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Operating Agreement


STRATOSPHERE AFFILIATE PROGRAM AGREEMENT

This is a valid and legally binding Affiliate Agreement (“Agreement”) between you (“Affiliate”) and American Casino & Entertainment Properties LLC (“Company”). You must consent to the terms and conditions of this Agreement if you want to participate in the Company’s “Stratosphere Affiliate Program” (“Affiliate Program”). This Agreement is not effective unless and until you consent to the terms of this Agreement and the Company approves you as an Affiliate.  In consideration of the terms and covenants of this agreement, and other valuable consideration, the parties agree as follows:

1.   DEFINITIONS

The following definitions apply to this Agreement:

“Affiliate” refers to the individual or legal entity who applies for and is accepted into the Affiliate Program.

“Affiliate’s web site” refers to the web site on which the Affiliate agrees to place a link to the Company’s web site.

“Company” refers to American Casino & Entertainment Properties LLC.

“Company’s web site” refers to any of the various web sites owned or operated by the Company or its properties.

“Customer” refers to persons or entities that book hotel rooms at the Company’s properties.

“Merchandise” means all products, merchandise and stock that is offered by the Company for sale through its web site.

"Net Sales" means the gross revenue actually generated from a Qualified Booking less actual costs (including, but not limited to, taxes and room charges, such as room service, mini-bar, valet, and goods and services charged by customers to the room).

“Promotional Assets” is defined in Section 8b below.

“Properties” means The Stratosphere Casino, Hotel and Tower, Aquarius Casino Resort, Arizona Charlie’s Boulder, Arizona Charlie’s Decatur

“Qualified Bookings” refers to a booking that meets the following criteria, the customer books one or more hotel rooms at one or more of the Properties, the booking is generated through a click through on a tagged link by the customer on the Promotional Assets on the Affiliate’s web site and the booking directly results in an actual paid hotel room stay by the customer and is not cancelled.

"Tagged Links" refers to hyperlinks, hypertext, or any other method, connection or program that enables web users to directly access any Company Web Site from any Affiliate Web Site.

2.   AFFILIATE PROGRAM REGISTRATION

To register for the Affiliate Program, the Affiliate must complete and submit to the Company an Affiliate Program Application Form (“Application Form”). The Application Form is included on the Company’s web site and can be completed and submitted through its web site.

3.   APPROVAL OR REJECTION OF AFFILIATE PROGRAM APPLICATION

The Company reserves the right to approve or reject ANY Affiliate Program Application in its sole and absolute discretion. The Affiliate will have no legal recourse against the Company for the rejection of the Affiliate Program Application. The Company will notify you within seven (7) days of receiving your Affiliate Application whether or not you have been accepted into the Affiliate Program. If the Company denies your Affiliate Application, this Agreement shall be null and void. If the Company does not notify you that your Affiliate Application has been approved within seven (7) days after receipt of your Affiliate Application, your Affiliate Application shall be deemed denied.

4.   REASONS FOR REJECTION

Without limiting the right to reject any application for any reason whatsoever in the Company’s absolute discretion, the Affiliate application will be rejected if it is not complete, if the Affiliate’s web site contains images or content that is not acceptable to Company or is inconsistent with the image that the Company wishes to create in association with its web site, or if the Affiliate’s web site contains any illegal, immoral, repulsive, defamatory, derogatory, harassing, harmful, threatening, obscene, vulgar, pornographic, racial or ethnic objectionable materials, depicts sexual situations, promotes discrimination on the basis of race, sex, sexual preference, national origin, ethnicity, nationality, disability, religious preference, or if the Affiliate’s site contains any material that appears to Company to violate any patent, trademark, copyright, trade secret, confidential information, or other property rights of any other party.
Ineligible parties are as follows: (1) any person or entity in the business of travel booking services, lodging, or transportation, including, but not limited to, travel agencies, airlines, and rental car companies; (2) any entity that owns or operates any resort, hotel or casino; (3) any person who is employed by any entity that owns or operates any resort, hotel or casino; (4) any person who is employed by the Company or any affiliated or related entity, including, but not limited to, hotel casino properties owned or operated by any affiliated or related entity; (5) any principal, owner, or employee of any tenant, vendor, or contractor, of the Company, any affiliated or related entities, or the Properties (including, but not limited to, businesses that have active contracts with any of the foregoing entities) unless otherwise agreed in writing by the Company; (6) any person who is an immediate family member, or member of the household of, any person who is ineligible within the meaning of any of the other provisions of this section; and/or (7) any person who is a denied license applicant or a revoked licensee (pursuant to the laws, rules and regulations of the Nevada gaming authorities), or a business organization under the control of a denied license applicant or a revoked licensee.

