NSUS Affiliate Club Affiliate Agreement - Terms & Conditions
This Affiliate Agreement (the "Agreement") contains the complete terms and conditions between ourselves, NSUS Group Inc.(the "Company" or "we" or "us" or "our"), and you, regarding your application to participate as an affiliate (an "Affiliate", "you" and "your") of the Company in its Affiliates scheme (the "Affiliates Scheme"). As an affiliate your role will be to promote NSUS Affiliate Club brands, including GGPoker, PokerOK and MBP, and/or any other site, brand and application made available through the Affiliates Scheme from time to time (individually the "Site", together the "Sites"). By accepting the terms and conditions of this Agreement, you are entering a legally binding agreement with us.
1. Affiliates Application and Enrolment
1-1. To become an Affiliate within the Affiliates Scheme, you will have to complete the Affiliates application, as available via http://www.nsusaff.com/. We will evaluate your application and, provided your application is acceptable, notify you of your acceptance to the Affiliates Scheme. We shall have the right at our sole discretion to reject your application to the Affiliates Scheme at any time.
1-2. We may reject your application or terminate this Agreement with immediate effect, if we determine, in our sole discretion, that your marketing methods (including websites, emails, applications, all as indicated in your application) (collectively the "Affiliate Websites") are not suitable for any reason, including, but not limited to, inclusion of content on your Affiliate Websites that we deem is in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable, which by way of example only, might mean that it contains: (i) sexually explicit, pornographic or obscene content (whether in text or graphics), (ii) speech or images that are offensive, profane, hateful, threatening, harmful, defamatory, libellous, harassing or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability or otherwise), (iii) graphic violence, (iv) politically sensitive or controversial issues or (v) any unlawful behaviour or conduct. Similarly, we shall reject your application or terminate this Agreement if we determine, in our sole discretion, that any of your Affiliate Websites are designed to appeal to minors.
1-3. The Company is strongly committed to the protection of its end-users from all types of malicious, harmful or intrusive software and holds a zero-tolerance policy in such regard. Therefore, we shall reject your application or immediately terminate this Agreement if we deem, at our sole discretion, that any of your Affiliate Website(s) are designed to distribute or promote any spyware, adware, trojans, viruses, worms, spybots, keyloggers or any other form of malware.
1-4. The Company is committed, in accordance with its zero-tolerance policy for bribery and corruption (the "Anti Bribery and Corruption Policy "), to ensure that all of its activities and the activities of all of its affiliates and business partners comply with all applicable laws and regulations and accord to the highest principles of corporate ethics. Accordingly, in submitting an application for enrolment in the Affiliates Scheme and in performing your activities under this Agreement, you undertake to comply with all applicable laws related to the fight against bribery and corruption and shall not offer, promise, give, authorize, solicit or accept any undue pecuniary or other advantage related to any prospective Prospect, Real Money Players, Commissions, Sub-Affiliates (each as defined below) or otherwise. We shall reject your application or immediately terminate this Agreement if we determine, in our sole discretion, that any of your activities do not fully comply with our Anti Bribery and Corruption Policy.
1-5. You shall have no right to appeal any decision by the Company to reject your application.
1-6. The Company reserves the right to perform background checks on you and request any relevant documentation, for any reason, including (but not limited to) any investigation into your identity, personal history, registration details, such as name, address and age and your financial transactions and financial standing. The Company is under no obligation to advise you that such investigation is taking place. Such activities may include the use of specific third party companies, who perform the investigations as required. The Company may decide at its sole discretion to terminate this Agreement on the basis that such an investigation provides a negative or uncertain conclusion. The documents requested by us shall typically include an identity card, certificate of incorporation or anything analogous thereto and proof of address. If deemed necessary, the Company may request that the said document copies are notarized by a Public Notary. In the event our requests for documents are not completed or if we suspect that they have been tampered with, or are in any way provided to mislead or misrepresent – we shall be under no obligation to accept such documents as valid and we may withhold any past or future Commissions which have accrued or which shall accrue to your benefit as well as reject your application or terminate this Agreement with immediate effect.
2. Protection of Minors
2-1. Persons under the age of 18 are not allowed to register with or play on the Sites. The Sites are not designed to attract children or adolescents, and we take certain measures to block underage persons from registering with the Sites. Therefore, we shall reject your application if we determine, at our sole discretion, that any of your Affiliate Website(s) are designed to appeal to minors and, as such, are not suitable for the Affiliates Scheme.
