Independent Casino Representative - General Terms

GENERAL TERMS AND CONDITIONS

Reference is made to the Special Terms between Contractor and Cruise Line. The Parties agree that in the event of a conflict between the Special Terms and these General Terms, the Special Terms shall prevail. Capitalized terms not defined herein shall have the meanings ascribed to such capitalized terms in the Special Terms.

1. SCOPE; PLAYER ELIGIBILITY.

1.1. Scope. Contractor hereby agrees to bring selected qualified Players (defined below) to Cruise Line to sail and gamble in casinos onboard the Vessels.

1.2. Qualified Players. For purposes of this Agreement, “Players” are individuals who:

• are not residents or citizens of the People’s Republic of China;
• are not the target of trade, economic, or financial sanctions and do not reside in a country that is the target of trade, economic, or financial sanctions pursuant to Section 2;
• either: (i) have not previously sailed on a Vessel orgambled in a Vessel’s casino; or (ii) are a Club Royale and/or Blue Chip Club member, but have been inactive in the twenty four (24) calendar months or greater immediately preceding the Eligible Booking (defined below) creation date; and
• do not have a future cruise with a Brandat the time the Eligible Booking is created.

2. DEFINITIONS.

“Net Ticket Revenue Transfer” or “NRTX” shall mean the total dollar value of the cruise fare of a stateroom(s) funded by Cruise Line on an Eligible Booking through any Dollars Off Comp(s) and/or Stateroom Comp(s) issued to and redeemed by the Primary Player.

“Total Pre-cruise Cost of Sale ” or “Total COS” shall mean the total dollar value of all Benefits funded by Cruise Line for Player(s) and/or their associated guests in connection with an Eligible Booking. “Benefits” include NTRX, Rebate on Loss (defined below), pre cruise booking onboard folio credit (“OBC” or “Casino Dollars”), negotiated FreePlay or Promotional Chips (slot credits or non-negotiable gaming chips offered free of charge), airfare/ground transfers, folio comp, and any other benefit funded by Cruise Line with an Offer (defined in Section 3.1).

“Eligible Booking” shall mean a Player booking by Contractor on a Trip that includes Benefits in accordance with the requirements in Section 3.3.

“Booking Rate” shall mean the cruise fare rate provided by Cruise Line to Contractor for an Eligible Booking in accordance with Section 3.4.

“Stateroom Comp” or “Room Comp”  shall mean an Eligible Booking where Cruise Line funds the total cruise fare of a stateroom(s) for Player(s) and/or their associated guests.

“Dollars Off Comp” shall mean an Eligible Booking where Cruise Line funds an amount less than the total cruise fare associated with a stateroom(s) for Player(s) and/or their associated guests.

“Rebate on Loss” or “ROL” shall mean five percent (5%) of an individual Player’s Actual Loss or Actual Result per Trip in excess of $250,000.00 credited to the Player or Primary Player as a future credit in the form of FreePlay and/or Promotional Chips to be redeemed on a future voyage on a Vessel within one (1) year of the Trip. All ROL requires a SOT.

“Theoretical Result” or “Theo Loss Total Amount” (also referred to herein as “TheoLoss”) shall mean the total theoretical loss for both slots and table games by the Player on an Eligible Booking in the casino(s) as determined by Cruise Line’s computer rating system.  Slot theoretical loss is determined by “Coin in” and game advantage, and table Game theoretical loss is defined by time played, average wager, and game advantage as recorded in Cruise Line’s computer rating system.

“Theoretical Margin” or “Theo Profit per Booking” shall mean Theoretical Result less Total COS.

“Theoretical Margin % per Booking”  or “Theo Margin % per Booking” shall mean the Theoretical Margin divided by the Theoretical Result.

“Net Theo Result” or “Theo Profit per Booking” shall mean the Theo Result of all Players in the Eligible Booking(s).

“Actual Result” or “Actual WinLoss Total Amount” shall mean the total actual win or loss generated for both table games and slots by the Player on an Eligible Booking as determined by Cruise Line’s computer rating system. Actual win or loss is determined based on “Coin in” less the sum of any payouts on slot machines and “Buy in” less the sum of any pay outs on table games.

“Actual Margin” or “Actual Profit per Booking” shall mean Actual Result less NTRX.

“Actual Margin % per Booking” shall mean Actual Margin divided by Actual Result.

“Net Actual Result” or “Actual Profit per Booking” shall mean the Actual Result of all Players in an Eligible Booking.

 “Primary Player” shall mean the Player who was issued the Offer (defined below) applied to an Eligible Booking and named on the Eligible Booking at its creation.

“Trip” means a single voyage on a Vessel.

“Shoreside Casino Management” includes a Director/Senior Director of Casino Operations, AVP Casino Marketing and VP of Gaming.

“Statement of Terms” or “SOT” means an agreement issued and approved by Shoreside Casino Management  prior to Player(s)’s Trip, outlining any additional terms applicable to that Player(s)’s Trip, including but not limited to changes in gaming operations or extended upfront complimentaries, personal betting limits, ROL and other items.

“Prospect Booking” means an Eligible Booking(s) that includes a Stateroom Comp Offer applied at Contractor’s request and in reliance on an external play report.

“Cruise Line Policies” means all Cruise Line policies, terms and conditions, and any other rules, policies, agreements and arrangements to which Cruise Line or the assets of Cruise Line are bound, in each case as they may be adopted, amended or modified from time to time. Cruise Line Policies include without limitation Cruise Line’s passenger ticket contract, bookings terms, purchase terms and casino offer terms.

3. Eligible Bookings.

3.1. Promotional Offers. Cruise Line may make available certain promotional offers to Players (“Offers”) to be redeemed in connection with an Eligible Booking. Offers may include, without limitation, Stateroom Comp and Dollars Off Comp. All Offers are Benefits.

