KILL CLIFF LLC
AFFILIATE AGREEMENT
This Affiliate Agreement (including any schedules, exhibits or addenda attached hereto, the “Agreement”), is made and entered into as of the date identified below (the “Effective Date”), by and between Kill Cliff LLC (“Kill Cliff”), with an address of 199 Armour Drive NE STE D, Atlanta, GA 30324 United States and the affiliate identified below (“Affiliate” or “you”). In consideration of the mutual promises contained herein, the parties agree as follows:
Services.
The Affiliate Program. Affiliate agrees to provide to Kill Cliff under the terms and conditions of this Agreement, services (the “Services”) in connection with Kill Cliff's Affiliate Program (the “Program”). As part of the Services, Affiliate will generate and post content (including, without limitation, text, videos and images) regarding Kill Cliff and Kill Cliff products on Affiliate’s Web page (the “Web Page”) and on Affiliate's Instagram, Instagram Story, Twitter, Facebook, blog, YouTube and Pinterest (the “Social Channels”) (collectively the “Content”) in an effort to generate sales.
Affiliate agrees to:
Devote such of his/her time, resources and best efforts to the Services as is reasonably necessary to perform them in a professional and diligent manner
Comply with all applicable laws and regulations.
Determine, in his /her discretion, the time, place, manner, means, methods and independent/personal resources by which the Services are performed and achieved.
Provide and utilize his/her own equipment, tools and other resources in performing the Services but Kill Cliff will provide to Affiliate certain informational materials to facilitate the creation of Affiliate's created content to his/her Web Page and/or Social Channels (such templates and other materials are collectively referred to as the “Creative Materials”).
Will be responsible for (i) creating and editing the Content and (ii) upload to Affiliate's Web Page or posting such Content on the Social Channels. All such Content that is uploaded to the Affiliate's Web Page will be subject to prior review by Kill Cliff. Kill Cliff has the right to request removal any Content from the Affiliate's Web Page or Social Channels.
It is understood and agreed that Affiliate will be an independent contractor, is not and will not be considered an agent or employee of Kill Cliff (or any of its affiliates or related entities), and shall have no authority to bind Kill Cliff (or its affiliates or related entities) by contract or otherwise.
Restrictions.
Affiliate agrees that they will not: (i)
Make any derogatory statements about Kill Cliff and/or Kill Cliff products
Resell or distribute any Kill Cliff products, including those received for free or as gifts, for commercial purposes.
Promote Kill Cliff products, the Kill Cliff brand, or the Program via any paid media channels
Promote Kill Cliff products, the Kill Cliff brand, the Program via any website, media, social media, or electronic presence or resource that may be considered pornographic, lewd, offensive, or discriminate
Engage in any fraudulent transactions, as reasonably determined by Kill Cliff, including without limitation making transactions from Affiliate's IP addresses or computers under Affiliate's control.
Compensation.
In consideration for the Services, Kill Cliff will pay to Affiliate a percentage of the Net Revenue (as defined below) collected by Kill Cliff in accordance with the Commission Appendix below (the “Commission(s)”). For purposes of this Agreement, “Net Revenue” means gross fees received by Kill Cliff from Qualifying Orders (as defined below), less amounts paid for using store credit or gift certificates, discounts, taxes, duties and transaction-based costs and expenses, including but not limited to payment process fees and shipping fees. For purposes of this Agreement, “Qualifying Orders” means purchases of Kill Cliff product(s) via the Web Page that are made by a method of payment accepted by Kill Cliff. The Commission is also only paid to Affiliate if the Qualifying Order is final -any returns will cause that specific Commission to be deducted out of the month payouts. The Commission will be calculated solely based on records maintained by Kill Cliff using its standard methodologies. Kill Cliff will pay Affiliate its Commission by the 28th day of each month. Commissions due hereunder will be made by Kill Cliff to Affiliate through its payment processor (“Payment Processor”), which, as of the Effective Date, is PayPal Holdings, Inc. Affiliate is solely responsible for creating and maintaining a Payment Processor account, and communicating such account information to Kill Cliff for purposes of receiving the payments set forth herein. Kill Cliff is not responsible for making any payments based on any amounts which result from any fraudulent transactions, as reasonably determined by Kill Cliff, including without limitation any transactions originating from Affiliate's IP addresses or computers under Affiliate's control.
Confidentiality.
Definition. “Confidential Information” means all trade secrets and confidential or proprietary information, whether or not in writing, concerning Kill Cliff's business technology, business relationships or financial affairs which Kill Cliff has not released to the general public. By way of illustration, Confidential Information includes, but is not limited to, information or material which has not been made generally available to the public, such as: (i) corporate information , including plans, strategies, method, policies, resolutions, negotiations or litigation;(ii) marketing information, including strategies methods, customer identities or other information about customers , prospect identities or other information about prospects, or market analyses or projections; (iii) financial information, including cost and performance data (iv) operational and technological information , including plans, specifications, manuals, forms, templates, software, designs, methods, procedures, formulas, discoveries, inventions improvements, concepts and ideas; and (v) personnel information, including personnel lists, reporting or organizational structure, resumes, personnel data. Confidential Information also includes information received in confidence by Kill Cliff from its customers or suppliers or other third parties.
