YoGroup Affiliates Terms and Conditions
Please read these Affiliate Terms carefully before applying to become an Affiliate, as they set out our and your legal rights and obligations in relation to our Affiliate Program. You will be asked to agree to these Affiliate Terms before becoming an Affiliate.
If you have any questions or comments about the YoGroup Affiliates Program, please contact us by writing to our Affiliate Team at: email@example.com
- In these Conditions, the following definitions apply:
Affiliate: the person, firm or company supplying the Affiliate Services.
Affiliate ID: an account dedicated to the Affiliate on the Software.
Affiliate Services: the advertising and promotional services performed by the Affiliate under this Contract.
Applicable Laws: any and all relevant: (i) supranational, national, regional, local or municipal laws, by-laws, regulations, directives, decisions, rulings, policies, enactments or instruments, (ii) industry codes of practice (including those for Socially Responsible Advertising) and/or (iii) codes of practice, policies and/or guidance of any relevant regulator related to gambling, advertising and promotions in Spain; in each case which may from time to time be in force and relevant to any rights and obligations under this Contract.
Business Day: a day other than a Saturday, Sunday or a public holiday in Floriana, Malta.
Commencement Date: has the meaning set out in clause 2.2.
Commission: the payments due to the Affiliate from the Company under this Contract (which may comprise a percentage share of Net Revenue or a CPA Payment, or any combination of the same) as detailed by the Company on the Affiliate’s account page accessible through the Software or otherwise agreed between the parties in writing.
Company: UPPERLINE MARKETING LIMITED, a company registered in England & Wales, (VAT no. GB258051507)
Company Brands: all the brands of any Website.
Company Brand Keywords: a branded keyword, or a branded search which includes the names of the Company and/or its business or brand.
Company Materials: has the meaning given in clause 5.2 and shall include any other material given to the Affiliate by the Company from time to time.
Conditions: these terms and conditions as amended from time in accordance with clause 2.5.
Confidential Information: any and all information whether recorded or supplied in permanent or transitory form relating to the business of either party that would be regarded as confidential by a reasonable business person and which has been, is now or is at any time after the date of the contract disclosed to or made available to the other which is of a technical, commercial or financial nature, including accounts, business or development plans, financial projection data, technical information (including but not limited to Third Party Content), licensing methods, know-how, formulae, processes, intellectual property rights, client/customer details or lists, actual or prospective sales contacts, photographs, drawings, specifications, software programs, samples and any information which relates to either party.
Contract: the agreement between the Company and the Affiliate which expressly incorporates these Conditions.
CPA Payment: a one-off fixed payment to the Affiliate in respect of each new Player that meets the criteria agreed between the parties, for example a first-time deposit.
Intellectual Property Rights: all patents, copyright and related rights, trademarks, service marks, trade, logos, business and domain names, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database right, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
DGOJ: Dirección General de Ordenación del Juego (Spanish on-line gambling regulator)
LCCP: the Conditions of the Licenses granted by the DGOJ to the Company to operate on-line gambling in Spain.
Net Loss: a negative Net Revenue figure.
Net Revenue: the amount wagered by a Player through the Website less a) Player winnings; b) charges levied by electronic payment organisations; (c) bad debts; (d) monies attributed to fraud; (e) returned stakes and void bets; (f) transactions which are reversed by instruction from the card-holder's bank (commonly referred to as “Chargebacks”); (g) the cost of credits, promotional plays or reward points provided to Players; (h) monies paid out in the form of mandatory betting duties (including remote gaming duty) or taxes or other mandatory statutory deductions or mandatory payments to licensing authorities; (i) amounts paid to platform operators; and (j) amounts charged for third party content featured on the Website(s).
Permitted Territories: Spain.
Player(s): any person who registers an account with the Company for a Website and subsequently wagers money having been referred to the Website by the Affiliate pursuant to the Affiliate Services but who is not an existing or former customer of the Company or any other company within the Rank Group of companies
Promotional Rights: mean the non-exclusive, non-transferable right and licence to advertise market and promote Company Brands and/or the Affiliate Program via one or more websites approved by The Company in accordance with this Contract, including the right to use any Company Materials solely for the purpose of such advertisement, marketing and promotion as set out in the Software.
