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This MagikFlame Affiliate Agreement (the “Agreement”) contain terms and conditions that apply to your participation as an Affiliate (“You”, “you”, “your”, “Affiliate”) for MagikFlame (“MagikFlame”, “we”, “our”, “us”) in our affiliate program (“Affiliate Program”). By submitting your MagikFlame Affiliate Program application and participating in the Affiliate Program, you are confirming that you have read and understand this Agreement, you represent and warrant that you are lawfully able to enter into contracts, and you agree to be bound by, and will continue to comply with, these terms and conditions throughout the full duration of your participation in the Affiliate Program. Additionally, you acknowledge and agree that by submitting your application, which may include clicking an acceptance box, the effective date of this Agreement will be the date on which you submit your application. MagikFlame reserves the right to make changes to the MagikFlame Affiliate Program and this Agreement at any time, and such changes will be effective immediately upon being posted on the MagikFlame Site.
- “Affiliate Site” means websites and accounts owned and/or controlled by Affiliate, including but not limited to, accounts on social media platforms such as Instagram, Twitter, and Facebook.
- “Completed Transaction” means a Customer’s verifiable purchase of MagikFlame goods or services on the MagikFlame Site resulting from a Referral Link, in which the goods or services have been delivered, the return period has expired, and at least thirty (30) days have elapsed since the goods or services were paid in full.
- “Cookie Window” means the length of time before an Affiliate Program cookie expires and the length of time in which a Customer must complete a Completed Transaction after accessing the MagikFlame Site from a Referral Link.
- “Customer” means any person or party who completes a Completed Transaction as a result of a Referral Link on an Affiliate Site.
- “Referral Link” means the banner, button, code or other means of linking an Affiliate Site to the MagikFlame Site, by which a Customer is referred by an Affiliate for the purpose of promoting the sale of MagikFlame goods or services on the MagikFlame Site. Referral Links track Customers who are directed from the Affiliate Site to the MagikFlame Site and make a purchase which results in a Completed Transaction.
- “MagikFlame Site” means the website located at https://magikflame.com.
- Singular and Plural. References to the singular of a defined term include the plural and vice versa.
- MagikFlame has created the Affiliate Program that enables Affiliates to refer internet traffic to MagikFlame Site from the website(s) or advertising networks of others in exchange for agreed consideration.
- MagikFlame desires to retain Affiliate to participate in the Affiliate Program.
- You shall place one or more Referral Links on your Affiliate Site in accordance with the terms and conditions of this Agreement, including:
(a) You must be in good standing with the Federal Trade Commission (“FTC”) and in compliance with all FTC guidelines. As an affiliate, you understand and agree that you have read and fully agree to the terms listed on the Official FTC website and the FTC Endorsement Guides. For reference, the FTC’s Endorsement Guides are available at: https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf
(b) You must disclose your affiliate connection to MagikFlame clearly and conspicuously in your postings;
(c) Your statements should reflect your honest opinions, beliefs, and experiences;
(d) You must not to make any false or misleading statements about MagikFlame products or services; and
(e) You are solely responsible for the for the development, operation, maintenance and all materials and content that appear your Affiliate Site. You shall operate and maintain the Affiliate Site in accordance with all applicable laws, rules and regulations, including copyright laws.
Affiliate Obligations and RepresentationsAs a member of our Affiliate Program, you understand and agree that:
- You hereby give MagikFlame the right to monitor your Affiliate Site at any time to determine if you are following this Agreement and to notify you of any changes we feel you should make to remain in compliance. Further, you must comply with any requests we make for you to take down specific content concerning MagikFlame from your Affiliate Site. Failure to comply is a violation of this Agreement and grounds for termination of your affiliate status.
- You are responsible for your Affiliate Site content. You may not promote MagikFlame content on an Affiliate Site that contains any form of misleading, defamatory, obscene, illegal, bigoted, pornographic or any other content deemed offensive by MagikFlame.
- You may not use cookie stuffing technique, click-generators or any other form of artificially generated clicks or impressions on your Affiliate Site or create visits on the MagikFlame Site that does not involve another individual actually clicking on the Referral Link. You may not modify or tamper with Referral Links to falsify or disguise clicks or impressions.
