GAMESYS GROUP PARTNERS PROGRAMME AGREEMENT
THESE TERMS AND CONDITIONS GOVERNING YOUR USE OF THE GAMESYS GROUP PARTNERS PROGRAMME (THIS “AGREEMENT”) WERE UPDATED ON 29 JANUARY 2020. PLEASE READ THEM THROUGH CAREFULLY AND IN PARTICULAR ENSURE YOU UNDERSTAND AND ARE COMPLIANT WITH YOUR OBLIGATIONS IN CLAUSE 6.
If you have any questions, please email email@example.com.
1.1 This Agreement is between you (referred to as the “Affiliate”) and Gamesys (Gibraltar) Limited, a company registered in Gibraltar with registration number 103854 with its principal place of business at 4/2 Waterport Place, Gibraltar (“Gamesys”).
1.2. If the Affiliate is accepted to the Gamesys Group Partners Programme for the Brand Website www.virgincasino.com and/or www.tropicanacasino.com, the terms and conditions of the Gamesys Group Partners Programme Agreement with Gamesys US LLC, a company registered in the state of Delaware with its registered office at 2711 Centerville Road, Suite 400, Wilmington, DE 19808, shall apply instead of this Agreement.
2. DEFINITIONS AND INTERPRETATION
2.1. Capitalised words and expressions in this Agreement shall have the meanings set out below:
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 “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);
2.2.8. 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;
2.2.9. 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);
2.2.10. the clause headings are included for convenience only and shall not affect the interpretation of this Agreement; and
2.2.11. 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. APPLICATION TO GAMESYS GROUP PARTNERS PROGRAMME
3.1. The Affiliate must be at least 18 years old to be accepted into the Gamesys Group Partners Programme.
3.2. Gamesys will review the Affiliate´s application to participate in the Gamesys Group Partners Programme and may, in its sole discretion, request further information from the Affiliate and may accept or reject such application.
3.3. Gamesys may reject the Affiliate´s application if the Affiliate Website 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), and/or the Affiliates marketing activities or practices generate any content that: (i) contains any Prohibited Material; (ii) consists of, includes or is confusingly similar to any of the Brand Marks or Prohibited Terms; and/or (iii) appears to have been registered in bad faith. For the Affiliate to be accepted into the Gamesys Group Partners Programme, Gamesys may require that the Affiliate removes the foregoing material, and/or either transfers to Gamesys and/or a Gamesys Group Company or their licensors or (in Gamesys´ or such licensors´ sole discretion) deletes/removes any such domain name, sub-domain or content. The Affiliate shall inform Gamesys about any such domain name, sub-domain or content owned by the Affiliate or under its control at the time the Affiliate makes its application to participate in the Gamesys Group Partners Programme.
3.4. Gamesys may change this Agreement and add to, change, suspend or discontinue any aspect of the Gamesys Group Partners Programme at any time, including by removing or adding any Brand Website to the Gamesys Group Partners Programme. Gamesys recommends that the Affiliate checks this Agreement for changes regularly. The Affiliate´s continued use of the Gamesys Group Partners Programme following any change in this Agreement will constitute binding acceptance of such changes. If the Affiliate does not agree to any such changes, either party may terminate this Agreement pursuant to clauses 13.1, 13.2 or 13.3 as appropriate.
3.5. 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.
4.1. Subject to the Affiliate´s compliance with this Agreement and Gamesys´ acceptance of the Affiliate into the Gamesys Group Partners Programme, Gamesys grants to the Affiliate a non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable, royalty free licence, during the Term, to promote the Brand Websites and/or the Gamesys Group Partners Programme using the Links, Brand Marks and Promotional Content via the Marketing Channels, in each case solely in the manner directed or approved by Gamesys and in accordance with all Applicable Laws, any and all Brand Guidelines, and this Agreement, and solely for the purposes of referring the Affiliate´s end users to the Brand Websites.
4.2. The Affiliate shall ensure that it shall only use and place on Affiliate Websites the most up-to-date Links, Brand Marks and Promotional Content made available or approved in writing by Gamesys from time to time.
4.3. If Gamesys requests any change to the Affiliate´s use and positioning of the Links, Brand Marks and/or Promotional Content and/or Marketing Channels from time to time, the Affiliate shall promptly comply with such request.
