INTOUCH GAMES LIMITED AFFILIATES PROGRAMME AGREEMENT
PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY AND IN THEIR ENTIRETY BEFORE ACCEPTING THEM.
THESE TERMS AND CONDITIONS WILL APPLY TO OUR AFFILIATE PROGRAMME WITH EFFECT FROM 13 JUNE 2019 AND SUPERSEDE ANY PRIOR AGREEMENT BETWEEN AN AFFILIATE AND US.
IN THE INSTANCE OF ANY DESCREPENCIES BETWEEN THIS AGREEMENT AND ANY OTHER AGREEMENTS OR CONTRACTS SIGNED BY EITHER PARTY, THE TERMS SET OUT IN THIS AGREEMENT WILL SUPERSEED ANY OTHERS.
Affiliate: a person or entity with legal capacity who applies and is accepted into the Affiliate Programme.
Affiliate Programme: the In Touch Partners affiliate programme offered and operated by Us, whereby the Affiliate agrees to promote and advertise the Platform and direct Referred Players to the Platform in return for Commission, in accordance with this Agreement.
Affiliate Site: the website(s), mobile or app site(s) or other methods for directing traffic to the Platform owned, controlled or operated by the Affiliate and specified by that Affiliate in their application to join the Affiliate Programme (or as otherwise agreed in writing with Us from time to time).
Brands: the mFortune, PocketWin, Mr Spin, Dr Slot, Cashmo and Casino 2020 brands, any other brands (whether registered or unregistered) owned and/or used by Us, as notified by Us from time to time, as well as any and all of Our trademark registrations or applications or any taglines or marketing slogans used by Us.
Commission: the payment to be made by Us to the Affiliate in accordance with this Agreement.
Costs: in each calendar month, the total of all-pocket
- relevant business, gambling and other taxes and duties;
- software hosting and provisioning costs;
- fraud (including chargebacks);
- bad debts;
- contributions to jackpots, loyalty shop prizes and other non-cash prizes; and
- (f) direct costs, including but not limited to charges related to ID and age verification, geographic location verification costs, SMS distribution costs, PSMS costs, NetRefer costs, payment provider costs, transaction costs (both withdrawal and deposit), fraud detection, system updates and maintenance, player support and CRM systems.
incurred or paid by Us in relation to the Platform, split proportionately across all Affiliates.
Data Protection Laws: the Data Protection Act (the DPA) 2018, the General Data Protection Regulation (the GDPR) the Privacy and Electronic Communications Regulations 2003 and any other related legislation which applies to the Purpose or to the Affiliate’s activities under this Agreement including all subordinate legislation under any of the foregoing and all legislation amending, implementing or replacing the same.
Deposits: in each calendar month the total of the Affiliate’s Referred Players’ deposits of real money into the Platform.
Incentive Traffic: Directing traffic to the platform who will receive compensation or an incentive for visiting the platform, such as Cash incentives.
ITG: In Touch Games Limited (company number 04629082) whose registered office is at Fountain House, Great Cornbow, Halesowen B63 3BL.
Link: the hypertext link(s) from the Affiliate Site(s) to the Platform.
Minimum Deposit: the minimum real money transfer required to play for real money on the Platform, currently £3 by PSMS and £5 by all other payment methods.
Net Revenue: Deposits less Withdrawals less Costs.
NetRefer: the third party marketing software platform via which We and the Affiliate may track Referred Players and/or First Time Depositors, Net Revenue and Commission payable.
Platform: the online casino and related products and services provided by Us through the Websites, through mobile, tablet and PC apps and via any other means.
Promotional Material: the Brands, the Website, banners, advertising copy and other textual or graphic material in whatever form made available or approved by Us (in advance of use) for incorporation in the Affiliate Site.
Purpose: the promotion and advertisement of the Platform, designed to attract potential Referred Players to the Platform via the Link(s).
Referred Players: players who access the Platform via clicking a Link, properly register with Us and then make real money transfers at least equal to the Minimum Deposit into their account on the Platform and who do not have and have never had an account with Us.
Us/We/Our: ITG and all related Brands.
Websites: Our websites located at www.mfortune.co.uk, www.pocketwin.co.uk and www.mrspin.co.uk www.drslot.co.uk www.cashmo.co.uk www.casino2020.co.uk and/or any other Websites owned or operated by Us from time to time.
