Stream Captain Affiliate Agreement
Last Updated: 2021/06/08
Introduction:
- This is our affiliate and partner agreement that allows us to work with you, the Captain, to sell skins (aka virtual goods) customized based on your brand, and to give you a revenue share for those sales!
- We tried to keep the agreement as simple as we could (as simple as our lawyers would let us 😀)
- The high level goal is that we have an agreement in place that allows us to partner with you to make skins and give you a revenue share, and that you have the rights to end that agreement whenever you want and we'll no longer sell those items.
- Of course, you'll always retain ownership of your brand, your logo, your name, and your likeness – you're just giving us the ability to make in-game items based off of them.
This Stream Captain Affiliate Agreement ("Agreement") contains the terms and conditions that govern your participation in the Stream Captain Affiliate Program ("Program"), which is operated by Stream Captain, Inc. and its affiliates (collectively, "we", "us", "our" or "Stream Captain"). Any person or entity that participates or attempts to participate in the Program (such person or entity, "you", or an "Affiliate") must accept this Agreement.
By registering for the Program, you have agreed to the terms and conditions of this Agreement, without change, and have entered into a legal contract between you and Stream Captain; provided, however, that this Agreement shall not be effective until we determine that you are eligible to participate in the Program as further described in Section 2. The Stream Captain Terms of Service (the "Terms of Service"), located at [captain.tv/terms], separately govern your use of the Services. To the extent there is any conflict between this Agreement and the Terms of Service, this Agreement will take precedence with regards to your participation in the Program. All capitalized terms not defined in this Agreement have the respective meanings set forth in the Terms of Service.
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Description of the Program.
The Program allows you to partner with us in the creation of certain Virtual Goods based on your Licensed Property (the "Custom Virtual Goods"), and to receive Program Fees in connection with the sale of such Custom Virtual Goods through the Services.
For the purposes of this Agreement and to be able to create a variety of virtual goods with you, your "Licensed Property" means your name, image, likeness, voice, usernames, handles, avatars, logos, designs, and other intellectual property belonging to you, along with your rights of publicity and goodwill.
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Eligibility and Compliance.
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General Eligibility. As part of the enrollment process into the Program, you must submit a complete and accurate Program application (including all forms, documents, or certifications as may be required to satisfy any tax obligations with respect to payments under this Agreement). If you are an individual, you must be at least 13 years of age. If you are between the ages of 13 and 18 (or between 13 and the age of legal majority in your country of residence), you may only participate in the Program under the supervision of a parent or legal guardian who agrees to be bound by this Agreement. We will evaluate your application and notify you of its acceptance or rejection. We will determine your eligibility at our sole discretion.
If we (a) reject your application or (b) terminate your account in connection with any violation or abuse, including, but not limited to any violations of the Terms of Service, you cannot attempt to re-join the Program without our advance written authorization.
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Compliance Requirements. You will ensure that the information in your Program application and otherwise associated with your account, including your email address and other contact information, is at all times complete, accurate, and up-to-date. You must comply with this Agreement and the Terms of Service, each as updated from time to time, in order to participate in the Program and to receive Program Fees (as defined below). Please read them carefully. You must promptly provide us with information that we request to verify your compliance with this Agreement.
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Violations. If you violate this Agreement or the Terms of Service, in addition to any other rights or remedies available to us, we reserve the right to withhold. Program Fees otherwise payable to you under this Agreement, that were a direct result of such violation.
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Program Fees.
You may be eligible to receive the following fees under this Agreement as part of the Program (collectively, the "Program Fees"):
Qualifying Purchases Stream Captain has the exclusive right to offer, promote, market, sell, and make available the Custom Virtual Goods to end users of our Services. We may offer such Custom Virtual Goods at such prices and subject to terms that are appropriate as determined by us in our sole discretion. Stream Captain has the exclusive right to collect the revenues from end users who have purchased Custom Virtual Goods.
