Affiliate Agreement Terms and Conditions
Version Number 2: 25 May 2018
Please read these terms and conditions carefully. If you have any questions, please send an email to info@IvyAffiliates.com.
1.1. This agreement (“Agreement”) is between you being a legal entity applying to register as a member of the Ivy Affiliates programme (referred to as “Affiliate”) and WhiteZip Limited , a company registered at 71–75 Shelton Street, Covent Garden, London,WC2H 9JQ, United Kingdom with company number 09803046 (referred to as “Ivy Affiliates”).
1.2. If Ivy Affiliates accepts the Affiliate into the Affiliate Programme (as defined below), this Agreement shall cover the Brand Websites as defined in Schedule 1. Each Brand Website is operated by Caddell Limited N.V., a company incorporated and registered in Curacao with company number 128798 and whose registered office is at Van Engelenweg 23, Curacao (“Caddell”) or a Group Company or sister companies of Caddell.
1.3. Ivy Affiliates will review the Affiliate´s application to participate in the Affiliate Programme (as defined below) and may, in its sole discretion, accept or reject such application. Ivy Affiliates may notify the Affiliate about any further information or other criteria that may be required from the Affiliate in order for the Affiliate to be accepted into the Affiliate Programme, and the Affiliate shall provide such further information and/or fulfil such criteria if it wishes to be accepted into the Affiliate Programme. Without limiting the generality of the foregoing, Ivy Affiliates may reject the Affiliate´s application if the Affiliate Website (as defined below) and/or any domain name or sub-domain owned or controlled by the Affiliate (whether used or intended to be used for the provision of the Affiliate Website or otherwise): (i) contains any Prohibited Material (as defined below); (ii) consists of, includes or is confusingly similar to any of the Brand Marks (as defined below) or Prohibited Terms (as define below); and/or (iii) appears to have been registered in bad faith. In order for the Affiliate to be accepted into the Affiliate Programme, Ivy Affiliates may require that the Affiliate removes the foregoing material, and/or either transfers to an Ivy Affiliates Group Company or its licensors or (in Ivy Affiliates´ or such licensors´ sole discretion) deletes any such domain name or sub-domain. The Affiliate shall inform Ivy Affiliates about any such domain name or sub-domain owned by the Affiliate or under its control at the time the Affiliate makes its application to participate in the Affiliate Programme.
1.4. If the Affiliate is accepted into the Affiliate Programme, the Affiliate agrees to provide the Services (as defined below) to Ivy Affiliates on the terms of this Agreement.
1.5. This Agreement replaces all previous terms and conditions for the Affiliate Programme. Ivy Affiliates may change these terms and conditions at any time. Ivy Affiliates shall publish the date on which any changes to this Agreement are made by way of an update. Your continued use of the Affiliate Programme following any change to this Agreement will constitute binding acceptance of such changes. If you do not agree to any such changes, you should terminate this Agreement pursuant to clause 14.2.
1.6. The Affiliate acknowledges that regulations 9(1), 9(2) and 11(1) of the Electronic Commerce (EC Directive) Regulations shall not apply to this Agreement.
2. DEFINITIONS AND INTERPRETATION
2.1. Capitalised words and expressions in this Agreement shall have the meanings set out below:
“Affiliate Programme” means the Ivy Affiliates affiliate programme, under which the Affiliate agrees to promote the Brand Websites.
“Affiliate Revenue Share” means the percentage of Net Gaming Revenue payable to an Affiliate in relation to a Player on any Brand Website, as such percentage is set out in relation to each Brand Website at Schedule 2 (or in the case of a Brand Website not set out in Schedule 2, as such percentage is notified in writing to the Affiliate by Ivy Affiliates).
“Affiliate Website” means any website(s) including social media platforms and accounts (including any device specific versions of such website(s) and any native applications related to such website(s)) that are operated by or on behalf of the Affiliate and which Ivy Affiliates approves in writing for use by the Affiliate in the Affiliate Programme from time to time (including as part of the Affiliate´s application to participate in such programme).
“Applicable Laws” means any applicable statutes, ordinances, orders, judgments, decrees, rules or regulations promulgated by any regulatory, administrative or judicial authority or otherwise in force in any jurisdiction that relates to the performance of the Services or obligations under this Agreement.
“Brand Guidelines” means any guidelines and parameters for use of the Brand Marks that may be provided to the Affiliate by Ivy Affiliates from time to time and includes the Marketing Guidelines.
“Brand Marks” means the trademarks and logos of the Brand Websites, including those set out in Schedule 1.
“Brand Websites” means each of the websites set out at Schedule 1 to this Agreement (including any device specific versions of such websites and any native applications relating to such websites), and any other websites (including any device specific versions of such websites and any native applications relating to such websites) which Ivy Affiliates may introduce to the Affiliate Programme from time to time.
“Caddell Group” means Caddell and each of its Group or sister Companies from time to time.
“Charitable Donation” means a charitable donation made to the GREAT Foundation or another suitable charity by, or on behalf of, Ivy Affiliates and calculated by Ivy Affiliates at 0.15% of Gross Win at the end of each month.
“Commencement Date” means the date on which acceptance of the Affiliate´s application to join the Affiliate Programme is notified to the Affiliate by Ivy Affiliates.
“Commission” has the meaning set out in clause 4.1.
“Commission Structure” means the Commission structure as set out in the “Affiliate Commission Structures” table in Schedule 2.
“Confidential Information” means all knowledge, information or materials of whatever nature and in whatever form (whether oral or written) relating to the disclosing party or its business and made available or provided by or on behalf of the disclosing party to the recipient party before, on and/or after the Commencement Date and all analyses and other documents prepared by or for the recipient party which contain or otherwise reflect any such information. It includes Player Data, the terms of this Agreement and information relating to:
(i) any and all Intellectual Property Rights;
(ii) proprietary technology and products (including inventions whether patentable or not), including technical data, data record layouts, trade secrets, know-how, research, prototypes, improvements, processes, plans, designs, requirements, architecture, structures, models, methods, processes, product plans, databases and database tables, ideas or concepts, products, services, software, inventions, techniques, processes, developments, algorithms, formulas, technology, designs, schematics, drawings, engineering and hardware configuration information; and
(iii) business or financial statements and projections, product pricing and marketing, financial or other strategic business plans, subscriber numbers and forecasts, content providers identity and business models.
“Cost Per Acquisition” means the set fee for each new Player, as such fee is set out in relation to each Brand Website at Schedule 2 (or in the case of a Brand Website not set out in Schedule 2, as such fee is notified to the Affiliate by Ivy Affiliates from time to time).
“Data Protection Laws” means all laws, regulations, legislative and regulatory requirements and codes of practice applicable to the processing of Personal Data including, without limitation the UK Data Protection Act 1998 and any regulations or instruments thereunder, Directive 95/46/EC of the European Parliament and of the Council of October 24 1995 and any successor legislation (including Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data as applicable as of 25 May 2018).
“Determination” has the meaning set out in clause 15.4.
“Finance Fees” means fees and costs associated with processing payments made or requested by Players and/or collecting revenue from Players, including:
(i) credit/debit card, eWallet, BACS and bank transaction fees on deposits, withdrawals and the payment of Winnings;
(ii) “chargebacks”, meaning the cost of deposits or wagers made by Players on a credit/debit card which are later refunded (at the Players´, the credit/debit card issuer’s or Ivy Affiliates request) onto the Players’ credit/debit cards, including any additional so-called chargeback fees levied by credit/debit card companies for such credit reversal; and
(iii) “Know Your Customer” verification fees.
“Gaming Approvals” means any and all required approvals, authorisations, licences, transactional waivers, permits, consents, findings of suitability, registrations, clearances, exemptions and waivers of or from any Gaming Authority, including those relating to the offering or conduct of gaming and gambling activities.
“Gaming Authority” means collectively, those international, federal, state, local, foreign and other governmental, regulatory and administrative authorities, agencies, commissions, boards, bodies and officials or other regulatory body or agency that have jurisdiction over (or is responsible for or involved in the regulation of) gaming or gaming activities, of any Ivy Affiliates Group Company from time to time.