Restricted Territories: any territory that is not a Permitted Territory.
Software: the affiliate management software from time to time utilised by the Company.
Super Affiliate or affiliate management party: third party that, acting on behalf of the Company, manages the affiliation channel of the website(s).
Website(s): means any website owned, hosted, operated and/or controlled by the Company including any tablet, mobile or app versions and any ‘white label’ website.
- Any reference to a specific Applicable Law shall be construed as referring to that Applicable Law as may be amended, consolidated or replaced from time to time.
- Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative only and shall not limit the sense of the words preceding those terms.
- The clause headings and sub-headings are for guidance and clarity only and shall not be binding on the parties in the event of any conflict with the provisions of the clauses.
- The Contract
- By submitting an application to become an affiliate of the Company, the Affiliate makes an offer to the Company to be bound by this Contract.
- The offer is deemed to be accepted of the earlier of:
- the Company or the Super Affiliate expressly informing the Affiliate in writing or on the telephone that it has been accepted; or
- the Company or the Super Affiliate issuing an Affiliate ID to the Affiliate, at which point and on which date the Contract shall come into existence (the “Commencement Date”).
- The Company, on its own or via the Super Affiliate, reserves the right to refuse any application at its discretion and without giving reasons.
- Upon acceptance of the application, the Company hereby grant the Affiliate Promotion Rights subject to and in accordance with this Contract. All other rights and licences not expressly granted to you are reserved by us.
- These Conditions apply to the Contract to the exclusion of any other terms that the Affiliate seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- These Conditions may be amended by the Company at any time subject to providing the Affiliate with not less than five Business Days’ notice. The amended Conditions shall be deemed to form a new Contract between the Affiliate and the Company on the expiry of the notice period and will supersede all previous terms and conditions. The Affiliate is deemed to have accepted the new Conditions if they continue to provide the Affiliate Services.
- Responsible Gambling and Applicable Laws
- IT IS OF THE UPMOST IMPORTANCE TO THE COMPANY THAT THE AFFILIATE SERVICES ARE CARRIED OUT RESPONSIBLY AND IN COMPLIANCE WITH ALL APPLICABLE LAWS.
- THE AFFILIATE THEREFORE AGREES TO CARRY OUT THE AFFILIATE SERVICES IN A SOCIALLY RESPONSIBLE MANNER AND IN STRICT COMPLIANCE WITH ALL APPLICABLE LAWS, PARTICULARLY ALL REFERRED TO REQUIREMENTS ESTABLISHED FOR ADVERTISING AND PROMOTION BY SPANISH ROYAL DECREE 958/2020, of 3 November, on commercial communications on gambling activities.
- WITHOUT LIMITING THE ABOVE OBLIGATIONS IN ANY WAY, THE AFFILIATE SHALL:
- COMPLY WITH THE LCCP AS IF IT WERE A LICENSEE OF THE LICENSES GRANTED BY THE DGOJ TO THE COMPANY AND ACT IN A MANNER THAT FULFILS THE LICENSING OBJECTIVES;
- ENSURE THAT IT HAS THE APPROPRIATE, FREELY GIVEN, SPECIFIC, INFORMED AND UNAMBIGUOUS CONSENTS REQUIRED TO PROMOTE THE AFFILIATE SERVICES TO ANY INDIVIDUAL AND TO PROVIDE AT THE AFFILIATES’ COST COPIES OF ANY SUCH CONSENTS THAT THE COMPANY MAY REQUEST FROM TIME TO TIME;
- NOT SEND ANY FORM OF SPAM COMMUNICATIONS INCLUDING BUT NOT LIMITED TO EMAILS, TEXT MESSAGES AND WHATSAPP MESSAGES WHETHER ELECTRONIC OR OTHERWISE;
- NOT ACTIVELY TARGET PERSONS UNDER THE AGE OF 18. IN THIS REGARD, THE AFFILIATE GUARANTEES THAT ANY MEDIA, CHANNEL OR APP THAT USES TO PROMOTE THE AFFILIATE SERVICES WILL COUNT WITH THE MECHANISMS AND TOOLS TO AVOID ACCESS TO UNDER AGED, REFERRED TO IN SPANISH ROYAL DECREE 958/2020, OF 3 NOVEMBER, OF COMMERCIAL COMMUNICATIONS OF GAMBLING ACTIVITIES.
