Betfaircasino.com Affiliate Program Terms and Conditions (Vendor Registrant)

This affiliate agreement (the “Agreement”) sets out the complete terms and conditions between Betfair Interactive US LLC, of 6701 Center Drive West, Suite 800, Los Angeles, CA 90045 ("Betfair"), and you, regarding your application to participate as an affiliate (an "Affiliate") in the Betfair affiliate program (the “Affiliate Program”).

It is important that you read and understand this Agreement. By completing an application to join the Affiliate Program you are – subject to Betfair’s approval of your application – agreeing to the terms and conditions of this Agreement. If you do not agree to the following terms and conditions (or are not authorized to do so) you should discontinue your application.

This Agreement replaces all previous terms and conditions relating to the Affiliate Program or any previous affiliate program offered by Betfair. You agree that this Agreement supersedes all previous agreements you have had with Betfair or any Group Company (as defined below).

1. DEFINITIONS AND INTERPRETATION

1.1 “Affiliate Payment” means any payments made to an Affiliate in accordance with the terms and conditions of this Affiliate Program;

“Affiliate Program Site” means the website at affiliates.betfaircasino.com;

“Application” means your application to join the Affiliate Program via the Affiliate Program Site;

"Business Day" means any day (excluding Saturdays and Sundays) which is not an official public holiday in the State of New Jersey;

“Code” means the unique code that may be used by Customers when registering for an account with Betfair which is made available to you via the Affiliate Program Site;

"Commencement Date" means the date on which Betfair confirms that your application to join the Affiliate Program has been accepted;

“Confidential Information” means all information in any form relating to a party (and any Group Company in the case of Betfair) (the “Disclosing Party”) that is directly or indirectly disclosed to the other party (the “Receiving Party”), including any personal data and/or customer data, by any of the Disclosing Party’s employees, professional advisors or contractors before or after the Commencement Date;

“Customers” means all persons who open an account with Betfair for the first time either using a Code or who arrive at www.betfaircasino.com by clicking on the Links on the Internet Site;

"Good Industry Practice" means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced contractor acting in good faith;

"Group Company" means Betfair Interactive US LLC and any body corporate which is from time to time a holding company of that company, a subsidiary of that company or a subsidiary of a holding company of that company and shall include any company in which a Group Company has a shareholding of 50% or more;

“Immediate Family” means your spouse, partner, parent, child or sibling;

“Income Access” means EcomAccess, Inc. of 2020 University, Suite 2330, Montreal, Quebec, Canada H3A 2A5 or any subsidiary of that company or a subsidiary of a holding company of that company and shall include any company in which the shareholders of EcomAccess, Inc. have a shareholding of 50% or more;

"Internet Site" means your website or websites located at the web address(es) provided to Betfair in your Application or subsequently changed from time to time and notified to Betfair via the Affiliate Program Site;

"IPR" means any and all patents, trademarks, service marks, rights in designs (including semi-conductor topography design rights and circuit layout rights), get-up, trade, business or domain names, goodwill associated with the foregoing, e-mail address names, copyright including rights in computer software (in both source and object code) and rights in databases (in each case whether registered or not and any applications to register and rights to apply for registration of any of the foregoing), rights in inventions and web-formatting scripts (including HTML and XML scripts), know-how, trade secrets and other intellectual property rights which may now or in the future subsist in any part of the world including all rights of reversion and the right to sue for and recover damages for past infringements;

"Links" means hypertext links (either a banner or text link) downloaded from the Affiliate Program Site that link to the web page www.betfaircasino.com.

"Parties" means the parties to this Agreement;

“TSEL” means The Sporting Exchange Limited a company registered in England & Wales with its registered address at Waterfront, Hammersmith Embankment, Chancellors Road, Hammersmith, London W6 9HP.

1.2   In this Agreement (except where the context requires otherwise)

(a)   clause headings are included for convenience only and shall not affect the interpretation of this Agreement;

(b)   any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;

(c)   the singular includes the plural and vice versa; and

(d)   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.   LICENSE

2.1   In consideration of you making the Links available on the Internet Site and subject to the terms and conditions of this Agreement, Betfair will procure that you are granted a non-exclusive, non-transferable, terminable license to use the Links on the Internet Site solely for your internal business purposes and in accordance with such other limitations and restrictions as set out in this Agreement.

2.2   It is a condition of this Agreement that you will not do any of the following:

(a)   display the Links other than on the Internet Site;
(b)   display the Code in any offline media without Betfair’s prior written approval;
(c)   display data from the Links via any electronically accessible medium other than the Internet Site without the express written consent of Betfair;
(d)   do anything that would cause Betfair to believe that a Customer has clicked through the Links to register for an account when that is not the case, sometimes known as ‘cookie stuffing’; and/or
(e)   use the Links or Code in a way which proves or is likely to prove detrimental to Betfair.

