Affiliate Program Terms
This agreement (the "Agreement") is entered into by and between XCELENTBET.COM (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.
4.1 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 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.
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.
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.
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.
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.