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Heaven Affiliates – Affiliate Partner Agreement
This affiliate partner agreement (the “Agreement”) sets out
the complete terms and conditions between Gaming Media Group Limited (including
Poker Heaven Limited, ‘Heaven Affiliates’ Affiliate Network) of 1 Down Place,
Hammersmith, London W6 9JH (together "Heaven Affiliates", “we”
or “us”), and you, regarding your application to participate as an
affiliate partner (an "Affiliate Partner") in one or all of
the available affiliate programs (the “Affiliate Programs”) that
comprise the Heaven Affiliates affiliate network (the “Affiliate Network”).
Current affiliate programs include the Poker Heaven affiliate program.
It is important that you read and understand this
Agreement. By ticking the box on the application form you are making an
application to join the Affiliate Network and agreeing (subject to our approval
of your application) to the terms and conditions of this Agreement. If you do
not agree to the following terms and conditions (or are not authorised to do
so) you should discontinue your application.
This Agreement replaces all previous terms and
conditions relating to the Affiliate Programs or any previous Affiliate Program
offered by Poker Heaven Limited.
1. 1 DEFINITIONS AND
INTERPRETATION
"Commencement
Date" means the date on which Heaven Affiliates confirms that the
Affiliate Partner’s application to join the Affiliate Network has been
accepted;
"Commercialise" means sell, rent, lease
or license;
"Confidential
Information" means all information
which is not publicly known and that is disclosed (by whatever means, directly
or indirectly) by one party to another, whether before or after the
Commencement Date including any information relating to the, products,
operations, processes, plans, intentions, product information, any information
relating to Intellectual Property Rights, each party's customer data the terms
of this Agreement, market opportunities or business affairs of the disclosing
party or any of its sub-contractors, suppliers, customers, clients or other
contacts;
"CPA
Payment" " means the previously agreed one off payment
that is payable to the affiliate on all qualifying customers that have been
successfully referred to one or all of the affiliate programmes within the
Heaven Affiliates Network under the specific terms of the individual CPA
agreement as agreed with a member of the Heaven Affiliates Team.
“Customers” means all new players
who sign up with one or all Heaven Affiliates Network Merchants (for the first
time) via the Internet Sites and the Links;
"Force Majeure" means any event outside the reasonable control of a party affecting its
ability to perform any of its obligations under this Agreement, including, but
not limited to, any delay in Heaven Affiliates receiving payment from its
relevant payment processing supplier of net poker revenue, casino net gaming
revenue or bingo net gaming revenue.
"Good Industry Practice" means the exercise of
that degree of skill, diligence, prudence and foresight which would reasonably
and ordinarily be expected from a skilled and experienced contractor acting in
good faith;
"Group" means, in relation to a
company, any entity directly or indirectly controlling, controlled by or under
common control of a party;
"Heaven Affiliates Team" means a current employee
of Heaven Affiliates working as a member of the affiliate support team;
"Heaven Affiliates Website" means the website at www.heavenaffiliates.com.
"Intellectual Property Rights" means any and all
patents, trade marks, service marks, rights in designs (including
semi-conductor topography design rights and circuit layout rights), trade,
business or domain names, e-mail address names, copyright including rights in
computer software (in both source and object code) and rights in databases (in
each case whether registered or not and any applications to register and rights
to apply for registration), rights in inventions and web-formatting scripts
(including HTML and XML scripts), know-how, trade secrets and other
intellectual property rights which may now or in the future subsist in any part
of the world including all rights of reversion and the right to sue for and
recover damages for past infringements;
"Internet Site" means your website or websites located at the
web address provided to us in your application or subsequently changed from
time to time and notified to Heaven Affiliates via the Heaven Affiliates
Website;
"Links" means a hypertext link
or banner containing a hypertext link downloaded from the Heaven Affiliates
Website that links to the home page of any of the Affiliate Programs homepages
at www.pokerheaven.com, so as to enable a
person to download and play a person to person gaming product;
"Merchants" means the gaming companies operating Affiliate
Programs within the Heaven Affiliates Network (Poker Heaven);
“Minimum Commission Payout” means the minimum amount
of monthly commission that must be generated by the affiliate in order to be
able to make a withdrawal. The minimum payout is €50 and is subject to change
with 7 days prior notification.
"Net Heaven Affiliates
Commission" means the cumulative total of all commissions due to the affiliate
for all Heaven Affiliates Network Merchants.
