Affiliate Agreement
This agreement contains the complete terms
and conditions between us, Excalibur Entertainment Inc., and you, the applicant,
regarding your application to participate in the Excalibur Films' Movie
Film Fest Affiliate Program (the "Program"). Upon Excalibur Films acceptance
of your application and your execution of this agreement in the place provided
below, this will be a legally binding agreement between you and us.
1. Enrollment in the
Program
To become a participant in the Program,
you must properly complete an Affiliate Application and submit the application
plus this signed Program to us via U.S. Mail:
Excalibur Films
578 Explorer St.
Brea, CA 92821-3108
We will then review your application and
Web site and will notify you as to our decision in a timely manner. We
will have the right to accept or reject your application at our sole discretion,
with or without reason. Applications will not be accepted from any applicant
operating a website that contains any of the following: (i) speech or images
that are offensive, profane, hateful, threatening, harmful, defamatory,
libelous, harassing or discriminatory (whether based on race, ethnicity,
creed, religion, gender, sexual orientation, physical disability or otherwise),
(ii) graphic violence, (iii) content related to drugs, gambling or crime,
(iv) any unlawful behavior or conduct. If we reject your application, you
are welcome to reapply to the Program at any time in the future.
2. Commission Computation
and Payment
On a quarterly basis, we hereby agree
to pay you 10% commissions on Purchase Amounts derived from Affiliate-Generated
Purchases. An "Affiliate-Generated Purchase" occurs when a customer follows
a properly coded Link (as defined below) from your site to our site, selects
and purchases a product from our site using our ordering system, accepts
delivery of the product at the shipping destination, and remits full payment
to us. An Affiliate-Generated Purchase will not include any products that
are added to a customer's "Shopping Cart" on our site after the customer
has exited and reentered our site (other than through a properly coded
Link from your site to our site), even if the customer previously followed
a Link from your site to our site. "Purchase Amount" means the gross sales
of your Affiliate-Generated Purchases minus shipping charges, gift-wrapping
charges, taxes, coupons or other discounts and product returns related
to such gross sales. Our determinations of the commissions payable to you
will be final and binding on you.
Your commissions and bonuses are for your
use only and therefore may not be offered, directly or indirectly, in whole
or in part, to our customers in the form of rebates, coupons, commissions
or refunds.
3. Commission Payment
Schedule
We will pay your commission and bonus
on a quarterly basis. Within approximately 30 days following the end of
each calendar quarter, we will send you a check for the commission earned
on the Purchase Amount for products that were shipped during that quarter.
If a video sale that generated a commission or bonus payment is returned
by the customer, we will deduct the corresponding commission and/or bonus
from your next quarterly payment or, if there is no subsequent payment,
we will send you a bill for the amount we overpaid you, which will be payable
promptly upon receipt.
4. Grant of Limited
License Agreement by Excalibur Entertainment Inc. to Affiliate
During the Term, you agree that you will
place on your website the links approved by us and made available
to you via our Program website ("Links"), and you will code all Links to
our website in the manner specified by us.
During the Term (as defined below) of
this agreement, we grant to you a nonexclusive, revocable, non-transferable,
non-sublicenseable right and license to use within the United States (a)
the Links for the sole purpose of displaying the Links on your website
with the URL specified in your application in order to connect that site
to our site and (b) our other names, marks or symbols (the "Licensed Materials")
for the sole purpose of advertising, promoting or marketing your affiliate
relationship with us.
Use of Licensed Materials: The approval
or disapproval of such materials will be in our sole discretion. You will
use the Links and the Licensed Materials only in the exact form, style
and type approved by us, and you will include with the Links and the Licensed
Materials such copyright, trademark or other notices as may be required
by law or requested by us. We will have the right to alter, modify or discontinue
the use of any of the Links or the Licensed Materials or the form, style
or type thereof at any time in our sole discretion.
In addition to the foregoing control measures,
we may implement additional control measures to protect our intellectual
property rights in the Links and the Licensed Materials, and you agree
to cooperate with us in our efforts to protect such intellectual property
rights. You further agree to maintain a level of quality in connection
with your use of the Links and the Licensed Materials that is consistent
with general industry standards, and you acknowledge that we will periodically
monitor your use of the Links and the Licensed Materials to confirm your
maintenance of such quality levels.
