The Ig-affiliates Programme is operated by Online Marketing Strategies Ltd, a company incorporated under the laws of the Territory of the British Virgin Islands, having its registered office at Mill Mall Tower, 2nd Floor, Wickhams Cay 1, Road Town, Tortola VG 1110, British Virgin Islands, and bearing company registration number 1872615.
By completing the affiliate application to the Ig-affiliates.com Affiliate Programme and clicking “I have read and agree to the provisions of the Affiliate Agreement and the Terms and Conditions therein” within the registration form, you hereby agree to, subject to your application being approved by the Affiliate Programme, enter into a binding contractual relationship with the operators of the Affiliate Programme, and abide by all the provisions and all the terms and conditions set out in the relevant Agreement.
The Commission Plan referred to in Article 6 of this Agreement, and subsequently negotiated and agreed between the operators of the Affiliate Programme and you, shall constitute an Annex to this Agreement, and shall be deemed to form an integral part thereof.
Ig-affiliates.comreserves the right to amend, alter, delete or extend any provisions of this Agreement, at any time and at its sole discretion, without giving any advance notice to the Affiliate subject to the terms set out in this Agreement. You hereby comply with:
1. The participation in the Affiliate Programme;
2. The usage of the Ig-affiliates.comaffiliate website and/or ig-affiliates marketing tools (as defined in the Agreement);
3. The condition that the acceptance of any affiliate commissions from ig-affiliates confirms your irrevocable acceptance of this Agreement and any modifications thereto.
Therefore you shall be obliged to continuously comply with this Agreement and the terms and conditions therein, as well as with any other from time to time brought forward rules and/or guidelines. An Agreement between the operators of the Affiliate Programme and the Affiliate shall come into effect on the date when the affiliate application was approved.
www.ig-affiliates.com Affiliate Programme
Last Updated 6th October 2015
Throughout this document and in any annexed to such, unless otherwise specified, the following terms shall have the meanings assigned to them below:
“Affiliate” refers to the individual or organisation that is applying to become a participant in the Programme and who will accept to be bound by the Agreement upon joining said Programme;
“Affiliate Administration Area” refers to the section of the Website that is open to an Affiliate to update their profile, assess statistics, create additional trackers, select banners/graphic artwork, change/update payment methods, and any other newly-updated or introduced utilities;
“Agreement” refers to the binding contractual relationship with the Company entered into by the Affiliate, comprising the articles set forth in this document, as at the date last updated, together with the Terms and Conditions set forth in such articles, as well as the Commission Plan, as subsequently negotiated and agreed between the Company and the Affiliate, in the form of an annex forming an integral part of said Agreement;
“Application” refers to an application by the Affiliate to the Company for enrolment in the Programme;
“Business Day” means any day other than Saturday or Sunday that is not a bank or public holiday;
“Commission Plan” or “Commission Plans” means the CPA, Revenue Share or Hybrid affiliate marketing campaigns for the Target Companies available to Affiliate to apply for via the Affiliate Administration Area;
“Commencement Date” means the date of your acceptance of the Agreement by Affiliate;
“Company” refers to Online Marketing Strategies Ltd, a company incorporated under the laws of the Territory of the British Virgin Islands, having its registered office at Mill Mall Tower, 2nd Floor, Wickhams Cay 1, Road Town, Tortola VG 1110, British Virgin Islands, and bearing company registration number 1872615, as owners and operators of the Portal and of the Programme;
“Confidential Information” means all business, technical, financial or other information created or exchanged between the Parties in the course of fulfilling their obligations under the Agreement, including but not limited to lists of customers and buyers, as well as price and sales information and any information relating to products, records, operations, business plans, processes, product information, business know-how or logic, trade secrets, market opportunities and personal data;
“Current Term” means the Term that the Parties may be in at any given time;
“Intellectual Property Rights” or “IPRs” means any rights subsisting in a copyright work, trade mark, patent or design and shall be construed in accordance with applicable international agreements and domestic legislation;
“IPR Materials” refer to Intellectual Property Rights in the Marketing Materials;
“Marks” refer to trademarks, trade names, service marks or other Intellectual Property Rights;
“Marketing Materials” means the images, links, sound files or other imagery or other materials provided by Company including a Tracker URL and Sign Up Bonus Codes for Affiliate to commence the Commission Plans;
“Net Revenue” shall be defined and described in the Commission Plan forming part of a specific Agreement;
“Net Transactions” is calculated as the sum total of all users’ transactions less any costs or chargebacks incurred by the Target Company;
“Party” or “Parties” means any one or both of the parties entering into a specific Agreement for enrolment in the Programme;
“Paid Commission” refers to commission amounts accruing towards Affiliate, having been received om Affiliate’s behalf by Company, after such commission amounts were paid in full by the relevant Target Companies;
