Welcome to Utopia VR’s program for independent affiliates, where you can manage your affiliate marketing relationship with Utopia VR and our Software As A Service offerings.
Any person or entity that participates or attempts to participate in our independent affiliate marketing program (the “Affiliates Program” and such person or entity, “you”, or an “Affiliate”) must accept this Affiliates Program Operating Agreement (this “Agreement”) without change. By registering for or using the Affiliates Site, you agree to this Agreement, including the program policies, which are incorporated by reference (for example, our Affiliates Program Participation Requirements, Affiliates Program IP License, Affiliates Program Commission Income Statement, and Affiliates Program Trademark Guidelines.) Please read them carefully.
The Independent Affiliates Program permits you to represent Utopia VR web-based SaaS products globally to individuals, small and medium-sized businesses and other organizations.
You must comply with this Agreement to participate in the Affiliates Program and receive commission income. If you violate this Agreement, then, in addition to any other rights or remedies available to us, we reserve the right to permanently (to the extent permitted by applicable law) cease payment of (and you agree you will not be eligible to receive) any and all commission income otherwise payable to you under this Agreement, whether or not directly related to such violation without notice and without prejudice to any right of Utopia VR to recover damages in excess of this amount.
Our customers are not, by virtue of your participation in the Independent Affiliates 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 Utopia VR website will apply to those customers and may be changed at any time. You will not handle nor address any of our customers, and, if contacted by any of our customers for a matter relating to interaction with a Utopia VR SaaS product, you will communicate that those customers must follow contact support directions on the Utopia VR website to address customer service issues.
You represent, warrant, and covenant that (a) you will participate in the Independent Affiliates Program and create, maintain, and operate your affiliate sales practices in accordance with this Agreement, (b) neither your participation in the Independent Affiliates Program nor your creation, maintenance, or operation of your sales practice will violate any applicable laws, ordinances, rules, regulations, orders, licenses, permits, guidelines, codes of practice, industry standards, self-regulatory rules, judgments, decisions, or other requirements of any governmental authority that has jurisdiction over you (including all such rules governing communications, data protection, advertising, and marketing), (c) you are lawfully able to enter into contracts (e.g. you are not a minor or otherwise legally prevented from contracting), (d) you have independently evaluated the desirability of participating in the Affiliates Program and are not relying on any representation, guarantee, or statement other than as expressly set forth in this Agreement, (e) you will not participate in the Affiliates Program nor use any other Service Offerings if you are the subject of Canada or U.S. sanctions or of sanctions consistent with U.S. or Canadian law imposed by the governments of the country where you are using any Service Offering; (f) the information you provide in connection with the Affiliates Program is accurate and complete at all times. You can update your information by logging into your account through the Utopia VR app por website and selecting “account settings”.
We do not make any representation, warranty, or covenant regarding the amount of sales or commission income you can expect at any time in connection with the Affiliates Program, and we will not be liable for any actions you undertake based on your expectations.
We recognize that Independent Affiliates will want to market their services, and by extension the many SaaS products offered by Utopia VR. This Agreement stipulates that any and all marketing done by the Affiliate must receive prior company approval and will, at no time make reference to Utopia VR or specify any of its products or services. It is the Independent Affiliate’s role to establish contact through various means at their disposal and introduce Utopia VR SaaS products and services in direct correspondence with the potential client. Any violation of this clause is considered serious and will result in the immediate termination of this Agreement and forfeiture of any commissions.
You must clearly and prominently state the following, or any substantially similar statement previously allowed under this Agreement, “As a Utopia VR Independent Affiliate I earn from qualifying purchases.” Except for this disclosure, and other than as required by applicable law, you will not make any public communication with respect to this Agreement or your participation in the Independent Affiliates Program without our advance written permission. You will not misrepresent or embellish our relationship with you (including by expressing or implying that we support, sponsor, or endorse you), or express or imply any affiliation between us and you or any other person or entity except as expressly permitted by this Agreement.
