TERMS AND CONDITIONS
THE TERMS GOVERNING YOUR USE OF THE OPERATOR'S PROGRAMME ARE SET OUT IN THESE TERMS AND CONDITIONS (THE "AGREEMENT"). THE TERMS OF THE AGREEMENT ARE CURRENT TO 1 JUNE 2020. PLEASE READ THEM CAREFULLY AND IN PARTICULAR ENSURE YOU UNDERSTAND AND ARE COMPLIANT WITH YOUR OBLIGATIONS IN THIS AGREEMENT.
If you have any questions, please email email@example.com.
2.2 In this Agreement (except where the context otherwise requires):
2.2.1 any reference to a "subsidiary" or "holding company" is to be construed in accordance with the provisions of the OBCA;
2.2.2 any reference to a "party" means a party to this Agreement and includes its permitted assignees and/or the respective successors in title to substantially the whole of its undertaking;
2.2.3 any reference to a "person" includes any natural person, individual, company or other body corporate, firm, corporation, association, partnership, organisation, foundation, trust, government, state or agency of a state or any undertaking (whether or not having separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists);
2.2.4 any reference to a statute, statutory instrument, rule or regulation or any of its provisions is to be construed as a reference to that statute, statutory instrument, rule or regulation or such provision as the same may have been or may from time to time hereafter be amended or re-enacted;
2.2.5 a reference to a statute or statutory provision is a reference to that statute or statutory provision and to all orders, regulations, instruments or other subordinate legislation made under the relevant statute;
2.2.6 words denoting the singular shall include the plural and vice versa and words denoting any gender shall include all genders;
2.2.7 any reference to "control" is to be construed in accordance with the provisions of the OBCA (and "controlling" and "controlled" shall be construed accordingly);
2.2.8 any phrase introduced by the terms "including", "include", "in particular", "for example", "such as" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
2.2.9 any reference to "writing" includes any methods of representing words in a legible form including writing on an electronic or visual display screen, such as email (and "written" shall be construed accordingly);
2.2.10 the clause headings are included for convenience only and shall not affect the interpretation of this Agreement; and
2.2.11 a reference to any website or webpage at a specified URL includes a reference to such website or webpage at any amended, updated or replacement URL from time to time.
2.3 Any schedules form part of the operative provisions of this Agreement and shall have effect as if set out in full in the body of this Agreement and any references to this Agreement shall, unless the context requires otherwise, include the schedules.
3. APPLICATION TO OPERATOR'S PROGRAMME
3.1 The Affiliate, where an individual, must be at the older of 19 years of age and the age of majority in the jurisdiction in which the Affiliate resides (such age referred to hereinafter as the "Legal Age") to be accepted into the Operator's Programme. Where the Affiliate is an incorporated company, the ultimate beneficial owners, directors and the person operating the Affiliate's Account must be at least of Legal Age. The Affiliate covenants and agrees that it shall comply with this clause and is of the legal age to enter into and be bound by this Agreement in its country of residence. The Affiliate further covenants and agrees that it is not precluded from participating in the Operator's Programme by the laws of the country in which it resides or is incorporated, as applicable, or by the laws of the country where the Services are made available.
3.2 Operator will review the Affiliate's application to participate in the Operator's Programme and may, in its sole discretion, request further information from the Affiliate and may accept or reject such application.
3.3 Operator may reject the Affiliate's application if the Affiliate Website, a Sub-Affiliate and/or any domain name or sub-domain owned or controlled by the Affiliate (whether used or intended to be used for the provision of the Affiliate Website or otherwise), and/or the Affiliates marketing activities or practices generate any content that: (i) contains any Prohibited Material; (ii) consists of, includes or is confusingly similar to any of the Brand Marks or Prohibited Terms; and/or (iii) appears to have been registered in bad faith. For the Affiliate to be accepted into the Operator's Programme, Operator may require that the Affiliate removes the foregoing material, and/or either transfers to Operator or its licensors or (in Operator's or such licensors sole discretion) deletes/removes any such domain name, sub-domain or content. The Affiliate shall inform Operator about any such domain name, sub-domain or content owned by the Affiliate or under its control at the time the Affiliate makes its application to participate in the Operators Programme.
3.4 This Agreement shall not be applicable to persons who will be providing advertising and marketing services to Operator in the general course of business but not acting as "gambling affiliates" as that term is generally used in the igaming industry ("Digital Media Companies"). Digital Media Companies shall instead enter into an agreement entitled "Insertion Order" (an "IO") with Operator or a third party authorized by Operator. Unless otherwise agreed, this Agreement shall also not be applicable to any person other than a Digital Media Company that enters into an IO with Operator or a third party authorized by Operator (notwithstanding such person's acceptance of the terms of this Agreement). In the event of conflict between the terms of this Agreement and the terms of an IO, the terms of the IO shall prevail (unless otherwise specified in the IO).
4.1 Subject to the Affiliate's compliance with this Agreement and Operator acceptance of the Affiliate into the Operators Programme, Operator grants to the Affiliate a non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable, royalty free licence, during the Term, to promote the agreed Brand Websites and/or the Operators Programme using the Links, Brand Marks and Promotional Content via the Marketing Channels, in each case solely in the manner directed or approved by Operator and in accordance with all Applicable Laws, any and all Brand Guidelines, and this Agreement, and solely for the purposes of referring the Affiliate's end users to the Brand Websites.
4.2 Operator shall specify the Brand Website(s) in association with which the Affiliate shall provide the Services. The agreed Brand Websites shall then be set out in the Affiliate's Account and/or specified in written notices to the Affiliate from Operator.
4.3 The Affiliate shall ensure that it shall only use and place on Affiliate Websites those Links, Brand Marks and Promotional Content that have been approved in writing by Operator, and shall always use the most up-to-date versions thereof as made available, provided or approved by Operator without alteration from time to time.
4.4 If Operator requests any change to the Affiliate's use and positioning of the Links, Brand Marks and/or Promotional Content and/or Marketing Channels from time to time, the Affiliate shall promptly comply with such request. The Affiliate shall promptly provide to Operator such information as Operator may reasonably request (i) to enable Operator to monitor the Affiliate's compliance with this Agreement and (ii) for regulatory purposes, including as may be requested by Operator in relation to any reports or information that Operator may wish or need to provide to any Gaming Authority.
4.5 The Affiliate shall use its best efforts actively and effectively advertise, market and promote the Brand Websites in accordance with this Agreement to maximise the financial benefit to the parties and make available the Promotional Content in prominent positions on the Affiliate Website as approved by Operator in writing, and shall bear all costs and expense incurred in connection with the same.
4.6 The Affiliate shall cease immediately all advertising, marketing or promotional efforts in any jurisdiction that Operator notifies the Affiliate to be a jurisdiction from which the Affiliate cannot accept Players.
5.1 In consideration for the performance of the Services, and subject to the terms of this Agreement, Operator will pay to the Affiliate:
5.1.1 the Affiliate Revenue Share; and/or
5.1.2 the Cost Per Acquisition; and/or
5.1.3 the Fixed Fee,
(together, the "Commission"), as such Commission is agreed between the parties as part of the application process, or as otherwise agreed in writing by the parties from time to time.
5.2 If Operator wishes to amend the quantum or means of calculation of the Commission, Operator shall send a written notice to the Affiliate with details of the proposed amendments (the "Changes"). The Affiliate shall have 5 business days from the date of such notice (the "Notice Period") to accept or reject the Changes. If the Affiliate rejects the Changes, it shall advise Operator in writing of its decision within the Notice Period. Upon receipt of a rejection notice from the Affiliate, Operator shall then have the right to either (i) terminate this Agreement, or (ii) maintain the Agreement in force without the Changes. If the Affiliate accepts the Changes, it shall advise Operator in writing of its decision within the Notice Period. Upon receipt of an acceptance notice from the Affiliate, the terms of this Agreement shall be deemed to have been amended accordingly as of the date of the Affiliate's acceptance notice. In the event that the Affiliate does not provide a response to Operator's proposed amendments within the Notice Period, the Agreement shall be deemed to have been amended to include the Changes with effect from the day after the expiry of the Notice Period.
5.3 The Affiliate shall not be entitled to any Commission after expiry or termination of this Agreement (including any "lifetime revenue share").
5.4 Any payments to be made by Operator under the terms of this Agreement may be made directly by Operator or indirectly by a Service Provider on behalf of Operator.
5.5 The Affiliate shall not be entitled to any Commission in respect of any of the Affiliate's end users that are referred to the Brand Websites having clicked the Links where those end users do not subsequently register as Players and deposit a minimum of CA$10 and play a Game or Bet a minimum of CA$0.01 per Player on each Brand Website.
5.6 If the Affiliate has a negative monthly balance, the Affiliate's monthly payable balance of the Commission is automatically reset to £0 (or, where applicable, the equivalent in another currency) at the beginning of each calendar month, to ensure that no negative balances are carried forward.
5.7 Operator shall make available to the Affiliate a monthly statement setting out the Commission payable by Operator to the Affiliate in accordance with this Agreement.
5.8 Subject to the terms of this Agreement, on or before the last day of each calendar month, Operator will pay the Commission due to the Affiliate in respect of the previous calendar month based upon the monthly statement setting out the Commission to the Affiliate's nominated bank account.
