TERMS AND CONDITIONS
Please read these Affiliate Terms and Conditions carefully before applying to become an Affiliate, as they set out our and your rights and obligations in relation to our Affiliate Programme (as defined below).
You should print a copy of these Terms and Conditions for future reference. These Terms and Conditions replace all previous terms and conditions for the Affiliate Programme. Any changes to the Agreement (as defined below) shall be published by the Merchant on its website from time to time. Your continued participation in the Affiliate Programme following any change to the Agreement will constitute a binding acceptance of such changes. If you do not agree with any such changes, you should terminate this Agreement in accordance with clause 12.
These Terms and Conditions have been updated on 3rd October 2018
1. DEFINITIONS AND INTERPRETATION
1.1 In the Agreement:
“Acceptance Email” means an email sent by the Merchant to the Affiliate in accordance with this Agreement, confirming that the Affiliate has been accepted into the Affiliate Programme.
“Account” means the account which the Merchant has opened for the Affiliate while it provides Services for the Merchant, and which shows 1) what Commission (if any) the Affiliate is owed by the Merchant; 2) the analytics information relating to the Affiliate’s performance of the Agreement; and 3) other administrative details about the relationship between the Affiliate and the Merchant.
“Accounting Date” means the date where the Commission payable to the Affiliate is calculated.
“Affiliate” “You” and “Your” means the person specified as the applicant for our Affiliate Programme on the Registration Form, who has been accepted by the Merchant as a member of the Affiliate Programme and is in receipt of an Acceptance Email to verify the same.
“Affiliate Programme” means the Spotlight Online Gaming Limited affiliate programme as detailed in the Agreement.
“Affiliate Website” means the website or websites owned and operated by the Affiliate and specified by the Affiliate on the Registration Form.
“Agreement” means the agreement between the Merchant and the Affiliate incorporating these Terms and Conditions, the Registration Form and the Acceptance Email, and any amendments to the Agreement from time to time.
“Associated Company” means in relation to any company any subsidiary or holding company, or any subsidiary of such holding company, or any other entity controlling or controlled by such company.
“Affiliate Section” means the section of www.fableaffiliates.com to which the Affiliate has been granted access as set out in clause 3.5.
“Brand Marks” means the trademarks and logos of the Merchant and any of the Merchant Websites as made available to the Affiliate by the Merchant and as set out more specifically in Schedule 2 or provided from time to time to the Affiliate.
“Confidential Information” means all confidential commercial, financial, marketing, business and technical or other data, including know-how, trade secrets, specifications, formulae, processes, business methods, drawings and all other confidential information of whatever nature (whether written, oral or in electronic form) concerning the business and affairs of either party or that either party obtains, receives or has access to as a result of the discussions leading up to, or the entering into, or performance of this Agreement, including any passwords or other login details supplied by the Merchant to the Affiliate from time to time.
“Commencement Date” means the date of the Acceptance Email.
“Commission” means the commission payable by the Merchant to the Affiliate in accordance with the Agreement as set out at Schedule 1.
“Data Protection Legislation” means the European Data Protection Directive 94/46/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the General Data Protection Regulation (GDPR), the Data Protection Act 2018 and any other applicable data protection legislation in force from time to time.
“Good Industry Practice” means all reasonable care, skill and diligence as may be expected from appropriately qualified and experienced persons with appropriate skill and experience in providing services of a similar scope, type and nature to the Services.
“Force Majeure Event” means an event, or a series of related events, that are outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, denial of service attacks, virus or other malicious software infections or attacks, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars).
“Intellectual Property Rights” means all intellectual property rights and interests including: copyrights, patents, database rights and rights in trademarks, designs, know-how, moral rights, database rights, domain names, topography rights and confidential information or any similar rights exercisable in any part of the world (whether registered or unregistered) for the duration of their full terms (including any renewal or extension thereof); and applications for registration and the right to apply for registration, for any of these rights; and all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world.
