Midnite Affiliates Programme AgreementLast Updated: 01/06/2022
1. INTRODUCTION
1.2. The Affiliate shall ensure and undertake that the information provided to the Company when completing the application form is complete, true and accurate in all respects. Once the Affiliate is a member of the Programme, it will promote the Brand by using Content on its Site and/or via approved Marketing Channels in return for a Commission.
2. DEFINITIONS 2.1. Capitalised words and expressions in this Agreement shall have the meanings set out below:
3. GENERAL SCOPE AND OBJECTIVE 3.1. The Company requires third parties to advertise, market and/or promote the Brand to increase its business, notably via increasing the number of New Depositing Customers, and will, from time to time in cooperation with third parties, negotiate, sign and carry out its affiliate marketing strategy. In the event the Company uses a third party for the (partial) roll-out of its affiliate marketing strategy, (including contract negotiation, day-to-day management of the Technical Platform, payment processing, marketing or other activities, this irrespective of the legal capacity of the intermediary, whether as agent, subcontractor or other), the Company is and remains exclusively responsible for the execution of the Agreement. 3.2. The Company has set itself, and in some markets it is bound by, the following three objectives when promoting its services and the Brand to customers. 3.2.1. The Company wishes to prevent gambling from being a source of crime and or disorder, being associated with crime or disorder and/or being used to support crime; 3.3. The Affiliate acknowledges that it will respect the above objectives and agrees that it will act at all times in a manner that is consistent with these objectives during the Term of this Agreement. 3.4. The Affiliate acknowledges that the Company holds a gambling licence in certain countries and/or jurisdictions and is subject to such local laws and regulations that relate to promotion of gambling and specifically promoting gambling and soliciting bets. In some countries where the Company holds a licence and promotes gambling using the Affiliate, the Affiliate acknowledges that it may be jointly responsible with the Company to the local gambling or advertising authority for any promotion or advertising done on behalf of the Company that is not in compliance with the local laws and regulations. 3.5. The Affiliate further acknowledges that promoting or soliciting bets is subject to legal restrictions in some countries and may even be prohibited. Such restrictions may vary from time to time. The Affiliate shall not enter into this Agreement if it targets any markets where gambling is illegal or where the promotion, marketing or advertising of gambling is illegal. The Affiliate shall be exclusively liable for such actions and shall hold the Company harmless and shall fully indemnify the Company for any liability incurred by the Company if it doesn’t comply with the provision above. 3.6. The Affiliate further acknowledges and agrees that in performing the Service under this Agreement, they only market and/or promote the Company, Services or Brand to residents of the Allowed Countries, and exercise all possible technical and operational measures to prevent residents from any other country from accessing any and all Content. 3.7. The Affiliate acknowledges and agrees that any breach of the aforementioned obligations shall be deemed a material breach of this Agreement resulting in the Affiliate's immediate termination from the Programme. 3.8. The Affiliate further confirms that it operates the Site(s), where the Content will be placed, under its own name and that it is fully and without restrictions authorised to dispose thereof. All of the Affiliate Sites and/or Marketing Channels must be declared during the application for Midnite Affiliates Programme, and any new Sites and/or Marketing Channels where the Affiliate would like to promote the Brand and/or Services after the application stage shall require the Company’s prior written approval. 3.9. With respect to the European Union Fifth Anti-Money Laundering Directive, laws on the prevention of money laundering and financing of terrorism and in line with the Company’s Partners Due Diligence Policy, the Affiliate will be required to verify their identity and details by providing copies of personal and, where applicable, company identification and registration documents. Verification is also performed to confirm that the Affiliate is not a politically exposed person or listed or otherwise affected by any sanctions lists such as the Financial Action Task Force’s list of high-risk and other monitored jurisdictions lists. The Company reserves the right to perform these due diligence checks on the Affiliate at any time during the Term, including to re-verify the Affiliate’s details or to perform enhanced due diligence as required by applicable laws. 3.10. Unless otherwise agreed in writing by the Parties, each Party shall remain exclusively responsible for all and any expenses (including investment and/or running costs) incurred in respect of the obligations it undertakes under this Agreement and will have no right of recourse against the other Party in respect thereof.