3.1. a. Offer Restrictions. Contractor may not sell, allocate, or distribute any Offer to any third party, including but not limited to Player(s), for the purpose of sale, reallocation or redistribution through such third parties. Further, Offers may not be used for promotional purposes including but not limited to in contests, sweepstakes, as giveaways or in any similar promotions or included as part of a package without prior approval from Shoreside Casino Management. Contractor may not transfer or request a name change on any Eligible Booking with an Offer. The Primary Player must sail on the Eligible Booking.  Cruise Line has the right to reverse the Booking Rate to Cruise Line’s in market rates and remove any Benefitsif Primary Player does not sail or is removed from the Eligible Booking. Offers may not be combined with any other promotions or offers, including, but not limited to, other Club Royale and Blue Chip Club offers, MGM Rewards benefits, Seminole Hard Rock benefits, certificate offers, etc. (“Excluded Offers”) and Contractor is not eligible to receive Commission on any Player booking with an Excluded Offer applied.

3.2. Booking Fees, Taxes, Fees and Gratuities. Players may be subject to a booking fee on casino bookings, including Eligible Bookings.  All fees, including but not limited to deposits, taxes, booking fees, other fees, or gratuities, are additional and must be paid by the Player(s) and/or their associated guests, or by Contractor on their behalf in accordance with Cruise Line Policies.

3.3. Eligible Booking Requirements. All Eligible Booking(s) must be made by Contractor on behalf of Players and their guests through the Cruise Line’s reservation and booking platform system, currently Cruising Power/Espresso (“Booking System”) and then submitted for review via email to Cruise Line’s Casino Reps Reservation Center (royalreps@rccl.comor Celebrityreps@celebrity.com).

3.3.a. Player Information. Contractor must provide Cruise Line with complete, direct, contact information for Player and all associated guests prior to the Trip. Information includes a verifiable physical address, email address, telephone number, date of birth, and loyalty program membership number with the Cruise Line, if applicable. Contact information must be unique and specific to each Player and associated guest; Contractor cannot provide Contractor’s own contact information.

3.3.b. Additional Requirements for Prospect Bookings. In addition to the requirements under Sections 3and 3.3.a, for any Prospect Booking, Contractor must provide Cruise Line a summary of Player’s external gaming activity. Prospect Bookings must be tagged in the reservation system with the specific unique prospect offer codes specified in the Commission Table below (“Prospect Offer Codes”) and are subject to penalty if the minimum thresholds set forth in the Commission Profitability Margin and Percentage Paid Table under Section 4.1.a below (“Table 1”) are not met.

3.3.c. Use of Booking System. Contractor must agree to and abide by any and all terms and conditions of the Booking System, including but not limited to the Terms of Use. Any misuse of the Booking System, or misuse of guest information accessed or available through the Booking System, including but not limited to a breach of the terms and conditions, shall be deemed a material breach of this Agreement and in addition to any other rights and remedies available hereunder or at law, Cruise Line reserves the right to suspend, revoke, rescind and/or reduce any Commission payments made to Contractor in connection with any Eligible Booking(s) made in breach of this Section 3.cand/or any Commission Rates on future Eligible Booking(s).

3.4. Booking Rate. The Booking Rate will be communicated to Contractor by Cruise Line in writing, such writing may occur at the time of creating the Eligible Booking, be reflected in the booking invoice which may be updated from time to time, or in another manner designated by Cruise Line. The Booking Rate is available exclusively to Contractor to make an Eligible Booking and may not to be redeemed directly by Player(s) or other guests.

3.5. Player Qualifications. Cruise Line is not obligated to provide any Offers to any Players or their guests or accept any booking request from Contractor. All Eligible Bookings with a Stateroom Comp and/or a Discount Stateroom Comp are subject to Cruise Line’s approval. Cruise Line reserves the right to request supporting evidence of player eligibility, including but not limited to casino play in connection with any booking request made by Contractor. If at any time, Contractor falsifies information or provides erroneous supporting evidence of casino play, Cruise Line shall consider this a material breach of the Agreement and in addition to any other rights and remedies available hereunder or at law Cruise Line reserves the rights outlined under Section 3.3.c above.

3.6. Additional Terms.

3.6.a. Exclusions. Commissions are calculated per Eligible Booking. Contractor is only entitled to Commissions on Eligible Bookings made by them in accordance with this Agreement. Contractor is not eligible to receive Commission on any booking(s) made by a Player directly with Cruise Line, another agency, or another agent at Contractor’s agency even if Players’(s) previous Eligible Booking was with Contractor. Likewise, Contractor is not eligible to receive Commission on any booking(s) made by Contractor on behalf of Player and then transferred to Cruise Line, another agency, or another agent at Contractor’s agency even if Players’(s) previous Eligible Booking was with Contractor.

3.6.b. Booking Transfers. Notwithstanding the foregoing, a Player with a previous Eligible Booking with Contractor may request to transfer a subsequent booking made directly with Cruise Line to Contractor or another agency/agent within thirty (30) days of booking creation and such booking will be an Eligible Booking.

3.6.c. Other Costs. Unless otherwise expressly provided by Cruise Line in connection with the a Brand loyalty program or a SOT, any onboard expenses, including but not limited to specialty dining fees, beverages, onboard spa services, other services and items, including but not limited to shore excursions, onboard gift shop purchases, and internet and cell phone usage are the responsibility of the Player. Notwithstanding the foregoing, Cruise Line in its sole discretion may approve Player airfare/ground transfer reimbursement in a SOT after an Eligible Booking has sailed.

4. Compensation. Subject to Contractor’s compliance with this Agreement, Cruise Line shall provide compensation to Contractor (“Compensation”).

4.1. Commission. Compensation may include commission(s) paid by Cruise Line in connection with Contractor’s Eligible Bookings (“Commission”). Cruise Line reserves the right to adjust or amend the Compensation, including but not limited to the Commission, in its sole discretion by giving Contractor at least thirty (30) days’ written notice.

