YOU MAY PRINT THIS PAGE FOR YOUR RECORDS. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND EBOTANIQ.COM.AU (KHOTSO PTY LTD) BY SUBMITTING THE ONLINE APPLICATION YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.
This Agreement contains the complete terms and conditions that apply to you becoming an affiliate in Khotso Pty Ltd t/a eBotaniq.com.au Affiliate Program. The purpose of this Agreement is to allow HTML linking between your web site and the eBotaniq.com.au web site. Please note that throughout this Agreement, "we," "us," and "our" refer to Khotso Pty Ltd t/a eBotaniq.com.au and "you," "your," and "yours" refer to the Affiliate.
2. Affiliate Obligations
2.1. To begin the enrolment process, you will sign up by submitting the online application and/or downloading the HTML link(s). The fact that the applications are auto-approved does not imply that we may not re-evaluate your application at a later time. We reserve the right to reject your application at our sole discretion. We may cancel your application if we determine that your site is unsuitable for our Program, including if it:
2.1.1. Promotes indecent, obscene, lewd or any sexually explicit materials
2.1.2. Promotes violence
2.1.3. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
2.1.4. Promotes illegal activities
2.1.5. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law
2.1.6. Includes "eBotaniq" and or “Khotso” or variations or misspellings thereof in its domain name(s)
2.1.7. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us, in our sole discretion, or is likely to cause annoyance, inconvenience or anxiety to another internet user.
2.1.8. Contains software downloads that potentially enable diversions of commission from other affiliates in our program. Including but not limited to computer viruses, spyware, trojan horses or other malicious or harmful routines, programs or software , spam or unsolicited bulk email.
2.1.9. You may not create or design your website or any other website that you operate, explicitly or implied in a manner which resembles our website nor design your website in a manner which leads customers to believe you are eBotaniq.com.au or any other affiliated business.
2.2. As a member of the eBotaniq.com.au' Affiliate Program, you will have access to download HTML code (that provides for links to web pages within the eBotaniq.com.au web site) and banner creatives. In order for us to accurately keep track of all guest visits from your site to ours, you must use the HTML code that we provide for each banner, text link, or other affiliate link we provide you with.
2.3. eBotaniq.com.au reserves the right, at any time, to review your placement and approve the use of Your Links and may require that you change the placement or use, to comply with the guidelines provided to you.
2.4. The maintenance and the updating of your site will be your responsibility. We may monitor your site from time to time as necessary to make sure that it is up-to-date and maintained in accordance with our requirements.
2.5. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site. You must have express permission to use any person's copyrighted material, whether it be a writing, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person's copyrighted material or other intellectual property in violation of the law or any third party rights.
eBotaniq.com.au is not liable for any malfunction or failure of its systems, Site or service offering due to matters including, but not limited to the failure of our or any other suppliers software, hardware or communications technology, that results in loss of business to our Affiliates. It is your sole responsibility to understand and abide by any federal, state, local or foreign tax laws that may apply to your Affiliate commission payments. You understand that you may be required to provide a Tax Invoice or complete certain Australian Tax Office information reporting forms prior to your receipt of any monetary sums. You further understand that we may be required to provide information regarding your earnings to the ATO or any other foreign government agency that requests such information. It is the sole responsibility of the Affiliate to ensure they set up their Banners and Links with their own personalised Affiliate code. eBotaniq.com.au assumes no responsibility for incorrect code, and shall not be liable for any loss incurred as a result. Affiliate commission payments will be made each month on Verified Payment Triggers ONLY. A minimum balance of AUD10.00 is required before payment is made for Australian affiliates (AUD50.00 for international affiliates). Our Payment method is by either Direct Deposit into an Australian Bank account or posting of an Australian Dollar Cheque. If payment is required to an overseas entity, any bank fees applicable will be deducted from your commission due.
Either you or we may end this Agreement AT ANY TIME, with or without cause, by giving the other party written notice. Written notice can be in the form of mail, email or fax. In addition, this Agreement will terminate immediately upon any breach of this Agreement by you.
We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. In such event, you will be notified by email. Modifications may include, but are not limited to, changes in the payment procedures and eBotaniq.com.au Affiliate Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. Your continued participation in our Affiliate Program following the posting of the change notice or new Agreement on our site will indicate your agreement to the changes.