The term of this Agreement will begin upon your registration for or use of the Independent Affiliates Site. Either you or we may terminate this Agreement at any time, with or without cause (automatically and without recourse to the courts, if permitted under applicable law), by giving the other party written notice of termination provided that the effective date of such termination will be 7 calendar days from the date notice is provided. You can provide termination notice by logging into your account and selecting the option to close your account in “Account Settings”. In addition, we may terminate this Agreement or suspend your account immediately upon written notice to you for any of the following: (a) you are in material breach of this Agreement, (b) you otherwise fail to cure within 7 days of our notice to you regarding any other breach of this Agreement (including any Program Policy); (c) we believe that we may face potential claims or liability in connection with your participation in the Independent Affiliates Program; (d) we believe that our brand or reputation may be tarnished by you or in connection with your participation in the Independent Affiliates Program; (e) your participation in the Independent Affiliates Program has been used for deceptive, fraudulent or illegal activity; (f) we have previously terminated this Agreement (or suspended your account) with respect to you or other persons that we determine are affiliated with you or acting in concert with you for any reason, or (h) we have terminated the Independent Affiliates Program as we generally make it available to participants. For the avoidance of doubt and without limitation for purposes of the foregoing subsection (a) any violation of Section 5 and as specified in the Program Policies will be deemed a material breach of this Agreement.
We may hold accrued unpaid commission income for a reasonable period of time following termination to ensure that the correct amount is paid (for example, to account for any cancelations).
THE INDEPENDENT AFFILIATES PROGRAM, THE UTOPIA VR SITE, ANY PRODUCTS AND SERVICES OFFERED ON THE UTOPIA VR SITE, ANY SPECIAL LINKS, LINK FORMATS, CONTENT, THE PRODUCT ADVERTISING API, DATA FEED, PRODUCT ADVERTISING CONTENT, OUR AND OUR AFFILIATES’ DOMAIN NAMES, TRADEMARKS AND LOGOS (INCLUDING THE UTOPIA VR MARKS), AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INTELLECTUAL PROPERTY RIGHTS, INFORMATION AND CONTENT PROVIDED OR USED BY OR ON BEHALF OF US OR OUR AFFILIATES OR LICENSORS IN CONNECTION WITH THE AFFILIATES PROGRAM (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE OFFERINGS. WE AND OUR INDEPENDENT AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF ANY LAW, CUSTOM, COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME AND FROM TIME TO TIME. NEITHER WE NOR ANY OF OUR INDEPENDENT AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS.
NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, VIRUSES, MALICIOUS SOFTWARE, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR SITE OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE SERVICE OFFERINGS WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. FURTHER, NEITHER WE NOR ANY OF OUR INDEPENDENT AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH YOUR PARTICIPATION IN THE AFFILIATES PROGRAM, OR (Z) ANY TERMINATION OR SUSPENSION OF YOUR PARTICIPATION IN THE INDEPENDENT AFFILIATES PROGRAM. NOTHING IN THIS SECTION 7 WILL OPERATE TO EXCLUDE OR LIMIT WARRANTIES, LIABILITIES, OR REPRESENTATIONS THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
NEITHER WE NOR ANY OF OUR INDEPENDENT AFFILIATES OR LICENSORS WILL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA ARISING IN CONNECTION WITH THE SERVICE OFFERINGS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THE SERVICE OFFERINGS WILL NOT EXCEED THE TOTAL COMMISSION INCOME 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. YOU HEREBY WAIVE ANY RIGHT OR REMEDY IN EQUITY, INCLUDING THE RIGHT TO SEEK SPECIFIC PERFORMANCE, INJUNCTIVE OR OTHER EQUITABLE RELIEF IN CONNECTION WITH THIS AGREEMENT. NOTHING IN THIS PARAGRAPH WILL OPERATE TO LIMIT LIABILITIES THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE WILL HAVE NO LIABILITY FOR ANY MATTER DIRECTLY OR INDIRECTLY RELATING TO THE CREATION, MAINTENANCE, OR OPERATION OF YOUR INDEPENDENT SALES PRACTICE (INCLUDING YOUR USE OF ANY SERVICE OFFERING) OR YOUR VIOLATION OF THIS AGREEMENT, AND YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD US, OUR INDEPENDENT AFFILIATES AND LICENSORS, AND OUR AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AND REPRESENTATIVES, HARMLESS FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) RELATING TO (A) YOUR INDEPENDENT AFFILIATE PRACTICE (B) THE USE, DEVELOPMENT, DESIGN, MANUFACTURE, PRODUCTION, ADVERTISING, PROMOTION, OR MARKETING OF YOUR PRACTICE OR ANY UNAUTHORIZED MATERIALS, (C) YOUR USE OF ANY SERVICE OFFERING, WHETHER OR NOT SUCH USE IS AUTHORIZED BY OR VIOLATES THIS AGREEMENT OR APPLICABLE LAW, (D) YOUR VIOLATION OF ANY TERM OR CONDITION OF THIS AGREEMENT (INCLUDING ANY PROGRAM POLICY), (E) YOUR TAXES AND DUTIES OR THE COLLECTION, PAYMENT, OR FAILURE TO COLLECT OR PAY YOUR TAXES OR DUTIES, OR THE FAILURE TO MEET TAX REGISTRATION OBLIGATIONS OR DUTIES, OR (F) YOUR OR YOUR EMPLOYEES' OR CONTRACTORS’ NEGLIGENCE OR WILLFUL MISCONDUCT. WE OR OUR NOMINEE MAY TAKE LEGAL ACTION AND PERFORM ANY PROCEDURAL ACT ON BEHALF OF ANY UTOPIA VR PARTY, INCLUDING THROUGH SPECIAL MANDATE, TO EXERCISE OR DEFEND A LEGAL CLAIM OR FOR THE PROTECTION OF RIGHTS, INCLUDING FOR THE PURPOSE OF ENFORCING THIS SECTION.
