PokerGalaxy Affiliate Program Agreement
PokerGalaxy ("PokerGalaxy") is in the business of producing, marketing and promoting online gaming services (the "Service"), which are accessed on the Internet through the use of a personal computer, modem and/or direct Internet access.
The Referral Company or person ("Referral Company") desires to obtain from PokerGalaxy and PokerGalaxy agrees to grant the Referral Company, the non-exclusive right and license to advertise, market and promote the Service and the PokerGalaxy Affiliate Program. PokerGalaxy shall reimburse the Referral Company for these promotional services in accordance with the following terms and conditions:
1. Grant of Promotion and Distribution License
1.1. PokerGalaxy grants the Referral Company the non-exclusive, non-transferable right and license to advertise, market and promote the Service ("Promotion Rights") in accordance with the terms and conditions hereof. All other rights and licenses not expressly granted to the Referral Company herein are reserved by PokerGalaxy.
2. Obligations of PokerGalaxy
2.1. PokerGalaxy shall retain the right to provide the Service and operate its Affiliate Program in any form PokerGalaxy deems appropriate; and retains the right to change any part of the Service, at any time and in any manner PokerGalaxy deems appropriate, and make alterations to its Affiliate Program without prior notice to the Referral Company. However, any strategic change of policy towards the Referral Company, such as the cancellation of any part of the Service at any time, shall be made with prior notice to the Referral Company.
2.2. PokerGalaxy shall retain the right to cancel any part of the Service or alter and/or close its Affiliate Program at any time and in any manner PokerGalaxy deems appropriate. However, should PokerGalaxy wish to cancel any Promotion Rights because of any failure or breach of these Terms and Conditions on behalf of the Referral Company, PokerGalaxy shall give the Referral Company notice of this fact in order to give the Referral Company the opportunity to make desired modifications. Cancellation shall be effective seven (7) days after notice of cancellation to the Referral Company unless the desired modifications have been made and/or other terms have been agreed upon within this seven-day period.
2.3. Notwithstanding the terms of these Terms and Conditions, PokerGalaxy shall not be held responsible or liable for any loss of income, or loss of the ability to produce income, incurred by the Referral Company; even if such losses should arise from the inability of PokerGalaxy to deliver the Service and/or operate its Affiliate Program as stipulated in these Terms and Conditions for any reason whatsoever, whether PokerGalaxy is at fault or whether a third party is at fault.
3. Obligations of The Referral Company
3.1. The Referral Company shall use its best efforts to actively and effectively advertise, market and promote the Service and, optionally, the PokerGalaxy Affiliate Program as widely as possible so as to maximize the benefit to the Referral Company and to PokerGalaxy.
3.2. Within six (6) months and at all time after that, the Referral Company must have a minimum of ten (10) active accounts. An active account is defined as raking more then $50 in the last three (3) months.
3.3. The Referral Company shall engage only in advertising, marketing and promotional efforts which do not violate any law, and which reflect positively upon the business reputation of PokerGalaxy. In particular, the Referral Company agrees to market the Service and, optionally, the PokerGalaxy Affiliate Program in a manner that is consistent with the content and style of the Service. In connection therewith, PokerGalaxy shall have the right to review and approve the manner and methods of advertising, marketing and promotion used by the Referral Company in connection with the Service and the PokerGalaxy Affiliate Program. Approval shall not be unreasonably withheld.
3.4. Approval may be withheld if PokerGalaxy determines, in its sole discretion, that the activities of the Referral Company would tend to impair or reduce the value of the goodwill and business reputation of PokerGalaxy and/or would expose PokerGalaxy to legal liability.
3.5. Notwithstanding the approval by PokerGalaxy given in accordance with section 3.2 of these Terms and Conditions, PokerGalaxy shall under no circumstances be held liable for--and the Referral Company shall indemnify, defend and hold PokerGalaxy harmless against--any and all claims asserted against PokerGalaxy by reason of the Referral Company's marketing and promotional efforts.
The Referral Company shall bear all costs and expenses incurred in connection with the advertising, marketing and promotion of the Service and/or the PokerGalaxy Affiliate Program; including without limitation, all costs directly related to marketing.
4.1. As used herein, the Referral Company's compensation ("Referral Percentage")
shall be defined as the compensation due to the Referral Company, based on
(1) a percentage of actual monthly gross revenue ("Net Gaming") generated
by the customers ("Users"), who have been identified as having utilized
the Service as a result of having first been referred to the Service by the
Referral Company and (2) a percentage of the Net Gaming-based commission earned
by each PokerGalaxy Affiliate Program participant, who has been identified
as having been first referred to join the PokerGalaxy Affiliate Program by
the Referral Company.