“Portal” means the website and principal portal of the Programme accessible at https://www.ig-affiliates.com.com;
“Programme” refers to the Ig-affiliates.com Affiliate Programme, described in and regulated by this document;
“Real Money” means a pecuniary (monetary) deposit by a user to his or her account with a Target Company once his or her account is open irrespective of the time, while abiding by that Target Company’s terms as regards to users engaging in Real Money transactions;
“Receiving Party” refers to the Party to this Agreement receiving Confidential Information from the other Party to this Agreement acting as the Supplying Party;
“Registration Data” means the information provided by the Affiliate when registering for enrolment in the Programme;
“Registered Email Address” means the email address of the Company as provided in the Affiliate Administration Area or the email address of the Affiliate as provided in Affiliate’s Registration Data;
“Sign Up Bonus Codes” means the unique alphanumeric code that users signed up by an affiliate may enter when opening an Account with any of the Target Companies within Company’s network. When entered, the system automatically logs the user’s data and also the Sign Up Bonus Codes and records Affiliate as the linked affiliate;
“Spam” or “Unsolicited Promotions” means emails or any other messages that are circulated by Affiliate, directly or indirectly, including messages that are posted on newsgroups, chat rooms and other types of online forums and which: 1) are directed at people who have not consented nor confirmed that they wish to receive promotional messages from Affiliate; 2) contain false or misleading statements; 3) do not truthfully identify the source or the originating IP Address; or 4) do not provide the recipient with an option to easily “Remove” themselves from receiving future mailings or promotions;
“Supplying Party” refers to the Party to this Agreement supplying Confidential Information to the other Party to this Agreement acting as the Receiving Party;
“Target Company” or “Target Companies” means any of the companies providing online entertainment services, with which Company has concluded an agreement with a view to such companies becoming target companies within the Programme, to where the traffic produced from a Commission Plan is directed;
“Term” means the term of the Agreement, as defined in article 14 of said Agreement, during which Affiliate shall participate in the Programme under the Terms and Conditions set out in the Agreement;
“Terms & Conditions” or “Terms” means the terms and conditions of this Agreement;
“Tracker URL” means a unique, encrypted hypertext link that is assigned to Affiliate’s account resulting in all referred traffic and earnings from Affiliate’s Commission Plans being tracked to Affiliate’s affiliate campaigns;
“Website” refers to one or more websites on the internet that the Affiliate maintains and operates within the framework of participating in the Programme.
Article 1 – Purpose
1.1 The Company is in the business of marketing, logistical and general support services in connection with online entertainment service provision, and to this end the Company is operating the Programme through the Portal.
1.2 The Company has entered into agreements with Target Companies engaged in provision of the services listed above, all of which operate in line with the relevant regulatory framework of the jurisdiction in which their operators have been incorporated, with relevant regulatory and licensing information pertaining to such status of each and every Target Company being specified through the terms and conditions section of the relevant website or websites operated by said Target Company.
1.3 The Affiliate maintains and operates the Website, and/or refers potential customers through other channels.
1.4 This Agreement lays out the Terms and Conditions by which said Agreement is to be governed, with said Terms and Conditions being related to the promotion of the Portal by the Affiliate, whereby the Affiliate will be paid a commission as defined in this Agreement depending on the traffic sent to the Portal and as subject to the Terms of this Agreement.
Article 2 – Enrolment in the Programme
2.1 By enrolling in the Programme, Affiliate agrees that, at the time of registration, Affiliate will provide accurate and complete Registration Data to the Company, and Affiliate shall also promptly inform Company of any changes in Affiliate Registration Data whenever such data changes.
2.2 By proceeding with an Application, Affiliate agrees that such Application automatically evidences acceptance of the provisions of this Agreement and of the Terms and Conditions contained within. Potential affiliates should not proceed any further with said Application, should they not accept said Agreement and Terms and Conditions.
2.3 Company may, at its sole discretion, review Affiliate’s Website and Registration Data following Affiliate’s acceptance of the Terms and Conditions.
2.4 Company may, in its sole and absolute discretion, choose to reject any Application by potential affiliates for any reason (and Company is under no obligation to disclose such reasons). Reasons for which the Application may be rejected include, but are not limited to, content on potential affiliate’s website that:
(a) Is in any way libellous, unlawful, harmful, threatening, obscene, harassing, discriminatory, defamatory or otherwise objectionable or unsuitable;
(b) Contains sexually explicit, pornographic, obscene or graphically violent materials;
(c) Facilitates or promotes violence, terrorism, or any other criminal activity;
(d) Infringes or assists or encourages the infringement of any intellectual property rights belonging to any party.
