1.1. This Agreement is between you
(referred to as the “Affiliate”) and Virgin Bet Limited, a company
registered in Gibraltar with registration number 118415 with its principal
place of business at Suite 2, Floor 2, Waterport Place, Gibraltar, GX11
1AA (“Virgin Bet”).
2. DEFINITIONS AND INTERPRETATION
2.1. Capitalised words and expressions in this Agreement shall have the meanings set out below:
2.2. In this Agreement (except where the context otherwise requires):
2.2.1. any reference to a “subsidiary” or “holding company” is to be construed in accordance with section 1159 of the Companies Act 2006;
2.2.2. any reference to a “party” means a party to this Agreement and includes its permitted assignees and/or the respective successors in title to substantially the whole of its undertaking;
2.2.3. any reference to a “person” includes any person, individual, company, firm, corporation, association, organisation, foundation, trust, government, state or agency of a state or any undertaking (whether or not having separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists);
2.2.4. any reference to a statute, statutory instrument, rule or regulation or any of its provisions is to be construed as a reference to that statute, statutory instrument, rule or regulation or such provision as the same may have been or may from time to time hereafter be amended or re-enacted;
2.2.5. a 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;
2.2.6. words denoting the singular shall
include the plural and vice versa and words denoting any gender shall include
2.2.7. any reference to recitals, clauses, paragraphs or schedules is to recitals, clauses or paragraphs of or schedules to this Agreement;
2.2.8. any reference to “control” is to be construed in accordance with section 416 of the Income and Corporation Taxes Act 1988 as amended from time to time (and “controlling” and “controlled” shall be construed accordingly);
2.2.9. any phrase introduced by the terms “including”, “include”, “in particular”, “for example”, “such as” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
2.2.10. any reference to “writing” includes any methods of representing words in a legible form including writing on an electronic or visual display screen, such as email (and “written” shall be construed accordingly);
2.2.11. the clause headings are included for convenience only and shall not affect the interpretation of this Agreement; and
2.2.12. a reference to any website or webpage at a specified URL includes a reference to such website or webpage at any amended, updated or replacement URL from time to time.
2.3. Any schedules form part of the operative provisions of this Agreement and shall have effect as if set out in full in the body of this Agreement and any references to this Agreement shall, unless the context requires otherwise, include the schedules.
3. APPLICATION TO VIRGIN BET AFFILIATES PROGRAMME
3.1. If Virgin Bet accepts the Affiliate into the Virgin Bet Affiliates Programme, this Agreement shall cover the Brand Website(s) as set out below only as applicable to the Affiliate:
3.2. Virgin Bet may notify the Affiliate about further information or criteria that may be required from the Affiliate for it to be accepted into the Virgin Bet Affiliates Programme, and the Affiliate shall provide such further information and/or fulfil such criteria if it wishes to be accepted into the Virgin Bet Affiliates Programme.
3.3. Virgin Bet will review the Affiliate’s application to participate in the Virgin Bet Affiliates Programme and may, in its sole discretion, accept or reject such application. Without limiting the generality of the foregoing, Virgin Bet may reject the Affiliate’s application if the Affiliate Website and/or any domain name or sub-domain owned or controlled by the Affiliate (whether used or intended to be used for the provision of the Affiliate Website or otherwise), and/or the Affiliates marketing activities or practices generate any content that: (i) contains any Prohibited Material; (ii) consists of, includes or is confusingly similar to any of the Brand Marks or Prohibited Terms; and/or (iii) appears to have been registered in bad faith. For the Affiliate to be accepted into the Virgin Bet Affiliates Programme, Virgin Bet may require that the Affiliate removes the foregoing material, and/or either transfers to Virgin Bet and/or a Virgin Bet Group Company or their licensors or (in Virgin Bet’ or such licensors’ sole discretion) deletes/removes any such domain name, sub- domain or content. The Affiliate shall inform Virgin Bet about any such domain name, sub-domain or content owned by the Affiliate or under its control at thetime the Affiliate makes its application to participate in the Virgin Bet Affiliates Programme.
3.4. Virgin Bet may change this Agreement and add to, change, suspend or discontinue any aspect of the Virgin Bet Affiliates Programme at any time. Virgin Bet recommends that the Affiliate checks this Agreement for changes regularly. Virgin Bet shall publish the date on which any changes to this Agreement are made in clause 18. The Affiliate’s continued use of the Virgin Bet Affiliates Programme following any change in this Agreement will constitute binding acceptance of such changes. If the Affiliate does not agree to any such changes, either party may terminate this Agreement pursuant to clauses 13.1, 13.1.2 or 13.3 as appropriate.
3.5. The Affiliate acknowledges that regulations 9(1), 9(2) and 11(1) of the Electronic Commerce (EC Directive) Regulations shall not apply to this Agreement.
4.1. Subject to the Affiliate’s compliance with this Agreement and Virgin Bet’ acceptance of the Affiliate into the Virgin Bet Affiliates Programme, Virgin Bet grants to the Affiliate a non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable, royalty free licence, during the Term, to promote the Brand Websites and/or the Virgin Bet Affiliates Programme using the Links, Brand Marks and Promotional Content via the Marketing Channels, in each case solely in the manner directed or approved by Virgin Bet and in accordance with all Applicable Laws, any and all Brand Guidelines, and this Agreement, and solely for the purposes of referring the Affiliate’s end users to the Brand Websites.
4.2. The Affiliate shall ensure that it shall only use and place on Affiliate Websites the most up-to-date Links, Brand Marks and Promotional Content made available or approved in writing by Virgin Bet from time to time.
4.3. If Virgin Bet requests any change to the Affiliate’s use and positioning of the Links, Brand Marks and/or Promotional Content and/or Marketing Channels from time to time, the Affiliate shall promptly comply with such request.
4.4. The Affiliate agrees to comply with all reasonable instructions and policies provided by Virgin Bet in relation to its activities in marketing and promoting the Brand Websites.
4.5. The Affiliate shall promptly provide to Virgin Bet such information as Virgin Bet may reasonably request (i) to enable Virgin Bet to monitor the Affiliate’s compliance with this Agreement and (ii) for regulatory purposes, including as may be requested by Virgin Bet in relation to any reports or information that Virgin Bet may wish or need to provide to any Gaming Authority.
5.1. In consideration for the
performance of the Services, and subject to clauses 5.2 and
5.1.1. the Affiliate Revenue Share; and/or
5.1.2. the Cost Per Acquisition; or
5.1.3. if applicable, the Referral Commission (as defined in clause 5.3),
(the “Commission”), as such Commission is agreed between the parties as part of the application process or otherwise, provided that the Affiliate shall not be entitled to any Commission after expiry or termination of this Agreement (including any “lifetime revenue share”).
5.2. The Affiliate shall not be entitled to any Commission
in respect of any of the Affiliate’s end users that are referred to the Brand
Websites having clicked the Links where those end users do not subsequently
register as Players of the Brand Websites.
5.3. The Affiliate may not promote the Virgin Bet Affiliates Programme to other potential affiliates by posting on the Affiliate’s Website a hyperlink made available by Virgin Bet for such purpose without Virgin Bet’ prior written approval. Where Virgin Bet provides its written approval to enable the Affiliate to promote the Virgin Bet Affiliates Programme to other potential affiliates, if any person applies to join the Virgin Bet Affiliates Programme directly via any such hyperlink (as recorded by Virgin Bet) and such person is accepted as an affiliate by Virgin Bet (becoming a “Sub-Affiliate”), Virgin Bet shall determine in its sole discretion whether the Affiliate shall be responsible for distributing its Commission to such Sub-Affiliate or, alternatively, whether Virgin Bet shall pay the Sub-Affiliate any commission together with the amount of such commission (the “Referral Commission”). Notwithstanding the foregoing, in no circumstances shall the Affiliate be entitled to any commission paid by Virgin Bet to a Sub-Affiliate in respect of any sub-affiliates successfully referred to the Virgin Bet Affiliates Programme by such Sub-Affiliate.
5.4. If the
Affiliate has a negative monthly balance, the Affiliate’s monthly payable
5.5. Virgin Bet
shall make available to the Affiliate a monthly statement setting out the
5.6. Subject to clauses 5.8, 5.9 and 5.12, on or before the 15th of each calendar month, Virgin Bet will pay the Commission due to the Affiliate in respect of the previous calendar month based upon the statement to the Affiliate’s nominated bank account.
