Last Revised: October 2016
In this Agreement and in the Schedules hereto, the following words and expressions shall bear the meanings set forth opposite them:
"Applicable Law" means all laws and regulations applicable to the Parties and their respective unit holders or shareholders, and the regulations promulgated under such laws, and all directives, requirements and guidelines, as may be amended from time to time.
"Commission" means the consideration to Sub-Affiliate from the Company, under the Sub-Affiliate Program, as set out in the Commission Schedule.
"Commission Schedule" means a schedule to this Agreement, either in the form of an ‘Insertion Order’ or an ‘Offer’, which includes the specific Commission payment mechanism, as mutually agreed by the Parties.
"Company" means XLMedia PLC, a company incorporated under the laws of Jersey, registration number 114467, with registered offices at12 Castle Street, St Helier, Jersey JE2 3RT.
"Confidential Information" means any of the Company's or the Operators' information of commercial or essential value, such as, but without limitation, financial reports, trade secrets, know-how, prices, business information, products, strategies, databases, information about New Players, other customers and users of the Operators' Websites, other sub-affiliates, technology, marketing plans and manners of operation.
"Fraud" means deposits, revenues and/or traffic generated through illegal means or any other action committed in bad faith to defraud the Company or the Operators (as determined by Company in its sole discretion), regardless of whether or not it actually causes Company or the Operators’ harm, which might include, but without limiting, the following:
1. the encouragement by Sub-Affiliate or a third party of Bonus (as such term is defined below) abuse on the part of the New Player;
2. a chargeback executed by a New Player in relation to their initial deposit;
3. collusion on the part of the New Player with any other player on the Operator Website;
4. the opening of an account in breach of the terms of this Agreement;
5. the offering or providing by Sub-Affiliate or any third party of any unauthorized incentives (financial or otherwise), including without limitation Rakeback, to potential or existing New Players;
6. creating or using a single Link intended to be used by a single user;
7. sending spam, as such term is defined in any jurisdiction Sub-Affiliate conducts the Marketing Activities;
8. registering as a player or making deposits directly or indirectly to any player account through his Link(s) for its own personal use and/or the use of its relatives, friends, employees or other third parties, or in any other way attempting to artificially increase the commission payable or to otherwise defraud the Company and/or the Operators (including by arbitrage);
9. presenting any materials in the Marketing Tools under the Marketing Activities in such a way that it might evoke any risk of confusion with the Operators, the Operators' Websites or the Program Website or conveying the impression that the Marketing Tools are partly or fully originated with/from the Operators' Website and/or the Operators; and/or
10. any other act by Sub-Affiliate or by a New Player which is reasonably understood to have been committed in bad faith against the Company regardless of whether or not such action has resulted in any type of harm or damage to the Company. Violation of any of the above provisions, by Sub-Affiliate and/or by Sub-Affiliate Introduction(s), shall be deemed as fraud and shall entitle the Company to terminate this Agreement immediately.
"Intellectual Property Rights" means any copyrights, patents, trademarks, service marks, inventions, domain names, brands, business names, utility brands, rights in computer software, source codes, rights in databases and know-how, design rights, Confidential Information, registrations of the aforesaid and/or any other rights in the nature of the aforesaid.
"Links" means internet hyperlinks from the Sub-Affiliate's Marketing Tools to the Operators' Websites.
"Marketing Materials" means any of the Operators' marketing material and information which the Company and/or the Operators may make available online, through e-mail, the Program Website or the Operators' Website, as applicable, necessary for the implementation of the Links to market and refer potential players to the Operators' Websites.
"Marketing Tools" means the Sub-Affiliate Website(s), media buying, pop-ups, pop-unders, PPC, campaigns, e-mail marketing, social networks campaigns and/or any other form used by Sub-Affiliate in advertising, marketing and promoting the Operators' Websites, as pre-approved by the Company.
"Marketing Activities" means advertising, marketing and promoting the Operators' Websites through the Marketing Tools.
"Operator(s)" means various online gaming operators as may be designated by the Company from time to time.
"Operators' Websites" the internet website(s) operated by the Operators, as may be designated from time to time to Sub-Affiliate by the Company, under the Sub-Affiliate Program.
"Parties" means both the Company and the Sub-Affiliate, each a "Party".
"Program Website" www.bestwaydeal.com
"Sub-Affiliate" means you, the person or entity, who applies to participate in the Sub-Affiliate Program, following your execution of the Commission Schedule.
