The Pools Affiliate Terms and Conditions
Please read these Affiliate Terms and Conditions carefully before applying to become an Affiliate, as they set out our and your legal rights and obligations in relation to our Affiliate Programme. You will be asked to agree to these Affiliate Terms and Conditions before becoming an Affiliate.
You should print a copy of these Affiliate Terms and Conditions for future reference. We will not file a copy specifically in relation to you. This Agreement replaces all previous terms and conditions for the Merchant Affiliate Programme. The Merchant shall publish any changes to this Agreement on its website from time to time. Your continued use of the Affiliate Programme following any change in this Agreement will constitute binding acceptance of such changes. If you do not agree to any such changes, you should terminate this Agreement accordance with clause 12.
These Affiliate Terms and Conditions are available in the English language only.
If you have any questions or complaints about our Affiliate Programme please contact us by writing to us at affiliates@thepools.com
1. Definitions and interpretation
1.1 In the Agreement:
“Acceptance Email” means an email sent by the Merchant to the Affiliate in accordance with this Agreement confirming that the Affiliate has been accepted into the Affiliate Programme;
“Accounting Period” means a calendar month.
“Affiliate” means the person specified as the applicant for our Affiliate Programme on the Registration Form who has been accepted by the Merchant as a member of the Affiliate Programme and is in receipt of an Acceptance Email to verify the same.
“Affiliate Programme” means the affiliate programme(s) for the Merchant’s Products detailed in the Acceptance Email.
“Affiliate Website” means the website or websites owned and operated by the Affiliate and specified by the Affiliate on the Registration Form.
“Affiliate Management Platform” means the platform provided by or on behalf of the Merchant to manage the relationship between the Merchant and the Affiliate.
“Agreement” means the agreement between the Merchant and the Affiliate incorporating these Affiliate Terms and Conditions, the Registration Form and the Acceptance Email, and any amendments to it from time to time.
“Associated Company” means in relation to any company any subsidiary or holding company, or any subsidiary of such holding company, or any other entity controlling or controlled by such company.
“BCAP Code” means the CAP code of the Advertising Standards Authority from time to time.
“Brand Marks” means the trademarks and logos of any of the Merchant Websites as made available to the Affiliate by the Merchant and as set out more specifically in Schedule 2.
“Business Day” a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
“CAP Code” means the BCAP code of the Advertising Standards Authority from time to time.
“Change of Control” means the sale of more than 50% of the share capital of the Merchant or any holding company of the Merchant or the sale of 50% or more of the business of the Merchant.
“Confidential Information” means all confidential commercial, financial, marketing, business and technical or other data, including know-how, trade secrets, specifications, formulae, processes, business methods, drawings and all other confidential information of whatever nature (whether written, oral or in electronic form) concerning the business and affairs of either party or that either party obtains, receives or has access to as a result of the discussions leading up to, or the entering into, or performance of this Agreement.
“Commencement Date” means the date on which acceptance of the Affiliate’s application for the Merchant’s Affiliate Programme is notified to the Affiliate by the Merchant.
“Commission” means the relevant payment structure available to the Affiliate subject to performance as set out in Schedule 1 or communicated to the Affiliate from time to time.
“Data Protection Legislation” all legislation (whether of the UK or any other jurisdiction) relating to the use, protection and privacy of Personal Data (including, without limitation, the privacy of electronic communications) from time to time applicable to the Business.
“Good Industry Practice” means all reasonable care, skill and diligence as may be expected of appropriately qualified and experienced persons with appropriate skill and experience in providing services of a similar scope, type and nature to the Services.
“Gross Gaming Revenue” means:
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, denial of service attacks, virus or other malicious software infections or attacks, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars).
“Intellectual Property Rights” means all intellectual property rights and interests including without limitation: copyrights, patents, database rights and rights in trademarks, designs, know-how, moral rights, database rights, domain names, topography rights and confidential information or any similar rights exercisable in any part of the world (whether registered or unregistered) for the duration of their full terms (including any renewal or extension thereof); and applications for registration and the right to apply for registration, for any of these rights; and all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world.
“LCCP” means the Licence Conditions and Codes of Practice as issued by the UK Gambling Commission (or any replacement body) in force from time to time
“Link” means a hyperlink (whether in text or in an image or otherwise) from the Affiliate Website to the Merchant Website enabling the Merchant to track visitors from the Affiliate Website to the Merchant Website using its affiliate tracking system, which hyperlink is either: (i) provided or made available to the Affiliate (and not subsequently withdrawn) by or on behalf of the Merchant; or (ii) created by or on behalf of the Affiliate, which link is approved by the Merchant in writing in advance.