5.7. Minimum payment thresholds depend upon the payment method selected by the Affiliate. If the balance of the Commission due to the Affiliate in respect of any calendar month is less than the following payment thresholds, such Commission will be carried over into subsequent months until the thresholds have been reached:
5.7.1. UK Bank Transfer – £25 (or, where applicable, the equivalent in another currency);
5.7.2. International Bank Transfer – £200 (or, where applicable, the equivalent in another currency); and
5.7.3. Neteller – £25 (or, where applicable, the equivalent in another currency).
5.8. VirginBet may review the balance of the Commission due to the Affiliate every six (6) months during the Term. If at any review date the balance of the Affiliate’s account is less than £5 (or, where applicable, the equivalent in another currency), any Commission due to such Affiliate shall, at Virgin Bet’ election, be declared void and the balance of its account in relation to any Commission owed shall be reset to £0.
5.9. The Commission will be paid in pounds sterling (£) by electronic bank transfer or Neteller in respect of the Brand Website.
5.10. Affiliate shall be entitled but not obliged to charge interest on the overdue amount, from the due date up to the date of actual payment, at the rate of two percent (2%) per annum above the base rate for the time being of Barclays Bank Plc, provided that the Affiliate shall give written notice to Virgin Bet that the amount has not been paid, specifying the total amount of interest owed at the date of the notice and the daily rate at which the interest will continue to accrue, theinvoice or invoices to which the interest relates, and the addresses to whom and details of the account to which payment should be made.
5.11. If the Affiliate provides incorrect bank details and a payment is unsuccessful and returned to Virgin Bet by its payment processor, Virgin Bet will investigate and notify the Affiliate and request corrected bank account details. Such unsuccessful payments will only be credited to the Affiliate’s corrected account details once Virgin Bet has been notified by its payment processor that the payment has been successfully retrieved. The bank charges associated with any such error shall be deducted from the Affiliate’s Commission.
5.12. Virgin Bet reserves the right to withhold payment of the Commission to the Affiliate if: (i) it believes or suspects that any transaction or other activity relating to any Link, the Virgin Bet Affiliates Website, the Affiliate Website or any Brand Website is suspicious, fraudulent and/or involves or may involve financial crime or similar activity; (ii) there is a breach or suspected breach of this Agreement by the Affiliate; or (iii) Virgin Bet has reasonable grounds to believe that the relevant services, activities or marketing which would have otherwise resulted in such Commission being payable were carried out in a manner which was not in accordance with legal or regulatory requirements. In such event, Virgin Bet reserves the right to retain indefinitely any revenues relating to that transaction or activity and any other revenues (including the Commission) relating to the Affiliate.
6. AFFILIATE OBLIGATIONS
6.1. The Affiliate shall provide the Services in accordance with Good Industry Practice.
6.2. The Affiliate shall check all Promotional Content is compliant with Applicable Laws, the Brand Guidelines, the terms of this Agreement and Virgin Bet’ instructions given from time to time, and shall cooperate fully with Virgin Bet in the case of any investigation or ruling from any regulator, including the Advertising Standards Authority, Information Commissioner’s Office and the UK Gambling Commission.
6.3. Where the Affiliate publishes on any Affiliate Websites any advertising for the Brand Websites which is either: (i) intended to come to the attention of persons in Great Britain; or (ii) likely to come to the attention of such persons, the Affiliate will ensure that such advertising complies with:
6.3.1.the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code) at: https://www.asa.org.uk/codes-and- rulings/advertising-codes/non-broadcast-code.html including in particular (but without limitation) Section 16 concerned with gambling, and for these purposes, the term 'advertising' shall have the meaning attributed to it by Section 327 of the British Gambling Act 2005;
6.3.2.all applicable guidance published by the Committee of Advertising Practice (CAP) and/or the Advertising Standards Authority on the website accessible at https://www.asa.org.uk/ from time to time in relation to the advertising and marketing of gambling;
6.3.3.the Gambling Commission of Great Britain’s Licence Conditions and Codes of Practice (LCCP) including in particular (but without limitation) the requirements of: (i) Section 16 of Part 1 (Responsible placement of digital adverts) ensuring advertisements are not placed on websites which provide unauthorised access to copyrighted content; and (ii) Section 5 of Part 2 (Marketing) of the LCCP from time to time;
6.3.4.the licensing conditions set out in Section 1 of the UK Gambling Act 2005, being the prevention of gambling from being a source of crime or disorder, being associated with crime or disorder or being used to support crime, ensuring that gambling is conducted in a fair and open way, and protecting children and other vulnerable persons from being harmed or exploited by gambling;
6.3.5.all consumer protection laws; and
6.3.6.all applicable laws and regulations related to gambling, in each case as updated, amended, replaced or superseded from time to time.
In complying with the above, the Affiliate agrees that its advertising will not target or be likely to appeal to persons aged under 18, feature any persons who are or who appear to be aged under 25, or promote irresponsible, compulsive or addictive forms or modes of gambling and will at all times, if applicable, feature an “18+” logo and a link to such appropriate problem gambling care organisation (such as www.begambleaware.org) as Virgin Bet may require. For the avoidance of doubt, Virgin Bet shall have the right to terminate this Agreement on written notice and without any liability to the Affiliate if, in Virgin Bet’ reasonable opinion, the Affiliate is in breach of the obligations set out in this clause 6.3.
6.4. If, having obtained the prior written approval of Virgin Bet, the Affiliate markets and promotes the Brand Websites via social media, SMS or push notification, the Affiliate shall (and shall procure from any third party that provides such Services on behalf of the Affiliate that it shall):
6.4.1. provide the relevant marketing messages, Links, Brand Marks and/or Promotional Content to Virgin Bet at least two (2) weeks prior to the target send date in the format requested by Virgin Bet to enable Virgin Bet to approve the same;
6.4.2. only send such marketing to its marketing list once Virgin Bet has provided prior written approval of the same on the day before the target send date;
6.4.3. include Virgin Bet on its marketing list and send all such marketing to Virgin Bet each time it uses such marketing;
6.4.4. only send such messages to recipients who have willingly and explicitly consented to receive marketing from the Affiliate in relation to the Brand Websites, in accordance with applicable Data Protection Laws, such consent having been reaffirmed by the recipient at least within the last year;
6.4.5. clearly display a message in each such communication to state who is sending such marketing communications (and confirm they are not being sent by the applicable Brand Websites);
6.4.6. clearly display an unsubscribe feature in each such communication clearly detailing methods of unsubscribing from the mailing list;
6.4.7. not send any promotional offers relating to the Virgin Bet Affiliates Website or the Brand Website to recipients under the age of 18;
6.4.8. comply with Data Protection Laws; and
6.4.9. at least once every six months, and in any event on Virgin Bet request, provide written evidence to Virgin Bet of its compliance with this clause 6.4.
6.5. If, having obtained the prior written approval of Virgin Bet, the Affiliate markets and promotes the Brand Websites via email, the Affiliate shall (and shall procure from any third party that provides such Services on behalf of the Affiliate that it shall):
the relevant email wording, Links, Brand Marks and/or Promotional Content to
Virgin Bet at least two (2) weeks prior to the target send date in the format
requested by Virgin Bet to enable Virgin Bet to approve the same;
6.5.2. only send emails to its marketing list once Virgin Bet has provided prior written approval of the same on the day before the target send date;
6.5.3. include Virgin Bet on its marketing list by copying firstname.lastname@example.org to the relevant email, and send all email marketing to Virgin Bet each time it uses email marketing;
6.5.4. only email recipients who have willingly and explicitly consented (and have not subsequently withdrawn their consent) to receive marketing from the Affiliate in relation to the Brand Websites, in accordance with applicable Data Protection Laws, such consent having been reaffirmed by the recipient at least within the last year;
6.5.5. clearly include the header of the applicable Brand Website in every email (incorporating the relevant Brand Marks);
6.5.6. clearly display a message in the header of each such email to state who is sending such marketing communications (and confirm they are not being sent by the applicable Brand Website);
6.5.7. clearly display an unsubscribe feature in each such email clearly detailing methods of unsubscribing from the mailinglist;
6.5.8. perform suppression of all email recipient lists against the suppression software tools of Virgin Bet’ Suppression Provider (as defined below), and in accordance with any Virgin Bet’ instructions, before each send of email marketing, to remove applicable email addresses from its list (and only send emails to such suppressed list);
6.5.9. accept and comply with the terms and conditions of Virgin Bet’ third party suppression software provider as is stipulated by Virgin Bet from time to time (the “Suppression Provider”), including by:
18.104.22.168. not reverse engineering (whether manually or digitally) supressed lists of emails and other contact details;
22.214.171.124. fully cooperating with the Suppression Provider in connection with carrying out suppression activities for the purposes of this Agreement;
126.96.36.199. not making compilations, deductions or inferences from such suppressed lists or any other information provided by the Suppression Provider;
188.8.131.52. not using any information provided by the Suppression Provider or any suppressed lists for any purpose other than the fulfilment of Virgin Bet’ suppression requirements; and
184.108.40.206. not running any more queries using the Suppression Provider than are necessary to fulfil Virgin Bet’ requirements.