“GDPR” means the General Data Protection Regulation (EU) 2016/679;
“Good Industry Practice” means all reasonable care, skill and diligence as may be expected of appropriately qualified and experienced persons with appropriate skill and experience in providing services of a similar scope, type and nature to the Services.
“Gross Win” means House Win less any Player Incentive Funding.
“Group Company” means in relation to any company, any subsidiary or holding company of such company, or any subsidiary of such holding company, or any other entity controlling or controlled by such party from time to time (and “Group Companies” shall be construed accordingly).
“House Win” means all monies paid by Players to play Ivy Affiliates Games on the Brand Websites less any Winnings.
“Intellectual Property Rights” means patents (including patents for software and business methods), rights to inventions, utility models and petty patents, trademarks, service marks, rights in get-up or trade dress, rights to goodwill or to sue for passing off or unfair competition, design rights, copyright and related and/or neighbouring rights, moral rights, rights in computer software, database rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets), trade, business and company names, domain names, and other intellectual property rights, in each case whether registrable, registered or unregistered, and including all applications and rights to apply for and be granted, all extensions and/or renewals of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Ivy Affiliates Games” means a selection of bingo, slots, instant win and casino games and such other games that Ivy Affiliates may elect to make available on the Brand Websites from time to time (including any third party games that Ivy Affiliates may so elect).
“Ivy Affiliates Group Company” means any member of the WhiteZip Group, or any member of the Caddell Group, and “Ivy Affiliates Group Companies” shall be construed accordingly.
“Ivy Affiliates Website” means the website (including any device specific versions of such website and any native applications related to such website) that is operated and controlled by, or on behalf of, Ivy Affiliates and which is currently located at www.IvyAffiliates.com.
“Licence Fees and Gaming Taxes” means a sum equal to the total of:
(i) any gaming licence fees payable to any applicable authority (or a pro-rated amount thereof) from time to time; and
(ii) the amount of any gross profits or gaming tax or regulatory fees paid or payable by Ivy Affiliates or any Ivy Affiliates Group Company to any regulatory or tax authorities in any territory from time to time.
“Link” means a hyperlink (whether in the form of a text link, a graphical banner or otherwise) that incorporates a tracking code and which is placed on the Affiliate Website that, when clicked on, results in the relevant Brand Website being viewable on the end user’s browser, which hyperlink is either: (i) provided or made available to the Affiliate (and not subsequently withdrawn) by or on behalf of Ivy Affiliates; or (ii) created by or on behalf of the Affiliate and approved by Ivy Affiliates in writing in advance.
“Marketing Guidelines” means the documented guidelines as issued by us to you relating to how and where you market our Brands and the current version is set out in Schedule 4.
“Minimum Deposit and Wagering Requirements” means the minimum deposit and wagering requirements relating to each Brand Website, as set out at Schedule 3.
“Net Gaming Revenue” means Gross Win less:
iii. any Third Party Licence Fees;
vii. all payments made by and revenues associated with any Player that at any time makes an invalid, fraudulent or disputed payment (including where a card company or the paying bank has claimed payment back from Ivy Affiliates or where a Player claims payment back because of non-performance).
“Personal Data” shall have the meaning set out in the GDPR.
“Player” means a new player on a Brand Website who has successfully opened an account with a Ivy Affiliates Group Company and which player: (i) commences his application for such account directly from a Valid Click; and (ii) has met the Minimum Deposit and Wagering Requirements in respect of the applicable Brand Website.
“Player Data” means any and all information and data (including Personal Data) relating to Players and their activity on the Brand Websites, including: names, postal addresses, telephone numbers, email addresses or other contact details, usernames, chat names and marketing permissions.
“Player Incentive Funding” means any funds added to Players´ accounts, excluding Winnings, to incentivise Players to increase their deposits and/or turnover (including bonus money, cash and any loyalty or reward points).
“Potential End User Personal Data” means personal data of potential Player that you direct (or have collected for the purpose of directing) to the Site pursuant to this Agreement;
“Prohibited Material” means: (i) pornography (including child pornography or illegal sexual acts) and explicit content; (ii) material that promotes violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age or any illegal activities; (iii) material that is defamatory, libellous, unlawful or otherwise objectionable; (iv) content that infringes or allegedly infringes the Intellectual Property Rights of any Ivy Affiliates Group Company, its licensors or any third party; and/or (v) viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful.
“Prohibited Terms” means the domain names, trademarks and other terms set out at Schedule 5 together with any brand name, game name or other trade mark or service mark (whether registered or not) that may from time to time vest in any of the Ivy Affiliates Group Companies or their licensors (other than the Brand Marks).
“Promotional Content” means all content promoting the Brand Websites to Players and potential Players that is: (i) made available to the Affiliate (and not subsequently withdrawn) by Ivy Affiliates; and (ii) created by or on behalf of the Affiliate, provided such content is approved by Ivy Affiliates in writing before the Affiliate uses such content.
“Referral Commission” has the meaning set out in clause 4.2.
“Services” has the meaning set out in clause 3.1.
“Sub-Affiliate” has the meaning set out in clause 4.2.
“Term” means the term of this Agreement, which commences on the Commencement Date and continues until this Agreement is terminated in accordance with its terms.
“Third Party Licence Fees” means any and all costs payable to third parties for the use of their Intellectual Property Rights in the Brand Websites, the underlying Ivy Affiliates proprietary system and/or any of the Ivy Affiliates Games from time to time.
“Third Party Platform Fees” means the fees paid (or a pro-rated amount thereof) by Ivy Affiliates to a third party platform operator (including any social media platform operator from time to time) for it to host, make available or permit access to Ivy Affiliates Games on or through such platform.
“Unsuitable” means when the Affiliate (or a Group Company of the Affiliate):
iii. in the reasonable opinion of any Ivy Affiliates Group Company, is likely to preclude or materially delay, impede or impair, or jeopardize or threaten the loss, suspension, revocation, non-renewal or denial of a Gaming Approval of any Ivy Affiliates Group Company or any such entity´s application for, or right to the use of, entitlement to or ability to obtain or retain any Gaming Approval required for the operation of its business in any jurisdiction from time to time; or
it being agreed that the Affiliate shall be capable of being Unsuitable as a result of actions and/or omissions of its officers, directors, employees, agents, members or those of any Group Company of the Affiliate or any Sub-Affiliate.
“Valid Click” means a click on a Link on an Affiliate Website that results in any Brand Website being viewable to the relevant end user, as recorded by Ivy Affiliates´ systems.
“WhiteZip Group” means WhiteZip Limited and each of its Group Companies from time to time.
“Winnings” means (i) any sums paid to Players by way of cash prizes that such Players have won when playing Ivy Affiliates Games; and (ii) contributions booked in accordance with generally accepted accounting principles towards a progressive jackpot or similar product (irrespective of when such jackpot is actually paid out). It is acknowledged that the cost of progressive jackpots and similar products is spread across all affiliates.
2.2. In this Agreement (except where the context otherwise requires):
2.2.1. any reference to a “subsidiary” or “holding company” is to be construed in accordance with section 1159 of the Companies Act 2006;
2.2.2. any reference to a “party” means a party to this Agreement and includes its permitted assignees and/or the respective successors in title to substantially the whole of its undertaking;
2.2.3. any reference to a “person” includes any person, individual, company, firm, corporation, association, organisation, foundation, trust, government, state or agency of a state or any undertaking (whether or not having separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists);
2.2.4. any reference to a statute, statutory instrument, rule or regulation or any of its provisions is to be construed as a reference to that statute, statutory instrument, rule or regulation or such provision as the same may have been or may from time to time hereafter be amended or re-enacted;
2.2.5. a reference to a statute or statutory provision is a reference to that statute or statutory provision and to all orders, regulations, instruments or other subordinate legislation made under the relevant statute;
2.2.6. words denoting the singular shall include the plural and vice versa and words denoting any gender shall include all genders;
2.2.7. any reference to recitals, clauses, paragraphs or schedules is to recitals, clauses or paragraphs of or schedules to this Agreement;
2.2.8. any reference to “control” is to be construed in accordance with section 416 of the Income and Corporation Taxes Act 1988 (and “controlling” and “controlled” shall be construed accordingly);
2.2.9. any phrase introduced by the terms “including”, “include”, “in particular”, “for example”, “such as” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
2.2.10. any reference to “writing” includes any methods of representing words in a legible form including writing on an electronic or visual display screen, such as email (and “written” shall be construed accordingly);
2.2.11. the clause headings are included for convenience only and shall not affect the interpretation of this Agreement; and
2.2.12. a reference to any website or webpage at a specified URL includes a reference to such website or webpage at any amended, updated or replacement URL from time to time.
