Terms and Conditions
SERVICES CONTRACT FOR THE PROMOTION OF GAMBLING ACTIVITIES UNDER AFFILIATION REGIME
No. [...] dated [...].[...].[...]
This services contract for the promotion of gambling activities under affiliation regime (hereinafter referred to as the „Agreement”) was concluded by and between:
Neosoft LTD, with headquarters in Malta, Birkirkara, Level 3, suite no. 2766, Tower Business Centre, Tower Street, Swatar, BKR 4013, registered under no. C 98869/2021, having the correspondence address on the territory of Romania in Bucharest, 51 Calea Moșilor, 3rd district, e-mail firstname.lastname@example.org , represented by Cristian Roman, as Director, hereinafter referred to as the „Beneficiary”,
[...], headquartered in [...], registered under no. [...], having fiscal identification code [...], represented by [...], as [...], hereinafter referred to as the „Affiliate”,
The Beneficiary and Affiliate being hereinafter collectively referred to as the „Parties” and separately the „Party”,
The Parties agreed to conclude this Agreement with the following stipulations:
In this Agreement, the
following expressions shall have the following meanings:
● Referral Commission means, where applicable, the CPA Commission and/or the Referral Revenue Share Commission, agreed by the Parties under the Agreement;
● CPA Commission means a fixed amount of „cost per acquisition” to be paid once by the Beneficiary to the Affiliate for each Referred Player or FTD, to the extent that the conditions set out in the Agreement are met;
● Referred Player means any person located in Romania (a) who has not previously registered an account with the Beneficiary Sites and/or any other website and/or application owned and/or operated by the Beneficiary and/or any other Beneficiary Group Company; (b) who clicks on a Link which the Affiliate displays on its website in accordance with the Agreement and such person is directly sent to one of the Beneficiary Sites; (c) following the foregoing, immediately registers with the Beneficiary Site and (d) meets any other qualifications/conditions based on gambling activity which Beneficiary may add from time to time at its discretion in the Terms and conditions on the Beneficiary's Sites;
● FTD (first time depositor) means any Referred Player who makes a first real money deposit of at least RON 100 on the Beneficiary Sites;
● Referral Revenue Share Commission means, if agreed in the Agreement, a commission calculated as a percentage of the Net Revenues with respect to each product offered on the Beneficiary Sites obtained from the Referred Players as a result of their bets from any calendar month as agreed in the Commercial Agreement, under the conditions set out in the Contract;
● Gross Revenues means the total real money winnings obtained by the Beneficiary from the Referred Players as a result of their bets placed on the Beneficiary Sites for the relevant calendar month;
● Net Revenues means Gross Revenues less any administration fees of the Beneficiary, less any void bets and/or voided bets of the Referred Player, less any credits, bonus, bonus points or other promotional amounts given to a Referred Player, inactive players reactivation costs, exclusive players promotions, less any licensing fees, applicable gaming taxes, value added taxes, duties and/or similar mandatory payments imposed by any authority having jurisdiction over Beneficiary and/or any Beneficiary Group Company, any contributions which Beneficiary and/or any Beneficiary Group Company pays in respect of a Referred Player, less any returned transactions or any uncollectible (or refunded) revenue attributable to a Referred Player (including without limitation chargebacks and/or „preventative” chargebacks), less any other cost, less any third party fees (including without limitation payment processing fees, any end-user verification and validation fees and/or royalties), less any other costs identified by the Beneficiary in its activity;
● Licensed Materials means the Beneficiary's logos, trade names, trademarks, service marks and/or similar identifying material, as contained in the Links;
● Links means banner advertisements, button links, text links and/or other content as determined by the Beneficiary all of which shall relate and link specifically to the Beneficiary Sites;
● Personal Data means any information relating to an identified or identifiable natural person (data subject); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
● Data Protection Legislation means applicable laws, rules and regulations which relate to the protection of individuals with regards to the processing of personal data including, without limitation and to the extent applicable from time to time: (i) Regulation 679/2016 on the protection of natural persons in regarding the processing of personal data and on free movement of these data and repealing Directive 95/46/EC (the „GDPR”), (ii) national laws implementing GDPR and the Electronic Communications Data Protection Directive 2002/58/EC; and/or (iii) any other laws, regulations and rules, relating to the processing of personal data;
● Relative means any spouse, partner, parent, child or sibling;
● Romanian Regulator means the National Office for Gambling in Romania (ONJN);
● Beneficiary Sites means the website https://www.conticazino.ro (including any device specific versions of such websites), applications and other sites owned and/or operated by the Beneficiary, as may be amended by Beneficiary from time to time;
● Beneficiary Group Company means any person or entity directly or indirectly controlling, controlled by, or under common control with the Beneficiary. For the purpose of this definition, „control” means the power to manage or direct the affairs of the person or entity in question, whether by ownership of voting securities, by contract or otherwise.
II. OBJECT OF THE CONTRACT
2.1. The object of this Agreement consists in promotion services under affiliation regime by the Affiliate, on the web pages
which he owns or administers of the on-line gambling activity carried out by the Beneficiary, consisting in redirecting its own web guests to the Beneficiary Sites through Links, for the purpose of registering them on the gambling platform, according to the applicable Terms and conditions of the Beneficiary Sites.
2.2. In order for the Affiliate to participate in the promotion of the Beneficiary under affiliation regime, the Agreement must be executed by both Parties and when the Affiliate signs the Agreement, the Affiliate must also concurrently submit to the Beneficiary a certified valid copy of the Affiliate's class 2 license issued by the Romanian Regulator as well as evidence that the relevant payment has been made to the Romanian Regulator for the class 2 license to have full force and effect for the forthcoming year.