6.5.10. not send any promotional offers relating to the Virgin Bet Affiliates Website or the Brand Websites to recipients under the age of 18;
6.5.11. comply with Data Protection Laws; and
6.5.12. at least once every six months, and in any event on Virgin Bet request, provide written evidence to Virgin Bet of its compliance with this clause 6.5.
6.6. If the Affiliate uses any social media platform to market and promote the Brand Websites, the Affiliate shall (and shall procure from any third party that provides such Services on behalf of the Affiliate that it shall) fully comply with such social media platform’s terms and conditions (as may be updated from time to time).
6.7 If the Affiliate is conducting search-based activity it shall implement the industry wide negative keyword list.
6.8. If any form of spam is sent (or alleged to have been sent) by or on behalf of the Affiliate, Virgin Bet may, at its sole discretion, terminate this Agreement (and all other agreements with such Affiliate) immediately on written notice to the Affiliate and withhold all funds then due. Virgin Bet may incur expenses in dealing with complaints and other issues arising from any spam generated mail sent by or on behalf of the Affiliate and these expenses may, at Virgin Bet’ sole discretion, be deducted from the Commission from time to time. Should these expenses not be covered by the Commission, the Affiliate hereby agrees to indemnify and hold harmless Virgin Bet and all Virgin Bet Group Companies from and against all losses, damages, costs, expenses, liabilities and claims (including reasonable legal expenses) incurred by or awarded against Virgin Bet or Virgin Bet Group Company due to or in connection with any breach by the Affiliate of this clause 6.8.
6.9. The Affiliate shall not provide the information of another person with the intention of impersonating that person or deceiving Virgin Bet as to its true identity.
6.10. Without prejudice to clause 6.9, the Affiliate shall meet and maintain all Player registration requirements relating to the Brand Website (including that the Affiliate must be at least 18 years of age to register as a Player of the Brand Website).
6.11 The Affiliate shall be subject to due diligence and PEPS/sanction checks and where possible and where relevant, the Affiliate shall conduct KYC checks.
6.12. This Agreement is for commercial use only, and neither the Affiliate nor its employees, or their family members, friends or associates may make purchases, directly or indirectly, through the Links for its or their own personal use or to fraudulently increase the Commission or for other fraudulent purposes, for example by registering as Players of the Affiliates.
6.13. Affiliates will not knowingly benefit from known or suspected traffic not generated in good faith whether or not it actually causes damage to Virgin Bet. Virgin Bet reserves the right to retain indefinitely any amounts due to the Affiliate under this Agreement if it has reasonable cause to believe that such traffic has been caused by or as a result of an act or omission of the Affiliate.
6.14 Affiliate shall share all responsible gambling related content on a regular basis, with frequency to be pre-determined with each individual operator with whom that Affiliate has an agreement.
7. AFFILIATE ACCOUNTS
7.1. The Affiliate shall be responsible for:
7.1.1.keeping its bank account details up to date for the purpose of receiving any amounts payable to the Affiliate in accordance with this Agreement;
7.1.2.keeping its contact details including postal address, telephone number and email address up to date for the purpose of receiving any notification set out in this Agreement; and
7.1.3 maintaining the confidentiality of its email, password and all usage and activity on its account, including use of such account by a third party authorised by the Affiliate to use its account.
7.2. The Affiliate shall notify Virgin Bet by email at email@example.com of any known or suspected unauthorised uses of its account, or any known or suspected breach of security, including loss, theft or unauthorised disclosure of its email and/or password.
7.3. The Affiliate agrees that Virgin Bet may rely on any data, notice, instruction or request furnished to it by the Affiliate or by a person reasonably believed by Virgin Bet to be authorised to act on the Affiliate’s behalf.
7.4. Affiliate Websites that comprise cashback and incentive Websites are allowed to participate in the Virgin Bet Affiliates Programme provided that:
(i) Virgin Bet reserves the right to limit the amount of cashback given away for all BR and websites; and
(ii) each cashback operator must make Virgin Bet aware of the nature of their Website as part of such operator’s application to join the Virgin Bet Affiliates Programme so that Virgin Bet can evaluate such operators’ possible participation and approve or reject such application accordingly in Virgin Bet’ sole discretion.
8.1. Each party represents and warrants to the other that it has and will retain throughout the Term all right, title and authority to enter into this Agreement, to grant to the other party the rights and licences granted in this Agreement and to perform all of its obligations under this Agreement.
8.2. The Affiliate warrants, represents
and undertakes (as applicable) on a continuing basis that:
8.2.1. the Affiliate Website, any content thereon, and any domain name or sub- domain associated with the Affiliate Website:
220.127.116.11. is not aimed at, and is not of particular appeal to, people under the age of 18;
18.104.22.168. does not contain any Prohibited Material or (other than as permitted by this Agreement) any Brand Mark or Prohibited Term;
22.214.171.124. does not infringe the rights
(including the Intellectual Property Rights) of any third party; and
126.96.36.199. is solely owned and/or controlled by the Affiliate;
8.2.2. it will comply at all times with any and all applicable Brand Guidelines;
8.2.3. it has obtained and will maintain all necessary registrations, authorisations, consents and licences to enable it to fulfil its obligations under this Agreement;
8.2.4. it will not make any application to register any trade or service mark, business name, company name, domain name or sub-domain which consists of, includes or is confusingly similar to any Brand Mark or Prohibited Term;
8.2.5. it will perform its obligations under this Agreement in accordance with Good Industry Practice;
8.2.6. it will not make, and shall procure that none of its employees make, any defamatory or derogatory statements about, or take part in any activities which are or might reasonably be perceived to be derogatory of or detrimental to the reputation of the Brand Websites, Virgin Bet or Virgin Bet Group Companies;
8.2.7. it will comply with all Applicable
Laws, including Data Protection Laws, and its obligations set out in clauses 6,
15 and Schedule 6;
8.2.8. it has not violated any Applicable Laws, including laws relating to gaming in the U.S., prior to the date of this Agreement;
8.2.9. no Brand Websites, Brand Marks, Links or Promotional Content shall be directed at or be made available to people under the age of 18 at any time or for any reason during the Term or thereafter, whether through the selection of media or context in which they appear or otherwise;
8.2.10. it will use best industry practice tools, practices and techniques to ensure that no Brand Websites, Brand Marks, Links or Promotional Content shall
8.2.11. it will use best industry practice tools, practices and techniques to ensure that no Brand Websites, Brand Marks, Links or Promotional Content shall be directed at or be made available to people under the age of 18 at any time or for any reason during the Term or thereafter, taking into account the likely audience of the Affiliate Website and/or the Affiliate’s advertising (including through (a) the selection of media or context for the Affiliate Website in which the Brand Marks, Links and Promotional Content appear; (b) account-related data for the Affiliate Website; (c) the use of filters that, based on interest-based and behavioural factors, remove people aged under the age of 18 from the target audience of the Affiliate Website and to ensure interest-based and behavioural factors direct the Brand Marks, Links and Promotional Content to target audiences of persons above 18 years; (d) the use of secondary filters where the target audience is similar to the restricted audience to account for the fact that some audiences are likely to lie about their age; and (e) where a Marketing Channel is not capable of including a filter, the establishment of a minimum audience share of such advertising of 75% over-18s for general content together with a complete exclusion of media that would appeal to children and/or young people);
8.2.12. it will provide evidence that it has, and has cooperated with Virgin Bet to have, been diligent in forecasting the likely audience of the Marketing Channels and is confident of the likely audience composition ahead of utilising any Marketing Channel and including any Brand Marks, Links and Promotional Content in its advertising of the Brand Websites;
8.2.13. it will notify Virgin Bet promptly upon becoming aware that any Brand Marks, Links or Promotional Content has been directed at, or is likely to be directed at, people aged under the age of 18;
8.2.14. it will not intercept or complete any registration form submitted by Players or potential Players to Virgin Bet (and/or any other communications between any such persons and Virgin Bet);
8.2.15. it will not intercept, redirect or otherwise interfere with traffic from any other Virgin Bet affiliate Website; and
8.2.16. all information it submits to Virgin Bet on the application form and in all other communications between the parties is complete and accurate.
