A.
Company is in the business of operating on-line
gaming websites.
B. Affiliate
desires to obtain from Company and Company
agrees to grant Affiliate the non-exclusive
right and license to advertise, market and
promote the Service, in accordance with the
following terms and conditions.
1 Grant of Promotion and Distribution
License
1.1 Company grants to Affiliate the
non-exclusive, non-transferable right and
license to distribute to Affiliate customers, in
accordance with the terms and conditions herein,
the specialized casino and gaming "Software"
(the "Software") which enables access to the
Service. Affiliate shall not under any
circumstances reverse engineer, disassemble,
recompile, or otherwise attempt to render source
code from the "Software", or to reproduce or
distribute the "Software" in source code format.
Affiliate acknowledges and agrees that the
"Software" is the proprietary property of
Company and that it embodies substantial
creative rights, confidential and proprietary
information, copyrights, trademarks and trade
secrets, all of which shall remain the exclusive
property of Company and/or its licensors.
Affiliate agrees to include such proprietary
rights notices, markings or legends on any
advertisements or promotional materials for the
"Software" as Company shall reasonably specify
from time to time.
1.2 No payment will be made to Affiliate for
customers who utilize Company’s play-for-fun
services.
2 Obligations of Company
2.1 Company
will provide access to; (a) casino style games wagering (b) merchant accounts,
(c) credit card authorization, (d) billing fraud
control, (e) player deposits, (f) commission
earnings and reports, all in accordance with
standard practices and procedures. The choice of
content for the Service, and the choice of
persons retained to deliver the Services, shall
be determined by Company in its sole discretion.
2.2 Company shall retain the right to provide
the Service in whatever format Company deems
appropriate.
2.3 Company shall retain the right to cancel
any part of the Service at any time, without
notice to Affiliate, in whatever manner Company
deems appropriate.
2.4 Notwithstanding anything in this
Agreement, Company shall not be held responsible
or liable for any loss of income or loss of
ability to produce income, on the part of the
Affiliate, arising from any inability of Company
to deliver the Services contemplated in this
Agreement for any reason whatsoever, whether
Company is at fault or whether a third party is
at fault.
3 Obligations of Affiliate
3.1 Affiliate
shall use best commercially reasonable efforts
to actively and effectively advertise, market
and promote the Service as widely and
aggressively as possible so as to maximize the
financial benefit to Affiliate and to Company.
Affiliate shall only engage in advertising,
marketing and promotional efforts which do not
violate any law and which reflect positively
upon the business reputation of Company and its
operations. In particular, Affiliate agrees to
market the product in a manner that is
consistent with the content and style of the
Service. In connection therewith, Company shall
have the right to review and refuse the manner
and methods of advertising, marketing and
promotion used by Affiliate in connection with
the Service.
3.2 Notwithstanding any approval and/or
refusal by Company given in accordance with
section 3.1 of this Agreement, Company shall
under no circumstances be held liable for, and
Affiliate shall indemnify, defend and hold
Company harmless against, any and all claims
asserted against Company by reason of
Affiliate's marketing and promotional efforts
undertaken hereunder.
3.3 Affiliate shall bear all costs and
expenses incurred in connection with the
advertising, marketing and promotion of the
Service.
4 Compensation
4.1 As used herein,
"Affiliate Percentage" shall mean the percentage
paid to Affiliate of the actual net revenue
received from a user (the "Customer") generated
by the Affiliate, for approved use of the
Service. The actual Affiliate Percentage shall
be a percentage of the Net Winnings which is
agreed between the parties. Unless otherwise
specifically agreed between the parties, the
percentage shall be 30% of Net Winnings up to
$10,000 US per month and 35% for all Net
Winnings exceeding $10,000 per month. "Net
Winnings" shall mean the total amount wagered in
the casino, less the total amount
paid out as winnings and withdrawals, less
current monies held on behalf of players, and
less the amount for all merchant banking and
transaction fees.