5.9 If the total Commission payable to the Affiliate in any calendar month is below CA$100 (the "Minimum Payout"), the amount of such Commission may not be paid to the Affiliate in respect of that calendar month and may instead accrue and be carried over until such time as the amount of the Minimum Payout has accrued as Commission, which shall then be paid to the Affiliate in the subsequent calendar month.
5.10 Without prejudice to clause 5.9, where the Affiliate has selected one of the following payment methods and the balance of the Commission due to the Affiliate is less than the following monthly payment thresholds in any calendar month (each, a "Payment Method Threshold"), the amount of such Commission may not be paid to the Affiliate in respect of that calendar month and may instead accrue and be carried over until such time as the amounts of the Payment Method Thresholds have accrued as Fees, which shall then be paid to the Affiliate in the subsequent calendar month:
5.10.1 international bank transfer CA$200 (or, where applicable, the equivalent in another currency);
5.10.2 UK bank transfer CA$25 (or, where applicable, the equivalent in another currency).
5.11 Operator may review the balance of the Commission due to the Affiliate every six (6) months during the Term. If at any review date the balance of the Affiliate's Account is less than CA$5 (or, where applicable, the equivalent in another currency), any Commission due to such Affiliate may, at Operator election, be declared void and the balance of its account in relation to any Commission owed shall be reset to £0.
5.12 The Affiliate agrees that Operator's Player tracking methods and/or Promotional Content tracking methods (including its use of the Links) are accurate and reasonable, and that all calculations of the Commission owed to the Affiliate made by Operator shall be final. Operator shall not be responsible for paying any Commission generated using incorrect Links and resulting in inaccurate or incomplete tracking of Players.
5.13 The Commission will be paid in Canadian dollars (CA$) by electronic bank transfer in respect of all Brand Websites in accordance with the bank details provided by the Affiliate in the Affiliate's Account. Without prejudice to the foregoing, the Fees may be displayed in a different currency in the Affiliate's Account on the Operator's Website where the Operator stipulates a different currency for such purpose. If the Affiliate requests payment in a currency other than Canadian dollars (CA$), the Affiliate shall bear the risk of any shortfall as a result of the currency conversion, as well as all costs associated with that conversion. Similarly, if the Affiliate's bank will only accept payments in a currency other than Canadian dollars (CA$), the Affiliate shall incur the cost of the currency conversion as well as any shortfall as a result of the conversion.
5.14 Except where clause 5.15 applies in circumstances where the Affiliate has provided incorrect bank details, the Affiliate shall be entitled but not obliged to charge interest on an overdue amount, from the due date up to the date of actual payment, at the rate of two percent (2%) per annum above the base rate for the time being of Barclays Bank Plc, provided that the Affiliate shall give written notice to Operator that the amount has not been paid, specifying the total amount of interest owed at the date of the notice and the daily rate at which the interest will continue to accrue, the invoice or invoices to which the interest relates, and the addresses to whom and details of the account to which payment should be made.
5.15 If the Affiliate provides incorrect bank details and a payment is unsuccessful and returned to Operator by its payment processor, Operator will investigate and notify the Affiliate and request corrected bank account details, and:
5.15.1 such unsuccessful payments will only be credited to the Affiliate's corrected account details once Operator has been notified by its payment processor that the payment has been successfully retrieved;
5.15.2 the bank charges associated with any such error shall be deducted from the Affiliate's Commission; and
5.15.3 from six months after Operator first contacted the Affiliate to request the Affiliate's correct bank details, Operator shall have the right but not any obligation to close an Affiliate's Account, terminate this Agreement and withhold any Commission owing.
5.16 Notwithstanding clause 5.15, Operator reserves the right to withhold payment of the Commission to the Affiliate if: (i) it believes or suspects that any transaction or other activity relating to any Link, the Operator's Website, the Affiliate Website, a Sub-Affiliate Website or any Brand Website is suspicious, fraudulent and/or involves or may involve financial crime or similar activity; (ii) there is a breach or suspected breach of this Agreement by the Affiliate; or (iii) Operator has reasonable grounds to believe that the relevant Services, activities or marketing which would have otherwise resulted in such Commission being payable were carried out in a manner which was not in accordance with legal or regulatory requirements. In such event, Operator reserves the right to retain indefinitely any revenues relating to that transaction or activity and any other revenues (including the Commission) relating to the Affiliate.
5.17 Any Commission calculation will exclude Net Gaming Revenue generated in respect of closed player accounts.
5.18 If a Player is banned from playing on a Brand Website for any reason, and Operator returns any deposited funds to that Player, the Affiliate will not be entitled to any Commissions that would have otherwise been earned by it in respect of the Net Gaming Revenue generated from such banned Player.
5.19 If a Player is being investigated for identity, address, bank information and/or credit card verification, Operator will withhold payment of any Commission earned by the Affiliate in respect of Net Gaming Revenue generated from such Player until such information has been verified to the satisfaction of Operator.
5.20 If the Affiliate fails to display online banners and/or advertising copy relating to Operator's Promotional Content in accordance with Operator's instructions, Operator shall have the right to withhold all Commission payments due to the Affiliate until Operator's instructions have been followed.
5.21 The Affiliate shall be responsible for paying any and all taxes due in connection with any payments made to the Affiliate, including complying with any rules for registering for, collecting and paying any chargeable income tax, value added tax, sales tax, turnover tax or similar taxes in the country where the Services are provided. The Affiliate acknowledges and agrees that all payments to the Affiliate shall be deemed to include all applicable value added tax, sales tax or turnover tax.
5.22 In the event that applicable law is amended to (i) introduce a taxation scheme that is applicable to the operation of any of the Brand Websites, or (ii) if such a scheme is already in place, an increase in the then-current taxation rate, Operator has the right to immediately and automatically reduce the Commission payable to the Affiliate under this Agreement by an amount that Operator deems reasonable under the circumstances. In the event that the change is not acceptable to the Affiliate, the parties shall, both acting reasonably, negotiate a reduction that is mutually acceptable. If the parties are not able to reach an agreement on this issue, the Affiliate may terminate this Agreement.
6. AFFILIATE ACCOUNTS
6.1 The Affiliate shall be responsible for:
6.1.1 keeping its bank account details up to date for the purpose of receiving any amounts payable to the Affiliate in accordance with this Agreement;
6.1.2 keeping its contact details including postal address, telephone number and email address, up to date for the purpose of receiving any notification set out in this Agreement;
6.1.3 maintaining the confidentiality of its email, password and all usage and activity on its account, including use of such account by a third party authorised by the Affiliate to use its account. Operator shall have no liability to reimburse the Affiliate for any amounts that were either removed or re-directed away from the Affiliate's Account where that Affiliate's Account is accessed by a third party as a result of or in connection with the Affiliate's failure to comply with this clause;
6.1.4 keeping Operator up to date on the details of all Affiliate Websites and Sub-Affiliate Websites through which it promotes any Brand Websites, including via a network of affiliates; and
6.1.5 providing Operator with any documentation requested by Operator to approve any changes in the details of its contact information, bank account, Affiliate Website, Sub-Affiliate Website and/or affiliate network.
6.2 The Affiliate shall notify Operator by email at firstname.lastname@example.org of any known or suspected unauthorised uses of its account, or any known or suspected breach of security, including loss, theft or unauthorised disclosure of its email and/or password.
6.3 The Affiliate agrees that Operator may rely on any data, notice, instruction or request furnished to it by the Affiliate or by a person reasonably believed by Operator to be authorised to act on the Affiliate's behalf.
6.4 Affiliate Websites that comprise cashback and incentive Websites are allowed to participate in the Operator's Programme provided that: (i) Operator reserves the right to limit the amount of cashback given away for all Brand Websites; and (ii) each cashback operator must make Operator aware of the nature of its Website as part of such operator's application to join the Operator's Programme so that Operator can evaluate such operators possible participation and approve or reject such application accordingly in Operator sole discretion.
7. AFFILIATE OBLIGATIONS
7.1 The Affiliate shall provide the Services in accordance with Good Industry Practice.
7.2 The Affiliate shall ensure all Promotional Content is compliant with Applicable Laws, the requirements of any applicable regulator (including any applicable Gaming Authority), the Brand Guidelines, the terms of this Agreement and Operator instructions given from time to time (including any guidance notes issued by Operator), and shall cooperate fully with Operator in the case of any investigation or ruling from any regulator (including any Gaming Authority). The Affiliate shall remove all Promotional Content, Brand Marks and/or Links where requested by Operator in accordance with the timelines provided by Operator. Once Operator has advised the Affiliate that a Website is no longer a Brand Website, the Affiliate shall not conduct any marketing for that former Brand Website that would bring the Operator or an Associated Party into disrepute or associate an Operator or an Associated Party with such former Brand Website against Operator's instructions. The Affiliate shall remove all Promotional Content, Brand Marks and/or Links where requested by Operator in accordance with the timelines provided by Operator for such former Brand Website.