4. INTEGRATION OF THE AFFILIATE IN THE AFFILIATES PROGRAMME 4.1. Upon the Affiliate’s successful application to join the Programme, a unique Affiliate ID is assigned to the Affiliate so that the Affiliate is integrated in the Technical Platform. This Affiliate ID will identify any New Customers referred by the Affiliate. It is the Affiliate’s responsibility to ensure that any Affiliate ID generated by the Technical Platform is used correctly. 4.2. If a New Customer creates an account through a method that does not include the unique Affiliate ID, the account will not be linked to the Affiliate. 4.3. Any additional advertising material (of any kind whatsoever) created by the Affiliate and related to the Company shall require the Company’s prior written approval. 4.4. Subject to clause 5.6 of this Agreement, a change to the URL of the Affiliate Site shall not constitute a change to the Agreement and shall not affect the rights and obligations of the Affiliate arising from this Agreement. 4.5. If the Affiliate would like to advertise the Brand through an Affiliate network, it must receive the Company’s consent in writing first and grant the Company access to an advertiser account on the platform of its Affiliate network, through which all marketing of the Brand Websites will be accessible. If such request is granted and the Affiliate joins the Programme in the capacity of an Affiliate Marketing Network, the Affiliate represents, warrants and undertakes that the Terms and Conditions of the marketing network are at least as restrictive as those set in this Agreement, and agrees to take full responsibility for all activity undertaken by the Network Affiliates. The Company reserves the right in its sole discretion to request written documentation of compliance with this clause, and failure to promptly provide such documentation upon request shall be deemed a material breach of this Agreement. 4.6. If the Affiliate is granted by the Company the possibility to use the Company Technical Platform, the Affiliate guarantees not to: 4.6.1. communicate to any third party its username, password, key or any other identifiers enabling access to the Company platform or the Affiliate ID; 4.7. The Affiliate understands and agrees that it is solely responsible for all activity occurring under its Affiliate account and associated Affiliate ID. 4.8. The Affiliate understands and acknowledges that the Company Technical Platform may contain bugs for which the Company cannot be held responsible. For the sake of clarity, the Company shall not be responsible for any bug, virus, technical failure, loss of data, damage caused to the material of the Affiliate nor for any errors occurring on the Company Technical Platform or on the Affiliate’s Site. 4.9. The Affiliate shall ensure that all personal information on the Company Technical Platform is up to date at all times, including but not limited to bank account details, personal and business information, contact details including postal address, telephone number and email address. 4.10. The Company reserves the right at its sole discretion to require the Affiliate to from time to time positively verify their account details in order to continue receiving Commissions or to prevent Fraudulent Activity in connection with the Affiliate account. This verification process may require the submission of additional personal documentation proving identity, payment and physical address details. 4.11. The Affiliate shall notify the Company on its designated email of any known or suspected unauthorised uses of its account, or any known or suspected breach of security, including loss, theft or unauthorised disclosure of its email and/or password.
5. AFFILIATE’S OBLIGATIONS 5.1. During the Term of this Agreement, the Affiliate shall use its reasonable endeavours to display the most up to date Content on the Affiliate Site in a manner and location agreed by the Parties, and through the approved Marketing Channels. The Affiliate shall not alter the form or operation of the Content without the Company’s prior written consent. 5.2. At all times the Affiliate agrees to be bound by the Company’s Affiliates Advertising Requirements which can be found in the Appendices of this Agreement. For the avoidance of doubt, the Appendices form part of this Agreement. 5.3. The Affiliate agrees to give the Company reasonable assistance in respect of the display, access to, transmission and maintenance of the Content. 5.4. The Affiliate shall ensure that it does not promote any Content, the Brand and the Company’s services to individuals under the legal gambling age where they are domiciled and does not allow, assist or encourage others to do so. 5.5. In the event the Affiliate wishes to place the Content on websites other than the Affiliate Site (including Sub-Affiliate’s sites) and/or approved Marketing Channels or wishes to use a Sub-Affiliate, the Affiliate must first obtain the Company’s written consent. 5.6. If the Affiliate sells its business, this Agreement is automatically transferred to the purchasing company (“Purchasing Company”). The Affiliate account purchased and transferred will remain on the existing Reward Plan that was in place at the time of the purchase. The Affiliate and/or Purchasing Company must inform the Company within 30 days of the purchase. 5.7. The Affiliate shall not purchase or register keywords, search terms or other identifiers for use in any search engine, portal, sponsored advertising service or other search or referral service which are identical or similar to any of the Company’s trademarks or any other Brand belonging to the Company, or variations thereof in the “domain name”, (i.e. after any prefixes but before the top level domain suffix), or include metatags on the Affiliate Site which are identical or similar to any of the Company’s trademarks. The Affiliate shall not create pages falsely representing any Brand in any social media channels (including, but not limited to, Facebook, Google +, Twitter etc.). 5.8. The Affiliate’s and the Company’s employees, related corporations, partners, agents, contractors, representatives and suppliers (including themselves, their friends, immediate family members, spouses, partners and housemates) are not eligible to participate in the Programme. 5.9. The Affiliate agrees that in relation to any direct marketing, the Affiliate is an independent data controller solely responsible for its own actions toward Customers. The Affiliate agrees to comply with all applicable data privacy laws toward Customers. 5.10. If sending any direct marketing communications to individuals, including but not limited to email, SMS, push notification, pop-up and/or pop-under, which (i) include any of the Company Intellectual Property Rights; or (ii) otherwise intend to promote the Company, the Brand and/or the Services, must first have permission to send such direct marketing communications from the Company. 