Withdrawals: in each calendar month, the total of the Affiliate’s Referred Players’ processed withdrawals of real money.
Affiliate application, approval and management process
- By completing and submitting an application to become an Affiliate, the Affiliate agrees to be bound by this Agreement (as amended from time to time) and represents and warrants that:-
- it fully understands and accepts the terms and conditions of this Agreement and that it will at all times comply with the terms and conditions of this Agreement;
- it will, at all times, comply with all applicable rules, laws and regulations relevant to this Agreement, the Purpose and its business generally including but not limited to Data Protection Laws;
- it has, and will retain throughout the Term of this Agreement, title and authority to enter into this Agreement and to grant the rights and perform the obligations in this Agreement;
- it can, and will on request, provide such information as We may reasonably require to establish the identity and bona fides of an Affiliate and/or to comply with applicable law (including, but not limited to, laws relating to tax evasion and anti-money laundering);
- it has obtained and will maintain in force throughout the duration of this Agreement all necessary registrations, authorisations, consents and licenses necessary to fulfil its obligations under this Agreement and can and will provide the same to Us upon request;
- if he or she is a natural person, he or she is not under 18 years of age and can and will provide proof of the same to Us upon request.
- We shall evaluate each application to join our Affiliate Programme and shall notify applicants in writing whether their application is accepted or not.
- We reserve the right, at our absolute discretion, and for any reason to reject any application to become a member of Our Affiliate Programme or to request further information from an applicant. In the event that We request further information, the relevant application will be deemed resubmitted and We shall subsequently notify the applicant of its acceptance or rejection
- We retain the unconditional right in our sole and absolute discretion, to cancel, alter and/or close the Affiliate Programme, add provisions to this Agreement and/or alter or delete any of the provisions of this Agreement at any time and in any manner that We deem appropriate, without liability to an Affiliate. Notices to Affiliates concerning any such cancellation or alteration to the Affiliate Programme will be made in writing and will take effect at the earlier of acceptance by the Affiliate or seven (7) days after such notice is deemed to have been received under this Agreement.
- Once accepted, or deemed accepted, by the Affiliate, the latest version of this Agreement will be effective for the entirety of the relationship between Us and an Affiliate and will prevail over and supersede all previous versions.
- This Agreement is non-exclusive and does not prevent or restrict Us from entering into similar or different agreements with third parties. We make no representation that the terms of this Agreement are similar to or the same as the terms of any other agreement we have entered or may enter into with any third party (including another Affiliate).
- Upon acceptance as an Affiliate (and during the term of this Agreement) We grant the Affiliate a non-exclusive, limited, revocable licence to:-
- to create the Link;and
- to use the Brands for the purpose of creating and describing the Link;
in each case subject to this Agreement
- The Affiliate will promptly comply with any direction that We may give in relation to the placing of the Link on the Affiliate Site (or elsewhere).
- Without prejudice to Our authority or discretion under paragraph 2.2 above, the Affiliate will not:
- in any way reproduce the Website, any part of its contents or the Brands other than to the extent permitted in this Agreement;
- in any way suggest that We are endorsing any products or services other than Our own;
- misrepresent the relationship between the Affiliate and Us nor present any other false information about Us;
- except as provided for in this Agreement, use any of Our Brands without express written permission from Us;
- display or use a Link in a manner that causes a Website or any portion of its content to display within a frame, be associated with any advertising or sponsorship not part of a Website, or otherwise incorporate Website content into a third-party website;
- display or use an inline link to any information file contained in the Website;
- alter, block or otherwise prevent display of any content of the Website;
- link to the Website through any other URL or mirrored website; or
- link to the Website if the Affiliate’s website may reasonably be considered to be obscene, defamatory, harassing, offensive, malicious or inappropriate (including, but not limited to the content detailed in paragraph 3.3), or if the Affiliate’s website infringes any third party rights or otherwise does not comply with any applicable laws or regulations.
- The Affiliate agrees and acknowledges that the Platform (including without limitation all content, text, images, software, media and other materials on the Platform) is proprietary to or licensed by Us, protected under copyright and other intellectual property laws, and may not be reproduced, transmitted, displayed, published or distributed without Our express prior written consent.
- The Affiliate will properly and accurately display the Brands referred to in clause 2.1 in connection with any display and description of the Link on the Affiliate’s website.
