AGREEMENT
1. Engagement; Independent Contractor. The Company is engaged in the business of developing, commercializing and selling online and mobile gambling services (the “Business”). The Company hereby engages Contractor to perform Services (as defined below) on the terms and conditions herein and Contractor hereby accepts such engagement as an independent contractor. Contractor shall be solely responsible for and shall make proper and timely payment of any taxes due on payments made to Contractor pursuant to this Agreement (including, but not limited to, Contractor’s estimated state and Federal income taxes and self- employment taxes, as applicable).
2. Description of Services. Contractor agrees to provide services to the Company with respect to such matters, events and projects as are mutually agreed upon from time to time by and between Contractor and Company, including without limitation those services described on Exhibit A hereto (collectively, “Services”). Without limiting the foregoing, Contractor will be available on mutually agreed to dates and times to provide Services for Company during the term of this Agreement. It is fully understood and agreed that Company has entered into this Agreement because of the expertise of Contractor personally, and Contractor understands that Services will be performed solely by Contractor personally unless approved in writing by Company in advance.
3. Contractor Representations and Warranties. Influencer represents, warrants and covenants that: (a) this Agreement not conflict with, result in a breach of, or constitute a default under any other agreement to which Contractor is a party or by which Contractor is bound; (b) Contractor will comply with all laws, rules, and regulations applicable to Contractor’s performance of Services under this Agreement; (c) the Services will be performed in a professional, cordial, lawful and workmanlike manner, in accordance with any terms and conditions set forth herein, including but not limited to (i) terms and conditions, including General Terms of Use, Paid-Entry Contests of Skill Terms of Use, and Privacy Policy, as each is updated from time to time, (ii) the terms and conditions set forth in the Company Influencer Policy attached hereto and incorporated herein as Exhibit B, and (iii) the Company Code of Ethics and Business Conduct Policy, ; (d) Contractor is the original author and sole owner of any content used by Contractor and that for all such content, Contractor has obtained all necessary rights, licenses, permissions, consents and the like, including but not limited to releases for voices, images and appearances, with regard to all video, audio, photograph, graphics, illustration or other multimedia content and will provide the Company with all such releases upon the Company’s request; (e) the Contractor’s content is accurate and true and reflects Contractor’s actual opinions, experiences and beliefs; (f) no Contractor content created or obtained by Contractor and delivered to the Company or posted by Contractor or the Company hereunder will infringe on or violate any intellectual property rights or applicable laws, rules or regulations, including, but not limited to, the Federal Trade Commission Act and all rules, regulations and guidelines promulgated by the Federal Trade Commission; (g) no Contractor content delivered or posted by Contractor hereunder will contain any profanity, scandalous, libelous, defamatory, obscene, pornographic or unlawful matter or material; (h) Contractor has not misrepresented any of Contractor’s organic metrics including, but not limited to, engagements, followers, and reach; (i) Contractor does not use bots or other artificial means to inflate influencer metrics; (j) Contractor content does not contain malicious code, counters, or other types of code that automatically attach cookies or other devices that track and collect user’s information; and (k) no fee, compensation or any other payment whatsoever will be payable by the Company to any third party in connection with the Contractor’s content and/or the Services.
4. Term and Termination. This Agreement shall become effective on the Effective Date and remain in effect for a period of six (6) months, and thereafter shall automatically renew for additional periods of six (6) months, unless terminated earlier pursuant to this paragraph. Either party may terminate this Agreement at any time upon providing the other party with 30-day advance written notice.
5. Consideration. Company agrees to pay Contractor the consideration set forth in Exhibit A for the performance of Services. Contractor shall not be paid a salary and shall not be entitled to any workers’ compensation benefits, unemployment compensation benefits, or any other benefits or protections that accrue from an employment relationship.