5.11. The Affiliate agrees to submit all direct marketing communications with customers and customer target list for Company approval at least 2 weeks prior to sending, for the Company review, marketing approval and removal of vulnerable customers or otherwise prohibited individuals as per the Company’s database. This Company review does not alter the Affiliates' full responsibility for the Customer List. 5.12. If such permission is granted by the Company, the Affiliate must then ensure to obtain each and every recipient’s explicit consent to receive such type of marketing communications and that such individuals have not opted out of receiving such communication type. Marketing communications shall contain appropriate means for the recipient to unsubscribe from future marketing communications, and must also make it clear, so that no confusion is caused (in regard to the sender of such communication) to the recipient that all marketing communications are sent by the Affiliate and not by the Company. For the avoidance of doubt, should the Affiliate engage with any third parties in connection with the provision of such direct marketing communications, the Affiliate is responsible for ensuring such third parties fully comply with this Agreement. 5.13. The Affiliate agrees to maintain complete records, during and for a period of 2 years after the termination or expiration of their participation in the Programme, regarding their activity in the Programme and any marketing or promotional activity undertaken and to maintain logs of hospitality and customer events to meet the requirements set out under the UK Bribery Act. 5.14. The Affiliate shall not: 5.14.1. directly or indirectly offer any person or entity any incentive (including but not limited to money) to access the Site, use the Content on the Affiliate Site or register with the Brand (e.g. by implementing any “rewards” programme for persons or entities who use such content); 5.15. If the Company determines, at its sole discretion, the Affiliate has engaged in the activities specified above, the Company shall have the right to: 5.15.1. suspend any payments due to the Affiliate while the Company investigates any suspected breach, and/or; 5.16. If the investigation made by the Company leads to the conclusion that there is no breach, the Company shall pay the Affiliate all suspended or withheld payments. 5.17. The Affiliate shall inform users of the Affiliate Site via its privacy policy or other appropriate means that a tracking technology will be installed on the user’s hard drive once the user clicks on the Content. The Affiliate shall provide users with the opportunity to reject the installation of such tracking technology in accordance with the Privacy and Electronic Communications Directive 2002/58/EC on Privacy and Electronic Communications (the “ePrivacy Directive”), and/or any applicable legislation amending, implementing or replacing the ePrivacy Directive.
6. COMPANY’S OBLIGATIONS AND RIGHTS 6.1. The Company shall provide the Affiliate with the Content for the purposes of this Agreement and may update such Content from time to time. 6.2. The Affiliate shall comply with the Company’s instructions to track New Customers. The Company shall use its reasonable endeavours to ensure that whenever a New Customer is directed to its websites and registers an account, the relevant New Customer is identified as originating from the Affiliate. However, the Company shall not be held liable if it is unable to identify a New Customer as originating from the Affiliate. 6.3. The Company shall be entitled to use any of its rights or fulfil any of its obligations hereunder. 6.4. Subject to this entire Agreement, the Company shall be entitled to accept or decline any Affiliate’s application at its sole discretion. 6.5. The Company has the right to monitor the Affiliate Site and/or Marketing Channels to ensure that the Affiliate is complying with the terms of this Agreement. The Affiliate shall provide (and at no charge), the Company with all data and information to perform such monitoring. 6.6. The Company (its internal and external, financial and accounting auditors) has the right to audit all relevant records during the Term of the Agreement and for two (2) years afterwards. The Affiliate shall allow the Company and/or its auditors access to such records for the purposes of conducting the audit.
7. COMMISSION AND PAYMENT TERMS 7.1. In consideration for the performance of the Services, and subject to this clause and the Affiliates' compliance with this Agreement, the Company will pay to the Affiliate: 7.1.1. the Affiliate Revenue Share; and/or 7.2. The Commission is agreed between the Parties as part of the application process or otherwise during the Term of this Agreement. 7.3. The Affiliate is eligible to earn Commission payments in connection with gambling activity by New Customers referred by the Affiliate, as further set out herein. The Affiliate understands and agrees that the Company may vary the Commission rates, payment schedules and methods of calculation from time to time, at the Company’s sole discretion. 7.4. The Affiliate is only eligible to receive ongoing Commission payments during their participation in the Programme, and only during the time the Affiliate continues to refer New Customers in accordance with these Terms. The Affiliate will no longer receive Commission payments in the event their participation in the Programme is terminated for any reason. 7.5. Every New Customer the Affiliate refers must meet the following qualifications: 7.5.1. The customer meets the territory and age requirements to lawfully register an account on the Brand and participate in online gambling activity; 7.6. Where a Chargeback is received against a New Customer, or issuance of a credit to a New Customer occurs, that customer will not make the Affiliate eligible for a CPA Payment, and any CPA Payment previously made to the Affiliate in respect of such New Customer will be deducted from any future payments due to the Affiliate. 7.7. The Company reserves the right to reduce the Affiliate’s Commission if: 7.7.1. the Affiliate substantially reduces its efforts to promote the Company, except in markets where affiliate activity is restricted and/or 7.8. The Company may conduct special promotions related to certain products, services, games, customer activity, special events, and other matters through the Programme Portal from time to time (“Special Promotions”) and in connection with same, establish certain additional terms, Commission rates, CPA pay-out rates, incentives, deposit and wagering requirements, or other additional terms and conditions (“Special Terms”). If the Affiliate wishes to participate in one of the Special Promotions, the Affiliate understands and agrees that such participation will be subject to the Special Terms, as applicable. 