OGAMING AFFILIATES PROGRAM TERMS AND CONDITIONS
Last Updated on the 27 February 2019
IMPORTANT NOTICE – PLEASE READ
Please read these OGaming Affiliate Program Terms and Conditions carefully before making any application to join our OGaming Affiliates program. These Terms and Conditions explain what you need to know before you apply to join the OGaming Affiliates program, including who we are, how you or we may alter or end the affiliate contract between us, who to contact if there is a problem, how you will be paid and other important information. These Terms and Conditions also set out important regulatory and compliance information which you must observe as a condition of your taking part in our OGaming Affiliates Program.
By applying to join our OGaming Affiliates Program, you agree to be bound by these Terms and Conditions. If you do not wish to be bound by these terms and conditions you should not apply to join our OGaming Affiliates Program.
1. Parties and Legal Status
The following OGaming Affiliate Program Terms and Conditions constitute a legally-binding agreement (“Agreement”) between (1) LG TRADING LIMITED, company incorporated under the laws of Malta with the registration number C84999 (“OGaming”, “we” or “us”) and (2) you the person who is applying to join the OGaming Affiliate Program (the “Affiliate” or “you”).
Legal Status and Commencement.
Your submission of an Application is an offer to contract with us on the terms of this Agreement. We will be deemed to have accepted that offer, and this Agreement shall commence to have legal effect, only if, as and when and we have both accepted your Application and confirmed the same to you in writing, as provided for in Section 3.3 below.
In this Agreement the following terms shall have the following meanings:
Means any natural and/or legal person who, after having entered into this Agreement, makes space on its website or other media platform (“Affiliate Site”) for the Content provided by the Company for the purposes of this Agreement.
An account in the name of the Affiliate on the Affiliate portal at OGamingAffiliate.com.
Those websites that are owned, operated and wholly controlled by you the Affiliate and which we approve for the hosting of the Tracking Links.
Agreement As defined in Section 1 above.
All applicable laws, regulations, rules, codes and official or regulatory guidance, in each case as amended, varied or replaced from time to time, including without limitation any promulgated by any applicable advertising and gambling regulatory authorities.
An application by a potential Affiliate to join the OGaming Affiliates Program made via the Application Process on OGamingAffiliate.com.
The process for applying to join the OGaming Affiliates Program, as available on OGamingAffiliate.com from time-to-time.
Means any person (whether incorporated or not) controlled by, controlling, or under common control of any party, as the case may be. A person shall be deemed to control another entity if it possesses, directly or indirectly, the power to direct, or cause the direction of, the management and policies of the other entity, whether through ownership of voting securities or partnership interests, representation on its board of directors or similar governing body or by contract or otherwise (“Means of Control”). Without derogating from the generality of the foregoing, a person shall be deemed to be in control of another entity if they hold more than fifty per cent (50%) of any one of the Means of Control of such other person.
Meaning a brand property operated by OGaming
Means the compensation due to the Affiliate based on the agreed percentage of Net Revenue (“Revenue Share”), Cost Per Acquisition, or other Reward Plan.
Means all information and know-how of OGaming and/or its Associates, whether recorded in material form or not, which is disclosed to or otherwise learned by the Affiliate in the course of this Agreement and the matters set forth in this Agreement. This includes, but is not limited to, (i) technical information of OGaming and/or its Associates, its suppliers, players or other third parties that is in use, planned, or under development, such as, but not limited to, research processes or strategies, computer product, process and/or devices, software product, and any other databases, methods, know-how, formulae, compositions, technological data, technological prototypes, processes, discoveries, machines, inventions and similar items; (ii) business information of OGaming and/or its Associates, its suppliers, players or other third parties that is in use, planned, or under development, such as, but not limited to, information relating to OGaming’s employees, consultants and freelancers (including information related to performance, skill sets, and compensation), actual and anticipated relationships between OGaming and/or its Associates and other companies, financial information, rake amounts, current and future gambling and social games, other current and future products, promotions and offerings, developments, information relating to player, supplier or other third party relationships (including the identity thereof); product pricing, player and VIP lists, player incentives, player preferences, financial information, credit information, and similar items; and (iii) information relating to future plans of OGaming and/or its Associates, its suppliers, players or other third parties that is in use, planned, or under development, such as, but not limited to, marketing strategies, new product research, pending projects and proposals, proprietary production processes, research and development strategies and similar items, in each case whether or not such information carries a mark affirming its confidentiality.
Data Protection Legislation
Means all applicable data protection, privacy and electronic marketing legislation, including any national legislation implementing Directive 2002/58/EC, GDPR (and any related national legislation), any equivalent, replacement or repealing legislation, and any codes of practice issued by a competent data protection supervisory authority (as defined in GDPR) relating to the same at any time.
Means the General Data Protection Regulation (EU) 2016/679.
Intellectual Property Rights means all patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets and techniques) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Marketing Guidelines The style guide and other guidelines provided by OGaming which apply to the use of the Marketing Material from time-to-time.
Those marketing and promotional materials that we make available on OGamingAffiliate.com for the use of our affiliate partners from time-to-time, or any bespoke such materials that we may provide to you the Affiliate from time-to-time.
Any deposit or wagering requirement, including any associated play-through requirements, that may be notified by OGaming to any Referred Players from time-to-time.
The Technical Platform used by OGaming Affiliates for the management of the Affiliates Program.
OGaming’s affiliate program website.
OGaming Affiliates Program
OGaming’s Affiliates program, in such form as determined by OGaming.
Net Gaming Revenue
As defined in Section 6.2 below.
