Terms and Conditions
Last Updated: 11/8/2018
This Affiliate Agreement (the “Agreement”) set out the terms and conditions between Internet Marketing Holdings Limited, a company incorporated and registered under the laws of Malta with number C 55490 and having its registered office at Vincenti Buildings, 28/19 (Suite No. 1121), Strait Street Valletta VLT 1432 Malta (“IMH”, “we” or “us”) and you (the “Affiliate” or “you”)
By completing and accepting the Affiliate Application Form, you hereby agree to abide by all the terms and conditions set out in this Agreement.
The Affiliate acknowledges and agrees that the New User(s) shall be registered with and the customer database shall belong to the Licensed Gaming Operator and warrants and represents that throughout the term of this Agreement and following termination it shall not have access to the customer database nor to a database of New Users and shall refrain from attempting to or contacting any New User in relation to any matter without the prior written approval of the Licensed Gaming Operator.
The Affiliate further warrants and represents that it shall at all times comply with its obligations under the GDPR. The Affiliate further acknowledges that the Company shall not have access to New Users’ personal data as such cannot be held responsible for any breach in respect thereof.
The Affiliate shall be entitled to receive a commission in respect of all New Users forwarded to the Licensed Gaming Operators through the Company Platform which commission shall be calculated and be payable on the basis of the Payment Plan specified by the Company in the Affiliate Insertion Order and as detailed in Clause 5.
The following capitalised terms shall have the meaning assigned below:
- ‘Affiliate’ means the person or entity who submits an Affiliate Insertion Order to join the Affiliate Program.
- ‘Affiliate Insertion Order’ means the request by the Affiliate to join the Company Platform on the prescribed form duly completed by the Affiliate in paper or digital format and including the details of the Affiliate as well as the agreed Payment Plan.
- ‘Affiliate Program’ means the arrangement through the creation of an account for the Affiliate on the Company Platform whereby the Affiliate is able to direct traffic towards offers made available by the Licensed Gaming Operators on the Company Platform in exchange for a commission as defined in the Payment Plan.
- ‘Affiliate Source’ means one or more of the following:-
- Website/s operated by the Affiliate and which are specifically listed in the Affiliate Insertion Order or subsequently added by mutual agreement between the Parties.
- Social Media Platforms;
- Search Engine Optimisation;
- Pay Per Click programme;
- Media Buying Network which the Affiliate forms part of.
- ‘Charge back’ means when a credit card holder discovers irregular transactions made on his/her Credit/Debit Card, which was not authorized by him/her. The credit card holder then requests his/her bank to reverse these charges. Charge backs relate to fraudulent use by a third party of the credit card holder's card or card number.
- ‘Company’ means Lead Republik Limited (C87371) a private limited liability company registered in Malta and registered office at Vault 14, Level 2, Valletta Waterfront, Floriana, FRN 1914, Malta.
- ‘Company Platform’ means the platform operated by the Company with domain name [www.-]
- ‘Confidential Information’ means information disclosed by a Party to this Agreement (‘disclosing Party’) to the other Party (‘recipient’) in whatever form and of whatever nature which is confidential in nature or may reasonably be considered to be commercially sensitive provided by it (directly or indirectly) by any means to the recipient (or to any person authorized by the recipient to receive Confidential Information on its behalf in accordance with Clause 7(d)) whether before or after the date of this Agreement relating to the subject of this Agreement or the affairs of the disclosing Party:
- all data or information (whether technical, commercial, financial or of any other type) in any form acquired under, pursuant to or in connection with this Agreement and any information used in or relating to the disclosing Party’s (or any Group member’s) business (including information relating to products (bought, manufactured, produced, distributed or sold), services (bought or supplied), operations, processes, formulae, methods, plans, strategy, product information, know-how, design rights, trade secrets, market opportunities, customer lists, commercial relationships, marketing, sales materials and general business affairs);
- information relating to the users, customers, suppliers, methods, products, plans, finances, trade secrets or otherwise to the business or affairs of the disclosing Party (or any Group member); and
- all information acquired by observation by the recipient at the offices of the disclosing Party or other premises (or any Group member); and
- all analysis, compilations, studies and other documents prepared by the recipient or any of its authorised persons which contain or otherwise reflect or are generated from the information referred to above.