4.4. The Affiliate shall promptly provide to Gamesys such information as Gamesys may reasonably request (i) to enable Gamesys to monitor the Affiliate´s compliance with this Agreement and (ii) for regulatory purposes, including as may be requested by Gamesys in relation to any reports or information that Gamesys may wish or need to provide to any Gaming Authority.
5.1. In consideration for the performance of the Services, and subject to clauses 5.2 and 5.3 and the Affiliate´s compliance with this Agreement, Gamesys will pay to the Affiliate:
5.1.1. the Affiliate Revenue Share; and/or
5.1.2. the Cost Per Acquisition,
(the “Commission”), as such Commission is agreed between the parties as part of the application process or otherwise, provided that the Affiliate shall not be entitled to any Commission after expiry or termination of this Agreement (including any “lifetime revenue share”).
5.2. The Affiliate shall not be entitled to any Commission in respect of any of the Affiliate’s end users that are referred to the Brand Websites having clicked the Links where those end users do not subsequently register as Players.
5.3. In no circumstances shall the Affiliate be entitled to any commission paid by Gamesys to another Affiliate in respect of any affiliates referred to the Gamesys Group Partners Programme.
5.4. If the Affiliate has a negative monthly balance, the Affiliate´s monthly payable balance of the Commission is automatically reset to £0 (or, where applicable, the equivalent in another currency) at the beginning of each calendar month, to ensure that no negative balances are carried forward.
5.5. Gamesys shall make available to the Affiliate a monthly statement setting out the Commission payable by Gamesys to the Affiliate in accordance with this Agreement.
5.6. Subject to clauses 5.8, 5.9 and 5.12, on or before the 15th of each calendar month, Gamesys will pay the Commission due to the Affiliate in respect of the previous calendar month based upon the statement to the Affiliate´s nominated bank account.
5.7. Minimum payment thresholds depend upon the payment method selected by the Affiliate. If the balance of the Commission due to the Affiliate is less than the following monthly payment thresholds, such Commission will be carried over into subsequent months until the thresholds have been reached:
5.7.1. UK Bank Transfer – £25 (or, where applicable, the equivalent in another currency); and
5.7.2. International Bank Transfer – £200 (or, where applicable, the equivalent in another currency).
5.8. Gamesys may review the balance of the Commission due to the Affiliate every six (6) months during the Term. If at any review date the balance of the Affiliate’s account is less than £5 (or, where applicable, the equivalent in another currency), any Commission due to such Affiliate shall, at Gamesys´ election, be declared void and the balance of its account in relation to any Commission owed shall be reset to £0.
5.9. The Commission will be paid in pounds sterling(£) by electronic bank transfer in respect of all Brand Websites, except Affiliates of www.botemania.es (and that are Affiliates for no other Brand Websites) with Spanish bank accounts will be paid in Euros. Notwithstanding the foregoing, the Commission may be displayed in pounds sterling (£) in Affiliates´ accounts on the Gamesys Group Partners Website.
5.10. Except where clause 5.11 applies and the Affiliate has provided incorrect bank details, the Affiliate shall be entitled but not obliged to charge interest on an overdue amount, from the due date up to the date of actual payment, at the rate of two percent (2%) per annum above the base rate for the time being of Barclays Bank Plc, provided that the Affiliate shall give written notice to Gamesys that the amount has not been paid, specifying the total amount of interest owed at the date of the notice and the daily rate at which the interest will continue to accrue, the invoice or invoices to which the interest relates, and the addresses to whom and details of the account to which payment should be made.
5.11. If the Affiliate provides incorrect bank details and a payment is unsuccessful and returned to Gamesys by its payment processor, Gamesys will investigate and notify the Affiliate and request corrected bank account details, and:
5.11.1 such unsuccessful payments will only be credited to the Affiliate´s corrected account details once Gamesys has been notified by its payment processor that the payment has been successfully retrieved;
5.11.2 the bank charges associated with any such error shall be deducted from the Affiliate´s Commission; and
5.11.3 from six months after Gamesys first contacted the Affiliate to request the Affiliate’s correct bank details, Gamesys is entitled to close an Affiliate’s account, terminate this Agreement and withhold any Commission owing.
