TERMS & CONDITIONS

These Terms and Conditions are incorporated into the ProphetX Marketing Partner Agreement (together, the “Agreement”) between Stake Trade, Inc. (“ProphetX”) and Marketing Partner. Capitalized terms not defined herein shall have the meanings given to them in the ProphetX Marketing Partner Agreement.

1.    General Guidelines and Responsibilities

In the provision of the Services, Marketing Partner shall actively maintain Approved Marketing Partner Websites and update Approved Marketing Partner Websites to reflect updates or revisions to ProphetX’s sweepstakes, promotions, products, services, website, and as directed by ProphetX. Marketing Partner shall comply with all ProphetX policies (including ProphetX’s Privacy Policy available at https://prophethelp.zendesk.com/hc/en-us/articles/360002169378-ProphetX-Privacy-Policy) and any other ProphetX guidelines in connection with the Services.

Marketing Partner shall perform the Services in full compliance with applicable laws, rules and regulations, including any applicable Federal Trade Commission rules or requirements, and in cooperation with ProphetX. As a part of the Services, Marketing Partner will appropriately and adequately disclose the connection between Marketing Partner and ProphetX. 
Marketing Partner shall not in any event:

i.    direct the Services to any person under the age of 19 (a “Minor”) or any persons acting on behalf of Minors;

ii.    undertake or promote any activity that would constitute the provision of facilities for gambling under any jurisdictional gambling legislation;

iii.    publish or post any content relating to or implying connection to ProphetX on any website, forum, or medium that is not an Approved Marketing Partner Website;

iv.    publish or post any content on an Approved Marketing Partner Website or other website maintained or controlled by Marketing Partner (each, a “Marketing Partner Website”) that is: illegal; obscene or menacing; misleading or false; racially provocative or insensitive; defamatory; having specific appeal to Minors; sexual in nature or association; provocative or offensive; condoning or encouraging of criminal behavior, gambling behavior, or behavior that is socially irresponsible or could lead to financial, social, or emotional harm; or violate any law, regulation, order, or contractual obligation appliable to or binding upon Marketing Partner;

v.    directly or indirectly offer any person or entity any consideration or incentive (including granting any rebate, discount, or other benefit) for using ProphetX’s services or becoming a Marketing Partner Client; or

vi.    submit, intercept, record, redirect, or in any way alter the contents of any information or material submitted to ProphetX by any other person or entity.

Marketing Partner shall comply with any instruction by ProphetX to remove or modify any content relating to or connected to ProphetX posted on a Marketing Partner Website. 
2.    Marketing Partner Clients

During the Term, Marketing Partner will earn Compensation in accordance with the Agreement based on the initial purchase amounts made by Marketing Partner Clients.

A “Marketing Partner Client” is an individual 19 years old or older who is successfully referred to ProphetX by Marketing Partner through an Approved Marketing Partner Website. To qualify as a Marketing Partner Client, the individual must:

i.    successfully open an account with ProphetX during the Term by completing ProphetX’s account opening process, satisfying ProphetX’s verification requirements, and properly utilizing the specific referral code provided to Marketing Partner by ProphetX, as may be further specified by ProphetX;

ii.    have not previously registered or created any account (whether in the individual’s own name or under a different name) with ProphetX as a part of any sweepstake or other program hosted, organized, or connected to ProphetX or its affiliate;

iii.    make a purchase through their ProphetX account within thirty (30) days of successfully opening a ProphetX account; and

iv.    not be the Marketing Partner or an employee, agent, subsidiary, affiliate, family member, representative, or agent of Marketing Partner.

ProphetX shall determine in its sole discretion whether an individual is a Marketing Partner Client. If Marketing Partner disputes ProphetX’s determination regarding whether an individual is a Marketing Partner Client, Marketing Partner shall notify ProphetX in writing of its dispute within thirty (30) days of the close of the quarter applicable to the relevant determination. The Parties shall mutually agree to review and resolve disputes regarding Marketing Partner Clients in good faith; final determinations about Marketing Partner Client status shall be made in the sole and final discretion of ProphetX.

