Please read this Partner Agreement carefully. This is a legal document that explains the terms by which you may participate as a Cubebrush Partner. If you become a Partner on behalf of an organization or other entity, then "you" includes you and that entity, and you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these terms, and that you agree to these terms on the entity’s behalf. By becoming a Partner you are agreeing to be bound by the terms of this Agreement including the terms and conditions of Cubebrush's Terms of Service, the Cubebrush Distribution Agreement and all License Terms, as applicable.
The Cubebrush Partner Agreement ("Partner Agreement") is entered into as of the date (the "Effective Date") the party whose name is set forth below (the "Partner") accepts its terms and conditions by creating an account and is by and between Cubebrush, Inc. ("Cubebrush"), a Delaware corporation, and the Partner.
WHEREAS Cubebrush provides a proprietary online platform allowing independent creators around the world to easily open a digital storefont to share and sell pre-made digital assets or resources to online guests or registered users visiting the platform, and Partner operates the websites set forth below. The Parties desire to enter into this Partner Agreement to set forth the terms and conditions under which Partner will promote Cubebrush’s products and services on Partner’s Site(s). The Parties agree to the following:
For purposes of this Partner Agreement, the following terms will have the indicated definitions:
- Affiliate Links means embedded graphics, icons, text, or HTML code that contains a unique hypertext pointed to a Universal Resource Locator (URL) address on Cubebrush's Site.
- 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.
- Cubebrush's Site means the Cubebrush website and subdomains located at cubebrush.co.
- 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 Cubebrush and/or Partner.
- Qualified Customers means persons who make a purchase on Cubebrush's Site, excluding purchases on Partner's own storefront on Cubebrush, who are referred to Cubebrush’s Site by Partner and originated from Partner’s Site(s).
- Partner’s Site(s) means one or more websites or web services owned or controlled by the Partner, or upon which Partner has an account or membership, on which the Partner places Affiliate Links to Cubebrush’s Site. Partner represents and warrants to Cubebrush that it has sufficient right, title, interest, authority or permission, as applicable, to place Link(s) on the Partner’s Site(s) as described herein.
2. Trademark License Grant.
2.1. Grant to Partner. Subject to the terms and conditions of this Partner Agreement, Cubebrush grants to Partner a non-transferable, non-exclusive license to use Cubebrush’s Marks solely for the purpose of fulfilling Partner’s obligations hereunder.
2.2 No Other Rights. Except as expressly provided herein, Partner and Cubebrush 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.
c. Upon termination of this Partner Agreement for any reason, immediately cease all use of the other Party’s Marks.
3.1. Financial Compensation. Partner will earn financial compensation equal to 10% 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 product on the Cubebrush platform to Qualified Customers that occur within one (1) year from the Effective Date.
3.2. Excluded Sale means a sale to a Qualified Customer that has:
a. Followed links to the Cubebrush Site from other Cubebrush affiliates after following Partner’s link.
b. Used a different browser or computer for the purchase than was used to follow Partner’s link.
c. Cleared his or her cookies after following a link from Partner’s website.
3.3. Taxes. Both Partner and Cubebrush are responsible for payment of any/all of their respective taxes.
3.4. Payment. Unless otherwise agreed by the parties in writing, Cubebrush shall send payouts according to published timeframes and balance requirements. Payouts may only be made if the total processed amount due to you totals at least $20. Unpaid amounts due shall accrue until the following payout period in which the amount due is at least $20. Cubebrush reserves the right to withhold payment or charge back to your account any amounts otherwise due to us under these Terms, or amounts due to any breach of these Terms by you, pending Cubebrush's reasonable investigation of such breach. To ensure proper payment, you are solely responsible for providing and maintaining accurate contact and payment information associated with your account, which includes without limitation applicable tax information. If we believe that we are obligated to obtain tax information, and you do not provide this information to us after we have requested it, we may withhold your payments until you provide this information or otherwise satisfy us that you are not a person or entity from whom we are required to obtain tax information. Any third-party fees related to returned or canceled payments due to a contact or payment information error or omission may be deducted from the newly issued payment. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your participation in the Service. If you dispute any payment, you must notify Cubebrush in writing within thirty (30) days of such payment. Failure to so notify Cubebrush shall result in the waiver by you of any claim relating to such disputed payment. Payment shall be calculated solely based on records maintained by Cubebrush. No other measurements or statistics of any kind shall be accepted by Cubebrush or have any effect under these Terms. We may withhold any taxes or other amounts from payments due to you as required by law. To protect against the risk of liability, we may request that our payment service provider hold Partner funds based on certain factors, including, but not limited to, selling history, seller performance, or the filing of a dispute claim.
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.
5. Term and Termination.
5.1. Term. The term of this Partner 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 Partner agreement at any time with ten (10) days prior written notice.
5.2. Termination for Cause. If either Party defaults in the performance of any material provision of this Partner 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 Partner 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 Partner Agreement shall automatically terminate at the end of that period.
5.3. Termination for Insolvency and Related Events. This Partner Agreement shall terminate, without notice, (a) 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, (b) upon either Party’s making an assignment for the benefit of creditors, or (c) upon either Party’s dissolution or ceasing to do business.
5.4. Effect of Termination. Upon termination of this Partner Agreement, without limiting the generality of the foregoing, Partner will cease all display, advertising, and use of all of Cubebrush’s Marks and will not thereafter use, advertise, or display any such Marks unless otherwise agreed by Cubebrush in writing.
5.5 Survival of Certain Terms. The provisions of Section 1 and Sections 4-8 of this Partner Agreement shall survive the expiration or termination of this Partner Agreement for any reason. All other rights and obligations of the Parties shall cease upon termination of this Partner Agreement.
6. 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.
7. 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 CUBEBRUSH ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS PARTNER AGREEMENT EXCEED THE AMOUNTS PAID TO AFFILIATE UNDER THIS PARTNER AGREEMENT.
8.1 Independent Contractors. The relationship between you and Cubebrush, respectively, is that of licensor and licensee. 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.
8.2. Governing Law and Jurisdiction. This Partner 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 Orange County, California, U.S.A. for the adjudication of any disputes arising hereunder.
8.3. Assignment. Neither Party shall assign, delegate, or otherwise transfer its rights or obligations under this Partner 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 Cubebrush may assign this Partner Agreement freely in connection with a merger, acquisition, sale of substantially all of its assets or stock, financing, reorganization, or similar transaction. This Partner Agreement will inure to the benefit of the Parties and their permitted successors and assigns.
8.4. Merger, Modification and Waiver. This Partner Agreement constitutes the entire agreement between Cubebrush and Partner 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 Partner Agreement, nor any waiver of any rights under this Partner 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.
8.5. Severability. If any of the provisions of this Partner 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.
8.6. Counterparts. This Partner Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.