3.   AFFILIATE’S OBLIGATIONS

3.1   You warrant and undertake that:

(a)   you have full capacity and authority to enter into this Agreement and any other documents executed by you that may be associated with this Agreement;

(b)   you will at all times conduct yourself with all due skill, care and diligence, including Good Industry Practice, and in accordance with your own established procedures and all applicable laws, enactments, orders, regulations and other similar instruments;

(c)    you will not make an Application or introduce any Customers as an Affiliate if you are in the employment of Betfair or a Group Company;

(d)    you will comply with Betfair's security guidelines and requirements as may be issued by Betfair from time to time whether in writing or otherwise;

(e)   all information you provided in your Application is correct and that you will notify Betfair promptly of any changes;

(f)   you will promptly change the address of the Internet Site on request by Betfair;

(g)   you will keep secret and not allow anyone else to use your login and password details for the Affiliate Program Site;

(h)   the Links will not be placed on any part of the Internet Site which may be aimed at people under 21 years of age;

(i)   you will not directly or indirectly offer any potential Customer or Sub-Affiliate any incentive (including payment of money or other benefit) to use the Links or Code;

(j)   you have obtained and will maintain in force all necessary registrations, authorizations, consents and licenses to enable you to fulfill your obligations under this Agreement and that you will fully comply with all applicable laws and regulations including any advertising codes;

(k)   the Internet Site will not contain any material which is defamatory, violent, pornographic, unlawful, threatening, obscene or racially, ethnically, or otherwise discriminatory or in breach of any third party rights and shall not link to any such material;

(l)   you will not seek to challenge the validity of IPR belonging to Betfair or any Group Company;

(m)   you will use all reasonable endeavors to display the Links and Code on the Internet Site without interruption for the duration of this Agreement;

(n)   you will ensure that all communications originating from you relating to Betfair make it clear that such communications are sent by and on behalf of you (and not from or on behalf of Betfair);

(o)   you will not edit, alter or amend any marketing, promotional and/or creative materials which have been produced by or on behalf of Betfair;

(p)   you will not encourage or assist any Customers to breach any terms and conditions agreed to when opening an account with Betfair or a Group Company;

(q)   you will not, and you will not encourage or assist any Customers to, engage in behavior which in Betfair’s reasonable opinion breaches the terms or abuses the spirit of a promotion, competition, tournament or offer operated by Betfair or a Group Company; and

(r)   you will not register any domain names or register keywords, search terms or other identifiers for user in any search engine, portal, sponsored advertising service or other search or referral service that incorporate terms which are identical or similar to ‘Betfair’ or any other trademarks owned by Betfair or a Group Company and you will at all times comply with such reasonable guidelines for the use of such trademarks as may be issued from time to time.

(s) you have completed and filed with the DGE, at your own expense, all required forms and documents to be a Vendor Registrant for Internet gaming and DGE has not denied your request to be a Vendor Registrant.

3.2   You agree that:

(a)   neither you nor your Immediate Family may become Customers through your referral links and you shall not be entitled to any payment under this Agreement in relation to such persons; and

(b)   Betfair may monitor the Internet Site to ensure you are complying with the terms of this Agreement and you will provide Betfair with all data and information – including passwords – to enable Betfair to perform such monitoring at no cost to Betfair.

3.3   You represent and warrant that:

(a)   you are not and have never been engaged in any activity, practice or conduct which would constitute a felony or lesser criminal offense involving fraud, dishonesty or a lack of moral turpitude;

(b)   you have not been the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body or any customer regarding any felony or lesser criminal offense involving fraud, dishonesty or a lack of moral turpitude , and no such investigation, inquiry or proceedings have been threatened or are pending and there are no circumstances likely to give rise to any such investigation, inquiry or proceedings; and

(c)   you will adhere to the requirements and principles of all applicable laws, rules and regulations and inform Betfair of any suspected breaches that may have an impact upon Betfair.

4.   PAYMENTS IN RESPECT OF THE LINKS AND CUSTOMERS

4.1   In consideration of the continued display of the Links and Code and introducing Customers and subject to clause 15 of this Agreement, you will be entitled to payment in accordance with the terms set forth on Exhibit A hereto.

4.2   You will be able to indicate your initial preferred payment option (“Commission Option”) in your Application. The chosen option will be confirmed by Betfair if Betfair accepts your Application.

4.3   You will be able to review statements showing the number of Customers introduced by you via the Links or using the Code and Affiliate Payments, if any, which have accrued over the course of the calendar month, using the Affiliate Program Site.
4.4   All payments made to you by Betfair under this Agreement are

(a)   will be paid in US Dollars (USD); and
(b)   will not be paid to any Betfair account.

You acknowledge and agree that you are solely responsible for payment of any and all taxes arising from payments made under this Agreement.