"Net Poker Revenue" means the total poker
revenue generated by customers you have referred to Poker Heaven from player to
player poker software via the www.pokerheaven.com website less adjustments
made for any credit card charge-backs or any other reversal of a payment,
fraudulent or otherwise voided or modified transactions, bad debt, the cost of
any previously agreed promotional offers, and any sign-up or rakeback bonuses.
"Net Poker Commission" means total poker
commission paid to the affiliate based on the appropriate payment method agreed
upon registration with the Heaven Affiliates Network.
"Parties" means the parties
to this Agreement;
"Revenue Share" means the previously
agreed % share of (i) net poker revenue (ii) casino net gaming or (ii) bingo
net gaming that is payable to the affiliate on all the customers they have
successfully referred to one or all of the affiliate programmes within the
Heaven Affiliates Network.
1.2
In this Agreement (except where the context requires otherwise)
(a) clause headings are included for convenience
only and shall not affect the interpretation of this Agreement;
(b) the singular includes the plural and vice versa; and
(c) reference to a statute or statutory provision is a reference to that
statute or statutory provision and to all orders, regulations, instruments or
other subordinate legislation made under the relevant statute.
2. LICENCE
2.1 In consideration of you making use of the
Links on the Internet Site and subject to the terms and conditions of this
Agreement, Heaven Affiliates will procure that members of the Affiliate Network
grant to you a non-exclusive, non-transferable, terminable licences to use the
Links on the Internet Site solely for your internal business purposes and in
accordance with such other limitations and restrictions as set out in this
Agreement.
2.2 It
is a condition of this Agreement that you will not do any of the following:
(a) Commercialise the Links other than on the
Internet Site;
(b) display data from the Links via any electronically accessible medium other
than the Internet Site without the express written consent of Heaven
Affiliates;
(c) use the Links in a way which proves or is likely to prove detrimental to
Heaven Affiliates.
3.
AFFILIATE’S OBLIGATIONS
3.1 You warrant and undertake that:
(a) you have full capacity and authority and all
necessary licences, permits and consents to enter into this Agreement and any
other documents executed by you that may be associated with this Agreement;
(b) you
will at all times conduct yourself with all due skill, care and diligence,
including Good Industry Practice, and in accordance with your own established
procedures and all applicable laws, enactments, orders, regulations and other
similar instruments;
(c) you
will comply with Heaven Affiliates’ security guidelines and requirements as may
be issued by Heaven Affiliates from time to time whether in writing or
otherwise;
(d) all
information you provided in applying to join the Heaven Affiliates Website is
correct and that you will notify us promptly of any changes;
(e) you
will keep secret and not allow anyone else to use your login and password
details for the Heaven Affiliates Website;
(f) the
Internet Site, or any part thereof, is not aimed at people under 18 years of
age;
(g) you
have obtained and will maintain in force all necessary registrations,
authorisations, consents and licences to enable you to fulfil its obligations
under this Agreement and that you will fully comply with, and shall continue to
fully comply with, all applicable laws and regulations;
(h) the
Internet Site will not contain any material which is defamatory, violent,
pornographic, unlawful, threatening, obscene or racially, ethnically, or
otherwise discriminatory or in breach of any third party rights and shall not
link to any such material;
(i) you will not seek to challenge the validity of Heaven Affiliates’
Intellectual Property Rights or those belonging to any merchant in the
Affiliate Network;
you
will not:
(i) register any domain names or register
keywords, search terms or other identifiers for use in any search engine,
portal, sponsored advertising service or other search or referral service; or
(ii) include metatag keywords on the Internet
Site that incorporate terms which are identical or similar to the Affiliate
Network trade marks (or trade marks owned by Merchants within the Affiliate
Network) and you will at all times comply with such reasonable guidelines for
the use of both Heaven Affiliate and the Merchants trade marks as may be issued
from time to time;
3.2 You agree that
(a) you may not become a Customer under your own
Tracking Link and you shall not be entitled to any payment on your own activity
under this Agreement unless previously agreed with a member of the Heaven
Affiliates Team;
(b)
we may monitor the Internet Site to ensure you are complying with the terms of
this Agreement and you will provide us with all data and information
(including, but not limited to, passwords) to enable us to perform such
monitoring at no cost to us.
4. PAYMENT
4.1 You will be able to indicate your preferred
payment option when applying to join Heaven Affiliates. The default option is
Revenue Share and will be confirmed by us if we accept your application.
