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Web Affiliate Agreement
As used in this Agreement, the terms, “we,” “our” and “Excalibur” refer to Killer Baits. Inc Corporation and the terms “you”, “your” and “affiliate” refer to the undersigned.
Enrollment in the Program
To begin the enrollment process please submit a completed EXCALIBUR WEB AFFILIATE PROGRAM application via our web site and fax a signed copy of this agreement. After you submit a completed affiliate application via our website and have faxed your signed agreement, we will evaluate your application and notify you of your acceptance or rejection in a timely manner. Normal time for application approval is one week; this may be expedited according to the promptness in which we receive your application with all appropriate supporting documentation submitted.
Upon approval of your application a representative will contact you with further information to set up an account with us.
Using this Agreement You may apply to Excalibur’s Web Affiliate Programs for the opportunity to earn Payouts by promoting Excalibur in accordance with Excalibur’s Program terms and complying with this Agreement. Upon approval by Excalibur for acceptance into its Program, You may display (and remove) Links to Excalibur’s Web site or Web site content in accordance with Excalibur’s Program terms and this Agreement. An acceptance of You extends only to the entity, or individual, that enters into this Agreement with Killer Baits, Inc DBA Excalibur Products.
Publicity/Use of Our Name
Excalibur/Killer Baits Inc. (KBI) is the legal owner of the trade marks Excalibur®, Parallexx™, and ParaFlexx™, and as such has the legal right to control the places that its products are advertised in.
You may not create, publish, distribute, or print any material that makes reference to Excalibur or use our name or any of our trademarks, for any marketing or promotional materials, whether print, broadcast or electronic, without first submitting such material to Excalibur and receiving our written consent. All advertising, literature, etc. of Excalibur products must be pre-approved in writing by Excalibur. Excalibur is not responsible for any content or information other than that which is produced by Excalibur and which has not been altered or used inappropriately.
Relationship of Parties
The parties to this Agreement are Independent Contractors, and Nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Members of the Web Affiliate Program are “independent businesses” and are not considered to be employees or agents of Excalibur. As an independent business, you are in no way authorized to represent or to make claims for or in behalf of Excalibur, directly or indirectly, written or otherwise expressed, without previous written permission of Excalibur.
Relationship of Parties
The parties to this Agreement are Independent Contractors, and Nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Members of the Web Affiliate Program are “independent businesses” and are not considered to be employees or agents of Excalibur. As an independent business, you are in no way authorized to represent or to make claims for or in behalf of Excalibur, directly or indirectly, written or otherwise expressed, without previous written permission of Excalibur.
Program Terms
- Locations. You may not place Links to Excalibur’s Web site or Web site content in third party newsgroups, message boards, blogs, unsolicited email and other types of spam, link farms, counters, chatrooms, or guestbooks. Publishers using IRC channels, instant messages or similar Internet resources must designate their program as special requiring manual review and acceptance by Excalibur.
- Non-Bona Fide Transactions. You must promote Excalibur Products such that You do not mislead the Visitor, and such that the Links deliver bona fide Transactions by the Visitor to Excalibur’s web site from the Link. You shall not cause any Transactions to be made that are not in good faith, including, but not limited to, using any device, program, robot, Iframes, or hidden frames. You may or may not be compensated for Transactions where You or Your agent are the Visitor. Multiple Leads from the same individual, entity or IP address may be considered non-bona fide Transactions. You shall not earn Payouts for non-bona fide Transactions.
- Infringement. None of Your promotional activities may infringe an Excalibur’s proprietary rights (including but not limited to trademark rights), Excalibur/KBI’s proprietary rights, or a third party's proprietary rights.
- Updating Links. If Links to Excalibur’s web site or web content are changed or updated, upon notification You are obligated to update you Excalibur Links in order to earn Payouts.
Affiliate Obligations to Excalibur Products
- Accurate, Up-to-Date Information. You agree to provide Excalibur with accurate information about You and Your promotional methods, and to maintain up-to-date “Account” information (such as contact information, Web sites used, etc.). In Your Account, You must accurately, clearly and completely describe all promotional methods by selecting the appropriate descriptions and providing additional information when necessary. Some promotional methods will be designated by the system as “special”. Special programs are linked to promotional methods and practices considered unique and require manual approval and acceptance by Excalibur. Excalibur reserves the right to define any program as special.
- Use of Links. You represent and warrant that all promotional means used by You will not contain objectionable content (including but not limited to content that is misleading, libelous, defamatory, obscene, violent, bigoted, hate-oriented, illegal, and/or promoting illegal goods, services or activities), and that You will not mislead others. You agree to: (i) use ethical and legal business practices, (ii) comply with Excalibur’s Program terms and this Agreement, (iii) maintain a privacy policy on Your Web site and for any non-Web site based promotional method made available to Visitors. Excalibur must approve all of Your promotional activities and may deem Your promotional activities inappropriate and a material breach of this Agreement in Excalibur’s sole discretion. Our web affiliate quality department reviews Affiliate conduct and any suspected fraudulent, abusive or otherwise illegal content or activity by You through Your promotional methods, is grounds for immediate termination of this Agreement or deactivation of Your Account.
