affiliate Program

BALLY’S AFFILIATE AGREEMENT

This Affiliate Marketing Agreement (this “Agreement”), is made by and between Bally’s Interactive, LLC, with offices located at 100 Westminster Street, Providence, Rhode Island 02903 (“Bally’s”). Bally’s and Affiliate may be referred to herein individually as a “Party” or together as the “Parties.”

WHEREAS, Bally’s is a diversified gaming company that operates interactive online gambling, fantasy sports, free to play interactive games and sports wagering services, including mobile applications for viewing and wagering on sporting events;

WHEREAS, Affiliate is in the business of providing online marketing services, including pay-per-click advertising; and

WHEREAS, Bally’s desires to retain Affiliate to provide certain online marketing services for certain websites and businesses operated by Bally’s, and Affiliate desires to provide such services to Bally’s, all on the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual benefits and promises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Parties hereto agree as follows:

Affiliate Services and Responsibilities.
- Affiliate Services. Affiliate shall provide online marketing services by posting Links to the Brand Website(s), and otherwise promote the website operated and controlled by Bally’s (currently located at ballys.com) (the “Website”) in the Territory and subject to and in accordance with the terms of this Agreement (the “Services”). The terms “Links,” “Brand Website(s)” and “Territory” are defined in the Campaign Terms attached hereto as Schedule 1 and made a part hereof, or in any subsequent Campaign Terms as may be agreed in writing between the Parties (the “Campaign Terms”).
- Services Standards.
  - Affiliate shall comply with all applicable digital marketing industry standards and self-regulatory guidelines and best practices in providing the Services.
  - Affiliate shall only place Links on websites that have been approved by Bally’s in writing. Affiliate shall always use the most up-to-date Links made available, provided or approved by Bally’s from time to time. Without prejudice to the generality of the foregoing sentence, Affiliate shall not place Links or content promoting the Brand Website to Players (as defined in the applicable Campaign Terms) or potential Players unless such Links are: (i) made available to Affiliate (and not subsequently withdrawn) by Bally’s; or (ii) created by or on behalf of Affiliate, which content is approved by Bally’s in writing in advance (“Promotional Content”) in newsgroups or unsolicited email.
  - Affiliate shall not provide the information of another person with the intention of impersonating that person or deceiving Bally’s or other Affiliates as to its true identity.
  - Affiliate shall not drive pay-per-click advertising traffic to the Website, a Brand Website or another affiliate’s website, including via any search engine, directory or online database by bidding on search terms, key words or other identifiers related to a Brand Website, registered Brand Website term or any of its variables, including the Prohibited Websites, as set forth on Schedule 2 attached hereto and made a part hereof (the “Prohibited Websites”).
  - Affiliate shall not use misleading Links or Promotional Content or cause any Links to open in an end user’s browser other than as a result of the end user making a Valid Click (as defined in the Campaign Terms).
  - Affiliate shall ensure that its website is not confusingly similar with the look and feel of any of the Brand Website.
  - If Affiliate emails its opt-in email lists in relation to a Brand Website, Affiliate shall: (i) clearly display an unsubscribe feature at the bottom of the email (clearly detailing methods of unsubscribing from the mailing list); (ii) clearly include the header of the applicable Brand Website in the email (incorporating any trademarks and logos of any Brand Website); (iii) not send any promotional offers relating to the Website or the Brand Website to recipients under the age of 21; (iv) not send any offers relating to the Website or the Brand Website to people who have not willingly submitted their email address and opted-in to receive promotional material; and (v) comply with all applicable data protection legislation.
- Status Reports. For each Service, Affiliate shall provide monthly written status reports, including written confirmation of completion of each Service.
- Website Design. If Bally’s requests any change to Affiliate’s use and positioning of the Links from time to time, Affiliate shall promptly comply with such request.
- Affiliate Accounts. Affiliate shall be responsible for maintaining the confidentiality of its email, password and all usage and activity on its account on the Website, including use of such account by a third party authorized by Affiliate to use its account. Affiliate shall promptly notify Bally’s in writing of any known or suspected unauthorized uses of its account on the Website, or any known or suspected breach of security, including loss, theft or unauthorized disclosure of its email and/or password. Affiliate agrees that Bally’s shall have the right to rely on any data, notice, instruction or request furnished to Bally’s by Affiliate or by a person reasonably believed by Bally’s to be authorized to act on Affiliate’s behalf.
- Compliance with Laws. Affiliate shall, and shall ensure that all Promotional Content, Services and Links provided for under this Agreement, at all times comply with all applicable federal, provincial, state, and local laws, ordinances, regulations, and orders that are applicable to the operation of its business and to this Agreement and its performance hereunder. Without limiting the generality of the foregoing, Affiliate shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits necessary to conduct its business relating to the exercise of its rights and the performance of its obligations under this Agreement. Any approval provided by Bally’s in accordance with this Agreement shall not be deemed to be a waiver of this Section 1.7.
Fees and Expenses; Payment Obligations.