2.3. Any schedules form part of the operative provisions of this Agreement and shall have effect as if set out in full in the body of this Agreement and any references to this Agreement shall, unless the context requires otherwise, include the schedules.
3.1. From the Commencement Date, the Affiliate shall:
3.1.1. subject to clause 5.5, post Links to the Brand Websites on the Affiliate Website; and
3.1.2. otherwise promote the Brand Websites, subject to and in accordance with the terms of this Agreement,
3.2. The Affiliate shall ensure that it shall always use the most up-to-date Links and/or Promotional Content made available or approved by Ivy Affiliates from time to time. The Affiliate shall not: (i) use any hyperlink other than the Links in linking to the Brand Websites; (ii) disseminate any promotional material or marketing communications other than the Promotional Content; or (iii) disseminate the Promotional Content by any other method than as directed by Ivy Affiliates.
3.3. If Ivy Affiliates requests any change to the Affiliate´s use and positioning of the Links and/or Promotional Content from time to time, the Affiliate shall promptly comply with such request.
3.4. The Affiliate shall only place the Links on Affiliate Websites that have been approved by Ivy Affiliates in writing.
3.5. On Ivy Affiliates´ request, the Affiliate shall promptly provide to Ivy Affiliates such information as Ivy Affiliates may reasonably request to enable Ivy Affiliates to monitor the Affiliate´s compliance with this Agreement.
4.1. In consideration for performance of the Services, Ivy Affiliates will pay to the Affiliate as agreed between the parties as part of the application process or otherwise, either:
4.1.1. the Affiliate Revenue Share; or
4.1.2. the Cost Per Acquisition; or
4.1.3. the Affiliate Revenue Share and the Cost Per Acquisition;
if the parties have not agreed such payments as part of the application process or otherwise then Ivy Affiliates will pay to the Affiliate the relevant Commission Structure; and
4.1.4. if applicable, Referral Commission,
4.2. The Affiliate may promote the Affiliate Programme to other potential affiliates by posting on the Affiliate´s Website a hyperlink made available by Ivy Affiliates for such purpose. If any person applies to join the Affiliate Programme directly via any such hyperlink (as recorded by Ivy Affiliates´ systems) and such person is accepted as an affiliate by Ivy Affiliates (a “Sub-Affiliate”), Ivy Affiliates will pay to the Affiliate an amount equal to 2% of the commission paid by Ivy Affiliates to such Sub-Affiliate (excluding any commission paid to such Sub-Affiliate in respect of any sub-affiliates successfully referred to the Affiliate Programme by such Sub-Affiliate) pursuant to Ivy Affiliates´ agreement with such Sub-Affiliate (the “Referral Commission”).
4.3. If the Affiliate has a negative monthly balance in respect of Commission payable by Ivy Affiliates, the Affiliate’s monthly balance is automatically reset to £0 at the beginning of each calendar month, to ensure that no negative balances are carried forward – this term only applies to affiliates promoting our brands on a straight revenue share deal.
4.3.1 No negative carry over only applies to revenue share deals – hybrid deals (CPA + Rev Share or Flat + Revenue Share) do not apply.
4.4. Ivy Affiliates will provide the Affiliate with a statement setting out, in relation to each calendar month, Commission per Brand Website payable by Ivy Affiliates to the Affiliate in accordance with this Agreement.
4.5. On or before the 15th of each calendar month, Ivy Affiliates will pay the Commission due to the Affiliate in respect of the previous calendar month based upon the statement provided by Ivy Affiliates in accordance with clause 4.4.
4.6. Minimum payment thresholds depend upon the payment method selected by the Affiliate. If the balance of the Commission due to the Affiliate in respect of any calendar month is less than the following payment thresholds, such Commission will be carried over into subsequent months until the thresholds have been reached:
4.6.1. UK Bank Transfer – £50;
4.6.2. International Bank Transfer – £500; and
4.6.3. Neteller/Skrill – £50.
4.7 Ivy Affiliates may review the balance of the Commission due to each Affiliate every six (6) months during the Term (starting on or around the Commencement Date) (each, a “Review Date”). If at any Review Date the balance of the Affiliate´s account has not reached or exceeded £5, any Commission due to such Affiliate shall, at Ivy Affiliates´ election, be declared void and the balance of its account in relation to any Commission owed shall be reset to £0.
4.8. Interest shall be due for late payment on any overdue amount until the date of actual payment, calculated at a rate of two per cent (2%) per annum above the base rate for the time being of Barclays Bank plc.
4.9. If an Affiliate provides incorrect bank details and a payment is unsuccessful and returned to Ivy Affiliates by its bank payment processor, Ivy Affiliates will investigate and notify the Affiliate and request corrected bank account details. Such unsuccessful payments will only be credited to the Affiliate´s corrected account details once Ivy Affiliates has been notified by its payment processor that the payment has been successfully retrieved. The Affiliate will have the bank charges associated with any such error deducted from its Commission.
4.10. Ivy Affiliates reserves the right to withhold payment of the Commission to an Affiliate if: (i) it believes or suspects that any transaction or other activity relating to any Link, the Ivy Affiliates Website, the Affiliate Website or any Brand Website is suspicious, fraudulent and/or involves or may involve financial crime or similar activity; or (ii) there is a breach or suspected breach of clause 15 by the Affiliate. In such event, Ivy Affiliates reserves the right to retain any revenues relating to that transaction or activity and any other revenues relating to the Affiliate.
4.11 The Affiliate will only qualify for commission if their referred players deposit within a 30 days window. All payments outside of this timeframe will be considered late conversions and will not be incurred by Ivy Affiliates
5. HIGH-ROLLER POLICY
5.1 In any given month, if a Customer generates a negative net revenue of at least £5,000 he/she will be deemed to be, for the purposes of this section, a 'High-Roller'.
5.2 If the aggregate Net Revenue for the Affiliate, in that month, for a Merchant Brand is negative £1,250 or greater, then the High-Roller policy as set out hereunder, will apply:
5.3 The negative Net Revenue generated by the High-Roller will be carried forward and offset against future Net Revenue generated by that High-Roller;
5.4 The negative balance carried forward cannot be set-off against other Customer's Net Revenue;
5.5 The negative balance carried forward cannot be greater than the total aggregate negative Net Revenue for the Affiliate, for that month;
5.6 The negative balance of a High-Roller will be reduced by future positive Net Revenue that they generate in subsequent months;
5.7 A negative balance will not be increased by future negative Net Revenue unless the High-Roller meets the qualifying criteria in subsequent months.
6. AFFILIATE OBLIGATIONS
6.1. The Affiliate shall provide the Services in accordance with Good Industry Practice.
6.2. The Affiliate shall meet and maintain all Player registration requirements relating to the Brand Websites (including that the Affiliate must be at least 18 years of age to register as a Player of the Brand Websites).
6.3. The Affiliate shall not provide the information of another person with the intention of impersonating that person or deceiving Ivy Affiliates or other affiliates as to its true identity.
6.4. The Affiliate shall refrain from marketing the Affiliate Website in any way that might compete with Ivy Affiliates and/or its licensors´ own marketing efforts, unless the Affiliate has received prior written approval from Ivy Affiliates in such regard. Without limiting the generality of the foregoing the Affiliate shall not drive pay-per-click traffic to the Ivy Affiliates Website, any Brand Website, the Affiliate Website or any other website, including via any search engine, directory or online database, by bidding on search terms, key words or other identifiers that consist of, include or are confusingly similar to (i) any of the Brand Marks; and/or (ii) any of the Prohibited Terms.
