THIS MARKETING AGREEMENT (the
"Agreement") is entered into by and between GFB
International Ltd., its affiliates and wholly owned subsidiaries
("GFB"), a company with offices located in the Cook
Islands, and the Marketer.
A. GFB is in the business
of producing, marketing and promoting online casino Services.
B. Marketer desires to market
and promote the Service. This Service will be advertised,
marketed and promoted under the name "Casino San Fran"
or "Casino San Fran Online Casino".
C. Marketer desires to obtain
from GFB and GFB agrees to grant Marketer the non-exclusive
right and license to advertise, market and promote the Service,
in accordance with the following terms and conditions.
1. Site. Shall be defined
as the website at http://www.casinosanfran.com and its related
pages, plus the downloadable GFB casino software application
and all of its included files.
2. Player(s). A person that
enters the Site via links from the Marketer's Link Source
3. Link Source Location(s).
Shall mean the web page location or URL tat which the Marketer
will place ads or text links to the Site.
4. Banners and Links. Shall
mean online graphics or text at the Marketer's Link Source
Location that describe the Site and permit a person to click
on those graphics or text to hyperlink to the Site.
5. Purchase(s). Shall mean
funds purchased at Site by Players.
6. Withdrawal(s). Shall mean
funds withdrawn at Site by Players.
7. Net Revenue. Shall mean
the sum of Purchases, when actually received by GFB, less
Withdrawals, adjusted for credit-card chargebacks, to be shared
between GFB and Marketer in accordance with this Agreement.
Net Revenue shall be determined on a monthly basis on the
last day of each month, as calculated by GFB in good faith
8. Spam. Shall mean emails
that are sent by Marketer, directly or indirectly, which 1).
Contains false or misleading statements; 2). Do not truthfully
identify the sender or the originating mail's IP Address;
and/or 3). Do not contain a substantial and well-maintained
9. Fraudulent Activity. Shall
mean Purchases and/or Withdrawals initiated by Players that
cause damage or the loss of revenue to GFB. Such Fraudulent
Activity includes but is not limited to Spam by Marketer,
false advertising by Marketer, unauthorized use of GFB's copyrights
or trademarks by Marketer, and Marketer -made Purchases or
Withdrawals that are not in good faith, as determined by GFB
using reasonable discretion.
TERMS AND CONDITIONS
1. Marketing Rights and Restrictions
1.1 GFB grants to Marketer
the non-exclusive, non-transferable right to advertise,
market and promote the Service, in accordance with the terms
and conditions hereof.
1.2 All other rights and
licenses not expressly granted to Marketer herein are reserved
1.3 Marketer acknowledges
that GFB will not allow people residing in the United States,
Switzerland, or St. Kitts and Nevis, or any place where
gambling is expressly prohibited by law to place a wager
through the use of the Services contemplated herein.
2. Obligations of GFB.
2.1 GFB will provide access
to casino style games on its Site. GFB will provide all
financial and accounting services necessary to support its
Site in accordance with standard and commercially reasonable
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 GFB in its sole discretion.
2.2 GFB will provide software
on its Site to register referred customers and to record
which Marketer referred them. GFB reserves the right to
refuse Players according to the Player Eligibility Requirements
posted on the Site. GFB's software will track the Purchases
and Withdrawals of every Player. GFB will provide a monthly
report to Marketer listing the number of new referrals and
the total amount of Net Revenue generated by all Players
referred by Marketer during that month.
2.3 GFB may, at its sole
discretion, with or without notice, use any available means
to block or restrict certain Purchases so as to reduce the
number of fraudulent, uncollectible or unprofitable purchases,
including but not limited to daily or monthly purchase limits,
address verification, and negative and positive credit card
2.4 GFB may, at its sole
discretion, develop and implement promotional programs involving
bonuses of additional chips and other items to Players.
2.5 GFB shall retain the
right to provide the Service in what ever form GFB deems
appropriate. GFB shall retain the right to change any part
of the Service at anytime, without notice to Marketer, in
whatever manner GFB deems appropriate. GFB shall retain
the right to cancel any part of the Service at any time,
without notice to Marketer, in whatever manner GFB deems
2.6 Notwithstanding anything
in this Agreement, GFB shall not be held responsible or
liable for any loss of income or loss of ability to produce
income, on the part of the Marketer, arising from any inability
of GFB to deliver the Services contemplated in this Agreement
for any reason whatsoever, whether GFB is at fault or whether
a third party is at fault.
3. Obligations of Marketer.
3.1 Marketer shall not become
a Player, directly or indirectly, for purposes of generating
or affecting Net Revenue, except as necessary to test the
3.2 Transport, Billing and
Collection. Marketer accepts "AS IS" the Site
and the entire underlying system, network, administration,
content, billing, collection, prize payments, etc., including
modifications thereof. Marketer shall not be entitled to
any modification thereof, unless otherwise agreed in writing
by GFB. GFB agrees to use good faith efforts to have the
Site in an operational manner at all times, but GFB shall
not have any obligation to provide redundant components
or alternatives sites.