2.3. Within 15 (fifteen days) of the Agreement being executed by the Parties, the Affiliate undertakes that it will provide a copy of the Agreement to the Romanian Regulator.
2.4. During the term of the Agreement, the Affiliate undertakes to immediately provide to the Beneficiary with all additional information (which must be in accurate and in full) with respect to the Affiliate's class 2 license issued by the Romanian Regulator, to ensure that the information provided to the Beneficiary is complete and up to date, including without limitation if the Affiliate's class 2 license issued by the Romanian Regulator is cancelled, revoked, discontinued, suspended and/or has expired. In the event the Affiliate's class 2 license issued by the Romanian Regulator is cancelled, revoked, discontinued, suspended and/or expires, for any reason whatsoever, the Agreement shall automatically and immediately terminate, without any further formality or act being required.
3.1. In exchange of the promotion services performed by the Affiliate, it is entitled to the payment of a Referral Commission, which shall be paid by the Beneficiary upon the term and under the conditions herein provided.
3.2. The Affiliate will benefit from the following type of Referral Commission:
[select one or more applicable commission options]
[a fixed amount (CPA Commission) in the amount of EUR ... per Referred Player]
[a fixed amount (CPA Commission) in the amount of EUR ... per FTD]
[a percentage of ...% (Referral Revenue Share Commission) applied to the Net Revenues obtained by the Beneficiary]
3.3. The calculation of the Referral Commission shall start from the date both Parties have executed the Agreement and subject to the Affiliate possessing a valid class 2 license issued by the Romanian Regulator.
3.4. In the unlikely event that the Affiliate receives any Referral Commission, but the Affiliate does not possesses a valid class 2 license issued by the Romanian Regulator (by way of example only, if such class 2 license has been cancelled, revoked, discontinued, suspended or expires), the Affiliate will immediately reimburse the Beneficiary any such Commission paid to the Affiliate and indemnify and hold harmless the Beneficiary and any Beneficiary Group Company for any loss or damages suffered.
3.5. The Affiliate's shareholders, employees and/or their Relatives are not eligible to become a Referred Player and should any of them do so, Beneficiary shall not be liable to pay any Referral Commission with respect to such person and such act is considered to be a fraudulent act committed by the Affiliate against the Beneficiary.
3.6. The number of Referred Players per individual household, tablet device, mobile device and computer is strictly limited to one.
3.7. In the event the Affiliate does not direct at least one Referred Player directly through the Links placed on the Affiliate websites in any calendar month, the Beneficiary may reduce the Referral Commission paid at such time by 50% for such calendar month and/or for the next months. For the avoidance of doubt, the Referral Commission may be reduced multiple times during the term of the Agreement.
3.8. For the avoidance of all possible doubt, the Referral Commission shall only be payable during the term of the Agreement and in no way whatsoever will Beneficiary be liable to pay any commission following termination of the Agreement.
3.9. Within approximately 5 (five) days of the end of each calendar month, the Beneficiary shall make available to the Affiliate, where applicable, the number of Referred Players, FTD and/or the Referral Revenue Commission which has been accrued by the Affiliate in the previous calendar month. Within 5 days of the aforementioned information being made available to the Affiliate, the Affiliate will send an invoice to the Beneficiary which contains an amount equal to the Referral Commission for the relevant calendar month. Unless the invoice is contested, the Beneficiary shall settle the invoice within 30 (thirty) days of receipt of such invoice (in copy, via e-mail, at the address mentioned in the hereby Contract or in original at the correspondence address).
3.10. The Referral Revenue Share will be calculated cumulatively for all Referred Players in a month. In case the monthly value of the Referral Commission is negative, it shall be carried forward for the next month/s.
3.11. A record of the players registered on the Beneficiary’s platform by redirecting them from the Affiliate’s web pages shall be kept on the basis of a tracking code or on the basis of other elements established by the Parties.
3.12. If the Affiliate and another marketing partner of the Beneficiary directs a person to the Beneficiary Sites and such person becomes a Referred Player, the Beneficiary shall pay the party which last directed such person to the Beneficiary Sites and the person has subsequently registered with the Beneficiary Sites.
3.13. Any amount paid by the Beneficiary to the Affiliate under the Agreement, shall include without limitation all taxes (such as Value Added Tax, where applicable), duties, fees, excises or tariffs. In the event the Beneficiary is required to withhold and/or deduct on account of any taxes, all such withholdings and/or deductions shall be considered as paid to the Affiliate. In addition, the Beneficiary shall have no obligation to increase such payments of Referral Commission to the Affiliate in the event any taxes, duties, withholdings or deductions and/or other governmental assessments become applicable.
3.14. Payment of the Referral Commission to the Affiliate shall be made in RON, at the BNR exchange rate at the end of the month prior to payment.
3.15. The Beneficiary's records and calculations regarding the number of Referred Players, FTD and/or the Referral Commission including without limitation to Referral Revenue Share Commission, Gross Revenues, winnings and/or Net Revenues shall be the sole and authoritative tool and shall not be open to review or appeal.