- We reserve the right to demand that the Affiliate remove any Link from the Affiliate Site to the Platform, and the Affiliate will do so immediately upon request.
Affiliate Duties and Responsibilities
- The Affiliate shall:
- use all reasonable commercial efforts to market and promote the Platform so as to generate the maximum possible number of Referred Players and First Time Depositors;
- maintain and procure that any authorised sub-Affiliates maintain adequate records of the source and legal basis for any personal data processed by any of them in marketing and referring potential players to the Platform and be able to demonstrate that such personal data has been obtained and processed in strict compliance with Data Protection Laws.
- ensure that the records referred to in b) above are made promptly available to Us on Our request in the event of any complaint of breach of Data Protection Laws made to Us.
- be responsible for developing, operating and maintaining the Affiliate Website and for all materials that appear on it including, but not limited to, the proper functioning and maintenance of the Link;
- submit to Us for prior approval any proposed use of any Brand or any other advertising or promotional material relating to the Purpose which the Affiliate may wish to make. We shall review the proposed use within a reasonable time (being ordinarily not longer than 7 days) and shall not unreasonably refuse or delay approval;
- provide Us with such (i) cooperation in relation to this Agreement and (ii) access to such information as We may require for the proper performance of Our obligations under this Agreement, the law or the requirements of any regulatory authority including in the event that We require assistance in complying with Our obligations under the Data Protection Laws particularly in relation to Articles 28 and 32-36 of the GDPR, by supplying your reasonable assistance in doing so;
- only input truthful, accurate and not misleading information into NetRefer and keep such information (including contact information) up to date at all times;
- abide with any guidelines which We may forward from time to time (or as may be amended from time to time at Our sole and absolute discretion); and
- comply with all applicable laws, regulations, codes and guidance with respect to its activities under this Agreement and to its business.
- abide by all gambling related legislation to which InTouch games are subject, including but not limited to the Gambling Act 2005, the Licence Conditions and codes of Practice and all advertising regulations as set out by the Advertising Standards Agency and the Competition and Markets Authority.
- The Affiliate shall not:
- exploit the Platform or the Promotional Material for any use other than the Purpose;
- in any way reproduce the Platform or any part of its contents other than to the extent permitted by this Agreement and necessary to fulfil the Purpose;
- edit or alter the Promotional Material in any way unless we have given our prior written consent to the same;
- in any way suggest that We are endorsing any product or service other than Our own;
- present the Affiliate Site in such a way that it might give rise to confusion with the Platform or Us;
- misrepresent the relationship between the Affiliate and Us or present any other false or misleading information about Us, the Affiliate or any third party;
- use the Brands in any way that may harm Us or our trademarks, copyrights, goodwill and/or branding; or
- make deposits directly or indirectly to any Referred Player account or in any way attempt to artificially increase the Commission payable or to otherwise defraud Us.
- use any methods of advertising which are non-compliant to UK Gambling Regulations, such as offering free-to-play games without verifying age, address and DOB to ensure customer are over 18 years old.
- advise referrals on methods of play or betting patterns designed to lower potential customer value.
- advise referrals on methods of play or betting patterns designed to the customers advantage.
- send any SMS or email marketing material promoting ITG’s brands without prior and explicit consent from ITG, pending ITG’s approval of any materials;
- The Affiliate warrants that neither the Affiliate Site or any other material used by the Affiliate for the Purpose for the duration of the Agreement:-
- is or will be targeted at any person who is or could have been known to the Affiliate to be under 18 years of age;
- is likely to appeal to any person who is under 18 years of age;
- is or will be targeted at any person who is or could have been known to the Affiliate to be a problem gambler;
- is or will be targeted at any person in breach of Data Protection Laws;
- displays child pornography or other illegal sexual acts;
- promotes violence;
- promotes discrimination based on race, religion, nationality, sex, disability, sexual orientation or on any other basis;
- promotes illegal activities;
- Is not approved by Us
- Is in breach of any Laws, Codes or Regulations whatsoever
- infringes third party intellectual rights; or
- is or will be targeted at any jurisdiction where gambling and/or the promotion thereof by Us (a UK only licensed operator) is illegal.
- The Affiliate acknowledges and agrees that it has no authority to legally bind Us in relation to Referred Customers, other users or anyone else and that it has not been appointed and is not Our agent, partner or joint venture partner for any purpose. The Affiliate agrees that it shall not make any representation or commitment to anyone about Us, the Platform or any of the products or services available on the Platform save as set out in the Promotional Materials.