3.3 Marketing Limits. Marketer
shall not benefit from known or reasonably suspected Fraudulent
Activity. GFB reserves the right to withhold Marketing Fees
if GFB has reasonable cause to believe that Fraudulent Activity
has been caused with Marketer's knowledge. If it is determined
that marketer acted fraudulently, GFB shall be entitled
to retain all amounts due to Marketer under this Agreement.
3.4 Monthly Minimums. Marketer
shall endeavor to generate at least $50.00 per month of
Net Revenue by referred Players.
3.5 Marketing Activities.
Marketer shall, at its sole cost and expense, implement
an advertising plan to direct Players to the Site. Marketer
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 Marketer and to GFB. Marketer shall
only engage in advertising, marketing and promotional efforts
which do not violate any law and which reflect positively
upon the business reputation of GFB. In particular, Marketer
agrees to market the product in a manner that is consistent
with the content and style of the Service. In connection
therewith, GFB 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 Marketer in connection with the Service. Approval may
be withheld if GFB determines, in its sole discretion, that
any such activities would tend to reduce the value of, or
would impair GFB's goodwill and business reputation, or
would expose GFB to legal liability.
3.6 Liability. Notwithstanding
any approval by GFB given in accordance with sections 3.1
or 3.5 of this Agreement, GFB shall under no circumstances
be held liable for, and Marketer shall indemnify, defend
and hold GFB harmless against, any and all claims asserted
against GFB by reason of Marketer's marketing and promotional
efforts undertaken hereunder.
3.7 Expenses. Marketer shall
bear all costs and expenses incurred in connection with
its advertising, marketing and promotion of the Service.
3.8 Honesty. Marketer must
provide true and complete information to GFB upon sign-up
and at all times thereafter, including but not limited to,
Marketer's identity, payment instructions, tax ID, location
of Banners and Links.
4.1 As used herein, "Marketer
Percentage" shall mean the percentage paid to Marketer
of the actual Net Revenue received from the approved Players
that the Marketer has referred to the Site. The actual Marketer
Percentage shall be determined by the total amount of Net
Revenue generated during the calendar month by all Players
referred by that Marketer. The Marketer Percentage will
be determined according to the following schedule:
Total Referred Net Revenues
$0 - $10,000
$10,001 - $30,000
$30,001 - $50,000
$50,001 or Greater
4.2 The fee paid to the
Marketer each month shall equal the total Net Revenue generated
during the calendar month by all Players referred by that
Marketer, multiplied by the Marketer Percentage.
4.3 GFB shall pay Marketer
monthly for the preceding calendar month, as long as the
total fees earned by Marketer in that month exceed US$35.
Amounts less than US$35 shall be carried forward until the
next month. Payment for the preceding month shall be made
prior to the 20th day of each month. Payment shall be made
by bank draft or wire transfer as selected by Marketer (wire
fee is $35.00 per wire and will be deducted from amounts
due and payable). Deposit of amount tendered shall be deemed
full and final acceptance thereof. GFB payments will be
due and paid in United States dollars.
4.4 GFB shall hold back
10% of each month's payment due to Marketer (the "Hold
Back Amount"). The Hold Back Amount shall be retained
by GFB for a period of 90 days. If the chargebacks pertaining
to the sales made by Marketer for any given month are less
than 10% of the Marketer Percentage, then GFB shall pay
the difference to Marketer with the next monthly installment
after the 90 day hold back period. If the chargebacks pertaining
to the sales made by Marketer for any given month are greater
than 10% of the gross sales on which commissions are paid
to Marketer, then GFB shall adjust the payment due to Marketer
4.5 All payments due to
Marketer by GFB 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 GFB with respect
to the Marketer customers, the number of Marketer Customers
wagering and the calculation of the monies being paid to
Marketer. Additionally, statements may be adjusted by GFB
from time-to-time to reflect overpayments, consumer chargebacks
and/or, credits or underpayments by GFB.
5. Term and Termination.
5.1 This Agreement shall
commence and be deemed effective on the date when accepted
by an authorized representative of the Marketer (the "Effective
Date"). This Agreement shall be deemed to be accepted
by the Marketer when the Marketer hits the submit button
on the Affiliate Sign-Up page on the Site. This Agreement
is in effect for a period of one (1) year (the "Term")
and shall continue thereafter on a month-to-month basis.
5.2 After the initial one-year
term, GFB shall have the right to terminate this contract
if the total amount of Purchases made by Marketer's referred
Players falls below US$50.00 in a calendar month. Marketer
may terminate this agreement without cause at any time.
Upon termination of this Agreement, GFB shall retain the
rights to and all income generated by Marketers referred
5.3 Notice of termination
by either party must be sent in writing, at least thirty
(30) days prior to the effective date of the termination.