7.3 Where the Affiliate publishes on any Affiliate Websites any advertising for the Brand Websites which is either: (i) intended to come to the attention of end users in the Territory; or (ii) likely to come to the attention of such persons, the Affiliate will ensure that such advertising complies with:
7.3.1 all applicable consumer protection laws;
7.3.2 all Applicable Laws and regulations related to gambling, in each case as updated, amended, replaced or superseded from time to time.
In complying with this clause and for the avoidance of doubt, Operator shall have the right to terminate this Agreement on written notice and without any liability to the Affiliate if, in Operator reasonable opinion, the Affiliate is in breach of the obligations set out in this clause.
7.4 The Affiliate shall comply with any applicable marketing codes and related guidance and, in particular, shall ensure that it shall at all times in relation to advertising for the Brand Websites:
7.4.1 take all reasonable steps to ensure that such advertising is not targeted at individuals under the Legal Age in the applicable jurisdiction either through selection of media, or content;
7.4.2 take into account the likely audience of such advertising and take steps to:
188.8.131.52 where such filters exist (e.g. age filters, interest filters that indicate a particular age bracket, account-logins with age verification or self-declaration), exclude under-19s to the extent possible from receiving or viewing such advertising; and
184.108.40.206 where filters do not exist, establish a minimum audience share of such advertising of 75% over-19s for general content, along with complete exclusion of children's/young people's media (e.g. children's pages of a generally over-19s website);
7.4.3 prevent such advertising being directed at adult audiences posing a risk to under-19s (e.g. adult content that young people are known to participate in (e.g. drinking/gambling/adult TV and cinema);
7.4.4 account for the fact that some audiences are likely to lie about their age, and put secondary filters in place at times when the target audience is similar to the restricted audience (e.g. adding interest filters that would select an older demographic, or the exclusion of interest filters or demographics with wide appeal to children or young people e.g. fashion brands, celebrities with wide youth appeal); and
7.4.5 be able to provide evidence that the Affiliate has, and has cooperated with Operator to have, been diligent in forecasting the likely audience and confident of the likely audience composition ahead of publishing adverts.
7.5 If, having obtained the prior written approval of Operator, the Affiliate markets and promotes the Brand Websites via social media, SMS or push notification, the Affiliate shall (and shall procure from any third party that provides such Services on behalf of the Affiliate that it shall):
7.5.1 provide the relevant marketing messages, Links, Brand Marks and/or Promotional Content to Operator at least two (2) weeks prior to the target send date in the format requested by Operator to enable Operator to approve the same;
7.5.2 only send such marketing to its marketing list once Operator has provided prior written approval of the same on the day before the target send date;
7.5.3 include Operator on its marketing list and send all such marketing to Operator each time it uses such marketing;
7.5.4 only send such messages to recipients who have willingly and explicitly consented to receive marketing from the Affiliate in relation to the Brand Websites, in accordance with applicable Data Protection Laws, such consent having been reaffirmed by the recipient at least within the last 12 months;
7.5.5 clearly display a message in each such communication to state who is sending such marketing communications (and confirm they are not being sent by the applicable Brand Websites);
7.5.6 clearly display an unsubscribe feature in each such communication, clearly detailing methods of unsubscribing from the mailing list;
7.5.7 not send any promotional offers relating to the Operator's Website or the Brand Website to recipients under the Legal Age;
7.5.8 comply with Data Protection Laws; and
7.5.9 at least once every six months, and in any event on Operator request, provide written evidence to Operator of its compliance with this clause.
7.6 If, having obtained the prior written approval of Operator, the Affiliate markets and promotes the Brand Websites via email, the Affiliate shall (and shall procure from any third party that provides such Services on behalf of the Affiliate that it shall):
7.6.1 provide the relevant email wording, Links, Brand Marks and/or Promotional Content to Operator at least two (2) weeks prior to the target send date in the format requested by Operator to enable Operator to approve the same;
7.6.2 only send emails to its marketing list once Operator has provided prior written approval of the same on the day before the target send date;
7.6.3 include Operator on its marketing list by copying email@example.com to the relevant email, and send all email marketing to Operator each time it uses email marketing;
7.6.4 only email recipients who have willingly and explicitly consented (and have not subsequently withdrawn their consent) to receive marketing from the Affiliate in relation to the Brand Websites, in accordance with applicable Data Protection Laws, such consent having been reaffirmed by the recipient at least within the last 12 months;
7.6.5 clearly include the header of the applicable Brand Website in every email (incorporating the relevant Brand Marks);
7.6.6 clearly display a message in the header of each such email to state who is sending such marketing communications (and confirm they are not being sent by the applicable Brand Website);
7.6.7 clearly display an unsubscribe feature in each such email clearly detailing methods of unsubscribing from the mailing list;
7.6.8 perform suppression of all email recipient lists against the suppression software tools of Operator Suppression Provider (as defined below), and in accordance with any Operator instructions, before each send of email marketing, to remove applicable email addresses from its list (and only send emails to such suppressed list);
7.6.9 accept and comply with the terms and conditions of Operator third party suppression software provider as is stipulated by Operator from time to time (the "Suppression Provider"), including by:
220.127.116.11 not reverse engineering (whether manually or digitally) supressed lists of emails and other contact details;
18.104.22.168 fully cooperating with the Suppression Provider in connection with carrying out suppression activities for the purposes of this Agreement;
22.214.171.124 not making compilations, deductions or inferences from such suppressed lists or any other information provided by the Suppression Provider;
126.96.36.199 not using any information provided by the Suppression Provider or any suppressed lists for any purpose other than the fulfilment of Operator suppression requirements; and
188.8.131.52 not running any more queries using the Suppression Provider than are necessary to fulfil Operator requirements;
7.6.10 comply with Data Protection Laws; and
7.6.11 at least once every six months, and in any event on Operator request, provide written evidence to Operator of its compliance with this clause.
7.7 If the Affiliate uses any social media platform to market and promote the Brand Websites, the Affiliate shall (and shall procure from any third party that provides such Services on behalf of the Affiliate that it shall) fully comply with such social media platform's terms and conditions (as may be updated from time to time).
7.8 If any form of spam, unsolicited email, spamvertising or spoofing or other unauthorised email direct marketing is sent (or alleged to have been sent) by or on behalf of the Affiliate, Operator may, at its sole discretion, terminate this Agreement (and all other agreements with such Affiliate) immediately on written notice to the Affiliate and withhold all funds then due. Operator may incur expenses in dealing with complaints and other issues arising from any spam generated mail sent by or on behalf of the Affiliate and these expenses may, at Operator sole discretion, be deducted from the Commission from time to time. Should these expenses not be covered by the Commission, the Affiliate hereby agrees to indemnify and hold harmless Operator and the Associated Parties from and against all losses, demands, fines, penalties (including any fine or penalty imposed by a Gaming Authority), damages, costs, expenses (including reasonable legal costs and expenses and VAT thereon), liabilities and claims (including any claims from Players) suffered or incurred, directly or indirectly, by or awarded against Operator or any Associated Parties in consequence of or in connection with any breach by the Affiliate of this clause.
7.9 The Affiliate shall not provide the information of another person with the intention of impersonating that person or deceiving Operator as to its true identity.
7.10 Without prejudice to clause 7.9, the Affiliate shall meet and maintain all Player registration requirements relating to the Brand Website.
7.11 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 their own personal use or to fraudulently increase the Commission or for other fraudulent purposes, for example by registering as Players of the Affiliates.
7.12 The Affiliate will not knowingly benefit from known or suspected traffic not generated in good faith whether or not it actually causes damage to Operator. Operator reserves the right to retain indefinitely any amounts due to the Affiliate under this Agreement if it has reasonable cause to believe that such traffic has been caused by or as a result of an act or omission of the Affiliate.
7.13 If the Affiliate wishes to advertise the Brand Websites via an affiliate network, it must receive Operator's consent in writing first and grant Operator access to an advertiser account on the platform of its affiliate network, through which all marketing of the Brand Websites must be accessible to Operator.
7.14 If the Affiliate wishes to contract with a Sub-Affiliate, it shall not to do so until it has obtained Operator's written consent to the Affiliate sub-contracting to the proposed sub-affiliate. Operator shall have the right to stipulate specific terms regarding the agreement between the Affiliate and the proposed sub-affiliate. The Affiliate shall provide Operator with a copy of the proposed agreement between the Affiliate and the proposed sub-affiliate for its review and revision. At the request of Operator, the Affiliate shall cause a Sub-Affiliate in its affiliate network to enter into a direct agreement with Operator on the same or equivalent terms as this Agreement. For the avoidance of doubt, Operator shall not be liable for any payment to any Sub-Affiliate nor shall Operator pay any commission to the Affiliate in respect of any Sub-Affiliate.
8.1 Each party represents and warrants to the other that it has and will retain throughout the Term all right, title and authority to enter into this Agreement, to grant to the other party the rights and licences granted in this Agreement and to perform all of its obligations under this Agreement.