7.9. All payments due to the Affiliate are based on the Company’s own statistics, records and calculations. All decisions made by the Company regarding the tracking, calculation or payment of the Affiliate’s Commissions or other payments shall be made by the Company in its absolute and sole discretion. 7.10. The Company reserves the right to review all activity in connection with the Affiliate participation in the Programme for possible Fraudulent Activity or activity which the Company believes at their sole discretion to be in bad faith or in violation of the Agreement. 7.11. The Company does not pay fees or commissions in connection with Match Betting and/or Arbitrage Betting (method of betting or wagering which is intended to give Customers a guaranteed win with no risk, including but not limited to the use of free bets), Incentivised Traffic in any form (traffic or Customer activity generated as a by-product of promising some form of compensation or incentive for taking an action on, or in relation to, any Brand, including but not limited to registering a new account, depositing or wagering), customer activity related to brand bidding or any activity which the Company considers to be a breach of their Intellectual Property rights. 7.12. The Affiliate is not entitled to any payment related to any customer activity and/or traffic that the Company deems at its sole discretion, to be unlawful, abusive, not generated in good faith, or based on Fraudulent Activity. 7.13. The Company reserves the right to pass on any Fraud Costs to the Affiliate account, which include but are not limited to any costs, damages or loss arising as a direct or indirect result of Fraudulent Activity. These Fraud Costs shall be deducted from any payment owed to the Affiliate. In the event the Fraud Costs exceed the amount of payments owed to the Affiliate, the Company reserves the right to collect such sums from the Affiliate directly. 7.14. The Company reserves the right to refuse any potential New Customer, to close a customer's account, or to take other action which the Company may deem necessary in order to preserve the integrity or safety of the Brand, Services and/or Company. In the event that the Company refuses, suspends or closes any customer's account for any reason, the Affiliate will not be entitled to earn Commissions in respect of those customer accounts. 7.15. The Company will process the Commission earned by the Affiliate in the previous calendar month within 30 days. The Company is not liable in any amount whatsoever for late payments due to technical, third party or any other unforeseen events or events outside of their control. 7.16. Net Revenue will be calculated in USD only, unless otherwise agreed in writing with the Company. An exchange rate adjustment will be applied and charged to the Affiliate account for conversions from the currency in which a New Customer referred by the Affiliate transacts on the Brand, into USD. 7.17. Payments of Commission to the Affiliate shall be made by way of the method agreed, in one of the available currencies other than USD, provided that a market exchange rate adjustment will be charged for payments made in those currencies. 7.18. The Affiliate payment is only made once the Affiliate’s balance exceeds 100 USD or as otherwise agreed in writing with the Company. 7.19. The Affiliate is responsible for the reporting and payment of any taxes, tariffs or other governmental fees, charges or levies applicable to any Commission payable to them in connection with their participation in the Programme. All amounts payable to the Affiliate are exclusive of all sales, use, value-added, withholding, and other taxes and duties. The Affiliate undertakes and agrees to promptly reimburse the Company for any and all taxes or duties that the Company may be required to pay in connection with the Affiliate participation in the Programme, except for taxes payable on the Company’s net income. 7.20. For any regulated markets, payments to be made to the Affiliate in connection with the Programme will be subject to a marketing cost deduction to take account of the marketing spends and branding activities undertaken by the Company or any of its affiliated companies in those markets from time to time (the “Branding Charge”). This Branding Charge shall be deducted from any applicable Net Revenue when calculating the Affiliate Commission due. 7.21. If the Affiliate has a negative monthly balance, the Affiliate´s monthly payable balance of the Commission is automatically reset to 0 USD (or, where applicable, the equivalent in another currency) at the beginning of each calendar month, to ensure that no negative balances are carried forward. 7.22. The Affiliate shall, at any time, have secure access to the Technical Platform unless the Company has a duly motivated reason – including but not limited to network and IT maintenance and/or security threats – to block such access. 7.23. The Affiliate understands and accepts that its access to the Technical Platform is subject to the highest obligations of confidentiality. Any misuse of such access, whether intentional or not, shall be considered as a breach under the Agreement. 7.24. All payments to the Affiliate shall be made by a Payment Agent appointed by the Company. Both Parties agree and acknowledge that the Company may change, from time to time (and at its sole discretion), the payment method and/or Payment Agent. The Company remains exclusively responsible for the payment of any amounts due. 7.25. The Affiliate is responsible for ensuring the accuracy of the payment details in its account and/or as specified on its invoices. Any payment(s) made via the payment details listed in the Affiliate Account will be considered as payment made by the Company. Any cost incurred by the Company resulting from incorrect payment details provided by the Affiliate will be deducted from the Commission due to the Affiliate in the next monthly payment cycle in which there is a payment due to the Affiliate. 7.26. If for any reason the Affiliate has been overpaid, the Company reserves, without prejudice to any other rights, the right to request that the Affiliate refunds the difference, or deduct the corresponding amount of overpayment to the Affiliate from the following month’s Commission, and each month thereafter, until the debt is repaid in full. 7.27. If for any reason the Affiliate has been underpaid, the Company reserves, without prejudice to any other rights, the right to add the corresponding amount of underpayment to the Affiliate’s Commission in the following calendar month. 7.28. If there is a pending payment due to an Affiliate for a period of 12 months or more as a result of incorrect payment details, missing payment details, invalid or no-longer valid payment details and the Affiliate has not responded to all reasonable contact attempts made by the Company, the payment will be cancelled. 7.29. The Affiliate must comply with the legal and regulatory requirements in its country of domicile; if it does not, it will not be entitled to receive any Commission based on the activities of its customers.
