This Marketing Agreement contains the complete terms and conditions that apply to an individual's or entity's participation in the Winter Marketing Package 2, 3 or 4 Marketing Program. As used in this Agreement, "we" means Winter Marketing and its operators and "you" means the individual or entity which applied as the "BENEFICIARY" for payment purposes on our online signup form.
1.1 By using our package 2, 3 or 4 option, YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT. Winter Marketing and its operators will automatically become counter-party to this Agreement.
1.2 IF YOU DO NOT WISH TO ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU MUST NOT USE OUR PACKAGE 2, 3 or 4 SERVICE.
2.1 "Site" means the Package 2, 3 or 4 website located at your requested domain name and its related pages.
2.2 "Player(s)" means a person that registers an account through your site.
2.3 "Tracker(s)" means the unique tracking number that we provide exclusively to you, during the term of this Agreement, through which we track your efforts and calculate your Marketing Fees.
2.5 "Purchase(s)" means funds transferred by Players to their Site account.
2.6 "Redeem(s)" means any and all funds withdrawn or cashed-out by Players from their Site account plus any Purchases reversed (or credits given) by us, in our sole discretion, to negate fraud, error, Player non satisfaction or through chargebacks.
2.7 "Net Revenue" will mean the sum of Purchases less Redeems less Current Account balances generated on your Tracker(s) based solely on our log files.
2.8 "Marketing Fees" is the percentage of Net Revenue due and payable to you, at the end of each calendar month, based solely on our system's data.
2.9 "Spam" means emails and messages that are sent by you, directly or indirectly, which: 1), contain false or misleading statements; 2), do not truthfully identify the source or the originating IP Address; 3), do not contain an online and real time Remove option; or 4) are sent to unsolicited recipients.
2.10 "Fraud Traffic" means Purchases or traffic generated at the Site through illegal means or in bad faith to defraud the system, regardless of whether or not it actually causes us harm. Fraud Traffic includes but is not limited to Spam, false advertising and unauthorized use of any third party copyrights or trademarks.
III. TERMS & CONDITIONS
3.1 Identity and Disclosure. You must provide true and complete information to us at all times; including but not limited to, your identity, contact information, payment instructions, nationality, residency and any other information that we may request from time to time.
3.2 Marketing Activities. You will establish the casino site onto the internet and provide hosting while this agreement is in force. To permit accurate tracking, reporting and Marketing Fee accrual, we will provide you with a unique Tracker for your use only.
3.3 Responsible Marketing. You will be solely responsible for your own website. You represent and warrant that you will not place Banners or Text Links to it on any website that contains any material which is libellous, unlawful or otherwise unsuitable. Unsuitable sites include but are not limited to websites which target persons under 18 years of age, display child pornography or other illegal acts, promote violence, promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, promote illegal activities and/or violate the intellectual property rights of others. Spam, in any form, will not be tolerated and is cause for immediate termination of your participation. In this event, all outstanding and future monies shall be permanently forfeited.
3.4 Good Faith Marketing. You will not knowingly or unknowingly benefit from known or suspected Fraud Traffic. Even if you did not knowingly generate the Fraud Traffic, we reserve the right to withhold the amount generated by the Fraud Traffic from your Marketing Fees. This is including, but not limited to, opening an account in your own name through your own Tracker. A test account (which you will not be paid commissions for) is allowed, but only if you notify us in advance.
3.5 Intellectual Property Rights and License. During the term of this Agreement only, we grant you a terminable, non exclusive, non transferable right to use Winter Marketing Banners and Text Links above SOLELY for connecting Players to your site. You may not take any action that may alter our rights in our marks, render the same generic or otherwise weaken the validity and good will of our marks.
3.6 Indemnification. You will defend, indemnify and hold us and our officers, directors, employees and representative harmless from and against any and all liabilities, losses, damages and costs, resulting from or arising from, your breach of this Agreement.
3.7 Player Information. By opening an account at our Site, Players will become our Players, and accordingly, all of our rules, policies and operating procedures will apply to them. We may in our sole discretion refuse to serve (or to close the account(s) of) any Player(s). Further, all data relating to the Players will remain our sole and exclusive property and you acquire no right to such information.
3.8 Site Design. All site designs and modifications produced by Winter Marketing remain the sole property of Winter Marketing and you must not continue to use any part thereof in the event of termination of this contract.
IV. REPORTS & PAYMENTS
4.1 Reports. We will track and report Player activities as necessary to summarize Player activity for purposes of calculating your Marketing Fees. The form, content and frequency of the reports may vary from time to time in our sole discretion. Generally, you will be provided with remote, unique password protected, online access to the total number and dollar amount of all Purchases and Redeems, for your Tracker on a daily and monthly basis.