This can be either brand or product level. For cross-brand off-setting, if an affiliate promoted two brands within the same affiliate account, and there is a negative balance on one brand and a positive balance on the other the negative balance will be deducted from the positive balance to calculate a final commission. In order to avoid cross brand off-setting, the affiliate should create a separate affiliate accounts per brand they are promoting. If affiliates promote both the sportsbook and casino Products, there will be cross-product off-setting. For example where there is a negative balance on their referred players’ sportsbook Net Revenue, this will be deducted from any positive balance on their referred players’ casino Net Revenue.
Those websites and other digital products and services of OGaming and our Associates which we select to be promoted by the OGaming Affiliates Program.
The account opened with us (or our Associates) by a Referred Player.
The affiliate can choose to promote Sportsbook and/or Casino products.
A player who satisfies all of the following: (1) referred from your Affiliate Site via the Tracking Links to Our Sites; and (2) who has not opened an account with us or any of our Associates or otherwise played on Our Sites on a real-money basis in the preceding twelve (12) month period; and (3) who has been accepted by us for registration, having passed our various KYC and due diligence enquiries; and (4) who has opened a Player Account; and (5) who has deposited and played-through any Minimum Deposit stipulated by us with no chargebacks, void wagers or manual refunds to that player.
The time during which this Agreement is in legal force and effect.
Those hyperlinks that are provided on OGamingAffiliate.com for uploading to Affiliate Sites and which direct and track potential Referred Players from Affiliate Sites to Our Sites.
As defined in Section 11 below.
3. How to Join the OGaming Affiliates Program
3.1 How to Apply. If you wish to join the OGaming Affiliates Program you must access and complete the ‘Sign Up’ process that can be found on OGamingAffiliate.com which will include an application to open an Affiliate Account with us.
3.2 Information. OGaming reserves the right to require from you such information as OGaming may require in order to consider your Application and in particular such information as we may request in order to assess your probity, suitability, regulatory compliance and ongoing ability to comply with both this Agreement and Applicable Law. You represent and warrant to us that all the information provided by you to us in connection with your Application, as well as this Agreement generally from time-to-time, will be complete, up-to-date, correct and truthful.
3.3 Legally Binding Acceptance of this Agreement. Your submission of an Application is a legally-binding offer to contract with us on the terms of this Agreement. We will be deemed to have accepted that offer, and this Agreement shall commence to have legal effect as a legally-binding contract between us, only if, as and when we accept your Application and confirm the same to you in writing, as provided for in Section 3.5 below.
3.4 Upon the Affiliate’s successful application to join the Affiliate Program, a unique tracking code (often in the form of a URL) is assigned to the Affiliate so that the Affiliate is integrated in to NetRefer. This tracking code will identify any New Customers referred by the Affiliate. It is the Affiliate’s responsibility to ensure that any tracking code generated by the NetRefer is used correctly.
3.5 Rights of OGaming. OGaming retains the sole and absolute discretion at all times to decide who may join the OGaming Affiliates Program and, subsequently, who may remain in the OGaming Affiliates Program. This Agreement sets out various reasons and events whereby you may not be joined to the OGaming Affiliates Program or where, having been accepted by us and joined to the OGaming Affiliates Programme, this Agreement may be terminated with the effect that you leave the OGaming Affiliates Program, but those specific instances are without prejudice to OGaming’s general right to reject any such Applications and disqualify from membership of the OGaming Affiliates Program any such Affiliates as it in its sole discretion considers fit, particularly where an Affiliate breaches Applicable Law or where we consider that legal and regulatory compliance is not afforded sufficient priority by your business.
3.6 Notice. The result of OGaming’s consideration of your Application (acceptance or rejection) will be notified to you by email. Where we accept your Application, the provisions of Section 3.3 above shall apply and this Agreement shall enter into full legal force and effect.
4. Marketing. As an Affiliate member of the OGaming Affiliates Program you agree as follows:
4.1 Marketing. You will use your best endeavours to advertise and promote Our Sites on your Affiliate Sites at your own cost and in accordance with and subject to the terms of this Agreement and in particular this Section 4, provided that you will not:
4.1.1 advertise or promote Our Sites using bulk or unsolicited emails or other communications such as SMS or otherwise engage in any so-called ‘spamming’ of any persons;
4.1.2 advertise or promote Our Sites in a manner that contravenes Applicable Law and in particular the provisions of Section 18 below (Data Protection and Privacy).
4.2 Marketing Materials.
4.2.1 You will only use the Tracking Links and Marketing Materials provided by us via the OGaming Affiliates Program as the same are made available to you on OGamingAffiliate.com, unless agreed specifically in writing in advance by you and us. You will not alter any Tracking Link or Marketing Material unless agreed specifically in writing in advance by you and us.
4.2.2 You will at all times comply with our applicable Marketing Guidelines which may include instructions as to the manner in which Tracking Links from your Affiliate Sites to Our Sites must be implemented in order to enable the tracking necessary to calculate your entitlement to Commission hereunder and in this regard you acknowledge and agree that failure to comply with such Marketing Guidelines may result in no Commission being due or paid to you, for which we will not be liable.
4.3 Marketing Regulation. All advertising and promotion of Our Sites undertaken by you must:
4.3.1 comply with all Applicable Law;
4.3.2 be undertaken in a socially responsible manner and not be sent to, targeted at, or be of particular appeal to, persons younger than eighteen (18) years old or vulnerable persons, meaning persons whom you know, suspect, or should have known or suspected, may be persons who have self-excluded from gambling or who are otherwise likely to be at-risk of problem gambling.
