Independent Marketing Affiliate Agreement
B. KHIMAIRA RESPONSIBILITIES (1) Commissions: Khimaira will pay Affiliate commissions based on registrations of domain names by third parties who are referred to Khimaira.com (a “Customer”) by Affiliate. The amount of the commission will be a percentage of the aggregate amount actually paid to Khimaira by Customers who register and pay in full for a domain name or hosting packages utilizing the Links between Affiliate’s Web Site and Khimaira.com, excluding amounts due to credit card fraud, chargebacks and bad debt. Such commissions will be calculated in accordance with the rate plans set forth on Khimaira.com during the calendar month in which such registrations are made and credited to affiliate’s hosting account as requested. Affiliate’s entitlement to commissions will accrue only if: (a) a Customer accesses Khimaira.com through the use of a Link on Affiliate’s Web Site; (b) before exiting Khimaira.com, such Customer purchases hosting. (c) Khimaira accepts such registration; and (d) such Customer remits full payment to Khimaira. All commissions will be delayed by a minimum of 30 days from the end of each calendar month, in accordance with the posted rate plans. Khimaira shall have no obligation to pay Affiliate any commissions resulting from misuse or abuse of a Link or any use of a Link for an invalid purpose, as determined by Khimaira in Khimaira’s sole discretion. Furthermore, Khimaira reserves the right to immediately terminate this Affiliate Agreement upon Affiliate’s misuse or abuse of a Link or any use of a Link for an invalid purpose, as determined by Khimaira.
Customer Service and Billing: Khimaira will handle all processing, registration, billing and customer service for Customers who register a domain name or other service through the Affiliate Program with the understanding that such activities will be for Khimaira’s account. In addition, such Customers will be deemed customers of Khimaira and will be subject to all Khimaira rules, policies, operating procedures and any changes or modifications thereto.
Marketing Tools: Khimaira will provide or make available the tools and utilities (including all Links) necessary to market and promote Khimaira’s products and services. Affiliate may develop graphic links to be used in addition to or instead of those available from Khimaira, but must first submit and request approval of said graphics.
Support Services: Khimaira will provide adequate support services to Affiliate through email, online forums or chat rooms, by telephone or fax, as appropriate to the needs of Affiliate. Khimaira will make every effort possible to ensure that communications from Affiliate are answered in a timely manner. While the optimum response time is between one(1) to two (2) business days, response times may vary depending on the volume of messages or phone calls received.
Tracking: Khimaira will be solely responsible for tracking the number of orders and the amount of fees generated from a Link on Affiliate’s Web Site to Khimaira.com. Khimaira will make available to Affiliate tracking tools necessary to track activity in Affiliate’s account. Khimaira will make every effort possible to ensure that such tracking tools are available and working properly, however, there may be times that such tracking tools will be unavailable. Such tracking tools will be provided for informational purposes only, and in the case of an inconsistency between Khimaira’s calculations and calculations based on activity measured by such tracking tools, Khimaira’s calculations will be determinative.
C. AFFILIATE RESPONSIBILITIES (1) Unapproved Marketing Methods: At no time will Affiliate use Unsolicited Commercial E-mail (“UCE”), commonly referred to as “spam”, off-topic, or any illegal method of advertising to market or promote Khimaira’s products and services. Affiliate understands and agrees that violation of the foregoing will result in immediate forfeiture of any and all accrued commissions and termination of this Affiliate Agreement. (2) Publicity: Affiliate shall not create, publish, distribute, or permit any written material that makes reference to Khimaira without first submitting such material to Khimaira and receiving Khimaira’s prior written consent, which Khimaira agrees shall not be unreasonably withheld. Certain methods may, at Khimaira’s sole discretion, be pre-approved and made available to Affiliate upon condition that Affiliate use such methods within the approved guidelines. (3) Affiliate Web Sites: (a) Affiliate agrees not to advertise, market or promote any of Khimaira’s products or services on any Web site that contains, promotes, depicts or links to: (i) illegal material; (ii) violent or sexually explicit material; or (iii) material that is determined, in Khimaira’s sole discretion, to be unsuitable or inappropriate for the Affiliate Program or that may negatively affect the Affiliate Program or Khimaira and its products and services generally. Affiliate understands and agrees that violation of the foregoing will constitute a material breach of this Affiliate Agreement. (b) Affiliate is solely responsible for the development, content, maintenance and operation of Affiliate’s Web Site(s) and for ensuring that the content of Affiliate Web Site(s) and products and services offered therefrom comply with all applicable copyright and other laws. Affiliate must have express permission to use another party’s copyrighted or other proprietary material. Khimaira disclaims all liability for Affiliate’s use of another party’s copyrighted or other proprietary material on Affiliate’s Web Site in violation of the law or any agreement.
