GAMESYS GROUP PARTNERS PROGRAMME AGREEMENT

COVER PAGE

 

THESE TERMS AND CONDITIONS GOVERNING YOUR USE OF THE GAMESYS GROUP PARTNERS PROGRAMME IF YOU ADVERTISE GAMESYS’ UK, SPAIN OR US BRAND WEBSITES WERE UPDATED ON 31 JULY 2021.

 

If you have any questions, please email contactus@gamesysgrouppartners.com.

 

1.      APPLICABLE AGREEMENT

 

UK BRAND WEBSITES

 

1.1. If the Affiliate is accepted to the Gamesys Group Partners Programme for Gamesys’ UK Brand Websites , Section 1 (from Page 2) below will apply.

 

SPAIN BRAND WEBSITES

 

1.2. If the Affiliate is accepted to the Gamesys Group Partners Programme for Gamesys’ Spanish Brand Websites, Section 2 (from Page 45) below will apply.

 

US BRAND WEBSITES

 

1.3. If the Affiliate is accepted to the Gamesys Group Partners Programme for Gamesys’ US Brand Websites, 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 either Sections 1 and 2 below.

 

2.        MULTIPLE APPLICABLE AGREEMENTS

 

2.1. In case the Affiliate is accepted to the Gamesys Group Partners Programme for Brand Websites made available in more than one of the territories of UK, Spain and/or US, each of the relevant Sections 1 and/or 2 below will apply in addition to the above terms depending on the territory of the Brand Website that the Affiliate is addressing.

 

 

 

 

 

 

 

 

 

GAMESYS GROUP PARTNERS PROGRAMME AGREEMENT

SECTION 1

 

THESE TERMS AND CONDITIONS GOVERNING YOUR USE OF THE GAMESYS GROUP PARTNERS PROGRAMME IF YOU ADVERTISE GAMESYS’ UK BRAND WEBSITES (THIS “AGREEMENT”) WERE UPDATED ON 31 JULY 2021. 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 contactus@gamesysgrouppartners.com.

 

1. INTRODUCTION

1.1 This Agreement is between you (referred to as the “Affiliate”) and Gamesys Operations Limited, a company registered in Gibraltar with registration number 103854 with its principal place of business at 4/2 Waterport Place, Gibraltar (“Gamesys”).

 

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, and its acceptance shall be subject to due diligence checks performed by Gamesys to verify the Affiliate’s age, identity, location and contact details, and to confirm that the Affiliate is not a politically exposed person or listed or otherwise affected by any sanctions lists such as the Financial Action Task Force’s list of high-risk and other monitored jurisdictions. Gamesys shall be entitled to perform due diligence checks on the Affiliate at any time throughout the Term, including to re-verify the Affiliate’s details or to perform enhanced due diligence as required by Applicable Laws. The Affiliate shall cooperate with Gamesys’ due diligence requests promptly in order to be accepted into and remain in 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. SERVICES

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. COMMISSION

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, and the Affiliate must send Gamesys an invoice to the email address stipulated by Gamesys at the end of each month of the Term. 

5.6. Subject to the remainder of this clause 5, Gamesys will pay the Commission due to the Affiliate in respect of the previous calendar month to the Affiliate´s nominated bank account within 30 days of receipt of a valid and undisputed invoice to the correct email address. Payments shall be made via the contracting entity relevant to the Brand Website in respect of which payment is due in accordance with the details set out in clause 1 of this Agreement.

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 WebsitesThe 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, any code of conduct provided by Gamesys, 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 relevant regulator (including any relevant Gaming Authority) as applicable in the jurisdiction in which the Brand Websites are advertised, including the Advertising Standards Authority (“ASA”), the Information Commissioner´s Office, the UK Gambling Commission (“UKGC”) and the Dirección General de Ordenación del Juego.

6.3. Where the Affiliate publishes (or procures the publication of) 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:
6.3.1. the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code) at: https://www.asa.org.uk/codes-and-rulings/advertising-codes/non-broadcast-code.html including in particular (but without limitation) Section 16 concerned with gambling, and for these purposes, the term “advertising” shall have the meaning attributed to it by Section 327 of the British Gambling Act 2005. In complying with the foregoing, the Affiliate shall ensure that:

6.3.1.1. all advertisements are obviously identifiable as such, including by ensuring that all Promotional Content and other content in the Marketing Channels shall be clearly and prominently marked with ‘#ad’ or any other mark or wording as instructed or otherwise approved by Gamesys (and amended where requested in accordance with Gamesys’ instructions);

6.3.1.2. neither the Promotional Content nor any other content on the Marketing Channels shall promote irresponsible, compulsive or addictive forms or modes of gambling;

6.3.1.3. neither the Promotional Content nor any other content on the Marketing Channels shall feature any persons who are or who appear to be aged under 25;
6.3.2. all applicable guidance published by the Committee of Advertising Practice (CAP) and/or the ASA on the website accessible at https://www.asa.org.uk/ as updated from time to time in relation to the advertising and marketing of gambling;
6.3.3. the UKGC´s Licence Conditions and Codes of Practice (“LCCP”) including in particular (but without limitation) the requirements of: (i) Section 16 of Part 1 (Responsible placement of digital adverts) ensuring advertisements are not placed on websites which provide unauthorised access to copyrighted content; and (ii) Section 5 of Part 2 (Marketing) of the LCCP as updated from time to time;
6.3.4. the licensing conditions set out in Section 1 of the UK Gambling Act 2005, being the prevention of gambling from being a source of crime or disorder, being associated with crime or disorder or being used to support crime, ensuring that gambling is conducted in a fair and open way, and protecting children and other vulnerable persons from being harmed or exploited by gambling;

6.3.5. the Gambling Industry Code for Socially Responsible Advertising (“IGRG Code”) as updated from time to time, including by ensuring that:

6.3.5.1. all Promotional Content features ‘18+’ signage and responsible gambling messaging such as BeGambleAware.org, as applicable; [AR1] 

6.3.5.2. the Affiliate posts or otherwise displays responsible gambling related content in all relevant Marketing Channels on a regular basis, and in accordance with the format, frequency and length of time as instructed by Gamesys;  

6.3.5.3. any Player or end user that Gamesys deems to be ‘high-risk’ based on self-exclusion and/or cooling-off activity on the Brand Websites is excluded from paid-for social media advertisements immediately upon Gamesys’ request;

6.3.5.4. the Affiliate’s accounts on any social media platforms carry ‘18+’ signage provide consumer information on how to limit exposure to gambling advertising across social media platforms that is easily accessible and sufficiently prominent;

6.3.5.5. all sponsored and paid-for social media advertisements are targeted at consumers aged 25+;

6.3.5.6. all content on YouTube is restricted to users aged over 18 and only accessible once users log into their YouTube accounts and verify their age;

6.3.5.7. all search advertisements clearly contain 18+ messaging in the advertisement’s copy along with responsible gambling messaging within the core ad format;

6.3.5.8. incorporating any keyword blacklist provided by Gamesys or any industry keyword blacklist made available by the Betting and Gaming Council into all relevant search advertisement campaigns, and updating these with any revised blacklist promptly;

6.3.6. all consumer protection laws; and
6.3.7. all Applicable Laws and regulations related to gambling, in each case as updated, amended, replaced or superseded from time to time.

For the avoidance of doubt, Gamesys shall have the right to terminate this Agreement on written notice and without any liability to the Affiliate if, in Gamesys´ reasonable opinion, the Affiliate is in breach of the obligations set out in this clause 6.3.

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:

i) where such filters exist (e.g. age filters, interest filters that indicate a particular age bracket, account-logins with age verification or self-declaration), exclude under-18s to the extent possible from receiving or viewing such advertising;

and

ii) where filters do not exist, establish a minimum audience share of such advertising of 75% over-18s for general content, along with complete exclusion of children’s/young people’s media (e.g. children’s pages of a generally over-18s website);

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):
6.4.1. provide the relevant marketing messages, Links, Brand Marks and/or Promotional Content to Gamesys at least two (2) weeks prior to the target send date in the format requested by Gamesys to enable Gamesys to approve the same;
6.4.2. only send such marketing to its marketing list once Gamesys has provided prior written approval of the same on the day before the target send date;
6.4.3. include Gamesys on its marketing list and send all such marketing to Gamesys each time it uses such marketing;
6.4.4. only send such messages to recipients who have willingly and explicitly consented to receive marketing from the Affiliate in relation to the Brand Websites, in accordance with applicable Data Protection Legislation, such consent having been reaffirmed by the recipient at least within the last year;
6.4.5. clearly display a message in each such communication to state who is sending such marketing communications (and confirm they are not being sent by the applicable Brand Websites);
6.4.6. clearly display an unsubscribe feature in each such communication clearly detailing methods of unsubscribing from the mailing list;
6.4.7. not send any promotional offers relating to the Gamesys Group Partners Website or the Brand Website to recipients under the age of 18;
6.4.8. comply with Data Protection Legislation; and
6.4.9. at least once every six months, and in any event on Gamesys request, provide written evidence to Gamesys of its compliance with this clause 6.4.