4.3.3 only be placed on Affiliate Sites where you are in total control of the appearance and presentation of such advertising and promotion as well as the surrounding content;
4.3.4 not be published on any website or other digital app or property, or otherwise in conjunction with any content or functionality, which provides unauthorised access to copyrighted content (and for the avoidance of doubt, your breach of this Section 4.3.4 shall entitle us to terminate this Agreement immediately upon written notice to you); and
4.3.5 not be directed at any person who is resident in any jurisdiction where their participation in online gambling would be in conflict with Applicable Law, for example the United States of America and its dependencies and in this regard it is the sole responsibility of you the Affiliate to understand and comply with all Applicable Laws in all the jurisdictions where your Affiliate Sites are accessible and from where Referred Players may originate.
5. Affiliate Site
As an Affiliate member of the OGaming Affiliates Program you agree as follows:
5.1 Ethics and Standards. You will:
5.1.1 operate your Affiliate Sites in a professional manner as might be expected of a reputable, expert provider of content, goods and services the same as or similar to those offered on Affiliate Sites;
5.1.2 operate your Affiliate Sites in compliance with all Applicable Law;
5.1.3 not publish, feature, advertise or link to any content that is in breach of the Intellectual Property Rights of any person;
5.1.4 not publish, feature, advertise or link to any content that is in breach of Applicable Law or any content that is defamatory, obscene, pornographic or indecent or which promotes or encourages violence, prejudice or discrimination based upon race, gender, religion, sexual orientation, disability or political affiliation;
5.1.5 not do, or omit to do, anything which might adversely affect the name, reputation, brands and image of OGaming and/or our Associates; and
5.1.6 comply with OGaming Affiliates “KYP” or “Know your Partner”
procedures as requested by us, which may involve the request by us for such documentation as we need in order to perform ongoing due diligence of your probity and suitability to be associated with OGaming’s sites, especially in highly regulated markets, and your compliance and ongoing ability to comply with this Agreement during the Term.
5.2 Prohibited Conduct. You will not attempt to generate traffic to Our Sites by means of the following practices nor will you or your Associates permit or collude with any Referred Player in the commission of the any of the following practices:
5.2.1 authorising third parties to provide affiliate services or player referrals either to you or your Associates or to Our Sites;
5.2.2 in any manner that contravenes Applicable Law and in particular the provisions of Section 18 below (Data Protection and Privacy);
5.2.3 by registering as a Referred Player or procuring, facilitating or consenting to others doing so, explicitly or tacitly;
5.2.4 by making deposits into any Player Account or procuring, facilitating or consenting to others doing so, explicitly or tacitly;
5.2.5 by providing incentives or consideration of any sort to Referred Players to compensate them for losses on Our Sites; and/or
5.2.6 by any other means that seeks to inflate the Commission payable to you hereunder by artificial or fraudulent means;
and where we have reason to suspect that you may be in breach of this Section 5.2, we shall have the right, exercisable without any liability to you, to withhold from you any Commission due to you whilst we investigate the matter and the further right to withhold such Commission permanently for our own account and/or terminate this Agreement immediately where we consider that your conduct or that of your Associates or Referred Players has breached this Section 5.2.
5.3 Money-Laundering and the Financing of Terrorism. You will in the operation of your Affiliate Sites in all jurisdictions ensure that the Affiliate Sites are governed by policies and procedures that ensure (and you will ensure) full and ongoing compliance with Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the Prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) no 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament (“the 4th Anti-Money Laundering Directive” or “4th AMLD”).
5.4 Anti-Bribery. In exercising your rights and/or performing your obligations under this Agreement, you warrant to OGaming that you and your Associates will comply with all applicable international, national, state, provincial and local rules, laws and regulations, including all applicable anti-corruption, anti-money laundering and anti-bribery rules, laws and regulations, including those governing the providing of incentives, inducements, kickbacks, gratuities or bribes under (without limitation) the U.S. Foreign Corrupt Practices Act of 1977 (15 U.S.C. §§ 78dd-l, et seq.) and UK Anti-Bribery Act 2010 which precludes giving, offering or agreeing to give anything of value to government officials or holders of and candidates for public office or political parties, their families and agents, directly or indirectly, in connection with obtaining or maintaining contracts or orders or obtaining other benefits. The foregoing anti-corruption and anti-bribery legislation also require complete and accurate record-keeping which records you will maintain throughout the Term and for such period thereafter as the relevant rule, law or regulation may prescribe.
5.5 Technical. You may not use so-called ‘framing’ technology or techniques on any Affiliate Site unless specifically permitted in writing by us.
5.6 Regulatory Co-Operation. The parties agree to cooperate in connection with the requests, inquiries and investigations of any regulatory authorities in connection with this Agreement. Without prejudice to the generality of the foregoing, the parties agree to share with each other such information as may be necessary to enable each party to discharge effectively their respective regulatory obligations owed to any relevant regulatory authority.
6.1 Calculation. For each calendar month of the Term (but subject to the other provisions of this Agreement) we will pay you according to the specific deal agreed or based on our program’s tiered Revenue Share model. If the Affiliate is paid on a Revenue Share Reward Plan, it shall be entitled to receive Commission for the lifetime of its Referred Customers, until termination of this agreement. Where an Affiliate promotes more than one Brand, the affiliate must create a new account for each brand so as to avoid cross-brand off-setting. If the Affiliate is paid on a different type of Reward Plan, (including but not limited to Cost Per Acquisition, ‘CPA’), the Commission shall be specified in a separate agreement agreed upon by the Parties.