“Merchant” means The Football Pools Limited, a company registered in England and Wales with Company Number 10573569 and whose registered office is at Walton House, 55 Charnock Road, Liverpool L67 1AA.
“Merchant’s Advertising Guidelines” means the advertising guidelines of the Merchant adopted from time to time and set out in the Affiliate Management Platform.
“Merchant’s Products” means Classic Pools by subscription, Lucky Clover by subscription, casino and/or sportsbook, pools games and lotto games on the Merchant Website (or either of them) or any combination thereof as set out in the Registration Form and agreed in the Acceptance Email.
“Merchant Website” means the websites (or any one of the websites as applicable), and any device specific versions of such website, operated and controlled by the Merchant for the sale of the Merchant’s Products, currently accessible via the following URLs, www.thepools.com and any related mobile applications from time to time, plus any other websites notified by the Merchant to the Affiliate from time to time.
“Minimum Deposit and Wagering Requirements” means the minimum deposit and wagering requirements relating to the Merchant Website, as set out at the Merchant Website.
“Net Gaming Revenue” means Gross Gaming Revenue minus any and all: (a) operating costs (including costs relating to third party platform operators, game operators and any other third party service providers) of the Merchant Website; (b) payment and card processing fees; (c) cash funds added to Players’ accounts, excluding winnings, to incentivise Players to increase their deposits and/or turnover (including converted bonus money and loyalty schemes); (d) invalid, fraudulent or disputed card or debit payments, including where a card company or the payment bank has claimed payment back from the Merchant; (e) applicable taxes and levies; (f) all payments made by and revenues associated with any Player that at any time makes an invalid, fraudulent or disputed payment; and (g) prize insurance costs and/or hedging costs.
“Player” means a new player on a Merchant Website who has successfully opened an account in accordance with this Agreement and which player (a) commences his application for such account directly from a Valid Click and (b) has met the Minimum Deposit and Wagering Requirements in respect of the applicable Merchant Website (for the avoidance of doubt any new player who does not make a Minimum Deposit within 6 months, shall not qualify as a Player and accordingly no Commission shall be payable as a satisfactory referral has not been made and the Merchant reserves the right to remove the affiliate tag in relation to that player). Any Player who does not make a deposit for a continuous period of 90 days or more shall cease to be a player for the purpose of this Agreement.”
“Prohibited Materials” means content, works or other materials that is, or that the Merchant (acting reasonably) is concerned could be held to be:
material which is, in the Merchant’s sole discretion, otherwise unsuitable including (without limitation) online piracy; file sharing; or illegal streaming;
“Promotional Content” means all content promoting the Merchant Website to Players and potential Players that is(a) made available to the Affiliate (and not subsequently withdrawn) by the Merchant; and (b) created by or on behalf of the Affiliate, which content is approved by the Merchant in writing in advance.
“Registration Form” means the form on the Merchant Website enabling users to apply to become Affiliates.
“Services” means those services set out in clause 3.1.
“Term” means the term of the Agreement, which commences on the Commencement Date and continues until this Agreement is terminated in accordance with clause 12.
“Valid Click” means a click on a Link on an Affiliate Website that results in the Merchant Website being viewable to the relevant end user, as recorded by the Merchant’s systems.
1.2 In this Agreement:
1.2.1 a reference to a statute or statutory provision includes a reference to: that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and any subordinate legislation made under that statute or statutory provision;
1.2.2 a reference to a person shall be deemed to include natural persons and their personal representatives, successors and permitted assigns, companies and other bodies corporate, unincorporated associations, partnerships, firms and government bodies, governments, states and any other organisations (whether or not in each case having separate legal personality);
1.2.3 a reference to in writing or written shall include email.
1.2.4 unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.2.5 unless the context otherwise requires, a reference to one gender shall include a reference to the other genders
1.3 The Clause headings do not affect the interpretation of the Agreement.
1.4 The terms “including”, “include” and “in particular” are to be construed without limiting the words that precede them.
1.5 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2. The Agreement
2.1 In order to apply to become an Affiliate, the applicant must complete and submit the Registration Form.
2.2 The Agreement will come into force if and when the Merchant sends to the Affiliate the Acceptance Email, following the submission of a completed Registration Form by the Affiliate.
2.3 The Agreement will continue in force indefinitely, unless and until terminated in accordance with Clause 12.
2.4 By entering into this Agreement, the Affiliate agrees to provide the Services to the Merchant.
2.5 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.