"Sub-Affiliate Introductions" means any person who was introduced to Company by a Sub-Affiliate and joins the Sub-Affiliate Program as a sub-affiliate thereof, subject to our prior approval. You shall be entitled to Commissions as shall be set forth in the Commission Schedule, with respect to any Sub-Affiliate Introduction made by you. You will be liable to Company, jointly and severally with any Sub-Affiliate Introduction, for the performance of such Sub-Affiliate Introduction’s obligations under the Agreement.
"Sub-Affiliate Website(s)" means one or more websites on the internet which are maintained and operated solely by the Sub-Affiliate.
"Sub-Affiliate Program" means the collaboration between the Company and the Sub-Affiliate whereby the Sub-Affiliate will perform the Marketing Activities and thereby be paid a Commission.
This Agreement is a legally binding agreement between the Company and the Sub-Affiliate. By applying for the Company's Sub-Affiliate Program, which requires registration, Sub-Affiliate agrees to be bound by this Agreement.
The Company shall evaluate the Sub-Affiliate application hereby submitted and shall notify the Sub-Affiliate in writing (email) whether the Sub-Affiliate application is accepted or not. Company shall endeavor to complete the evaluation within two (2) business days. The Company reserves the right to refuse any registration in its sole and absolute discretion. This Agreement shall not be binding or enter into effect in relation to the Company until the Company approves both the Sub-Affiliate application, the Commission Schedule and any applicable Sub-Affiliate Introduction.
The Sub-Affiliate hereby represents and warrants, on its behalf and on behalf of any applicable Sub-Affiliate Introduction, that:
He is the older of (i) eighteen (18) years of age; or (ii) the legal adult age which is legally required in order to perform the Sub-Affiliate's obligations under this Agreement, according to Applicable Law;
Its entering into this Agreement does not violate any Applicable Law or regulations;
Any and all required information that it has submitted in the Sub-Affiliate application is accurate, no aliases or other names were used to mask the true identify or contact information and it will maintain the accuracy of the information;
It agrees that the company may, at its discretion, carry out verification checks of the Sub-Affiliate and require it to provide certain documents for verification purposes. It agrees that it will, when requested, promptly provide documents for the purposes of proof of identity, proof of residence and address, as may be deemed necessary, from time to time, by Company;
It has obtained and will maintain in force all necessary registrations, authorizations, consents and licenses necessary to fulfill his obligations under this Agreement.
It fully understands and accepts the terms and conditions of this Agreement.
If the Company is informed or has reason to believe that Sub-Affiliate, and/or any applicable Sub-Affiliate Introduction, is not eligible to be a party to the Sub-Affiliate Program or that it becomes ineligible, the engagement with such Sub-Affiliates may be terminated without notice.
At the Company's sole discretion, Company may make available the Marketing Materials to Sub-Affiliate.
Responsibilities and Obligations of the Sub-Affiliate
to use its best efforts to actively and effectively perform the Marketing Activities, as widely as possible in order to maximize the benefit to the Parties and that it will abide with the guidelines of the Operators, as posted in the Operators' Websites, as applicable, or sent to the Sub-Affiliate from time to time and/or accessible online;
to conduct the Marketing Activities and to refer potential players to the Operators' Websites at its own risk, cost and expense. The Sub-Affiliate will be solely responsible for the distribution, content, legality and manners of its Marketing Activities. All of the Sub-Affiliate's Marketing Activities must be professional, proper and lawful under Applicable Law and regulations and in accordance with this Agreement;
to use only the Links and no other links to the Operators' Websites;
to be responsible for the development, the operation, and the maintenance of (i) the Marketing Tools as well as for all material appearing on the Marketing Tools; and (ii) any and all of the materials used in the Marketing Tools;
it will not (by itself or through the Marketing Tools) perform any act or publish any material, which is libelous, discriminatory, obscene, unlawful or otherwise unsuitable or which contains sexually explicit, pornographic, obscene or graphically violent materials;
It is responsible for anything that happens through its account, whether or not such actions were taken by it. In the event Sub-Affiliate becomes aware of or reasonably suspect any breach of security, including, without limitation any loss, theft, or unauthorized disclosure of its login information or unauthorized access to its account, it must immediately notify the Company and modify its password;
it will not actively target any person who is under the legal age for gambling, according to Applicable Law;
it will not actively target any jurisdiction where such games are illegal;
that it will, at all times, comply with all Applicable Law, and that if needed under Applicable Law, it will obtain and maintain all necessary licenses or approvals or permits to perform its obligations under this Agreement and to be able to receive the Commission;
it acknowledges that the Company is an 'Affiliate' of the Operators, therefore, Sub-Affiliate is subject to the terms of the Operators' applicable terms, conditions and regulations and must actively conform and comply with each Operator's terms and conditions.
