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Operating Agreement

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AFFILIATE OPERATING AGREEMENT

This is a valid and legally binding Affiliate Agreement ("Agreement")
between you ("Affiliate") and MGM RESORTS INTERNATIONAL
OPERATIONS INC. ("Company"). You must consent to the terms and conditions of this Agreement if you want to participate in the Company's Affiliate Program. This Agreement is not effective unless and until you consent to the terms of this Agreement by clicking the "I AGREE" button at the end of this Agreement and the Company approves you as an Affiliate as provided in Section II.

I. DEFINITIONS

The following definitions shall apply to this Agreement.
"Affiliate" refers to the person or entity entering into this Agreement with the Company.
"Affiliate Application" refers to the form that you must complete and submit to the Company for consideration of your acceptance into the Affiliate Program.
"Affiliate Program" refers to the affiliate program described in the Affiliate Agreement.
"Affiliate Web Site" means the web site maintained by the Affiliate, approved by and on file with the Company, and accessible at the domain name(s) owned by the Affiliate.
"Company Trademarks" means the trademarks, service marks, trade dress, trade names, and logos owned by, used by or applied for by the Company or any of its subsidiaries or related or affiliated entities, or the MGM RESORTS INTERNATIONAL Properties. By way of example and without limitation, Company Trademarks include various word marks and design marks containing the following words, alone or in combination with other words: ARIA, BEAU RIVAGE, BELLAGIO, CIRCUS CIRCUS, EXCALIBUR, FOUR SEASONS HOTEL LAS VEGAS, GOLD STRIKE, LUXOR, MANDALAY BAY, MGM GRAND, MGM GRAND DETROIT, MONTE CARLO, THE MIRAGE, NEW YORK-NEW YORK, and VDARA.
"Company Web Site" refers to any of the various web sites owned or operated by the Company or by any of the MGM RESORTS INTERNATIONAL Properties.
"Customers" refer to persons or entities that book hotel rooms at MGM RESORTS INTERNATIONAL Properties through the Affiliate Program.
"Ineligible Parties" refer to: (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 MGM RESORTS INTERNATIONAL 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.
"Link" 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.
"MGM RESORTS INTERNATIONAL Properties" refers to the hotel and casino properties in the MGM RESORTS INTERNATIONAL family of properties that participate in the Affiliate Program. The properties participating in the Affiliate Program may change from time to time in the sole discretion of the Company.
"Net Revenue" 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" refers to Company Trademarks, advertisements, and images (including, but not limited to, banner ads and buttons) selected by the Company for use by the Affiliate in promoting sales on the Affiliate Web Site.
"Qualified Booking" refers to a booking that meets the following criteria: (1) the customer books one or more hotel rooms at one or more of the MGM RESORTS INTERNATIONAL Properties; (2) the booking is generated through a click through on a tagged link by the customer on the Promotional Assets on the Affiliate Web Site; and (3) the booking directly results in an actual paid hotel room stay by the customer and is not cancelled.
"We," "us" and "Company" refers to MGM RESORTS INTERNATIONAL OPERATIONS INC.
"You" and "your" refers to the Affiliate.

II. APPLICATION TO AND ACCEPTANCE INTO AFFILIATE PROGRAM

A. Becoming an Affiliate: To become an Affiliate of the Company: (1) you must not be an Ineligible Party; (2) you must fully and accurately complete and submit the Affiliate Application provided by the Company; (3) you must agree to the terms of this Agreement, including the Code of Conduct, by clicking "I AGREE" below; and (4) the Company must approve your Affiliate Application; and (5) upon the Company’s request, you must submit a fully completed W-9 form and, when applicable, a W-8BEN form to the Company.
B. Notification: The Company will notify you within three (3) 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 three (3) days after receipt of your Affiliate Application, your Affiliate Application shall be deemed denied.
C. Company Approval: The Company reserves the right, in its sole and absolute discretion, to refuse to enter into this Affiliate Agreement with you.