“Link” means a hyperlink (whether in text or in an image or otherwise) from the Affiliate Website to the Merchant Website enabling the Merchant to track visitors from the Affiliate Website to the Merchant Website using its affiliate tracking system; a hyperlink is either: (i) provided or made available to the Affiliate by or on behalf of the Merchant; or (ii) created by or on behalf of the Affiliate, which link is approved by the Merchant in writing in advance.
“Merchant” “we” and “our” means Spotlight Online Gaming Limited incorporated in England and Wales with company No 07063458 whose registered address is 10 South Parade, Third Floor, Leeds LS1 5QS and each of its Associated Companies.
“Merchant Website” means the websites (or any one of the websites as applicable), and any device specific versions of such website, operated and controlled by the Merchant currently as set out in Schedule 2 and any other websites as notified by the Merchant to the Affiliate from time to time.
“Month” means a calendar month
“Payment” means payment of Commission.
“Potential Player” means anyone who accesses the Affiliate Website and the Merchant Website through a Valid Click.
“Player” means anyone who accesses the Merchant Website through a Valid Click.
“Prohibited Materials” means content, works or other materials that constitute, or that the Merchant reasonably determines constitute:
(a) material that breaches any applicable laws, regulations or legally binding codes;
(b) material that infringes any third party Intellectual Property Rights or other propriety rights of a third party;
(c) indecent, violent, obscene, pornographic, child pornographic or lewd material;
(d) material that is offensive or abusive, or is likely to cause annoyance, inconvenience or anxiety to another internet user;
(e) computer viruses, spyware, trojan horses or other malicious or harmful routines, programs or software;
(f) spam or unsolicited bulk email or unsolicited commercial email; material that will or is likely to damage the reputation of the Merchant.
“Promotional Content” means all content promoting the Merchant Website to Players and Potential Players that is:
(a) made available to the Affiliate by the Merchant; and
(b) created by or on behalf of the Affiliate, which content is approved by the Merchant expressly in writing in advance.
“Registration Form” means the form on fableaffiliates.com enabling users to apply to become Affiliates.
“Services” means the affiliate services as defined in clause 3.
“Term” means the term of the Agreement, which commences on the Commencement Date and continues until this Agreement is terminated in accordance with clause 12.
“Valid Click” means a click on a Link on an Affiliate Website that results in the Merchant Website being viewable to the relevant Potential Player or Player, as recorded by the Merchant’s systems.
“Working Day” a day, other than a Saturday, Sunday or public holiday in England, when banks in England are open for business.
1.2 In this Agreement:
1.2.1 a reference to a statute or statutory provision includes a reference to: that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and any subordinate legislation made under that statute or statutory provision;
1.2.2 a reference to a person shall be deemed to include natural persons and their personal representatives, successors and permitted assigns, companies and other bodies corporate, unincorporated associations, partnerships, firms and government bodies, governments, states and any other organisations (whether or not in each case having separate legal personality);
1.2.3 a reference to “in writing” or “written” shall include email.
1.3 clause headings do not affect the interpretation of the Agreement.
1.4 The terms “including”, “include” and “in particular” are to be construed without limiting the words that precede them.
1.5 A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in sections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of:
(a) another person (or its nominee) by way of security or in connection with the taking of security; or
(b) its nominee.
For the purposes of determining whether a limited liability partnership is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be construed so that: (a) references in sections 1159(1)(a) and (c) to voting rights are to the members’ rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.
2. THE AGREEMENT
2.1 In order to apply to become an Affiliate, the applicant must complete and submit the Registration Form.
2.2 An Agreement will only come into force if and when the Merchant sends to the Affiliate the Acceptance Email, following the submission of a completed Registration Form by the Affiliate.
2.3 The Agreement will continue in force indefinitely, unless and until terminated in accordance with Clause 7.5 or 12.
2.4 By entering into this Agreement, the Affiliate agrees to provide the Services to the Merchant.
2.5 The Affiliate acknowledges that Regulations 9(1), 9(2) and 11(1) of the Electronic Commerce (EC Directive) Regulations shall not apply to this Agreement.