Revenue Share payments will be made in accordance with clause 4.2 below. If you
are offered and accept CPA payment by a member of the Heaven Affiliates Team
then payments will be made in accordance with clause 4.3 below. If you are
offered and selected a hybrid payment by a member of the Heaven Affiliates Team
then payments will be made in accordance with clause 4.4 below. For the
avoidance of doubt payments will only be made in respect of Customers
introduced using the Links downloaded from the Affiliate Programme Site and no
other links previously provided by the Merchants or obtained from any other
source.
4.2 Except where otherwise agreed in writing you will receive the stated
percentages of Net Poker Commission on each unique Customer that you refer for
as long as the Customer is a Heaven Affiliates account holder.
4.3 Except where otherwise agreed in writing if you selected a CPA payment you
will receive the selected standard payment or payments which are payable in
accordance with the terms on the Heaven Affiliates Website;
4.4 You
may request to change your commission option via the Heaven Affiliates no more
than once every calendar month. Heaven Affiliates may accept or reject any such
request in its complete discretion. If your request is accepted the new
commission option will come into effect on the 1st of the following calendar
month and will only apply to Customers introduced after that date.
4.5 Heaven Affiliates may withdraw a commission option at any time by giving
notice to you. You will then be required to select another commission option
via the Heaven Affiliates Website for any further Customers you introduce.
4.6 You will
be able to review statements showing the number of Customers introduced by you
via the Links and your share of Net Revenue and/or CPA Payments, if any, which
have accrued over the course of the calendar month, using the Heaven Affiliates
Website. Such statements shall be updated daily and are for information
purposes only.
4.7 Provided
that you have reached the Minimum Commission Payout, and subject to clause 4.8,
amounts due to you in respect of a calendar month will be paid on or before the
15th of the month. If your Minimum Commission Payout is below the
minimum requirement your balance will be rolled over into the next month and
paid out once the balance exceeds the Minimum Commission Payout.
4.8 All payments made to you by Heaven Affiliates
under this Agreement are
(a) deemed
inclusive of any VAT or other tax payable;
(b) will be paid in Euros;
4.9 For the avoidance of doubt if Heaven
Affiliates makes a payment under this clause 4 which later transpires not to
have been due Heaven Affiliates may deduct such amounts from any future
payments due to you under this agreement.
5. DISCLAIMER
Heaven Affiliates makes no representation that
any of its or its Merchants services will be uninterrupted or error free and,
to the fullest extent permissible by law it will not be liable for the
consequences of any such interruptions or errors.
6. INTELLECTUAL
PROPERTY RIGHTS
6.1 All Intellectual Property Rights in the Links
belongs to the Merchants they relate to within the Heaven Affiliates Network.
6.2 Nothing in this Agreement purports to grant a license, provide any warranty
or offer any indemnity in respect of any data that is not owned by Heaven
Affiliates or the Merchants within the Heaven Affiliates Network. In the event
that you require access to any such data, you agree that you will give us an
opportunity to secure rights to the same and (if it becomes necessary to do so)
you will pay the costs of securing a licence to the same from the relevant
third party data owner or either party may terminate this Agreement
immediately.
7. NOTIFICATION
7.1 Either party shall immediately notify the
other party if any claim or demand is made or action brought against it for any
infringement or alleged infringement of any Intellectual Property Rights which
may affect the supply or use of the Links.
8. DATA
PROTECTION AND SECURITY
8.1 You acknowledge that the security of Heaven
Affiliates and all third party Merchants within the Heaven Affiliates Network
data and systems is fundamental to the business of Heaven Affiliates and if you
become aware of a breach or potential breach of security relating to the Links,
you will immediately notify Heaven Affiliates of such breach or potential
breach and use your best endeavours to ensure that any potential breach does
not become an actual breach and/or remedy any actual breach and its
consequences.
8.2 You warrant that you will at all times comply with the provisions of the
Data Protection Act 1998 and the Electronic Communications (EC Directive)
Regulations 2003 and any equivalent applicable legislation in the jurisdiction
in which you operate.
9. CONFIDENTIALITY AND
ANNOUNCEMENTS
9.1 During the term of this Agreement and after
termination or expiration of this Agreement, the parties will not use any
Confidential Information for any purpose other than in pursuance of their
rights and obligations under this Agreement nor disclose any Confidential
Information to any person except with the prior written consent of the other
party and shall follow Good Industry Practice to prevent the use or disclosure
of the Confidential Information.
9.2 The
parties may disclose any Confidential Information to their directors, other
officers, employees, advisers and sub-contractors to the extent that such
disclosure is reasonably necessary and in accordance with the requirements set
out in clause 9.1.