3. Affiliate Services
3.1 For each of the Merchant’s Products which the Affiliate is promoting the Affiliate shall:
3.1.1 subject to the provisions of these terms and conditions relating to misleading clicks, post links for the Merchant Website selected by the Affiliate on the Affiliate’s website and will maintain at least one link on the Affiliate Website during the Term; and
3.1.2 otherwise promote the Merchant Website, subject to and in accordance with the terms of this Agreement.
3.2 The Affiliate shall ensure that it shall always use the most up-to-date Links made available or approved by the Merchant from time to time.
3.3 If the Merchant requests any change to the Affiliate’s use and positioning of the Links from time to time, the Affiliate shall promptly comply with such request.
3.4 The Affiliate shall only place Links on the Affiliate Website set out in the Affiliate’s Registration Form. Placement of Links by the Affiliate on any other websites may only occur with the Merchant’s prior written consent.
3.5 The Affiliate will be granted access to an Affiliate control panel on the Merchant’s Affiliate Management Website during the Term, from which the Affiliate will be able to:
3.5.1 alter the Affiliate's account details and preferences;
3.5.2 access analytics information relating to the Affiliate's performance; and
3.5.3 download code to use as Links.
4. Affiliate obligations
4.1 The Affiliate shall:
4.1.1 provide the Services in accordance with Good Industry Practice;
4.1.2 meet and maintain all registration requirements;
4.1.3 (if a natural person) be at least 18 years of age;
4.1.4 ensure that its website is not confusingly similar with the look and feel of the Merchant Websites;
4.1.5 in advance of any campaign where the Affiliate requires clarity on compliance with the terms of the Agreement or the terms of the Merchant’s Advertising Guidelines, the Affiliate shall only commence a campaign when in receipt of written approval in advance from the Merchant;
4.1.6 comply with Data Protection Legislation;
4.1.7 comply with the LCCP;
4.1.8 comply with the CAP Code and the BCAP Code as applicable;
4.1.9 clearly include the header of the applicable Merchant Website in the email (incorporating the Brand Marks); and
4.1.10 comply with Merchant’s Advertising Guidelines.
4.2 The Affiliate will provide the Merchant with:
4.2.1 such co-operation as is requested by the Merchant (acting reasonably) in connection with the Affiliate Programme;
4.2.2 evidence that age-gating is active on all social media channels where it is available including, but not limited to:
a) Twitter
b) Facebook
c) Instagram; and Live Streaming Platforms and Messaging Platforms
4.2.3 all information and documents requested by the Merchant (acting reasonably) in connection with the Affiliate Programme.
4.3 The Affiliate shall not:
4.3.1 include any Prohibited Materials on the Affiliate Website, or include any hyperlink to any Prohibited Materials on the Affiliate Website;
4.3.2 market the Affiliate Website using spam or unsolicited emails or other unsolicited communications, or using any form of spyware, parasiteware, adware or similar software, or using any other antisocial or deceptive methods;
4.3.3 increase or seek to increase the number of Valid Clicks or Players using any fraudulent or deceptive method;
4.3.4 provide the information of another person with the intention of impersonating that person or deceiving the Merchant or other Affiliates as to its true identity;
4.3.5 drive pay-per-click traffic using any names or brands that are the same as, or similar to, those owned and/or operated by Merchant, including but not limited to a brand or domain using misspelling, addition, omission of characters, phonetic similarity or otherwise.
4.3.6 purchase or register keywords, bid on Merchant branded key words, search terms or other identifiers for use in any search engine, portal, sponsored advertising service or other search or referral service without the Merchant’s prior written consent;
4.3.7 use trademarks, URLs or variations thereof for use in HTML coding (including but not limited to ‘meta tags’, ‘meta descriptions’, ‘meta content’, ‘page titles’, ‘titles’) to the Merchant Website or another Affiliate’s website, including via any search engine, directory or online database by bidding on search terms, key words or other identifiers related to a Merchant Website;
4.3.8 use any promotional content or hyperlinks other than approved Promotional Content or Links in relation to the Merchant Website;
4.3.9 send any promotional offers relating to the Merchant Website to recipients under the age of 18 or such higher age as may apply in specific jurisdictions in relation to gaming laws;
4.3.10 deliberately market to individuals located in any territory from which the Merchant does not accept players;
4.3.11 send any promotional offers relating to the Merchant Website to people who have not willingly submitted their email address and opt-in to receive promotional material.
4.3.12 undertake advertorial style marketing or use pop-unders; or
4.3.13 permit the use of free-to-play or demo games, on their affiliate websites unless they can verify a visitor is over 18 years old using age-verification facilities which comply with the LCCP.
