SIDEKICK TERMS AND CONDITIONS

BETWEEN

(1)	You, the end user (“You” or “Your”, as appropriate); and

(2)	Swerford Holdings Limited of 2 Europort Avenue, 4th floor, Waterport Place, Gibraltar (registered office: 57/63 Line Wall Road, Gibraltar) (“We”, “Us” or “Our” as appropriate).

PREAMBLE

By using the PokerStrategy.com SideKick software (as hereinafter defined), You hereby agree to be bound by the terms and conditions herein (“Terms and Conditions”) and acknowledge and agree that the same constitutes a binding legal agreement between You and Us (“Agreement”).

IMPORTANT - PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY PRIOR TO ACCEPTANCE.  WE WOULD SUGGEST YOU PRINT AND STORE A COPY OF THE TERMS AND CONDITIONS FOR YOUR RECORDS. THESE TERMS AND CONDITIONS ARE SUBJECT TO CHANGE (AS SET OUT BELOW).

IF THESE TERMS AND CONDITIONS ARE TRANSLATED INTO ANY OTHER LANGUAGE IT WILL BE FOR INFORMATION PURPOSES ONLY AND THE ENGLISH LANGUAGE VERSION WILL PREVAIL IN THE EVENT OF ANY CONFLICT BETWEEN THE TRANSLATION AND THE ENGLISH LANGUAGE VERSION.

1	INTERPRETATION

1.1 In these Terms and Conditions the following words will have the following meaning unless the context requires otherwise:

“Account”	means a user account registered at the Website;

“Content” 	means all content including text, information, data, software, executable code, images, audio, or video material in any medium or form published and/or otherwise accessible via the Website from time to time;

 “Group Company” 	means Us and/or any undertaking which is, on or after the date of this Agreement from time to time, a subsidiary undertaking of Us, a parent undertaking of Us, a subsidiary undertaking of a parent undertaking of Us or a subsidiary undertaking of a subsidiary undertaking of Us;

“Intellectual Property Rights” 	means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;

“Kicks” 	means badges that You can receive for specific events during or related to playing poker online as stated on the Website from time to time; 

“Software”	means the PokerStrategy.com SideKick software, which keeps track of Your hands while playing poker online and where you can receive Kicks as defined above. In addition, We may in Our sole discretion reward the generation of Kicks with prices, as stated on the Website from time to time;

 “Website”	means the website accessible, from time to time, via the URL www.pokerstrategy.com, among others.

1.2	In these Terms and Conditions, the following rules apply: 

1.2.1	headings do not affect the interpretation of the Terms and Conditions;

1.2.2	a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

1.2.3	a reference to a party includes its personal representatives, successors or permitted assigns;

1.2.4	any phrase introduced by the terms including, include, in particular or any similar expression, will be construed as illustrative and will not limit the sense of the words preceding those terms; and

1.2.5	a reference to writing or written includes faxes and emails.

2	BASIS OF AGREEMENT

2.1	You hereby acknowledge and agree that you have sufficiently reviewed these Terms and Conditions for completeness and accuracy, have read and fully understood the same prior to using the Software and that you intend and agree to be contractually bound by them.

2.2	This Agreement comes into existence, when You have installed and/or used the Software (“Commencement Date”).

2.3	The Agreement constitutes the entire agreement between You and Us. You acknowledge that You have not relied on any statement, promise or representation made or given by or on behalf of Us which is not set out in the Agreement. 

2.4	Any samples, drawings, descriptive matter or advertising published or issued by Us is so published or issued for the sole purpose of providing You with an approximate representation of the Content available pursuant to the download of the Software and will not form part of the Agreement or otherwise have any impact or bearing thereon.

2.5	These Terms and Conditions apply to the Agreement to the exclusion of any other terms that You seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.6	We reserve the right, at Our sole discretion, to make any changes to the Terms and Conditions, the Website, the Content and/or otherwise to vary or alter the Software from time to time for any reason whatsoever (“Change(s)”).  Provided always that We shall notify You of any Change(s) either by email or by publishing the Change(s) and/or details of the Change(s) on the Website. Your continued use of the Software will be deemed a binding acceptance of the Change(s). It is Your sole responsibility to review these Terms and Conditions and the Website for notifications of any Change(s) each time You use the Software. If any Change is unacceptable to You, You agree that You shall immediately cease making use of the Software. 

3	AUTHORITY AND LICENCE FOR USE OF SOFTWARE

3.1	You acknowledge and agree that the Website, together with the Content, the Software and all Intellectual Property Rights in the same will, at all times, remain the exclusive property of Us, a Group Company or a third party licensor, as the case may be and that Your usage of the Software does not assign, transfer to or otherwise confer upon You any proprietary or exclusive rights or entitlement in or to the same.

3.2	You shall not: 

3.2.1	except as stated in clause 4.2, attempt to capture, duplicate, modify or distribute any portion of the Software to any third party; 

3.2.2	make use of the Software and/or any parts thereof to provide services to any third party;

3.2.3	transfer, assign or otherwise dispose of, temporarily or permanently, any rights or obligations under this Agreement; 

3.2.4	attempt to remove, bypass, circumvent, neutralise or modify any digital rights management security measures to which we may subject the Software from time to time.

Any breach by You of this clause 3.2 will be considered to be a material breach of the Terms and Conditions.