6. Confidentiality. Contractor will not disclose to anyone, directly or indirectly, either during the term of the Agreement or at any time thereafter, any Confidential Information or use such information other than on behalf of the Company in the course of the Services. "Confidential Information" shall be defined to include, but not be limited to, information of any kind, nature or description pertaining to the Business of operations of the Company, licensing, social media, technical, specifications, development, products, plans, reports, analyses, data and processes, trade secrets, financial information, such as earnings, assets, debts, prices, pricing structure, volume of sales, marketing information such as details about ongoing or proposed marketing programs or agreements by or on behalf of the Company, personnel information including actual or proposed hirings, resignations, terminations or reasons therefore; or any and all policy manuals, work books, and training materials of the Company. All Confidential Information is the exclusive property of the Company and shall be returned immediately to the Company upon termination of this Agreement or upon the Company's request at any time. All such Confidential Information is considered secret and is disclosed in confidence. The parties acknowledge that the Confidential Information constitutes Company’s proprietary information and draws independent economic value, actual or potential, from not being generally known to the public or to other persons who could obtain economic value from its disclosure or use, and that Contractor has made efforts reasonable under the circumstances, of which this paragraph is an example, to maintain its secrecy. Except in the performance of Contractor’s duties hereunder or as required by a court order, Contractor shall not, directly or indirectly for any reason whatsoever, divulge, communicate, use or otherwise disclose any such Confidential Information. In the event Contractor is required to disclose any Confidential Information pursuant to a court order, Contractor shall provide Company reasonable advance written notice of the proposed disclosure. Contractor shall take all reasonable actions appropriate to maintain the secrecy of all Confidential Information. Anything incorporating the Confidential Information shall be and remain the Company’s sole and exclusive property and shall be included as part of the Confidential Information. Upon termination of this Agreement, or whenever requested, Contractor shall promptly deliver to the Company any and all of the Confidential Material, not previously delivered, that is in the possession or under the control of Contractor. These obligations shall survive the termination of this Agreement.
7. Data Security & Information Technology Controls. Contractor shall take reasonable care to ensure that any electronic equipment it uses or may use to perform services related to this Agreement (including but not limited to computers, phones, tablets and the like) are kept safe from unauthorized infiltration, as well as free from bugs, viruses and other malicious software. Contractor shall notify Company in writing as soon as practicable but no later than forty-eight (48) hours after Contractor is aware of any actual, alleged or potential breach involving Company data, including but not limited to, Company Confidential Information (hereinafter a “Data Breach”). Contractor shall fully investigate or cooperate with Company in the investigation of any Data Breach, including without limitation: (i) assisting in any investigation; (ii) providing Company or its agent with data or access to equipment and/or accounts affected; (iii) facilitating interviews with involved parties; and (iv) providing all relevant records, logs, files, data reports, recordings or other material reasonably requested or required by Company in order for Company to investigate, notify, respond or comply with applicable law, regulation, industry standard, or Company policy or practice, or as may otherwise be requested or required by Company. Contractor shall not provide any third party with information regarding any Data Breach without Company’s prior written consent, and Contractor and Company agree to work together in good faith to (i) determine whether notice of a Data Breach is appropriate or required by law or regulation, or otherwise; (ii) the timing of any notice to individuals, regulators, law enforcement agencies, consumer reporting agencies or others; (iii) the contents of any such notice; and (iv) whether remediation to affected persons is appropriate and the nature and extent of any such remedy.
8. Works Made for Hire. Contractor agrees that the services performed for and any content, videos, products and/or other deliverables provided to Company hereunder (collectively, the “Works”) shall be deemed to be “Works Made for Hire,” as the same is defined under applicable United States law. In the event the Works are determined not to be "Works Made for Hire," Contractor agrees to assign all right, title, and interest in the Works to Company without additional consideration or compensation. All copyright, trademark, patent, and other intellectual property rights in and to the Works shall belong solely to Company.