- The Affiliate shall at all times conduct its business in a manner that reflects favourably upon Our image and reputation. The Affiliate shall engage in the best business practice and shall ensure that the content of the Affiliate Site and the Affiliate’s marketing activities are professional and proper and are in accordance with this Agreement.
- The Affiliate agrees that in fulfilling the Purpose they will only use Promotional Material made available by Us on the Affiliate Site. All other promotional material must be approved in writing by Us in advance and affiliates may not send any SMS or email marketing material promoting ITG’s brands without prior and explicit consent from ITG whether direct marketing or otherwise.
- The Affiliate is expected to show commitment to upholding the licensing objectives and comply with the regulatory frameworks within which we operate, having particular regard to the relevant principles contained in the Licence Conditions and Code of Practice (LCCP): https://www.gamblingcommission.gov.uk/PDF/LCCP/Licence-conditions-and-codes-of-practice.pdf
- The affiliate is expected to show particular regard to the 2019 CAP Code and the regulations within, having particular regard to Annex A – Gambling advertising: protecting children and young people (https://www.asa.org.uk/uploads/assets/uploaded/9ee3f18a-569e-430b-b17e328a83d449a0.pdf and to the Privacy and Electronic Communications Regulations)
- Any promotional material created and/or used by the Affiliate for the Purpose must:-
comply with all applicable laws, regulations, codes and guidance including, but not limited to:-
- all UK gambling legislation: http://www.gamblingcommission.gov.uk/Footer/Gambling-related-legislation.aspx; and
- rules and regulations in relation to the advertisement of gambling:- http://www.gamblingcommission.gov.uk/for-gambling-businesses/Compliance/General-compliance/Social-responsibility/Advertising-marketing-rules-and-regulations.aspx
- contain a hyperlink to such of Our terms and conditions as are relevant to the promotion in a prominent position
- not infringe upon any intellectual property rights, including, without limitation, Our Brand; and
- not be placed on any website which provides unauthorised access to copyrighted content.
- comply with all applicable laws, regulations, codes and guidance including, but not limited to:-
- The Affiliate agrees and acknowledges that it:-
- shall market and refer potential players to the Platform at its own cost, expense and risk;
- shall operate the Affiliate Site under its own name and at its own expense, cost and risk;
- is responsible for the development, operation and maintenance of the Affiliate Site; and
- is responsible for all materials appearing on the Affiliate Site, howsoever created (or by whom).
- The Affiliate shall not:-
- engage in aggressive hyperlink strategies to the Platform, for example match Links or Links that appear in an unreasonably large volume; Links should appear natural; or
- generate traffic to the Platform by illegal, fraudulent, deceptive or unethical methods including, but not limited to, listing on newsgroups, directing Incentive Traffic, sending spam, cookie spam or registering as a player or causing third parties to do so for the purpose of artificially increasing the Affiliate’s Commission;
- use Our name or Brand in any bulk emails without Our prior written consent;
- send unsolicited marketing communications, including (without limitation) via email or SMS containing reference to the Platform or any related products and/or services to third parties without Our express prior written consent and will not send any marketing communications in breach of Data Protection Laws or make unsolicited telephone calls to any person who has registered with the Telephone Preference Service (TPS);
- create or develop any brand names, graphics or logos which incorporate or are similar to, derive from or are composite forms of the Brands (or any of them); or
- apply to register any trademarks, business names, company names or domain names or attempt to bid for or purchase any search advertising keywords (including, without limitation, via Google AdWords) which contain, are the same or similar to any of Our Brands or Promotional Material without our express prior written consent (excluding email).
In the event that any of these activities occur, We reserve the right to invalidate all current traffic, terminate an Affiliate’s account without notice and will cancel any Commission accrued to date on an Affiliate’s account.
- The Affiliate shall follow our instructions (as amended from time to time) as to the manner in which the Link must be structured in order to enable the necessary tracking to calculate Commission. The Affiliate acknowledges and agrees that failure to comply with such instructions may result in no Commission being due or paid and further agrees and acknowledges that We shall have no obligation to make any retrospective adjustments to Commission payments in these circumstances.