5.12. Notwithstanding clause 5.11, Gamesys reserves the right to withhold payment of the Commission to the Affiliate if: (i) it believes or suspects that any transaction or other activity relating to any Link, the Gamesys Group Partners Website, the Affiliate Website or any Brand Website is suspicious, fraudulent and/or involves or may involve financial crime or similar activity; (ii) there is a breach or suspected breach of this Agreement by the Affiliate; or (iii) Gamesys has reasonable grounds to believe that the relevant Services, activities or marketing which would have otherwise resulted in such Commission being payable were carried out in a manner which was not in accordance with legal or regulatory requirements. In such event, Gamesys reserves the right to retain indefinitely any revenues relating to that transaction or activity and any other revenues (including the Commission) relating to the Affiliate.
6. AFFILIATE OBLIGATIONS
6.1. The Affiliate shall provide the Services in accordance with Good Industry Practice.
6.2. The Affiliate shall check all Promotional Content is compliant with Applicable Laws, the Brand Guidelines, the terms of this Agreement and Gamesys´ instructions given from time to time (including any guidance notes issued by Gamesys), and shall cooperate fully with Gamesys in the case of any investigation or ruling from any regulator, including the Advertising Standards Authority (“ASA”), Information Commissioner´s Office and the UK Gambling Commission (“UKGC”).
6.3. Where the Affiliate
publishes on any Affiliate Websites any advertising for the Brand Websites
which is either: (i) intended to come to the attention of persons in Great
Britain; or (ii) likely to come to the attention of such persons, the Affiliate
will ensure that such advertising complies with:
6.3B The Affiliate acknowledges, and agrees to comply with, the guidance set out by the ASA ‘Gambling advertising: protecting children and young people’ , which came into force on 1 April. In particular the Affiliate agrees it shall at all times in relation to advertising for the Brand Websites:
6.3.1B take all reasonable steps to ensure that such advertising is not targeted at under-18’s either through selection of media, or content;
6.3.2B take into account the likely
audience of such advertising and take steps to:
6.3.3B prevent such advertising being directed at adult audiences posing a risk to under-18s (e.g. adult content that young people are known to participate in (e.g. drinking/gambling/adult TV and cinema));
6.3.4B account for the fact that some audiences are likely to lie about their age, and put secondary filters in place at times when the target audience is similar to the restricted audience, i.e. campaigns served to 18-24 year olds (e.g. adding interest filters that would select an older demographic, or the exclusion of interest filters or demographics with wide appeal to children or young people e.g. fashion brands, celebrities with wide youth appeal); and
6.3.5B be able to provide evidence that the Affiliate has, and has cooperated with Gamesys to have, been diligent in forecasting the likely audience and confident of the likely audience composition ahead of publishing adverts.
6.4. If, having obtained the
prior written approval of Gamesys, the Affiliate markets and promotes the Brand
Websites via social media direct messaging, SMS or push notification, the
Affiliate shall (and shall procure from any third party that provides such
Services on behalf of the Affiliate that it shall):
6.5. If, having obtained the
prior written approval of Gamesys, the Affiliate markets and promotes the Brand
Websites via email, the Affiliate shall (and shall procure from any third party
that provides such Services on behalf of the Affiliate that it shall):
6.6 If the Affiliate uses any social media platform to market and promote the Brand Websites, the Affiliate shall (and shall procure from any third party that provides such Services on behalf of the Affiliate that it shall) fully comply with such social media platform’s terms and conditions (as may be updated from time to time).
6.7. If any form of spam is sent (or alleged to have been sent) by or on behalf of the Affiliate, Gamesys 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. Gamesys 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 Gamesys´ 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 Gamesys and all Gamesys Group Companies from and against all losses, damages, costs, expenses, liabilities and claims (including reasonable legal expenses) incurred by or awarded against Gamesys or Gamesys Group Company due to or in connection with any breach by the Affiliate of this clause 6.7.
6.8. The Affiliate shall not provide the information of another person with the intention of impersonating that person or deceiving Gamesys as to its true identity.
6.9. Without prejudice to clause 6.8, the Affiliate shall meet and maintain all Player registration requirements relating to the Brand Website.
6.10. 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, for example by registering as Players of the Affiliates.