4.1.a. Commission Rate. Subject to the terms of this Agreement, Cruise Line will pay Contractor a Commission in connection with Contractor’sEligible Bookings at the rates detailed in Table 1 (“Commission Rate”). The Commission Rate is based on a Player’s Theoretical Margin % per Booking or Actual Margin % per Eligible Booking, whichever is greater, and varies by the five (5) tier thresholds specified in Table 1 (each a “Tier Threshold”).   The Tier Thresholds vary based on Total COS attributable to the Eligible Booking as follows:

i. Eligible Bookings with a Stateroom Cost. When the Total COS on an Eligible Booking is less than the Booking Rate, Contractoris eligible to earn Commission at the rates in Tiers 1 through 4.

ii. Eligible Bookings with no Stateroom Cost. When the Total COS on an Eligible Booking is equal to or greater than the Booking Rate, Contractor is eligible to earn Commission at the rate in Tier 5.

4.1.b. Commission Exceptions.

i. PPP Rolling Program. Notwithstanding anything to the contrary herein, Contractor is not eligible to earn Commission from Players Eligible Bookings participating in the PPP Rolling Program.

4.1.c. Prospect Bookings. Contractor will be assessed a fee on any Prospect Booking when the Theoretical Margin % Per  Booking  is greater than the Actual Margin % per  Booking and the Actual Margin % Per Booking ≤0%(“Prospect Booking Offset”). The Prospect Booking Offset shall be calculated at a rate of 50% of the Total Precruise Cost of Sale and be deducted from any future Commissions paid to Contractor until the entire amount of the Prospect Booking Offset is satisfied.

i. Uncollected/Disputed Amounts. Commissions are deemed earned and accrued once Cruise Line has received payment on all outstanding casino credit or other credit card transactions, including but not limited to any disputed and/or uncollectable credit card transaction. Contractor shall not be due any Commission on an Eligible Booking with any unpaid balance and/or disputed/uncollectible credit card transaction that is not cleared within ninety (90) days of the last day of the relevant Trip.

4.1.d. Commission Caps. Commissions paid on Theoretical Margin % Per Booking at are capped at $10,000. Commissions paid on Actual Margin % per  Booking are capped at $50,000. Notwithstanding the foregoing, Commissions paid on Theoretical Margin % Per Booking with Actual Margin % Per Booking ≤0% are capped at 10% of the Theo Profit Per Booking, not to exceed $10,000.00, notwithstanding the Tier Threshold.

4.1.e. Commission Rates.

Table 1 – Commission Profitability Margin and Percentage Paid

Tier	Theoretical Margin or Actual Margin (%) per Booking (Profitability Margin Range)	Commission % Paid on Actual Profit Per Booking	Commission % Paid on Theoretical Profit per Booking
1	Less than or equal to 39.99%	0.00%	0.00%
2	40.00% to 64.99%	12.50%	10.00%
3	65.00% to 84.99%	15.00%	12.50%
4	85.00% to 99.99%	22.00%	18.00%
5	³100%	10.00%	10.00%
Prospect Offer Codes	Actual Margin (%) per Booking (Profitability Margin Range)	Theoretical Margin (%) per Booking (Profitability Margin Range	Commission % Paid on Theoretical Profit per Booking
YYVIPN or YYVIPX	≤0%	Less than or equal to 39.99%	Penalty of 50% of Total COS  will be calculated as a negative commission

Table 2 – Example of Commission Calculation:

The Actual WinLoss Total Amount is $13,883.29 and his Theo Loss Total Amount is $21,123.95 with an NTRX value of $1,880.00 and a Total COS of $2,071.11.

	Calculate Actual Profit Per Booking	Calculate Theo Profit Per Booking
Step 1	Actual WinLoss Total Amount – Total Pre-cruise Cost of Sale $13,883.29 – $2,071.11 = $11,812.18	Theo Loss Total Amount – Total Pre-cruise Cost of Sale $21,123.95 – $2,071.11 = $19,052.84
	Commission is calculated on theoretical for this example – See below sample commission report
Step 2	Calculate Actual Margin %: Actual Profit Per Booking ÷ Actual WinLoss Total Amount $11,812.18 ÷ $13,883.29 = .850 (or 85%)	Calculate Theo Margin %: Theo Profit Per Booking ÷ Theo Loss Total Amount $19,052.84 ÷ $21,123.95 = .901 (or 90%)
Step 3	Compare Actual Margin % to Theo Margin %: 85% < 90%
Step 4	Determine Tier and Commission Rate: 90% Theo Margin % = Tier 4 Tier 4 Commission for Actual Margin % = 18%
Step 5	Calculate Commission: Theo Profit Per Booking × Commission Rate $19,052.84 × 18% = $3,429.51

Table 3 – Sample Commission Report

5. Commission REPORTS AND Payments.

5.1. Commission Reports.Cruise Line will generate a monthly commission report (“Commission Report”) for all Eligible Bookings on Trips that ended in the applicable calendar month, and post it Contractor’s Personal Documents file folder on the Cruise Line designated  portal, along with any supporting account settlement reports detailing either the Commission to be paid to Contractor and/or any amounts due from Contractor to Cruise Line.  Contractor is responsible for confirming receipt of each Commission Report and reviewing it within thirty (30) days of receipt (“Review Period”). Contractor must notify Cruise Line of any potential discrepancies or errors, and pay any outstanding amounts due to Cruise Line during the Review Period.  Any amounts due to Cruise Line from Contractor that remain unpaid thereafter will be deducted from Commission payments. Commission Reports will be deemed final and cannot be disputed after the Review Period has ended.

