KharmaPartners Standard Affiliate Agreement
This Standard Affiliate Agreement ("Agreement") contains the complete terms and conditions that apply to an individual's or entity's participation in the KharmaPartners (the "Website") affiliate program ("Affiliate Program"). As used in this Agreement, "we", "us" and "KharmaPartners" means the website KharmaPartners.com and its operator, Parabol LTD, and "you" and "Affiliate" mean the individual or entity which applies for affiliate payment in accordance with the terms and conditions herein.
GENERAL
1.1. This is the most recent version of the Agreement, as released and posted as of September 2007. This version modifies, replaces and supersedes all prior versions of this Agreement.
1.2. By marketing for and referring new Players to KharmaPartners through a Tracker, YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT. On your acceptance of this Agreement Online, we will automatically become counter-parties to this Agreement.
1.3. IF YOU DO NOT WISH TO ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN DO NOT PROMOTE KHARMAPARTNERS’ PRODUCTS.
DEFINITIONS
2.1. "Account" is the uniquely assigned account that is created for a Player when he/she opens an account at the Website.
2.2. "Affiliate Number" means the numeric code you are assigned when you sign up as a participant in the Affiliate Program.
2.3. "Affiliate Fee" is the amount due and payable to you, based solely on KharmaPartners' system data, in accordance with the payment plan you selected on the Affiliate Sign Up Form when signing up and/or activating additional Trackers.
2.4. "Banners and Text Links" means the graphical artwork or text that you use to hyperlink Players from your site to the Website.
2.5. "Revenue" is calculated as the sum total of all Players' contribution to all "rakes" for poker, “gamewin” for casino and bingo the Players were involved in while playing at one of KharmaPartners’ products, plus the sum total of all tournament "fees" paid by Players for entering either multi-table tournaments or Sit 'n Go's (SNGs), less any credits, bonus or promotional amounts given to Players, processing charges, charge backs, or any un-collectable revenue attributable to the Player. A Player's contribution to the "rakes" on the poker shall be determined as the quotient obtained when dividing the actual amount of each rake, in hands which such Player was dealt in, divided by the total number of persons playing at the table (“players”) at the start of the hand. On the casinos and bingos, the ‘gamewin’ is defined as all deposits minus withdrawals minus cash held in the wallets.
2.6. "Percentage Revenue Plan" means we pay you based on a percentage of the Revenue generated by Players.
2.7. "Fraud Traffic" means deposits, Revenue or traffic generated at the Website through illegal means or in bad faith to defraud us, regardless of whether or not it actually causes us harm. Fraud Traffic includes but is not limited to spam, false advertising, deposits generated on stolen credit cards, collusion, manipulation of the service, system, bonuses or promotions, offers to share the Affiliate Fee directly or indirectly with Players, and any other unauthorized use of any third party accounts, copyrights or trademarks.
2.8. "Monthly Revenue" means Revenue as calculated at the end of each calendar month for calculation of your Affiliate Fee, which is typically paid shortly after the end of each calendar month.
2.9. "CPA Plan" or "Cost Per Acquisition Plan" means we pay you based on the number of Real Money Players that make a minimum deposit of $50 and accumulate 250 Raked hands after opening an account at CarlosPoker, or wager the deposited amount at least two (2) times for the bingo and casino via a Tracker assigned to you.
2.10. "Player(s)" or "Player's Account" means the Account(s) opened at KharmaPartners by Real Money Players via a Tracker assigned to you. Real Money Players are defined as persons who make the minimum required deposit within 60 days of opening the Account.
2.11. "Bonus Codes" are unique alphanumeric codes that Players may enter when opening an Account. When entered, the system automatically logs the Bonus Codes and records you as the Affiliate. To encourage potential Players to use Bonus Codes, extra cash or other Bonus Incentives may be given to Players that enter Bonus Codes.
2.12. "Bonus Incentives" are special offers to Players that give them extra cash or giveaways when they enter a Bonus Code when opening an account or making a real money deposit.
2.13. "Website" means the KharmaPartners products located at, http://www.KharmaPartners.com and its related pages as well as the downloadable application for playing multi-player poker.
2.14. "Spam" or "Unsolicited Promotions" means emails or any other messages that are circulated by you, directly or indirectly, including messages that are posted on newsgroups, chat boards and other types of Online forums and which: 1), are directed at people who have not consented to receiving promotional messages from you; 2) contain false or misleading statements; 3), do not truthfully identify the source or the originating IP Address; or 4), do not provide the recipient with an option to easily "Remove" them from receiving future mailings or promotions.