3.3	We confirm that we have all the rights in relation to the Software that are necessary to grant You the rights that we purport to grant under the terms of this Agreement.

4	INTELLECTUAL PROPERTY RIGHTS

4.1	Except as stated in clause 4.2, all Intellectual Property Rights in, or arising out of or in connection with, the Software and the Website are and/or will be owned by Us and are subject to the protection of all applicable laws and treaties which may exist around the world from time to time. All rights are specifically and unequivocally reserved. 

4.2 	Portions of code are covered by the following copyrights, where restricted to the portions of code only, the following provisions shall apply:

4.2.1 Novell
Copyright (c) 2006 Novell, Inc (http://www.novell.com)

4.2.2 Michael Schwarz
Copyright (c) 2009, Michael Schwarz (http://www.schwarz-interactive.de)

The following provisions shall apply to 4.2.1 and 4.2.2:

Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:

The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.

THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.

4.3	Except as stated in clause 4.2, You shall not modify the Software in any way, and You shall not use any illustrations, photographs or any graphics separately from any accompanying content of the Software. 

4.4	Except as stated in clause 4.2, You shall not use any part of the Software or the Website for commercial purposes.

4.5	If you are in breach of these Terms and Conditions, your right to use the Software and/or the Website and the Content will cease immediately.

4.6	A breach by You of this clause 4 will be considered a material breach of the Terms and Conditions.

5	Privacy Policy

Notwithstanding Our privacy policy, which you can find here, when using the Software, Your username and password as well as the Kicks you have achieved, including the dates when they have been received and the name of the poker room will be transferred to our server, in order to guarantee the functionality of the Software.  

The Software uses Google Analytics, a web analytic service provided by Google Inc. (“Google”). By installing the Software You allow Us to anonymously track and report your usage statistics to Google. Google will use this information for the purpose of evaluating general Software usage and compiling reports on the general usage statistics for Us. 

6	Liability

6.1	Save where expressly provided herein, all conditions, warranties or other terms which might have effect between You and Us or be implied or incorporated into this Agreement, whether by statute, common law or otherwise, are hereby excluded to the maximum extent permitted by law. 

6.2	Nothing in this Agreement shall operate to exclude or limit any liability that is not permitted to be so limited or excluded pursuant to any applicable law.

6.3	We shall not be liable to You for any loss or damage, of whatever kind, which may be suffered by You, whether the same is suffered directly or indirectly or is immediate or consequential, and whether the same arises in contract, tort (including negligence) or howsoever otherwise arising.

6.4	We shall not be liable to You under this Agreement if We are prevented to offer the Software or from carrying on business by acts, events, omissions or accidents beyond Our reasonable control including, without limitation, default of sub-contractors, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or communications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm.

6.5	You shall be personally liable for and shall defend and indemnify Us and/or any Group Company in respect of any loss, liability, costs (including reasonable legal costs), damages or expenses arising from any breach by You of the terms of this Agreement.

6.6	In this clause 6 "Our liability" includes that of any Group Company and Our and their respective agents, employees, contributors and consultants and sub-contractors and "You" includes any other party claiming through You.
7	Termination
7.1	Without limiting other rights or remedies available to Us and without notice to You, We may immediately terminate the Agreement and apply whatever restrictions to Your Account and/or Your ability to access the Website or Content as we see fit if You are, or We in our sole discretion believe You to be, in material breach of these Terms and Conditions.

8	ASSIGNMENT

8.1	The Agreement is personal to You and you shall not assign, transfer or deal in any manner with the Agreement or any of Your rights and/or obligations under these Terms and Conditions, or purport to do any of the same.

8.2	We, as a party to this Agreement, act as agent for Ourselves and all Group Companies and any Group Company may enforce the terms of this Agreement and any claims arising out of it shall be assignable as between Us and Our Group Companies. Notwithstanding the aforementioned, the consent of such Group Companies will not be required to vary or rescind the terms of this Agreement.

9	WAIVER

9.1	A waiver of any right under the Agreement is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by Us or You in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

9.2	Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.

10	SEVERABILITY

10.1	If a court or any other competent authority finds that any provision of the Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Agreement shall not be affected.  If any invalid, unenforceable or illegal provision of the Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

11	THIRD PARTY RIGHTS

11.1	Other than as expressly stated herein a person who is not a party to the Agreement will not have any rights under or in connection with it.

12	COMMUNICATIONS

12.1	Any notice or other communication required to be given to a party under or in connection with this Agreement shall be in writing and shall be deemed to have been duly received if delivered by email to: in the case of an email for Our attention, support@pokerstrategy.com; or, in the case of an email for Your attention, any email address that is associated with Your Account from time to time.

13	ENTIRE AGREEMENT

13.1	This Agreement constitutes the entire agreement between You and Us and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between You and Us, whether written or oral, relating to its subject matter. Further, each party agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement and neither party shall have any claim for innocent or negligent misrepresentation based upon any statement in this Agreement.

14	GOVERNING LAW AND JURISDICTION

14.1	This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, Gibraltar law, and the parties irrevocably submit to the exclusive jurisdiction of the Gibraltar Courts save that We retain the right to bring proceedings against You for breach of these Terms and Conditions in Your country of residence or any other relevant country.

This Agreement has been entered into between You and Us on the Commencement Date.