III. INTELLECTUAL PROPERTY LICENSE

A. Scope of License: Subject to the terms and conditions of this Agreement and effective upon acceptance into the Affiliate Program and for the duration of this Agreement, the Company hereby grants to the Affiliate a limited, non-exclusive, non-transferable license to use Promotional Assets for the sole purposes of: (a) linking to the Affiliate gateway web pages designated by the Company and in the manner prescribed by the Company; and (b) promoting the MGM RESORTS INTERNATIONAL Properties on the Internet in a manner approved by the Company. All rights not expressly granted hereunder are reserved to Company.
B. Acknowledgement of Ownership: You hereby acknowledge the Company's exclusive ownership of the Promotional Assets. You agree not to take any action inconsistent with the Company's ownership of the Promotional Assets. You agree that any benefits accruing from use of the Promotional Assets shall inure to the benefit of the Company. You agree not to adopt, use, apply for registration of, or claim rights in any Company Trademarks or any trademarks, service marks, logos, trade names or domain names that are confusingly similar to any of the Company Trademarks.
C. Sublicensing: You shall not sublicense, assign or transfer any of the rights granted or licensed under this Agreement. Any attempt by the Affiliate to license, assign or transfer such rights absent the prior written approval of the Company is void and shall, at the Company's election, result in immediate termination of this Agreement without liability to the Company.
D. Duration of the License: Affiliate shall only use the Promotional Assets during the period in which the Affiliate is a member in good standing of the Affiliate Program. This license will terminate immediately upon termination of this Agreement. The Company may revoke this license at any time and for any reason. Upon termination of this Agreement and/or revocation of this license, Affiliate shall immediately cease all use of the Promotional Assets.

IV. USE OF PROMOTIONAL ASSETS

A. General: Unless otherwise determined by the Company, Promotional Assets will be stored on the Company’s server and you will be provided with tags or code to call up the Promotional Assets on the Affiliate Web Site. You shall not download or otherwise save the Promotional Assets in any form. You cannot use any Promotional Assets that have expired or are outdated. You cannot modify any Promotional Assets.
B. Display Rules: You may display the Promotional Assets only on the Affiliate Web Site approved by the Company. You may display the Promotional Assets only in the form and in the size provided or prescribed by the Company. You may not modify or alter the Promotional Assets in any way, including size, proportions, colors, elements, type or in any other respect. You may not animate, morph or otherwise distort the perspective or appearance of the Promotional Assets.
C. Tags: The Company will provide you with the code necessary for displaying the Promotional Assets on the Affiliate Web Site, which, when clicked on, will enable Customers to book reservations for MGM RESORTS INTERNATIONAL Properties and allow Company to track commissions that may be payable to you ("Tagged Links"). You must ensure that each of the links between the Affiliate Web Site and any Company Web Site are Tagged Links; otherwise, commissions will not be tracked and recorded. We will not be liable to you for any lost commissions resulting from your failure to use Tagged Links or any technical problems that may occur.
D. Ad Serving: The Company will provide you with the code necessary for displaying advertisements for MGM RESORTS INTERNATIONAL Properties on the Affiliate Web Site.
E. Updating: The Company may update or revise Promotional Assets from time to time. You shall timely remove from the Affiliate Web Site any links to any Promotional Assets that have expired or are outdated or any broken links to Promotional Assets that have been removed from the Company’s server.
F. E-mail: In the event that you send commercial e-mail containing Promotional Assets to potential customers, you must do so using advertisements provided by the Company. Any reference to the Company must be reviewed and approved by the MGM RESORTS INTERNATIONAL Affiliate Program Manager prior to being sent out.
G. Monitoring of Affiliate Web Site: We have the right to monitor your site as we deem necessary to ensure compliance with this Agreement. If we decide, in our sole 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.

V. MAINTENANCE OF AFFILIATE WEB SITE; INDEMNIFICATION

Affiliate shall be solely responsible for the design, programming, hosting, content, maintenance, accessibility, and appearance of the Affiliate Web Site. You shall use reasonable means to protect the Affiliate Web Site from hacking or hijacking. You shall post a privacy policy on the Affiliate Web Site and comply with the terms of the policy. MGM RESORTS INTERNATIONAL Affiliates writing reviews or endorsements regarding MGM RESORTS INTERNATIONAL property products or services on the website(s) covered under this Agreement agree to have an “Affiliate Disclosure” visible on the page where the endorsement or review page appears. The “Affiliate Disclosure” must contain information about your relationship with MGM RESORTS INTERNATIONAL and that you are paid commission for sales made at MGM RESORTS INTERNATIONAL properties. You shall defend Company and its affiliated and related entities, and the MGM RESORTS INTERNATIONAL Properties, and hold them harmless against any and all claims, demands, losses, damages, or injuries (including, but not limited to, costs and attorneys' fees) that they incur arising out of or relating to any action or omission of the Affiliate, regardless of whether such action or omission is within or outside of the scope of this Agreement.

