EXHIBIT 10.4 Antigua Online Gaming Wagering and Gaming Reseller Agreement
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THIS AGREEMENT (the "Agreement") is entered into by and between Antigua Online
Gaming and the Reseller.
RECITALS
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A. Antigua Online Gaming 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.
B. Reseller undertakes to have Antigua Online Gaming 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 "Antigua Online Gaming".
A. Reseller desires to obtain from Antigua Online Gaming, and Antigua Online
Gaming 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
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1. Grant of Promotion and Distribution License.
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1.1
Antigua Online Gaming 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
Antigua Online Gaming 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 Antigua Online Gaming, 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 Antigua Online Gaming 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 Antigua Online
Gaming 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 Antigua Online Gaming.
1.4
No payment will be made to reseller for customers who utilize Antigua Online
Gaming's Play for Fun Services.
2. Obligations of Antigua Online Gaming.
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2.1
Antigua Online Gaming 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 Antigua Online Gaming in its sole discretion.
2.2
Antigua Online Gaming shall retain the right to provide the Service in what ever
form Antigua Online Gaming deems appropriate.
2.3
Antigua Online Gaming shall retain the right to change any part of the Service
at anytime, without notice to Reseller, in whatever manner Antigua Online Gaming
deems appropriate.
2.4
Antigua Online Gaming shall retain the right to cancel any part of the Service
at any time, without notice to Reseller, in whatever manner Antigua Online
Gaming deems appropriate.
2.5
Notwithstanding anything in this Agreement, Antigua Online Gaming 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 Antigua
Online Gaming to deliver the Services contemplated in this Agreement for any
reason whatsoever, whether Antigua Online Gaming is at fault or whether a third
party is at fault.
3. Obligations of Reseller.
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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 Antigua
Online Gaming. 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 Antigua Online Gaming. 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, Antigua Online Gaming 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 Antigua Online
Gaming determines, in its sole discretion, that any such activities would tend
to reduce the value of, or would impair Antigua Online Gaming's goodwill and
business reputation, or would expose Antigua Online Gaming to legal liability.
3.2
Notwithstanding any approval by Antigua Online Gaming given in accordance with
section 3.1 of this Agreement, Antigua Online Gaming shall under no
circumstances be held liable for, and Reseller shall indemnify, defend and hold
Antigua Online Gaming harmless against, any and all claims asserted against
Antigua Online Gaming 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.
4. Compensation.
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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 percent
(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. "Player Signup"
shall mean a unique player signing up for an account and wagering an amount
greater than US$100.
4.2
Antigua Online Gaming 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.
4.3
Current months losses will be carried forward to following months to offset any
commissions payable.
5. Term and Termination.
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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 "Antigua Online Gaming 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 Antigua Online Gaming
in writing, no later than forty five (45) days prior to the expiration of the
Term. In addition, Antigua Online Gaming, 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 Antigua
Online Gaming any and all Antigua Online Gaming materials which Antigua Online
Gaming 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 Antigua Online Gaming's facilities and all information relating
to these customers shall remain the property of Antigua Online Gaming at all
times during the operation of this contract and after termination.
6. Accounting Statements.
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6.1
All payments due to Reseller by Antigua Online Gaming 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 Antigua Online Gaming 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
Antigua Online Gaming from time-to-time to reflect overpayments, consumer
chargebacks and/or, credits or underpayments by Antigua Online Gaming.
6.2
Antigua Online Gaming shall hold back 10% of each month's 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 chargebacks pertaining to the sales
made by Reseller for any given month are less than 10% of the Reseller
Percentage, then Antigua Online Gaming shall pay the difference to Reseller with
the next monthly installment after the 90 day hold back period. If the
chargebacks 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 Antigua Online Gaming shall adjust the payment due to Reseller in
accordance with section 6.1 of this Agreement.
7. Audit Rights.
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Reseller may designate a Chartered Accountant to examine the books and records
of Antigua Online Gaming 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 Antigua Online Gaming.
Accounting statements rendered by Antigua Online Gaming shall be deemed
conclusive if not challenged by Reseller within thirteen (13) months after being
rendered.
8. Exclusivity, Non-Competition and Ownership of Service Name.
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8.1
Reseller agrees, understands and acknowledges that Antigua Online Gaming 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 Antigua Online Gaming's or
Antigua Online Gaming licensors' trademarks, logos, copyrights, tradenames, 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 Antigua Online Gaming and Antigua Online Gaming
licensors own and retain all copyrights and other proprietary rights in all of
the foregoing, as well as any Software supplied by Antigua Online Gaming.
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, tradename, copyright, servicemark or logo
belonging or licensed to Antigua Online Gaming (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, tradename 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 Antigua Online Gaming. 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 tradename of Antigua Online Gaming
or Antigua Online Gaming Licensors to any non-Antigua Online Gaming product.
Reseller shall not alter, erase, deface or overprint any proprietary rights
notice on anything provided by Antigua Online Gaming.
9. Confidentiality and Non-Disclosure.
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9.1
Reseller and Antigua Online Gaming 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 Antigua Online Gaming 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 Antigua Online Gaming 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
Antigua Online Gaming 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 Antigua Online Gaming 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 and Indemnity.
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10.1
Reseller warrants, represents and covenants to Antigua Online Gaming that: (a)
Reseller has the full legal right, power and authority to enter into and perform
this Agreement, and to grant to Antigua Online Gaming 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 Antigua Online Gaming harmless, and
further agrees to defend Antigua Online Gaming through the service of an
attorney chosen and approved by Antigua Online Gaming, 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 Antigua Online Gaming 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, Antigua Online Gaming has been advised
of the possibility of such damages.
11. No Representation or Guarantee Regarding Profits or Income.
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Reseller agrees, understands and acknowledges that the Antigua Online Gaming,
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 Antigua Online Gaming 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.
12. Assignment.
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This Agreement and rights and duties hereunder may not be assigned or
transferred, either in whole or in any part by Reseller without the express
prior written consent of Antigua Online Gaming, which consent shall not be
unreasonably withheld.
13. Binding Effect.
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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.
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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.
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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.
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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 email 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 personal delivery, or seven (7) days following deposit in the
mail, or three (3) days following delivery through electronic mail (email):
Email: xxxxxxx@xxxxxxxxxxxxxx.xxx
17. Dispute Resolution.
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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 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 Antigua Online Gaming'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.
18. Relationship of the Parties.
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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.
19. Entire Agreement.
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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.
20. Governing Law.
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This Agreement shall be governed by and construed in accordance with the laws of
Antigua.
21. Survival of Rights.
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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.
22. Headings.
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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.