4.2 Company shall pay Affiliate monthly, in
accordance with this contract for the preceding
calendar month. Payment for the preceding month
shall be made prior to the 10th day of each
month. Monthly commissions totaling less than
$100 will be held over until the next month, or
such month when commissions total $100 or more.
Additionally, statements may be adjusted by
Company from time-to-time to reflect
overpayments, consumer chargebacks and/or,
credits or underpayments by Company.
5 Term and Termination
5.1 This
Agreement shall commence and be deemed effective
on the date when accepted by an authorized
representative of the Affiliate (the "Effective
Date"). This Agreement shall be deemed to be
accepted by the Affiliate once the Affiliate has
completed all details required on the Sign-Up
page, and has hit the submit button to request
Affiliate status from the Company.
This Agreement is in effect for a period of
one (1) year (the "Term") with additional one
(1) year extensions at Affiliate's option. If
Affiliate elects to exercise this option, the
option as exercised must be addressed to Company
in writing, no later than forty five (45) days
prior to the expiration of the Term. Company
shall have the right to terminate this contract
at any time, and for whatever reason. In this
event, Affiliate shall be paid all commissions
due, and earned for a period of six months after
date of termination, except in the event of
termination due to cheating or unethical
marketing practices, whereupon Affiliate’s
account shall immediately be frozen and no
further payments made.
5.2 Upon termination of this Agreement,
Affiliate shall immediately return to Company
any and all Company materials which Company has
a proprietary right in that are in Affiliate's
possession and/or in the possession of
Affiliate's agents, servants and employees.
5.3 Customers using Company’s services and
all information relating to these customers
shall remain the property of Company at all
times during the operation of this contract and
after termination.
6 Exclusivity, Non-Competition and Ownership
of Service Name
6.1 Affiliate agrees,
understands and acknowledges that Company may
enter into Agreements of this type with third
parties to promote the Service or a similar
version thereof.
6.2 Affiliate has not paid consideration for
the use of Company’s or Company licensors'
trademarks, logos, copyrights, trade names, the
Service names referred to in Recital B, or
designations, and nothing contained in this
agreement shall give Affiliate any right, title
or interest in or to any of them.
Affiliate
acknowledges that Company and Company casinos
own and retain all copyrights and other
proprietary rights in all of the foregoing, as
well as any Software supplied by Company.
Affiliate shall not at any time during or after
this agreement, assert or claim any interest in
or to, or do anything which may adversely affect
the validity or enforceability of, any
trademark, trade name, copyright, service mark
or logo belonging or licensed to Company or any
of its casinos (including any act or assistance
to any act which may infringe or lead to the
infringement of any copyright in the
"Software"). Without limiting the generality of
the foregoing, Affiliate shall not attempt to
register, or assist any third party in
attempting to register any trademark, trade name
or other proprietary right with any governmental
agency, federal, provincial, local or otherwise,
or with any other entity or authority, without
the express, unequivocal and unambiguous prior
written consent of Company.
6.3 The parties agree that the financial
terms and conditions of this Agreement are to
remain strictly confidential, and that neither
party will disclose such financial terms and
conditions to any third party without the prior
written consent of the other party. This section
shall not apply to disclosures which are
required by law (such as Company reporting
requirements), by order of a court with
competent jurisdiction, or to each party's
respective attorneys, accountants, and business
advisors under a similar duty of
confidentiality.
7 Representations, Warranties and
Indemnity
7.1 Affiliate warrants, represents
and covenants to Company that: (a) Affiliate has
the full legal right, power and authority to
enter into and perform this Agreement, and to
grant to Company the rights set forth in this
Agreement; and (b) Affiliate will obtain all
necessary rights, licenses, permissions,
business permits, and will comply with all
applicable laws, rules and regulations in this
connection in offering the Service to end-users.