- Fees and Expenses. Subject to Affiliate’s compliance with the terms and conditions of this Agreement, in consideration of the provision of the Services, Bally’s shall pay Affiliate: (a) the Commission set out in the Campaign Terms, which amount shall be inclusive of any costs of materials or other expenses of Affiliate in providing such Services; and (b) the Flat Fee, if applicable, as set out in the Campaign Terms ((a)-(b) together the “Affiliate Fee”). Payment of the Affiliate Fee shall constitute payment in full for the performance of the Services, and Bally’s shall not be responsible for paying any other fees, costs, or expenses.
- Payment. All payments shall be paid in United States dollars to a bank account provided by Affiliate. Bally’s reserves the right to withhold payment of the Affiliate Fee to an Affiliate if it reasonably believes or suspects that any transaction or other activity relating to any Link, the Website or the Brand Website is suspicious, fraudulent and/or and involves or may involve financial crime or similar activity. In such event, Bally’s reserves the right to retain any revenues relating to that transaction or activity and any other revenues relating to Affiliate.
- Taxes. All fees payable by Bally’s under this Agreement are inclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on such amounts. Affiliate shall be responsible for any taxes imposed on, or with respect to, Affiliate’s income, revenues, gross receipts, personnel, or real or personal property, or other assets. Bally’s shall be solely responsible for the payment of any sales and use taxes assessed against the sale of Bally’s goods and services.
- Invoice Disputes. Bally’s shall notify Affiliate in writing of any dispute with an invoice (along with a reasonably detailed description of the dispute) within thirty (30) business days from Bally’s receipt of a payment subject to such dispute. The Parties shall seek to resolve all such disputes expeditiously and in good faith.
Intellectual Property Rights; Ownership.
- License to Bally’s Trademarks. Subject to and in accordance with the terms and conditions of this Agreement, Bally’s grants to Affiliate and its affiliates a limited, non-exclusive, royalty-free, non-transferable, and non-sublicensable license in the Territory during the Term to use Bally’s Trademarks (as defined in the Campaign Terms) solely to the extent necessary to (a) display the Links provided by or on behalf of Bally’s on the Affiliate website for the purpose of performing the Services, and (b) marketing the Brand Website through Promotional Content provided by or on behalf of Bally’s, in each case solely in accordance with any and all brand guidelines in respect of the relevant Brand Website, Bally’s Trademarks and this Agreement.
- Ownership. Affiliate acknowledges that Bally’s owns all right, title, and interest in, to, and under the Bally’s Trademarks. Bally’s grants no other right or license to any Bally’s Trademarks to Affiliate by implication, estoppel, or otherwise and that Affiliate shall not acquire any proprietary rights therein. Any use by Affiliate or any affiliate, employee, officer, director, partner, shareholder, agent, attorney, third-party advisor, successor or permitted assign (collectively, “Representatives”) of Affiliate of any Bally’s Trademarks and all goodwill and other rights associated therewith shall inure solely to the benefit of Bally’s.
- Use Restrictions. Affiliate shall not do, cause or authorize to be done, anything which in Bally’s reasonable opinion shall or may in any way impair, damage or be detrimental or otherwise adversely affect the reputation or goodwill associated with Bally’s (or its licensors) or any of Bally’s affiliates, the Bally’s Trademarks, or any other intellectual property or proprietary rights vested in Bally’s or its affiliates or its or their licensors. Affiliate shall not use the Bally’s Trademarks in any manner likely to cause harm to the validity thereof.
- Promotional Content. If and to the extent that any Links and/or Promotional Content are created by or on behalf of Affiliate, Affiliate hereby assigns to Bally’s all right, title and interest worldwide in perpetuity in and to such Links and/or Promotional Content without restriction. Affiliate waives all “moral rights” in such Links and/or Promotional Content and grants to Bally’s all the consents required by Bally’s to exploit such Links and Promotional Content, without limitation so far as possible in perpetuity for any purpose. Affiliate shall only use Links and Promotional Content created by or on behalf of Affiliate for the purpose of fulfilling its obligations hereunder.
Representations, Warranties, and Certain Covenants.
- By Affiliate. Affiliate represents, warrants, and covenants to Bally’s that:
  - it shall comply with, and ensure that all Affiliate personnel and third party affiliates comply with, all applicable laws, ordinances, orders, rules, regulations, and any specification, guidelines and policies of Bally’s that are communicated to Affiliate by Bally’s from time to time;
  - it has obtained and shall maintain all necessary registrations, authorizations, consents and licenses to enable it to fulfil its obligations under this Agreement;
  - it shall perform its obligations under this Agreement in accordance with all reasonable care, skill and diligence as may be expected of appropriately qualified and experienced persons with appropriate skill and experience in providing services of a similar scope, type and nature to the Services;
  - none of the Services or Bally’s use thereof do or shall infringe any rights, including intellectual property rights, of any third party;
  - it shall not make any application to register any trade or service mark, business name, company name or domain name which contains or which is identical or similar to any intellectual property of Bally’s or a Brand Website;
  - it shall not make, and shall procure that none of its personnel or third party affiliates make, any defamatory or derogatory statements about, or take part in any activities which are or might reasonably be perceived to be derogatory of or detrimental to the reputation of the Brand Websites or Bally’s or its affiliates;
