Affiliate Program Terms and Conditions

Definitions

  • “Account” means the account opened by the Company in the name of the Affiliate.
  • “Advertising Codes of Practice” the UK code of broadcast advertising (BCAP code), the UK code of non-broadcast advertising, sales promotion and direct marketing (CAP Code) and the Gambling Industry Code for Socially Responsible Advertising.
  • “Agreement” means (i) all the terms and conditions set out in this document, (ii) the Commission Structure applicable to the different products if agreed between the parties in writing, (iii) the General Terms and Conditions (iv) any other rules and/or guidelines of the Company and/or the Operator Websites made known to the Affiliate from time to time.
  • “Affiliate” means you, the person or entity, who  participates in the Affiliate Program.
  • “Affiliate Application” means the application form whereby the Affiliate applies to participate in the Affiliate Program.
  • “Affiliate Program” means the collaboration between the Company and the Affiliate whereby the Affiliate will promote the Operator Websites and create the Links from the Affiliate Website(s) to the Operator Websites and thereby be paid the Commission depending on the traffic generated to the Operator Websites subject to the terms and conditions of the Agreement and to the applicable product-specific Commission Structure.
  • “Affiliate Website(s)” means one or more websites on the Internet which are maintained and operated by the Affiliate.
  • “SuprNation” means the Company, the Operator and any of its group companies.
  • “Commission” means the percentage of the Net Revenue as set out in the Commission Structure.
  • “Commission Structure” means the commission structure contained under paragraph 8 below or any specific commission structure expressly agreed between the Company and the Affiliate.
  • “Company” means SuprMedia Ltd, a company incorporated in Gibraltar with registration number 119577 and address:
    SuprMedia Ltd
    Suite 3, 2nd Floor
    Icom House
    1/5 Irish Town
    Gibraltar
  • “Confidential Information” means any information relating to the business, systems, operations, customers, assets or affairs of the other party, or any of its group companies, including, but without limitation, financial reports and condition, trade secrets, know-how, prices, business information, products, strategies, databases, information about New Customers, other customers and users of the Operator Websites, technology, marketing plans and manners of operation, but which shall not include any information which: (a) was in the public domain at the time of its disclosure; (b) became part of the public domain after its disclosure, otherwise than through a breach of confidence; or (c) was independently known by a party at the time of the disclosure to that party.
  • “Data Protection Laws” means all applicable data protection law and regulations in any jurisdiction, including the Data Protection Act 1998, the General Data Protection Regulation (“GDPR”) and the Electronic Communications (EC Directive) Regulations 2003 (as may be updated and amended from time to time)
  • “Excluded Person” means the Affiliate; any group company of the Affiliate  (if applicable); any officer, employee, agent, contractor or consultant of the Affiliate; any relative or close friend of the Affiliate; or any of the Affiliate’s officers, employees, agents, contractors, or consultants.
  • [“General Terms and Conditions” means SuprNation’s general terms and conditions.]
  • “Intellectual Property Rights” means any copyrights, patents, trademarks, service marks, inventions, domain names, brands, business names, utility brands, rights in computer software, source codes, rights in databases and know-how, design rights, Confidential Information, registrations of the aforesaid and/or any other rights whether registered or not anywhere in the world.
  • LCCP” the licence conditions and codes of practice applicable to the Operator’s operating licence as updated from time to time by the Gambling Commission.
  • “Links” means Internet hyperlinks from the Affiliate Website(s) to the Operator Websites.
  • “Net Revenue” means all monies received by the Operator from a New Customer who has accessed the Operator Websites through the Affiliate’s websites in relation to casino activities less (a) monies paid out to that New Customer as winnings, (b) bonus payouts (but excluding bonuses retracted), (c) administration fees, (d) fraud costs, (e) charge-backs, (f) returned stakes and (g) monies paid out as duties or taxes; and
  • “New Customer” means a new, first-time customer (other than an Excluded Person) using any of the Operator Websites having made a first deposit amounting to at least the applicable minimum deposit required on the Operator Websites into a betting account in accordance with the applicable terms and conditions of the relevant Operator Website.
  • “Operator” means SuprPlay Ltd, a company incorporated in Malta with registration number C-74595.
  • “Operator Websites” means the online gaming websites operated and/or managed by the Operator.
  • “Parties” means the Company and the Affiliate (each a “Party”).
  • “Personal Data” shall have the meaning as set out in the GDPR.