3. AFFILIATE SERVICES
3.1 The Affiliate shall:
3.1.1 post one or more Links for the Merchant Websites selected by the Affiliate on the Affiliate’s website, and the Affiliate shall maintain at least one Link on the Affiliate Website during the Term to the Merchant Website; and
3.1.2 otherwise use its reasonable endeavours to promote the Merchant Websites in such a way as the Merchant determines from time to time, subject to and in accordance with the terms of this Agreement.
3.2 The Affiliate shall ensure that it shall always use the most up-to-date Links made available or approved in writing by the Merchant from time to time.
3.3 If the Merchant requests any change to the Affiliate’s use, positioning or presentation of the Links from time to time, the Affiliate shall promptly comply with such request.
3.4 The Affiliate shall only place Links on websites set out in the Affiliate’s Registration Form. The Affiliate shall not place any Links on any other websites without the Merchant’s prior express written consent.
3.5 The Affiliate will be given a password and other appropriate login details to access to a section on the website www.fableaffiliates.com, where the Affiliate during the Term will be able to:
3.5.1 alter the Affiliate’s Account details and preferences;
3.5.2 access analytics information relating to the Affiliate’s performance;
3.5.3 download code to use as Links; and
3.5.4 subject to clause 6.2 monitor at any given time what Commission (if any) the Affiliate is owed.
4. AFFILIATE OBLIGATIONS
4.1 The Affiliate shall:
4.1.1 provide the Services in accordance with Good Industry Practice;
4.1.2 meet and maintain all registration requirements throughout the Term;
4.1.3 be at least 18 years of age or if the Affiliate is a body corporate that it shall not have any shareholders (or any beneficial owners of its shares) below the age of 18;
4.1.4 ensure that its website is not confusingly similar with the look and feel of the Merchant Websites;
4.1.5 comply with
(a) Data Protection Legislation;
(b) rules, regulations and codes of conduct governing gaming activity in the relevant jurisdiction and
(c) all other relevant rules and regulations in force from time to time in force, which relate to the Affiliate’s activity in the relevant jurisdictions.
4.1.6 advise the Merchant promptly of any of any changes in the legal and beneficial ownership, business address, registered address and company No of the Affiliate and
4.1.7 at all times ensure that any and all information which the Affiliate provide in accordance with this Agreement during the Term is accurate in every respect.
4.2 The Affiliate will provide the Merchant with
4.2.1 such co-operation, information and documents as required by the Merchant (acting reasonably) in connection with the Affiliate Programme
4.3 The Affiliate shall not:
4.3.1 include any Prohibited Materials on the Affiliate Website, or include any hyperlink to any Prohibited Materials on the Affiliate Website;
4.3.2 market the Affiliate Website using spam or unsolicited emails or other unsolicited communications, or using any form of spyware, parasite ware, adware or similar software, or using any other antisocial or deceptive methods;
4.3.3 increase or seek to increase the number of events which would require the Player to make payments using any fraudulent or deceptive method;
4.3.4 provide information of another person with the intention of impersonating that person or deceiving the Merchant or other Affiliates as to its true identity;
4.3.5 drive pay-per-click traffic to the Merchant Website or another Affiliate’s website, including via any search engine, directory or online database by bidding on search terms, key words or other identifiers related to a Merchant Website;
4.3.6 use any promotional content or hyperlinks other than approved Promotional Content or Links in relation to the Merchant Website;
4.3.7 send any promotional offers relating to the Merchant Website (or in any other way target) to recipients under the age of 18 or such age as may apply in specific jurisdictions in relation to gaming laws;
4.3.8 deliberately market to individuals located in any territory from which the Merchant does not accept Players;
4.3.9 send any promotional offers relating to the Merchant Website to people who have not willingly submitted their email address and opted-in to receive promotional material or carry out any other activity which would breach any Data Protection Legislation or any other relevant rules or regulations. All marketing communications must contain clear information about the identity of the Affiliate and shall provide details of how the recipient can unsubscribe and the contact details of the Affiliate.