8.2 The Affiliate warrants, represents and undertakes (as applicable) in respect of the Affiliate Website, any Sub-Affiliate Websites and the Services (and shall procure that each Sub-Affiliate warrants, represents and undertakes (as applicable) in respect of the relevant Sub-Affiliate Website) on a continuing basis that:
8.2.1 the Affiliate Website, any Sub-Affiliate Websites, any content thereon, and any domain name or sub-domain associated with the Affiliate Website or any Sub-Affiliate Websites:
184.108.40.206 are not aimed at children;
220.127.116.11 do not contain any Prohibited Material or (other than as permitted by this Agreement) any Brand Mark or Prohibited Term;
18.104.22.168 does not infringe the rights (including the Intellectual Property Rights) of any third party; and
22.214.171.124 are solely owned and/or controlled by the Affiliate;
8.2.2 it will only make available the Promotional Content in the Territory and target the Promotional Content at internet protocol addresses in the Territory only;
8.2.3 it will not deliver or otherwise make available the Promotional Content adjacent to any Prohibited Material or any other content notified by Operator to the Affiliate from time to time on any Website (together, the "Editorial Adjacency Guidelines"). In the event that any Promotional Content appears on the Affiliate Website or a Sub-Affiliate Website in violation of the Editorial Adjacency Guidelines, the Affiliate warrants, represents and undertakes that it will correct such violation promptly in accordance with Operator's instructions (and no later than within 24 hours), including by removing the Promotional Content if instructed to do so.
8.2.4 it will comply at all times with any and all applicable Brand Guidelines;
8.2.5 it has obtained and will maintain all necessary registrations, authorisations, consents and licences to enable it to fulfil its obligations under this Agreement;
8.2.6 it will not make any application to register any trade or service mark, business name, company name, domain name or sub-domain which consists of, includes or is confusingly similar to any Brand Mark, Prohibited Term or Intellectual Property Right of Operator or a Brand Website or the Operator's Website;
8.2.7 it will perform its obligations under this Agreement in accordance with Good Industry Practice;
8.2.8 it will not make, and shall 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 to be derogatory of or detrimental to the reputation of the Brand Websites, Operator, or any Associated Parties; or
8.2.9 it has complied prior to the date of this Agreement, and will comply, with all Applicable Laws, including Data Protection Laws and its obligations set out in clauses 7, 15 and Schedule 1;
8.2.10 the Affiliate Website and the Sub-Affiliate Website includes privacy and cookie notices that shall comply with all Applicable Laws, and that it shall adhere to these.
8.2.11 it has not violated and will not violate any Applicable Laws, including but not limited to all laws relating to gaming in the Territory;
8.2.12 it will not intercept or complete any registration form submitted by Players or potential Players to Operator (and/or any other communications between any such persons and Operator);
8.2.13 it will not intercept, redirect or otherwise interfere with traffic from any other Operator affiliate Website;
8.2.14 all information it submits to Operator on the application form and in all other communications between the parties is complete and accurate; and
8.2.15 it shall enter into agreements with its Group Companies, Sub-Affiliates, any third party service providers and any third party sub-contractors to which it sub-contracts the performance of any part of its obligations under this Agreement to procure that each such Sub-Affiliate and sub-contractor shall comply with the terms of this Agreement.
8.3 The Operator's Website, Brand Marks, Links, Promotional Content and the Brand Websites are provided on an as is and as available basis, without warranties of any kind, either express or implied, including implied warranties of the ability and fitness for a particular purpose of the Operator's Website and the Brand Websites, unless such warranties are legally incapable of exclusion.
9.1 Without prejudice to Operator's other rights or remedies under this Agreement, the Affiliate and each Sub-Affiliate, shall fully indemnify and hold harmless Operator and the Associated Parties from and against all losses, demands, fines or penalties (including any fine or penalty imposed by a Gaming Authority), damages, costs, expenses (including reasonable legal costs and expenses and VAT thereon), liabilities and claims (including any claims from Players) suffered or incurred, directly or indirectly, by or awarded against Operator or any Associated Parties in consequence of or in connection with:
9.1.1 a breach by the Affiliate of clause 5 (Services) or clause 7 (the Affiliate Obligations);
9.1.2 a breach by the Affiliate of any of the warranties set out in clause 8 (Warranties);
9.1.3 a breach by the Affiliate of clause 11 (Intellectual Property);
9.1.4 a breach by the Affiliate of clause 15 (Data Protection) or Schedule 2 (Data Processing Terms);
9.1.5 a breach by the Affiliate of any other provision of this Agreement;
9.1.6 any violation of an Applicable Law by the Affiliate or any claim or allegation that the Affiliate violated an Applicable Law;
9.1.7 any infringement of the rights (including the rights in Intellectual Property) of a third party or any claim or alleged claim brought on the basis that the use of the Intellectual Property in the Affiliate Website or the Sub-Affiliate Website or the provision of the Services infringes the rights of a third party;
9.1.8 any claim against Operator due to the Affiliate having any of its consents, permissions, licences or registrations (including any applicable gaming licences and registrations) suspended, revoked, cancelled, not renewed and/or terminated;
9.1.9 any claim against Operator arising out of the gross negligence or wilful misconduct of the Affiliate; and
9.1.10 any review, suspension or loss of any licences, authorisations or permissions of Operator, Agency or an Associated Party arising from the Affiliate's breach of this Agreement.
9.2 The indemnification obligations set out in this clause will survive the termination of this Agreement for any reason.
9.3 The Affiliate shall not use the name of Operator or Associated Party in any action or claim without the prior written consent of Operator or Associated Party as applicable.
10. LIMITATION OF LIABILITY
10.1 Neither Operator nor any Associated Parties shall be liable to the Affiliate or to any third party in contract, tort (including negligence) or howsoever arising for any:
10.1.1 loss arising from or in connection with loss of revenues, profits, contracts or business or failure to realise anticipated savings; or
10.1.2 loss of goodwill or reputation; or
10.1.3 indirect or consequential losses,
suffered or incurred by the Affiliate and arising out of or in connection with this Agreement, even if such loss was reasonably foreseeable or Operator had been advised of the possibility of the Affiliate incurring it.
10.2 Nothing in this Agreement shall exclude or limit either party's liability for:
10.2.1 fraud or fraudulent misrepresentation;
10.2.2 death or personal injury resulting from its negligence or the negligence of its employees or agents; or
10.2.3 any other matter which cannot be excluded or limited by Applicable Laws.
10.3 The total aggregate liability of Operator to the Affiliate for loss or damage under or in connection with this Agreement and in connection with any event or connected series of events shall not exceed the greater of (i) total Commission paid to the Affiliate by Operator in the six (6) months preceding the date on which the liability occurred and (ii) CA$1,000 (or, where applicable, the equivalent in another currency).
11. INTELLECTUAL PROPERTY
11.1 If and to the extent that any Links and/or Promotional Content are created by or on behalf of the Affiliate, the Affiliate hereby irrevocably and unconditionally assigns to Operator with full title guarantee all right, title and interest (including Intellectual Property Rights) worldwide in perpetuity in and to the Links and Promotional Content without restriction. The Affiliate waives and/or has and will obtain from the creators of such materials their waivers of all moral rights in such Links and/or Promotional Content (and all similar or equivalent rights in any jurisdiction), and hereby grants to Operator all the consents required by Operator to exploit such Links and Promotional Content, without limitation so far as possible in perpetuity for any purpose. The Affiliate shall only use such Links and Promotional Content for the purpose of fulfilling its obligations hereunder.
11.2 The Affiliate acknowledges and agrees that, other than in accordance with the licences granted to it pursuant to this clause:
11.2.1 it neither has nor obtains any right, title or interest in or to any Intellectual Property Rights of Operator or its licensors (including any such right, title or interest as may exist in the Prohibited Terms, the Links, the Promotional Content and any Player Data); and
11.2.2 all right, title and interest (including goodwill) arising from the Affiliate's use of any Intellectual Property Rights belonging to Operator or its licensors will vest in and/or accrue to Operator or its licensors (as applicable). Operator or its licensors may, at any time, call for a confirmatory assignment of any such right, title, interest and/or goodwill.
11.3 Operator and/or its licensors shall, in their absolute discretion, decide what action to take (if any) in respect of any infringement of any Intellectual Property Rights that may from time to time be vested in Operator and/or its licensors. Operator and/or its licensors shall have exclusive control over, and conduct of, all claims and proceedings arising out of or in connection with any Intellectual Property Rights, and shall be entitled to retain indefinitely all sums recovered in any action for their own account. The Affiliate shall not make any admissions other than to Operator and/or its licensors and shall provide Operator and/or its licensors with all assistance that they may reasonably require in the conduct of any claims or proceedings.
11.4 The provisions of any Applicable Law that either restrict the rights of a licensee to bring proceedings for the infringement of registered Intellectual Property Rights without the consent of the proprietor, or require the proprietor to be joined to such proceedings are expressly excluded from this Agreement to the maximum extent permitted by Applicable Law.
11.5 Operator and its licensors may at any time in their sole discretion, with or without notice to the Affiliate, and with no further liability to the Affiliate:
11.5.1 modify any of the Brand Marks or Brand Websites; and/or
11.5.2 discontinue, withdraw, terminate, cease or modify using any of the Brand Marks with or without notice or further liability to the Affiliate. In such event this Agreement shall automatically terminate in relation to the relevant Brand Mark(s).
