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;
“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.
"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.
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 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.
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
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