- Promotional Methods. You represent and warrant that You will not engage in and/or facilitate spamming, indiscriminate advertising or unsolicited commercial email or otherwise fail to comply with the CAN SPAM Act of 2003 (Public Law 108-187 or any successor legislation), and/or any other laws and/ or regulations that govern email marketing and/or communications. You represent and warrant that You will not engage in pop-up or pop-under advertising using any means involving third party properties and/or services (software). Pop up/unders are acceptable on a first party basis only when triggered by Your site content /site visit or by downloadable software applications for which You are the owner/operator. Pop up/unders delivered through downloadable software cannot engage in means that force clicks or perform redirects, or pop over a pay-per-click listing or natural search results.
- Privacy. You must conspicuously post Your privacy policy on Your Web site and otherwise make it available to all Visitors. Your privacy policy must comply with all laws and regulations regarding the privacy of Visitor information, be commercially reasonable, and fully and accurately disclose Your collection and use of Visitor information. You must fully and accurately disclose Your use of third party technology, use of cookies and options for discontinuing use of such cookies.
- Applicable Codes and Code Maintenance. In order for Excalibur to record the tracking of Visitors' Transactions resulting from clicks on Links to Excalibur promoted by You, You must include and maintain an Excalibur “Tracking Code” within the Advertiser's Links.
- Usage and Security of Account. You shall be responsible for all usage and activity on Your account and for loss, theft or unauthorized disclosure of Your password (other than through Excalibur’s negligent or willful conduct or omission). You shall provide Excalibur with prompt written notification of any known or suspected unauthorized use of Your Account or breach of the security of Your Account.
Excalibur’s Services to It’s Approved Web Affiliates
- Tracking Transactions and Payouts. Excalibur shall determine (where possible) actual Payouts that should be credited to Your Account. Excalibur may, in Excalibur’s sole discretion, apply an estimated amount of Payouts, if: You are referring Visitors to Excalibur as verified by clicks through Links to Excalibur’s web site with your Tracking Code.
- Charge-backs. Excalibur may apply a debit to Your Account in an amount equal to a Payout previously credited to Your Account in circumstances of : (i) product returns; (ii) duplicate entry or other clear error; (iii) non-bona fide Transactions; (iv) non-receipt of payment from, or refund of payment to, the Visitor by the Advertiser; or (v) Your failure to comply with Excalibur’s Web Affiliate Program terms. Charge-backs may be applied to Your Account at any time, including previous payment cycles.
- Support. Phone support is available by contacting our Web Affiliate Program Team during normal business operating hours, except holidays.
- Facilitating Payment of Payouts. Subject to other provisions in this Agreement, Excalibur shall credit Your Account with a Payout for each qualifying Transaction in accordance with the Excalibur’s Payout rate and Program terms for the relevant Transaction. On the 30/31sh day of each calendar month, Excalibur will issue to You any positive balance in Your Account for Transactions reported for the previous month, provided Your Account balance exceeds the required “Minimum Account Balance.” Excalibur shall have no obligation to make payment of any Payouts for which Excalibur has not received payment.
- Negative Accounts. You may have a negative balance if Your Account is debited amounts equivalent to previous Payouts for Charge-backs and You do not have an adequate Account balance to cover the Charge-back amounts. When You have a negative balance, You must immediately remit payment to Excalibur in an amount sufficient to bring Your Account to a zero balance, or Your Account is subject to 1.5% interest per month, compounded monthly.
Confidentiality
Obligations. You or Excalibur may provide the other with information that is confidential and proprietary to that party or a third party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential ("Confidential Information"). The receiving party agrees to make commercially reasonable efforts, but in no case no less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not include (even if designated by a party) information: (i) that is or becomes part of the public domain through no act or omission of the receiving party; (ii) that is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or (iii) that the receiving party had in its possession prior to the date of this Agreement. Upon termination of this Agreement, You must destroy or return to Excalibur any Confidential Information provided by Excalibur to You under this Agreement.
Term, Termination, Deactivation and Notices
- Term. This Agreement shall commence upon Your indication via signature of this agreement and by Excalibur’s approval of your application and shall continue until terminated in accordance with the terms of this Agreement. This Agreement may be terminated by either party. This Agreement may be terminated immediately upon notice for Your breach of this Agreement. Your Account may be deactivated during investigation of breach of this Agreement. If this Agreement is terminated based upon Your breach, You shall not be eligible to enter into a Agreement with Excalibur, and any attempt to do so shall be null and void.
