Version 1.2 last updated February 20, 2017
Affiliate Program – Agreement
Please read the terms and conditions of this Agreement carefully and in their entirety.
1. Purpose and affiliate application
1.1 The Affiliate, which is a person or an entity with legal capacity, who applies to participate in the Affiliate Program (as defined below in Clause 1.3), maintains and operates one or more websites on the Internet (hereinafter collectively referred to as “Affiliate Site(s)”).
1.2 Damigur Holdings Limited, Registration No. MT 23487833 (hereinafter referred to as the “Damigur”) provides an on-line casino as the owner of Shadowbet brand, and related products and services through its website with domain name shadowbet.com (defined from time to time „Shadowbet”), through mobile, tablet and pc apps and through other means (each and together the “Website”).
1.3 Damigur Holdings Limited, Registration No. MT 23487833, a company incorporated under the laws of Malta with its office located in Fino Buildings, Notabile Road, Mriehel, BKR 3000 (hereinafter referred to as the “Company”), provides certain marketing services to online betting companies and uses Affiliates to promote and market websites through affiliate programs, which are defined from time to time by the Company (the Shadowaffiliates “Affiliate Program”).
1.4 This Agreement entered into between
the Company and the Affiliate governs the terms and conditions relating to the
promotion of the Website by the Affiliate, i.e., by hypertext linking from
Affiliate Site(s) to the Website in accordance with the terms of this
Agreement, whereby the Affiliate will be paid a commission as specified below,
subject to the terms and conditions of this Agreement.
1.5 By completing and submitting the application form (the “Affiliate
Application”) the Affiliate agrees to be bound by the terms and conditions set
out in this Agreement. By submitting the Affiliate Application the Affiliate
warrants and represents that;
2. Rights and Limitations of the Company
2.1 The Company shall evaluate the Affiliate Application submitted by the Affiliate and shall notify the Affiliate in writing whether the Affiliate Application is accepted or not. Written notification may be given by e-mail according to Clause 8.1. The Company reserves the unconditional right to refuse the Affiliate Application for any reason in its sole and absolute discretion, or require further information from the Affiliate. In the event that the Company requests further information in accordance with this Clause, the Affiliate Application will be treated as having been re-submitted and the Company will review it in its entirety and subsequently notify the Affiliate of its acceptance or rejection to the Affiliate Program as determined by the Company in its sole and absolute discretion.
2.2 The Company shall retain the unconditional right at its sole and absolute discretion, to cancel, alter and/or close its Affiliate Program, add provisions to this Agreement and/or alter or delete any of the provisions of this Agreement, at any time and in any manner the Company deems appropriate, without any liability to the Affiliate. Notices to the Affiliate concerning any such cancellation/alteration in the Affiliate Program and/or this Agreement shall be made in writing and will take effect at the earlier of the acceptance by the Affiliate or seven (7) days’ after such notice in writing is deemed to have been received under this Agreement. Written notification may be given by email and/or by pop-up message according to Clause 8.1. The Affiliate’s continued participation in the Affiliate Program, including but not limited to acceptance of any commissions from the Company, after such change notice is deemed to have been received under this Agreement, will always be deemed as a binding irrevocable acceptance of the Agreement’s new terms and conditions and/or other changes in the Affiliate Program.
2.3 Once accepted or deemed to have been accepted by the Affiliate, the latest version of this Agreement will be effective to the entirety of the relationship between the Company and the Affiliate and will prevail over and set aside all previous versions. Should the Affiliate believe it may be prejudiced by past dealings between the Affiliate and Damigur being subject to an alteration of this Agreement, then it shall, within a period of fourteen (14) days from (deemed) acceptance by the Affiliate, send an email to the Company at email@example.com or such other email address as may have been notified in writing by the Company to the Affiliate and report the reasons of such prejudice. Failure to report within the prescribed time limit shall be deemed a waiver of any and all claims arising from such prejudice.
2.4 The Company’s and Damigur liability with respect to any and all claims howsoever arising, including negligence, in connection with this Agreement are limited to, to the maximum extent permitted by applicable law, to direct damages up to the amount the Affiliate has received as remuneration from the Company within the last six (6) months.
