Terms & Conditions
1.1 This document, your completed application form and any other guidelines or additional terms which we provide to you via e-mail or on our website at www.activewins.com (“Our Website”) and any amendments thereto from time to time (together the Agreement”) contain the complete terms and conditions agreed between us, ActiveWin Marketing Limited (referred to in this agreement as “We”, “Us” or “Our” as applicable) and you (being the relevant person set out and referred to in the relevant application form and referred to in this agreement as “You” or “your” as applicable) that apply to your application to join and, if Your application is successful, Your participation in) the Affiliate Programme and to promote our clients on whose behalf the Affiliate Programme is administered and managed (“Advertisers”) and their websites (“Advertiser Sites”) and the creation of internet hyperlinks from Your website (“Affiliate Site”) to the Advertiser Sites (“the Links”).
1.2 To become an Affiliate, you will need to complete the relevant registration form, which can be located https://www.affiliates.activewins.com/account/register ,submit the requested information, confirm your agreement to these Terms by clicking ‘I agree to and accept the terms of the Affiliate Programme’ or similar, and receive confirmation from Us that your request has been accepted.
1.3 The Registration Form will form an integral part of these Terms and the agreement between you and us. We will, at our sole discretion, determine whether or not to accept your application and our decision is final and not subject to any right of appeal. We will notify you by email as to whether or not your application has been successful. If your application is successful, you will become an Affiliate and we will email to you the necessary instructions as to how to include the Links and other Required Material on the Partner Site in accordance with these Terms.
1.4 Each Affiliate Programme Offer (an “Offer”) may be for any Advertiser and may link to an Advertiser Site. Please note that each Advertiser may have additional terms and conditions in relation to Your promotion of Advertiser Sites, which are also hereby incorporated into this Agreement. You are under no obligation to promote any particular Offers.
1.5 In the event of any conflict between the terms of this Agreement and any other additional terms (whether on Our Website or any third-party website or platform), this Agreement shall prevail unless such terms expressly vary this agreement and are confirmed by Us to You in writing.
1.6 You agree to include a Responsible Gaming link and 18+ signage as well as any other regulatory mandated material that we make available for you.
1.7 You agree to notify us of any changes to the details you supply in the Registration Form, including payment details so that we always have true, complete and accurate information for you.
1.8 The main purpose of our Affiliate Programme is to promote the Websites. This is done predominantly by placing Links on the Partner Site.
1.9 These Terms replace all previous terms and conditions for our Affiliate Programme. In the event there is a conflict between these Terms and any other additional terms (whether they are set out on the Websites or any third-party website or platform) these Terms shall take precedence.
1.10 We may change all or any part of these Terms at any time. Notice of any changes will be given by email to the address you have provided to us upon registration (or such replacement as you provide to us in accordance with clause 1.6 above). Except where it is required by any Applicable Law, the change will take place at least 7 days after such notice is sent to you. If you do not agree to the changes, your only remedy will be to terminate your membership of our Affiliate Programme by giving us notice in accordance with these Terms within 7 Business Days of receiving such notice.
1.11 By joining our Affiliate Programme, you agree to have due regard for and act at all times in a manner consistent with the Licensing Objectives as though you were a licensee of the Gambling Commission of Great Britain yourself and you agree to demonstrate your consideration of and adherence to the Licensing Objectives in all of your activities as an Affiliate. Any non-adherence to these Licensing Objectives will be treated as a material breach of these Terms.
2 INTERPRETATION AND DEFINITIONS
2.1 In these Terms (except where the context otherwise requires), the following definitions shall apply:
“Affiliate”: a member of our Affiliate Programme.
“Agreed Purposes”: for the marketing and promotion of the Websites.
“Affiliate ID”: a unique identifier which you are provided as an Affiliate and which is how we identify traffic associated with the Links you post on the Partner Site.
“Applicable Laws”: all applicable laws, regulations and codes of conduct from time to time.
“Business Day”: any day which is not a Saturday, Sunday or a bank or public holiday in England.
“Civil Partner”: a civil partner (as defined in the Civil Partnership Act 2004)
“Controller”, “data controller”, “processor”, “data processor”, “data subject”, “personal data”, “processing” and “appropriate technical and organisational measures”: as set out in the Data Protection Legislation in force at the time.
“CPA Payments”: the legacy commission payment structure for each Customer that places a qualifying bet on the Websites, provided that we receive full payment in respect of such bet and such bet is not placed using any ‘free bets’ or ‘free chips’ or other promotion which we provide to such Customers.