4.5 In the event that a Customer:

(a)   has been introduced in breach of any term of this Agreement;
(b)   makes an initial deposit which is subject to a chargeback or which is reversed for any other reason;
(c)   uses your Refer and Earn code or that of a member of your Immediate Family (or the code relating to any similar or replacement Betfair customer referral scheme) when signing up for an account;
(d)   opens an account using a promotional code which you have promoted and which is either expired or has not been approved by Betfair for you to promote;
(e)   fails any identity or credit checks carried out by Betfair or on its behalf;
(f)   is located in a territory from which the Betfair and its Group Companies does not accept customers;
(g)   is suspected by Betfair of (i) acting in breach of the terms and conditions governing his/her account, betting/gaming transactions, and/or any marketing promotion; or (ii) any fraudulent or dishonest activity;
(h)   has their account closed within 25 Business Days of the account opening;
(i)   becomes known to Betfair as a person who does not properly fall within the definition of a “Customer”, being a person who had already opened an account with Betfair or a Group Company at the time he/she opened an account by using a Code or by clicking on the Links on the Internet Site;

(j) accessed or attempted to access betfaircasino.com while not physically present in New Jersey; or

(k) is under the age of 21 or is not a United States citizen or permanent resident

you will not be entitled to receive any Affiliate Payments, if applicable, in respect of such Customer. In the event that any such payment has already been made to you in respect of such Customer you will promptly repay the amount paid on receiving notice from Betfair. Betfair will be entitled, but not obliged, to set-off any amount owed as a result against future Affiliate Payments.

5. SUBCONTRACTORS/SUB-AFFILIATES

You may not utilize or engage subcontractors or sub-affiliates to carry out any activities related to the Affiliate Program or to participate in any of the rights and/or obligations under this Agreement.

6. INVESTIGATIONS & GOVERNMENTAL APPROVALS

6.1 As a holder of a privileged gaming license, Betfair is required to adhere to strict laws and regulations regarding vendor and other business relationships. Whether or not there are governmental authority requirements that you be licensed, authorized or otherwise approved to perform hereunder, Betfair may require you to complete and submit to Betfair a Business Information Form and undergo Betfair background investigation process to comply with Betfair compliance policies (“Investigation”). Betfair will determine, in its sole discretion, whether to comply with the Investigation requirement. Should you refuse said Investigation, this Agreement will terminate immediately, without penalty to either party. In the event an Investigation is conducted, it will be at the sole expense of Betfair.

6.2 The Agreement is subject to all applicable laws, rules and regulations of the New Jersey Casino Control Act, N.J.S.A. 5: 12-1 et. seq. (the "Act"). You acknowledge that Betfair, Trump Plaza Associates, LLC d/b/a Trump Plaza Hotel and Casino (“TPC”) and certain of their affiliates are applicants for licensure by, and subject to the authority of, the New Jersey Casino Control Commission and New Jersey Division of Gaming Enforcement ("Gaming Regulators"). This Agreement may be disapproved by the Division of Gaming Enforcement (“DGE”).

6.3 You shall comply, and shall ensure that all of its employees, principals and agents comply, with all applicable requirements of the Act, including, but not limited to, any licensing, qualification, vendor registration, women's business enterprise, minority business enterprise or equal employment opportunity requirements imposed thereunder.

6.4 Each party shall perform its respective obligations in compliance with all applicable laws. Without limiting the foregoing, you agree to comply with the Vendor Registration process and to: (i) timely provide the information for Betfair and/or TPC to complete the Vendor Registration Form, and (ii) timely file with the Gaming Regulator a Vendor Registration Supplemental Form and any other forms or reports and maintain all licenses required to be filed or maintained pursuant to the Act or to any rules, regulations, resolutions or orders promulgated by the Gaming Regulator, as the same may be modified, amended or supplemented from time to time. In addition, Vendor agrees to provide Betfair and/or TPC with any information which it, in its sole and absolute discretion, deems necessary to (i) enable Betfair and/or TPC to file any required reports, (ii) maintain any licenses of Betfair and/or TPC required to be filed or maintained pursuant to the Act, or (iii) comply with any regulatory compliance policy (as now in effect or hereafter adopted and as amended from time to time) and with the request of any Gaming Regulator. Vendor agrees to comply with all laws, codes and regulations, federal, state or local, the effect of which is to prevent discrimination and foster that which is commonly referred to as affirmative action programs.

6.5 If any Gaming Regulator requires approval of this Agreement or its terms, it is understood by and between the Parties that this approval shall be obtained prior to the performance of any part of this Agreement. If the Gaming Regulator disapproves the Agreement or its terms and conditions or refuses to issue to you any required licenses, permits or authorizations for you to perform hereunder, Betfair shall have the right to immediately terminate the Agreement without further liability or financial obligation to you if required by such Gaming Regulator. It is understood and agreed by and between the Parties that if, at any time, either prior to or subsequent to the initiation of this Agreement, any Gaming Regulator renders a final determination disapproving the terms and conditions of this Agreement or denying the application of you, your agents, and/or assignee(s), and/or its transferee(s), for any applicable license, or if Betfair makes a good faith determination upon Investigation (as detailed in herein) that you are unsuitable, then this Agreement shall be deemed terminated as of the date of such disapproval, denial or determination as though such date were the date originally fixed herein for termination of this Agreement. In the event of such termination, Betfair shall not be deemed in default under any provision of this Agreement.