  - its website(s) and any content thereon: (i) is not aimed at children; (ii) does not contain any: (1) pornography (including child pornography or illegal sexual acts) and explicit content; (2) promotion of violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age or any illegal activities; (3) material that is defamatory, libelous, unlawful, or otherwise objectionable; or (4) content that infringes the intellectual property or proprietary rights of any third party; (iii) does not infringe the intellectual property or proprietary rights of any third party; and (iv) is solely owned by Affiliate;
  - it shall not intercept, redirect or otherwise interfere with traffic from any other Bally’s affiliate website, or intercept or complete any registration form submitted by Players or potential Players to Bally’s (and/or any other communications between any such persons and Bally’s);
  - no Services provided in electronic form by Affiliate to Bally’s contain or shall contain any (i) trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access or to disable, erase, or otherwise harm any computer, systems or software, or (ii) any time bomb, drop dead device or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of a person other than an authorized licensee or owner of a copy of the program or the right and title in and to the program; and
  - all information it submits to Bally’s pursuant to this Agreement or any Campaign Terms is complete and accurate.
- DISCLAIMER. THE WEBSITE AND THE BRAND WEBSITES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF THE ABILITY AND FITNESS FOR A PARTICULAR PURPOSE OF THE WEBSITE AND THE BRAND WEBSITES, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. BALLY’S DOES NOT GUARANTEE THAT: (A) THE WEBSITE OR THE BRAND WEBSITES SHALL BE UNINTERRUPTED OR ERROR-FREE; (B) THAT DEFECTS ON OR IN THE WEBSITE OR THE BRAND WEBSITES SHALL BE CORRECTED; (C) THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS ON OR IN THE WEBSITE OR THE BRAND WEBSITES; (D) THE SECURITY METHODS EMPLOYED ON OR IN THE WEBSITE OR THE BRAND WEBSITES SHALL BE SUFFICIENT; OR (E) ANY CONTENT ON THE WEBSITE OR THE BRAND WEBSITES IS CORRECT, ACCURATE, OR RELIABLE. BALLY’S RESERVES THE RIGHT TO DISCONTINUE, WITHDRAW, TERMINATE OR MODIFY THE WEBSITE AND BRAND WEBSITES OR ANY PART THEREOF AT ANY TIME WITH OR WITHOUT NOTICE OR FURTHER LIABILITY TO AFFILIATE.
Indemnification.
- Affiliate Indemnification Obligations. Affiliate shall defend, indemnify, and hold harmless Bally’s, and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (each, an “Indemnified Party”), from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including professional fees and reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, arising out or resulting from any third-party claim, suit, action, or proceeding alleging: (a) any actual or alleged breach or misrepresentation by Affiliate of, inaccuracy in, or failure to perform, any representation, warranty, covenant, or other obligation under this Agreement; (b) any actual or alleged failure to comply with any applicable federal, provincial, state, and local law, ordinance, regulation, and/or order under this Agreement; (c) gross negligence or more culpable act or omission of Affiliate Indemnifying Party or its personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; or (d) that any of the Services or Bally’s receipt or use thereof infringes, misappropriates or violates any intellectual property of a third party.
- Indemnification Procedures. The Indemnified Party shall give Affiliate: (a) prompt notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve Affiliate from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; and (b) reasonable cooperation, at the Affiliate’s expense, in the defense of such claim. Affiliate shall have the right to control the defense and settlement of any such claim; provided, however, that Affiliate shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCLUDING A PARTY’S INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES, OR FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS (REGARDLESS OF HOW THESE ARE CLASSIFIED AS DAMAGES), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE (INCLUDING THE ENTRY INTO, PERFORMANCE, OR BREACH OF THIS AGREEMENT), REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BALLY’S BE LIABLE TO AFFILIATE FOR AN AMOUNT IN EXCESS OF THE TOTAL AMOUNTS PAID UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING ANY SUCH CLAIM.
Confidentiality. From time to time during the Term, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs and services, confidential information and materials comprising or relating to intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 7 by the Receiving Party or any of its Representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (e) is required or requested to be disclosed pursuant to applicable law, rule or regulation or government inquiry or legal process of competent jurisdiction to disclose Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Section 7 caused by any of its Representatives. At any time during or after the Term, at the Disclosing Party’s written request, the Receiving Party and its Representatives shall, pursuant to Section 6, promptly return or destroy all Confidential Information and copies thereof that it has received under this Agreement. The obligations of the Receiving Party under this Agreement shall survive, with respect to any particular Confidential Information of the Disclosing Party, until all Confidential Information of the Disclosing Party disclosed hereunder becomes publicly known or made generally available through no action or inaction of the Receiving Party.
Term; Termination.
- Term. This Agreement shall commence on the Effective Date and shall continue until terminated in accordance with this Section 8 (the “Term”). The Term for rendering Services in accordance with the Campaign Terms is defined in such Campaign Terms.
- Termination for Cause. Bally’s shall have the right to terminate this Agreement or the Campaign Terms immediately on written notice to Affiliate if Bally’s considers that: (a) a promotion published or operated by Affiliate is: (i) harmful, inappropriate or aimed at undesirable countries; or (ii) in any way in breach of this Agreement; (b) if Affiliate sends or causes to be sent (or is alleged to have sent) any form of spam; or (c) Affiliate materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, Affiliate does not cure such breach within seven (7) days after receipt of written notice of such breach.