9. Company Intellectual Property and License. Contractor understands and agrees that items including but not limited to, the Company’s trademarks, copyrights, patents, trade secrets, brands, logos, applications, code, content and media, regardless of format and whether or not the same are registered as Company’s intellectual property, are solely owned by the Company (collectively, the “Company Intellectual Property”). Except as expressly stated herein, this Agreement does not grant Contractor any intellectual property, ownership, and/or other rights whatsoever in the Company Intellectual Property, and Contractor agrees not to make any claim for such rights in the Company Intellectual Property. Company hereby grants a limited, revocable, non-transferable, and non-exclusive license (without the right to sub-license) to Contractor, in order to utilize the Company Intellectual Property solely for Contractor’s performance of services under this Agreement.
10. Advertising and Marketing. As applicable, Contractor understands and agrees to the following as it relates to the performance of services hereunder:
a. All Contractor posts on any social media platform shall include tags, hashtags and/or disclosures as directed by Company or otherwise required by rule, law, or regulation.
b. Contractor shall ensure that none of the content they post as a result of the services:
i. Make representations regarding the probability or likelihood of winning a contest;
ii. Are designed with the purpose of appealing to any person under the legal age of majority;
iii. Include any other third-party branding or messaging;
iv. Promote in any way irresponsible, or excessive participation in
Company’s contests;
v. State or imply that social, career, financial, and/or personal success is possible, likely, or guaranteed by participating in Company’s contests;
vi. Contain any dishonest representations and/or statements; or
vii. Endorse, directly or otherwise, illegal activity of any kind.
c. Contractor is solely responsible and liable for the content and manner of its marketing activities, and all such activities must be lawful under applicable rules, regulations, and laws, including any laws relating to the content and nature of any advertising or marketing, including the “Endorsement and Testimonial Guidelines” published by the United States Federal Trade Commission (the “FTC Guidelines”), as updated from time to time. CONTRACTOR AGREES TO INCLUDE A DISCLOSURE STATEMENT (AS REQURIED BY FTC GUIDELINES) WITHIN ALL MARKETING MATERIALS WHERE A PROMO CODE, LINK, OR OTHER SIMILAR ITEM IS INCLUDED.
11. Responsibility for Content. Contractor is solely responsible and liable for the content and manner of its marketing activities, and all such activities must be lawful under applicable rules, regulations, and laws, including any laws relating to the content and nature of any advertising or marketing, including the “Endorsement and Testimonial Guidelines” published by the United States Federal Trade Commission (the “FTC Guidelines”), as updated from time to time. CONTRACTOR AGREES TO INCLUDE A DISCLOSURE STATEMENT (AS REQURIED BY FTC GUIDELINES) WITHIN ALL MARKETING MATERIALS WHERE A PROMO CODE, LINK, OR OTHER SIMILAR ITEM IS INCLUDED. Notwithstanding the above, Contractor shall not be liable for positing any content provided to Contractor by the Company, so long as such content was not modified in any manner by Contractor.
12. Release of Liability and Indemnification. Contactor acknowledges and agrees that Contractor is solely responsible for any liability resulting from Contractor’s performance of the Services, including any content posted by Contractor. Contractor releases, acquits, waives, forever discharges and covenants not to sue Company, or its owners, officers, successors, assigns or representatives (the “Released Parties”), and agrees to indemnify and hold harmless the Released Parties from, any and all claims, liability, judgments, damages, fines, expenses, costs, including attorney’s fees, causes of action, demands, rights and penalties arising on account of (a) injury to the person or property of Contractor or any third person or entity arising out of Contractor’s performance of the Services, (b) misappropriation or infringement of any third-party intellectual property rights, or (c) violation of law, FTC Guidelines or social medial platform rules and policies arising out of Contractor’s performance of the Services. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, LOST PROFITS OR LIKE EXPECTANCY DAMAGES ARISING OUT OF THE AGREEMENT. THE COMPANY'S MAXIMUM OBLIGATION UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID TO CONTRACTOR IN IMMEDIATELY PRECEDING SIX (6) MONTHS.