6.5. The Affiliate shall not use misleading Links or Promotional Content or cause any Links to open in an end user´s browser other than as a result of the end user making a Valid Click.
6.6. The Affiliate shall not:
6.6.1. apply for, or obtain, registration of any of the Brand Marks or Prohibited Terms for any goods and services anywhere in the world;
6.6.2. apply for, or obtain, registration of any trade mark or service mark anywhere in the world which consists of, includes, or is confusingly similar to the Brand Marks or Prohibited Terms or any of them; or
6.6.3. apply for, or obtain, registration of any domain name or sub-domain anywhere in the world which consists of, includes, or is confusingly similar to the Brand Marks or Prohibited Terms or any of them.
6.7. The Affiliate shall, immediately upon Ivy Affiliates´ request and in accordance with Ivy Affiliates´ instructions, assign and/or transfer to Ivy Affiliates (and/or its licensors), or delete (in Ivy Affiliates´ and/or its licensors´ sole discretion), any trade mark, service mark, domain name and or sub-domain registration or application obtained and/or registered and/or applied for in breach of clause 5.6. This obligation shall apply irrespective of whether such trade mark, service mark, domain name and/or sub-domain registration or application was made before, on or after the Commencement Date. Until such time as the trade mark, service mark, domain name and/or sub-domain registration or application has been assigned or transferred to Ivy Affiliates in accordance with this clause:
6.7.1. Ivy Affiliates may, in its sole discretion, withhold all Commission payments that may be due to the Affiliate; and
6.7.2. the Affiliate shall not allow the trade mark, service mark, domain name and/or sub-domain registration or application to lapse.
6.8. Except as expressly set out in this Agreement, the Affiliate shall not use in its business (including as, or as part of, its corporate or trading name or logo), or on or in relation to the Affiliate Website, any trade mark or service mark which consists of, includes or is confusingly similar to any of the Brand Marks or Prohibited Terms.
6.9. The Affiliate shall not copy, and shall otherwise ensure that the Affiliate Website does not have the look and feel of, the whole or any part of any of the Brand Websites.
6.10. The Affiliate shall not use any promotional content or hyperlinks of any kind (other than Promotional Content or Links) in relation to a Brand Website or the Ivy Affiliates Website.
6.11. The Affiliate shall not place Links or Promotional Content in newsgroups or unsolicited email.
6.12. If the Affiliate emails its opt-in email lists in relation to a Brand Website as permitted by clause 12.1.2, the Affiliate shall:
6.12.1. clearly display an unsubscribe feature at the bottom of the email (clearly detailing methods of unsubscribing from the mailing list);
6.12.2. clearly include the header of the applicable Brand Website in the email (incorporating the relevant Brand Marks);
6.12.3. not send any promotional offers relating to the Ivy Affiliates Website or the Brand Websites to recipients under the age of 18;
6.12.4. not send any offers relating to the Ivy Affiliates Website or the Brand Websites to people who have not willingly submitted their email address and opted-in to receive promotional material; and
6.12.5. comply with all applicable Data Protection Laws.
6.13. If any form of spam is sent (or alleged to have been sent) by or on behalf of an Affiliate, Ivy Affiliates may, at its sole discretion, terminate this Agreement (and all other agreements with such Affiliate) immediately on written notice to the Affiliate and withhold all funds then due. Ivy Affiliates (or any Ivy Affiliates Group Company) may incur expenses in dealing with complaints and other issues arising from any spam generated mail sent by or on behalf of the Affiliate and these expenses may, at Ivy Affiliates´ sole discretion, be deducted from the Commission from time to time. Should these expenses not be covered by the Commission, the Affiliate hereby agrees to indemnify and hold harmless Ivy Affiliates and all Ivy Affiliates Group Companies from and against all losses, damages, costs, expenses, liabilities and claims (including reasonable legal expenses) incurred by or awarded against Ivy Affiliates or any Ivy Affiliates Group Company due to or in connection with any breach by the Affiliate of this clause 6.13.
6.14 not advertise in the Dutch Language or any websites with a .NL extension (TLD), or use any promotional material that is typically associated with the Netherlands, for example, Dutch Flags, Tulips, Clogs, Stroopwafels, Windmills or payment methods used primarily by Dutch residents or other recognisable symbols.
7. AFFILIATE ACCOUNTS
7.1. The Affiliate shall be responsible for maintaining the confidentiality of its email, password and all usage and activity on its Ivy Affiliates account, including use of such account by a third party authorised by the Affiliate to use its account.
7.2. The Affiliate shall notify Ivy Affiliates by email at contactus@IvyAffiliates.com 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.
7.3. The Affiliate agrees that Ivy Affiliates may rely on any data, notice, instruction or request furnished to it by the Affiliate or by a person reasonably believed by Ivy Affiliates to be authorised to act on the Affiliate´s behalf.
7.4. Affiliate Websites that comprise cashback and/or incentive websites are allowed to participate in the Affiliate Programme provided that: (i) Ivy Affiliates reserves the right to limit the amount of cashback given away by cashback websites for all Brand Websites; and (ii) each cashback operator must make Ivy Affiliates aware of the nature of their website as part of such operator’s application to join the Affiliate Programme so that Ivy Affiliates can evaluate such operators´ possible participation and approve or reject such application accordingly in Ivy Affiliates’ sole discretion.
7.5 Affiliate can only possess both an affiliate and a player account as long as the player account is separated from their affiliate account.
8. DATA PROTECTION AND MARKETING
8.1 For the purposes of this agreement the terms controller, data subject, personal data, process (and its cognate terms) and processor shall have the meaning given to them in GDPR.
8.2 You acknowledge and agree that you are a controller in respect of: (i) Potential Player Personal Data; and (ii) Player Personal Data only to the extent that such Player was originally a potential Player converted into a Player directly by you (Potential Player Personal Data and Player Personal Data to which you are a controller shall be referred to herein as "Affiliate Personal Data"). You acknowledge and agree that we shall be a controller in respect of Player Personal Data to the extent that it relates to providing services to Players and any marketing undertaking directly by us or our appointed third parties.
8.3 In the event of duplication of data subjects' personal data between Affiliate Personal Data and Player Personal Data, we both acknowledge and agree that we shall be acting as controllers in common and not joint controllers in respect of the independent processing of such data subjects' personal data. Furthermore, you acknowledge and agree that any direct marketing that you send out to Affiliate Personal Data pursuant to this Agreement and the consents related to the same shall be independent of, and governed separately from, any marketing consents that we may have in respect of Players and our own marketing of our own services.
8.4 You shall at all times comply with the Data Protection Legislation including, without limitation, ensuring that Affiliate Personal Data: (i) is collected fairly, lawfully and transparently; (ii) processed in accordance a lawful condition as set out in the GDPR; and (iii) is protected from loss, theft, accidental destruction or unauthorised access by implementing appropriate technical and organisation measures in respect of such personal data.
8.5 You warrant that all direct marketing sent to Affiliate Personal Data shall only be done so where such individuals have given valid consent to receive such marketing communication as required by the Data Protection Legislation. Valid consent shall include data subjects opt-in to such marketing and data subjects being informed that they shall receive marketing relating to our Sites (identified either specifically or, at the least, by its industry).
8.6 You warrant that all direct marketing sent to Affiliate Personal Data shall include an opportunity for such persons to opt-out of all future direct marketing.
8.7 You warrant that you shall not send direct marketing to any Affiliate Personal Data who have not provided valid consent to receive such marketing or who have unsubscribed to direct marketing.
8.8 You shall notify us immediately in the event that you breach (or suspect that you have breached) any of the warranties in this clause 4.
8.9 Without prejudice to the warranties given in this clause 8, you shall not send any direct marketing to any Affiliate Personal Data where you have received instructions from us not to send direct marketing. You shall comply with any instruction to not send direct marketing as soon as practicable and in any event within no less than 48 hours from receipt of the instruction.
8.10 You shall notify us immediately in the event that any Affiliate Personal Data makes a complaint to you, or where any competent data protection regulator contacts you, in respect of direct marketing or your processing of such personal data.