For the standard tiered Revenue Share deal, this would mean you would be paid a percentage of the Net Gaming Revenue derived by us from all of the Referred Players referred from your Affiliate Sites (as logged by us by means of Tracking Links), such percentage to be calculated according to how many new persons satisfy the definition of Referred Players set out in this Agreement (“Commission”) in the relevant calendar month, as follows:
Number of New Referred Players registered in a calendar month Affiliate’s Commission, namely the Affiliate’s share of Net Gaming Revenue in that same calendar month (from all Referred Players).
The standard tiered model based on Net Revenue from Referred Players is below:
0-5,000 euros: 25%
5,001-15,000 euros: 30%
15,001-30,000 euros: 35%
30,001+ euros: 40%
By way of example, during the first calendar month of this Agreement, the affiliate’s new referred players generate 1,000 euros in Net Revenue, therefore the affiliate receives twenty five per cent (25%) of the of the Net Gaming Revenue generated by those new Referred Players in that first calendar month. In the second calendar month of this agreement, the affiliate’s new and existing referred players generate 6,000 euros in Net Revenue, therefore the affiliate’s commission would be paid at twenty five per cent for the first 5,000 euros and thirty per cent on the remaining 1,000 euros. Then in month three, if the affiliate’s new and existing referred players were to generate 18,000 in Net Revenue the affiliate’s commission would comprise of twenty five per cent on the first 5,000 euros, thirty percent on the next 10,000 euros and thirty five per cent on the remaining 3,000 euros, meaning a total commission of 5,300 euros.
In addition, from time to time, and at the discretion of OGaming, there will be a five per cent (5%) commission booster when affiliates send over ten (10) first time depositing players within a calendar month.
6.2 Definition. For these purposes, Net Gaming Revenue means all real money wagers and stakes placed by Referred Players using Our Sites in any calendar month minus the following:
6.2.1 monies paid out to Referred Players as winnings;
6.2.2 monies paid or payable as betting duty and/or tax in any jurisdictions (including reasonable provision in respect of anticipated future duties/tax) and any other statutory levies, deductions or payments to any gambling or other regulatory authority and regardless of whether levied on turnover, stakes/wagers, profit or otherwise;
6.2.3 charges levied by electronic payment or credit card organisations;
6.2.4 bad debts, void play or manual returns;
6.2.5 monies attributable to fraud including any monies withheld or deducted by us pursuant to Section 5.2 (Prohibited Conduct) above;
6.2.6 transactions which are reversed by instruction from the card-holder’s bank (commonly referred to as ‘charge-backs’);
6.2.7 any payments by way of revenue share, platform fees, licence fees or royalties required to be made by OGaming or its Associates to any provider of services and functionality, for example third party suppliers/Affiliates of third party remote gambling products or other technology;
6.2.8 the value of all player incentives of any nature made available to Referred Players, ‘player incentives’ for these purposes meaning all free bets, deposit matches, bonuses and other player incentives provided that where applicable the same have been staked and bet/wagered in accordance with the terms of the relevant promotion and have become redeemable by the relevant Referred Player(s) from their accounts in cash; and,
6.2.9 all progressive jackpot contributions and jackpot insurance payments.
6.2.10 The Company reserves the right to reduce the Affiliate’s Commission/change the Reward Plan if:
The Affiliate substantially reduces its efforts to promote the Company, and/or
The existing Reward Plan results in a significant financial loss to the Company, as reported through tracking on the NetRefer platform, and/or
The Affiliate does not generate a minimum of 6 New Depositing Customers in a period of 3 months, as reported through tracking on the Netrefer platform and/or
In the event of legal/regulatory changes to a market
Any such changes will be communicated beforehand by email to the email address in the Affiliates’ account within NetRefer.
6.2.11 When calculating the Commission based on the Net Revenue, if an Affiliate’s customers’ activities result in a negative balance for the Affiliate, due to the customer winnings and/or bonuses etc., the said balance will not be carried over to the next month, meaning any negative Commission balance will be set to zero at the beginning of each month i.e. there is no Negative Carryover.
6.3.1 OGaming will calculate the Commission due to the Affiliate as soon as possible after the expiry of each calendar month of the Term and pay the Commission due to the Affiliate using the means notified to it by the Affiliate in the Affiliate’s Application within fifteen (15) Working Days of the end of the relevant calendar month. OGaming’s calculation of any Commission payment shall be deemed to be final and agreed by the parties unless the Affiliate notifies OGaming otherwise within fourteen (14) days of receipt of payment using the email address: firstname.lastname@example.org or unless Section 6.3.3 below applies.
(a) shall have no obligation to account to the Affiliate for Commission until OGaming shall have registered five (5) persons referred via the Tracking Links from your Affiliate Sites as Referred Players according to the definition of Referred Players set out herein from which point onwards OGaming shall account to the Affiliate for Commission earned from that point onwards; and
(b) reserves the right to withhold Commission payments of Euros €100 or less (or currency equivalent) and carry them forward until the aggregate Commission due to the Affiliate exceeds Euros €100 (or currency equivalent).
6.3.3 Where the Affiliate receives any overpayment of Commission the Affiliate agrees to repay the same to Ogaming, or OGaming may, at its option, deduct for its own account such monies from future Commission due to the Affiliate. For these purposes an “overpayment” shall include any Commission which OGaming considers to have fallen due to the Affiliate as a result of any of the practices referred to in Section 5.2 (Prohibited Practices) as well as any legal or administrative costs incurred by OGaming in investigating and identifying such activity.
6.3.4 Where OGaming has cause to suspect the presence of any of the practices referred to in Section 5.2 (Prohibited Practices) on the part of the Affiliate and/or any Referred Players from the Affiliate, OGaming reserves the right to withhold payment of Commission to the Affiliate until such time as OGaming has investigated the matter.
