AFFILIATION AGREEMENT
Your consent to the terms of this Agreement with Real Dice, Inc. ("Company") is signified by clicking the box entitled "I have read and agreed to the Affiliation Agreement" in our online Affiliate Sign-Up Form.
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W I T N E S S E T H:
WHEREAS, the Company has the right to make use of a certain mobile gaming platform and related software applications; and
WHEREAS, the Affiliate is experienced in marketing, sales and promotion of online and mobile content products and services; and
WHEREAS, the Parties desire that the Affiliate promotes, markets and offers certain applications, for valuable consideration and pursuant to the terms and conditions as set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt, adequacy, and sufficiency of all of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:
1. DEFINITIONS
In this Agreement, unless the context otherwise requires:
1.1. "Affiliate User Interface" means a customized interface for the download of Applications from the Platform to a Device, developed by or on behalf of the Company for use by Affiliate as set forth in this Agreement.
1.2. "Applications" means the mobile gaming software applications.
1.3. "Affiliate Eligible User" means a User who has downloaded an Application to a Device through the Affiliate User Interface using a Tracker and has accepted the Terms of Use, excluding fraudulent users.
1.4. "Device" means a mobile phone or any other device, future modification and/or format that enable two-way mobile communications operation.
1.5. "Field" is any of gaming and social networking.
1.6. "Offering" means the Platform and Applications.
1.7. "Platform" means the technology, software and ancillary systems that enable the provision of the Applications to Users and the use of the Applications by the Users in accordance with their purpose.
1.8. "Net Revenues" shall mean the total amount actually paid by Affiliate Eligible Users, less (a) the total amount in rebates (if any) paid to Affiliate Eligible Users; (b) taxes and duties (or their equivalent or replacement); (c) amounts refunded or deducted as per the Company's refund policy, (d) uncollected or withheld due to fraud and/or bad debts of Affiliate Eligible Users, and (e) free and promotional credits and bonus amounts actually allowed.
1.9. "Terms of Use" means the Company's standard terms and conditions for the use of the Applications as may be amended from time to time and provided to Affiliate.
1.10. "Tracker" means the unique keyword(s), hyperlink(s) and short code(s) exclusively assigned, upon execution of this Agreement or thereafter, by the Company to Affiliate, enabling the identification and association of Users to Affiliate and the calculation of the Consideration (as defined in Section 4 below).
1.11. "User" means a natural person.
1.12. "User Data" means any personal data relating to Users and data relating to their Applications'-related activities.
2. ENGAGEMENT; THE SERVICES
2.1. Affiliate will make its best commercial efforts to promote, market and offer the Applications in the Fields to Users (the "Services").
Without derogating from the generality of the above, Affiliate shall provide the Services in accordance with the Marketing Plan as set from time to time by Affiliate and approved in writing by the Company in advance.
2.2. Affiliate shall bear all costs and expenses related to the provision of the Services.
2.3. Affiliate will make the Applications available to Users: (a) solely through the Trackers(s) and the Affiliate User Interface and (b) subject to the terms and conditions of the Terms of Use to be executed, as between the Parties, with or on behalf of the Company.
Affiliate understands and agrees that it shall not be entitled to any consideration hereunder with respect to activities conducted other than through the Trackers(s) and the Affiliate User Interface. Affiliate further understands and agrees that the Company reserves the right to refuse Users, restrict their access to the Offering and to close the account of any User, at its sole discretion.
2.4. All advertising and promotion ideas, campaigns and documentation undertaken by or on behalf of Affiliate hereunder, including, without limitation, any free and promotional credits and/or bets, shall be coordinated with the Company and approved in advance by the Company. A copy of all final version(s) of promotional materials, in any form, shall be provided to the Company, and may not be amended or revised without the Company's prior written consent.