2.5 The Company and/or Damigur make no representation that the operation of the Website will be uninterrupted or error-free and the Company and/or Damigur will not be liable for the consequences of any interruptions or errors.
2.6 Further, the Company and/or Damigur shall not be liable for any indirect losses or damages or loss of income incurred by the Affiliate, damages due to business interruption, or loss of information, even if such losses should arise from the inability of the Company to operate its Affiliate Program as stipulated in this Agreement, whether the Company is at fault or whether a third party is at fault.
2.7 The Company shall be entitled to exercise any of its rights or fulfil any of its obligations under this Agreement through any company within the group of companies of the ultimate parent company of the Company.
3. Rights and Obligations of the Affiliate
3.1 The Affiliate shall perform the services actively, by effectively advertising, marketing and using its best efforts to promote the Website as widely as possible. For the avoidance of doubt, the Affiliate understands and accepts that the Company shall in its sole and absolute discretion determine whether potential New Customers (as defined below in Clause 4) shall be accepted or not. The Company shall also in its sole and absolute discretion be entitled to determine whether to close New Customer’s account if it, in the sole opinion of the Company, is necessary to comply with the Company’s policy and/or Damigur licences and/or regulations applicable to the Company and/or Damigur, and/or is necessary to protect the interest of the Company and/or Damigur.
3.2 The Affiliate agrees to only use links, promotion, advertising or marketing material provided within the scope of the Affiliate Program, and no other material relating to the Company and/or Damigur, unless specifically authorised in writing by the Company. The Affiliate understands and acknowledges that it shall market and refer potential players to the Website at its own cost, expense and risk. The Affiliate agrees and undertakes to respect and not infringe upon any of the intellectual property rights, including without limitation copyrights, designs and trademarks, of the Company and/or Damigur.
3.3 The Affiliate operates the Affiliate Sites under its own name and at its own cost, expense and risk, and is responsible for their development, operation, and maintenance as well as for all materials appearing on the Affiliate Site(s).
3.4 The Affiliate shall at all times conduct its business in a manner that reflects favourably upon the high quality image and reputation of the Company and/or Damigur. The Affiliate shall engage in good business practice and comply with all applicable laws and regulations. In specific, all of the content of the Affiliate Sites and the Affiliate’s marketing activities must be professional, proper and lawful under applicable laws, and in accordance with the terms of this Agreement. The Affiliate shall not engage in marketing which may result in legitimate enforcement of applicable laws and regulations against the Company or Damigur. In case of doubt, the Affiliate should seek guidance from the Company.
3.5 The Affiliate may not purchase, attempt to register, or register keywords, search terms or other identifiers for use in any search engine, portal, sponsored advertising service or other search or referral service and which are identical or similar to any of the Company’s and/or Damigur’s trademarks or otherwise include the word “Shadowbet” or variations or derivations thereof.
3.6 The Affiliate may not use any framing techniques or technology on the Website, or encourage any third party to do so, unless specifically authorised in writing by the Company.
3.7 The Affiliate shall not perform any act which is libellous, discriminatory, obscene or otherwise unsuitable or which contains illegal, sexually explicit, pornographic, obscene or graphically violent materials. Further, the Affiliate Site(s) shall not use the Company’s and/or Damigur´s trademarks in any way that may harm Company and/or Damigur, or their trademark(s), copyrights, goodwill and/or branding. It is essential that the Affiliate Site(s) reflect positively upon the Website.
3.8 The Affiliate agrees that it shall not generate traffic to the Website by illegal or fraudulent means, particularly but not limited to sending spam, cookie spam or registering as a player or causing third parties to do so for the purpose of artificially increasing the Affiliate’s commission. Further, the Affiliate agrees that it shall not make deposits directly or indirectly to any player account through his tracker(s), 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.
3.9 The Affiliate agrees that it will not present the Affiliate Site(s) in such a way that it might give rise to confusion with the Website and/or Damigur and/or the Company.