5.2. Payment Schedule. Cruise Line will process Commission for payment within twenty-one (21) days of the end of Review Period. All Commissions shall be payable to Contractor in U.S. dollars, within seventy-five (75) days of processing by Cruise Line.  No travel agency commission or any other compensation shall be owed to Contractor in connection with cruises (or any other products or services) booked for Players through Contractor.

5.3. Payment Process.

5.3. a. Supplier Registration.Contractor must register with and consent to monitoring via Cruise Line’s third-party supplier management system to receive payment. Contractor must complete a vendor payment registration profile and is required to ensure such information is up-to-date and accurate. Cruise Line may provide payments via bank ACH or wire payment.

5.3.b. Payments due to Cruise Line. Any payments due to Cruise Line in connection with this Agreement will be paid via ACH or bank wire transfer pursuant to Cruise Line’s instructions.

6. Contractor Requirements.

6.1. Gaming License.Contractor must either maintain a current gaming license with one or more of the following regulatory agencies during the Term of this Agreement, or consent to a personal background check conducted by Cruise Line, at Contractor’s sole expense of the Contractor, which expense shall not exceed $2,000.00 and is non-refundable:

New Jersey Division of Gaming Enforcement

Nevada Gaming Commission

Mississippi Gaming Commission

State of Connecticut Department of Consumer Affairs Gaming Division

Pennsylvania Gaming Control Board

Other US gaming jurisdictions approved by Cruise Line in its sole discretion

Contractor must provide Cruise Line with a copy of its active gaming license upon signature of this Agreement.  If Contractor’s gaming license is suspended or revoked at any time, Contractor must immediately advise Cruise Line and Cruise Line may require Contractor undergo a compliance review. Contactor must reimburse Cruise Line for any and all fees incurred by Cruise Line in connection with a compliance review, up to $2,000, which Contractor may request be applied in full or in part against Commissions. Any breach of this Section 6.1shall deemed a material breach of the Agreement.

6.2. Cruise Line Policies. Contractor is responsible for communicating all Cruise Line Policies applicable to an Eligible Booking to Player(s).  Each Player will be booked by Cruise Line under the Cruise Line Policies of the local Cruise Line office where the Player resides effective at the time the Eligible Booking was confirmed.

6.3. Contractor Service Fee. Contractor may assess a service fee (“Service Fee”), not to exceed One Hundred Dollars ($100.00), directly to Player in connection with each Eligible Booking. Any Service Fee is charged by Contractor in its sole discretion and at its own risk, and Contractor will indemnify, defend and hold harmless Cruise Line for any claim in connection with the administration, collection or dispute of the Service Fee.

6.4. Contractor Players. Players booked by Contractor on one Brand will not be automatically assigned to Contractor on the other Brand. Cruise Line, in its sole discretion may removeContractor from any Player’s profile who has not sailed on an Eligible Booking in a consecutive twelve (12) month period. A Player may submit a written request for release of coding from Contractor at any time. Upon receipt of such request, Contractor will be removed from Player’s profile along with any future bookings and not be eligible to receive Commission in connection with any Eligible Sailings for which Contractor has not received payment of Commission nor any Player bookings sailing after the date of request.

6.5. Subcontracting and Agents. Within ten (10) business days of signing this Agreement, Contractor must supply Cruise Line with a list of all employees, representatives, and subcontractors engaged by the Contractor as of the Effective Date. Contractor must conduct a quarterly review of this list and send Cruise Line an updated with any changes. For the avoidance of doubt, Contractor assumes all liability for anyone engaging in work on behalf of the Contractor. Subcontractors are not contracted with Cruise Line and have no representation rights with Cruise Line. Contractor shall not have any booking made independent of Contractor such as through a travel partner agency or any other secondary/subcontracted representative without express, written, advance approval from Cruise Line.

7. Termination.

7.1. Termination for Convenience. Cruise Line may terminate this Agreement at any time, without cause, by providing Contractor thirty (30) days notice prior to the date of such termination (“Termination Date”).

7.2. Termination for Default. Upon the occurrence of a default, Cruise Line may terminate this Agreement immediately upon oral or written notice without prejudice to any other rights or remedies it may have in law or equity. The term “default” as used herein means the occurrence of any of the following events: (i) the failure of Contractor to punctually and properly perform any covenants, agreements, or conditions contained herein or the breach of any warranty contained herein; (ii) the insolvency of Contractor; (iii) the appointment of a receiver of Contractor; (iv) the adjudication of the Contractor as a bankrupt; (v) the filing by way of petition or otherwise, or answer of any petition or other pleadings seeking adjudication of Contractor as a bankrupt, or an adjustment of Contractor’s debts, or any other relief under any bankruptcy, reorganization, debtor’s, or insolvency laws now or hereafter existing; (vi) the reasonable belief by Cruise Line that the prospect of performance by Contractor or any of Contractor’s covenants, agreements, and other duties hereunder is impaired. In the event of such termination, Cruise Line shall be relieved of all further obligations hereunder, and Contractor shall indemnify Cruise Line against and hold Cruise Line free and harmless from all costs incurred by Cruise Line in completing or procuring the completion of performance in excess of the purchase price specified in this Agreement.

7.3. Effect of Termination or Expiration. Upon such Termination Date, or any other termination or expiration of this Agreement, Cruise Line has no further payment liability or obligation to Contractor, including but not limited to payment of any Commission(s). Any Player bookings under Contractor and/or Contractor’s agency, as applicable with a sailing completed after the Termination Date will be transferred to Cruise Line or another agency, in Cruise Line’s sole discretion.