3.16. If the Affiliate is paid a Referral Commission which contains a Referral Revenue Share Commission, the Beneficiary may at its discretion: (i) in calculating the Referral Revenue Commission to be paid to the Affiliate in a calendar month take into account the Referral Revenue Commission both positive and negative, generated by the Referred Players on the Beneficiary Sites; and/or (ii) in the event that at the conclusion of a calendar month the Referral Commission generated by the Referred Players on the Beneficiary Sites is a negative amount, the Beneficiary will deduct the negative amount from the Referral Commission in following calendar months calendar until the negative balance has been fully set-off against future positive Referral Commission generated and/or any other payment payable to the Beneficiary and/or any Beneficiary Group Company by the Affiliate and/or Beneficiary may issue an invoice for such negative amount and the Affiliate shall pay such amount within 5 (five) days of its receipt of such invoice.
3.17. If the Referral Commission generated in any calendar month is less than EUR 100, the Beneficiary shall not be liable to pay the Referral Commission until such time as the Referral Commission is equal to or greater than the than the above amount.
3.18. If any Referred Player is blocked or suspended, for example for reasons of fraud or any failure to validate the end-user account), the Beneficiary shall not be liable to pay the Affiliate any Referral Revenue Share Commission and/or CPA Commission (if applicable) with respect to such Referred Player.
3.19. If an error is made in the calculation of the number of Referred Players, FTD and/or the Referral Commission, the Beneficiary reserves the right to correct such calculation at any time and to reclaim from the Affiliate any overpayment made by the Beneficiary to the Affiliate, including without limitation, by way of reducing future payments which might otherwise be due to the Affiliate from the Beneficiary from time to time and/or issue an invoice for such overpaid amount and the Affiliate shall pay the Beneficiary such amount within 5 (five) days of its receipt of such invoice.
3.20. In the event that the Parties agree in accordance with the Agreement to change the type of Referral Commission and/or the amount of the Referral Commission paid by the Beneficiary to the Affiliate, such change will only apply to future Referred Players generated in accordance with the Agreement by the Affiliate from (and inclusive of) the date agreed by the Parties („Date of Change”) and not to any past Referred Players generated in accordance with the Agreement by the Affiliate prior to the Date of Change.
3.21. Once a Referred Player becomes inactive for a period equal or higher than 6 months, the Beneficiary has the right of removing the affiliate tag from that particular player. For clarity, after the above-mentioned period, the Affiliate will no longer receive any commission for the dormant Referred Player concerned.
4.1. In the event that the provisions of the Agreement are fully complied with, the Beneficiary grants the Affiliate for the term of the Agreement, a non-transferable, non-exclusive, revocable license to place the Links on the Affiliate websites and to use the Licensed Materials, for the sole purpose of promoting the Beneficiary Sites in the territory of Romania (the „License”). The Beneficiary may revoke the License at any time on written notice to the Affiliate, and in such event the Affiliate shall immediately destroy or deliver up to the Beneficiary all such materials that are in the Affiliate's possession (at Benefiary's discretion).
4.2. The Affiliate acknowledges that except for the License which may be granted, the Affiliate has not acquired and will not acquire any right, interest and/or title to the Links and/or the Licensed Materials by reason of the Agreement and/or the Affiliate's services provided as detailed in the Agreement.
4.3. The Affiliate undertakes not to: (i) change in any way the Links and/or the Licensed Materials; and/or (ii) use the Links and/or Licensed Materials in a manner that is disparaging and/or which may in any way portray the Beneficiary and/or any Beneficiary group company in a negative light.
4.4. The Affiliate agrees to co-operate fully with the Beneficiary in order to maintain and/or establish the Links.
4.5. In the event that the Beneficiary determines that the Affiliate's use of any Link is not in compliance with the Agreement, the Beneficiary may take such measures as to render such Links inoperative.
5.1. The Beneficiary reserves the right to seek criminal and/or other sanctions against the Affiliate, if the Beneficiary suspects that the Affiliate, the Referred Player and/or any third party acting indirectly or directly on behalf of the Affiliate has engaged in any fraudulent, dishonest and/or criminal act and the Beneficiary may disclose such information to the relevant authorities and/or other relevant third parties as may be necessary in this regard.
5.2. The Beneficiary retains the right to review the Affiliate's activity under the Agreement for possible fraud, whether such is fraud is the Affiliate's, any third party acting indirectly or directly on behalf of the Affiliate and/or a Referred Players.
5.3. By way of example, „fraud” shall include but not be limited to: (a) any act by the Affiliate, any third party acting indirectly or directly on behalf of the Affiliate and/or by a Referred Player which is reasonably understood to have been committed in bad faith against the Beneficiary and/or any Beneficiary Group Company; (b) the offering and/or providing by the Affiliate or any third party of any incentives
(financial and/or otherwise), including without limitation "rake back" and/or reward scheme, to
potential or existing Referred Players; (c) a chargeback executed by a Referred Player in relation to their initial deposit; (d) collusion on the part of the Referred Player with any other player on the Beneficiary Sites; (e) the Affiliate's use and/or a Referred Player's use of any device, robot, software, routine or other method (or anything analogous to the foregoing) which attempts to interfere and/or interferes with the proper functioning of the Beneficiary Sites and/or the products offered on the Beneficiary Sites and/or any related information or transactions on the Beneficiary Sites; (f) impersonating player accounts, by using random players ID’s and doing a minimum deposit with the sole purpose of triggering the Referral Commission; (g) using cookie injections to attach a cookie to the players without having them click on the call to actions with the Beneficiary referring Links; (h) registering personal accounts (for him or any of his employees) and start playing on the Beneficiary Sites in order to maximize his winning changes due to the Revenue Share paid by the Beneficiary.