Affiliate will not promote, market and/or offer the Applications together with any competing application, product and/or service
2.5. Affiliate may engage third parties for the performance of any of its activities hereunder, provided that (a) any such engagement shall be subject to the prior written consent of the Company; (b) Affiliate shall have each such third party undertake in writing to be bound by and comply with the provisions of this Agreement; and (c) in the event that such third party fails to comply with any of its undertakings as aforesaid, then, upon the Company's request, Affiliate shall terminate its engagement with such third party. Affiliate shall be solely responsible for such third-parties' activities and any consideration due with respect thereto.
2.6. Affiliate will provide the Company with Monthly written reports setting forth the activities performed by or on behalf of Affiliate hereunder, in such form as shall be agreed between the Parties. In addition, Affiliate shall provide the Company with weekly reports setting forth the User Data obtained, gathered or generated by or on behalf of Affiliate during such period.
2.7. The Company will provide Affiliate with web-based access to statistics relating to the Services, such as the number of Affiliate Eligible Users that executed the Terms of Use, the Tracker(s) used and the Applications played by Affiliate Eligible Users.
2.8. Affiliate will provide the Company with immediate notice promptly after becoming aware of any actual or suspected fraud, bad debt or other similar activity. The Company shall be entitled to delay any payment to Affiliate hereunder in the event of such notice, or if the Company otherwise becomes aware or suspects of any such activity, for a period of ninety (90) days so to enable it to verify the applicable transaction(s) and re-calculate Consideration payments accordingly. The Company shall be entitled to set-off or withhold from Consideration due any such amounts to be returned, deducted or withheld, at its discretion.
3. CUSTOMER SERVICE; TECHNICAL SUPPORT
3.1. The Company will be responsible for the provision of customer service to Affiliate Eligible Users with respect to technical, operational and financial aspects of the Applications.
3.2. Customer service shall be provided to Affiliate Eligible Users in accordance with the customer service policy of the Company.
4. CONSIDERATION; REPORTING AND RECORDS
4.1. Consideration.
4.1.1. In full and complete consideration for its services hereunder, Affiliate shall be entitled to receive royalty payments as set forth in Schedule 1.1 attached hereto (the "Consideration").
4.1.2. The Consideration shall be payable to Affiliate within thirty (30) days from each calendar month's end, with respect to such Consideration attributed to such calendar month, in USD, against a valid tax invoice and receipt. In the event that the amount due to Affiliate at the end of each calendar month is lower than $200, such amount shall be added to and paid upon the next Consideration payment due to Affiliate.
In the event that no new Affiliate Eligible Users executed the Terms of Use or generated any Net Revenues during any period of more than forty five (45) consecutive days, than the Company shall be entitled to cease payment of the Consideration until such time as new Affiliate Eligible Users execute the Terms of Use or generate new Net Revenues.
4.2. Reporting and Records.
4.2.1. During the Term and for six (6) months thereafter (the "Record Period"), the Company will keep true and accurate records and books of accounts necessary for the determination of the Net Revenues.
4.2.2. At the end of every calendar quarter during the Record Period, the Company will provide Affiliate with a report containing such figures and data necessary for the determination of the Net Revenues during such period.
4.2.3. Affiliate (or its duly authorized representative, subject to such representative's execution of a standard Non-Disclosure Agreement of the Company) shall be further entitled, once every six (6) months during the Record Period, at its sole cost and expense and upon reasonable notice, to inspect and copy the said records and books during normal business hours for the purpose of verifying the accuracy of the Net Revenues calculation hereunder.
5. GRANT OF LICENSE; PROPRIETARY RIGHTS
5.1. Grant of License. On and subject to the terms and conditions set forth herein, the Company grants the Affiliate a non-exclusive, revocable, non sub-licensable (except as explicitly provided for herein), non-transferable license to use the Platform and the Applications in the Fields during the Term (the "License"). The License may only be sub-licensed by Affiliate in accordance with the provisions of Section 2.5 above.