- Neither party warrants that the operation of their respective websites (including the Website(s), Platform or Affiliate Site) or other media means will be error-free or uninterrupted and neither party will be liable to the other party for the consequences of any such errors or interruption.
Commission and Payments
- 1. During the term of this Agreement, We shall pay the Affiliate Commission in respect of Referred Depositing Customers as specified below. We will make all reasonable efforts to pay all Commission accrued by an Affiliate in a particular calendar month by the 16th of the immediately following calendar month.
2. Unless otherwise agreed in writing with Us, Commission will be calculated as a percentage of Net Revenue generated by the Affiliate’s Referred new and Depositing Customers. The percentage of the Affiliate’s share of Net Revenue for each calendar month depends on the total number of new Referred First Time Depositors during that same calendar month, as set out below:-
Commission Structure Number of First Time Depositors per calendar month Affiliate’s Net Revenue share Tiers 0 20% 1-10 25% 11-40 35% 41-100 40% 101+ 45%
- 3. By way of example only, during January, fifteen (15) first time depositors are introduced to the Platform by the Affiliate’s Link(s). The Affiliate will therefore receive Commission of 35% of January’s Net Revenue in respect of those Referred Customers. In February, only four (4) first time depositors are introduced; the Affiliate will therefore receive Commission of 25% of February’s Net Revenue from the nineteen (19) first time depositors introduced to the Platform by that Affiliate to date (fifteen (15) from January and four (4) from February). In March, another thirty (30) first time depositors are introduced by the Affiliate (bringing the Affiliate’s total of first time depositors up to forty-nine (49)). The Affiliate will therefore receive Commission of 35% of March’s Net Revenue from the forty-nine (49) first time depositors. In April, no new first time depositors are introduced by the Affiliate. In those circumstances, the Affiliate will receive Commission of 20% of April’s Net Revenue from the forty-nine (49) first time depositors referred by that Affiliate to date.
- 4. The Affiliate understands and accepts that the Affiliate’s percentage share of Net Revenue (and hence Commission) will vary from time to time depending on how many First Time Depositors are referred to the Platform by the Affiliate Site each calendar month.
- 5. The Affiliate understands and accepts that We shall, in Our absolute and sole discretion, determine whether:-
- a user who is referred to the Platform via a Link shall be accepted as a Referred Customer or not; and
- to close a Referred Customer’s account if, in Our sole opinion, it is necessary to comply with Our policies, licences or the regulations applicable to Us or is otherwise necessary to protect Our interests. For the avoidance of doubt, Net Revenue shall cease to be calculated (and the Affiliate’s right to receive Commission in respect of such account) shall cease upon account closure.
- 6. We reserve the right to enter into individual and bespoke Commission arrangements with an Affiliate from time to time. Such arrangements will be subject to an agreed level (either numerical, financial or calibre) of Referred Customer or First Time Depositors and will be recorded by Us in NetRefer. In the event that the Affiliate does not achieve the required level, we reserve the right (upon 7 days’ notice to the Affiliate) to terminate the Affiliate’s individual Commission arrangements and, from then on, to calculate the Affiliate’s Commission in accordance with paragraph 5.2. For the avoidance of doubt, this Agreement (with the exception of paragraph 5.2, for such period as an individual Commission arrangement is in place) will apply to all Affiliates.
- 6.1 If affiliates promote us without discussing a deal with us beforehand and are not on the default reward plan for all brands then the default commission will be RS 20%
- 6.2 If an affiliate is on the default reward plan and has never agreed any unique deals with us for any brand then any new brand released will be put on the default reward plan.
- 6.3 Deals may be agreed uniquely per individual brand.
- 6.4 Once an individual or unique reward plan has been agreed, an affiliate will be unable to change back to the default reward plan.
- 7. The Affiliate acknowledges and agrees that no payments are due to it under this Agreement otherwise than as expressly set out in it. In particular, but without limitation, no Commission will be due in relation to:-
- any wagers, Deposits or other activity on the Platform made by or on behalf the Affiliate, any parent undertaking or subsidiary of the Affiliate, any employee, agent or officer of the Affiliate or any other natural person related to the foregoing;
- any Deposits resulting from the fraudulent or unlawful use of a credit, debit or other payment mechanism or by any other fraudulent or unlawful means;
- any Deposits which are subsequently cancelled, refunded, reversed or charged back
- deposits made from accounts deemed as bonus abuse accounts as set out in our brands terms and conditions, in particular due to suspicious playing patterns or suspicious patterns across customer accounts.
