1. Grant of Promotion and Distribution
License
1.1 Premier Bingo grants to Affiliate partner the non-exclusive,
non-transferable right and license to advertise, market
and promote the Service, in accordance with the terms and
conditions hereof.
1.2 Premier Bingo grants to affiliate partner the non-exclusive,
non-transferable right and license to distribute to Affiliate
partner customers, in accordance with the terms and conditions
herein, the specialized bingo "Software" (the
"Software") which enables access to the Service.
Affiliate partner shall not under any circumstances reverse
engineer, disassemble, decompile, or otherwise attempt to
render source code from the "Software", or to
reproduce or distribute the "Software" in source
code format. Affiliate partner acknowledges and agrees that
the "Software" is the proprietary property of
Premier Bingo, 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 Premier Bingo and/or its licensors. Affiliate partner
agrees to include such proprietary rights notices, markings
or legends on any advertisements or promotional materials
for the "Software" as Premier Bingo shall reasonably
specify from time to time.
1.3 All other rights and licenses not expressly granted
to Affiliate partner herein are reserved by Premier Bingo.
2. Obligations of Premier Bingo
2.1 Premier Bingo will provide access to:
(a) bingo style games,
(b) slots machines games
(c) Merchant accounts,
(d) credit card authorization,
(e) fraud control, for billing;
(f) financial management of receivables
including call reports and accounting services, all in accordance
with standard practices and procedures.
The choice of content for the Service, and the choice of
persons retained to deliver the Service's, shall be determined
by Premier Bingo in its sole discretion.
2.2 Premier Bingo shall retain the right to provide the Service
in what ever form Premier Bingo deems appropriate.
2.3 Premier Bingo shall retain the right to change any part
of the Service at anytime, without notice to affiliate partner,
in whatever manner Premier Bingo deems appropriate.
2.4 Premier Bingo shall retain the right to cancel any part
of the Service at any time, without notice to affiliate
partner, in whatever manner Premier Bingo deems appropriate.
2.5 Notwithstanding anything in this Agreement, Premier Bingo
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 partner, arising from any inability of
Premier Bingo to deliver the Services contemplated in this
Agreement for any reason whatsoever, whether Premier Bingo
is at fault or whether a third party is at fault.
3. Obligations of Affiliate partner
3.1 Affiliate partner 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 partner
and to Premier Bingo. Affiliate partner shall only engage in
advertising, marketing and promotional efforts which do
not violate any law and which reflect positively upon the
business reputation of Premier Bingo. In particular, Affiliate
partner agrees to market the product in a manner that is
consistent with the content and style of the Service. In
connection therewith, Premier Bingo shall have the right to
review and approve (approval shall not be unreasonably withheld)
the manner and methods of advertising, marketing and promotion
used by Affiliate partner in connection with the Service.
Approval may be withheld if Premier Bingo determines, in its
sole discretion, that any such activities would tend to
reduce the value of, or would impair Premier Bingo's goodwill
and business reputation, or would expose Premier Bingo to legal
liability.
3.2 Notwithstanding any approval by Premier Bingo given in
accordance with section 3.1 of this Agreement, Premier Bingo
shall under no circumstances be held liable for, and Affiliate
partner shall indemnify, defend and hold Premier Bingo harmless
against, any and all claims asserted against Premier Bingo
by reason of Affiliate partner's marketing and promotional
efforts undertaken hereunder.
3.3 Affiliate partner shall bear all costs and expenses
incurred in connection with the advertising, marketing and
promotion of the Service, including but not limited to all
costs relating to the marketing.
4. Compensation
4.1 As used herein, "Affiliate partner Percentage"
shall mean the percentage paid to Affiliate partner of the
actual net revenue received from a user (the "Customer")
for approved use of the Service. The actual Affiliate partner
Percentage shall be equal to 20% of the Net Monthly Revenue.
"Net Monthly Revenue" shall mean the total amount
paid for bingo cards and/or wagered in slot machines, less
the total amount paid out as winnings in bingo and slot
machines, and less the amount for all merchant banking fees.
"Player Signup" shall mean a unique player signing
up for an account and wagering an amount greater than US$20.
4.2 Premier Bingo shall pay Affiliate partner monthly, in accordance
with this contract for the preceding calendar month. Payment
for the preceding month shall be made prior to the 20th
day of each month.
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 partner (the "Effective Date").
This Agreement shall be deemed to be accepted by the Affiliate
partner when the Affiliate partner chooses "YES"
to the "Premier Bingo WAGERING AND GAMING PARTNERS AGREEMENT"
and hits the submit button on the Affiliate partner Sign-Up
page. This Agreement is in effect for a period of one (1)
year (the "Term") with additional one (1) year
extensions at Affiliate partner's option. If Affiliate partner
elects to exercise this option, the option as exercised
must be addressed to Premier Bingo in writing, no later than
forty five (45) days prior to the expiration of the Term.