“Customer”: a User who:
a) enters the Websites via the Links containing your Affiliate ID;
b) provides their registration information to us (including a valid email address);
c) we open a new account for (following our validation and approval);
d) places a qualifying bet with us via the account which is associated with your Affiliate ID;
e) is not one of our existing customers at that time and has not previously opened an account with us;
f) is not a Grand National Customer; and
g) is not one of your Direct Relatives.
“Data Protection Legislation”: (i) the Data Protection Act 1998, until the effective date of its repeal (ii) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, for so long as the GDPR is effective in the UK, and (iii) any successor legislation to the Data Protection Act 1998 and the GDPR, in particular the Data Protection Bill 2017-2019, once it becomes law.
“Direct Relative”: shall include spouse, Civil Partner, child or grandchild (including step or adopted or illegitimate child and their issue)
“Fraud Traffic” means any traffic directed to the Websites which, in our sole opinion:
i) originates from outside the Territory; or
ii) is as a result of practices which are not in accordance with Applicable Laws; or
iii) is in breach of these Terms; or
iv) is fraudulent.
“Gambling Commission”: the Gambling Commission of Great Britain in relation to customers from Great Britain and means the Gibraltar Gambling Commissioner in relation to customers from all other jurisdictions.
“Grand National Customer”: any person who would otherwise be a Customer but for the fact that they have arrived via a Link to the Websites on the day before or the day of the Grand National horse racing event in Great Britain (or the date of any postponed or re-run of the Grand National during the same horse racing year). This is only applicable for Advertiser Sites which are licensed by the Gambling Commission to provide “General Betting Standard – Real Event” services.
“LCCP”: the Licensing Conditions and Codes of Practice issued by the Gambling Commission of Great Britain.
“Licensing Objectives”: the three licensing objectives set out in the UK Gambling Act 2005, being:
a) preventing gambling from being a source of crime and/or disorder, being associated with crime or disorder and/or being used to support crime;
b) ensuring gambling is conducted in a fair and open way; and
c) protecting children and other vulnerable persons from being harmed and/or exploited by gambling.
“Links”: internet hyperlinks provided by and/or approved by us and designed to direct User traffic from the Partner Site to the Websites.
“Membership Period”: the period for which you are an Affiliate.
“Minimum Payment”: http://www.activewins.com/faqs/.
“Net Revenue”: means all gross monies received by us via the Websites from the Customers less all of the following:
a) monies paid out to Customers as winnings;
b) monies paid in the form of betting duties or taxes (or reasonable provisions in respect thereof) or other statutory deductions or payments to licensing authorities including without limitation the licensing charges of the British Horse Racing Board
c) charges levied by electronic payment or credit card organisations;
d) bad debts;
e) monies attributed to fraud or Fraud Traffic;
g) returned stakes;
h) provisions for transactions which are reversed by instruction from the card-holder’s bank (commonly referred to as charge-backs);
i) any monies received from Customers who bet with us via a platform owned or operated by a third party;
j) the cost of ‘free bets’ or ‘free chips’ provided to Customers as a promotional or marketing activity; and
k) monies paid out to mobile platform operators.
“Net Revenue Share”: the percentage share of Net Revenue detailed on the commission page of your Affiliate account from time to time.
“Partner Site”: means the website(s) you own and control and that we have agreed can be used to promote the Websites in our Affiliate Programme.
“Permitted Recipients”: us, our employees and any third parties engaged by us to perform obligations in connection with the Affiliate Programme.
“Personal Data”: the personal data to be provided by you to us in accordance with clause 9 of these Terms. Personal Data shall be confined to the following categories of information relevant to the following categories of data subject:
a) User’s names
b) User’s geographical and email addresses
c) User’s home and mobile telephone numbers
d) User’s consent to the Agreed Purpose
e) other type of personal data
“Required Material”: the information that must be displayed, during the Membership Period, on the Partner Site.
“Revenue Share” means your share of Net Revenue or CPA Payments (where appropriate) payable by us to you in accordance with these Terms.
“Revenue Statements” means a statement showing:
a) the number of Customers introduced by you; and
b) the Revenue Share, in each case for the preceding calendar month during the Membership Period.
“Territory” Any territory that the Advertiser accept orders and/or operate.
2.2 Clause headings are included for convenience only and shall not affect the interpretation of these Terms;
2.3 the singular includes the plural and vice versa; and any reference to “persons” includes natural persons, firms, partnerships, companies, corporations, associations, organisations, governments, states, governmental or state agencies, foundations and trusts (in each case whether or not having separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists)
3 YOUR OBLIGATIONS
3.1 You shall provide Us with all co-operation, information and documents which We reasonably require in connection with Your participation in the Affiliate Programme and agree that We have the right to use any such information to monitor the Affiliate Site to ensure Your compliance with the terms of this Agreement.