6.6 Vendor acknowledges that Betfair and TPC each conduct a business that will be subject to, and exists because of, privileged licenses issued by governmental authorities, including without limitation, a license to be issued pursuant to the Act. Betfair and TPC agree that if either determines, in its sole and exclusive judgment, (i) that you or any of your officers, directors, employees, agents, designees or representatives is or might be engaged in, or is or might about to be engaged in, any activity, or is or has been involved in any relationship which does or could jeopardize Betfair, TPC, or their affiliates business or licenses that it holds or will be obtaining; (ii) that the existence of this Agreement jeopardizes or may jeopardize Betfair’s, TPC’s or their affiliates business or licenses; (iii) that you have not cooperated with the regulatory agencies' requests; or (iii) if any such license is threatened to be or is denied, curtailed, suspended or revoked as a result of Betfair's relationship with you or its entering into this Agreement; then, in any of such events, Betfair shall be entitled to immediately terminate this Agreement upon written notice to Vendor without liability to Revel.

7.         DISCLAIMER

Betfair makes no representation that any of its services, or those provided by any Group Company, will be uninterrupted or error free and, to the fullest extent permissible by law, it will not be liable for the consequences of any such interruptions or errors.

8.   INTELLECTUAL PROPERTY RIGHTS

8.1   All IPR in the Links belongs to TSEL. All IPR in any third party materials shall belong to the third party owner thereof.

8.2   Nothing in this Agreement purports to grant a license, provide any warranty or offer any indemnity in respect of any data that is not owned by TSEL, Betfair or a Group Company. In the event that you require access to any such data, you agree that you will give Betfair an opportunity to secure rights to the same and (if it becomes necessary to do so) you will pay the costs of securing a license to the same from the relevant third party data owner or either party may terminate this Agreement immediately.

8.3   Each party shall immediately notify the other party if any claim or demand is made or action brought against it for any infringement or alleged infringement of any IPR which may affect the supply or use of the Links.

9.   DATA PROTECTION AND SECURITY

9.1   You acknowledge that the security of Betfair's data and its systems is fundamental to the business of Betfair and its Group Companies, and if you become aware of a breach or potential breach of security relating to the Links, you will immediately notify Betfair of such breach or potential breach and use your best endeavors to ensure that any potential breach does not become an actual breach and/or to remedy any actual breach and its consequences.

10.   CONFIDENTIALITY AND ANNOUNCEMENTS

10.1   During the term of this Agreement and after termination or expiration of this Agreement, each party shall not use any Confidential Information belonging to the other party for any purpose other than in pursuit of its rights and obligations under this Agreement nor disclose any of the other party’s Confidential Information to any person except with the prior written consent of the other party and shall follow Good Industry Practice to prevent the use or disclosure of the Confidential Information. This obligation will not apply to any Confidential Information that:

(a)   has come into the public domain other than by breach of this Agreement, or any other duty of confidence;

(b)   is obtained from a third party without breach of this clause or any other duty of confidence;

(c)   has been disclosed to a party by a third party, other than a company within its Group not in breach of any duty of confidence;

(d)   is trivial or obvious;

(e)   is required to be disclosed by law or other regulatory requirement provided notice is given to the other party prior to disclosure where legal to do so; or

(f)   is in the possession of the Party at the time the Confidential Information was disclosed to it by any other party or which is independently developed without reference to any Confidential Information of the other party.

10.2   Each party may disclose any Confidential Information to its directors, other officers, employees, advisors and sub-contractors and to those of any company in its Group to the extent that such disclosure is reasonably necessary in order to comply with its obligations under this Agreement and provided that they are subject to equivalent confidentiality obligations as those set out in this clause.

10.3   On termination of this Agreement each party shall (on request) deliver up to the other party or destroy all copies of Confidential Information in its possession, and (if so requested) shall use all reasonable endeavors to destroy all copies of Confidential Information stored electronically except to the extent that it is obliged to retain such information under any law, regulation or license condition applicable to that party or any company in its Group.

10.4   The parties shall together determine the content of any communications concerning the relationship between the parties. Such communications shall be issued at a time and in a manner agreed by the parties.

11.   INDEMNITY

You will indemnify and hold harmless Betfair, its Group Companies, TPC and Income Access from and against any and all losses, demands, claims, damages, costs, expenses (including consequential losses and loss of profit, reasonable legal costs and expenses and taxes thereon if applicable) and liabilities suffered or incurred, directly or indirectly, by Betfair, its Group Companies, TPC or Income Access in consequence of any breach by you of your obligations under this Agreement.

