In this Agreement and in the Schedules hereto, the following words and expressions shall bear the meanings set forth opposite them:
"Applicable Law" means all laws and regulations applicable to the Parties and their respective unit holders or shareholders, and the regulations promulgated under such laws, and all directives, requirements and guidelines, as may be amended from time to time (including any laws, regulations or guidelines in relation to the content and nature of any advertising or marketing).
"Commission" means the consideration to Affiliate from the Company, under the Affiliate Programme, as set out in the Commission Schedule.
"Commission Schedule" means a schedule to this Agreement or an offer made available in our back-office software, either in the form of an ‘Insertion Order’ or an ‘Offer’, which includes the specific Commission payment mechanism, as mutually agreed by the Parties.
"Company" means VIP Media Ltd, a company incorporated under the laws of Malta, registration number C 84244, with registered offices at Abacus Bus Ctr Lvl1 Dun KArm Str, BKara Bypas Birkirkara BKR9037, Malta.
"Confidential Information" means any of the Company's or the Operators' information of commercial or essential value, such as, but without limitation, financial reports, trade secrets, know-how, prices, business information, products, strategies, databases, information about New Players, other customers and users of the Operators' Websites, other Affiliates, technology, marketing plans and manners of operation.
"Data Protection Laws" means any and/or all applicable domestic and foreign laws, rules, directives and regulations, on any local, provincial, state or deferral or national level, pertaining to data privacy, data security and/or the protection of personal data, including the Data Protection Directive 95/46/EC and the Privacy and Electronic Communications Directive 2002/58/EC (and respective local implementing laws) concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), including any amendments or replacements to them, including the 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 ("GDPR").
"Fraud" means deposits, revenues and/or traffic generated through illegal means or any other action committed in bad faith to defraud the Company or the Operators (as determined by Company in its sole discretion), regardless of whether or not it actually causes Company or the Operators’ harm, which might include, but without limiting, the following: 1. the encouragement by Affiliate or a third party of Bonus (as such term is defined below) abuse on the part of the New Player; 2. a chargeback executed by a New Player in relation to their initial deposit; 3. collusion on the part of the New Player with any other player on the Operator Website; 4. the opening of an account in breach of the terms of this Agreement; 5. the offering or providing by Affiliate or any third party of any unauthorized incentives (financial or otherwise), including without limitation Rakeback, to potential or existing New Players; 6. creating or using a single link intended to be used by a single user; 7. sending spam, as such term is defined in any jurisdiction Affiliate conducts the Marketing Activities; 8. registering as a player or making deposits directly or indirectly to any player account through his Link(s) for its own personal use and/or the use of its relatives, friends, employees or other third parties, or in any other way attempting to artificially increase the commission payable or to otherwise defraud the Company and/or the Operators (including by arbitrage); 9. presenting any materials in the Marketing Tools under the Marketing Activities in such a way that it might evoke any risk of confusion with the Operators, the Operators' Websites or the Programme Website or conveying the impression that the Marketing Tools are partly or fully originated with/from the Operators' Website and/or the Operators; and/or 10. any other act by Affiliate or by a New Player which is reasonably understood to have been committed in bad faith against the Company regardless of whether or not such action has resulted in any type of harm or damage to the Company. Violation of any of the above provisions, by Affiliate and/or by Affiliate Introduction(s), shall be deemed as fraud and shall entitle the Company to terminate this Agreement immediately.
"Intellectual Property Rights" means any copyrights, patents, trademarks, service marks, inventions, domain names, brands, business names, utility brands, rights in computer software, source codes, rights in databases and know-how, design rights, Confidential Information, registrations of the aforesaid and/or any other rights in the nature of the aforesaid.
"Links" means internet hyperlinks (which have been provided by us to you) directed from the Marketing Tools to the Operators' Websites.