8.11 You shall, within five (5) days upon request by us, provide a copy of all Affiliate Personal Data for the sole purpose of us identifying and removing any individuals from such Affiliate Personal Data that we (acting reasonably and in good faith) do not consider it appropriate to contact (whether in respect of direct marketing and otherwise). You shall not contact such individuals notified to you by us.
8.12 We may, from time to time, request that you provide evidence of your compliance with this clause 8 and you shall provide such evidence within five (5) days of receipt of such request.
8.13 You shall ensure that all processors acting on your behalf pursuant to this Agreement are bound by contractual terms no less onerous than the standards prescribed by the Data Protection Legislation.
8.14 You shall provide us with all such assistance as necessary in respect of data breaches, claims and requests for information made against us in respect of any communications sent by you pursuant to this Agreement, in particular, any investigations made by a competent data protection regulator.
8.15 You shall ensure that any communications sent by you or any of your processors are duly tagged to allow tracking in the event that they are forwarded to us as part of a complaint.
9.1. Each party represents and warrants to the other that it has and will retain throughout the Term all right, title and authority to enter into this Agreement, to grant to the other party the rights and licences granted in this Agreement and to perform all of its obligations under this Agreement.
9.2. Affiliate warrants, represents and undertakes (as applicable) on a continuing basis that:
9.2.1. the Affiliate Website, any content thereon, and any domain name or sub-domain associated with the Affiliate Website:
184.108.40.206. is not aimed at children;
220.127.116.11. does not contain any Prohibited Material or (other than as permitted by this Agreement) any Brand Mark or Prohibited Term;
18.104.22.168. does not infringe the rights (including the Intellectual Property Rights) of any third party; and
22.214.171.124. is solely owned and/or controlled by the Affiliate;
9.2.2. it will comply at all times with any and all applicable Brand Guidelines;
9.2.3. it has obtained and will maintain all necessary registrations, authorisations, consents and licences to enable it to fulfil its obligations under this Agreement;
9.2.4. it will not make any application to register any trade or service mark, business name, company name, domain name or sub-domain which consists of, includes or is confusingly similar to any Brand Mark or Prohibited Term;
9.2.5. it will perform its obligations under this Agreement in accordance with Good Industry Practice;
9.2.6. it will not make, and shall procure that none of its employees make, any defamatory or derogatory statements about, or take part in any activities which are or might reasonably be perceived to be derogatory of or detrimental to the reputation of any of the Brand Websites, Ivy Affiliates or any Ivy Affiliates Group Company;
9.2.7. it will comply with all Applicable Laws, including Data Protection Laws;
9.2.8. it has not violated any Applicable Laws, including laws relating to gaming in the U.S., prior to the date of this Agreement;
9.2.9. it will not intercept or complete any registration form submitted by Players or potential Players to Ivy Affiliates (and/or any other communications between any such persons and Ivy Affiliates);
9.2.10. it will not intercept, redirect or otherwise interfere with traffic from the website of any other Ivy Affiliates affiliate; and
9.2.11. all information it submits to Ivy Affiliates on the application form and in all other communications between the parties is complete and accurate.
9.3. The Ivy Affiliates Website, Brand Marks, Links, Promotional Content and the Brand Websites are provided on an “as is” and “as available” basis, without warranties of any kind, either express or implied, including implied warranties of the ability and fitness for a particular purpose of the Ivy Affiliates Website, the Promotional Content or the Brand Websites, unless such warranties are legally incapable of exclusion. Ivy Affiliates does not guarantee that: (i) the Ivy Affiliates Website or the Brand Websites will be uninterrupted or error-free; (ii) that defects on or in the Ivy Affiliates Website or the Brand Websites will be corrected; (iii) there are no viruses or other harmful components on or in the Ivy Affiliates Website or the Brand Websites; (iv) the security methods employed on or in the Ivy Affiliates Website or the Brand Websites will be sufficient; (v) any content on the Ivy Affiliates Website or the Brand Websites is correct, accurate, or reliable; or (vi) the Ivy Affiliates Website, Brand Marks, Links, Promotional Content and the Brand Websites will not infringe the Intellectual Property Rights of any third party.
10.1. Without prejudice to Ivy Affiliates´ other rights or remedies under this Agreement, the Affiliate shall fully indemnify and hold harmless Ivy Affiliates and the Ivy Affiliates Group Companies, and the affiliates, employees, officers and directors of Ivy Affiliates and the Ivy Affiliates Group Companies (together, the “Indemnified Parties”) from and against all losses, damages, costs, expenses, liabilities and claims (including reasonable legal expenses) suffered by or incurred, directly or indirectly, by the Indemnified Parties resulting from, arising out of, or in any way connected with:
10.1.1. any breach by the Affiliate of any of the warranties set out in clause 9 (Warranties);
10.1.2. any breach by the Affiliate of clauses 6.1 to 6.12 (inclusive) (Affiliate Obligations), clause 12 (Grant of Rights) or clause 15 (Regulatory Matters);
10.1.3 any act or omission of the Affiliate that causes any of the Indemnified Parties to be in breach of Applicable Law or the terms of any Gaming Approval; or
10.1.4. any breach by the Affiliate of any provision of this Agreement.
10.2. The Affiliate shall not use the name of any Ivy Affiliates Group Company or its licensors in any action or claim without the prior written consent of Ivy Affiliates.
10.3. The Affiliate shall, if requested by Ivy Affiliates, give full co-operation (at the Affiliate’s cost) to Ivy Affiliates or any other Indemnified Party in any action, claim or proceedings in respect of which the Affiliate indemnifies the Indemnified Parties pursuant to this clause 10.
11. LIMITATION OF LIABILITY
11.1. Neither Ivy Affiliates nor any Ivy Affiliates Group Company shall be liable to the Affiliate or to any third party in contract, tort (including negligence) or howsoever arising for any:
11.1.1. loss arising from or in connection with loss of revenues, profits, contracts or business or failure to realise anticipated savings; or
11.1.2. loss of goodwill or reputation; or
11.1.3. indirect or consequential losses
suffered or incurred by the Affiliate and arising out of or in connection with this Agreement, even if such loss was reasonably foreseeable or Ivy Affiliates or the relevant Ivy Affiliates Group Company had been advised of the possibility of the Affiliate incurring it.
11.2. Nothing in this Agreement shall exclude or limit either party´s liability for: (i) fraud or fraudulent misrepresentation; (ii) death or personal injury resulting from its negligence or the negligence of its employees or agents; or (iii) any other matter which cannot be excluded or limited by Applicable Laws.
11.3. The total aggregate liability of Ivy Affiliates to the Affiliate for loss or damage under or in connection with this Agreement and in connection with any event or connected series of events shall not exceed the total Commission paid to the Affiliate by Ivy Affiliates in the 12 months preceding the date on which the liability occurred. This clause shall not limit Ivy Affiliates´ liability to pay any sums due to an Affiliate pursuant to clause 4.
12. GRANT OF RIGHTS
12.1. Subject to the Affiliate´s compliance with this Agreement, Ivy Affiliates hereby grants to the Affiliate a non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable, royalty free licence, during the Term, to use the Brand Marks solely in connection with:
12.1.1. making the Links available on the Affiliate Website for the purpose of performing the Services; and
12.1.2. marketing the Ivy Affiliates Website and/or the Brand Websites through Promotional Content provided by or on behalf of Ivy Affiliates (including by emailing persons who have consented to receive such marketing),
in each case solely in the manner directed or otherwise consented to in advance by Ivy Affiliates and in accordance with all Applicable Laws, any and all applicable Brand Guidelines, and this Agreement.
12.2. If and to the extent that any Links and/or Promotional Content are created by or on behalf of the Affiliate, the Affiliate hereby irrevocably and unconditionally assigns to Ivy Affiliates with full title guarantee all right, title and interest (including Intellectual Property Rights) worldwide in perpetuity in and to such Links and/or Promotional Content without restriction. The Affiliate waives all “moral rights” under the Copyright Designs and Patents Act 1988 in such Links and/or Promotional Content (and all similar or equivalent rights in any jurisdiction), and hereby grants to Ivy Affiliates all the consents required by Ivy Affiliates to exploit such Links and Promotional Content, without limitation so far as possible in perpetuity for any purpose. The Affiliate shall only use such Links and Promotional Content for the purpose of fulfilling its obligations hereunder and shall only do so with Ivy Affiliates prior written consent.