1          Introduction

1.1       The Company is responsible for the marketing services of the Operator and other group entities which offer betting and casino services through the Operator Websites.

1.2       The Affiliate maintains and operates the Affiliate Website(s).

1.3       The Agreement sets out the general terms and conditions of the Affiliate Program and is entered into between the Company and the Affiliate.

1.4       By completing and submitting the Affiliate Application the Affiliate accepts, and agrees to abide by, all the terms and conditions of the Agreement and any Company policies relating to marketing, GDPR or any other subject matter as directed by the Company. The Affiliate shall also abide by any marketing rules applicable in any jurisdictions where the Company offers its services.

1.5       These terms and conditions shall be binding on both parties once the Affiliate Application has been approved and accepted by the Company and the Company has notified the Affiliate that the Affiliate Application has been accepted in accordance with paragraph 2.

2          Acceptance of Affiliate

2.1       The Company shall evaluate the Affiliate Application submitted by the Affiliate and shall notify the Affiliate in writing (by email) whether the Affiliate Application is accepted or not. The Company reserves the right to refuse any registration in its sole and absolute discretion and without a requirement to give any reasons for its decision. Affiliates who have signed up to the SuprAffiliates Programme shall fill in the due diligence form and present relevant the form and any supporting documentation accordingly as outlined in the form to SuprNation within 30 days, and this before an affiliate can be accepted into the programme. Failure to present this information within the required timeline shall result in the suspension of any existing affiliate account until such time as the required information is presented accordingly. The Company also reserves the right to request updated due diligence from time to time, and requires to be notified by the Affiliate should any key information change, including contact details of the Affiliate. The Due Diligence Form shall include requests for information pertaining to the Affiliate company and owner information, and also information in regard to internal policies and compliance measures of the Affiliate, including but not limited to the areas of marketing compliance and data protection.

2.2       The Company may refuse any Affiliate Application and/or may close any Affiliate Account if, in its sole opinion, it is necessary to comply with the Company’s policy and/or to protect the interests of the Company. If the Affiliate is in breach of the Agreement, the Company may, as well as closing the Affiliate Account, take any other steps at law to protect its interest. In the event that the Company refuses any Affiliate Application or closes an Affiliate Account, it has no obligations to notify the Affiliate or provide details of any reason for doing so.

3          Qualifying Conditions

3.1       The Affiliate warrants that:

(a)        it has, and will retain throughout the term of the Agreement, capacity and authority to enter into the Agreement, to grant the rights and perform all its obligations in the Agreement;

(b)       it has obtained and will maintain in force all necessary registrations, authorisations, consents and licenses necessary to fulfill its obligations under the Agreement; and

(c)        it fully understands and accepts the terms and conditions of the Agreement;

(d)       it will market on behalf of the Company in compliance with relevant laws and guidance pertaining to marketing and data protection of the relevant jurisdiction at all time and in accordance with the Company’s remote gambling license held in the UK, Sweden and Malta.

4          Responsibilities and Obligations of the Company

4.1       The Company shall provide the Affiliate with all information and marketing material necessary for the implementation of the Links.

4.2       The Company shall administrate the turnover generated via the Links, record the net revenues and the total amount of Commission to be paid to the Affiliate and provide the Affiliate with Commission statistics. A unique tracking identification code will be assigned to all New Customers.

4.3       The Company shall operate and handle all customer services related to the business of the Company.

4.4       The Company shall pay the Affiliate the Commission depending on the traffic generated  in accordance with paragraphs 8 and 9.

5          Company’s Rights to refuse or close accounts and applicants

5.1       The Company may refuse any applicant (who would have become a New Customer) or close any New Customer’s account if, in its sole opinion, it is necessary to comply with the Company’s terms and conditions, policy and/or to protect the interests of the Company. In such circumstances the Company will not be liable to pay the Affiliate any Commission in respect of such New Customer.

5.2.      The Company reservices the right to take any additional steps as afforded to it by law besides closing the Affiliate account as necessary in order to protect its interests.