12.   LIMITATION OF LIABILITY

12.1   Save as provided by statute and to the fullest extent permitted by law, the following provisions set out the entire liability of Betfair, its Group Companies, TPC and Income Access (including any liability for the acts and omissions of its employees, agents and sub-contractors) to you whether in contract, tort, statute, equity or otherwise:

(a)   you acknowledge and agree that (except as expressly provided in this Agreement) the Links, Affiliate Program Site and all Betfair and its Group Companies products are provided "AS IS" without warranties of any kind (whether express or implied);

(b)   all conditions, warranties, terms and undertakings (whether express or implied), statutory or otherwise relating to the delivery, performance, quality, accuracy, uninterrupted use, fitness for purpose, occurrence or reliability of the Links or the Affiliate Program Site are hereby excluded; and

(c)   neither Betfair, its Group Companies, TPC nor Income Access will be liable to you for any losses relating to your use of the Links or the Affiliate Program Site or any breach of this Agreement by Betfair including loss of profits (whether direct or indirect), revenues, goodwill, anticipated savings, data or any type of special, indirect, consequential or economic loss (including loss or damage suffered by you as a result of an action brought by a third party) even if such loss was reasonably foreseeable or Betfair, its Group Companies, TPC or Income Access had been advised of the possibility of you incurring such loss.

12.2   No exclusion or limitation set out in this Agreement shall apply in the case of:

(a)   fraud or fraudulent misrepresentation; and/or

(b)   death or personal injury resulting from the negligence of any party or any of its employees, agents or sub-contractors.

12.3   The time limit within which you must commence proceedings against Betfair to recover on any claim shall be two (2) years from the date you become aware or should reasonably have become aware of the relevant breach that would form the subject of the claim.

13.   FORCE MAJEURE

13.1   Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control, and in such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 15 Business Days, the party not affected may terminate this Agreement immediately by giving notice to other party.

14.   TERM AND TERMINATION

14.1   This Agreement shall commence on the Commencement Date and, subject to clause 14.2, shall continue until either party serves 20 Business Days’ written notice of an intention to terminate.

14.2   Betfair may terminate this Agreement immediately pursuant to clause 6 of this Agreement or in the event that:

(a)   the Affiliate breaches any of the terms of this Agreement which, in the case of a breach capable of remedy, has not been remedied within five (5) Business Days of receipt of a notice from Betfair specifying the breach and requiring its remedy;

(b)   the Affiliate is subject to a voluntary or involuntary bankruptcy petition or order;

(c)   the Affiliate ceases or threatens to cease carrying on its business;

(d)   the Affiliate, in Betfair’s opinion, is in breach of the terms of any applicable advertising rules, codes or regulations;

(e)   Betfair ceases to accept Customers from or to advertise in any jurisdiction which is targeted by the Internet Site;

(f)    the Affiliate is in the employment of Betfair or any Group Company at any time after the Commencement Date;

(g)   the Affiliate fails to change the web address of the Internet Site on Betfair’s request in accordance with clause 3.1(e); or

(h)   Betfair determines that the Internet Site is generating fraudulent traffic or that the Affiliate is engaged in collusion with any other person. Collusion in this context means an attempt by an Affiliate, a group of Affiliates, or a group which includes individuals who are not Affiliates under the Affiliate Program to create fraudulent income with a coordinated effort.

15.   CONSEQUENCES OF TERMINATION

15.1   Except as set out in clause 15.3 below, termination of this Agreement shall be without prejudice to any rights or obligations which shall have accrued prior to termination.

15.2   On termination of this Agreement all licenses granted to you pursuant to this Agreement will immediately terminate.

15.3   If Betfair terminates this Agreement under clause 14.2 (inclusive of clause 6) or you terminate this Agreement under clause 14.1 (except when you do so following a material variation to the terms of the Agreement under clause 19.3) you will not be entitled to receive any further payments pursuant to clauses 4 and 5 following such termination.

15.4   Clauses 10, 11, 12 and 23 together with any other clauses the survival of which is necessary for the interpretation or enforcement of this Agreement will survive termination of this Agreement for whatever reason.

16.   ASSIGNMENT AND SUB-CONTRACTING

16.1   You will not assign, novate, declare a trust of or otherwise dispose of this Agreement, or any part thereof, without the prior written approval of Betfair.

16.2   Betfair may assign or sub-contract any of its rights and obligations under this Agreement to a Group Company at any time without giving notice to you.

17.   ENTIRE AGREEMENT

This Agreement constitutes the entire and only Agreement between the parties with regards to its subject matter and the parties confirm that they have not been induced to enter into this Agreement in reliance upon, nor has it been given, any warranty (including in particular any warranty as to merchantability, fitness for purpose or uninterrupted functionality), representation, statement, assurance, covenant, agreement, undertaking, indemnity or commitment of any nature whatsoever other than as are expressly set out in this Agreement and, to the extent that it has been, it unconditionally and irrevocably waives any claims, rights or remedies which it might otherwise have had in relation thereto.