Any dispute relating in any way to the Independent Affiliates Program or this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement, or your relationship with us or any of our affiliates will be subject to the governing law and disputes provision for British Columbia, Canada.
Any taxes and related obligations relating in any way to the Independent Affiliates Program or this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement, or your relationship with us or any of our affiliates will be subject to the tax provision for the province in which the Affiliate resides. All affiliates are responsible for properly reporting any income to your appropriate tax authorities in your jurisdiction as it relates to your permanent residency.
We may send you emails relating to the Independent Affiliates Program from time to time. In addition we may (a) monitor, record, use, and disclose information about your practice and your referred Utopia VR clients that we obtain in connection with your sales practice, (b) review, monitor, and otherwise investigate your practice to verify compliance with this Agreement.
You may not assign this Agreement, by operation of law or otherwise, without our express prior written approval. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
This Agreement incorporates, and you agree to comply with, the most up-to-date version of all policies, appendices, specifications, guidelines, schedules, and other rules referenced in this Agreement and any other policies that apply to tools, subprograms, and features made available to you under the Independent Affiliates Program (“Program Policies”), including any updates of the Program Policies from time to time. In the event of any conflict between this Agreement and any Program Policy, this Agreement will control. In the event of a conflict between this Agreement and your agreement with a Utopia VR affiliate under a separate affiliate marketing program that agreement will control with respect to such separate program. This Agreement (including the Program Policies) is the entire agreement between you and us regarding the Independent Affiliates Program and supersedes all prior agreements and discussions.
Whenever used in this Agreement, the terms “include(s)", “including”, and “for example” are used and intended without limitation.
Any information relating to Utopia VR or any of its affiliates that we provide or make accessible to you in connection with the Independent Affiliates Program that is not known to the general public or that reasonably should be considered to be confidential is Utopia VR’s “Confidential Information” and will remain Utopia VR’s exclusive property. You will use Confidential Information only to the extent reasonably necessary for your performance under this Agreement and ensure that all persons or entities who have access to Confidential Information in connection with your affiliate account will be made aware of and will comply with the obligations in this provision. You will not disclose Confidential Information to any third party (other than your affiliates bound by confidentiality obligations) and you will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement. This restriction will be in addition to the terms of any confidentiality or non-disclosure agreement between the parties and will apply for the term of the Agreement and 5 years after termination.
You and Utopia VR are independent entities, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and us or our respective affiliates. You will have no authority to make or accept any offers or representations on our or our affiliates’ behalf. If you authorize, assist, encourage, or facilitate another person or entity to take any action related to the subject matter of this Agreement, you will be deemed to have taken the action yourself.
Notwithstanding anything to the contrary herein, nothing in this Agreement will, or will be interpreted or construed to, induce or require any party hereto to act in any manner (including taking or failing to take any actions in connection with a transaction) which is inconsistent with or penalized under any U.S. or Canadian laws, regulations, rules or requirements that apply to any party to this Agreement.
We reserve the right to modify any of the terms and conditions contained in this Agreement at any time and in our sole discretion by posting a change notice, revised Agreement, or revised Program Policy on the Independent Affiliates Site or by sending notice of such modification to you by email to the primary email address then-currently affiliated with your Affiliates account.