5.4. Any fraud on the part of the Affiliate, by any third party acting indirectly or directly on behalf of the Affiliate and/or by a Referred Player, constitutes a breach of the Agreement. The Beneficiary also retains the right to set-off from future Referral Commission payable to the Affiliate any amounts already received by the Affiliate generated by fraud.
5.5. In case the Beneficiary discovers that the visitors redirected from the Affiliate’s page are involved in fraudulent transactions on the gambling platform, it must either suspend or annul the transaction and not take it into consideration when calculating the commission owed to the Affiliate.
VI.OBLIGATIONS OF PARTIES
6.1. Throughout the term of the Agreement the Affiliate shall:
6.1.1. promote the Beneficiary Sites in a socially responsible manner, with particular regard to the need to protect the persons under the age of 18 (eighteen) and/or other vulnerable persons from being harmed and/or exploited;
6.1.2. market and/or promote the Beneficiary Sites as per the Beneficiary’s instructions, as per the provisions herein and under the applicable Terms and conditions;
6.1.3. immediately comply with all instructions and guidelines provided by the Beneficiary in relation to the Affiliate's activities in marketing and/or promoting the Beneficiary Sites including, without limitation, any instruction received from Beneficiary requesting that the Affiliate posts on the Affiliate websites regarding new features and promotions on the Beneficiary Sites;
6.1.4. ensure that the Affiliate websites does not contain any spyware, adware trojans, viruses, worms, spybots, keyloggers, any other form of malware and/or other unwanted threats;
6.1.5. be solely responsible for the technical operation of the Affiliate websites and the accuracy and appropriateness of materials posted on therein;
6.1.6. upon the Beneficiary's request, immediately remove any marketing activity promoting the Beneficiary Sites;
6.1.7. to refrain from any action that might prejudice in any way the Beneficiary, such as, but without limited to: publishing promotion articles or materials which are incorrect, incomplete or that are not allowed by the law;
6.1.8. to permanently possess during the entire validity period of the Contract the 2nd Class license for carrying out activities, as well as any approvals or authorizations that are provided by the law and in case of losing the right to carry out the activity to inform the Beneficiary in this sense and to immediately cease any promotion activity;
6.2. Throughout the term of the Agreement the Affiliate shall not:
6.2.1. place the Links on properties other than the Affiliate websites, unless the Parties agree otherwise;
6.2.2. market and/or promote the Beneficiary Sites in any way which might or does compete with Beneficiary's and/or any Beneficiary group company's marketing efforts;
6.2.3. attempt to intercept or redirect (including, without limitation to user-installed software) traffic from any other Beneficiary affiliate;
6.2.4. direct any end users who click on the Links to another website and/or application other than the Beneficiary Sites;
6.2.5. display on the Affiliate websites any type of content that is likely to appeal to those under the age of 18, including but not limited to the display of cartoons, comic book images and/or child and/or youth orientated language;
6.2.6. purchase, bid for, register and/or otherwise acquire keywords, adwords, 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 Beneficiary's (or any Beneficiary group company's) intellectual property rights, including without limitation copyrights, trademarks (whether registered or unregistered), brand names, domain names, graphics and designs used by the Beneficiary and/or any Beneficiary group company;
6.2.7. include metatag keywords in any Pay Per Click advertising which are identical or similar to any Beneficiary trademarks or trade names from time to time or otherwise include the words „Get’s Bet”;
6.2.8. put at risk and/or in any way damage the Beneficiary and/or any Beneficiary group company and in the event that the Beneficiary believes that the Beneficiary and/or any Beneficiary group company is put at risk or in any way damaged by the Affiliate's activities, then the Beneficiary may notify the Affiliate of such and the Affiliate shall take all necessary actions in order to immediately resolve the situation to Beneficiary's satisfaction, including without limitation terminating the relevant marketing activities;
6.2.9. during the term of the Agreement and thereafter, make any public announcement with respect to any aspect of the Agreement and/or the Affiliate's relationship with the Beneficiary;
6.2.10. use any framing, iframing cloaking and/or mask cookie placement as well as use any
other techniques included but not limited to pop-ups and/or pop-unders on its websites;
6.2.11. take any action whatsoever which may cause any confusion for a potential Referred Player, that he/she is being directed to the Beneficiary Sites when in fact such potential Referred Players to a different website and/or application;
6.2.12. during the term of the Agreement and thereafter, directly or indirectly make any disparaging, negative, and/or defamatory statements with regards to the Beneficiary or any Beneficiary group company.
6.3. The Affiliate undertakes not to copy and/or resemble the look and feel of the Beneficiary Sites (or any part thereof), nor will the Affiliate create the impression that any of the Affiliate site is any of the Beneficiary Sites (or any part thereof).
6.4. The Affiliate acknowledges that its conduct may cause damage to the Beneficiary and/or the
Beneficiary Sites’ reputation and/or goodwill and as a result undertake that at all times the Affiliate shall consider the goodwill and reputation of Beneficiary and/or the Beneficiary Sites and to act in an appropriate manner.
6.5. The Affiliate will ensure that its websites will not contain any content on the belonging to the Beneficiary except (i) with Beneficiary's prior written permission; and/or (ii) the Links.
6.6. The Affiliate is obliged to compensate the Beneficiary in case the activity carried out during the Contract validity or by breaching the contractual provisions has caused prejudices to the Beneficiary.