- ‘the Data Protection Act’ means Chapter 586 of the Laws of Malta regulating the processing of personal data.
- ‘the GDPR’ means the General Data Protection Regulation (Regulation 2016/679(EU)).
- ‘Group member’ means any Related Company of the Company or of the Affiliate where the Affiliate itself is a legal entity.
- ‘Intellectual Property Rights’ means copyright, patents, know-how, trade secrets, trademarks, service marks, trade names, design rights, registered designs, get-up, database rights, chip topography rights, mask works, utility models, domain names, rights in trade and business names and all similar rights and, in each case:
- whether registered or not;
- including any applications to protect or register such rights;
- including all renewals and extensions of such rights or applications;
- whether vested, contingent or future;
- including rights in the nature of unfair competition rights and rights to sue in passing off;
- to which the Party licensing those rights or its licensor are or may be entitled.
- ‘Licensed Gaming Operator’ means gaming operator licensed in [specify jurisdictions accepted] and registered on the Company Platform.
- ‘Links’ means the internet hyperlinks assigned to the Affiliate by the Company linking the Affiliate Source(s) to the Company Platform.
- ‘Net Revenue’ means the Company’s net profits, that is, the Company’s income after deducting therefrom all expenses and costs.
- ‘New User’ means any person registered for the first time with the Licensed Gaming Operator and satisfying the following conditions:-
Provided that, if a person registers with the Licensed Gaming Operator after a referral from the Affiliate Source(s) and such person had previously been registered with the Company and closed his/her account, he/she shall not be deemed a ‘new user’ if the closure of the account took place less than twelve (12) months prior to the subsequent registration.
- He/she creates a new player account after having been referred from the Affiliate Source(s);
- He/she makes a first deposit amounting to the minimum deposit as specified in the Licensed Gaming Operator’s player terms and conditions;
- He/she is not the Affiliate, an employee, relative or friend of the Affiliate;
- He/she is not already in the Licensed Gaming Operator’s user database.
- ‘Parties’ means the Company and the Affiliate and each one shall be ‘a Party’.
- ‘Payment Plan’ means either of the payment plans listed in Clause 5 applicable to the Affiliate as indicated in the Affiliate Application.
- ‘Related Company’ means any entity holding shares in the Company whether directly or indirectly or in which the Company holds shares whether indirectly or directly or which is owned (directly or indirectly) by the same shareholder where ‘ownership’ means holding even at least one share in the entity in question.
- AFFILIATE REGISTRATION PROCESS
- The Affiliate shall complete and submit the Affiliate Insertion Order subject to and in accordance with the instructions thereon. The information provided by the Affiliate shall be complete and genuine in all material respects and shall include the website address/es or other details of the Affiliate Source(s).
- The Company shall evaluate the Affiliate Insertion Order and shall notify the Affiliate in writing (including via email) whether the Affiliate Insertion Order is accepted or not, and if accepted, the Payment Plan proposed as well as any additional terms and conditions (if any) which the Company may deem fit to impose.
- Once accepted, and Affiliate account shall be created on the Company Platform allowing the Affiliate to log on to the system.
- The Company reserves the right to refuse any Affiliate registration in its sole and absolute discretion. In particular (but without prejudice to the generality of the foregoing) the Company reserves the right to refuse an Affiliate registration if the Affiliate advertises with Internet Protocol (IP) addresses located in or originating from within the geographical jurisdiction of the [Specify jurisdictions].
- If the Company accepts the Affiliate, it shall provide the Affiliate with all relevant information (as further detailed in Clause 3 below) required for the Affiliate to perform its obligations in terms of this Agreement.
- Once the Affiliate has been accepted, the Affiliate shall divert all traffic from the Affiliate Source(s) to the Licensed Gaming Operator through the Company Platform. The Company shall have access to the traffic data in anonymous form for the purpose of monitoring the Company Platform and calculating payments due to the Affiliate, where applicable.
- The Affiliate recognises and agrees that, once registered the New User becomes the Licensed Gaming Operator’s customer and the Licensed Gaming Operator assumes ownership thereof. The Company merely acts as an agent referring traffic from the Affiliate to the Licensed Gaming Operator and the Affiliate as well as the New User must accept all the Licensed Gaming Operator’s rules, policies and operating procedures applicable thereto.