4.4 The Affiliate shall not take any action in connection with the Affiliate Programme which might reasonably be expected to lead to the possibility of damage to the reputation and goodwill of the Merchant (and any Associated Company) and/or the Merchant Website.
4.5 On the Merchant’s request, the Affiliate shall promptly at the Affiliate’s cost provide to the Merchant such information as the Merchant may reasonably require to enable monitoring of the Affiliate’s compliance with the terms of this Agreement.
4.6 The Affiliate shall
1) promptly at the Affiliate’s cost notify the Merchant by email to [email protected] of any known or suspected unauthorized uses of its Account, or any known or suspected breach of security, including loss, theft or unauthorized disclosure of its email and/or password (all together “Security Breach”); and
2) assist at the Affiliate’s cost with any investigation (public or private) which is necessary as a consequence of the Security Breach.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Subject to the Affiliate’s compliance with the terms of this Agreement, the Merchant hereby grants to the Affiliate during Term a worldwide, non-exclusive, revocable, royalty-free license to reproduce the Links electronically and to publish the Links on the Affiliate Website for the purpose of performing the Services.
5.2 The Affiliate shall use the Links at all times in accordance with any and all Brand Guidelines in respect of the Merchant Website(s) as provided to the Affiliate by the Merchant from time to time and in accordance with the terms of this Agreement.
5.3 The Merchant does not warrant that the use of the Links by the Affiliate will not infringe any third party Intellectual Property Rights or give rise to any other liability on the Affiliate.
5.4 The Affiliate shall not make any alteration to or modification of any of the Links or Brand Marks without the express prior written consent of the Merchant and/or its licensors (as applicable).
5.5 The Affiliate acknowledges and agrees that, other than in accordance with the licenses granted to it pursuant to this clause 5:
5.5.1 it neither has nor at any point during the Term obtains any right, title or interest in the Intellectual Property Rights of the Merchant or its licensors (including but not limited to the Merchant Website, Brand Marks and the Links); and
5.5.2 all right, title and interest (including goodwill) arising from the Affiliate’s use of the Merchant’s or its licensors’ Intellectual Property Rights will vest in the Merchant or its licensors (as applicable).
5.6 The Affiliate shall not do, cause or authorize to be done, anything which in the Merchant’s reasonable opinion will or may in any way impair, damage or be detrimental or otherwise adversely affect the reputation or goodwill associated with the Merchant, the Brand Marks, or the Intellectual Property Rights of the Merchant (or its licensors) or any Associated Companies (or any of their respective licensors). The Affiliate shall not use the Intellectual Property Rights of the Merchant (or its licensors) or any Associated Companies (or any of their respective licensors) in any manner likely to cause harm to the validity or enforcement of those Intellectual Property Rights.
6. PAYMENT AND CALCULATION OF COMMISSION
6.1 In consideration of the provision of the Services, the Merchant shall pay to the Affiliate the Commission.
6.2 The Commission shall be calculated by the Merchant on a monthly basis at the end of each month during the Term in accordance with Schedule 1. Except in the case of manifest error or fraud, the Merchant’s calculation of Commission shall be final.
6.3 The Commission (if any) payable to the Affiliate for a month will be ready to be viewed in the Affiliate Section within 4 Working Days from the end of the relevant month. The Commission (if any) payable will be paid in UK Pounds sterling or Euro by bank wire within the 25th day of the month following the month in which the Commission (if any) is earned. If on that day banks in the UK are closed, payment shall be made the following Working Day.