4.2 Tracking. When a new Player registers through your casino Tracker, our system records the Player as yours based on a multi tier tracking system to ensure as close to 100% tracking as possible. The multi tier tracking is based on cookies and IP time stamping. In pursuit of state of the art systems, we may at any time change how the tracking is done as we in our sole discretion decide from time to time. Once an account is actually opened, then the account is permanently tagged with your Tracker so that all subsequent activity relating to that account will be credited to you via our database until the account is closed or this Agreement is terminated, whichever occurs first.
4.3 Marketing Fees. You will be paid for your marketing efforts based upon the agreed percentage of Net Revenues generated on your Tracker(s) per calendar month, as set forth below.
Volume of Net Revenue Per Month Percentage to you will be as specified of net for the casino (net revenue = purchases less redeems cashed out by players less current player account balance less bonuses, processing charges and chargebacks) You will also be paid a specified over-ride on the net revenue of webmasters you refer, depending on the package you choose.
4.4 Time for Payment. We pay all Marketing Fees on, or near the twentieth (20th) day after the close of each calendar month, by check, Neteller or wire transfer as you prefer. If you prefer wire, there is a $35.00 wire fee, per wire, which will be deducted from your payments. We may in our sole discretion require that payments in excess of $1,000.00 be wired to your account. ALL MARKETING FEES DUE AND PAYABLE HEREUNDER WILL BE PAID IN UNITED STATES DOLLARS ONLY.
4.5 Payment Minimums. You will only be sent a check or wire if the amount due is more than $200.00. If the Marketing Fees payable to you are less than $200.00 in any calendar month, then we may hold those fees until the total amount due is more than $200.00 (or if earlier) until this Agreement is terminated. If the amount due for a particular pay period is negative (Redeems exceed Purchases) then the negative amount will carried over to the following pay period.
V. TERM AND TERMINATION
5.1 Term and Termination. This Agreement will take effect when your site is brought online and will be continuous unless and until either party notifies the other party, in writing, that it wishes to terminate the Agreement, in which case, the Agreement will terminate immediately. TERMINATION IS AT WILL BY EITHER PARTY.
5.2 Effect of Termination The following will apply upon the effective date of termination:
-(a) You will remove all banners and text links taken from Winter Marketing and/or we may disable any or all of your Trackers;
-(b) All rights and licenses given to you under this Agreement will terminate immediately;
-(c) You will return all confidential information and cease use of any of our trade names, trademarks, service marks, logos, banners and other designations of Winter Marketing;
-(d) We may withhold Marketing Fees for up to one hundred and eighty (180) days to ensure that the correct amount is paid and that any fraud has been reversed;
-(e) If Site remains open or if Players obtained through the Tracker are still allowed to play and repurchase at our Site this will not constitute a continuation or renewal of this Agreement; and
-(f) You will be entitled to only to those unpaid Marketing Fees, if any, earned by you on or prior to the date of termination. You will not be entitled to Marketing Fees with respect to Player activities made after the termination date.
-(g) If your participation is terminated due to abuse of the program, all outstanding and future monies will be forfeited.
5.3 Suspension of Trackers. In the event you breach any provision of this Agreement and/or we receive a complaint against a particular Tracker, we may in our sole discretion, disable that particular Tracker, with or without notice, temporarily or permanently. In such cases, it is our sole option to suspend or disable your sites on a Tracker by Tracker basis rather than completely terminating this Agreement. The fact that we chose to leave some Trackers open does not entitle you to have all Tracker(s) operational or reactivated, nor does it entitle you to compensation for the disabled Trackers.
6.1 No Warranties. WE DO NOT WARRANT THAT OUR SYSTEM, NETWORK, SOFTWARE OR HARDWARE (OR THAT PROVIDED TO US BY THIRD PARTIES) WILL BE ERROR-FREE OR UNINTERRUPTED. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE QUALITY, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR SUITABILITY OF OUR SYSTEM, NETWORK, SOFTWARE OR HARDWARE (OR THAT PROVIDED TO US BY THIRD PARTIES). WE (OR OUR PROVIDERS OR UNDERLYING VENDORS) ARE NOT REQUIRED TO MAINTAIN REDUNDANT SYSTEM(S), NETWORK, AND SOFTWARE OR HARDWARE.