3. Links and Promotions
3-1. In the event of your acceptance as an Affiliate, we will make available to you banner advertisements, button links, text links and other content as determined by the Company which will be associated with you on our system, all of which shall relate and link specifically to the Sites (collectively referred to hereinafter as the "Links"). You may display such Links on your Affiliate Website(s), provided you abide by the terms and conditions of this Agreement and that you possess the legal right to use the Affiliate Website(s) in relation to the Affiliate Scheme.
3-2. In using the Links, you agree that you will cooperate fully with us in order to establish and maintain the Links. If during the term of this Agreement you wish to place the Links on websites other than the Affiliate Website(s) you must request and receive the Company's prior written permission for the placement of the Links on such alternative websites before placing any such Links (where permission is granted, such alternative websites shall then become Affiliate Website(s) for the purposes of this Agreement).
3-3. You may not modify a Link or any GGNetwork-branded or NSUS Affiliate Club-branded content, unless you have received prior written consent from the Company to do so. In the event that we determine that your use of any Link is not in compliance with the terms of this Agreement, we may take such measures as to render such Links inoperative. You may not advertise the Sites in any way not approved in advance by the Company in writing including, without limitation, the use of spam messages.
3-4. In addition to your use of Links you may promote the Sites by means of publication of bonus codes (each a "Promotion" and collectively the "Promotions"). Your activities in relation to a Promotion shall be strictly in accordance with the Company's or its affiliate's relevant guidelines as such shall exist and be amended from time to time. Your offering of a Promotion at any time shall be conditional on your receipt of prior written approval from the Company for the Promotion and in the event that you do not receive our approval in relation to a Promotion, you shall not be permitted to receive any Commissions generated on account of Real Money Players, as defined below, in relation to such unapproved Promotion.
3-5. You will not market or promote the Site or use any of the Licensed Materials (as defined below) on any website, software, application or portal which infringes upon the intellectual property rights of any third party.
3-6. You shall refrain from marketing the Sites in any way which might compete with our own marketing efforts, unless you have received written approval from us in such regard. By way of example, the following activities will be considered to be activities, which if undertaken by you, would compete with our own marketing efforts and are prohibited hereunder: (i) the placement of Links on any Internet sites on which we place advertisements for the Sites; (ii) the promotion of the Sites by you by way of keyword advertising with Internet search engines; (iii) The promotion of the Sites by you outside of the jurisdictions in which you have been authorized to go to market; this will include the promotion of the Sites to audiences in prohibited jurisdictions via social media channels, whether via paid marketing or organic marketing efforts.
3-7. Your breach of the foregoing provisions will constitute a breach of this Agreement, and the Company retains full authority to: (i) terminate this Agreement immediately in the event of such breach and (ii) retain for its own account any Commission accrued to your benefit at such time and thereafter.
3-8. In relation to PPC and keyword bidding it is hereby made clear that you may not advertise (make use in any search engine ads) or 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 the Company's or its affiliate's trademarks or trade names from time to time, which includes but is not limited to "NSUS Affiliate Club", “GGNetwork”, “GGPoker”, “PokerOK”, “MBP”, or any word similar to the name of the Sites and all other sites or applications owned or operated by any entity within the Company's group (collectively the "Group Websites"). In addition, you shall not include metatag keywords in PPC advertising which are identical or similar to any trademarks or trade names owned by the Company from time to time or otherwise including, but not limited to, the words "NSUS Affiliate Club", “All-In or Fold”, “Omaholic”, “Rush & Cash”, etc.
4. Prospects and Real Money Players
4-1. A "Prospect" shall mean a distinct Internet user who during the term of this Agreement accesses the Site directly through a Link published by you on your Affiliate Website(s) or otherwise distributed by you in accordance with this Agreement, opens a new user account with the Site and makes the required minimum deposit. Notwithstanding the foregoing, players who received a first money transfer into their account from a third party shall not be required to make a minimum deposit in their new user account prior to becoming a Prospect (such players however shall not be counted for payments associated with CPA trackers or hybrid trackers and shall not contribute to any tranche associated with progressive revenue share schemes).
4-2. A "Real Money Player" is a Prospect who in addition has:
(i) For CPA trackers and CPA component in hybrid trackers: (a) been promptly verified and approved in accordance with applicable regulatory requirements, including any applicable age or ID verification; and (b) meets any other qualifications based on gaming activity which we may add from time to time per territory at our discretion; (ii) For Revenue Share trackers: plays on the Site or Sites.