11.6 The Affiliate agrees to promptly do and/or procure the doing of all things and to sign and execute and/or procure the signing and execution of all such documents and deeds as may be required in order to perfect and protect or enforce any Intellectual Property Rights of Operator and/or the and/or their licensors, and to ensure that all right, title and interest (including Intellectual Property Rights) that may in this Agreement be expressed to vest in Operator and/or any of Operator Group Companies and/or their licensors shall so vest.
11.7 The Affiliate shall not (and shall procure from any Sub-Affiliate that, in respect of the Sub-Affiliate Website, it shall not):
11.7.1 market the Affiliate Website or the Sub-Affiliate Website in any way that might compete with Operator and/or its licensors own marketing efforts unless the Affiliate has received prior written approval from Operator in such regard. Without limiting the generality of the foregoing: the Affiliate shall not drive pay-per-click traffic to Gamesys Group Partners Website, any Brand Website, the Affiliate Website, the Sub-Affiliate Website or any other Website, including via any search engine, directory or online database, by bidding on search terms, key words or other identifiers that relate to or consist of, include or are confusingly similar to (i) any of the Brand Marks or any variables of the same; and/or (ii) any of the Prohibited Terms or any variables of the same;
11.7.2 use the Brand Marks for any purpose not authorised hereunder, and shall not make any alteration to or modification of any of the Brand Marks without the prior written consent of Operator and/or its licensors (as applicable);
11.7.3 do, cause or authorise, or omit to be done, anything which in Operator reasonable opinion will or may in any way impair, damage or be detrimental or adversely affect the reputation or goodwill associated with Operator (or its licensors) or any Operator Group Companies, or any Intellectual Property Rights vested in Operator (or its licensors) or any Operator Group Companies (or any of their respective licensors). The Affiliate shall not use any Intellectual Property Rights of Operator (or its licensors) or any of Operator Group Companies (or any of their respective licensors) in any manner likely to cause harm to the distinctive character or validity of such Intellectual Property Rights;
11.7.4 use misleading Links or Promotional Content or cause any Links to open in an end user's browser other than as a result of a Valid Click;
11.7.5 apply for, or obtain, registration of any of the Brand Marks or Prohibited Terms for any goods and services anywhere in the world;
11.7.6 apply for, or obtain, registration of any trade mark or service mark anywhere in the world which consists of, includes, or is confusingly similar to any of the Brand Marks or Prohibited Terms;
11.7.7 apply for, or obtain, registration of any domain name or sub-domain anywhere in the world which consists of, includes, or is confusingly similar to any of the Brand Marks or Prohibited Terms; or
11.7.8 copy, and shall otherwise ensure that the Affiliate Website and the Sub-Affiliate Website does not have the look and feel of or is confusingly similar to, the whole or any part of any of the Brand Websites or the Games.
11.7.9 place Links, Brand Marks or Promotional Content in unauthorised newsgroups, unsolicited email, unauthorised chat rooms or via the use of unauthorised "bots".
11.7.10 not create, publish, distribute, or permit any written material that makes reference to any names, words or phrases without the prior consent of Operator that consist of, include or are confusingly similar to (i) any of the Brand Marks or any variables of the same; and/or (ii) any of the Prohibited Terms or any variables of the same;
11.7.11 offer any incentives to Players in addition to what is offered by Operator or via a Brand Website. This includes, but is not limited to, rake back, insurance, cash back or anything where Players are compensated outside the normal incentives offered by Operator or via a Brand Website without Operator's prior written consent;
11.7.12 establish any social media domain, network domain, blog domain, profile name or display name containing any names, words or phrases that consist of, include or are confusingly similar to (i) any of the Brand Marks or any variables of the same; and/or (ii) any of the Prohibited Terms or any variables of the same;
11.7.13 optimise any page of the Affiliate Website and the Sub-Affiliate Website for keyword or keyword phrases that include any names, words or phrases in any format (including meta tags, headers or body content) that consist of, include or are confusingly similar to (i) any of the Brand Marks or any variables of the same; and/or (ii) any of the Prohibited Terms or any variables of the same in any format;
11.7.14 purchase or build off-site text links with anchor text for keyword phrases that include any names, words or phrases that consist of, include or are confusingly similar to (i) any of the Brand Marks or any variables of the same; and/or (ii) any of the Prohibited Terms or any variables of the same; and
11.7.15 redirect from any page of the Affiliate Website or the Sub-Affiliate Website or its advertising network's websites to the Brand Website.
11.8 The Affiliate shall, immediately upon Operator's request and in accordance with Operator's instructions, assign and/or transfer to Operator (and/or its licensors), or delete (in Operator's and/or its licensors sole discretion), any trade mark, service mark, domain name and or sub-domain registration or application obtained and/or registered and/or applied for in breach of clause 11.7. This obligation shall apply irrespective of whether such trade mark, service mark, domain name and/or sub-domain registration or application was made before, on or after the Commencement Date. Until such time as the trade mark, service mark, domain name and/or sub-domain registration or application has been assigned or transferred to Operator in accordance with this clause:
11.8.1 Operator may, in its sole discretion, withhold and retain indefinitely any Fees payments that may be due to the Affiliate; and
11.8.2 the Affiliate shall not allow the trade mark, service mark, domain name and/or sub-domain registration or application to lapse.
11.9 Except as expressly set out in this Agreement, the Affiliate shall not use in its business (including as, or as part of, its corporate or trading name or logo), or on or in relation to the Affiliate Website or any Sub-Affiliate Website, any trade mark or service mark which consists of, includes or is confusingly similar to any of the Brand Marks or Prohibited Terms.
12 CONFIDENTIAL INFORMATION
12.1 Subject to clause 12.2, each party undertakes that it will not at any time hereafter use, divulge or communicate to any person (except to its professional representatives or advisers and any employees, agents or sub-contractors who need to know such information for the performance of this Agreement and provided that such party shall inform each of them of, and procure their compliance with the terms of this clause), the terms of this Agreement or any Confidential Information concerning the other party or any Group Company of such other party which may have or may in the future come to its knowledge. Neither party shall use any such Confidential Information except for the performance of this Agreement.
12.2 The obligation of confidentiality contained in clause 12.1 shall not apply or (as the case may be) shall cease to apply to Confidential Information which:
12.2.1 at the time of its disclosure by the disclosing party is already in the public domain, or which subsequently enters the public domain, other than by breach of this Agreement by the receiving party;
12.2.2 is already known to the receiving party (as evidenced by written records) at the time of its disclosure by the disclosing party and was not otherwise acquired by the receiving party from the disclosing party under any obligations of confidence;
12.2.3 is at any time after the Commencement Date acquired by the receiving party from a third party having the right to disclose the same to the receiving party without breach of obligation owed by that third party to the disclosing party;
12.2.4 is required to be disclosed by Applicable Laws or order of a court of competent jurisdiction or government department or agency, provided that prior to such disclosure the receiving party shall, wherever possible and permitted by Applicable Laws, advise the disclosing party of the proposed form of the disclosure;
12.2.5 is independently developed by the receiving party without reference to the Confidential Information of the disclosing party; or
12.2.6 the disclosing party informs the receiving party in writing is not Confidential Information.
12.3 Operator shall be entitled to disclose Confidential Information relating to the Affiliate (which may include contact details and other Personal Data) to its licensors, third party complainants (or their professional advisers) or regulatory authorities if Operator believes (in its sole discretion), or a third party alleges, that the Affiliate: (i) has infringed the rights of Operator, its licensors or any third party or has otherwise incorporated any Prohibited Material into the Affiliate Website; (ii) has registered any domain name or sub-domain in bad faith; (iii) is in breach of any Applicable Laws or regulatory requirement; or (iv) has sent or caused to be sent any form of spam.
12.4 Neither party shall make any public announcements with respect to any aspect of this Agreement or its relationship with the other party without the prior written approval of the other party for each announcement except as required by Applicable Laws.
13 TERM AND TERMINATION
13.1 This Agreement shall commence on the Commencement Date and remain in effect until terminated in accordance with the terms of this Agreement (the "Term").
13.2 The Affiliate may terminate this Agreement with respect to any Brand Website for any reason upon 10 days prior written notice to Operator.
13.3 Operator may suspend indefinitely or terminate this Agreement, including with respect to any Brand Website, for any reason immediately on written notice to the Affiliate at any time.
13.4 In the event that Operator is ever unable to contact the Affiliate as a result of its failure to comply with clause 6.1.2, Operator shall have the right to suspend indefinitely or terminate this Agreement without the need for notice to the Affiliate, in which circumstances, Operator shall have the right to withhold indefinitely and retain indefinitely any amounts due to such Affiliate for each relevant calendar month with effect from the date of the suspension or termination of the Agreement.
