Affiliate Applicant Agreement and Terms of Service
This Affiliate Applicant Agreement and Terms of Service (the “Agreement”) is effective by and between KitBash3D LLC, located at 8605 Santa Monica Blvd PMB 90726, West Hollywood, CA 90069 (the “Company” or “KitBash”) and the “Affiliate Applicant” signaling their assent to the terms and conditions of this Agreement through the Company’s Affiliate Platform, as defined below. The Company and Affiliate Applicant may be referred to herein individually as a ”Party” and collectively as the ”Parties.”
What We Are Agreeing To:
AGREEMENT TERM: This Agreement will commence upon acceptance by the Affiliate Applicant and, unless sooner terminated pursuant to the terms of this Agreement, shall continue in perpetuity (the “Term” of the Agreement).
NO GUARANTEE: KitBash has created an affiliate program in order to incentivize social media personalities and experts in 3D modeling, virtual reality, and related fields to promote and recommend KitBash’s “Cargo” platform through social media and other digital platforms (such as Twitch, Discord, etc.), as well as in any relevant in-person or personal interactions. All applicants to the program will apply through Tolt.io (the “Affiliate Platform”) and KitBash will, in its sole discretion, approve or decline applicants through the Affiliate Platform. There is no guarantee that an applicant will be selected or approved for program participation. In the event that an applicant is approved as an “Affiliate” of KitBash, KitBash may revoke its approval at any time, for any reason, in its sole discretion.
SERVICES: If approved as an Affiliate of KitBash, the Affiliate Applicant hereby agrees to promote and recommend Cargo using a custom referral link provided to the Affiliate Applicant by KitBash. During the Term hereof, an Affiliate will act as an ambassador for Cargo on a non-exclusive basis, provided that Affiliate’s responsibilities to any other individual or entity other than the Company will not materially interfere with the terms and conditions of this Agreement.
COMPENSATION: Upon Affiliate Applicant’s signature of this Agreement, and conditioned upon the Affiliate Applicant’s acceptance by the Company as an Affiliate, the Affiliate Applicant will be paid as follows:
a. The Affiliate will be provided with a custom referral link for promotional purposes. The Affiliate will be paid a commission each time a new customer uses the Affiliate’s custom referral link within thirty (30) days of clicking the custom referral link; if the customer purchases a subscription to Cargo outside of this thirty (30) day window, the sale cannot be attributed to the Affiliate. The commission will be a single, lump sum payment based on a percentage of the new customer’s first Cargo subscription payment; there will be no ongoing commissions for subsequent subscription payments over time. Additionally, there will be no commissions offered for purchases other than a Cargo subscription. The Affiliate Applicant understands that each Affiliate in the affiliate program may receive different commission rates at different times, dependent on different factors, and the Affiliate Applicant understands and agrees that they may access the Affiliate Platform at any time to review their commission rate. By accepting this Agreement and continuing to use their custom referral link, the Affiliate Applicant agrees to the commission rate communicated to them through the Affiliate Platform.
b. Commissions will be paid Net 30 from the date the commission is earned, once at least twenty-five dollars ($25.00) in commissions have been earned (the “Payment Threshold”). Commissions will not be paid until the Payment Threshold has been met, unless this Agreement has been terminated according to its terms and the payment to be processed is the final payment; in such an instance, the final payment made shall be processed even if it is below the Payment Threshold. A commission is considered “earned” on the date that a new customer’s first Cargo subscription payment is received by the Company, provided that the payment is not refunded or dishonored by the Company’s banking institution. In the event of a refund or dishonored payment (such as a chargeback), no commission will be due.
c. An Affiliate will only be paid a commission if their custom referral link is used during the purchase process. If a new customer does not use the custom referral link, the Company will not be required to pay a commission to the Affiliate, as it cannot guarantee the source of the referral.
d. The Affiliate Applicant understands that successful attribution of a sale to an Affiliate is determinant on different factors outside of the control of the Company, including but not limited to any customer’s use or clearing of browser cookies. In the event that the Company is not able to attribute a sale to an Affiliate, for any reason outside of the reasonable control of the Company, the Affiliate understands that they will not be entitled to a commission.