5.   TERMINATION AFTER ACCEPTANCE

Even after the Company has accepted the Affiliate as an Affiliate Program member, the Company reserves the absolute right to rescind or terminate the affiliate status for any reason in its sole and absolute discretion, including, but not limited to, the reasons set forth above.  We have the right to monitor your site as we deem necessary to ensure compliance with this Agreement. If we decide, in our sole and absolute discretion, that you are not complying with this Agreement or are using the Promotional Assets in a manner objectionable to us, we may require you to make changes to the Affiliate web site to comply with our requirements or we may terminate this Agreement.

6.   FINANCIAL RESPONSIBILITIES

The Affiliate will be fully responsible for all costs and expenses of maintaining and marketing the Affiliate Program, including but not limited to all costs associated with the creation, hosting, modification, and improvements to the Affiliate’s web site, costs of search engine placement and other Internet marketing, costs of inserting the Company’s links into its web site, offline marketing costs, postage costs, and all other costs and expenses, and the Affiliate hereby holds the Company harmless from or against the same.

7.   NO REPRESENTATIONS REGARDING INCOME POTENTIAL

The Company makes no representations and warranties regarding potential income that may result from participation in this Affiliate Program and specifically disclaims any and all warranties relative to earning potential.

8.   RESPONSIBILITY TO LINK TO THE COMPANY’S WEB SITE

a.   The Affiliate must place links on the Affiliate web site directing users to the Company’s site. The Company will make available to the Affiliate button links, text links, and banner advertisements to be placed on the Affiliate’s web site which will direct users to Company’s web site via hypertext links.

b.   The Company shall make available to its Affiliates, links, banners, and other advertising to be used subject to the terms of this Agreement (“Promotional Assets”). These materials will contain the Company’s trademarks and other intellectual property. The Affiliate may display these materials on the Affiliate’s web site for the purpose of promoting the Company’s site and participating in this Affiliate Program. If the Affiliate discontinues the Affiliate Program or if the Affiliate participation is terminated for any reason, the Affiliate will immediately cease using these materials and will delete all such materials from its web site and from its computer. The Affiliate must obtain the Company’s approval of all links to the Company’s site that the Affiliate places on the Affiliate web site. The Affiliate will cooperate with the Company in the establishment and placement of links on the Affiliate’s web site.

c.   The Affiliate will only be permitted to use the links that the Company provides to the Affiliate on the web site that the Affiliate designates in the Affiliate Program Application. Any additional web sites or entities will require additional submissions of Affiliate Program Applications and approval by the Company.

d.   The Affiliate will not modify the links or other materials that the Company provided to the Affiliate or the placement of the links on the Affiliate’s page. The Affiliate consents to the Company monitoring the Affiliate’s web site to determine continued compliance with this Agreement.

e.   The Affiliates consent to the Company including information relative to traffic from the Affiliate’s site in the Company reports. This information may be provided to outside parties.

f.   In the event that you send commercial e-mail containing promotional assets to potential customers, you must do so using advertisements or other Promotional Assets provided by the Company and in compliance with all applicable laws and regulations, including those relating to unsolicited commercial email. All references to the Company must be reviewed by the Affiliate Program manager prior to being sent out.

g.   The Company may update or revise Promotional Assets from time to time. Within a timely manner but in no event more than thirty (30) days after receipt of updated Promotional Assets, the Affiliate shall remove or change out from the Affiliate Website any expired, outdated, or broken links to Promotional Assets that have been removed from the Company’s server.

h.   Affiliates shall not use “loyaltyware” or any other software applications in connection with the Affiliate Program, including but not limited to those that provide rebates, incentives, cash-back or other consideration based on commissions generated through affiliate programs. We reserve the right to research and investigate the Affiliates and their activities and, at our own discretion, determine whether or not they are engaged in these practices. Affiliates found in violation of this policy will be immediately terminated from the program and will forfeit all commissions.

i.   Affiliates are prohibited from using spyware or parasitic software, or acting in concert with, in association with, or entering into any direct or indirect or formal or informal relationship with, any person or entity that uses spyware or any parasitic software in connection with the Affiliate Program.

j.   Affiliates shall not use pay per click and/or search engine optimization marketing techniques in order to target the Company, unless such activities are approved in writing by Company.