9.3 On
termination the parties shall (on request) deliver up to the other party or
destroy all copies of Confidential Information in its possession, and (if so
requested) shall use all reasonable endeavours to destroy all copies of
Confidential Information stored electronically.
9.4 The
parties shall together determine the content of any communications concerning
the relationship between the parties. Such communications shall be issued at a
time and in a manner agreed by the parties.
10. INDEMNITY
You will indemnify and hold harmless Heaven
Affiliates, and all third party Merchants within the Heaven Affiliates Network
from and against any and all losses, demands, claims, damages, costs, expenses
(including, but not limited to, consequential losses and loss of profit,
reasonable legal costs and expenses and VAT thereon if applicable) and
liabilities suffered or incurred, directly or indirectly, by Heaven Affiliates,
and all third party Merchants within the Heaven Affiliates Network in
consequence of any breach by you of your obligations under this Agreement. This
clause will survive termination of this Agreement for whatever reason.
11. LIMITATION
OF LIABILITY
11.1 Save as provided by statute and to the
fullest extent permitted by law, the following provisions set out the entire
liability of harmless Heaven Affiliates, and all third party Merchants within
the Heaven Affiliates Network (including any liability for the acts and
omissions of employees, agents and sub-contractors) to you whether in contract,
tort, statute, equity or otherwise:
(a) You acknowledge and agree that (except as
expressly provided in this Agreement) the Links and Heaven Affiliates Website
are provided "AS IS" without warranties of any kind (whether
express or implied);
(b) All conditions, warranties, terms and
undertakings (whether express or implied), statutory or otherwise relating to
the delivery, performance, quality, accuracy, uninterrupted use, fitness for
purpose, occurrence or reliability of the Links or Heaven Affiliates Website
are hereby excluded to the fullest extent permitted by law; and
(c) Neither Heaven Affiliates, nor any third
party Merchants within the Heaven Affiliates Network will be liable to you for
any losses relating to your use of the Links or the Heaven Affiliates Website
including but not limited to loss of profits (whether direct or indirect), loss
of contracts or goodwill, lost advertising, loss of data or any type of
special, indirect, consequential or economic loss (including loss or damage
suffered by you as a result of an action brought by a third party) even if such
loss was reasonably foreseeable or Heaven Affiliates, and all third party
Merchants within the Heaven Affiliates Network had been advised of the
possibility of you incurring such loss.
11.2 No exclusion or limitation set out in this
Agreement shall apply in the case of:
(a) fraud or fraudulent concealment;
(b) death or personal injury resulting from the
negligence of any party or any of its employees, agents or sub-contractors;
and/or
(c) any breach of the obligations implied by (as
appropriate) section 12 of the Sale of Goods Act 1979, section 2 of the Supply
of Goods and Services Act 1982 or section 8 of the Supply of Goods (Implied
Terms) Act 1973.
11.3 The time limit within which you must
institute suit against Heaven Affiliates to recover on any claim shall be 2
years from the date the Affiliate should reasonably have become aware or
becomes aware of the relevant breach that would form the subject of the claim.
11.4 This clause 11 will survive the termination of this Agreement for whatever
reason.
12. FORCE
MAJEURE
12.1 If either party is affected by Force Majeure
it shall notify the other party in writing of the matters constituting the
Force Majeure and shall keep that party informed of their continuance and of
any relevant change of circumstances whilst such Force Majeure continues.
Neither party shall have any liability to the other in respect of an event of
Force Majeure provided it complies with clause 12.2.
12.2 The party affected by Force Majeure shall take all reasonable steps
available to it to minimise the effects of Force Majeure on the performance of
its obligations under this Agreement.
13. TERM AND TERMINATION
13.1 This Agreement shall commence on the
Commencement Date and, subject to clause 13.2, shall continue until either
party serves 20 Business Days written notice of an intention to terminate.
13.2 Heaven Affiliates may terminate this
Agreement immediately in the event that the Affiliate
(a) breaches any of the terms of this Agreement
which, in the case of a breach capable of remedy, has not been remedied within
seven days of receipt of a notice from Heaven Affiliates specifying the breach
and requiring its remedy;
(b) is unable to pay its debts as they fall due
or make any voluntary arrangement with its creditors, become subject to an administration
order, have an administrative receiver or receivers appointed in respect of the
whole or any part of its assets, go into liquidation (voluntary or otherwise
save for any voluntary liquidation entered into solely for the purposes of a
bona fide reconstruction or amalgamation) or be made the subject of a
bankruptcy order or ceases or threatens to cease carrying on its business;
(c) in Heaven Affiliate’s opinion, is in breach
of the terms of any applicable advertising code of practice; or
(d) does not introduce any new Customer to one or
all of the Heaven Affiliates Merchant partners for a period of four (4) months.