it undertakes to (i) remove any information and/or marketing materials, of any kind; and/or (ii) terminate any Marketing Tool and/or Marketing Activity and/or other activity under the Sub-Affiliate Program, immediately upon the Company's first request.
that it acknowledges and agrees that any data relating the New Players, provided directly or indirectly to the Company by such New Players through the Sub-Affiliate Program and any intellectual property rights related thereto or associated therewith is exclusively owned by, and rights in and to such data and such intellectual property rights exclusively vest in, the Company, subject to Applicable Law;
it will use best efforts to execute the Marketing Activities in a manner consistent with good business ethics and in good faith towards the Company and it will not generate activity to the Operators' Websites by illegal or Fraud activities;
Except as explicitly provided under the Marketing Materials, the Sub-Affiliate may not use the Company's or the Operators' trademarks and other Intellectual Property Rights without their prior written consent, as applicable.
it shall not offer or provide any New Player or potential New Player any type of Rakeback or Bonus (as defined below) without the Company's prior written approval, and shall make best efforts to ensure that none of its employees shall directly or indirectly offer any New Player or potential New Player any such type of Rakeback or unauthorized Bonus without the Company's prior written approval. For purposes of this Clause: (A) "Rakeback" shall include any form of incentive, promotion or rebate, howsoever labeled or named, which is offered, awarded or paid back to New Players and which is based on a portion of such New Players' rake; (B) "Bonus" means the total amount of all credits, bonuses, bonus points, freerolls, free bets, special bets and other promotional amounts and incentives granted to New Players, whether monetary or tangible, which shall all be decided by the Company in its sole discretion.
Subject to the terms of this Agreement, the Company agrees to pay the Sub-Affiliate the Commission. Payment of any Commission is subject to Sub-Affiliate first generating five (5) active New Players within a three month period of joining the Sub-Affiliate Program. The Commission shall be deemed to be inclusive of any applicable VAT, tax, levy and/or withholding tax, all of which shall be incurred by Sub-Affiliate and none of which shall be refundable from Company.
The Company shall administrate the turnover generated via the Links, record the total amount of Commission earned via the Links and provide the Sub-Affiliate with Commission statistics, as available to the Company. The aforesaid information is based on information received by the Operators, if any, and any calculation thereof is made in accordance thereto, at the Company's sole and final discretion. The Company may make available to the Sub-Affiliate tools allowing the Sub-Affiliate to monitor the Commission and the payments of the said Commission into the Sub-Affiliate account using an online monitoring system at a secure website using a user name and password.
Sub-Affiliate agrees and acknowledges that the turnover generated via the Links may be subject to 'Negative Carryover' provisions, deductions, deferred payments and other provisions which may affect the Commission, all subject to the terms and conditions of each of the Operators, as applicable.
The Commission is calculated at the end of each month and payments shall be made on a monthly basis in arrears, not later than the 15th of the following calendar month, provided that the amount due exceeds €100 (the "Minimum Threshold"). If the balance due is less than the Minimum Threshold, it shall be accumulated and carried over to the following month and shall be payable when the balance due collectively exceeds the Minimum Threshold. Any Commission above five thousand US dollars (US$5,000) shall only be payable via wire transfer.
If an error is made in the calculation of the Commission, or an overpayment is made, the Company reserves the right to correct such calculation or overpayment at any time and will immediately pay out underpayment or reclaim (including by deduction) overpayment made to the Sub-Affiliate.
If the Sub-Affiliate disagrees with the Commission as paid, it shall notify the Company within five (5) days of payment (the "Challenge Period") and state the reasons of the disagreement. Failure to notify the Company within the prescribed time limit shall be deemed to be considered as an irrevocable acknowledgment of the balance due for the period indicated.
The Sub-Affiliate's acceptance of the payment of the Commission at the lapse of the Challenge Period shall be deemed to constitute the full and final settlement of the balance due for the relevant period.
The Company retains the right to review at any time all Commissions, whether paid or payable, for possible Fraud of any kind. In any period of time during which the Company reviews commissions for possible Fraud, such review period not to exceed 180 days, the Company shall have the right to withhold any Commission accrued to Sub-Affiliate as a result of such alleged Fraud, and such Commission will not be paid until such time as the review has been concluded. Any incidence of direct Fraud on Sub-Affiliate's part shall constitute a breach of this Agreement, and the Company shall have full right and authority to terminate this Agreement immediately in the event of such breach. Further, in the event that the Company can show that Fraud has occurred, either on Sub-Affiliate's part of on the part of a New Player, Sub-Affiliate shall not be entitled to receive any Commission which has accrued to Sub-Affiliate's benefit as a result of such Fraud. The Company retains the right to set-off from any future Commission payable to Sub-Affiliate any amounts already received by Sub-Affiliate which can be shown to have been generated to Sub-Affiliate's benefit as a result of Fraud.