2.5 The Company may refuse any applicant and/or may close any Affiliate’s account if it is necessary to comply with the Company’s policy and/or protect the interest of the Company. If the Affiliate is in breach of the Agreement or of the Terms and Conditions, or else of other rules, policies and guidelines of the Company as may be published or communicated by said Company from time to time, the Company may besides closing the Affiliate’s account take any other steps at law to protect its interest.
2.6 Upon enrolment of Affiliate in the Programme, Affiliate will be instructed by Company to choose an affiliate login and username. Affiliate shall warrant not to share said login and username details with anyone, and shall accept that it is Affiliate’s responsibility to ensure the security of said details at all times.
Article 3 – Qualifying Conditions for Affiliates:
3.1 The potential affiliate hereby warrants that he/she:
(a) Is of legal age in the applicable jurisdiction in order to agree to and to enter into an Agreement;
(b) Is competent and duly authorised to enter into binding agreements;
(c) Is the proprietor of all rights, licenses and permits to market, promote and advertise the Portal in accordance with the provisions of this Agreement;
(d) Will comply with all applicable rules, laws and regulations in correlation with the promotion of the Portal;
(e) Fully understands and accepts all the provisions of the Agreement, and all of the Terms and Conditions contained therein;
(f) Has no criminal record in his country of origin or residence. Company reserves the right to close any affiliate accounts and to retain any earnings of an Affiliate who is found to violate this point.
Article 4 – Responsibilities and Obligations of the Company
4.1 On accepting an Affiliate into the Programme, the Company hereby warrants that it shall:
(a) Provide the Affiliate with all required information and Marketing Materials for the implementation of the Tracking URLs;
(b) Administrate the turnover generated via the Tracking URLs, record the Net Revenues and the total amount of commission earned via the Tracking URLs, provide the Affiliate with commission statistics, and handle all customer services related to the business. A unique tracking identification code will be assigned to all referred customers
(c) Pay the Affiliate the amount due depending on the traffic generated subject to the provisions of this Agreement and of the Terms and Conditions therein.
Article 5 – Responsibilities and Obligations of the Affiliate
5.1 On being accepted as an Affiliate within the Programme, the Affiliate hereby binds itself:
(a) To use its best efforts to actively and effectively advertise, market and promote the Portal as widely as possible in order to maximise the benefit to the Parties and to abide by the guidelines of the Company as they may be brought forward from time to time and/ or as being published online;
(b) To market and refer potential users to the Portal at its own cost and expense. The Affiliate will be solely responsible for the distribution, content and manners of its marketing activities. All of the Affiliate’s marketing activities must be professional, proper and lawful under applicable laws and must be in accordance with this Agreement and the Terms and Conditions therein;
(c) To use only Tracking URLs provided within the scope of the Programme, otherwise no warranty whatsoever can be assumed for proper registration and sales accounting. Also, not to change or modify in any way any Tracking URL or Marketing Material without prior written authorisation from the Company;
(d) To be exclusively responsible for the development, the operation, and the updating and maintenance of its Website as well as for all material appearing on its Website Company shall have no obligations towards affiliate for the maintenance or content of affiliate’s Website, saving Company’s rights concerning modification of Affiliate Websites’ content under sub-article 5.3 of this Agreement.
5.2 The Affiliate also hereby warrants, once accepted as an Affiliate within the Programme, that said Affiliate:
(a) Will not perform any act or host any content that:
i) Is in any way libellous, unlawful, harmful, threatening, obscene,harassing, discriminatory, defamatory or otherwise objectionable or unsuitable;
ii) Contains sexually explicit, pornographic, obscene or graphically violent materials;
iii) Facilitates or promotes violence, terrorism, or any other criminal activity;
iv) Infringes or assists or encourages the infringement of any intellectual property rights belonging to any party;
(b) Will not generate traffic to the Portal by illegal or fraudulent activity, particularly but not limited to generating such traffic by:
(i) Sending Spam or engaging in Unsolicited Promotions;
(ii) Using incorrect meta tags;
(iii) Registering as a user and utilising resulting user account through Affiliate’s Tracking URLs for its own personal use and/or the use of its relatives, friends, employees or other third parties, or in any other way attempt to artificially increase the commission payable or to otherwise defraud the Company. Violation of this provision shall be deemed to be fraud.
(c) Will not present Affiliate’s Website in such a way that it might evoke any risk of confusion with the Portal and/or the Company and or convey the impression that Affiliate’s website is partly or fully originated with the Portal and/or the Company.
(d) Without prejudice to the Marketing Material as may be forwarded by the Company and/or made available online through the Portal, Affiliate may not use the Portal or other terms, trademarks and other Intellectual Property Rights that are vested in the Company unless the Company consents to such use in writing.