D. IMAGES, LOGOS AND TRADEMARKS (1) License: Khimaira grants Affiliate a limited, non-exclusive, non-transferable, freely revocable license to: (a) access Khimaira.com through the Links solely in accordance with the terms of this Affiliate Agreement; and (b) solely in connection with such Links, to use selected images, graphics, logos, trademarks, trade names, copyrighted material and similar identifying material relating to Khimaira (collectively, the “Licensed Materials”), for the sole purpose of establishing a Link to Khimaira so users of Affiliate’s Web Site can purchase goods and services from Khimaira. Khimaira retains all rights to the Licensed Materials at all times. Affiliate may not at any time alter, modify or change any of the Licensed Materials in any way. (2) Prohibited Uses: Other than establishing a Link from Affiliate’s Web Site to Khimaira.com, Affiliate shall not make any use of any Licensed Materials without first obtaining Khimaira’s prior written consent. Affiliate shall not use the Licensed Materials in any manner that is disparaging or that otherwise portrays Khimaira in a negative light. Khimaira reserves all of its rights in the Licensed Materials and of its other proprietary rights. Khimaira, in its sole discretion, may revoke Affiliate’s license at any time, by giving Affiliate written notice. (3) Within the guidelines of this Affiliate Agreement, Affiliate is encouraged to be creative in its marketing methods. Ideas or suggestions for banners, logos or other artworks submitted to Khimaira, if used, may be compensated. Compensation may be in the form of cash, prizes, services or products of Khimaira, at the sole discretion of Khimaira, only for original work by Affiliate. Affiliate agrees that all such submissions become the sole property of Khimaira, and khimaira will own all copyrights and/or trademarks therein. Credit for all submissions used by Khimaira will be displayed on Khimaira.com on a credits page. (4) Grant of License: Affiliate grants to khimaira a non-exclusive license to utilize Affiliate’s company name and logo, as the same may be amended from time to time (the “Affiliate Trademarks”), to advertise, market, promote and publicize in any manner Affiliate’s participation in the Affiliate Program or Khimaira’s rights hereunder; provided, however, that Khimaira shall not be required to so advertise, market, promote or publicize. (5) Expiration: The licenses described in this paragraph D shall expire upon the effective date of the termination of this Agreement. E. RELATIONSHIP OF PARTIES. Affiliate and Khimaira are independent contractors, and nothing in this Affiliate Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. Affiliate will have no authority to make or accept any offers or representations on Khimaira’s behalf. Affiliate will not make any statement, whether on Affiliate’s Web Site(s) or otherwise, that reasonably would contradict anything in this paragraph.
E. MODIFICATIONS TO AFFILIATE AGREEMENT Affiliate agrees that Khimaira may, in its sole discretion, revise the terms and conditions of this Affiliate Agreement at any time. Khimaira agrees to post any such revised Affiliate Agreement on Khimaira.com and such revised Affiliate Agreement will be binding and effective immediately upon the earlier of (1) its posting or (2) upon notification to Affiliate by e-mail or United States mail to the then current address provided by Affiliate. Affiliate agrees to review Khimaira.com (including the current version of the Affiliate Agreement) periodically to be aware of any such revisions. If Affiliate does not agree with any revision to the Affiliate Agreement, Affiliate may terminate this Affiliate Agreement in accordance with the procedures specified in paragraph G below. Affiliate agrees that Affiliate’s continued use of Khimaira’s service(s) after any revision to this Affiliate Agreement becomes effective constitutes Affiliate’s acceptance of such revisions or changes, and Affiliate agrees to abide by and be bound by any such revisions or changes. No employee, contractor, agent or representative of Khimaira is authorized to alter or amend the terms and conditions of this Affiliate Agreement. Khimaira shall not be obligated to refund any fees paid by Affiliate if Affiliate terminates this Affiliate Agreement.