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):
6.5.1. provide the relevant email wording, Links, Brand Marks and/or Promotional Content to Gamesys at least two (2) weeks prior to the target send date in the format requested by Gamesys to enable Gamesys to approve the same;
6.5.2. only send emails to its marketing list once Gamesys has provided prior written approval of the same on the day before the target send date;
6.5.3. include Gamesys on its marketing list by copying contactus@gamesysgrouppartners.com to the relevant email, and send all email marketing to Gamesys each time it uses email marketing;
6.5.4. only email recipients who have willingly and explicitly consented (and have not subsequently withdrawn their consent) to receive marketing from the Affiliate in relation to the Brand Websites, in accordance with applicable Data Protection Legislation, such consent having been reaffirmed by the recipient at least within the last year;
6.5.5. clearly include the header of the applicable Brand Website in every email (incorporating the relevant Brand Marks);
6.5.6. clearly display a message in the header of each such email to state who is sending such marketing communications (and confirm they are not being sent by the applicable Brand Website);
6.5.7. clearly display an unsubscribe feature in each such email clearly detailing methods of unsubscribing from the mailing list;
6.5.8. perform suppression of all email recipient lists against the suppression software tools of Gamesys´ Suppression Provider (as defined below), and in accordance with any Gamesys´ instructions, before each send of email marketing, to remove applicable email addresses from its list (and only send emails to such suppressed list);
6.5.9. accept and comply with the terms and conditions of Gamesys´ third party suppression software provider as is stipulated by Gamesys from time to time (the “Suppression Provider”), including by:
6.5.9.1. not reverse engineering (whether manually or digitally) supressed lists of emails and other contact details;
6.5.9.2. fully cooperating with the Suppression Provider in connection with carrying out suppression activities for the purposes of this Agreement;
6.5.9.3. not making compilations, deductions or inferences from such suppressed lists or any other information provided by the Suppression Provider;
6.5.9.4. not using any information provided by the Suppression Provider or any suppressed lists for any purpose other than the fulfilment of Gamesys´ suppression requirements; and
6.5.9.5. not running any more queries using the Suppression Provider than are necessary to fulfil Gamesys´ requirements.
6.5.10. comply with Data Protection Legislation; and
6.5.11. at least once every six months, and in any event on Gamesys request, provide written evidence to Gamesys of its compliance with this clause 6.5.

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 comply with all Data Protection Legislation, including by but not limited to:

6.8.1. ensuring adequate privacy and cookie notices are presented to end users of Affiliate Websites in accordance with Data Protection Legislation;

6.8.2. ensuring the necessary steps are taken before cookies and other tracking pixels are deployed as required by Data Protection Legislation.

6.9. 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.

6.10. Without prejudice to clause 6.8, the Affiliate shall meet and maintain all Player registration requirements relating to the Brand Website.

6.11. 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.

6.12. 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.

6.13. 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 responsible for:
7.1.1. keeping its bank account details up to date for the purpose of receiving any amounts payable to the Affiliate in accordance with this Agreement;
7.1.2. keeping its contact details including postal address, telephone number and email address up to date for the purpose of receiving any notification set out in this Agreement;
7.1.3. maintaining the confidentiality of its email, password and all usage and activity on its account, including use of such account by a third party authorised by the Affiliate to use its account; and

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 contactus@gamesysgrouppartners.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 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. WARRANTIES

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:
8.2.1. the Affiliate Website, any content thereon, and any domain name or sub-domain associated with the Affiliate Website:
8.2.1.1. is not aimed at, and is not of particular appeal to, people under the age of 18;
8.2.1.2. complies with all Applicable Laws (including all Data Protection Legislation) and does not contain any Prohibited Material or (other than as permitted by this Agreement) any Brand Mark or Prohibited Term;
8.2.1.3. does not infringe the rights (including the Intellectual Property Rights) of any third party; and
8.2.1.4. is solely owned and/or controlled by the Affiliate;
8.2.2. it will comply at all times with any and all applicable Brand Guidelines;
8.2.3. it has obtained and will maintain all necessary registrations, authorisations, consents and licences to enable it to fulfil its obligations under this Agreement;
8.2.4. 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;
8.2.5. it will perform its obligations under this Agreement in accordance with Good Industry Practice;
8.2.6. 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 the Brand Websites, Gamesys or Gamesys Group Companies;
8.2.7. it has complied prior to the date of this Agreement, and will comply, with all Applicable Laws, including Data Protection Legislation and its obligations set out in clauses 6, 15 and Schedule 2;
8.2.8. it has not violated any Applicable Laws, including laws relating to gaming in the U.S., prior to the date of this Agreement;
8.2.9. it will not intercept or complete any registration form submitted by Players or potential Players to Gamesys (and/or any other communications between any such persons and Gamesys);
8.2.10. it will not intercept, redirect or otherwise interfere with traffic from any other Gamesys affiliate Website; and
8.2.11. all information it submits to Gamesys on the application form and in all other communications between the parties is complete and accurate.

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. INDEMNITY

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:
9.1.1. a breach by the Affiliate of any of the warranties set out in clause 8 (Warranties);
9.1.2. a breach by the Affiliate of clauses 4.1 and 6 (Affiliate Obligations);
9.1.3. a breach by the Affiliate of clause 11 (Grant of Rights);
9.1.4. a breach by the Affiliate of clause 15 (Data Protection) or Schedule 2 (Data Processing Terms); or
9.1.5. a breach of any other provision of this Agreement by the Affiliate;
9.1.6. any review, suspension or loss of any of Gamesys´ licences, authorisations or permissions arising from the Affiliate’s breach of this Agreement.

 

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:
10.1.1. loss arising from or in connection with loss of revenues, profits, contracts or business or failure to realise anticipated savings; or
10.1.2. loss of goodwill or reputation; or
10.1.3. 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 that Gamesys or any Gamesys Group Companies had been advised of the possibility of the Affiliate incurring it.

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 Affiliate:
11.5.1. modify any of the Brand Marks or Brand Websites; and/or
11.5.2. discontinue, withdraw, terminate or cease using any of the Brand Marks or Brand Websites included in the Gamesys Group Partners Programme. In such event this Agreement shall automatically terminate in relation to the relevant Brand Mark(s) and/or Brand Website(s).

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:
11.7.1. market the Affiliate Website in any way that might compete with Gamesys and/or its licensors´ own marketing efforts, unless the Affiliate has received prior written approval from Gamesys in such regard. Without limiting the generality of the foregoing, the Affiliate shall not drive pay-per-click traffic to the Gamesys Group Partners 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;
11.7.2. 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 Gamesys and/or its licensors (as applicable).
11.7.3. do, cause or authorise, or omit to be done, anything which in Gamesys´ reasonable opinion will or may in any way impair, damage or be detrimental or adversely affect the reputation or goodwill associated with Gamesys (or its licensors) or any Gamesys Group Companies, or any Intellectual Property Rights vested in Gamesys (or its licensors) or any Gamesys Group Companies (or any of their respective licensors). The Affiliate shall not use any Intellectual Property Rights of Gamesys (or its licensors) or any of the Gamesys Group Companies (or any of their respective licensors) in any manner likely to cause harm to the distinctive character or validity of such Intellectual Property Rights.
11.7.4. use misleading Links or Promotional Content or cause any Links to open in an end user´s browser other than as a result of a Valid Click.
11.7.5. apply for, or obtain, registration of any of the Brand Marks or Prohibited Terms for any goods and services anywhere in the world;
11.7.6. 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 any of the Brand Marks or Prohibited Terms;
11.7.7. 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 any of the Brand Marks or Prohibited Terms;
11.7.8. 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 or the Games; or
11.7.9. place Links, Brand Marks or Promotional Content in newsgroups or unsolicited email.

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:
11.8.1. Gamesys may, in its sole discretion, withhold indefinitely and retain indefinitely any Commission payments that may be due to the Affiliate; and
11.8.2. the Affiliate shall not allow the trade mark, service mark, domain name and/or sub-domain registration or application to lapse.

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, sub-contractors or Sub-Processors 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:
12.2.1. 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;
12.2.2. 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;
12.2.3. 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;
12.2.4. 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;
12.2.5. is independently developed by the receiving party without reference to the Confidential Information of the disclosing party; or
12.2.6. the disclosing party informs the receiving party in writing is not Confidential Information.