"Marketing Materials" means any of the Operators' marketing material and information which the Company and/or the Operators may make available to you from time to time, online, through e-mail, the Programme Website or the Operators' Website, as applicable, necessary for the implementation of the Links, or any other general marketing materials used by the Affiliate to market and refer potential players to the Operators' Websites.
"Marketing Tools" means the Affiliate Website(s), media buying, pop-ups, pop-unders, PPC, campaigns, e-mail marketing, social network campaigns and/or any other form used by Affiliate in advertising, marketing and promoting the Operators' Websites, as pre-approved by the Company.
"Marketing Activities" means advertising, marketing and promoting the Operators' Websites through the Marketing Tools.
"Operator(s)" means various online operators as may be designated to you by the Company from time to time.
"Operators' Websites" the internet website(s) operated by the Operators, as may be designated from time to time to Affiliate by the Company, under the Affiliate Programme.
"Parties" means both the Company and the Affiliate, each a "Party".
"Programme Website" www.vip-media.net
"Restricted Territories" means any countries and/or jurisdictions other than the Target Territories, which you may not promote or market the Operators, which include, but are not limited to (i) any restricted territory which is listed on the operator’s website or terms and conditions and/or (ii) any countries and/or jurisdictions that are listed in "Appendix 1" hereto, either of which may be amended by the Company from time to time.
"Affiliate" means you, the person or entity, who applies to participate in the Affiliate Programme, following your execution of the Commission Schedule.
"Sub-Affiliate" means any person who is not already a member of the Programme which was introduced to Company by an Affiliate and joins the Affiliate Programme thereof, subject to Company’s prior approval.
"Affiliate Website(s)" means one or more websites on the internet which are maintained and operated solely by the Affiliate and which have been disclosed to the Company.
"Affiliate Programme" means the collaboration between the Company and the Affiliate whereby the Affiliate will perform the Marketing Activities and thereby be paid a Commission.
"Target Territories" Means the countries and/or jurisdictions which you may promote or market the Operators, as determined by us and notified to you in writing from time to time.
(a) He is the older of (i) eighteen (18) years of age; or (ii) the legal adult age which is legally required in order to perform the Affiliate's obligations under this Agreement, according to Applicable Law;
(b) Its entering into this Agreement does not violate any Applicable Law or regulations;
(c) Any and all required information that it has submitted in the Affiliate application is true, accurate and complete, and that no aliases or other names were used to mask the true identify or contact information and it will maintain the accuracy of the information;
(d) It agrees that the Company may, at its discretion, carry out verification checks of the Affiliate and require it to provide certain documents for verification purposes. It agrees that it will, when requested, promptly provide documents for the purposes of proof of identity, proof of residence and address, as may be deemed necessary, from time to time, by Company;
(e) It has obtained and will maintain in force all necessary registrations, authorisations, consents and licenses necessary to fulfil his obligations under this Agreement.
(f) It fully understands and accepts the terms and conditions of this Agreement.
(a) United Kingdom, in particular, those with ‘.uk’ domain, will require our prior written approval and signing of an additional document detailing UK requirements. The Affiliate shall immediately stop using the Marketing Materials or any part thereof in any of the Affiliate Websites if instructed to do so by the Company.
(b) United States must follow the CAN-SPAM compliance guidelines as defined by FTC. https://www.ftc.gov/tips-advice/business-center/guidance/can-spam-act-compliance-guide-business . Use of deceptive from lines including friendly from and subject lines is strictly prohibited. Failure to comply with ad terms and campaign guidelines will result in non-payment and/or immediate account termination.