6          Responsibilities and Obligations of the Affiliate

6.1       The Affiliate warrants and undertakes:

(a)        to use its best efforts to actively and effectively advertise, market and promote the Operator Websites as widely as possible in order to maximize the benefit to both parties, at all times in accordance with the terms set out in the Agreement;

(b)       to market and refer potential players to the Operator Websites at its own risk, cost and expense. The Affiliate will be solely responsible for the distribution, content, legality, compliance obligations and manners of its marketing activities. All of the Affiliate’s marketing activities must be professional, proper and lawful under all Applicable Laws and in accordance with the Agreement;

(c)        that it will not undertake any activity which would constitute the provision of facilities for gambling;

(d)       that it will not place digital advertisements on websites providing unauthorised access to copyrighted content and that the Affiliate will take all reasonable steps to ensure that third parties with whom they contract for the provision of any aspect of their business related to the licensed activities do not place digital advertisements on websites providing unauthorised access to copyrighted content, and to also ensure that the terms upon which they contract with such third parties enable them, subject to compliance with any dispute resolution provisions, to terminate the third party’s contract promptly if, in the Licensee’s reasonable opinion, the third party has been responsible for placing digital advertisements for the licensed activities on such websites;

(e)        That it should the Affiliate need to provide user interfaces enabling customers to access their remote gambling facilities, the Affiliate shall include a term that any such user interface complies with the UK Gambling Commission’s technical standards for remote gambling systems;

(f)        to use only links provided within the scope of the Affiliate Program;

(g)        to be responsible for the development, the operation, and the maintenance of the Affiliate Website(s) as well as for all material appearing on the Affiliate Website(s);

(h)       that it will not perform any act, and that the Affiliate Website(s) neither does nor will contain any material, which is libelous, discriminatory, obscene, unlawful or otherwise unsuitable or which contains sexually explicit, pornographic, obscene or graphically violent materials;

(i)         that it will not actively target any person who is under the legal age for gambling, and shall not provide facilities for gambling which are meant to appeal particularly to children or young people;

(j)         that it will not actively target any jurisdiction where gambling and the promotion thereof is illegal nor any jurisdiction not fully authorized in writing by the Company;

(k)        that it acknowledges the Company’s ongoing commitment for the prevention of gambling addiction and that it will co-operate with the Company at all times in relation to its social responsibility policies and messaging to players; ;

(l)         that it will not generate traffic to the Operator Websites by illegal or fraudulent activity, particularly but not limited to by:

(i)         sending spam communications in breach of any Data Protection Laws;

(ii)        registering as a player or making deposits directly or indirectly to any player account through his tracker(s) for 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 Commission payable or to otherwise defraud the Company; and

(iii)       presenting the Affiliate Website(s) in such a way that it might evoke any risk of confusion with the Operator Websites and/or the Company or convey the impression that the Affiliate Website(s) is partly or fully originated with/from the Operator Websites and/or the Company;

(m)      subject to the marketing material as may be forwarded by the Company and/or made available online by the Company for use specifically in relation to the Operator Website and in accordance with the Agreement, the Affiliate may not use “Voodoodreams.com”, “nyspins.com” or “duelz.com” or other terms, trademarks and other Intellectual Property Rights of SuprNation unless the Company consents to such use in writing.

(n)       comply with all Applicable Laws at all times and undertake all of its activities as it the Affiliate itself was bound by the same licence conditions and codes of practice as the Company and the Operator, including (but not limited to) the LCCP, the Advertising Codes of Practice and the UK Gambling Commission’s remote gambling and software technical standards when targeting the UK market. The Affiliate shall also take note of any regulations and/or guidance as issued and/or instructed by the UK Advertising Standards Authority and Committees of Advertising Practice (in relation to marketing and advertising of gambling) and the UK Competition and Markets Authority (in relation to fairness of terms, with a particular focus on bonus promotions). The Affiliate must also comply with all Swedish legislation pursuant to the Company’s Swedish licence including the Sweden Gaming Act (2018:1138), the Swedish Marketing Act ( 2008:486), instructions from Konsumentverket (the Consumer Agency in Sweden) in terms of marketing in a compliant manner in Sweden, the SPER/BOS guidelines, and TU’s gambling recommendations: https://tu.se/tu-in-english/. Finally, the affiliate shall also ensure to comply with the Malta Gaming Commercial Communications Regulations (2018) here (https://www.mga.org.mt/wp-content/uploads/Gaming-Commercial-Communications-Regulations-2018.pdf ) when targeting jurisdictions which fall under the Company’s Malta B2C licence for remote casino as issued by the Malta Gaming Authority.