3.2 You shall keep the Affiliate Site up to date and in good working order, ensure that the quality of its design, content and functionality does not materially deteriorate and ensure that all content or marketing or advertising activity relating to the site complies with all relevant laws and codes of practice for the duration of the Agreement.
3.3 You shall include at least one Link on the Affiliate site and maintain Links on the Affiliate Site for the duration of the Agreement.
3.4 You shall not place the Links on the Affiliate Site in a manner which is detrimental to the reputation of Us or any Advertiser and will alter the location of any Link at Our request.
3.5 If Your use of any Link is not in compliance with the terms of this Agreement, We shall be entitled (but not obliged) to take such measures as to render inoperative the Links used by You and to immediately terminate this Agreement without notice to You.
3.6 Throughout the duration of the Agreement, You shall prominently incorporate and continually display the most up-to-date Links provided to You by Us or the Advertiser on the Affiliate Site in a manner agreed between You and Us and shall not alter the form or operation of the Links without Our or the Advertiser’s prior consent.
3.7 You shall provide true and complete information to Us when applying to join the Affiliate Programme and promptly update that information if all or any part of it changes.
3.8 You shall provide Us with reasonable assistance in respect of the display, access to, transmission and maintenance of the Links. In the event that You wish to place the Links on websites other than the Affiliate Site, You must first obtain the relevant Advertiser’s written consent.
3.9 You shall not place Links on any third-party website or other platform or medium where the content of and/or material on such website, medium or platform is defamatory, obscene, discriminatory, unlawful, sexually explicit, pornographic, violent or, in Our sole discretion otherwise unsuitable;
3.10 develop and/or implement any strategy which has as their direct or indirect result the targeting of marketing of Us, any Advertiser or Advertiser Sites to any person who is less than 18 years old.
3.11 place any Links on any third-party website or other medium or platform whose content infringes any third party intellectual property rights, copies or resembles Our Website or any Advertiser Sites in whole or in part, disparages or damages the reputation and/or goodwill of Us or any Advertiser in any way and frames any page of Our Website or any Advertiser Sites in whole or in part
3.12 You shall not directly or indirectly offer any person or entity any consideration or incentive (including, without limitation, payment of money or other benefit) for using the Links on the Affiliate Site to access any Advertiser Site (e.g. by implementing any "rewards" programme for persons or entities who use the Links on the Affiliate Site to access any Advertiser Site);
3.13 You shall not read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to Us or any Advertiser by any person or entity;
3.14 You shall not take any action which could reasonably cause any confusion as to Our or any Advertiser’s relationship with You or any third party, or as to the ownership or operation of any website or service on which any transaction or function may occur;
3.15 You shall not in any way modify, redirect, suppress, substitute or deconstruct the operation of any button, link, or other interactive feature of Our Site or any Advertiser Site;
3.16 You shall not attempt to intercept or redirect (including via user-installed software) traffic from or on any third-party website or other place that participates in the Affiliate Programme;
3.17 You shall not use or register (or apply to register) any trade name, trade mark, domain name or social media profile which contains or is similar to any trade name, trade mark, domain name or social media profile used by or registered in the name of Us or any Advertiser or any other trade name, trade mark, domain name or social media profile which could be understood to designate Us or any Advertiser. You further agree not to attack ownership or seek invalidity or revocation of any trade mark, domain name, social media profile owned or used by Us or any Advertiser in any way
3.18 You shall not use any means or platform to promote a website which in any way resembles the look and/or feel of Our Site or any Advertiser Site whether in whole or in part, not utilise any such means, platform or website to create the impression that such third party platforms or website are Our Website or any Advertiser Website (or any part thereof);
3.19 You shall not, without Our prior written consent, purchase or register keywords, search terms or other identifiers for use in any search engine, portal, sponsored advertising service, social media platform or other search or referral service which are identical or similar to any of Our or any Advertiser’s trademarks or trade names from time to time or otherwise include those trademarks or trade names or any variations of each thereof, or include metatag keywords on the Affiliate Site which are identical or similar to any such trademarks or trade names from time to time. In the event that You carry out any of the activities listed in this clause without Our prior written consent We shall be entitled (but not obliged) to, at Our absolute discretion, retain any monies owed to You until such issue is resolved and/or to terminate this Agreement.