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 Legislation; (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 Legislation, in particular but without limitation:
15.2.1. ensuring that there is a lawful basis on which to rely to Process such Personal Data; and
15.2.2. ensuring that it keeps Personal Data secure at all times, including by implementing and maintaining at its cost and expense, appropriate technical and organisational measures in relation to such Processing so as to ensure a level of security appropriate to the risks that are presented by the Processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.

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. MISCELLANEOUS

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 31 July 2021 and supersedes any previous agreement.

 

SCHEDULE 1

PROHIBITED TERMS

 

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:

 

 

 

SCHEDULE 2

DATA PROCESSING TERMS

 

In these Data Processing Terms, “Gamesys” means, as applicable, the Gamesys Group Company relevant to the Agreement (in accordance with clauses 1.1, 1.2 and 1.3 of the Agreement) as a Controller in accordance with Data Protection Legislation for the purposes of the Services Agreement and this Agreement.

 

The following definitions and rules of interpretation apply in this Schedule 2: 

 

"Controller", ““Processor”, “Data Subject”, “Personal Data” and “processing” all have the meanings given to those terms in Data Protection Legislation (and related terms such as “process” shall have corresponding meanings);”  

 

"Data Protection Legislation" means all laws, regulations, legislative and regulatory requirements and codes of practice applicable to the protection and Processing of Personal Data and privacy including, without limitation the UK Data Protection Act 2018 and any regulations or instruments thereunder, the UK's Privacy and Electronic Communication (EC Directive) Regulations 2003, (and any superseding applicable laws 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") and any applicable implementing legislation, together with any guidance and code of practice issued by the United Kingdom's Information Commissioner, all as amended, replaced or superseded from time to time; 

 

“EEA” means the European Economic Area; 

 

 ”Gamesys Company” means, as applicable, Gamesys and any relevant entity controlling, controlled by or under common control with Gamesys that uses the services provided by Affiliate, each as a Controller in accordance with Data Protection Legislation for the purposes of the Services Agreement and this Agreement. For the purpose of this definition "control" means in respect of any corporate entity, the legal or beneficial ownership, directly or indirectly, of fifty per cent (50%) or more of the shares of such corporate entity ordinarily having voting rights or control directly or indirectly of the appointment of a majority of the board of management and "controlled" and "controlling" shall be interpreted accordingly; 

 

"Gamesys Personal Data" means Personal Data provided or made available to Affiliate or collected or created for a Gamesys Company in connection with this Agreement; 

 

"Model Clauses" means the standard contractual clauses annex to the Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries (and any successor clauses) and set out in Annex B;  

 

"Security Incident" means unauthorised acquisition, access, use or disclosure of Gamesys Personal Data; and 

"Sub-Processor" means any third party appointed by a Processor to process Personal Data subject to the Controller’s prior approval. 

 

“Supervisory Authority” means any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering Data Protection Legislation.  

 

 

1. PROCESSING

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 Legislation. The Affiliate shall:
1.3.1 have in place a data protection officer where required by applicable Data Protection Legislation.
1.3.2 comply with and Process all Gamesys Personal Data in accordance with applicable Data Protection Legislation; and
1.3.3 promptly notify Gamesys about any circumstance where it is unable to comply with the Data Protection Legislation or any actual or potential changes to the Data Protection Legislation, which affect the Affiliate’s ability to comply with its obligations under this Agreement. Where the Affiliate is subject to any changes or circumstances under this clause, Gamesys will have the right to suspend the Processing until such time as the Processing is adjusted in such a manner that the non-compliance is remedied. To the extent such adjustment is not possible, Gamesys shall have the right to terminate the relevant part of the Processing by the Affiliate.

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 Legislation 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 Legislation (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 Gamesys Personal Data sent in error.  Should the Affiliate receive a copy of Gamesys Personal Data in error (such error being notified by Gamesys to Affiliate in writing), the Affiliate shall immediately return such Gamesys Personal Data to the sender, and subsequently immediately and permanently delete it. The Affiliate shall certify to Gamesys in writing that it has complied with its obligations under this clause 1.8, and provide evidence of such compliance. 

1.9 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. DISCLOSURE

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:
2.2.1 the Affiliate will, to the extent allowed by law, including the terms of the third party request itself, at no additional charge: (i) attempt to redirect the law enforcement agency to request that data or information directly from Gamesys; (ii) promptly notify Gamesys of receipt of the request; and (iii) use commercially reasonable efforts to comply with Gamesys’ reasonable requests regarding its efforts to oppose the request. If compelled to disclose Gamesys Personal Data to law enforcement, then the Affiliate will promptly notify Gamesys and provide a copy of the demand, unless legally prohibited from doing so.
2.2.2 if the Affiliate receives a third party request which is subject to an order not to disclose such request to Gamesys, the Affiliate will challenge such order in a court of competent jurisdiction and seek court permission to allow Gamesys to intervene in the proceedings. The Affiliate shall conduct the challenge at its own expense.
as part of this effort, the Affiliate may provide Gamesys’ basic contact information to the requesting 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 Legislation).

 

3. SECURITY

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 Legislation 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 Legislation

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) hours):
4.1.1 notify Gamesys of the Security Incident by email to security@gamesys.co.uk;
4.1.2 investigate (including interviewing service personnel) the Security Incident and provide Gamesys with detailed information about the Security Incident including making available a suitably senior, appropriately qualified individual to discuss any concerns or questions Gamesys may have;
4.1.3 take reasonable steps to mitigate the effects and to minimise any damage resulting from the Security Incident and assist Gamesys in remediating or mitigating any potential damage from a Security Incident to the extent that such remediation or mitigation is within the Affiliate’s control as well as reasonable steps to prevent a recurrence of such Security Incident, including interviewing and the possible removal of service personnel from the performance of services for Gamesys; and
4.1.4 fully cooperate with Gamesys to develop and execute a response plan to address the Security Incident.  the Affiliate shall at request of Gamesys co-operate in adequately informing the regulatory or individuals involved as so directed by Gamesys.

4.1.5 A courtesy copy of any notice to Gamesys or a Gamesys Company sent pursuant to this Schedule 2 shall also be sent by email to dpo@gamesys.co.uk.

 

5. SUB-PROCESSORS

5.1 The Affiliate shall not permit Sub-Processors to Process Gamesys Personal Data without the prior written approval of Gamesys. Those Sub-Processors approved as at the commencement of this Agreement are as set out in Annex A. Any changes to the Sub-Processors 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-Processors approved by Gamesys) must be pre-approved in writing by Gamesys.

5.2 Any authorisations by Gamesys to use a Sub-Processor is on the condition that the Affiliate remains fully liable to Gamesys for the Sub-Processor’s performance of the contract, as well as for any acts or omissions of the Sub-Processor in regard of its Processing of Personal Data.

5.3 The Affiliate shall ensure that Sub-Processors 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 EEA to countries outside the EEA or from the UK to countries outside the EEA

6.2.1 The Affiliate (or any Sub-Processor) shall only transfer Gamesys Personal Data from the EEA to a country outside the EEA (or from the UK to a country outside the EEA) where Gamesys has provided its written approval to such transfer. Approved transfers as at the commencement of this Agreement are set out in Appendix 1.  Where the Affiliate located in a territory outside of the EEA and UK which is not subject to a current finding by the European Commission (or UK Information Commissioner’s Office as relevant) under applicable Data Protection Legislation that it provides adequate protection for Personal Data and the Controller is located within the EEA or UK, the parties agree that the Model Clauses as set out in Annex B shall apply and be incorporated into this Agreement.

 

 

6.2.2 Transfers pursuant to clause 6.2.1 shall only be permissible where:  

6.2.2.1 the entity receiving the Gamesys Personal Data is located in a territory which is subject to a current finding by the European Commission (or UK Information Commissioner’s Office as relevant) under applicable Data Protection Legislation that it provides adequate protection for Personal Data;  

6.2.2.2 the transfer is governed by the Model Clauses or is subject to an alternative mechanism approved by relevant authorities pursuant to Data Protection Legislation (e.g. Binding Corporate Rules) to the extent that the Model Clauses or other mechanism continue to be recognised and accepted by the relevant authorities. Where Affiliate or Sub-Processor is the exporting entity in the EU, it shall enter into the Model Clauses with the entity receiving the Gamesys Personal Data on behalf of Gamesys (and shall provide copies of such EU Model Clauses upon Gamesys’ written request). Where Gamesys or a Gamesys Company (as opposed to Affiliate or Sub-Processor) is the exporting entity, Affiliate shall procure that the entity receiving the Gamesys Personal Data pursuant to this clause, enters into Model Clauses with the Gamesys Company prior to any such transfer taking place (and shall provide copies of such EU Model Clauses upon Gamesys’ written request); or  

6.2.2.3 the necessary statutory approvals required to be obtained by Affiliate (or Sub-Processor) as a data processor (or Sub-Processor), if any, have all been obtained to enable the transfer of Personal Data. 