6.11. Affiliates will not knowingly benefit from known or suspected traffic not generated in good faith whether or not it actually causes damage to Gamesys. Gamesys reserves the right to retain indefinitely any amounts due to the Affiliate under this Agreement if it has reasonable cause to believe that such traffic has been caused by or as a result of an act or omission of the Affiliate.
6.12. If the Affiliate would like to advertise the Brand Websites through an Affiliate network, it must receive Gamesys’ consent in writing first and grant Gamesys access to an advertiser account on the platform of its Affiliate network, through which all marketing of the Brand Websites will be accessible.
7. AFFILIATE ACCOUNTS
7.1. The Affiliate shall be
7.1.4. keeping Gamesys up to date on the details of all Affiliate Websites through which it promotes any Brand Websites, including via a network of affiliates.
7.2. The Affiliate shall notify Gamesys by email at firstname.lastname@example.org 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 Gamesys may rely on any data, notice, instruction or request furnished to it by the Affiliate or by a person reasonably believed by Gamesys to be authorised to act on the Affiliate´s behalf.
7.4. Affiliate Websites that comprise cashback and incentive Websites are allowed to participate in the Gamesys Group Partners Programme provided that: (i) Gamesys reserves the right to limit the amount of cashback given away for all Brand Websites; and (ii) each cashback operator must make Gamesys aware of the nature of their Website as part of such operator´s application to join the Gamesys Group Partners Programme so that Gamesys can evaluate such operators´ possible participation and approve or reject such application accordingly in Gamesys´ sole discretion.
8.1. 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.
8.2. The Affiliate warrants,
represents and undertakes (as applicable) on a continuing basis that:
8.3. The Gamesys Group Partners 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 Gamesys Group Partners Website and the Brand Websites, unless such warranties are legally incapable of exclusion. Gamesys does not guarantee: (i) the Gamesys Group Partners Website or the Brand Websites will be uninterrupted or error-free; (ii) that defects on or in the Gamesys Group Partners Website or the Brand Website will be corrected; (iii) there are no viruses or other harmful components on or in the Gamesys Group Partners Website or the Brand Website; (iv) the security methods employed on or in the Gamesys Group Partners Website or the Brand Website will be sufficient; (v) any content on the Gamesys Group Partners Website or the Brand Websites is correct, accurate, or reliable; or (vi) the Gamesys Group Partners Website, Brand Marks, Links, Promotional Content and the Brand Websites will not infringe the Intellectual Property Rights of any third party.
9.1. Without prejudice to
Gamesys´ other rights or remedies under this Agreement, the Affiliate shall
fully indemnify and hold harmless Gamesys and Gamesys Group Companies,
affiliates, employees, officers and directors (collectively, these are referred
to in clause 9 “Associates”) from and against all losses, demands, fines
or penalties (including any fine or penalty imposed by a Gaming Authority),
damages, costs, expenses (including reasonable legal costs and expenses and VAT
thereon), liabilities and claims (including any claims from Players) suffered
or incurred, directly or indirectly, by or awarded against Gamesys or any of
its Associates in consequence of or in connection with:
10. LIMITATION OF LIABILITY
10.1. Neither Gamesys nor any
Gamesys Group Companies shall be liable to the Affiliate or to any third party
in contract, tort (including negligence) or howsoever arising for any:
10.2. 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.
10.3. The total aggregate liability of Gamesys 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 greater of (i) total Commission paid to the Affiliate by Gamesys in the six (6) months preceding the date on which the liability occurred and (ii) £1,000 (or, where applicable, the equivalent in another currency).
10.4. This clause 10 shall not limit Gamesys’ liability to pay any sums properly due and owing to the Affiliate pursuant to clause 5.
11. INTELLECTUAL PROPERTY
11.1. 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 Gamesys 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 Gamesys all the consents required by Gamesys 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.
11.2. The Affiliate acknowledges and agrees that, other than in accordance with the licences granted to it pursuant to this clause 11:
11.2.1. it neither has nor obtains any right, title or interest in or to any Intellectual Property Rights of Gamesys or its licensors (including any such right, title or interest as may exist in the Prohibited Terms, the Links, the Promotional Content and any Player Data); and
11.2.2. all right, title and interest (including goodwill) arising from the Affiliate´s use of any Intellectual Property Rights belonging to Gamesys or its licensors will vest in and/or accrue to Gamesys or its licensors (as applicable). Gamesys or its licensors may, at any time, call for a confirmatory assignment of any such right, title, interest and/or goodwill.