(o)       In addition, the Company shall also provide the Affiliate with guidance in terms of UK and Sweden marketing compliance as annexed hereto and expects the affiliate to be in full compliance with the same, provided that it shall remain the Affiliate’s responsibility to ensure that all laws and compliance obligations are followed when marketing on the Company’s behalf at all times;

Swedish marketing policyUK marketing policyBOS and SPER Marketing Guidelines 2.1

(p)       within 24 hours of notification from the Company, remove any self-excluded customer from its marketing database and take all reasonable steps to immediately cease all marketing communications to that individual;

(q)       comply with all Data Protection Laws at all times and any privacy statements or policies published by the Company at any time; and

(r)        co-operate with the Company and provide assistance when reasonably requested to ensure that the Company and the Operator are able to comply with their licensing and regulatory obligations, including providing all information and documentation which may be reasonably requested by the Company promptly on receipt of such request.

6.2       The Company reserves the right to freeze the Affiliates Account and/or deduct money from the Affiliate if any traffic is deemed to have been referred through fraudulent means or in breach of the terms and conditions of the Agreement.

7          Affiliate Account

7.1       Before an Affiliate can start using the Affiliate Program, it will need to open an account (“Account”). 

7.2       To open an Account the Affiliate must provide all the information, which is requested on the Affiliate Application.

7.3       As part of the Affiliate Application, the Affiliate must choose a username (which can be an email address) and a secret password, known only to the Affiliate, and which the Affiliate must keep strictly confidential and must not disclose to anybody else.

7.4       All Accounts are non-transferable. The Account may only be used by the individual who created it and not by anyone else. The Company reserves the right to terminate any Account if it has reason to believe that the Account details are being used by anyone other than the Affiliate and/or the Affiliate has not kept its password confidential.

7.5       In consideration of the Company accepting the Affiliate’s Application to open an Account, the Affiliate warrants that:

(a)        if the Affiliate is an individual, he is 18 years of age or over;

(b)       if the Affiliate is an individual, he is of sound mind and capable of taking responsibility for his own actions;

(c)        it has the authority and capacity to enter into a legally binding contract with the Company;

(d)       the details submitted in the Application are true, accurate and not misleading; and

(e)        will, at all times whilst holding an Account, comply with all applicable legislation in the United Kingdom and, if different, in the jurisdiction in which the Affiliate is located.

7.6       It is the Affiliate’s responsibility to keep its contact details up-to-date on its Account.  The Company may, from time to time, send important information using the details that have been provided to the Company. If those details are incorrect or not up-to-date the Affiliate may not receive important information relating to its Account.

8          Commission Structure

8.1       The Commission structure, unless otherwise agreed in writing by the parties in accordance with paragraph 9.11, shall be as follows:

New Customer/month Affiliate’s Net Revenue share
0-5 25%
6-15 30%
16-35 35%
36+ 40%

8.2       Commission shall be paid by the Company to the Affiliate in accordance with the percentage thresholds set out in the table at paragraph 8.1, which shall be dependent on the number of New Customers which sign up to the Operators Website via the Affiliate Website in accordance the Agreement in that relevant calendar month.

9          Payment

9.1       The Company shall pay the Affiliate the Commission. The Commission shall be deemed to be inclusive of value added tax  and all other applicable taxes.

9.2       The Commission is calculated at the end of each calendar month and payments shall be made between the 5th-10th of the following calendar month, provided that the amount due exceeds €50 (the “Minimum Threshold”) or equivalent. If the balance due is less than the Minimum Threshold, it shall be accumulated and carried over to the following month and shall be payable when the total Commissions collectively exceeds the Minimum Threshold.

9.3       Payment of the Commission shall be made in accordance with the payment method chosen by the Affiliate in the Affiliate Application. If an error is made in the calculation of the Commission, the Company reserves the right to correct such calculation at any time and will promptly pay out any underpayment or reclaim overpayment made to the Affiliate on becoming aware of such error.

9.4       The Affiliate’s acceptance of the payment of the Commission shall be deemed to constitute the full and final settlement of the balance due for the relevant period.

9.5       If the Affiliate disagrees with the balance due as reported, it shall notify the Company in writing within thirty (30) days of the date of receipt of the Commission and state the reasons of the disagreement. Failure to notify the Company within the prescribed time limit shall be deemed to be considered as an irrevocable acknowledgment of the balance due for the period indicated.

9.6       The Company’s decision on the attribution of a New Customer to the Affiliate shall be final and binding.

9.7       The Company may in its sole discretion withhold the payment of any balance to the Affiliate for up to one hundred-and-eighty (180) days if the Company needs to investigate and verify that the relevant transactions comply with the provisions of the Agreement.