3.21 You shall make any attempt to communicate to end users, whether directly or indirectly, to solicit them to move to any third party website not owned by Us or any Advertiser or for any other purpose without Our prior written approval;
3.22 You shall not deliberately market the goods or services of any Advertiser or use the intellectual property rights of any Advertiser to end users located in any territory from which the Advertiser does not accept orders and/or operate;
3.23 You shall not engage in transactions of any kind on any Advertiser Site on behalf of any third party, or authorise, assist, or encourage any other person or entity to do so;
3.24 You shall not, other than providing Links on the Affiliate Site in accordance with this Agreement, post or serve any advertisements or promotional content promoting any Advertiser Site;
3.25 You shall not assign or sub-license the Links or any revenue generated by You under the terms of this Agreement without Our written consent;
3.26 You shall not attempt to artificially increase any monies payable to You by Us or any Advertiser;
3.27 You shall not cause Our Site or any Advertiser Site (or any page thereof) to open in an end user's browser other than as a result of that end user clicking on a Link on the Affiliate Site;
3.28 You shall not take any action in connection with the Affiliate Programme which might in Our sole discretion be likely to damage the reputation and goodwill of either the Affiliate Programme, Income Access and/or any Advertiser. You must also at all times adhere to Income Access’ terms and conditions.
3.29 You shall not conduct any form of spamming or advertise Our products or services or those of any Advertiser in any manner which breaches any law or code of conduct relating to electronic marketing.
3.30 You shall not conduct any form of Electronic Marketing including email marketing without Our Written Consent.
3.31 You shall not compile any mailing list in a manner which does not comply with any appropriate law or regulation and maintain any necessary authority to make electronic communications to end users.
3.32 You shall include the name of the Affiliate and/or the Affiliate’s logo in the body of the text of any Electronic Communication distributed by the Affiliate so that recipients know that it is the Affiliate who is sending the communication.
3.33 You shall include an “unsubscribe” option in each Electronic Communication you send, the unsubscribe option should be for the service provided by the Affiliate only and should not link to Our Site or any Advertiser site.
The “unsubscribe” facility must always remain fully functional and operational.
The recipients of any Electronic Communication shall be comprised solely of recipients listed in an Opt-In database made up of individuals who have given their express consent to receive marketing from the Affiliate.
You shall remove from the Opt-In database any recipients who have informed you that they no longer wish to receive marketing communication.
3.34 You shall not make any representations, warranties or other statements concerning Us, Advertisers or their/Our relevant products and services.
You shall not send any SMS messages concerning Us, Advertisers or their/Our relevant products and services to any databases.
3.35 You shall not send e-mails or any other electronic message to any recipient listed in any suppression list which We may provide to You from time to time
3.36 You must take all reasonable steps to prevent any marketing material being sent to a self-excluded customer.
3.37 If We determine, in Our sole discretion, that You have engaged in any of the foregoing activities, We may (without limiting any other rights or remedies available to Us) withhold any monies otherwise payable to You under this Agreement and/or terminate this Agreement immediately without notice or liability to You.
3.38 If You contact any end users to promote Our Site, an Advertiser’s Site or the Links, You shall make clear in the body of any such communication that such communication is made without the knowledge or involvement of Us or Any Advertiser and that any complaint that the relevant user may wish to make should be addressed to You and Us or any Advertiser.
3.39 Your obligations specified in this clause 4 shall be assumed by You including in favour of any relevant Advertiser.
3.41 You shall indemnify on demand and hold Us harmless from and against any and all losses, demands, claims, damages, costs, expenses (including, but not limited to, consequential losses and loss of profit, reasonable legal costs and expenses and VAT thereon if applicable) and liabilities suffered or incurred, directly or indirectly, by Us in consequence of any breach by You of this clause 4.
4 OUR OBLIGATIONS
4.1 We operate a policy whereby it is the last partner site from which a visitor accesses the Websites immediately prior to registration that is recorded as providing that customer to us (Last Click Policy).
4.2 Subject to:
a) your compliance with these Terms and our instructions regarding tracking Users accessing the Websites via the Links; and
b) the Partner Site being recorded as providing a customer to us under the Last Click Policy,
we will use our best endeavours to ensure that such User is identified as originating from the Partner Site (by attaching your Affiliate ID) However, we shall not be liable to you In any way if we are unable to identify a customer as originating from the Partner Site for whatever reason.
4.3 We shall be entitled to exercise any of our rights or fulfil any of our obligations hereunder (including without limitation our payment obligations) through any member of the group of companies to which we belong from time to time.
5.1 Where you are registering as an Affiliate after the date these Terms become effective, you will be paid on a Net Revenue Share basis. Where you are already an Affiliate at this time, you will remain on the same Revenue Share basis as you were on prior to the date of these Terms.
5.2 If you receive payments on a Net Revenue Share basis then we shall pay you your share of Net Revenue for the preceding calendar month during the Membership Period.
5.3 If you receive payments on a CPA Payment basis then we shall pay you the CPA Payment due for the preceding calendar month during the Membership Period.