11.3. Gamesys and/or its licensors shall, in their absolute discretion, decide what action to take (if any) in respect of any infringement of any Intellectual Property Rights that may from time to time be vested in Gamesys and/or any Gamesys Group Company and/or their licensors. Gamesys and/or its licensors shall have exclusive control over, and conduct of, all claims and proceedings arising out of or in connection with any Intellectual Property Rights, and shall be entitled to retain indefinitely all sums recovered in any action for their own account. The Affiliate shall not make any admissions other than to Gamesys and/or its licensors and shall provide Gamesys and/or its licensors with all assistance that they may reasonably require in the conduct of any claims or proceedings.
11.4. The provisions of section 30 of the Trade Marks Act 1994 (and any similar or equivalent legislation in any jurisdiction) are expressly excluded.
11.5. Gamesys and/or the Gamesys
Group Companies and their licensors may at any time in their sole discretion,
with or without notice to the Affiliate, and with no further liability to the
11.6. 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 Intellectual Property Rights of Gamesys and/or the Gamesys Group Companies 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 Gamesys and/or any of the Gamesys Group Companies and/or their licensors shall so vest.
11.7. The Affiliate shall not:
11.8. The Affiliate shall,
immediately upon Gamesys´ request and in accordance with Gamesys´ instructions,
assign and/or transfer to Gamesys (and/or its licensors), or delete (in
Gamesys´ 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 11.7. 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 Gamesys in accordance with this clause:
11.9. 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.
12. CONFIDENTIAL INFORMATION
12.1. Subject to clause 12.2, 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 sub-contractors 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 12), 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.
12.2. The obligation of
confidentiality contained in clause 12.1 shall not apply or (as the case may
be) shall cease to apply to Confidential Information which:
12.3. Gamesys shall be entitled to disclose Confidential Information relating to the Affiliate (which may include contact details and other Personal Data) to its licensors, third party complainants (or their professional advisers) or regulatory authorities if Gamesys believes (in its sole discretion), or a third party alleges, that the Affiliate: (i) has infringed the rights of Gamesys, 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.
12.4. 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.
13. TERM AND TERMINATION
13.1. This Agreement shall commence
on the Commencement Date and remain in effect until terminated in accordance
with the terms of this Agreement (The “Term”).
13.2. The Affiliate may terminate this Agreement with respect to any Brand Website for any reason upon 7 days´ prior written notice to Gamesys.
13.3. Gamesys may suspend indefinitely or terminate this Agreement, including with respect to any Brand Website, for any reason immediately on written notice to the Affiliate at any time. Notwithstanding the foregoing, where Gamesys is unable to contact the Affiliate as a result of its failure to comply with clause 7.1.2, Gamesys shall have the right to suspend indefinitely or terminate this Agreement without the need for notice to the Affiliate. In such circumstances, Gamesys shall have the right to withhold indefinitely and retain indefinitely any amounts due to such Affiliate for each relevant calendar month with effect from the date of the suspension or termination of the Agreement.
13.4. It is acknowledged, without prejudice to the generality of clause 13.3, that Gamesys shall have the right (but not the obligation) to suspend indefinitely or terminate this Agreement or any part of it immediately on written notice to the Affiliate at any time if, for example: (i) Gamesys deems the Affiliate, in its reasonable opinion, as not actively promoting the Brand Websites, including by not referring a reasonable number of Players to the Brand Websites, for a period of one (1) month; (ii) Gamesys considers that 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 (iii) the Affiliate sends or causes to be sent (or is alleged to have sent) any form of spam; (iv) the Affiliate sends or causes to be sent (or is alleged to have sent) any marketing without explicit consents from an end user or that is in breach of Data Protection Laws; (v) 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); (v) the Affiliate fails, or in Gamesys´ reasonable opinion fails, to comply with any of its obligations under this Agreement; or (vi) the Affiliate fails to comply with clauses 7.1.1 and 7.1.2 for a period of at least three (3) months, as a result of which Gamesys is unable to pay the Commission to the Affiliate and/or unable to contact the Affiliate; or (vii) the Affiliate does not log into its Gamesys affiliate account or, having logged into such account, elects not to accept any amendments made to this Agreement pursuant to clause 3.4 within one (1) week of the last date that this Agreement was updated. In such circumstances, Gamesys shall have the right to withhold indefinitely and retain indefinitely any amounts due to such Affiliate for each relevant calendar month with effect from the date of the suspension or termination of the Agreement and, in relation to clause 13.4(vii), even if the Affiliate subsequently provides Gamesys with up to date bank details and/or contact details.