For every such purchase of a Custom Virtual Good that is a Qualifying Purchase (as defined below), you will receive a fee (a "Purchase Fee") that will be calculated as a certain percentage as published by Stream Captain in the Supplemental Fees Statement, currently available at [https://www.streamraiders.com/supplemental-fees-statement/] or a successor website (as may be updated from time to time) (the "Supplemental Fees Statement"), of (a) the purchase price of such Custom Virtual Good, as such price was listed by Stream Captain at the time of the Qualifying Purchase and in the currency in which the Qualifying Purchase was made, less (b) any special discounts or promotions, taxes, service charges, rebates, payment processing fees (e.g. credit card processing fees) and any other related transaction and processing expenses. Calculation of and eligibility to receive Purchase Fees will be further subject to any limitations or clarifications set forth in the Supplemental Fees Statement.
A "Qualifying Purchase" of a Custom Virtual Good occurs when: (a) a user purchases a Custom Virtual Good(s) through our Services; and (b) Stream Captain receives a fully settled payment for the purchase by such user. If we pay you a Purchase Fee and later issue a refund or credit to the user for such Qualifying Purchase (or receive a chargeback related to the Qualifying Purchase), we may offset the amount of the Purchase Fee we previously paid you for such Qualifying Purchase against future Purchase Fees or other amounts that would otherwise be payable to you under this Agreement, or require you to remit that amount to us.
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Payment and Reporting.
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Payment Terms. Program Fees payable by Stream Captain to you will be paid to you on a monthly basis, within forty-five (45) days after the end of each calendar month, in United States Dollars, less (a) billing and payment costs (which may include monthly and pre-transaction processing charges and merchant bank fees); and (b) returns, refunds, chargebacks, discounts and credits; provided that you have timely delivered to Stream Captain all documentation necessary and appropriate to effectuate payment (e.g., W9, and the like). If we are obligated to pay you any Program Fees in a currency that is not United States Dollars, we will convert such Program Fees at an exchange rate that we or our bank determine, which may include fees and charges for the conversion. We will pay you any Program Fees in a payment method that you choose from the payment options that we will make available for the Program. To ensure proper payment, you are responsible for providing and maintaining accurate contact and payment information through the Services. Any changes to your contact and payment information will not be effective until at least seven days after submission to us. Stream Captain will not be obligated to make a payment if the total amount to be paid to you under this Agreement is less than $50 (the "Payment Threshold"), and may instead accrue such payment obligation until such time as its overall obligation to you is at least the Payment Threshold. If any excess payment has been made to you for any reason whatsoever, we reserve the right to adjust or offset the same against any subsequent fees payable to you under this Agreement.
If at any time there has been no substantial activity on your Program account for at least twelve consecutive months, and you have not earned at least $50 in Program Fees during that twelve month period, we will have the right, upon seven (7) days' written notice, to (i) close your inactive account and terminate this Agreement and (ii) deduct a maintenance fee from your remaining balance. The maintenance fee will be the lesser of the accrued Program Fees in your account or $25. Any remaining balance will be paid to you.
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Reporting. We will provide you with access to our dashboard which will provide data relating to Program Fees ("Reporting Data"). You acknowledge and agree that all Reporting Data is and will at all times be exclusively owned by us and will remain our confidential information.
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Taxes. You may charge and we will pay applicable national, state or local sales or use taxes or value added taxes that you are legally obligated to charge ("Taxes"), provided that such Taxes are stated on the original invoice that you provide to us and your invoices state such Taxes separately and meet the requirements for a valid tax invoice. We may deduct or withhold any taxes that we may be legally obligated to deduct or withhold from any payment made to you under this Agreement, and payment to you as reduced by such deductions or withholdings will constitute full payment and settlement to you of such payment under this Agreement. Throughout your participation in the Program, you will provide us with any forms, documents, or certifications as may be required for us to satisfy any information reporting or withholding tax obligations with respect to any payments under this Agreement.
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License.
You hereby grant to Stream Captain and our successors and assigns the non-exclusive, worldwide license and right, during the Term, to use your Licensed Property (or elements thereof) (a) in the creation of Custom Virtual Goods for marketing and sale through our Services, including but not limited to the creation of characters, skins, emotes, and accessories, and (b) to sub-license to, or authorize, third parties to do the any of the foregoing, pursuant to the terms hereof. Other than as set out expressly in this Agreement or in the Terms of Service, neither party will acquire any right, title or interest in any intellectual property rights belonging to the other party or to the other party's licensors.