6.7. The Affiliate undertakes not to register and/or attempt to register and/or be complicit in or cooperate with any third party registering or attempting to register, any domain name which is similar to any domain name and/or intellectual property rights of the Beneficiary and/or intellectual property rights belonging to any Beneficiary group company), including (for the avoidance of doubt) any misspellings, other variations of the domain names and/or other likenesses.
6.8. Without derogating from Section 6.7, immediately following the execution of the Agreement, the Affiliate will provide the Beneficiary a list of any domains which breach Section 6.7. If the Beneficiary becomes aware that the Affiliate has registered a domain name in breach of Section 6.7, it shall inform the Affiliate and the Affiliate agrees (at no cost to Beneficiary) to transfer such domain name to the Beneficiary. The foregoing shall also apply to any domain name registered prior to the date of the Agreement. Furthermore, the Affiliate will not allow the domain name registration to lapse, until the domain name has been transferred to the Beneficiary or the Beneficiary group companies (as applicable). The Beneficiary may withhold all Referral Commission until the domain name has been transferred in full in accordance with this Section 6.8.
6.9. The Affiliate undertakes to not send any unsolicited and/or spam messages („Spam”) to
promote the Beneficiary Sites.
6.10. In the event the Beneficiary receives a complaint that the Affiliate has been sending Spam, the Affiliate agrees that the Beneficiary may provide to the party making the complaint any details required for the complaining party to contact the Affiliate directly in order for the Affiliate to resolve the complaint and the Affiliate shall immediately cease sending Spam. The Affiliate undertakes to make every effort to resolve the compliant. In such event, the Beneficiary may set off or charge the Affiliate for all claims, damages, expenses, costs, and/or fines incurred or suffered by the Beneficiary and/or any Beneficiary group company in relation to such Spam.
6.11. The Affiliate shall ensure that its websites and/or its websites content is compliant with all applicable laws including without limitation any content, phrasing obligations and/or restrictions imposed on the Beneficiary by applicable law including without limitation those required by the Romanian Regulator.
6.12. To permit accurate tracking, reporting and Referral Commission, the Affiliate must ensure that the Links between its websites and the Beneficiary Sites are properly formatted throughout the term of this Agreement.
6.13. During the term of the Contract, the Beneficiary has the following obligations:
- to pay the commission owed according to the terms and conditions provided in this Contract;
- to place at the Affiliate’s disposal the marketing instruments necessary in order to redirect the visitors on the Beneficiary’s web site;
- to permanently inform the Affiliate with regard to the promotions organized and with regard to the services carried out.
7.1. The Beneficiary and/or any Beneficiary group company shall not be liable to the Affiliate in any way whatsoever should the Affiliate's Class 2 license issued by the Romanian Regulator be cancelled, revoked, discontinued, suspended and/or expire at any time for any reason.
7.2. The Beneficiary Sites and/or and the Links are provided „as is” without any express and/or implied warranty of any kind, and all warranties including warranties of merchantability, non-infringement of intellectual property rights, fitness for any particular purpose, and of completeness and/or accuracy of content are hereby excluded to the fullest extent permitted by law. The Beneficiary, nor any Beneficiary group company and/or any of their respective licensors give any warranty and/or representation that the supply of material and content and/or the Links will be uninterrupted, timely, secure or error free and/or that they are free of viruses or bugs.
7.3. In no event shall the Beneficiary be responsible and/or liable for any claim or dispute between the Affiliate and any user and/or recipient (as applicable) of the Affiliate website.
7.4. The Beneficiary shall have no liability whatsoever, in the event that the Agreement is not accepted and/or validated by the Romanian Regulator.
8.1. As a result of the Agreement, the Beneficiary may provide to the Affiliate information which the Beneficiary considers at its sole discretion to be confidential („Confidential Information”).
8.2. The Affiliate shall keep all Confidential Information confidential and shall only use such Confidential Information with respect of carrying out its obligation under the Agreement. The Affiliate shall not disclose the Confidential Information to any third party. In the event of a breach of this obligation, the Affiliate undertakes to pay compensations in the amount of EUR 10,000 per breach, unless the prejudices caused have a higher value, case in which the Affiliate must entirely cover the prejudice caused to the Beneficiary.
8.3. Without derogating from the foregoing, the Affiliate will immediately notify the Beneficiary if the Affiliate becomes aware of a breach of this Section or if a disclosure of Confidential Information is required by law.
8.4. If requested by the Beneficiary and/or on termination of this Agreement, the Affiliate shall immediately deliver to the Beneficiary or destroy all Confidential Information in the Affiliates possession or control.