13.5. If Gamesys serves notice to terminates this Agreement in accordance with its terms, Gamesys shall be entitled to terminate (in such notice or in a separate notice) any or all other affiliate agreements that it has with the Affiliate at the time of termination of this Agreement.
13.6. 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.
13.7. Upon termination of this Agreement or any part of it: (i) the Affiliate shall no longer be entitled to access the Gamesys Group Partners 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 Gamesys or (in Gamesys´ sole discretion) destroy or permanently delete all the property in the Affiliate´s possession or under its control that either (i) belongs to Gamesys, the Gamesys Group Companies and/or any of their licensors; and/or (ii) contains any Confidential Information of Gamesys.
13.8. If Gamesys suspends or terminates this Agreement or any part of it, Gamesys retains the right to withhold indefinitely and retain indefinitely any Commission otherwise payable to the Affiliate in respect of the month in which such suspension or termination occurs and which relates to that portion of this Agreement as may have been suspended or terminated.
13.9. 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.
13.10. If Gamesys 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.
13.11. The following clauses of this Agreement shall survive termination of this Agreement: : 8, 9, 10, 11.1, 11.2, 11.3, 11.7.3, 12, 13.6, 13.7, 13.8, 13.9, 13.10, 14, 15, 16, 17, 18, and Schedule 2, and any other clauses, the survival of which is necessary for the interpretation or enforcement of this Agreement.
14. REGULATORY MATTERS
14.1. The Affiliate shall provide such information to Gamesys as Gamesys 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 12 of this Agreement.
14.2. Insofar as the Affiliate carries out activities pursuant to this Agreement on behalf of Gamesys and such activities are subject to any Gaming Approval issued to Gamesys from time to time, the Affiliate shall conduct itself as if it was bound by the relevant conditions and the relevant codes of practice to which Gamesys is subject pursuant to such Gaming Approval.
14.3. It is acknowledged that Gamesys and the Gamesys 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 Gamesys is able to maintain such Gaming Approvals, Gamesys may evaluate the suitability of entities with which it does business from time to time. If Gamesys, acting in good faith and in accordance with industry practice, determines the Affiliate to be Unsuitable, Gamesys may suspend indefinitely or terminate this Agreement immediately by giving written notice to the Affiliate and withhold indefinitely and retain indefinitely any monies then due to the Affiliate.
14.4. 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:
14.4.1. 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);
14.4.2. 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
14.4.3. notify Gamesys immediately if it becomes aware that, or has reason to believe that, it has breached its obligations under this clause 14.
14.5. The Affiliate shall implement effective systems and controls to prevent slavery and human trafficking from affecting any part of its business and supply chain. The Affiliate shall, on demand, provide Gamesys with a summary of the steps it takes from time to time to prevent modern slavery and human trafficking (including details of any relevant staff and supplier policies and details of due diligence conducted on suppliers).
15. DATA PROTECTION
15.1. Subject to clause 15.3, each of Gamesys and each Affiliate shall be a Controller of Personal Data it Processes and will Process that Personal Data as a separate and independent Controller for the purposes of this Agreement. The parties Process the Personal Data as Controllers in common and not jointly as joint Controllers.
15.2. Subject to clause 15.3,
each of Gamesys and each Affiliate shall be individually and separately
responsible for complying with the obligations that apply to it as a Controller
under Data Protection Laws, in particular but without limitation:
15.3. Gamesys may choose to make available certain Personal Data (which may include anonymous player ID information) to the Affiliate from time to time for the sole purpose of allowing the Affiliate to verify the Commission paid or payable by Gamesys pursuant to clause 5 (“Gamesys Personal Data”), In respect of this Gamesys Personal Data only, the parties shall be bound by the terms in Schedule 2.