4.4 Any form of spam sent or alleged to have been sent by or on behalf of the Affiliate may, at the Merchant’s sole discretion, result in the Affiliate’s registration being closed and all funds due being withheld. The Merchant 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 the Merchant’s sole discretion, be deducted from the Affiliate’s Commission. Should these expenses not be covered by the Affiliate’s Commission in that Accounting Period, the Affiliate hereby agrees to indemnify and hold harmless the Merchant and members of the Merchant’s Group from and against all losses, damages, costs, expenses, liabilities and claims (including reasonable legal expenses) incurred or awarded against the Merchant or any members of the Merchant’s Group due to or in connection with any breach by the Affiliate of this clause 4.4.
4.5 The Affiliate will not take any action in connection with the Affiliate Programme which does or might put the Merchant in breach of the LCCP or which might reasonably be expected to lead to the possibility of damage to the reputation and goodwill of the Merchant and/or the Merchant Website.
4.6 On the Merchant’s request, the Affiliate shall promptly provide to the Merchant such information as the Merchant may require to enable monitoring of the Affiliate’s compliance with the terms of this Agreement.
4.7 The Affiliate shall be responsible for maintaining the confidentiality of its email, password and all usage and activity on its account, including use of the account by a third party authorised by the Affiliate to use its account.
4.8 The Affiliate shall notify the Merchant by email at affiliates@thepools.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.
4.9 Cashback and incentive websites may participate in the Affiliate Programme with the Merchant’s prior written approval only.
4.10 If the Merchant receives a complaint from a Customer or a third party which states or infers that the Affiliate has been or is engaging in any of the activities specified in Clauses 4.1 or 4.3 and/ or has breached any of the requirements set out in Clauses 4.1 or 4.3 (a “Complaint”), the Affiliate consents to the Merchant disclosing the Affiliate’s contact details to the complaining party so that the Affiliate can resolve the complaint directly. In addition, the Affiliate warrants and undertakes that the Affiliate will immediately cease engaging in the practices resulting in the Complaint and make every effort to resolve the Complaint as soon as practicable. The Merchant reserves all of its rights without limitation, including the right to immediately terminate the Affiliate’s contract and to set off or charge the Affiliate for all claims, damages, expenses, costs, or fines incurred or suffered by the Merchant in relation to a Customer or third-party complaint in respect of this Clause 4.10. Nothing stated or omitted in these Terms shall in any manner prejudice any such rights.
4.11 The Affiliate will indemnify and hold Merchant and its respective directors, officers, members, employees, representatives and advisors harmless from all claims, damages, and expenses (including, without limitation, legal fees and expert witness fees) relating to the development, operation, maintenance, accuracy and compliance of the contents of the Affiliate Website and/ or any materials, products or services linked to it.
5. Intellectual Property Rights
5.1 Subject to the Affiliate’s compliance with the terms of this Agreement, the Merchant hereby grants to the Affiliate during Term a worldwide, non-exclusive, royalty-free licence to reproduce or use the Brandmarks, Links and Promotional Content electronically and to publish the same on the Affiliate Website for the purpose of performing the Services.
5.2 The Affiliate shall use the Brandmarks, Links and Promotional Content at all times in accordance with the Merchant’s Advertising Guidelines.
5.3 The Merchant Websites are provided on as “as is” basis and accordingly the Merchant does not warrant that the use of the Brandmarks, Links or Promotional Content by the Affiliate will not infringe any third party Intellectual Property Rights or give rise to any other liability on the Affiliate.
5.4 The Affiliate shall not make any alteration to or modification of any of the Brandmarks, Links and Promotional Content without the prior written consent of the Merchant and/or its licensors (as applicable).
5.5 The Affiliate acknowledges and agrees that, other than in accordance with the licences granted to it pursuant to this clause 5:
5.5.1 it neither has nor obtains any right, title or interest in the Intellectual Property Rights of the Merchant or its Licensors (including but not limited to the Merchant Website, Brand Marks, Links and Promotional Content); and
5.5.2 all right, title and interest (including goodwill) arising from the Affiliate’s use of the Merchant’s or its licensors’ Intellectual Property Rights will vest in the Merchant or its licensors (as applicable).
5.6 The Affiliate shall not do, cause or authorise to be done, anything which in the Merchant’s reasonable opinion will or may in any way impair, damage or be detrimental or otherwise adversely affect the reputation or goodwill associated with the Merchant, the Brand Marks, or the Intellectual Property Rights vested in the Merchant (or its licensors) or any Associated Companies (or any of their respective licensors). The Affiliate shall not use the Brandmarks, Links, Promotional Content or Intellectual Property Rights of the Merchant (or its licensors) or any Associated Companies (or any of their respective licensors) in any manner likely to cause harm to the validity of the same.
