TERMS AND CONDITIONS – 13th February 2017
NETPLAY TV AFFILIATE AGREEMENT BETWEEN
(1) NetPlay TV Group Limited, a company incorporated in Alderney (company number 1691), whose registered address is Century House, 12 Victoria Street, Alderney, Channel Islands, GY9 3UF, and
(A) NetPlay TV Group Limited, hereafter referred to as NetPlay TV, is a licensed provider of online gambling services;
(B) The Affiliate is a provider of Internet marketing and promotional services, commonly known as ‘Affiliate Marketing’;
(C) NetPlay TV wishes to engage the services of the Affiliate for the purpose of promoting its brands.
IT IS ACCORDINGLY AGREED AS FOLLOWS:
1.1. 'Affiliate Account’ means the unique administrative account accepted and registered by NetPlay TV on the NetPlay TV Affiliate System;
1.2. 'Affiliate Agreement’ means the legally binding Agreement between the Affiliate and NetPlay TV that is concluded upon processing and acceptance by NetPlay TV of an application to become an Affiliate;
1.3. ‘Associated Company’ means any entity within the group of companies owned by NetPlay TV plc, its successors or assigns;
1.4. ‘Commission Scheme’ means the NetPlay TV remuneration scheme among those offered by NetPlay TV according to which the Affiliate has agreed to have Referral Commission calculated, full details of which are posted on the NetPlay TV Affiliate website.;
1.5. ‘Creatives’ includes, but is not limited to, textual and / or graphical devices to be used for the promotion of NetPlay TV brands;
1.6. ‘Intellectual Property’ means all intellectual property rights, including patents, supplementary protection certificates, petty patents, utility models, trademarks, database rights, rights in designs, copyrights (including rights in computer software) and topography rights (whether or not any of these rights are registered, and including applications and the right to apply for registration of any such rights) and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world, in each case for their full term, and together with any renewals or extensions or revivals of the same;
1.7. ‘Net Gaming Revenue’ on casino activity over a given period means the aggregate value of Referred Players’ opening balances for the period and funds transferred in, less:
1.7.4. funds transferred out;
1.7.5. closing balances;
1.7.6. credits made to Referred Players;
1.7.7. licensing fees;
1.7.9. bad debts;
1.7.11 UK Remote Gaming Duty of 15% (UK customers only), apply from 1st December 2014.
1.8. ‘NetPlay TV Affiliate System’ means the web-based resource through which Affiliates can access Creatives and statistical information;
1.9. ‘Referral Commission’ means the commission paid or payable to the Affiliate under this Agreement and calculated in accordance with the applicable Commission Scheme;
1.10. ‘Referred Players’ means users who have registered on a NetPlay TV website after following a Tracking Link, have deposited funds and who have wagered;
1.11. ‘Referred Player Tracking System’ means the software used by NetPlay TV to track player deposit, withdrawal and gameplay activity;
1.12. ‘Tracking Links’ means hypertext tracking links provided by NetPlay TV that have been provided by NetPlay TV to the Affiliate and used by the Affiliate in order to promote NetPlay TV brands.
1.13. ‘Verified Referred Player’ means a Referred Player who has passed all verification checks as detailed within the Terms and Conditions for all NetPlay TV sites (Section 4 & 5), i.e.: a Player who has passed all age and ID verification procedures necessary.
2. PURPOSE AND NATURE OF THE AGREEMENT
2.1. Site promotion
2.1.1. Under this Agreement, NetPlay TV will provide Creatives to the Affiliate to be used for the promotion and marketing of NetPlay TV brands.
2.2.1. In consideration of this promotion and marketing, NetPlay TV will pay a Referral Commission based on either Verified Referred Players’ Net Gaming Revenue generated from players referred by the Affiliate or the number of Verified Referred Players who have followed a NetPlay TV Tracking Link provided to the Affiliate under this Agreement.
2.3. No Partnership
2.3.1. This Agreement does not create any legal partnership, relationship of agency, or any other legal joint venture between NetPlay TV and the Affiliate, and the Affiliate is responsible for its own site, may not make any representations on behalf of NetPlay TV, nor enter in to any obligations on NetPlay TV’s behalf.
2.4. Non Exclusivity
2.4.1. Nothing in this Agreement shall preclude the conclusion of similar Affiliate Agreements by either Party, nor the solicitation by NetPlay TV of customer referrals on terms that differ from those in this Agreement.
2.5.1. There is no Agreement between NetPlay TV and the Affiliate unless and until NetPlay TV’s accepts an application to become an affiliate, NetPlay TV retaining the absolute discretion to refuse or accept any application.