12.3. The Affiliate shall not use the Brand Marks for any purpose not authorised hereunder, and shall not make any alteration to or modification of any of the Brand Marks without the prior written consent of Ivy Affiliates and/or its licensors (as applicable).
12.4. The Affiliate acknowledges and agrees that, other than in accordance with the licences granted to it pursuant to this clause 12:
12.4.1. it neither has nor obtains any right, title or interest in or to the Brand Marks or Intellectual Property Rights of Ivy Affiliates or its licensors (including any such right, title or interest as may exist in the Ivy Affiliates Website, the Brand Websites, the Prohibited Terms, the Brand Marks, the Links, the Promotional Content and any Player Data); and
12.4.2. all right, title and interest (including goodwill) arising from the Affiliate´s use of the Brand Marks and any Intellectual Property Rights belonging to Ivy Affiliates or its licensors will vest in and/or accrue to Ivy Affiliates or its licensors (as applicable). The Affiliate agrees to enter into a confirmatory assignment of any such right, title, interest and/or goodwill, if requested by Ivy Affiliates or its licensors.
12.5. The Affiliate shall not do, cause or authorise, or omit to be done, anything which in Ivy Affiliates´ reasonable opinion will or may in any way impair, damage or be detrimental or adversely affect the reputation or goodwill associated with Ivy Affiliates (or its licensors) or any of the Ivy Affiliates Group Companies, the Brand Marks, or the Intellectual Property Rights vested in Ivy Affiliates (or its licensors) or any Ivy Affiliates Group Company (or any of their respective licensors). The Affiliate shall not use the Brand Marks or Intellectual Property Rights of Ivy Affiliates (or its licensors) or any Ivy Affiliates Group Company (or any of their respective licensors) in any manner likely to cause harm to the distinctive character or validity of those Brand Marks or Intellectual Property Rights.
12.6. Ivy Affiliates and/or its licensors shall, in their absolute discretion, decide what action to take (if any) in respect of any infringement of the Brand Marks or any Intellectual Property Rights that may from time to time be vested in any Ivy Affiliates Group Company and/or their licensors. Ivy Affiliates and/or its licensors shall have exclusive control over, and conduct of, all claims and proceedings arising out of or in connection with such Brand Marks and other Intellectual Property Rights, and shall be entitled to retain all sums recovered in any action for their own account. The Affiliate shall not make any admissions other than to Ivy Affiliates and/or its licensors and shall provide Ivy Affiliates and/or its licensors with all assistance that they may reasonably require in the conduct of any claims or proceedings.
12.7. The provisions of section 30 of the Trade Marks Act 1994 (and any similar or equivalent legislation in any jurisdiction) are expressly excluded.
12.8. Ivy Affiliates and/or its licensors may at any time in their sole discretion, with or without notice to the Affiliate, and with no further liability to the Affiliate:
12.8.1. modify any of the Brand Marks or Brand Websites; and/or
12.8.2. discontinue, withdraw, terminate or cease using any of the Brand Marks or Brand Websites included in the Affiliate Programme. In such event this Agreement shall automatically terminate in relation to the relevant Brand Mark(s) and/or Brand Website(s).
12.9. The Affiliate agrees to promptly do and/or procure the doing of all things and to sign and execute and/or procure the signing and execution of all such documents and deeds as may be required in order to perfect and protect or enforce any of the Brand Marks, Brand Websites or Intellectual Property Rights of Ivy Affiliates, any Ivy Affiliates Group Company and/or their licensors, and to ensure that all right, title and interest (including Intellectual Property Rights) that may in this Agreement be expressed to vest in Ivy Affiliates or any Ivy Affiliates Group Company and/or their licensors shall so vest.
13. CONFIDENTIAL INFORMATION
13.1. Subject to clauses 13.2, 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 and any employees, agents or subcontractors who need to know such information for the performance of this Agreement and provided that such party shall inform each of them of, and procure their compliance with the terms of this clause 13), the terms of this Agreement or any Confidential Information concerning the other party or any Group Company of such other party which may have or may in the future come to its knowledge. Neither party shall use any such Confidential Information except for the performance of this Agreement.
13.2. The obligation of confidentiality contained in clause 13.1 shall not apply or (as the case may be) shall cease to apply to Confidential Information which:
13.2.1. at the time of its disclosure by the disclosing party is already in the public domain, or which subsequently enters the public domain, other than by breach of this Agreement by the receiving party;
13.2.2. is already known to the receiving party (as evidenced by written records) at the time of its disclosure by the disclosing party and was not otherwise acquired by the receiving party from the disclosing party under any obligations of confidence;
13.2.3. is at any time after the Commencement Date acquired by the receiving party from a third party having the right to disclose the same to the receiving party without breach of obligation owed by that third party to the disclosing party;
13.2.4. is required to be disclosed by Applicable Laws or order of a court of competent jurisdiction or government department or agency, provided that prior to such disclosure the receiving party shall, wherever possible and permitted by Applicable Laws, advise the disclosing party of the proposed form of the disclosure;
13.2.5. is independently developed by the receiving party without reference to the Confidential Information of the disclosing party; or
13.2.6. the disclosing party informs the receiving party in writing is not Confidential Information.
13.3. Ivy Affiliates shall be entitled to disclose Confidential Information relating to the Affiliate (which may include contact details and other Personal Data) to its licensors or other third party complainants (or their professional advisers) if Ivy Affiliates believes (in its sole discretion), or a third party alleges, that the Affiliate: (i) has infringed the rights of Ivy Affiliates, its licensors or any third party or has otherwise incorporated any Prohibited Material into the Affiliate Website; (ii) has registered any domain name or sub-domain in bad faith; (iii) is in breach of any Applicable Laws or regulatory requirement; or (iv) has sent or caused to be sent any form of spam.
13.4. Neither party shall make any public announcements with respect to any aspect of this Agreement or its relationship with the other party without the prior written approval of the other party for each announcement.
14. TERM AND TERMINATION
14.1. This Agreement shall commence on the Commencement Date and remain in effect until terminated in accordance with the terms of this Agreement.
14.2. The Affiliate may terminate this Agreement with respect to any Brand Website, for any reason upon 7 days´ prior written notice to Ivy Affiliates.
14.3. Ivy Affiliates may terminate this Agreement with respect to any Brand Website, for any reason immediately on written notice to the Affiliate at any time. It is acknowledged, without prejudice to the generality of the foregoing, that Ivy Affiliates may elect to terminate this Agreement or any part of it if Ivy Affiliates considers that: (i) a promotion published or operated by the Affiliate is: (a) harmful, inappropriate or aimed at undesirable countries; or (b) in any way in breach of this Agreement; or (ii) if the Affiliate sends or causes to be sent (or is alleged to have sent) any form of spam.
14.4. If Ivy Affiliates serves notice to terminates this Agreement in accordance with its terms, Ivy Affiliates shall be entitled to terminate (in such notice or in a separate notice) any or all other agreements that it has with the Affiliate at the time of termination of this Agreement.
14.5. Either party may terminate this Agreement immediately on written notice if the other party commits a material breach of any term of this Agreement that is irremediable or, if remediable, is not remedied by the other party within 7 days of the day on which such breach first occurred.
14.6. Either party may terminate this Agreement with immediate effect by written notice to the other party if: (i) the other party becomes insolvent or unable to pay its debts within the meaning of section 123 Insolvency Act 1986 or any statutory modification or re-enactment thereof or equivalent provision in another jurisdiction; or (ii) any step, action, application, order, proceeding or appointment is taken or made by or in respect of the other party in relation to the whole or any part of its undertaking for a voluntary arrangement or composition or reconstruction of its debts, a distress, execution, composition or arrangement with creditors, or winding-up, dissolution, administration, receivership (administrative or otherwise) or bankruptcy or ceasing or threatening to cease to do business, or an analogous event occurs to the other party in any jurisdiction to which it is subject.
