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