AFFILIATE EXPECTATIONS: The Affiliate Applicant understands and expressly agrees that, if accepted as an Affiliate, compliance with the following expectations shall be considered a material element of this Agreement. In the event an Affiliate violates or fails to satisfy this section of this Agreement, the Company shall have the sole discretion to withhold payment from the Affiliate and/or to terminate this Agreement immediately for cause. In the event of acceptance as an Affiliate, the Affiliate Applicant expressly agrees:
a. To truthfully communicate information about the Company and Cargo based on the information provided by the Company;
b. To recommend Cargo in their social media, online, and personal communities;
c. To share their custom referral link with online and personal communities;
d. To work with the Affiliate manager provided by the Company to ensure success;
e. Not to damage the Company brand image through negative comparisons or public comments;
f. Not to use Company Assets (as defined herein) together with religious, political, sexual, or socially divisive or controversial content;
g. Not to use the Company Affiliate program to promote the use of fake accounts among Affiliate referrals or to engage in any other type of “scam” behavior;
h. Not to create fake accounts for their own use or to otherwise engage in any misleading, deceptive, or fraudulent activity of any kind;
i. Not to place any search engine ads, Facebook ads, or any other paid advertising. All marketing must be organic word of mouth, either in person or through an Affiliate’s digital platform accounts. Affiliates are not allowed to run any search engine ads (especially on branded terms or domain names), Facebook ads, or other ads that would compete with the Company’s advertising and/or potentially cause confusion for customers.
j. Not to act in any way that is, or could be construed as, discriminatory, derogatory, violent, retaliatory, or abusive, or promoting any such or similar types of behaviors by third parties. This includes but is not limited to discriminating in who to provide the custom referral link to, using derogatory terms in promoting Cargo, suggesting violence or retaliation against anyone expressing a difference of opinion, etc.
k. Not to infringe on the intellectual property rights of any third party, such as copyright, trademark, or patent rights, while promoting Cargo or otherwise in connection with the Company.
l. Not to make any negative evaluation of Cargo or the Company that could harm the Company’s brand image.
Additionally, the Affiliate Applicant must agree to the terms of service for the Affiliate Platform, found at https://tolt.io/terms-of-service, in order to be approved as an Affiliate.
INDEPENDENT CONTRACTOR: Affiliate Applicant recognizes that they are engaged as an independent contractor and acknowledges that the Company shall have no responsibility to provide Affiliate Applicant with any benefits normally associated with employee status, including but not limited to, health insurance and worker’s compensation. Affiliate Applicant will neither hold themselves out as nor claim to be an officer, partner, employee, or agent of the Company. The Affiliate Applicant understands and agrees that they have no right or ability to act as a legal agent of the Company, and may not bind or otherwise obligate the Company to take or refrain from any action, without first obtaining the express written consent of the president/CEO or other executive officer of the Company. Additionally, and as such, Affiliate Applicant is responsible for legal, tax, and regulatory compliance required for the compensation received under this Agreement.
EXPENSES AND USE OF OWN EQUIPMENT: Where Affiliate Applicant will be using Affiliate Applicant’s own equipment or tools while engaged hereunder, such as a computer, video or web camera, or other equipment necessary for the effective promotion of Cargo, the Company will not be liable for any damage or loss to such equipment and use of such equipment is included in the Compensation herein. The Affiliate Applicant understands they will pay for supplies and expenses as necessary under this Agreement and Affiliate Applicant will not be eligible for reimbursement unless otherwise agreed upon.
PAYMENT/ NOTICES: All payments shall be made via Paypal and notices to Affiliate Applicant shall be electronically mailed to Affiliate Applicant at the email addresses on file with the Company through the Affiliate Platform. In the event that any of the information provided changes, Affiliate Applicant agrees to notify the Company immediately by updating their information on the Settings page of their Affiliate account through the Affiliate Platform.