2.6. Effective date
2.6.1. NetPlay TV shall contact the Affiliate by email to communicate acceptance in the event that the application is accepted, from which point this Agreement is effective.
3. NETPLAY TV’S RIGHTS AND OBLIGATIONS
3.1.1. NetPlay TV shall monitor and record the registration and activity levels of Verified Referred Players using its Verified Referred Player Tracking System. NetPlay TV shall make available a report of this activity to the Affiliate through the NetPlay TV Affiliate System.
3.1.2. In the event of a discrepancy between the records contained in the NetPlay TV Affiliates tracking system and the reports issued through the Verified Referred Player Tracking System, the Verified Referred Player Tracking System shall determine the discrepancy.
3.2. Payment of Referral Commission
3.2.1. NetPlay TV shall pay a Referral Commission to Affiliates on the Activity of Verified Referred Players, in accordance with the Commission Scheme chosen by the Affiliate. For clarity, non-verified Referred Players will NOT qualify for remuneration.
3.2.2. The default Commission Scheme is that which is based on Referred Player Net Gaming Revenue, commonly known as ‘Revenue Sharing.’ If the Net Gaming Revenue is negative for the month i.e. the Affiliates Verified Referred Players win against NetPlayTV then no Referral Commission will be paid to the Affiliate that month. The negative Net Gaming Revenue will be carried forward to future months and offset against future positive Net Gaming Revenue until the overall balance is positive at which time Referral Commission shall be due to the Affiliate on this positive balance.
3.2.3. The Affiliate may request Referral Commission based on the acquisition by NetPlay TV of Verified Referred Players, commonly known as ‘Cost Per Acquisition’ (“CPA”), provided this is requested in writing, and approval of which lies within the absolute discretion of NetPlay TV.
3.3. Good Faith
3.3.1. The Affiliate shall execute this agreement in good faith, and shall not benefit from traffic generated in a manner that is fraudulent, dishonest, abusive or disingenuous, whether or not this traffic is detrimental to NetPlay TV.
3.3.2. The Affiliate is expressly prohibited from becoming a Verified Referred Player for the purposes of this Agreement.
3.4. Provision of Creatives
3.4.1. NetPlay TV shall provide Creatives for the Affiliate to discharge its marketing and promotional obligations under this Agreement.
4. AFFILIATE’S RIGHTS AND OBLIGATIONS
4.1. Promotion of NetPlay TV Sites
4.1.1. The Affiliate will promote NetPlay TV brands by incorporating Tracking Links and Creatives within website, weblog, email, SMS and other content.
4.1.2. The Affiliate shall use only the Tracking Links and Creatives that have been most recently posted by NetPlay TV on the NetPlay TV Affiliates website to promote and market NetPlay TV brands.
4.1.3. All email and SMS campaigns must be approved by the NetPlay TV Compliance Team before being broadcasted. Any unauthorised email or SMS campaigns will result in all commission being forfeited by the affiliate for the entire month of the campaign broadcast. NetPlay TV retain the absolute discretion to remove any affiliate who chooses to broadcast an unauthorised email or SMS campaign, or engages in any other type of behaviour or business practise that constitutes a breach of these terms and conditions, or any advertising legislation applicable in any targeted territory.
4.2. Multiple Accounts
4.2.1. No legal or natural person may enter in to more than one Affiliate Agreement with NetPlay TV, which for the avoidance of doubt means that only one Affiliate shall hold one Affiliate Account.
4.3.1. Should no Verified Referred Players be produced by the Affiliate Account for a continuous period of 60 days, the agreement will be terminated in accordance with 10.3 below.
4.4. SMS Messaging
4.4.1. Affiliates must not at any time send unsolicited SMS messages to any individual’s mobile phone. This practise is not allowed under UK remote gambling rules and so any affiliate do chooses to use this technique will be removed from the program and will forfeit any revenue owed to them.
4.5. Advertising on illegal websites
4.5.1. The Police Intellectual Property Crime Unit (“PIPCU”) have made clear that it is an offence to advertise, or show banners for, or any other form of advertising, on illegal websites such as illegal torrent sites, etc. As such, no affiliate may place any content relating to our brands on offending sites. If found to be doing so, the affiliate will be reported to PIPCU, removed from the program, and will forfeit any revenue owing to them.
4.6. Adherence to Gambling Commission and ASA rules on advertising
4.6.1. All affiliates must adhere to the guidance provided to them by NetPlay TV around the safe and compliant advertising of gambling services by them, whether in substance, subject or apparent provenance, and they ensure that any third party procured by them fulfils the same. This provision is made clear in Section 5 of the Gambling Commission’s Licence Conditions and Codes of Practice. Failure to adhere to this requirement may result in non-compliant advertising techniques or methods being used by an affiliate, which in turn will lead to the removal of the affiliate from the program.
