Tropical Casino Wagering & Gaming Reseller Agreement
Agree to the terms of the agreement by clicking "I AGREE" at the bottom of the the agreement to continue to the sign-up page.
THIS AGREEMENT (the "Agreement") is entered into by and between Tropical Casino,
a company with offices located at the Antigua and the Reseller.
RECITALS
- Tropical 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 Tropical 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 "Tropical Casino".
- Reseller desires to obtain from Tropical Casino, and Tropical 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
- Tropical 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
- Tropical 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 Tropical 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 Tropical 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 Tropical 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 Tropical Casino.
- Obligations of Tropical Casino.
- 2.1
- Tropical Casino will provide access to; (a) casino style games (b) sports
book, (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 Tropical Casino in its sole discretion.
- 2.2
- Tropical Casino shall retain the right to provide the Service in what ever
form Tropical Casino deems appropriate.
- 2.3
- Tropical Casino shall retain the right to change any part of the Service
at anytime, without notice to Reseller, in whatever manner Tropical Casino
deems appropriate.
- 2.4
- Tropical Casino shall retain the right to cancel any part of the Service
at any time, without notice to Reseller, in whatever manner Tropical Casino
deems appropriate.
- 2.5
- Not withstanding anything in this Agreement, Tropical 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 Tropical Casino to deliver the Services contemplated in this Agreement for
any reason whatsoever, whether Tropical 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 Tropical 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 Tropical 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, Tropical 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 Tropical Casino determines, in its sole discretion, that any such activities
would tend to reduce the value of, or would impair Tropical Casino's goodwill
and business reputation, or would expose Tropical Casino to legal liability.
- 3.2
- Notwithstanding any approval by Tropical Casino given in accordance with
section 3.1 of this Agreement, Tropical Casino shall under no circumstances
be held liable for, and Reseller shall indemnify, defend and hold Tropical Casino
harmless against, any and all claims asserted against Tropical 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
- Tropical 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 "Tropical 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 Tropical Casino in writing, no later
than forty five (45) days prior to the expiration of the Term. In addition,
Tropical 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 Tropical Casino any and all Tropical Casino materials which Tropical 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 Tropical Casino's facilities and all information relating
to these customers shall remain the property of Tropical Casino at all times
during the operation of this contract and after termination.
- Accounting Statements.
- 6.1
- All payments due to Reseller by Tropical 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 Tropical 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 Tropical Casino from time-to-time to reflect overpayments, consumer
charge backs and/or, credits or underpayments by Tropical Casino.
- 6.2
- Tropical 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 Tropical 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 Tropical 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 Tropical 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 Tropical Casino. Accounting statements
rendered by Tropical 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 Tropical 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 Tropical Casino's or Tropical 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 Tropical Casino and Tropical Casino licensors
own and retain all copyrights and other proprietary rights in all of the
foregoing, as well as any Software supplied by Tropical 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 Tropical 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 Tropical 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
Tropical Casino or Tropical Casino Licensors to any non-Tropical Casino product. Reseller
shall not alter, erase, deface or overprint any proprietary rights notice
on anything provided by Tropical Casino.
- Confidentiality and Non-Disclosure.
- 9.1
- Reseller and Tropical 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 Tropical 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 Tropical 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 Tropical 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 Tropical 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 Tropical Casino that: (a)
Reseller has the full legal right, power and authority to enter into and
perform this Agreement, and to grant to Tropical 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 Tropical Casino harmless, and further
agrees to defend Tropical Casino through the service of an attorney chosen
and approved by Tropical 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 Tropical 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, Tropical 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 Tropical 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 Tropical 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 Tropical 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):
Tropical Casino E-mail: Click Here
- 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 Tropical 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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