5.2. Use of Brand Names; Trade Marks. The Company hereby grants Affiliate the non-exclusive, revocable, non sub-licensable (except as explicitly provided for herein), non-transferable permission and license to use the trademarks and brand-names associated with the Applications as set forth in Schedule 2.1 hereto (the "Company Marks"), for the sole purpose of providing the Services during the Term. This right to use the Company Marks may only be sub-licensed by Affiliate in accordance with the provisions of Section 2.5 above.
Affiliate acknowledges and agrees that it shall not be entitled to use the Company's name, logo or other trade or service marks or names, except if and to the extent expressly authorized by the Company in writing in advance.
5.3. Proprietary Rights. The Platform and Applications (including, without limitation, the Affiliate User Interface), the Company Marks and all User Data, including all inventions, ideas, data, works of authorship, discoveries, designs and know-how related to any of the above and any and all right, title and interest in and to any of the above, and any modifications, amendments, enhancements, derivatives, customizations, upgrades, updates, revisions, translations or other alternations or additions made to any of them, including at the request or suggestion of Affiliate or based upon, arising from or in connection with the Services, and any marketing campaigns and advertising ideas, campaigns and materials related thereto ("Proprietary Rights"), are and shall remain the sole and exclusive property of the Company and/or their respective owners, and other than the License and the right granted pursuant to Section 5.2 above, no patent, copyright, trademark or other proprietary right or license is granted by this Agreement.
Affiliate shall promptly notify the Company in the event it becomes aware of any actual or threatened infringement of any of the Proprietary Rights and agrees to cooperate fully with the Company and its nominees to perfect the rights referred to herein, including to obtain patents or register copyrights or trademarks in any and all countries for any Proprietary Rights, to provide information, to take all further action and to execute all papers as the Company may desire, all at the Company's expense.
5.4. Non-Exclusivity. Nothing herein contained shall be construed as prohibiting or limiting the Company's right to grant any similar rights or engage in any similar activities as set forth in this Agreement, with any party and in any territory whatsoever, whether on an exclusive basis or not.
6. CONFIDENTIALITY
6.1. Any and all information and data of a proprietary or confidential nature, whether in oral, written, graphic, machine-readable form, or in any other form, including, without limitation, business, financial and technical information, trade secrets, patents, patent applications, copyrights, ideas and inventions (whether patentable or not), and all record bearing media containing or disclosing such information and techniques, relating to the business or technology of the Company, including, without limitation, the Offering, disclosed to or otherwise acquired by Affiliate in connection with this Agreement, and any and all Proprietary Rights (collectively, "Confidential Information") is and shall remain the sole and exclusive property of the Company and/or their respective owners.
6.2. At all times, both during the Term and thereafter, Affiliate (i) will keep the Confidential Information strictly confidential, shall protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, typically afforded to such confidential information, and will not disclose it, or any part thereof, provide any documentation with respect thereto, or any part thereof, directly or indirectly, to any third party, (a) without the prior written consent of the Company, (b) unless and to the extent required by applicable law, or (c) to those employees of Affiliate who have a need to know and who are subject to obligations of confidentiality similar to those hereunder; and (ii) Affiliate will not use or exploit any Confidential Information or anything relating to it without the prior written consent of the Company, except and to the extent as may be necessary in the ordinary course of performing the services hereunder and in the best interests of the Company.
Notwithstanding the foregoing, Affiliate shall not be obligated to maintain the confidentiality of Proprietary Information which: (i) is or becomes a matter of public knowledge through no fault of Affiliate; (ii) is authorized, in writing, by the Company for release; (iii) was lawfully in Affiliate's possession before receipt from the Company, as evidenced by Affiliate through written documentation; or (iv) is lawfully received by Affiliate from a third party without a duty of confidentiality.
6.3. Affiliate shall treat the execution of the Agreement and the terms hereof as Confidential Information. The Company shall be entitled to disclose, at its sole discretion, the general terms of engagement between the Parties, including, without limitation, the rendering of Services by Affiliate hereunder.