- NOT ACTIVELY TARGET PERSONS LOCATED OUTSIDE THE JURISDICTIONS PERMITTED ON THE COMPANY’S WEBSITE;
- NOT PROMOTE THE AFFILIATE SERVICES TO ANY INDIVIDUAL ON ANY SUPPRESSION LIST SUPPLIED BY THE COMPANY FROM TIME TO TIME;
- NOT OFFER THE AFFILIATE SERVICES ON WEBSITES PROVIDING UNAUTHORISED ACCESS TO COPYRIGHTED CONTENT OR ON THOSE KNOWN TO CONTAIN DEFAMATORY, DISCRIMINATORY, OBSCENE, UNLAWFUL, PORNOGRAPHIC OR OTHER SOCIALLY UNACCEPTABLE CONTENT AND TO USE MARKET LEADING IP INFRINGEMENT AND AD MONITORING SOFTWARE ACCORDINGLY;
- NOT MISLEAD INDIVIDUALS IN ANY WAY IN POSTS ON SOCIAL MEDIA AND ANY COMMUNICATIONS PLATFORMS (INCLUDING THE AFFILIATE PORTRAYING ITSELF AS A TIPSTER OR MAKING FALSE ATTRIBUTIONS OR CLAIMS; AND HE DOES, WITH STRICT ACCOMPLISHMENT OF THAT FORESEEN IN SPANISH ROYAL DECREE 958/2020, OF 3 NOVEMBER, OF COMMERCIAL COMMUNICATIONS OF GAMBLING ACTIVITIES), ENSURE THAT IT IS CLEAR TO ANY INDIVIDUAL THAT THE AFFILIATE COMMUNICATIONS ARE ADVERTORIAL AND PROMOTED BY THE AFFILIATE AND NOT BY THE COMPANY AND INCLUDE THE IDENTITY OF THE AFFILIATE;
- NOT OFFER THE AFFILIATE SERVICES IN RESTRICTED TERRITORIES;
- INCLUDE REFERENCE TO ”PLAY WITH RESPONSIBILITY”, juegoseguro.es, www.jugarbient.es; “18+ ONLY” AND “TERMS AND CONDITIONS APPLY”, ENSURE THAT SIGNIFICANT TERMS, COMMITMENTS, LIMITATIONS AND QUALIFICATIONS ARE CLEARLY STATED AND ENSURE THAT THERE ARE APPROPRIATE OPT-OUTS FOR ALL AFFILIATE SERVICES;
- NOT INCLUDE A CHILD OR YOUNG PERSON OR FEATURE ANYONE WHO SEEMS TO BE UNDER 25 IN ANY OF THE AFFILIATE SERVICES;
- COMPLY WITH ALL GUIDANCE FROM THE COMPANY ON ALL REGULATORY AND BRAND PROTECTION MATTERS. IN PARTICULAR, THE COMPANY MAY AT ANY TIME REQUIRE THE AFFILIATE TO CEASE USING ANY PARTICULAR METHOD OR CHANNEL OF PROVIDING THE AFFILIATE SERVICES, WHAT THE AFFILIATE WILL ACCOMPLISH IMMEDIATELY;
- NOT, IN PROVIDING THE AFFILIATE SERVICES, USE, SMS OR ANY ‘ADVERTORIAL’ CONTENT AT ALL.
- OBTAIN THE PRIOR WRITTEN CONSENT OF THE COMPANY PRIOR TO USING E-MAIL CAMPAIGNS AND/OR PROGRAMMATIC ADVERTISING.