5.4 We shall use our reasonable endeavours to:
a) arrange for Revenue Statements to be accessible through the ActiveWins Affiliate Website at “https://www.affiliates.activewins.com/account/login” and
b) update Revenue Statements on a daily basis.
5.5 In the event that a Revenue Share in any calendar month is a negative amount, we shall be entitled (at our sole discretion) to either: i) carry forward and set off such negative amount against any future Revenue Share which would otherwise be payable to you; or ii) to zero the negative balance that would otherwise be carried forward.
5.6 If your Revenue Share does not exceed the Minimum Payment, we shall be entitled to withhold and carry forward such sum until the end of the first calendar month in which the Revenue Share (including such carried forward sum) exceeds the Minimum Payment, at which time payment shall be made in accordance with these Terms for the full amount due to you. For the avoidance of doubt, you will only receive a payment when there is a positive balance and it is greater than the Minimum Payment in any given calendar month.
5.7 If an error is made in the calculation of the Revenue Share, we reserve the right to correct such error at any time and (as appropriate) to either:
a) increase the payment to you (where we have underpaid you); or
b) reclaim from you any overpayment.
6 INTELLECTUAL PROPERTY
6.1 We grant You a non-exclusive, non-transferrable and worldwide licence to use, reproduce electronically and display the Links on the Affiliate Site and access Advertiser Sites through the Links for the sole purpose of participating in the Affiliate Programme under the terms of and for the duration of this Agreement and in accordance with Our guidelines as may be provided to You from time to time. All rights not expressly granted by Us or any Advertiser are hereby reserved.
6.2 You may not alter, modify, manipulate or create derivative works of the Links in any way and only remain entitled to use the Links for the duration of this Agreement.
6.3 You acknowledge that all intellectual property rights and any goodwill arising in the Links and in all products, associated systems and software relating to the services provided by Us to Our Advertisers or Advertisers to end users from time to time shall remain the property of Us or the relevant Advertiser.
6.4 You are not permitted to use the Links or Our or Advertisers’ content after this agreement has terminated or during the term of this Agreement in any way that is detrimental to Us or Our Advertisers or the reputation or goodwill of Us or Advertisers. You are not permitted to alter or modify in any way such content without the express prior written consent of Us or the relevant Advertiser.
6.5 If, in Our reasonable opinion, We determine that use by You of any Links or content provided to You is in any way detrimental to Us or Advertisers or the reputation and goodwill of Us or Advertisers or that You have altered or modified such content in any way, We shall be entitled (but not obliged) to terminate this Agreement immediately on written notice to You (and without liability to You).
6.6 You agree and undertake to ensure that the Partner Site does not resemble in any way the look and/or feel of the Websites, nor will you create the impression that the Partner Site is one of the Websites (or any part thereof).
7 WARRANTIES AND DISCLAIMERS
7.1 Each party represents and warrants to the other that it has and will retain for the duration of this Agreement all right, title and authority to enter into this Agreement, to grant to the other party the rights and licences granted in this agreement and to perform all of its obligations under this Agreement with reasonable skill and care.
7.2 For the avoidance of doubt, You warrant that, on the date of entering into this Agreement You are at least 18 years old.
7.3 You shall market and refer Users to us and will be solely liable for the content and the manner of any marketing activities undertaken by you on the Partner Site, which must be professional, proper, lawful and carried out in accordance with
i. the Data Protection Legislation;
ii. the Privacy and Electronic Communications (EC Directive) Regulations 2003;
iii. the LCCP (as amended and replaced from time to time)
iv. the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) as enforced by the Advertising Standards Authority (ASA); and
v. Unfair Trading Regulations 2008
vi. Competition and Marketing Authority guidelines
vii. any privacy, marketing and other such guidelines issued by us from time to time.
7.4 You warrant that, and You shall procure that any third party shall warrant that, the participation and/or the activity will cease immediately upon notification that such participation and/or activity is in contravention of any such legal and/or regulatory requirements and that You shall, and shall procure that any third party shall, act in compliance with any and all investigative and/or rectification requirements of that legal or regulatory body.
7.5 In the case of Advertisers involved in gambling, You understand that gambling laws vary from city to city, state to state and country to country. You warrant that You have independently evaluated the laws which apply to Your activities and believe that You may participate in Our Affiliate Programme without violating any applicable rules or laws.