18.   NO AGENCY OR PARTNERSHIP

18.1   Nothing in this Agreement and no action taken by the parties pursuant to this Agreement shall constitute, or be deemed to constitute:

(a)   the parties as a partnership, association, joint venture or other co-operative entity; or
(b)   any party the agent of another party, nor authorize any party to make or enter into any commitments for or on behalf of any other party.

19.   WAIVER & VARIATIONS

19.1   No breach of any provision of this Agreement shall be waived or discharged except with the express written consent of the parties.

19.2   No failure or delay by a party to exercise any of its rights under this Agreement shall operate as a waiver thereof and no single or partial exercise of any such right shall prevent any other or further exercise of that or any other right.

19.3   Betfair may modify all or any part of this Agreement at any time. Betfair will give you five (5) Business Days notice of any such changes by email and/or by changing these terms and conditions on its Website. If you do not agree to the changes you may serve notice to terminate this Agreement under clause 14.1 before the changes take effect and such changes will not apply for the duration of the notice period set out in clause 14.1. If you fail to terminate this Agreement and continue to participate in the Affiliate Program you will be deemed to have accepted the changes made under this clause. The latest modified date of these terms and conditions will be displayed at the bottom of this Agreement.

20.   NOTICES

20.1   Notices and communications from Betfair will be made by e-mail to the address provided by you on your application to join the Affiliate Program.

20.2   You should send all notices and communications to the following email address njaffiliates@betfair.com or such other e-mail address as notified to you via the Affiliate Program Site from time to time.

20.3   Notices and communications will be deemed received 4 hours after being sent provided that if such notice would then be deemed to have been received outside the hours of 09:00 to 17:00 (EST) it will be deemed to have been received at 09:00 on the next Business Day.

21.   THIRD PARTY RIGHTS

21.1   Except for any Group Company, TPC and Income Access no third party may enforce any rights granted to it under this Agreement.

21.2   Except with regard to the amendment of clauses 10 and 11 the rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement is not subject to the consent of any person that is not a party to this Agreement.

22.   FURTHER ASSURANCE

Each party shall, upon request from the other, do and execute, or procure that there shall be done and executed, all such documents, deeds, matters, acts or things as that other may at any time require to give it the full benefit of this Agreement.

23.   GOVERNING LAW AND JURISDICTION

23.1   This Agreement (and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this Agreement or its formation) shall be governed by and construed in accordance with the laws of the State of New Jersey and you submit to the jurisdiction and venue of the federal and state courts of New Jersey and waive the right to have disputes arising out of the subject matter hereof adjudicated in any other forum.

LAST AMENDED DATE: 31 December 2013

Betfaircasino.com Affiliate Program Terms and Conditions (Ancillary CSIE)

This affiliate agreement (the “Agreement”) sets out the complete terms and conditions between Betfair Interactive US LLC, of 6701 Center Drive West, Suite 800, Los Angeles, CA 90045 ("Betfair"), and you, regarding your application to participate as an affiliate (an "Affiliate") in the Betfair affiliate program (the “Affiliate Program”).

It is important that you read and understand this Agreement. By completing an application to join the Affiliate Program you are – subject to Betfair’s approval of your application – agreeing to the terms and conditions of this Agreement. If you do not agree to the following terms and conditions (or are not authorized to do so) you should discontinue your application.

This Agreement replaces all previous terms and conditions relating to the Affiliate Program or any previous affiliate program offered by Betfair. You agree that this Agreement supersedes all previous agreements you have had with Betfair or any Group Company (as defined below).

1. DEFINITIONS AND INTERPRETATION

1.1 “Affiliate Payment” means any payments made to an Affiliate in accordance with the terms and conditions of this Affiliate Program;

“Affiliate Program Site” means the website at affiliates.betfaircasino.com;

“Application” means your application to join the Affiliate Program via the Affiliate Program Site;

"Business Day" means any day (excluding Saturdays and Sundays) which is not an official public holiday in the State of New Jersey;

“Code” means the unique code that may be used by Customers when registering for an account with Betfair which is made available to you via the Affiliate Program Site;

"Commencement Date" means the date on which Betfair confirms that your application to join the Affiliate Program has been accepted;

“Confidential Information” means all information in any form relating to a party (and any Group Company in the case of Betfair) (the “Disclosing Party”) that is directly or indirectly disclosed to the other party (the “Receiving Party”), including any personal data and/or customer data, by any of the Disclosing Party’s employees, professional advisors or contractors before or after the Commencement Date;

“Customers” means all persons who open an account with Betfair for the first time either using a Code or who arrive at www.betfaircasino.com by clicking on the Links on the Internet Site;