- You will be open and honest about your relationship to us. You may not misrepresent or embellish the relationship between you and MagikFlame or imply any relationship or affiliation between you and MagikFlame or any other person or entity except as expressly permitted by this Agreement. You may not represent yourself as an agent or employee of MagikFlame or represent that you have the authority to bind MagikFlame to a contract.
- Unless expressly permitted by MagikFlame, you shall not distribute the Referral Links to third parties or use Referral Links on websites or accounts that you do not own.
- You agree and acknowledge that you will only be compensated after a verified Completed Transaction. Completed Transactions may only result from Referral Links provided by MagikFlame and resulting purchases from the MagikFlame Site. You are solely responsible for installation and implementation of a Referral Link on your Affiliate Site. MagikFlame is not responsible to you or any third party for any inability to use, failures, or inaccuracies regarding a Referral Link.
- Persons who become Customers of MagikFlame through referrals made in the Affiliate Program will be considered our customers, at our sole discretion. All our terms, rules, policies, and operating procedures that apply to our users will apply to such referred customers. We may change our terms, rules, policies, and operating procedures at any time, as further described in our Terms of Service and our other terms as we may post from time to time.
- MagikFlame may elect to reject your Affiliate Site if MagikFlame determines in its sole discretion that your site contains or otherwise involves prohibited activity. As a condition to your acceptance and participation in this Affiliate Program, you agree that you will not undertake or engage in the following practices, and any violation of this Section shall be deemed a material breach of this Agreement and may result in immediate termination from the Affiliate Program:
(a) Use the MagikFlame name, or any variation thereof, in any manner not expressly authorized by this Agreement.
(b) Buy or use biddable media or branded keyword terms (e.g. Google Paid Search ads or Google SEO / Organic Content).
(c) Market MagikFlame or use a Referral Link on or in connection with any coupon sites (e.g., Coupon Cabin).
Affiliate Commission for Completed TransactionsSubject to your proper installation and implementation of Referral Links, you will be compensated based upon the calculation below.
- The affiliate commission is 5% of a Completed Transaction fee (“Affiliate Commission”).
- Affiliate Commission will only be paid for a Completed Transaction within the Cookie Window. The Cookie Window is fourteen (14) days.
- The Affiliate Commission will be offset with respect to each Completed Transaction for which (a) MagikFlame issues discounts, credits or allowances, or (b) there is a chargeback issued against the MagikFlame for any payment previously credited to the MagikFlame.
- All fees payable by MagikFlame under this Agreement are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on such amounts. You shall be responsible for any taxes imposed on, or with respect to, your income, revenues, gross receipts, personnel, or real or personal property, or other assets.
- MagikFlame reserves the right to refuse an attempted purchase by any person, in our sole discretion. You shall have no claim to any Affiliate Commission based on our decision to not complete a transaction with any person who accesses the MagikFlame Site through a Referral Link on the Affiliate Site.
- Affiliate Commissions will accrue and only become payable once you (i) provide all relevant tax and address documentation and (ii) reach the Affiliate Commission threshold of fifty dollars ($50 USD). Payments are disbursed on first of the month of the following month that the fifty-dollar threshold was reached.
- If after twelve (12) months from the date you entered into this Agreement, you have not reached the fifty-dollar threshold, MagikFlame will process a one-time payout of your remaining account balance and terminate this Agreement.
- Payments are processed only through PayPal. You are responsible for providing and maintaining accurate PayPal account information necessary to receive Affiliate Commissions. MagikFlame is not responsible for inaccuracies in your PayPal account information.
- If your account is terminated due to violation of this Agreement, MagikFlame reserves the right to withhold all future payments owed to you.
- It is solely your responsibility to provide MagikFlame with accurate tax and payment information that is necessary to issue an Affiliate Commission to you. If MagikFlame does not receive the necessary tax or payment information within ninety (90) days of a Completed Transaction which would otherwise trigger Affiliate Commission fees, the applicable commissions shall not accrue and Affiliate Commission will be owed with respect to such Completed Transaction.