(a) that are libellous, discriminatory, obscene, unlawful, sexually explicit, pornographic or violent or which are, in our sole discretion, otherwise unsuitable;
(b) that have as their direct or indirect objective the targeting of marketing to any persons who are less than 18 years of age (or such higher age as may apply in the jurisdiction that you are targeting);
(c) that: (a) infringe our and/or any third party's intellectual property rights; (b) copy or resemble our and/or any third party's property in whole or in part; or (c) disparages us and/or any third party or otherwise damages our and/or any third party's goodwill or reputation in any way
(d) that cause any website (or any parts or pages thereof) to open in a visitor's browser other than as a result of the visitor clicking on banners or text links contained in or as part of any Marketing Materials;
(f) that market and/or advertise in territories which are Restricted Territories, and/or attempt to circumvent any restriction which we have put in place to prevent marketing and/or advertising in Restricted Territories; and
(g) that use and/or provide Marketing Materials which use and/or include any virus, Trojan horse or any other kind of malware.
(h) that promote any operators which are not licensed under all Applicable Law.
(a) that all deals and offers provided to them are only applicable and may only be utilised by the Affiliate if they are not actively promoting the applicable Operator directly. By accepting the terms of this Agreement, the Affiliate confirms that they do not currently and will not promote any such Operators directly and that they will not solicitate any such Operators to discontinue or curtail any business relationship with the Company. In the event that the Affiliate becomes aware that they are already promoting any Operator directly, they shall, without delay, notify the Company;
(b) to use its best efforts to actively and effectively perform the Marketing Activities, as widely as possible in order to maximize the benefit to the Parties and that it will abide with the guidelines of the Operators, as posted in the Operators' Websites, as applicable, or sent to the Affiliate from time to time and/or accessible online;
(c) to conduct the Marketing Activities and to refer potential players to the Operators' Websites 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 Law and regulations and in accordance with this Agreement;
(d) to use only the Links provided by the programme and no other links to the Operators' Websites;
(e) to be responsible for the development, the operation, and the maintenance of (i) the Marketing Tools as well as for all material appearing on the Marketing Tools; and (ii) any and all of the materials used in the Marketing Tools;
(f) that it will not (by itself or through the Marketing Tools) perform any act or publish any material, which is libellous, discriminatory, obscene, unlawful or otherwise unsuitable or which contains sexually explicit, pornographic, obscene or graphically violent materials;
(g) that it is responsible for anything that happens through its account, whether or not such actions were taken by it. In the event Affiliate becomes aware of or reasonably suspect any breach of security, including, without limitation any loss, theft, or unauthorized disclosure of its login information or unauthorised access to its account, it must immediately notify the Company and modify its password;
(h) that it will not actively target any person who is under the legal age for gambling, according to Applicable Law;
(i) that it will not actively target any Restricted Territories or any jurisdiction where such games are illegal;
(j) that it will, at all times, comply with all Applicable Law, and that if needed under Applicable Law, it will obtain and maintain all necessary licenses or approvals or permits to perform its obligations under this Agreement and to be able to receive the Commission;
(k) that the Company is an 'Affiliate' of the Operators, therefore, Affiliate is subject to the terms of the Operators' applicable terms, conditions and regulations and must actively conform and comply with each Operator's terms and conditions;
(l) that the Company may, at its discretion, carry out verification checks and/or monitor the Affiliate’s Marketing Activities, including but not limited to the Links, Marketing Materials and Marketing Tools used by the Affiliate. In such cases, the Company may require the Affiliate to provide certain documents and information in order to conduct such verification checks. The Affiliate therefore agrees that it will, at no cost to the Company, promptly provide such documents and information requested by Company from time to time;
(m) that any data relating the New Players, provided directly or indirectly to the Company by such New Players through the Affiliate Programme and any intellectual property rights related thereto or associated therewith is exclusively owned by, and rights in and to such data and such intellectual property rights exclusively vest in, the Company, subject to Applicable Law;
(n) to (i) remove any information and/or marketing materials, of any kind; and/or (ii) terminate any Marketing Tool and/or Marketing Activity and/or other activity under the Affiliate Programme, immediately upon the Company's first request;
(o) that it will use best efforts to execute the Marketing Activities in a manner consistent with good business ethics and in good faith towards the Company and it will not generate activity to the Operators' Websites by illegal or Fraud activities;
(p) that, except as explicitly provided under the Marketing Materials, the Affiliate may not use the Company's or the Operators' trademarks and other Intellectual Property Rights without their prior written consent, as applicable; and
(q) it shall not offer or provide any New Player or potential New Player any type of Rakeback or Bonus (as defined below) without the Company's prior written approval, and shall make best efforts to ensure that none of its employees shall directly or indirectly offer any New Player or potential New Player any such type of Rakeback or unauthorized Bonus without the Company's prior written approval. For purposes of this Clause: (A) "Rakeback" shall include any form of incentive, promotion or rebate, howsoever labelled or named, which is offered, awarded or paid back to New Players and which is based on a portion of such New Players' rake; (B)"Bonus" means the total amount of all credits, bonuses, bonus points, freerolls, free bets, special bets and other promotional amounts and incentives granted to New Players, whether monetary or tangible, which shall all be decided by the Company in its sole discretion.