3.10 The Affiliate shall not promote the Company, Damigur or the Website and/or create pages using Damigur’s trademarks, brands or slogans in any social media.
3.11 The Affiliate shall not target any person who is under the legal age for gambling or who is or could have been known to the Affiliate to be a problem gambler, nor target any jurisdiction where gambling and the promotion thereof are illegal.
3.12 The Affiliate shall indemnify and hold harmless the Company, Damigur and each of its affiliates, directors, officers, employees, shareholders, attorneys, agents and partners (the “Indemnified Party”) from and against any and all losses, demands, claims, damages, costs, expenses (including without limitation consequential losses and loss of profit, reasonable legal costs and expenses) and liabilities suffered or incurred, directly or indirectly, by the Indemnified Party in consequence of any breach, non-performance or non-observance of this Agreement or any applicable law by the Affiliate and/or any claims related to Affiliate Site(s) or links.
3.13 The Affiliate may not use Damigur’s name or graphics in any bulk emails whatsoever unless with prior written consent of the Company. The Company may terminate the agreement if any spam complaints result from the Affiliate’s marketing activities in which Damigur or its services have been referred to.
4. Payment of commission
4.1 During the term of the Agreement the Company shall pay the Affiliate commission for New Customers per calendar month as specified below.
4.2 “New Customers” shall mean individuals who access the Website via clicking the tracking links on the Affiliate Sites, properly register at Shadowbet and then make real money transfers at least equivalent to the Minimum Deposit into their website account, who do not yet have, and have not had an account with Shadowbet, and whose account has not been closed indefinitely or for a period exceeding 3 months.
“Minimum Deposit” shall mean a minimum
real money transfer requirement set for one or more Affiliates, New Customers,
Campaigns or real money transfer, as from time to time may be communicated to
one or more Affiliates or New Customers by the Company and/or Damigur. “Net
Revenue” is the revenue generated from New Customer’s real money bets less real
money won during that same calendar month, less any Tax, less administration
fees as communicated by the Company and/or Damigur from time to time, less
bonus costs and jackpot contributions.
4.3 The commission is based on the number of New Customers, as defined above, who access the Website via clicking the tracking links on the Affiliate Sites. The commission granted by the Company to the Affiliate will be calculated as a percentage share of the Net Revenue generated from the New Customers referred by the Affiliate Sites. The percentage of the Affiliate’s share of the Net Revenue for each calendar month depends on the total number of New Customers who become New Customers during that same calendar month (subject to clause 4.4 below) as specified in the commission structure set out below:
4.4 For the period of the first 3 months of this Agreement validity the commission granted by the Company to the Affiliate will be 45% of the Net Revenue share generated from the New Customers referred by the Affiliate Sites regardless of quantity of Customers who become New Customers thanks the Affiliate Sites during this period.
4.5 The amount of the monthly
commissions for all New Customers referred to the Company under this Agreement
(for the avoidance of doubt; including also New Customers who became New
Customers in a calendar month prior to the calendar month for which commission
is calculated) is calculated on the basis of the percentage of the Affiliate’s
Net Revenue share for the calendar month for which commission is calculated, which
is to be determined in accordance with what has been described above. The
Company’s calculation of New Customers and Net Revenue is final unless proof to
the contrary is provided.
4.6 The Affiliate understands and accepts that the amount of the commission and the Affiliate’s percentage share of the Net Revenue will vary from time to time depending on how many New Customers are referred to the Website by the Affiliate Site(s) during each calendar month.
4.7 The commission is calculated as at the end of each calendar month and payments shall be made within the first ten working days after the end of each calendar month.
4.8 Payment of commissions shall be made by the payment method chosen by the Affiliate in the application process, subject to clause 1.5(b). The minimum payout amount is 100 Euro. If the commission is lower than the minimum payout amount, the commission will be transferred to the following month. Excess commission amounts received by the Affiliate shall upon request be immediately repaid. The Company shall have a right to deduct any possible excess payments in previous months from outstanding payment obligations.
