AFFILIATE AGREEMENT

This Affiliate Agreement (“Agreement”) is a legally binding agreement made by and between Bet Tracker, LLC (“we”, “us” or “our”) and you, personally and, if applicable, on behalf of the entity for whom you are participating in the Bet Tracker Affiliate Program (“you” or “your”).  This Agreement governs your participation in the Bet Tracker Affiliate Program (the “Program”). 

BY CLICKING ON THE “I AGREE” ICON, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT. 

1.                   CHANGES IN TERMS.  MOBILE AND INTERNET TECHNOLOGY AND APPLICABLE LAWS, RULES, AND REGULATIONS CHANGE FREQUENTLY.  ACCORDINGLY, WE RESERVE THE RIGHT TO MAKE CHANGES TO THIS AGREEMENT AT ANY TIME BASED SOLELY ON ANY SUCH CHANGE.  WE WILL POST ANY CHANGES OR MODIFICATIONS TO THIS AGREEMENT TO OUR WEB SITE.  ANY CHANGES OR MODIFICATIONS TO THIS AGREEMENT ARE EFFECTIVE FOLLOWING POSTING OF THE REVISIONS TO OUR WEB SITE REFLECTING THE NEW EFFECTIVE DATE OF THIS AGREEMENT.  IF YOU DO NOT AGREE TO SUCH TERMS, YOU MAY TERMINATE THIS AGREEMENT.  YOUR CONTINUED PARTICIPATION IN THE PROGRAM CONSTITUTES ASSENT TO ANY NEW OR MODIFIED PROVISION OF THIS AGREEMENT THAT MAY BE POSTED ON THE WEB SITE.

2.                   Becoming an Affiliate.

(a)                 Eligibility.  Only individuals and entities who can form legally binding contracts under applicable law are eligible to participate in the Program.  Without limitation, individuals must be over the age of majority under applicable law to participate in the Program. 

(b)                 Application and Registration.  To become an Affiliate, you must create an account on our Web Site through the online registration process and complete all application forms.  You must provide us with accurate and complete information and promptly notify us if any of your information changes.  You shall not attempt to open more than one Affiliate account without our prior written consent.  We will then determine, in our sole discretion, whether or not to accept you as an Affiliate.  If we do so, the applicable terms of this Agreement will then apply to you.  If we do not, you may not participate in the Program.

(c)                 User Name and Password.  If we accept you as an Affiliate, you will select a user name and password.  You must not provide your user name and password to any third party and must protect your user name and password from unauthorized use.  We will treat any person using your user name and password as authorized by you to access your information and take any other actions on your behalf.  Should your user name or password be lost, stolen, transferred or otherwise removed from your possession without your permission, you must contact us immediately at the following email address:  support@bettracker.com.

3.                   Being an Affiliate.  You shall serve as a non-exclusive online marketing representative of the Bet Tracker Service (“Service”), as described in our Terms of Use.  You shall refer all prospective customers of the Service to us.  We will have the right to pre-approve any prospective customers that link to our web site (the “Bet Tracker Site”) from your websites (the “Affiliate Site”) before contracting with such customers to receive the Service.  You shall maintain the following links on the Affiliate Site to pages designated by us: (i) a permanent (i.e., a non-rotating) hypertext link placed “above the fold” and equally or more prominent than any links, logos, text or other promotional or editorial materials on the Affiliate Site; (ii) in connection with any reference to Service, a link from that reference to the Bet Tracker Site, as specified by us; and (iii) any other links mutually agreed upon by the parties.  If you change the design of the Affiliate Site so that any placement of the links described herein are deleted or altered, you shall provide an alternative placement with equivalent promotional value.  You shall promptly make any changes to the editorial content displayed on the Affiliate Site in connection with the Service requested by us and otherwise comply with our policies and instructions with respect to the same and our intellectual property.  You shall promptly post on the Affiliate Site any legal disclaimers or statements of terms and conditions, including click-through agreements or intermediate pages, as we request.  You shall only use our approved advertising materials (banners, text links, logo, etc.) and will not alter their appearance nor refer to us in any promotional materials other than those that are available from us.

4.                   Fees.

(a)                 Subscribers.  “Subscriber” means a user of the Affiliate Site who is not or has not been previously our customer and who accesses the Bet Tracker Site and subscribes to the Service during the same browsing session as when that customer accessed the Affiliate Site.  A “Subscription” means a Subscriber’s purchase of any of the Services.