5.3 Company is under no obligation to pre-screen any content added to Affiliate’s Website or any website under Affiliate’s direct or indirect control. However, in the event that Company provides Affiliate with written notification of any content that falls within that described in sub-article 5.2(a) of this Agreement, Affiliate will ensure that such content is removed within two (2) Business Days of receipt of such notice.
Article 6 – Affiliate Commission Plans
6.1 Company agrees to pay Affiliate a commission based on the Net Revenue generated from new customers referred by the Affiliate’s Website and/or other channels. New customers are those customers of Target Companies who do not yet have a user account and who access the Portal via the Tracking URL and who properly register and make Real Money transfers at least equivalent to the Target Company’s minimum deposit into their user account. The commission shall be deemed to be inclusive of any taxes if applicable.
6.2 The commission shall be a percentage in accordance with what is set out in the commission structures for the particular product. The calculation is product-specific and it is set out in every product-specific commission structure. The specific commission rates are described in the Commission Plan in the Affiliate Administration Area. There are three forms of commission arrangements:
(a) Revenue Share is a commission structure which is calculated as a percentage of Net Transactions;
(b) Cost Per Acquisition Plan (CPA) is the fixed amount Affiliate receives for a referred user, when said user engages in Real Money transactions. In contrast to Revenue Share, the CPA commission is paid only once;
(c) Hybrid is a combination of CPA and Revenue Share.
6.3 Commission shall be calculated only once Company has received Paid Commission on behalf of Affiliate. Only Paid Commission will be logged in Affiliate Administration Area in favour of Affiliate.
6.4 All Commission Plans are subject to the specific rules and requirements imposed by the Target Company such as the Target Company imposing minimum deposit requirements or minimum loyalty points requirements on users before any commission is paid to an affiliate.
6.5 Any and all Paid Commission shall be based on revenue less any tax due, however, Affiliate may still be liable to pay tax on commission received from Company. By accepting the provisions of this Agreement and the Terms and Conditions therein, Affiliate hereby acknowledges that said Affiliate is solely responsible for the payment of tax on any income Affiliate may generate through said Affiliate’s involvement in the Programme.
6.6 Company reserves the right to modify the commission rates of any of the Company’s Commission Plans at any time. This may be necessary where a Target Company unilaterally changes said Target Company’s commission rates and the Company has to adapt said Company’s rates accordingly. The Company will endeavour to provide Affiliate with as much notice as possible prior to implementing any such change.
6.7 At the sole discretion of Company, Affiliate may be given the opportunity to restructure its commission structure. Company hereby states to Affiliate that only one type of revenue structure may be applied and it shall not be possible for two different revenue structures to co-exist. Therefore, once Affiliate opts to accept Company’s offer for a different revenue structure to the commission structure then in force between Company and Affiliate, then Affiliate is aware and hereby agrees and understands that the new proposed revenue structure shall replace Affiliate’s existing commission structure in its entirety. Notwithstanding the above, all of Affiliate’s obligations assumed under this present Agreement and the Terms and Conditions therein will still continue to apply to Affiliate up until the termination of this Agreement and thereafter, in accordance with the provisions of said Agreement as well as the Terms and Conditions therein.
6.8 By way of affiliate sales reporting by Company, full reports of all commission generated by Affiliate will be available to Affiliate in the Affiliate Administration Area of the Portal.
Article 7 – Payment of Affiliate Commissions
7.1 All due payments will be payable by Company to Affiliate in United States Dollars (USD) or Euros (EUR), and will be paid to Affiliate within a reasonable time of Company receiving a payment request from said Affiliate. Payment methods include Skrill (MoneyBookers), Neteller, or bank wire transfer, unless otherwise agreed.
7.2 The commission is calculated at the end of each month and payments shall be performed by the fifth (5th) day of each calendar month, provided that the amount due exceeds Euro one hundred (€100.00) for bank wire transfers and Euro twenty-five (€25.00) for Skrill and Neteller (minimum threshold). Affiliate will be entitled to withdraw Paid Commission subject to the withdrawal limitations imposed by the respective payment methods. If the balance due is less than the minimum threshold, it shall be carried over to the following month and shall be payable when it collectively exceeds the minimum threshold.
7.3 Payment of commissions shall be made as per the payment method chosen by Affiliate in the affiliate account. If an error is made in calculating the commission, Company reserves the right to correct such calculation at any time and will immediately pay out underpayment or reclaim overpayment made to Affiliate.
7.4 Acceptance of payment by Affiliate shall be deemed to be the full and final settlement of the balance due for the period indicated.
7.5 Affiliate shall be exclusively responsible for the payment of any and all taxes, levies, fees, charges and any other money payable or due both locally and abroad (if any) to any tax authority, department or other competent entity by Affiliate as a result of the revenue generated under this Agreement. Company shall in no manner whatsoever be held liable for any amounts unpaid but found to be due by Affiliate, and Affiliate hereby indemnifies Company in that regard.