6.2.2.4 the Parties agree that in the event of any inconsistency between the terms of the DPA and the terms of the applicable EU Model Clauses, then the terms of the applicable EU Model Clauses, should prevail between the Parties. 

 

6.3 Other transfers out of originating country  

6.3.1 To the extent that any Processing of Gamesys Personal Data by Affiliate (or Sub-Processor) pursuant to this Agreement may involve the transfer of such Gamesys Personal Data out of the country in which it is held and such transfer is not covered by clause 6.2, Affiliate (or any Sub-Processor) shall only transfer that Gamesys Personal Data where Gamesys has provided its prior written consent to such transfer. 

6.3.2 Transfers pursuant to clause 6.3.1 shall only be permissible where any measures required under Data Protection Legislation are in place and remain valid.

 

Data Protection LegislationData Protection LegislationData Protection Legislation7. AUDIT

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-Processors’) 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-Processors) possession. The parties shall agree on the additional safeguards to be implemented, if any.

 

8. WARRANTIES

8.1 The Affiliate warrants, represents and undertakes (as applicable) that:
8.1.1 the Processing of Gamesys Personal Data described in or contemplated by this Agreement shall not cause Gamesys or require any person to be in breach of the Data Protection Legislation;
8.1.2 the Processing of Gamesys Personal Data by the Affiliate in accordance with the written instructions from time to time of Gamesys shall not cause Gamesys or require any person to be in breach of the Data Protection Legislation;
8.1.3 any Gamesys Personal Data it holds shall be made available to Gamesys immediately upon request from Gamesys without hindrance or delay;
8.1.4 it shall allow Gamesys unrestricted access to the Gamesys Personal Data for any lawful purpose requested by Gamesys.

 

9. GENERAL

9.1 The parties agree to take account of any change in Data Protection Legislation or any guidance issued by the UK's Information Commissioner’s Office or other relevant supervisory authority. Gamesys may on not less than 30 days’ notice to Affiliate amend this Schedule 2 to ensure that it complies with any such change in law or guidance.

 

 

 

ANNEX A

 

 

ANNEX B

Standard Contractual Clauses

 

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection 

 

Each of the Gamesys Group Company’s expressly identified in clause 1 of the Agreement as relevant are hereafter referred to as the “Data Exporter” with respect to the personal data provided by the respective Data Exporter. 

 

The Data Exporter and the Data Importer, each a “party” and collectively “the parties” HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1. 

 

1.                Definitions 

For the purposes of the Clauses: 

 

a.              personal data, special categories of data, process/processing, controller, processor, data subject and supervisory authority shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (1); 

 

b.              the data exporter means the controller who transfers the personal data;

 

c.               the data importer means the processor who agrees to receive from the data exporter personal data intended for processing on its behalf after the transfer in accordance with its instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC; 

 

d.              the sub-processor means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with its instructions, the terms of the Clauses and the terms of the written subcontract; 

 

e.              the applicable data protection law means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established; 

 

f.                technical and organisational security measures means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

 

2.                Details of the transfer 

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses. 

 

3.                Third-party beneficiary clause 

 

1.      The data subject can enforce against the data exporter this clause 3, clause 4(b) to clause 4(i), clause 5(a) to clause 5(e) and clause 5(g) to clause 5(j), clause 6.1 and clause 6.2, clause 7, clause 8.2 and clause 9 to clause 12 as third-party beneficiary. 

 

2.      The data subject can enforce against the data importer this clause, clause 5(a) to clause 5(e) and clause 5(g), clause 6, clause 7, clause 8.2 and clause 9 to clause 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. 

 

3.      The data subject can enforce against the sub-processor this clause 3.1, clause 5(a) to clause 5(e) and clause 5(g), clause 6, clause 7, clause 8.2, and clause 9 to clause 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses. 

 

4.      The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law. 

 

4.      Obligations of the data exporter 

 

The data exporter agrees and warrants: 

 

a.              that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State; 

 

b.              that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses; 

 

c.               that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract; 

 

d.              that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation; 

 

e.              that it will ensure compliance with the security measures;

 

f.                that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;  

 

g.              to forward any notification received from the data importer or any sub-processor pursuant to clause 5(b) and clause 8.3 to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension; 

 

h.              to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2 and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

 

i.                that, in the event of sub-processing, the processing activity is carried out in accordance with clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subjects as the data importer under the Clauses; and  

 

j.                that it will ensure compliance with clause 4(a) to clause 4(i).  

 

5.                Obligations of the data importer 

 

The data importer agrees and warrants: 

 

a.              to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract; 

 

b.              that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract; 

 

c.               that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;  

 

d.              that it will promptly notify the data exporter about: 

 

                                                           i.any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation; 

                                                         ii.any accidental or unauthorised access; and 

                                                        iii.any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so; 

 

e.              to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred; 

 

f.                at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority; 

 

g.              to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter; 

 

h.              that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent; 

 

i.                that the processing services by the sub-processor will be carried out in accordance with clause 11; and 

 

j.                to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter. 

 

6.                Liability 

 

1.                The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in clause 3 or in clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered. 

 

2.                If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or its sub-processor of any of their obligations referred to in clause 3 or in clause 11 because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, in which case the data subject can enforce its rights against such entity.  

 

The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities. 

 

3.                If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in clause 3 or in clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses. 

 

7.                Mediation and jurisdiction  

 

1.                The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject: 

a.              to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority; 

b.              to refer the dispute to the courts in the Member State in which the data exporter is established. 

 

2.                The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law. 

 

8.                Cooperation with supervisory authorities 

 

1.                The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law. 

 

2.                The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law. 

 

3.                The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in clause 5(b). 

 

9.                Governing law 

 

The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely the United Kingdom.  

 

10.             Variation of the contract 

 

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clauses.  

 

11.             Sub-processing 

 

1.      The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor's obligations under such agreement. 

 

2.                The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses. 

 

3.                The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the laws of the Member State in which the data exporter is established, namely the laws of England and Wales. 

 

4.                The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority. 

 

12.             Obligation after the termination of personal data processing services 

 

1.                The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore. 

 

2.                The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1. 

 

 

APPENDIX 1

 

This Appendix 1 forms part of the Clauses and must be completed and signed by the parties. 

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix 1. 

 

Data exporter
The data exporter is (please specify briefly your activities relevant to the transfer):
Gamesys: online gambling operator.   Data importer
The data importer is (please specify briefly your activities relevant to the transfer):
Affiliate: marketing services.    Data subjects
The personal data transferred concern the following categories of data subjects (please specify):    See “Player”.
Categories of data
The personal data transferred concern the following categories of data (please specify):
See “Gamesys Personal Data”.    Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):    N/A.
Processing operations
The personal data transferred will be subject to the following basic processing activities (please specify):   See Schedule 2.

 

APPENDIX 2

 

This Appendix 2 forms part of the Clauses and must be completed and signed by the parties. 

Description of the technical and organisational security measures implemented by the data importer in accordance with clause 4(d) and clause 5(c) (or documents/legislation attached): 

 

The Data Importer will implement reasonable administrative, physical, managerial and technical controls safeguards for protection of the security, confidentiality and integrity of Personal Data with respect to the Services in accordance with applicable legal requirements, and as set forth in Data Importer’s Section 3 of this DPA, and as otherwise agreed by the parties in writing. Data Importer will not materially decrease the overall security of the Services during the term of the Agreement(s).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

GAMESYS GROUP PARTNERS PROGRAMME AGREEMENT

SECTION 2

 

THESE TERMS AND CONDITIONS GOVERNING YOUR USE OF THE GAMESYS GROUP PARTNERS PROGRAMME IF YOU ADVERTISE GAMESYS’ SPANISH BRAND WEBSITES (THIS “AGREEMENT”) WERE UPDATED ON 31 JULY 2021. 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 contactus@gamesysgrouppartners.com.

 

1.      INTRODUCTION

 

This Agreement is a binding contract between you (referred to as the “Affiliate”) and Gamesys Spain, S.A. , a company registered in Ceuta with company tax ID number A01739143 and its registered address at C/Maria Salud Tejero 4, Ent F, Ceuta, 51001, Ceuta, for the Brand Websites www.botemania.es and/or www.canalbingo.es, or  If the Affiliate is accepted to the Gamesys Group Partners Programme for the Brand Website www.monopolycasino.es, this Agreement is between the Affiliate and Games Spain Operations, S.A., a company registered in Ceuta with company tax ID number A01739457 and its registered address at C/Maria Salud Tejero 4, Ent F, Ceuta, 51001, Ceuta (both referred to as “Gamesys”).