- Each affiliate is required to submit a W8/W9 tax form before any Affiliate Commission shall accrue. You are responsible for the payment of all taxes related to the commissions you receive under this Agreement. In compliance with U.S. tax laws, MagikFlame will issue a Form 1099 to affiliates whose earnings meet or exceed the applicable threshold.
- Subject to and in accordance with the terms and conditions of this Agreement, MagikFlame grants you a limited, non-transferable, non-sublicensable, non-exclusive license during the Term to use, solely in connection with your use of Referral Links: (i) to use MagikFlame’s trademark and logo and similar identifying material provided by us (collectively, the “Licensed Materials”), for the sole purpose of selling MagikFlame products and services on your Affiliate Site and as approved in advance by us. You may not alter, modify, or change the Licensed Materials in any way. You may not use the Licensed Materials independently of the Referral Links for any purpose without the MagikFlame’s express written consent; and you may not use or present the Referral Links in any manner that suggests the endorsement of or by any other goods, services, persons or entities without the express written consent of the MagikFlame. You are only entitled to use the Licensed Materials while you are an Affiliate in good standing and in compliance with all of the terms of this Agreement.
- You hereby grant us a non-exclusive, non-transferable, revocable right to use your names, titles, and logos in the advertising, marketing, promoting, and publicizing in any manner of our rights under these Terms. However, we are under no obligation to advertise, market, promote, or publicize.
- We both agree not to use the other’s proprietary materials in any manner that is disparaging or that otherwise portrays the other in a negative light. We each reserve all of our respective rights in the proprietary materials covered by this license.
- MagikFlame grants no other right or license to you by implication, estoppel, or otherwise. You acknowledge that MagikFlame owns all right, title, and interest in, to, and under all its Licensed Materials and intellectual property rights and that Affiliate shall not acquire any proprietary rights therein. Any use by you of any of Licensed Materials and all goodwill associated therewith shall inure to the benefit of MagikFlame.
Term and Termination
- This Agreement shall commence upon the last signing by a Party and may be terminated by either Party upon written notice to the other, with or without cause.
- MagikFlame reserves the right to remove an affiliate from the Affiliate Program, and to terminate or suspend this Agreement, at any time for any reason, in MagikFlame’s sole discretion. If we terminate this Agreement due to breach by you, no further Affiliate Commission shall be paid to you and you will immediately forfeit any right to any and all accrued Affiliate Commission.
- If you terminate, the Affiliate Commission due and owing to you shall be paid as provided herein.
- Regardless who terminates, upon termination, any and all rights and licenses granted by us to you shall immediately cease and you shall immediately stop using and remove any and all Referral Links and Licensed Material from the Affiliate Site.
- WE MAKE NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING MAGIKFLAME. ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
Limitation of Liability
- WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THESE AFFILIATE TERMS UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL OUR CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AFFILIATE AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AFFILIATE COMMMISSION PAID TO YOU UNDER THIS AGREEMENT.
- You agree to indemnify and hold harmless MagikFlame and its employees, representatives, agents, and affiliates, (“MagikFlame Indemnitees”) against any and all claims, suits, actions, or other proceedings brought against them based on or arising from any claim resulting from your breach of this Agreement. You will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by us in connection with or arising from any such claim, suit, action, or proceeding.
- The indemnification provisions within this section 9 specifically apply against any and all claims, suits, actions, or other proceedings brought against MagikFlame Indemnitees based on or arising from:
(a) any misleading, deceptive, or false use of Referral Links by you;
(b) any misrepresentation by, or breach of any covenant or warranty of yours contained in this Agreement;
(c) failure to comply with the terms of this Agreement by you or your agents;
(d) failure to comply with applicable law by you or your agents;
(e) defamation, libel, violation of privacy rights, unfair competition, or infringement of intellectual property rights or allegations thereof to the extent caused by you or your agents;
(f) failure to pay appropriate taxes for yourself or your agents (including withholding taxes, if any); or
(g) materials that infringe or violate the copyright or other intellectual property rights of any third-parties contained or promoted on the Affiliate Site.