8. RELATIONSHIP OF THE PARTIES.The Parties acknowledge and agree that Contractor is an independent contractor of Cruise Line and nothing contained in this Agreement will be deemed to create, or be construed as creating, any agency, joint venture, partnership, association, employment relationship, or other affiliation or similar relationship between Cruise Line and Contractor, or give Contractor or any third party beneficiary right of action whatsoever against Cruise Line, or otherwise entitle Contractor or its employees, agents or contractors to any benefits that Cruise Line provides to its employees, including but not limited to group insurance, liability insurance, disability insurance, vacation, leave, retirement plans, or unemployment insurance. Contractor shall be solely responsible for all salaries, employee benefits, social security taxes, federal and state unemployment insurance and any and all similar expenses or taxes relating to Contractor or its employees, agents, or contractors.  Contractor further agrees to pay all taxes, including but not limited to self-employment taxes, due in connection with this Agreement and provide Cruise Line with any requested documentation evidencing Contractor’s compliance therewith, and to indemnify Cruise Line in the event Cruise Line is required to pay any such taxes on behalf of Contractor. Neither Party has any right to bind the other or create any obligations or responsibilities on behalf of or in the name of the other.  Under no circumstances may Contractor hold itself out to be a partner, employee, franchisee, representative, servant, or agent of Cruise Line.

9. INDEMNIFICATION.Contractor shall defend, indemnify, and hold harmless (and pay any and all attorneys’ fees and costs, in connection therewith) the owners, any charterers, Cruise Line, its subsidiaries and affiliates, and any other operators of the Vessels and their respective directors, officers, employees, and agents (the “Cruise Line Indemnitees”) from and against any claims, suits, and liens of whatever nature to the extent arising out of:  (a) any claim by a third party resulting from Contractor’s breach or alleged breach of, or failure to comply with, any term or condition of this Agreement; (b) any claim by a third party arising out of the act or omission of Contractor, or its employees or agents, in performing Contractor’s obligations under this Agreement; or (c) any violation of applicable law by Contractor or its employees or agents.

10. Limitation of Liability.UNDER NO CIRCUMSTANCES WILL CRUISE LINE BE LIABLE TO CONTRACTOR FOR ANY CLAIM (WHETHER BASED ON CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, THE FAILURE OF ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE OR OTHERWISE) FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED, ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF CRUISE LINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL CRUISE LINE’S TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS, LOSSES, DAMAGES, AND EXPENSES HEREUNDER EXCEED THE CUMULATIVES COMMISSION PAID BY CRUISE LINE TO CONTRACTOR UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEEDING THE CLAIM, REGARDLESS OF THE FORM OF ACTION (IT BEING UNDERSTOOD THAT CRUISE LINE’S LIABILITY MAY BE FURTHER LIMITED BY OTHER PROVISIONS OF THIS AGREEMENT).

11. CONFIDENTIALITY.

Neither Party will disclose the terms of this Agreement, or any information provided by either Party in relation to or in furtherance of this Agreement (“Confidential Information”), it being understood that either Party may disclose Confidential Information to those of its employees that require such material for the sole purpose of performing certain of its obligations hereunder.  For the avoidance of doubt, Contractor shall not disclose, share, publish, or give away any Confidential Information of Cruise Line to any third party including any secondary/subcontracted representative, without express, written, advance approval from Cruise Line.  Contractor will use the Confidential Information only for the authorized purposes in this Agreement and shall use the same degree of care, but no less than a reasonable degree of care, as Contractor uses with respect to its own information of a similar nature to protect the Confidential Information and to prevent: (i) any use of Confidential Information in violation of this Agreement; and/or (ii) communication of Confidential Information to any unauthorized third parties.

If either Party hereto is required by law, regulation, or legal process to disclose any Confidential Information, said Party shall not be in breach of this Agreement, but shall provide the other Party with prompt notice thereof so that the other Party may seek a protective order or other appropriate remedy to prevent or limit disclosure of any Confidential Information.  Each Party shall fully cooperate with the other Party’s application for a protective order or other remedy.  In any event, said Party shall disclose only that portion of the Confidential Information that said Party is legally required to disclose.  The names, addresses, email address, telephone number, and other personal details of each Player shall not be the Confidential Information of either Party.

Contractor agrees that it shall not do the following, except with the advanced review and written approval of the Cruise Line: (i) issue or release any articles, advertising, publicity, or other matter relating to this Agreement (including the fact that a meeting or discussion has taken place between the Parties) or mentioning or implying the name of Cruise Line or any of its brands, trademarks, or logos; (ii) make copies of documents containing Confidential Information; or (iii) publicly distribute evaluations or summaries of Confidential Information of Cruise Line.  Any such authorization may be conditioned upon the inclusion of copyright notices or other appropriate markings in the evaluations or summaries.

Notwithstanding the termination of this Agreement, this Agreement shall survive with respect to Confidential Information that is disclosed before the effective date of termination for a period of five (5) years after the effective date of termination, except in the case of trade secrets, for which  the confidentiality obligations contained herein shall apply until the date that all elements of trade secrets are public knowledge and no longer proprietary to Cruise Line.

Contractor, upon termination of this Agreement or Cruise Line’s written request, will: (i) immediately cease using Confidential Information of Cruise Line, (ii) promptly return to Cruise Line or, with the consent of Cruise Line, destroy all media received from Cruise Line that contain Confidential Information of Cruise Line, (iii) destroy all other copies of Cruise Line’s Confidential Information in Contractor’s possession or control, and (iv) promptly certify in writing Contractor’s compliance with the terms of this Section.

If Contractor fails to adhere to the requirements in this Section, Contractor shall defend, indemnify, and hold Cruise Line harmless from and against any Losses (as defined herein) that Cruise Line may incur arising out of or related to Contractor’s failure to comply with these conditions.   The term “Losses” means fines, penalties, charges, costs, expenses, compensation, damages, and fees (including attorneys’ fees).  Contractor acknowledges that damages for improper disclosure or use of Confidential Information in breach of this Agreement shall be presumed irreparable and there would be no adequate remedy at law; therefore, Cruise Line would be entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies available to it.