3.    Creative Assets and Content

As a part of the Services, Marketing Partner shall work collaboratively with ProphetX to develop, produce, and create artwork, content, text, and/or other creative assets related to ProphetX  (collectively, the “Creative Assets”) to be used by Marketing Partner on the Approved Marketing Partner Websites. Marketing Partner must obtain ProphetX’s approval for the use of each Creative Asset as part of the Services. At times, ProphetX may provide Marketing Partner with data, graphics, images, text, or other information (collectively, along with the Creative Assets, the “Content”) to use in the provision of the Services.  

4.    Intellectual Property

ProphetX shall retain all right, title and interest in and to the ProphetX website located at www.getprophetx.co (the “ProphetX Website”), the Content, and any related and underlying software and content, databases (including non-client or user specific data and aggregated statistical data contained therein), technology, reports and documentation (collectively, the “ProphetX Materials”).  ProphetX also shall retain all right, title and interest in and to all of its names, trademarks, trade names, service marks, logos, symbols, emblems, designs, colors, brands, identifications and designations (collectively, the “ProphetX Marks” and together with the ProphetX Materials, the “ProphetX Property”). Any and all uses of ProphetX Property shall inure to the sole benefit of ProphetX.  ProphetX expressly reserves all rights in and to the ProphetX Property not expressly granted herein.  

ProphetX hereby grants to Marketing Partner a non-exclusive, royalty-free, revocable, non-sublicensable, non-transferable, limited license to use the ProphetX Marks and the Content during the Term solely for Marketing Partner’s performance of the Services. 
Marketing Partner hereby grants to ProphetX a non-exclusive, royalty-free, revocable, non-sublicensable, non-transferable limited license to use Marketing Partner Property during the Term solely for ProphetX’s performance of its obligation under the Agreement, exercise of its rights hereunder, or communications regarding the Parties’ relationship. The “Marketing Partner Marks” are Marketing Partner’s names, trademarks, trade names, service marks, logos, symbols, emblems, designs, colors, brands, identifications, and designations. The Marketing Partner Marks and Marketing Partner’s name, image, and likeness, along with any property of Marketing Partner provided by Marketing Partner to ProphetX are collectively the “Marketing Partner Property.” 
All licenses granted herein shall automatically expire upon the termination of the Agreement. 
5.    Confidentiality

During the Term, each Party may receive non-public information and materials concerning the other Party’s business, technology, partners, products and services that are proprietary and of substantial value to such Party (“Confidential Information”).  Each Party will not use or disclose to any third party any Confidential Information except as permitted by the Agreement. Each Party will maintain the confidentiality of all Confidential Information of the other Party, and neither Party will use less effort than it ordinarily uses with respect to its own Confidential Information.

The foregoing will not restrict either Party from disclosing Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the Party required to make such a disclosure gives reasonable notice to the other Party to contest such order or requirement; or on a confidential basis to its legal or financial advisors, or prospective acquirers or investors.

Confidential Information excludes information that: (a) is or becomes generally known to the public through no fault of the recipient; (b) is rightfully known by the recipient at the time of disclosure without a confidentiality obligation; (c) is independently developed by the recipient without use of the disclosing Party’s Confidential Information; or (d) the recipient rightfully obtains from a third party without disclosure restrictions.

Upon the termination of the Agreement, each Party shall return or destroy the Confidential Information of the other Party in its possession and confirm such return or destroy upon request.

6.    Compensation

Marketing Partner will be paid Compensation as provided in the Agreement.

ProphetX may make Compensation payments in reliance upon payment details provided by Marketing Partner. Marketing Partner is responsible for providing ProphetX correct, complete, and current information regarding its receipt of Compensation payments. ProphetX shall not be liable for Compensation payments made to any incorrect bank accounts or payments that are rejected or otherwise are not processed due to incorrect, incomplete, or out-of-date information provided by Marketing Partner.  