8.3. The Virgin Bet Affiliates Website, Brand Marks, Links, Promotional Content and the Brand Websites are provided on an “as is” and “as available” basis, without warranties of any kind, either express or implied, including implied warranties of the ability and fitness for a particular purpose of the Virgin Bet Affiliates Website and the Brand Websites, unless such warranties are legally incapable of exclusion. Virgin Bet does not guarantee: (i) the Virgin Bet Affiliates Website or the Brand Websites will be uninterrupted or error-free; (ii) that defects on or in the Virgin Bet Affiliates Website or the Brand Website will be corrected; (iii) there are no viruses or other harmful components on or in the Virgin Bet Affiliates Website or the Brand Website; (iv) the security methods employed on or in the Virgin Bet Affiliates Website or the Brand Website will be sufficient; (v) any content on the Virgin Bet Affiliates Website or the Brand Websites is correct, accurate, or reliable; or (vi) the Virgin Bet Affiliates Website, Brand Marks, Links, Promotional Content and the Brand Websites will not infringe the Intellectual Property Rights of any third party.
9.1. Without prejudice to Virgin Bet’ other rights or remedies under this Agreement, the Affiliate shall fully indemnify and hold harmless Virgin Bet and Virgin Bet Group Companies, affiliates, employees, officers and directors (collectively, these are referred to in clauses 9 as “Associates”) from and against all losses, demands, fines or penalties (including any fine or penalty imposed by a Gaming Authority), damages, costs, expenses (including reasonable legal costs and expenses and VAT thereon), liabilities and claims (including any claims from Players) suffered or Incurred, directly or indirectly, by or awarded against Virgin Bet or any of its Associates in consequence of or in connection with :
9.1.1. a breach by the Affiliate of any of the warranties set out in clause 8 (Warranties);
9.1.2. a breach by the Affiliate of clauses 4.1 and/or 6 (Affiliate Obligations);
9.1.3. a breach by the Affiliate of clause 11 (Intellectual Property);
9.1.4. a breach by the Affiliate of clause 15 (Data Protection) or Schedule 6 (Data Processing Terms); or
9.1.5. a breach of any other provision of this Agreement by the Affiliate;
9.1.6. any review, suspension or loss of any of Virgin Bet’ licences, authorisations or permissions arising from the Affiliate’s breach of this Agreement.
10. LIMITATION OF LIABILITY
10.1. Neither Virgin Bet nor any Virgin Bet Group Companies shall be liable to the Affiliate or to any third party in contract, tort (including negligence) or howsoever arising for any:
10.1.1. loss arising from or in connection with loss of revenues, profits, contracts or business or failure to realise anticipated savings; or
10.1.2. loss of goodwill or reputation; or
10.1.3. indirect or consequential losses
suffered or incurred by the Affiliate and arising out of or in connection with
this Agreement, even if such loss was reasonably foreseeable or that Virgin Bet
or any Virgin Bet Group Companies had been advised of the possibility of the
Affiliate incurring it.
10.2. Nothing in this Agreement shall exclude or limit either party’s liability for: (i) fraud or fraudulent misrepresentation; (ii) death or personal injury resulting from its negligence or the negligence of its employees or agents; or (iii) any other matter which cannot be excluded or limited by Applicable Laws.
10.3. The total aggregate liability of Virgin Bet to the Affiliate for loss or damage under or in connection with this Agreement and in connection with any event or connected series of events shall not exceed the greater of (i) total Commission paid to the Affiliate by Virgin Bet in the six (6) months preceding the date on which the liability occurred and (ii) £1,000 (or, where applicable, the equivalent in another currency).
10.4. This clause 10 shall not limit Virgin Bet’ liability to pay any sums properly due and owing to the Affiliate pursuant to clause 5.
11. INTELLECTUAL PROPERTY
11.1. If and to the extent that any Links and/or Promotional Content are created by or on behalf of the Affiliate, the Affiliate hereby irrevocably and unconditionally assigns to Virgin Bet with full title guarantee all right, title and interest (including Intellectual Property Rights) worldwide in perpetuity in and to such Links and/or Promotional Content without restriction. The Affiliate waives all “moral rights” under the Copyright Designs and Patents Act 1988 in such Links and/or Promotional Content (and all similar or equivalent rights in any jurisdiction), and hereby grants to Virgin Bet all the consents required by Virgin Bet to exploit such Links and Promotional Content, without limitation so far as possible in perpetuity for any purpose. The Affiliate shall only use such Links and Promotional Content for the purpose of fulfilling its obligations hereunder.
11.3. The Affiliate acknowledges and agrees that, other than in accordance with the licences granted to it pursuant to this clause11.2:
11.3.1. it neither has nor obtains any right, title or interest in or to any Intellectual Property Rights of Virgin Bet or its licensors (including any such right, title or interest as may exist in the Prohibited Terms, the Links, the Promotional Content and any Player Data); and
11.3.2. all right, title and interest (including goodwill) arising from the Affiliate’s use of any Intellectual Property Rights belonging to Virgin Bet or its licensors will vest in and/or accrue to Virgin Bet or its licensors (as applicable). Virgin Bet or its licensors may, at any time, call for a confirmatory assignment of any such right, title, interest and/or goodwill.
11.4. Virgin Bet and/or its licensors shall, in their absolute discretion, decide what action to take (if any) in respect of any infringement of any Intellectual Property Rights that may from time to time be vested in Virgin Bet and/or any Virgin Bet Group Company and/or their licensors. Virgin Bet and/or its licensors shall have exclusive control over, and conduct of, all claims and proceedings arising out of or in connection with any Intellectual Property Rights, and shall be entitled to retain indefinitely all sums recovered in any action for their own account. The Affiliate shall not make any admissions other than to Virgin Bet and/or its licensors and shall provide Virgin Bet and/or its licensors with all assistance that they may reasonably require in the conduct of any claims or proceedings.
11.5. The provisions of section 30 of the Trade Marks Act 1994 (and any similar or equivalent legislation in any jurisdiction) are expressly excluded.
11.6. Virgin Bet and/or the Virgin Bet Group Companies and their licensors may at any time in their sole discretion, with or without notice to the Affiliate, and with no further liability to the Affiliate:
11.6.1. modify any of the Brand Marks or Brand Websites; and/or
11.6.2. discontinue, withdraw, terminate
or cease using any of the Brand Marks or Brand Websites included in the Virgin
Bet Affiliates Programme. In such event this Agreement shall automatically
terminate in relation to the relevant Brand Mark(s) and/or
11.7. The Affiliate agrees to promptly do and/or procure the doing of all things and to sign and execute and/or procure the signing and execution of all such documents and deeds as may be required in order to perfect and protect or enforce any Intellectual Property Rights of Virgin Bet and/or the Virgin Bet Group Companies and/or their licensors, and to ensure that all right, title and interest (including Intellectual Property Rights) that may in this Agreement be expressed to vest in Virgin Bet and/or any of the Virgin Bet Group Companies and/or their licensors shall so vest.