6. Payments and Commission
6.1 In consideration of performance of the Services, the Merchant will pay to the Affiliate the Commission.
6.2 This clause may be varied by agreement between the Merchant and the Affiliate from time to time and any payment terms set out in writing and signed by both parties with the intention of varying these terms shall take precedence in the event of any conflict.
6.3 The Merchant will track Player activity each Accounting Period for the purpose of calculating the Affiliate’s Commission and set this out in a report, together with a statement based on this report stating the Commission payable by the Merchant to the Affiliate in accordance with this Agreement, within 10 Business Days of the end of the Accounting Period. Only Merchant’s tracking functionality will be considered for this purpose. The form of the report will be as featured in the Affiliates control panel on the Merchant’s Affiliate Management Platform and may vary from time to time at Merchant’s sole discretion. The Merchant may remove reporting columns at its sole discretion if these are not required to calculate Commission. The report will detail the number of new Players and the total amount due to the Affiliate after any deductions the Merchant is entitled to make under this Agreement. Within 10 Business Days of receipt of the report provided by the Merchant the Affiliate will produce an invoice which complies with the requirements of clause 6.5 and which in the amount set out in the report and send it to the Merchant.
6.4 The Merchant will settle the invoice within 30 Business Days, unless the amount due is less than GBP£100 in which case the Payments may be held over to the next accounting date.
6.5 If the Affiliate is registered for VAT in the UK or European Union then:
(a) all Commission stated in or in relation to the Agreement or on the Merchant Website is stated inclusive of VAT payable by the Merchant to the Affiliate;
(b) the Affiliate is solely responsible for accounting for such VAT to the relevant tax authorities.
6.6 If the Merchant is required by law to deduct withholding tax or any other taxes or duties from any Payments, then the Merchant will deduct such amounts from the Commission before paying them to the Affiliate.
6.7 Payments to the Affiliate will be made in GBP by bank transfer (using such payment details as are provided by the Affiliate on the Registration Form).
6.8 The Merchant reserves the right to charge to the Affiliate any payment processing fees imposed by certain payment providers at its sole discretion.
6.9 If the Merchant does not pay any amount properly due to the Affiliate under or in connection with the Agreement, the Affiliate may charge the Merchant simple interest on the overdue amount at the rate of 2.5% per year.
6.10 Subject to clause 6.11 the Affiliate’s payable balance of Commission is automatically reset to GBP£0.00 at the beginning of each Accounting Period, to ensure that no negative balances are carried forward.
6.11 In the event that a Player wins more than GBP£1,000 in a single Accounting Period, the Merchant will be entitled to carry over any negative balance which may result from such win on a cumulative basis for the lifetime of the Player activity until the amount of such player’s wins minus the amount of such player’s losses equals zero. Any such Player will be highlighted in the affiliate's account as “Monitored”.
The affiliate will be able to view all adjustments in order to track the Monitored Player’s net breakeven point. Adjustments will be made at the end of each Accounting Period based on the cumulative revenue for the Accounting Period running to protect the Affiliate’s income from revenue generated from other Players in the same Accounting Period. Break even points will be monitored weekly to ensure that all revenue in the Accounting Period is payable in respect of such Accounting Period.
Example
• A Player wins GBP£10,000
• Net revenue in the affiliate accounts will reflect –GBP£10,000. The Player is automatically classified by the Merchant as “Monitored”. Net revenue in the affiliate reports will reflect – GBP£10,000. The player is classified as a Quarantined Player.
This is because the amount won is greater than the specified amount as shown above (GBP£1,000).
• The 'Monitored Negative Carryover' is also –GBP£10,000.
Break even occurs when the player loses GBP£10,000, to compensate for the GBP£10,000 originally won. This may take several Accounting Periods and is therefore calculated on a cumulative basis for the lifetime of the Player’s activity.
For the avoidance of doubt, Merchant will be entitled at any time, at its discretion, to:
(a) carry forward and set off any negative revenue share amount against all future revenue shares otherwise payable to the Affiliate, until the negative balance is set off in full; and
(b) to zero out the negative balance that would otherwise be carried forward.
6.12 The Merchant reserves the right to suspend the Affiliate’s activity and any entitlement to Commission in the event that the Affiliate fails to refer any new Players in any six (6) month period. Reinstatement will be at the Merchant’s sole discretion. For the avoidance of any doubt these players must be bonafide depositing customers.