If Marketing Partner disputes any Compensation payment, Marketing Partner must notify ProphetX in writing of such dispute within thirty (30) days of receipt of the disputed payment. Failure to provide notification as stated herein shall result in Marketing Partner losing all rights to dispute such Compensation payment thereafter.

ProphetX reserves the right to withhold, suspend, recover, and/or claw back Compensation payments related to any Marketing Partner Client or account that ProphetX suspects or determines is engaging in fraud, abuse, illegal activities, activities in violation of third-party rights, violation of the terms of the Agreement, or for any other valid reason.

7.    Termination

After the first month of the Term, ProphetX may terminate the Agreement for any reason upon ten (10) days’ advance written notice to Marketing Partner.  

At any point during the Term, ProphetX may immediately terminate the Agreement upon written notice to Marketing Partner in the event ProphetX determines that (i) any changes in law, regulation, treaty, ordinance, order, or other similar governing authority or document applicable to a Party (collectively, the “Applicable Laws”) would materially affect ProphetX’s ability to offer its products or services; (ii) Marketing Partner or any of its officers, directors, employees, agents, designees, or representatives may be engaged in any activity or relationship that could jeopardize ProphetX’s business; (iii) Marketing Partner has breached one or more terms of the Agreement, including the its representations and warranties; or (iv) Marketing Partner has made improper payments to any foreign official, member of government, or private party with respect to the Services.

Upon termination of the Agreement, neither Party shall incur any additional obligations or liabilities under the Agreement, and Marketing Partner shall comply with all ProphetX instructions to remove any and all content relating to ProphetX from Marketing Partner Approved Websites. Upon termination of the Agreement, ProphetX shall pay to Marketing Partner any undisputed Compensation earned prior to the termination of the Agreement within sixty (60) of the termination, unless such payment is prohibited by law or regulation.

Notwithstanding anything to the contrary, the following sections herein shall survive termination of the Agreement: 1, 2, 4-20.