7.6 You represent, warrant and undertake to us that:
a. you have, and will retain throughout the Term, all right, title and authority to enter into these Terms, and to perform all of your obligations under these Terms;
b. you have obtained and will maintain in force all necessary registrations, authorisations, consents and licences to enable you to fulfil your obligations under these Terms;
c. you have obtained and will maintain in force all necessary registrations, authorisations, consents and licences to use the data and information appearing on the Partner Site;
d. you comply with, and shall continue to comply with, all Applicable Laws; and,
7.7 You represent, warrant and undertake that the Partner Site shall:
a) contain no material which, in our sole opinion, is defamatory, pornographic, unlawful, harmful, threatening, obscene, harassing, or racially, ethnically, or otherwise objectionable or discriminatory, violent, politically sensitive or otherwise controversial;
b) not be in breach of any third-party rights;
c) not develop or implement any strategy of marketing which targets (directly or indirectly) persons under the age of 18 years of age; and
d) not link to any material referred to in a) above.
7.8 You must not :
a) abuse the Affiliate Programme in any way, for example by setting-off losses from personal bets against your Revenue Share; or
c) use the Affiliate Programme in a manner which is disingenuous, in bad faith and/or not in the spirit of the Affiliate Programme; or
d) purchase or register keywords, search terms or other identifiers for use in any search engine, portal, sponsored advertising service or other search or referral service which are identical or similar to any of Our trademarks or brand trade names from time to time or which otherwise include the name of any of the brands on the Affiliate Program” or any variation thereof; or
e) include metatag keywords on the Partner Site which are identical or similar to any of our trademarks or trade names in the affiliate program.
f) use domains or sub-domains containing our trademarks, including misspells and variations; or
g) directly or indirectly offer any person or entity any consideration or incentive (including, without limitation, payment of money or other benefit) for using the Links on the Partner Site to access the Websites (e.g. by implementing any “rewards” programme for persons or entities who use the Links); or
h) read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to us by any person or entity; or
i) in any way modify, redirect, suppress, substitute or deconstruct the operation of any button, link, or other interactive feature of the Websites; or
j) engage in transactions of any kind on the Websites on behalf of any third party, or authorise, assist, or encourage (other than via the Links) any other person or entity to do so; or
k) take any action that could reasonably cause a User to be confused as to our relationship with you, or any site on which any functions or transactions are occurring; or
l) post or serve any advertisements or promotional content promoting the Websites; other than the Links; or
m) display the Websites (whether through any “framing” technique or technology or pop-up windows or pop-under windows), or assist, authorise or encourage any third party to take any such action; or
n) attempt to artificially increase your Revenue Share; or
o) cause the Websites (or any of it) to open in a User’s browser: other than as a result of the User clicking on a Link; or
p) attempt to intercept or redirect (including, without limitation, via user-installed software) traffic from or on any other Affiliate’s website; or
q) attempt to market or promote the Websites outside the Territory; or
r) attempt to disguise the geographical location of any User or Customer; or
s) promote any offers or promotions that are not featured or made available as part of the Affiliate Programme; or
t) attempt to communicate to our customers, whether directly or indirectly, with a view to encouraging them to move to websites not owned by us.
7.9 If we, in our reasonable opinion, suspect that you (directly or indirectly) are in breach of the above, we reserve our rights to immediately suspend or terminate your membership of our Affiliate Programme (without limiting any other rights or remedies available to us) without any liability to you and we may withhold any monies otherwise payable to you under these Terms. In the event of termination, any and all sums owed by you to us (if applicable) will become immediately due and payable.
7.10 We have the right, but not obligation, to monitor the Partner Site to ensure you are complying with these Terms and you shall provide us with all data, information and assistance to enable us to perform such monitoring at no charge.
7.11 Personal Data. This clause sets out the framework for how personal data is disclosed by you (as a data controller) to us (as a data controller). Each of us acknowledges that you may be required to disclose to us Personal Data collected by you for the Agreed Purposes.
7.12 Effect of non-compliance with Data Protection Legislation. You shall comply with all the obligations imposed on a controller under the Data Protection Legislation, and any material breach of the Data Protection Legislation by you shall, if not remedied within 7 days of written notice from us, give grounds for us to terminate this agreement with immediate effect.
7.13 Particular obligations relating to your disclosure of data to us. You shall:
a) ensure that you have all necessary notices and consents in place to enable lawful transfer of the Personal Data to the Permitted Recipients for the Agreed Purposes;
b) give full information to any data subject whose personal data may be processed under this agreement of the nature such processing. This includes giving notice that, on the termination of this agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;
c) process the Personal Data only for the Agreed Purposes;
d) not disclose or allow access to the Personal Data to anyone other than the Permitted Recipients;
e) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this agreement;
f) ensure that you have in place appropriate technical and organisational measures, reviewed and approved by us, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;
g) not transfer any personal data outside the EEA unless the transferor:
i. complies with the provisions of Articles 26 of the GDPR (in the event the third party is a joint controller); and
ii. ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 GDPR; (ii) there are appropriate safeguards in place pursuant to Article 46 GDPR; or (iii) one of the derogations for specific situations in Article 49 GDPR applies to the transfer.