7.6 If Affiliate disagrees with the balance due as reported, it shall within a period of thirty (30) days notify Company in writing, and indicate the reasons of such dispute. Failure to communicate such notice in writing within the prescribed time limit shall be deemed to be considered as an irrevocable acknowledgment of the balance due for the period indicated.
7.7 Company may delay payment of any balance to Affiliate for up to one hundred and eighty (180) days, while it investigates and verifies that the relevant transactions comply with the provisions of the Agreement or of the Terms and Conditions therein.
7.8 In the event of any refunds, chargebacks, or claims by users at the Target Companies issued for any reasons including, but not limited to fraud, Affiliate may be contacted to arrange for the repayment of any related Paid Commission.
7.9 No payment shall be due when the traffic generated is illegal or contravenes any provision of this Agreement or of the Terms and Conditions therein.
7.10 Affiliate agrees to return all commissions received based on fraudulent or falsified transactions, plus all costs for legal causes or actions that may be brought against Affiliate to the fullest extent of the law.
7.11 For the sake of clarity the Parties specifically agree that upon termination of this Agreement by either Party, Affiliate shall no longer be entitled to receive any payment whatsoever from Company, provided that payments already due (earned and unpaid commissions) shall be paid out.
Article 8 – Warranties
8.1 In accepting this Agreement and the Terms and Conditions therein, Affiliate hereby warrants and acknowledges that:
(a) Affiliate’s Website does not and will not contain any content that:
i) Is in any way libellous, unlawful, harmful, threatening, [obscene,] harassing, discriminatory, defamatory or otherwise objectionable or unsuitable;
ii) Contains sexually explicit, pornographic, obscene or graphically violent materials;
iii) Facilitates or promotes violence, terrorism, or any other criminal activity;
iv) Infringes or assists or encourages the infringement of any intellectual property rights belonging to any party;
(b) Affiliate’s Website is and shall remain functional and, subject to the provisions of article 15 of this Agreement, reasonable downtime for maintenance or third-party access restrictions, accessible to all users of the internet;
(c) All necessary authorities, consents and approvals have been obtained in respect of Affiliate’s obligations under this Agreement and the Terms and Conditions therein, and will remain valid and effective throughout the Term;
(d) Affiliate’s obligations under this Agreement and the Terms and Conditions therein shall constitute legal, valid and binding obligations on Affiliate. Such obligations shall be direct, unconditional and general obligations;
(e) Affiliate shall not engage in any Spam or Unsolicited Promotions that said Affiliate may conduct to generate traffic for the Commission Plans;
(f) Should Affiliate engage in email marketing as a means of promotion for the Commission Plans, Affiliate will at all times ensure compliance with all relevant local laws including the United States of America CAN-SPAM Act and European Union Privacy and Electronic Communication Directive, as applicable. Affiliate will at all times at the very least ensure that recipients of said Affiliate’s emails have opted in to receive such emails and that said recipients are provided with the option to unsubscribe from any emails Affiliate sends; and
(g) Affiliate will only apply for one affiliate account unless express permission has been granted by Company.
Article 9 – Disclaimers
9.1 Affiliate expressly acknowledges and agrees that the use of the internet is at its risk and that the Programme is provided “as is” and “as available” without any warranties or conditions whatsoever, express or implied;
9.2 Company makes no warranty or representation that the Portal, the Programme, or Commission Plans will:
(a) meet Affiliate’s requirements or those of Affiliate’s visitors;
(b) be of satisfactory quality to Affiliate;
(c) be fit for a particular purpose;
(d) not infringe the rights of third parties;
(e) be compatible with all systems;
(f) be secure;
(g) contain information that would all be accurate.
9.3 Company makes no guarantee of any specific results from the use of the Portal or from enrolment in the Programme.
9.4 Company makes no guarantee that the Portal shall remain functional and accessible to all users of the internet.
9.5 Company cannot guarantee that Company’s system, both software and hardware, will not have down time or will be error free at any point during Company’s business operation. Company will endeavour to provide Affiliate with customer and technical support in keeping with industry standards to make sure all problems are resolved on time and that Affiliate accounts, reports and information are intact with regard to all commissions, payments and account holder information.
Article 10 – Liability
10.1 Company shall not be liable to Affiliate for any indirect or consequential loss that Affiliate may suffer even if such loss is reasonably foreseeable or if Company have been advised of the possibility of such loss being incurred.
10.2 Company’s entire liability to Affiliate in respect of any breach of Company’s contractual obligations, any breach of warranty, any representation, statement or tortious act or omission including negligence arising under or in connection with this Agreement and the Terms and Conditions therein shall be limited to no more than the amount of Paid Commission paid to Affiliate.