4.9 If the Affiliate disagrees with the commission and balance due as reported, it shall, within a period of fourteen (14) days from the earlier of the reporting of the commission and the payment of the balance due, send an email to the Company at firstname.lastname@example.org or such other email address as may have been notified in writing by the Company to the Affiliate and report the reasons of such disagreement. Failure to report within the prescribed time limit shall be deemed consent to the balance due for the period indicated which then shall become final.
4.10 The Affiliate agrees to immediately repay and allow the Company to collect or set off, together with an annual interest at a rate which by 6 percentage units exceeds the reference rate 3 month Euribor, all commissions received by fraudulent or falsified transactions, or when the traffic generated is illegal or contravenes any provision of these terms and conditions, plus all costs for legal causes or actions that may be brought against the Company or Damigur.
4.11 The commission is inclusive of any and all taxes, including but not limited to value added tax. The Affiliate is solely responsible for the payment of any and all taxes, fees, charges and any other money payable or due both locally and abroad to any tax authority and/ or any other authority as a result of the revenue generated under this Agreement. The Company has the right to deduct from the balance due to the Affiliate any taxes for which the Affiliate is responsible and which have been or will be charged to the Company.
4.12 The Affiliate who is an individual further undertakes to self-pay any applicable social security contributions on the remuneration received under this Agreement.
4.13 The Affiliate is required to provide proof of VAT registration to the Company if deemed applicable by the Company and as further specified from time to time by the Company at its sole discretion.
4.14 All payments shall be made in Euro or in such other currency that may be determined by the Company and regardless of the currency of the Affiliate’s home country.
4.15 The Company has the right to withhold any and/or all payments to the Affiliate if the Affiliate is in breach of any of the provisions of this Agreement.
4.16 Any commissions paid to the Affiliate by the Company hereunder shall represent the Affiliate’s sole remuneration for its activities under the Agreement. Hence except as otherwise expressly agreed in writing, all expenses incurred by the Affiliate when carrying out the rights and obligations under this Agreement shall be deemed to be covered by the commission provided for in this Agreement. The Affiliate is responsible for all obligations and costs in connection with the performance of this Agreement.
4.17 The Company and the Affiliate may determinate individual terms and principles of matters regulated in clases 4.1 to 4.17 above. All arrangements of the Company and the Affiliate in the scope indicated in previous sentence may be made by e-mail according to Clause 8.1 and then replace provisons of relevant clases 4.1 to 4.17 above.
5. Use of Marketing Material
5.1 Subject to the terms and conditions of this Agreement the Affiliate is hereby granted a revocable, limited, non-exclusive, non-transferable right to display the marketing material provided within the scope of the Affiliate Program (the “Marketing material”) on the Affiliate Sites during the term of this Agreement and solely for the purposes of this Agreement. The display shall always be in accordance with the Affiliate guidelines as provided within the scope of the Affiliate Program (as amended from time to time at the Company’s sole and absolute discretion). The Affiliate shall make no other use of the Marketing material. The use of the Marketing material must be professional, proper and lawful under applicable laws. For the avoidance of doubt, the Affiliate shall not be entitled to sublicense or otherwise assign any right of use (in whole or in part) of the rights granted hereunder.
5.2 The Affiliate is not permitted to alter or modify in any way any of the Marketing material without the express prior written consent of Company authorised in writing by the Company.
5.3 All intellectual property rights and any goodwill arising in links and all Marketing material, products, associated systems and software relating to the Website shall remain the property of Damigur. The Affiliate shall not acquire any intellectual property rights whatsoever in such materials. The Affiliate shall immediately bring to the attention of the Company any improper or wrongful use of the Company’s and/or Damigur’s intellectual property that comes to the attention of the Affiliate. The Company and/or Damigur are however not obliged to defend such rights. If the Company and/or Damigur choose to defend its rights, the Affiliate shall at its own cost and to a reasonable extent assist the Company and/or Damigur.