14.
CONSEQUENCES OF TERMINATION
14.1 Except as set out in clause 14.3 below
termination of this Agreement shall be without prejudice to any rights or
obligations which shall have accrued prior to termination.
14.2 On termination of this Agreement all licences granted by Heaven
Affiliates, and all third party Merchants within the Heaven Affiliates Network
to the Affiliate pursuant to this Agreement will immediately terminate.
14.3 If Heaven Affiliates terminates this
Agreement under clause 13.2 the Affiliate will not be entitled to receive any
further payments pursuant to clause 4 following such termination.
15. ASSIGNMENT
AND SUB-CONTRACTING
15.1 You will not assign, novate, or declare a
trust of or otherwise dispose of this Agreement, or any part thereof, without
the prior written approval of Heaven Affiliates.
15.2 Heaven Affiliates may assign or sub-contract
any of its rights and obligations under this Agreement to another company
within its Group at any time on giving notice to you.
16. ENTIRE
AGREEMENT
This Agreement constitutes the entire and only
Agreement between the parties with regards to its subject matter and the
parties confirm that they have not been induced to enter into this Agreement in
reliance upon, nor has it been given, any warranty (including in particular any
warranty as to merchantability, fitness for purpose or uninterrupted
functionality), representation, statement, assurance, covenant, Agreement,
undertaking, indemnity or commitment of any nature whatsoever other than as are
expressly set out in this Agreement and, to the extent that it has been, it
unconditionally and irrevocably waives any claims, rights or remedies which it
might otherwise have had in relation thereto.
17. NO
PARTNERSHIP
Nothing in this Agreement and no action taken by
the parties pursuant to this Agreement shall constitute, or be deemed to
constitute, the parties as a partnership, association, joint venture or other
co-operative entity.
18. WAIVER
& VARIATIONS
18.1 No breach of any provision of this Agreement
shall be waived or discharged except with the express written consent of the
parties.
18.2 No failure or delay by a party to exercise
any of its rights under this Agreement shall operate as a waiver thereof and no
single or partial exercise of any such right shall prevent any other or further
exercise of that or any other right.
18.3 We may modify all or any part of this
Agreement at any time. We will give you 7 days notice of any such changes. If
you do not agree to the changes you may serve notice to terminate this
agreement under clause 13.1 before the changes take effect and such changes
will not apply for the duration of the notice period set out in clause 13.1. If
you fail to terminate this Agreement and continue to participate in the
Affiliate Programme you will be deemed to have accepted the changes made under
this clause. The latest modified date of these terms and conditions will be
displayed at the bottom of this Agreement.
19. NOTICES
19.1 Notices and communications from Heaven
Affiliates will be made by e-mail to the address provided by you on your application
to join the Heaven affiliates Network.
19.2 You should send all notices and communications to the following email
address support@heavenaffiliates.com or such other e-mail
address as notified to you via the Heaven Affiliates Website from time to time.
19.3 Notices and communications will be deemed
received 4 hours after being sent provided that if such notice would then be
deemed to have been received outside the hours of 09:00 to 18:00 (UK time) it
will be deemed to have been received at 09:00 on the next Business Day.
20. THIRD PARTY
RIGHTS
20.1 Except for any company within the Heaven
Affiliates Network no third party may enforce any rights granted to it under
this Agreement. Except as mentioned above the Contracts (Rights of Third
Parties) Act 1999 shall not apply to this Agreement and no rights or benefits
expressly or impliedly conferred by it shall be enforceable under that Act
against the parties to it by any other person.
20.2 Except with regards to the amendment of
clauses 10 and 11 the rights of the parties to terminate, rescind or agree any
variation, waiver or settlement under this Agreement is not subject to the
consent of any person that is not a party to this Agreement.
21. FURTHER
ASSURANCE
Each party shall, upon request from the other, do
and execute, or procure that there shall be done and executed, all such
documents, deeds, matters, acts or things as that other may at any time require
to give it the full benefit of this Agreement.
22. GOVERNING
LAW AND JURISDICTION
22.1 This Agreement (and any dispute,
controversy, proceedings or claim of whatever nature arising out of or in any
way relating to this Agreement or its formation) shall be governed by and
construed in accordance with English law and the parties hereby irrevocably
submit to the jurisdiction of the courts of England
and Wales.
LAST AMENDED DATE: 25th
November 2008
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