6.4 Taxes, etc. The Commission is inclusive of any and all taxes, including but not limited to value added tax. The Affiliate is solely responsible for the payment of any and all taxes, fees, charges and any other money payable or due to any tax or other authority as a result of the revenues generated under this Agreement. OGaming has the right to deduct from the Commission due to the Affiliate any taxes for which the Affiliate is responsible and which have been or will be charged to OGaming.
6.5.1 Where an Affiliate is an individual, that Affiliate undertakes to self-pay any applicable national insurance or social security contributions on the remuneration received under this Agreement.
6.5.2 The Affiliate is required to provide proof of VAT registration to OGaming if required by OGaming from time to time at its sole discretion.
6.5.3 All payments of Commission by OGaming made hereunder shall be made in Euros (or in such other currency that may be determined by OGaming) and regardless of the currency of the Affiliate’s home country or Affiliate Site.
6.5.4 Any Commission paid to the Affiliate by OGaming hereunder shall represent the Affiliate’s sole consideration for its performance of this Agreement. Hence except as otherwise expressly agreed in writing in advance, all expenses incurred by the Affiliate in connection with this Agreement shall be deemed to be covered by the Commission provided for in this Agreement and the Affiliate is responsible for all of its costs in connection with its and its Associates’ and service providers’ performance of this Agreement.
6.5.5 For the avoidance of doubt, OGaming shall have the absolute discretion whether to categorise any person referred via the Tracking Links as a Referred Player and shall not be in breach of this Agreement nor owe any liability to the Affiliate where it declines to categorise any such referred person as a Referred Player or closes the account of any Referred Player or otherwise deals with any Referred Player and his or her Player Account in the course of OGaming’s business, including where OGaming acts in accordance with the terms of its gambling licences or other Applicable Law.
6.5.6 No Commission shall be due in relation to Net Gaming Revenue
arising on the Affiliate’s own Player Account or on the Player Accounts of the Affiliate’s employees and/or its or their family members.
6.5.7 No Commission shall be due in relation to any players on our site who are referred by persons other than you the Affiliate.
7. Intellectual Property
7.1 Affiliate Licence. OGaming hereby grants to the Affiliate a limited, revocable, personal, non-assignable, non-sublicensable, non-exclusive and royalty-free licence to use the Marketing Material in accordance with the Marketing Guidelines on the Affiliate Sites for the sole purpose of inviting potential Referred Players to click onto the Tracking Links to Our Sites. The Affiliate is not permitted to alter or modify in any way any of the Marketing Material without the express prior written consent of OGaming.
7.2 Retained Rights of OGaming.
7.2.1 All rights of whatever nature, including Intellectual Property Rights, and all goodwill arising in the Tracking Links, the Marketing Material, OGamingAffiliate.com and Our Sites, including all brands, logos, content, software, products and systems associated with the same (“OGaming IP”) are and shall remain at all times the sole and absolute property of OGaming and neither the Affiliate nor any Associate of the Affiliate shall acquire any rights of any nature, whether Intellectual Property Rights or otherwise, in or to any of the same with the sole exception of the licence set out in Section 7.1 above.
7.2.2 The Affiliate will provide OGaming with such reasonable assistance as OGaming may request at the cost of the Affiliate in enforcing or protecting any of the OGaming IP should OGaming in its sole discretion elect to do so.
7.2.3 The Affiliate shall use all reasonable endeavours to safeguard the OGaming IP. Without prejudice to the generality of the foregoing, the Affiliate agrees as follows:
(a) The Affiliate shall not act in a way which is inconsistent with or undermines OGaming’s ownership of any of the marks, brands, logos or other Intellectual Property Rights contained in the OGaming IP. In particular, the Affiliate shall not use any OGaming IP as its trade name or company name, or attempt to register or register any mark that is similar to or may be confused with any of the OGaming IP or registering (or applying to register) any domain names similar to any domain name registered to or used by OGaming or our Associates or any other domain name which could be understood to refer to OGaming, our Associates or any of our OGaming IP or OGaming business.
(b) The Affiliate agrees that Affiliate Sites and/or other types of communication shall not in any way resemble the appearance and/or the general impression of Our Sites, nor will the Affiliate create the impression that any Affiliate Site is Our Site or any part thereof.
(c) The Affiliate may not purchase, attempt to register, or register keywords, search terms or other identifiers for use in any search engine, portal, sponsored advertising service or other search or referral service and which are identical or similar to any of the OGaming IP or variations or derivations thereof.
8. Term and Termination
8.1 Either party may terminate this Agreement at any time without cause subject to giving the other party fourteen (14) days’ prior written notice. Such termination shall be exercisable without any liability on the part of the terminating party but shall be without prejudice to any other rights and remedies of the parties hereunder including in relation to any breaches of this Agreement prior to the exercise of such right. In the event of multiple Affiliate Accounts being held, OGaming reserves the right to terminate each Affiliate Account separately.