 

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 the Applicable Law. ;

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 article 42 of the Commercial Code (Código de Comercio) (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, legally capable to be accepted into the Gamesys Group Partners Programme, and its acceptance shall be subject to due diligence checks performed by Gamesys to verify the Affiliate’s age, identity, location and contact details, and to confirm that the Affiliate is not a politically exposed person or listed or otherwise affected by any sanctions lists such as the Financial Action Task Force’s list of high-risk and other monitored jurisdictions. Gamesys shall be entitled to perform due diligence checks on the Affiliate at any time throughout the Term, including to re-verify the Affiliate’s details or to perform enhanced due diligence as required by Applicable Laws. The Affiliate shall cooperate with Gamesys’ due diligence requests promptly in order to be accepted into and remain in 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.      SERVICES

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.      COMMISSION

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, and the Affiliate must send Gamesys an invoice to the email address stipulated by Gamesys at the end of each month of the Term. 

5.6. Subject to the remainder of this clause 5, Gamesys will pay the Commission due to the Affiliate in respect of the previous calendar month to the Affiliate´s nominated bank account within 30 days of receipt of a valid and undisputed invoice to the correct email address. Payments shall be made via the contracting entity relevant to the Brand Website in respect of which payment is due in accordance with the details set out in clause 1 of this Agreement.

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. 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 by electronic bank transfer in respect of all Brand Websites

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, any code of conduct provided by Gamesys, 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 relevant regulator (including any relevant Gaming Authority). In particular, comply with all advertising regulations applicable in Spain in force time to time, especially the Royal Decree 958/2020, of 3 November, on commercial communications for gambling activities, and the Code of Conduct on Commercial Communications for gambling activities signed by Autocontrol.

6.3. Where the Affiliate publishes (or procures the publication of) any advertising for the Brand Websites which is either: (i) intended to come to the attention of persons in Spain; or (ii) likely to come to the attention of such persons, the Affiliate will ensure that such advertising complies with:
6.3.1. the Royal Decree 958/2020, of 3 November, on commercial communications for gambling activities In complying with the foregoing, the Affiliate shall ensure that:

6.3.1.1. neither the Promotional Content nor any other content on the Marketing Channels shall actively target minors under the age of 18. To this effect, the Affiliate warranties that any marketing channel, media or app used to promote the services will have all the mechanisms to avoid under aged to access the content as expressly established on the Ad Decree, in particular in article 11 of the Ad Decree.;

6.3.1.2. all Promotional Content, whatever the Marketing Channel used, shall include disclaimers that minors are forbidden to participate on gambling activities, including messages like «menores no», «+18» in the way described on article 11 of the Ad Decree;

6.3.1.3. neither the Promotional Content nor any other content on the Marketing Channels shall promote irresponsible, compulsive or addictive forms or modes of gambling, suggest gambling as a solution or alternative to personal, educational, professional or financial problems, mislead users about the possibility of being rewarded or suggest that the repetition of the game increases the probability of winning a prize, specially target self-prohibited or self-excluded persons, among other commercial communications that are forbidden according to article 10 of the Ad Decree;

6.3.1.4. all Promotional Content, whatever the Marketing Channel used, shall include references to responsible gambling, including messages like «si juegas, juega con responsabilidad», «jugar sin control puede tener consecuencias perjudiciales a nivel psicosocial» in the way described on article 10 of the Ad Decree.

6.3.1.5. neither the Promotional Content nor any other content on the Marketing Channels shall feature any persons who are or who appear to be aged under 25;

6.3.1.6. not to offer the services in restricted territories;

6.3.1.7. shall not offer the services on websites that contain defamatory, discriminatory, obscene, unlawful, pornographic or other socially unacceptable content;

6.3.1.8. neither the Promotional Content nor any other content on the Marketing Channels shall mislead users in any way and according to the Ad Decree, ensure that it is clear that the commercial communications are promoted by the Affiliate and not by Gamesys, including in all commercial communications the Affiliate’s identity;

6.3.1.9. neither on the Promotional Content nor on any other content on the Marketing Channels shall appear public characters, whether real or fictitious, with some exceptions established in article 15 of the Ad Decree;

6.3.1.10. any Promotional Content or any other content on the Marketing Channels shall provide the information referred to in article 30 and 31 of the Ad Decree.

6.3.1.11. depending on the Marketing Channel used for commercial communications, the Affiliate shall comply with the contents of Chapter III of Title I of the Ad Decree. In this sense, among others, it shall:

6.3.1.11.1. in audiovisual communication services the Affiliate shall only broadcast Promotional Content between 01:00h and 05:00h;

6.3.1.11.2. through digital services, the Affiliate shall use websites or apps that have provided that have mechanisms to prevent access to minors and to continuously broadcast messages about safe play;

6.3.1.11.3. though video exchange platforms (i.e. YouTube), the Affiliate shall ensure that these have mechanisms to prevent that the Promotional Content is addressed to minors, mechanisms for hiding or blocking pop-up ads from their users and mechanisms for controlling time slots;

6.3.1.11.4. through social networks, the Affiliate shall ensure that these have mechanisms to prevent that the Promotional Content is addressed to minors, mechanisms for hiding or blocking pop-up ads from their users and mechanisms to segment the target audience and be addressed only I persons who follow the Afiiliate’s channel, or have been registered on Gamesys.
6.3.2. comply with all Affiliate’s obligations under this Agreement and any guidelines or instructions provided by Gamesys from time to time;

6.3.3. comply with the Licence Conditions and Codes of Practice (“LCCP”);
6.3.4. comply with the Code of Conduct for gambling activities 6.3.5. incorporating any keyword blacklist provided by Gamesys or any industry keyword blacklist made available by the Betting and Gaming Council into all relevant search advertisement campaigns, and updating these with any revised blacklist promptly;

6.3.6. all consumer protection laws; and
6.3.7. all Applicable Laws and regulations related to gambling, in each case as updated, amended, replaced or superseded from time to time.

For the avoidance of doubt, Gamesys shall have the right to terminate this Agreement on written notice and without any liability to the Affiliate if, in Gamesys´ reasonable opinion, the Affiliate is in breach of the obligations set out in this clause 6.3.

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):
6.4.1. provide the relevant marketing messages, Links, Brand Marks and/or Promotional Content to Gamesys at least two (2) weeks prior to the target send date in the format requested by Gamesys to enable Gamesys to approve the same;
6.4.2. only send such marketing to its marketing list once Gamesys has provided prior written approval of the same on the day before the target send date;
6.4.3. include Gamesys on its marketing list and send all such marketing to Gamesys each time it uses such marketing;
6.4.4. only send such messages to recipients who have willingly and explicitly consented to receive marketing from the Affiliate in relation to the Brand Websites, in accordance with applicable Data Protection Legislation, such consent having been reaffirmed by the recipient at least within the last year;
6.4.5. clearly display a message in each such communication to state who is sending such marketing communications (and confirm they are not being sent by the applicable Brand Websites);
6.4.6. clearly display an unsubscribe feature in each such communication clearly detailing methods of unsubscribing from the mailing list;
6.4.7. not send any promotional offers relating to the Gamesys Group Partners Website or the Brand Website to recipients under the age of 18, to self-excluded persons, to persons who have developed a risky behaviour, to persons registered in the General Registry of Gambling Access Interdiction (Registro General de Interdicciones de Acceso al Juego);
6.4.8. comply with Data Protection Legislation; and
6.4.9. at least once every six months, and in any event on Gamesys request, provide written evidence to Gamesys of its compliance with this clause 6.4.