LIMITED LICENSE TO COMPANY ASSETS: Subject to the Affiliate Applicant’s acceptance as an Affiliate and the Affiliate Applicant’s strict compliance with the terms and conditions described herein, Company grants to the Affiliate a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download, display, view, search, transmit, or otherwise use the Company’s branding, logo, trademarks, and/or other assets (the “Company Assets”) for their use only in promoting Cargo or otherwise undertaking their obligations or exercising their rights under this Agreement. The foregoing limited license: (i) does not give the Affiliate any ownership of, or any other intellectual property interest in, any Company Assets, and (ii) may be immediately suspended or terminated for any reason, in Company’s sole discretion, and without advance notice or liability.
In some instances, the Company may permit the Affiliate Applicant to have greater access to and use of Company Assets, subject to certain additional written terms and conditions.
OWNERSHIP OF PROMOTIONAL MATERIAL: Affiliate Applicant agrees to assign, transfer and convey to the Company all rights, titles and interests acquired or held in the images, copy, designs, photographs, videos, and/or other promotional materials created as an Affiliate, if approved, and under the terms of this Agreement (“Promotional Material”) and published by the Affiliate, either individually or through cross-promotion/co-branding with the Company. The Company may register the copyright, patent, trademark, and otherwise protect its interest in the rights granted herein in its own name. Affiliate Applicant agrees to reasonably assist the Company, at the Company’s expense, as necessary to perfect the Company’s rights in the ownership as provided herein.
The Company understands and expressly agrees to a non-exclusive, revocable license, permitting an Affiliate to continue to use the Promotional Materials under this Agreement for promotional purposes within Affiliate Applicant’s online and personal communities, professional portfolio and website, and in other media or exhibits for the purpose of professional advancement.
To the fullest extent permitted by applicable law, Affiliate Applicant hereby irrevocably transfers and assigns to the Company, and agrees to irrevocably transfer and assign to the Company, and waives and agrees never to assert, any and all Moral Rights (as defined herein) that Affiliate Applicant may have in or with respect to any Promotional Material, during and after the Term of this Agreement. For the purposes of this Agreement, "Moral Rights" shall be defined as any rights to claim authorship of a work, to object to or prevent the modification or destruction of a work, to withdraw from circulation or control the publication or distribution of a work, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right is called or generally referred to as a "moral right."
PRE-EXISTING MATERIALS: To the extent that any of Affiliate Applicant's pre-existing materials are incorporated in or combined with any delivered Promotional Material or otherwise necessary for the use or exploitation of any Promotional Material, Affiliate Applicant hereby grants or will cause to be granted to the Company a non-exclusive, royalty-free, irrevocable, perpetual, fully paid-up, worldwide license to fully use, publish, reproduce, perform, display, distribute copies of, prepare derivative works based upon, make, have made, sell, offer to sell, import, and otherwise exploit such pre-existing materials and derivative works thereof in connection with the Promotional Material only. The Company may assign, transfer, and sublicense (through multiple tiers) such rights to others without Affiliate Applicant's approval.
NON-SOLICITATION: Affiliate Applicant agrees not to, directly or indirectly, solicit or persuade, or attempt to solicit or persuade, any client or other person that has an actual or potential business relationship with the Company to do any of the following: (1) deter any client or other person from doing business with or to cease doing business with the Company; (2) reduce the amount of business anticipated or historically done with the Company in some manner; (3) or to otherwise alter the actual or potential business relationship with the Company. This provision will remain in effect for a period of one (1) year following termination of this Agreement.
NON-DISCLOSURE: Affiliate Applicant undertakes at all times both during and subsequent to the Term of this Agreement with the Company not to disclose, except solely to the extent that such disclosure is authorized in writing by the Company, and not to use, except for the purposes of the Company, all information which is of a confidential nature and of value to the Company including without limitation the Company’s secret designs, branding processes, business methods and lists, and particulars of clientele or other commercial information whether or not that information is contained in documents marked as confidential. Upon termination of their Term, however occurring, the Affiliate Applicant will return all documents in their possession or control which contain records of such confidential information to the Company. Affiliate Applicant hereby agrees not to disclose to any third Party the terms of this Agreement, including, but not limited to, the financial terms of this Agreement without the consent of the Company, except if required by law.