- The Affiliate is aware that a Licensed Gaming Operator may refuse the registration of any New Users, suspend or close their accounts if deemed necessary. This will be at the Licensed Gaming Operator’s sole and absolute discretion in order to comply with any requirements it considers mandatory.
- COMPANY’S RIGHTS & OBLIGATIONS
- The Company reserves the right to refuse an Affiliate Insertion Order or to terminate an Affiliate account in its absolute discretion.
- The Company shall provide the Affiliate with all required information and marketing material necessary for the promotion of the Licensed Gaming Operator’s Website on the Affiliate Source(s), as well as for the implementation of the tracking Links/s thereon.
- The Company shall not be responsible for the content and presentation of any material specifically provided to the Affiliate by the Licensed Gaming Operator. The Affiliate shall remain responsible for the manner in which the material provided to it by the Company or by the Licensed Gaming Operator is presented on the Affiliate Source(s) or is generally distributed (or any other medium to be used by the Affiliate for the purposes of this Agreement) and for the suitability and compliance thereof with all applicable laws, rules and regulations.
- The Company may monitor the Affiliate Source(s) in order to ensure the Affiliate’s compliance with the terms and conditions of this Agreement and the Affiliate shall provide the Company with all data reasonably requested in order to perform such monitoring.
- The Company shall administer the turnover generated via the tracking Links, record the net revenues and the total commission payable to the Affiliate through a unique tracking identification code assigned to all New Users.
- The Company shall pay the Affiliate the payment due thereto as calculated pursuant to Clause 5 of this Agreement, subject to the terms of this Agreement.
- The Company shall provide the Affiliate with a [daily/weekly/monthly] report showing the volume of traffic generated by the Affiliate on the Company Platform.
- The Company reserves the right, in its absolute discretion, to request any information from the Affiliate for due diligence purposes as deemed necessary for the purposes of this Agreement including information in relation to its compliance procedures and applicable regulations in the jurisdictions in which it operates. The Affiliate shall comply and cooperate with the Company in the event that such a request is made.
- AFFILIATES’ RIGHTS & OBLIGATIONS
- By completing and submitting the Affiliate Insertion Order in accordance with Clause 2, the Affiliate accepts, and agrees to abide by all the terms and conditions of this Agreement.
- The Affiliate hereby represents and warrants that:-
- It has, and will retain through the terms of this Agreement, title and authority to enter into this Agreement, to grant the rights and perform all its obligations in this Agreement.
- It has obtained and will maintain in force all necessary registrations, authorisations consents and licenses as and where necessary to fulfil its obligations under this Agreement;
- It fully understands and accepts the terms and conditions of this Agreement.
- In particular, the Affiliate hereby expressly undertakes:
- to advertise, market and promote the Company’s Platform featuring the Licensed Gaming Operators’ website to potential users, by providing Links and disseminating marketing material received from the Company or from the Licensed Gaming Operator on the Affiliates Website(s), or via other marketing channels as may be approved in writing by the Company. The Links shall be prominently displayed on or otherwise integrated in the Affiliate Source(s) in accordance with what is agreed between the Company and the Affiliate.
- to use its professional skills and expertise to actively and effectively advertise, market and promote the Company Platform and the Licensed Gaming Operators’ website as widely as possible, and in a manner which reflects industry affiliate best practice, in order to maximize the benefit to the parties whilst abiding by the present Agreement as well as the marketing guidelines and any further rules, regulations or guidelines which may be notified to the Affiliate or published online as may be applicable to the Licensed Gaming Operator.
- to only use marketing material as shall be provided to the Affiliate by the Company or by the Licensed Gaming Operator for the purposes of the advertisement, marketing and promotion of the Company Platform and the Licensed Gaming Operators’ website. The Links and/or the marketing material shall not be amended or altered without the prior written consent of the Company.
- to market and refer potential players to the Company Platform entirely at its own cost and expense. The Affiliate will be solely responsible for the distribution and manner of its marketing activities. All of the Affiliate’s marketing activities must be professional, proper and lawful and conducted in accordance with applicable laws and all local conduct of business requirements.