You acknowledge that, except for the license
expressly granted in this agreement, you have not acquired and will not
acquire any right, interest or title to the Links or the Licensed Materials
by reason of this agreement or through the exercise of any rights in the
Links or the Licensed Materials granted to you hereunder. You further acknowledge
that all proprietary rights in the Links and the Licensed Materials and
the goodwill associated therewith are solely owned by and belong to us,
and that all additional goodwill associated with the Links and the Licensed
Materials created through their use by you will inure to our sole benefit.
As between you and us, we will be considered the creator of the Links and
the Licensed Materials, and all rights in the Links and the Licensed Materials
will be our property. In addition, you hereby grant, assign and convey
to us any and all rights you may now have or may be deemed to have in the
future with respect to the Links and the Licensed Materials or any portion
of them. You agree not to register or attempt to register any brand, names,
marks, or other elements of the Links or the Licensed Materials as a trademark,
service mark, Internet domain name, trade name, or any similar trademarks
or name, with any domestic or foreign governmental or quasi-governmental
authority which would be likely to cause confusion with any of the Links
or the Licensed Materials. You agree not to commit any act that would cause
any of the Links or the Licensed Materials to vest in the public domain
anywhere in the World. Other than as set forth in this agreement, you shall
make no use of the Links or the Licensed Materials or of any designation
similar to any of the Links or the Licensed Materials without our prior
written consent.
You further agree that you will not have
the right to, and you will not, (a) use any method other than the Links
for the purpose of identifying your site as a member of the Program and
establishing a link from your site to ours; (b) use the Links or the Licensed
Materials in connection or association with any matter that falls within
any of the categories listed in subclauses (i) through (iv) of Section
1 of this agreement; (d) use the Links or the Licensed Materials or any
other names, marks, symbols, copyrights, logos, designs, representations,
figures, drawings, photographs, ideas or other proprietary designations
or properties owned, developed, licensed or created by us, except as expressly
permitted by this agreement; (e) use the Links or the Licensed Materials
as your own property; or (f) use the Links or the Licensed Materials in
connection with, in any manner or form, the names, marks, signs, symbols,
products, services, logos or other proprietary designations or properties
of any third parties. You further agree that you will not in any way misrepresent
our offers, policies or video product availability.
You shall promptly report to us if you
become aware of (a) any infringement of our intellectual property rights
relating to the Links or the Licensed Materials by any third party, (b)
any infringement by any such third party of any right granted under this
agreement and (c) any unauthorized copying or distribution of the Links
or the Licensed Materials or any component thereof by any third party.
5. Responsibilities
and Obligations of Affiliate
You agree that you will be solely responsible
for, and that you will defend, indemnify and hold us and our officers,
directors, agents, employees and representatives harmless from and against,
any and all claims, suits, damages, losses, liabilities, obligations, penalties
and expenses, including legal fees and expenses, relating to or based on
the development, operation and maintenance of your site, including all
materials that appear on your site; the technical operation of your site
and all related equipment; creating and posting video reviews, descriptions
and references on your site and linking those descriptions to our site;
the accuracy and propriety of materials posted on your site; the sale or
offering for sale, use or consumption of any products on your site; and
ensuring that materials posted on your site do not violate or infringe
upon the rights of any third party and are not libelous or otherwise illegal.
6. Term of the
Agreement
The "Term" of this Agreement will begin
upon our acceptance of your Program Application and will end on the date
this agreement is terminated by either party. Either you or we may terminate
this agreement at any time, with or without cause, by giving the other
party two days' written notice of termination. Upon the termination of
this agreement for any reason, you will immediately cease use of, and remove
from your site, all Links and Licensed Materials and any other names, reviews,
biographies, marks, symbols, copyrights, logos, fanciful or other characters,
designs, representations, figures, drawings, photographs, ideas or other
proprietary designations or properties owned, developed, licensed or created
by us and/or provided by or on behalf of us to you pursuant to this agreement
or in connection with the Program. Commissions and bonuses earned through
the end of the Term will remain payable only if the related orders are
not canceled or returned. We may withhold your final payment for a reasonable
time to ensure that the correct amount is paid.