VI. PROHIBITED PRACTICES; FRAUD; SPAM

A. General Prohibited Practices: Affiliate shall not engage in any of the following practices: (1) framing any Company Web Sites; (2) "mousetrapping" visitors to the Affiliate's Web Site or otherwise interfering with web users’ ability to close any browser window displaying any of the Promotional Assets; (3) using any virus, spyware, trojan horse, worm, time bomb, cancelbot, malicious code, or other computer programming routines that may damage, interfere with, or intercept any system or data; (4) distorting or altering the Promotional Assets; (5) copying all or any portion of the Company Web Sites or the look and feel of the Company Web Sites; (6) registering, transferring, trafficking in, or offering for sale, any domain name that is similar to or contains any of the Company Trademarks; (7) using the Promotional Assets (including the Company Trademarks) in a manner that implies or suggests that the Company or the MGM RESORTS INTERNATIONAL Properties endorse or sponsor the Affiliate Web Site or any products or services of the Affiliate or any third party; (8) using the Promotional Assets (including the Company Trademarks) in any manner that tarnishes, blurs or dilutes the Company Trademarks or that is likely to do so; (9) displaying the Promotional Materials on any web pages that contain any infringing, illegal, immoral, offensive, controversial or pornographic content, which shall be determined by the Company in its sole discretion; (10) displaying the Promotional Materials (including the Company Trademarks) on any web pages that contain content substantially related to online casinos or online gaming; (11) engaging in any illegal, unethical, unfair or deceptive trade practices; (12) advocating discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; (13) using any e-mail address containing any of the Company Trademarks; (14) failing to comply with the Affiliate Web Site’s privacy policy; (15) engaging in any conduct that would be detrimental to the status of the Company, or its affiliated and related entities, as licensed gaming entities; (16) failing to disclose to web users that the Affiliate Web Site(s) use cookies and failing to provide an explanation of what type of information the Affiliate collects through cookies on the Affiliate Web Site(s); and (17) any other practice that the Company decides is not permissible, including, but not limited to, those enumerated in this Agreement (collectively, "Prohibited Practices").
B. Spam: If you send unsolicited commercial email that contain Promotional Assets or that refers or relates to MGM RESORTS INTERNATIONAL Properties, you must ensure that you comply with the CAN-SPAM Act of 2003 (and any other applicable federal or state laws). In particular, when sending commercial email messages in the course of the Affiliate Program: (1) you must not use false or misleading header information; (2) you must not use deceptive subject lines; (3) you must prominently identify the email as an advertisement; (4) you must use a valid physical postal address in the email; (5) you must include an opt-out method; (5) you must cease sending email messages to any recipient who has opted out; and (6) the e-mail messages must clearly state that the messages are not generated by the Company or any MGM RESORTS INTERNATIONAL Properties.
C. Software Applications: You 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.
D. Spyware and Other Parasites: You 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.
E. Forfeiture of Commissions; Attorneys' Fees: If you engage in any Prohibited Practice 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 our program.