13. Morals Clause. Contractor and Contractor’s representatives, agents and family members shall not commit any act or do anything which might reasonably be considered: (i) to be immoral, deceptive, scandalous or obscene; or (ii) to injure, tarnish, damage or otherwise negatively affect the Business and/or the reputation and goodwill associated with the Company or the Released Parties. If Contractor or the Contractor’s representatives, agents and family members are accused of any act involving moral or ethical issues, dishonestly, theft or misappropriation, under any law, or any act which casts an unfavorable light upon its association with the Business and/or the Company or Released Parties, or the Contractor is accused of performing or committing any act which could adversely impact the Contractor’s Services or reputation, the Company shall have the right to terminate this Agreement immediately without notice to the Contractor.
14. Non-Disparagement. Contractor agrees and covenants that, during the term of this Agreement and all times thereafter, Contractor shall not, directly or indirectly, slander, disparage or make any negative public statements about the Company, any of its products or any Released Party, or knowingly make statements or take any other actions that would damage their business interests, business or personal reputations or good names. The Company agrees in return, during the term of this Agreement and all times thereafter, not to slander, disparage or make any negative public statements about Contractor, or knowingly take any other actions that would damage Contractor’s business interests, employment prospects, personal reputation or good name. This mutual non-disparagement covenant applies to video, audio, electronic, digital, graphic, oral or written communications, including e-mail, text message, social media, including but not limited to Instagram, Facebook, X (Twitter), Snapchat and LinkedIn, and/or depictions of any kind, that would be considered by an average person to be offensive, negative, slanderous or disparaging to the Company, any Released Party or Contractor.
15. Cooperation Clause. Contractor agrees that, as requested by the Company, Contractor will fully cooperate with the Company in any formal or informal inquiry, investigation, disciplinary or other proceeding initiated by any government, regulatory or law enforcement agency (including without limitation the Federal Trade Commission). Contractor further agrees that Contractor will take all remedial actions directed by any governmental, regulatory or law enforcement agency.
16. Miscellaneous.
(a) Reasonable Restrictions. Contractor agrees that the terms and conditions of this Agreement are reasonable and necessary for the protection of the Business and to prevent damage or loss to Company as the result of action taken by Contractor.
(b) Equitable Relief. Contactor acknowledges and agrees that the Company’s Business is highly specialized, and that it has developed and uses commercially valuable technical and nontechnical information which is vital to the success of the Business; that it is necessary for the Company to protect such information as proprietary, confidential or as otherwise appropriate; and that Company has and will expend significant funds and resources in developing aforesaid information and therefore, Company has a vital and protectable interest in the Confidential Information of the Business, in the employees of the Business, and in protecting the expertise, knowledge, and access to and use of the aforementioned; and, as a result, that any actual or anticipated violation of the restrictive covenants set forth in this Agreement would cause immediate, continuing, and irreparable damage to Company. As such, Contractor agrees that, in the event Contractor breaches or threatens or attempts to breach any one or more of the restrictive covenants contained herein, Company shall be entitled to temporary, preliminarily, and permanent injunctions, enjoining and restraining such breach or threatened breach. Such remedies shall be in addition to all other remedies available at law or in equity. Should any injunctive action be initiated by Company, Contractor agrees that a bond shall be set in the amount of One Thousand and 00/100 Dollars ($1,000.00) in order for Company to obtain a temporary restraining order.
(c) Amendments and Waivers. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the party to be charged. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right. The failure of either party to this Agreement to insist upon the performance of any of the terms and/or conditions of this Agreement, or the waiver of any breach of any of the terms and/or conditions of this Agreement, shall not be construed as thereafter waiving any such terms and/or conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.
(d) Assignment. This Agreement may not be assigned by either party except that Company may assign this Agreement to any affiliate or in connection with the merger, consolidation or sale of all or substantially all of its business or assets. Any purported assignment or delegation in violation of this Section shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and other legal representatives and, to the extent that any assignment hereof is permitted hereunder, their assignees.
(e) Severability. In the event that any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, and all other provisions shall remain in full force and effect. If any of the provisions of this Agreement is held to be excessively broad, it shall be reformed and construed by limiting and reducing it so as to be enforceable to the maximum extent permitted by law.