- THE AFFILIATE WILL AT ITS OWN COST PROVIDE SUCH INFORMATION TO THE COMPANY AS THE COMPANY MAY REQUIRE IN ORDER TO DEMONSTRATE THE AFFILIATE’S COMPLIANCE WITH THE CONDITIONS OF THIS CONTRACT AND TO ASSIST WITH THE COMPANY’S INFORMATION REPORTING AND OTHER REGULATORY OBLIGATIONS. THE AFFILIATE CONSENTS TO THE COMPANY’S USE OF SUCH INFORMATION FOR THESE PURPOSES AND ACKNOWLEDGES THAT THE COMPANY HAS THE RIGHT TO TERMINATE THIS CONTRACT IF THE AFFILIATE IS FOUND TO BE IN BREACH OF THE REQUIREMENTS SET OUT IN CLAUSE 3.3.
- DURING THE TERM OF THIS CONTRACT AND FOR A PERIOD OF SIX YEARS THEREAFTER, THE AFFILIATE SHALL ALLOW THE COMPANY AND ITS PROFESSIONAL ADVISERS ON REASONABLE NOTICE DURING NORMAL WORKING HOURS ACCESS TO ANY OF THE AFFILIATE’S PREMISES, PERSONNEL, SYSTEMS AND RECORDS AS MAY BE REQUIRED TO ENABLE THE COMPANY TO COMPLY WITH ANY LAWFUL REQUEST BY ANY REGULATORY BODY AND VERIFY THAT THE OBLIGATIONS OF THE AFFILIATE ARE BEING AND WERE PERFORMED IN ACCORDANCE WITH THIS CONTRACT.
- Further Affiliate Obligations
- For the duration of the Contract, the Affiliate warrants, represents and undertakes that it will:
- comply with its obligations under this contract;
- COMPLY WITH ANY GUIDELINES OR INSTRUCTIONS GIVEN TO IT BY THE COMPANY FROM TIME TO TIME;
- have and maintain appropriate liability insurance with a limit of cover of not less than £ 1,000,000 and provide evidence of the same to the company on request;
- In connection with social media, to insert advertising of the web site(s) only in those authorized by the company in writing; and, in any event, the advertising message will meet all applicable legal requirement, under the sole responsibility of the affiliated, that assumes all responsibility that could be derived from such advertising
- have an effective and Enforced zero tolerance policy towards modern slavery and human trafficking in its business and supply chains and will immediately report any incident to the company;
- MARKET AND PROMOTE THE WEBSITE(s) WITH THE AIM OF INTRODUCING NEW PLAYERS TO THE COMPANY;
- COMPLY WITH THE all ADVERTISING regulations applicable in spain within the duration of the contract, both general and specific, particularly all those requirements established by royal decree 958/2020, of 3 november, on commercial communications of gambling activities, and with ANY RELEVANT INDUSTRY CODE OF PRACTICE ON ADVERTISING or corregulation code, as the code of conduct on commercial communications of gambling activities signed with autocontrol; and with ANY OTHER THAT COULD AMEND OF SUBSTITUTE THOSE REGULATIONS AND CODES.
- USE THE COMPANY MATERIALS SOLELY FOR THE PURPOSE OF PERFORMING THE AFFILIATE SERVICES;
- KEEP ITS AFFILIATE ID AND PASSWORD SECURE AND TAKE ALL REASONABLE STEPS TO AVOID UNAUTHORISED ACCESS BY ANY THIRD PARTY;
- BE SOLELY RESPONSIBLE FOR CHECKING THE CORRECT FUNCTIONING OF ANY TRACKING CODE AND LINKS PROVIDED TO IT AS PART OF THE COMPANY MATERIALS;
- BE SOLELY RESPONSIBLE FOR ALL ASPECTS OF THE PROVISION OF THE AFFILIATE SERVICES INCLUDING THE COSTS OF SETTING UP AND MAINTAINING ITS WEBSITE OR OTHER PROMOTIONAL MATERIAL.
- UPDATE ALL RELEVANT OFFERS PROVIDED BY THE COMPANY WITHIN five (5) business days OF RECEIVING THE SAME, failure to do will permit the company to terminate the CONTRACT; AND
- KEEP ITS CONTACT DETAILS UP TO DATE AND CORRECT AT ALL TIMES.