13.5 It is acknowledged, without prejudice to the generality of clause 13.3, that Operator shall have the right (but not the obligation) to suspend indefinitely or terminate this Agreement or any part of it immediately on written notice to the Affiliate at any time if the Affiliate is in breach of any term of this Agreement, including but not limited to:
13.5.1 the Affiliate, in the reasonable opinion of Operator, is not actively promoting the Brand Websites, including by not referring a reasonable number of Players to the Brand Websites, for a period of one (1) month;
13.5.2 a promotion published or operated by the Affiliate is in the opinion of Operator: (a) harmful, inappropriate or aimed at undesirable countries; or (b) in any way in breach of this Agreement; or
13.5.3 the Affiliate sends or causes to be sent (or is alleged to have sent) any form of spam;
13.5.4 the Affiliate sends or causes to be sent (or is alleged to have sent) any marketing without explicit consents from an end user or that is in breach of Data Protection Laws;
13.5.5 the Affiliate commits any actual or alleged breach of any Applicable Law, including any relevant advertising law, regulation or code of practice;
13.5.6 the Affiliate, a Sub-Affiliate, the Affiliate Website or the Sub-Affiliate Website infringe or purportedly infringe the Intellectual Property Rights of Operator or any third party;
13.5.7 the Affiliate fails, or in Operator's reasonable opinion fails, to comply with any of their obligations under this Agreement; or
13.5.8 the Affiliate fails to comply with clauses 6.1.1 and 6.1.2 for a period of at least three (3) months, as a result of which Operator is unable to pay the Commission to the Affiliate and/or unable to contact the Affiliate;
13.5.9 the Affiliate does not log into their Affiliate Account or, having logged into such account, elects not to accept any amendments made to this Agreement pursuant to clause 16.2 within one (1) week of the last date that this Agreement was updated. In such circumstances, Operator shall have the right to withhold indefinitely and retain indefinitely any amounts due to such Affiliate for each relevant calendar month with effect from the date of the suspension or termination of the Agreement, even if the Affiliate subsequently provides Operator with up to date bank details and/or contact details;
13.5.10 the Affiliate is in material breach of any term of this Agreement or any Applicable Laws;
13.5.11 the Affiliate does anything that endangers any gaming licenses held by Operator or any Associated Party; or
13.5.12 the Affiliate does anything that brings the reputation of Operator, any Associated Party, or any Brands into disrepute;
13.5.13 the Affiliate is determined by Operator in its sole discretion to be a competitor of the Affiliate, a Sub-Affiliate or a Group Company of the foregoing; or
13.5.14 either party intends to undergo, undergoes or has undergone a Change of Control.
13.6 If Operator serves notice to terminate this Agreement in accordance with its terms, Operator shall be entitled to terminate (in such notice or in a separate notice) any or all other affiliate agreements that it has with the Affiliate at the time of termination of this Agreement.
13.7 Either party may terminate this Agreement with immediate effect by written notice to the other party if the other party becomes Bankrupt.
13.8 Upon termination of this Agreement or any part of it:
13.8.1 the Affiliate shall no longer be entitled to access the Operator's Website or the relevant part of it;
13.8.2 the Affiliate must remove from the Affiliate Website and cease to use and/or distribute (in any way) all relevant Brand Marks and Promotional Content, and disable all relevant Links;
13.8.3 the Affiliate must procure from any Sub-Affiliates the removal from the Sub-Affiliate Websites and the cessation of any use and/or distribution (in any way) of all relevant Brand Marks and Promotional Content, and disable all relevant Links;
13.8.4 all relevant rights and licenses given to the Affiliate in this Agreement shall immediately terminate; and
13.8.5 within five (5) days of termination of this Agreement in its entirety, the Affiliate must immediately return to Operator or (in Operator sole discretion) destroy or permanently delete all the property in the Affiliate's possession or under its control that either (i) belongs to Operator, the Operator Group Companies and/or any of their licensors; and/or (ii) contains any Confidential Information of Operator.
13.9 If Operator suspends or terminates this Agreement or any part of it, Operator retains the right to withhold indefinitely and retain indefinitely any Commission otherwise payable to the Affiliate in respect of the month in which such suspension or termination occurs and which relates to that portion of this Agreement as may have been suspended or terminated.
13.10 If this Agreement is terminated pursuant to clauses 13.5.5, 13.5.10, 13.5.11 or 13.5.12, the Affiliate shall not be entitled to unpaid Commissions, if any, earned up to and including the date of termination.
13.11 After termination, the Affiliate will not be entitled to Commission with respect to Players registered before, on or after the date of termination of this Agreement.
13.12 If Operator continues to permit Players who have clicked on Links to register with the relevant Brand Website after termination, this will not constitute a continuation or renewal of this Agreement or a waiver of termination, and no Commission shall be payable to the Affiliate in respect of such Players.
13.13 The following clauses of this Agreement shall survive termination of this Agreement: 5.2, 7, 8, 9, 10, 11.1, 11.2, 11.3, 11.7.3, 12, 13.7, 13.8, 13.9, 13.11, 13.12, 14, 15, 16, 17, 18, and Schedule 1, and any other clauses, the survival of which is necessary for the interpretation or enforcement of this Agreement.
14 REGULATORY OBLIGATIONS
14.1 The Affiliate shall provide such information to Operator as Operator may reasonably require in order to satisfy any information reporting, disclosure and other related obligations to any Gaming Authority from time to time. The Affiliate shall cooperate with requests, inquiries, investigations and the like of any Gaming Authority in connection with the performance of this Agreement, including the disclosure of information to any Gaming Authority that would otherwise be considered confidential pursuant to clause 12 of this Agreement.
14.2 Insofar as the Affiliate carries out activities pursuant to this Agreement on behalf of Operator and such activities are subject to any Gaming Approval issued to Operator from time to time, the Affiliate shall conduct itself as if it was bound by the relevant conditions and the relevant codes of practice to which Operator is subject pursuant to such Gaming Approval.
14.3 It is acknowledged that Operator and the Operator Group Companies conduct business in a highly regulated industry under Gaming Approvals issued by Gaming Authorities. In order to ensure compliance with the requirements of Gaming Authorities and to ensure that Operator is able to maintain such Gaming Approvals, Operator may evaluate the suitability of entities with which it does business from time to time. If Operator, acting in good faith and in accordance with industry practice, determines the Affiliate to be Unsuitable, Operator may suspend indefinitely or terminate this Agreement immediately by giving written notice to the Affiliate and withhold indefinitely and retain indefinitely any monies then due to the Affiliate.
14.4 No payments or undue financial or other advantage of any kind shall be made by the Affiliate or its personnel, directly or indirectly, to any entity, government, corporation or other person for the purpose of improperly influencing the consideration of applications for a business activity or the receipt of any other benefits, including the obtaining or retaining of business.
14.5 The Affiliate shall:
14.5.1 comply with all Applicable Laws relating to anti-bribery and/or anti-corruption (including, if applicable, the UK's Bribery Act 2010);
14.5.2 not engage in any activity, practice or conduct which constitutes an offence under any applicable anti-bribery and/or anti-corruption legislation (including acts which would constitute an offence under sections 1, 2 or 6 of the UK's Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK); and
14.5.3 notify Operator immediately if it becomes aware that, or has reason to believe that, it has breached its obligations under this clause.
14.6 The Affiliate shall implement effective systems and controls to prevent slavery and human trafficking from affecting any part of its business and supply chain. The Affiliate shall, on demand, provide Operator with a summary of the steps it takes from time to time to prevent modern slavery and human trafficking (including details of any relevant staff and supplier policies and details of due diligence conducted on suppliers).
15 DATA PROTECTION
15.1 Subject to clause 15.3, each of Operator, each Service Provider and each Affiliate shall be, and one or more Associated Parties may be, a Controller of the Personal Data that that person may Process from time to time, and will Process that Personal Data as a separate and independent Controller for the purposes of this Agreement. Each of the above-mentioned parties Processes (or may Process) the Personal Data as independent controllers and not jointly as joint Controllers.
15.2 Subject to clause 15.3, each of Operator, each Service Provider and each Affiliate shall be individually and separately responsible for complying with the obligations that apply to it as a Controller under Data Protection Laws, in particular but without limitation:
15.2.1 ensuring that there is a lawful basis on which to rely to Process such Personal Data; and
15.2.2 ensuring that it keeps Personal Data secure at all times, including by implementing and maintaining at its cost and expense, appropriate technical and organisational measures in relation to such Processing so as to ensure a level of security appropriate to the risks that are presented by the Processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
15.3 Operator may choose to make available Operator Personal Data to the Affiliate from time to time. In respect of this Operator Personal Data only, the parties shall be bound by the terms in Schedule 1.
15.4 Unless otherwise set out in the IO, the Affiliate shall require any Group Company, Sub-Affiliate or any third party used by the Affiliate for the purposes of the performance of this Agreement on behalf of the Affiliate to be bound by confidentiality and non-use obligations at least as restrictive as those on the Affiliate under this clause 15.
16.1 Any obligation of Operator may be met by Service Provider and performance by Service Provider shall be deemed to be performance by Operator.
16.2 Operator may change this Agreement and add to, change, suspend, discontinue, withdraw, terminate, cease or modify any aspect of the Operator's Programme at any time, including by removing or adding any or all Brand Websites to the Operator's Programme with or without notice or further liability to the Affiliate. Operator shall notify the Affiliate and/or publish the updated Agreement with the date on which any changes to the Agreement shall take effect. Operator recommends that the Affiliate checks this Agreement online for changes regularly. The Affiliate's continued use of the Operator's Programme following any such change in this Agreement will constitute binding acceptance of such changes. If the Affiliate does not agree to any such changes, either party may terminate this Agreement pursuant to clauses 13.2 or 13.3 as appropriate. In the event any or all Brand Websites are removed from the Operator's Programme or in the event that the Operator's Programme is ceased by Operator, this Agreement shall automatically terminate in relation to the relevant Brand Website(s) and/or the Operator's Programme.