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):
6.5.1. provide the relevant email wording, Links, Brand Marks and/or Promotional Content to Gamesys at least two (2) weeks prior to the target send date in the format requested by Gamesys to enable Gamesys to approve the same;
6.5.2. only send emails to its marketing list once Gamesys has provided prior written approval of the same on the day before the target send date;
6.5.3. include Gamesys on its marketing list by copying contactus@gamesysgrouppartners.com to the relevant email, and send all email marketing to Gamesys each time it uses email marketing;
6.5.4. only email recipients who have willingly and explicitly consented (and have not subsequently withdrawn their consent) to receive marketing from the Affiliate in relation to the Brand Websites, in accordance with applicable Data Protection Legislation and article 24 of the Ad Decree, such consent having been reaffirmed by the recipient at least within the last year;
6.5.5. clearly include the header of the applicable Brand Website in every email (incorporating the relevant Brand Marks);
6.5.6. clearly display a message in the header of each such email to state who is sending such marketing communications (and confirm they are not being sent by the applicable Brand Website);
6.5.7. clearly display an unsubscribe feature in each such email clearly detailing methods of unsubscribing from the mailing list;

6.5.8. not send any promotional offers relating to the Gamesys Group Partners Website or the Brand Website to recipients under the age of 18, to self-excluded persons, to persons who have developed a risky behaviour, to persons registered in the General Registry of Gambling Access Interdiction (Registro General de Interdicciones de Acceso al Juego);
6.5.9. perform suppression of all email recipient lists against the suppression software tools of Gamesys´ Suppression Provider (as defined below), and in accordance with any Gamesys´ instructions, before each send of email marketing, to remove applicable email addresses from its list (and only send emails to such suppressed list);
6.5.10. accept and comply with the terms and conditions of Gamesys´ third party suppression software provider as is stipulated by Gamesys from time to time (the “Suppression Provider”), including by:
6.5.10.1. not reverse engineering (whether manually or digitally) supressed lists of emails and other contact details;
6.5.10.2. fully cooperating with the Suppression Provider in connection with carrying out suppression activities for the purposes of this Agreement;
6.5.10.3. not making compilations, deductions or inferences from such suppressed lists or any other information provided by the Suppression Provider;
6.5.10.4. not using any information provided by the Suppression Provider or any suppressed lists for any purpose other than the fulfilment of Gamesys´ suppression requirements; and
6.5.10.5. not running any more queries using the Suppression Provider than are necessary to fulfil Gamesys´ requirements.
6.5.11. comply with Data Protection Legislation; and
6.5.12. at least once every six months, and in any event on Gamesys request, provide written evidence to Gamesys of its compliance with this clause 6.5.

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) and the provisions established on article 26 of the Ad Decree.

6.7. the Affiliate shall not send any form of spam communications, 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 comply with all Data Protection Legislation, including by but not limited to:

6.8.1. ensuring adequate privacy and cookie notices are presented to end users of Affiliate Websites in accordance with Data Protection Legislation;

6.8.2. ensuring the necessary steps are taken before cookies and other tracking pixels are deployed as required by Data Protection Legislation.

6.9. 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.

6.10. the Affiliate shall meet and maintain all Player registration requirements relating to the Brand Website.

6.11. This Agreement is for commercial use only, and neither the Affiliate nor its employees, or their family members, friends or associates may register as a costumer and 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.

6.12. 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.

6.13. 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.

6.14. The Affiliate shall comply with its obligations under this Agreement.

 

7.      AFFILIATE ACCOUNTS

7.1.  The Affiliate shall be responsible for:

7.1.1. keeping its bank account details up to date for the purpose of receiving any amounts payable to the Affiliate in accordance with this Agreement;
7.1.2. keeping its contact details including postal address, telephone number and email address up to date for the purpose of receiving any notification set out in this Agreement;
7.1.3. maintaining the confidentiality of its email, password and all usage and activity on its account, including use of such account by a third party authorised by the Affiliate to use its account; and

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 contactus@gamesysgrouppartners.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 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.

 

8.      WARRANTIES

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:
8.2.1. the Affiliate Website, any content thereon, and any domain name or sub-domain associated with the Affiliate Website:
8.2.1.1. is not aimed at, and is not of particular appeal to, people under the age of 18;
8.2.1.2. complies with all Applicable Laws, especially the Ad Decree (including all Data Protection Legislation) and does not contain any Prohibited Material or (other than as permitted by this Agreement) any Brand Mark or Prohibited Term;
8.2.1.3. does not infringe the rights (including the Intellectual Property Rights) of any third party; and
8.2.1.4. is solely owned and/or controlled by the Affiliate;
8.2.2. it will comply at all times with any and all applicable Brand Guidelines;
8.2.3. it has obtained and will maintain all necessary registrations, authorisations, consents and licences to enable it to fulfil its obligations under this Agreement;
8.2.4. 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;
8.2.5. it will perform its obligations under this Agreement in accordance with Good Industry Practice;
8.2.6. 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 the Brand Websites, Gamesys or Gamesys Group Companies;
8.2.7. it has complied prior to the date of this Agreement, and will comply, with all Applicable Laws, including Data Protection Legislation and its obligations set out in clauses 6, 15 and Schedule 2;
8.2.8. it has not violated any Applicable Laws, prior to the date of this Agreement;
8.2.9. it will not intercept or complete any registration form submitted by Players or potential Players to Gamesys (and/or any other communications between any such persons and Gamesys);
8.2.10. it will not intercept, redirect or otherwise interfere with traffic from any other Gamesys affiliate Website; and
8.2.11. all information it submits to Gamesys on the application form and in all other communications between the parties is complete and accurate.

8.2.12. it will not undertake any activity or promotional content whether on its website or otherwise, which is discriminatory, unlawful, obscene, defamatory, sexually explicit, pornographic or disrespectful, among other prohibitions established on the Ad Decree.

8.2.13. it will not use any material that infringe any intellectual property rights of Gamesys or other third parties.

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.      INDEMNITY

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:
9.1.1. a breach by the Affiliate, its employees, agents or subcontractors of any of the warranties set out in clause 8 (Warranties);
9.1.2. a breach by the Affiliate, its employees, agents or subcontractors of clauses 4.1 and 6 (Affiliate Obligations);
9.1.3. a breach by the Affiliate, its employees, agents or subcontractors of clause 11 (Grant of Rights);
9.1.4. a breach by the Affiliate, its employees, agents or subcontractors of clause 15 (Data Protection) or Schedule 2 (Data Processing Terms); or
9.1.5. a breach of any other provision of this Agreement by the Affiliate, its employees, agents or subcontractors;
9.1.6. any review, suspension or loss of any of Gamesys´ licences, authorisations or permissions arising from the Affiliate’s breach of this Agreement.

 

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:
10.1.1. loss arising from or in connection with loss of revenues, profits, contracts or business or failure to realise anticipated savings; or
10.1.2. loss of goodwill or reputation; or
10.1.3. 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 that Gamesys or any Gamesys Group Companies had been advised of the possibility of the Affiliate incurring it.

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. Both the Affiliate and Gamesys shall retain all Intellectual Property Rights in its own name, logos, slogans, trade marks and any other material that it currently uses or may use in the future.

11.2. 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 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 Royal Decree 1/1996, of April 12, in virtue of which the Intellectual Property Law is approved 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.

11.3. The Affiliate acknowledges and agrees that, other than in accordance with the licences granted to it pursuant to this clause 11:

11.3.1. 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

11.3.2. 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.

11.4. 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.

11.6. 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 Affiliate:
11.6.1. modify any of the Brand Marks or Brand Websites; and/or
11.6.2. discontinue, withdraw, terminate or cease using any of the Brand Marks or Brand Websites included in the Gamesys Group Partners Programme. In such event this Agreement shall automatically terminate in relation to the relevant Brand Mark(s) and/or Brand Website(s).

11.7. 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.

11.8. The Affiliate shall not:
11.8.1. market the Affiliate Website in any way that might compete with Gamesys and/or its licensors´ own marketing efforts, unless the Affiliate has received prior written approval from Gamesys in such regard. Without limiting the generality of the foregoing, the Affiliate shall not drive pay-per-click traffic to the Gamesys Group Partners 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;
11.8.2. 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 Gamesys and/or its licensors (as applicable).
11.8.3. do, cause or authorise, or omit to be done, anything which in Gamesys´ reasonable opinion will or may in any way impair, damage or be detrimental or adversely affect the reputation or goodwill associated with Gamesys (or its licensors) or any Gamesys Group Companies, or any Intellectual Property Rights vested in Gamesys (or its licensors) or any Gamesys Group Companies (or any of their respective licensors). The Affiliate shall not use any Intellectual Property Rights of Gamesys (or its licensors) or any of the Gamesys Group Companies (or any of their respective licensors) in any manner likely to cause harm to the distinctive character or validity of such Intellectual Property Rights.
11.8.4. use misleading Links or Promotional Content or cause any Links to open in an end user´s browser other than as a result of a Valid Click.
11.8.5. apply for, or obtain, registration of any of the Brand Marks or Prohibited Terms for any goods and services anywhere in the world;
11.8.6. 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 any of the Brand Marks or Prohibited Terms;
11.87.7. 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 any of the Brand Marks or Prohibited Terms;
11.87.8. 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 or the Games; or
11.8.9. place Links, Brand Marks or Promotional Content in newsgroups or unsolicited email.

