This Affiliate and Marketing agreement (“Agreement”) contains the complete terms and
conditions between
heroicaffiliates.com ("Company", ‘’we’’, ‘’us’’), and you
(‘’Affiliate’’, "you"
and "your"), regarding your application to participate as an affiliate in the Company’s
Affiliate marketing
program and your participation in the Affiliate program and provision of the marketing services
in respect of the
sites.
1. DEFINITIONS
"Affiliate" means you, the person or entity who applies to participate in the Affiliate
Program.
"Affiliate Application" means the application form found at heroicaffiliates.com whereby
the Affiliate applies
to participate in the Affiliate Program.
"Affiliate Program" means the collaboration between the Company and the Affiliate whereby
the Affiliate will
promote the Branded Website and create the Links from the Affiliate Website(s) to the Branded
Website and thereby be
paid a commission as defined under this Agreement depending on the traffic generated to the
Branded Website subject
to the terms and conditions of this Agreement.
"Affiliate Remuneration" means the income the Affiliate earns based on the promotion of
Branded Website
products and services and by players referred by the Affiliate to Branded Website, as detailed
in the clause 6.
“Affiliate Services” means the Affiliate’s promotion of the Branded Website and the
creation of the Links from
the Affiliate Website(s) to the Branded Website.
"Affiliate Website(s)" means one or more websites on the Internet which are maintained and
operated by the
Affiliate.
"Agreement" means (i) all the terms and conditions set out in this document, (ii) the
Privacy Policy, and
(iii) any other rules and/or guidelines of the Company and/or the Branded Website made known to
the Affiliate from
time to time.
“AML Legislation” shall mean 4th Anti-Money Laundering Directive of the European Union and
any legislation
that shall succeed such legislation from time to time.
“Approved Marketing Material” means the banners, text and/or other online or offline
promotional materials and
any associated intellectual property rights thereto which is either provided by the Company or
is consented by
Company or created in line with this agreement and the respective marketing guidelines.
"Branded Website” means various e-gaming websites, developed, managed, marketed and/or
promoted by the
Company.
“Database” means any information stored about Affiliates and New Customers, containing any
Company proprietary
New Customer data for the purposes of this Agreement, including without limitation to personal
data and contact
information, and excluding all other Company databases, as it stands as of the date of this
Agreement, and
throughout the date of termination of this Agreement.
“Data Protection Law” means all regulations and data protection principles made under
applicable legislation,
including, but not limited to the European Union General Data Protection Regulation (2016/679)
(“GDPR”).
"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 Affiliate Website(s) to the Branded Website.
"Net Revenue" means in relation to casino gaming: all monies received by Branded Website
from New Customers in
relation to casino gaming activities less (a) monies paid out to New Customers as winnings, (b)
bonuses and/or
loyalty bonuses, (c) administration fees, (d) fraud costs, (e) charge-backs, (f) returned stakes
(g) monies paid out
as duties or taxes (h) any commissions/fees due to third parties for providing/licensing games
and/or software; and
for the avoidance of doubt, all amounts referred to above are only in relation to amounts
generated from New
Customers referred to the Branded Website by the Affiliate Website(s).
"New Customer" means a new first-time customer of the Branded Website who:
- (i) has created a new player account, registering directly after having been referred from
the Affiliate
Website(s) to the Branded Website;
- (ii) has made a first deposit amounting to at least the applicable minimum in the Branded
Website betting
account in accordance with the applicable terms and conditions of the Branded Website, but
excluding the
Affiliate, its employees, relatives and/or friends; and
- (iii) is not already in Branded Website customer database (where the customer has previously
closed his betting
account and opened a new one through the Affiliate, such condition shall be deemed not to be
satisfied).
"Parties" means the Company and the Affiliate (each a "Party").
"Privacy Policy" means privacy policy, which can be found by clicking the link named
"Privacy Policy" in the
footer of the Branded Website.
“Sub-Affiliate” means an individual and/or entity that an Affiliate directs in any
appropriate manner to
Company and who can be linked to the Affiliate’s unique Affiliate account / identity, which
person or entity becomes
an Affiliate of Company.
“Sub-Affiliate Deal” means the Company’s approval for an Affiliate to refer Affiliates to
the Website.