10.3 Notwithstanding any other provision in this Agreement and the Terms and Conditions therein, Company’s liability to Affiliate for death or injury resulting from Company’s own negligence or that of Company’s employees, agents or sub-contractors shall not be limited.
Article 11 – Indemnification
11.1 By accepting the provisions of this Agreement and the Terms and Conditions therein, Affiliate agrees that said Affiliate shall defend, indemnify and hold Company and its subsidiaries, successors, officers, employees, agents, directors, shareholders and attorneys, free and harmless from and against any and all claims and liabilities, loss, damages, costs and expenses, in full, including attorneys’ and experts’ fees, awarded against or incurred or paid by Company as a result of, in connection with, related to, or arising from:
(a) Any breach of Affiliate’s representations, warranties or covenants under this Agreement or the Terms and Conditions therein;
(b) Affiliate’s use (or misuse) of the Marketing Materials;
(c) All conduct and activities occurring under Affiliate’s user ID and password;
(d) Any defamatory, libellous or illegal material contained within Affiliate’s Website or as part of Affiliate’s information and data;
(e) Any claim or contention that Affiliate’s Website or Affiliate’s information and data infringes any third party’s patent, copyright, trademark, or other Intellectual Property Rights or violates any third party’s rights of privacy or publicity, except to the extent that the claim arises from compliance with any terms stipulated by Company; and
(f) Third party access or use of Affiliate’s Website or to Affiliate’s information and data;
(g) Any claim related to Affiliate’s Website;
(h) Any act or omission by Affiliate or said Affiliate’s employees, agents or sub-contractors in performing Affiliate’s obligations under this Agreement or the Terms and Conditions thein, or otherwise any violation of this Agreement or of the Terms and Conditions therein by Affiliate or said Affiliate’s employees, agents or sub-contractors.
11.2 Company reserves the right to participate, at its own expense, in the defence of any matter.
11.3 Company shall in no event be liable to Affiliate or anyone else for any inaccuracy, error or omission in, or loss, injury or damage caused in whole or in part by failures, delays or interruptions of the Portal or of the Programme.
Article 12 – Confidentiality:
12.1 All Confidential Information imparted by a Supplying Party to a Receiving Party shall be treated with the utmost care and secrecy by said Receiving Party.
12.2 Such Confidential Information must not be used or disclosed or otherwise made available by said Receiving Party, directly or indirectly, to any person other than said Receiving Party’s officers and employees who need the Confidential Information to enable said Receiving Party to perform its obligations under this Agreement and the Terms and Conditions therein, and provided that such officers and employees are also obliged to keep such Confidential Information confidential and secret.
12.3 Confidential Information shall also not be used for the Receiving Party’s own commercial or other purposes.
12.4 Such Confidential Information may be divulged to third parties by the Receiving Party, either directly or indirectly, outside of the provisions laid out above, only with the Supplying Party’s prior explicit and written consent.
12.5 This entire article shall survive the termination of this Agreement.
12.6 The foregoing obligations shall not apply to any information acquired by the Receiving Party which:
(a) At the time of its acquisition was in the public domain; or
(b) At a later date comes into the public domain through no fault of the Receiving Party.
12.7 Each Party hereby agrees and undertakes:
(a) That all Confidential Information shall be and shall remain at all times the sole and exclusive property of the Supplying Party;
(b) That a Party’s right to use Confidential Information shall wholly cease upon the termination of the Agreement; and
(c) To return to the Supplying Party on termination of the Agreement all material embodying Confidential Information (including information stored on digital media) or any part thereof and all copies thereof.
12.8 Affiliate is not authorised to issue any sort of media communication about the Programme and/or the Target Companies without Company’s prior consent.
Article 13 – Trademarks and Intellectual Property
13.1 Affiliate’s use of the IPR Materials is only authorised to the extent required to establish links and perform Affiliate’s obligations under this Agreement and the Terms and Conditions therein.
13.2 In the event that Affiliate wishes to use the IPR Materials for any purposes outside of this Agreement and the Terms and Conditions therein, Affiliate must not do so without Company’s prior written consent.
13.3 By accepting this Agreement and the Terms and Conditions therein, Affiliate hereby agrees that:
(a) The IPR Materials shall remain the property of the Target Companies, and where relevant the Company, unless the Company or the Target Companies assign the IPR Materials to a third party;
(b) Nothing in this Agreement or in the Terms and Conditions therein shall be deemed to confer any ownership rights in the IPR Materials on the Affiliate; and
(c) Affiliate shall not contest the validity of any of the IPR Materials.