4-3. Neither you nor your relatives are eligible to become Prospects or Real Money Players and should you or they do so you will not be eligible to receive the Commission and such attempt on your part shall be considered a fraudulent act against the Company. For this purpose, the term "relative" shall mean any of the following: spouse, partner, parent, child or sibling.
4-4. The number of Prospects per individual household computer is strictly limited to one.
4-5. The Company’s measurements and calculations in relation to the number of Real Money Players and the relevant Gross Revenue figures shall be the sole and authoritative tool and shall not be open to review or appeal.
4-6. We shall make the number of your Real Money Players and the relevant Gross Revenue figures available to you through the Affiliates Information Site. It should be noted that the Affiliates Information Site is intended for informational purposes only, on an "as-is" basis and is not to be relied upon for any other purpose, including any payment. Such data is provided on a dynamic basis and may change. In case of discrepancy between the data provided through the Affiliates Information Site and the Company's records, the Company's records shall govern. To permit accurate tracking, reporting and commission accrual, you must ensure that the Links between your Affiliate Websites and the Sites are properly formatted throughout the term of this Agreement.
5-1. The commission scheme shall be as set out on the NSUS Affiliate Club Affiliate Website (the "Commission"), and may be modified in accordance with the terms of this Agreement. For any scheme containing a revenue share component, you will receive the applicable percentage of Net Revenue as such term is defined below and subject to the terms herein.
5-2. For these purposes, the term "Net Revenue" shall mean Real Money Players' contribution to poker table game rake and poker tournament fees (excluding the prizes) plus the sum of Real Money Players' settled bets on non-poker games (excluding any contributions to progressive jackpots), less the winnings of Real Money Players on non-poker games (other than cashed-out progressive jackpot winning amounts), less any credits, bonus, bonus points or other promotional amounts given to Real Money Players, less any Tournament Overlays, less any returned transactions or any uncollectible (or refunded) revenue attributable to a Real Money Player (including chargebacks, 'preventative' chargebacks or in settlement of any claims involving a Real Money Player), less any third party fees (including payment processing fees, any end-user verification and validation fees, software royalties and any game content fees, and applicable Facebook fees) attributable to a Real Money Player, less any licensing fees, applicable gaming taxes, value added taxes, duties or similar mandatory payments imposed by any authority having jurisdiction over the Company.
5-3. A Real Money Player's contribution to the "Rake" generated by each cash game hand shall be determined by reference to the following equation: (Total $ contributed to the pot by the Real Money Player / Total $ in the pot) * Total Rake for the hand * PVI, where “PVI” is the Player Value Index assigned to each player. The PVI is determined by a Player’s actions on the GGNetwork platform.
5-4. Notwithstanding the foregoing, we reserve the right to change the "rake" allocation model from time to time and may do so with respect to all Real Money Players, both existing and new.
5-5. "Tournament Overlay" refer to the applicable portion as determined by the Company of the total sum of shortfalls (if any) between the guaranteed prize and the total prize pool collected from the participants of any guaranteed poker tournament (including free-rolls, network shared tournaments, and tournaments set up at the Affiliate's request and agreed by the Company).
5-6. For avoidance of doubt, the Company shall be under no obligation to pay any commissions under any Commission scheme with respect to Real Money Players which were blocked or suspended by the Company for any reason (including for reasons of fraud or any failure to validate the end-user account). However, the Company may deduct from Gross Revenue any or all charges or expenses attributable to blocked or suspended Real Money Players.
5-7. Notwithstanding the foregoing, you acknowledge and agree that a different payment scheme may apply to other Affiliates who are already being paid by the Company in accordance with an older or alternative payment scheme or in other particular cases as determined at the Company's sole discretion from time to time.