6.4 The Affiliate shall be responsible for all payment of all VAT, sales or other taxes due under any and all applicable laws as a result of the Commission paid to the Affiliate by the Merchant. Upon request, the Affiliate shall provide the Merchant with such evidence as the Merchant may require to evidence settlement of all and any taxes due on the Affiliate’s Commission.
6.5 An Affiliate which is VAT registered in the United Kingdom or the European Union must supply the Merchant with a VAT invoice covering the Commission due to it on a monthly basis. The VAT invoice must include the Affiliate’s VAT number, business name, business address and Affiliate reference number. The Merchant must receive the invoice by the [6th] of the month immediately after the calendar month to which the Commission relates. If no VAT invoice is received as set out in this paragraph, the Merchant will treat the Affiliate’s Commission as VAT inclusive and pay to the Affiliate the Commission amount only. In these circumstances the Merchant will be under no obligation to make any retrospective adjustments to Commission payments made.
6.6 The Affiliate shall notify the Merchant immediately if it ceases to be registered for VAT, transfers its business as a going concern or becomes registered for VAT under a different VAT registration number.
6.7 If the Merchant is required by law to deduct withholding tax or any other taxes or duties from any Commission, then the Merchant will deduct such amounts from the Commission before paying them to the Affiliate.
6.8 In the event that the Commission payable is less than £100, the Affiliate shall not receive any Commission for that month, but the amount shall be carried forward to the following month and be paid with the Commission for that month if the total amount is £100 or more.
6.9 Subject to clauses 6.10 if the Commission is negative in a month, the Affiliate shall not be entitled to the payment of Commission, but the balance of the Commission shall be reset to £0.0 at the beginning of the following month.
6.10 If the balance of the Commission is negative with £5,000 or more at the end of a month, this balance shall not be reset, but shall be carried over to the following month (the “Deferred Balance”). The Deferred Balance shall be set off against any claim for Commission in the following months until the balance of the Deferred Balance is £0.0.
6.11 No Commission shall be due in respect of:
6.11.1 any visits to or actions upon the Merchant Website made by or on behalf the Affiliate; any Associate Company of the Affiliate; any employee, agent or officer of the Affiliate or; or any natural person related to any of the above;
6.11.2 any amount received by the Merchant by means of the fraudulent or unlawful use of a credit, debit or other payment card, or by any other fraudulent or unlawful means; or
6.11.3 any payments on the Merchant Website which are subsequently cancelled, refunded, reversed, or charged-back; or
6.11.4 any Player who already has an account on the Merchant Website, and the Merchant; or
6.11.5 any Player who is otherwise judged by the Merchant at its sole discretion to be deliberately abusing or attempting to abuse bonus and promotional schemes or otherwise acting in bad faith and contrary to site rules.
6.12 The Affiliate agrees to promptly repay to the Merchant on demand any monies already paid to it in error together with all legal costs and other expenses incurred by the Merchant in investigating the matter and recovering any losses it has suffered.
6.13 Both before and after termination, the Merchant will be entitled to set off any amount owed to the Affiliate against any amount the Affiliate owes to the Merchant whether under the Agreement or otherwise, and against any loss or damage suffered by the Merchant whether in relation to the Agreement or otherwise arising out of the Affiliate’s acts or omissions.
7.1 Each party warrants to the other party that it:
7.1.1 has the legal right and authority to enter into and perform its obligations under the Agreement
7.2 The Affiliate warrants, represents and undertakes (as applicable) that its website(s) and any content thereon:
7.2.1 is not aimed or targeted at children or anyone under the age of 18 or any other prohibited age in any relevant jurisdiction;
7.2.2 does not infringe the rights (including the Intellectual Property Rights) of any third party;
7.2.3 is solely owned by the Affiliate
7.2.4 all information provided to the Merchant before the Agreement came into force in the Registration Form or in any other prior communication to the Merchant is complete and accurate in every respect.