8. INTELLECTUAL PROPERTY 8.1. Nothing in this Agreement shall constitute any licence, assignment, transfer or any other rights of any Intellectual Property Rights, including, without limitation, patents, trademarks, service marks, registered designs, copyrights, database rights, rights in designs, inventions and Confidential Information, etc. which arise in result of entering into or for the purpose of this Agreement. 8.2. All Intellectual Property Rights created and/or deriving out of this Agreement, including, without limitation, banners, advertising material, the Database and Personal Data, shall be or become the sole property of the Company, and the Affiliate shall have absolutely no rights therein. 8.3. The Company grants the Affiliate a non-exclusive and worldwide right to display the Content on the Affiliate Site and/or via approved Marketing Channels as set out in this Agreement and in accordance with the Company’s guidelines as may be provided to the Affiliate from time to time. All Intellectual Property Rights and any Goodwill arising from the Content and in all Products, associated systems and software relating to the services provided by the Company to its customers from time to time shall remain the property of the Company. The Affiliate shall not use the Content in any way that is detrimental to the Company or the reputation or Goodwill of the Company. The Affiliate shall not alter or modify, in any way, the Content without the Company’s prior written consent. 8.4. The Affiliate agrees that its Site shall not resemble in any way the appearance and/or the general impression of the Company’s website(s), nor will the Affiliate create the impression that the Affiliate Site is the Company’s website(s), or any part thereof. 8.5. Upon termination of the Agreement between the Parties, each Party shall return to the other Party all proprietary material or information and, as the case may be, destroy in a manner acceptable to the other Party all remaining copies of the same. Notwithstanding any disposition contrary to this Agreement, the Affiliate acknowledges that – upon such termination – it shall not keep a copy of the Content, the Database, Personal Data or Confidential Information, and may not exploit, directly or indirectly, Company proprietary information, materials or works.
9. WARRANTIES 9.1. Each Party represents and warrants to the other that it has and will retain, throughout the Term, all rights, title and authority to accept the terms of this Agreement. Each Party grants to the other Party all relevant means to perform the obligations mentioned under this Agreement. 9.2. Each Party to this Agreement represents, warrants and undertakes to the other that it has obtained and will maintain in force all necessary registrations, authorisations, consents and licences necessary to fulfil its obligations and that it fully complies with, and shall continue fully to comply with, the conditions set out under section 5 and all applicable laws and regulations. The Affiliate further represents, warrants and undertakes that it has not been and is not currently subject to any regulatory or legal action in any country in the world. 9.3. The Affiliate represents, warrants and undertakes that the Affiliate Site and/or Marketing channels shall not contain, or link to, any material which is defamatory, pornographic, unlawful, harmful, threatening, obscene, harassing, or racially, ethnically, or otherwise objectionable or discriminatory, violent, politically sensitive or otherwise controversial or in breach of any third-party rights (including but not limited to IP infringing websites). 9.4. The Company is associated with companies working for the prevention of gambling addiction (i.e. GamCare, BeGambleAware etc). The Affiliate must provide information on responsible gambling using links directed to such companies’ websites as detailed and required in Appendix A. 9.5. The Affiliate must not deliberately provide facilities for gambling. 9.6. Each Party warrants that it has: 9.6.1. complied with all applicable laws, statutes, regulations, guidance, recognised practice and codes, relating to the prevention of tax evasion and/or the prevention of the facilitation of tax evasion (whether within, or outside of, the United Kingdom) including but not limited to the Criminal Finances Act 2017 (“CFA 2017”); 9.7. For the purpose of article 8(7), the meaning of prevention procedures and associated persons shall be determined in accordance with sections 44(4), 44(5), 45(3) and 46(4), as applicable of the CFA 2017 (and any guidance issued under section 47 of the CFA 2017).
10. DISCLAIMER 10.1. The Company makes no representation that the operation of its website will be uninterrupted or error-free and the Company will not be liable for the consequences of any interruptions or errors.
11. INDEMNITY 11.1. The Affiliate shall indemnify on demand and hold harmless the Company and each of its associates, officers, directors, employees, agents, shareholders and partners from and against any and all losses, demands, claims, damages, costs, expenses (including without limitation consequential losses and loss of profit, reasonable legal costs and expenses and VAT thereon if applicable) and liabilities suffered or incurred, directly or indirectly, by Company resulting from any breach, non-performance or non-observance by the Affiliate of any of the obligations or warranties specified under this Agreement.