8. In the event that the total Commission payable by Us to an Affiliate is less than the minimum thresholds set out below, We shall roll any Commission due over to the subsequent calendar month (or months) until the relevant minimum threshold is achieved:-
Payment Method UK Threshold Non UK Threshold Electronic Transfer 100 400 Skrill 100 100 Neteller 100 100
- 9. Payments to the Affiliate will be made in UK Pounds sterling using such payment details as are provided by the Affiliate during the registration process (or as otherwise notified to us in writing from time to time).
- 10. We reserve the right, both before and after termination of this Agreement,:-
- to withhold permanently and/or recover any Commission due or paid to an Affiliate as a result of fraudulent, deceptive or misleading activity by the Affiliate or anyone acting on its behalf (including, but not limited to, as detailed in clause 5.6) regardless of whether We suffer harm; and
- to set off any amount owed to the Affiliate against any amount owed to Us, whether as a result of this Agreement or otherwise including, but not limited to, any loss or damage which we suffer arising out of any act or omission by the Affiliate.
- 11. Nothing in this Agreement shall give or be deemed to give the Affiliate a right to audit Our accounts and records.
- The Affiliate shall be responsible for all payment of all VAT, sales or other taxes due under any and all applicable laws as a result of the Commission paid to it by Us. Upon request, the Affiliate shall provide us with such evidence as We may require to evidence settlement of all and any taxes due on the Affiliate’s Commission.
- UK VAT registered Affiliates must supply us with a VAT invoice covering the Commission due to it on a calendar monthly basis; Affiliates can obtain this information from NetRefer. The VAT invoice must include the Affiliate’s VAT number, business name, business address and Affiliate ID. We must receive this invoice by the 6th of the month immediately after the calendar month to which the Commission relates. If no VAT invoice is received as set out in this paragraph, We will treat the Affiliate’s Commission as VAT inclusive and pay to the Affiliate the Commission amount only. In these circumstances We will be under no obligation to make any retrospective adjustments to Commission payments made.
- The Affiliate shall notify Us immediately if it ceases to be registered for VAT, transfers its business as a going concern or becomes registered for VAT under a different VAT registration number.
- If we are required by law to deduct withholding tax or any other taxes or duties from any Commission, We will deduct such amounts from the Commission before paying them to the Affiliate.
- The Affiliate shall:-
- not engage in any activity, practice or conduct which would constitute either:-
- a UK tax evasion facilitation offence under section 45(1) of the Criminal Finances Act 2017; or
- a foreign tax evasion facilitation offence under section 46(1) of the Criminal Finances Act 2017;
- have and shall maintain in place throughout the term of this Agreement such policies and procedures as are both reasonable to prevent the facilitation of tax evasion by another person (including without limitation employees of the Affiliate) and to ensure compliance with paragraph 6.5(a);
- promptly report to Us any request or demand from a third party to facilitate the evasion of tax within the meaning of Part 3 of the Criminal Finances Act 2017, in connection with the performance of this Agreement
- within 3 months of the date of this Agreement, and annually thereafter, certify to Us in writing signed by an officer of the Affiliate, compliance with this paragraph 6.5 by the Affiliate and all persons associated with it. The Affiliate shall provide such supporting evidence of compliance as the Customer may reasonably request.
- not engage in any activity, practice or conduct which would constitute either:-
- We reserve the right, both before and after termination of this Agreement, to withhold permanently an amount equal to any likely tax liability payable (whether now or in the future) by the Affiliate in the event that We have reason to believe that the Affiliate has committed or is committing a tax evasion offence.
Limitation of Liability
- This section sets out Our entire financial liability (including any liability for the acts or omissions of Our employees, agents and sub-contractors) to the Affiliate:-
- arising under or in connection with this Agreement; and
- in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
- Nothing in this Agreement shall operate to exclude or limit Our liability for:-
- death or personal injury caused by Our negligence; or
- fraud or fraudulent misrepresentation; or
- any other liability which cannot be excluded or limited under applicable law.
- Subject to paragraph 7.2:
- We shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, damages, charges or expenses however arising under this Agreement; and
- Our total aggregate liability in contract, tort (including negligence and breach of statutory duty), misrepresentation (whether innocent or negligent) restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited (to the maximum extent permitted by applicable law) to direct damages up to the amount the Affiliate has received as Commission from Us within the six (6) months preceding the date on which the claim arose.