2.15. "Tracker(s)" means the unique Tracking Codes or Bonus Code(s) that we provide exclusively to you, through which we track and calculate Affiliate Fees.
2.16. "Tracking Code" means a unique hyperlink (URL) to KharmaPartners through which you refer potential Players from your Website. When the Player opens his/her Account, the system automatically logs the Tracking Code and records you as the Affiliate.
2.17. "Carlos Poker Professional(s)" means those professional poker players and celebrities who are involved with the professional celebrity endorsement of the Website, including, but not limited to, those individuals whose names, voices, and/or likenesses which appear on the Website and in other duly authorized Website banners.
2.18. "Sub-Affiliate" means a person that you have referred to (and that has successfully joined) the Affiliate Network in accordance with the terms of this Agreement.
2.19. "Sub-Affiliate Accruals" means the Affiliate Accruals due to any Sub-Affiliate as set out in their chosen payment plan.
TERMS & CONDITIONS
3.1. Identity and Disclosure. You must provide true and complete information to us at all times; including but not limited to, your identity, contact information, payment instructions, nationality, residency, location and nature of your marketing activities, and any other information that we may request from time to time.
3.2. Marketing Activities and Responsibilities. You will, at your own cost and expense, market to and refer potential Players to the Website. You will be solely responsible for the content and manner of your marketing activities. All marketing activities must be professional, proper and lawful under applicable rules or laws. You represent and warrant that you will not place Banners or Text Links to us on any website, or use any media or medium, which is libellous, discriminatory, obscene, unlawful or otherwise unsuitable or which contains sexually explicit, pornographic, obscene or graphically violent materials. You will not actively target your marketing to any persons who are less than 18 years of age, regardless of the age of majority in the location you are marketing. You will not use Spam, Adware or Spyware in your marketing attempts. Violation of this provision will cause you to forfeit all Affiliate Fees that you have earned.
3.3. Approved Marketing Materials. You will only use the Banners and Text Links and any other marketing materials that have been provided by us and/or pre-approved by us (collectively the "Marketing Materials"). You will not modify the Marketing Materials without our prior written consent. During the term of this Agreement, we grant you a terminable, non-exclusive, non-transferable right to use the Marketing Materials for the sole purpose of marketing to and referring potential Players to the Website. Generally we will provide you, without charge, the guidelines, graphical artwork and permitted text to use in promotional materials. However, CDs and other customized promotional materials provided to you will be AT COST and deducted from Affiliate Fees payable to you. Under no circumstance are you allowed to use the Marketing Materials and any other promotional materials provided by us in a manner that may potentially confuse a potential Player. Violation of this provision will cause you to forfeit all Affiliate Fees that you have earned.
3.4. Competitive Marketing. For the avoidance of doubt, it is hereby clarified that you shall not be entitled to market to potential Players on any Internet site on which we promote the Website; or in any other manner which results in you competing with us in relation to the promotion of the Website. In the event that you are in breach of the foregoing provisions, we reserve the right to render the Tracking Code(s) assigned to you inoperative and you will forfeit all Affiliate Fees that you have earned.
3.5. Non Assignment. Trackers are for your sole use and are not to be assigned to others without our written consent.
3.6. Commercial Use Only. This Marketing opportunity is for commercial use only, and you may not sign up or make deposits to any Account, directly or indirectly, through your Tracker(s) for your own personal use, to fraudulently increase the Affiliate Fees payable to you or to otherwise defraud us. In no event are you to receive Affiliate Fees on Revenue generated on your own Player Account. Violation of this provision constitutes Fraud Traffic and will grant to us the right to immediately terminate this Agreement and you will forfeit all Affiliate Fees that you have earned.
3.7. Good Faith Marketing. You will not knowingly or unknowingly benefit from any known, unknown, suspected or unsuspected Fraud Traffic. For clarity, we reserve the right to withhold or back out amounts generated by Fraud Traffic from Affiliate Fees on the Trackers, regardless of whether you participated in or knew about the Fraud Traffic. In the event that we determine that you have knowingly participated in, or knowingly benefited from, Fraud Traffic with the intent to defraud us, then we may terminate this Agreement effective immediately and you will forfeit all Affiliate Fees that you have earned.