The expiration notifications should be sent in writing,
at least thirty (30) days prior to the expiration of the
term.
5.2 Upon termination of this Agreement, Affiliate partner
shall immediately return to Premier Bingo any and all Premier Bingo materials which Premier Bingo has a proprietary right
in that are in Affiliate partner's possession and/or in
the possession of Affiliate partner's agents, servants and
employees.
5.3 Customers using Premier Bingo's facilities and all information
relating to these customers shall remain the property of
Premier Bingo at all times during the operation of this contract
and after termination.
6. Accounting Statements
6.1 All payments due to Affiliate partner by Premier Bingo shall be made on or before the twentieth (20) day of
each month for the immediately preceding calendar month
and shall be accompanied by a written statement which specifies
the gross revenues received by Premier Bingo with respect to
the Affiliate partner customers, the number of Affiliate
partner Customers wagering and the calculation of the monies
being paid to Affiliate partner. Additionally, Premier Bingo
may adjust statements from time-to-time to reflect overpayments,
consumer chargebacks and/or, credits or underpayments by
Premier Bingo.
6.2 Premier Bingo shall hold back 50% of each month's payment
due to Affiliate partner (the "Hold Back Amount").
The Hold Back Amount shall be retained for a period of 90
days. If the chargebacks pertaining to the sales made by
Affiliate partner for any given month are less than 50%
of the Affiliate partner Percentage, then Premier Bingo shall
pay the difference to Affiliate partner with the next monthly
installment after the 90 day hold back period. If the chargebacks
pertaining to the sales made by Affiliate partner for any
given month are greater than 50% of the gross sales on which
commissions are paid to Affiliate partner, then Premier Bingo
shall adjust the payment due to Affiliate partner in accordance
with section 6.1 of this Agreement.
7. Audit Rights
Affiliate partner may designate a Chartered Accountant
to examine the books and records of Premier Bingo with respect
to this Agreement. Said examination shall be at Affiliate
partner's sole cost and expense and may be conducted no
more than once annually during normal business hours and
no sooner than five (5) business days after Affiliate partner
gives written notice of such audit to Premier Bingo. Accounting
statements rendered by Premier Bingo shall be deemed conclusive
if not challenged by Affiliate partner within thirty days
after being rendered.
8. Exclusivity, Non-Competition and Ownership of
Service Name
8.1 Affiliate partner agrees, understands and acknowledges
that Premier Bingo may enter into Agreements of this type with
third parties to promote the Service or a similar version
thereof.
8.2 Affiliate partner has not paid consideration for the
use of Premier Bingo's trademarks, logos, copyrights, trade
names, the Service name referred to in par. B, or designations,
and nothing contained in this agreement shall give Affiliate
partner any right, title or interest in or to any of them.
Affiliate partner acknowledges that Premier Bingo and Premier Bingo licensors own and retain all copyrights and other proprietary
rights in all of the foregoing, as well as any Software
supplied by Premier Bingo. Affiliate partner 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 Premier Bingo (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 partner 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 Premier Bingo. Affiliate partner shall not attach any additional
trademarks, logos or trade designations to the "Software"
and shall ensure that none of the trademarks (or any variation
thereof) appears in any portion of Affiliate partner's name
or any name under which Affiliate partner does business.
Affiliate partner shall not alter, erase, deface or overprint
any proprietary rights notice on anything provided by Premier Bingo.
9. Confidentiality and Non-Disclosure
9.1 Affiliate partner and Premier Bingo each agrees that during
the course of this Agreement, each may have access to and
become acquainted with confidential information of the other.
Affiliate partner and Premier Bingo each specifically agrees
that it shall not misuse, misappropriate or disclose any
such confidential information, directly or indirectly, to
any third party or use any such confidential information
in any way, either during the Term of this Agreement or
at any time thereafter. Affiliate partner and Premier Bingo
each acknowledges and agrees that the sale or unauthorized
use or disclosure of any such confidential information obtained
by the other during the Term of this Agreement shall constitute
unfair competition and shall cause the party owning the
confidential information to suffer great and irreparable
harm. Affiliate partner and Premier Bingo each further acknowledge
and agree that, except as otherwise provided in this Agreement,
all such confidential information is and will remain the
sole and exclusive property of the disclosing party. The
terms of this Section shall survive the expiration or termination
of this Agreement.
9.2 For purposes of this section 9, "Confidential Information"
means (a) discoveries, concepts and ideas, whether patentable
or not; (b) business or technical information, including
but not limited to product or Service plans, designs, costs,
prices and names, finances, marketing plans, business opportunities,
personnel, research, development, and know-how; (c) any
information designated as "confidential", "proprietary",
or "secret" or which, under the circumstances
taken as a whole, would reasonably be deemed to be confidential,
proprietary or secret.