6.4. Nothing herein contained shall prohibit the Company from disclosing, at its sole discretion, Confidential Information which comprises or is a component of the Offering or any other Company Confidential Information.
7. NON COMPETITION
7.1. Subject to any applicable law, during the term of this Agreement and for 6 months thereafter, Affiliate shall not use Company material or similar, including marketing material, advertising campaigns, graphics, logos, promotions, tournaments and incentives, to promote or provide any services to any direct or indirect competitor of Company.
8. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Affiliate as follows:
8.1. Authority. The Company is duly organized and validly existing under the laws of its jurisdiction of incorporation, and has the requisite power and authority to own its properties and to carry on its business. The Company has full power and authority to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby.
8.2. Enforceability. The consummation of the transactions contemplated by this Agreement will not violate or be in conflict with its contractual obligations or undertakings. .
8.3. Consents. No consent, approval, authorization, order, filing, registration, license or qualification of or with any court, governmental authority or any third party is required to be made or obtained by the Company in connection with the execution and delivery of this Agreement by the Company or the fulfillment by the Company of its obligations hereunder, which has not been obtained.
8.4. Affiliate agrees and understands that the Offering may be modified, altered, revised or replaced from time to time. The Company shall notify Affiliate of such event, however the Company does not make any representation or warranty with respect thereto.
THE FOLLOWING DISCLAIMERS APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT NO OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE MADE BY THE COMPANY HEREUNDER WITH RESPECT TO THE OFFERING, OR ANY PART THEREOF, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF NON- INFRINGEMENT, MERCHANTABILITY, PATENTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTY.
9. REPRESENTATIONS AND WARRANTIES OF AFFILIATE
The Affiliate hereby represents and warrants to the Company as follows:
9.1. Authority. Affiliate is duly organized and validly existing under the laws of its jurisdiction of incorporation, and has the requisite power and authority to own its properties and to carry on its business. Affiliate has full power and authority to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby.
9.2. Enforceability. The consummation of the transactions contemplated by this Agreement will not violate or be in conflict with its contractual obligations or undertakings.
9.3. Consents. No consent, approval, authorization, order, filing, registration, qualification or license of or with any court, governmental authority or any third party is required to be made or obtained by the Company in connection with the execution and delivery of this Agreement by Affiliate or the fulfillment by Affiliate of its obligations hereunder, which has not been obtained.
9.4. Affiliate has the necessary skills, knowledge, ability, expertise and experience to fulfill its obligations hereunder, shall do so diligently, professionally and conscientiously and consistent with a high level of quality and performance, and shall use its best efforts in the performance thereof.
9.5. Affiliate shall comply with all applicable laws and regulations in the performance of its activities hereunder. Without derogating from the above, Affiliate will not, directly or indirectly, use unsolicited or unauthorized advertising, promotion or contact (including spam, chain letters or pyramid schemes) or any other form or solicitation to engage in any trading scheme to illicit use of the Applications. Affiliate shall further take such appropriate technical and organizational measures to prevent unauthorized or unlawful collection, processing or use of User Data and any loss or damage thereto.
9.6. Affiliate shall be solely responsible for the content and manner of its marketing activities. Without derogating from the generality of the above, Affiliate may not engage, directly or indirectly, in any illegal, improper or unfair activity or any other activity that may otherwise be adverse to the business or reputation of the Company, including without limitation: (a) any activity that contains or promotes libelous, defamatory, discriminatory, obscene, abusive, violent, bigoted, hate-oriented or illegal content; (b) any indiscriminate or unsolicited commercial advertising activity; (c) causing or enabling any transactions to be made other than in good faith, including, without limitation, by means of any device or program.