9.8       No payment shall be due if the Company has reasons to believe that the traffic generated by the Affiliate is illegal or is in breach of any of the provisions of the Agreement, or is otherwise “bad traffic”.

9.9       The Affiliate agrees to return all Commissions received based on fraudulent or falsified transactions and indemnify the Company for all costs and losses incurred in relation to such transactions (including, but without limitation, legal fees and costs).

9.10     The Company reserves the right to set limits for a minimum level of activity on an Affiliate’s Account. The Company shall notify the Affiliate of any such threshold at the time of accepting the Affiliate’s Application and opening the Affiliate’s Account. Such minimum activity levels will be continuously reviewed and the Company reserves the right to close any Account that does not reach the limit. Such limit shall not be unreasonably high and basically reflect the intention of avoiding accounts where the revenue does not cover the Company’s internal costs for maintaining the Account and the payout procedure.

9.11     The Affiliate may, at the sole discretion of the Company, be provided with the opportunity to restructure its commission structure. Examples of alternative commission structures could include a Cost Per Acquisition (CPA) Module. However, and for the avoidance of doubt, only one type of commission structure for the same product may be applied at the same time. Therefore, once an Affiliate accepts the Company’s offer to apply a new commission structure, different to the standard Commission Structure detailed in the Agreement, the Affiliate hereby agrees and understands that the new proposed commission structure shall replace his existing commission structure in its entirety. Notwithstanding the above, the Affiliate’s obligations assumed under the Agreement will still continue to apply to the Affiliate even if a new commission structure is applicable.

9.12     The Affiliate shall have the sole responsibility to pay 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 as a result of the compensation generated under the Agreement. The Company shall under no circumstances whatsoever be held liable for any such amounts unpaid but found to be due by the Affiliate and the Affiliate shall indemnify the Company in that regard.

10        Affiliate Website(s) and the Links

10.1     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 Operator Websites at any particular time or any particular location and the Company shall not be liable for any Commission or any other payments in the event that a New Customer is prevented from signing up as a result of any such issues with access to the Operator’s Website. 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 Operator Websites or the Affiliate Program.

10.2     During the term of the Agreement, the Links shall be prominently displayed on the Affiliate Website(s) in accordance with what is agreed between the Company and the Affiliate.

10.3     The Company has the right to monitor the Affiliate Website(s) in order to ensure the Affiliate’s compliance with the Agreement and the Affiliate shall promptly provide the Company with all data reasonably requested in order to perform such monitoring.

10.4     The Affiliate shall not register or purchase domain names, keywords, search terms or other identifiers for use in advertising or search or referral services which are similar or identical with the trademarks of the SuprNation or which include the word “Voodoodreams” or variations thereof.

10.5     The Affiliate shall not take any action which could cause any confusion as to the Company’s or the Operator Websites’ relationship with the Affiliate and the Affiliate Website(s).

10.6     The Affiliate will keep at its principal place of business, throughout the term of the Agreement and for a period of five (5) years thereafter, all records, together with all supporting documentation, which relate to the performance and its compliance with the Agreement, including details of all Commission paid or due to be paid to the Affiliate.

10.7     The Company (and any authorised representatives of the Company) shall be entitled, on reasonable notice, to reasonable access (during normal business hours) to the Affiliate’s principal place of business to inspect and audit the records and take copies of such records, for the sole purpose of ascertaining compliance of the Affiliate with the Agreement.

11        Termination

11.1     Notwithstanding paragraph 11.2, the Agreement may be terminated by either Party by giving thirty (30) days written (by email) notice to the other Party, the expiry of which shall be the “Termination Date”.

11.2     Without limiting any of the Company’s other rights, the Company may terminate the Agreement with immediate effect on written (by email) notice to the Affiliate if:

(a)        the Affiliate commits a material breach of any term of the Agreement and (if such a breach is remediable) fails to remedy that breach within 15 days of being notified in writing to do so;

(b)       the Affiliate does, or omits to do, or may be considered to be doing (in the reasonable opinion of the Company) anything that puts the Company or the Operator in breach of:

(i)         the LCCP;

(ii)        its operating license or any other gambling license held by the Company or the Operator;

(iii)       any Advertising Code of Practice or any Applicable Laws in the UK;

(iv)       any relevant legislation in Malta and Sweden applicable to the Company by way of its license conditions as further detailed in clause 6.1 paragraph (n) above;

(c)        the Affiliate continues to persistently breach terms of the Agreement in a manner which is not in good faith in relation to the relationship between the Company and the Affiliate; 

(d)       the Affiliate, if an individual becomes bankrupt, or if a corporate takes any step or action in connection with entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or

(e)        the Company is required to do so by the UK Gambling Commission or any other relevant authority.