- Termination for Insolvency. Either Party shall have the right to terminate this Agreement, effective upon written notice to the other Party, if the other Party: (a) becomes insolvent or is generally unable to pay its debts as they become due; (b) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (c) makes or seeks to make a general assignment for the benefit of its creditors; (d) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or (e) is dissolved or liquidated.
- Termination for Convenience. Bally’s shall have the right to terminate this Agreement or the Campaign Terms for any reason upon three (3) business days’ prior written notice to Affiliate.
- Effect of Expiration or Termination. Upon expiration or termination of this Agreement or the Campaign Terms for any reason, Affiliate shall: (a) promptly deliver to Bally’s all Services and any deliverables related thereto (whether complete or incomplete) for which Bally’s has paid; (b) provide reasonable cooperation and assistance to Bally’s upon Bally’s written request and at Bally’s expense in transitioning the Services to an alternate affiliate; and (c) on a pro-rata basis, repay any fees and expenses paid in advance for any Services that have not been provided. In no event shall Bally’s be liable to Affiliate for any damage of any kind (whether direct or indirect) incurred by Affiliate by reason of the expiration or earlier termination of this Agreement, including any Affiliate personnel termination costs arising from the expiration or termination of this Agreement or the Campaign Terms. Termination of this Agreement shall not constitute a waiver of any of the terminating Party’s rights or remedies under this Agreement, at law, in equity or otherwise.
- Return/Destruction of Confidential Information. Upon the expiration or termination of this Agreement or the Campaign Terms for any reason, each Party shall promptly: (a) return to the other Party/destroy all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other Party’s Confidential Information; (b) permanently erase all of the other Party’s Confidential Information from its computer systems, except for copies that are maintained as archive copies on its disaster recovery or information technology backup systems, which it shall destroy upon the normal expiration of its backup files; and (c) certify in writing to the other Party that it has complied with the requirements of this Section 8.6; provided, however, that Bally’s shall have the right to retain copies of any Confidential Information of Affiliate incorporated in the Services or to the extent necessary to allow it to make full use of the Services.
General Terms.
- Entire Agreement. This Agreement, including the related schedules attached hereto, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
- Survival. Any rights or obligations of the Parties in this Agreement which, by their nature, should survive termination or expiration of this Agreement, including representations, warranties, and indemnification obligations, shall survive any such termination or expiration.
- Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this Section 9.3). All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or e-mail (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the notice has complied with the requirements of this Section 3.
- Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Amendment and Modification. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized Representative of each Party.
- Waiver. No waiver by either Party of any of the provisions hereof shall be effective unless explicitly set out in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
- Equitable Remedies. Each Party acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under Section 3 (Intellectual Property Rights; Ownership) or Section 7 (Confidentiality) of this Agreement would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such Party of any such obligations, the other Party shall, in addition to any and all other rights and remedies that may be available to such Party at law, at equity or otherwise in respect of such breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages does not afford an adequate remedy. Each Party agrees that such Party shall not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 9.8.
- Assignment. Bally’s shall have the right to freely assign or otherwise transfer all or any of its rights and delegate or otherwise transfer all or any of its obligations or performance under this Agreement. Affiliate shall not assign or otherwise transfer any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Bally’s. Any attempted assignment, transfer, or other conveyance in violation of the foregoing 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 permitted assigns.
- Third-Party Beneficiaries. The Parties hereby designate the Bally’s Indemnified Parties and Affiliate Indemnified Parties as third-party beneficiaries of Section 5 of this Agreement having the right to enforce Section Except as expressly set forth in this Section 9.10, this Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
- Choice of Law; Venue. This Agreement, including and together with any related attachments, and all matters arising out of or relating to this Agreement, including contract, tort, and statutory claims are governed by, and construed in accordance with, the laws of the State of Rhode Island, without giving effect to any conflict of laws provisions thereof that would require or permit the application of the laws of a different jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal or state courts, in each case located in Providence, Rhode Island, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any legal suit, action, or proceeding.
- Relationship of Parties. Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Affiliate is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.
- Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