8.2 OGaming may terminate this Agreement with immediate effect by giving written notice of termination to the Affiliate (and “writing” for these purposes shall include email or pop-up message) in the event that:
8.2.1 the Affiliate commits a material breach of this Agreement;
8.2.2 OGaming has cause to suspect the presence of any of the practices referred to in Section 5.2 (Prohibited Practices) on the part of the Affiliate and/or any Referred Players;
8.2.3 proceedings in bankruptcy, insolvency, administration or liquidation are instituted by or against the Affiliate in any jurisdiction or if the Affiliate ceases to do business in the ordinary course;
8.2.4 where OGaming considers in good faith that the Affiliate is not capable of complying with those obligations hereunder that relate to regulatory compliance, in particular in Sections 4.3 and 4.4 (Marketing Regulation), 5.3 (Money-Laundering and the Financing of Terrorism), and 5.4 (Anti-Bribery);
8.2.5 OGaming or any of its Associates are advised by any regulatory authority to cease doing business with the Affiliate upon any grounds whatsoever, regardless of whether those grounds may be remediable or rectifiable by the Affiliate;
8.2.6 OGaming or any of its Associates are advised by any regulatory authority, or OGaming’s internal regulatory compliance advisers advise OGaming in good faith, that the existence of this Agreement might or would cause any of OGaming’s gambling licenses to be revoked, suspended, limited, endorsed with conditions or otherwise restricted, or cause or encourage any regulatory authority not to grant to OGaming or any Associate any gambling licence otherwise available to be applied for by, or granted to, any of them, or;
8.2.7 the Affiliate or any Associate is in breach of any gambling licence or has such gambling licence terminated, suspended or revoked, or is in material breach of any Applicable Laws.
8.3 Upon any termination of this Agreement:
8.3.1 all rights and licenses granted to the Affiliate under this Agreement shall immediately terminate, and the Affiliate will cease the use of the OGaming IP;
8.3.2 the Affiliate shall immediately:
(a) remove all references to Our Sites from all the Affiliate Sites including the Tracking Links;
(b) cease any further activity promoting or marketing Our Sites and OGaming irrespective of whether the communications are commercial or otherwise; and
(c) return to OGaming any and all Confidential Information (and all copies and derivations thereof) in the Affiliate’s possession and control;
8.3.3 OGaming shall have no obligations or liabilities occurring or arising after the date of termination;
8.3.4 the Affiliate shall no longer be entitled to earn or receive Commission provided that the Affiliate will be entitled to be paid Commission accrued but unpaid as at the effective date of termination unless termination is for any of the reasons set out in Sections 8.2.1, 8.2.2 or 8.2.7 above and in any case OGaming may withhold the Affiliate’s final Commission payment for a reasonable time to ensure that the correct amount is paid;
8.3.5 the Affiliate shall not be entitled to reimbursement of any amount for any advertising, marketing development, investments, leases or other costs incurred in the performance of this Agreement and in this regard the Affiliate hereby irrevocably waives any right it may have under any Applicable Law to any indemnity, damages, or compensation as a consequence of any termination of this Agreement by OGaming; and;
8.3.6 termination will not relieve the Affiliate from any liability arising from any breach of this Agreement, which occurred prior to termination and/or from any liability arising from any disclosure of Confidential Information even if the breach arises after the termination of this Agreement. For the avoidance of doubt the Affiliate’s obligations of confidentiality towards OGaming under this Agreement shall survive any termination of this Agreement for a period of five (5) years thereafter.
8.4 Any provisions hereof which expressly or by their nature are required to survive termination or expiration of this Agreement in order to achieve their purpose shall so survive until it shall no longer be necessary for them to survive in order to achieve that purpose.
9. Representations and Warranties.
9.1 The Affiliate warrants and represents to OGaming on its own behalf and on behalf of its Associates that:
9.1.1 you have, and will retain throughout the term of this Agreement, all right, title and authority to enter into this Agreement, to grant the rights and perform all your obligations in this Agreement;
9.1.2 you can, and will on request, provide such information as OGaming may reasonably require, to establish your identity and background and/or to comply with Applicable Law (including anti-money laundering law), and furthermore that if you are a natural person, you are not under 18 years of age (and in this regard you agree to provide OGaming upon request a copy of your ID); and
9.1.3 you have obtained and will maintain in force all necessary registrations, authorisations, consents and licenses necessary to fulfil your obligations under this Agreement (and in this regard you agree to provide these to OGaming upon request);
9.1.4 you will at all times comply with all Applicable Law; and
9.1.5 you fully understand and accept the terms and conditions of this
Agreement and you will at all times comply with all the terms and conditions of this Agreement.
10.1 OGaming makes no representation or warranty that the operation of Our Site will be uninterrupted or error-free and neither OGaming nor any Associate of OGaming will be liable for the consequences of any interruptions or errors in the same.
10.2 Further, OGaming shall not be liable for any direct or indirect losses or damages incurred by the Affiliate (in this case whether direct or indirect), including, without limitation, as a result of business interruption and/or loss of business or loss of data or information, even if such losses arise from the operation of the OGaming Affiliates Program or any other act or omission of OGaming or its Associates or service providers.
10.3 The Affiliate shall indemnify and hold harmless OGaming, OGaming and each of its Associates, directors, officers, employees, shareholders, attorneys, agents and partners (the “Indemnified Party”) from and against any and all demands, claims, damages, costs, expenses, liabilities, losses (including without limitation directly arising loss of profit) and all reasonable legal costs and expenses suffered or incurred, directly or indirectly, by the Indemnified Party in consequence of any breach, non-performance or non-observance of this Agreement or of any Applicable Law by the Affiliate or its Associates or otherwise in any manner arising from or connected with the operation of the Affiliate Site(s) without limit. The foregoing indemnity is in addition to and without prejudice to the specific terms of Section 18.10 below.
10.4 OGaming has the right to withhold any and/or all payments to the Affiliate if the Affiliate or its Associates is in breach of any of the provisions of this Agreement. Where any such liability is owed to OGaming, OGaming reserves the right of set-off any unpaid Commissions owing to the Affiliate against such liability.