10.INDEMNIFICATION
10.1. Indemnification by Affiliate. Affiliate agrees to indemnify, defend and hold the Company, including its affiliates, shareholders, officers, directors, employees, agents, representatives, successors and assigns (each, a "Company Indemnified Person"), harmless from and against any and all claims, suits, demands, loss, liability, damage or deficiency (including interest, penalties, costs of preparation and investigation and reasonable attorneys' fees) (collectively, "Losses") that any Company Indemnified Person may suffer, sustain, incur or become subject to, arising out of or resulting from (a) any misrepresentation, breach of warranty or breach of covenant made or undertaken by Affiliate under this Agreement; and/or (b) Affiliate's activities hereunder. Notwithstanding the foregoing, Affiliate shall not be liable to the Company hereunder in the event that any such claims or losses are the result of willful misconduct by the Company.
10.2. Indemnification by the Company. The Company agrees to indemnify, defend and hold Affiliate, including its affiliates, shareholders, officers, directors, employees, agents, representatives, successors and assigns (each, an "Affiliate Indemnified Person"), harmless from and against any and all claims, suits, demands, loss, liability, damage or deficiency (including interest, penalties, costs of preparation and investigation and reasonable attorneys' fees) (collectively, "Losses") that any Affiliate Indemnified Person may suffer, sustain, incur or become subject to, arising out of or resulting from any misrepresentation, breach of warranty or breach of covenant made or undertaken by the Company under this Agreement. Notwithstanding the foregoing, the Company shall not be liable to Affiliate hereunder in the event that any such claims or losses are the result of willful misconduct by the Affiliate.
10.3. Notwithstanding anything to the contrary herein, the Company's aggregate liability in connection with this Agreement shall be limited to the Consideration paid to Affiliate during the 12 months period preceding the date of occurrence of the Losses.
10.4. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN OR IN ANY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY, ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AFFILIATES, SUCCESSORS OR ASSIGNS BE LIABLE (under contract, tort or any other head of law), for any indirect loss, consequential loss, INCIDENTAL LOSS, loss of profits, REVENUE OR BUSINESS (whether direct or indirect), loss of earnings or loss of anticipated savings.
11. TERM AND TERMINATION
11.1. The term of this Agreement shall commence as of the Effective Date and shall continue in full force and effect for twelve (12) months thereafter, unless earlier terminated by either of the Parties by a ninety (90) days' prior written notice to the other Party or further extended for such term and upon the conditions mutually agreed by the Parties (the "Term").
11.2. Notwithstanding anything else to the contrary herein, either Party may terminate this Agreement without advance notice in the event that the other Party:
11.2.1. Breaches any term of this Agreement and either such breach is not capable of remedy or such breach is not remedied within thirty (30) days from the date of being notified in writing of such breach by the non-defaulting Party; or
11.2.2. Ceases to carry on its business for a period longer than thirty (30) days, is unable to pay its debts (as evidenced by written documentation) or enters into compulsory or voluntary liquidation (other than for the purpose of effecting a corporate reorganization) or compounds with or convenes a meeting of its creditors or has a receiver or manager or an administrative receiver or an administrator appointed on its assets, and action or proceeding is not dismissed within forty-five (45) days.
11.3. Notwithstanding anything else to the contrary herein, the Company may terminate this Agreement without advance notice, without derogating from any other remedy to which the Company may be entitled in the event that Affiliate commits an act of fraud or embezzlement against the Company or any User or willfully takes an action injurious to the business or prospects of the Company.
11.4. In the event that the performance of this Agreement by a Party is delayed or becomes impossible because of any act of God, fire, earthquake, strike, civil commotion, act of government or any other event of force majeure, that Party may upon notice to the other Party suspend its performance of this Agreement for the duration of such interruption. If either Party's performance of this Agreement is suspended because of such force majeure event for more than forty five (45) days, the other Party may terminate this Agreement by written notice of an immediate effect.
11.5. Upon termination or expiration of this Agreement for any reason whatsoever, (a) the License and any rights granted with respect to Company Marks shall forthwith expire, (b) Affiliate shall promptly return to the Company all Confidential Information and any copies thereof; and (c) Affiliate shall immediately discontinue any activities it may then conduct hereunder.