- 1.1 The Company is responsible for the Approved Marketing Material of the online gaming
activities offered
through the Branded Website.
- 1.2 The Affiliate maintains and operates the Affiliate Website(s).
- 1.3 This Agreement sets out the general terms and conditions of the Affiliate Program and is
entered into
between the Company and the Affiliate.
- 1.4 By completing and accepting the Affiliate Application the Affiliate accepts and agrees
to abide by all the
terms and conditions of the Agreement including any advertising guidelines as may be issued
by the Company from
time to time and which are available on heroicaffiliates.com.
- 1.5 This Agreement shall be binding on the Affiliate as soon as the Affiliate submits the
Affiliate Application
but shall not be binding or enter into effect in relation to the Company until the Company
approves the said
Affiliate Application.
2. ACCEPTANCE OF AFFILIATE
- 2.1 The Company shall evaluate the Affiliate Application hereby submitted and shall notify
the Affiliate in
writing (via email) whether the Affiliate Application is accepted or not. The Company
reserves the right to
refuse any registration in its sole and absolute discretion. The Company’s decision is final
and not subject to
any right of appeal.
- 2.2 Once confirmed in accordance with the above, the Affiliate is granted the non-exclusive
right to direct
customers to the Branded Website in accordance with the conditions set out in this
Agreement. This right is
non-assignable. The Affiliate understands that the Company has the right to procure
Affiliate Services from
others performing services of the same or similar nature to those provided by the Affiliate.
The Affiliate,
unless granted a Sub-Affiliate Deal by the Company, shall have no claim to Affiliate
Remuneration or other
compensation on business secured by or through persons or entities other than the Affiliate.
3. QUALIFYING CONDITIONS
3.1. The Affiliate hereby represents and warrants that:
- (i) it has, and will retain throughout the term of this Agreement, title and authority to
enter into this
Agreement, to grant the rights and perform all its obligations in this Agreement;
- (ii) it has provided the Company with complete, valid and truthful information;
- (iii) it has obtained and will maintain in force all necessary registrations,
authorizations, consents and
licenses necessary to fulfill its obligations under this Agreement;
- (iv) it shall comply with all applicable laws and regulations in the performance of their
obligations; and
- (v) it fully understands and accepts the contents of this Agreement.
4. AFFILIATE SERVICES
- 4.1. The Company shall provide the Affiliate with statements accessible through its
Affiliate Account at
heroicaffiliates.com detailing, inter alia, the number of New Customers and the Affiliate
Remuneration, if any,
which has accrued to the Affiliate over the course of the calendar month.
- 4.2. The Affiliate shall at all times faithfully, industriously and to the best of its
ability, experience and
talent, with all due skill, care and diligence, and in accordance with all applicable laws,
enactments, orders,
regulations and other similar instruments, perform all of its obligations hereunder. The
Affiliate shall use its
best efforts to promote the interests of the Company, its business and Branded Websites.
- 4.3. For the purposes of the subject Agreement, the Company hereby grants to the Affiliate a
non-exclusive,
non-transferable, royalty free and terminable license to use the Company’s trademarks,
including without
limitation, logos and/or trade names, in the Affiliate Website. For the avoidance of doubt,
nothing in this
Agreement shall constitute any license, assignment, transfer or any other right to any
Intellectual Property
Rights. It is understood that the Affiliate only has a right of use of the Approved
Marketing Material provided
by the Company.
- 4.4. It is hereby acknowledged by the Affiliate that the Company may monitor the Affiliate
Website to ensure the
Affiliate is complying with the terms of this Agreement and thereby the Affiliate shall
provide the Company with
all data and information, inter alia, passwords, to enable the Company to perform such
monitoring at no cost to
the Company. However, it is understood and agreed by the Parties that the Affiliate is
solely responsible for
the Marketing Material content, its legality and methods of diversion of New Customers.
- 4.5. 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 2 (two) years afterwards. The
Affiliate shall allow
the Company and/or its auditors access to such records for the purposes of conducting the
audit.
