Super USA Casino Wagering
& Gaming Reseller Agreement
THIS AGREEMENT (the "Agreement") is entered into
by and between Super USA Casino, a company with offices located at
the Antigua and the Reseller.
RECITALS
- Super USA Casino is in the business of producing, marketing and
promoting on-line casino, sports book and lotteries entertainment
Services which are accessed through the use of a personal
computer, modem and/or direct Internet access.
- Reseller undertakes to have Super USA Casino produce a gaming
web site service for the Reseller web site (the "Service"),
and Reseller desires to market and promote the Service.
This Service will be advertised, marketed and promoted under
the name "Super USA Casino".
- Reseller desires to obtain from Super USA Casino, and Super USA Casino
agrees to grant Reseller the non-exclusive right and license
to advertise, market and promote the Service, in accordance
with the following terms and conditions.
TERMS AND CONDITIONS
- Grant of Promotion and Distribution License.
- 1.1
- Super USA Casino grants to Reseller 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
- Super USA Casino grants to Reseller the non-exclusive, non-transferable
right and license to distribute to Reseller customers,
in accordance with the terms and conditions herein,
the specialized casino and gaming "Software"
(the "Software") which enables access to the
Service. Reseller 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. Reseller acknowledges and agrees
that the "Software" is the proprietary property
of Super USA Casino, 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 Super USA Casino and/or its licensors.
Reseller agrees to include such proprietary rights notices,
markings or legends on any advertisements or promotional
materials for the "Software" as Super USA Casino shall
reasonably specify from time to time. The notice shall
be as small as possible while still remaining legible
to the average viewer.
- 1.3
- All other rights and licenses not expressly granted
to Reseller herein are reserved by Super USA Casino.
- Obligations of Super USA Casino.
- 2.1
- Super USA Casino will provide access to; (a) casino style
games (b) sports book, (c) lottery ticket distribution,
(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 Super USA Casino in its sole discretion.
- 2.2
- Super USA Casino shall retain the right to provide the Service
in what ever form Super USA Casino deems appropriate.
- 2.3
- Super USA Casino shall retain the right to change any part
of the Service at anytime, without notice to Reseller,
in whatever manner Super USA Casino deems appropriate.
- 2.4
- Super USA Casino shall retain the right to cancel any part
of the Service at any time, without notice to Reseller,
in whatever manner Super USA Casino deems appropriate.
- 2.5
- Not withstanding anything in this Agreement, Super USA Casino
shall not be held responsible or liable for any loss
of income or loss of ability to produce income, on the
part of the Reseller, arising from any inability of
Super USA Casino to deliver the Services contemplated in this
Agreement for any reason whatsoever, whether Super USA Casino
is at fault or whether a third party is at fault.
- Obligations of Reseller.
- 3.1
- Reseller 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 Reseller and
to Super USA Casino. Reseller shall only engage in advertising,
marketing and promotional efforts which do not violate
any law and which reflect positively upon the business
reputation of Super USA Casino. In particular, Reseller agrees
to market the product in a manner that is consistent
with the content and style of the Service. In connection
therewith, Super USA Casino 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 Reseller in connection with the Service.
Approval may be withheld if Super USA Casino determines, in
its sole discretion, that any such activities would
tend to reduce the value of, or would impair Super USA Casino's
goodwill and business reputation, or would expose Super USA Casino
to legal liability.
- 3.2
- Notwithstanding any approval by Super USA Casino given in
accordance with section 3.1 of this Agreement, Super USA Casino
shall under no circumstances be held liable for, and
Reseller shall indemnify, defend and hold Super USA Casino harmless
against, any and all claims asserted against Super USA Casino
by reason of Reseller's marketing and promotional efforts
undertaken hereunder.
- 3.3
- Reseller 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.
- Compensation.
- 4.1
- As used herein, "Reseller Percentage" shall
mean the percentage paid to Reseller of the actual net
revenue received from a user (the "Customer")
for approved use of the Service. The actual Reseller
Percentage shall be equal to 25% of the Net Monthly
Revenue. "Net Monthly Revenue" shall mean
the total amount wagered in the casino and the sportsbook,
less the total amount paid out as winnings in the casino
and the sportsbook, PLUS, total sales of lottery tickets,
less the invoiced cost for purchasing lottery tickets
for the lottery ticket sales and less the amount for
all merchant banking fees.
- 4.2
- Super USA Casino shall pay Reseller 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.
- Term and Termination.
- 5.1
- This Agreement shall commence and be deemed effective
on the date when accepted by an authorized representative
of the Reseller (the "Effective Date"). This
Agreement shall be deemed to be accepted by the Reseller
when the Reseller chooses "YES" to the "Super USA Casino
WAGERING AND GAMING PARTNERS AGREEMENT" and hits
the submit button on the Reseller Sign-up page. This
Agreement is in effect for a period of one (1) year
(the "Term") with additional one (1) year
extensions at Reseller's option. If Reseller elects
to exercise this option, the option as exercised must
be addressed to Super USA Casino in writing, no later than forty
five (45) days prior to the expiration of the Term.
In addition, Super USA Casino, after six months from the Effective
Date, shall have the right to terminate this contract
if Reseller fails to generate a minimum of three hundred
(300) "Independent customers" in any given
month for the first five months and five hundred (500)
in any given month thereafter. Said, notification will
be sent in writing, at least thirty (30) days prior
to the expiration of the term. Notwithstanding anything
in this Agreement neither party shall have the right
to terminate this Agreement within the first six months
of the Agreement.