7.3 The Affiliate warrants, represents and undertakes (as applicable) that:
7.3.1 it will comply at all times with any Brand Guidelines made available to the Affiliate by the Merchant from time to time for any Merchant Websites for which the Affiliate provides services from time to time;
7.3.2 it has obtained and will maintain throughout the Term all necessary registrations, authorisations, consents and licenses to enable it to fulfil its obligations under this Agreement;
7.3.3 it will not make any application to register any trade or service mark, business name, company name or domain name which contains or is similar to any Intellectual Property Right of the Merchant or a Merchant Website;
7.3.4 it will perform its obligations under this Agreement in accordance with Good Industry Practice;
7.3.5 it will not make, and it will procure that none of its employees make, any defamatory or derogatory statements about, or take part in any activities which are or might reasonably be perceived by the Merchant to be derogatory or detrimental to the reputation of the Merchant Websites, the Merchant or any of its Associated Companies;
7.3.6 it will comply with all relevant laws, rules and regulation including Data Protection Legislation and rules, regulations and codes of conduct governing gaming activity in the relevant jurisdiction, and that it will not take part in or in any way facilitate any tax evasion or breach of any relevant anti money laundering rules;
7.3.7 it will not
1) intercept or complete any registration form submitted by Players or potential Players to the Merchant (and/or any other communications between any such persons and the Merchant); and
2) it will not intercept, redirect or otherwise interfere with traffic from any other Merchant affiliate website or Merchant Website.
7.4 The Merchant does not provide any warranties of any kind express or implied, including warranties of the ability and fitness for a particular purpose of the Merchant Websites, unless such warranties are legally incapable of being excluded. The Merchant does not guarantee that:
7.4.1 the Merchant Website will be uninterrupted or error-free;
7.4.2 there are no viruses or other harmful components on or in the Merchant Websites;
7.4.3 defects on or in the Merchant Website will be corrected;
7.4.4 the security methods employed on or in the Merchant Websites will be sufficient; or
7.4.5 any content on the Merchant Website(s) is correct, accurate, or reliable.
7.4.6 that any particular level of Commission (or any at all) can be achieved.
7.5 Notwithstanding clause 13 the Merchant reserves the right to discontinue, withdraw, terminate or modify the Merchant Website(s) included in the Affiliate Programme or any part thereof at any time without notice or further liability to the Affiliate if any relevant rules or regulations are introduced which makes it illegal to operate the Merchant Website and/or the Affiliate Programme. The Merchant shall not in any way be liable to the Affiliate for any loss incurred in that regard, and the Merchant shall only be obliged to pay any Commission due as calculated at the date, where the relevant legislation comes into force to the Affiliate.
8.1 Without prejudice to the Merchant’s other rights or remedies under this Agreement, the Affiliate will on demand fully indemnify and keep indemnified the Merchant, the Merchant’s Associated Companies, affiliates, employees, officers and directors (“Agents”) from and against any and all losses, damages, costs, expenses, liabilities and claims (including legal expenses) incurred by or awarded against the Merchant or any of its Agents due to or in connection with any breach by the Affiliate of any provision of this Agreement.
9. LIMITATIONS AND EXCLUSIONS OF LIABILITY
9.1 Nothing in this Agreement shall exclude or limit either party’s liability for:
9.1.1 death or personal injury resulting from its negligence or the negligence of its employees or agents;
9.1.2 fraud or fraudulent misrepresentation;
9.1.3 limit any liability of a party in any way that is not permitted under applicable law; or
9.1.4 exclude any liability of a party that may not be excluded under applicable law.
9.2 The limitations and exclusions of liability set out in this Clause 9 and elsewhere in the Agreement:
9.2.1 are subject to Clause 9.1;
9.2.2 govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty.
9.3 The Merchant, its Agents or Associated Companies shall not be liable to the Affiliate or to any third party in contract, tort (including negligence) or howsoever arising for:
9.3.1 any special, indirect or consequential loss or damage;
9.3.2 loss of revenues, profits, contracts, use, production, business or anticipated savings;
9.3.3 loss of goodwill or reputation;
9.3.4 loss of commercial opportunities;
9.3.5 any loss or corruption of any data, database or software;
9.3.6 any losses arising out of a Force Majeure Event,
Whether or not such losses were within the contemplation of the parties at the date of this Agreement.
