i) to take all reasonable action necessary to protect the confidentiality of the other Party’s Confidential Information; and (ii) not to use any such Confidential Information for any purpose except in accordance with the terms of this Agreement. Each Party may disclose the Confidential Information of the other Party to its employees and consultants who have a bona fide need to know such Confidential Information, but solely to the extent necessary for each Party to fulfill its obligations under this Agreement; provided that each such employee or consultant first executes a written agreement (or is otherwise already bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of the other Party’s Confidential Information as those set forth in this Agreement. In the event a Party is required to disclose the other Party’s Confidential Information pursuant to a valid order by a court or other governmental body or, in the reasonable opinion of such Party’s counsel, as otherwise required by law or regulation, prior to any such required disclosure, such Party will, to the extent permissible by law, promptly notify the other Party so that such other Party may obtain a protective order narrowing the scope of such disclosure. If such prot ction against disclosure is not obtained, a Party will be entitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such required disclosure.
8. TERM AND TERMINATION
8.1. This Agreement begins on the Effective Date, and unless terminated earlier in accordance with this Section, will be automatically renewed for one (1) year periods thereafter (the “Term”).
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8.2. Each Party may terminate this Agreement (i) immediately on notice to the other Party if the other Party breaches any provision of this Agreement, or (ii) for convenience, upon providing the other Party thirty (30) days’ prior written notice.
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8.3. As of the effective date of termination, no Monthly Fees shall be generated or accrued, and Affiliate will no longer be eligible for any form of compensation from Company. For avoidance of doubt, termination will not affect the Affiliates’ right to Monthly Fees generated and accrued prior to the effective date of the termination.
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8.4. Company may at its sole discretion update, and/or terminate a Designated Service at any time.
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8.5. Promptly upon expiration or termination of this Agreement, Affiliate will cease distributing, posting, or otherwise publishing the Links. The rights and obligations contained in the following provisions of this Agreement will survive the expiration or termination of this Agreement: Sections 5, 7, 9, 10 and 11.
9. DISCLAIMER OF WARRANTY
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR AS OTHERWISE REQUIRED BY LAW, EACH PARTY EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHERMORE, COMPANY EXPRESSLY DISCLAIMS ANY WARRANTY THAT ANY GRAPHICS, TEXT, LINKS OR OTHER MATERIALS OR ASSETS PROVIDED BY COMPANY, OR FEEDBACK PROVIDED ON GRAPHICS, TEXT, LINKS OR OTHER MATERIALS OR ASSETS INTENDED TO BE USED BY AFFILIATE ARE IN COMPLIANCE WITH ANY LAWS, REGULATIONS AND REGULATORY GUIDELINES APPLICABLE TO THE AFFILIATE AND THE AFFILIATES ACTIVITIES.
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FOR AVOIDANCE OF DOUBT AFFILIATE BEARS THE FULL AND SOLE RESPONSIBILITY TO ENSURE THE ACTIVITIES THEY UNDERTAKE TO PROMOTE COMPANY ARE IN COMPLIANCE WITH ANY APPLICABLE LAWS, REGULATIONS AND REGULATORY GUIDELINES.
10. LIMITATION OF LIABILITY
EXCEPT AS OTHERWISE REQUIRED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, WHETHER IN AN ACTION IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT; PROVIDED THAT THIS LIMITATION OF LIABILITY SHALL NOT APPLY IN THE EVENT OF A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD. TO THE MAXIMUM EVENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY, ARISING OUT OF THIS AGREEMENT, EXCEED THE FEES PAID UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF ANY CLAIM GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO BREACHES OF SECTION 7 HEREUNDER.
11. GENERAL PROVISIONS
11.1. Governing Law/Arbitration. This Agreement will be governed by and interpreted in accordance with the laws of the State of Delaware, without giving effect to any principles of conflict of laws. Any dispute, claim or controversy arising out of or relating to this Agreement will be determined by arbitration in the British Virgin Islands. The arbitration will be administered by the Commercial Court in the judiciary of the British Virgin Islands.
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11.2. Modification. Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by each Party.
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11.3. Entire Agreement. This Agreement, the complete and exclusive understanding and agreement between the Parties regarding its subject matter and supersedes all other prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter.
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11.4. Notice. Company will provide all notices and other communications to Affiliate via the Dashboard and/or via the e-mail addresses specified by Affiliate on the Dashboard. Notice to Company by Affiliate will be sent to affiliate@ altshiftpublishing.com with a mandatory copy addressed to the Chief Legal Officer sent to legal@altshiftpublishing.com. The foregoing are the only effective channels for providing notice and all other forms of notice will be ineffective for purposes of this Agreement. Notices will be effective when sent.
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11.5. Severability. In case any provision of this Agreement may be invalid, illegal, or unenforceable, that portion of such provision that is not invalid, illegal or unenforceable will remain in effect, and the validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired thereby. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the Parties will negotiate in good faith to modify this Agreement so as to affect the original intent of the Parties as closely as possible.
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11.6. Successors and Assigns. This Agreement will be binding upon and will insure to the benefit of each Party’s permitted successors and assigns. The Agreement is not assignable or transferable by Affiliate without the prior written consent of the Company, which may not be unreasonably withheld. Any attempt to assign or transfer this Agreement in violation of this provision will be void.
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11.7. Waiver. The failure by any Party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
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11.8. Third-Party Rights. Other than the Parties, no person or entity will have or acquire any right by virtue of this Agreement.
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11.9. Independent Contractors. Affiliate is an independent contractor, and this Agreement does not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Affiliate will not have the power to bind the Company or incur obligations on the Company’s behalf without the Company’s prior written consent.