(b)                 Marketing Fees.  In consideration of the marketing activities performed by you under this Agreement, we will pay you a marketing fee for each Subscriber who accesses the Bet Tracker Site and subscribes to and pays for a Subscription, subject to the minimums and restrictions in this Agreement and as we may specify from time to time (“Marketing Fee”).  The Marketing Fee is based on a percentage of the net revenue (i.e., the gross revenues minus any applicable taxes, uncollectible amounts, and other expenses) that we actually receive from Subscribers.  The initial Marketing Fee rates are as follows:  (i) if we receive less than $10,000.00 in a month in net revenue from your Subscribers, your Marketing Fees will be 10%; (ii) if we receive between $10,000.00 and $15,000.00 in net revenue in a month from your Subscribers, your Marketing Fees will be 20%; and (iii) if we receive more than $15,000.00 in net revenue in a month from your Subscribers, your Marketing Fees will be 20%.  You will be eligible to receive Marketing Fees for a given Subscriber for as long as: (i) this Agreement remains in effect; (ii) the Subscriber’s maintains a Subscription with us; and (iii) you remain “active.”  “Active” means that you maintain an average of 10 new Subscribers per month over any given three-month period. 

(c)                 Payment Terms.  We shall pay you Marketing Fees owed within thirty (30) days of the end of each calendar month, based on amounts we receive during the prior calendar month.  If the amount of Marketing Fees owed is less than $75.00 in the case of check payment and $500 in the case of wire payments, we will withhold such payment until the total payment due is at least $75.00 or $500.00 respectively or until this Agreement is terminated, whichever occurs first.  In addition to any other remedies available to us at law or in equity, we may offset against any amounts owed to you the amount of any payments or reimbursement to which we are entitled if you fail to make any payment or reimbursement to us under this Agreement when due.  You shall not earn Marketing Fees on your own Subscriptions or those of relatives or affiliated entities.  If you breach this Agreement and we terminate it, we have the right to void all Marketing Fees otherwise owed you.  If a Subscriber has their Subscription terminated for cause, we will not pay you Marketing Fees for the revenues generated from such Subscriber.  We reserve the right to withdraw and reverse retroactive fraudulent and chargeback activities at any point in time.  We also reserve the right to deduct wire and other transaction fees from payments otherwise owed you.

(d)                 Reports Provided by Us.  With each payment provided to you, we will deliver to you a report describing the Marketing Fees due and payable to you for that calendar quarter and a breakdown of the calculation of the Marketing Fees.

5.                   Prohibited Conduct.

(a)                 Conduct Generally.  You shall:  (i) conduct your business in a manner that reflects favorably at all times on the Service and our good name, goodwill and reputation; (ii) avoid deceptive, misleading or unethical practices, including, but not limited to, disparagement of us or the Service; (iii) make no false or misleading representations with regard to us or the Service; (iv) not issue or disseminate any materials in connection with any Subscription except for materials we provide or approve; (v) not publish or employ or cooperate in the publication or employment of any misleading or deceptive advertising material; (vi) not purport to make any agreements with any persons or entities on our behalf; (vii) not make, alter or discharge any of the terms and conditions of any policy, contract or receipt of ours; (viii) make no representations, warranties or guarantees to anyone with respect to the specifications, features or capabilities of the Service that are inconsistent with our literature; (ix) except as expressly provided in this Agreement, not institute, prosecute, defend or maintain any legal proceeding on our behalf or retain any attorney on our behalf; (x) not hold yourself out as an agent of us for any matter or for any purpose; (xi) not withhold any monies or property of or owing to us; (xii) not make any presentation, statement, promise or warranty in any advertising or promotional material with respect to us or your business; (xiii) comply with all laws, rules, treaties, and regulations; and (xiv) not engage in illegal or deceptive trade practices such as bait and switch techniques.

(b)                 Subcontractors.  You shall ensure that your affiliates, employees, representatives, agents and subcontractors, if any, strictly comply with the terms and conditions of this Agreement.  You shall be responsible for obtaining any and all third party consents and approvals necessary to perform your obligations under this Agreement.  You will remain liable for the acts and omissions of your affiliates, employees, agents, representatives, and subcontractors as if each were you for purposes of this Agreement. 

(c)                 Prohibited Materials.  You shall not feature any of the following types of content on the Affiliate Site:  (i) sexually explicit materials; (ii) materials promoting discrimination or hate based on race, sex, religion, nationality, disability, sexual orientation, age, or other categories; (iii) materials encouraging illegal activities; (iv) overt political statements; or (v) material that is offensive or inappropriate, as we determine in our discretion.