5. TERM
5.1. This Agreement shall commence on the earlier date of:
- (i) date when the Affiliate Application is accepted;
- (ii) date when the Affiliate starts offering, promoting or otherwise directing traffic and
increasing genuine
registrations on Branded Websites;
and shall continue, unless terminated earlier in accordance with the provisions of the clause
8.
6. AFFILIATE REMUNERATION
- 6.1. In consideration of the provision of the Affiliate Services the Affiliate shall be
entitled to the monthly
remuneration in the amount agreed in the Affiliate deal of the Net Revenue. The standard
deals that are made
available are as follows:
- - 25% of NGR, if monthly NGR is equal or below 1,000 EUR;
- - 30% of NGR, if monthly NGR is between 1,000 EUR and 2,500 EUR;
- - 35% of NGR, if monthly NGR is between 2,500 EUR and 5,000 EUR;
- - 40% of NGR, if monthly NGR is from 5,000 EUR
- 6.2. Affiliate Remuneration shall exclude any taxes, duties, fees, excises or tariffs
imposed on any of
Affiliate’s activities in connection with the Agreement. Such charges, taxes, duties, fees,
excises or tariffs,
if any, shall be borne solely by the Affiliate. The Company shall under no circumstances
whatsoever be held
liable for any such amounts unpaid but found to be due by the Affiliate and the Affiliate
shall indemnify the
Company in that regard in the event that the Company had to disburse such amount.
- 6.3. At the beginning of each calendar month, the Company shall record the Affiliate’s total
Affiliate
Remuneration, if any, during the previous calendar month. The Affiliate Remuneration amount
shown after the 10th
day of the month will be deemed final. Payments shall be made to the bank account designated
by the Affiliate by
the 15th of the following calendar month in which the Affiliate Remuneration was earned and
provided that the
amount due exceeds €100 (one hundred euro) or a higher amount chosen by the Affiliate
("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 total Affiliate Remuneration collectively exceed the
Minimum Threshold. The
Affiliate's acceptance of the payment of the Affiliate Remuneration shall be deemed to
constitute the full and
final settlement of the balance due for the relevant period.
- 6.4. In the event that a New Customer:
- (i) has been introduced in breach of any term of the Agreement;
- (ii) fails any identity or credit checks carried out in the scope of registration
process on the Branded
Website;
- (iii) is located in a restricted territory from which no customers are accepted;
- (iv) becomes known to the Company as a person who does not properly fall within the
definition of a “New
Customer”, the Affiliate shall not be entitled to receive any Affiliate Remuneration
in respect of such
customer. In the event that any such payment has already been made to the Affiliate
in respect of such
customer,
the Affiliate shall promptly repay the amount paid on receiving notice.
- 6.5. The Affiliate agrees to return all Affiliate Remuneration received based on fraudulent
or falsified
transactions and indemnify the Company for all costs and losses incurred in relation to such
transactions
(including, but without limitation, legal fees and costs).
7. WARRANTIES AND OBLIGATIONS
- 7.1. Affiliate hereby represents, warrants and undertakes:
- (i) not to introduce and facilitate placing of bets for any customers that are
existing customers of the
Branded
Website and not to do anything that would cause the Company to reasonably believe
that a New Customer
has
registered or placed a bet when that is not the case;
- (ii) the Affiliate has obtained and will maintain in force all necessary
registrations, authorizations,
consents
and licenses to enable the Affiliate to fulfil its obligations under this Agreement
and that the
Affiliate will
fully comply with all applicable laws and regulations, including but not limited,
any advertising codes,
Data
Protection Law, and subsidiary legislation as may be applicable from time to time;
- (iii) the Marketing Material will not contain any material which is defamatory,
violent, pornographic,
unlawful,
threatening, obscene or racially, ethnically, or otherwise discriminatory or in
breach of any
third-party rights
and shall not link to any such material;
- (iv) the Affiliate will not seek to challenge the validity of the Intellectual
Property Rights belonging
to the
Company or associated with Branded Websites;
- (v) the Affiliate will not edit, alter or amend any Approved Marketing Materials
without the Company’s
consent;
- (vi) the Affiliate shall comply with the Company’s security guidelines and
requirements as may be issued
by the
Company from time to time, whether in writing or otherwise;
- (vii) all information provided by the Affiliate is true and correct, and that the
Affiliate shall notify
the
Company promptly of any changes;