11.98. 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 11.8. 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:
11.9.1. Gamesys may, in its sole discretion, withhold indefinitely and retain indefinitely any Commission payments that may be due to the Affiliate; and
11.9.2. the Affiliate shall not allow the trade mark, service mark, domain name and/or sub-domain registration or application to lapse.

11.10. 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, sub-contractors or Sub-Processors 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:
12.2.1. 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;
12.2.2. 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;
12.2.3. 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;
12.2.4. 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;
12.2.5. is independently developed by the receiving party without reference to the Confidential Information of the disclosing party; or
12.2.6. the disclosing party informs the receiving party in writing is not Confidential Information.

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 Legislation; (v) the Affiliate is in breach of any relevant advertising law, regulation or code of practice; (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; 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, 11.4, 11.8.3, 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;

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; 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  independent Controllers 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 Legislation, in particular but without limitation:

15.2.1. ensuring that there is a lawful basis on which to rely to Process such Personal Data; and
15.2.2. ensuring that it keeps Personal Data secure at all times, including by implementing and maintaining at its cost and expense, appropriate technical and organisational measures in relation to such Processing so as to ensure a level of security appropriate to the risks that are presented by the Processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.

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.   MISCELLANEOUS

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.Any third party, who is not a party to this Agreement shall not have any right under or in connection with this Agreement..

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, illegal or unenforceable, such invalidity, illegality 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, illegal 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 Spain.

17.2. Each party irrevocably submits to the exclusive jurisdiction of the city of [Madrid/Barcelona]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 31 July 2021 and supersedes any previous agreement.

 

 

SCHEDULE 1

PROHIBITED TERMS

 

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:

 

 

 

SCHEDULE 2

DATA PROCESSING TERMS

 

In these Data Processing Terms, “Gamesys” means, as applicable, the Gamesys Group Company relevant to the Agreement (in accordance with clauses 1of the Agreement) as a Controller in accordance with Data Protection Legislation for the purposes of the Services Agreement and this Agreement.

 

The following definitions and rules of interpretation apply in this Schedule 2: 

 

"Controller", ““Processor”, “Data Subject”, “Personal Data” and “processing” all have the meanings given to those terms in Data Protection Legislation (and related terms such as “process” shall have corresponding meanings);”  

 

"Data Protection Legislation" means all laws, regulations, legislative and regulatory requirements and codes of practice applicable to the protection and Processing of Personal Data and privacy including, without limitation the Spanish Ley Orgánica 3/2018, de 5 de diciembre, de Protección de Datos Personales y garantía de los derechos digitales and any regulations or instruments thereunder, Spanish Ley 34/2002, de 11 de julio, de servicios de la sociedad de la información y de comercio electrónico, (and any superseding applicable laws 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") and any applicable implementing legislation, together with any guidance and code of practice issued by Spain’s Agencia Española de Protección de Datos, all as amended, replaced or superseded from time to time

“EEA” means the European Economic Area; 

 

 ”Gamesys Company” means, as applicable, Gamesys and any relevant entity controlling, controlled by or under common control with Gamesys that uses the services provided by Affiliate, each as a Controller in accordance with Data Protection Legislation for the purposes of the Services Agreement and this Agreement. For the purpose of this definition "control" means in respect of any corporate entity, the legal or beneficial ownership, directly or indirectly, of fifty per cent (50%) or more of the shares of such corporate entity ordinarily having voting rights or control directly or indirectly of the appointment of a majority of the board of management and "controlled" and "controlling" shall be interpreted accordingly; 

 

"Gamesys Personal Data" means Personal Data provided or made available to Affiliate or collected or created for a Gamesys Company in connection with this Agreement; 

 

"Model Clauses" means the standard contractual clauses annex to the Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries (and any successor clauses) and set out in Annex B;  

 

"Security Incident" means unauthorised acquisition, access, use or disclosure of Gamesys Personal Data; and 

"Sub-Processor" means any third party appointed by a Processor to process Personal Data subject to the Controller’s prior approval. 

 

“Supervisory Authority” means any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering Data Protection Legislation.  

 

1. PROCESSING

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 of the Agreement. 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 Legislation. The Affiliate shall:
1.3.1 have in place a data protection officer where required by applicable Data Protection Legislation.
1.3.2 comply with and Process all Gamesys Personal Data in accordance with applicable Data Protection Legislation; and
1.3.3 promptly notify Gamesys about any circumstance where it is unable to comply with the Data Protection Legislation or any actual or potential changes to the Data Protection Legislation, which affect the Affiliate’s ability to comply with its obligations under this Agreement. Where the Affiliate is subject to any changes or circumstances under this clause, Gamesys will have the right to suspend the Processing until such time as the Processing is adjusted in such a manner that the non-compliance is remedied. To the extent such adjustment is not possible, Gamesys shall have the right to terminate the relevant part of the Processing by the Affiliate.

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 Legislation 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 Legislation (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 Gamesys Personal Data sent in error.  Should the Affiliate receive a copy of Gamesys Personal Data in error (such error being notified by Gamesys to Affiliate in writing), the Affiliate shall immediately return such Gamesys Personal Data to the sender, and subsequently immediately and permanently delete it. The Affiliate shall certify to Gamesys in writing that it has complied with its obligations under this clause 1.8, and provide evidence of such compliance. 

1.9 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. DISCLOSURE

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:
2.2.1 the Affiliate will, to the extent allowed by law, including the terms of the third party request itself, at no additional charge: (i) attempt to redirect the law enforcement agency to request that data or information directly from Gamesys; (ii) promptly notify Gamesys of receipt of the request; and (iii) use commercially reasonable efforts to comply with Gamesys’ reasonable requests regarding its efforts to oppose the request. If compelled to disclose Gamesys Personal Data to law enforcement, then the Affiliate will promptly notify Gamesys and provide a copy of the demand, unless legally prohibited from doing so.
2.2.2 if the Affiliate receives a third party request which is subject to an order not to disclose such request to Gamesys, the Affiliate will challenge such order in a court of competent jurisdiction and seek court permission to allow Gamesys to intervene in the proceedings. The Affiliate shall conduct the challenge at its own expense.
as part of this effort, the Affiliate may provide Gamesys’ basic contact information to the requesting 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 Legislation).

 

3. SECURITY

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 Legislation 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 Legislation

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) hours):
4.1.1 notify Gamesys of the Security Incident by email to security@gamesys.co.uk;
4.1.2 investigate (including interviewing service personnel) the Security Incident and provide Gamesys with detailed information about the Security Incident including making available a suitably senior, appropriately qualified individual to discuss any concerns or questions Gamesys may have;
4.1.3 take reasonable steps to mitigate the effects and to minimise any damage resulting from the Security Incident and assist Gamesys in remediating or mitigating any potential damage from a Security Incident to the extent that such remediation or mitigation is within the Affiliate’s control as well as reasonable steps to prevent a recurrence of such Security Incident, including interviewing and the possible removal of service personnel from the performance of services for Gamesys; and
4.1.4 fully cooperate with Gamesys to develop and execute a response plan to address the Security Incident.  the Affiliate shall at request of Gamesys co-operate in adequately informing the regulatory or individuals involved as so directed by Gamesys.

4.1.5 A courtesy copy of any notice to Gamesys or a Gamesys Company sent pursuant to this Schedule 2 shall also be sent by email to dpo@gamesys.co.uk.

 

5. SUB-PROCESSORS

5.1 The Affiliate shall not permit Sub-Processors to Process Gamesys Personal Data without the prior written approval of Gamesys. Those Sub-Processors approved as at the commencement of this Agreement are as set out in Annex A. Any changes to the Sub-Processors 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-Processors approved by Gamesys) must be pre-approved in writing by Gamesys.

5.2 Any authorisations by Gamesys to use a Sub-Processor is on the condition that the Affiliate remains fully liable to Gamesys for the Sub-Processor’s performance of the contract, as well as for any acts or omissions of the Sub-Processor in regard of its Processing of Personal Data.

5.3 The Affiliate shall ensure that Sub-Processors 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 EEA to countries outside the EEA or from the UK to countries outside the EEA

6.2.1 The Affiliate (or any Sub-Processor) shall only transfer Gamesys Personal Data from the EEA to a country outside the EEA (or from the UK to a country outside the EEA) where Gamesys has provided its written approval to such transfer. Approved transfers as at the commencement of this Agreement are set out in Appendix 1.  Where the Affiliate located in a territory outside of the EEA and UK which is not subject to a current finding by the European Commission (or UK Information Commissioner’s Office as relevant) under applicable Data Protection Legislation that it provides adequate protection for Personal Data and the Controller is located within the EEA or UK, the Model Clauses as set out in Annex B shall apply and are incorporated into this Agreement.