12. LIMITATION OF LIABILITY 12.1. Nothing in this section shall limit the Company’s liability for death or personal injury resulting from negligence or fraud. 12.2. The Company’s aggregate liability in respect of any loss or damage suffered by the Affiliate and arising out of or in connection with this Agreement, whether in contract, tort (including negligence) or for breach of statutory duty or in any other way, shall not exceed the amount of Commission actually paid by the Company to the Affiliate pursuant to this Agreement in the 12 months prior to the event giving rise to such liability. 12.3. The Company shall not be liable in contract, tort (including negligence) or for breach of statutory duty or in any other way for: 12.3.1. any losses arising from any interruption, problem or error in the operation of or changes made to the Company’s Products and/ or Technical Platform;
13. CLOSURE OF A MARKET 13.1. The terms of this Agreement shall no longer be considered applicable in the event the Company is obliged to or at its sole discretion decides to leave a market due to market condition changes, legal and/or regulatory changes. In such cases, the existing customer accounts opened within that market can be closed.
14. TERM AND TERMINATION 14.1. The terms of this Agreement apply from the date the Company notifies the Affiliate that its application has been successful in accordance with the introductory provisions of this Agreement and shall continue thereafter unless and until terminated according to this section. 14.2. At any time, the Company may immediately terminate this Agreement, with or without cause, by giving the Affiliate written and immediate notification via the designated email address. 14.3. At any time, the Affiliate may terminate this Agreement, with or without cause, by giving the Company 30 days written notice of termination via the designated email address. 14.4. The Affiliate’s continued participation in the Programme after changes made to the Agreement as per clause 7.7 will constitute binding acceptance of those changes. 14.5. Following termination of this Agreement, the Affiliate will only be entitled to receive the outstanding Commission due as of the effective termination date of this Agreement. However, the Company may reasonably withhold the Affiliate’s final payment to ensure that the correct amount is paid. After such payment, the Affiliate will no longer be entitled to receive any other Commission.
15. GENERAL PROVISIONS 15.1. Unless otherwise provided for, this Agreement shall constitute the entire agreement and understanding superseding any previous agreement – between the Parties. Each Party acknowledges and agrees that by entering into this Agreement, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty, understanding, promise or assurance (whether negligently or innocently made) of any person (whether Party in this Agreement or not) other than as expressly set out in this Agreement. Nothing in this article shall operate to limit or exclude any liability for fraud. 15.2. In no event will any delay, failure or omission (in whole or in part) in enforcing, exercising or pursuing any right, power, privilege, claim or remedy conferred by or arising under this Agreement or by the law, be deemed to be or construed as a waiver of that or any other right, power, privilege, claim or remedy in respect of the circumstances in question, or operate so as to bar the enforcement of that, or any other right, power, privilege, claim or remedy, in any other instance at any time or times subsequently. 15.3. The Affiliate shall not, without the Company’s prior written consent, assign at law or in equity (including without limitation by way of a charge or declaration of trust), sub-licences or deals related to this Agreement or any other rights under it, or sub-contract any or all of its obligations under it or purport to do any of the same. Any purported assignment in breach of this article shall confer no rights on the purported assignee. 15.4. If any of the provisions of this Agreement shall be found by any authority to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect. 15.5. Where an Affiliate requests to opt-out of Marketing communications from the Company, there may be a delay of up to 48 hours for this request to be processed due to data transfer times. The Affiliate cannot opt-out of Account or Agreement related communications. 15.6. Each Party undertakes that it will not at any time hereafter use, divulge or communicate to any person, except to its professional representatives or advisers or as may be required by law or any legal or regulatory authority, any confidential information concerning the business or affairs of the other Party or of any member of the group of companies to which the other Party belongs which may have or may in future come to its knowledge. Each of the Parties shall use its reasonable endeavours to prevent the publication or disclosure of any confidential information concerning such matters. 15.7. Nothing in this Agreement is intended to or shall operate to create a partnership between the Parties, or to authorise either Party to act as an agent for the other. Neither Party shall have the authority to act in the name or on behalf of the other Party or otherwise to bind the other Party in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power). 15.8. Neither Party shall make any announcement relating to the terms of this Agreement nor its subject matter without the other Party’s prior written approval, except as required by law or by any legal or regulatory authority. 15.9. The validity, construction and performance of this Agreement (and any claim, dispute or matter arising under or in connection with it or its enforceability) shall be governed by and construed in accordance with the laws of England and Wales. Each Party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England and Wales over any claim or matter arising under or in connection with this Agreement or the legal relationships established by this Agreement. APPENDIX A – GENERAL ADVERTISING REQUIREMENTS The Company, a licensed operator in multiple jurisdictions, together with its group, prides itself in being a leader in the areas of responsible gaming and corporate social responsibility. As a member of the Midnite Affiliates Programme, advertising on behalf of the Company and representing its brand, the Company expects Affiliates to share these values and any advertising carried out on behalf of the Company must follow the regulations and rules issued by the relevant authorities. For the avoidance of doubt, it is up to each Affiliate to ensure that it is compliant with all advertising requirements and legislation around the promotion of online gaming in the relevant jurisdiction. Any transgressions to requirements, legislation and/or this Agreement will lead to the suspension and possible termination of the Affiliate account with the Programme. The Agreement Appendices outline how the Company’s Affiliates can promote its Brand effectively and lawfully. Any enquiries regarding the Affiliate’s obligations under the Agreement, or under the relevant legal and/or regulatory requirements in the jurisdiction where the Affiliate is located should be referred to the Company’s designated email address. Any medium, channel or particularity not specifically listed in this Appendix requires the Company’s prior written approval.