If you engage in any Prohibited Practice (as defined herein) that directly or indirectly results in increased commissions paid to you or payable to you, this Agreement shall be terminated and you agree to: (1) forfeit to the Company any commissions that you received through the Affiliate Program; and (2) pay the Company for any attorneys’ fees and costs it incurs in connection with investigating and establishing that you have engaged in such conduct and recovering commissions that you received through the Affiliate Program.

9.   COMPENSATION

a.   Commissions will be paid to the Affiliate based upon a percentage of net sales made by users who access the Company’s web site through the Affiliate’s web site. The Company will pay commissions to the Affiliate only for Qualified Bookings and subject to the terms and conditions set forth in this Agreement. You will not earn commissions for customers who book their rooms at Company Web Sites if the booking was not completed through Tagged Links from the Affiliate Web Site or if the customer cancelled the reservation.

b.   The percentages to be paid as commissions hereunder are currently as set forth in Schedule A at the end of this Agreement. The commission payable to the Affiliate shall be calculated based on the net revenue (gross revenue actually generated from a Qualified Booking less actual costs including, but not limited to, taxes, resort fees, and room charges, such as room service, mini-bar, valet, and goods and services charged by customers to the room) actually generated from the room rate paid by the Customer for a hotel stay arising from a Qualified Booking. The Company reserves the right to change and amend the commission rate structure at any time, in the Company’s sole discretion.

c.   Commissions will only be paid on sales that are tracked through the Company’s online tracking system and indicate the Affiliate’s web site’s link as the source. There is no right to commissions if a user later returns to the Company’s site and makes a purchase through another link or source other than through the Affiliate’s web site. The Affiliate has no right to commissions based upon subsequent sales, even if the customer first arrived at the Company’s site through the link from the Affiliate’s site. Commissions will only be tracked and paid when the user visits the Company’s web site from a link on the Affiliate’s site and makes a Qualified Booking during the same visit.

d.   The Company will pay commission only upon collection by the Company. The Affiliate has no right to commissions until the applicable customer has paid the Company in full. Only purchases that are made through the Company’s online ordering process will count towards commission calculations. For example, if a customer visits the Company’s web site through the link from the Affiliate’s web site and instead of placing an online order calls and places an order via telephone, the Affiliate will have no right to any commission from that sale.

e.   Commissions will be paid to the Affiliate on a monthly basis on or about the 15th of the subsequent month for the month following the date of the Customer’s stay, not the date of the Qualified booking. The Company does not guarantee an exact date of calculation of commissions or payments. All payments will be made via third-party payment fulfillment company (currently, KowaBunga! Technologies) by check sent to the address that the Affiliate supplied in the Affiliate Program Application. The Company does not send payment if the total commission due to the Affiliate is less than $50.00.  Commissions below $50.00 will accrue to the Affiliate account and payment will be made for the month when the Affiliate’s total commissions achieve the minimum $50.00. The Company reserves the right to amend the minimum commission payment amount at any time.

10.   TRADEMARKS AND COPYRIGHTS

a.   The Affiliate will have a non-exclusive, limited term license to use the trademarks, logos, and copyrighted material that the Company provided to the Affiliate for use solely on the Affiliate’s web site that the Affiliate designates in the Affiliate Program Application. The Affiliate may only use the images that the Company specifically makes available to the Company Affiliate Members at the area of its website that is specifically designated as approved images for Affiliate Program Members. The Affiliate may not distribute, reproduce, modify, and amend, these images in any way. The Affiliate may use these images only for the purposes of promoting the Company’s web site and products on the Affiliate’s web site in compliance with the Affiliate Program policies and procedures and the terms of this Agreement. The license so granted is subject to complete compliance with all terms and conditions of this Agreement and any policies the Company may create and amend from time to time regarding the Affiliate Program.

b.   The Affiliate will only use such items in the form, size, content, and appearance that the Company provided them to the Affiliate. The Affiliate is not permitted to modify them. The Affiliate agrees to display these items prominently on its website. These items may only be used in if they contain a hypertext link to the Company’s web site. This license shall immediately terminate upon the termination from the Affiliate Program. The Company may also terminate this license upon notice to the Affiliate in the event that the Affiliate’s use of these items is contrary to or does not conform to its standards, such standards to be determined in its sole and absolute discretion. The Affiliate agrees that the Company retains all right, title and interest in and to all such materials. The Company will retain all goodwill and other value associated with any of these materials. The Affiliate will not gain any trademark, copyright or other proprietary rights to such materials. The Affiliate agrees not to take any action that is contrary to or inconsistent with the Company rights to these materials. The Affiliate will not use these materials in any way that is damaging, defamatory, disparaging, derogatory, or negative to the Company or that paints the Company in a false or negative light. The Company may revoke the limited license granted hereunder at any time in writing to the Affiliate. Upon termination or revocation, the Affiliate will immediately cease from any use of this material.

c.   The Affiliate is not permitted to use any other proprietary materials, including but not limited to trademarks, copyrights, logos, text, and any other materials that belong to the Company or to any other party and which may appear on the Company’s web site.