The Term at its discretion, at no additional compensation to Affiliate, except that Affiliate shall be entitled to Consideration with respect to Net Revenues generated during the six (6) months period following the Term, if at all, from Affiliate Eligible Users who have executed the Terms of Use during the Term.
11.6 Affiliate may chose to terminate this Agreement without any prior notice as specified in Section 11.1, however, in this case all Company's obligations to Affiliate, including Customer Support (Section 3) and Consideration (Section 4) will no longer apply, and Affiliate will be entitled only to Considerations earned until the day of such early termination, and will forgo ongoing revenues that continue to accrue as a result of Affiliate customer subscriptions.
11.7. The provisions of Sections 5.3, 6, 10 and 12 shall survive the termination or expiration of this Agreement for any reason whatsoever, or any renewal thereof, pursuant to their respective terms.
12. MISCELLANEOUS
12.1. Relationship of the Parties; Independent Contractor. Affiliate is an independent contractor and shall not be considered an agent or employee of the Company. Nothing in this Agreement shall be deemed or construed as creating a joint venture or partnership between the Parties. Neither Party is by virtue of this Agreement authorized as an agent, employee or legal representative of the other. Neither Party shall have any power or authority to bind or commit the other, or make any representations or warranties on behalf of the other Party.
12.2. Entire Agreement. This Agreement, together with the exhibits and schedules attached hereto, constitute the full and entire understanding and agreement between the Parties with regard to the subject matters hereof and thereof and terminate and replace any previous agreements and/or arrangements between the Parties relating thereto.
12.3. Amendment; Waiver. Any term of this Agreement may be amended only with the written consent of the Parties hereto. The observance of any term hereof may be waived (either prospectively or retroactively and either generally or in a particular instance) only with the written consent of the Party against such waiver is sought. No consent or waiver, express or implied to or of any breach or default in the performance of any obligations hereunder shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation hereunder.
12.4. Successors and Assigns; Assignment. Except as otherwise expressly limited herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors, and administrators of the parties hereto. None of the rights, privileges, or obligations set forth in, arising under, or created by this Agreement may be assigned or transferred by Affiliate without the prior consent in writing of the Company, except as expressly provided otherwise in this Agreement. The Company may assign and transfer any of its rights, privileges, or obligations set forth in, arising under, or created by this Agreement, at its discretion, to an assignee who shall assume all of its obligations hereunder.
12.5. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of Delaware (USA), without giving effect to the rules with respect to conflicts-of-law. Any dispute arising out of, or relating to this Agreement, its interpretation or performance hereunder shall be resolved exclusively by the competent court of the state of Delaware, and each of the Parties hereby submits exclusively and irrevocably to the jurisdiction of such court.
12.6. Notices. Any notice required or permitted to be given to a Party pursuant to the provisions of this Agreement will be in writing and will be effective and deemed given to such party under this Agreement on the earliest of the following: (a) the date of personal delivery; (b) the first business day following transmission by facsimile or electronic mail, addressed to the party at its facsimile number or electronic mail, with confirmation of transmission; (c) one (1) day after deposit with a return receipt express courier for domestic deliveries; (d) five (5) days after deposit in local mail by registered or certified mail (return receipt requested) for international deliveries; or (e) when actually received, if earlier. Notices hereunder shall be sent to the addresses as either party may specify in writing.
12.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable under applicable law, then such provision shall be excluded from this Agreement, the remainder of this Agreement shall remain in full force and effect and shall be interpreted as if such provision was so excluded and shall be enforceable in accordance with its terms; provided, however, that if any such provision may be made enforceable by limitation thereof, then such provision shall be deemed to be so limited and shall be enforceable to the maximum extent permitted by applicable law; and provided, further, that in any event this Agreement shall be interpreted so as to give effect, to the greatest extent consistent with and permitted by applicable law, to the meaning and intention of the excluded or limited provision.
12.8. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. Facsimile signatures of a Party shall be binding as evidence of such Party's agreement hereto and acceptance hereof.
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