5.4 The Affiliate shall, in the performance of its duties under this Agreement, use every effort to safeguard the intellectual property rights of the Company and/or Damigur. The Affiliate shall not act in a way which is inconsistent with or undermines Damigur’s ownership of any of the trademarks contained in the Marketing material or the Company´s license therefrom. The Affiliate shall not use such trademarks as its trade name or company name, attempt to register, register or otherwise challenge any name, mark, design, logo or websites that is similar to or may be confused with the Company’s and/or Damigur’s or any of its affiliates intellectual property. In particular, unless with prior written approval, the Affiliate may not purchase, register, attempt to register or use domain names, search terms which are identical or similar to any of the Company’s and/or Damigur’s trademarks or otherwise include the word “Shadowbet” or variations which are identical or confusingly similar to any of the Company’s and/or Damigur’s trademarks, website or other branding materials. The Affiliate hereby agrees to transfer to the Company any intellectual property right or domain violating this clause, and unconditionally and irrevocably authorises and empowers the Company to do all such acts as may be necessary for the Company to transfer such intellectual property right or domain to itself.
5.5 Further, the Affiliate agrees that the Affiliate Sites and/or other types of communication shall not in any way resemble the appearance and/or the general impression of the Website, nor will the Affiliate create the impression that the Affiliate Sites are the Website or any part thereof.
6. Term and Termination
6.1 This Agreement shall be binding upon the Affiliate once the Affiliate Application has been submitted but shall not be binding upon or enter into effect in relation to the Company until the Affiliate Application has been approved by the Company according to Clause 2.1 and shall thereafter continue unless and until terminated as provided in this Agreement.
6.2 Either party may at any time terminate this Agreement without cause by giving the other party fourteen (14) days’ notice in writing according to 8.1. Neither party will have to pay the other any costs or damages resulting from termination of this Agreement without cause.
6.3 Should the Affiliate commit a breach of the terms of this Agreement, the Company is entitled to terminate this Agreement with immediate effect by giving written notice of termination to the Affiliate. Written notification may be given by email or pop-up message according to 8.1.
6.4 The Company is entitled to
terminate this Agreement with immediate effect by giving written notice of
termination to the Affiliate in the event that:
6.5 Upon any termination of this
Agreement, all rights and licenses granted to the Affiliate under this
Agreement shall immediately terminate, and the Affiliate will cease the use of
any trademarks, service marks, logos and other designations of the Company.
6.6 The Affiliate must return to Company any and all Confidential Information (and all copies and derivations thereof) in the Affiliate’s possession and control.
6.7 The Affiliate will only be entitled to already earned and unpaid commissions after the effective date of termination, provided the termination is not based on a breach by the Affiliate. However, the Company may withhold the Affiliate’s final payment for a reasonable time to ensure that the correct amount is paid.
6.8 The Affiliate shall not be entitled to reimbursement of any amount for any advertising, market development, investments, leases or other costs incurred before any termination of this Agreement. Without limiting the foregoing the Affiliate hereby irrevocably waives any right it may have under applicable legislation to an indemnity, damages, or compensation as a consequence of any termination of this Agreement in accordance with the terms of this agreement.
6.9 The parties specifically agree that upon any termination of this Agreement by either party, the Affiliate shall no longer be entitled to earn or receive any payment, including but not limited to commission as provided for in clause 4, whatsoever from the Company.
6.10 The Affiliate will release the Company from all obligations and liabilities occurring or arising after the date of termination. Termination will not relieve the Affiliate from any liability arising from any breach of this Agreement, 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. For the avoidance of doubt the Affiliate’s obligations of confidentiality towards the Company under this Agreement shall survive any termination of this Agreement for a period of five (5) years thereafter..
7. Force Majeure
7.1 Neither party shall be liable to the other for any delay or failure to perform its obligations under this Agreement if such delay or failure arises from a cause beyond the reasonable control of and is not the fault of such party, including but not limited to labor disputes, strikes, industrial disturbances, acts of God, acts of terrorism, floods, lightning, utility or communications failures, retrospective adjudication or changes of applicable law, earthquakes or other casualty. 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. If the force majeure event subsists for a period exceeding thirty (30) days, then either party may terminate the Agreement without notice.