9.3 The obligations of section 9.1 shall not apply to the
extent that any Confidential Information (a) becomes generally
available to the public through no fault of the party to
whom it was disclosed; (b) is or has been disclosed to such
party directly or indirectly by a person under no obligation
of non-disclosure to the disclosing party; or (c) is required
to be disclosed under any laws, rules, regulations or governmental
orders provided, however, that the party to whom it was
disclosed shall have the burden of proving any of the foregoing
exceptions by conclusive relevant evidence.
9.4 Notwithstanding anything to the contrary contained herein,
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 Premier Bingo 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.
10. Representations, Warranties and Indemnity
10.1 Affiliate partner warrants, represents and
covenants to Premier Bingo that: (a) Affiliate partner has
the full legal right, power and authority to enter into
and perform this Agreement, and to grant to Premier Bingo the
rights set forth in this Agreement; and (b) Affiliate partner
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.
10.2 Affiliate partner agrees to indemnify and hold Premier Bingo harmless, and further agrees to defend Premier Bingo through
the service of an attorney chosen and approved by Premier Bingo, 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 partner of any representation, warranty or agreement
contained in this section 10, or elsewhere in this Agreement.
10.3 In no event shall Premier Bingo be liable to the Affiliate
partner, Affiliate partner'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, Premier Bingo has been advised of the possibility of such damages.
11. No Representation or Guarantee Regarding Profits
or Income
Affiliate partner agrees, understands and acknowledges that
the Premier Bingo, 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 partner and/or "Affiliate partner's
agents, servants and/or employees regarding profits, income,
or money which Affiliate partner 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 Premier Bingo in this regard is an expression
of opinion only and Affiliate partner agrees understands
and acknowledges that they have not been induced to, and/or
persuaded thereby to, enter into this "Agreement"
and that Affiliate partner 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.
12. Assignment
This Agreement and rights and duties hereunder may not be
assigned or transferred, either in whole or in any part
by Affiliate partner without the express prior written consent
of Premier Bingo, which consent shall not be unreasonably withheld.
13. 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.
14. 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.
15. Further Acts
Each party agrees to perform such further acts and to execute
and deliver to the other party any and all further documents
which are required to carry out the purpose and intent of
this Agreement or any of the provisions contained herein.
16. Notices
Except as otherwise provided herein, all notices, payments,
or any other communications provided for herein shall be
in writing or emailed and shall be given by email or personal
delivery, or by mail, certified or registered, postage prepaid,
return receipt requested, sent to the other party to this
Agreement to whom it is given at the address set forth below,
or such other address as either party to this Agreement
may direct by notice given in accordance with the provisions
of this Section. All notices shall be deemed effective upon
personal delivery, or seven (7) days following deposit in
the mail, or three (3) days following delivery through electronic
mail:
help@premierbingo.com
17. Dispute Resolution
17.1. Agreement to Submit to Binding Arbitration. Except
as otherwise provided below, the parties agree to submit
disputes between them relating to this Agreement and its
formation, breach, performance, interpretation and application
to binding arbitration as follows.
17.2. Notice. Each party will provide written notice to
the other party of any dispute within thirty days of the
date when the dispute first arises or occurs. If a party
fails to provide such notice, recovery on the dispute will
be barred.
17.3. Arbitration Rules. Arbitration will be conducted in
UK, pursuant to the Arbitration legislation then in effect
in UK. Except as otherwise agreed, the arbitration shall
be conducted by a single arbitrator. The arbitration award
will be final and binding and may be enforced in any court
of competent jurisdiction.
17.4. Costs and Attorneys' Fees. Unless the arbitrator finds
that exceptional circumstances require otherwise, the arbitrator
will grant the prevailing party in arbitration its costs
of arbitration and reasonable attorneys' fees as part of
the arbitration award.
17.5. Exceptions. Neither party will be required to arbitrate
any dispute relating to actual or threatened: (a) unauthorized
disclosure of Confidential Information; or (b) violation
of Premier Bingo's proprietary rights. Either party will be
entitled to receive in any court of competent jurisdiction
injunctive or other equitable relief, in addition to damages,
including court costs and fees of attorneys and other professionals,
to remedy any actual or threatened violation of its rights
with respect to which arbitration is not required hereunder.
18. 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.
19. 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 a writing signed by the parties hereto.
20. Governing Law
This Agreement shall be governed by and construed in accordance
with the laws of UK.
21. Survival of Rights
Notwithstanding anything to the contrary contained in this
Agreement, any obligations which remain executory 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.
22. 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.