(r) it shall keep confidential and shall not disclose to any third party any and all Confidential information and shall use such Confidential Information solely for the performance of its obligations under this Agreement.
(s) It shall ensure that no press release in respect of the execution of this Agreement or any matters arising therefrom may be released by it without the express written approval of the Company.
(t) it agrees that during the engagement herein, and for the one (1) year period immediately thereafter, it shall not solicit or contact any employee of the Company with a view to inducing or encouraging such employee to discontinue or curtail any employment relationship with the Company.
(a) Affiliate shall comply with any and all applicable Data Protection Laws, including the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR) the EU General Data Protection Regulation Act (GDPR).
(b) Any and all promotional materials or promotional communications directed at Affiliate’s end users or clients, by whatever means (e.g. email, SMS messages, etc.; collectively “Promotions”) shall contain a clear and conspicuous notice of the opportunity to opt out of receiving future Promotions in an easy manner, by any of the following means (as applicable): (a) replying directly to the Promotion, (b) clicking on a clear 'unsubscribe' in the Promotion, or (c) by sending a stop message to a short code number. The recipient of a Promotion shall not be required to pay a fee or provide any other information;
(c) Affiliate is responsible to ensure that any request by a recipient to opt-out of receiving future Promotions shall be honoured within no later than seven (7) days;
(e) All Promotions shall contain the identity of the sending entity, including contact details and a clear and conspicuous identification that the Promotion is an advertisement or solicitation;
(f) With respect to email Promotions – the header of any email Promotions shall indicate the sending source, destination and routing information, and the email Promotion shall include a return email address or phone number, as applicable, which will allow the recipient to communicate with Affiliate, and may be used to facilitate the opt out mechanism; and
(g) The Promotions should not contain materially false or materially misleading information.
(a) In Company’s sole opinion, such termination is necessary to comply with any Applicable Law, any Company policy or license and/or in order to protect the interests of the Company;
(b) Affiliate (and/or any applicable Affiliate Introduction’s) is in breach of this Agreement.
(a) render Affiliate’s account inactive and notify Affiliate by email. If Company does not receive any response from Affiliate within thirty (30) days, the provisions of Clause 7.6 shall apply, and any Commission owing will automatically revert to Company;
(b) immediately remove/render any Link(s)s inoperative and make no further Commission payments to Affiliate.
(a) Affiliate shall stop promoting the Links and all rights and licenses given to it under this Agreement will terminate immediately; and
(b) Affiliate shall return all Confidential Information to us and cease use of any of Marketing Materials.
Sections 5(r) (Confidentiality), 5(s) (Publication), 5(t) (No Solicitation) 8 (Term and Termination), 9 (indemnification), 10 (Limitation of Liability) and 11 (Governing Law and Jurisdiction) shall survive the termination of this Agreement for any reason.
(a) incidental, indirect or consequential damages of any kind;
(b) loss of business, profits, revenue, contracts or anticipated savings; and/or
(c) loss or damage arising from loss, damage or corruption of any data.