14.7. Upon termination of this Agreement or any part of it: (i) the Affiliate shall no longer be entitled to access the Ivy Affiliates Website or the relevant part of it; (ii) the Affiliate must remove from the Affiliate Website and cease to use and/or distribute (in any way) all relevant Brand Marks and Promotional Content, and disable all relevant Links; (iii) all relevant rights and licenses given to the Affiliate in this Agreement shall immediately terminate; and (iv) (within 5 days of termination of this Agreement in its entirety, the Affiliate must immediately return to Ivy Affiliates or (in Ivy Affiliates´ sole discretion) destroy or permanently delete all the property in the Affiliate´s possession or under its control that either (i) belongs to Ivy Affiliates, and Ivy Affiliates Group Company and/or any of their licensors; and/or (ii) contains any Confidential Information of Ivy Affiliates or any Ivy Affiliates Group Company.
14.8. If Ivy Affiliates terminates this Agreement or any part of it, Ivy Affiliates retains the right to withhold Commission otherwise payable to the Affiliate in respect of the month in which such termination occurs and which relates to that portion of the Agreement that has been terminated.
14.9. After termination, the Affiliate will not be entitled to Commission with respect to Players registered before, on or after the date of termination of this Agreement.
14.10. If Ivy Affiliates continues to permit Players who have clicked on Links to register with the relevant Brand Website after termination, this will not constitute a continuation or renewal of this Agreement or a waiver of termination.
14.11. The following clauses of this Agreement shall survive termination of this Agreement: 7, 9, 10, 11.2, 11.4, 11.5, 12, 14.7, 14.8, 14.9, 14.10, 14.11, 15, 16, 17 and 18, and any other clauses, the survival of which is necessary for the interpretation or enforcement of this Agreement.
15. REGULATORY MATTERS
15.1. The Affiliate shall provide such information to the Ivy Affiliates Group Companies as any such party may reasonably require in order to satisfy any information reporting, disclosure and other related obligations to any Gaming Authority from time to time. The Affiliate shall cooperate with requests, inquiries, investigations and the like of any Gaming Authority in connection with the performance of this Agreement, including the disclosure of information to any Gaming Authority that would otherwise be considered confidential pursuant to clause 13 of this Agreement.
15.2. Any Ivy Affiliates Group Company shall be entitled to terminate this Agreement immediately on notice to the Affiliate if, in such party’s reasonable opinion, the Affiliate is in breach of any relevant advertising law, regulation or code of practice (including the UK Code of Non-broadcast, Advertising, Sales Promotion and Direct Marketing and the Gambling Industry Code for Socially Responsible Advertising, if applicable) and/or the Brand Guidelines.
15.3. Insofar as the Affiliate carries out activities pursuant to this Agreement on behalf of any Ivy Affiliates Group Company and such activities are subject to any Gaming Approval issued to such Ivy Affiliates Group Company from time to time, the Affiliate shall conduct itself as if it is bound by the relevant conditions and the relevant codes of practice to which the applicable Ivy Affiliates Group Company is subject pursuant to such Gaming Approval.
15.4. It is acknowledged that the Ivy Affiliates Group Companies conduct business in a highly regulated industry under Gaming Approvals issued by Gaming Authorities. In order to ensure compliance with the requirements of Gaming Authorities and to ensure that the Ivy Affiliates Group Companies are able to maintain such Gaming Approvals, the Ivy Affiliates Group Companies may evaluate the suitability of entities with which they does business from time to time. If any Ivy Affiliates Group Company, acting in good faith and in accordance with industry practice, determines the Affiliate to be Unsuitable (a “Determination”), such Ivy Affiliates Group Company may terminate this Agreement immediately by giving written notice to the Affiliate and withhold any monies then due to the Affiliate.
15.5. No payments or undue financial or other advantage of any kind shall be made by the Affiliate or its personnel, directly or indirectly, to any entity, government, corporation or other person for the purpose of improperly influencing the consideration of applications for a business activity or the receipt of any other benefits, including the obtaining or retaining of business. The Affiliate shall:
15.5.1. comply with all Applicable Laws, statutes and regulations relating to anti-bribery and/or anti-corruption (including, if applicable, the UK´s Bribery Act 2010);
15.5.2. not engage in any activity, practice or conduct which constitutes an offence under any applicable anti-bribery and/or anti-corruption legislation (including acts which would constitute an offence under sections 1, 2 or 6 of the UK´s Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK); and
15.5.3. notify Ivy Affiliates and Caddell immediately if it becomes aware that, or has reason to believe that, it has breached its obligations under this clause 15.5.
16.1. Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties, or to authorise any party to act as agent for any other, or create an employee-employer relationship, and no party shall have authority to act in the name or on behalf of or otherwise to bind any other in any way or to hold itself out in its advertising or otherwise in any manner which would indicate or imply any such relationship with the other unless expressly provided otherwise in this Agreement.
16.2. Unless expressly so agreed, no modification or variation of this Agreement shall constitute or be construed as a general waiver of any provisions of this Agreement, nor shall it affect any rights, obligations or liabilities under this Agreement which have already accrued up to the date of such modification or waiver, and the rights and obligations of the parties under this Agreement shall remain in full force and effect, except and only to the extent that they are so modified or varied.
16.3. 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 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.
16.4. Except insofar as this Agreement expressly provides that a third party may in his own right enforce a term of this Agreement, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act. For the avoidance of doubt, Caddell and any of its Group Companies may rely on and directly enforce any rights provided to such entities under this Agreement against the Affiliate (or any of its Group Companies), which includes, but is not limited to those rights set out in clauses 6.13, 7, 9, 11.5, 12, 14.7 and 15.
16.5. Notwithstanding the covenants for title made in clause 12.2, the Affiliate shall at the cost and expense of Ivy Affiliates execute or cause to be executed all such other documents and do or cause to be done all such further acts and things consistent with the terms of this Agreement as Ivy Affiliates may from time to time reasonably require in order to vest in and secure to Ivy Affiliates and its successors in title the full benefit of the assets, rights and benefits to be transferred or granted to Ivy Affiliates under this Agreement and for the protection and enforcement of the same and otherwise to give full effect to the terms of this Agreement.
16.6. This Agreement constitutes the entire agreement and understanding of the parties relating to the subject matter of this Agreement and supersedes any previous agreement or understanding between the parties (or any of them) in relation to such subject matter. In entering into this Agreement, the parties have not relied on any statement, representation, warranty, understanding, undertaking, promise or assurance (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement. Each party irrevocably and unconditionally waives all claims, rights and remedies which but for this clause it might otherwise have had in relation to any of the foregoing.
16.7. Save as set out in clause 16.8, neither party shall without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed) assign at law or in equity (including by way of a charge or declaration of trust), sub-license or deal in any other manner with this Agreement or any rights under this Agreement, or sub-contract any or all of its obligations under it or purport to do any of the same. Any purported assignment in breach of this clause shall confer no rights on the purported assignee.
16.8. The Affiliate shall not be entitled to sub-contract, assign or sub-licence any of its rights or obligations under this Agreement without obtaining the prior written consent of Ivy Affiliates. Ivy Affiliates shall be entitled to sub-contract any or all of its obligations and/or sub-license or assign any or all of its rights under this Agreement at any time.
16.9. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction 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. If any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid.
16.10. This Agreement is for commercial use only, and neither the Affiliate nor its employees, or their family members, friends or associates may make purchases, directly or indirectly, through the Links for its or their own personal use or to fraudulently increase the Commission or for other fraudulent purposes.
16.11. Affiliates will not knowingly benefit from known or suspected traffic not generated in good faith whether or not it actually causes damage to Ivy Affiliates. Ivy Affiliates reserves the right to retain all amounts due to the Affiliate under this Agreement if it has reasonable cause to believe that such traffic has been caused with the Affiliate´s knowledge. Even if the Affiliate has not knowingly generated such traffic, Ivy Affiliates reserves the right to withhold the Commission with respect to such traffic.
16.12. Ivy Affiliates reserves the right to change, modify, add or remove portions of this Agreement at any time and may add to, change, suspend or discontinue any aspect of the Affiliate Programme at any time. Ivy Affiliates recommends that the Affiliate checks this Agreement for changes regularly. The Affiliate may either agree to such changes or terminate this Agreement in accordance with the terms of this Agreement.