7.2 Affiliate agrees to indemnify and hold
Company harmless, and further agrees to defend
Company through the service of an attorney
chosen and approved by Company, from and against
any and all claims, liabilities, causes of
action, damages, judgments, costs and expenses
(including reasonable attorney's fees) arising
out of or in any way connected with any breach
or alleged breach by Affiliate of any
representation, warranty or agreement contained
in this section, or elsewhere in this
Agreement.
7.3 In no event shall Company be liable to
the Affiliate, Affiliate's customers or any
other third party claim for any indirect,
special, or consequential damages, including
lost profits, whether based upon a claim or
action of contract, warranty, negligence, or
other tort or breach of any statutory duty,
indemnity or contribution, or otherwise arising
out of this agreement, or the use and promotion
of the Service, and/or any other act or omission
relating to the Service in any connection to the
sale or promotion of the Service, even if, in
any such case, Company has been advised of the
possibility of such damages.
8 No Representation or Guarantee
Regarding
Profits or Income.
Affiliate agrees,
understands and acknowledges that Company, it's
parent company, it's sub entities, it's agents,
it's officers, it's directors, it's
shareholders, and/or accountants have made no
representation of any nature whatsoever to
Affiliate and/or "Affiliate's agents, servants
and/or employees regarding profits, income, or
money which Affiliate may obtain or generate
from the Service and/or from entering into this
"Agreement" and/or from marketing and/or
promoting any version of this Service, and/or
form any other matter relating to this
"Agreement" and/or to the subject matter of this
"Agreement".
Any expression by Company in this
regard is an expression of opinion only and
Affiliate agrees understands and acknowledges
that they have not been induced to, and/or
persuaded thereby to, enter into this
"Agreement" and that Affiliate has entered in to
the Agreement of their own free will and choice,
without any force or duress, and only after
thorough, complete, full, and thoughtful
investigation and after obtaining independent
advice and counsel from their accountant, their
attorney, and their financial advisors.
9 Assignment
This Agreement and rights
and duties hereunder may not be assigned or
transferred, either in whole or in any part by
Affiliate without the express prior written
consent of Company, which consent shall not be
unreasonably withheld.
10 Binding Effect
This Agreement and the
provisions hereof shall be binding upon and
inure to the benefit of the subsidiaries,
affiliates, officers, directors, employees,
agents, families, heirs, beneficiaries,
executors, administrators, personal
representatives, successors-in-interest and
assigns of the respective parties hereto, and
any entity which acquires either of the
respective parties hereto.
11 Severability
If it is determined by a
court of competent jurisdiction that any
provision contained in this Agreement is illegal
or unenforceable, such determination shall
solely affect such illegal or unenforceable
provision and shall not affect the validity or
enforceability of the remaining provisions of
this Agreement.
12 Relationship of the Parties
This
Agreement does not create a partnership or joint
venture between the parties hereto and neither
party shall have the power or authority to
obligate or bind the other in any manner
whatsoever.
13 Entire Agreement
This Agreement
supersedes all prior negotiations,
understandings and agreements between the
parties hereto concerning the subject matter
hereof. This Agreement may not be changed nor
modified, nor may any provision hereof be
waived, except in writing signed by the parties
hereto.
14 Governing Law
This Agreement shall be
governed by and construed in accordance with the
laws of Curacao.
15 Survival of Rights
Notwithstanding anything to the contrary
contained in this Agreement, any obligations
which remain in force after expiration of this
Agreement shall remain in full force and effect
until discharged by performance and such rights
as pertain thereto shall remain in full force
and effect until their expiration.
16 Headings
The headings used in
connection with the paragraphs and subparagraphs
of this Agreement are inserted only for purposes
of reference. Such headings shall be not deemed
to govern, limit, modify or in any other manner
affect the scope, meaning or intent of the
provisions of this Agreement, nor shall such
headings otherwise be given any legal
effect.
17 Tracking
Individual end user computer
configurations may affect desired results in a
non-conforming manner contrary to anticipated
Affiliate system usage. In the event of such
situations, beyond normal system parameters,
Company and its affiliates cannot be held
responsible.
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