- to use only a tracking link provided to the Affiliate within the scope of the Affiliate Program. In default of this, no warranty whatsoever can be assumed for proper registration and sales accounting.
- to be generally responsible for the development, the operation, and the maintenance of its own Affiliate Source(s) as well as for all material appearing on its own websites.
- not to send any material via direct marketing means to users whom the Affiliate knows or should reasonably know to be self-excluded with the Licensed Gaming Operators.
- to, at all times, abide by all the relevant advertising and/or marketing rules, legislation and guidelines issued by the competent authority/ies of the country in which the Affiliate intends to advertise, market and promote the Company Platform, as well as the country in which the Company is registered.
- The Company reserves the right to request the Affiliate to immediately remove any promotional material which may be brought to its attention and which it deems, in its sole absolute discretion, to be in breach of any relevant advertising and/or marketing rules.
- The Affiliate further agrees:
- that it will not perform any act which is libelous, discriminatory, obscene, immoral, unlawful or otherwise unsuitable or which contains sexually explicit, pornographic, obscene or graphically violent material. The Affiliate shall not advertise (or cause to be advertised) the Company Platform on any sites which may, in any manner, be considered to be obscene, immoral, unsuitable, aimed at minors or are otherwise black-listed. The Affiliate shall ensure that it is aware of the location of each of such advertisements.
- The Company reserves the right to periodically request a list of all locations used by the Affiliate to promote the Company Platform to ensure continued compliance. Accordingly, the Affiliate can only advertise the Company Platform on websites and through media accounts and channels that have been disclosed to and approved in advance by the Company.
- that it will not allow the targeting of any jurisdiction where gambling and/or the promotion thereof is unlawful and/or illegal.
- that it will not generate traffic to the Company Platform by unlawful, illegal or fraudulent means, particularly, but not limited to, by:
- Sending spam. This includes all formats of spam, including but not limited to emails and/or SMS that meet any one of the following criteria: are unsolicited and sent to a large number of addressees, contain false or misleading statements, does not honestly identify the source of the originating email address, does not contain an online and real time ‘Remove’ option or causes software download, installation or similar action with addressee consent.
- Registering as a player or making deposits directly or indirectly to any player account through his tracker(s) for his/her/its own personal use and/or the use of its relatives, friends, employees or other third parties, or in any other way attempt to artificially increase the amounts payable, or to otherwise defraud the Company.
- Popups, popunders and cookie dropping. This includes but is not limited to popups, popunders and dropping customer cookies. The Affiliate shall seek the Company’s prior approval for any pop ads campaigns.
- that the Affiliate Source(s) and any other medium which may be used by the Affiliate to advertise, market and promote the Company Platform in terms of this Agreement shall at all times uphold the standards of best practice by including, without limitation, the promotion of responsible gambling and containing ‘18+’ (or any other higher age restrictions that may apply to different jurisdictions) and responsible gambling warning messages and logos and links to the sites of agencies/organisations that help vulnerable customers on any pages/sites/media that links the potential customer to the Company’s Website.
- that it will not present its own websites in any way that might evoke any risk of confusion with the Company Platform or that of any Related Company or that of any Licensed Gaming Operator and/or convey the impression that the Affiliate Source(s) are partly or fully originated from the Company or from any Related Company or from a Licensed Gaming Operator.
- with the exception of the marketing materials as may be forwarded by the Company and/or made available online through the website [LINK], the Affiliate may not use the Intellectual Property Rights including in particular the terms [TERMS], or other terms, trademarks and other intellectual property rights that are vested in the Company and/or ultimately owned by any Related Company unless the Company or such Related Company expressly consents to such use in writing.
- that it will not purchase, attempt to register, or register keywords, search terms or other identifiers for use in any search engine, portal, sponsored advertising service or other search or referral service which are identical or similar to any of the Company Platform and trademarks, trade names or otherwise, including the words [NAME], or variations thereof.
- that it will not use any of the Company Platform trademarks, trade names or otherwise include the terms [NAME], or variations that are confusingly similar, in affiliate URLs. Brand names may not be used in a derivative URL or subdomain.