VII. COMMISSIONS

A. Qualified Bookings: 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. Calculation of Commissions: The commission payable to the Affiliate shall be 3% of the Net Revenue actually generated from the room rate paid by the Customer for a hotel stay arising from a Qualified Booking.
C. Payment of Commissions: Payments of commissions for Qualified Bookings are made through a third-party payment fulfillment company (currently, KowaBunga! Technologies)at the end of the month following the date of the Customer's stay, not the date of the Qualified Booking. For example, for a Qualified Booking made in June for a hotel stay that takes place in July, the commission would be paid by the end of August. If your commissions in any month are less than $50.00, we will hold those commissions and send you a commission check at the end of the next month in which your total earned commissions exceed $50.00. If your earned commissions do not exceed $50.00 during the term of this Agreement, you will not be entitled to payment of the commissions. You are required to provide a W-9 form and, if applicable, a W-8BEN for to the Company before you will receive commission payments. When this Agreement terminates, any commissions due at the time of termination will be paid at the end of the month following termination. If a Customer disputes or rejects room charges and we have already paid you a commission fee based on revenue, we will deduct the amount of the disputed commission from your next monthly commission fee payment. If there are no subsequent commission fees due to you, we will send you a bill for the amount of the disputed commission, and you agree that you will pay to Company the amount due within thirty (30) days of receipt.
D. Limitations on Commissions: The Company will not pay commissions to you if: (1) the Customer’s reservation cannot be tracked through the Tagged Links; (2) you disable, either intentionally or inadvertently, the Tagged Links; (3) the Qualified Booking does not occur; (4) there is a loss of data needed to calculate commissions or verify Qualified Bookings; (5) you have engaged in fraud, spam, or other Prohibited Practices; (6) the Agreement is terminated prior to the date of the Qualified Booking; (7) you do not provide a W-9 form or, if applicable, a W-8BEN form; or (8) you are not entitled to payment of the commissions as set forth in this Agreement.

VIII. OWNERSHIP AND CONFIDENTIALITY OF INFORMATION

A. Ownership: Any information that you obtain from or compile through performance of this Agreement regarding the Affiliate Program, the MGM RESORTS INTERNATIONAL Properties, the Company or its affiliated or related entities, Customers, Qualified Bookings, commissions, click through rates, marketing strategies or practices, or any other information that is not generally known or readily ascertainable through proper means shall be owned by the Company ("Acquired Information").
B. Confidentiality: You agree not to use or disclose to others any Acquired Information for any purpose other than performance of this Agreement. You shall use reasonable measures to protect the security and secrecy of Acquired Information.

IX. WARRANTIES AND REPRESENTATIONS

You represent and warrant that: (1) you will display the Promotional Assets in accordance with this Agreement and in a professional and tasteful manner, which shall be determined in Company's sole and absolute discretion; (2) you are not engaged in and will not engage in any of the Prohibited Practices during the term of this Agreement; (3) you have duly and validly executed this Agreement; (4) this Agreement constitutes a legal, valid and binding obligation and is fully enforceable against you; (5) you have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party; (6) if you are a business entity, you are duly organized, validly existing and in good standing under the laws of your state of organization and have full power and authority to perform this Agreement; (7) the person executing this Agreement is an adult of at least 18 years of age; and (8) you will comply with the MGM RESORTS INTERNATIONAL Code of Conduct.

X. MODIFICATION

We may modify any of the terms and conditions in this Agreement, and/or any of our policies and operating procedures at any time and from time to time, in our sole discretion. You will be notified by email of any modification to the terms and conditions to this Agreement and the updated Agreement will be posted on affiliates.mgmmirage.com. If the modification is not acceptable to you, you may terminate your continued participation in the Affiliate Program. Your continued participation in the Affiliate Program after modifications to the Affiliate Program are made constitutes your acceptance of the modifications.

XI. TERMINATION

The Company may terminate this Agreement at any time for any reason or no reason. You may terminate this Agreement at any time for any reason or no reason. This Agreement automatically terminates if you breach any provision of this Agreement. In the event of termination, you shall immediately remove the Promotional Assets from the Affiliate Web Site. Sections III.B., V, VIII, IX, XII, XIII, XIV, XVI, XVIII and XIX of this Agreement shall survive the termination of this Agreement.

XII. DISCLAIMER OF WARRANTIES

The Promotional Assets and any other materials provided by the Company pursuant to this Agreement are provided as is. COMPANY, INCLUDING ITS RELATED AND AFFILIATED COMPANIES, AND ALL MGM RESORTS INTERNATIONAL PROPERTIES, DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

XIII. LIMITATION OF LIABILITY

COMPANY, INCLUDING ITS RELATED AND AFFILIATED COMPANIES AND ALL MGM RESORTS INTERNATIONAL PROPERTIES, DISCLAIM LIABILITY FOR ANY AND ALL COMPENSATORY, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES OR LOST PROFITS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. The total amount of damages that are available to you from the Company, its related and affiliated companies, and all MGM RESORTS INTERNATIONAL Properties, in the event of any loss, claim or damage, shall not exceed $500.