13.4 Unless otherwise expressly indicated, the Company are the sole and exclusive owners of all IPRs in the Portal including, but not limited to: all code, text, sound, video, graphics, photographs and other images that form a part of said Portal. Said Company shall also be the sole and exclusive owners of all IPRs which may subsist in any supporting documentation which shall include, but not be limited to, site plans, maps, design sketches and other preparatory material. Said Company shall likewise be the sole and exclusive owners of all IPRs which may subsist in all future updates, additions and alterations to said Portal, such material including any supporting documentation.
13.5 Nothing contained in this Agreement will grant either Party any right, title or interest in the Marks of the other Party. At no time during or after the Term will either Party attempt or challenge or assist or allow others to challenge or to register or to attempt to register the Marks of the other Party or of any company within the group of companies of the other Party. Provided also that neither of the Parties will register nor attempt to register any Mark which is basically similar to and/or confusingly similar to any Mark which belongs to the other Party or to any company contained within the other Party’s group of companies.
Article 14 – Term and Termination
14.1 Unless earlier terminated as specified below, this Agreement shall commence on the Commencement Date, and the Term shall run for a period of one (1) year from the Commencement Date, automatically renewing for successive one (1) year periods thereafter. This Agreement may be sooner terminated by either Party in the case of:
(a) either of the Parties giving thirty (30) days’ prior written notice to the other Party, or;
(b) serious fraud or abuse by one of the Parties, in which case the other Party will be authorised, on production of relevant evidence, to take relevant steps at law in order to proceed with such termination; or
(c) a determination being made by the Company or any related third party, including a Target Company, that any traffic has been derived fraudulently by the Affiliate. This shall be without prejudice to the Company’s rights to withhold any payments due to Affiliate or recover any payments made to Affiliate where it is subsequently determined that evidence of fraud or dishonesty exists, as well as with respect to reporting Affiliate’s activity;
(d) immediately in the event of insolvency of one of the Parties, or upon the appointment of any Receiver or Trustee to take possession of the property of the said Party, in which case the other Party will be authorised to take relevant steps at law in order to proceed with such termination.
14.2 The expiration or termination of this Agreement for any reason whatsoever will not relieve either Party from its obligations to perform, in accordance with the provisions of this Agreement and the Terms and Conditions therein, pursuant to any business agreed between the Parties prior to the date of such termination or expiration.
14.3 The Parties hereby agree that upon the termination of this Agreement:
(a) Affiliate must remove all references to the Portal and all Marketing Materials from said Affiliate’s Websites and/or other marketing and communications channels, and shall cease promoting any of the Commission Plans, irrespectively of whether the channels in question are commercial or non-commercial, as well as cease any form of email marketing;
(b) All rights and licenses granted to Affiliate under this Agreement shall immediately terminate and all rights shall revert to the respective licensors, and Affiliate will cease the use of any Marks vested in the Company;
(c) Affiliate will be entitled only to those earned and unpaid commissions as of the effective date of termination; however provided, Company may withhold Affiliate’s final payment for a reasonable time to ensure that the correct amount is paid. Affiliate will not be eligible to earn or receive commissions after this date;
(d) If this Agreement is terminated by the Company on the basis of Affiliate’s breach in accordance with sub-article 14.2(b) or (c), Affiliate’s account will be immediately frozen, said Affiliate will be removed from accessing any of the Commission Plans, and any Commission owed to said Affiliate at that time shall be frozen and the following commission release process will apply:
i) Company shall be entitled to withhold said Affiliate’s earned but unpaid commissions as of the termination date as collateral for any claim arising from such breach. It is further specified that termination by the Company due to a breach by the Affiliate of any of the articles in this Agreement or of the Terms and Conditions therein shall not require a notice period and such termination shall have immediate effect upon simple notification by the Company to the Affiliate;
ii) Upon expenses related to the breach having been settled by the Company, the Company will provide the Affiliate with notice of said Affiliate’s remaining balance of its total Paid Commission if any, and in such case, the Company will request from said Affiliate its preferred payment method and its payment details;
iii) Upon receipt of such details, payment will be remitted to Affiliate within a reasonable period.
(e) Affiliate must return to Company any and all Confidential Information (and all copies and derivations thereof) in Affiliate’s possession, custody and control;
(f) Affiliate will release Company from all obligations and liabilities occurring or arising after the date of such termination, except with respect to those obligations that by their nature are designed to survive termination. Termination will not relieve Affiliate from any liability arising from any breach of this Agreement or of the Terms and Conditions therein, which occurred prior to termination and/or to any liability arising from any breach of Confidential Information even if the breach arises at any time following the termination of this Agreement. Affiliate’s obligation of confidentiality towards Company shall survive the termination of this Agreement.