- (viii) the Affiliate shall ensure that all communications originating from the
Affiliate relating to the
Company
make it clear that such communications are sent by and on behalf of the Affiliate
(and not from or on
behalf of
the Company);
- (ix) the Affiliate shall not encourage or assist any New Customer to: (a) breach any
terms and
conditions agreed
to when opening the account; (b) engage in behavior which in the Company’s
reasonable opinion breaches
the terms
or abuses the spirit of promotion, competition, tournament or offer managed by the
Company;
- (x) the Affiliate shall not target any person who is under the legal age for
gambling and shall not
enter
into/continue this Agreement if it targets any markets where gambling is illegal or
where the promotion,
marketing or advertising of gambling is illegal;
- (xi) to market and refer potential players to the Branded Website at its own risk,
cost and expense. The
Affiliate will be solely responsible for the distribution, content, legality and
manners of its
marketing
activities. All of the Affiliate's marketing activities must be professional, proper
and lawful under
applicable
laws and regulations and in accordance with this Agreement;
- (xii) to ensure that all news, offers and promotions are current and up to date;
- (xiii) to be responsible for the development, the operation, and the maintenance of
the Affiliate
Website(s), as
well as for all material appearing on the Affiliate Website(s), and keep the
Affiliate Website content
compliant
with any content and phrasing obligations and/or restrictions imposed on the Company
by legal and/or
regulatory
requirements and/or third-party suppliers;
- (xiv) the Affiliate expressly acknowledges and agrees that the use of the Internet
and compliance with
the terms
of this Agreement are at the Affiliate's own risk. The Company makes no guarantee in
relation to the
accessibility of the Branded Website at any particular time or any particular
location. The Company
shall in no
event be liable to the Affiliate or anyone else for any inaccuracy, error or
omission in, or loss,
injury or
damage caused in whole or in part by failures, delays or interruptions of the
Branded Website;
- (xv) in the event the Affiliate wishes to place the Approved Marketing Material on
websites other than
the
Affiliate Website, the Affiliate must first obtain the Company’s written consent;
- (xvi) the Affiliate shall not register or purchase domain names, keywords, search
terms or other
identifiers for
use in advertising or search or referral services which are similar or identical
with the Intellectual
Property
Rights of the Company and its group companies, or clients having the Branded
Websites, or which include
the word
"Slotman", "Heroicaffiliates" or variations thereof. The Affiliate shall not create
any applications or
Internet
pages falsely representing the company or any its clients in any way, shape or form
on any social media
channels;
- (xvii) that it will not generate traffic to the Branded Website by illegal or
fraudulent activity,
particularly
but not limited to by: (a) sending spam or unsolicited mail in its attempt to refer
New Customers to the
Branded
Website; (b) registering as a player or make deposits directly or indirectly to any
player account
through his
tracker(s) for its own personal use and/or the use of its relatives, friends,
employees or other third
parties,
or in any other way attempt to artificially increase the commission payable or to
otherwise defraud the
Company.
Violation of this provision shall be deemed to be fraud; and (c) that it will not
present the Affiliate
Website(s) in such a way that it might evoke any risk of confusion with the Branded
Website and/or the
Company
or convey the impression that the Affiliate Website(s) is partly or fully associated
with/from the
Branded
Website and/or the Company;
- (xviii) the Affiliate shall not be under 18 (eighteen) years of age and must be able
to provide the
Company upon
request at any time, a copy of his/her ID, billing address and/or other documents.
Refusal to do so may
be
considered, at the Company’s sole discretion, as fraudulent activity;
(xix) not to register more than one Affiliate account with the Affiliate Program.
Any exceptions must be
confirmed in writing by the Company’s Head of Affiliates;
- 7.2. If the Company determines, at its sole discretion, the Affiliate has engaged in the
activities specified
above, the Company shall have the right to:
- (i) suspend any payments due to the Affiliate while the Company investigates any
suspected breach,
and/or;
- (ii) withhold payment of any Affiliate Remuneration due to the Affiliate that has
derived from the
breach,
and/or;
- (iii) retain the Affiliate Remuneration until the debt is settled or invoice the
cost incurred by such
breach
and/or;
- (iv) terminate the Agreement immediately.