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, the relevant Gamesys Group Company can directly enforce the provisions of clauses 6.8, 8, 9, 11.7.3, 12 and 13.6.
16.5. Notwithstanding the covenants for title made in clause 11.1, the Affiliate shall at the cost and expense of Gamesys 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 Gamesys may from time to time reasonably require in order to vest in and secure to Gamesys and its successors in title the full benefit of the assets, rights and benefits to be transferred or granted to Gamesys 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, the Affiliate shall not without the prior written consent of Gamesys assign at law or in equity (including by way of a charge or declaration of trust), sub-license, sub-contract 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. Gamesys 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. Any notice relating to a breach of this Agreement, a claim under clause 9 of this Agreement, or termination of this Agreement, shall be in writing. Gamesys´ notice may be validly served if sent by email to the relevant Affiliate email address as the relevant Affiliate may designate to Gamesys in writing from time to time. Any such email notice shall be deemed to have been served at the time of dispatch of such email, i.e. the time when the email enters Gamesys information system. For the avoidance of doubt, the parties agree that the provisions of this clause 16.10 shall not apply in relation to the service of any process in any legal action or proceedings arising out of or in connection with this Agreement or the legal relationships established by this Agreement.
16.11. The Affiliate´s notice or any notice by either party in relation to the service of any process in any legal action or proceedings shall be served by hand, prepaid first class recorded delivery (including special delivery), courier or prepaid first class recorded airmail (a “Posted Notice”) to Gamesys´ address as set out above (or, in relation to the service of any process in any legal action or proceedings), the Affiliate´s address as stated in its Gamesys Group Partners 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 law 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. DATE OF AGREEMENT
18.1. This Agreement was last updated on 29 January 2020 and supersedes any previous agreement.
The following are Prohibited Terms, along with any other list of words supplied by Gamesys to the Affiliate from time to time, including words relating to responsible gambling and protecting children and young and vulnerable people:
DATA PROCESSING TERMS
In these Data Processing Terms, “Gamesys” means, as applicable, any relevant Group Company (as defined in the Agreement) from time to time of Gamesys (Gibraltar) Limited that uses the Services provided by the Affiliate, each as a Controller in accordance with Data Protection Laws for the purposes of the Services Agreement and this Agreement.
1.1 Data Processor. In respect of the Gamesys Personal Data only, the Affiliate is a data processor (or sub-processor) acting on Gamesys’ behalf. As data processor (or sub-processor), the Affiliate will only act upon Gamesys’ instructions as set out in this Agreement and otherwise as provided in writing by Gamesys to the Affiliate from time to time. Gamesys Personal Data will be used in accordance with and for the purposes set out in the documented instructions and only as necessary to verify Commission paid or payable by Gamesys pursuant to clause 5. If the Affiliate is ever unsure as to the parameters of the instructions issued by Gamesys it will, as soon as reasonably practicable, revert to Gamesys for the purpose of seeking clarification or further instructions.
1.2 Nature, Purpose and Duration of Data Processing. The scope and purpose and duration of Personal Data and Processing (including the type of Personal Data and categories of data subject) covered by this Agreement is set out in Annex A.
1.3 Compliance with Data
Protection Laws. The Affiliate shall:
1.4 Co-operation. The Affiliate shall co-operate and assist Gamesys with any privacy impact assessments and consultations with (or notifications to) relevant regulators that Gamesys considers are relevant pursuant to Data Protection Laws in relation to the Gamesys Personal Data.
1.5 Affiliate personnel. The Affiliate personnel will not process Gamesys Personal Data without authorisation from Gamesys. The Affiliate shall procure that its personnel are obligated to maintain the security and confidentiality of any Gamesys Personal Data as provided in this Agreement and this obligation continues even after their engagement ends.
1.6 Data subject rights. The Affiliate shall promptly forward to Gamesys and otherwise co-operate with and assist Gamesys at no charge with any requests from data subjects of any Gamesys Personal Data pursuant to Data Protection Laws (including the ability to correct, delete, block or port Gamesys Personal Data and rights of access and disclosure as set out in clause 2 below).
1.7 Deletion or return of Gamesys Personal Data. The Affiliate shall at Gamesys´ option, delete (unless required by Applicable Laws) or return all copies of Gamesys Personal Data and cease Processing such Gamesys Personal Data after the business purposes for which the Gamesys Personal Data was Processed have been fulfilled, or earlier upon Gamesys’ written request.