3.8. Player Information. By opening an Account at the Website, Players will be subject to all of our rules, policies and operating procedures that govern their activity at the Website. We reserve the right to refuse service to any potential Player and to close the Account of any Player, at any time, in our sole discretion. All data relating to the Players will remain our sole and exclusive property and you acquire no right to such information, except as expressly stated herein.
3.9. Sub-Affiliates. You may refer other persons to us so that they may also apply to join our Affiliate Network. If any such person successfully joins our Affiliate Network we will pay you in respect of the activities of such Sub-Affiliate in accordance with the Payment Plan, provided that you register them through the "Register Sub-Affiliate" function within the Affiliate Area of the Website. You will only receive credit for sub-affiliates which comply with all applicable terms of this Agreement. Any person registered as an Affiliate cannot subsequently be reclassified as a Sub-Affiliate. You shall not:
Register yourself or any person controlled by you as your own Sub-Affiliate.
Use fictitious or alias names for the registration of Sub-Affiliates.
Offer any type of enticement of money or otherwise of monetary value or otherwise to potential Sub-Affiliates unless such enticements are approved in writing by us, including any so-called “rake-back” schemes where a proportion of the player’s rake is returned to the player in any form.
Attempt to introduce any addition or variation to our terms in relation to any potential Sub-Affiliate.
Receive Payment on behalf of your Sub-Affiliate(s) and for the avoidance of doubt, the payment and contractual relationship in regard to the Affiliate Network shall remain between the Sub-Affiliate and us.
REPORTS & PAYMENTS
4.1. Reports. We will track and report Player activity for purposes of calculating your Affiliate Fees. The form, content and frequency of the reports may vary from time to time at our sole discretion. At a minimum, you will receive a monthly report with your payment indicating the total amount of Monthly Revenue collected from Players that month per Tracker. As we deem appropriate, and at our sole discretion, we may distribute reports more frequently than monthly.
4.2. Affiliate Fees. Depending on which payment plan you signed up for (Revenue Percentage Plan versus CPA Plan), you will be paid in accordance with the amounts and/or percentages on the Affiliate Sign Up Form (as confirmed to you by E-mail). Notwithstanding the foregoing, we may elect to not accept your preferred payment plan and we shall notify you of such decision within seven (7) days of your application to join the Affiliate Program.
4.3. Time and Minimum Amount of Payment. Affiliate Fees will be paid and sent out to you within ten (10) days of the close of each calendar month, except that, if the total amount due is less than USD$50, the balance will be carried over and added to the next month's Affiliate Fees until the total amount is more than USD$50. In the event, the balance amount carried over does not total USD$50 within a consecutive three (3) month period, then the amount due will be voided and cancelled, and we may terminate this Agreement.
4.4. Holdover for Fraud Traffic. In the event of any activity deemed suspicious by us, in your Account or in multiple Accounts, then we may delay payment of the Affiliate Fees to you for up to one hundred and eighty (180) days to verify the relevant transactions and in the event that we determine the activity to constitute Fraud Traffic, we shall be entitled to recalculate or withhold your Affiliate Fees accordingly and in our sole discretion.
4.5. Method of Payment. All payments will be due and payable in United States Dollars only. At our sole discretion, and as we deem appropriate, we may accommodate other methods of payment. Any charges incurred for other methods of payment will be covered by you and deducted from your Affiliate Fee.
4.6. Player Tracking. You understand and agree that potential Players must link through a Tracking Code or enter a Bonus Code when they sign up in order for you to receive Affiliate Fees in relation to such potential Players. In no event are we liable for your failure to use the right Trackers, for potential Players' failure to properly enter Bonus Codes, or for system malfunctions that cause Trackers, Bonus Codes or hyperlinks to be deleted, corrupted or unusable.
4.7. Disputes. Deposit of payment, acceptance of payment transfer or acceptance of other payment by you will be deemed full and final settlement of Affiliate Fees due for the month indicated. Hence, if you disagree with the reports or amount payable, do NOT accept payment for such amount and immediately send us written notice of your dispute. Dispute notices must be in writing received within thirty (30) days of the end of each month for which payment is made, or your right to dispute such report or payment will be deemed waived and you shall have no claims in such regard.
4.8. Player Verification. Affiliate Fees in relation to new Players will be dispatched only following our verification and investigations concerning all new Players.
4.9. Negative Revenue: In the event that the Revenue quotient is a negative amount during any given period(s), such negative amount shall NOT be carried forward and deducted from the Revenue amount of the relevant subsequent period of time. In the event that the Revenue quotient is a negative amount for three (3) consecutive calendar months, we shall be entitled to terminate this Agreement.
4.10. Sub-Affiliate Accruals. Subject to Section 3.10, you will receive, in accordance with the Payment Plan, your commission on the Affiliate Accruals due and payable to your Sub-Affiliate(s) for Real Money Players they refer to our Sites.
TERM AND TERMINATION
5.1. Term and Termination. This Agreement will take effect when you receive your Trackers from us and when you start promoting the Website. This Agreement will be continuous until terminated. Notwithstanding the foregoing, and during a period of seven (7) days following your receipt from us of your Trackers, we reserve the right to refuse your application to join the Affiliate Program. In the event that we elect to refuse your application subsequent to your receipt of the Trackers, we shall notify you of the same and we shall be entitled to render the Trackers inoperative.
5.2. Termination By You. You may terminate this Agreement, with or without cause, immediately upon written notice to us. In addition, you may cease marketing the Website any time you want.
5.3. Termination By Us. We may terminate this Agreement, with or without cause, upon thirty (30) days written notice to you. Further, we may terminate this Agreement immediately, without notice, in the following events:
You materially breach this Agreement;
The total cumulative balance of Affiliate Fees due to you is less than USD$50 for three (3) consecutive months;
We determine, in our reasonable discretion, that you knowingly benefited from Fraud Traffic as set forth in Section 2.7 herein;
The total number of new Players introduced by you in a sixty-day period is less than 1;
We determine that you have used Spam, Adware, Spyware or have engaged in an unacceptable marketing technique as set forth in Section 3.2 herein.
5.4. Effect of Termination: The following will apply upon the effective date of termination:
You will cease promotional activity and all rights and licenses given to you under this Agreement will terminate immediately, except as expressly stated herein;
You will return all confidential information and cease use of any of our trade names, trademarks, service marks, logos, banners and other designations of KharmaPartners;
We may leave open, redirect or deactivate any Trackers in our sole discretion without any obligation to pay you on new Players who come in or would have come in on those Trackers;
We will continue to pay you Affiliate Fees for all existing Players who signed up through the effective date of termination and on any Revenue generated by these Players for as long as they continue to play in accordance with this Agreement and any other agreements to which they have agreed to. However, if this agreement is terminated due to your willful breach of the terms and conditions herein, then you will forfeit all Affiliate Fees that you have earned. If we suspect Fraud Traffic, we may withhold payments for up to one hundred eighty (180) days, from the original due date, to ensure that the payment is correct and that any fraud has been reversed out;
In the event we determine, in our reasonable discretion, that you knowingly participate in Fraud Traffic, as set forth in Section 2.7 herein, you will forfeit all Affiliate Fees that you have earned. You shall render permanently inoperative any URLs which were used by you under this Agreement where such URLs contain any combination of the words full, tilt, and poker.
LIABILITIES
6.1. No Warranties. WE DO NOT WARRANT THAT OUR SYSTEM, NETWORK, SOFTWARE OR HARDWARE (OR THAT PROVIDED TO US BY THIRD PARTIES) WILL BE ERROR-FREE OR UNINTERRUPTED. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE QUALITY, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR SUITABILITY OF OUR SYSTEM, NETWORK, SOFTWARE OR HARDWARE (OR THAT PROVIDED TO US BY THIRD PARTIES). WE (OR OUR PROVIDERS OR UNDERLYING VENDORS) ARE NOT REQUIRED TO MAINTAIN REDUNDANT SYSTEM(S), NETWORK, AND SOFTWARE OR HARDWARE.
6.2. Billing and Collection Limitations. We may in our sole discretion, with or without notice, use any available means to block or restrict certain Players, sign ups, deposits or play patterns so as to reduce the number of fraudulent, unprofitable transactions or for any reason whatsoever, including but not limited to daily or monthly purchase limits, address verification or negative and positive credit card databases. We do not guarantee or warrant the success of such fraud prevention efforts.
6.3. Liability Limitations. Our obligations under this Agreement do not constitute personal obligations of the directors, officers, employees or shareholders of Parabol LTD. Any liability arising under this Agreement will be satisfied solely from the revenues generated hereunder. Our liability is limited to direct damages, and in no event will we be liable for any indirect, special, incidental, consequential or punitive loss, injury or damage of any kind (regardless of whether we have been advised of the possibility of such loss).