INTELLECTUAL PROPERTY RIGHTS
- The Payment Plan which shall apply to the Affiliate shall be either of the plans detailed in this Clause 5. (or a hybrid thereof) as shall be agreed to in writing by the Parties on a case-by-case basis.
- Revenue Share Plan: The Affiliate shall receive a percentage of the Company’s Net Revenue by way of Commission. The applicable percentage shall be that specified in the Affiliate Insertion Order
- The Revenue Share commission is calculated in the beginning of each month and shall be calculated on the previous month. The Company shall endeavour to effect payment of the commission due in terms of this payment plan by the fourteenth day of each calendar month, provided that the amount due exceeds €100 (minimum threshold). If the balance due is less than the minimum threshold, it shall be carried over to the following calendar month and shall be payable when the accrued balance exceeds the stipulated minimum threshold.
- For the sake of clarity, it is expressly stated that, should the Net Revenue generated from the New Users introduced by the Affiliate in any given month fall below zero (“Negative Net Revenue”), such negative balance shall not be carried over to the following month for the purposes of the calculation of the Net Revenue and commission for that same month.
- Pay per New User Payment Plan - the Affiliate shall receive a commission calculated on the volume of New User traffic generated by the Affiliate from the Affiliate Source(s) through the Company Platform to the Licensed Gaming Operators registering with the Licensed Gaming Operators at the rate per New User specified in the Affiliate Insertion Order. Provided that for the purpose of this Payment Plan, the number of New Users registered with each of the Licensed Gaming Operators during a particular month shall be derived from the Company’s own reporting tools.
- Upfront Payment Plan – the Affiliate shall receive a lump sum commission per month to cover all New User registrations during that particular amount. The lump sum commission shall be in the amount indicated in the Affiliate Insertion Order.
- The payment of the lump sum commission shall be subject to the minimum number of New User Registrations specified in the Affiliate Insertion Order;
- The Affiliate accepts and understands that no further payments, fees and/or commissions beyond lump sum commission shall be due to the Affiliate.
- The Affiliate understands that the Payment Plan that shall be applicable shall be as identified by the Company in the Affiliate Insertion Order. The particular terms pertaining to either the Revenue Share Plan, the Pay per New User Plan or the Upfront Payment Plan as listed in this Clause 5 shall be applicable depending on the plan so identified.
- The Company shall issue a self-billed invoice on the Affiliate’s behalf at the end of each month which shall include the commission due to the Affiliate for the past month. The Affiliate shall have twenty-four hours (24) within which to contest the contents of the invoice. If the Affiliate does not contest the invoice within the established time-frame, the Company shall consider such as a tacit approval of the invoice by the Affiliate and proceed to effect payment in accordance with the provisions of this Agreement. Furthermore, in view of the agreed procedure herein, any documentation referring to commissions due which are issued by the Affiliate shall not be binding and shall not be considered to constitute an invoice.
- Payment shall be made by the Company within fifteen (15) days from the date of the invoice.
- The Affiliate's acceptance of the payment shall be deemed to constitute the full and final settlement of the balance due for the relevant period.
- The Company may delay payment of any balance to the Affiliate for up to one hundred and eighty (180) days, while it investigates and verifies that the relevant transactions comply with the provisions of the terms.
- It is expressly agreed that no payment shall be due when the traffic generated is illegal or contravenes any provision of this Agreement.
- The Affiliate agrees to return all payment received based on fraudulent or falsified transactions, plus all costs for legal causes or actions that may be brought against the Affiliate to the fullest extent of the law.
- The Affiliate shall be exclusively responsible for the payment of any and all taxes, levies, fees, charges and any other money payable or due both locally and abroad (if any) to any tax authority, department or other competent entity by the Affiliate as a result of the revenue generated under this Agreement. The Company shall in no manner whatsoever be held liable for any amounts unpaid but found to be due by the Affiliate and the Affiliate hereby indemnifies the Company in that regard.
- For the sake of clarity, the Parties specifically agree that upon termination of this Agreement by either party, the Affiliate shall no longer be entitled to receive any payment whatsoever from the Company, provided that payments already due (earned and unpaid commissions) shall be paid out.
- The Company reserves the right to change the Payment Plan upon giving written notice to this effect to the Affiliate.