Non-Disclosure and Non-Use Obligations. Affiliate will not, at any time, without Kill Cliff's prior written permission, either during or after the term of this Agreement, disclose any Confidential Information to anyone outside of Kill Cliff, or use or permit to be used any Confidential Information for any purpose other than the performance of the Services for or on behalf of Kill Cliff. Affiliate will cooperate with Kill Cliff and use best efforts to prevent the unauthorized disclosure or use of any and all Confidential Information. Affiliate will deliver to Kill Cliff all copies of Confidential Information in Affiliate's possession or control upon the earlier of a request by Kill Cliff or termination of this Agreement for any reason. Information of Third Parties. Affiliate understands that Kill Cliff is now and may hereafter be subject to non-disclosure or confidentiality agreements with third persons which require Kill Cliff to protect or refrain from use of Confidential Information. Affiliate agrees to be bound by the terms of such agreements in the event Affiliate has access to such Confidential Information.
Intellectual Property Rights.
Content License.
Affiliate hereby grants to Kill Cliff and its subsidiaries, affiliates, licensees, agents, representatives, successors and assigns:
Unrestricted, fully-paid, royalty free, exclusive, transferable and irrevocable rights, power and authority to use, reproduce, publish, print, distribute, transmit, copy or otherwise use any of the Content, worldwide and perpetually, in whole or in part, in any medium known now or later discovered, for the purpose of its advertisements, promotions, marketing activities, public relations, educational and other commercial or non-commercial purposes, subject only to the payment made to Affiliate in section 2 hereof.
Affiliate shall have the revocable, unlimited, perpetual and worldwide right to use the Content, for Affiliate’s promotional purposes, in any and all media now known or hereafter developed. With respect to Content which portrays Affiliate’s face, body and voice (the “Restricted Materials”), Kill Cliff shall have the right to use the Restricted Materials upon prior approval from Affiliate.
Other Developments.
Affiliate hereby grants to Kill Cliff and its affiliated companies, successors and assigns, the royalty-free, perpetual, unrestricted, transferable, irrevocable sublicensable, non-exclusive, worldwide right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display any content or other materials, other than the Content, (i) submitted to Kill Cliff in connection with the Program or (ii) otherwise created by Affiliate in connection with the Services, (collectively, the “Other Developments”)
Kill Cliff Materials and Trademark.
Except for Affiliate's limited right to use the Kill Cliff Materials solely in connection with performing the Services, Kill Cliff retains all right title and interest in the Kill Cliff Materials, including all related intellectual property rights. Kill Cliff hereby grants to Affiliate, a limited, non-exclusive, non-transferable license to use and display Kill Cliff's name, website address, logo and trade names (the “Marks”), solely in connection with performing the Services.
Affiliate agrees that any use of the Marks:
Will comply with Kill Cliff's quality standards and trademark guidelines, which may be provided by Kill Cliff to Affiliate from time to time. Will solely inure to the benefit of Kill Cliff. The Marks are proprietary and nothing in this Agreement constitutes the grant of a general license for their use. Affiliate does not acquire any right, title or interest in the Marks or the goodwill associated therewith. Affiliate agrees not to (A) attack the Marks or assist anyone in attack in the Marks, and (B) make any application to register the Marks or use any confusingly similar trademark, service mark, trade name, iconography, or derivation thereof including, but not limited to, the registration of any domain name including any of the Marks, during the term of this Agreement and thereafter.
Federal Trade Commission Requirements.
Affiliate acknowledges and agrees that the provisions of the Federal Trade Commission's Guides Concerning Use of Endorsements and Testimonials in Advertising (the “Guides”) apply to Affiliate's provision of the Services hereunder. Affiliate represents and warrants that he or she has read and understands the Guides and their requirements, and that the Content and Other Developments (including, without limitation, social media communications regarding Kill Cliff products, the Kill Cliff brand and/or the Program) will contain clear and prominent disclosures compliant with the Guides.
Affiliate represents and warrants that:
He or she is at least 18 year of age and legally allowed to live and work in his/her country of residence
The Services will be performed in a professional, lawful and workmanlike manner, in accordance with any terms and conditions set forth herein and in the Kill Cliff Materials;
The Content and Other Developments are Affiliate' s original work
Use of the Content and Other Developments by Kill Cliff will not infringe or involve the misappropriation of any third party rights
All clearances and licenses relating to the use of the Content or Other Developments have been obtained by Affiliate except as expressly set forth herein, no fee, compensation or any other payment whatsoever will be payable by Kill Cliff for any Content or Other Developments or any content or material incorporated therein to any third party;
He or she will comply with all applicable laws, rules and regulations, including the Guides
Indemnification.