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Data Privacy.
You agree that our Privacy Policy (as may be updated from time to time) governs how we collect, use, and disclose your personal information. You acknowledge and agree that the information associated with any purchases through the Services or any uses of any Services belongs to Stream Captain.
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Representations and Warranties.
You represent, warrant, and covenant that (a) you are at least 13 years of age and have not been previously removed from or prohibited from receiving the Services, (b) you will participate in the Program in accordance with this Agreement, (c) your participation in the Program will not violate any applicable laws, ordinances, rules, regulations, orders, licenses, permits, industry standards, judgments, decisions, or other requirements of any applicable governmental authority (including all such rules governing communications and marketing), (d) you have the full corporate right, power and authority to enter into this Agreement and to perform the acts required hereunder; (e) you exclusively own all right, title and interest throughout the world in and to your Licensed Property; (f) your execution of this Agreement, and your performance of your obligations and duties hereunder, do not and will not violate any agreement to which you are a party or by which you are otherwise bound; and (g) the information you provide in connection with the Program is accurate and complete at all times. You can update your information by contacting us through the Services.
We do not make any representation, warranty, or covenant regarding the amount of Program Fees you can expect at any time in connection with the Program, and we will not be liable for any actions you undertake based on your expectations.
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Our Customers.
Our customers are not, by virtue of your participation in the Program, your customers. As between you and us, all pricing, terms of sale, rules, policies and operating procedures concerning customer orders, customer service and product sales set forth on the Services will apply to those customers, and we may change them at any time. You will not handle or address any contacts with any of our customers, and, if contacted by any of our customers for a matter relating to interaction with the Services, you will state that those customers must follow contact directions on the Services to address customer service issues.
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Term and Termination.
The term of this Agreement (the "Term") will begin upon our acceptance of your Program application and will end when terminated by either you or us. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice. We may withhold accrued unpaid Program Fees for a reasonable period of time following termination to ensure that the correct amount is paid (e.g., to account for any cancelations or returns). Upon any termination of this Agreement, all rights and obligations of the parties will be extinguished, except that (a) the rights and obligations of the parties under Sections 8 and 11-17 will survive the termination of this Agreement; and (b) the license provided in Section 5 shall no longer include a license to use the Licensed Property in the future sale of Custom Virtual Goods, but shall otherwise continue in full force and effect in perpetuity with respect to any Custom Virtual Goods already sold or otherwise associated with a customers' account as of the date of termination. If you terminate the Agreement and your earned balance equals or exceeds the Payment Threshold, we will pay you your earned balance within approximately 45 days after the end of the calendar month in which the Agreement is terminated, pursuant to Section 4.1. Any earned balance below the Payment Threshold will remain unpaid. No termination of this Agreement will relieve either party for any liability for any breach of, or liability accruing under, this Agreement prior to termination.
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Modifications.
Stream Captain reserves the right, at our discretion, to change, modify, add, or remove portions of this Agreement at any time (for example to reflect updates to the Services or to reflect changes in the law). If Stream Captain changes this Agreement, we will provide you notice of these changes, such as by sending an email, posting a notice on the Services or updating the "Last Updated" date above. Please check this Agreement periodically for those changes. Modifications may include, for example, changes to the Program Fees, Program eligibility, payment procedures, and other Program requirements. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE EFFECTIVE DATE OF ANY MODIFICATION (E.G., THE DATE OF OUR POSTING OF A CHANGE NOTICE OR REVISED AGREEMENT OR THE DATE SPECIFIED IN ANY EMAIL TO YOU REGARDING SUCH MODIFICATION) WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
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Disclaimers.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) THE PROGRAM AND THE CONTENT AND MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY STREAM CAPTAIN; (B) STREAM CAPTAIN, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE PROGRAM, INCLUDING ANY INFORMATION, CONTENT OR MATERIALS CONTAINED THEREIN; (C) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, STREAM CAPTAIN DOES NOT MAKE ANY REPRESENTATION OR WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM STREAM CAPTAIN FOR THE PROGRAM WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 11, THE TERM "STREAM CAPTAIN" INCLUDES STREAM CAPTAIN'S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.