6.13 No Payments will be due in respect of:
6.13.1 any visits to or actions upon the Merchant Website made by or on behalf the Affiliate; any parent undertaking or subsidiary of the Affiliate; any employee, agent or officer of the Affiliate or any parent undertaking or subsidiary of the Affiliate; or any natural person related to any of the above;
6.13.2 any amount received by the Merchant by means of the fraudulent or unlawful use of a credit, debit or other payment card, or by any other fraudulent or unlawful means; or
6.13.3 any payments on the Merchant Website which are subsequently cancelled, refunded, reversed, or charged-back; or
6.13.4 any Player who already has an account on the Merchant Website, and the Merchant will be entitled to require repayment of Payments made as a result of such visits, actions and purchases. For the avoidance of doubt, the Merchant may withhold payment of Commission if it has reasonable grounds to believe that the Affiliate has breached any term of this Agreement or has acted dishonestly. The Merchant may also withhold payment of Commission when it has reasonable grounds to believe that the payment of such Commission may cause the Merchant or the Affiliate to be in breach of any applicable laws, rules or regulations in any jurisdiction.
6.13.5 any Player who is otherwise judged by the merchant at its sole discretion to be deliberately abusing or attempting to abuse bonus and promotional schemes or otherwise acting in bad faith and contrary to site rules.
6.14 The Affiliate agrees to promptly repay to the Merchant on demand any monies already paid to it arising from any of the circumstances in clause 6.13 together with all reasonable legal costs and other expenses incurred by the Merchant in investigating the matter and recovering any losses it has suffered.
6.15 Affiliates will not knowingly benefit from known or suspected traffic not generated in good faith whether or not it actually causes damage to the Merchant. In such circumstances the Merchant reserves the right to withhold any Commission due to the Affiliate if Merchant has reasonable cause to believe that such traffic has been caused with the Affiliate’s knowledge.
6.16 Except in the case of manifest error or fraud, the Merchant’s calculation of Commission shall be final.
6.17 Both before and after termination, the Merchant will be entitled to set off any amount owed to the Affiliate against any amount the Affiliate owes to the Merchant whether under the Agreement or otherwise, and against any loss or damage suffered by the Merchant whether in relation to the Agreement or otherwise arising out of the Affiliate's acts or omissions.
6.18 (the “Commission”), as such Commission is agreed between the parties as part of the application process or otherwise, shall be paid indefinitely unless there is a Change of Control. Following a Change of Control the Commission shall be capped at two years (730 days).
6.19 The Affiliate shall not be entitled to any Commission after expiry or termination of this Agreement (including any “two year revenue share cap”).
6.20 To the extent any Commission involves a CPA, then such Commission shall not be payable in respect of a Player who self-excludes (either directly with the Merchant or via GamStop or similar scheme) or whose account is closed by the Merchant for responsible gambling concerns, in each case within 30 days of that Players first deposit with the Merchant.
7. Warranties
7.1 Each party warrants to the other party:
7.1.1 that it has the legal right and authority to enter into and perform its obligations under the Agreement;
7.1.2 that it will perform its obligations under the Agreement with reasonable care and skill; and
7.1.3 that it has and will retain throughout the Term all right, title and authority to grant to the other party the rights and licences granted in this Agreement.
7.2 All of the parties' liabilities and obligations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement. To the maximum extent permitted by applicable law and subject to Clause 9.1, no other terms concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
7.3 The Affiliate warrants, represents and undertakes (as applicable) that its website(s) and any content thereon:
7.3.1 is not aimed at children or anyone under the age of 18;
7.3.2 does not contain any Prohibited Material;
7.3.3 does not infringe the rights (including the Intellectual Property Rights) of any third party;
7.3.4 is solely owned by the Affiliate.
7.4 The Affiliate warrants, represents and undertakes (as applicable) that:
7.4.1 it will comply at all times with the Merchant’s Advertising Guidelines for any of the Merchant’s Products or Merchant Website for which the Affiliate provides Services from time to time;
7.4.2 it has obtained and will maintain all necessary registrations, authorisations, consents and licences to enable it to fulfil its obligations under this Agreement;
7.4.3 it will not make any application to register any trade or service mark, business name, company name or domain name which contains or is similar to any intellectual property of the Merchant or a Merchant Website;
7.4.4 it will perform its obligations under this Agreement in accordance with Good Industry Practice;
7.4.5 it will not make, and it will 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 or detrimental to the reputation of the Merchant Websites, the Merchant or any of its Associated Companies;
7.4.6 it will comply with all laws including Data Protection Legislation;
7.4.7 it will not intercept or complete any registration form submitted by Players or potential Players to the Merchant (and/or any other communications between any such persons and the Merchant);
7.4.8 it will not actively target persons under the age of 18 or persons located in any jurisdiction where gambling or the promotion of gambling is unlawful;
7.4.9 it will comply with all relevant advertising laws, rules, regulations and guidance including without limitation the CAP Code and BCAP Code;
7.4.10 it will not intercept, redirect or otherwise interfere with traffic from any other Merchant affiliate website; and
7.4.11 all information it submits to the Merchant on the Registration Form and in all other communications between the parties is complete and accurate.