8.    Marketing Partner Representations, Warranties, and Covenants
Marketing Partner represents and warrants that: (a) the persons signing the Agreement on its behalf has the authority to bind Marketing Partner to the Agreement; (b) Marketing Partner has all rights necessary and may perform the Agreement without violating any Applicable Laws or rights of any third party; (c) it has never engaged in any activity, practice, or conduct which would constitute a felony or lesser criminal offense involving fraud, dishonesty, or a lack of moral turpitude; and (d) it has never been the subject of any investigation, inquiry, or enforcement proceedings by any governmental, administrative, or regulatory body regarding any felony or lesser criminal offense involving fraud, dishonesty, or a lack of moral turpitude, and no such investigation, inquiry, or proceedings have been threatened or are pending.
Marketing Partner covenants that in the performance of the Services, (i) Marketing Partner shall comply, and all parties acting on its behalf shall comply, with all Applicable Laws and all obligations owed to third parties; (ii) Marketing Partner will not promote any illegal activity, including but not limited to illegal offshore gambling websites, on any Marketing Partner Website; (iii) the performance of the Services will not be libelous, obscene, disparaging, nor will it violate the intellectual property rights, proprietary or confidentiality rights, or right of privacy or publicity of any other third party; (iv) Marketing Partner will not pay, offer, promise to pay, or authorize the payment of any money or value to any government party or official, candidate, representative, or affiliate for the purpose of influencing any act or decision of such individual or party, to secure any improper business advantage, or for any purposes related to fraud or bribery; and (v) Marketing Partner shall comply with the terms of the Agreement. If Marketing Partner becomes aware that any provision of this Section has been breached, Marketing Partner shall notify ProphetX in writing within five days of becoming aware of such breach.
9.    Indemnification
Marketing Partner shall indemnify, defend, and hold harmless ProphetX, its agents and affiliates, and their respective officers, directors, employees, contractors, licensors, customers, service providers, agents, successors, and assigns from and against any and all losses, fines, fees, damages, liabilities, or costs (including reasonable attorneys’ fees) incurred by ProphetX resulting from any third-party claim, suit, action, or proceeding arising from or related to Marketing Partner’s performance of the Services or violation of any term of the Agreement. The indemnification obligation herein applies to any regulatory fines, demands, penalties, sanctions, or other actions imposed by a governmental or regulatory authority. ProphetX reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Marketing Partner pursuant to this Section, in which event Marketing Partner shall cooperate with ProphetX in asserting any available defense. 
Marketing Partner’s violation of any term of this Section shall constitute a material breach of the Agreement and may result in termination of the Agreement; withholding, suspension, recovery, and/or clawback of Compensation; and other remedies to ProphetX or third parties.  
10.    Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, PROPHETX SHALL NOT BE LIABLE FOR DELAYS, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), INTERRUPTIONS, SERVICE FAILURES, AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF THE PARTY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. 
PROPHETX EXPLICITLY DISCLAIMS ANY AND ALL LIABILITY FOR ANY CLAIMS, LOSSES, DAMAGES, EXPENSES, OR THE LIKE ARISING OUT OF, IN CONNECTION WITH, OR CAUSED BY (I) ANY INCORRECT OR INACCURATE CONTENT PROVIDED TO IT OR ACQUIRED FROM THIRD PARTIES, INCLUDING MARKETING PARTNER; AND (II) PROPHETX’S SERVICES OR PRODUCTS. 
NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT, PROPHETX’S ENTIRE LIABILITY RELATING TO THE SUBJECT MATTER OF THE AGREEMENT SHALL NOT EXCEED THE TOTAL COMPENSATION ACTUALLY DUE TO MARKETING PARTNER DURING THE PRIOR TWELVE MONTHS UNDER THE AGREEMENT.
11.    Governing Law 
The Agreement shall be governed by the laws of the State of Delaware.
12.    Arbitration
Any dispute, claim, or controversy arising out of or relating to the Agreement, or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this arbitration provision, shall be determined by arbitration in New York, New York before one arbitrator. The arbitration shall be administered by JAMS in accordance with the Agreement and the JAMS Streamlined Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude either Party from seeking provisional or equitable remedies (pertaining to, for example, breaches of the confidentiality or intellectual property clauses herein) in aid of arbitration from a court of appropriate jurisdiction. The Parties shall maintain the confidential nature of any arbitration proceeding described in this Section and the arbitrator’s award or determination, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an arbitration award or its enforcement, or unless otherwise required by law or judicial decision.
13.    Jury Trial Waiver and Waiver of Class Action
To the fullest extent permitted under applicable law, each Party hereby irrevocably waives its right to a trial by jury or to participate as a plaintiff in a class action lawsuit against the other Party in connection with any legal suit, action, or proceeding arising out of or relating to the matters herein. 
14.    Severability 
If any portion of the Agreement is found to be unenforceable, the remaining provisions of the Agreement will remain in full force. 
15.    Assignment
Neither Party may assign the Agreement without the other Party’s prior written consent, except that either Party may assign the Agreement to the surviving corporation in the event of a merger, reorganization, or sale of all or substantially all of its assets or voting securities. Any attempt to assign the Agreement other than as permitted above will be invalid.  
16.    Subcontractors
Marketing Partner must have the written approval of ProphetX prior to engaging or using any subcontractors to assist in the performance of Services.
17.    Notices 
All notices will be in writing and deemed given when delivered to the other Party at the address set forth above or through email to the emails set forth above. 
18.    Waivers 
No waiver will be implied from conduct or failure to enforce or exercise rights under the Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the Party claimed to have waived.  
19.    Independent Contractors
The Parties are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the Parties.  Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent. 
20.    Entire Agreement/Amendments
The Agreement constitutes the complete and exclusive agreement between the Parties regarding the subject matter of the Agreement and supersedes all prior or contemporaneous agreements or understandings relating to their subject matter. No modification of the Agreement will be effective unless contained in a writing executed by duly authorized representatives of both Parties.