The Company may in its sole discretion withhold the payment of any balance to the Sub-Affiliate for up to one hundred-and-eighty (180) days if the Company needs to investigate and verify that the relevant transactions comply with the provisions of this Agreement.
No payment shall be due if the Company has reasons to believe that the activity generated by the Sub-Affiliate is illegal or is in breach of any of the provisions of this Agreement.
Without derogating from any other remedies available to the Company under applicable law and/or under this Agreement, the Sub-Affiliate agrees to return all Commission paid to it (and any applicable Sub-Affiliate Introduction) in breach of this Agreement.
Without derogating from any other right or remedy of the Company available to Company under this Agreement or under any Applicable Law, Company may terminate this Agreement and/or any Commission Schedule and/or close any Sub-Affiliate’s (and/or any applicable Sub-Affiliate Introduction’s) account if:
In Company’s sole opinion, such termination is necessary to comply with any Applicable Law, any Company policy or license and/or in order to protect the interests of the Company;
Sub-Affiliate (and/or any applicable Sub-Affiliate Introduction’s) is in breach of this Agreement.
The Sub-Affiliate may terminate this Agreement, with or without cause, immediately upon written notice to Company, by sending an email marked ‘Termination BestWayDeal' to [email protected] For the avoidance of doubt, termination of the Agreement will end Sub-Affiliate’s participation in the Company’s Sub-Affiliate Program as a whole, including any fees payable under any Commission Schedule (and/or any applicable Sub-Affiliate Introduction’s Commission Schedule). Sub-Affiliate may not terminate any part of a Commission Schedule in isolation.
Without derogating from the above, the Company may terminate this Agreement or any specific part of a Commission Schedule, with or without cause at any time, upon written notice to Sub-Affiliate sent by email to such email address provided to the Company. In the event Company terminates the Agreement as a whole, it shall be entitled to automatically remove and/or render any Link(s)s inoperative. For the avoidance of doubt, on termination of this Agreement the Sub-Affiliate will no longer receive any Commission. If the Company terminates/removes a specific Link(s), the Sub-Affiliate will no longer receive any Commission through that Link(s).
In any circumstance where the Company terminates this Agreement or removes any specific Link(s), Company may, at its sole discretion and without prejudice to its further rights and remedies, suspend the Agreement or any specific Link(s). During the period of any suspension, Company may withhold the payment of any Commission that relates to any affected Link(s)s.
In the event Sub-Affiliate does not, for 180 day period, refer any New Players then, at Company’s sole discretion, Company may take the following action;
render Sub-Affiliate’s account inactive and notify Sub-Affiliate by email. If Company does not receive any response from Sub-Affiliate within thirty (30) days, the provisions of Clause 7.6 shall apply and any Commission owing will automatically revert to Company.
immediately remove/render any Link(s)s inoperative and make no further Commission payments to Sub-Affialite; and/or
On termination of this Agreement:
Sub-Affiliate shall stop promoting the Links and all rights and licenses given to it under this Agreement will terminate immediately; and
Sub-Affiliate shall return all Confidential Information and cease use of any of Marketing Materials provided by the Company.
Sub-Affiliate shall indemnify, defend, and hold Company harmless from and against any and all losses, damages, liabilities and costs (including, without limitation, settlement costs and any legal or other fees and expenses for investigating or defending any actions or threatened actions) incurred by Company (and any of its related parties) in connection with any claim arising out of Sub-Affiliate`s violation of this Agreement.
In addition to any limitation of liability appearing in any other provision hereof, Company shall not be liable to Sub-Affiliate for any of the following types of loss or damage, even if it has been advised of the possibility of such loss or damage:
incidental, indirect or consequential damages of any kind;
loss of business, profits, revenue, contracts or anticipated savings; and/or
loss or damage arising from loss, damage or corruption of any data.
THE MAXIMUM AGGREGATE LIABILITY OF COMPANY FOR ANY LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, HOWSOEVER ARISING (INCLUDING BY WAY OF CONTRACT AND/OR UNDER AN INDEMNITY) IN TORT (INCLUDING NEGLIGENCE OR ANY OTHER THEORY OF LAW), SHALL BE LIMITED TO ONE THOUSAND EURO (€1,000).
The provisions of this Agreement allocate the risks between Company and Sub-Affiliate, and Sub-Affiliate agrees and acknowledges that Company`s pricing reflects this allocation of risk and the limitations of liability specified herein.
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