- Nothing contained in this Agreement will grant the Affiliate any right, title or interest in the Intellectual Property Rights of the Company or of any Related Company. At no time during or after the term will the Affiliate allure, attempt, challenge, assist or allow others to challenge or to register or to attempt to register the marks of the Company or of any Related Company. Provided also that the Affiliate shall not register nor attempt to register any mark or website domain which is identical or similar to any mark which belongs to the Company or to any Related Company.
- All Intellectual Property Rights created and/or deriving from this Agreement, (including, but without limitation, advertising materials, databases and personal data) shall be and become the sole property of the Company without any rights to the Affiliate.
- Throughout the term of the Agreement and following its termination for whatsoever cause or reason, neither Party shall attempt, challenge, assist or allow others to challenge or to register or attempt to register the Intellectual Property Rights or any rights similar to the Intellectual Property Rights of the other Party or of any group companies of the other Party.
- The Parties acknowledge that the Confidential Information is of significant commercial value and importance to the disclosing Party and is being disclosed in confidence solely for the purpose of this Agreement.
- Each recipient of Confidential Information undertakes to the disclosing Party that it will, and will procure that any person authorised by it to receive Confidential Information shall:-
- keep the Confidential Information secret and confidential;
- not Use the Confidential Information in any way except to the extent reasonably necessary for the purpose of this Agreement;
- not disclose the Confidential Information or any part of it to any person other than in accordance with this Clause 7(d);
- not Use or benefit from any Confidential Information received by it so as to procure any commercial advantage over the disclosing Party;
- The obligation to keep the Confidential Information confidential in accordance with this Agreement shall survive and subsist (notwithstanding the prior termination or expiry of this Agreement or service of any notice by either Party).
- Authorised Disclosures: A recipient may disclose some or all of the Confidential Information received by it to any person authorised by it to receive such Confidential Information, provided that such disclosure is made only to such persons and to the extent reasonably necessary for the purpose of this Agreement and is made under no less strict obligations of confidentiality than those set out in this Agreement. Each recipient undertakes to procure that any such person authorised by it to receive Confidential Information will comply with the confidentiality obligations set out above as if such person were a party to this this Agreement.
- Excluded information: The obligations under this Clause 7 shall not apply to, and the term Confidential Information does not include any information with the recipient can prove:-
- was known to the recipient, otherwise than under any obligation of confidentiality, prior to its disclosure by the disclosing Party;
- was developed by any employee of the recipient who has not had any direct or indirect access to or knowledge of the Confidential Information;
- was disclosed to the recipient without any obligation of confidence by a third party who has not derived it directly or indirectly in breach of an obligation of confidentiality owed to the disclosing Party;
- was at the time of disclosure by the disclosing Party, or subsequently becomes, published, accessible to the public or otherwise in the public domain, other than through any breach by the recipient or any person authorised to received Confidential Information under Clause 8(d) above or of any other obligation of confidentiality;
- has been agreed by the Parties in writing as being excluded from Confidential Information.
- A Recipient shall not be in breach of its obligations under this Clause 7 if and to the extent that Confidential Information received by it may be required by law; or the rules of any court or other body of competent jurisdiction; or any governmental or regulatory body to be disclosed provided in each case the recipient, to the extent practicable and permitted, immediately notifies the disclosing Party in writing of any request or requirement for disclosure and of all relevant surrounding circumstances prior to disclosure. If the recipient is unable to notify the disclosing Party before such disclosure is required it will, if permitted, notify the disclosing Party immediately after the disclosure has been made. The recipient will use all reasonable endeavours to resist any requirement for disclosure (and to assist the disclosing Party in resisting the requirement for disclosure) and to maintain the confidentiality of the Confidential Information.
LIABILITY & INDEMNIFICATION
- The Parties hereby declare and agree that each shall be responsible to comply with the GDPR and the Data Protection Act when processing personal data.
- The Affiliate shall be responsible to and shall inform any users that tracking technology will be installed on the users’ device when the user clicks on the Links and provide the user with an option to reject such installation.