11.8. The Affiliate shall not:
11.8.1. market the Affiliate Website in any way that might compete with Virgin Bet and/or its licensors’ own marketing efforts, unless the Affiliate has received prior written approval from Virgin Bet in such regard. Without limiting the generality of the foregoing, the Affiliate shall not drive pay-per-click traffic to the Virgin Bet Affiliates Website, any Brand Website, the Affiliate Website or any other Website, including via any search engine, directory or online database, by bidding on search terms, key words or other identifiers that consist of, include or are confusinglysimilar to (i) any of the Brand Marks; and/or (ii) any of the Prohibited Terms;
11.8.2. use the Brand Marks for any purpose not authorised hereunder and shall not make any alteration to or modification of any of the Brand Marks without the prior written consent of Virgin Bet and/or its licensors (as applicable).
11.8.3. do, cause or authorise, or omit to
be done, anything which in Virgin Bet’ reasonable opinion will or may in any
way impair, damage or be detrimental or adversely affect the reputation or
goodwill associated with Virgin Bet (or its licensors) or any Virgin Bet Group
Companies, or any Intellectual Property Rights vested in Virgin Bet
(or its licensors) or any Virgin Bet Group Companies (or any of their
respective licensors). The Affiliate shall not use any Intellectual Property
Rights of Virgin Bet (or its licensors) or any of the Virgin Bet Group
Companies (or any of their respective licensors) in any manner likely to cause
harm to the distinctive character or validity of such Intellectual
11.8.4. use misleading Links or Promotional Content or cause any Links to open in an end user’s browser other than as a result of a Valid Click.
11.8.5. apply for, or obtain, registration of any of the Brand Marks or Prohibited Terms for any goods and services anywhere in the world;
11.8.6. apply for, or obtain, registration of any trade mark or service mark anywhere in the world which consists of, includes, or is confusingly similar to any of the Brand Marks or Prohibited Terms;
11.8.7. apply for, or obtain, registration of any domain name or sub-domain anywhere in the world which consists of, includes, or is confusingly similar to any of the Brand Marks or Prohibited Terms;
11.8.8. copy, and shall otherwise ensure that the Affiliate Website does not have the look and feel of, the whole or any part of any of the Brand Websites or the Games; or
11.8.9. place Links, Brand Marks or Promotional Content in newsgroups or unsolicited email.
11.9. The Affiliate shall, immediately upon Virgin Bet’ request and in accordance with Virgin Bet’ instructions, assign and/or transfer to Virgin Bet (and/or its licensors), or delete (in Virgin Bet’ and/or its licensors’ sole discretion), any trade mark, service mark, domain name and or sub-domain registration or application obtained and/or registered and/or applied for in breach of clause 11.7. This obligation shall apply irrespective of whether such trade mark, service mark, domain name and/or sub- domain registration or application was made before, on or after the Commencement Date. Until such time as the trade mark, service mark, domain name and/or sub-domain registration or application has been assigned or transferred to Virgin Bet in accordance with this clause:
11.9.1. Virgin Bet may, in its sole discretion, withhold indefinitely and retain indefinitely any Commission payments that may be due to the Affiliate; and
11.9.2. the Affiliate shall not allow the trade mark, service mark, domain name and/or sub-domain registration or application to lapse.
11.10. Except as expressly set out in this Agreement, the Affiliate shall not use in its business (including as, or as part of, its corporate or trading name or logo), or on or in relation to the Affiliate Website, any trade mark or service mark which consists of, includes or is confusingly similar to any of the Brand Marks or Prohibited Terms.
12. CONFIDENTIAL INFORMATION
12.1. Subject to clause 12.2, each party undertakes that it will not at any time hereafter use, divulge or communicate to any person (except to its professional representatives or advisers and any employees, agents or sub-contractors who need to know such information for the performance of this Agreement and provided that such party shall inform each of them of, and procure their compliance with the terms of this clause 12), the terms of this Agreement or any Confidential Information concerning the other party or any Group Company of such other party which may have or may in the future come to its knowledge. Neither party shall use any such Confidential Information except for the performance of this Agreement.
12.2. The obligation of confidentiality contained in clause 12.1 shall not apply or (as the case may be) shall cease to apply to Confidential Information which:
12.2.1. at the time of its disclosure by the disclosing party is already in the public domain, or which subsequently enters the public domain, other than by breach of this Agreement by the receiving party;
12.2.2. is already known to the receiving party (as evidenced by written records) at the time of its disclosure by the disclosing party and was not otherwise acquired by the receiving party from the disclosing party under any obligations of confidence;
12.2.3. is at any time after the Commencement Date acquired by the receiving party from a third party having the right to disclose the same to the receiving party without breach of obligation owed by that third party to the disclosing party;
12.2.4. is required to be disclosed by Applicable Laws or order of a court of competent jurisdiction or government department or agency, provided that prior to such disclosure the receiving party shall, wherever possible and permitted by Applicable Laws, advise the disclosing party of the proposed form of the disclosure;
12.2.5. is independently developed by the receiving party without reference to the Confidential Information of the disclosing party; or
12.2.6. the disclosing party informs the receiving party in writing is not Confidential Information.
12.3. Virgin Bet shall be entitled to disclose Confidential Information relating to the Affiliate (which may include contact details and other Personal Data) to its licensors, third party complainants (or their professional advisers) or regulatory authorities if Virgin Bet believes (in its sole discretion), or a third party alleges, that the Affiliate: (i) has infringed the rights of Virgin Bet, its licensors or any third party or has otherwise incorporated any Prohibited Material into the Affiliate Website; (ii) has registered any domain name or sub-domain in bad faith; (iii) is in breach of any Applicable Laws or regulatory requirement; or (iv) has sent or caused to be sent any form of spam.
12.4. Neither party shall make any public announcements with respect to any aspect of this Agreement or its relationship with the other party without the prior written approval of the other party for each announcement.
13. TERM AND TERMINATION
13.1. This Agreement shall commence on the Commencement Date and remain in effect until terminated in accordance with the terms of this Agreement (the “Term”).
13.2. The Affiliate may terminate this Agreement with respect to any Brand Website for any reason upon 7 days’ prior written notice to Virgin Bet.
13.3. Virgin Bet may suspend indefinitely or terminate this Agreement with respect to any Brand Website for any reason immediately on written notice to the Affiliate at any time. Notwithstanding the foregoing, where Virgin Bet is unable to contact the Affiliate as a result of its failure to comply with clause 7.1.2, Virgin Bet shall have the right to suspend indefinitely or terminate this Agreement without the need for notice to the Affiliate. In such circumstances, Virgin Bet shall have the right to withhold indefinitely and retain indefinitely any amounts due to such Affiliate for each relevant calendar month with effect from the date of the suspension or termination of the Agreement.
13.4. It is acknowledged, without prejudice to the generality of clause 13.3, that Virgin Bet shall have the right (but not the obligation) to suspend indefinitely or terminate this Agreement or any part of it immediately on written notice to the Affiliate at any time if, for example: (i) Virgin Bet deems the Affiliate, in its reasonable opinion, as not actively promoting the Brand Websites, including by not referring a reasonable number of Players to the Brand Websites, for a period of one (1) month; (ii) Virgin Bet considers that a promotion published or operated by the Affiliate is: (a) harmful, inappropriate or aimed at undesirable countries; or (b) in any way in breach of this Agreement; or (iii) the Affiliate sends or causes to be sent (or is alleged to have sent) any form of spam; (iv) the Affiliate sends or causes to be sent (or is alleged to have sent) any marketing without explicit consents from an end user or that is in breach of Data Protection Laws; (v) the Affiliate is in breach of any relevant advertising law, regulation or code of practice (including the UK Code of Non-broadcast, Advertising, Sales Promotion and Direct Marketing and the Gambling Industry Code for Socially Responsible Advertising, if applicable); (v) the Affiliate fails, or in Virgin Bet’ reasonable opinion fails, to comply with any of its obligations under this Agreement; or (vi) the Affiliate fails to comply with clauses 7.1.1 and 7.1.2 for a period of at least three (3) months, as a result of which Virgin Bet is unable to pay the Commission to the Affiliate and/or unable to contact the Affiliate; or (vii) the Affiliate does not log into its Virgin Bet affiliate account or, having logged into such account, elects not to accept any amendments made to this Agreement pursuant to clause 3.4 within one (1) week of the last date that this Agreement was updated. In such circumstances, Virgin Bet shall have the right to withhold indefinitely and retain indefinitely any amounts due to such Affiliate for each relevant calendar month with effect from the date of the suspension or termination of the Agreement and, in relation to clause 13.4(vii), even if the Affiliate subsequently provides Virgin Bet with up to date bank details and/or contact details.