11.   PRODUCT AVAILABILITY

The Company cannot guarantee room availability or the term of any price or special promotion or offer.

12.   TERM

This Agreement shall not commence until the Affiliate Program Application is accepted and the Affiliate is approved by the Company. The effectiveness hereof and binding effect shall occur upon the Company acceptance of the Affiliate Program Application. This Agreement shall remain in full force and effect until terminated by the Affiliate or by the Company. Either the Company or the Affiliate may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination in compliance with this Agreement. Notices sent hereunder shall be via email to the Affiliate at the email address indicated in the Affiliate Program Application. Any and all notices to the Affiliate via email at such address shall be deemed to be effective notice to the Affiliate for all purposes. Affiliates shall send all notices to the Company via email at Affiliates@Stratospherehotel.com .

13.   MODIFICATIONS

The Company reserves the right in its sole and absolute discretion to modify any terms and conditions of the Affiliate Program and the terms and conditions of this Agreement upon notice to the Affiliate. Notice of any changes may be given via email to the Affiliate or by posting such changes in the Affiliate Program sections of the Company’s web site. Such changes and modifications will take effect upon transmission of email or posting on the Company’s web site. The Affiliate may terminate participation in the Affiliate Program in the event that any of these modifications are unacceptable to the Affiliate and such termination shall be the Affiliate sole and exclusive remedy. In the event that the Affiliate continues to participate in the Affiliate Program following such modifications, the Affiliate will be deemed by the Affiliate continued participation to accept any and all such changes.

14.   INDEMNIFICATION

The Affiliate hereby indemnifies and holds the Company, and all of the Company stockholders, officers, directors, employees, contractors, affiliates, agents, successors and assigns harmless from and against any and all claims, liabilities, damages, actions, causes of action, suits, threats, demands, settlements, including all costs and attorney fees related thereto, that the Company may incur and which are based in whole or in part upon the Affiliate participation in the Affiliate Program, any claims that any of the Affiliate trademarks and other proprietary material infringe upon the rights of any other party, the Affiliate breach of any term, covenants, condition, representation or warranty contained in this Agreement or any policies of participation in the Affiliate Program, or any claim related directly or indirectly to the Affiliate use, operation or the content of the Affiliate’s web site.

15.   GOVERNING LAW

This Agreement shall be interpreted under the laws of the State of Nevada. Any and all disputes relating to or arising from this Agreement shall be litigated exclusively in federal or state courts in Clark County, Nevada.  The Affiliate consents to personal jurisdiction in such courts.  The Affiliate agrees not to commence any lawsuit or other action against or involving the Company in any other tribunal.

16.   RELATIONSHIP OF THE PARTIES

The parties hereto are independent contractors and nothing contained herein shall be interpreted as creating any relationship other than that of independent contracting parties. The parties shall not be construed as being partners, joint ventures, shareholders, employer/employee, and agent/servant. The Affiliate has no power or authority to bind the Company to any obligation, agreement, debt or liability. The Affiliate shall not hold itself out as an agent or representative of the Company.

17.   NOTICES

Notices to the Company shall be by certified mail, return receipt requested addressed to the address contained in this Agreement, or such other address that the Company provide notice of to the Affiliate via Email or by posting the same on the Affiliates section of the Company web site. Notices to the Affiliate shall be by Email addressed to the Email address that the Affiliate provided to the Company in the Affiliate Program Application or by posting such notices on the Affiliate section of the Company’s web site. It shall be the Affiliate responsibility to check the Affiliate section of the Company web site periodically to monitor all notices set forth thereon.

18.   ENTIRE AGREEMENT

This Agreement sets forth the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes any and all prior discussions, understandings, agreements, representations, warranties or covenants between the parties related to the subject matter hereof. This Agreement may only be amended by a writing signed by the authorized representative of each of the parties, except as otherwise set forth herein. Any waiver of a breach or default under this Agreement shall not constitute a waiver of any subsequent or other breach or default and shall not serve to modify the agreements set forth herein.
If any provision or term of this Agreement is held to be invalid for any reason, it shall not affect the enforceability of the remainder of this Agreement or any other term or condition of this Agreement.
You agree that you have read and reviewed the Affiliate Agreement and agree to the terms and conditions specified in the Affiliate Agreement.