5-8. Subject to all other terms of this Agreement, all Commissions shall be paid to you on a monthly basis, within approximately 30 days following the end of each calendar month. Payments of Commissions shall be made directly to you as per your preferred payment method and to the account detailed by you as part of your application process (the "Payment Account"). It is your responsibility to ensure that the details provided by you are both accurate and complete and the Company will have no obligation whatsoever to verify the accuracy and completeness of such details. In the event that you provide the Company with incorrect or incomplete details or you have failed to update your details and as a result your Commission is paid to an incorrect Payment Account, the Company shall no longer be liable to you for any such Commission. Without derogating from the foregoing, if the Company is not able to transfer the Commissions to you, the Company reserves the right to subtract from the Commissions due to you an amount of money to reflect the required investigation and additional work created by you having provided incorrect or incomplete details. Should the Company not be able to transfer any Commission payment for 6 consecutive months as a result of any incomplete or incorrect details of your Payment Account or for any other reason beyond the control of the Company, the Company reserves the right to withhold any such Commission payments and will no longer be liable to pay such Commission.
5-9. The Company reserves the right to request that you provide the Company with written documentation verifying all your beneficiaries and Payment Account at any time, including upon registration and when any change is made relating to your Payment Account. The Company is not obligated to make any payments until verification is completed to its satisfaction. If the Company believes at its sole discretion that you have failed to provide it with such verification, the Company retains the right to terminate this Agreement immediately and you shall not be entitled to receive any Commissions which have accrued to your benefit at such time or thereafter.
5-10. The Company reserves the right to take action against any Affiliate or its referred players that show patterns of manipulating the Affiliates Scheme in any way whatsoever. If we determine at our sole discretion that such conduct is being practiced, we may withhold and keep any Commission payments accrued to the benefit of the relevant Affiliate at such time and thereafter and terminate this Agreement with immediate effect.
5-11. Where you earn your Commission in accordance with the revenue share schemes as set out above the Company will apply a negative balance carry-over policy (the "Policy"). The Policy consists of the following two rules : (i) in reaching the total commission amount owed to you in a calendar month the Company shall calculate all commissions, both positive and negative, generated by Real Money Players via our Sites; and (ii) in the event that at the conclusion of a calendar month the commission generated by Real Money Players via our Sites is a negative amount, we shall apply such negative amount to the commission calculation of the subsequent calendar months until such time as the negative balance has been fully set-off against future positive commission amounts generated or any other payment payable to you by any entity in the Company's group or issue an invoice for such negative amount at our discretion.
5-12. The Company hereby retains the right to convert the commission scheme by which you are being, have been, or will be paid.
5-13. The Company shall be entitled to set-off from the amount of Commission to be paid to you any associated costs related to the transfer of such Commission.
5-14. In the event that the Commission to be paid to you in any calendar month is less than $1000 (the "Minimum Amount"), the Company shall not be obligated to make the payment until such time as the commission is equal to or greater than the Minimum Amount.
5-15. The Company reserves the right to reduce your Commission relating to a specific Site in the event that you do not have any persons qualifying as Prospects on such Site or through the account associated with such Site, in three (3) consecutive calendar months.
5-16. The Company retains the right to review all commissions for possible Fraud, whether such Fraud is on the part of the Real Money Player, on the part of a Sub-Affiliate, or on your part. In any period of time during which the Company reviews commissions for possible Fraud, such review period not to exceed 180 days, the Company shall have the right to withhold any Commission accrued in your favour, such Commissions not to be paid until such time as the review has been concluded.
5-17. Any incidence of Fraud on your part constitutes a breach of this Agreement. In case of such breach, the Company retains the right to terminate this Agreement immediately and you shall not be entitled to receive any Commissions which have accrued to your benefit at such time in relation to same whether such Commissions were generated through Fraud or otherwise. The Company also retains the right to set-off from future Commissions payable to you any amounts already received by you which can be shown to have been generated by Fraud. You are urged to provide accurate details in regard to the manner and information relating to your preferred method of receiving Commissions and the Company shall not be held liable for your delayed receipt of Commissions due to your provision of inaccurate details.
5-18. For the purpose of this Agreement and by way of example only the term "Fraud" shall include, but shall not be limited to: (i) the encouragement by you or a third party of bonus abuse on the part of the Real Money Players; (ii) a chargeback executed by a Real Money Player in relation to their initial deposit; (iii) collusion on the part of the Real Money Player with any other player on the Site or Sites; (iv) the opening of an account in breach of the terms of this Agreement; (v) the offering or providing by you or any third party of any unauthorized incentives (financial or otherwise) to potential or existing Real Money Players; (vi) creating or using a single Link intended to be used by a single Prospect; and (vii) any other act by you or by a Real Money Player which is reasonably understood to have been committed in bad faith against the Company regardless of whether or not such action has resulted in any type of harm or damage to the Company. In the event of fraudulent activity on your part, the Company shall have the right to immediately block your account and forfeit any past and future Commissions which have accrued to your benefit.