Article 15 – Force Majeure
15.1 Neither Party to this Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to, power failure, internet service provider failure, labour disputes, strikes, industrial disturbances, acts of God, civil unrest, fire, flood, storms, lightning, earthquakes, acts of terrorism, acts of war, utility or communications failures, governmental action or any other event that is beyond the control of the Party in question.
15.2 If a force majeure event occurs, the non-performing Party is excused from whatever performance is prevented by the force majeure event to the extent prevented. Provided that, if the force majeure event subsists for a period exceeding thirty (30) days then either Party may terminate the Agreement without notice.
Article 16 – Relationship of the Parties and Non-Exclusivity
16.1 Nothing in this Agreement or in the Terms and Conditions therein, nor any action taken by any Party to this Agreement, shall constitute, or be deemed to create, a partnership between the Parties; nor, except as expressly provided, shall it designate, or be deemed to designate, any Party the agent of any other Party for any purpose, nor shall it be deemed to constitute either Party (or any of such Party’s employees, agents, or representatives) an employee, or legal representative of the other Party, nor to create any partnership, joint venture, association, or syndication among or between the Parties, nor to confer on either Party any express or implied right, power or authority to enter into any agreement or commitment on behalf of (nor to impose any obligation upon) the other Party.
16.2 Subject to any express provisions to the contrary in this Agreement or in the Terms and Conditions therein, Affiliate shall have no right or authority to and shall not perform any act, enter into any contract, make any representation, give any warranty, incur any liability, and/or assume any obligation, whether express or implied, of any kind on Company’s behalf, or bind Company in any way.
16.3 The relationship between the Parties shall be and shall remain non-exclusive. Both Parties are free to enter into similar relationships with other parties.
Article 17 – Governing Law & Jurisdiction:
17.1 This Agreement shall be governed and construed in accordance with the laws of Malta and any action or dispute relating to this Agreement must first be discussed between the Parties with a view to attempting an amicable resolution, and should such discussions fail after a reasonable time, be brought before the competent courts in Malta, and the Affiliate irrevocably consents to the jurisdiction of the Maltese courts.
Article 18 – Notices
18.1. Unless otherwise stated in this Agreement, the Parties agree that all notices to be served under the Agreement shall be in writing and may be sent by email to the other Party’s Registered Email Address [and then, if no confirmation is received by the other Party, by post within fourteen (14) Business Days to the following addresses]:
(a) For the Company:
(b) For the Affiliate:
Email: Registered Email Address
[Postal Address: address provided in Registration Data].
Article 19 – No Waiver
19.1. The Parties agree that no waiver shall be implied from conduct or failure to enforce any rights contained within the provisions of this Agreement or of the Terms and Conditions therein, as to the right to subsequently enforce that provision or any other provision of said Agreement or of the Terms and Conditions therein. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver. Any waiver granted by either of the Parties to this Agreement or to the Terms and Conditions therein to the other Party must be in writing to be effective.
19.2. The Company’s failure to enforce the Affiliate’s adherence to the provisions of this Agreement or of the Terms and Conditions therein shall not constitute a waiver of the right of the Company to enforce said terms at any time.
Article 20 – Non-Assignment
20.1. Affiliate may not assign this Agreement, by operation of law or otherwise, without obtaining Company’s prior written consent. In the event that Affiliate acquires or otherwise obtains control of another affiliate of the Programme, then accounts will coexist on individual terms.
20.2. Company may assign this Agreement, by operation of the law or otherwise, at any time without obtaining Affiliate’s prior consent.
Article 21 – Changes to the Agreement
21.1. Company reserves the right to amend, alter, delete or add to any of the provisions of this Agreement, at any time and at its sole discretion, without giving any advance notice to Affiliate subject to the provisions set out in this Agreement and the Terms and Conditions therein. Any such changes will be published on the Portal.
21.2. In case of any discrepancy between the meanings of any translated versions of this Agreement, the English language version shall prevail.
Article 22 – Entire Agreement
22.1. This Agreement and the Terms and Conditions therein shall embody and set forth the entire agreement and understanding between the Parties and shall supersede all prior oral or written agreements, understandings or arrangements relating to the Programme or the relationship between the Parties.
22.2. Neither Party shall be entitled to rely on any agreement, understanding or arrangement not expressly set forth in this Agreement and in the Terms and Conditions therein, save for any representation made fraudulently.
22.3. Unless otherwise expressly provided elsewhere in this Agreement and the Terms and Conditions therein, the Agreement may be varied only by a document signed by both of the Parties.
Article 23 – Validity and Severance
23.1. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law but, if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such provision will be ineffective only to the extent of such invalidity, or unenforceability, without invalidating the remainder of this Agreement.
23.2. The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid, or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of this Agreement. The remainder of the Agreement shall be valid and enforceable.