12. NO ROBOCALLS.

Cruise Line strictly forbids and does not authorize the use of Solicitations (as defined below) to any consumer, business, or other person or entity by means of an Automated Promotional Tool (as defined below).  Contractor hereby represents and warrants that it has not and covenants that it shall not engage in Solicitations to any consumer, business, or other person or entity by means of an Automated Promotional Tool to promote, market, or otherwise solicit customers for: (i) a Brand, as applicable, or cruise or stateroom on such a cruise or Cruise Line; (ii) any services or products offered by Cruise Line to any guests at any time, potential guests or customers on a cruise, or in connection with a Brand cruise; or (iii) any services or products offered by Contractor or any third party in connection with a Brand cruise.

As used in this Section 12, the terms: (i) “Solicitation” shall mean a communication to advertise, promote, market, solicit, or any other communication covered by the Telephone Consumer Protection Act (“TCPA”) and any other applicable federal or state law; and (ii) “Automated Promotional Tools” shall mean systems (such as auto-dialing or predictive dialing systems) for sending the following types of communications: promotional telephone solicitations; text messages; faxes; artificial or prerecorded voice messages; or any other form of communication covered by the TCPA or any other applicable federal or state laws.

Any violation of this Section 12 shall constitute a material breach of this Agreement with respect to which Contractor shall have three (3) business days after receipt of notice of such breach to cure.  The cure shall consist at a minimum of the immediate cessation of all Solicitations using Automated Promotional Tools and the cancellation of any bookings made in violation of this Section.  Depending on the circumstances, additional curative steps may be required by Cruise Line.  Contractor will indemnify, defend, and hold all Cruise Line Indemnitees harmless for any failure or refusal on Contractor’s part to comply with this Section 12.

Contractor specifically acknowledges and agrees that it shall require any third parties directly or indirectly engaged in marketing or promoting for or on behalf of Contractor to comply with this Section 12 prohibiting Solicitations using Automation Promotional Tools and to be in compliance with this Section 12, the TCPA, and any other applicable federal or state law. Contractor shall strictly enforce these requirements against such third parties, consistent with the specific terms of this provision.

13. GENERAL.

13.1. Jurisdiction and Venue.Any dispute, controversy, or claim arising out of or relating to this Agreement shall first be submitted to non-binding mediation. Mediation shall be administered by the American Arbitration Association (“AAA”) if Contractor is based in the United States, or the International Centre for Dispute Resolution (“ICDR”) if Contractor is based outside the United States, in accordance with the Commercial Mediation Procedures then in effect. The mediation shall be conducted in English and take place in person in Miami, Florida unless a different location is mutually agreed to by the parties.

If the dispute is not resolved through mediation within thirty (30) days of initiation thereof, it shall be resolved by binding arbitration. The parties waive any right to consolidate arbitration with other proceedings or to participate in any class, collective, or representative action. Arbitration shall be administered by the AAA or the ICDR, as applicable, in accordance with the Expedited Procedures of the applicable rules then in effect. The arbitration shall be conducted in English, and the seat of arbitration shall be Miami, Florida. The arbitration shall be conducted by a single arbitrator with prior experience serving as a judge. The arbitrator shall be appointed no later than 30 days from the date of the arbitration demand. Initial submissions shall be made no later than 30 days from the appointment of the arbitrator.

Document requests shall: (a) be limited to only those documents which are directly relevant to significant issues in the case or to the case’s outcome, (b) be restricted in terms of time frame, subject matter and persons or entities to which the requests pertain, and (3) not include broad phraseology such as “all documents directly or indirectly related to.” There shall be no interrogatories or requests to admit. Where the costs and burdens of discovery are disproportionate to the nature of the dispute or to the amount in controversy, or to the relevance of the materials requested, the arbitrator will either deny such requests. Each side may take three (3) discovery depositions, which are to consume no more than fifteen (15) hours cumulatively, per side. Discovery is to be completed within 90 days of the service of the arbitration demand.

The arbitrator shall decide the matter solely on the written submissions of the parties; no oral hearing shall be held. The arbitrator shall not have authority to award attorneys’ fees, punitive damages, or any other form of incidental, indirect or consequential or special damages, including damages for lost profits. The arbitrator shall have discretion to impose procedural sanctions, including exclusion of evidence or dismissal of claims or defenses, against any party that fails to comply with its obligations under this clause. A reasoned award shall be issued by the arbitrator within 180 days of the service of the arbitration demand. No appeal shall be permitted from the award.

Each party shall bear its own legal fees and costs. The costs of mediation and arbitration, including mediator and arbitrator compensation and administrative fees, shall be split equally between the parties. If a party fails to timely pay its share of the arbitration fees or refuses to participate in the arbitration process, the arbitrator may proceed with the arbitration in that party’s absence and issue a final award based solely on the participating party’s submissions. In the event a party fails to pay its share of the arbitration or mediation fees, the non-defaulting party may advance such fees and recover them in full, with interest at the highest rate permitted by law, as part of the final award. The arbitrator shall have authority to enter a default judgment against the non-paying party and to proceed ex parte.

The parties shall maintain the confidential nature of the mediation proceedings, the arbitration proceeding and the award, except as may be necessary in connection with a court application for a preliminary remedy, the award’s enforcement, or unless otherwise required by law or judicial decision. Nothing in this clause shall prevent either party from seeking emergency or interim relief, including injunctive or equitable remedies, in a court of competent jurisdiction. This clause shall survive termination or expiration of the Agreement.

13.2. Counterparts. This Agreement may be executed in as many counterparts as may be required, each of which when executed and delivered is an original, and all of which counterparts of this Agreement, taken together, will constitute one and the same instrument.

13.3. Severability. The normal rule of construction that any ambiguity or uncertainty in a writing be interpreted against the party drafting the writing, shall not apply to any action relative to this Agreement. If any portion or provision of this Agreement shall be held by the final judgment of a court of competent jurisdiction, or the final award of an arbitrator, to be invalid, void, or otherwise unenforceable, then such portion or provision shall be deemed to be severable, to the extent invalid, void, or unenforceable from the Agreement (but, to the extent permitted by law, not elsewhere) and shall not affect the remainder thereof. 