- Termination by Excalibur. Excalibur may terminate You, one of Your Web sites, or Your ability to use a promotional method, from the Program for any or no reason. Additionally, Excalibur may terminate You from the Program for breach of a third party's proprietary rights, and/or diluting, tarnishing or blurring Excalibur’s trademarks, trade names, and/or service marks, or for Your material breach of this Program terms or of this Agreement.
- Termination of Programs and Offers. Programs and Offers may be discontinued at any time.
- Post-termination. Upon termination of this Agreement, any outstanding payments shall be paid by Excalibur to You within 90 days of the termination date, and any outstanding debit balance shall be paid by You to Excalibur within 30 days of termination of this Agreement. All payments are subject to recovery for Charge-backs. Upon termination of this Agreement, any permissions granted under this Agreement will terminate, and You must immediately remove all Links to Excalibur. Provisions of this Agreement that by their nature and context are intended to survive the termination of this Agreement shall survive the termination of this Agreement to the extent that and as long as is necessary to preserve a party's rights under this Agreement that accrued prior to termination.
Representations, Warranties, Disclaimers and Limitations
- Business Operations. Each party will make reasonable commercial efforts to keep its Web site operational during normal business hours. However, the parties agree that it is normal to have a certain amount of system downtime and agree not to hold each other or Your Advertisers liable for any of the consequences of such interruptions.
- Authority. Each party represents and warrants to the other party as to itself that the person executing this Agreement is authorized to do so on such party's behalf.
- Compliance with Laws. You are responsible for compliance with the requirements of all relevant legislation (including subordinate legislation and the rules of statutorily recognized regulatory authorities) in force or applicable in the United States or in any other applicable territory, and warrant that no promotion method used by You or the content of Your Web site(s) will render Excalibur liable to any proceedings whatsoever.
- Limitation of Liabilities. ANY OBLIGATION OR LIABILITY OF EXCALIBUR PROCUTS UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF YOUR PAYOUTS PAID TO YOU BY EXCALIBUR PROCUTS UNDER THIS AGREEMENT DURING THE YEAR PRECEDING THE CLAIM. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST THE OTHER PARTY TO THIS AGREEMENT MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. YOU AGREE THAT EXCALIBUR PROCUTS SHALL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A CLAIM BY ANOTHER PUBLISHER OR AN ADVERTISER, FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.
- Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EXCALIBUR PROCUTS DISCLAIMS ALL WARRANTIES IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT EXCALIBUR PROCUTS SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, OR (D) AGAINST INTERFERENCE WITH ENJOYMENT OF THE PUBLISHER'S INFORMATION OR WEB SITE. ALL 'INFORMATION' AND 'COMPUTER PROGRAMS' PROVIDED TO YOU IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. EXCALIBUR PROCUTS IS, UNDER NO CIRCUMSTANCES, RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY AFFFILIATE, OR SUCH AFFILIATES WEBB SITE(S), AND/OR THE CONTENT OF AN AFFILIATES WEB SITE.
- Remedies. No remedy or election shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
Miscellaneous
- Headings and References. Headings of Sections are for the convenience of reference only. Words indicated in quotes and capitalized signify an abbreviation or defined term for indicated words or terms, including those definitions contained in the opening paragraph.
- Choice of Law/Attorneys' Fees. This Agreement is governed by the laws of the State of California (USA), except for its conflict of law provisions. The exclusive forum for any actions related to this Agreement shall be in the state courts, and, to the extent that federal courts have exclusive jurisdiction, in Sacramento, California. The parties consent to such venue and jurisdiction and waive any right to a trial by jury. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys fees and costs. EXCALIBUR PROCUTS controls and operates its Web site from its offices in the USA and access or use where illegal is prohibited.
- Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
- Severability/Waiver. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining provisions of this Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify any invalidated provision to carry out the stated intentions in this Agreement. The waiver of any breach of any provision under this Agreement by any party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver.
- Entire Agreement, Assignment and Amendment. This Agreement, including the Introduction, contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement. This Agreement may only be altered, amended or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties or through a "click through" acknowledgement of assent. No interlineations to this Agreement shall be binding unless initialed by both parties. Notwithstanding the foregoing, EXCALIBUR PROCUTS shall have the right to change, modify or amend ("Change") this Agreement, in whole or in part, by posting a revised Agreement at least 14 days prior to the effective date of such Change.
Name of Affiliate or Company: ___________________________________________________________________
Contact Person: _____________________________________________________________________________
Description of School, Organization or Company: _____________________________________________________
__________________________________________________________________________________________
Address: ___________________________________________________________________________________
City: ____________________________________ State: _____________________ Zip: ___________________
Phone Number: ( )____________________ Web Address: _________________________________________
Other Web Sites Associated with you or your company: ________________________________________________
I/We agree to abide by the above requirements and restrictions.
Printed Name and Title: _______________________________________________________________________
Signature: ___________________________________________________ Date: __________________________
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