7. Modification
to Agreement
We may modify any of the terms and conditions
contained in this agreement, at any time and in our sole discretion, by
posting a change notice or a new agreement on our site. Modifications may
include, for example, changes in the commission schedule, the bonus payments,
payment procedures and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE
TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED
PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR
NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
8. Limitation of
Liability
We will not be liable for indirect, special
or consequential damages (or any loss of revenue, profits or data) arising
in connection with this agreement or the Program, even if we have been
advised of the possibility of such damages. Further, our aggregate liability
arising with respect to this agreement and the Program will not exceed
the total commissions and bonuses paid or payable to you under this agreement.
9. Disclaimers
We make no express or implied warranties
or representations with respect to the Program or any products sold through
the Program (including, without limitation, warranties of fitness, merchantability,
noninfringement, or any implied warranties arising out of a course of performance,
dealing, or trade usage). In addition, we make no representation that the
operation of our site will be uninterrupted or error-free, and we will
not be liable for the consequences of any interruptions or errors.
10. Right of Independent
Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS
AGREEMENT, HAVE HAD AN OPPORTUNITY TO CONSULT WITH YOUR OWN LEGAL ADVISORS
IF YOU SO DESIRED, AND AGREE TO ALL THE TERMS AND CONDITIONS SET FORTH
HEREIN. YOU AGREE THAT, IN INTERPRETING THIS AGREEMENT, NO WEIGHT SHALL
BE PLACED UPON THE FACT THAT THIS AGREEMENT HAS BEEN DRAFTED BY US, AND
YOU SHALL NOT ASSERT THAT THIS AGREEMENT IS UNENFORCEABLE OR INVALID ON
THE GROUNDS THAT IT IS A CONTRACT OF ADHESION, THAT IT IS UNCONSCIONABLE
OR ANY SIMILAR THEORY. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY
OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM
THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR
TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE
DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY
REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH IN THIS
AGREEMENT.
11. Miscellaneous
The provisions contained in this agreement
constitute the entire agreement between the parties with respect to the
subject matter of this agreement, and no statement or inducement with respect
to such subject matter by any party which is not contained in this agreement
shall be valid or binding between the parties.
You may not assign or transfer this agreement
or any interest herein, nor shall the same be assignable by operation of
law, without our prior written consent. For this purpose, "assignment"
shall include any sale of a majority of the voting power of your capital
stock or any merger, consolidation or other comparable transaction following
which you are not the surviving corporation.
This agreement shall be governed by, and
construed in accordance with, the laws of the State of California. Any
legal proceeding of any nature brought by either party against the other
to enforce any right or obligation under this agreement, or arising out
of any matter pertaining to this agreement, shall be submitted for trial,
without jury, before the federal or state courts located in the city of
Fullerton, California. The parties consent and submit to the jurisdiction
of any such court and agree to accept service of process inside or outside
the State of California in any matter to be submitted to any such court
pursuant hereto.
No release, discharge or waiver of any
provision of this agreement will be enforceable against or binding upon
either party unless in writing and executed by the party granting such
release, discharge or waiver. Neither the failure to insist upon strict
performance of any of the agreements, terms, covenants or conditions hereof,
nor the acceptance of monies due hereunder with knowledge of a breach of
this agreement, shall be deemed a waiver of any rights or remedies that
either party may have or a waiver of any subsequent breach or default in
any of such agreements, terms, covenants and conditions.
If any term or provision of this agreement
shall be found to be void or contrary to law, such term or provision shall,
but only to the extent necessary to bring this agreement within the requirements
of law, be deemed to be severable from the other terms and provisions hereof,
and the remainder of this agreement shall be given effect as if the parties
had not included the severed term herein.
I hereby agree to all of the
terms and conditions stated above.
Click here to complete the form on-line. Or mail in the form below.
Signed:_______________________________________________
Name:________________________________________________
Company:_____________________________________________
Address:______________________________________________
City/State/Zip:___________________________________________
Web Site Name:________________________________________
Web Site URL:_________________________________________
E-Mail Address:_________________________________________
Fax:__________________________________________________
Phone Number:_________________________________________
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