5-19. For the avoidance of doubt, it is hereby stated by the Company and agreed by you that the Commissions which the Company shall pay to you shall relate solely to the Poker product which you directly advertise via the Links. The Company shall have no obligation whatsoever in relation to future products or services provided to Real Money Players by the Company or any of its affiliated entities or commercial partners. In addition, the Company shall not be liable for any payment in respect of activity relating to any user account other than the user account registered in the particular Site promoted by you in which the respective user qualified as a Prospect and Real Money Player, and subject always to the terms of this Agreement.
5-20. Your account is solely for your benefit. You shall not allow any third party to use your account, password or identity to access or use the Affiliates Scheme and you shall be fully responsible for any activities undertaken on your account by a third party. You will not reveal your account username or password to any person and you shall take all steps to ensure that such details are not revealed to any person. You shall inform the Company immediately if you suspect that your account is being misused by a third party and/or any third party has access to your account username or password. For the avoidance of any doubt, the Company shall not be liable for any activities undertaken on your account by a third party or for any damages that may arise therefrom.
5-21. The Company reserves the right, at its sole discretion, to immediately cease any or all marketing efforts in certain jurisdictions and will not be liable to pay you any Commissions which have accrued to your benefit that are attributable to such jurisdictions, without notice to you.
6. Intellectual Property
6-1. In the event of your acceptance to the Affiliates Scheme, we shall grant you a non-transferrable, non-exclusive, revocable license to place the Links on your Affiliate Websites during the term of this Agreement, and solely in connection with the Links, to use the NSUS Affiliate Club brand’s logos, trade names, trademarks, service marks and similar identifying material as contained in the Links (collectively, "Licensed Materials"), solely for the purpose of promoting the Sites.
6-2. You are not permitted to alter, modify or change the Licensed Materials in any way whatsoever.
6-3. You may not use any Licensed Materials for any purpose whatsoever other than promoting the Sites, and in any event, you may not use the Licensed Materials without first submitting a sample of such proposed use to us and receiving our prior written consent to such us.
6-4. You are not permitted to use the Licensed Materials in any manner that is disparaging or that otherwise portrays the Company or anyone else negatively.
6-5. The Company and its affiliates reserve all of the intellectual property rights in the Licensed Materials. We may revoke your license to use the Licensed Materials at any time by written notice to you, whereupon you shall immediately destroy or deliver up to us all such materials that are in your possession. You acknowledge that, except for the license which may be granted to you in connection hereto, you have not acquired and will not acquire any right, interest or title to the Links or the Licensed Materials by reason of this Agreement or your activities hereunder. The aforementioned license shall terminate upon the termination of this Agreement.
7. Obligations Regarding Your Affiliate Websites and Marketing Materials
7-1. You will be solely responsible for the technical operation of your Affiliate Website(s) and the accuracy and appropriateness of materials posted on therein.
7-2. You agree that your Affiliate Website(s) will not, in any way, copy or resemble the look and feel of the Sites (or any part thereof), nor will you create the impression that any of your Affiliate Websites are any of the Sites (or any part thereof).
7-3. You also agree that none of your Affiliate Website(s) will contain any content of the Group Websites or any materials which are proprietary to the Company or its affiliates, except (i) with our prior permission, or (ii) the Links. In particular, you are not permitted to register a domain name that includes, incorporates or consists of the Company's and its affiliates' trademarks or any domain name that is confusingly similar to such trademarks.
7-4. On execution of this Agreement and as a continuing obligation, you will inform the Company of any domain names you own which are in breach of the foregoing. Once we become aware that you have registered a breaching domain name you will be informed and required to transfer the domain name to us or an entity nominated by us, forthwith and free of charge. YOUR OBLIGATION TO TRANSFER DOMAIN NAMES REGISTERED IN BREACH OF THIS CLAUSE EXTENDS TO DOMAIN NAMES REGISTERED PRIOR TO THE DATE OF EXECUTION OF THIS AGREEMENT. Until the domain name has been transferred to the nominated company you will not allow the domain name registration to lapse. We may, in our sole discretion, withhold all Commission payments that may be due to you until the domain name is transferred.