- 5.2
- Upon termination of this Agreement, Reseller shall
immediately return to Super USA Casino any and all Super USA Casino
materials which Super USA Casino has a proprietary right in
that are in Reseller's possession and/or in the possession
of Reseller's agents, servants and employees.
- 5.3
- Customers using Super USA Casino's facilities and all information
relating to these customers shall remain the property
of Super USA Casino at all times during the operation of this
contract and after termination.
- Accounting Statements.
- 6.1
- All payments due to Reseller by Super USA Casino 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 Super USA Casino with respect
to the Reseller customers, the number of Reseller Customers
wagering and the calculation of the monies being paid
to Reseller. Additionally, statements may be adjusted
by Super USA Casino from time-to-time to reflect overpayments,
consumer charge backs and/or, credits or underpayments
by Super USA Casino.
- 6.2
- Super USA Casino shall hold back 10% of each months payment
due to Reseller (the "Hold Back Amount").
The Hold Back Amount shall be retained by WorldGaming
for a period of 90 days. If the charge backs pertaining
to the sales made by Reseller for any given month are
less than 10% of the Reseller Percentage, then Super USA Casino
shall pay the difference to Reseller with the next monthly
installment after the 90 day hold back period. If the
charge backs pertaining to the sales made by Reseller
for any given month are greater than 10% of the gross
sales on which commissions are paid to Reseller, then
Super USA Casino shall adjust the payment due to Reseller in
accordance with section 6.1 of this Agreement.
- Audit Rights.
Reseller may designate a Chartered Accountant to examine
the books and records of Super USA Casino with respect to this Agreement.
Said examination shall be at Reseller'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 Reseller gives written notice of such audit to Super USA Casino.
Accounting statements rendered by Super USA Casino shall be deemed
conclusive if not challenged by Reseller within thirteen
(13) months after being rendered.
- Exclusivity, Non-Competition and Ownership of Service
Name.
- 8.1
- Reseller agrees, understands and acknowledges that
Super USA Casino may enter into Agreements of this type with
third parties to promote the Service or a similar version
thereof.
- 8.2
- Reseller has not paid consideration for the use of
Super USA Casino's or Super USA Casino licensors' trademarks, logos,
copyrights, trade names, the Service name referred to
in Recital B, or designations, and nothing contained
in this agreement shall give Reseller any right, title
or interest in or to any of them. Reseller acknowledges
that Super USA Casino and Super USA Casino licensors own and retain
all copyrights and other proprietary rights in all of
the foregoing, as well as any Software supplied by Super USA Casino.
Reseller 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 Super USA Casino
(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, Reseller 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 Super USA Casino. Reseller 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 Reseller's name or any name under
which Reseller does business. Reseller shall not affix
a trademark, logo or trade name of Super USA Casino or Super USA Casino
Licensors to any non-Super USA Casino product. Reseller shall
not alter, erase, deface or overprint any proprietary
rights notice on anything provided by Super USA Casino.
- Confidentiality and Non-Disclosure.
- 9.1
- Reseller and Super USA Casino each agrees that during the
course of this Agreement, each may have access to and
become acquainted with Confidential Information of the
other. Reseller and Super USA Casino 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. Reseller and Super USA Casino 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. Reseller and Super USA Casino 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 Super USA Casino 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.
- Representations, Warranties and Indemnity.
- 10.1
- Reseller warrants, represents and covenants to Super USA Casino
that: (a) Reseller has the full legal right, power and
authority to enter into and perform this Agreement,
and to grant to Super USA Casino the rights set forth in this
Agreement; and (b) Reseller 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
- Reseller agrees to indemnify and hold Super USA Casino harmless,
and further agrees to defend Super USA Casino through the service
of an attorney chosen and approved by Super USA Casino, 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 Reseller
of any representation, warranty or agreement contained
in this section 10, or elsewhere in this Agreement.
- 10.3
- In no event shall Super USA Casino be liable to the Reseller,
Reseller'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, Super USA Casino has been advised of the possibility
of such damages.
- No Representation or Guarantee Regarding Profits or
Income
Reseller agrees, understands and acknowledges that the
Super USA Casino, 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 Reseller and/or "Reseller's agents, servants and/or
employees regarding profits, income, or money which Reseller
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 Super USA Casino in this regard is an expression of opinion only
and Reseller agrees understands and acknowledges that they
have not been induced to, and/or persuaded thereby to, enter
into this "Agreement" and that Reseller 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.
- Assignment.
This Agreement and rights and duties here under may not
be assigned or transferred, either in whole or in any part
by Reseller without the express prior written consent of
Super USA Casino, which consent shall not be unreasonably withheld.
- 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 here to.
- 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.
- 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 here in.
- 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 e-mail 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
three (3) days following delivery through electronic mail
(e-mail):
Super USA Casino E-mail: webmaster@superusacasino.com
- 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 six (6) months
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
the Antigua, pursuant to the Arbitration legislation
then in effect in the Antigua. 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 Super USA Casino'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.
- 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.
- 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.
- Governing Law.
This Agreement shall be governed by and construed in accordance
with the laws of the Antigua.
- Survival of Rights.
Not with standing 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.
- 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.
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