5.1. The Parties warrant that:
5.1.1. this Agreement has been entered in to by someone competent, with the requisite authority and legal capacity to enter in to this legally binding Agreement for the Affiliate and for NetPlay TV;
5.1.2. that they each have all necessary rights, licences and permits to execute their respective obligations under this Agreement;
5.2. Commission Scheme
5.2.1. The Affiliate warrants that it has read in full both the terms of this Agreement and the full details of the Commission Scheme that will determine its Referral Commission under this Agreement.
5.3. Potential Breach
5.3.1. The Affiliate warrants that it shall neither act nor fail to act in any way that leads or is liable to lead to any breach of NetPlay TV’s statutory, regulatory, contractual or any other legally binding obligations anywhere in the world.
5.4.1. The Affiliate warrants that it shall not send spam email, SMS text messages or other unsolicited marketing messages or communications relating to NetPlay TV brands, whether in substance, subject or apparent provenance, nor will they procure or tolerate the same by any third party.
5.5.1. The Affiliate warrants that it shall not register or purchase any domain name bearing a resemblance to any NetPlay TV brand names or registered domain names, an activity sometimes referred to as ‘Domain Squatting’. This restriction also applies to any misspelt variants. The Affiliate shall not procure or tolerate the same by any third party.
5.6.1. The Affiliate warrants that it shall not purchase any search engine Key Word, search term, or other identifier – a process sometimes referred to as ‘Keyword Bidding’ or ‘PPC Bidding’ - with any resemblance to any NetPlay TV brand names, registered domain names, or other identifying word or phrase. This restriction also applies to any misspelt variants. The Affiliate shall not procure or tolerate the same by any third party.
5.7. Unacceptable Content
5.7.1. The Affiliate warrants that any Affiliate owned, controlled or associated online content or marketing communications shall not contain Unacceptable Content, or links to Unacceptable Content. Unacceptable Content includes, but is not limited to, content that:
188.8.131.52. is aimed at those under the age of 18;
184.108.40.206. is pornographic or promotes pornography;
220.127.116.11. is discriminatory or promotes discrimination on the basis of disability, ethnicity, faith, gender, nationality or sexual orientation;
18.104.22.168. promotes violence;
22.214.171.124. promotes illegal activities;
126.96.36.199. violates or promotes the violation of intellectual property rights;
188.8.131.52. is defamatory;
184.108.40.206. breaches or promotes a breach of the privacy of any individual;
220.127.116.11. gives rise or is liable to give rise to any direct or consequential breach of NetPlay TV’s statutory, regulatory, contractual or other obligations.
5.8. Data protection
5.8.1. The Affiliate warrants that any personal information used in connection with this agreement has been collected and processed in conformity with all applicable data protection and privacy legislation, including the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the Data Protection (Bailiwick of Guernsey) Law 2001, and any similar applicable statutory, regulatory or other legally binding provision;
5.8.2. the Affiliate further warrants that for the duration of this agreement, and any legally binding period subsequent to the termination of this agreement, any personal information used in connection with this agreement shall be collected and processed in conformity with the same.
6. APPROVAL OF CREATIVE CONTENT
6.1.1. In the event that the Affiliate uses its own Marketing Materials, NetPlay TV retains entirely within its discretion the right of approval over their use and requests that this prior approval is granted before use of said materials.
6.1.2. The Affiliate warrants that all emails must be submitted for NetPlay TV for copy pre-approval, pre-approval to be entirely within NetPlay TV’s discretion.
7.1. NetPlay shall not be liable, in contract, tort (including negligence) or for breach of statutory duty or in any other way for:
7.1.1. any loss arising from or in connection with loss of revenues, profits, contracts, data or business or failure to realise anticipated savings; or
7.1.2. any loss of goodwill or reputation; or
7.1.3. any indirect, special or consequential losses;
7.2. The exclusion of liability for the losses in Clause 7.1 shall apply whether said losses arise out of or in connection with any matter under this Agreement.
7.3. Notwithstanding anything to the contrary in this Agreement, the aggregate liability of NetPlay TV for any liability arising under or in connection with this Agreement, howsoever arising, shall be limited to the total Referral Commission paid or payable under this Agreement.
7.4. Any liability arising under this Agreement shall be satisfied solely from the Referral Commission and shall be limited to direct damages.
7.5. None of NetPlay TV’s obligations under this Agreement shall constitute personal obligations of NetPlay TV’s directors, employees or shareholders.