"Good Industry Practice" means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced contractor acting in good faith;

"Group Company" means Betfair Interactive US LLC and any body corporate which is from time to time a holding company of that company, a subsidiary of that company or a subsidiary of a holding company of that company and shall include any company in which a Group Company has a shareholding of 50% or more;

“Immediate Family” means your spouse, partner, parent, child or sibling;

"Internet Site" means your website or websites located at the web address(es) provided to Betfair in your Application or subsequently changed from time to time and notified to Betfair via the Affiliate Program Site;

"IPR" means any and all patents, trademarks, service marks, rights in designs (including semi-conductor topography design rights and circuit layout rights), get-up, trade, business or domain names, goodwill associated with the foregoing, e-mail address names, copyright including rights in computer software (in both source and object code) and rights in databases (in each case whether registered or not and any applications to register and rights to apply for registration of any of the foregoing), rights in inventions and web-formatting scripts (including HTML and XML scripts), know-how, trade secrets and other intellectual property rights which may now or in the future subsist in any part of the world including all rights of reversion and the right to sue for and recover damages for past infringements;

"Links" means hypertext links (either a banner or text link) downloaded from the Affiliate Program Site that link to the web page www.betfaircasino.com.

"Net Casino Winnings" means total winnings from Customers (wagers received less winnings paid out) generated by the casino product accessible via the www.betfaircasino.com website or any downloadable client less any payments to third party software providers, the cost of any promotional offers (including any sign up bonuses), adjustments made for any credit card charge-backs or any other reversal of a payment, fraudulent or otherwise voided or modified transactions, bad debt, and liability to any betting duty or licensing fees for data or other duty, tax or expense that may arise;

"Net Poker Rake" means total revenue generated from Customers by the person to person poker product accessible via the www.betfaircasino.com website or any downloadable client less any payments to third party software providers, the cost of any promotional offers (including any sign up bonuses), adjustments made for any credit card charge-backs or any other reversal of a payment, fraudulent or otherwise voided or modified transactions, bad debt and liability to any betting duty or licensing fees for data or other duty, tax or expense that may arise;

"Net Revenue" means the total of Net Poker Rake and Net Casino Winnings generated by Customers;

"Parties" means the parties to this Agreement;

“Revenue Share” means the revenue share payments described in Clause 4.3; and

“TSEL” means The Sporting Exchange Limited a company registered in England & Wales with its registered address at Waterfront, Hammersmith Embankment, Chancellors Road, Hammersmith, London W6 9HP.

1.2   In this Agreement (except where the context requires otherwise)

(a)   clause headings are included for convenience only and shall not affect the interpretation of this Agreement;

(b)   any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;

(c)   the singular includes the plural and vice versa; and

(d)   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.   LICENSE

2.1   In consideration of you making the Links available on the Internet Site and subject to the terms and conditions of this Agreement, Betfair will procure that you are granted a non-exclusive, non-transferable, terminable license to use the Links on the Internet Site solely for your internal business purposes and in accordance with such other limitations and restrictions as set out in this Agreement.

2.2   It is a condition of this Agreement that you will not do any of the following:

(a)   display the Links other than on the Internet Site;
(b)   display the Code in any offline media without Betfair’s prior written approval;
(c)   display data from the Links via any electronically accessible medium other than the Internet Site without the express written consent of Betfair;
(d)   do anything that would cause Betfair to believe that a Customer has clicked through the Links to register for an account when that is not the case, sometimes known as ‘cookie stuffing’; and/or
(e)   use the Links or Code in a way which proves or is likely to prove detrimental to Betfair.

3.   AFFILIATE’S OBLIGATIONS

3.1   You warrant and undertake that:

(a)   you have full capacity and authority to enter into this Agreement and any other documents executed by you that may be associated with this Agreement;

(b)   you will at all times conduct yourself with all due skill, care and diligence, including Good Industry Practice, and in accordance with your own established procedures and all applicable laws, enactments, orders, regulations and other similar instruments;

(c)    you will not make an Application or introduce any Customers as an Affiliate if you are in the employment of Betfair or a Group Company;

(d)    you will comply with Betfair's security guidelines and requirements as may be issued by Betfair from time to time whether in writing or otherwise;

(e)   all information you provided in your Application is correct and that you will notify Betfair promptly of any changes;

(f)   you will promptly change the address of the Internet Site on request by Betfair;

(g)   you will keep secret and not allow anyone else to use your login and password details for the Affiliate Program Site;

(h)   the Links will not be placed on any part of the Internet Site which may be aimed at people under 21 years of age;

(i)   you will not directly or indirectly offer any potential Customer or Sub-Affiliate any incentive (including payment of money or other benefit) to use the Links or Code;

(j)   you have obtained and will maintain in force all necessary registrations, authorizations, consents and licenses to enable you to fulfill your obligations under this Agreement and that you will fully comply with all applicable laws and regulations including any advertising codes;

