Affiliate Terms and Conditions
(Last Updated 09.04.2020)
The Affiliate's contractual relationship with Home Gaming Entertainment Limited (hereinafter referred to as the 'Operator'), in the Affiliate Program for the Website(s) (as herein defined) shall be exclusively governed by these terms and conditions (T&C), the standard Affiliate Agreement entered into between the Operator and the Affiliate, the completed Affiliate Sign Up Form, any other guidelines and/or additional terms which the Operator may provide to the Affiliate via email or the Website from time to time and the associated payment plans (collectively the 'Agreement') as the same may be varied, amended and/or supplemented from time to time. Upon first registration in the Affiliate Program, the Affiliate acknowledges and accepts the exclusive validity of the Agreement and agrees to the provisions thereof (as amended or modified from time to time).
The Agreement contains the complete terms and conditions that apply to the Affiliate's participation in the affiliates.winfest.com online site ('Affiliate Program') with regards to promoting the Website(s) currently available and what would be available in the future. Translations of this Agreement from the English language to other languages may be provided. However, the Parties expressly acknowledge that these translations are provided for information purposes only and the English version of the Agreement shall be the binding version. Should the contents of the Agreement vary in other languages to the English version, the English version shall prevail. This also applies to any information found on the Affiliate Tool and/or any other communications made by the Operator to the Affiliate.
The purpose of this Agreement is to clearly establish the nature of the Affiliate's relationship with the Operator. This Agreement in the most part deals with defining the operating terms of the relationship. It also refers to the Breach & Disciplinary Clauses. These clauses are intended to be exercised in the event that an Affiliate is in breach of any of the terms of these T&C and/or of the Agreement and/or is guilty of improper conduct (as reasonably established by the Operator). The Operator?s primary intention is to create a successful and long-term relationship with the Affiliate and to ensure the Affiliate is rewarded well for the Affiliate's efforts. Provided that the Affiliate acts in good faith at all times, there should be no need for the Operator to exercise any of the disciplinary provisions contained herein.
The Operator reserves the right to vary, amend and/or supplement these T&C as it deems fit and/or in line with regulatory developments and/or if changes in the nature of the industry/market landscape so requires. Any changes to this Agreement will be communicated to the Affiliate via email or the Website as described in Clause 1.4 in these T&Cs below.
Important: please read this document carefully before accepting these T&Cs, then print and store along with all confirmation emails reflecting the Affiliate's tracker-IDs, bonus codes, and commission. General enquiries should be sent to email@example.com.
By registering with the Affiliate Program and participating in same, the Affiliate is deemed to have read, accepted and agreed to be bound by all the terms and conditions set out in this Agreement.
- For registration with the Affiliate Program, the Affiliate must complete the Affiliate Sign Up Form. Following proper registration, the Operator provides the Affiliate with a user name via e-mail.
- The Affiliate undertakes to maintain its data strictly confidential and not to provide any third party/parties access thereto. Any activity within the Affiliate Program under the Affiliate's user name and password is automatically and solely attributed to the Affiliate. Prior to any out-payment, further details will be requested including, but not limited to, bank account details or details of any payment method into which monies due should be paid out, name and surname, registered or residential address (as the case may be), VAT number (where applicable) and contact details, including, but not limited to, telephone number. In the event that the Affiliate fails to provide sufficient and valid details, including but not limited to payment details, for a period of eighteen (18) months from the date when the first attempt to pay out commissions due to the Affiliate is made, any such commission due shall be cancelled and forfeited by the Operator. The Affiliate acknowledges that in such an event, the relevant commission shall not be recoverable.
- The Affiliate warrants that the data it provides to the Operator is accurate and correct and shall at all times remain responsible to keep all its data up-to-date. The Operator shall not be responsible for verifying the accuracy or correctness of such data, however it reserves the right to suspend payments of any commissions due, or to impose penalties (which may be deductible from any commissions due) on the Affiliate in the event that it discovers that any of the data provided by the Affiliate is incorrect, inaccurate or not up-to-date.
- The Operator may modify these T&C at any time, in its sole discretion. The revised version of the T&Cs will be made available via the website and will take effect immediately upon publication. A notification may be sent to the Affiliate to inform of such change, at the Operator?s discretion. Continued participation in the Affiliate Program following a change in the T&Cs will be deemed to constitute acceptance of said change. If any modification is unacceptable to the Affiliate, it may terminate this Agreement in writing to firstname.lastname@example.org. It is the Affiliate's responsibility to visit the Affiliate Tool frequently to make sure it is up to date with the latest version of the T&C and its provisions.
- The Affiliate acknowledges and agrees that regulations 10.1 and 10.2 (Information to be provided by electronic means) and 11.1 (placing of an order) of the Electronic Commerce Directive 00/31/EC shall not apply to or have any effect on this Agreement.
2. Definitions and Interpretations
In these T&C, references to the following words shall have the meaning set out below, unless explicitly stated otherwise:
- The 'Affiliate' provides a website ('Affiliate Website') where the Operator?s marketing material is placed and directly linked to the Website(s). Therefore, Affiliates direct potential customers to the Website(s).
- The 'Affiliate Program' is a marketing program where the Operator recruits Affiliates to place the Operator?s marketing material on their own Affiliate Website(s). Affiliates will receive a referral fee or commission from revenue as may be agreed between the Operator and the Affiliate.