SCHEDULE 1

CAMPAIGN TERMS

Affiliate Fee.
1. Commission. Commission for any calendar month (or part calendar month, where relevant) shall be the following amount per Player payable to the Affiliate will be decided between Bally’s and the Affiliate.
2. Brand Website and Minimum Deposit, Minimum Number of Wagers Requirements and the Term of the Services will be decided between Bally’s and the Affiliate.
Trademarks. Subject to Section 3 of the Agreement, the following trademarks may be used in connection with performing the Services:
Territory. The geographic territory of performing the Services shall be [the United States of America and all of its territories and possessions.]
Definitions.
1. “Link” shall mean a hyperlink that incorporates a tracking code and which is placed on Affiliate’s website that, when clicked on, serves the relevant Brand Website to the end user’s browser, which hyperlink is either: (i) provided or made available to Affiliate (and not subsequently withdrawn) by or on behalf of Bally’s; or (ii) created by or on behalf of Affiliate and approved by Bally’s in writing in advance.
2. “Player” means a new player on a Brand Website who has successfully opened an account in accordance with this Agreement and which player: (i) commences his application for such account directly from a Valid Click; and (ii) has met the Minimum Deposit Requirement and the Minimum Number of Wagers Requirement in respect of the applicable Brand Website. A Player who deposits the minimum deposit requirement and meets the minimum number of wagers requirement in separate months can still qualify as a Player but commission shall only become payable with respect to such a Player once both the minimum deposit requirement and the minimum number of wagers requirement have been met in relation to such Player. For example, a Player who deposits $10.00 in the month of September but wagers once in October shall qualify as a player in October.
3. “Valid Click” means a click on a Link on an Affiliate’s website that results in the Brand Website being viewable to the relevant end user, as recorded by Bally’s systems.

SCHEDULE 2

PROHIBITED WEBSITES

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