8. Notices and the Relationship of the Parties
8.1 Notices to the Company given or made under this Agreement shall be in the English language made by email and sent to email@example.com or such other email address as notified in writing by the Company to the Affiliate, and, to the Affiliate, the Affiliate’s email address as supplied in the Affiliate Application or such other email address as notified in writing by the Affiliate to Company and/or by pop-up message (a “pop-up message” shall mean a message available in the interface provided by the Company where the Affiliate can maintain the Affiliate’s account). Any notice shall be deemed to have been received: a) immediately, if sent by email or b) when the Affiliate logs into the affiliate platform, if sent by pop-up message – whichever occurs sooner. If deemed receipt by the Company occurs after 5.00 pm on a Work Day, or occurs on any day which is not a Work Day, the notice shall be deemed to have been received at 9.00 am on the next Work Day. “Work Day” shall mean any day which is not a Saturday, a Sunday or a bank or public holiday in Malta.
8.2 Nothing contained in this Agreement, nor any action taken by any party to this Agreement, shall cause either party to constitute (or any of such party’s employees, agents, or representatives) an employee, or legal representative of the other party, nor shall it cause the creation of any partnership, joint venture, association, or syndication among or between the parties, nor shall it cause 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.
9. Severability and Waiver
9.1 If any provision of this Agreement is held to be unenforceable in any respect, such provision will be ineffective only to the extent of such unenforceability, without invalidating the remainder of this Agreement.
9.2 Without prejudice to clause 4.10, a failure of either party to exercise any right provided for herein, shall not be deemed to be a waiver of any right hereunder.
10.1 All information, including but not limited to business and financial, 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 of the Company and/or Damigur shall be treated confidentially (“Confidential Information”). Such information must not be used for the Affiliate’s own commercial or other purposes, or divulged to any person or third party. The Affiliate obliges himself not to use the Confidential Information for any purpose other than the performance of its obligations under this Agreement.
10.2 All Confidential Information provided or made available by the Company and/or Damigur under this Agreement shall remain the sole and exclusive property of the Company and/or Damigur and nothing in this Agreement shall be construed to grant the Affiliate any ownership right in, or license to, any such Confidential Information.
10.3 This provision shall survive the termination of this Agreement.
11. Entire Agreement
11.1 This Agreement constitutes the entire Agreement and understanding of the parties on the subject hereof and supersedes any previous agreement or understandings between the parties relating to the subject matter of this Agreement.
12. No Business Restriction
12.1 Nothing in this Agreement shall limit or restrict the Company’s and/or Damigur right to do business with, grant rights to or receive grants of rights from, provide services to or receive services from, or enter into any agreements with any other entity, in any scope and manner that the Company and/or Damigur desires.
13.1 The Affiliate shall not be entitled to assign or transfer its rights or obligations under this Agreement without the express written consent of the Company.
13.2 Notwithstanding the above, the Company may freely assign this Agreement and all of its rights and obligations hereunder to any of its subsidiaries or affiliated companies, including but not limited to Damigur.
14. Disputes and Governing Law
14.1 This Agreement shall be construed in accordance with and be governed by the laws of Malta.
14.2 Each Party irrevocably submits to the Malta Arbitration Centre, Malta, over any claim, dispute or matter under or in connection with this Agreement and/or its enforceability.
14.3 The Affiliate must, unless otherwise agreed by the parties, or required by applicable law, treat all information disclosed during the arbitration by or on behalf of the parties and all matters relating to the arbitration (including the existence of the arbitration) and the award, as Confidential Information (as defined above).
14.4 From time to time the Company may modify provisions of this Agreement and may determinate special conditions of this Agreement (especially promotional conditions) which shall be granted in separate document. About each temporary change of conditions according to previous sentence the Company informs the Affiliate one week in advance. The Affiliate may refuse change of this Agreement conditions by e-mail according to clase 8.1 before coming into force of each change. If the Affiliate does not notify the Company about refusing changes to this Agreement in the term indicated in previous sentence, changes to the Agreement will bind the Company and the Affiliate.
15. Damigur Third Party Security Requirements
The Affiliate should comply with
Damigur’s Third Party Security Requirements, as they are set below in this