16.3 Subject to clauses 5.2 and 16.2, no provision of this Agreement may be changed, modified, amended, restated, or supplemented by any course of dealing other than by agreement in writing signed by authorized representatives of Operator and the Affiliate.
16.4 Unless agreed otherwise in writing (and without prejudice to Operator's rights to amend this Agreement by notice in accordance with clauses 5.2 and 16.2), no modification or variation of this Agreement shall constitute or be construed as a general waiver of any provisions of this Agreement, nor shall it affect any rights, obligations or liabilities under this Agreement which have already accrued up to the date of such modification or waiver, and the rights and obligations of the parties under this Agreement shall remain in full force and effect, except and only to the extent that they are so modified or varied.
16.5 In no event will any delay, failure or omission (in whole or in part) in enforcing, exercising or pursuing any right, power, privilege, claim or remedy conferred by or arising under this Agreement or by law, be deemed to be or construed as a waiver of that or any other right, power, privilege, claim or remedy in respect of the circumstances in question, or operate so as to bar the enforcement of that, or any other right, power, privilege, claim or remedy, in any other instance at any time or times subsequently.
16.6 If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect. If any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid.
16.7 This Agreement constitutes the entire agreement and understanding of the parties relating to the subject matter of this Agreement and supersedes any previous agreement, arrangement or understanding between the parties (or any of them), whether oral or written, in relation to such subject matter. In entering into this Agreement, the parties have not relied on any statement, representation, warranty, understanding, undertaking, promise or assurance (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement. Each party irrevocably and unconditionally waives all claims, rights and remedies which but for this clause it might otherwise have had in relation to any of the foregoing. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein.
16.8 The terms of this Agreement shall prevail at all times to the exclusion of all other terms and conditions including any terms and conditions which Affiliate, any Sub-Affiliate and/or any third party may purport to apply even if such other terms are submitted in a later document or purport to exclude or override this Agreement, and neither the course of conduct between parties nor trade practice shall act to modify this Agreement.
16.9 Where the Affiliate is required to be paid via the payment platform of the Affiliate, the parties hereby agree that any terms and conditions of such platform (the "Seller Terms") shall not be applicable to Operator or any relevant payments due under this Agreement in accordance with clause 16.8. Notwithstanding any purported, alleged or inadvertent acceptance by Operator of any Seller Terms following the termination of the Agreement, this Agreement shall supersede any and all such Seller Terms in accordance with clause 16.8.
16.10 Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties, or to authorise any party to act as agent for any other, or create an employee-employer relationship, and no party shall have authority to act in the name or on behalf of or otherwise to bind any other in any way or to hold itself out in its advertising or otherwise in any manner which would indicate or imply any such relationship with the other unless expressly provided otherwise in this Agreement.
16.11 The Affiliate shall not without the prior written consent of Operator assign at law or in equity (including by way of a charge or declaration of trust), sub-license, sub-contract, transfer or deal in any other manner with this Agreement or any rights under this Agreement, or sub-contract any or all of its obligations under it or purport to do any of the same. Any purported action in breach of this clause shall confer no rights on the purported assignee.
16.12 Operator shall be entitled to sub-contract any or all of its obligations and/or sub-license or assign any or all of its rights under this Agreement at any time.
16.13 Operator shall not be liable for any default or delay in the performance of its obligations if and to the extent such default or delay is caused by any of the following: an act of God, fire, casualty, flood, war, terrorist act, failure of public utilities, widespread labour or civic unrest, assertion or requirement of any governmental authority, epidemic or pandemic, or destruction of production facilities, or other circumstances beyond the reasonable control of the party (each, a "Force Majeure"). To the extent that the Affiliate is not able to perform its obligations as a result of a Force Majeure, the Affiliate shall (a) promptly give notice to Operator specifying the Force Majeure and giving a good faith estimate of the duration of the Force Majeure Event; (b) use reasonable efforts to overcome the effect of the Force Majeure as soon as possible; and (c) promptly notify Operator when the Force Majeure has ceased or been overcome. For the avoidance of doubt, Operator shall not be required to make any payment to the Affiliate for any unperformed services and shall be entitled to terminate this Agreement in accordance with its terms.
16.14 Notwithstanding the covenants for title made in clause 11.1, the Affiliate shall at the cost and expense of Operator execute or cause to be executed all such other documents and do or cause to be done all such further acts and things consistent with the terms of this Agreement as Operator may from time to time reasonably require in order to vest in and secure to Operator and its successors in title the full benefit of the assets, rights and benefits to be transferred or granted to Operator under this Agreement and for the protection and enforcement of the same and otherwise to give full effect to the terms of this Agreement.
16.15 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.
16.16 Any notice relating to a breach of this Agreement, a claim under clause 9 of this Agreement, or termination of this Agreement, shall be in writing. Operator's notice may be validly served if sent by email to the relevant Affiliate email address as the relevant Affiliate may designate to Operator in writing from time to time. Any such email notice shall be deemed to have been served at the time of dispatch of such email, i.e. the time when the email enters Operator information system. For the avoidance of doubt, the parties agree that the provisions of this clause shall not apply in relation to the service of any process in any legal action or proceedings arising out of or in connection with this Agreement or the legal relationships established by this Agreement.
16.17 The Affiliate's notice or any notice by either party in relation to the service of any process in any legal action or proceedings shall be served by hand, prepaid first class recorded delivery (including special delivery), courier or prepaid first class recorded airmail (a "Posted Notice") to Operator address as set out above (or, in relation to the service of any process in any legal action or proceedings), the Affiliate's address as stated in its Operator's Programme application) (as applicable). Any notice properly sent or delivered in accordance with the foregoing shall be deemed to have been received:
16.17.1 if delivered personally by hand, on the day and at the time of delivery if delivered between 09.00 and 17.00 on any working day and otherwise at 09.00 on the next working day;
16.17.2 if sent by first class recorded delivery (including special delivery), at 09.00 on the 2nd working day after posting;
16.17.3 if sent by prepaid first class recorded airmail, at 09.00 on the 5th working day after posting; and
16.17.4 if sent by courier, at the time of signature on the courier's receipt if delivered at or before 17.00 on any working and otherwise at 09.00 on the next working day.
17 GOVERNING LAW AND JURISDICTION
17.1 The validity, construction and performance of this Agreement (and any claim, suit, dispute, action, proceedings or matter arising under or in connection with it or its enforceability or formation) shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein.
17.2 Each party irrevocably submits to the exclusive jurisdiction of the Ontario courts over any claim, suit, dispute, action, proceedings or matter arising under or in connection with this Agreement (including non-contractual disputes or claims) or its enforceability or formation or the legal relationships established by this Agreement and waives any objection to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been brought in an inconvenient forum.
18 DATE OF AGREEMENT
18.1 This Agreement was last updated on 1 June 2020 and supersedes any previous agreement.
DATA PROCESSING TERMS
In these Data Processing Terms, all terms not otherwise defined herein shall have the meanings given thereto in the main body of this Agreement.
1.1 Data Processor. In respect of the Operator Personal Data only, the Affiliate and its Sub-Affiliates are Processors (or Sub-Processors) acting on Operator’s behalf. As Processor (or Sub-Processor), the Affiliate will only act upon Operator’s instructions as set out in this Agreement and otherwise as provided in writing by Operator to the Affiliate from time to time. Operator Personal Data will be used in accordance with and for the purposes set out in the documented instructions and only as necessary to verify Commission paid or payable by Operator pursuant to clause 5 of the Agreement. If the Affiliate is ever unsure as to the parameters of the instructions issued by Operator it will, as soon as reasonably practicable, revert to Operator for the purpose of seeking clarification or further instruction
1.2 Nature, Purpose and Duration of Data Processing. The scope and purpose and duration of Personal Data and Processing (including the type of Personal Data and categories of data subject) covered by this Agreement is set out in Annex A.
1.3 Compliance with Data Protection Laws. The Affiliate shall:
1.3.1 have in place a data protection officer where required by applicable Data Protection Laws. The contact details are set out in Annex A.
1.3.2 comply with and Process all Operator Personal Data in accordance with applicable Data Protection Laws; and
1.3.3 promptly notify Operator about any circumstance where it is unable to comply with the Data Protection Laws or any actual or potential changes to the Data Protection Laws, which affect the Affiliate’s ability to comply with its obligations under this Agreement. Where the Affiliate is subject to any changes or circumstances under this clause, Operator will have the right to suspend the Processing until such time as the Processing is adjusted in such a manner that the non-compliance is remedied. To the extent such adjustment is not possible, Operator shall have the right to terminate the relevant part of the Processing by the Affiliate.
1.4 Co-operation. The Affiliate shall co-operate and assist Operator with any privacy impact assessments and consultations with (or notifications to) relevant regulators that Operator considers are relevant pursuant to Data Protection Laws in relation to the Operator Personal Data.