7.14 Assistance. You shall assist us in complying with all applicable requirements of the Data Protection Legislation. In particular, you shall:
a) consult with us about any notices given to data subjects in relation to the Personal Data;
b) promptly inform us about the receipt of any data subject access request;
c) provide us with reasonable assistance in complying with any data subject access request;
d) not disclose or release any Personal Data in response to a data subject access request without first consulting us wherever possible;
e) assist us, at your cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
f) notify us without undue delay on becoming aware of any breach of the Data Protection Legislation;
g) maintain complete and accurate records and information to demonstrate your compliance with this clause 9 and allow for audits by us or our designated auditor; and
h) provide us with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including the procedures to be followed in the event of a data security breach, and the regular review of your compliance with the Data Protection Legislation.
7.15 Indemnity. You shall indemnify us against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by us and arising out of or in connection with the breach of the Data Protection Legislation by you, your employees or agents, provided that we give you prompt notice of such claim, full information about the circumstances giving rise to it and reasonable assistance in dealing with the claim.
8.1 You shall indemnify us against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by us and arising out of or in connection with the breach of the Data Protection Legislation by you, your employees or agents, provided that we give you prompt notice of such claim, full information about the circumstances giving rise to it and reasonable assistance in dealing with the claim.
9 EXCLUSION OF LIABILITY
9.1 Nothing in these Terms shall limit our liability for death or personal injury resulting from our negligence or for fraud.
9.2 We shall not be liable, in contract, tort (including without limitation negligence) or for breach of statutory duty or in any other way for:
a) loss (whether direct or indirect) of revenues, profits, contracts, business, business opportunities, anticipated savings or wasted expenditure; or
b) any loss of goodwill or reputation; or
c) any indirect or consequential losses in any case, whether or not such losses were within the contemplation of the parties at the date of these Terms, or any other matter under these Terms; or
d) any loss or corruption (whether direct or indirect) of data or information.
9.3 Our liability to you shall not, in any event, exceed the sum of the total monies paid by us to you over the 12-month period preceding the date on which such liability accrued.
10.1 We may bring the Membership Period to an end with immediate effect by written notice to you if:
a) you commit a breach of your material obligations under these Terms and in the case of a remediable breach, fail to remedy it within 7 days of the date of receipt of notice of such breach from us;
b) you repeatedly breach any of these Terms in such a manner as to reasonably justify the opinion that your conduct is inconsistent with you having the intention or ability to give effect to the Terms;
c) you suspend, or threaten to suspend, payment of your debts or you are unable to pay your debts as they fall due or admit your inability to pay your debts or:
i. (being a company or limited liability partnership) are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2); or
ii. (being an individual) you are deemed either unable to pay our debts or are deemed as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986; or
iii. (being a partnership) has any partner to whom any of the foregoing apply;
d) any event occurs, or proceeding is taken, in any jurisdiction to which you are subject and which has an effect equivalent or similar to the events mentioned in sub-clause (c); or
e) you (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing your own affairs or becomes a patient under any mental health legislation.
10.2 Either of us may terminate your membership of the Affiliate Programme on delivery of four weeks prior written notice to the other party.
10.3 We may also terminate your membership of the Affiliate Programme where you have not met the Minimum Customer Requirement (see clause 14 below).
11. MINIMUM CUSTOMER REQUIREMENTS
11.1 During the Membership Period, if:
a) you do not deliver at least one (1) new Customer within a period of three calendar months; and/or
b) the Customers you have introduced to us are exhibiting an unusual level of high net losses to us; and/or
c) you are no longer actively promoting us,
then we may contact you to discuss your membership of the Affiliate Programme. If we do not receive a positive response when we discuss your membership with you and see evidence of appropriate changes being made within 7 days, we may, at our sole discretion, i) reduce the percentage Revenue Share payable to you to 10%, with immediate effect; or treat this as a material breach of these Terms capable of immediate termination in accordance with the above clause.
12. Consequences of Suspension and Termination
12.1 Upon termination of your membership of the Affiliate Programme and subject to any deductions or adjustment made in accordance with these Terms, we shall pay you the balance in your account (if any) and your next Revenue Share amount as normal.