9.4 The Merchant’s total aggregate liability to the Affiliate in relation to any event or series of related events will not exceed the total amount paid and payable by the Merchant to the Affiliate under the Agreement during the 12 month period immediately preceding the event or events giving rise to the claim.
9.5 The Merchant shall not be liable to the Affiliate for any losses of the Affiliate whatsoever arising from the non-availability, lack of functionality or loss of use of the Merchant Website.
9.6 To the maximum extent permitted by applicable law and subject to Clause 9.1, no other terms concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
10.1 Each party undertakes that it will not at any time hereafter use, divulge or communicate to any person, except to its professional representatives or advisors or as may be required by law or any legal or regulatory authority or any other relevant competent authority in any jurisdiction, the terms and conditions of this Agreement or any Confidential Information concerning the business or affairs of the other party or its Associate Company to which the other party belongs which may have or may in the future come to its knowledge.
10.2 Notwithstanding clause 10.1, the Merchant shall be entitled to disclose Confidential Information relating to the Affiliate to third party complainants or their professional advisers, if the Merchant believes, it its sole discretion, or if a third party alleges, that an Affiliate:
10.2.1 has infringed the rights of the Merchant or any third party;
10.2.2 is in breach of any applicable law or regulatory requirement;
10.2.3 has sent or caused to be sent any form of spam; or
10.2.4 or otherwise breached the Agreement
11. FORCE MAJEURE EVENTS
11.1 Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under this Agreement, those obligations will be suspended for the duration of the Force Majeure Event.
11.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement, will promptly notify the other.
11.3 The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.
11.4 If the period of delay or non-performance continues for 6 months, the party not affected may terminate this Agreement by giving30 days’ written notice to the affected party.
12.1 This Agreement shall commence on the Commencement Date and remain in effect until terminated in accordance with clauses 7.5, 12.2, 12.3 or 12.5.
12.2 Either party may terminate the Agreement immediately at any time by giving 3 months written notice to the other party.
12.3 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
(c) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company);
(h) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(j) the other party (being an individual) is the subject of a bankruptcy petition, application or order;
(k) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
(l) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 12.3(d) to Clause 12.3(k) (inclusive);
(m) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
(n) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their own affairs or becomes a patient under any mental health legislation; or
(o) there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).
12.4 In the event that the Affiliate’s actions or status would give the Merchant the right to terminate the Agreement under clause 12.3, the Merchant may instead elect to suspend the Agreement (including disabling the Link) and withhold any Payment to the Affiliate until the Affiliate has remedied the circumstances which entitled the Merchant to terminate under clause 12.3.
12.5 Without affecting any other right or remedy available to it, the Merchant shall be entitled to terminate the Agreement with immediate effect, if the Affiliate has been unable to generate more than £30 Commission in each of the preceding 3 months before the Merchant terminates the Agreement in accordance with this provision.
13. EFFECTS OF TERMINATION
13.1 Upon termination:
13.1.1 the Affiliate shall no longer be entitled to access the Merchant Website;
13.1.2 the Affiliate must promptly remove and cease to use all of the Brand Marks, all Promotional Content and disable all Links;
13.1.3 all rights and licenses given to the Affiliate in this Agreement shall immediately terminate; and
13.1.4 within 5 Working Days of termination of this Agreement, the Affiliate must immediately return to the Merchant or destroy at the Merchant’s request all the property in the Affiliate’s possession or under its control that belongs to the Merchant or its Associated Companies or any of its licensors.
13.2 If the Agreement is terminated 1) by the Merchant in accordance with clauses 7.5, 12.3 or 12.5 or 2) by the Affiliate in accordance with clause 12.2, the Agreement terminates when the notice is served or at the expiry of the relevant notice period (as case may be), and the Affiliate must take the actions set out in clause 13.1 immediately upon termination.