- THE AFFILIATE WARRANTS, UNDERTAKES AND REPRESENTS THAT IT WILL NOT:
- UNDERTAKE ANY ACTIVITY OR PUBLISH ANY MATERIAL (WHETHER ON ITS WEBSITE OR OTHERWISE) WHICH IS DEFAMATORY, DISCRIMINATORY, OBSCENE, UNLAWFUL OR WHICH IS SEXUALLY EXPLICIT, PORNOGRAPHIC OR OTHERWISE DISTASTEFUL;
- OFFER OR AGREE TO GIVE ANY PERSON ANY GIFT OR OTHER CONSIDERATION WHICH COULD ACT AS AN INDUCEMENT OR REWARD FOR ANY ACT OR FAILURE TO ACT CONNECTED TO THIS CONTRACT;
- USE METATAGS, CODE OR ANY OTHER MATERIALS WHICH INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY;
- WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY, USE ANY MATERIAL OTHER THAN THE COMPANY MATERIALS FOR THE PURPOSES OF PERFORMING THE AFFILIATE SERVICES;
- REGISTER AS A CUSTOMER OF THE COMPANY ITSELF OR PERMIT ANY EMPLOYEES, WORKERS, CONTRACTORS OR AGENTS OF IT TO REGISTER AS A CUSTOMER OF THE COMPANY;
- HOLD ITSELF OUT (BY WAY OF ITS WEBSITE OR OTHERWISE) AS THE COMPANY AND WILL NOT MAKE ANY REPRESENTATIONS ABOUT ANY SERVICES PROVIDED BY THE COMPANY UNLESS AUTHORISED BY THE COMPANY;
- DO ANYTHING WHICH MAY GIVE RISE TO A RISK OF CONFUSION BETWEEN THE AFFILIATE AND THE COMPANY;
- ENGAGE IN ANY PRACTICE WHICH MAY BE CONSIDERED DECEPTIVE, MALICIOUS, HARMFUL, INTRUSIVE OR A NUISANCE SUCH AS ALTERING BROWSER HOME PAGES WITHOUT INFORMED CONSENT, SUPPLYING OR DOWNLOADING SOFTWARE WHICH DOES NOT FUNCTION AS ADVERTISED, INSTALLING SOFTWARE COVERTLY OR USING MULTIPLE OR FORCED POP-UP SCREENS;
- OTHER THAN AS CONTAINED IN THE COMPANY MATERIALS AND FOR THE PURPOSE OF PERFORMING THE AFFILIATE SERVICES, USE THE NAMES, LOGOS, TRADE MARKS, SLOGANS OR ANY OTHER INTELLECTUAL PROPERTY OWNED OR USED BY THE COMPANY.
- It is the responsibility of the Affiliate to properly implement the Company Materials. The Company will not be liable to pay any Commission to the Affiliate in relation to any revenue earned that is not tracked through the Software due to the acts or omissions of the Affiliate.
- The Company’s Obligation
Provision of Affiliate online account
- As soon as reasonably possible after the Commencement Date, the Company will provide the Affiliate with an Affiliate ID which will enable the Affiliate to access the Software in order to manage its provisions of the Affiliates Services.
Provision of materials
- The Company will use reasonable endeavours to provide the following materials to the Affiliate through the Software:
- graphic content for use in banner ads or other Website content;
- details of promotions or offers that the Company is running and which may be promoted by the Affiliate; and
- tracking code to be inserted by the Affiliate onto the Affiliate’s website.
(the “Company Materials”).
Software, Websites and Players
- The Affiliate acknowledges that the Software is provided by a third party under licence and accordingly the Company provides no guarantees to the Affiliate in relation to the availability, functionality or performance of the Software.
- Whilst the Company endeavours to ensure that the Website(s) is fully operational at all times, it provides no warranties or representations as to the uptime, availability or functionality of the Website(s) and the Affiliate acknowledges that the Company may take the Website(s) down at any time and for any reason, including for routine or emergency maintenance.
- The parties acknowledge and agree that the Company will be solely responsible for the provision of services to the Player on the Website(s) and that any contract in relation to the same shall be between the Player and the Company.
- The Company reserves the right to analyse and investigate fraudulent players and withhold payment for the duration of the investigation and clauses 7.15, 7.16 and 7.18 shall apply.
- Pay Per Click (“PPC”) Campaigns
- Direct promotion of the Company Brands’ via PPC advertising is not permitted.