13.4. Survivability.  All covenants, indemnities, guarantees, representations and warranties, obligations of confidentiality, and limitations of liability contained in this Agreement, which, by their terms, require performance by the parties after the expiration or termination of this Agreement, shall be enforceable notwithstanding any such expiration or termination for any reason whatsoever. 

13.5. Assignment. Contractor shall not, without Cruise Line’s prior written consent, assign, sell, transfer, delegate, or otherwise dispose of, whether voluntarily or involuntarily, or by operation of law, any rights, or obligations under this Agreement.  Any purported assignment, transfer, or delegation by Contractor shall be null and void.

13.6. Notices.  Any notice, demand, consent or other communication required or permitted to be given to Cruise Line by Contractor hereunder shall be made in the English language and shall be so given by personal delivery, by (i) registered or certified (return receipt) or First Class United States Postal Service mail, postage pre-paid; or (ii) recognized overnight national courier service; and (iii) electronic mail transmission, addressed to the authorized signatory to this Agreement of Cruise Line, at the email address listed on the Special Terms, and with copy to legalnotices@rccl.com. Any notice, demand, consent or other communication required or permitted to be given to Contractor by Cruise Line hereunder shall be made in the English language and shall be so given by personal delivery, by electronic mail transmission, at the email address indicated on the Special Terms.

13.7. Headings. Headings are for convenience only and shall not limit, expand, affect, or alter the meaning of any text, and are not a part of this Agreement between the Parties.

13.8. Liens. Contractor confirms that its entry into this Agreement is based solely upon the credit of Cruise Line and not based upon the credit on any of the vessels or other property owned or operated by Cruise Line or its subsidiaries, affiliates, and/or brands. Contractor expressly waives any right to any lien (maritime or otherwise), and agrees that it, its parent(s), subsidiaries, affiliates, and related companies, and the owners, officers, directors, employees, agents, and subcontractors thereof, shall neither assert, prosecute, or execute a lien on, initiate or pursue any actions in rem against, or otherwise encumber or take action that may affect title to (collectively, “encumbrance”), any vessel or other property owned or operated by Cruise Line, its subsidiaries, affiliates, or related companies any matter arising from, related to, or in connection with this Agreement, including under the Jones Act, and expressly waives any lien it might otherwise have had on any such vessel or other property. Contractor agrees to defend, indemnify, and hold Cruise Line harmless from, and immediately (i) remove any lien or encumbrance, (ii) remedy any lien or encumbrance, or (iii) secure the release of any vessel or property from arrest, attachment, or seizure that may arise in conjunction with any such liens waived or prohibited by this Section. Contractor agrees to obtain the same waiver of lien and express waiver of reliance on the credit of any vessel set forth herein from any subcontractor used by Contractor in connection with this Agreement.

13.9. Amendment. With the exception of Section 4.1 and Section 14, inclusive of these subsections, of these General Terms, this Agreement may be amended only by a writing signed by duly authorized representatives of Contractor and Cruise Line.

13.10. Rights Cumulative. The rights and remedies provided by this Agreement are cumulative, and the exercise of any right or remedy by either Party hereto (or by its successors), whether pursuant to this Agreement, to any other agreement, or to law, shall not preclude or waive its right to exercise any or all other rights and remedies.

13.11. No Waiver. No failure or neglect of either party hereto in any instance to exercise any right, power, or privilege hereunder or under law shall constitute a waiver of any other right, power, or privilege or of the same right, power, or privilege in any other instance.  All waivers by either party hereto must be contained in a written instrument signed by the party to be charged and, in the case of Cruise Line, by an executive officer of Cruise Line or other person duly authorized by Cruise Line.

13.12. Restrictions on Publicity, Advertisements and use of Cruise Line Marks. Neither Party shall directly or indirectly issue or permit the issuance of any press release, other publicity, or advertisement, grant any interview, make any public statements, or otherwise publicize or advertise any matter concerning or related to this Agreement, including the terms hereof and the services hereunder, without the prior written consent of the other Party.  Contractor may not use any of Cruise Line trademarks without the written consent of Cruise Line. Accordingly with respect to all advertising and promotional materials:
All advertising and promotional materials mentioning Cruise Line or its cruises (including, but not limited to, materials on the Internet) developed by Contractor must be approved by Cruise Line prior to print, air dates, or distribution of printed materials unless such advertising or promotional materials were provided by Cruise Line, in which case the provided materials may not be altered in any manner without the prior authorization of Cruise Line. All advertising and promotional materials must identify Contractor as independent agent contracted by Cruise Line. Moreover, such materials may be used only in accordance with Cruise Line’s written directions.
Contractor is prohibited from marketing, advertising, or promoting Cruise Line or any of its ships, cruises, or casinos to anyone other than Players.
Contractor acknowledges that Cruise Line is the owner of the exclusive right, title, and interest in and to Cruise Line’s service marks, including but not limited to the logos and the names of the vessels operated under the Brands (“Service Marks”).  Contractor will not do any act or thing contesting or in any way impairing any part to such right, title, or interest of Cruise Line in the Service Marks and will not represent that it has ownership in any of the Service Marks.  Contractor will not establish or use any word or mark that is similar to, resembles, or is likely to be confused with the Service Marks for any purpose.  On termination or expiration of this Agreement, Contractor will cease and desist from all use of the Service Marks and will deliver to Cruise Line any and all materials upon which the Service Marks appear.
Notwithstanding anything to the contrary provided herein, Cruise Line reserves the right to prohibit the use of specific Cruise Line service marks, and individual notice of such prohibition shall not be required.