13.3 If the Merchant has terminated the Agreement in accordance with clause 12.2, the Affiliate can continue receiving Commission for a period up to 12 months from the date of termination from Players who signed up before the termination was served. In such instances the Affiliate would only be obliged to take the actions stated in clause 13.1 at the expiry of the 12 month period and the Affiliate and the Merchant will be bound by the Agreement for that 12 month period.
14.1 Any notice given under the Agreement must be in writing (whether or not described as “written notice” in the Agreement) and must be delivered personally, sent by email, for the attention of the relevant person, and to the relevant email address specified on the Registration Form (in the case of the Affiliate) or to (in the case of the Merchant) (or as notified by one party to the other in accordance with this Clause).
14.2 A notice will be deemed to have been received at the relevant time set out below:
14.2.1 where the notice is delivered personally, at the time of delivery;
14.2.2 where the notice sent by recorded signed-for post, 48 hours after posting; and
14.2.3 where the notice sent by email, at the time of the transmission (providing the sending party retains written evidence of the transmission).
14.3 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
14.4 If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
14.5 Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the parties. The Affiliate shall not make any statement on the Affiliate Website or otherwise which expressly or impliedly suggest that there is any such relationship between the parties.
14.6 The Agreement may be varied by the Merchant posting a new version of the Agreement on the Merchant Website and notifying the Affiliate in writing that the Agreement has been varied.
14.7 The Merchant may freely assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this Agreement.
14.8 This Agreement is for commercial use only, and neither the Affiliate nor its employees, or their family members, friends or associates may make purchases, directly or indirectly, through the Links for its or their own personal use or to fraudulently increase the Affiliate’s Commission.
14.9 Affiliates will not knowingly benefit from known or suspected traffic not generated in good faith whether or not it actually causes damage to the Merchant. In such circumstances the Merchant reserves the right to withhold any Commission due to the Affiliate if Merchant has reasonable cause to believe that such traffic has been caused with the Affiliate’s knowledge.
14.10 Except in so far as expressly provided in this Agreement, a person who is not party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this Agreement.
14.11 Save as provided for in clause 8, the Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
14.12 This Agreement constitutes the entire agreement and understanding of the parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the parties relating to the subject matter of the Agreement. Subject to Clause 7.2.3 and 9.1, each party acknowledges that no representations or promises not expressly contained in the Agreement have been made by or on behalf of the other party.
14.13 This Agreement will be governed by and construed in accordance with the laws of England and Wales and the courts of England and Wales will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with it.
SCHEDULE 1: REVSHARE COMMISSION
“Gross Gaming Revenue” means total Qualifying Player wagering minus Qualifying Player winnings (including accrued progressive jackpots) relating to the Merchant Websites for which the Affiliate has elected to provide the Services.
“Net Gaming Revenue” means Gross Gaming Revenue minus any and all:
(a) operating costs (including costs relating to third party platform operators, game operators and any other third party service providers) of the Merchant Website;
(b) payment and card processing fees;
(c) funds added to Qualifying Players’ Accounts, excluding winnings, to incentivise Qualifying Players to increase their deposits and/or turnover (including bonus money and loyalty schemes);
(d) invalid, fraudulent or disputed card or debit payments, including where a card company or the payment bank has claimed payment back from the Merchant;
(e) applicable taxes; and (f) all payments made by and revenues associated with any Qualifying Player that at any time makes an invalid, fraudulent or disputed payment.
“Qualifying Player means a Player who during the Term plays on the relevant Merchant Website, and who is referred by the Affiliate because of the Qualifying Player using a Valid Click.
The Affiliate is entitled to a Commission of 40% of the Net Gaming Revenue generated by Qualifying Players per month as calculated and paid in accordance with clause 6.
BRAND MARKS AND MERCHANT WEBSITES
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