1.8 Records. The Affiliate shall maintain a record of all categories of processing activities carried out on behalf of Gamesys which shall be made available to Gamesys upon request.
2.1 The Affiliate will not disclose Gamesys Personal Data outside of the Affiliate except: (i) as Gamesys directs (including as permitted under this Agreement); or (ii) as required by law.
2.2 In the event that the
Affiliate receives any request for disclosure of (or information in relation
to) Gamesys Personal Data by a law enforcement person or agency:
2.3 In the event that the Affiliate receives any request for disclosure of (or information in relation to) Gamesys Personal Data in a circumstance not covered by clause 2.2: (i) the Affiliate shall promptly forward such request to Gamesys; and (ii) at no charge, co-operate and assist Gamesys with such request where so directed by Gamesys (including in relation to requests from data subjects pursuant to Data Protection Laws).
3.1 The Affiliate has implemented and will maintain throughout the term of the Agreement appropriate technical and organisational measures, internal controls and information security routines intended to protect Gamesys Personal Data against accidental, unauthorised or unlawful access, disclosure, alteration, loss, or destruction. These shall at all times be of at least the minimum standard required by Data Protection Laws and further be of a standard no less than the standards compliant with good industry practice for the protection of Personal Data to ensure a level of security for the Gamesys Personal Data appropriate to the risk and to assist Gamesys in ensuring compliance with the requirements for the security of processing as set out in Data Protection Laws
3.2 The Affiliate shall ensure that all Gamesys Personal Data is encrypted at all times while in the possession or under the control of the Affiliate.
4. NOTIFICATION AND INCIDENTS
4.1 If the Affiliate becomes
aware of or reasonably suspects that any Security Incident has occurred, the
Affiliate will without undue delay (and in any event within twenty-four (24)
5.1 The Affiliate shall not permit sub-contractors to Process Gamesys Personal Data without the prior written approval of Gamesys. Those sub-contractors approved as at the commencement of this Agreement are as set out in Annex A. Any changes to the sub-contractors involved in any Processing pursuant to this Agreement (including any change in the scope or nature of the Gamesys Personal Data involved or any addition or replacement of sub-contractors approved by Gamesys) must be pre-approved in writing by Gamesys.
5.2 Any authorisations by Gamesys to use a sub-contractor is on the condition that the Affiliate remains fully liable to Gamesys for the sub-contractor’s performance of the contract, as well as for any acts or omissions of the sub-contractor in regard of its Processing of Personal Data.
5.3 The Affiliate shall ensure that sub-contractors shall be contractually bound to the same obligations with respect to the Processing of Gamesys Personal Data as to which the Affiliate is bound by this Agreement relating to security and audit and otherwise. The Affiliate shall provide copies of documentation to evidence its compliance with this provision to Gamesys on request.
6. TRANSFER OF DATA
6.1 The Affiliate may only transfer Gamesys Personal Data in the circumstances set out in clauses 2 and 5 of this Schedule. Except as set forth above, or as Gamesys may otherwise authorise, the Affiliate will not transfer to any Gamesys Personal Data.
6.2 Transfers from the EU
to countries outside the EEA
6.3 Other transfers out
of originating country
7.1 Subject to reasonable written advance notice, the Affiliate shall permit Gamesys and/or a qualified representative (subject to reasonable and appropriate confidentiality undertakings) to conduct during normal working hours periodic security scans and audits of the Affiliate’s (or its sub-contractors’) systems and processes in relation to Gamesys Personal Data and shall comply with all reasonable requests or directions by Gamesys to verify and/or procure that the Affiliate is in full compliance with its obligations under this Schedule. The Affiliate shall promptly resolve, at its own expense, all security issues discovered by Gamesys and reported to the Affiliate.
7.2 Gamesys shall have the right following any such audit to request additional safeguards, establish back-up security for Gamesys Personal Data and keep back-up Gamesys Personal Data and Gamesys Personal Data files in the Affiliate’s (or its sub-contractors) possession. The parties shall agree on the additional safeguards to be implemented, if any.
8.1 The Affiliate warrants, represents
and undertakes (as applicable) that: