Ublique Gaming Ltd – Affiliate Terms & Conditions
Effective Date: 1st of July 2022
YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS FORMS A BINDING CONTRACTUAL AGREEMENT BETWEEN YOU AND Ublique Gaming Ltd
These Terms and Conditions apply for any Affiliate cooperation entered into by the following company, namely:
Ublique Gaming Ltd. (C98224) with registered address 169, Psaila Street, Birkirkara. BKR 9076 Malta.
Such companies being referred to herein as ‘UG LTD’ and constituting a Party;
On the second part, XXXX (the “Affiliate”).
UG LTD and the Affiliate are hereinafter also referred to individually as “Party” and collectively as “Parties”.
A. The Affiliate operates the Affiliate Website(s) (as hereunder defined);
B. The Affiliate is interested in partnering up with UG LTD to participate in the Affiliate Program;
C. The Parties have agreed to enter into this Agreement to regulate the relationship governing the rights and regulations imposed on the Parties imposed by the Affiliate Program;
D. Notwithstanding the above,this Agreement shall be binding on the Affiliate as soon as the Affiliate submits the Affiliate Application (as defined hereunder) but shall not be binding or enter into effect in relation to UG LTD until UG LTD approves the said application.
“Account” means a uniquely assigned account that is created for a New Customer with UG LTD or when the New Customer successfully registers with UG LTD via a UG LTD affiliate tracker link.
“Affiliate” the natural person or entity, who applies to participate in the Affiliate Programme to carry out the Affiliate Services and is approved by UG LTD.
“Affiliate Application” means the application form found at www.ug-aff.com whereby the Affiliate applies to participate in the Affiliate Program; provided UG LTD can change such URL at any time upon written communication to the Affiliate.
“Affiliate Program” means the collaboration between UG LTD and the Affiliate whereby the Affiliate will promote UG LTD Websites and create the Links from the Affiliate Website(s) to the UG LTD Websites and thereby be paid a Commission as defined under this Agreement depending on the traffic generated to the UG LTD Websites subject to these terms and conditions and to the applicable Commission Structure.
“Affiliate Services” means the Affiliate’s promotion of UG LTD Websites, subject to prior UG LTD’s approval, throUG Ltdh Links from the Affiliate Website(s) to UG LTD Websites.
“Affiliate Website(s)” means one or more websites on the Internet which are maintained, and operated by the Affiliate and which have been approved in writing by UG LTD.
“Approved Marketing Material” means the banners, text and/or other online or offline promotional materials and any associated Intellectual Property Rights thereto which is either provided by UG LTD or is consented by UG LTD.
“Commission” means the percentage of the Net Revenue (as set out in the Commission Structure) which is the amount due and payable to the Affiliate, as calculated based solely on UG LTD’s system data and in accordance with the terms of this Agreement, the Affiliate Application Form and the fees and payments terms set forth in this Terms and Conditions (as may be changed from time to time by UG LTD in its sole discretion).
“Commission Structure” means the commission structure contained under clause 17 below, or any specific commission structure expressly agreed and confirmed in writing between UG LTD and the Affiliate in lieu of the structure contained herein.
“Confidential Information” means any information of commercial or essential value for any of the Parties such as, but without limitation, financial reports and condition, trade secrets, know-how, prices, business information, products, strategies, databases, information about new customers, other customers and users of the UG LTD Websites, technology, marketing plans and manners of operation.
“Data Protection Legislation” means applicable data protection, privacy and electronic marketing legislation, including but not limited to the General Data Protection Regulations (EU 2016/679) (hereinafter “GDPR”) and its successor legislation as may from time to time come into force, any national implementing laws, regulations and secondary legislation, as amended or updated from time to time and any code of practice or guidance published by any applicable Regulator or the European Data Protection Board from time to time.
“Force Majeure or “Force Majeure Event” shall mean any cause beyond the reasonable control of the affected Party, including any fire, explosion, flood, storm, earthquake, elements of nature or acts of God, acts of war, acts or attempted acts of terrorism, riots insurrection, civil disorders, or disturbances, rebellions or revolutions, strikes, lockouts, or labour difficulties (other than by staff of the affected Party), malicious acts of third parties (including theft or property damage), interruption of telecommunications service, electrical service, or breakdown of public infrastructure to the extent if affects a Party;
“Fees” means the percentage of internal promotion expenses actually paid or payable by the Affiliate, including the net fees for all promotional bonuses, rebates, total banking fees incurred on deposits and withdrawals, charge backs, fraud, and bad debt (yet the list is not exhaustive) by any New Customer.
“Go Live Date” means the date in which the Affiliate Services have been started from any of the Affiliate Websites.
“Intellectual Property Rights” means all Intellectual Property Rights including, but not limited to, patents, designs, trademarks, service marks, certification marks, trade names, copyrights, rights in computer software, source code, object code, design rights related and/ or neighbouring rights, rights in get up or trade dress, rights to goodwill or to sue for passing off or unfair competition, database rights, moral rights know-how and inventions, trade secrets, software, text, data, logos, creative, copy, artwork, likeness, images, sounds, documents, information, knowledge and materials (including ay updates, modifications enhancements, translations or other changes), rights to use and protect Confidential Information, domain names, URLs, whether or not registered or capable of registration, unregistered or pending and whether subsisting in any specific country or countries or any other part of the world and together with any renewals, continuations or extensions thereof.
“Links” means Internet hyperlinks from the Affiliate Website(s) to the UG LTD Websites.“Net Revenue” means in relation to : all wagers received by UG LTD from New Customers less (a) monies paid out to New Customers as winnings, (b) bonuses and/or loyalty bonuses (as determined by UG LTD in its sole discretion), (c) administration fees, (d) fraud costs, (e) charge-backs, (f) returned wagers (g) monies paid out as duties or taxes (h) jackpot contribution, and (i) any commissions/fees due to third parties for providing/licensing games and/or games software; and for the avoidance of doubt, all amounts referred to above are only in relation to amounts generated from New Customers referred to the UG LTD Websites by the Affiliate Websites.
“New Customer” means a new first-time customer of UG LTD who:
- Has created an Account, registering directly after having been referred from an Affiliate Website (or Sub-Affiliate’s Website as the case may be) to a UG LTD Website;
- Has made a first deposit amounting to at least the applicable minimum deposit at the relevant UG LTD Website in accordance with the applicable terms and conditions therein; and
- Is not already in UG LTD’s customer database (where the customer has previously closed his UG LTD player account and opened a new one throUG Ltdh the Affiliate, such condition shall be deemed not to be satisfied);
For the sake of clarity, in no case the Affiliate, its employees, relatives and/or friends shall be regarded as New Customers (this condition applies also in relation to any Sub-Affiliate and related employees, relatives and/or friends).
“UG LTD Websites / Sites” means the websites owned and operated by UG LTD with domain name URL and/or any other website which may be operated and/or managed by UG LTD as may be communicated to the Affiliate from time to time.
“UG LTD Affiliates Website” means the website with domain name (or any other link as communicated by UG LTD to the Affiliate in writing): www.ug-aff.com
“Restricted Territories” means Afghanistan, Aland Islands, Algeria, American Virgin Islands, American Oceania, American Samoa, Andorra, Angola, Anguilla, Antarctica, Antigua and Barbuda, Equatorial Guinea, Argentina, Armenia, Aruba, Australia, Azerbaijan, Ethiopia, Oceania, Australia, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belgium, Belize, Benin, Bermuda, Bhutan, Bolivia, Botswana, Bouvet Island, British Virgin Islands, British Indian Ocean Territory, Brunei Darussalam, Bulgaria, Burkina Faso, Burundi, Cote d’Ivoire, Chile, Cook Islands, Costa Rica, Denmark, Democratic Republic of the Congo, Dominica, Djibouti, El Salvador, Eritrea, Falkland Islands, Faroe Islands, Fiji, France, French Southern and Antarctic Lands, French Guiana, French Polynesia, Gabon, Gambia, Ghana, Greenland , Grenada, Guadeloupe, Guam, Guatemala, Guernsey, Guinea, Guinea-Bissau, Guyana, Haiti, Heard and McDonald Islands, Honduras, Indonesia, Ireland, Jamaica, Jem Cairo, Cuba, Kuwait, Laos, Lesotho, Lebanon, Liberia, Libya, Madagascar, Malawi, Malaysia , Maldives, Mali, Marshall Islands, Martinique, Mauritania, Mauritius, Mayotte, Micronesia, Mongolia, Montserrat, Mozambique, Myanmar, Namibia, Northern Mariana Islands, Nauru, Nepal, New Caledonia, Nicaragua, Netherlands Antilles, Niger, Nigeria, Niue, Norfolk Island, Oman , East Timor, Pakistan, Palestinian Territories, Palau, Panama, Papua New Guinea, Paraguay, Peru, Pitcairn, Puerto Rico, Poland, Réunion, Republic of Korea, Moldova, Rwanda, South Georgia and the South Sandwich Islands Tomé and Príncipe, Senegal, Seychelles, Sierra Leone, Zimbabwe, Somalia, Hong Kong, Macao, Spain, Sri Lanka, St. Barthélemy, St. Helena, St. Kitts and Nevis, St. Lucia, St. Martin, St. Pierre and Miquelon, St. Vincent and the Grenadines, Sudan, Suriname, Svalbard and Jan Mayen, Swaziland, Turkey, Tajikistan, Taiwan, Tanzania, Thailand, Togo, Tokelau, Tonga, Trinidad and Tobago, Chad, Tunisia, Turkmenistan, Turks and Caicos Islands, Tuvalu, Uganda, Venezuela, United Kingdom, United States, Vietnam, Valais and Futuna, Christmas Island, Western Sahara, Central African Republic, Cyprus.
The traffic from these countries is restricted, if the Affiliate fails to obey this regulation, the traffic will not be considered as legal and the Affiliate will not be entitled to any Commission whatsoever.
“Sub-Affiliate” means an individual and/or entity that the Affiliate (i) has introduced to UG LTD via email and (ii) who has been approved by UG LTD; in order to have a formal and effective introduction to UG LTD such email shall contain the following mandatory information, namely: Sub-Affiliate’s full name, source, exposure, deal specifications, territories. For the sake of clarity, any Sub-Affiliates will have to adhere and will be subject to the terms of this Agreement governing the Affiliate Program by means of registration through the Affiliate’s link.
“Sub-Affiliate Deal” means an explicit deal, including a Sub-Affiliate, and entered into between the Parties.
“Sub-AffiliateReferral Commission” means: for any New Customers referred by any Sub-Affiliate’s Website, the Affiliate shall receive a certain percentage, as agreed by the Parties ,of the net revenue generated by the said customers, subject to the terms and conditions of this Agreement or otherwise as it might be agreed between the Parties.
“Sub-Affiliate Website(s)” means one or more websites on the Internet which are maintained, and operated by the Sub-Affiliate and which have been approved in writing by UG LTD.
- Acceptance of Affiliate
2.1 UG LTD shall evaluate the Affiliate Application hereby submitted and shall notify the Affiliate via email whether the Affiliate Application is accepted or not. UG LTD reserves the right to refuse any application in its sole and absolute discretion. UG LTD’s decision is final and not subject to any right of appeal. The Affiliate is obliged to provide all his traffic sources, where it intends to grant the exposure for the UG LTD Websites which will be reviewed and approved prior the Go Live Date, commencement of the Affiliate Services under this Agreement is strictly prohibited without UG LTD’s prior written approval. This also applies for any future changes, updates of Affiliates Services, which affect UG LTD’s exposure such as change of banner, logo, size, offer, rank, etc.
2.2 Once confirmed in accordance with the above, the Affiliate is granted the non-exclusive right to direct New Customers to the UG LTD Websites in accordance with the conditions set out in this agreement. This right is non-assignable. The Affiliate understands that UG LTD has the right to procure Affiliate Services from others performing services of the same or similar nature to those provided by the Affiliate. The Affiliate, unless granted a Sub-Affiliate deal by UG LTD, shall have no claim to Commission or other compensation on business secured by or through persons or entities other than the Affiliate.
- Qualifying Conditions
The Affiliate hereby represents and warrants that:
(a) it has, and will retain through out the term of this Agreement, title and authority to enter into this Agreement, to grant the rights and perform all its obligations in this agreement;
(b) it has provided UG LTD with complete, valid and truthful information;
(c) it has (where applicable) obtained and will maintain in force all necessary registrations, authorizations, consents and licenses necessary to fulfill its obligations under this Agreement;
(d) it shall comply with all applicable laws and regulations in the performance of their obligations; and
(e) it fully understands and accepts the contents of this Agreement.
(f) it declares the following: If the Affiliate (or any Sub-Affiliate) fails to comply with these terms and conditions takes the full legal responsibility and liability in regards to UG LTD as well as to third party entities or authorities.
(g) understands that the role of the Affiliate shall be specifically limited to the advertisement, marketing and promotion of UG LTD Websites, subject to the terms and conditions of this Agreement;
(h) is not and does not intend to become involved in and shall not assist or permit any act or traffic that constitutes or can reasonably be expected to constitute fraud or illegal activity, including but in no way limited to money laundering activities.
(i) is the rightful proprietor of any and all rights, licenses, and permits, consents and/or regulatory approvals necessary to market, promote and advertise UG LTD Websites on the Affiliate Websites or any other marketing channel as may be approved by UG LTD, in accordance with the provisions of this Agreement;
- UG LTD Rights and Obligations
4.1 Upon acceptance of the Agreement by the Affiliate, a unique player tracking code is assigned to the Affiliate, and the Affiliate is integrated in the technical platform of the UG LTD Website(s) as may be agreed. By means of the such tracking code, both New Customers acquired via the Link(s) Affiliate and their related wagers being placed during gaming sessions are registered and/or can be tracked.
4.2 UG LTD shall provide the Affiliate with access to the affiliate system, where the Affiliate can find and use all the information, links and Approved Marketing Material necessary for the implementation of the Links. UG LTD shall not be responsible for the actual implementation of the Links and the Approved Marketing Materials.
4.3 In the event that the Affiliate creates its own marketing material such material shall be compliant with the provisions of this Agreement and subject to UG LTD’s prior written approval; provided that in no case UG LTD shall be obliged to accept such marketing material from the Affiliate.
4.4 UG LTD shall administer the turnover generated via the Links, record the revenues and the total amount of Commission earned via the Links, provide the Affiliate with assistance in case the Affiliate needs a detailed report, which is not provided under the Affiliate system commission statistics, and handle all customer services related to the business of UG LTD.
4.5 UG LTD shall pay the Affiliate its Commission depending on the traffic generated subject to the terms and conditions of this Agreement.
4.6 UG LTD shall use its reasonable endeavors to ensure that whenever a New Customer is directed to the UG LTD Websites and registers an Account, the relevant New Customer is identified as originating from the Affiliate Websites. However, UG LTD shall not be held liable if for whatever reason it is unable to identify a New Customer as originating from such site.
4.7 UG LTD reserves the right to request any information from the Affiliate for due diligence purposes in line with its obligations under applicable laws as it may from time to time deem fit; should the Affiliate not answer UG LTD in relation to these requests within reasonable time, or fail for whatever reason to provide UG LTD with such information UG LTD shall be entitled to immediately terminate the Agreement.
4.8 UG LTD reserves the right to amend, alter, delete or extend any provisions of this Agreement, at any time and at its sole discretion, without giving any advance notice to the Affiliate, subject to the terms set out in this Agreement. Failure to communicate disagreement with the updated terms within seven (7) days shall be deemed consent of the updated terms by the Affiliate. In that period, the Affiliate shall remain obliged to comply with the terms set out herein and any other conditions, policies, rules/or guidelines provided to the Affiliate from time to time.
4.9 UG LTD hereby notifies the Affiliate, which accepts, that personal data (as defined in the GDPR) pertaining to the Affiliate and/or any of its employees, agents or sub-contractors (if any) may be collected by UG LTD and shall be utilized solely in the context of, and as is necessary for, the performance of this Agreement or in the pursuance of any legal obligation or legitimate interest. Handling of personal data shall be carried out in accordance with Clause 14 of this Agreement.
4.10 UG LTD reserves the right to request the Affiliate to immediately remove any promotional material which may be brought to attention and which it deems, in its sole absolute discretion, to be in breach of any relevant advertising and/or marketing rules.
4.11 UG LTD reserves the right to freeze the Affiliate’s account with immediate effect and/or deduct money from the Affiliate (or make recourse to any other remedy at UG LTD’s discretion) if any traffic is deemed to have been referred through fraudulent means or in breach of this Agreement.
4.12 If it can be documented that Affiliate earnings have been lost due to an incident of Intellectual Property theft, revenue generated by the offending Affiliate may be paid to the aggrieved party. Complaints shall be sent to [email protected] Ltd-aff.com It is in UG LTD’s sole discretion to determine whether there is enough proof that the loss of earnings suffered by the aggrieved party resulted from an incident of Intellectual Property theft.
4.13 UG LTD reserves the right to close any Affiliate or Sub-Affiliate accounts should the latter not sign up or any First Time Depositor (“FTD”) occurs in the course of three continuous calendar months as of the date of last sign up or FTD whichever is the latest.
- UG LTD’s Rights to refuse or close accounts and applicants
5.1 UG LTD may refuse any prospect new customer or close a New Customer’s account if, in the sole opinion of UG LTD, such action is deemed to be necessary to comply with UG LTD’s internal policies and/or to protect the interest of UG LTD.
5.2 UG LTD may refuse any prospect Affiliate and/or Sub-Affiliate and/or may close any Affiliate’s and/or Sub-Affiliate’s account if, in the sole opinion of UG LTD, it is necessary to comply with UG LTD’s internal policies and/or to protect the interest of UG LTD. If the Affiliate or any Sub-Affiliate is in breach of this Agreement, UG LTD may close the relevant Affiliate account, without prejudice to any other remedy that UG LTD may be entitled at law or in equity.
- Affiliate Undertakings
6.1 The Affiliate hereby warrants and undertakes:
6.1.1 to advertise, market and promote UG LTD Websites by providing Links and disseminating Approved Marketing Material on the Affiliate Websites, or via other marketing channels as may be approved in writing by UG LTD;
6.1.2 to use its professional skills and expertise to actively and effectively advertise, market and promote UG LTD Websites as widely as possible in accordance with best practices to maximize UG LTD’s benefit whilst abiding by the any terms and conditions or policies as may be brought forward from time to time and/or as are published online;
6.1.3 to only use marketing material as shall be provided to the Affiliate by UG LTD for the purposes of the advertisement, marketing and promotion of UG LTD Websites. The Links and/or the marketing material, whether in whole or in part, shall not be modified or altered without the prior written consent of UG LTD. UG LTD shall be responsible for the content and presentation of any material specifically provided to the Affiliate by UG LTD, if any, for the purposes of the execution of this Agreement. Notwithstanding the generality of the foregoing, the Affiliate shall be solely liable and responsible for the manner in which the material provided to it by UG LTD is presented on the Affiliate Websites or generally distributed (via any other medium as may be approved in writing by UG LTD) and for the suitability and compliance thereof with all applicable laws, rules and regulations, and for ensuring that any promotions are displayed in a clear and transparent manner;
6.1.4 to, at all times, comply with any and all relevant advertising and/or marketing rules, legislation and guidelines issued by the competent authority/ies of the jurisdiction in which the Affiliate intends to advertise, market and promote UG LTD Websites, as well as the jurisdictions in which UG LTD is licensed;
6.1.5 to market and refer potential customers to UG LTD Websites entirely at its own cost and expense. The Affiliate will be solely responsible for the distribution and manner of its marketing activities. All of the Affiliate’s marketing activities must be professional, proper and lawful and conducted in accordance with applicable laws and codes of conduct; and
6.1.6 to be generally responsible for the development, the operation, and the maintenance of its own Affiliate Websites as well as for all material appearing on its own websites; and
6.1.7 to promote UG LTD Websites, whether on the Affiliate Websites (or mediums approved by UG LTD to advertise, market and promote UG LTD Websites) in accordance with best practices by including responsible gaming measures and containing “18+” (or higher age restrictions as may be applicable) and warning messages, logos and links to the sites of agencies/organisations that help vulnerable customers on any pages/sites/media that links the potential customer to UG LTD Websites.
6.1.9 to use only Links provided within the scope of this Agreement.
6.1.10 to co-operate with UG LTD to actively reduce gambling addictions by, for example, placing links provided by UG LTD on the Affiliate Website which direct traffic to websites involved in the business of preventing gambling addictions. The Affiliate shall not target customers who suffer from gambling addiction if it is known to the Affiliate.
6.2 The Affiliate warrants that for the duration of the Agreement it shall not:
6.2.1 perform any act which is libelous, discriminatory, obscene, immoral, unlawful or otherwise unsuitable or which contains sexually explicit, pornographic, obscene or graphically violent material. The Affiliate shall not advertise (or cause to be advertised) UG LTD Websites on any sites which may be reasonably considered to be obscene, immoral, unsuitable or are otherwise identified on the Police Intellectual Property Crime Unit database. The Affiliate shall ensure that it is aware of the location of each of such advertisements at all times during the term of the Agreement.
6.2.2 advertise UG LTD Websites on any websites and/or media accounts or channels that have not been disclosed to and approved in advanced by UG LTD; provided that UG LTD reserves the right to, at any time during the term of this Agreement, request a list of all locations used by the Affiliate to promote UG LTD Websites in order to ensure compliance;
6.2.4 publish an advertorial or website review about UG LTD Websites without having received the prior approval in writing of UG LTD;
6.2.5 permit the targeting of any jurisdiction where gambling and/or the promotion thereof is unlawful and/or illegal, as may be updated from time to time by the competent authorities;
6.2.6 generate traffic to UG LTD Websites by unlawful, illegal or fraudulent means, particularly, but not limited to, by:
(i) sending spam (including but not limited to emails and/or text messages that meet any one of the following criteria: are unsolicited and sent to a large number of addressees; contain false or misleading statements; does not honestly identify the source of the originating email address; does not contain an online and real time ‘Remove’ option; or causes software download, installation or similar action with addressee consent);
(ii) using incorrect meta tags; or
(iii) using popups, pop-unders and cookie dropping including but not limited to popups, pop-unders and dropping customer cookies. Any and all pop ads campaigns shall require pre-approval from UG LTD.
6.2.7 promote UG LTD Websites (unless upon UG LTD written approval) in connection with Matched Betting and Arbitrage Betting, which, for the purposes of this sub-clause, is defined as any method of betting or wagering which is intended to give customers a guaranteed win with no risk, including, but not limited to, the use of free bets;
6.2.8 present its own websites in any way that might evoke any risk of confusion with UG LTD and/or convey the impression that the Affiliate Websites are partly or fully originated from UG LTD;
6.2.9 use the any terms, trademarks and other Intellectual Property rights that are vested in UG LTD unless UG LTD expressly consents to such use in writing, with the exception of the Approved Marketing Materials;
6.2.10 use in affiliate URLs, purchase, attempt to register, or register keywords, search terms or identifies for user in any search engine, portal, advertising service or search or referral services similar to any of UG LTD Websites and trademarks, tradenames or otherwise; and
6.2.11 register as a New Customer or make deposits directly or indirectly to any New Customer account through its tracker(s) for its own personal use and/or the use of its relatives, friends, employees or other third parties, or in any other way attempt to artificially increase the commission payable or to otherwise defraud UG LTD. Violation of this provision shall be deemed to be fraud.
7.1 UG LTD agrees to pay the Affiliate the Commission. The Commission shall be deemed to be exclusive of value added tax or any other applicable tax, levies, duty, charge whatsoever. The Affiliate shall be entitled to receive the Commission generated by the Affiliate by New Customers referred by the Affiliate in accordance with the terms herein. Where revenue share deals are agreed UG LTD take an admin charge off gross revenue to cover POCC taxation, payment provider fees, games provider royalties, platform fees and all other administrative costs before the remaining revenue is split accordingly.
7.1.1 In order to claim for the Commission, the Affiliate is obliged to email its invoice by the end of the following calendar month for the preceding calendar month and in accordance with the requirements set out by UG LTD and communicated to the Affiliate. For the avoidance of doubt, should any invoice not be sent in a timely manner (and provided that the requirements communicated from UG LTD are met) it will be processed up to 60 (sixty) days as of the receipt of such invoice. In addition, any invoice diverting from the said requirements will be disregarded and no payment of Commission will be made until such requirements are met. Without prejudice to the foregoing, once an invoice is received, the Commission will be processed by no later than thirty (30) business days.
7.2 The Commission is calculated at the end of each calendar month for the preceding calendar month and the related payments shall be made in accordance with 7.1.1, provided that the amount due exceeds one hundred Euro (€100) or a higher amount chosen by the Affiliate in his settings of the Affiliate account (the “Minimum Threshold”). If the balance due is less than the Minimum Threshold, it shall be accumulated and carried over to the following calendar month and shall be payable when the aggregate Commission exceeds the Minimum Threshold.
7.2.1 In case the Affiliate’s balance under this Agreement in any given calendar month is negative due to New Customer winnings and/or non-cash items, cash items and/or progressive contributions, said balance will be set to zero. A negative balance due to fraud costs will be carried over.
7.2.2 In any given calendar month, if a New Customer (i) generates a negative revenue that can lead to Commission and such revenue is equal to at least $/£/€10,000 (the “Negative Revenue”), and (ii) the aggregate payable Commission in that calendar month for that Affiliate is not exceeding $/£/€2,000, then the provision of this clause 7.2.2 shall apply. If both of the above criteria herein are met the relevant New Customer shall be regarded as High Roller, the Negative Revenue generated by the High-Roller will be carried forward and offset against future Commission as generated by the High-Roller. The Negative Revenue carried forward cannot be set-off against other High Rollers Negative Revenue. The Negative Revenue carried forward cannot be greater than the total aggregate Negative Revenue for the Affiliate, for that calendar month. The Negative Revenue of a High-Roller will be reduced by future losses that may occur when they generate revenue that can lead to Commission in the subsequent calendar months.
7.3 Payment of Commissions shall be made via bank transfer. If an error is made in the calculation of the Commission, UG LTD reserves the right to correct such calculation at any time.
7.4 In case of overpayment, UG LTD reserves, without prejudice to any other rights, the right to request that the Affiliate refunds the difference, or deduct the corresponding amount of overpayment to the Affiliate from the following calendar month’s Commission, and each calendar month thereafter, until the debt is repaid in full.
7.5 In case of underpayment, UG LTD reserves, without prejudice to any other rights, the right to add the corresponding amount of underpayment to the Commission in the following calendar month.
7.6 The Affiliate’s acceptance of the payment of the Commission shall be deemed to constitute the full and final settlement of the balance due for the relevant period.
7.7 If the Affiliate disagrees with the balance due as reported, it shall notify UG LTD within thirty (30) days from the date of payment and state the reasons of the disagreement. Failure to notify UG LTD within the prescribed time limit shall be deemed to be considered as an irrevocable acknowledgment of the balance due for the period indicated.
7.8 UG LTD may in its sole discretion withhold the payment of any balance to the Affiliate for up to one hundred-and-eighty (180) days if UG LTD needs to investigate and verify that the relevant transactions comply with the provisions of the Agreement.
7.9 No payment shall be due if UG LTD has reasons to believe that the traffic generated by the Affiliate or any Sub-Affiliate (as the case may be) is illegal or is in breach of any of the provisions of the Agreement. In such case, UG LTD will inform the Affiliate about its suspicions, when appropriate.
7.10 The Affiliate agrees to return all commissions received based on fraudulent or falsified transactions and indemnify UG LTD for all costs and losses incurred in relation to such transactions (including, but without limitation, legal fees and costs).
7.11 UG LTD reserves the right to review Affiliate’s Services at any time, and UG LTD reserves the right, acting reasonably, to terminate the Agreement as well as withholding any payment of Commission should UG LTD deem that the relationship with the Affiliate is no longer profitable.
7.12 The Affiliate shall have the sole responsibility to pay any and all taxes, levies, fees, charges and any other money payable or due both locally and abroad (if any) to any tax authority, department or other competent entity as a result of the revenue generated under this Agreement. The Affiliate shall pay such taxes, charges, levies, fees at the rate prevailing at the same time as receiving the Commission. UG LTD shall under no circumstances whatsoever be held liable for any such amounts unpaid but found to be due by the Affiliate and the Affiliate shall indemnify UG LTD in that regard in the event that UG LTD has to disburse such amount. For the avoidance of doubt, UG LTD shall be responsible for any taxes imposed on UG LTD’s income resulting from this Agreement.
- Affiliate Website(s) and the Links
8.1 The Affiliate expressly acknowledges and agrees that the use of the internet and compliance with the terms of this Agreement are at the Affiliate’s own risk. UG LTD makes no guarantee in relation to the accessibility of the UG LTD Websites at any particular time or any particular location. UG LTD shall in no event be liable to the Affiliate or anyone else for any inaccuracy, error or omission in, or loss, injury or damage caused in whole or in part by failures, delays or interruptions of, the UG LTD Websites.
8.2 During the Term of this Agreement, the Links shall be prominently displayed on the Affiliate Websites in accordance with what is agreed between UG LTD and the Affiliate.
8.3 UG LTD has the right to monitor the Affiliate Websites in order to ensure the Affiliate’s compliance with the terms and conditions of this Agreement and the Affiliate shall promptly provide UG LTD with all data reasonably requested in order to perform such monitoring.
8.4 The Affiliate Websites shall have at least an opt-in facility for the individuals to subscribe to the receipt of the Approved Marketing Material from the Affiliate via SMS or email. This shall be done on a double opt-in basis. Should this facility be missing from the Affiliate’s end, any Approved Marketing Material sent to individuals would be considered as spam. In the event that UG LTD receives any complaints from individuals about spam, the Affiliate may be required to provide proof that the opt-in function has been provided to individuals. Without prejudice, UG LTD reserves the right to freeze the Affiliate’s account as provided under clause 4.11 of this Agreement.
8.5 Approved Marketing Material sent to individuals by the Affiliate shall always contain an unsubscribe facility whereby the individuals can opt to stop receiving such marketing material from the Affiliate.8.9 The Affiliate shall ensure that any marketing communication sent to individuals, shall only be received by those who have expressly and unequivocally consented to the reception of such materials and are of legal age in the jurisdiction where they reside.
9.1 This Agreement may be terminated by either Party by giving thirty (30) days written notice conveyed via email to the other Party, provided that this Agreement shall be automatically terminated in the event that UG LTD is precluded from offering its services to individuals through the UG LTD Websites.
9.2 This Agreement may be terminated immediately and without liability to UG LTD the Affiliate is in material breach of its obligations or warranties herein, provided that the breach is (i) capable of being cured, and (ii) has not been remedied within three (3) days as of the date in which written breach notice has been sent from UG LTD to the Affiliate. For the sake of clarity, the three-day grace period above shall not apply for fraud or any fraudulent activity whatsoever.
9.3 This Agreement may also be terminated by either Party immediately and upon written notice to the other Party, upon the occurrence of the following events: the insolvency of the other Party, or the other Party executes an assignment for the benefit of its creditors, or any Party dissolves, is wound up or ceases to carry on business, or the other Party becomes subject to receivership, bankruptcy or similar proceedings.
9.4 Notwithstanding what is stated under clause 9.1 above, UG LTD shall retain the right to terminate this Agreement immediately, without liability to UG LTD, and upon written notice to the Affiliate for:
(a) business reasons;
(b) any other reasons pertaining to UG LTD’s internal policy and control;
(c) in case the goodwill or reputation or good name of UG LTD, or its business operations are harmed by any actions of the Affiliate, or any of Affiliate’s third party service providers, or any other third party related to them, or because of any publications, or by any person or entity (e.g. negative posts, etc. with respect to the manner of conducting Affiliate’s operations), as shall be determined by UG LTD, at its sole and absolute discretion.
(d) the Affiliate suspends the Affiliates Services or the latter are not being carried out in a satisfactory manner as deemed by UG LTD at its discretion.
9.5 The Parties hereby agree that on termination of this Agreement:
(a) the Affiliate must remove all references to UG LTD Websites and its brands from the Affiliate Website(s) and any communications, irrespective of whether the communications are commercial or otherwise;
(b) all rights granted to the Affiliate under this Agreement shall immediately terminate and the Affiliate shall cease the use of any Intellectual Property Rights vested in UG LTD and the UG LTD Website and brands;
(c) the Affiliate will only be entitled to such Commission that is earned but unpaid as of the effective termination date of this Agreement; however, provided that UG LTD may withhold the Affiliate’s final payment of any Commission for a reasonable time (without the possibility to for the Affiliate to claim for any interest on such amounts) to ensure that the correct amount is paid. The Affiliate will not be eligible to earn or receive Commission after the effective termination date;
(d) if this Agreement is terminated by UG LTD due to the Affiliate’s breach of any terms and conditions of this Agreement, UG LTD shall be entitled to withhold the Affiliate’s earned but unpaid Commission as of the termination date as collateral for any claim arising from such breach and it shall be in UG LTD’s sole discretion whether to pay such Commission to the Affiliate;
(e) the Affiliate must return to UG LTD any and all Confidential information (and all copies and derivations thereof) in the Affiliate’s possession, custody and control; and
(f) the Affiliate will release UG LTD from all obligations and liabilities occurring or arising after the date of such termination, except with respect to those obligations that by their nature are designed to survive termination. Termination will not relieve 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 in relation to confidential information even if the breach arises at a time following the termination of this Agreement.
- Liabilities and Indemnification
10.1 UG LTD shall not be liable (in contract, tort, breach of statutory duty or in any other way) for:
(a) any economic losses, including but without limitation, loss of profits, revenues, business, contracts or anticipated savings);
(b) any indirect or consequential losses; or
(c) any loss of goodwill or reputation.
10.2 The Affiliate agrees to defend, indemnify and hold UG LTD, further Affiliates, successors, officers, employees, agents, directors, shareholders and attorneys, free and harmless from and against any and all claims and liabilities, including reasonable legal and expert fees, related to or arising from:
(a) any breach of Affiliate’s representations, warranties or obligations under this Agreement;
(b) all conduct and activities occurring under Affiliate’s user ID and password;
(c) any defamatory, libelous or illegal material contained on the Affiliate Websites or Affiliate’s information and data;
(d) any claim or contention that the Affiliate Websites or the Affiliate’s information and data infringes any third party’s Intellectual Property Rights or violates any third party’s rights of privacy or publicity;
(e) third party access or use of the Affiliate Websites or the Affiliate’s information and data;
(f) any claim related to Affiliate Websites, Approved Marketing Material, or the Links; and
(g) any violation of this Agreement or any applicable laws.
10.3 Notwithstanding the foregoing, if a claim, demand or action for infringement or alleged infringement of any Intellectual Property Rights relating to the Approved Marketing Materials or any part thereof (or the use and/or exploitation thereof by the Affiliate) is made by any third party, the Affiliate must notify UG LTD in writing within seven (7) days of receipt by the Affiliate of documentation of the claim. Affiliate shall cooperate with UG LTD in all reasonable respects in connection with the defence or settlement of the claim. UG LTD may, upon written notice thereof to the Affiliate, undertake to conduct all proceedings or negotiations in connection therewith, assume the defence thereof, and, if it so undertakes, it shall also undertake all other required steps or proceedings to settle or defend any such claim, including the employment of counsel at UG LTD’s expense.
10.4 Without prejudice to the clause 10.3 above, UG LTD, at its own expense and discretion, shall have the right to take the following actions in the event of any such claim, demand or action:
(a) modify the Approved Marketing Materials (or the infringing part thereof) without reducing its functionality, or replace the Approved Marketing Materials or infringing part thereof by other marketing materials of equivalent functionality, so as to avoid the infringement or the alleged infringement, provided that the terms herein shall apply to such modified or replaced marketing materials (or any part thereof);
(b) procure a license for the Affiliate to use such material in accordance with the terms of this Agreement; or
(c) any other action as deemed appropriate by UG LTD.
10.5 For the avoidance of doubt, UG LTD shall have no obligation to indemnify the Affiliate or any of its affiliated parties hereunder for claims based on
(i) any marketing materials not supplied by UG LTD,
(ii) any marketing materials made in accordance with marketing guidelines by UG LTD, but not approved by UG LTD,
(iii) marketing materials modified by a party other than UG LTD and without UG LTD’s authorisation, to the extent the alleged infringement relates to such modification,
(iv) any marketing materials supplied by UG LTD when combined with other marketing materials not supplied by UG LTD, where the alleged infringement relates to such combination and not to the materials supplied by UG LTD,
(v) Affiliate’s continuing allegedly infringing activity after being informed of and offered modifications or reasonable alternatives that would have avoided the alleged infringement,
(vi) Affiliate’s use of the Approved Marketing Material not in accordance with this Agreement, or
(vii) third party marketing materials.
10.6 The Affiliate shall not undertake any action in response to any claim, demand, or action of alleged infringement of Intellectual Property relating to the Approved Marketing Materials. Non-observance of this clauses 10.6 by the Affiliate may result in loss of any Affiliate’s rights to be indemnified if such non-observance has a material adverse effect on UG LTD.
11.1 All information shall be treated as confidential. The Affiliate shall use the Confidential Information only for the purposes necessary to further the commitments of this Agreement. For avoidance of doubt, the Affiliate must not use the Confidential Information for any own commercial purpose or any other purpose other than those in this Agreement.
11.2 The Affiliate agrees to avoid disclosure or unauthorized use of the Confidential Information to third persons or outside parties unless with UG LTD’s prior written consent.
11.3 The Affiliate shall only use customer data provided by UG LTD. Any confidential information (including but limited to contact numbers and residential addresses) provided by customers to third parties shall not be used by the Affiliate to provide the services to UG LTD under this Agreement.
- Intellectual Property
12.1 Nothing contained in this Agreement will grant either Party any right, title to or interest in the Intellectual Property Rights of the other Party. For the avoidance of doubt, nothing in this Agreement shall constitute any license, assignment, transfer or any other right to any Intellectual Property Rights.
12.2. The Affiliate hereby acknowledges and agrees, and UG LTD hereby represents and warrants, that UG LTD owns solely and exclusively, or is duly licensed to use, any and all right, title and interest in and to the UG LTD Websites, UG LTD brands, and Approved Marketing Materials including any other modification, enhancement, adaptation, translation or other change of or addition to such items, even if developed by UG LTD based on ideas, suggestions, specifications, demands or proposals by the Affiliate, customers, parties affiliated to Affiliate, or any other third party. Without derogating from the generality of the aforesaid, the Affiliate irrevocably assigns to UG LTD all right, title, goodwill and interest it may have or may acquire in and to all such rights, including, without limitation, patent, copyright, trademark, trade secret or know how.
12.3 At no time during or after the Term of this Agreement shall a Party attempt, challenge, assist or allow others to challenge or to register or attempt to register the Intellectual Property Rights or any rights similar to the Intellectual Property Rights of the other Party.
12.4 UG LTD hereby grants the Affiliate a non-exclusive royalty free licence to use its Intellectual Property Rights herein in accordance with the terms and conditions of this Agreement. UG LTD reserves any and all rights not expressly granted herein. Such license shall terminate simultaneously with the termination of this Agreement.
12.5 All Intellectual Property Rights created and/or deriving from this Agreement, (including, but without limitation, advertising materials, databases and personal data) shall be and become the sole property of UG LTD without any rights to the Affiliate.
- Relationship of the Parties
13.1 Nothing contained in this Agreement, nor any action taken by any party to this Agreement, shall be deemed to constitute either Party (or any of such Party’s employees, agents, or representatives) as an employee, agent or legal representative of the other Party, nor to create any partnership, joint venture, association or syndication among or between the Parties, nor to confer on either Party any express or implied right, power or authority to enter into any agreement, commitment or to impose any obligation on behalf of the other Party.
- Data Protection
14.1 The Parties acknowledge that they shall be acting as controllers in common (and not joint controllers) in respect of the independent processing of such potential customers’ personal data.
14.3 UG LTD may, at its sole discretion, request that the Affiliate evidences its compliance with this clause 14 and the Affiliate shall provide reasonable proof to this effect within seven (7) days of the receipt of such request.
15.1 Language Version In case of any discrepancy between the meanings of the English version of this agreement and any non-English translation of this Agreement, the English version shall prevail.
15.2 Entire Agreement This Agreement constitutes the entire agreement and understanding between the Parties relating to the subject matter hereof and supersedes any previous agreement or understanding between the Parties in relation to such subject matter and the Parties have not relied on and will have no remedy in respect of any statement, representation, warranty, understanding, undertaking, promise or assurance (whether negligently or innocently made) of any person other than as expressly set out in this Agreement.
15.3 Assignment The Affiliate may not assign this Agreement, by operation of law or otherwise, without obtaining the prior written consent of UG LTD. In the event that the Affiliate acquires or otherwise obtains control of another affiliate of UG LTD, then the accounts will coexist on individual terms. Conversely, UG LTD may assign the Agreement, by operation of law or otherwise, at any time without obtaining the prior written consent of the Affiliate.
15.4 Severability and Non-waiver whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law but, if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such provision will be ineffective only to the extent of such invalidity, or unenforceability, without invalidating the remainder of this Agreement. No waiver will be implied from conduct or failure to enforce any rights and must be in writing to be effective. UG LTD’s failure to enforce the Affiliate’s adherence to the terms outlined in this Agreement shall not constitute a waiver of the right of UG LTD to enforce said terms at any time.
15.5 Force Majeure Neither Party shall be liable for any delay or failure to perform any material obligation under this Agreement if the failure is due to an event of Force Majeure. If a Force Majeure Event continues and so prevents the performance by the affected Party of its obligations hereunder for more than sixty (60) days or sixty (60) days in aggregate in any continuous period in excess of ninety (90) days either Party shall be entitled to terminate this Agreement immediately by written notice to the other Party.
15.6 Government Legislation It is hereby recognized by both Parties that their respective ability to carry out their obligations under this Agreement are subject to applicable legislation and policy. Neither Party shall be held liable for damages of whatever kind that may result from changes in government legislation or policy. The Parties shall promptly endeavor to implement such changes promptly in order to ensure continuation of the Enterprise under the changed legal framework.
15.7 Independent Contractors It is agreed that the relationship between Parties is that of independent contractors, and nothing contained in this Agreement shall be construed or implied to create a relationship of joint ventures, agent and principal, employer and employee, or any relationship other than that of independent contractors. At no time shall either Party make any commitments or incur any charges or expenses for or in the name of the other Party, save and except as set out herein.
15.8 Exclusivity Nothing in this Agreement shall imply any exclusivity demands on UG LTD by the Affiliate.
- Governing Law & Jurisdictions
16.1 This Agreement and the rights and obligations of the Parties hereunder shall be governed by and construed in all respects in accordance with the Laws of Malta.
16.2 The Parties hereby undertake and agree that any dispute, controversy or claim which any of them may have under or relating to this Agreement (including, without limitation, any dispute, controversy or claim relating to the existence, validity or termination of this Agreement) which shall not be possible to resolve amicably, shall be referred to the Malta Centre for Arbitration for resolution in accordance with the Arbitration Act, Chapter 387 of the Laws of Malta. The arbitration tribunal shall be composed of a single arbitrator to be appointed by the Chairperson of the Malta Arbitration Centre which shall conduct its proceedings in Malta in accordance with the Rules of the Malta Arbitration Centre as may from time to time be in force. Language of arbitration shall be English. The award shall be final and binding upon the Parties. Nothing in this Agreement shall limit the Parties’ right to enforce an arbitration award in any applicable competent court of law.