- Each Party notifies the other that personal data (as defined by the GDPR) pertaining to the other or to the other Party’s employees (if any) may be collected and shall be utilised solely in the context of, and as is necessary, for the performance of this Agreement or in the pursuance of any legal obligation or legitimate interest.
TERM & TERMINATION
- The Affiliate expressly acknowledges and agrees that the use of the internet and the Affiliate Program is at the Affiliate’s own risk. The Company makes no guarantee in relation to the accessibility of the Company Platform at any particular time or any particular location. The Company shall in no event be liable to the Affiliate or anyone else for any inaccuracy, error or omission in, or loss, injury or damage caused in whole or in part by failures, delays or interruptions of, the Company Platform or the Affiliate Program.
- The Company shall not be liable (in contract, tort, for breach of statutory duty or in any other way) for (i) any economic losses, including but without limitation, loss of profits, revenues, business, contracts or anticipated savings of the Affiliate (ii) any indirect or consequential losses of the Affiliate; or (iii) any loss of goodwill or reputation of the Affiliate.
- The Affiliate agrees to defend, indemnify and hold the Company as well as any Related Company, their successors, officers, employees, agents, directors, shareholders and attorneys, free and harmless from and against any and all claims, fines and liabilities, including reasonable legal and expert fees, related to or arising from:
- i. any breach of Affiliate’s representations, warranties or obligations under this Agreement;
- ii. Affiliate’s use (or misuse) of the marketing material and the Company or any Related Company’s Intellectual Property Rights;
- iii. any breach of the Affiliate’s obligations under the GDPR or under the Data Protection Act.
APPLICABLE LAW & JURISDICTION
- This Agreement shall enter into force and be binding on the Affiliate once the Affiliate Application has been submitted in accordance with Clause 2 but shall not be binding or enter into effect in relation to the Company until the Company approves the Affiliate Application under Clause 2.
- This Agreement may be terminated by either party by giving a thirty (30) day advance written notification to the other party. Written notification may be given by an email.
- The Company may, however, terminate the Agreement with immediate effect in the event that the Affiliate is in default of its obligations under this Agreement or is otherwise in breach of the representations and warranties provided herein. In this case, no notice period shall be applicable and the Agreement shall be considered terminated as of the date on which the Company notifies the Affiliate of its decision to terminate the Agreement on the strength of this Clause 10(c). In this event, the Parties agree that the Company may take any action it deems appropriate, including the withholding of any unpaid commissions as of the date of termination as security for any perceived/anticipated/contingent liabilities or claims that may arise against the Company due to the breach or activities of the Affiliate.
- The Company further reserves the right to terminate this Agreement if it determines that the Affiliate Source(s) or any one of them is unsuitable. Unsuitable sites may include those that: promote sexually explicit materials, are targeted towards children or minors, promote violence, promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, promote illegal activities, or violate Intellectual Property Rights.
- The Parties hereby agree that upon the termination of this Agreement, howsoever occasioned:
- the Affiliate must, within seventy two (72) hours of receipt of the abovementioned notification, remove all references to the Company or any Related Company and/or its/their brands and/or the Company Platform and/or the Licensed Gaming Operator from the Affiliate’s Website(s) and/or other marketing channel and communications, irrespectively of whether the communications are commercial or non-commercial
- the Affiliate will be entitled only to those earned and unpaid amounts in terms of Clause 5 as of the effective date of termination; however provided, the Company may withhold the Affiliate’s final payment for a reasonable time to ensure that the correct amount is paid. The Affiliate will not be eligible to earn or receive commissions or other payments after this date.
- the Affiliate will return to the Company any and all Confidential Information (and all copies and derivations thereof) in the Affiliate’s possession, custody, and control.
- the Affiliate will release the Company from all obligations and liabilities occurring or arising after the date of such termination, except with respect to those obligations that by their nature are designed to survive termination. Termination will not relieve the Affiliate from any liability arising from any breach of this Agreement, which occurred prior to termination and/or to any liability arising from any breach of Confidential Information even if the breach arises at any time following the termination of this Agreement. The Affiliate’s obligation of confidentiality towards the Company shall survive the termination of this Agreement.
- The Affiliate shall no longer have access to the Affiliate Program and shall surrender in favour of the Company any records and information in relation to all New User(s) registered with the Company in terms of this Agreement.
- This Agreement, and any dispute or claim arising out of or in connection with it (including non-contractual disputes or claims) is governed by, and interpreted in accordance with, the laws of Malta.
- The Parties irrevocably submit to the exclusive jurisdiction of the courts of law in Malta to settle any disputes or claims which may arise out of or in connection with this Agreement including non-contractual disputes or claims.
- For the sake of clarity, it is expressly stated that all annexes found hereunder, as well as any further annexes added from time to time, and the obligations contained therein, shall form an integral part of this Agreement.
- The Company reserves the right to, at any time and at its sole discretion, amend, alter, delete or add any of the provisions of this Agreement. In such cases, a written notice of the amendments will be sent to the Affiliate’s registered email address and such notice will be deemed to be served once sent by the Company. The Affiliate’s continuing participation in the Affiliate Program after any amendments or modifications have been made public will be deemed as the Affiliate’s acceptance of the new terms and conditions.
- The Affiliate shall not assign this Agreement, by operation of law or otherwise, without the Company’s prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the Parties Affiliate and their respective successors and assigns.
- The Company’s failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of the Company’s right to subsequently enforce such provision or any other provision of this Agreement. NO MODIFICATIONS, ADDITIONS, DELETIONS OR INTERLINEATIONS OF THIS AGREEMENT ARE PERMITTED OR WILL BE RECOGNIZED BY THE COMPANY. None of the Company’s employees, officers or agents may verbally alter, modify or waive any provision of this Agreement.
- The Company’s rights and remedies hereunder shall not be mutually exclusive, i.e., the exercise of one or more of the provisions of this Agreement shall not preclude the exercise of any other provision. The Affiliate acknowledges, confirms, and agrees that damages may be inadequate for a breach or a threatened breach of this Agreement and, in the event of a breach or threatened breach of any provision of this Agreement, the respective rights and obligations of the Parties may be enforceable by specific performance, injunction, or other equitable remedy. Nothing contained in this Agreement will limit or affect any of the Company’s rights at law, or otherwise, for a breach or threatened breach of any provision of this agreement, it being the intent of this provision to make clear that the Company’s respective rights and obligations shall be enforceable in equity as well as at law or otherwise.
- Whenever possible, each provision of this agreement will be interpreted in such a manner as to be effective and valid under applicable law, however; if any provisions of this Agreement are held to be invalid, illegal or unenforceable in any respect, such provision will be ineffective only to the extent of such invalidity, or unenforceability, without invalidating the remainder of this Agreement or any provision hereof. No waiver will be implied from conduct or failure to enforce any rights and must be in writing to be effective.
- The Parties are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the Parties. The Affiliate will have no authority to make or accept any offers or representations on the Company’s behalf. The Affiliate will not make any statement, whether on the Affiliate Source(s) site or otherwise, to contradict anything in this paragraph or be reasonably deemed to contradict this paragraph.
- The Company makes no express or implied warranties or representations with respect to the commission payment arrangements (including, without limitation, their functionality, warranties of fitness, merchantability, legality, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, the Company makes no representation that the operation of our site will be uninterrupted or error-free and will not be liable for the consequences of any interruptions or errors.
- In case of any discrepancy between the meanings of the English version of this Agreement and any non-English translation of this Agreement, the English version shall prevail.
- Any notice given or made under this Agreement to the Company shall be sent by email to and marked for the attention of the Affiliate Manager of the Company Platform unless otherwise notified by the Company. The Company shall send all notices by email to the email address supplied by the Affiliate in the Affiliate Application.
- The Company and the Affiliate will work in close cooperation at all times for the mutual benefit of making the Affiliate Program a successful collaboration.
- Neither Party shall be liable to the other for any delay or failure to perform its obligations under this Agreement if such delay or failure arises from a cause beyond its reasonable control, including but not limited to labour disputes, strikes, industrial disturbances, acts of God, acts of terrorism, floods, lightning, utility or communications failures, earthquakes or other casualty. If such event occurs, the non-performing Party is excused from whatever performance is prevented by the event to the extent prevented provided that if the force majeure event subsists for a period exceeding thirty (30) days then either Party may terminate this Agreement with immediate effect by providing a written notice.