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.
The decision by the Company to pursue any of its rights or remedies under the
present clause shall be
without
prejudice to any other rights, remedies, legal actions or compensations available to
the Company.
- 7.3. Each of the Parties represents, warrants and undertakes that:
-
(i) it has the full right, power, legal capacity and authority to (a) enter into
this Agreement and any
other
documents that may be associated with the Agreement, and (b) perform its obligations
under this
Agreement,
subject to regulatory approvals;
- (ii) entering into this Agreement and its performance will not conflict with, or
breach the terms,
conditions or
provisions of, or default under any other agreement to which it is a party; and
- (iii) there is no action, suit or proceeding at law or in equity now pending or, to
its knowledge,
threatened by
or against or affecting it which would substantially impair its right to carry on
its business as
contemplated
herein or to enter into or perform its obligations under this Agreement, or which
adversely affect its
financial
condition or operations.
8. TERMINATION
- 8.1. This Agreement may be terminated by either the Company or the Affiliate at any time by
giving 30 (thirty)
days written (by email) notice of termination. Such notice may be given for any reason, with
or without cause.>
- 8.2. The Company has the right to terminate the Agreement immediately in the event that:
- (i) the Affiliate breaches any of the terms of this Agreement which, in the case of
a breach capable of
remedy, has
not been remedied within 5 (five) days of receipt of a notice from the Company
specifying the breach and
requiring
its remedy;
- (ii) the Affiliate suspends, or threatens to suspend, payment of its debts or is
unable to pay its debts
as they
fall due, begins negotiations for or makes any voluntary arrangement with its
creditors, becomes subject
to an
administration order, has an administrative receiver or receivers appointed in
respect of the whole or
any part of
its assets, goes into liquidation (voluntary or otherwise save for any voluntary
liquidation entered
into solely for
the purposes of a bona fide reconstruction or amalgamation);
- (iii) the Affiliate is made the subject of a bankruptcy petition or order;
- (iv) the Affiliate ceases or threatens to cease carrying on its business;
- (v) the Company ceases to accept New Customers from or to advertise in any
jurisdiction which is
targeted by the
Approved Marketing Material;
- (vi) the Company is of a reasonable opinion that there is no further mutual business
to be carried out
by the
Parties.
- 8.3 The Parties hereby agree that on termination of this Agreement:
- (i) the Affiliate must remove all references to the Branded Website from the
Affiliate Website(s) and
communications, irrespective of whether the communications are commercial or
otherwise;
- (ii) all rights granted to the Affiliate under this Agreement shall immediately
terminate and the
Affiliate
shall cease the use of any Intellectual Property Rights vested in the Company and
Branded Website;
- (iii) the Affiliate will only be entitled to such Affiliate Remuneration that is
earned but unpaid as of
the
effective termination date of this Agreement; however, provided that the Company may
withhold the
Affiliate's
final payment for a reasonable time to ensure that the correct amount is paid. The
Affiliate will not be
eligible to earn or receive Affiliate Remuneration after the effective termination
date;
- (iv) if this Agreement is terminated by the Company due to the Affiliate's breach of
any terms and
conditions of
this Agreement, the Company shall be entitled to withhold the Affiliate's earned but
unpaid Affiliate
Remuneration as of the termination date as collateral for any claim arising from
such breach and it
shall be in
its sole discretion whether to pay such earned by unpaid Affiliate Remuneration to
the Affiliate;
- (v) the Affiliate must return to the Company any and all Confidential Information
(and all copies and
derivations thereof) in the Affiliate's possession, custody and control; and
- (vi) the Affiliate will release the Company from all obligations and liabilities
occurring or arising
after the
date of such termination, except with respect to those obligations that by their
nature are designed to
survive
termination. Termination will not relieve the Affiliate from any liability arising
from any breach of
this
Agreement, which occurred prior to termination and/or to any liability arising from
any breach in
relation to
Confidential Information even if the breach arises at a time following the
termination of this
Agreement.
- 8.4. Termination of this Agreement shall be without prejudice to any rights or obligations
which shall have
accrued prior to termination.