(k)   the Internet Site will not contain any material which is defamatory, violent, pornographic, unlawful, threatening, obscene or racially, ethnically, or otherwise discriminatory or in breach of any third party rights and shall not link to any such material;

(l)   you will not seek to challenge the validity of IPR belonging to Betfair or any Group Company;

(m)   you will use all reasonable endeavors to display the Links and Code on the Internet Site without interruption for the duration of this Agreement;

(n)   you will ensure that all communications originating from you relating to Betfair make it clear that such communications are sent by and on behalf of you (and not from or on behalf of Betfair);

(o)   you will not edit, alter or amend any marketing, promotional and/or creative materials which have been produced by or on behalf of Betfair;

(p)   you will not encourage or assist any Customers to breach any terms and conditions agreed to when opening an account with Betfair or a Group Company;

(q)   you will not, and you will not encourage or assist any Customers to, engage in behavior which in Betfair’s reasonable opinion breaches the terms or abuses the spirit of a promotion, competition, tournament or offer operated by Betfair or a Group Company; and

(r)   you will not register any domain names or register keywords, search terms or other identifiers for user in any search engine, portal, sponsored advertising service or other search or referral service that incorporate terms which are identical or similar to ‘Betfair’ or any other trademarks owned by Betfair or a Group Company and you will at all times comply with such reasonable guidelines for the use of such trademarks as may be issued from time to time.

(s) you have completed and filed with the DGE, at your own expense, all required forms and documents to be an Ancillary Casino Service Industry Enterprise License (“Ancillary CSIE License’) for Internet gaming and DGE has not denied your application to be an Ancillary CSIE License holder..

3.2   You agree that:

(a)   neither you nor your Immediate Family may become Customers through your referral links and you shall not be entitled to any payment under this Agreement in relation to such persons; and

(b)   Betfair may monitor the Internet Site to ensure you are complying with the terms of this Agreement and you will provide Betfair with all data and information – including passwords – to enable Betfair to perform such monitoring at no cost to Betfair.

3.3   You represent and warrant that:

(a)   you are not and have never been engaged in any activity, practice or conduct which would constitute a felony or lesser criminal offense involving fraud, dishonesty or a lack of moral turpitude;

(b)   you have not been the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body or any customer regarding any felony or lesser criminal offense involving fraud, dishonesty or a lack of moral turpitude , and no such investigation, inquiry or proceedings have been threatened or are pending and there are no circumstances likely to give rise to any such investigation, inquiry or proceedings; and

(c)   you will adhere to the requirements and principles of all applicable laws, rules and regulations and inform Betfair of any suspected breaches that may have an impact upon Betfair.

4.   PAYMENTS IN RESPECT OF THE LINKS AND CUSTOMERS

4.1   In consideration of the continued display of the Links and Code and introducing Customers and subject to clause 15 of this Agreement, you will be entitled to payment in accordance with the terms set forth on Exhibit A hereto.

4.2   You will be able to indicate your initial preferred payment option (“Commission Option”) in your Application. The chosen option will be confirmed by Betfair if Betfair accepts your Application.

4.3   You will be able to review statements showing the number of Customers introduced by you via the Links or using the Code and Affiliate Payments, if any, which have accrued over the course of the calendar month, using the Affiliate Program Site.
4.4   All payments made to you by Betfair under this Agreement are

(a)   will be paid in US Dollars (USD); and
(b)   will not be paid to any Betfair account.

You acknowledge and agree that you are solely responsible for payment of any and all taxes arising from payments made under this Agreement.

(j) accessed or attempted to access betfaircasino.com while not physically present in New Jersey; or

6. INVESTIGATIONS & GOVERNMENTAL APPROVALS

6.4 Each party shall perform its respective obligations in compliance with all applicable laws. Without limiting the foregoing, you agree to comply with the Ancillary CSIE License process and to: (i) timely provide the information for Betfair and/or TPC to complete the Ancillary CSIE License process, and (ii) timely file with the Gaming Regulator an Ancillary CSIE License application and any other forms or reports and maintain all licenses required to be filed or maintained pursuant to the Act or to any rules, regulations, resolutions or orders promulgated by the Gaming Regulator, as the same may be modified, amended or supplemented from time to time. In addition, Vendor agrees to provide Betfair and/or TPC with any information which it, in its sole and absolute discretion, deems necessary to (i) enable Betfair and/or TPC to file any required reports, (ii) maintain any licenses of Betfair and/or TPC required to be filed or maintained pursuant to the Act, or (iii) comply with any regulatory compliance policy (as now in effect or hereafter adopted and as amended from time to time) and with the request of any Gaming Regulator. Vendor agrees to comply with all laws, codes and regulations, federal, state or local, the effect of which is to prevent discrimination and foster that which is commonly referred to as affirmative action programs.

LAST AMENDED DATE: 31 December 2013