7.5 In relation to marketing emails, the Affiliate will ensure that it complies with all applicable legislation and shall only send emails to persons who have consented to receive them. All marketing communications will contain clear information about the identity of the Affiliate and shall provide details of how the recipient can unsubscribe.
7.6 The Merchant provides the Merchant Website on an “as available” basis, without warranties of any kind express or implied, including warranties of the ability and fitness for a particular purpose of the Merchant Website, unless such warranties are legally incapable of exclusion. The Merchant does not guarantee that:
7.6.1 the Merchant Website will be uninterrupted or error-free;
7.6.2 there are no viruses or other harmful components on or in the Merchant Website;
7.6.3 defects on or in the Merchant Website will be corrected;
7.6.4 the security methods employed on or in the Merchant Website will be sufficient; or
7.6.5 any content on the Merchant Website is correct, accurate, or reliable.
7.7 The Merchant reserves the right to discontinue, withdraw, terminate or modify the Merchant Website included in the Affiliate Programme or any part thereof at any time without notice or further liability to the Affiliate.
8. Indemnity
Without prejudice to the Merchant’s other rights or remedies under this Agreement, the Affiliate will fully indemnify and keep indemnified the Merchant, the Merchant’s Associated Companies, affiliates, employees, officers and directors (“Agents”) from and against all losses, damages, costs, expenses, liabilities and claims (including reasonable legal expenses) incurred by or awarded against the Merchant or any of its Agents due to or in connection with any breach by the Affiliate of any provision of this Agreement.
9. Limitations and exclusions of liability
9.1 Nothing in this Agreement shall exclude or limit either party’s liability for:
9.1.1 death or personal injury resulting from its negligence or the negligence of its employees or agents;
9.1.2 fraud or fraudulent misrepresentation;
9.1.3 limit any liability of a party in any way that is not permitted under applicable law; or
9.1.4 exclude any liability of a party that may not be excluded under applicable law.
9.2 The limitations and exclusions of liability set out in this Clause 9 and elsewhere in the Agreement:
9.2.1 are subject to Clause 9.1;
9.2.2 govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty.
9.3 Neither the Merchant nor any of its Agents or Associated Companies shall be liable to the Affiliate or to any third party in contract, tort (including negligence) or howsoever arising for:
9.3.1 any special, indirect or consequential loss or damage;
9.3.2 loss of revenues, profits, contracts, use, production, business or anticipated savings;
9.3.3 loss of goodwill or reputation;
9.3.4 loss of commercial opportunities;
9.3.5 any loss or corruption of any data, database or software;
9.3.6 any losses arising out of a Force Majeure Event,
whether or not such losses were within the contemplation of the parties at the date of this Agreement.
9.4 The Merchant's total aggregate liability to the Affiliate in relation to any event or series of related events will not exceed the total amount paid and payable by the Merchant to the Affiliate under the Agreement during the 12 month period immediately preceding the event or events giving rise to the claim.
9.5 The Merchant shall not be liable to the Affiliate for any losses of the Affiliate whatsoever arising from the non-availability, lack of functionality or loss of use of the Merchant Website.
10. Confidentiality
10.1 Each party undertakes that it will not at any time hereafter use, divulge or communicate to any person, except to its professional representatives or advisors or as may be required by law or any legal or regulatory authority, the terms and conditions of this Agreement or any Confidential Information concerning the business or affairs of the other party or of any member of the group of companies to which the other party belongs which may have or may in the future come to its knowledge and each of the parties shall use its reasonable endeavours to prevent the publication or disclosure of any Confidential Information concerning such matters.
10.2 Notwithstanding clause 10.1, the Merchant shall be entitled to disclose Confidential Information relating to the Affiliate to third party complainants or their professional advisers, if the Merchant believes, it its sole discretion, or a third party alleges, that an Affiliate:
10.2.1 has infringed the rights of the Merchant or any third party;
10.2.2 is in breach of any applicable law or regulatory requirement; or
10.2.3 has sent or caused to be sent any form of spam.