16.13. Any notice relating to a breach of this Agreement, a claim under clause 10 of this Agreement, or termination of this Agreement, shall be in writing and shall be served by hand, prepaid first class recorded delivery (including special delivery), courier or prepaid first class recorded airmail to Ivy Affiliates´ address as set out above or the Affiliate´s address as stated in its Affiliate Programme application (as applicable). Any notice properly sent or delivered in accordance with the foregoing shall be deemed to have been received: (i) if delivered personally by hand, on the day and at the time of delivery if delivered between 09.00 and 17.00 on any working day and otherwise at 09.00 on the next working day; (ii) if sent by first class recorded delivery (including special delivery), at 09.00 on the 2nd working day after posting; (iii) if sent by prepaid first class recorded airmail, at 09.00 on the 5th working day after posting; and (iv) if sent by courier, at the time of signature on the courier´s receipt if delivered at or before 17.00 on any working and otherwise at 09.00 on the next working day.
17. GOVERNING LAW AND JURISDICTION
17.1. The validity, construction and performance of this Agreement (and any claim, dispute or matter arising under or in connection with it or its enforceability or formation) shall be governed by and construed in accordance with the laws of England.
17.2. Each party irrevocably submits to the exclusive jurisdiction of the English courts over any claim, dispute or matter arising under or in connection with this Agreement (including non-contractual disputes or claims) or its enforceability or formation or the legal relationships established by this Agreement and waives any objection to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been brought in an inconvenient forum.
18. RESTRICTED COUNTRIES
We cannot open accounts, or process bets or financial transactions, for individuals residing in: Afghanistan, Albania, Algeria, American Samoa, Angola,Australia, Austria, Belgium, Bolivia, Bulgaria, Cuba, Denmark, Ecuador, Ethiopia, France, Ghana, Guam, Guyana, Hungary, Indonesia, Iran, Iraq, Israel, Italy, Kenya, Lao Peoples Democratic Republic, Latvia, Lithuania, Malta, Myanmar, Nigeria, North Korea, Northern Mariana Islands, Pakistan, Panama, Papua New Guinea, Poland, Réunion, Romania, Russia, Sao Tome and Principe, Singapore, Slovenia, South Africa, Spain, Sri Lanka, Sudan, Syria, Tanzania, Thailand, Turkey, Uganda, Ukraine, United States, United States Minor Outlying Islands, Vietnam, Virgin Islands (U.S.), Yemen, Zimbabwe. We reserve the right to amend the list of countries from which it will not open accounts, or process bets or financial transactions from time to time at its sole discretion. If you open or use the Website while residing in a Restricted Jurisdiction: your account may be closed by us immediately; any winnings and bonuses will be confiscated and remaining balance returned (subject to reasonable charges), and any returns, winnings or bonuses which you have gained or accrued will be forfeited by you and may be reclaimed by us; and you will return to us on demand any such funds which have been withdrawn.
SCHEDULE 1: BRAND WEBSITES
SCHEDULE 2: AFFILIATE COMMISSION STRUCTURES
An Affiliate will earn Commission based on the following:
1 For the first six month and as a "Welcome Package" the Affiliate will be entitled to 50% Commission on the Net Revenue;
2 After the first six months:
FTDs Revenue %
1 > 10 30%
11 > 25 35%
26 > 40 40%
SCHEDULE 3: MINIMUM DEPOSIT AND WAGERING REQUIREMENTS
Brand Website Minimum Deposit Minimum Wager
ALL $20 $20
ALL £20 £20
ALL 20€ 20€
SCHEDULE 4: MARKETING GUIDELINES FOR AFFILIATES
Thank you for your continued support and assistance in achieving our compliance objectives for affiliates. We completely understand and appreciate that the regulatory landscape, most particularly in the UK, is changing constantly and making things more difficult to ensure continued and complete compliance particularly with the tight deadlines being imposed on the industry.
Our Marketing Guidelines for Affiliates are summarised as follows:
Should you display any other offer or promotion with GBP/£ that has not been approved, we will be left with no option but to terminate our agreement with you given the level of importance placed on this by the UKGC, ASA and CMA.
These Guidelines, reference to “Communication(s)” is to any and all marketing, promotional, advertising or other similar material of yours used to encourage consumers to sign-up to one or more of our participating gambling websites as partnered with you.
All of our affiliates agree and are required to promote our brands in a socially responsible manner, in full compliance with all applicable laws, regulations, codes of practice and guidelines to ensure that any advertising of our brands and games, and associated promotions is clear, transparent and not misleading.
It’s imperative that you read these Guidelines carefully and in full. As an affiliate, we rely on you to exercise the correct level of control over your marketing Communications. Whilst we appreciate that you are an integral aspect of our business, this needs to be balanced with the heavy regulation being applied to operators. We aim to ensure that our business and partnership with you develops sustainably into the future. However, this will only be as a result of your compliance and continuous assistance in ensuring that all Communications are in accordance with the law. Unless this happens, we will not be able to commit to you as an affiliate, nor support our affiliates program in the long run.
Information Communications and Data
Any data that you hold relating to an individual must have been collected, processed and stored in accordance with the law. You should keep clear explicit records of what a person has consented to, and when and how you got this consent, so that you can demonstrate compliance in the possible event of a complaint. We reserve the right to view such records to satisfy ourselves of your compliance.
If you send an email or other form of Communication, you must ensure that the commercial intent is made clear and obvious to the recipient, together with your true and real identity. In addition, any
Communication that you send out must include a link to “opting out”, “unsubscribe” or similar- and you are obliged to honour the same. You must not make this opting-out process be difficult, at cost, or otherwise.
Additionally, any email should make clear reference to you in the “From” box. In other words, there should be no confusion as to the true identity of the sender of the email. The Subject must refer to the Email Content, and not be misleading. It should not be written in a form of “click-bait”.
Remember, you must only use creative media only that we supply for email campaigns and they must not be altered whatsoever unless you have received our prior written consent to do so.
We do not allow our affiliates to send out their own email marketing campaigns. If you would like to do so, then you MUST obtain our prior written consent of approval to do this.
This does not include any email campaigns if they do not promote, mention or reference, directly or indirectly, any of our brands.
If you choose to use Social Media for your Communications, you must:
1) Clearly show the ‘Over 18’ logo in all Communications and on your Account Profile itself; and
2) If you are from the UK, include wording around BeGambleAware on your social media accounts, such as “Gamble responsibly. www.begambleaware.org”. For any other countries, you should make reference to “Please gamble responsibly.”; and
3) Include a link where further gambling guidance and advice can be found, such as “Further details on responsible gambling can be found at www.begambleaware.org”; and 4) Be able to show and prove that your Communications are targeted and displayed to those above the age of 18. For example, with Twitter, you must use their age-screening function when marketing Communications to consumers, or ‘checking’ the age restriction option when uploading content to YouTube. Similar options apply to other social media platforms; and
5) Be careful around the choice of images and words that you may use in any non-promotional material that is submitted from your social media account. For example, a “Facebook Post” that is not intended as an advertisement but relates to gambling.
Please ensure that you read, review and satisfy yourselves of the policies of the respective social media company. For example, Facebook requires real-money gambling-related Ads to be pre-approved before release. The above applies to YouTube channels and any other form of online or social sharing.
We now request that you do not use social media to promote any of our brands. In other words, we only accept affiliates who use social media for generic purposes and/or for generating traffic to their own websites in accordance with all applicable laws. You must not, at any point whatsoever, publish anything on social media that promotes, mentions or references, directly or indirectly, any of our brands unless we have specifically given our prior written approval to do so.
In addition, before using Social Media, you must disclose to us, in writing, as to which platforms you are using, and a link to your profiles. This applies to any platforms that you might choose to use in the future as well. Failure to inform us of these details now, or as they change, will lead to immediate termination of your Agreement. We require these details to continually review and monitor your Communications via Social Media.
Critical Points and Tips:
SCHEDULE 5: PROHIBITED TERMS