7-5. You will not use any unsolicited or spam messages to promote the Group Websites. In the event we receive a complaint that you have been sending spam messages, you hereby agree that we may provide to the party making the complaint any details required for the complaining party to contact you directly in order for you to resolve the complaint. The details which we may provide to the party making the complaint, include your name, email address, bricks and mortar address and telephone number. You hereby warrant and undertake that you will cease sending spam messages and make every effort to resolve the complaint. In addition, we reserve all of our rights in this matter including without limitation the right immediately terminate this Agreement and your participation in the Affiliates Scheme and to set off or charge you for all claims, damages, expenses, costs, fines incurred or suffered by us in relation to this matter. Nothing stated or omitted herein shall in any manner prejudice any of our rights.
7-6. You will ensure that your Affiliate Websites and any related marketing materials or communications comply with all applicable laws, regulations, codes of conduct, rules, conditions and directives, do not contain any spyware, adware or other unwanted threats and do not infringe any right of any third party, including intellectual property rights, directly or indirectly. If your Affiliate Websites or any related marketing materials or communications are found to breach or infringe any of the above or contain any spyware, adware or other unwanted threats, we reserve the right to terminate this Agreement and your participation in the Affiliates Scheme immediately and/or withhold any past or future Commissions which have accrued or which shall accrue to your benefit.
7-7. You undertake to immediately comply with all instructions and guidelines provided by the Company or published on the Affiliate Information Site in relation to your activities in marketing and promoting the Sites including, without limitation, any instruction received from the Company requesting you to post on the Affiliate Websites information regarding new features and promotions on the Sites. If you are in breach of the foregoing, we reserve the right to immediately terminate this Agreement and your participation in the Affiliates Scheme and/or withhold any past or future Commissions which have accrued or which shall accrue to your benefit.
7-8. You will indemnify and hold the Company, its affiliates and their respective directors, officers, members, employees, representatives and advisors harmless from all claims, damages, and expenses (including, without limitation, legal fees and expert witness fees) relating to the development, operation, maintenance, and contents of your Affiliate Websites or any materials, products or services linked to therein. You hereby acknowledge that your conduct as an Affiliate has the potential to cause substantial damage to the Company’s and the Sites’ reputation and goodwill, and you undertake that at all times consider the goodwill and reputation of the Company and the Sites and to act in an appropriate manner.
8-1. The term of this Agreement will begin upon your acceptance to the Affiliates Scheme as an Affiliate and will end when terminated by either Party. At any time, either Party may immediately terminate this Agreement, with or without cause, by giving the other Party written notice of termination, where such notice may be served via fax or e-mail.
8-2. We reserve the right to withhold your final payment for a reasonable time to ensure that the correct amount is paid.
8-3. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your Affiliate Website(s), all Links and Licensed Materials and any other names, marks, symbols, copyrights, logos, designs, or other proprietary designations or properties owned, developed, licenses or created by us and/or provided by or on behalf of us to you pursuant to this Agreement or in connection with the Affiliates Scheme. Following the termination of this Agreement and our payment to you of all Commissions due at such time of termination, we shall have no obligation to make any further payments of Commissions to you.
9-1. We may modify any of the terms and conditions contained in this Agreement, at any time at our sole discretion. You agree that posting a change of terms notice or a new agreement on our Affiliates Information Site is considered sufficient provision of notice and such modifications shall be effective as of the date of posting.
9-2. Modifications may include, but are not limited to, changes to the list of the Sites, the scope of available commission fees, commission schedules and payment procedures. If any modification is unacceptable to you, your sole recourse is to terminate this Agreement and your continued participation in the Affiliates Scheme following our posting of a change notice or a new agreement on our Affiliates Information Site will constitute a binding acceptance by you of the change. Due to the above, we advise you to frequently visit the Affiliates Information Site and review the terms and conditions of this Agreement.
10. Limitation of Liability
10-1. We will not be liable for any indirect, special or consequential damages, or any loss of revenue, profits or data arising in connection with this Agreement or your participation in the Affiliates Scheme, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement will not exceed the total Commissions paid or payable to you under this Agreement.
11. Relationship of Parties
11-1. You and the Company are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.