6.4. Indemnification. You will defend, indemnify and hold us and our officers, directors, employees and representative harmless from and against any and all liabilities, losses, damages and costs, resulting from or arising from, your breach of this Agreement.
INDEPENDENT INVESTIGATION
7.1. Independent Investigation. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF MARKETING THE WEBSITE AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
7.2. Independent Research. You understand that gambling laws may vary from city to city, state to state and country to country. YOU HAVE INDEPENDENTLY EVALUATED THE LAWS IN YOUR LOCALE WHICH APPLY TO YOUR ACTIVITIES AND BELIEVE THAT YOU MAY PARTICIPATE IN OUR Affiliate Program WITHOUT VIOLATING ANY APPLICABLE RULES OR LAWS.
MISCELLANEOUS
8.1. Notices. All notices pertaining to this Agreement will be given by email as follows: to us at info@kharmapartners.com and, to you at address provided on the Affiliate Sign up Form (or as subsequently updated by you to us in the event of change).
8.2. Relationship of Parties. There is no relationship of exclusivity, partnership, joint venture, employment, agency or franchise between you or us under this Agreement. Neither party has the authority to bind the other or to incur any obligation on the other's behalf, except as expressly provided herein. Nothing in this Agreement will be construed to provide any rights, remedies or benefits to any person or entity not a party to this Agreement.
8.3. Non-Exclusive. You understands that we may at any time (directly or indirectly), enter into marketing terms with other Affiliates on the same or different terms as those provided to you herein and that such Affiliates may be similar, and even competitive, to you. You understand that we may re-direct traffic and users from our site to any other website that we deem appropriate in our sole discretion, without any additional compensation to you.
8.4. Confidentiality and Non Disclosure. As a marketer of the Website you will receive confidential information from us as to our marketing plans, marketing concepts, structure and payments. This information is confidential to us and constitutes our proprietary trade secrets. Therefore, you will not disclose this information to third parties without our express written consent.
8.5. Press. You may not issue any press release with respect to this Agreement or your participation in this Affiliate Program without our prior written consent.
8.6. Assignment. This Agreement and the rights and obligations hereunder may not be assigned by you without our express written consent.
8.7. Governing Law. The validity of this Agreement, its construction, interpretation, and enforcement, and the rights of the parties hereto will be determined under, governed by, and construed in accordance with the laws of Costa-Rica.
8.8. Arbitration. Any controversy or claim arising out of or relating to this Agreement, or breach of this Agreement, will be settled by binding arbitration, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. There will be one arbitrator, mutually agreeable to you and us, or if we/you cannot agree on an arbitrator, then one will be appointed by a court of competent jurisdiction. The losing party will pay all the expenses of the arbitration, including attorney's fees.
8.9. Force Majeure. The parties' obligations under this Agreement are subject to and neither party will be liable for, failure to perform, damage, or malfunction of any equipment, or any consequences thereof occasioned by or due to fire, flood, water, the elements, labor disputes, power failures, explosions, governmental actions, unavailability of transportation, acts or omission of third-parties, or any other causes beyond the party's reasonable control.
8.10. Severability/Waiver. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law but, if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such provision will be ineffective only to the extent of such invalidity, or unenforceability, without invalidating the remainder of this Agreement or any provision hereof. No waiver will be implied from conduct or failure to enforce any rights and must be in writing to be effective.
8.11. Modification. We may modify any of the terms of this Agreement at any time, in our sole discretion, by either (i) E-mailing you a change notice or (ii) by posting the new version of the Agreement on our Website. It is your responsibility to visit the Website frequently to make sure you are up to date with the latest version of the Agreement and its provisions. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE AFFILIATE PROGRAM FOLLOWING POSTING OR NOTICE OF CHANGE WILL BE DEEMED BINDING ACCEPTANCE OF THE MODIFICATION.
8.12. Entire Agreement. This Agreement embodies the complete agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes and pre-empts any prior understandings or agreements between the parties, written or oral, which may be related to the subject matter hereof. The headings in this Agreement are for convenience only and will have no effect on the construction of this Agreement.
IN WITNESS WHERE OF, you expressly agree to the terms and conditions of this Agreement by submitting the Affiliate Sign Up Form.