Negative Key Words
- The Company does not permit the Affiliate to display adverts triggered by certain searched words. An up to date list of ‘negative keywords’ can be provided to the Affiliate on request (and will be updated from time to time). The Affiliate must add all Company Brand Keywords to their negative keywords list. If an Affiliate is found to be using the Company’s Brand Keywords, this may result in the Affiliates account being suspended or terminated.
- The Affiliate is not permitted to target the Company’s community pages or groups with advertisements.
SMS, Whatsapp, Telegram Marketing Campaigns
- The Affiliate is not permitted to send any form of communication containing any links or any business content relating to any of the Company’s Brands by way of SMS, Whatsapp, Telegram (or any equivalent messaging tool) individual and/or group messages.
- Payment of Commission & CPA
- The Company will pay the Commission to the Affiliate.
- Any of the Conditions set out in this Clause 7 may be varied by agreement between the parties and any payment terms set out by the Company shall take precedence in the event of any conflict.
Calculation and Payment
- The Commission will be calculated on a monthly basis and, according to the Players contributed to the Web Site(s) by the Affiliate and subject to the rest of this Clause, will be paid Day 25th of the following month to the 30 days posteriors to the Company’s reception of the relevant Affiliates invoice.
- No Commission accrued according to the Contract will be paid until the Affiliate has contributed the Web Site(s) with at least 5 new Players. In addition, if the Commission for any one month is less than €100 (the “Threshold”), the Company shall pay that amount to the Affiliate when the accumulated amount is greater than €100.
- In no event will take place the transfer of any Negative Carryover.
Methods of payment
- The method of payment shall be agreed by the Parties. The Company reserves the right to charge to the Affiliate any payment processing fees imposed by payment providers.
- Chargebacks shall be deducted from the Affiliate’s Commission as a result of Players non-payment, fraudulent payment method use, or on the grounds the Player’s payment transaction is revoked and for which a credit is given.
- If it is suspected that one of the players associated to your account is at a high risk of chargeback, we reserve the right to hold back earnings from that player for three months.
Suspension for inactivity
- IF THE AFFILIATE FAILS TO REFER ANY NEW PLAYERS TO THE CUSTOMER IN ANY SIX-MONTH PERIOD THEN, IN ADDITION TO ITS RIGHTS UNDER THE CONTRACT, THE COMPANY RESERVES THE RIGHT AT ITS DISCRETION TO EITHER:
- REDUCE FUTURE COMMISSION TO 5% OF NET REVENUE (OR SUCH OTHER FIGURE AS THE COMPANY MAY FROM TIME TO TIME DECIDE) UNTIL FURTHER NEW PLAYERS ARE INTRODUCED; OR
- SUSPEND THE AFFILIATE’S ACCESS TO THE SOFTWARE AND FORFEIT FUTURE COMMISSION PAYMENTS, SUCH SUSPENSION AND FORFEITURE TO CONTINUE UNTIL THE COMPANY ELECTS OTHERWISE.
Other payment provisions
- THE COMPANY MAY WITHHOLD PAYMENT OF ANY COMMISSION IF IT HAS REASONABLE GROUNDS FOR BELIEVING THAT THE AFFILIATE HAS BREACHED ANY TERM OF THIS CONTRACT OR HAS ACTED DISHONESTLY. DISHONEST BEHAVIOUR MIGHT INCLUDE ENCOURAGING PERSONS TO REGISTER WITH THE COMPANY SOLELY FOR THE PURPOSE OF OBTAINING CPA PAYMENTS IN CIRCUMSTANCES WHERE THOSE PERSONS HAVE NO INTENTION TO DEPOSIT ANY MONEY WITH THE COMPANY.
- The Company may also withhold payment of any Commission if it has reasonable grounds for believing that the payment of such Commission may cause the Company or the Affiliate to be in breach of any applicable laws, rules or regulations in any jurisdiction.
- The Affiliate agrees to repay promptly to the Company on demand any monies already paid to it arising from any of the circumstances set out in clauses 7.14 and 7.15 together with all reasonable legal costs and other expenses incurred by the Company in investigating the matter and recovering any losses that it has suffered.