12.2 Where we are not able to pay you due to incorrect payment details or your refusal of payment, then you acknowledge that we will not be able to make payment to you and we will therefore hold the money on your behalf for a period of six (6) years from your ceasing to be an Affiliate and will pay any such monies owing to you if you contact us with updated payment and address details together with any further documentation that we reasonably require to confirm your identity. We reserve the right in these circumstances to deduct a monthly administrative fee being the higher of i) 5% of the remaining balance; and £5.
12.3 Upon termination of your membership of the Affiliate Programme:
a) you must cease all promotion of the Websites and remove all Links on the Partner Site; and
b) any confidential information provided to you by us, and which is marked as confidential, must be returned to us upon request.
12.4 After the Membership Period ends and without prejudice to any obligations or rights which may have accrued to either of us at that time, neither of us shall have any further obligations or rights under these Terms other than in respect of clauses the survival of which is necessary for the interpretation or enforcement of these Terms.
13.1 For the avoidance of doubt, We make no warranty or representation that the Affiliate Programme or Links will meet Your specific requirements or that You will earn any specific amount.
13.2 You acknowledge that any amount reported as payable to You by the Affiliate Programme are not conclusive, and that such amounts shall be calculated exclusively in accordance with the terms of this agreement.
14.1 These Terms together with the Registration Form constitute the entire Agreement and understanding between you and us and supersedes any previous agreement between us relating to the subject matter of these Terms. Each of us acknowledges and agrees that in entering into these Terms, and the documents referred to in it, we do not rely on, and shall have no remedy in respect of, any statement, representation, warranty, understanding, promise or assurance (whether negligently or innocently made) of any person (whether party to these Terms or not) other than as expressly set out in these Terms. Nothing in this clause shall operate to limit or exclude any liability for fraud.
14.2 If either you or we fail to pay any amount due under these Terms by the due date then the receiving party shall be entitled, but not obliged, to charge simple interest on the overdue amount, from the due date up to the date of actual payment, at the rate of 2% per annum above the base rate for the time being of Barclays Bank Plc. Please note that no interest will be payable by us on any balance in your account where you have not complied with clause 1.6 or payment is refused by your chosen payment method.
14.3 In no event will any delay, failure or omission (in whole or in part) in enforcing, exercising or pursuing any right, power, privilege, claim or remedy conferred by or arising under these Terms or by law, be deemed to be or construed as a waiver of that or any other right, power, privilege, claim or remedy in respect of the circumstances in question, or operate so as to bar the enforcement of that, or any other right, power, privilege, claim or remedy, in any other instance at any time.
14.4 You shall not assign at law or in equity (including without limitation by way of a charge or declaration of trust), sub-license or deal with these Terms or any rights under these Terms, or sub-contract any or all of your obligations under them or purport to do any of the same. Any purported assignment, sub-licensing and/or sub-contracting in breach of this clause shall confer no rights on the purported assignee and shall entitle us, at our sole discretion, to terminate these Terms immediately on written notice to you and with no liability to you.
14.5 If any provision of these Terms shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of these Terms which shall remain in full force and effect.
14.6 Any notice given or made under these Terms to us shall be by email to the relevant Affiliate Manager’s email address which will be provided to you once you become an Affiliate. We shall send you any notices given or made under these Terms to the email address supplied on your Registration Form (or such other email address as notified by you to us from time to time). Any notice shall be deemed to have been received within two hours of delivery provided that if deemed receipt occurs before 09:00 GMT on a Business Day the notice shall be deemed to have been received at 09:00 GMT on that day, and if deemed receipt occurs after 17:00 GMT on a Business Day, or on any day which is not a Business Day, the notice shall be deemed to have been received at 09:00 GMT on the next Business Day.
14.7 You agree that you will not at any time use, divulge or communicate to any person, except to your professional representatives or advisers or as may be required by law or any legal or regulatory authority, any confidential information concerning our business or of any member of our group of companies which may have or may in future come to your knowledge and you shall use all reasonable endeavours to prevent the publication or disclosure of any confidential information concerning such matters.
14.8 Nothing in these Terms is intended to or shall operate to create a partnership between us.
14.9 You shall not make any announcement relating to these Terms, nor the subject matter contained in them, without our prior written approval except as required by Applicable Law.
14.20 Except insofar as these Terms expressly provides that a third party may in his own right enforce a term of these Terms, a person who is not a party to these Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of these Terms but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
14.21 The validity, construction and performance of these Terms (and any claim, dispute or matter arising under or in connection with them or their enforceability) shall be governed by and construed in accordance with the laws of England and Wales. Each party irrevocably submits to the exclusive jurisdiction of the English courts over any claim, dispute or matter arising under or in connection with these Terms or its enforceability.
14.22 In case of any discrepancy between the meanings of any translated versions of this Agreement, the meaning of the English Language version shall prevail.