Affiliate shall indemnify and hold Kill Cliff, its affiliates and their respective directors, officers, agents and employees harmless from and against all claims, demands, losses, damages and judgments, including court costs and attorneys' fees, arising out of or based upon the Services and/or Affiliate's performance thereof including, but not limited to, (a) any claim that the Services provided hereunder or, any related intellectual property rights or the exercise of any rights in or to any Content, Other Development, Affiliate IP or related intellectual property rights infringe on, constitute a misappropriation of the subject matter of, or otherwise violate any patent, copyright, trade secret, or trademark of any person or breaches any person' s contractual rights; and (b) any breach or alleged breach by Affiliate of any representation, warranty, certification, covenant, obligation or other agreement set forth in this Agreement.
Term; Termination.
This Agreement will commence on the Effective Date and continue until terminated as set forth herein. Either party may terminate this Agreement for convenience upon at least seven (7) days' prior written notice thereof to the other party. Kill Cliff may, in addition to any other rights it may have at law or in equity, terminate this Agreement immediately and without prior notice if Affiliate refuses to or is unable to perform the Services or is in breach of any material provision of this Agreement. Upon any termination of this Agreement, all rights and duties of the parties toward each other shall cease, except that the following Sections shall survive: 2 (with respect to any Net Revenue accrued during the term of this Agreement but not yet paid); 3, 4(a), 4(b), 4(c) and 5 through 13 (inclusive).
Independent Contractor; No Agency.
Affiliate is not and shall not be deemed an employee, agent, joint venture or partner of Kill Cliff, and neither party shall have any right or authority to assume or create any obligation on behalf of or bind the other party in any manner whatsoever.
Limitation of Liability.
IN NO EVENT SHALL KILL CLIFF, ITS AFFILIATES, THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS (EACH, A “KILL CLIFF PARTY”) BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) ARISING FROM OR RELATED TO THIS AGREEMENT, THE KILL CLIFF PRODUCTS AND/OR THE PROGRAM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH KILL CLIFF PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY. IN SUCH STATES, THE LIABILITY OF THE KILL CLIFF PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Governing Law, Jurisdiction and Venue.
The provisions of this Agreement will be construed and enforced in accordance with, and any dispute arising out of or in connection with this Agreement, including any action in tort, will be governed by, the laws of the State of Georgia. Each party hereby irrevocably submits to the exclusive jurisdiction and venue of the courts within Atlanta.
Notices.
All notices or other communications, required or permitted to be given hereunder, shall be in writing and shall be delivered electronically, personally or mailed, certified mail, return receipt requested, postage prepaid, to the parties at their addresses as set forth above. Any notice given electronically shall be deemed received on the business day following transmission. Any notice mailed in accordance with the terms hereof shall be deemed received on the third day following the day of mailing. Either party may change the address to which such notices to such party may be given hereunder by serving proper notice of such change of address to the other party.
Equitable Relief.
Affiliate and Kill Cliff agree that it would be impossible or inadequate to measure and calculate Kill Cliff's damages from any breach by Affiliate of this Agreement. Accordingly, Affiliate and Kill Cliff agree that if Affiliate breaches this Agreement; Kill Cliff will have available, in addition to any other right or remedy available and notwithstanding anything to the contrary in Section 10 above, the right to obtain from any court of competent jurisdiction an injunction restraining such breach or threatened breach and specific performance of Sections 3, 4 and Section 8. Affiliate and Kill Cliff further agrees that no bond or other security shall be required in obtaining such equitable relief and Affiliate and Kill Cliff, hereby consent to the issuances of such injunction and to the ordering of such specific performance.
Miscellaneous.
If any provision of this Agreement is found to be invalid by any court or arbitrator having competent jurisdiction, then the meaning of said provision shall be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it shall be severed from the remainder of this Agreement which shall remain in full force and effect. Failure of Kill Cliff to act on or enforce any provision of this Agreement shall not be construed as a waiver of that provision or any other provision of this Agreement. No waiver shall be effective against Kill Cliff unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Kill Cliff and Affiliate, this Agreement constitutes the entire agreement between Affiliate and Kill Cliff with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience, and shall not be given any legal import. Neither this Agreement nor any right hereunder or interest herein may be assigned or transferred by Affiliate without the express written consent of Kill Cliff. Kill Cliff may assign any or all of its rights and obligations under this Agreement without Affiliate's written consent to any affiliate or to another third party affiliate by way of merger, acquisition, consolidation, or sale or transfer of all or substantially all of Kill Cliff's assets or capital stock. Any attempted assignment, delegation or transfer to a third party in violation hereof shall be null and void. Subject to the foregoing, this Agreement shall be binding on the parties and their successors and assigns.
Commission Appendix
For Qualifying Orders in a calendar month, Kill Cliff will pay to Affiliate commission payments in accordance with the following table, with the exception that Kill Cliff could have promos that could go to higher percentages as incentive, all details of such promos to be at Kill Cliff's sole discretion and communicated to Affiliate in due time:
Commission Percentage
20% of Net Revenue
For purposes of this Commission Appendix, each Qualifying Order shall count as one Qualifying Order, regardless of the number of Kill Cliff Products that are purchased pursuant to such Qualifying Order.