6.                   Intellectual Property.

(a)                 License.  We hereby grant to you a non-exclusive, non-transferable, non-sublicensable, terminable, limited license to:  (a) create and maintain a hypertext link on the Affiliate Site that, when activated, will cause the Subscriber’s web browser to access the Bet Tracker Site; and (b) use all materials provided by us which may include, but are not limited to, hypertext links, images, text, data, software, HTML, multimedia elements, trademarks, service marks (whether or not registered), names, logos and identifiers of us (“Bet Tracker Content”).  You shall not alter any Bet Tracker Content without our prior written consent.  You shall not make any use of any Bet Tracker Content other than incorporating it into the Affiliate Site in a manner authorized by us.  You shall not copy, sell, distribute or enable the distribution of, modify, or exploit any of the Bet Tracker Content without our prior written consent.  You shall comply with any request we make regarding protection of our rights.  You shall not:  (i) use the Bet Tracker Content for any unlawful purpose; (ii) remove any notices on the Bet Tracker Content; (iii) disassemble, copy, modify, decompile, reverse engineer or create any derivative work based on the Bet Tracker Content, however, you may back up and reformat Bet Tracker Content; or (iv) introduce any viruses or other malicious code or data on the Bet Tracker Site or the Affiliate Site.  You shall use the security procedures provided by us in connection with the Bet Tracker Site and Bet Tracker Content, and shall not remove, modify, or defeat such security procedures or knowingly or negligently permit or assist any third party to do so.  You shall provide, at your own expense, any software or equipment needed by the Affiliate Site to interface with the Bet Tracker Site.  You shall comply with our instructions with respect to the use of Bet Tracker Content. 

(b)                 Customer Data.  We will be the sole and exclusive owner of any personally identifiable data collected in connection with the advertising, promotion, marketing, sale, or licensing of any Subscription, including, but not limited to, names, physical and e-mail addresses, telephone numbers, registration information, credit card numbers, orders, and other transaction data (collectively, “Customer Data”) collected on the Bet Tracker Site or in connection with any Service (including if transferred or made available to us by means of the Affiliate Site), and such Customer Data will be our confidential information.  You shall ensure the strict confidentiality of any Customer Data to which you obtain access and comply with our policies and instructions with respect thereto.  You shall regularly, and upon our written request, provide us with all Customer Data that you collect.  You shall ensure that you maintain appropriate privacy policies and otherwise comply with applicable law in your performance of your obligations under this Section.

(c)                 Reserved Rights.  All rights and powers not specifically and expressly granted by us to you in this Agreement are hereby reserved by us.  No other rights or licenses are granted by us to you, expressly, by estoppel, implication or otherwise, with respect to any proprietary information or patent, copyright, trade secret, or other intellectual property right owned or controlled by us, except as expressly provided in this Agreement.  Except as expressly provided herein, no property, license, permission, or other interest of any kind in or to the use of any invention, system, process, software, design, trade secret, code, trademark, trade name, insignia, logo, device, design, work, or other intellectual property owned or controlled by us, and any derivative works, improvements, and the like thereof, regardless of their author or inventor (collectively, the “Bet Tracker Intellectual Property”) is intended to be owned or transferred to you or any other person or entity by reason of this Agreement or otherwise.  You shall not contest or deny the validity or enforceability of, or our right or title in or to, such Bet Tracker Intellectual Property or otherwise, nor encourage or assist others directly or indirectly to do so.  You shall not attempt to register or assert an ownership interest in the Bet Tracker Intellectual Property or otherwise exploit the Bet Tracker Intellectual Property.  You agree and acknowledge that any goodwill or other interest or rights that arise as a result of the use by you of the Bet Tracker Intellectual Property will inure solely to us, and you hereby assign and convey, and agree to assign and convey, such goodwill and other interests and rights to us.  Except as expressly permitted by this Agreement or by applicable law, you shall not have any right to reproduce, manufacture or modify any Service or portion thereof, to otherwise make copies of any Service or to adapt or create any derivative work of any Service or portion thereof.  You agree that you will not, and will not permit or assist any other party to, reverse engineer all or any part of any of the Service.