IX.WARRANTIES REPRESENTATIONS AND UNDERTAKINGS
9.1. The Affiliate warrants, represents and/or undertakes to the Beneficiary that:
9.1.1. the Affiliate shall comply with all applicable laws including without limitation with respect to any all marketing and/or promotion activities it carries out on any or all marketing channels, whether online and/or offline, (which shall include without limitation compliance with any marketing legislation, gambling legislation, advertising legislation and/or data protection legislation);
9.1.2. the Affiliate shall not market and promote the Beneficiary Sites to any person under the age of 18;
9.1.3. the Affiliate shall only market and/or promote the Beneficiary Sites in accordance with the Agreement and/or shall only market and/or promote the Beneficiary Sites in Romania;
9.1.4. any marketing materials and/or communications shall comply with applicable laws;
9.1.5. any marketing materials and/or communications do not infringe the right of any third party including without limitation intellectual property rights;
9.1.6. the Affiliate shall not market and/or promote the Beneficiary Sites in a manner which is in violation of applicable laws;
9.1.7. it is the owner and/or operator of its websites;
9.1.8. the Affiliate websites have been approved by the Romanian Regulator;
9.1.9. it shall notify the Beneficiary as soon as practicable possible of any change that might negatively affect the provision of the services by the Affiliate under the Agreement;
9.1.10. it shall immediately provide the Beneficiary with evidence of the Affiliate’s payment to the Romanian Regulator with respect to its Class 2 license issued by the Romanian Regulator for the forthcoming year and/or upon the Beneficiary’s request;
9.1.11. it shall not act in a manner that is disparaging and/or which may in any way portray the Beneficiary and/or any Beneficiary group company in a negative light;
9.1.12. the Affiliate websites will operate continuously 24/7;
9.1.13. it shall provide the services under the Agreement on a continuous basis;
9.1.14. it shall implement all necessary technical features and/or measures necessary to ensure that the banners or other marketing materials are not displayed and/or viewed (as applicable) by anyone under the age of 18;
9.1.15. it shall not hack the Beneficiary Sites nor assist in any third party in hacking the Beneficiary Sites;
9.1.16. it shall not to attempt to intercept or redirect traffic from another site and/or application with which the Beneficiary and/or any Beneficiary group company has a contractual relationship with;
9.1.17. the Affiliate has and will maintain during the term of the Agreement all approvals, permits, authorizations, certifications, permits and/or licenses (which includes but is not limited to any approvals, authorizations, certifications, permits and/or licenses necessary from any applicable regulatory and/or governmental authority) required to enter the Agreement, carry out its marketing and/or promotion of the Beneficiary Sites;
9.1.18. all the information and/or documentation provided by the Affiliate are true and accurate;
9.1.19. the Agreement creates legal, valid and binding obligations on the Affiliate, enforceable
against the Affiliate in accordance with its terms;
9.1.20. the Affiliate is duly incorporated, organized and validly existing under the jurisdiction of its incorporation; the Affiliate has good and sufficient capacity, power, authority and/or right to enter into, execute and deliver the Agreement, to complete the transactions contemplated hereby and to duly observe and perform the covenants and obligations contained herein; the Affiliate has taken all necessary corporate action has been taken to authorize and approve the execution and delivery of the Agreement, the completion of the transactions contemplated hereby and the observance and performance of the covenants and/or obligations contained herein.
9.2. The Affiliate is responsible for complying with legal provisions regarding advertisement of gambling activities and shall indemnify the Beneficiary for any loss or damage directly incurred in connection with third party claims made as result of failing to observe the regulations.
10.1. During the term of the Agreement and thereafter at any time the Beneficiary and/or a third party acting on Beneficiary's behalf may audit the Affiliate with respect to the Affiliate's compliance with the terms of the Agreement and/or the amount of Referral Commission paid to the Affiliate. Such audit, at Beneficiary's discretion may be undertaken remotely and/or at the Affiliate's principal place of business. The Affiliate shall fully co-operate with the Beneficiary and/or a third party acting on Beneficiary's behalf (at no cost to Beneficiary) and shall provide all documents, books, records and/or information requested as well as access to the Affiliate's systems. The Beneficiary and/or the third party acting on Beneficiary's behalf, shall have the right to take copies of any records and/or documentation it reasonably requires. In the event any audit reveals that the Beneficiary has overpaid any Referral Commission to the Affiliate, the Affiliate shall reimburse the Beneficiary all such amounts within 15 days of being notified of such. The audit costs shall be borne by the Beneficiary. However, should the audit reveal that the Affiliate has not fully complied with its obligations and/or any requirements under the Agreement, the actual and reasonable costs of that audit will be reimbursed by the Affiliate to the Beneficiary all such amounts within 15 days of being notified of such.
10.2. The Beneficiary shall have the right but not the obligation to monitor the Affiliate websites, to ensure that the Affiliate is complying with the terms of this Agreement. The Affiliate shall provide (and at no charge to the Beneficiary) with all data and information to perform such monitoring.
XI.LIMITATION OF LIABILITY
11.1. The Beneficiary will not be liable for any indirect, special and/or consequential damages and/or any loss of revenue, profits, goodwill, reputation and/or data arising in connection with the Agreement, even if the Beneficiary has been advised of the possibility of such damages.
11.2. Without derogating from the foregoing, the Beneficiary's aggregate liability arising with respect to the Agreement will not exceed the total Referral Commission paid to the Affiliate under the Agreement in the 12 months prior to the event giving rise to such liability. Furthermore, nothing in the Agreement shall be construed to provide any rights, remedies or benefits to any person or entity not a party to the Agreement unless explicitly stated herein.
11.3. The Beneficiary is not liable under any circumstances for any possible errors or interruptions occurred on the websites administered by the Affiliate or for the consequences caused by any such interruptions.
The Affiliate hereby agrees to defend and indemnified the Beneficiary, any Beneficiary group company and their respective shareholders, officers, directors, employees, agents, successors and/or assigns (from and against any and all claims, losses, liabilities, damages or expenses (including legal fees and costs) of any nature, in so far as such losses (or actions in respect thereof) arise out of or are based on (i) the Affiliate's breach of the Agreement; (ii) any claim related to the Affiliate's entitlement to use or the display of the Links and/or other materials on the Affiliate websites; (iii) the Affiliate's non-performance and/or non-observance of the Affiliates obligations in the Agreement; (iv) any marketing and/or promotion activities carried out by the Affiliate for the Beneficiary; and/or (v) if the Agreement has not within 15 (fifteen days) of the Agreement being executed by the Parties, the Affiliate has not provided a copy of the executed Agreement to the Romanian Regulator.