10.5 The Affiliate shall be solely responsible for the payment of any income, corporation or similar taxes imposed or levied by any applicable jurisdiction or any governmental authority on any amounts paid by OGaming to Affiliate under this Agreement. OGaming is entitled to deduct from any payments made to the Affiliate any withholding tax or other deductions required by law to be deducted from amounts paid by OGaming under this Agreement at the prevailing rate. OGaming will pay such amounts withheld to the appropriate tax or government authority and will provide a copy of any certificate issued by the said authority to the Affiliate, and the OGaming shall provide any other reasonable assistance required to enable the Affiliate to claim a rebate or deduction for, or repayment of, such withholding tax paid.
11. Notices and the Relationship of the Parties
11.1 Notices to:
11.1.1 OGaming given or made under this Agreement shall be sent by email to email@example.com (or such other email address as notified in writing by OGaming to the Affiliate from time-to-time);
11.1.2 the Affiliate given or made under this Agreement shall be sent by:
(a) email to the Affiliate’s email address as supplied in the Affiliate Application (or such other email address as notified in writing by the Affiliate to OGaming from time-to-time); and/or
(b) pop-up message (a “pop-up message” meaning a message available in the interface provided by OGaming for the Affiliate to manage its Affiliate Account); and
11.1.3 any notice shall be deemed to have been received as follows:
(a) email: immediately, if sent by email during a Working Day or, if sent outside a Working Day, at the commencement of the next Working Day; or
(b) pop-up message: when the Affiliate next logs into its Affiliate Account;
and for the purposes of this Agreement “Working Day” shall mean any day which is not a Saturday, Sunday or a bank or public holiday in Malta.
11.2 Nothing contained in this Agreement, nor any action taken by any party to this Agreement, shall cause either party to constitute (or any of such party’s employees, agents, or representatives) an agent, employee, or legal representative of the other party, nor shall it cause the creation of any agency, partnership, joint venture, association, or syndication among or between the parties, nor shall it cause to confer on either party any express or implied right, power or authority to enter into any agreement or commitment on behalf of (nor to impose any obligation upon) the other party.
12. Severability and Waiver
12.1 In the event one of more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. OGaming shall endeavour to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
12.2 No failure on the part of a party to exercise, and no delay in exercising, any right hereunder or under this Agreement shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any other remedies provided by law or equity.
13. Confidentiality Undertaking
13.1 The Affiliate shall protect the confidentiality of any Confidential Information disclosed or furnished by OGaming and/or its Associates or otherwise made available to the Affiliate in connection with the negotiation, execution or performance of this Agreement (whether in written media or otherwise) using the same degree of care that it uses to protect its own confidential or proprietary information of a like nature but in no event less than a reasonable degree of care. Confidential Information shall remain the property of OGaming, and the Affiliate shall not be deemed by virtue of any access to the Confidential Information of OGaming to have acquired any right or interest in or to any such Confidential Information.
13.2 The provisions of Section 13.1 above shall not apply to any information which:
13.2.1 was already in the lawful possession of the Affiliate at the time of such disclosure unless such possession arose as a result of a breach of confidence;
13.2.2 is or comes into in the public domain other than as a result of the breach of this Agreement;
13.2.3 is obtained by the Affiliate from a bona fide third party having no apparent restraint on its free right of disposal of such information; or
13.2.4 is or has already been independently generated by the Affiliate, as evidenced by documentary records to the reasonable satisfaction of OGaming.
13.3 The Affiliate shall use OGaming’s Confidential Information solely for the purposes of its performance of this Agreement and shall not otherwise use nor disclose or disseminate any such Confidential Information to any third party at any time, except:
13.3.1 to its Associates, employees and/or professional advisers but only where it is necessary for the purposes of this Agreement; or
13.3.2 as required by Applicable Law or any competent regulatory body, or the rules of any relevant stock
13.4 If the Affiliate is compelled to disclose any Confidential Information relating to OGaming pursuant to Section 13.3.2 above or otherwise as the result of any request from any government agency, regulatory body, court of law of competent jurisdiction or stock exchange, the Affiliate shall use all reasonable endeavours to give no less than five (5) Working Days’ notice to OGaming of the disclosure.
13.5 The Affiliate shall notify OGaming promptly of it becoming aware of any unauthorized use or disclosure of the OGaming’s Confidential Information and shall cooperate with and assist OGaming in every reasonable way to stop or minimize such unauthorized use or disclosure.
13.6 If the Affiliate commits a breach, or threatens to commit a breach of any of the provisions of this Section 13, then OGaming shall have the right to bring an action for injunctive relief or any other action at law or equity to specifically enforce the terms of this Section, it being acknowledged and agreed that any such breach, or threatened breach, could cause irreparable injury and that money damages would not provide an adequate remedy to OGaming.
13.7 The Affiliate shall ensure that if any Information is referred or disclosed to a third party as permitted in this Agreement, such third party shall use all measures to comply with the obligations pertinent to the Affiliate and the Affiliate shall be solely responsible for the third party’s actions and omissions
13.8 This Section 13 shall survive the termination of this Agreement for whatever reason.
14. Entire Agreement, Variations
14.1 This Agreement constitutes the entire Agreement and understanding of the parties on the subject hereof and supersedes any previous agreement or understandings between the parties relating to the subject matter of this Agreement.