- If an error is made in the calculation of any Commission, the Company reserves the right to correct such error and reclaim any overpayment made (and may reduce future payments that might otherwise be due accordingly). Except in the case of manifest error or fraud, the Company’s calculation of Commission shall be final.
- All amounts payable by the Company under the Contract are inclusive of amounts in respect of value added tax chargeable for the time being (“VAT”).The Company may, without limiting its other rights or remedies, set off any amount owed to it by the Affiliate against any amount payable by the Company to the Affiliate under the Contract.
- Without limiting any right or legal action that it may hold, the Company will be allowed to compensate any amount that the Affiliate owes the Company with any payment the Company should pay the Affiliate in accordance with the Contract.
- Intellectual Property
IP remains owned by original party
- Each party shall retain all Intellectual Property Rights in its own name, logos, slogans, trade marks and any other material that it currently uses or may use in the future.
Grant of limited licence
- The Company grants to the Affiliate a non-exclusive, revocable, royalty-free licence to use the Company Materials for the duration of this Contract solely for the purposes of performing the Affiliate Services. Except as provided in this Contract or by law, the Affiliate shall not be permitted to copy, modify or reverse engineer the Company Materials.
No keyword bidding
- The Affiliate agrees that it will not bid on any keywords or search terms used by internet search engines if the keyword or search term is identical to or a variant of or might possibly be confused with any trade marks, slogan or other intellectual property utilised by the Company.
No domain name registration
- The Affiliate will not buy or promote any domain that uses disallowed key terms. This includes any of the Company’s brands (including “enracha” and “Rank”) and of any of the Companies of the Group the Company belongs to, and any similar ones. Disallowed key terms also include related key terms, related brand names, or any expression that includes the words associated with or variation of the marketed terms. The Company will provide details of its registered trademarks and domains on request.
- Both parties shall keep secret any Confidential Information disclosed to the other whether in writing, electronically or orally concerning the disclosing party’s business or affairs as a result of negotiations prior to the date of or during this contract or performance of it.
- Neither party shall disclose any of the other’s Confidential Information to any other person save those of its employees or agents who are involved in the Project and need to know the information.
- Notwithstanding the provisions of this Clause 9, a party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and takes into account the reasonable requests of the other party in relation to the content of such disclosure.
- Each party shall make its employees agents and sub-contractors (“Representatives”) aware of the nature of the other’s Confidential Information and take all necessary steps to ensure their compliance with this Clause. Each party acknowledges that it shall be responsible for compliance by its Representatives with the terms of this contract and shall be liable to the other party for any failure by its Representatives to hold any Confidential Information in accordance with this contract as if they were a party to it.
- THE AFFILIATE SHALL KEEP THE COMPANY INDEMNIFIED IN FULL AGAINST ALL COSTS, EXPENSES, DAMAGES AND LOSSES (WHETHER DIRECT OR INDIRECT), INCLUDING ANY INTEREST, FINES, LEGAL AND OTHER PROFESSIONAL FEES AND EXPENSES AWARDED AGAINST OR INCURRED OR PAID BY THE COMPANY AS A RESULT OF OR IN CONNECTION WITH:
- ANY CLAIM or sanction MADE AGAINST or imposed on THE COMPANY BY Any THIRD PARTY or regulatory authority ARISING OUT OF, OR IN CONNECTION WITH, THE SUPPLY OF THE AFFILIATE SERVICES, TO THE EXTENT THAT SUCH CLAIM ARISES OUT OF THE BREACH OR NEGLIGENT PERFORMANCE OF THE CONTRACT BY THE AFFILIATE, ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS; AND
- ANY CLAIM BROUGHT AGAINST THE COMPANY FOR ACTUAL OR ALLEGED INFRINGEMENT OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS ARISING OUT OF, OR IN CONNECTION WITH THE AFFILIATE SERVICES (SAVE TO THE EXTENT THAT THE CLAIM HAS ARISEN DUE TO THE ACTS OR OMISSIONS OF THE COMPANY).
- This clause 11 shall survive termination of the Contract.