6.2 Billing and Collection Limitations. We may in our sole discretion, with or without notice, use any available means to block or restrict certain Players or Purchases so as to reduce the number of fraudulent, unprofitable purchases or for any reason whatsoever, including but not limited to daily or monthly purchase limits, address verification or negative and positive credit card databases. We do not guarantee or warrant the success of such fraud prevention efforts.
6.3 Liability Limitations. Our obligations under this Agreement do not constitute personal obligations of the directors, officers, employees or shareholders of Winter Marketing. Any liability arising under this Agreement will be satisfied solely from the revenues generated hereunder. Our liability is limited to direct damages, and in no event will we be liable for any indirect, special, incidental, consequential or punitive loss, injury or damage of any kind (regardless of whether we have been advised of the possibility of such loss).
VII. INDEPENDENT INVESTIGATION
7.1 Independent Investigation. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF MARKETING OUR SITE AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
7.2 Independent Research. You understand that Internet gambling laws may vary from state to state and country to country. YOU HAVE INDEPENDENTLY EVALUATED THE LAWS IN YOUR LOCALE WHICH APPLY TO YOUR ACTIVITIES AND BELIEVE THAT YOU MAY PARTICIPATE IN OUR MARKETING PROGRAM WITHOUT VIOLATING ANY APPLICABLE LAWS.
7.3 Non Exclusive. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY), ENTER INTO MARKETING TERMS WITH OTHER WEBSITES OR MARKETERS ON THE SAME OR DIFFERENT TERMS AS THOSE PROVIDED TO YOU HEREIN AND THAT SUCH OTHER WEBSITES OR MARKETERS MAY BE SIMILAR AND EVEN COMPETE WITH YOU. YOU UNDERSTAND THAT WE MAY RE DIRECT TRAFFIC AND USERS FROM OUR SITE TO ANY OTHER WEBSITE THAT WE DEEM APPROPRIATE IN OUR SOLE DISCRETION, WITHOUT ANY ADDITIONAL COMPENSATION TO YOU.
8.1 Notices. All notices pertaining to this Agreement will be given by email as follows: to us at [email protected]; and, to you at the address provided on our online signup form (or as subsequently updated by you to us in the event of change).
8.2 Relationship of Parties. There is no relationship of exclusivity, partnership, joint venture, employment or franchise between you or us under this Agreement. Neither party has the authority to bind the other nor to incur any obligation on the other's behalf, except as expressly provided herein. Nothing in this Agreement will be construed to provide any rights, remedies or benefits to any person or entity not a party to this Agreement.
8.3 Assignment. This Agreement and the rights and obligations hereunder may not be assigned by you without our express written consent.
8.4 Entire Agreement. This Agreement embodies the complete agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes and preempts any prior understandings or agreements between the parties, written or oral, which may be related to the subject matter hereof. The headings in this Agreement are for convenience only and will have no effect on the construction of this Agreement.
8.5 Modification. We may modify any of the terms of this Agreement at any time, in our sole discretion, by emailing you a change notice or by posting the new Agreement on our Site. Modifications may include, for example, changes in the scope of available Marketing Fees, Marketing Fee percentages, time for payment, software provider and marketing rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING POSTING OR NOTICE OF CHANGE WILL BE DEEMED BINDING ACCEPTANCE OF THE MODIFICATION.
8.6 Severability/Waiver. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law but, if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such provision will be ineffective only to the extent of such invalidity, or unenforceability, without invalidating the remainder of this Agreement or any provision hereof. No waiver will be implied from conduct or failure to enforce any rights and must be in writing to be effective.
8.7 Arbitration. Any controversy or claim arising out of or relating to this Agreement, or breach of this Agreement, will be settled by binding arbitration, and judgement on the award rendered by the arbitrator may be entered in any court having jurisdiction. There will be one arbitrator, mutually agreeable to the Parties, or if the Parties cannot agree on an arbitrator, then one will be appointed by a court of competent jurisdiction. The losing Party will pay all the expenses of the arbitration, including attorneys fees.
8.8 Force Majeure. The parties' obligations under this Agreement are subject to and neither party will be liable for, failure to perform, damage, or malfunction of any equipment, or any consequences thereof occasioned by or due to fire, flood, water, the elements, labor disputes, power failures, explosions, governmental actions, unavailability of transportation, acts or omission of third-parties, or any other causes beyond the party's reasonable control.
IN WITNESS WHEREOF, you expressly agree to the terms and conditions of this Agreement by activating your Tracker to the Software or submitting the online application.
ANY QUESTIONS REGARDING THIS AGREEMENT SHOULD BE DIRECTED TO [email protected]
Winter Marketing HQ
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