- From time to time, we may update this Agreement to clarify our practices or to reflect new or different practices, and MagikFlame reserves the right in its sole discretion to modify and/or make changes to this Agreement at any time, at our sole discretion. If we make any material change to this Agreement, we will post such changes to the MagikFlame Site and we will send you an email prompting you to agree to our new Agreement. If any modification is unacceptable to you, your only option is to end your participation in the Affiliate Program by providing us with written notice of your termination of this Agreement. Your continued access to our Affiliate Program will be contingent on your acceptance of our updated Agreement. Any revised affiliate terms shall supersede all previous agreements.
Representation and Warranties
- You represent and warrant that:
(a) You are legally capable and authorized to enter into this Agreement; and, if you represent an entity, all actions necessary to authorize you to enter into this Agreement have been taken.
(b) Your acceptance of this Agreement and participation in the Affiliate Program will not violate (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.
(c) You are the sole and exclusive owner of the Affiliate Site and your participation in the Affiliate Program will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any third person or entity.
(d) You will not use the MagikFlame’s name or the Licensed Materials in any form of unsolicited communication, including unsolicited email (spam).
(e) Each referred Customer is valid, genuine, and unique and meets the criteria of a Completed Transaction for generating an Affiliate Commission Fee as provided in this Agreement.
- Each Party acknowledges that (i) a breach or threatened breach by such Party of any of its obligations under this Agreement would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (ii) if a breach or a threatened breach by such Party of any such obligations occurs, the other Party will, in addition to any and all other rights and remedies that may be available to such Party at law, at equity, or otherwise in respect of such breach, be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from, notwithstanding anything to the contrary contained herein, any court of competent jurisdiction, without any requirement to (1) post a bond or other security, or (2) prove actual damages or that monetary damages will not afford an adequate remedy.
- Each of the parties hereto agrees that all information including, without limitation, the terms of this Agreement, business and financial information, MagikFlame customer and vendor lists, or pricing and sales information (including without limitation Affiliate Commission rates), shall remain strictly confidential and shall not be utilized for any purpose outside the terms of this Agreement except and solely to the extent that any such information is (a) already lawfully known to or independently developed by the receiving party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party not under any obligation of confidentiality to the disclosure hereunder. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information (a) pursuant to a valid subpoena or order issued by a court or administrative agency of competent jurisdiction, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process including, without limitation, the Securities Exchange Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. In the event of such disclosure, the receiving party shall give the disclosing party prior notice before releasing any information unless giving such notice is prohibited.
- This Agreement shall be governed by the laws of the State of Tennessee, without regard to its conflict of laws rules or principles.
- You may not assign this Agreement. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, this Agreement is binding upon and will inure to the benefit of the successors, heirs and permitted assigns of the Parties. This Agreement shall be binding upon the Parties and their successors, permitted assigns, heirs, affiliates, directors, shareholders, officers, employees and/or agents.
- Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such a provision or any other provision of this Agreement.
- Subject to the limitations and other provisions of this Agreement, Section 4, Section 5, Section 6, Section 7, Section 8, and Section 11 of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.
- This Agreement, including the related schedules attached hereto, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein and therein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
- No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such party’s (the “Impacted Party”) failure or delay is caused by or results from acts of God, flood, fire, earthquake, pandemics, and other similar events beyond the control of the Impacted Party.
Relationship of Parties
- Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the parties. Affiliate is an independent contractor pursuant to this Agreement. Neither party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.
- As an independent contractor, you are solely and exclusively responsible (i) for all taxes payable with respect to income earned through the Affiliate Program; (ii) to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and you are not covered by or eligible for any insurance from the MagikFlame; and (iii) for ensuring that you comply with any applicable laws and regulations.
- All notices, requests, consents, claims, demands, waivers, and other similar communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the signature page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this section).
- If this Agreement is ever construed, whether by a court or arbitrator, such court or arbitrator will not construe this Agreement, or any provision hereof, against any party as drafter. The headings used herein are for convenience only and shall not be deemed to define, limit or construe the contents of any provision of this Agreement.