13.13. Compliance with Law. Contractor agrees to comply with all laws and regulations applicable to its business and its activities under this Agreement including, but not limited to, those related to data privacy, and to comply in all respects with any applicable do not call, do not email, do not fax or other do not contact laws and regulations.  Contractor shall maintain in full force and effect all necessary licenses, permits, and other authorizations required by applicable law to carry out its duties and obligations under this Agreement.

13.14. Non-Solicitation. Contractor, including subcontractors, agents, representatives and employees of said Contractor,  agrees that it shall not solicit any other guests onboard Cruise Line’s Vessels, other than Players booked on that cruise by Contractor.  In addition, Contractor shall not solicit or accept any confidential information of any individual including but not limited to player activity, names, contact information, or any other personal identifying information, without obtaining the individual’s express, written consent and otherwise complying with Article IX  and Article XII(C) of this Agreement.  In addition, Contractor shall not solicit any current or past Cruise Line, shoreside or shipboard,  employees for employment with Contractor during the Term of this Agreement and for six (6) months following the expiration of the Term.  All such activities set forth above are strictly prohibited.  Contractor agrees that a violation of this Section shall constitute a material breach of this Agreement and shall be grounds for immediate termination by Cruise Line.

13.15. Entire Agreement. This Agreement (which including its appendices) constitutes the entire agreement between the Parties with respect to the subject matter hereof.  All prior negotiations, agreements, proposals, representations, statements, or understandings, whether written or oral, concerning the subject matter hereof and related communications are merged herein and superseded hereby.

14. OTHER. The following Sections may be unilaterally updated from time to time by Cruise Line without notification to Contractor.

14.1. Anti-Corruption. Contractor has not taken, and will not take, any action in furtherance of an offer, payment, promise to pay, or authorization of the payment of any money, gift, or anything of value, directly or indirectly, to any government official or private person, or demand or accept the foregoing for the benefit of: (i) influencing, inducing, or rewarding any act or decision by such person or by Contractor to do or omit to do any act in violation of his or her lawful duty, (ii) influencing, inducing, or rewarding the improper performance of a relevant function or activity by such person or by Contractor, (iii) securing any improper advantage for such person or Contractor, or (iv) inducing such person or Contractor to use his or her influence with any governmental or private entity to affect any act or decision of the entity for the benefit of Contractor’s business.  For the avoidance of doubt, (i) the term “government official” includes any (1) officer or employee of government, department, agency, or instrumentality of a government (government-controlled enterprise), (2) public international organization or person acting in an official capacity, (3) political party or party official, or (4) candidate for political office; and (ii) the practices prohibited hereunder include making facilitation payments or “grease payments” to government officials to expedite routine non-discretionary government action.

14.2. Trade and Economic Sanctions. Neither Contractor, nor any person that it engages to provide services for or on behalf of Cruise Line, will present business to Cruise Line, procure goods or services, or otherwise engage in transactions for or on Cruise Line’s behalf that (i) involve Persons, property, countries, or dealings targeted by Economic Sanctions; or (ii) cause Cruise Line to be in violation of Economic Sanctions. For purposes of this provision, “Economic Sanctions” means (i) prohibitions and asset-blocking requirements implemented pursuant to the U.S. Trading with the Enemy Act, the U.S. International Emergency Economic Powers Act, and related executive orders and regulations, including prohibitions against commercial and financial transactions with Cuba, Iran, North Korea, Syria, the Crimea, Donetsk and Luhansk regions, the Government of Venezuela, and with Persons and property named on the U.S. Department of the Treasury’s Office of Foreign Assets Control List of Specially Designated Nationals and Blocked Persons; and (ii) prohibitions and asset-blocking requirements authorized under regulations or measures implemented by His Majesty’s Treasury, the European Union and its Member States.  For purposes of this provision, “Person” means an individual, group, organization, entity, or similar. The aforementioned prohibition includes, without limitation, procuring goods or services for or on behalf of Cruise Line that originate in a country, and/or from a Person, targeted by Economic Sanctions.

14.3. Data Privacy.

Contractor undertakes that it will comply with all requirements of the Data Protection Legislation applicable to it and that its employees, affiliates and subcontractors will do likewise. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. Cruise Line shall at all times be the owner of any personal data shared by Cruise Line with the Contractor and the Contractor may only process such personal data for the purpose(s) set forth in the Agreement.

Contractor shall at all times ensure that appropriate technical and organizational measures are utilized and maintained to ensure the safety and security of personal data which it, its employees and subcontractors process pursuant to this Agreement, including (without limitation) the requirements of the Cruise Line Information Security Schedule found here: https://www.royalcaribbeangroup.com/dpa/infosec/.

If the Contractor fails to adhere to the requirements in this this Article, the Contractor shall defend, indemnify, and hold Cruise Line harmless from and against any Losses (as defined herein) that Cruise Line and/or members of its group may incur arising out of or related to Contractor failure to adhere with these conditions. The term “Losses” means any fines, penalties, charges, costs, expenses, compensation, damages, and fees (including attorneys’ fees). Cruise Line reserves the right as a condition of this Agreement to require Contractor to enter into a separate data processing agreement on terms that may include special provisions relating to the treatment of personal data.

For purposes of this Article, the terms  “controller”, “processor”, “data subject”, “personal data”, “processing” and “appropriate technical and organizational measures” shall be interpreted in accordance with the GDPR (defined below).

“Data Protection Legislation” means, in each case to the extent applicable to activities undertaken in connection with this Agreement: (i) Regulation (EU) 2016/679; and (ii) UK GDPR (the “GDPR”), Directive 2002/58/EC, the California Consumer Privacy Act (the “CCPA”) and any other legislation and/or regulation implementing or made pursuant to them, or which amends, replaces, re-enacts or consolidates any of them, and all other applicable laws relating to processing of personal data, data protection and privacy that may exist in any relevant jurisdiction, including, where applicable, the guidance and codes of practice issued by supervisory authorities.