888.COM AFFILIATE AGREEMENT

 

This Affiliate Agreement (this "Agreement") contains the complete terms and conditions between ourselves, Cassava Enterprises (Gibraltar) Limited ("Cassava" or "we"), and you, regarding your application to participate as an affiliate (an "Affiliate") of Cassava. As an affiliate your role will be to promote "Casino-on-Net/888.com" site owned and operated by Cassava (the "Casino Site") and/or the "PacificPoker.com" site owned and operated by Cassava (the "Poker Site") (the Casino Site and the Poker Site collectively referred to as the "Sites")

 

Execution by you of this Agreement as set forth below constitutes your acceptance of the terms and conditions of this Agreement, and will be a legally binding agreement between you and us.

1. Affiliate Program Application and Enrollment. To become an Affiliate you will have to submit a completed Affiliate Program Application. We will evaluate your application and, where applicable, notify you of your acceptance. We may reject your application if we determine, in our sole discretion, that Your Site is not suitable for the Affiliate Program for any reason, including, but not limited to, inclusion of content on Your Site that we deem is in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable, which by way of example only, contains (i) sexually explicit, pornographic or obscene content (whether in text or graphics), (ii) speech or images that are offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability or otherwise), (iii) graphic violence, (iv) politically sensitive or controversial issues or (v) any unlawful behavior or conduct. Similarly, we shall reject your application if we determine, in our sole discretion, that Your Site is designed to appeal to minors. If we reject your application, you are welcome to reapply to the Affiliate Program at any time.

2. Setting Up Links and Promotions. In the event of your acceptance to the Affiliate Program, we will make available to you, banner advertisements, button links, text links and other links as determined by Cassava which shall all link to either the Casino Site or the Poker Site (collectively referred to hereinafter as a "Link"), which you may display on Your Sites, provided you abide by the terms and conditions of this Agreement. In using the Links, you agree that you will cooperate fully with us in order to establish and maintain the Links. If during the term of this Agreement you wish to place the Links on Web sites other than those Web sites which you have previously reported to Cassava and which Cassava have approved ("Alternative Sites"), you shall be obligated to request and receive Cassava’s permission for the placement of the Links on Alternative Sites. You may not modify a Link, unless you have received prior written consent from Cassava to do so. In the event that we determine that your use of any Link is not in compliance with the terms of this Agreement, we shall be entitled to take such measures as to render inoperative the Links used by you. You may not advertise the Sites in any way not approved in advance by Cassava including, without limitation, the use of spam e-mails. In addition to your use of Links you may promote the Sites by means of (i) distribution of CDs containing Site-related software (the "CDs") to potential Real New Players, as defined below and (ii) the publication of bonus codes (each a "Promotion" and collectively the "Promotions"). Your activities in relation to a Promotion shall be strictly in accordance with Cassava’s relevant guidelines as such shall exist and be amended from time to time. Your offering of a Promotion at any time shall be conditional on your receipt of our prior written approval for the Promotion and in the event that you do not receive our approval in relation to the Promotion, you shall not be permitted to receive any commissions generated on account of Real New Players who have become such in connection unapproved Promotions.

3. Real New Players.   A "Real New Player" shall mean an Internet user who accesses the Casino Site or the Poker Site directly through the a Link, opens a new user account and make the required minimum deposit in such account, and plays on either the Casino Site or Poker Site. Neither you nor your relatives are eligible to become Real New Players and should you or they do so you will not be eligible to receive the relevant commission. For this purpose, the term "relative" shall mean any of the following: spouse, partner, parent, child or sibling. The number of Real New Players per individual household computer is strictly limited to one. Cassava’s measurements and calculations in relation to the number of Real New Players and the relevant Gross Revenue figures shall be the sole and authoritative tool such measurements and calculations and shall not be open to review or appeal. We shall make the number of Real New Players and the relevant Gross Revenue figures available to you through our Affiliate Program information site. To permit accurate tracking, reporting, and commission accrual, you must ensure that the Links between Your Site and the Sites are properly formatted throughout the term of this Agreement.

4. Commissions. Depending on which commission scheme you choose to participate in, Cassava will pay you either:

 

(i)

PER CASINO REAL NEW PLAYER SCHEME:

 

PER POKER REAL NEW PLAYER SCHEME:

 

OR

(ii)

CASINO GROSS REVENUE SHARE SCHEME:*

 

POKER GROSS REVENUE SHARE SCHEME:*

 

For these purposes the term "Poker Gross Revenue" shall mean the sum total of all Real New Players’ contributions to "rakes" the Real New Players were involved in while playing at Our Site, less any credits, bonus or promotional amounts given to Real New Players, chargebacks or any uncollectable revenue attributable to the Real New Players. A Real New Player's contribution to a "rake" shall be determined by multiplying the quotient obtained when dividing the actual amount to a hand contributed by the Real New Player by the total bet of each hand, by the total "rake" of the hand in question. For example, if the Real New Player’s contribution to the hand is two Dollars ($2.00) and the total bet in the hand is ten Dollars ($10.00) and the "rake" of the hand in question is one Dollar ($1.00), the Real New Player's contribution to the rake will be twenty cents ($0.20).