The actual Referral Percentage shall be equal to:
7% of gross monthly revenue ("Net Gaming") up to USD 100,000
generated by Users who utilize the Service after first having been referred
to the Service by the Referral Company. The actual percentage on any and all
gross revenue in excess of USD 100,000/month (received from Users who utilize
the Service after having first been referred to the Service by the Referral
Company) shall be subject to a separate agreement between the parties, plus
4.2. Boss Casinos shall, upon the request of the Referral Company, pay the Referral Company each month for services rendered during and/or before the preceding calendar month. Payments that have been requested and approved shall be made prior to the 20th day of each month by making the funds payable to the Referral Company. If the total payable amount of compensation to the Referral Company in any given month is less than USD 50, the amount shall be made payable a succeeding month, when the accumulated amount is greater than or equal to USD 50.
4.3. PokerGalaxy shall have the right to withhold any and all payments to the Referral Company if the Referral Company is in breach of these Terms and Conditions.
5. Term of Duration and Cancellation
5.1. PokerGalaxy has the right to cancel Promotion Rights with immediate effect if the Referral Company is in material breach of these Terms and Conditions. Such breach includes, but is not limited to, situations when the Referral Company engages in advertising, marketing, distribution and promotional efforts that would impair the goodwill and business reputation of PokerGalaxy or would expose PokerGalaxy to legal liability.
5.2. Upon the cancellation of Promotion Rights, the Referral Company shall immediately return to PokerGalaxy any and all materials, over which PokerGalaxy has a proprietary right, that are in the Referral Company's possession and/or in the possession of the Referral Company's agents, servants and employees. The Referral Company shall also immediately remove any hyperlinks and materials, over which PokerGalaxy has a proprietary right, from the Referral Company's web site and/or the web sites of the Referral Company's agents.
5.3. If Promotion Rights are canceled, and the Referral Company is not in default of these Terms and Conditions, the Referral Company shall have the right to continue to receive a Referral Percentage as defined in Section 4.1 for four months after the day Promotion Rights are cancelled.
5.4. Users that utilize the facilities and services of PokerGalaxy, and all information relating to such Users, shall remain the property of PokerGalaxy at all times.
6. Account Statements
6.1. All payments due to the Referral Company shall be made on or before the twentieth (20th) day of each month, and will reflect payment for services rendered during and/or before the preceding month. Payment shall be accompanied by a written statement that specifies the calculation of the sum to be paid to the Referral Company based on the terms defined in Section 4.1. In addition, statements may be adjusted by PokerGalaxy from time to time to reflect overpayments, customer chargebacks and/or credits or underpayments to customers by PokerGalaxy
6.2. The Referral Company shall have the ability to monitor the Referral Percentage and payments in real time on a secure web site through the use of an online monitoring system.
7. Exclusivity, Non-Competition and Ownership of Servicename
7.1. The Referral Company agrees, understands and acknowledges that PokerGalaxy may enter into agreements of this type with third parties to promote the Service or a similar version thereof.
7.2. The Referral Company has not paid for the use of the trademarks, logos, copyrights, trade names or designations belonging to PokerGalaxy, and nothing contained in these Terms and Conditions shall give the Referral Company any right to, title to or interest in any of them.
7.3. The Referral Company acknowledges that PokerGalaxy owns and retains all copyrights and other proprietary rights, as well as any software supplied by PokerGalaxy, in all of the foregoing. The Referral Company shall not assert any claim or interest in any trademark, trade name, copyright, service mark or logo belonging or licensed to PokerGalaxy, or do anything to adversely affect their validity or enforceability. This includes any act or assistance in any act that may infringe upon, or lead to the infringement of, any software copyright.
7.4. Without limiting the generality of the foregoing terms, the Referral Company shall not itself attempt, 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 PokerGalaxy. The Referral Company shall not attach any additional trademarks, logos or trade designations to the Software; and shall ensure that none of the trademarks (or any variations thereof) appear in any portion of the Referral Company's name or any name under which the Referral Company conducts business. The Referral Company shall not affix a trademark, logo or trade name of PokerGalaxy to any non-PokerGalaxy product. The Referral Company shall not alter, erase, deface or overprint any notice of proprietary rights on anything provided by PokerGalaxy.
8. Confidentiality and Non-Disclosure
The Referral Company and PokerGalaxy each agree that each may have access to, and become acquainted with, confidential information of the other. The Referral Company and PokerGalaxy each specifically agree not to misuse, misappropriate or disclose any such confidential information, directly or indirectly, to any third party.
9. Representations, Warranties and Indemnity
9.1. The Referral Company warrants, represents and covenants to PokerGalaxy that that it has all necessary rights, licenses, permissions and business permits; and will comply with all applicable laws, rules and regulations in connection with promoting the Service and/or the PokerGalaxy Affiliate Program to Users and others.
9.2. The Referral Company agrees to indemnify and render PokerGalaxy harmless against claims, liabilities, causes of action, damages, judgments, costs and expenses arising out of, or in any way connected with, any breach or alleged breach by the Referral Company of any representation, warranty or agreement contained in this Section 9 or elsewhere in these Terms and Conditions.
10. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of Costa Rica.