14.2 OGaming shall retain the unconditional right at its sole and absolute discretion, to cancel, alter and/or close its OGaming Affiliates Program, add provisions to this Agreement and/or alter or delete any of the provisions of this Agreement, at any time and in any manner OGaming deems appropriate, without incurring any liability to the Affiliate. OGaming will endeavour but is not obliged to give reasonable notice of any change to the Affiliate. Any amendments, alterations, deletions, interlineations or additions to this these Agreement shall be effective immediately upon notice, by display on OGamingAffiliate.com and/or email and pop-up, and shall supersede all previous versions. The Affiliate’s continued participation in the OGaming Affiliates Program, including but not limited to acceptance of any Commissions from OGaming after such change notice is deemed to have been received under this Agreement, will always be deemed as a binding irrevocable acceptance of the Agreement’s new terms and conditions and/or other changes in the OGaming Affiliates Program. Under no circumstances may the Affiliate modify, alter, delete and make addition of any of the provisions of this Agreement. No employees, officers or agents of OGaming may verbally alter, modify or waive any provision of this Agreement.
15. No Business Restriction
Nothing in this Agreement shall limit or restrict OGaming’s and/or OGaming’s right to do business with, grant rights to or receive grants of rights from, provide services to or receive services from, or enter into any agreements with any other entity, in any scope and manner, including agreements similar to this Agreement on terms which may differ from the terms hereof.
16.1 The Affiliate shall not be entitled to assign, sublicense or transfer its rights or obligations under this Agreement without the express written consent of OGaming.
16.2 OGaming may freely assign this Agreement and all of its rights and obligations hereunder to any of its Associates. OGaming shall be entitled to exercise any of its rights or fulfil any of its obligations under this Agreement through any Associates.
17. Disputes and Governing Law
17.1 This Agreement shall be construed in accordance with and be governed by the laws of Malta.
17.2 The Affiliate irrevocably agrees that, subject as provided below, the courts of Malta shall have exclusive jurisdiction in relation to any claim, dispute or difference concerning this Agreement and any matter arising therefrom and irrevocably waives any right that Affiliate may have to object to an action being brought in those courts, or to claim that the action has been brought in an inconvenient forum, or that those courts do not have jurisdiction. Nothing in this Section shall however limit the right of OGaming to, at any time (a) to take proceedings against Affiliate in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction or (b) seek injunctive relief in the courts of any appropriate jurisdiction in the case of any breach or threatened breach by the Affiliate of any obligation of confidentiality or any infringement by Affiliate or its Associates of any OGaming IP or (c) commencing any proceedings in the courts where this is reasonably necessary to avoid any loss of a claim due to the statutes of limitations.
17.3 The Affiliate must, unless otherwise agreed by the parties, or required by applicable law, treat all information disclosed during the arbitration by or on behalf of the parties and all matters relating to the arbitration (including the existence of the arbitration) and the award, as Confidential Information (as defined above).
18. Data Protection and Privacy
18.1 For the purposes of this Section 18, the terms controller, data subject, personal data, process (and its cognate terms), processor and supervisory authority have the meaning given to them in GDPR.
18.2 The Affiliate acknowledges and agrees that it may be a controller in respect of personal data of Referred Players to the extent that such personal data is processed for the purposes of referring the players to OGaming and tracking Commission. The Affiliate acknowledges and agrees that OGaming shall be a separate independent controller in respect of personal data of Referred Players for the purposes of providing its services to Referred Players.
18.3 In the event of duplication of data subjects’ personal data to which OGaming and Affiliate are controllers, OGaming and Affiliate acknowledge and agree that they shall be acting as controllers in common and not joint controllers in respect of the independent processing of such data subjects’ personal data.
18.4 Affiliate shall at all times comply with the Data Protection Legislation including, without limitation, ensuring that Referred Player’s personal data: (i) is collected fairly, lawfully and transparently; (ii) is processed in accordance with a lawful condition as set out in the GDPR; and (iii) is protected from loss, theft, accidental destruction or unauthorised access by implementing appropriate technical and organisation measures in respect of such personal data.
18.5 Affiliate shall notify OGaming immediately in the event that it breaches (or suspects that it has breached) any of its obligations under this Section 18.
18.6 Affiliate shall notify OGaming immediately in the event that any Referred Player makes a complaint to the Affiliate, or where any supervisory authority contacts Affiliate, in respect of Affiliate’s processing of such Referred Player’s personal data or direct marketing to Referred Players. Such notification shall be sent via email to firstname.lastname@example.org
18.7 OGaming may, from time to time, request that the Affiliate provides evidence of its compliance with this Section 18 and Affiliate shall provide such evidence within seven (7) days of its receipt of such request.
18.8 Affiliate shall ensure that all processors acting on its behalf (in accordance with this Agreement) are bound by contractual terms no less onerous than the standards prescribed by the Data Protection Legislation.
18.9 Affiliate shall provide OGaming with all such assistance as necessary in respect of data breaches, claims and requests for information made against OGaming in respect of any Referred Players, in particular, any investigations made by a supervisory authority.
18.10 OGaming will process, as a controller, the affiliate’s personal data.
18.11 Notwithstanding anything to the contrary set out in this Agreement, the Affiliate agrees to indemnify OGaming and defend OGaming at its own expense and upon demand against all costs, claims, fines, group actions, damages and expenses incurred by OGaming or for which OGaming may become liable due to any failure by Affiliate or its Associates, employees, agents subcontractors or processors to comply with any of its obligations under this Section 18 or any failure to comply with Data Protection Legislation.
18.12 The Company may change all or any part of this Agreement at any time and at its sole discretion. Notice will be given by email to the email address in the Affiliates’ account within NetRefer and will be deemed to be served immediately when sent by the Company or by a pop-up message once the Affiliate logs into NetRefer – whichever occurs sooner. If the Affiliate does not agree to such changes, the Affiliate may terminate this Agreement in accordance with its terms. However, should the Affiliate continue to participate in the Program after the Company has posted the changes, this will constitute binding acceptance of such changes.