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Indemnification.
You hereby release and agree to defend, hold harmless, and indemnify us, and/or our subsidiaries, affiliates, directors, officers, employees, agents, successors and assigns from and against any allegation or claim based on, or any loss, damage, settlement, cost, expense and any other liability (including but not limited to reasonable attorneys' fees incurred and/or those necessary to successfully establish the right to indemnification), arising from or related to: (a) any act or omission by you, including, without limitation any breach of this Agreement (including your representations and warranties in Section 7 above) or allegation or claim of negligence, strict liability, willful misconduct or fraud of you; or (b) your access to or use of the Program.
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Limitation of Liability.
NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE LIABLE TO YOU FOR LOST REVENUE, LOST PROFITS, LOST BUSINESS, OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THIS AGREEMENT OR THE PROGRAM. FURTHER, OUR AGGREGATE LIABILITY TO YOU, UNDER ANY THEORY OF LIABILITY, IN CONNECTION WITH THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.
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Relationship of Parties.
You and we are, and will remain at all times, independent contractors, and nothing in this Agreement will be construed to create an agency, employment, fiduciary, representative or any other relationship between you and us. You will not represent yourself to be an employee, representative, or agent of us. You understand and agree that you do not have authority to bind us in any manner, or enter into any agreement or incur any liability on behalf of us.
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Limitation of Liability.
Governing Law, Jurisdiction, and Venue. This Agreement is governed in accordance with the laws of the State of California, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the laws of the State of California to the rights and duties of the parties. Any legal suit, action or proceeding arising out of or relating to this Agreement by a party will be resolved by litigation in the courts located within the City and County of Santa Clara in the State of California. The parties hereby consent to the exclusive jurisdiction and venue of such courts, will accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to them.
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Arbitration.
Except for claims for injunctive relief by either party, any dispute or controversy arising out of, in relation to, or in connection with this Agreement or your participation in the Program shall be finally settled by binding arbitration in Santa Clara County, California under the then current rules of JAMS (formerly known as Judicial Arbitration & Mediation Services) by one (1) arbitrator appointed in accordance with such rules. Where arbitration is not required by this Agreement, the exclusive jurisdiction and venue of any action with respect to the subject matter of this Agreement will be the state and federal courts located in Santa Clara, California, and each of the parties hereto waives any objection to jurisdiction and venue in such courts. ANY DISPUTE RESOLUTION PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM, WHETHER IN ARBITRATION OR OTHERWISE, SHALL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, AND YOU EXPRESSLY AGREE THAT CLASS ACTION AND REPRESENTATIVE ACTION PROCEDURES SHALL NOT BE ASSERTED IN NOR APPLY TO ANY ARBITRATION PURSUANT TO THIS AGREEMENT. YOU ALSO AGREE NOT TO BRING ANY LEGAL ACTION, BASED UPON ANY LEGAL THEORY INCLUDING CONTRACT, TORT, EQUITY OR OTHERWISE, AGAINST STREAM CAPTAIN THAT IS MORE THAN ONE YEAR AFTER THE DATE OF THE APPLICABLE ORDER.
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Miscellaneous.
Waiver. The waiver by us of a breach of or a default under any provision of this Agreement will be in writing and will not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor will any delay or omission on our part to exercise or avail itself of any right or remedy that we have or may have hereunder operate as a waiver of any right or remedy.
Severability. Any determination that any provision of this Agreement, or any application thereof is invalid, illegal or unenforceable in any respect in any instance will not affect the validity, legality and enforceability of such provision in any other instance, or the validity, legality, or enforceability of any other provision of this Agreement, and such provision shall be deemed to be reinstated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law.
Captions and Section Headings. The captions and section and paragraph headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.
Entire Agreement. This Agreement contains the complete understanding between the parties with respect to their respective subject matter hereof and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and will not be modified except in writing, signed or otherwise agreed to by both parties, or by a change to this Agreement made by Stream Captain as set forth in Section 10 above.