12-1. WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO AFFILIATES SCHEME OR THE AFFILIATES INFORMATION SITE (INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF THE SITES OR THE AFFILIATES INFORMATION SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
13. Representations and Warranties
13-1. You hereby represent and warrant to us the following: (i) you have accepted the terms and conditions of this Agreement, which creates legal, valid and binding obligations on you, enforceable against you in accordance with its terms; (ii) all the information provided by you with regards to your application to the Affiliate Scheme are true and accurate; (iii) such acceptance and the performance by you of this Agreement and the consummation by you of the transactions contemplated hereby will not conflict with or violate any provision of law, rule, regulation or agreement to which you are subject to; (iv) you have, and will have throughout the term of this Agreement, all approvals, permits and licenses (which includes but is not limited to any approvals, permits and licenses necessary from any applicable regulatory or governmental authority) required to enter this Agreement, participate in the Affiliate Scheme or receive payment under this Agreement and (v) you are an adult of at least 18 years of age.
13-2. You further represent that you have evaluated the laws relating to your activities and obligations hereunder and you have independently concluded that you can enter this Agreement and fulfil your obligations hereunder without violating any applicable rule of law.
14-1. We may disclose to you certain information as a result of your participation as an Affiliate within the Affiliates Scheme, which information we consider to be confidential (herein referred to as "Confidential Information"). Confidential Information shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for your own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public or if the same is required by law or legal process.
15-1. You hereby agree to indemnify, defend and hold harmless the Company, its shareholders, officers, directors, employees, agents, affiliates, successors and assigns (the "Indemnified Parties"), from and against any and all claims, losses, liabilities, damages or expenses (including legal fees and costs) of any nature whatsoever incurred or suffered by any of the Indemnified Parties (collectively "Losses"), in so far as such Losses (or actions in respect thereof) arise out of or are based on (i) the breach of this Agreement by you or any representation or warranty made by you herein; or (ii) any claim related to your Affiliate Website(s), or (iii) any claim related to your entitlement to use or the display of the Links or Licensed Materials on the Affiliate Website(s).
16. Entire Agreement
16-1. The provisions contained in this Agreement constitute the entire agreement between the parties with respect to the subject matter of this Agreement, and no statement or inducement with respect to such subject matter by any Party which is not contained in this Agreement shall be valid or binding between the Parties.
17. Independent Investigation
17-1. You acknowledge that you have read this Agreement, have had an opportunity to consult with your own legal advisors if you so desired, and agree to all its terms and conditions. You have independently evaluated the desirability of participating in the Affiliates Scheme and are not relying on any representation, guarantee or statement other than as set forth in this Agreement.
18-1. This Agreement and any matters relating hereto shall be governed by, and construed in accordance with the laws of Canada. The courts of Canada will have exclusive jurisdiction over any dispute arising out of or relating to this Agreement and the transactions contemplated thereby.
18-2. Without derogating from the rights of the Company under this Agreement and/or by law, the Company may set off any amount which you owe to it pursuant to this Agreement and/or by law from any sum that you are entitled to receive from the Company, from whatever source.
18-3. You may not assign this Agreement, by operation of law or otherwise, without our express prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
18-4. The Company reserves the right to transfer, assign, sublicense or pledge this Agreement, in whole or in part, without your consent: (i) to any entity within the same corporate group as the Company, or (ii) in the event of a merger, sale of assets or other similar corporate transaction in which the Company may be involved in. We will notify you of any such transfer, assignment, sublicense or pledge by publishing the new version of this Agreement on the Affiliates Information Site.
18-5. Any clause, provision, or portion of this Agreement specifically ruled invalid, void, illegal or otherwise unenforceable by a Irish court, will be amended to the extent required to render it valid, legal and enforceable, or deleted if no such amendment is feasible, and such amendment or deletion will not affect the enforceability of the other provisions hereof.
18-6. Any phrase introduced by the terms "including", "include" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
19. Language Discrepancies
19-1. In case of any discrepancy between the meanings of any translated versions of this Agreement, the meaning of the English language version shall prevail.
20. Compliance with the Company’s Licencing Obligations
20-1. The Affiliate shall ensure to conduct itself in so far as they carry out activities on behalf of the Company as if they were bound by the same licence conditions and subject to the same codes of practice as the Company. The Affiliate shall ensure to provide such information to the Company as the Company may reasonably require in order to enable the Company to comply with their information reporting and other obligations to Regulatory Authorities. The Company shall have the right to terminate this Agreement promptly if, in the Company’s reasonable opinion, the Affiliate is in breach of its obligations laid out in this Agreement or has otherwise acted in a manner which is inconsistent with the Company’s licencing obligations.