Affiliate Program Terms

Effective Date: 9/28/2016

This Affiliate Agreement (this “Agreement”) is entered into as of the date (the “Effective Date”) the party participating in this program (the “Affiliate”) accepts its terms and conditions by checking the “I Agree” box and is by and between Macrochromatic, and the Affiliate.

Whereas, Macrochromatic provides an online marketplace service which enables its customers to buy pre-made design content, and Affiliate operates the websites set forth below. The Parties desire to enter into this Agreement to set forth the terms and conditions under which Affiliate will promote Macrochromatic’s products and services on Affiliate’s Site(s).

Now, therefore, in consideration of the foregoing and the agreements contained below the Parties hereby agree as follows:

1. Definitions.

For purposes of this Agreement, the following terms will have the indicated definitions:

“Content” means all materials comprising a Party’s Site, including, but not limited to, any images, photographs, illustrations, graphics, audio clips, video clips or text, and Marks.

“Macrochromatic’s Site” means the Macrochromatic website located at macrochromatic.com.

“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

“Marks” means all trademarks, service marks, trade names, logos, words or symbols identifying either Party or either Party’s respective products or services.

“Party” or “Parties” means Macrochromatic and/or Affiliate.

“Qualified Customers” means persons who purchase any products or services from Macrochromatic who are referred to Macrochromatic’s Site by Affiliate and originated from Affiliate’s Site(s).

“Affiliate’s Site(s)” means one or more websites or web services owned or controlled by the Affiliate, or upon which Affiliate has an account or membership, on which the Affiliate places a referral link (the “Links”) to Macrochromatic’s Site. Affiliate represents and warrants to Macrochromatic that is has sufficient right, title, interest, authority or permission, as applicable, to place Links on the Affiliate’s Site(s) as described herein.

2. Trademark License Grant.

  1. Grant to Affiliate. Subject to the terms and conditions of this Agreement, Macrochromatic grants to Affiliate a nontransferable, nonexclusive license to use Macrochromatic’s Marks solely for the purpose of fulfilling Affiliate’s obligations hereunder.

  2. Grant to Macrochromatic. Subject to the terms and conditions of this Agreement, Affiliate grants to Macrochromatic a nontransferable, nonexclusive license to use the Affiliate’s Marks solely for the purpose of exercising its rights hereunder.

  3. No Other Rights. Except as expressly provided herein, Affiliate and Macrochromatic agree to (a) not use the other Party’s Marks without their prior written consent, (b) only use the other Party’s Marks in accordance with any trademark quality standards and usage guidelines as may be provided by such other Party; and (c) upon termination of this Agreement for any reason, immediately cease all use of the other Party’s Marks.

3. Products and Services.

  1. Control. Both Affiliate and Macrochromatic reserve the right at any time without liability or prior notice to:

    1. determine the contents of the each Party’s own respective websites, products and services, including specifications, features, and functions, as well as any documentation or related materials;

    2. discontinue distribution of any or all of each Party’s own respective products and services in some or all markets or through some or all channels of distribution;

    3. change or terminate any of each Party’s own respective specifications, features, or functions of their products and services; and

    4. change or terminate the level or type of support or service that each Party makes available for their products and services at any time and without notice. Either Party may cancel any orders for discontinued products or services without liability.

  2. Service Support. Neither Party is responsible to the other Party for any customer service support for purchases and fulfillment of the other Party’s products and services including but not limited to, providing qualified personnel to receive customer inquiries.

4. Compensation.

  1. Commission. Macrochromatic will pay Affiliate a commission equal to 20% of the price actually paid by a Qualified Customer, excluding any refunds and/or taxes, for each sale that is not an Excluded Sale (as defined below) of any Macrochromatic products and services to Qualified Customers that were referred to Macrochromatic via the Affiliate(S) website.

  2. Excluded Sale means a sale to a Qualified Customer that has (i) followed links to the Macrochromatic Site from other Macrochromatic affiliates after following Affiliate’s link and before registering as a user on the Macrochromatic Site, (ii) used a different browser or computer to register as a Macrochromatic user than was used to follow Affiliate’s link, or (iii) cleared his or her cookies after following a link from Affiliate’s website.