11. Force Majeure Events
11.1 Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under this Agreement, those obligations will be suspended for the duration of the Force Majeure Event.
11.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement, will promptly notify the other.
11.3 The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.
12. Termination
12.1 This Agreement shall commence on the Commencement Date and remain in effect until terminated in accordance with clause 12.2.
12.2 Either party may terminate the Agreement immediately at any time by giving written notice to the other party, which may be by post or by email. For the avoidance of doubt and without prejudice to the generality of the foregoing, the Merchant may elect to terminate this Agreement immediately by cancelling the Affiliate's account on the Merchant Website or by giving written notice to the Affiliate if the Affiliate:
12.2.1 commits any breach of any term of the Agreement;
12.2.2 publishes or operates a promotion that is harmful, inappropriate or aimed at undesirable customers; or
12.2.3 sends or causes to be sent (or is alleged to have sent) any form of spam.
12.2.4 becomes insolvent or bankrupt or enters into any insolvency or bankruptcy process or procedure;
12.2.5 the Affiliate dies or as a result of illness or incapacity becomes incapable of managing his or her own affairs.
12.2.6 if sixty percent (60%) or more of the players referred by an Affiliate are:
(a) closed by traders for arbitrage / unsuitable business such as credit restricted;
(b) closed by security;
(c) bonus excluded; and
(d) linked to others closed for fraud and/or bonus abuse or quality of betting play.
13. Effects of termination
13.1 Upon termination:
13.1.1 the Affiliate shall no longer be entitled to access the Merchant Website;
13.1.2 the Affiliate must remove and cease to use and/or distribute (in any way) all of the Brand Marks, all Promotional Content and disable all Links;
13.1.3 all rights and licenses given to the Affiliate in this Agreement shall immediately terminate; and
13.1.4 within 5 working days of termination of this Agreement, the Affiliate must immediately return to the Merchant or destroy at its request all the property in the Affiliate’s possession or under its control that belongs to the Merchant or its Associated Companies or any of its licensors.
13.2 If the Merchant terminates this Agreement, it retains the right to withhold Commission otherwise payable to the Affiliate in respect of the Accounting Period in which such termination occurs.
13.3. The Affiliate will not be entitled to Commission with respect to Players registered on or after the date of termination of this Agreement.
13.4 If the Merchant 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.
14. General
14.1 Any notice given under the Agreement must be in writing (whether or not described as “written notice” in the Agreement) and must be delivered personally, sent by recorded signed-for post, or sent by email, for the attention of the relevant person, and to the relevant address, fax number or email address specified on the Registration Form (in the case of the Affiliate) or to affiliates@thepools.com (in the case of the Merchant) (or as notified by one party to the other in accordance with this Clause).
14.2 A notice will be deemed to have been received at the relevant time set out below:
14.2.1 where the notice is delivered personally, at the time of delivery;
14.2.2 where the notice sent by recorded signed-for post, 48 hours after posting; and
14.2.3 where the notice sent by email, at the time of the transmission (providing the sending party retains written evidence of the transmission).
14.3 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
14.4 If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
14.5 Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the parties. The Affiliate will not make any statement on the Affiliate Website or otherwise which expressly or impliedly suggest that there is any such relationship between the parties.
14.6 The Agreement may be varied by the Merchant posting a new version of the Agreement on the Merchant Website and/or notifying the Affiliate in writing that the Agreement has been varied. The Affiliate's continued participation in the Affiliate Programme after receipt of such a notice will constitute the Affiliate's acceptance of the varied Agreement.
14.7 The Affiliate hereby agrees that the Merchant may freely assign any or all of its rights and/or obligations under the Agreement to any successor to all or substantial part of the business of the Merchant from time to time. The Affiliate may not without the prior written consent of the Merchant assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any of its rights or obligations under the Agreement.
14.8 The Merchant reserves the right to suspend or discontinue any aspect of the Affiliate Programme at any time.
14.9 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 Affiliate’s Commission.
14.10 Except in so far as expressly provided in this Agreement, a person who is not party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this Agreement.
14.11 This Agreement constitutes the entire agreement and understanding of the parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the parties relating to the subject matter of the Agreement. Subject to Clause 9.1, each party acknowledges that no representations or promises not expressly contained in the Agreement have been made by or on behalf of the other party.
14.12 This Agreement will be governed by and construed in accordance with the laws of the United Kingdom will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with it.
SCHEDULE 1: COMMISSION Partnership Commission Table
SCHEDULE 2: BRAND MARKS ● The Pools ● Footie5
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