11.3     A material breach of the Agreement, for the purposes of paragraph 11.2 above, includes (but is not limited to):

(a)        a breach of any Applicable Laws;

(b)       a breach of any Advertising Code of Practice;

(c)        a breach of the LCCP;

(d)       a breach of any relevant legislation in Malta and Sweden applicable to the Company by way of its license conditions as further detailed in clause 6.1 paragraph (n) above;

(e)        sending marketing materials to any self-excluded customer notified to the Affiliate by the Company;

(f)        committing a criminal offence;

(g)        committing fraud;

(h)       using any of the Company’s or the Operator’s Intellectual Property Rights improperly or without  a license or consent to do so; or

(i)         bringing the reputation of the Company or the Operator into disrepute.

11.4     The Parties hereby agree that on termination of the Agreement:

(a)        the Affiliate must remove all references to the Operator Websites from the Affiliate Website(s) and communications, irrespective of whether the communications are commercial or otherwise;

(b)       all rights granted to the Affiliate under the Agreement shall immediately terminate and the Affiliate shall cease the use of any Intellectual Property owned by the Company and the Operator ;

(c)        the Affiliate will only be entitled to such Commission that is earned but unpaid as of the Termination Date  provided that the Company may withhold the Affiliate’s final payment for a reasonable time to ensure that the correct amount is paid and that no other sums are due and outstanding by the Affiliate to the Company. The Affiliate will not be eligible to earn or receive Commission after the Termination Date;

(d)       if the Agreement is terminated by the Company in accordance with paragraph 11.2, the Company shall be entitled to withhold part or all of the Affiliate’s earned but unpaid Commission as of the Termination Date and set it off against any claim arising from such breach;

(e)        the Affiliate must return to the Company any and all Confidential Information  and Company data (and all copies and derivations thereof) in the Affiliate’s possession, custody and control; and

(f)        the Affiliate will release the Company from all obligations and liabilities occurring or arising after the Termination Date, 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 the Agreement, which occurred prior to termination and/or to any liability arising from any breach in relation to Confidential Information even if the breach arises at a time following the Termination Date.

11.5     Termination of the Agreement will not affect either Parties’ rights and remedies that have accrued as at termination.

11.6     Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.

12        Liabilities and Indemnification

12.1     Nothing in the Agreement limits or excludes either Party’s liability for:

(a)        death or personal injury caused by negligence;

(b)       fraud or fraudulent misrepresentation;

(c)        any indemnities contained in the Agreement; or

(d)       any other liability which cannot be limited or excluded by applicable law.

12.2     Subject to paragraph 12.1, the Company shall not be liable to the Affiliate, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement for:

(a)        loss of profits;

(b)       loss of sales or business;

(c)        loss of agreements or contracts;

(d)       loss of use or corruption of software, data or information;

(e)        loss of or damage to goodwill; and

(f)        any indirect or consequential loss.

12.3     Subject to paragraph 12.1, the Company’s total liability to you arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will be limited to the total amount of Commission paid to you under the Agreement in the 12 months preceding any such breach.

12.4     This paragraph 12 will survive termination of the Agreement.

12.5     The Affiliate agrees to defend, indemnify and hold the Company and its group companies including the Operator, their successors, officers, employees, agents, directors, shareholders and attorneys, free and harmless from and against any and all claims and liabilities, including reasonable legal and expert fees, related to or arising from:

(a)        any breach of the Affiliate’s warranties or obligations under the Agreement;

(b)       the Affiliate’s use (or misuse) of the marketing material and the Company’s Intellectual Property Rights;

(c)        any defamatory, libelous or illegal material contained on the Affiliate Website(s) or Affiliate’s information and data;

(d)       any claim or contention that the Affiliate Website(s) or the Affiliate’s information and data infringes any third party’s Intellectual Property Rights violates any third party’s rights of privacy or publicity;

(e)        any claim received by the Company or the Operator related to the Affiliate Website(s) or the Links; and

(f)        any violation of any of the LCCP, the Advertising Codes of Practice, or the Applicable Laws, including the Data Protection Laws, or any violation of any relevant legislation in Malta and Sweden applicable to the Company by way of its license conditions as further detailed in clause 6.1 paragraph (n) above;

(g)        For the avoidance of doubt, should any fine be awarded to the Company by the UK Gambling Commission, the Swedish Gambling Authority, the Malta Gaming Authority or any other relevant authority due to the Affiliate’s breach of legislation and/or compliance obligations, the Affiliate shall be liable for such fine and shall make payment to the Company accordingly.