  3. Taxes. Both Affiliate and Macrochromatic are responsible for payment of any/all of their respective taxes.

  4. Payment. Payments by Macrochromatic required hereunder shall be made within fifteen (15) days after the close of the calendar month in which the payment of any accrued commissions is requested by Affiliate.

5. Ownership.

Each Party retains all right, title and interest, including all Intellectual Property Rights, in and to (a) its Marks, Content and Site, and (b) any new inventions, developments or technology resulting from or in connection with the performance of such Party’s obligations hereunder. Except as expressly set forth in Section 2, each Party reserves all rights and grants the other Party no licenses of any kind hereunder.

6. Term and Termination.

  1. Term. The term of this Agreement shall commence on the Effective Date and end one (1) year from the Effective Date (the “Term”); provided that either Party may terminate this agreement at any time with ten (10) days prior written notice.

  2. Termination for Cause. If either Party defaults in the performance of any material provision of this Agreement, then the non-defaulting Party may give written notice to the defaulting Party that if the default is not cured within ten (10) days the Agreement will be terminated. If the non-defaulting Party gives such notice and the default is not cured during the ten-day period, then the Agreement shall automatically terminate at the end of that period.

  3. Termination for Insolvency and Related Events. This Agreement shall terminate, without notice, (i) upon the institution by or against either Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of such Party’s debts, (ii) upon either Party’s making an assignment for the benefit of creditors, or (iii) upon either Party’s dissolution or ceasing to do business.

  4. Effect of Termination. Upon termination of this Agreement, Affiliate will discontinue all further promotion of Macrochromatic’s products and services pursuant to this Agreement. Without limiting the generality of the foregoing, Affiliate will cease all display, advertising, and use of all of Macrochromatic’s Marks and will not thereafter use, advertise, or display any such Marks unless otherwise agreed by Macrochromatic in writing.

  5. Survival of Certain Terms. The provisions of Section 1 and Sections 5-9 of this Agreement shall survive the expiration or termination of this Agreement for any reason. All other rights and obligations of the Parties shall cease upon termination of this Agreement.

7. Warranty Disclaimer.

EACH PARTY’S PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO ITS PRODUCTS OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THOSE ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER PARTY WARRANTS THAT ITS PRODUCTS OR SERVICES WILL BE FREE OF DEFECTS, INACCURACIES, OR ERRORS, WILL MEET THE OTHER PARTY’S OR ANY CUSTOMERS’ REQUIREMENTS OR WILL COMPLY WITH APPLICABLE LAWS.

8. Limitation of Liability.

IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY, OR FROM NEGLIGENCE OR STRICT LIABILITY), INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE OR FROM ANY DEFECT OR ERROR IN ITS PRODUCTS OR SERVICES, EVEN IF A PARTY HAS BEEN ADVISED OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE AGGREGATE LIABILITY OF Macrochromatic ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS PAID TO AFFILIATE UNDER THIS AGREEMENT.

9. General.

  1. Independent Contractor. Neither Party shall be deemed to be an agent of the other Party for any purpose, and the relationship between the Parties shall only be that of independent contractors. Neither Party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever

  2. Governing Law and Jurisdiction. This Agreement is governed and interpreted in accordance with the laws of the State of California, U.S.A. without reference to conflicts of laws principles and excluding the United Nations Convention on Contracts for the Sale of Goods. The Parties consent to the exclusive jurisdiction of, and venue in, Santa Clara County, California, U.S.A. for the adjudication of any disputes arising hereunder.

  3. Assignment. Neither Party shall assign, delegate, or otherwise transfer its rights or obligations under this Agreement, by operation of law or otherwise, without the prior written consent of the other Party (to be granted or withheld in its reasonable discretion); except that Macrochromatic may assign this Agreement freely in connection with a merger, acquisition, sale of substantially all of its assets or stock, financing, reorganization, or similar transaction. This Agreement will inure to the benefit of the Parties and their permitted successors and assigns.

  4. Merger, Modification and Waiver. This Agreement constitutes the entire agreement between Macrochromatic and Affiliate with respect to the subject matter hereof, and merges all prior negotiations and drafts of the Parties with regard thereto. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement shall be effective unless in writing. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.

  5. Severability. If any of the provisions of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable under any applicable statute or rule of law, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions shall continue in full force and effect.

  6. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.