1. Content Affiliates can only use Content provided by the Company and located on the Company’s Technical Platform. The Affiliate must not alter the appearance and design of the Content in any way. The use of hashtags must follow the general content guidelines. If the content only promotes the Brand, Company or Services and does not include an offer, its mandatory to accompany it with “18+. BeGambleAware.org” - observe this exact use of uppercase and lowercase (or any higher local gambling legal age). On some occasions the Company may agree to the usage of bespoke material, created by or on behalf of the Affiliate. Such content requires specific and in advance written approval by the Company before it can be used by the Affiliate. This section guidelines apply to any content, channel and medium, unless otherwise mentioned in the respective section.
2. Customer Offers When promoting Customer Offers, particularly welcome offers, enhanced price offers and free spins, Affiliates must be as clear as possible and must not mislead customers in any way. Affiliates must always make it clear that a promotion is a promotion. Affiliates must refrain from using phrases such as ‘Get free money’, ‘Risk-free’ or similar which may mislead the customer. A good rule of thumb is to use the copy that is provided by the Company.
1. Targeted players 2. Age restriction 3. Opt-in Requirement 4. Deposit information and restrictions 5. Information about offer 6. Wagering requirements and bonus expiry 7. Information about bet or winnings limitations 8. Game restrictions 9. Links to industry bodies that provide support in relation to Responsible Gambling, 10. Information about additional terms 11. Terms and Conditions (T&Cs) of offers
Below is an example of how to combine the different terms and conditions: “New UK customer only. Minimum deposit £10, Skrill excl.. Place any sportsbook bet (except Racing) of £20+ at min. odds of 1.40 (2/5) to receive your £20 casino welcome bonus. 35x bonus wagering, on selected games. Bonus expires 30 days after opt-in. T&Cs Apply. 18+, BeGambleAware.org.” This section guidelines apply to any content, channel and medium.
3. Tipsters Any Affiliate Site or social media page which publishes betting tips or hosts challenges/competitions encouraging others to do so:
Affiliates must never falsify betting results or manipulate images to suggest that results were more favourable than they were. Any Affiliate that is found to have misrepresented betting results will have its Affiliate account terminated immediately.
4. Email Marketing Affiliates are not permitted to engage in any email marketing activities on behalf of the Company without the Company's previous written approval, with each separate email and/or send-off requiring a specific approval. Within each email the following elements are mandatory:
The Affiliate must draft each email, and send it to the Company for approval. It must also send the full list of consented recipients in a hashed format fully GDPR compliant, which the Company will scrub against the Brand database. Once the Company returns the final list of recipients, the Affiliate has 48 hours to send the communication, or it will require a new scrub.
5. SMS Affiliates are not permitted to engage in any SMS marketing activities on behalf of the Company without the Company's previous written approval, with each separate SMS and/or send-off requiring a specific approval. The Affiliate must ensure to obtain each and every recipient’s explicit consent to receive such type of marketing communications and that such individuals have not opted out of receiving such communication type. Customer’s opt-out must be as easy as the opt-in. The use of bought-in lists is therefore forbidden. Within each SMS the following elements are mandatory:
The Affiliate must draft each SMS, and send it to the Company for approval. It must also send the full list of consented recipients in a hashed format fully GDPR compliant, which the Company will scrub against the Brand database. Once the Company returns the final list of recipients, the Affiliate has 48 hours to send the communication, or it will require a new scrub.
6. Social Media The aforementioned guidelines on Content and Customer Offers are also applicable to social media posts, plus content should have “#ad” in the post. In addition, each social media platform have their own guidelines and policies regarding the advertising of gambling products and the Affiliates must comply with such guidelines and policies For example, if promoting gambling through a Twitter, Facebook or any other social media platform, an age restriction warning sign (18+ or any higher local gambling legal age) and www.BeGambleAware.org link must be included in the Affiliate’s page bio, the page and/or content must be age restricted and any relevant agreement/addendum between the Affiliate and the social media platforms must be concluded and signed.
7. Paid Social Advertising Any paid social advertising conducted by an Affiliate should make clear the Affiliate’s identity. It should not be possible for a customer to confuse an Affiliate’s advertising for that directly carried out by the Brand. If in any doubt, Affiliates should contact the Affiliate Account Manager before publishing any campaigns. In addition, depending on the jurisdiction being targeted, the Affiliate may be required to sign an agreement/addendum with the platform to promote the Company’s Brand in this way.