F. TERM OF AFFILIATE AGREEMENT AND TERMINATION :This Affiliate Agreement will begin upon Khimaira’s acceptance of Affiliate’s application for the Affiliate Program and will continue for an initial term of 2 years and for additional successive terms of 1 year unless this Affiliate Agreement is terminated under one of the following provisions: (1) By Affiliate: Affiliate may terminate this Affiliate Agreement at any time by providing Khimaira with notice by e-mail or by United States mail addressed to: Khimaira, 2974 Stonyman Road, Luray VA 22835 Attention: Termination Notice. Notice of Affiliate’s termination will be effective on receipt and processing by Khimaira. (2) By Khimaira: Khimaira may terminate this Affiliate Agreement, with or without cause, at any time by notification to Affiliate by e-mail or United States mail to the then current address provided by Affiliate. Other than in cases where termination of the Affiliate Agreement results in immediate forfeiture of any and all accrued commission (as specified herein), Affiliate is only eligible to earn commissions on paid domain name registrations occurring during the period , and commissions earned through the date of termination will remain payable excluding amounts due to credit card fraud, chargebacks and bad debt. Khimaira may withhold Affiliate’s final payment, or a portion thereof, for a reasonable time to ensure that the correct amount is paid. Within one (1) day of any termination of this Affiliate Agreement, the Links established under this Affiliate Agreement shall be removed by Affiliate and Affiliate shall discontinue the use of the Licensed Materials provided under paragraph D above. Furthermore, Khimaira shall not be obligated to refund any fees paid by Affiliate if this Affiliate Agreement is terminated.
G. AGENTS Affiliate agrees that if this Affiliate Agreement is completed by an agent for Affiliate, such as an administrative contact/agent or employee of Affiliate (each an “Agent”), Affiliate is nonetheless bound as a principal by all terms and conditions herein. Affiliate agrees that by continuing to use the services of Khimaira, Affiliate shall be deemed to have ratified any unauthorized actions of Affiliate’s Agent. In addition, Affiliate is responsible for any errors made by Affiliate’s Agent. Khimaira shall not be obligated to refund any fees paid by Affiliate or Affiliate’s Agent for any reason.
H. LIMITATION OF LIABILITY Affiliate agrees that Khimaira shall have no liability to Affiliate for any and all loss Affiliate may incur resulting from or in connection with, but not limited to: (1) Khimaira’s processing of this Affiliate Agreement; (2) Khimaira’s processing of any authorized modification to Affiliate’s account; (3) Affiliate’s, or Affiliate’s Agent’s, failure to pay either the initial registration fee or any renewal fee; (4) access delays or access interruptions; (5) data non-delivery; (6) acts of nature; (7) errors, omissions or misstatements in any and all information or services provided under this Affiliate Agreement; (8) deletion or failure to store e-mail messages; (9) the development or interruption of Affiliate’s Web site; or (10) any action or omission of a third party with whom Affiliate enters into an agreement as a result of any promotion, advertisement or sponsorship related to, or in connection with, any service(s) of Khimaira. Affiliate agrees that its sole and exclusive remedy with respect to services provided pursuant to this Affiliate Agreement and/or for any breach of this Affiliate Agreement shall be limited to the lesser of (1) the amount of commissions paid or payable to Affiliate under this Affiliate Agreement or (2) One Hundred United States Dollars (US). Furthermore, Khimaira and its contractors and affiliates shall not be liable for any direct, indirect, incidental, special or consequential damages, or for any loss of revenue, profits or data, arising in connection with this Affiliate Agreement or the Affiliate Program. Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, in such states, Khimaira’s liability is limited to the extent permitted by applicable law.