XIII.DURATION AND TERMINATION OF THE CONTRACT
13.1. This Agreement shall be effective on the date of its signature for a period of 1 (one) year. After this period, the duration of the Contract will be automatically extended with successive periods of 1 (one) year, if neither Party notifies the other Party of its contrary intention at least 30 days prior to expiration date.
13.2. The termination of the Agreement may take place by cancellation, in case of non- execution of the contractual obligations by any Party. The termination of the Agreement shall not cause legal effects over the due obligations.
13.3. In case the value of the Net Revenues is negative for a period of more than 3 consecutive months, the Beneficiary may decide to terminate this Agreement, through a written notification, with immediate effect, without any other formalities.
13.4. In the event that the Affiliate breaches the Agreement and/or the Affiliate sells any part of its business and/or registers any change of legal and/or beneficial owner of the Affiliate, the Beneficiary may terminate the Agreement with immediate effect on written notice to the Affiliate.
13.5. The Beneficiary may terminate the Agreement on written notice to the Affiliate in the event that: (i) the Affiliate carries out any action the Beneficiary reasonably believes will expose the Beneficiary or any Beneficiary Group Company to losses or other negative repercussions; (ii) the Beneficiary reasonably believes that the Affiliate has breached applicable laws; and/or (iii) the Beneficiary is ordered or required by a regulator including without limitation the Romanian Regulator to
terminate its relationship with the Affiliate.
13.6. The notice of termination of the Agreement shall be sent to the postal address or e-mail address indicated in the preamble to the Agreement.
13.7. Upon the termination of the Agreement for any reason, the Affiliate will immediately cease
use of, and remove all Links, Licensed Materials and/or any content owned, developed, licensed or created by the Beneficiary and/or any Beneficiary group company and/or provided to the Affiliate by the Beneficiary in connection with the Agreement, and all rights and licenses granted to the Affiliate in the Agreement shall immediately terminate.
13.8. The Beneficiary may unilaterally terminate the Agreement at its discretion upon notice to the Affiliate at least 30 days prior to termination date, if the Beneficiary considers that the Affiliate is for any reason unsuitable to be a marketing partner and / or to promote the Beneficiary. The Beneficiary shall not be required to disclose its reasoning in connection with any such termination.
13.9. The Beneficiary may terminate with immediate effect the Agreement on written notice to the Affiliate, if the Beneficiary determines that the Affiliate websites include any content that the Beneficiary deems 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 the Affiliate website contains: (i) sexually explicit or pornographic content, (ii) speech or images that are offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing or discriminatory, (iii) violence, (iv) politically sensitive or controversial issues; (iii) content which is discriminatory based on gender, religion, nationality, sexual orientation, age or disability; and/or (iv) any unlawful behavior or conduct.
13.10. All commissions regulated under the Contract shall only be payable during the term of the Agreement and in no way whatsoever will Beneficiary be liable to pay any commission following termination of the Agreement, regardless of the cause of termination and regardless of whether the Recommended Players and/or FTD continue to benefit from the Beneficiary's products after the relationship with the Affiliate is terminated.
14.1. Force Majeure Event means any extraordinary circumstance (including without limitation acts of government, fire, flood or storm damage, earthquakes, labour disputes, war, and/or riot) which is beyond the reasonable control of the Parties, which prevents the Parties or one of them from performing their obligations under or resulting from this Agreement, provided that such circumstance cannot be avoided despite the prudence, foresight and effort of the Party affected by such circumstance.
14.2. The Parties shall not be liable to each other for a breach of this Agreement where such breach is the result of a Force Majeure Event, provided that the Party hindered by such event is not in default of its obligations under this Agreement and without such default (if the defaulting Party performed its obligations in time) such circumstance would not have arisen.
14.3. The Party invoking a Force Majeure Event shall notify immediately in writing the other Party regarding the occurrence of the respective event.
XV.PERSONAL DATA PROTECTION
15.1. The Parties agree that they are independent controllers as both the Beneficiary and Affiliate process the same set of personal data independent on a different purpose and means of processing. Each Party acts as an independent data controller for the Personal Data they hold and are not joint data controllers under Data Protection Legislation.
15.2. The Parties agree that the Personal Data processed in the scope of this Agreement refer to:
(i) Personal data belonging to the Parties representative or other persons designated to represent the Parties for the performance of the Agreement.
(ii) Personal Data belonging to potential Referred Player that interacts with the Link on the Affiliate Marketing in order to register and engage in online gaming activity using services provided by the Beneficiary.
15.3. Each Party undertakes to comply with any provisions applicable to it from the point of view of the protection of Personal Data set forth in GDPR and other applicable regulations, including, but not limited to, the obligation to process data in accordance with all the principles set out in Article 5 of GDPR, the obligation to ensure compliance with and to facilitate the exercise of the rights of the natural persons concerned with regard to data portability, legal access requests and rectification requests, modification and disposal and to ensure the confidentiality and security of Personal Data.
15.4. Each Party undertakes to ensure the protection, confidentiality and security of Personal Data processed in accordance with the legal provisions, including GDPR, the terms and conditions of this Agreement and all other applicable data protection law.
15.5. Both Parties ensure that Personal Data is processed only to the extent that processing is required for the performance of this Agreement.