For these purposes the term "Casino Gross Revenue" shall mean the sum total of all of a Real New Player’s bets while playing at the Site, less the winnings of a Real New Player, less any credits, bonus or promotional amounts given to a Real New Player, less any chargebacks (including amounts paid as a result of credit card abuse or fraud, or paid to a Real New Player by the Company to settle a claim involving the allegation of credit card or other abuse or fraud) or any uncollectable revenue attributable to Real New Player.

We hereby retain the right to convert the commission scheme by which you shall be paid as we shall see fit.

All commissions shall be paid to you on a monthly basis, within approximately 30 days following the end of each month. Payments of commissions shall be made directly to you as per your preferred payment method elected by you as part of your application process. In the event that you provide Cassava with incorrect or incomplete details in relation to your preferred payment method and Cassava is not able to transfer the commissions to you, Cassava reserves the right to subtract from the commissions due to you an amount of money to reflect the required investigation and additional work created by your having provided incorrect or incomplete details. Cassava shall be entitled to set-off from the amount of commission to be paid to you any associated costs related to the transfer of such commission. In the event that thecommission to be paid to you in any calendar month is less than $50 (the "Minimum Amount"), Cassava shall not be obligated to make the payment until such time as the commission is equal to or greater than the Minimum Amount. Cassava retains the right to review all commissions for possible fraud, where such fraud may be on the part of the Real New Player or on your part. Any incidence of fraud on your part constitutes a breach of this Agreement, and Cassava retains full authority to terminate this Agreement immediately in the event of such breach. Further, in the event that Cassava deems that fraud has occurred, either on your part or on the part of a Real New Player, you shall not be entitled to receive any commissions which have accrued to your benefit at such time whether such commissions were generated through fraud or otherwise. You are urged to provide accurate details in regard to the manner and information relating to your preferred method of receiving commissions and Cassava shall not be held liable for your delayed receipt of commissions due to your provision of inaccurate details.

5. Contact with Real New Players. All Real New Players shall be considered to be customers of Cassava only. Should you wish to contact a Real New Player you are obligated to first receive Cassava’s written approval for such contact and without such approval you are expressly forbidden from making contact and corresponding with Real New Players. If in the opinion of Cassava you either try to or do make contact with a Real New Player without Cassava’s written approval, Cassava shall be entitled to immediately terminate this Agreement and to indefinitely withhold all commissions owing to you at such time. Further, if following your receipt of Cassava’s written approval for your contacting or corresponding with a Real New Player, Cassava deems that such contact or correspondence is against the best interests of Cassava, Cassava shall have the right to revoke the approval previously granted, to terminate this Agreement and to indefinitely withhold all commissions owing to you at such time.

6. Intellectual Property. In the event of your acceptance to the Affiliate Program, we shall grant you a non-transferable, non-exclusive, revocable license to place the Links on Your Site during the term of this Agreement, and solely in connection with the Links, to use our logos, trade names, trademarks, service marks and similar identifying material (collectively, "Licensed Materials"), solely for the purpose of promoting the Sites. You are not permitted to alter, modify or change the Licensed Material in any way whatsoever. You may not use any Licensed Materials for purposes other than promoting the Sites, without first submitting a sample of such use to us and receiving our prior written consent. You are not permitted to use the Licensed Materials in any manner that is disparaging or that otherwise portrays Cassava or anyone else negatively. We reserve all of our intellectual property rights in the Licensed Materials and the CDs. We may revoke your license to use the Licensed Materials and/or the CDs at any time by written notice to you. You acknowledge that, except for the license which may be granted to you in connection hereto, you have not acquired and will not acquire any right, interest or title to the Links, the Licensed Materials or the CDs by reason of this Agreement or your activities hereunder. The aforementioned license shall terminate upon the termination of this Agreement.

7. Obligations Regarding Your Site. You will be solely responsible for the technical operation of Your Site and the accuracy and appropriateness of materials posted on therein. You agree that Your Site will not, in any way, copy or resemble the look and feel of the Casino Site or the Poker Site nor will you create the impression that Your Site is the Casino Site or the Poker Site. You also agree that Your Site will not contain any content of the Sites or any materials which are proprietary to Cassava, except (i) with our prior permission, or (ii) materials obtained by you via the Affiliate Program information site in accordance with the provisions hereof or the policies or instructions therein. You will indemnify and hold Cassava harmless from all claims, damages, and expenses (including, without limitation, attorney’s fees and professional witness fees) relating to the development, operation, maintenance, and contents of Your Site or any materials, products or services linked to therein. You hereby acknowledge that your conduct as an Affiliate shall reflect on Cassava and has the potential to cause substantial damage to Cassava’s reputation and goodwill and that you shall at all times consider the goodwill and reputation of Cassava and Cassava’s name.

8. Term. The term of this Agreement will begin upon your acceptance to the Affiliate Program and will end when terminated by either Party. At any time, either Party may immediately terminate this Agreement, with or without cause, by giving the other Party written notice of termination, where such notice may be served via fax or e-mail. We reserve the right to withhold your final payment for a reasonable time to ensure that the correct amount is paid. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from Your Site, all Links and Licensed Materials and any other names, marks, symbols, copyrights, logos, designs, or other proprietary designations or properties owned, developed, licenses or created by us and/or provided by or on behalf of us to you pursuant to this Agreement or in connection with the Affiliate Program. Following the termination of this Agreement and our payment to you of all commissions due at such time of termination, we shall have no obligation to make any further payments of commissions to you.

9. Modification. We may modify any of the terms and conditions contained in this Agreement, at any time at our sole discretion. Posting on our Affiliate Program information site of a change of terms notice or a new agreement is considered sufficient provision of notice and such modifications shall be effective as of the date of posting. Modifications may include, but are not limited to, changes in the scope of available commission fees, commission schedules, payment procedures, and Affiliate Program rules. If any modification is unacceptable to you, your sole recourse is to terminate this Agreement and your continued participation in the Affiliate Program following our posting of a change notice or new agreement on our Web site will constitute binding acceptance of the change. Due to the above, we advise you to frequently visit the Affiliate Program information site and review the terms and conditions of this Agreement.

10. Limitation of Liability. We will not be liable for indirect, special or consequential damages, or any loss of revenue, profits or data arising in connection with this Agreement or the Affiliate Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Affiliate Program will not exceed the total commissions paid or payable to you under this Agreement.

11. Relationship of Parties. You and Cassava are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.

12. Disclaimers. We make no express or implied warranties or representations with respect to the Affiliate Program or any products or other items sold through the Affiliate Program (including without limitation warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of the Sites will be uninterrupted or error-free, and will not be liable for the consequences of any interruptions or errors.

13. Representations and Warranties. You hereby represent and warrant to us the following: (i) this Agreement has been duly and validly executed by you and constitutes your legal, valid and binding obligation, enforceable against you in accordance with its terms; (ii) the execution, delivery and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby will not conflict with or violate any provision of law, rule, regulation or agreement to which you are subject to; and (iii) you are an adult of at least 18 years of age. You further represent that you have evaluated the laws relating to your activities and obligations hereunder and you have independently concluded that you can enter this Agreement and fulfill your obligations hereunder without violating any applicable rule of law.

14. Confidentiality. We may disclose to you certain information as a result of your participation as part of the Affiliate Program, which information we consider to be confidential (herein referred to as "Confidential Information"). Confidential Information shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for your own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public or if the same is required by law or legal process.

15. Indemnification. You hereby agree to indemnify, defend and hold harmless Cassava, its shareholders, officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all claims, losses, liabilities, damages or expenses (including attorneys’ fees and costs) of any nature whatsoever incurred or suffered by us (collectively the "Losses"), in so far as such Losses (or actions in respect thereof) arise out of or are based on (i) the breach of this Agreement by you or any representation or warranty made by you herein; or (ii) any claim related to Your Site.

16. Entire Agreement. T The provisions contained in this Agreement constitute the entire agreement between the parties with respect to the subject matter of this Agreement, and no statement or inducement with respect to such subject matter by any Party which is not contained in this Agreement shall be valid or binding between the Parties.

17. Independent Investigation. You acknowledge that you have read this Agreement, have had an opportunity to consult with your own legal advisors if you so desired, and agree to all its terms and conditions. You have independently evaluated the desirability of participating in the Affiliate Program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.

18. Miscellaneous. This Agreement and any matters relating hereto shall be governed by, and construed in accordance with English law and shall be subject to the exclusive jurisdiction of the Royal Courts of Justice, London. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the Parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.

19. Language Discrepancies In case of any discrepancy between the meanings of any translated versions of this Agreement, the meaning of the English Language version shall prevail.