8.1. The Affiliate agrees to indemnify NetPlay TV, its directors, employees and representatives against any and all claims, arising out of any breach by the Affiliate of its obligations under this Agreement and of any of the warranties given by it under this Agreement, or arising from any act or omission of the Affiliate, its agents or contractors in connection with this Agreement, save for any act or omission specifically requested by NetPlay TV.
9.1. Each of the parties shall treat as confidential information belonging to the other party which was disclosed or obtained as a result of the discussions and negotiations leading to this agreement or of its implementation.
9.2. The obligations of non-disclosure and confidentiality shall not extend to a party in respect of anything which:
9.2.1. is in the public domain other than as a result of a breach of those obligations;
9.2.2. was in that party’s records prior to the date of this agreement;
9.2.3. is required to be disclosed under a legal or regulatory duty.
10.1. This Agreement may be terminated by either party with immediate effect upon written notice.
10.2. Notwithstanding any other provision of this Agreement, NetPlay TV gives notice that should it apprehend an act or omission by the Affiliate that leads or is liable to lead any breach of its statutory or regulatory obligations, NetPlay TV will immediately terminate the Affiliate Agreement.
10.3. In the event that this Agreement is terminated, Referral Commission shall cease to accrue from the moment at which the agreement is terminated.
10.4. Upon termination, the Affiliate must remove all tracking links and creatives from all Affiliate owned or controlled websites or blogs.
11. INTELLECTUAL PROPERTY
11.1. All IP Licensed for Use and Retained by NetPlay TV
11.1.1.All intellectual property used or generated in connection with this agreement shall at all times remain the property of NetPlay, and shall be non-exclusively licensed by NetPlay TV to the Affiliate solely for the performance of the Affiliate’s obligations under this agreement, and solely for the duration of this Agreement.
12.1. The rights and obligations that are created by this agreement are non-assignable.
12.2. Notwithstanding Clause
12.1 NetPlay TV may assign rights to an Associated Company provided notification is given to the affiliate.
13. THIRD PARTY RIGHTS
13.1. The Contracts (Rights of Third Parties) Act 1999 does not apply so as to give to a person who is not a party to this agreement a right under it.
14.1. NetPlay TV shall give notice and send notifications to the Affiliate using the email address given by the Affiliate when signing up.
14.2. The Affiliate shall give notice and send notifications to NetPlay TV by email using the following address:
15.1. This Agreement is concluded in the English Language. Should NetPlay TV circulate any translation of this Agreement, the English language version will determine the rights and obligations of the Parties to this agreement.
16. FORCE MAJEURE
16.1. If a party is prevented from or delayed in performing its obligations as a result of force majeure, the party is excused from performing its obligations to the extent prevented or delayed if:
16.1.1.it promptly gives the other party notice specifying the matters constituting the force majeure;
16.1.2.it states its best estimate of the period for which its inability will continue or the period for which performance of its obligations will be delayed; and
16.1.3.it uses all reasonable endeavours to remove or minimise the effect of the force majeure.
16.2. For the purpose of this clause, a force majeure is a cause which affects the ability of the party in question to perform a material obligation under this agreement and which arises from circumstances beyond its reasonable control.
17. ENTIRE AGREEMENT, SEVERABILITY & WAIVER
17.1. This agreement sets out the entire agreement between the parties in relation to its subject matter.
17.2. To the extent possible, each provision of this Agreement is to be interpreted so as to be operative in accordance with the applicable law, however should any provision of this Agreement be held illegal, unenforceable or otherwise invalid, said provision shall be ineffective only to the extent of the illegality, unenforceability or invalidity, without affecting the rest of the Agreement.
17.3. NetPlay TV may at its sole discretion modify any of the terms of this Agreement. The occurrence of this modification shall be notified to the Affiliate by email, and the modified agreement shall be posted on the NetPlay TV Affiliates website. The modified Agreement shall be effective upon notification, and by continuing to discharge its obligations under the agreement, the Affiliate shall be deemed to have accepted the modified Agreement in its entirety.
17.4. Subject to any other provision in this Agreement, a purported alteration of this agreement is not effective unless it is consented to in writing by both of the parties.
17.5. The failure by NetPlay TV, whether or not deliberate, to exercise a right or to insist on the precise performance of this agreement, or its delay in doing so, shall not affect its future exercise or enforcement of rights.
17.6. The giving by NetPlay TV of its consent to an act which under this agreement requires that consent shall not prejudice its right to withhold consent to a similar act
18. JURISDICTION & APPLICABLE LAW
18.1. England Law and Courts
18.1.1.This Agreement is governed by the laws of England and Wales.
18.1.2.Disputes arising out of this agreement are subject to the exclusive jurisdiction of the Courts of England and Wales, to which the parties irrevocably submit.