 

 

6.2.2 Transfers pursuant to clause 6.2.1 shall only be permissible where:  

6.2.2.1 the entity receiving the Gamesys Personal Data is located in a territory which is subject to a current finding by the European Commission (or UK Information Commissioner’s Office as relevant) under applicable Data Protection Legislation that it provides adequate protection for Personal Data;  

6.2.2.2 the transfer is governed by the Model Clauses or is subject to an alternative mechanism approved by relevant authorities pursuant to Data Protection Legislation (e.g. Binding Corporate Rules) to the extent that the Model Clauses or other mechanism continue to be recognised and accepted by the relevant authorities. Where Affiliate or Sub-Processor is the exporting entity in the EU, it shall enter into the Model Clauses with the entity receiving the Gamesys Personal Data on behalf of Gamesys (and shall provide copies of such EU Model Clauses upon Gamesys’ written request). Where Gamesys or a Gamesys Company (as opposed to Affiliate or Sub-Processor) is the exporting entity, Affiliate shall procure that the entity receiving the Gamesys Personal Data pursuant to this clause, enters into Model Clauses with the Gamesys Company prior to any such transfer taking place (and shall provide copies of such EU Model Clauses upon Gamesys’ written request); or  

6.2.2.3 the necessary statutory approvals required to be obtained by Affiliate (or Sub-Processor) as a data processor (or Sub-Processor), if any, have all been obtained to enable the transfer of Personal Data. 

6.2.2.4 the Parties agree that in the event of any inconsistency between the terms of the DPA and the terms of the applicable EU Model Clauses, then the terms of the applicable EU Model Clauses, should prevail between the Parties. 

 

6.3 Other transfers out of originating country  

6.3.1 To the extent that any Processing of Gamesys Personal Data by Affiliate (or Sub-Processor) pursuant to this Agreement may involve the transfer of such Gamesys Personal Data out of the country in which it is held and such transfer is not covered by clause 6.2, Affiliate (or any Sub-Processor) shall only transfer that Gamesys Personal Data where Gamesys has provided its prior written consent to such transfer. 

6.3.2 Transfers pursuant to clause 6.3.1 shall only be permissible where any measures required under Data Protection Legislation are in place and remain valid.

 

7. AUDIT

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-Processors’) 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-Processors) possession. The parties shall agree on the additional safeguards to be implemented, if any.

 

8. WARRANTIES

8.1 The Affiliate warrants, represents and undertakes (as applicable) that:
8.1.1 the Processing of Gamesys Personal Data described in or contemplated by this Agreement shall not cause Gamesys or require any person to be in breach of the Data Protection Legislation;
8.1.2 the Processing of Gamesys Personal Data by the Affiliate in accordance with the written instructions from time to time of Gamesys shall not cause Gamesys or require any person to be in breach of the Data Protection Legislation;
8.1.3 any Gamesys Personal Data it holds shall be made available to Gamesys immediately upon request from Gamesys without hindrance or delay;
8.1.4 it shall allow Gamesys unrestricted access to the Gamesys Personal Data for any lawful purpose requested by Gamesys.

 

9. GENERAL

9.1 The parties agree to take account of any change in Data Protection Legislation or relevant supervisory authority. Gamesys may on not less than 30 days’ notice to Affiliate amend this Schedule 2 to ensure that it complies with any such change in law or guidance.

 

 

 

ANNEX A

 

 

ANNEX B

Standard Contractual Clauses

 

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection 

 

Each of the Gamesys Group Company’s expressly identified in clause 1 of the Agreement as relevant are hereafter referred to as the “Data Exporter” with respect to the personal data provided by the respective Data Exporter. 

 

The Data Exporter and the Data Importer, each a “party” and collectively “the parties” HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1. 

 

1. Definitions 

For the purposes of the Clauses: 

 

a.      personal data, special categories of data, process/processing, controller, processor, data subject and supervisory authority shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (1); 

 

b.     the data exporter means the controller who transfers the personal data;

 

c.      the data importer means the processor who agrees to receive from the data exporter personal data intended for processing on its behalf after the transfer in accordance with its instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC; 

 

d.     the sub-processor means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with its instructions, the terms of the Clauses and the terms of the written subcontract; 

 

e.      the applicable data protection law means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established; 

 

f.       technical and organisational security measures means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

 

2.      Details of the transfer 

The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses. 

 

3.      Third-party beneficiary clause 

 

1.      The data subject can enforce against the data exporter this clause 3, clause 4(b) to clause 4(i), clause 5(a) to clause 5(e) and clause 5(g) to clause 5(j), clause 6.1 and clause 6.2, clause 7, clause 8.2 and clause 9 to clause 12 as third-party beneficiary. 

 

2.      The data subject can enforce against the data importer this clause, clause 5(a) to clause 5(e) and clause 5(g), clause 6, clause 7, clause 8.2 and clause 9 to clause 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. 

 

3.      The data subject can enforce against the sub-processor this clause 3.1, clause 5(a) to clause 5(e) and clause 5(g), clause 6, clause 7, clause 8.2, and clause 9 to clause 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses. 

 

4.      The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law. 

 

4.      Obligations of the data exporter 

 

The data exporter agrees and warrants: 

 

a.      that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State; 

 

b.     that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses; 

 

c.      that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract; 

 

d.     that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation; 

 

e.      that it will ensure compliance with the security measures;

 

f.       that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;  

 

g.     to forward any notification received from the data importer or any sub-processor pursuant to clause 5(b) and clause 8.3 to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension; 

 

h.     to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2 and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

 

i.       that, in the event of sub-processing, the processing activity is carried out in accordance with clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subjects as the data importer under the Clauses; and  

 

j.       that it will ensure compliance with clause 4(a) to clause 4(i).  

 

5.      Obligations of the data importer 

 

The data importer agrees and warrants: 

 

a.      to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract; 

 

b.     that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract; 

 

c.      that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;  

 

d.     that it will promptly notify the data exporter about: 

 

i.        any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation; 

                                             ii.          any accidental or unauthorised access; and 

                                            iii.          any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so; 

 

e.      to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred; 

 

f.       at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority; 

 

g.     to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter; 

 

h.     that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent; 

 

i.       that the processing services by the sub-processor will be carried out in accordance with clause 11; and 

 

j.       to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter. 

 

6.      Liability 

 

1.      The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in clause 3 or in clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered. 

 

2.      If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or its sub-processor of any of their obligations referred to in clause 3 or in clause 11 because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, in which case the data subject can enforce its rights against such entity.  

 

The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities. 

 

3.      If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in clause 3 or in clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses. 

 

7.      Mediation and jurisdiction  

 

1.      The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject: 

a)     to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority; 

b)     to refer the dispute to the courts in the Member State in which the data exporter is established. 

 

2.      The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law. 

 

8.      Cooperation with supervisory authorities 

 

1.      The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law. 

 

2.      The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law. 

 

3.      The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in clause 5(b). 

 

9.      Governing law 

 

The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely the United Kingdom.  

 

10.   Variation of the contract 

 

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clauses.  

 

11.   Sub-processing 

 

1.      The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor's obligations under such agreement. 

 

2.      The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses. 

 

3.      The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the laws of the Member State in which the data exporter is established, namely the laws of England and Wales. 

 

4.      The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority. 

 

12.   Obligation after the termination of personal data processing services 

 

a.      The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore. 

 

b.     The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1. 

 

 

APPENDIX 1

 

This Appendix 1 forms part of the Clauses and must be completed and signed by the parties. 

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix 1. 

 

Data exporter
The data exporter is (please specify briefly your activities relevant to the transfer):
Gamesys: online gambling operator.   Data importer
The data importer is (please specify briefly your activities relevant to the transfer):
Affiliate: marketing services.    Data subjects
The personal data transferred concern the following categories of data subjects (please specify):    See “Player”.
Categories of data
The personal data transferred concern the following categories of data (please specify):
See “Gamesys Personal Data”.    Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):    N/A.
Processing operations
The personal data transferred will be subject to the following basic processing activities (please specify):   See Schedule 2.

 

APPENDIX 2

 

This Appendix 2 forms part of the Clauses and must be completed and signed by the parties. 

Description of the technical and organisational security measures implemented by the data importer in accordance with clause 4(d) and clause 5(c) (or documents/legislation attached): 

 

The Data Importer will implement reasonable administrative, physical, managerial and technical controls safeguards for protection of the security, confidentiality and integrity of Personal Data with respect to the Services in accordance with applicable legal requirements, and as set forth in Data Importer’s Section 3 of this DPA, and as otherwise agreed by the parties in writing. Data Importer will not materially decrease the overall security of the Services during the term of the Agreement(s).