- Should we incur bank charges due to incorrect details being provided or issues which are the fault of the affiliate, the cost incured will be deducted from subsequent payments.
- The Affiliate shall provide Us with reasonable cooperation and assistance in bringing and/or defending any claim or proceedings arising from or in connection with any matter relating to this Agreement (including, without limitation, the Website, the Platform, the Promotional Materials and Our intellectual property).
- The Affiliate shall indemnify and hold harmless Us and each of Our affiliates, directors, officers, employees, shareholders, agents and partners from and against any and all losses, demands, claims, damages, costs, expenses (including consequential losses, loss of profit and reasonable legal costs and expenses) and liabilities suffered, directly or indirectly by each in consequence of any breach, non-performance or non-observance of this Agreement or any applicable laws, rules, regulations, codes (including, but not limited to advertising codes and Data Protection Laws) and/or guidance by the Affiliate or any sub-Affiliate of the Affiliate.
Term and Termination
- We may terminate this Agreement on notice at any time if We discontinue or withdraw, in whole or in part, the Affiliate Programme. We will endeavour to give Affiliates as much notice of the same as reasonably practicable, but any such termination will be without liability to the Affiliate.
- Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if:-
- the other party commits a material breach of any term of this Agreement which breach is irremediable or (if such a breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
- the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
- the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
- a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 7 days;
- the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
- there is a change of control of the other party within the meaning of section 1124 of the Corporation Tax Act 2010; or
- any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.2.b to clause 9.2.k (inclusive).
- Upon termination, the following provisions shall apply:
- Commissions will no longer accrue or be payable by Us to the Affiliate;
- if We continue to permit play from Referred Players after termination, this will not constitute a continuation or renewal of this Agreement or a waiver of termination; and
- all licences and benefits granted under this Agreement shall automatically terminate and the Affiliate shall immediately:
- discontinue or disable the Link(s);
- remove the Link(s), Our name, Brands and other Promotional Material from the Affiliate Site; and
- destroy any copies of material from the Platform or Promotional Materials which are in the Affiliate’s possession, custody or control.
- Clause and paragraph headings shall not affect the interpretation of this Agreement.
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
- Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular. References to the male shall include the female and vice versa.
- A reference to a statutory or statutory provision, guidelines or codes is a reference to the same as amended, extended or re-enacted from time to time.
- A reference to writing or written includes faxes or email (unless otherwise expressly stated).
- Any words following the terms including, include, in particular or for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remaining provisions.
- The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
- Except as expressly and specifically provided for in this Agreement, neither party makes any warranties of any kind, express or implied, including warranties of merchantability and fitness for purpose.
Governing Law and Jurisdiction
- This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed and construed in accordance with the law of England and Wales. The Affiliate agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
- The Affiliate may not assign or sub-contract any of its rights under his Agreement without Our prior written consent. Where the Affiliate does sub-contract any of its rights, the following provisions will apply to any sub-Affiliates:
- The Affiliate will remain liable for the acts or omissions of any sub-Affiliate as if they were its own acts or omissions; and
- The Affiliate will contract with any sub-Affiliate on terms which are at least as protective of Our rights and interests as this Agreement and including, in particular but without limitation, the provisions of Section 3. Affiliate Duties and Responsibilities and Section 4. Marketing and that We are named as third parties entitled to the benefit of such provisions under the Contracts (Rights of Third Parties) Act 1999;
- We reserve the right to amend this Agreement without written notice or prior consent.
- No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be:-
- Delivered by hand or by pre-paid first class post or other next working day delivery service at its registered office (in Our case) or (in the Affiliate’s case) the most recent address registered with Netrefer;
- sent by fax to 01384 444573 (in Our case) or the most recent fax number registered with NetRefer (in the case of the Affiliate); or
- sent by email to [email protected] (in Our case) or the most recent email address registered with Netrefer (in the case of the Affiliate).
- Any notice or communication shall be deemed to have been received:-
- If delivered by hand, on signature of a delivery receipt;
- If sent by pre-paid first class post or other next working day delivery service, by 10.00am on the second working day (being Monday to Friday, excluding Bank Holidays in England) after posting; or
- If sent by fax or email at 10.00am on the next working day after transmission.