NOTICE OF IMMUNITY UNDER THE DEFEND TRADE SECRETS ACT OF 2016: The Affiliate Applicant is hereby notified that under the Defend Trade Secrets Act of 2016: (i) no individual shall be held criminally or civilly liable under federal or state trade secret law for disclosure of a trade secret (as defined in the Economic Espionage Act) that is: (A) made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and made solely for the purpose of reporting or investigating a suspected violation of law, or (B) made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal so that it is not made public; and (ii) an individual who pursues a lawsuit for retaliation by a hiring entity for reporting a suspected violation of the law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal, and does not disclose the trade secret, except as permitted by court order.
NON-DISPARAGEMENT: Affiliate Applicant agrees, during the Term of this Agreement and at any time thereafter, not to publish or communicate to any person or entity any Disparaging (as defined herein) remarks, comments, or statements concerning the Company. "Disparaging" shall be defined as remarks, comments, or statements that impugn the character, honesty, integrity, morality, business acumen, or abilities in connection with any aspect of the operation of the business of the individual or entity being disparaged.
INDEMNITY: The Affiliate Applicant/the Affiliate (the “Indemnifying Party”) shall indemnify, defend, and hold harmless the Company and its members, officers, directors, employees, agents, independent contractors, successors, and permitted assigns (collectively, “Indemnified Party”) from and against any and all losses, claims, actions, suits, complaints, damages, liabilities, penalties, interest, judgments, settlements, deficiencies, disbursements, awards, fines, costs, fees, or expenses of whatever kind, including reasonable attorneys’ fees, incurred by an Indemnified Party in a final judgment, relating to any claim of a third party arising out of or relating to the Indemnifying Party’s gross negligence, willful misconduct, or material breach of this Agreement.
WARRANTIES AND REPRESENTATIONS: Affiliate Applicant hereby makes customary representations and warranties as to the originality of their services, that the proceeds of the services violate no rights of any third party, that there will be no liens or encumbrances on the proceeds of the services, and that the Company will be free to use the proceeds of the services provided by Affiliate Applicant.
Affiliate Applicant represents and warrants that Affiliate Applicant is free to enter into this Agreement, that Affiliate Applicant has obtained, or shall obtain prior to the commencement of Affiliate Applicant’s services hereunder, a valid business license and/or labor permit to provide these services if they are required in their location to do so, and that Affiliate Applicant has not made and will not hereafter make any agreement or commitment in conflict with this provision hereof or which could or might interfere with the full and complete use and enjoyment of any of the rights and services herein granted to the Company.
Affiliate Applicant specifically agrees to promptly pay all amounts required to be paid pursuant to any law, tax, statute, ordinance, order, judgment or decree now or hereafter in effect which may be applicable to payments hereunder and indemnifies the Company for all costs relating to Affiliate Applicant’s failure to make such payments.
For the sake of clarity, Affiliate Applicant understands and expressly agrees that certain Federal Trade Commission and/or Federal Communications Commission regulations may be applicable to Affiliate Applicant’s services hereunder and Affiliate Applicant is solely responsible for compliance therewith. Lastly, Affiliate Applicant understands and expressly agrees to indemnify and hold the Company harmless from Affiliate Applicant’s failure to comply with this section or any applicable regulation.
ENTIRE AGREEMENT: This Agreement will constitute the entire agreement of the Parties with respect to the subject matter hereof and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the Parties with respect to the subject matter of this Agreement. The Agreement may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document. This Agreement may be modified at any time by the Company, with no advance notice. No modification of these terms will be binding unless in writing and signed or otherwise approved by the Company, and agreed upon by the Affiliate Applicant. In the event that the Affiliate Applicant does not agree to modified terms, this Agreement will terminate automatically and the Affiliate Applicant will no longer be eligible for participation in the Company’s affiliate program.