5.4 If GFB terminates the
operation of the site and the Services, or transfers ownership
of the Site to another party, then GFB may terminate this
agreement on the same termination or transfer date, provided
that adequate notice is given to Marketer.
5.5 To the extent possible
or unless otherwise agreed, GFB will pay Marketer for all
Net Revenue generated by Marketer's referred Players up
until the effective date of termination. Payments will be
made according to the schedule defined in Section 4.3 of
this agreement. After termination of this agreement Marketer
shall be entitled to no future payments from Players that
continue to play at the Site.
6. Information Ownership.
Customers using GFB's facilities and all information relating
to these customers shall remain the property of GFB at all
times during the operation of this contract and after termination.
7. Exclusivity, Non-Competition
and Ownership of Service Name.
7.1 Marketer agrees, understands
and acknowledges that GFB may enter into Agreements of this
type with third parties to promote the Service or a similar
7.2 Marketer has not paid
consideration for the use of GFB's or GFB licensors' trademarks,
logos, copyrights, tradenames, the Service name referred
to in Recital B, or designations, and nothing contained
in this agreement shall give Marketer any right, title or
interest in or to any of them. Marketer 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, tradename,
copyright, servicemark or logo belonging or licensed to
GFB or Radiate Software Sarl (including any act or assistance
to any act which may infringe or lead to the infringement
of any copyright in the "Software").
8.1 Marketer is an independent
person or business entity, and is not an employee of GFB.
Employees of GFB are not eligible to participate in this
8.2 Marketer must be at
least 18 years of age.
8.3 Individuals or organizations
who are licensees of the Radiate Internet Casino software
from Radiate Software Sarl are not eligible to be Marketers
under this agreement.
9. Confidentiality and Non-Disclosure.
9.1 Marketer and GFB each
- during the course of this
Agreement, each may have access to and become acquainted
with Confidential Information of the other.
- 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.
- 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
- except as otherwise provided
in this Agreement, all such Confidential Information is
and will remain the sole and exclusive property of the disclosing
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 GFB 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.
10. Representations, Warranties
10.1 Marketer warrants,
represents and covenants to GFB that: (a) Marketer has the
full legal right, power and authority to enter into and
perform this Agreement, and to grant to GFB the rights set
forth in this Agreement; and (b) Marketer will obtain all
necessary rights, licenses, permissions, business permits,
and will comply with end-users.
10.2 Marketer agrees to
indemnify and hold GFB harmless, and further agrees to defend
GFB through the service of an attorney chosen and approved
by GFB, 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
Marketer of any representation, warranty or agreement contained
in this section 10, or elsewhere in this Agreement.
10.3 GFB does not warrant
that Site's computer system or network will be error free
or uninterrupted. GFB makes no warranties, express or implied,
with respect to the legality, quality, merchantability,
intellectual property, fitness for particular purpose or
suitability of the Site's system, network, services, products
or billing arrangements as provided by GFB or its underlying
third party suppliers. The obligations of GFB under this
Agreement do not constitute personal obligations of the
directors, officers or shareholders of GFB. Any liability
arising under this Agreement shall be satisfied solely from
the revenues generated hereunder. GFB's liability is limited
to direct damages, and in no event shall GFB be liable for
any indirect, special, incidental, consequential or punitive
loss, injury or damage of any kind (regardless of whether
GFB has been advised of the possibility of such loss).
10.4 In no event shall GFB
be liable to the Marketer, Marketer'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 Service, even
if, in any such case, GFB has been advised of the possibility
of such damages.
10.5 Marketer agrees to
indemnify and hold harmless, and further agrees to defend
GFB through the service of an attorney chosen and approved
by GFB, from and against any and all claims, liabilities,
causes of action, damages, judgements, costs and expenses
asserted by or on behalf of Marketer's customers or any
other third party claim.
11. No Representation or Guarantee
Regarding Profits or Income Marketer agrees, understands and
acknowledges that the GFB, its parent company, its sub entities,
its agents, its officers, its directors, its shareholders,
and/or accountants have made no representation of any nature
whatsoever to Marketer and/or "Marketer's agents, servants
and/or employees regarding profits, income, or money which
Marketer 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 GFB in this regard is an expression of opinion only and
Marketer agrees understands and acknowledges that they have
not been induced to, and/or persuaded thereby to, enter into
this "Agreement" and that Marketer 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.
12. Assignment. This Agreement
and rights and duties hereunder may not be assigned or transferred,
either in whole or in any part by Marketer without the express
prior written consent of GFB, which consent shall not be unreasonably
13. 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 hereto.
14. 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.
15. 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 herein.
16. Notices. Except as otherwise
provided herein, all notices, payments, or any other communications
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 (email)
as follows: to GFB at [email protected];
and, to Marketer at address provided at sign-up. Each party
shall notify the other of any changes of email within three
(3) days of such change.
17. 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
18. 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.
19. Governing Law. This Agreement
shall be governed by and construed in accordance with the
laws of the Cook Islands.
20. Survival of Rights. Notwithstanding
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.
21. 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.