9. DATABASE; DATA PROTECTION AND SECURITY
- 9.1. Company shall be the sole owner of the Database. Notwithstanding the foregoing,
Affiliate shall store or
utilize any New Customer data to the extent necessary to perform its obligations under this
Agreement. In doing
so, Affiliate shall maintain any such data in strict confidence and shall disclose any New
Customer data
retained by it to any third party solely to the extent necessary in order to perform its
obligations hereunder
and comply with the applicable legislation.
- 9.2. The Affiliate acknowledges that the security of the Company’s data and its systems is
fundamental to the
business of the Company, and if the Affiliate becomes aware of a breach or potential breach
of security, the
Affiliate will immediately notify the Company of such breach or potential breach and use
best endeavors to
ensure that any potential breach does not become an actual breach and to remedy any actual
breach and its
consequences.
- 9.3. Each Party shall, at all times, comply with its respective obligations under the Data
Protection Law in
relation to all personal data that is processed by it in the course of performing its
obligations under this
Agreement. Neither Party shall do any act that puts the other in breach of its obligations
under the Data
Protection Law.
10. COOPERATION
- 10.1. The Company shall provide such access to its information and property as may be
reasonably required in
order to permit the Affiliate to perform its obligations hereunder. The Affiliate shall
cooperate with the
Company's personnel and shall observe all rules, regulations and security requirements of
the Company concerning
the safety of property and business of the Company.
11. INDEPENDENT PARTIES
- 11.1. It is the express intention of the Parties to this Agreement that the Affiliate is an
independent
contractor and is classified by the Company as such for all employee benefit purposes, and
is not an employee,
agent, joint venture, or partner of the Company. Nothing in this Agreement shall be
interpreted or construed as
creating or establishing an employment relationship between the Company and the Affiliate.
Affiliate shall have
no authority to assume, create, or enlarge any obligation or commitment on behalf of the
Company without the
prior written consent of the Company.
12. CONFIDENTIAL INFORMATION
- 12.1. Affiliate understands that the Company possesses Proprietary Information (as defined
below) which is
important to its business and that this Agreement creates a relationship of confidence and
trust between
Affiliate and the Company with regard to Proprietary Information.
- 12.2. For purposes of this Agreement, “Proprietary Information” is information that was or
will be developed,
created, or discovered by or on behalf of the Company, or is developed, created or
discovered by Affiliate while
performing Affiliate Services, or which became or will become known by, or was or is
conveyed to the Company
which has commercial value in the Company’s business. Proprietary Information includes, but
is not limited to,
trade secrets, designs, technology, know-how, works of authorship, source and object code,
algorithms,
processes, data, computer programs, ideas, techniques, inventions (whether patentable or
not), business and
product development plans, New Customers, other customers and users of Branded Website,
customer lists and other
information concerning the Company’s actual or anticipated business, research or
development, personnel
information, terms of compensation and performance levels of Company employees, or
information which is received
in confidence by or for the Company from any other person.
- 12.3. At all times, both during the term of this Agreement and after its termination,
Affiliate will keep in
confidence and trust, and will not use or disclose any Proprietary Information without the
prior written consent
of the Company.
- 12.4. The Affiliate may disclose the Proprietary Information:
- (i) to its employees or advisers who need to know such information for the purposes
of carrying out the
Affiliate's obligations under this Agreement. The Affiliate shall ensure that its
employees or advisers
to whom
it discloses the Proprietary Information comply with this clause; and
- (ii) as may be required pursuant to applicable federal, state or local laws or
regulations or pursuant
to
subpoena or judicial order, provided, however, that the Affiliate notifies the
Company in writing of
such
regulation, subpoena or judicial order as soon as practicably possible and provides
the Company with
adequate
time to respond before it makes such disclosure.
13. FORCE MAJEURE
- 13.1. Neither Party hereto shall be deemed in default hereunder or liable for any loss or
damage resulting from
delays in performance or from failure to perform or comply with the terms of this Agreement
due to any causes
beyond its reasonable control to the extent that such delay or non-performance is due to any
force majeure,
which causes include but are not limited to, acts of God or the public enemy; riots and
insurrections, war,
accidents, fire, public power shortages, malfunctions or failures in public
telecommunication or IT services or
breakdown of other public infrastructures, strikes and other labour difficulties (whether or
not the Party
hereto is in a position to concede to such demands), embargoes, judicial action, lack of or
inability to obtain
labour, energy or components, acts of civil or military authorities (“Force Majeure”).