1.5 Affiliate personnel. The Affiliate personnel will not process Operator Personal Data without authorisation from Operator. The Affiliate shall procure that its personnel are obligated to maintain the security and confidentiality of any Operator Personal Data as provided in this Agreement and this obligation continues even after their engagement ends.
1.6 Data subject rights. The Affiliate shall promptly forward to Operator and otherwise co-operate with and assist Operator at no charge with any requests from data subjects of any Operator Personal Data pursuant to Data Protection Laws (including the ability to correct, delete, block or port Operator Personal Data and rights of access and disclosure as set out in clause 2 of this Schedule 1).
1.7 Deletion or return of Operator Personal Data. The Affiliate shall at Operator´ option, delete (unless required by Applicable Laws) or return all copies of Operator Personal Data and cease Processing such Operator Personal Data after the business purposes for which the Operator Personal Data was Processed have been fulfilled, or earlier upon Operator’s written request.
1.8 Records. The Affiliate shall maintain a record of all categories of processing activities carried out on behalf of Operator which shall be made available to Operator upon request.
2.1 The Affiliate will not disclose Operator Personal Data outside of the Affiliate except: (i) as Operator directs (including as permitted under this Agreement); or (ii) as required by law.
2.2 In the event that the Affiliate receives any request for disclosure of (or information in relation to) Operator Personal Data by a law enforcement person or agency:
2.2.1 the Affiliate will, to the extent allowed by law, including the terms of the third party request itself, at no additional charge: (i) attempt to redirect the law enforcement agency to request that data or information directly from Operator; (ii) promptly notify Operator of receipt of the request; and (iii) use commercially reasonable efforts to comply with Operator’s reasonable requests regarding its efforts to oppose the request. If compelled to disclose Operator Personal Data to law enforcement, then the Affiliate will promptly notify Operator and provide a copy of the demand, unless legally prohibited from doing so;
2.2.2 if the Affiliate receives a third party request which is subject to an order not to disclose such request to Operator, the Affiliate will challenge such order in a court of competent jurisdiction and seek court permission to allow Operator to intervene in the proceedings. The Affiliate shall conduct the challenge at its own expense. As part of this effort, the Affiliate may provide Operator’s basic contact information to the requesting agency.
2.3 In the event that the Affiliate receives any request for disclosure of (or information in relation to) Operator Personal Data in a circumstance not covered by clause 2.2 of this Schedule 1: (i) the Affiliate shall promptly forward such request to Operator; and (ii) at no charge, co-operate and assist Operator with such request where so directed by Operator (including in relation to requests from data subjects pursuant to Data Protection Laws).
3.1 The Affiliate has implemented and will maintain throughout the term of the Agreement appropriate technical and organisational measures, internal controls and information security routines intended to protect Operator Personal Data against accidental, unauthorised or unlawful access, disclosure, alteration, loss, or destruction. These shall at all times be of at least the minimum standard required by Data Protection Laws and further be of a standard no less than the standards compliant with good industry practice for the protection of Personal Data to ensure a level of security for the Operator Personal Data appropriate to the risk and to assist Operator in ensuring compliance with the requirements for the security of processing as set out in Data Protection Laws
3.2 The Affiliate shall ensure that all Operator Personal Data is encrypted at all times while in the possession or under the control of the Affiliate.
4. NOTIFICATION AND INCIDENTS
4.1 If the Affiliate becomes aware of or reasonably suspects that any Security Incident has occurred, the Affiliate will without undue delay (and in any event within twenty-four (24) hours):
4.1.1 notify Operator of the Security Incident by email to firstname.lastname@example.org and email@example.com;
4.1.2 investigate (including interviewing service personnel) the Security Incident and provide Operator with detailed information about the Security Incident including making available a suitably senior, appropriately qualified individual to discuss any concerns or questions Operator may have;
4.1.3 take reasonable steps to mitigate the effects and to minimise any damage resulting from the Security Incident and assist Operator in remediating or mitigating any potential damage from a Security Incident to the extent that such remediation or mitigation is within the Affiliate’s control as well as reasonable steps to prevent a recurrence of such Security Incident, including interviewing and the possible removal of service personnel from the performance of services for Operator; and
4.1.4 fully cooperate with Operator to develop and execute a response plan to address the Security Incident. the Affiliate shall at request of Operator co-operate in adequately informing the regulatory or individuals involved as so directed by Operator.
5.1 The Affiliate shall not permit sub-contractors to Process Operator Personal Data without the prior written approval of Operator. Those sub-contractors approved as at the commencement of this Agreement are as set out in Annex A. Any changes to the sub-contractors involved in any Processing pursuant to this Agreement (including any change in the scope or nature of the Operator Personal Data involved or any addition or replacement of sub-contractors approved by Operator) must be pre-approved in writing by Operator
5.2 Any authorisations by Operator to use a sub-contractor are on the condition that the Affiliate remains fully liable to Operator for the sub-contractor’s performance of the contract, as well as for any acts or omissions of the sub-contractor in regard of its Processing of Personal Data
5.3 The Affiliate shall ensure that sub-contractors shall be contractually bound to the same obligations with respect to the Processing of Operator Personal Data as to which the Affiliate is bound by this Agreement relating to security and audit and otherwise. The Affiliate shall provide copies of documentation to evidence its compliance with this provision to Operator on request.
6. TRANSFER OF DATA
6.1 The Affiliate may only transfer Operator Personal Data in the circumstances set out in clauses 2 and 5 of this Schedule 1. Except as set forth above, or as Operator may otherwise authorise, the Affiliate will not transfer to any Operator Personal Data.
6.2 Transfers from the EU to countries outside the EEA
6.2.1 The Affiliate (or any sub-contractor) shall only transfer Operator Personal Data from the EEA to a country outside the EEA (or from the UK to a country outside the EEA) where Operator has provided its written approval to such transfer. Approved transfers as at the commencement of this Agreement are set out in Annex A
6.2.2 Transfers pursuant to clause 6.2.1 of this Schedule 1 shall only be permissible where: (i) the entity receiving the Operator Personal Data is located in a territory which is subject to a current finding by the European Commission (or UK Information Commissioner’s Office as relevant) under applicable Data Protection Laws that it provides adequate protection for Personal Data; (ii) the Affiliate and the entity receiving the Operator Personal Data has entered into the Model Clauses or is subject to an alternative mechanism approved by relevant authorities pursuant to Data Protection Laws (e.g. Binding Corporate Rules) to the extent that such Model Clauses or other mechanism continue to be recognised and accepted by the relevant authorities as a legitimate basis for transfer of Personal Data; or (iii) the necessary statutory approvals required to be obtained by the Affiliate (or sub-contractor) as a Processor (or Sub-Processor), if any, have all been obtained to enable the transfer of Personal Data
6.2.3 Where Operator (as opposed to the Affiliate or sub-contractor) is the exporting entity, the Affiliate shall procure that the entity receiving the Operator Personal Data pursuant to this clause, enters into Model Clauses with Operator (or such other mechanism as Operator shall elect) prior to any such transfer taking place. Where the Affiliate is itself the importing entity receiving the Operator Personal Data, it shall itself enter into the Model Clauses with Operator (or such other mechanism) under this clause.
6.3 Other transfers out of originating country
6.3.1 To the extent that any Processing of Operator Personal Data by the Affiliate (or sub-contractor) pursuant to this Agreement may involve the transfer of such Operator Personal Data out of the country in which it is held and such transfer is not covered by clause 6.2 of this Schedule 1, the Affiliate (or any sub-contractor) shall only transfer that Operator Personal Data where Operator has provided its written consent to such transfer.
6.3.2 Transfers pursuant to clause 6.3.1 of this Schedule 1 shall only be permissible where any measures required under Data Protection Laws are in place and remain valid.
7.1 Subject to reasonable written advance notice, the Affiliate shall permit Operator and/or a qualified representative (subject to reasonable and appropriate confidentiality undertakings) to conduct during normal working hours periodic security scans and audits of the Affiliate’s (or its sub-contractors’) systems and processes in relation to Operator Personal Data and shall comply with all reasonable requests or directions by Operator to verify and/or procure that the Affiliate is in full compliance with its obligations under this Schedule. The Affiliate shall promptly resolve, at its own expense, all security issues discovered by Operator and reported to the Affiliate.
7.2 Operator shall have the right following any such audit to request additional safeguards, establish back-up security for Operator Personal Data and keep back-up Operator Personal Data and Operator Personal Data files in the Affiliate’s (or its sub-contractors) possession. The parties shall agree on the additional safeguards to be implemented, if any.
8.1 The Affiliate warrants, represents and undertakes (as applicable) that:
8.1.1 the Processing of Operator Personal Data described in or contemplated by this Agreement shall not cause Operator or require any person to be in breach of the Data Protection Laws;
8.1.2 the Processing of Operator Personal Data by the Affiliate in accordance with the written instructions from time to time of Operator shall not cause Operator or require any person to be in breach of the Data Protection Laws;
8.1.3 any Operator Personal Data it holds shall be made available to Operator immediately upon request from Operator without hindrance or delay; and
8.1.4 it shall allow Operator unrestricted access to the Operator Personal Data for any lawful purpose requested by Operator