In respect of each Verified Payment Trigger, eBotaniq.com.au will make a Payment to the Affiliate, subject always to the other terms of the Agreement. eBotaniq.com.au will account to the Affiliate for all Payments due in respect of a calendar month before the end of the following calendar month, unless the amount due is less than AUD10.00, in which case the Payments may be held over to the next accounting date. If the Affiliate is registered for GST in Australia then:
1. all Payments amounts stated in or in relation to the Agreement or on the eBotaniq.com.au Website are stated inclusive of GST payable by eBotaniq.com.au to the Affiliate;
2. the Affiliate is solely responsible for accounting for such GST to the relevant tax authorities; and
3. the Affiliate must provide to eBotaniq.com.au within 30 days following the making of a Payment under this Clause  a valid GST receipt in respect of such Payment. If the eBotaniq.com.au is required by law to deduct withholding tax or any other taxes or duties from any Payments, then eBotaniq.com.au will deduct such amounts from the Payments before paying them to the Affiliate. No Payments will be due in respect of:
1. any amount received by eBotaniq.com.au by means of the fraudulent or unlawful use of a credit, debit or other payment card, or by any other fraudulent or unlawful means;
or 2. any purchases on the eBotaniq Website which are subsequently cancelled, refunded, reversed, or charged-back, and eBotaniq will be entitled to require re-payment of Payments made as a result of such visits, actions and purchases.
7. Promotion Restrictions
7.1. You are free to promote your own web sites, but naturally any promotion that mentions eBotaniq.com.au should be perceived by the public or the press as a joint effort. You should know that certain forms of advertising are always prohibited by eBotaniq.com.au. For example, advertising commonly referred to as "spamming" is unacceptable to us and could cause damage to our name. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the eBotaniq.com.au Affiliate Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation.
7.2. Affiliates that among other keywords or exclusively bid in their Pay-Per-Click campaigns on keywords such as eBotaniq ; khotso , and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords – and do not direct the traffic from such campaigns to their own website prior to re-directing it to ours, will be considered trademark violators, and will be banned from eBotaniq.com.au Affiliate Program. We will do everything possible to contact the affiliate prior to the ban. However, we reserve the right to expel any trademark violator from our affiliate program without prior notice, and on the first occurrence of such PPC bidding behaviour.
7.3. Affiliates are not prohibited from keying in prospect’s information into the lead form as long as the prospects’ information is real and true, and these are valid leads (i.e. sincerely interested in our products).
7.4. Affiliate shall not transmit any so-called “interstitials,” “Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited eBotaniq’s site (i.e., no page from our site or any eBotaniq.com.au content or branding is visible on the end-user’s screen). As used herein a. “Parasiteware™” and “Parasitic Marketing” shall mean an application that
(a) through accidental or direct intent causes the overwriting of affiliate and non affiliate commission tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email;
(b) intercepts searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines);
(c) set commission tracking cookies through loading of Merchant site in IFrames, hidden links and automatic pop ups that open Merchant.com’s site;
(d) targets text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing;
(e) removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on web sites 100% owned by the owner of the application.
8. Grant of Licenses
8.1. We grant to you a non-exclusive, non-transferable, revocable right to (i) access our site through HTML links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the "Licensed Materials") that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of eBotaniq.com.au Affiliate Program. You agree that all uses of the Licensed Materials will be on behalf of eBotaniq.com.au and the good will associated therewith will inure to the sole benefit of eBotaniq.com.au.
8.2. Each party agrees not to use the other's proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.
EBOTANIQ.COM.AU MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING EBOTANIQ.COM.AU SERVICE AND WEB SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF EBOTANIQ.COM.AU ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. 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. Representations and Warranties
You represent and warrant that:
10.1. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms;
10.2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;
10.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
11. Limitations of Liability
WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL EBOTANIQ.COM.AU (KHOTSO PTY LTD) CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT.
You hereby agree to indemnify and hold harmless eBotaniq.com.au.com, and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the affiliate trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site, including, without limitation, content therein not attributable to us.
All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement which is marked "Confidential," will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.
14.1. You agree that you are an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and Merchant.com. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on Your Site or any other of Your Site or otherwise, that reasonably would contradict anything in this Section.
14.2. Neither party may assign its rights or obligations under this Agreement to any party, except to a party who obtains all or substantially all of the business or assets of a third party.
14.3. This Agreement shall be governed by and interpreted in accordance with the laws of the New South Wales without regard to the conflicts of laws and principles thereof.
14.4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
14.5. This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
14.6. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
14.7. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.