8. Advertorials Featuring the Company’s Brand in any advertorial is expressly prohibited.
9. Broadcasting and Printing The Company does not wish for its Brand to feature in any broadcasting or printing marketing or advertising done by Affiliates. For the avoidance of doubt, Broadcasting includes, but is not limited to, all advertisements (including teleshopping, content on self-promotional television channels, television text and interactive tv ads) and programme sponsorship credits on radio and television services licensed by Ofcom. Any Affiliate found to be running this sort of activity will have its Affiliate account terminated immediately and further legal action may be taken against the Affiliate.
10. Media Buying Affiliates are not permitted to engage in any media buying promoting the Company’s Brand through advertising exchanges, programmatic networks, etc without prior written approval from the Company. The Company will require 100% visibility on this activity so that it can ensure the Brand is being promoted in a compliant manner, in line with specific Country regulations and restrictions.
11. Push Notifications, Pop-Ups and Pop-Unders Affiliates must not use push notifications, pop-ups or pop-unders to promote the Brand without prior written approval from the Company. The Affiliate must ensure to obtain each and every recipient’s explicit consent to receive such type of marketing communications and that such individuals have not opted out of receiving such communication type. Customer’s opt-out must be as easy as the opt-in, and is mandatory within each.
12. Pay-Per-Click Campaigns Affiliates wishing to run Pay-Per-Click (PPC) campaigns:
13. Domain Names/URLs Affiliates must not register or purchase any domain names which are identical or similar to, or misspellings of, the Brand names or trademarks. Any Affiliate who uses domain names in breach of this rule to send traffic to our Brand will have its Affiliate account terminated and further legal action may be taken against the Affiliate.
14. Mobile Apps Any Affiliate wishing to release mobile apps into the Apple, Google Play or other App stores must ensure that the App name does not include any Brand names or trademarks, or misspellings of Brand names. Any Affiliate found to have done so will be asked to remove the App immediately and may have its Affiliate account suspended and/or terminated.
15. Promotion of unlicensed Operators In Affiliate’s sites that target specific jurisdictions, either by using Country names, flags, language, currency, content, specific URLs or otherwise elements which regulators themselves consider as targeting their own jurisdiction, unlicensed Operators from regulated jurisdictions must not be advertised. Targeting of specific jurisdictions is any conduct that the Company, in its sole discretion, determines to be fitting into this category. APPENDIX B – ADVERTISING REQUIREMENTS AND PROCEDURES FOR AFFILIATE COMPLIANCE IN THE UK This Appendix clarifies advertising requirements and procedures specific for the UK, and must be read in conjunction with the rest of the Agreement and Appendices. In case of conflicting information, the most strict clause or requirement applies.
1. Statutory and Self-Regulatory Requirements There are various statutory and self-regulatory requirements that the Company and Affiliates must comply with when promoting and advertising gambling services in the UK. In particular, Affiliates must comply with the following requirements (collectively “UK Codes”):
These links are provided solely for informative purposes and should not be seen to be exhaustive. For the avoidance of doubt, it is up to the Affiliate to ensure that they are compliant with all advertising requirements, guidelines and legislation around the promotion of online gaming in the relevant jurisdiction. Any transgressions will lead to the suspension and possible termination of the Affiliate account within the Program. A breach of any of the obligations contained in this Appendix B is considered a material breach.
2. Joint Responsibility Affiliates are held jointly responsible with the Company by the UK advertising authority (Advertising Standards Authority) in respect of any advertising or Content that Affiliates publish on behalf of the Company in the UK or intended for UK Customers.
3. Specific Requirements for Content published in the UK Affiliates must pay special attention to the provisions of the UK Codes that prohibit marketing that is likely to appeal to under-18s and/or has ‘strong’ appeal to under-18s, irrespective of its appeal to adults. Affiliates should not use any medium for gambling advertising where the marketing would be directed at those aged below 18, or publicly available. Affiliates must not make publicly available on their Site(a) access to any free-to-play versions of gambling games - this requires age verification via KYC procedures. All Content displayed on Affiliate Sites should be clearly and prominently marked as ‘#ad’. All offers on Affiliate Sites are required to display significant terms and conditions in the body of the promotion and link directly to a compliant landing page provided by the Company which lists the full offer terms and conditions. For a list of terms and conditions that must be displayed on all offers, refer to section 2 “Customer Offers” on Appendix A. This requirement on the display of significant terms applies across any and all communication channels through which offers are promoted. The term ‘Risk Free’, ‘No Risk’, ‘Urgent’, ‘Now’, ‘Play Now’, ‘Hurry’, ‘Can’t lose’, ‘Get Rich’, ‘Win Big’ or variations of must not be used under any circumstances in relation to the Company’s offers. The term ‘Money Back’ or variations of must not be used under any circumstances in relation to the Company’s offers. Bonuses are credited as Bonus Money, Free Bets, or any other terminology as mentioned in the Company’s offer terms. APPENDIX C – DATA PROTECTION
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