- "Affiliate Tool" means a website located at the URL and/or at any URL with which the Operator replaces such URL from time to time (and such other web addresses that are owned, operated or controlled by or on behalf of the Operator from time to time and that make available such websites) and each of its related pages.
- 'Affiliate Website' is the website operated and owned by the Affiliate.
- 'Commission' is the amount due and payable to the Affiliate, as calculated solely on the basis of the Operator?s system's data and in accordance with these T&C and the applicable payment plans.
- 'Cost per Acquisition' (or CPA) means the payment plan, where the Affiliate gets paid a referral fee for Real Money Players.
- 'Fraud' means fraudulent behaviour as described in Clause 10.3.
- 'Intellectual Property Rights' or 'IPRs' means the rights to all existing and future intellectual property, owned from time to time by the Operator or any third party (as described in clause 7.1)
- 'Marketing material' means banners, text links and other marketing materials (that may include the Operator's marks and IPRs) that have been provided or otherwise made available to the Affiliate via the Affiliate program and/or pre-approved in writing by the Operator.
- 'Minimum required revenue' means the minimum revenue (also referred to as 'offset') to be generated by a Player required for the Affiliate's commission, which will be available to the Affiliate after due registration with the Operator's Affiliate tool and is to be treated strictly confidential. The Operator reserves the right to alter the said amount at any time by placing a notice to this effect on the Affiliate tool.
- 'Minimum required deposit' means the minimum amount to be paid by a Player required for the Affiliate's commission, which will be available to the Affiliate after due registration with the Operator?s Affiliate tool and is to be treated as strictly confidential. The Operator reserves the right to alter the said amount at any time by placing a notice to this effect on the Affiliate tool.
- 'Commission base' means the revenue generated via one Player less administration fees (such as bonus money and handling fees etc.) and is the basis for the revenue share.
- 'Website' means the website www.winfest.com and any other online sites or platforms that are offered by the Operator and each of its related pages through which a Player is able to open a Player Account and/or access the Services.
- 'Payment Plan' means the payment plan/s chosen by the Affiliate for each of the Affiliate's trackers.
- 'Player' means any person using the Services on the Website(s) whether attached to the Affiliate's tracker or not.
- 'Player Account' means a uniquely assigned account that is created for a Player when they successfully register for the services via a tracker URL.
- 'Real Money Player' means any Player who is attached to the Affiliate's tracker who:
Notwithstanding any other provisions contained elsewhere in this Agreement, the Operator reserves the right to alter the above-mentioned qualifying criteria at any time by virtue of placing notice on the Affiliate Tool.
- has not been a Player with the Operator before;
- is not located and/or resident in a Restricted Territory;
- has effected the Minimum Required Deposit;
- has effected the Minimum Required Revenue;
- is accepted as a Player under any applicable sign up or identity verification procedure which the Operator may require;
- has accumulated the required number of games duly notified to the Affiliate after registration with the Affiliate Program; and
- has adequately fulfilled any other qualification criteria that the Operator may introduce from time to time.
- 'Restricted Territory' means Albania, Australia, Austria, Belarus, Belgium, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Egypt, Estonia, Finland, France, French Polynesia, Georgia, Greece, Hungary, Ireland, Israel, Italy, Jersey, Latvia, Liechtenstein, Lithuania, Luxembourg, Macau, Macedonia, Montenegro, Norway, Poland, Portugal, Puerto Rico, Reunion, Romania, Russia, Serbia, Singapore, Spain, Switzerland, Slovenia, Slovakia, Turkey, United Kingdom, United States of America and/or any other country as chosen by the Operator at any time by virtue of placing notice in these T&Cs available with the Affiliate Tool. Notwithstanding that the Netherlands is not considered a Restricted Territory, the Affiliate acknowledges that it is prohibited from specifically targeting Dutch residents when promoting the Website and shall, at all times, be bound to adhere to additional clause(s) in these T&Cs in this regard..
- 'Revenue Share' is a certain percentage of the commission base (generated by Players) which is paid by the Operator to the Affiliates which choose the Revenue Share Payment Plan.
- 'Services' means any product or service offered to Players on the Website(s).
- 'Tracker' means the unique tracker URL that the Operator provides exclusively to the Affiliate, through which the Operator tracks Players? and Real Money Players? activities and calculates commission. Every tracker is uniquely identified by its tracker ID.
- 'Tracker URL' means a unique hyperlink or other linking tool for referencing the Website(s) or services through which the Affiliate refers potential Real Money Players. When the relevant Player opens his/her Player Account, the Website(s) automatically logs the Tracker URL and records the Affiliate.
- 'Tracker ID' is a unique identification number which identifies the Affiliate trackers.
3. Responsibility of the Operator
- The Operator makes no warranties or representations (whether expressed or implied by law, statute or otherwise) with respect to the Affiliate Program, sites, website or any content, products or services available therein or related thereto or that the Website, the Affiliate Tool, system, network, software or hardware (or that provided to the Operator by third parties) will be error-free or uninterrupted or with respect to the quality, merchantability, fitness for particular purpose or suitability of all or any of the foregoing. Except as expressly stated otherwise in this Agreement, all warranties, representations and implied terms and conditions are hereby excluded to the fullest extent permitted by law. Furthermore, neither the Operator, nor Operator?s providers or underlying vendors, are required to maintain a redundant system(s), network, software or hardware.
- The Operator shall provide the Affiliate with a selection of advertising instruments e.g. logos, banners, graphics and other sales enhancing tools (hereinafter referred to as 'marketing material'). Upon implementation of any marketing material on the Affiliate website, the Affiliate offers the users of the Affiliate website the opportunity to directly access the Website(s). The Operator shall be entitled to modify, limit and/or provide new marketing material at any time.
- The Operator shall bear any cost/s arising in connection with the graphical representation of the link.
- The Operator shall administer the players generated via the links, and the total amount of the commission earned via the link, provide the Affiliate with performance statistics online, and handle all customer services related to the business.
- In the event that marketing material being used by an Affiliate to promote the Website shall be made available in the territory of the Netherlands, the Operator shall:
Provided that the above Criteria are subject to change, as established by the KSA.
- provide marketing material (banners, landing pages and any other form of marketing promotions) solely in the English language and will not offer such material in Dutch language; and
- at all times endeavour to comply with the Prioritisation Criteria as stated by the Dutch Regulator, the KSA. For clarity?s sake said Prioritisation Criteria currently are:
- No Operation of a Website using a .NL protocol - this prohibition shall include direct or indirect redirection from websites with a .NL protocol.
- No use of Dutch Language in the Website(s), before or after log-in.
- No advertising of the Website(s) via Radio, TV and Printed Media.
- No use of payment methods which are solely or primarily used by Dutch residents.
- No use of domain names containing typical Dutch concepts in combination with gaming descriptions.
- No use of characteristics which are typically associated with the Netherlands in promotional material and offers.
4. Responsibility of the Affiliate
- The Affiliate shall be solely responsible to ensure that the set link is in compliance with all applicable law of all relevant jurisdictions that might be concerned and the Affiliate shall further indemnify and hold the Operator harmless against any and all claims, demands, liabilities, losses, damages, costs and/or expenses resulting or arising (directly or indirectly) from any such breach of applicable law.
- The Affiliate represents and warrants that the information provided to the Operator in the online application form is correct, true and complete in all respects. The Affiliate shall promptly update such information if all or any part of it changes.
- The Affiliate confirms that it operates the Affiliate Website under its own name and that it is fully and without any restrictions authorised to dispose thereof.
- The Affiliate shall assume all costs incurred for the implementation of the link. In addition, the Affiliate undertakes to bear the costs related to the access to the Affiliate Website and display and/or delivery of the advertisement.
- The Affiliate shall be solely and exclusively responsible for the proper technical incorporation of the link and for the technical operation of the Affiliate Website.
- The Affiliate shall be solely and exclusively responsible for the development, operation, and maintenance of the Affiliate Website as well as for all material appearing on the Affiliate Website.
- The Affiliate acknowledges and agrees that trackers are for the Affiliate's sole use and the Affiliate shall not assign or sub-license (as appropriate) the Tracker ID or any commissions to any third party without the Operator?s prior written consent.
- The Affiliate warrants that it has independently evaluated the desirability of marketing the Website(s) or Services.
- The Affiliate understands that gambling laws as well as laws regulating the promotion and marketing of games may vary from city to city, state to state and country to country. The Affiliate has independently evaluated all relevant laws and regulations that apply to its activities and has confirmed to its complete satisfaction that it may participate in the Affiliate Program without violating any applicable rules or laws.
- Provided that with respect to Affiliates making their promotional material in respect of the Website available within the territory of the Netherlands, in addition to the provisions of this clause these shall also ensure that their participation in the Affiliate Program does not violate the Prioritisation Criteria (highlighted above) as set out by the Dutch authorities from time to time. The Affiliate understands that despite the fact that the Website(s) permits the acceptance of Players residing in the Netherlands, all marketing activities and ancillary materials provided by the Operator will only be in English. The Affiliate is not allowed to modify, tamper or translate the marketing and/or promotional material into Dutch or any language other than that in which it is provided. This relates to both graphic and text-based promotions (inclusive of text links), and includes, but is not limited to any material which is closely associated with the representation of the Netherlands such as flags, clogs, windmills, stroopwafels, payment methods used solely or primarily by Dutch residents or other recognisable symbols. Furthermore, the Affiliate shall not provide any services vis-?-vis the Netherlands for other remote gambling operators who have been fined by the Gaming Authority in the Netherlands. For ease of reference such a list of remote gambling operators can be found in the following link; http://www.kansspelautoriteit.nl/besluiten/sanctiebesluiten/. Any breach of this clause by the Affiliate grants the Operator the right to immediate termination with no obligation for settlement of any outstanding and/or future commissions owed to the Affiliate.
- Officers, directors, employees, consultants and/or agents of the Operator or any one of their subsidiary, parent or associated group companies, suppliers or vendors, are not permitted to participate in the Affiliate Program or to use, directly or indirectly, any of the Website(s), other than in the course of their employment or service provision, as the case may be. Similarly, ?relatives? of such officers, directors, employees, consultants and agents are not permitted to participate in the Affiliate Program or to use, directly or indirectly, any of the Website(s), unless the Affiliate has obtained the Operator?s prior written consent. For these purposes, the term 'relative' shall include (but not be limited to) a spouse, partner, parent, child and/or sibling.
- The Affiliate ensures that is entering into this Agreement for purposes relating to his business and cannot deem to be a 'consumer' for the purpose of applicable consumer protection laws.
- The Affiliate shall not market the Website(s) and/or the Operator and/or the Services or the Operator?s IPRs in any way whatsoever (unless prior written approval is granted by the Operator):
- on any website on which the Operator promotes the Website(s);
- on or through any internet search engine on or through which the Operator promotes the Website(s) provided that this is applicable solely when the same audience is targeted;
- in any other manner that results in the Affiliate competing with the Operator in relation to the promotion of the Website(s); or
- otherwise where the Operator requests that the Affiliate cease same.
- The Affiliate shall make sure that the Affiliate Website does not promote sexually explicit materials, is not targeted towards children or minors, does not promote violence, does not promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, does not promote illegal activities, is not targeted towards citizens from Restricted Territories, or does not violate any Intellectual Property Rights including the Operator?s IPRs.
- The Affiliate shall not directly, indirectly, nor shall the Affiliate authorise, assist or encourage any third party/ies to:
If the Operator determines, in their sole discretion, that the Affiliate has engaged in any of the foregoing activities or that the Affiliate has attempted to do so, the Operator may (without limiting any other rights or remedies available to the Operator) withhold and/or forfeit any commission and/or terminate this Agreement immediately upon notice to that effect.
- Develop and/or implement marketing and/or public relations strategies that have as their direct or indirect objective the marketing of the Operator, the Website(s) and/or the Affiliate Tool which marketing is targeted at any persons who are under 18 years of age (or such higher age as may apply for cash gaming issues in the jurisdiction that the Affiliate is targeting), regardless of the age of majority in the location where the Affiliate's marketing is taking place;
- Place marketing materials on any online site or other medium, including the Affiliate website, where the content and/or material on such website, the links to such website, or medium is potentially libellous, malicious, discriminatory, obscene, unlawful, sexually explicit, pornographic or violent or that is, in the Operator?s sole discretion otherwise unsuitable or undesirable or potentially causing material disrepute;
- Use marketing materials in a manner that may potentially confuse or mislead a Player or potential Player;
- Place marketing materials on any online site or other medium, including the Affiliate Website, where the content and/or material on such online site, the links to such website, or medium:
- infringes any third party's Intellectual Property Rights;
- copies or make look-alikes of the Website(s) in whole or in part;
- disparages the Operator or otherwise damages the Operator?s goodwill or reputation in any way;
- frames any page of the Website(s) in whole or in part;
- Read, intercept, modify, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to the Operator by any other person;
- In any way alter, redirect any/or interfere with the operation or accessibility of the Website(s) or any page thereof;
- Register as a Player on behalf of any third party, or authorise or assist (save by promoting the Website(s) and services in accordance with this Agreement) any other person to register as a Player;
- Take any action that could reasonably cause any Player confusion as to the Operator?s relationship with the Affiliate and/or any third party/ies, or as to the ownership or operation of the Website(s) or service on which any functions or transactions are occurring. Any further disclosure of and/or reference to the Operator requires the Operator?s prior written consent;
- Post, serve or publish any advertisements, communications and/or promotional content promoting the Website(s), the Operator?s services, Intellectual Property Rights or marks around or in conjunction with the display of the Website(s) and/or any part or page thereof (for example and without limitation through any 'framing' technique or technology or pop-up windows or pop-under windows or interstitials);
- Cause any of the Website(s) (or any parts or pages thereof) to open in a visitor's browser or anywhere else used for accessing the services other than as a result of the visitor clicking on banners or text links contained in or as part of marketing materials;
- Attempt to intercept or redirect (including via user-installed software) traffic from or on any online site or other place that participates in the Affiliate Program;
- Use any means to promote any of the Website(s) that resemble in any way the look and/or feel of any of the Website(s) whether in whole or in part, nor utilize any such means or site to create the impression that such sites are the Website(s) (or any part of the Website(s));
- Attempt to communicate with any Player/s whether directly or indirectly on the Website(s) to solicit them to move to any online site not owned by the Operator or for any other purposes by any means whatsoever including, but not limited to, via email, chat boards, etc. without the Operator?s prior approval;
- Market or promote (or attempt to market or promote) the services of the Operator (or any specified part thereof) or the Website(s) within the Restricted Territories and/or territories where cash gaming or promoting and marketing thereof is illegal; to attempt to circumvent any restriction which the Operator has put in place to prevent visitors from Restricted Territories from signing up as Real Money Players; or attempt to disguise to geographical location of a Player.
- Should the Affiliate market, promote or distribute in any method or manner cloned, copied, tampered or any other unlicensed and/or illegal content appertaining to the Operator or the Licensor of the Operator (or any other Group company or subsidiary), this Agreement shall be terminated with immediate effect. The Operator will unilaterally determine the legal action they deem fit and appropriate should such a circumstance materialise. This clause should not be interpreted or deemed to suggest any limitation on the Operator?s rights to pursue legal action in this regard.
- The Operator will provide online reporting to each Affiliate detailing registrations, new Real Money Players, and commission payable.
- The Operator will enable Affiliates to access this information online. Should this not be possible at any stage, the Operator will provide reports via e-mail detailing the information mentioned above. It is understood that access to the system is not a precondition for membership to the Affiliate Program.
6. Terms of Payment
- Commission will be calculated once in a calendar month in accordance with the Affiliate's chosen payment plans after the Affiliate has completed the registration process and/or when the Operator has activated additional trackers.
- For the avoidance of doubt, the Operator has no liability to pay any currency conversion charges or any charges associated with the transfer of monies to the Affiliate. All these charges shall be borne solely and exclusively by the Affiliate.
- There are two alternative payment plans from which the Affiliate can choose. The payment plan that the Affiliate chooses will apply to the Affiliate's trackers within the Affiliate program, as follows:
The Operator reserves the right to change an Affiliate's commission payment plan towards future referrals, and if needed existing user referrals, for any of the following reasons but not limited to:
- CPA payment plan (also known as a Cost per Acquisition Plan) based on the amount of Real Money Players that the Affiliate introduces via the Affiliate's tracker ID, or
- Revenue Share payment plan based on a share of the commission base generated by the Affiliate's Real Money Players.
The Affiliate is entitled to receive commission calculated according to the applicable payment plans that are allocated to the Affiliate's trackers during the term of this Agreement or whilst the concerned Player is still active on the Website. To avoid doubt, the Affiliate will not be entitled to receive any commission for revenues generated by Real Money Players not generated via the Affiliate's tracker URL or already registered on the Website(s) when this is not set out in the payment plans by the Affiliate as a Website(s) that is part of the Affiliate Program. Further, any payment is excluded for Players generated via fraud traffic, and if so considered, at the Operator?s sole discretion.
- Non-performance; The affiliate does not perform according to the agreement(s) made.
- Inactivity; The affiliate has not promoted our brand(s) or logged into the account for six consecutive months or more.
- Suspicious activity; Including but not limited to; engage in, allow, assist, promote, encourage or benefit from, directly or indirectly, any act or traffic that involves fraud, whether of customers or other commercial entities
Provided that this change is notified to the Affiliate via the provided Affiliate contact email.
- The Affiliate understands that when the Revenue Share Payment Plan is awarded, the revenue per user is the amount that each user?s account is debited with as consideration of the user?s participation in the games, minus any possible deductions (such as possible Bonus Money, possible Taxes that may be applicable, and possible handling fee) at the Operator?s discretion. As the possible deductions may vary both in terms of applicably and in terms of value of charge from one Website to another it is recommended to ask the Operator for breakdown of the said deductions. The remainder is considered commission base and is the basis for the calculation of the revenue share. Should there be a change in the calculation values for deductions within the Revenue Share Payment Plan, this will be communicated to the Affiliate and applied in accordance towards the clause 1.2 of the T&Cs.
- Revenue share payment plans may include an expiration period. Meaning that a period of time will be stipulated in the revenue share payment plan during which the actions of the referred users will be included in the commission. Any actions of the referred user after the stipulated expiration period will not form part of the Revenue Share payment plan. The stipulated expiration period starts from the date of the user?s registration under the Affiliates? referred tracker.
- The commission shall be paid to the Affiliate by the Operator and shall ? if possible ? be credited via the chosen payment method of the Affiliate within fifteen (15) days. However, the Operator shall not be held liable for any delay due to technical reasons and events which are beyond the Operator?s reasonable control.
- In the event that suspicions are raised as to the use of fraudulent elements in order to raise ones? commission, the Operator shall withhold payment of said commission, and all future commission until it is satisfied that no fraudulent methods were used. Provided that if it is established that fraudulent methods have in fact been used, then payment of such commission shall not take place and the Agreement shall be terminated immediately.
- The commission can only be paid out if the credit has reached its minimum amount of fifty Euros (EUR 50.00,-). If this requirement is not met within two (2) weeks, before the date for calculation, then the commission shall be carried over until the minimum amount has been accumulated. The value of the minimum amount can be given by contacting the provided email address within the T&C.
- Unless otherwise agreed, negative revenues coming from casino operations will carried over to the next period.
- All taxes due in connection with any payments made out to the Affiliate shall remain at all times the Affiliate's sole responsibility and liability. The Affiliate is responsible for complying with the rules, if any, for registering for and paying income tax and similar taxes in respect of the Affiliate's income from this Agreement and for collecting and paying the income tax and social security contributions in respect of the Affiliate's staff, if the Affiliate has any staff. If value added tax (VAT) or any other sales tax or turnover tax is chargeable, the Affiliate is responsible for complying with the rules, if any, for registering for the tax and collecting and paying tax in the country where the services are provided and the Affiliate acknowledges that the payments that it receives shall be deemed to include all VAT or sales tax or turnover tax.
- In order for payments of commissions to be effected to Affiliates who are established (in the case of corporate entities) or resident (in the case of physical persons) in a Member State of the European Union, the following criteria must be satisfied:
- Where this is required by the jurisdiction in which the Affiliate is resident or established, the Affiliate must register for and provide to the Operator a valid VAT number (Affiliates established or resident in Malta are exempt from this requirement); and
- An invoice representing a request for payment of the commission due and any applicable tax due must be issued by the Affiliate to the Operator, subject to the provisions of Clauses 6.12 and 6.13 hereunder.
- As per the provisions of Clause 6.11.2, Affiliates established or resident in Malta shall be responsible for the issuance of their own invoices and acknowledge that no payment of commissions may or will be effected by the Operator prior to receipt of an invoice satisfying all the necessary requirements and conditions by the Operator. Affiliates established or resident in Malta shall be provided with a Statement of Account outlining their activity and the commission value due to them, which Statement of Account should formulate the basis for determining the commission value of the invoice to be issued by the Affiliate. The Affiliate is solely responsible for identifying whether, and if so in what amount, any VAT or other tax is to be charged to the Operator on the commission value and the Operator expressly disclaims any responsibility and/or liability in this regard. However, for clarity?s sake it is hereby expressly stated that in the case of a dispute in regard to the amount constituting the commission value (excluding VAT or any other tax), the commission value stated in the Statement of Account shall always prevail as the correct commission value amount. Therefore, in the event of a conflict between the commission value stated in the Statement of Account and that stated in the invoice issued by the Affiliate, the Affiliate shall be required to reverse and replace said invoice so as to reflect the correct commission value. In such an instance, the Operator shall suspend the payout of the commission until a new invoice displaying the correct commission value amount (as indicated in the Statement of Account) is issued by the Affiliate.
- Notwithstanding the provisions of Clause 6.11.2 and by way of derogation therefrom, the Operator shall issue a self-billing invoice on behalf of Affiliates established or resident in any Member State of the European Union, save for those established or resident in Malta. Upon receipt of the invoice, the Affiliate will have one (1) day to contest its contents. In the event that no such contestation is filed with the Operator within said time frame, the Affiliate shall be deemed to have approved the invoice and all of its contents therein. In the event that the Affiliate issues its own invoice nonetheless, it is hereby expressly agreed that the invoice issued by Affiliate shall be for information purposes only and the invoice issued by the Operator and approved by the Affiliate shall prevail if there is any conflict between the two.
- The Affiliate acknowledges that it is its/his sole responsibility to determine whether it/he is obliged to register for a VAT number and to collect VAT as per the regulations applicable in the jurisdiction of its establishment / his residence.
- The Affiliate shall comply with all applicable laws and any policy notified by the Operator through the Website or otherwise in relation to money laundering and/or the proceeds of crime.
7. Intellectual property
- For the purposes of this Agreement, ?Intellectual Property Rights? means rights to all existing and future patents, trademarks, design rights, service marks, trade dress, trade or business names (including domain names), registered designs, copyright (including rights in computer software), moral rights, database rights, format rights and topography rights (whether or not any of these is or are registered and including applications for registration), know-how, trade secrets and rights of confidence and all rights and forms of protection throughout the world of a similar nature or with similar effect to any of these for the full unexpired period of any such rights and any extensions and/or renewals thereof, including the words of the brand itself and/or any logo, mark, domain name or trade name that contains, is confusingly similar to or is comprised of the Operator?s marks (or parts thereof) or any other name or mark owned from time to time by the Operator or any third party.
- The Affiliate acknowledges and agrees that all Intellectual Property Rights are exclusively vested, and shall remain vested, in the Operator. The Affiliate further understands and agrees that it is prohibited from sub-leasing, reselling, licensing and/or distributing any intellectual property or rights thereon, to any third party/parties without the prior written consent of the Operator and in particular undertakes to comply with the terms contained in appendix A.
8. Term and termination
- The term of this Agreement will begin with the Affiliate's first registration and continue until terminated in accordance with the terms of this Agreement. Termination is at will, for any reason, by either party. For purpose of notification of termination, delivery via email is considered a written and immediate form of notification. In the event that the Affiliate wishes to terminate the Agreement, he must send an email marked 'Termination Winfest affiliate' to email@example.com. For the avoidance of doubt, termination of the Agreement will end the Affiliate's participation in the Affiliate program as a whole.
- Notwithstanding the provisions of clause 1, the Operator reserves the right to terminate this Agreement with immediate effect or with effect from a specific date and with no obligation to pay any commissions due to the Affiliate on termination, if the Affiliate:
- Is involved in cases of fraud or suspected fraud pursuant to the terms set out in Clause 10.3;
- Violates one of the obligations under Clauses 4 and 7 and rules of these Terms and Conditions; or
- Commits any other violation which the Operator deems to be serious and warranting termination.
- In case of termination as per Clause 1, the commission shall be calculated until the date of termination. The Affiliate will be entitled only to those unpaid referral fees if any earned by the Affiliate on or prior to the date of termination. In case of termination as per Clause 2, the Operator will not pay the Affiliate the referral fees otherwise owing to the Affiliate on termination. The Operator may withhold the Affiliate's final payment for a reasonable time to ensure that the correct amount is paid.
- Immediately upon termination:
- The Affiliate must remove the Operator?s marketing material from the Affiliate Website(s) and any other websites and disable any links from the Affiliate Website(s) to the Website(s).
- All rights and licenses given/allowed to the Affiliate in virtue of this Agreement shall immediately terminate.
- The Affiliate will return to the Operator any confidential information and all copies of it in the Affiliate's possession, custody and control and will cease any and all use of any trade names, trademarks, service marks, logos and other designations.
- The Operator may leave open, redirect or deactivate any tracker in the Operator?s sole discretion without any obligation to pay the Affiliate for Players who subsequently become Real Money Players.
- The Affiliate and the Operator will be released from all obligations and liabilities to each other occurring or arising after the date of such termination. Termination will not relieve the Affiliate from any liability arising from any breach of this Agreement, which occurred prior to termination.
9. Policies & Confidentiality
- The Operator assumes ownership of the Player at point of first contact with the same. The Affiliate acts as a provider of promotional services for the Operator. The Operator reserves the right to refuse Players (or to close their Player Accounts). In the event that any Player Account/s are suspended or closed by the Operator and subsequently reactivated at a later stage, such Player/s will be reassigned/retagged to the Affiliate and the Affiliate will be entitled to earn same referral fees as were previously in place prior to the incident, in respect of such Player in accordance with the then prevailing commission model.
- By opening a Player Account, that Player or entity will become customer of the Operator and, accordingly, all client rules, policies, and operating procedures will apply to them.
- The Affiliate may receive confidential information from the Operator, including confidential information as to the Operator?s marketing plans, marketing concepts, structure, payments and other information relating the Operator?s business operations. This information is confidential to the Operator and constitutes part of the Operator?s proprietary trade secrets and Confidential Information. The Affiliate shall not disclose this information to third parties or use such information other than for the purposes of this Agreement without the Operator?s prior written consent, save as expressly required by law (provided that any such disclosure is only to the extent so required).
- The Affiliate agrees to avoid disclosure or unauthorised use of the Confidential Information to third persons or outside parties unless the Affiliate has the Operator?s prior written consent and that the Affiliate will use the Confidential Information only for purpose of this Agreement. The Affiliate's obligations with respect to Confidential Information shall survive the termination of this Agreement.
The Operator shall be entitled to terminate the Agreement with immediate effect and apply against the Affiliate a penalty equal to the commissions due save for the higher damages suffered in the event that the Operator suspects and/or can determine that one or more of the following fraudulent activities has taken place or is about to take place:
- Fraudulent activities by the Players include, but are not limited to, the following: charge backs, incorrect Player data, minor Players, chip dumping, money laundering;
- Fraudulent activities by the Affiliate include, but are not limited to, the following: if the Affiliate and the Player have the same IP address and/or if the Player is a direct relative to the Affiliate; if the Operator have any doubt as to the true identity of the Affiliate; and if the Affiliate is not able to provide the Operator with appropriate identification to effectively verify his identity.
- Fraud traffic means, especially but not limited to, any simulated new Player, any self-referring, any simulated introduction of a Player via the Affiliate's tracker ID, any double introduction of an individual Player already introduced, any introduction in pretence, any acquisition of players and/or data through illegal means or similar action, or Players generated via the use of illegal measures and disrupting marketing methods, spam, creation of false accounts and unauthorized use of any third-party accounts, collusion, multiple subscriptions from a single e-mail address, sequential names or patterns of names, subscriptions from employees or other parties related to the Affiliate, manipulation of the service or system, any alterations or modification of the marketing material provided and the intellectual property rights. Any dispute as to whether an issue is to be considered fraud traffic or not, shall be resolved and conclusively determined solely by the Operator, regardless of whether damages have actually been incurred by the Operator.
- In the event that the Operator reasonably deems that fraudulent activity has taken place in relation to the generation of the commissions, the Operator shall notify the Affiliate promptly of the nature of the fraud and of the identity of the perpetrator of the fraud. The Affiliate shall rectify the situation within 72 hours from the notification. If the situation cannot be clarified to the satisfaction the Operator within these 72 hours, the Operator shall be entitled to terminate the Agreement with the Affiliate immediately and terminate the contractual relationship with immediate effect. The Operator have the right to withhold any commission as from the moment at which the Operator suspect any fraudulent activity. In the Operator?s sole discretion the Operator may recalculate the commission in light of such suspected fraud traffic or forfeit the Affiliate's commission in respect of fraud traffic.
- Notices. All notices pertaining to this Agreement will be given by email as follows: to the Affiliate at the email address provided by the Affiliate on the Affiliate Sign-up Form (or as subsequently updated by the Affiliate to the Operator in the event of change), and to the Operator: firstname.lastname@example.org.
- Relationship of parties. There is no relationship of exclusivity, partnership, joint venture, employment, agency or franchise between the Affiliate and the Operator under this Agreement. Neither party has the authority to bind the other (including the making of any representation or warranty, the assumption of any obligation or liability and/or the exercise of any right or power), except as expressly provided in this Agreement.
- Non-Exclusive. The Affiliate understands and accepts that the Operator may at any time (directly or indirectly), enter into marketing terms with other Affiliate/s on the same or different terms as those provided to the Affiliate in this Agreement and that such Affiliates may be similar, and even in competition with the Affiliate.
- Press. The Affiliate may not issue any press release or other communication to the public with respect to this Agreement, the Operator?s marks or the Affiliate's participation in this Affiliate program without the Operator?s prior written consent, except as required by law or by any legal or regulatory authority.
- Assignment. Except where the Affiliate has received the Operator?s prior written consent, the Affiliate may not assign at law or in equity (including by way of a charge or declaration of trust), sub-license or deal in any other manner with this Agreement or any rights under this Agreement, or sub-contract any or all of the Affiliate's obligations under this Agreement, or purport to do any of the same. Any purported assignment in breach of this clause shall confer no rights on the purported assignee.
- Governing Law. This Agreement (including any variation or modification thereto) shall be deemed executed in Malta and shall be governed by and construed in accordance with the laws of Malta without giving effect to conflicts of law principles. The Affiliate irrevocably agrees that, subject as provided below, the courts of Malta shall have exclusive jurisdiction to determine any claim, dispute or matter arising out of, or in connection with, or concerning this Agreement or its enforceability and the Affiliate 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. Nothing in this clause shall limit the right of the Operator to take proceedings against the Affiliate in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
- Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law but, if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such provision will be ineffective only to the extent of such invalidity, or unenforceability, without invalidating the remainder of this Agreement or any other provision hereof.
- Entire Agreement. This Agreement embodies the complete Agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes any prior or subsequent oral or written Agreement or understanding between the parties in relation to such subject matter save in respect of modification to this Agreement provided by the Operator to the Affiliate in accordance with Section 1.2 above. Each of the parties acknowledges and agrees that in entering into this Agreement, it has not relied on any statement, representation, guarantee 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 the Agreement. Each party irrevocably and unconditionally waives all claims, rights and remedies that, but for this clause, it might otherwise have had in relation to any of the foregoing. Nothing in this Section shall limit or exclude any liability for fraud.
- Third-party rights. Except insofar as this Agreement expressly provides that a third party may in their own right enforce a term of this Agreement, a person who is not a party to this Agreement has no right under local law or statute to rely upon or enforce any term of this Agreement but this does not affect any right or remedy of a third party that exists or is available apart from under that local law or statute.
- No waiver by the Operator. If there is a breach of any provision of this Agreement, it shall not be considered as a waiver of any subsequent breach of the same or any other provision.
- The Affiliate shall defend, indemnify and hold the Operator and the Operator?s officers, directors, employees and representatives harmless on demand from and against any and all claims, demands, liabilities, losses, damages, costs and expenses (including reasonable legal fees) resulting or arising (directly or indirectly) from the Affiliate's breach of this Agreement.
- The Operator?s obligations under this Agreement do not constitute personal obligations of the owners, directors, officers, agents, employees, vendors or suppliers of the Website(s) or services other than as provided under this Agreement. Other than as expressly provided in this Agreement, in no event will the Operator be liable for any direct, indirect, special, incidental, consequential or punitive loss, injury or damage of any kind (regardless of whether the Operator has been advised of the possibility of such loss) including any loss of business, revenue, profits or data. The Operator?s liability arising under this Agreement, whether in contract, or for breach of statutory duty or in any other way shall only be for direct damages and shall not exceed the revenues generated and payable to the Affiliate in relation to the Website(s) that the dispute relates to over the previous 12 months at the time that the event giving rise to the liability arises. However, nothing in this Agreement will operate to exclude or limit either party's liability for death or personal injury arising as a result of that party's negligence or for fraud.
Appendix A: Intellectual Property Rights of Third Parties
- Intellectual Property
The Affiliate shall guarantee that the material shown on the Affiliate Website does not infringe any rights of third parties (including copyright, patents and trade mark rights, the general right of personality or any other rights ? in the following "IP").
The Affiliate shall not copy or resemble the Website(s) in whole or in part, and frame any page of the Website(s) in whole or in part. The Affiliate shall not register or attempt to register any logo, trade mark, trade name, insignia, design, domain name or similar identifying material and shall not create any websites, groups, profiles (especially but not limited to www.facebook.com) that contain the IP or are confusingly similar to or are comprised of any of the IP.
- Domain Names
The Affiliate shall not register or attempt to register domain names which are similar or confusingly similar to the Trademarks or Sites, or any other associated brands or companies, including (for avoidance of doubt) any misspellings or any phonetics. In the case that the Affiliate does register any domain name as described above, it will on demand by the Operator, immediately transfer any such domain name to the Operator or to a third party elected by the Operator.
- Bidding on Brand Terms
The Affiliate may not place, purchase or register keywords (including meta-tag keywords), search terms or other identifiers for use in any search engine, portal, sponsored advertising service or other search or referral service and which are identical, are similar or otherwise resemble any Trademarks owned by the Operator or any third party.
- Approved Marketing Materials
The Affiliate will only use advertising creative (banners, html mailers, images, logos, micro games, page peels, content and other) approved by the Operator and will not alter their appearance nor refer to the Operator in any promotional materials other than those that are available from the Affiliate Tool. The Affiliate shall not (i) use Marketing Materials in a manner that may potentially confuse a Player or potential Player or (ii) place Marketing Materials on any online site where the content on such medium infringes any third party?s IP.
- License to use Marks
The Operator hereby grant the Affiliate a non-exclusive, revocable, non-transferable license, during the term of this Agreement, to use any IP with regards to the Approved Marketing Materials for the display on the Affiliate Website and for the sole purpose of the Agreement. This license cannot be sub-licensed, assigned, sold or otherwise transferred by the Affiliate without the Operator?s prior written approval. The Operator has the right to terminate this license at any time by providing written or electronic notification to the Affiliate.
The Affiliate guarantees to maintain the email-address stored in the registration with the Affiliate Tool and inform the Operator in any event, should this email-address change. A notification sent to this email address is accepted as sufficient for any communication regarding this contract.
The Affiliate shall not contest the ownership of the IP, and shall not take any action that may invalidate or weaken the validity of the IP or diminish the IP associated goodwill.
The Affiliate shall not contest the ownership of the IP, and shall not take any action that may invalidate or weaken the validity of the IP or diminish the IP associated goodwill.
The Affiliate shall cease to use all IP upon being notified to do so by the Operator (either by electronic or written notification) or any other termination of this Agreement.