- 13.2. If the Force Majeure in question prevails for a continuous period in excess of 1 (one)
month, either Party
may terminate this Agreement. Without derogating from the foregoing, in the event that the
Parties wish to
continue their engagement, the Parties shall enter into bona fide discussions with a view to
alleviating its
effects or to agreeing upon such alternative arrangements as may be fair and reasonable.
14. INDEMNIFICATION; LIMITATION OF LIABILITY
- 14.1. The Affiliate will indemnify and hold harmless the Company, and its group
companies/affiliates,
successors, officers, employees, agents, directors, shareholders and attorneys, from and
against any and all
losses, demands, claims, damages, costs, expenses (including consequential losses and loss
of profit, reasonable
legal costs and expenses) and liabilities suffered or incurred, directly or indirectly, by
the Company in
consequence of any breach by the Affiliate of obligations under this Agreement or any
applicable laws.
- 14.2. The Company shall not be liable (in contract, tort, breach of statutory duty or in any
other way) for:
- (i) any economic losses, including but without limitation, loss of profits,
revenues, business,
contracts or
anticipated savings);
- (ii) any indirect or consequential losses; or
- (iii) any loss of goodwill or reputation.
- 14.3. If despite the foregoing limitations, the Company should become liable to the
Affiliate or any other
person ("Claimant"), the maximum aggregate liability of Company shall be limited to the
lesser of the actual
amount of loss or damage suffered by Claimant or the sum of Affiliate Remuneration payable
within the three
months prior to the loss.
- 14.4. With regard to Company’s indemnification obligations as set out in the clause 14.3.,
that obligation is
limited to the extent that the Affiliate fully complies with the following obligations:
(i) promptly notifies Company of any claim or allegation that could give rise to the
indemnity;
(ii) makes no admissions in relation to such claim or allegation without Company’s prior
consent;
(iii) takes reasonable action to mitigate the effect or quantum of such claim or allegation;
(iv) permits Company to handle such claim or allegation and make all decisions in any
subsequent proceedings and
conduct negotiations for agreement or settlement.
- 14.5. This clause states the entire liability of Company with respect to infringement of any
third-party
intellectual property rights and Company shall have no additional liability under contract,
tort, warranty or
any other legal theory with respect to any alleged or proven infringement.
15. NOTICES
- 15.1. Any notice given or made under this Agreement to the Company shall be sent by email to
and marked for the
attention of the Head of Affiliates unless otherwise notified by the Company. The Company
shall send all notices
by email to the email address supplied by the Affiliate. A notice shall be deemed to have
been duly received at
9:00 am (GMT time zone) the following day (other than a Saturday or a Sunday) on which banks
are opened in the
Republic of Seychelles.
- 15.2. The provisions of this clause shall not apply to the service of any proceedings or
other documents in any
legal action.
16. ENTIRE AGREEMENT
- 16.1. This Agreement constitutes this entire agreement between the Parties and supersedes
all prior agreements
and understandings, whether written or oral, relating to the subject matter of this
Agreement. In case of
conflict between this Agreement and any other agreements entered into between the Company
and the Affiliate, the
contents of this Agreement shall prevail.
17. AMENDMENT
- 17.1. The Company reserves the right to, at any time and at its sole discretion, with or
without giving any
prior notice to the Affiliate, amend, alter, delete or add any of the provisions of this
Agreement. When
possible, a notice of the amendments will be sent to the Affiliate's registered email
address and such notice
will be deemed to be served once sent by the Company. The Affiliate's continuing
participation in the Affiliate
Program after any amendments or modifications have been made public will be deemed as the
Affiliate's acceptance
of the new terms and conditions.
- 17.2 It shall be the sole responsibility of the Affiliate to keep updated with the latest
version of this
Agreement.