K. REPRESENTATIONS AND WARRANTIES Affiliate represents and warrants by submitting this Affiliate Agreement that: (1) to the best of Affiliate’s knowledge and belief, the information submitted to Khimaira by Affiliate or Affiliate’s Agent is true and correct, and that any future changes to this information will be provided to Khimaira in a timely manner according to the applicable procedures in place at that time; (2) Affiliate is the sole and exclusive owner of the Affiliate Trademarks and has the right and power to grant to Khimaira the license to use the Affiliate Trademarks in the manner contemplated herein, and such grant does not and will not (a) breach, conflict with or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties or (b) infringe upon any trademark, trade name, service mark copyright or other proprietary right of any other person or entity; (3) Affiliate has all requisite power and authority to execute this Affiliate Agreement and to perform Affiliate’s obligations hereunder; (4) there is no pending or, to the best of Affiliate’s knowledge and belief, threatened claim, action or proceeding against Affiliate with respect to the execution, delivery or consummation of this Affiliate Agreement, or with respect to the Affiliate Trademarks, and, to the best of Affiliate’s knowledge and belief, there is no basis for any such claim, action or proceeding; (5) Affiliate is of legal age to enter into this Affiliate Agreement; and (6) the proof of identity and social security number or tax identification number provided by Affiliate to Khimaira is true, complete and accurate . Affiliate agrees that use of Khimaira’s service(s) is solely at Affiliate’s own risk. Affiliate further agrees that all of Khimaira’s service(s) are provided on an “as is” and “as available” basis. Any breach of any of these representations and warranties by Affiliate will constitute a material breach of this Affiliate Agreement.
L. DISCLAIMER OF WARRANTIES Khimaira expressly disclaims all warranties of any kind, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement. Khimaira makes no warranty that Khimaira’s service(s) will meet Affiliate’s requirements, or that such service(s) will be uninterrupted, timely, secure, or error free; nor does Khimaira make any warranty as to the results that may be obtained from the use of Khimaira’s service(s). No advice or information, whether oral or written, obtained by Affiliate from Khimaira shall create any warranty not expressly made herein. To the extent jurisdictions do not allow the exclusion of certain warranties, some of the above exclusions may not apply to Affiliate.
M. RIGHT OF REFUSAL Khimaira, in its sole discretion, reserves the right to refuse acceptance of Affiliate’s application to the Affiliate Program. Affiliate agrees that the submission of this Affiliate Agreement does not obligate Khimaira to accept this Affiliate Agreement. Affiliate agrees that Khimaira shall not be liable for loss or damages that may result from Khimaira’s refusal to accept this Affiliate Agreement or to provide any other service(s).
O. NON-ASSIGNMENT Affiliate’s rights under this Affiliate Agreement are not assignable. Any attempt by Affiliate to assign Affiliate’s rights shall render this Affiliate Agreement voidable at Khimaira’s option. Any attempt by Affiliate’s creditors to obtain an interest in Affiliate’s rights under this Affiliate Agreement, whether by attachment, garnishment or otherwise, shall render this Affiliate Agreement voidable at Khimaira’s option.
P. GOVERNING LAW Affiliate agrees that this Affiliate Agreement shall be governed in all respects by and construed in accordance with the internal laws of the State of Virginia, United States of America, without reference to Virginia’s conflict of law principles. By submitting this Affiliate Agreement, Affiliate hereby consents to the exclusive jurisdiction and venue of the state and federal courts located in the County of Page, Virginia
Q. THIS IS INDEPENDENT MARKETING AFFILIATE AGREEMENT VERSION NUMBER 1.0 This Affiliate Agreement is only for Affiliate registrations to the Affiliate Program. By completing and submitting this Affiliate Agreement for consideration and acceptance by Khimaira, Affiliate agrees that Affiliate has read and agrees to be bound by paragraphs (A) through (P) above.