SEVERABILITY AND NON-WAIVER: If any provision of this Agreement is held in whole or in part to be unenforceable for any reason, the remainder of that provision and of the entire Agreement will be severable and remain in effect. Any failure by the Company to require Affiliate Applicant’s performance of any provision in this Agreement shall not affect the Company’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
GOVERNING LAW: This Agreement will be governed by the laws of the United States of America and all disputes will be brought solely in the courts of Portland, Oregon. In the event of a breach by the Company of any provision of this Agreement, Affiliate Applicant's sole remedy shall be through an action at law for damages, and Affiliate Applicant shall have no right to seek or obtain an injunction or other equitable relief. The Company and Affiliate Applicant agree that any claims, legal proceedings, or litigation arising in connection with this Agreement will be brought solely in the courts of the county of Multnomah, Oregon, and the Parties consent to the jurisdiction of such courts. No modification of these terms will be binding unless in writing and signed by both Parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
ASSIGNMENT: Affiliate Applicant may not resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without the Company’s prior written approval will be null and void. All terms and conditions in these terms will be binding upon and inure to the benefit of the Parties hereto and their respective permitted transferees, successors, and assigns.
FORCE MAJEURE: The Company shall have the right to suspend, or terminate Affiliate Applicant’s engagement and compensation hereunder during all periods: (i) that Affiliate Applicant does not render services hereunder because of Affiliate Applicant’s illness, incapacity, default or similar matters; (ii) the rendering of services is prevented or interrupted because of Force Majeure (as defined herein) events. “Force Majeure” shall be defined as: risks beyond the reasonable control of a Party, incurred not as a product or result of the negligence of the afflicted Party, which have a materially adverse effect on the ability of such Party to perform its obligations; or (iii) the rendering of services is prevented, interrupted, or delayed by reason of the death, illness or incapacity of any of the Company’s staff or designees. Unless this Agreement is terminated, the period for Affiliate Applicant’s services hereunder shall be deemed extended by a period equivalent to all such periods of suspension. If any matter referred to in Subdivision (i), other than default, continues for longer than five (5) business days, or if any matter referred to in Subdivision (ii) above continues for more than eight (8) weeks, or if any matter referred to in Subdivision (iii) above continues for more than two (2) weeks, or in the event of any material default on the part of the Affiliate Applicant, the Company may terminate this Agreement.
a. Termination by the Company: Company may terminate this Agreement, with or without cause and at its sole discretion, immediately upon written notice to the Affiliate Applicant.
b. Termination by Affiliate Applicant: Affiliate Applicant may terminate this Agreement without cause upon thirty (30) calendar days’ written notice to the Company. Affiliate Applicant may also terminate this Agreement upon fifteen (15) calendar days’ written notice to the Company, if the Company materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Company does not cure such breach within ten (10) calendar days after receipt of written notice of such breach.
c. Effect of Termination: Following the effective date of such termination, the Parties shall have no further liability under this Agreement other than with respect to matters which occurred and services which were performed prior to such effective date. Any commissions earned prior to termination will be paid in accordance with the standard operating procedure described within this Agreement. However, in the event that Affiliate’s custom referral link is not deactivated or disabled and customers continue to use the link to make purchases even after termination of this Agreement, no commission shall be due to the Affiliate. In the event of termination of this Agreement for any reason, the Affiliate’s limited license to Company Assets will also be terminated, and the Affiliate must immediately cease using the Company Assets, including any swag or other tangible promotional material the Company may have been provided to the Affiliate by the Company. The termination of this Agreement for any reason shall not affect the Company’s exclusive ownership of the results and proceeds of Affiliate Applicant’s services hereunder, or alter any of the Company’s rights, licenses, or privileges in connection therewith.
- HEADERS: Affiliate Applicant understands and expressly agrees that the headers for each section of this Agreement are not binding on the Parties. Affiliate Applicant further acknowledges and agrees that said headers are merely included for informational purposes.
IN WITNESS WHEREOF, the Affiliate Applicant agrees to the terms and conditions described within this Agreement by (1) choosing to “continue” and signing up for the affiliate program, and (2) continuing to use the Affiliate Platform and/or using their custom referral link.