7.                   Representations and Warranties.  You hereby represent and warrant to us that: (a) you have the full right, power, and authority to:  (i) enter into this Agreement and (ii) perform your obligations under this Agreement; (b) you have not made any prior commitment that is inconsistent with the rights granted to us under this Agreement; (c) if you are a legal entity, you are validly existing and duly organized in the jurisdiction of your incorporation; (d) you will not infringe, violate, or interfere with any third-party right in the course of performance of this Agreement; and (e) you will comply with all laws, rules, and regulations in the performance of this Agreement. 

8.                   Indemnification.  You shall indemnify, defend, and hold us and our employees, agents, directors, officers, shareholders, affiliates and representatives (“Bet Tracker Indemnified Parties”) harmless from and against any loss, damage, liability, judgment, cost, settlement payment and expense (including attorneys’ and experts’ fees and costs) arising from, related to, or connected with a third party demand, action, or claim made against any Bet Tracker Indemnified Party arising from, related to, or connected with (i) the operation of the Affiliate Site; (ii) any alleged breach of the terms and conditions of this Agreement on your part; or (iii) any other act or omission on your part; provided, however, that no compromise, settlement, or disposition of any such claim may be effected or committed by you without our written consent.  If a conflict of interest arises or exists between the parties or you do not undertake the defense as required by this Section promptly following written notice of a claim, we shall have the right to conduct such defense in our sole discretion.

9.                   DISCLAIMERS; EXCLUSIONS AND LIMITATIONS.

(a)                 DISCLAIMER OF WARRANTIES. THE SERVICE, THE PROGRAM, AND ALL BET TRACKER INTELLECTUAL PROPERTY ARE PROVIDED “AS IS” AND “AS AVAILABLE.”  WE DO NOT REPRESENT OR WARRANT THAT THE SERVICE OR ITS USE (I) WILL BE UNINTERRUPTED OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES, OR ERRORS, (III) WILL MEET YOUR OR YOUR USERS’ REQUIREMENTS, (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE YOUR USERS USE, OR (V) WILL COMPLY WITH APPLICABLE LAWS.  EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, WE MAKE NO REPRESENTATIONS AND WARRANTIES WHATSOEVER, AND HEREBY DISCLAIM ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT.  WE FURTHER DISCLAIM ANY AND ALL WARRANTIES ARISING BY STATUTE, COURSE OF DEALING, CUSTOM OR USAGE, TRADE PRACTICE OR OTHERWISE.  WE DO NOt represent or guarantee to YOU the continued availability of any of the SERVICE and assume no liability in connection with any loss or damage to YOU arising out of OUR failure to accept or PROVIDE the SERVICE.  WE MAKE NO GUARANTEE AS TO THE AMOUNT OF REVENUE YOU WILL RECEIVE BY PARTICIPATING IN THIS PROGRAM.

(b)                 LIMITATIONS ON LIABILITY.  IN NO EVENT WILL WE BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY, OR FROM NEGLIGENCE OR STRICT LIABILITY), INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, DATA, OR USE, OR FOR INTERRUPTED COMMUNICATIONS OR NETWORK OUTAGES, OR FROM ANY DEFECT, ERROR, OR MALFUNCTION OF THE SERVICE OR ANY EQUIPMENT RELATED TO THE SERVICE, EVEN IF WE OR ANY OTHER PERSON HAS BEEN ADVISED OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT OF MARKETING FEES ACTUALLY OWED YOU BY US.   THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION 9(b) WILL APPLY EVEN IF A REMEDY IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

10.                Force Majeure.  We will not be liable for failing to perform under this Agreement because of any event beyond our reasonable control, including, without limitation, a labor disturbance, an Internet outage or interruption of service, a communications outage, failure by a service provider to perform, fire, an act of terrorism, natural disaster or war.

11.                Choice of Law and Arbitration.  This Agreement is governed by and construed in accordance with the laws of the State of California without regard for conflict of law principles or other principles that would cause the application of the law of any other State.  All disputes arising out of or relating to this Agreement (including its formation, performance or alleged breach) or your use of the Web Site or Service are exclusively resolved under confidential binding arbitration held in Los Angeles County, California before, and in accordance with the Rules of, the American Arbitration Association.  The arbitrator’s award is binding and may be entered as a judgment in any court of competent jurisdiction.  To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class action arbitration proceedings or otherwise.  Notwithstanding the foregoing, we will have the right to seek injunctive or other equitable relief in state or federal court located in Los Angeles County, California to enforce this Agreement or prevent an infringement of a third party’s rights.  In the event equitable relief is sought, each party hereby irrevocably submits to the personal jurisdiction of such court.