12.6     The Company and its group companies reserves the rights to participate, at its own expense, in the defense of any matter or claim in relation to the above.

13        Force Majeure

Neither party shall be liable to the other for any delay or failure to perform its obligations under the 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 the Agreement with immediate effect by providing a written notice.

 

14        Confidentiality

14.1     All Confidential Information shall be treated confidential and must not be used for own commercial or other purposes or shared to any person or third party neither direct nor indirectly without the prior explicit and written consent of the Company.

14.2     The Affiliate shall not use the Confidential Information for any purpose other than the performance of its obligations under the Agreement.

14.3     The Affiliate and any members of its staff or any other third parties it contracts with in order to fulfil its obligations under this Agreement shall be bound by the same level of confidentiality as though the information were the Affiliate’s information, and therefore at the highest standard of confidentiality possible.

14.4     This paragraph 14 shall survive the termination of the Agreement.

14.5     Should the affiliate be in breach of this clause, it shall be liable to a penalty of fifty thousand (EUR50,000) per breach.

15        Intellectual Property

15.1     Nothing contained in the Agreement will grant either Party any right, title to or interest in the Intellectual Property Rights of the other Party. For the avoidance of doubt, nothing in the Agreement shall constitute any assignment, transfer or any other right to any Intellectual Property Rights.

15.2     All Intellectual Property Rights created and/or deriving from the 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.

15.3     At no time during or after the term of the Agreement, no Party will 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.

16        Data Protection

16.1     The Affiliate warrants and undertakes that:

(a)        it has a justifiable legal ground on which to process all Personal Data in accordance with the Agreement;

(b)       it has, where required, valid consents from individuals in respect of the processing of their Personal Data; and

(c)        it has all requisite data protection licenses and registrations in all relevant jurisdictions to collect and deal with Personal Data.

17        Relationship of the Parties

Nothing contained in the Agreement, nor any action taken by any party to the Agreement, shall be deemed to constitute either party (or any of such party’s employees, agents, or representatives) as an employee, agent or legal representative of the other party, nor to create any partnership, joint venture, association or syndication among or between the Parties, nor to confer on either party any express or implied right, power or authority to enter into any agreement, commitment or to impose any obligation on behalf of the other party.

18        Miscellaneous

18.1     In case of any discrepancy between the meanings of the English version of the Agreement and any non-English translation of the Agreement, the English version shall prevail.

18.2     Should one of the contractual provisions in the Agreement be or become invalid or unenforceable, such provision will be replaced by one which shall come as close as possible to the commercial purpose of the void provision. All other provisions of the Agreement shall continue in full force and effect.

18.3     No waiver in relation to the Agreement will be implied from conduct or failure to enforce any rights and all waivers must be in writing to be effective.

18.4     Any notice given or made under the Agreement to the Company shall be sent by email to and marked for the attention of the Affiliate Manager of the Operator Websites 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.

18.5     The Affiliate may not assign the Agreement or any rights hereunder, by operation of law or otherwise, without the prior written consent of the Company. The Company may assign the Agreement and all its rights hereunder to any group company or third party.

18.6     The Company’s failure to enforce the Affiliate’s adherence to all terms outlined in the Agreement shall not be construed to constitute a waiver of the right to enforce such right.

19        Amendments to the Agreement

The Company reserves the right to, at any time and at its sole discretion, with or without giving any prior notice to the Affiliate, amend, alter, delete or add any of the provisions of this Agreement. If applicable, 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.

20        Governing Law & Jurisdiction

The validity, construction and performance of the Agreement and any claim, dispute or matter arising under or in connection to the Agreement or its enforceability shall be governed and construed in accordance with the laws of Malta. Each Party irrevocably submits to the Malta Arbitration Centre, Malta, over any claim, dispute or matter under or in connection with this Agreement and/or its enforceability.