(f) Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Missouri without regard to any choice of law principle that would dictate the application of the laws of another jurisdiction. Any action, suit or other legal proceeding commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court Cole County, Missouri and Contractor hereby consents to the jurisdiction of such court with respect to any action, suit or proceeding commenced in such court by Company.
(g) Notices. All notices required or permitted hereunder shall be hand delivered, sent via Certified mail return receipt requested, sent by overnight courier, or sent via email. Such notice shall be deemed to be delivered and received whether actually received or not as follows: (1) three days after being deposited in the United States Mail, postage prepaid, Certified or Registered Mail; (2) upon execution of written receipt when hand delivered; (3) one day after being sent via overnight courier; and (4) upon the sender receiving confirmation that the email was completed successfully without notice of rejection, bounce back, or undeliverable.
(h) Counterparts. This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall constitute an original; provided, however, that all such counterparts shall constitute one and the same instrument. The Agreement may be executed via facsimile as well as via electronic mail.
(i) Attorney’s Fees. In the event that either party retains the services of an attorney to enforce any provision of this Agreement, regardless of whether any suit or action is filed with a court, the prevailing party, as determined by a court with jurisdiction shall be reimbursed by the other for all reasonable attorneys' fees and costs incurred related to such enforcement of this Agreement. The term "Prevailing Party" shall be that party who is substantially more successful with their claims or defenses as determined by the court. The court may decide that there is no Prevailing Party.
(j) Entire Agreement. This Agreement supersedes all prior agreements, written or oral, with respect to the subject matter of this Agreement.
(k) WAIVER OF JURY TRIAL. THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT AGAINST THE OTHER IN RESPECT OF ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT.
IN WITNESS WHEREOF, the undersigned are duly authorized to execute this Agreement on behalf of Company and Contractor, as applicable.
EXHIBIT A
SERVICES AND CONSIDERATION
Services: Contractor shall provide, pursuant to the terms and conditions contained in the Agreement, social media promotion/content services, as reasonably set out and otherwise detailed between Contractor and Company from time to time. These services shall include, but not be limited to, Contractor’s promotion of Company’s brand, services, and platform generally.
Company shall be responsible for providing Contractor with necessary marketing assets (including graphics, language, etc.) for use in content creation services.
Any content posted as a result of the services must include notification that the content in question is an advertisement for which Contractor is compensated, and other criteria required by law or as determined by Company in its sole discretion. Additionally, Contractor shall at all times abide by the rules and regulations of any social media platform where Contractor posts content, including but not limited to, any requirement that Contractor notify the public that it is posting an ad.
Consideration: In exchange for Contractor’s provision of the services to Company,
Contractor shall be compensated as follows:
• For every user that registers using the Contractor’s unique promo code (which shall be given to Contractor by Company), and the user spends at least TEN DOLLARS ($10.00) during the term of this Agreement within the Attribution Window Period (as that term is defined below), the Company shall compensate the Contractor in an amount equal to the CPA price point assigned.
• Company shall not be obligated to deliver Payment for any user who spends the required amount but does not utilize the Contractor’s unique code, nor shall Company be obligated to retroactively and/or manually apply.
• The “Attribution Window Period” is defined as the 180-day period in which Contractor will receive credit for referred, qualifying users that have met minimum aforementioned sign up and purchase thresholds. Contractor will receive credit for all such users that complete the requirements within 180 days of the user’s sign up date. Any users referred by partner that do not complete sign up and purchase requirements within said 180-day period, will not be attributed to Contractor and Contractor will not receive any Payment for such users.
• As already noted herein, Contractor is solely responsible for any and all taxes due as a result of the Payments made hereunder.
• All payments for services rendered under this contract shall be due within 45 days from the date of invoicing, following the “net 45” payment arrangement. The Company agrees to remit payment within this timeframe.
• Company’s tracking and reporting of the above shall be final for determining the amount of compensation paid to Contractor.