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This agreement (the "Agreement") is entered into
by and between PC&S Development LLC (hereinafter referred
to as "Company") and the Affiliate.
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
and sportsbook 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 25% for all Net
Winnings exceeding $10,000 per month. "Net Winnings"
shall mean the total amount wagered in the casino and sportsbook,
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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