12.                Changes to the Service.  We may, in our sole discretion, at any time and without prior notice to you:  (i) change any Services; (ii) add or withdraw any Service from the current list of products; (iii) limit available quantities of any Service; (iv) discontinue the offering of and to make changes in the design of and to otherwise improve any Service or part thereof; (v) change the terms, rates, conditions or other provisions of the Service policies; and (vi) suspend or terminate any Subscriber at any time.

13.                TERM AND TERMINATION.

(a)                 Term.  This Agreement will begin on the Effective Date and continue into perpetuity, unless terminated earlier in accordance with its terms.

(b)                 Termination.  Either party may terminate this Agreement for convenience upon 30 days’ prior written notice.  We may also terminate this Agreement immediately: (i) upon notice to you if you breach any term of it or (ii) without notice if you are not longer active, as defined above.

(c)                 Effect of Termination.  Upon termination of the Agreement: (i) you shall promptly remove all references to us (including any links to the Bet Tracker Site) from the Affiliate Site; (ii) you shall immediately discontinue the use of Bet Tracker Marks and you shall immediately discontinue all representations that you are an affiliate of the Service; (iii) you will promptly return to us all confidential information within your possession or control, and will certify in writing that you have complied with your obligations to return all such confidential information; and (iv) we will continue to pay you any Marketing Fees on any Subscribers acquired during the term of this Agreement for a period of six months from the Effective Date of termination, unless we terminated this Agreement for cause (i.e., due to your inactivity or breach) in which event no Marketing Fees will be due.  Further, Sections 6(b), 6(c), 7, 8, 9, 10, 11, 13(c), and 14 will survive expiration or termination of this Agreement for any reason.

14.                GENERAL.

(a)                 Notice.  All notices required or permitted to be given under this Agreement must be in writing and delivered to the other party by any of the following methods:  (i) hand delivery; (ii) certified U.S. mail, return receipt requested, postage prepaid; (iii) overnight courier; or (iv) by email.  We may also give notice through the Your Account feature on the Bet Tracker Site.  If you give notice to us, you must use the address shown here or via email to support@bettracker.com.  If we provide notice to you, we will use the contact information provided by you to us.  All notices will be deemed received as follows: (i) If by hand delivery, on the date of delivery; (ii) if by delivery by U.S. mail, on the date of receipt appearing on a return receipt card; (iii) if by overnight courier, on the date receipt is confirmed by such courier service; (iv) by email or through the Your Account feature on our web site, on the date sent.

(b)                 Governing Law and Jurisdiction.  This Agreement was entered into in the State of California, and its validity, construction, interpretation and legal effect shall be governed by the laws and judicial decisions of the State of California and the United States of America applicable to contracts entered into and performed entirely within the State of California and United States of America. 

(c)                 Miscellaneous.  This Agreement constitutes the entire understanding and agreement, and supersedes any and all prior and contemporaneous representations, understandings, or agreements between the parties regarding the subject matter of this Agreement.  The parties are independent contractors.  Nothing contained in this Agreement will be deemed to create, or be construed as creating, a joint venture or partnership between the parties.  Neither party is, by virtue of this Agreement or otherwise, authorized as an agent or legal representative of the other party.  Neither party to this Agreement is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party, or to bind the other party in any manner.  Nothing contained in this Agreement will be deemed to create, or be construed as creating, any third party beneficiary whatsoever.  No failure or delay by a party in exercising any right, power, or privilege under this Agreement will operate as a waiver thereof.  No waiver of any provision of this Agreement, or any rights or obligations of either party under this Agreement, will be effective, except pursuant to a written instrument signed by the party waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing.  Except as expressly provided in this Agreement, this Agreement may only be amended, supplemented, or modified by a writing signed by both parties.  Any provision of this Agreement that is found invalid or unenforceable pursuant to judicial decree or decision will be ineffective to the extent of such invalidity or unenforceability, and the remainder of this Agreement will remain valid and enforceable according to its terms.  If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as is enforceable.  This Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.  You shall not assign, delegate, or otherwise transfer your rights or obligations under this Agreement, by operation of law or otherwise, without our prior written consent.  We may assign this Agreement freely.  Each of the parties acknowledges that it has had the opportunity to have this Agreement reviewed by independent legal counsel of its choice.  The rule of construction that any ambiguity in an agreement be construed against the drafter shall not apply to this Agreement.  The headings to Sections of this Agreement are for convenience or reference only and do not form a part of this Agreement and will not in any way affect its interpretation.