- SAVE FOR ANY LIABILITY ARISING UNDER CLAUSE 11.1, the company shall not be liable to the other for any:
- LOSS OF REVENUE OR PROFITS;
- LOSS OF BUSINESS;
- LOSS OF DATA;
- LOSS OF GOODWILL;
- WASTED MANAGEMENT OR OFFICE TIME;
- SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS.
WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
- The Company shall not be liable to the Affiliate for any losses of the Affiliate whatsoever arising from the non-availability, lack of functionality or loss of use of the Software or the Website(s).
- The Affiliate acknowledges that the Contract is made between the Affiliate and the Company and that the licensor of the Software shall have no liability in relation to any dispute arising from it.
- Nothing in this Contract limits or excludes any liability for death or personal injury arising from negligence or for liability for fraudulent misrepresentation.
Contract can be terminated at any time
- EITHER PARTY MAY TERMINATE THIS CONTRACT AT ANY TIME, (AND WITHOUT NEEDING TO GIVE REASONS) BY SERVING 7 DAYS NOTICE ON THE OTHER PARTY IN WRITING.
What to do when the Contract ends
- On termination of the Contract for any reason the Affiliate shall immediately cease providing the Affiliate Services and shall immediately, and in any event within 48 hours:
- remove all Company Materials together with any other references to the Company from its website together with any other reference to the Company;
- destroy any electronically stored information that the Affiliate has been given by the Company (including any Company Materials that the Affiliate has downloaded);
- destroy any hard copies of materials produced by the Affiliate for the purposes of performing the Affiliate Services; and
- on request, certify to the Company that it has complied with the provisions of this clause.
- In the event the Company cannot cancel your Promotional Rights (and in any event), the Company shall be entitled to disable your tracking code(s) with immediate effect.
No trailing Commission
- On and from the date of termination of the Contract, the Company shall have no further obligation to pay any Commission to the Affiliate other than in relation to Commission accrued up to the date of termination.
- Neither party shall be liable to the other as a result of any delay or failure to perform its obligations under the Contract if and to the extent such delay or failure is caused by an event or circumstance which is beyond the reasonable control of that party which by its nature could not have been foreseen by such a party or if it could have been foreseen was unavoidable.
Assignment, subcontracting and change of ownership or control
- The Affiliate shall not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company. The Affiliate is required to give written notice to the Company within seven days of any change of ownership or control of the Affiliate and shall provide the Company with any reasonably requested information in relation to the new owners or controllers.
- The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
- Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by a certified channel at its registered office (if a company) or (in any other case) its principal place of business, or sent by email to any email address provided by the other party for this purpose.
- Any notice or communication shall be deemed to have been duly received if delivered personally when left at the Company address referred to above or, if sent by certified channel, according to the requirements of the channel used, or if sent by email, on the day of transmission.
Waiver and cumulative remedies
- A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
- Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
- If a court or any other competent authority finds that any provision (or part of any provision) of the Contract is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
- If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
- Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
- A person who is not a party to the Contract shall not have any rights under or in connection with it.
- Any variation, including any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by Company.
Personal Data Protection
- The Affiliate declares to know and accept that the personal data it provides to the company will be processed for the purposes of this Agreement. The Affiliate may exercise the rights of access at any time, rectification, cancellation and opposition by written communication addressed to the postal address of the Company outlined in this Agreement. In order to always keep the data up to date, the Affiliate agrees to notify the Company of any changes of his personal data.
The Affiliate expressly consents that its personal data are being processed in order to comply with the legal obligations that may arise from the contractual relationship between the parties and, also, to develop, maintain, fulfil and control said relationship
The Affiliate also consents that the Company is providing such data to the Super Affiliate for those same purposes and also to carry out its management functions of the Affiliate Platform. In this sense, the Affiliate particularly consents that the Company provides the Super Affiliate with the necessary information regarding the invoicing generated by each Affiliate, for its monitoring and management in accordance with this contract.
The Affiliate also consents that the Company communicates its personal data to the different Companies of the Rank Group to which it belongs, for management, statistical, control and coordination reasons.
Governing Law and jurisdiction
- The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by Spanish law, and the parties submit to the exclusive jurisdiction of the courts Barcelona, Spain, disregarding the jurisdiction that could correspond to them.