XIV. PUBLICITY

Affiliate shall not issue any press release nor make any public statement regarding this Agreement (including the terms and existence thereof) or the relationship of the parties without the Company's prior written approval which may be withheld in Company's sole discretion.

XV. PRIVILEGED LICENSES

You acknowledge that Company’s parent and its subsidiaries are engaged in businesses that are or may be subject to and exist because of privileged licenses issued by governmental authorities. If Company or any parent, subsidiary or other affiliate of Company (collectively, "MGM RESORTS INTERNATIONAL") is directed to cease doing business with you by any such authority, or if MGM RESORTS INTERNATIONAL determines, in its sole and exclusive judgment, that Affiliate or any of its officers, directors, key employees, agents or representatives (collectively, "Affiliate Parties") (i) is or might be engaged in, or is about to be engaged in, any activity or (ii) was or is involved in any relationship, either of which could or does jeopardize MGM RESORTS INTERNATIONAL’s business or such licenses, or those of a parent, subsidiary or other affiliate, or if any such license is threatened to be or is denied, suspended or revoked, then the Agreement may be terminated by Company without further liability to either party upon notice to Affiliate, provided that Affiliate shall be entitled to receive all fees that have accrued or otherwise become due but are unpaid at the time of termination. Without limiting the foregoing, MGM RESORTS INTERNATIONAL shall be entitled and Affiliate shall refund a pro rata refund of any payments made for the period following the date of termination of the Agreement. In addition, you acknowledges that it is illegal for 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, to enter into, or attempt to enter into, a contract with Company without the prior approval of the Nevada Gaming Commission. Therefore, you hereby affirm, represent and warrant to Company that neither you nor any of the Affiliate Parties is a denied license applicant, a revoked licensee or a business organization under the control of a denied license applicant or a revoked licensee, and you hereby agree that this Agreement may be terminated by Company without further liability to either party upon notice to Affiliate if you or any of the Affiliate Parties is or should become a denied license applicant, a revoked licensee or a business organization under the control of a denied license applicant or a revoked licensee.

XVI. NON-INVOLVEMENT OF CERTAIN PARTIES

The Affiliate Parties agree that in the event there is any default or alleged default by Company under the Agreement, or the Affiliate Parties have or may have any claim arising from or relating to the Agreement, the Affiliate Parties shall not commence any lawsuit or otherwise seek to impose any liability whatsoever against Kirk Kerkorian or Tracinda Corporation. The Affiliate Parties hereby further agree that neither Mr. Kerkorian nor Tracinda Corporation shall have any liability whatsoever with respect to the Agreement. The Affiliate Parties hereby further agree that they shall not permit any party claiming through them to assert a claim or impose any liability against either Mr. Kerkorian or Tracinda Corporation, either collectively or individually, as to any matter or thing arising out of or relating to the Agreement or any alleged breach or default by Company. In addition, the Affiliate Parties agree that neither Mr. Kerkorian nor Tracinda Corporation, individually or collectively, is a party to the Agreement or is liable for any alleged breach or default of the Agreement by Company.

XVII. RELATIONSHIP OF THE PARTIES

The relationship of the Affiliate to the Company shall be that of an independent contractor. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.

XVIII. CHOICE OF LAW AND FORUM; IDENTIFICATION OF PARTIES

This Agreement shall be governed by the law of the State of Nevada. Any dispute arising under or relating to this Agreement or the subject matter of this Agreement shall be resolved in a state or federal court in Las Vegas, Nevada. Affiliate agrees that the Company (and not any of its affiliated or related entities or any MGM RESORTS INTERNATIONAL Properties) shall be the only party named by the Affiliate in any dispute arising under or relating to this Agreement. The Affiliate hereby consents to personal jurisdiction in any state or federal court in Las Vegas, Nevada, for any claims arising from or relating to this Agreement.

XIX. ENTIRE AGREEMENT

This Agreement contains the entire understanding and agreement between the parties hereto.

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