18. DISPUTE RESOLUTION PROCEDURE. MEDIATION AND ARBITRATION
-
18.1. If a dispute arises out of or in connection with this Agreement or the performance,
validity or
enforceability of it (“Dispute”) then, except as expressly provided in this Agreement, the
Parties shall follow
the dispute resolution procedure set out in this clause:
- (i) either Party shall give to the other written notice of the Dispute, setting out
its nature and full
particulars
(“Dispute Notice”), together with relevant supporting documents. On service of the
Dispute Notice
Company and
Affiliate shall attempt in good faith to resolve the Dispute;
- (ii) if Company and Affiliate are for any reason unable to resolve the Dispute
within 30 (thirty) days
of it being
referred to them, either Party may take such further steps as set out in the clause
18.2. herein-below.
- 18.2. In the event of an unsolved Dispute arising out of or relating to this Agreement,
including any question
regarding its existence, validity or termination, the Parties shall seek settlement of that
Dispute by mediation
in accordance with the LCIA Mediation Procedure, which Procedure is deemed to be
incorporated by reference into
this clause.
- 18.3. If the Dispute is not settled by mediation within 60 (sixty) days of the appointment
of the mediator, or
such further period as the Parties shall agree in writing, the Dispute shall be referred to
and finally resolved
by
arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference
into this clause.
The language to be used in the mediation and in the arbitration shall be English. In any
arbitration commenced
pursuant to this clause: (i) the number of arbitrators shall be 1 (one); and (ii) the seat,
or legal place, of
arbitration shall be London.
19. GOVERNING LAW AND DISPUTE RESOLUTION
- 19.1. 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 by and construed
in accordance
with
the laws of England and Wales.
- 19.2. Each Party irrevocably agrees that the courts of England and Wales shall have
exclusive jurisdiction
to
settle any Dispute or claim arising out of or in connection with this Agreement or its
subject matter or
formation (including non-contractual disputes or claims).
20. SUCCESSORS AND ASSIGNS
- 20.1. This Agreement shall be binding upon, and inure to the benefit of, both Parties and
their respective
successors and assigns.
- 20.2. The Affiliate shall not without the prior written consent of the Company assign,
transfer, mortgage,
charge or deal in any other manner with any of its rights or obligations under this
Agreement (or purport to
do
so). Any purported or attempted assignment in violation of this clause shall be null and
void.
- 20.3. The Company may at any time and without the consent of the Affiliate assign any rights
or obligations
under this Agreement provided that the Affiliate is duly notified about such assignment.
21. MISCELLANEOUS
- 21.1. Each Party shall and shall use all reasonable endeavors to procure that any necessary
third party
shall
execute such documents and perform such acts as may reasonably be required for the purpose
of giving full
effect
to this Agreement.
- 21.2. Each Party acknowledges and agrees that, in entering into this Agreement, it has not
relied on, and
shall
have no right or remedy in respect of, any statement, representation, assurance or warranty
(whether
negligently
or innocently made) other than as expressly set out in this Agreement.
- 21.3. The captions of the sections of this Agreement are for convenience of reference only
and in no way
define,
limit or affect the scope or substance of any section of this Agreement.
- 21.4. If any provision of this Agreement shall be held by a court of competent jurisdiction
to be illegal,
invalid or unenforceable, the remaining provisions as applicable shall remain in full force
and effect. The
invalid or ineffective term shall be reasonably replaced by a term that most closely
reflects the intended
purpose of the Agreement. The same applies in case of any gap and as regards the
interpretation hereof.
- 21.5. No waiver of any breach of any provision of the Agreement shall constitute a waiver of
any prior,
concurrent or subsequent breach of the same or any other provisions hereof, and no waiver
shall be effective
unless made in writing and signed by an authorized representative of the waiving Party. No
delay or omission
by
the Company or Affiliate in exercising any right under this Agreement shall operate as a
waiver of that or
any
other right. A waiver or consent given by the respective Party on any one occasion shall be
effective only
in
that instance and shall not be construed as a waiver of any right on any other occasion.
- 21.6. Neither this Agreement in general nor any term, warranty or condition contained herein
shall be
construed
to be in favor of any third party.
- 21.7. Save as otherwise stated herein, each Party shall bear its own costs in relation to
the negotiation,
preparation, execution and carrying into effect of this Agreement.
- The present Agreement shall be considered signed by the Company upon its publication on the
website.