15.6. Both Parties shall ensure that appropriate technical and organizational measures are in place to protect the Personal Data in their possession against unauthorized or unlawful processing and accidental loss, destruction, deterioration, alteration or disclosure.
15.7. Each Party shall co-operate with each other to set out the requirements to meet relevant obligations of Data Protection Legislation (for example in respect of data portability, subject access, lawful access requests and requests for rectification, amendment and disposal).
15.8. If a Party becomes aware of a true or suspected violation of the security, confidentiality or integrity of the Personal Data of the other Party when such data is processed, both Parties agree to notify the other affected party within 12 hours of identifying the breach of the data personally and to consult with each other on the measures that may be necessary or appropriate to investigate, mitigate and remedy the breach and otherwise fulfill their obligations under applicable data protection law. The notification/communication shall be made to the following contact details:
For the Beneficiary:
E-mail address [...]
For the Affiliate:
E-mail address: [...]
15.9. Each Party ensures that Personal Data is processed only by persons authorized to do so and under an appropriate contractual obligation regarding privacy.
15.10. Unless there is any other legal obligation to do so or appropriate legal grounds, each Party shall return, delete or destroy all Personal Data processed on or on behalf of the other Party, including physical or electronic documents, and copies thereof on any medium or any material derivatives that include such personal data within 5 working days of termination of the Agreement and/or the request for return, erasure or destruction for any reason by a Party.
15.11. Direct Marketing
15.11.1. To the extent that the Affiliate collects or process Personal Data for the purpose of carrying out direct marketing activities (including, without limitation, email campaigns or text-message campaigns; collectively „Direct Marketing”), which promote services or products offered by the Beneficiary and/or the Affiliate and/or other third parties („Communications”), then the Affiliate shall:
18.104.22.168. Run direct marketing campaigns only to data subjects who previously accepted to receive such notifications, unless other lawful basis applies in accordance with all Data Protection Legislation;
22.214.171.124. Comply with any and all Data Protection Legislation that apply to such activity, including without limitation the Privacy and Electronic Communications (EC Directive)
Regulations 2003 (PECR) and the e-Privacy Directive;
126.96.36.199. Ensure that is has provided the data subjects with any notice necessary as required under Data Protection Legislation, prior to delivering any Communications;
188.8.131.52. Ensure that is has obtained and sufficiently recorded the data subjects’ affirmative consent (including recording of the user ID, timestamp, relevant domain and source, and other relevant data as necessary) prior to delivering any Communications;
184.108.40.206. Upon the Beneficiary’s request, provide Beneficiary with any and all records relating the data subjects’ affirmative consent and notices provided to the data subjects;
220.127.116.11. Ensure that any and all Communications include a clear and conspicuous notice of the opportunity to opt-out of receiving future Communications, in an easy manner;
18.104.22.168. Record and comply with any request to opt-out or unsubscribe from receiving Communications, as soon as technically feasible, and in any event within no later than twenty-four (24) hours as of the receipt of such request;
22.214.171.124. Ensure that the recipient of a Communications shall not be required to pay a
fee or provide any other information for the purpose of opting-out of receiving Communications;
126.96.36.199. Ensure that Communications are not delivered to any data subject that were indicated, either by the Beneficiary or otherwise, to be excluded from the receipt of Communications, as directed by the Beneficiary, from time to time.
188.8.131.52. Based on the services to be provided by the Affiliate under the Agreement, the Beneficiary may supplement these Data Protection provisions on written notice to the Affiliate.
The Parties are independent contractors, and nothing in the Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the Parties.
XVII.GOVERNING LAW AND JURISDICTION
This Agreement and any matters relating hereto shall be governed by and construed in accordance with Romanian laws. Any litigation whatsoever arising from or in relation to this Contract, including regarding the conclusion, execution or cancellation thereof, shall be solved on an amicable basis or, in case the amicable settlement is not possible, the contracting parties shall address to the competent law courts in Bucharest.
18.1. No delay, neglect, or forbearance on the part of either Party in enforcing against the other
party any term or condition of the Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that Party under the Agreement.
18.2. Any clause, provision, or portion of the Agreement specifically ruled invalid, void, illegal or otherwise unenforceable by a 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.
18.3. This Agreement expresses the whole agreement between the Parties and any arrangements, representations, letters or understandings that existed prior to the execution hereof, insofar as not specifically expressed in the Agreement, shall be ineffective.
18.4. The Beneficiary reserves the right to transfer, assign, sublicense or pledge the Agreement, in whole or in part, without your consent: (i) to any Beneficiary group company; and/or (ii) in the event of a merger, sale of assets or other similar corporate transaction in which the Company may be involved in.
18.5. Save as expressly set out within the terms of this Agreement, no amendment of this Agreement shall be binding upon either Party, unless it is in writing and duly signed by both Parties.
18.6. The present Agreement has been drafted in both Romanian and English language (in case of conflict, the English version shall prevail).
18.7. Any provisions hereof which expressly or by their nature are required to survive termination or expiration of the Agreement in order to achieve their purpose shall so survive until it shall no longer be necessary for them to survive in order to achieve that purpose. Without derogating from the generality of the foregoing, Sections 3.4, 3.8, 3.13, 3.16, 3.19, 5, 6.7, 6.8, 7, 8, 10.1, 11, 12, 15.8, 17, 18.1, 18.2 and/or 18.7. hereof shall survive termination of the Agreement.
prin/by Cristian Roman