13.5. If Virgin Bet serves notice to terminate this Agreement in accordance with its terms, Virgin Bet shall be entitled to terminate (in such notice or in a separate notice) any or all other affiliate agreements that it has with the Affiliate at the time of termination of this Agreement.
13.6. Either party may terminate this Agreement with immediate effect by written notice to the other party if: (i) the other party becomes insolvent or unable to pay its debts within the meaning of section 123 Insolvency Act 1986 or any statutory modification or re-enactment thereof or equivalent provision in another jurisdiction; or (ii) any step, action, application, order, proceeding or appointment is taken or made by or in respect of the other party in relation to the whole or any part of its undertaking for a voluntary arrangement or composition or reconstruction of its debts, a distress, execution, composition or arrangement with creditors, or winding-up, dissolution, administration, receivership (administrative or otherwise) or bankruptcy or ceasing or threatening to cease to do business, or an analogous event occurs to the other party in any jurisdiction to which it is subject.
13.7 The Affiliate must notify Virgin Bet of any planned or impending change of control at least 30 days prior to such change of control coming into effect. Without affecting any other right or remedy available to it, Virgin Bet may terminate this Agreement with immediate effect by giving written notice to the Affiliate upon notice of an Affiliate’s planned change of control, or a change of control of the Affiliate coming into effect.
13.8. Upon termination of this Agreement or any part of it: (i) the Affiliate shall no longer be entitled to access the Virgin Bet Affiliates Website or the relevant part of it; (ii) the Affiliate must remove from the Affiliate Website and cease to use and/or distribute (in any way) all relevant Brand Marks and Promotional Content, and disable all relevant Links; (iii) all relevant rights and licenses given to the Affiliate in this Agreement shall immediately terminate; and (iv) within 5 days of termination of this Agreement in its entirety, the Affiliate must immediately return to Virgin Bet or (in Virgin Bet’ sole discretion) destroy or permanently delete all the property in the Affiliate’s possession or under its control that either (i) belongs to Virgin Bet, the Virgin Bet Group Companies and/or any of their licensors; and/or (ii) contains any Confidential Information of Virgin Bet.
13.9. After termination, the Affiliate will not be entitled to Commission with respect to Players registered before, on or after the date of termination of this Agreement.
13.10. If Virgin Bet continues to permit Players who have clicked on Links to register with the relevant Brand Website after termination, this will not constitute a continuation or renewal of this Agreement or a waiver of termination.
13.11. The following clauses of this Agreement shall survive termination of this Agreement: 8, 9, 10, 11.1, 11.2, 11.3, 11.7.3, 12, 13.6, 13.7, 13.8, 13.9, 14, 15, 16, 17, 18, and Schedule 6, and any other clauses, the survival of which is necessary for the interpretation or enforcement of this Agreement.
14. REGULATORY MATTERS
14.1. The Affiliate shall provide such information to Virgin Bet as Virgin Bet may reasonably require in order to satisfy any information reporting, disclosure and other related obligations to any Gaming Authority from time to time. The Affiliate shall cooperate with requests, inquiries, investigations and the like of any Gaming Authority in connection with the performance of this Agreement, including the disclosure of information to any Gaming Authority that would otherwise be considered confidential pursuant to clause 12 of this Agreement.
14.2. Insofar as the Affiliate carries out activities pursuant to this Agreement on behalf of Virgin Bet and such activities are subject to any Gaming Approval issued to Virgin Bet from time to time, the Affiliate shall conduct itself as if it was bound by the relevant conditions and the relevant codes of practice to which Virgin Bet is subject pursuant to such Gaming Approval.
14.3. It is acknowledged that Virgin Bet and the Virgin Bet Group Companies conduct business in a highly regulated industry under Gaming Approvals issued by Gaming Authorities. In order to ensure compliance with the requirements of Gaming Authorities and to ensure that Virgin Bet is able to maintain such Gaming Approvals, Virgin Bet may evaluate the suitability of entities with which it does business from time to time. If Virgin Bet, acting in good faith and in accordance with industry practice, determines the Affiliate to be Unsuitable, Virgin Bet may suspend indefinitely or terminate this Agreement immediately by giving written notice to the Affiliate and withhold indefinitely and retain indefinitely any monies then due to the Affiliate.
14.4. No payments or undue financial or other advantage of any kind shall be made by the Affiliate or its personnel, directly or indirectly, to any entity, government, corporation or other person for the purpose of improperly influencing the consideration of applications for a business activity or the receipt of any other benefits, including the obtaining or retaining of business. The Affiliate shall:
14.4.1. comply with all Applicable Laws, statutes and regulations relating to anti- bribery and/or anti-corruption (including, if applicable, the UK’s Bribery Act 2010);
14.4.2. not engage in any activity, practice or conduct which constitutes an offence under any applicable anti-bribery and/or anti-corruption legislation (including acts which would constitute an offence under sections 1, 2 or 6 of the UK’s Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK); and
14.4.3. notify Virgin Bet immediately if it becomes aware that, or has reason to believe that, it has breached its obligations under this clause 14.
14.5. The Affiliate shall implement effective systems and controls to prevent slavery and human trafficking from affecting any part of its business and supply chain. The Affiliate shall, on demand, provide Virgin Bet with a summary of the steps it takes from time to time to prevent modern slavery and human trafficking (including details of any relevant staff and supplier policies and details of due diligence conducted on suppliers).
15. DATA PROTECTION
15.1. Subject to clause 15.3, each of Virgin Bet and each Affiliate shall be a Controller of Personal Data it Processes and will Process that Personal Data as a separate and independent Controller for the purposes of this Agreement. The parties Process the Personal Data as Controllers in common and not jointly as joint Controllers.
15.2. Subject to clause 15.3, each of Virgin Bet and each Affiliate shall be individually and separately responsible for complying with the obligations that apply to it as a Controller under Data Protection Laws, in particular but without limitation:
15.2.1. ensuring that there is a lawful basis on which to rely to Process such Personal Data; and
15.2.2. ensuring that it keeps Personal Data secure at all times, including by implementing and maintaining at its cost and expense, appropriate technical and organisational measures in relation to such Processing so as to ensure a level of security appropriate to the risks that are presented by the Processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
15.3. Virgin Bet may choose to make available certain Personal Data (which may include anonymous player ID information) to the Affiliate from time to time for the sole purpose of allowing the Affiliate to verify the Commission paid or payable by Virgin Bet pursuant to clause 5 (“Virgin Bet Personal Data”), In respect of this Virgin Bet Personal Data only, the parties shall be bound by the terms in Schedule 6.
16.1. Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties, or to authorise any party to act as agent for any other, or create an employee-employer relationship, and no party shall have authority to act in the name or on behalf of or otherwise to bind any other in any way or to hold itself out in its advertising or otherwise in any manner which would indicate or imply any such relationship with the other unless expressly provided otherwise in this Agreement.
16.2. Unless expressly so agreed, no modification or variation of this Agreement shall constitute or be construed as a general waiver of any provisions of this Agreement, nor shall it affect any rights, obligations or liabilities under this Agreement which have already accrued up to the date of such modification or waiver, and the rights and obligations of the parties under this Agreement shall remain in full force and effect, except and only to the extent that they are so modified or varied.
16.3. In no event will any delay, failure or omission (in whole or in part) in enforcing, exercising or pursuing any right, power, privilege, claim or remedy conferred by or arising under this Agreement or by law, be deemed to be or construed as a waiver of that or any other right, power, privilege, claim or remedy in respect of the circumstances in question, or operateso as to bar the enforcement of that, or any other right, power, privilege, claim or remedy, in any other instance at any time or times subsequently.
16.4. Except insofar as this Agreement expressly provides that a third party may in his own right enforce a term of this Agreement, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act. For the avoidance of doubt, the relevant Virgin Bet Group Company can directly enforce the provisions of clauses 6.8, 8, 9, 11.7.3, 12 and 13.7.
16.5. Notwithstanding the covenants for title made in clause 11.1, the Affiliate shall at the cost and expense of Virgin Bet execute or cause to be executed all such other documents and do or cause to be done all such further acts and things consistent with the terms of this Agreement as Virgin Bet may from time to time reasonably require in order to vest in and secure to Virgin Bet and its successors in title the full benefit of the assets, rights and benefits to be transferred or granted to Virgin Bet under this Agreement and for the protection and enforcement of the same and otherwise to give full effect to the terms of this Agreement.
16.6. This Agreement constitutes the entire agreement and understanding of the parties relating to the subject matter of this Agreement and supersedes any previous agreement or understanding (including any Programme Terms to which the Affiliate subscribes and agrees for the purposes of using the Virgin Bet Affiliate Programme in respect of the Brand Websites defined in clause 3.1 of this Agreement (but without prejudice to clause 1.2 of this Agreement)) between the parties (or any of them) in relation to such subject matter. In entering into this Agreement, the parties have not relied on any statement, representation, warranty, understanding, undertaking, promise or assurance (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement. Each party irrevocably and unconditionally waives all claims, rights and remedies which but for this clause it might otherwise have had in relation to any of the foregoing.
16.7. Save as set out in clause 16.8, the Affiliate shall not without the prior written consent of Virgin Bet assign at law or in equity (including by way of a charge or declaration of trust), sub-license, sub-contract or deal in any other manner with this Agreement or any rights under this Agreement, or sub-contract any or all of its obligations under it or purport to do any of the same. Any purported assignment in breach of this clause shall confer no rights on the purported assignee.
16.8. Virgin Bet shall be entitled to sub-contract any or all of its obligations and/or sub- license or assign any or all of its rights under this Agreement at any time.
16.9. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect. If any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid.
16.10. Any notice relating to a breach of this Agreement, a claim under clause 9 of this Agreement, or termination of this Agreement, shall be in writing. Virgin Bet’ notice may be validly served if sent by email to the relevant Affiliate email address as the relevant Affiliate may designate to Virgin Bet in writing from time to time. Any such email notice shall be deemed to have been served at the time of dispatch of such email, i.e. the time when the email enters Virgin Bet information system. For the avoidance of doubt, the parties agree that the provisions of this clause 16.1016.10 shall not apply in relation to the service of any process in any legal action or proceedings arising out of or in connection with this Agreement or the legal relationships established by this Agreement.
16.11. The Affiliate’s notice or any notice by either party in relation to the service of any process in any legal action or proceedings shall be served by hand, prepaid first class recorded delivery (including special delivery), courier or prepaid first class recorded airmail (a “Posted Notice”) to Virgin Bet’s address as set out above (or, in relation to the service of any process in any legal action or proceedings), the Affiliate’s address as stated in its Virgin Bet Affiliates Programme application) (as applicable). Any notice properly sent or delivered in accordance with the foregoing shall be deemed to have been received: (i) if delivered personally by hand, on the day and at the time of delivery if delivered between 09.00 and 17.00 on any working day and otherwise at 09.00 on the next working day; (ii) if sent by first class recorded delivery (including special delivery), at 09.00 on the 2nd working day after posting; (iii) if sent by prepaid first class recorded airmail, at 09.00 on the 5th working day after posting; and (iv) if sent by courier, at the time of signature on the courier’s receipt if delivered at or before 17.00 on any working and otherwise at 09.00 on the next working day.
17. GOVERNING LAW AND JURISDICTION
17.1. The validity, construction and performance of this Agreement (and any claim, dispute or matter arising under or in connection with it or its enforceability or formation) shall be governed by and construed in accordance with the law of England.
17.2. Each party irrevocably submits to the exclusive jurisdiction of the English courts over any claim, dispute or matter arising under or in connection with this Agreement (including non-contractual disputes or claims) or its enforceability or formation or the legal relationships established by this Agreement and waives any objection to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been brought in an inconvenient forum.
18. DATE OF AGREEMENT
18.1. This Agreement was last updated on 29 April 2021 and supersedes any previous agreement.
SCHEDULE 1 COST PER ACQUISITION
AFFILIATE REVENUE SHARE
ADDITIONAL FIXED FEES*
*Budgets and additional fixed fees stated above may be agreed prior to campaign start and are subject to change.
MINIMUM DEPOSIT AND MINIMUM BETTING REQUIREMENTS
MINIMUM DEPOSIT AND MINIMUM WAGERING REQUIREMENTS
Any reference to any domain in this Schedule 3 includes any website having the same name but different generic top-level domain.
SCHEDULE 4 BRAND MARKS
DATA PROCESSING TERMS
In these Data Processing Terms, “Virgin Bet” means, as applicable, any relevant Group Company (as defined in the Services Agreement) of Virgin Bet Limited that uses the services provided by Service Provider, each as a Controller in accordance with Data Protection Laws for the purposes of the Services Agreement and this Agreement.
1.1 Data Processor. In respect of the Virgin Bet Personal Data only, the Affiliate is a data processor (or sub-processor) acting on Virgin Bet’s behalf. As data processor (or sub- processor), the Affiliate will only act upon Virgin Bet’s instructions as set out in this Agreement and otherwise as provided in writing by Virgin Bet to the Affiliate from time to time. Virgin Bet Personal Data will be used in accordance with and for the purposes set out in the documented instructions and only as necessary to verify Commission paid or payable by Virgin Bet pursuant to clause 5. If the Affiliate is ever unsure as to the parameters of the instructions issued by Virgin Bet it will, as soon as reasonably practicable, revert to Virgin Bet for the purpose of seeking clarification or further instructions.
1.2 Nature, Purpose and Duration of Data Processing. The scope and purpose and duration of Personal Data and Processing (including the type of Personal Data and categories of data subject) covered by this Agreement is set out in Annex A.
1.3 Compliance with Data Protection Laws. The Affiliate shall:
1.3.1 have in place a data protection officer where required by applicable Data Protection Laws. The contact details are set out in Annex A.
1.3.2 comply with and Process all Virgin Bet Personal Data in accordance with applicable Data Protection Laws; and
1.3.3 promptly notify Virgin Bet about any circumstance where it is unable to comply with the Data Protection Laws or any actual or potential changes to the Data Protection Laws, which affect the Affiliate’s ability to comply with its obligations under this Agreement. Where the Affiliate is subject to any changes or circumstances under this clause, Virgin Bet will have the right to suspend the Processing until such time as the Processing is adjusted in such a manner that the non-compliance is remedied. To the extent such adjustment is not possible, Virgin Bet shall have the right to terminate the relevant part of the Processing by the Affiliate.
1.4 Co-operation. The Affiliate shall co-operate and assist Virgin Bet with any privacy impact assessments and consultations with (or notifications to) relevant regulators that Virgin Bet considers are relevant pursuant to Data Protection Laws in relation to the Virgin Bet Personal Data.
1.5 Affiliate personnel. The Affiliate personnel will not process Virgin Bet Personal Data without authorisation from Virgin Bet. The Affiliate shallprocure that its personnel are obligated to maintain the security and confidentiality of any Virgin Bet Personal Data as provided in this Agreement and this obligation continues even after their engagement ends.
1.6 Data subject rights. The Affiliate shall promptly forward to Virgin Bet and otherwise co- operate with and assist Virgin Bet at no charge with any requests from data subjects of any Virgin Bet Personal Data pursuant to Data Protection Laws (including the ability to correct, delete, block or port Virgin Bet Personal Data and rights of access and disclosure as set out in clause 2 below).
1.7 Deletion or return of Virgin Bet Personal Data. The Affiliate shall at Virgin Bet’s option, delete (unless required by applicable law) or return all copies of Virgin Bet Personal Data and cease Processing such Virgin Bet Personal Data after the business purposes for which the Virgin Bet Personal Data was Processed have been fulfilled, or earlier upon Virgin Bet’s written request.
1.8 Records. The Affiliate shall maintain a record of all categories of processing activities carried out on behalf of Virgin Bet which shall be made available to Virgin Bet upon request.
2.1 The Affiliate will not disclose Virgin Bet Personal Data outside of the Affiliate except: (i) as Virgin Bet directs (including as permitted under this Agreement); or (ii) as required by law
2.2 In the event that the Affiliate receives any request for disclosure of (or information in relation to) Virgin Bet Personal Data by a law enforcement person or agency:
2.2.1 the Affiliate will, to the extent allowed by law, including the terms of the third party request itself, at no additional charge: (i) attempt to redirect the law enforcement agency to request that data or information directly from Virgin Bet; (ii) promptly notify Virgin Bet of receipt of the request; and (iii) use commercially reasonable efforts to comply with Virgin Bet’s reasonable requests regarding its efforts to oppose the request. If compelled to disclose Virgin Bet Personal Data to law enforcement, then the Affiliate will promptly notify Virgin Bet and provide a copy of the demand, unless legally prohibited from doing so.
2.2.2 if the Affiliate receives a third party request which is subject to an order not to disclose such request to Virgin Bet, the Affiliate will challenge such order in a court of competent jurisdiction and seek court permission to allow Virgin Bet to intervene in the proceedings. The Affiliate shall conduct the challenge at its own expense.
2.2.3 as part of this effort, the Affiliate may provide Virgin Bet’s basic contact information to the requesting agency.
2.3 In the event that the Affiliate
receives any request for disclosure of (or information in relation to) Virgin
Bet Personal Data in a circumstance not covered by clause 2.2: (i) the
Affiliate shall promptly forward such request to Virgin Bet; and (ii) at no
charge, co-operate and assist Virgin Bet with such request where so directed by
Virgin Bet (including in relation to requests from data subjects pursuant to
Data Protection Laws).
3.1 The Affiliate has implemented and will maintain throughout the term of the Agreement appropriate technical and organisational measures, internal controls and information security routines intended to protect Virgin Bet Personal Data against accidental, unauthorized or unlawful access, disclosure, alteration, loss, or destruction. These shall at all times be of at least the minimum standard required by Data Protection Laws and further be of a standard no less than the standards compliant with good industry practice for the protection of Personal Data to ensure a level of security for the Virgin Bet Personal Data appropriate to the risk and to assist Virgin Bet in ensuring compliance with the requirements for the security of processing as set out in Data Protection Laws.
3.2 The Affiliate shall ensure that all Virgin Bet Personal Data is encrypted at all times while in the possession or under the control of the Affiliate.
4. NOTIFICATION AND INCIDENTS
4.1 If the Affiliate becomes aware of or reasonably suspects that any Security Incident has occurred, the Affiliate will without undue delay (and in any event within twenty-four (24) hours):
4.1.1 notify Virgin Bet of the Security Incident;
4.1.2 investigate (including interviewing service personnel) the Security Incident and provide Virgin Bet with detailed information about the Security Incident including making available a suitably senior, appropriately qualified individual to discuss any concerns or questions Virgin Bet may have;
4.1.3 take reasonable steps to mitigate the effects and to minimise any damage resulting from the Security Incident and assist Virgin Bet in remediating or mitigating any potential damage from a Security Incident to the extent that such remediation or mitigation is within the Affiliate’s control as well as reasonable steps to prevent a recurrence of such Security Incident, including interviewing and the possible removal of service personnel from the performance of services for Virgin Bet; and
4.1.4 fully cooperate with Virgin Bet to develop and execute a response plan to address the Security Incident. the Affiliate shall at request of Virgin Bet co-operate in adequately informing the regulatory or individuals involved as so directed by Virgin Bet.
5.1 The Affiliate shall not permit sub-contractors to Process Virgin Bet Personal Data without the prior written approval of Virgin Bet. Those sub-contractors approved as at the commencement of this Agreement are as set out in Annex A. Any changes to the sub-contractors involved in any Processing pursuant to this Agreement (including any change in the scope or nature of the Virgin Bet Personal Data involved or any addition or replacement of sub-contractors approved by Virgin Bet) must be pre-approved in writing by Virgin Bet.
5.2 Any authorisations by Virgin Bet to use a sub-contractor is on the condition that the Affiliate remains fully liable to Virgin Bet for the sub-contractor’s performance of the contract, as well as for any acts or omissions of the sub-contractor in regard of its Processing of Personal Data.
5.3 The Affiliate shall ensure that sub-contractors shall be contractually bound to the same obligations with respect to the Processing of Virgin Bet Personal Data as to which the Affiliate is bound by this Agreement relating to security and audit and otherwise. The Affiliate shall provide copies of documentation to evidence its compliance with this provision to Virgin Bet on request.
6. TRANSFER OF DATA
6.1 The Affiliate may only transfer Virgin Bet Personal Data in the circumstances set out in clauses 2 and 5 of this Schedule 6. Except as set forth above, or as Virgin Bet may otherwise authorise, the Affiliate will not transfer to any Virgin Bet Personal Data.
6. 2 Transfers from the EU to countries outside the EEA
6.2.1 the Affiliate (or any sub-contractor) shall only transfer Virgin Bet Personal Data from the EU to a country outside the EEA where Virgin Bet has provided its written approval to such transfer. Approved transfers as at the commencement of this Agreement are set out in Annex A.
pursuant to clause 6.2.1 shall only be permissible where: (i) the entity
receiving the Virgin Bet Personal Data is located in a territory which is
subject to a current finding by the European Commission under applicable Data
Protection Laws that it provides adequate protection for Personal Data; (ii)
the Affiliate and the entity receiving the Virgin Bet Personal Data
has entered into the Model Clauses or is subject to an alternative mechanism
approved by relevant authorities pursuant to Data Protection Laws (e.g. Binding
Corporate Rules) to the extent that such Model Clauses or other mechanism continue
to be recognised and accepted by the relevant authorities as a
legitimate basis for transfer of Personal Data; or (iii) the necessary
statutory approvals required to be obtained by the Affiliate
(or sub- contractor) as a data processor (or sub-processor), if any,
have all been obtained to enable the transfer of Personal Data.
6.2.3 Where Virgin Bet (as opposed to the Affiliate or sub-contractor) is the exporting entity, the Affiliate shall procure that the entity receiving the Virgin Bet Personal Data pursuant to this clause 6.2, enters into Model Clauses with Virgin Bet (or such other mechanism as Virgin Bet shall elect) prior to any such transfer taking place. Where the Affiliate is itself the importing entity receiving the Virgin Bet Personal Data, it shall itself enter into the Model Clauses with Virgin Bet (or such other mechanism) under this clause.
6.3 Other transfers out of originating country
6.3.1 To the extent that any Processing of Virgin Bet Personal Data by the Affiliate (or sub-contractor) pursuant to this Agreement may involve the transfer of such Virgin Bet Personal Data out of the country in which it is held and such transfer is not covered by clause 6.2, the Affiliate (or any sub-contractor) shall only transfer that Virgin Bet Personal Data where Virgin Bet has provided its written consent to such transfer.
6.3.2 Transfers pursuant to clause 6.3.1 shall only be permissible where any measures required under Data Protection Laws are in place and remain valid.
7.1 Subject to reasonable written advance notice, the Affiliate shall permit Virgin Bet and/or a qualified representative (subject to reasonable and appropriate confidentiality undertakings) to conduct during normal working hours periodic security scans and audits of the Affiliate’s (or its sub-contractors') systems and processes in relation to Virgin Bet Personal Data and shall comply with all reasonable requests or directions by Virgin Bet to verify and/or procure that the Affiliate is in full compliance with its obligations under this ScheduleThe Affiliate shall promptly resolve, at its own expense, all security issues discovered by Virgin Bet and reported to the Affiliate.
7.2 Virgin Bet shall have the right following any such audit to request additional safeguards, establish back-up security for Virgin Bet Personal Data and keep back-up Virgin Bet Personal Data and Virgin Bet Personal Data files in the Affiliate's (or its sub-contractors) possession. The parties shall agree on the additional safeguards to be implemented, if any.
8.1 The Affiliate warrants, represents and undertakes (as applicable) that:
8.1.1 the Processing of Virgin Bet Personal Data described in or contemplated by this Agreement shall not cause Virgin Bet or require any person to be in breach of
the Data Protection Laws;
8.1.2 the Processing of Virgin Bet Personal Data by the Affiliate in accordance with the written instructions from time to time of Virgin Bet shall not cause Virgin Bet or require any person to be in breach of the Data Protection Laws;
8.1.3 any Virgin Bet Personal Data it holds shall be made available to Virgin Bet immediately upon request from Virgin Bet without hindrance or delay;
8.1.4 it shall allow Virgin Bet unrestricted access to the Virgin Bet Personal Data for any lawful purpose requested by Virgin Bet.