Referback Terms & Conditions
REFERBACK
ReferBack: Terms and Conditions Last Updated: 1 Aug 2005
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE JOINING THE AFFILIATE PROGRAM, BY USING THIS WEBSITE AND/ OR REGISTERING AS AN AFFILIATE WITH THE AFFILIATE PROGRAM, THE AFFILIATE AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS. THEREAFTER, BE SURE TO READ THESE TERMS AND CONDITIONS PERIODICALLY AS REFERBACK WILL MAKE CHANGES TO THEM FROM TIME TO TIME. THE AFFILIATE WILL BE BOUND BY THESE CHANGES.
INDEX
1. Definitions
2. Terms of Use
3. Appointment as an Affiliate
4. Grant and Nature of License
5. Use of Intellectual Property and Marketing Material
6. ReferBack's Obligations
7. Affiliate Obligations
8. Confidential Information
9. Data Protection
10. Money Laundering
11. Commission
11A.1 Commission Schedule
12. Termination
12A.1 Sale of Business
12A.2 Death of Affiliate
13. Relationship of Parties
14. Indemnity, disclaimers and Limitation of Liability
15. Miscellaneous
RECITALS
Whereas:
(a) ReferBack Limited is the operator of the Affiliate Program; and
(b) Affiliates may market and promote certain casinos, poker rooms and sportsbooks represented by the Affiliate Program; and
(c) These terms and conditions govern the relationship between Affiliates, the Affiliate Program and the Affiliate Program's Merchants.
NOW THEREFORE:
1. Definitions:
In these terms and conditions the following words and expressions shall have the following meanings:
1.1 'Affiliate' shall mean a natural or juristic person that may or may not be associated with another as a parent, subordinate, subsidiary, or member who has registered and is accepted by Referback as an Affiliate of the Affiliate Program in terms of this Agreement;
1.2 'Affiliate Program' shall mean the affiliate program operated by ReferBack;
1.3 'Commission' means the commission set out in the Commission Schedule;
1.4 'Confidential Information' shall mean:
1.4.1 any information of whatever nature, which has been or may be obtained by the Affiliate from ReferBack and/or the Merchant and/or its Licensors, whether relating to ReferBack's or a Merchant's information and whether in writing or in electronic form or pursuant to discussions between ReferBack, or which can be obtained by examination, testing, visual inspection or analysis, including, without limitation, scientific, business or financial data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, sample reports, models, customer lists, price lists, studies, findings, computer software, inventions or ideas;
1.4.2 analyses, concepts, compilations, studies and other material prepared by or in possession or control of the recipient which contain or otherwise reflect or are generated from any such information as is specified in this definition and includes any dispute between the Affiliate and ReferBack or the Affiliate and a Merchant resulting from this Agreement;
1.5 'Copyright' for purposes of this agreement shall be limited to the existing and future copyright in the trade mark devices, logos, getup, trade dress, websites, Marketing Material and/or trading styles relating to, or incorporated in, the Merchants' Websites.
1.6 IINTENTIONALLY LEFT BLANK
1.7 'Customer' shall mean a person or entity that the Affiliate directs in any manner to a Merchant of ReferBack and who can be linked to the Affiliate's Affiliate ID and who opens an account with such Merchant. By opening an account with a Merchant, that person or entity will become ReferBack's Merchant Customer and, accordingly, all Merchant's rules, policies, and operating procedures will apply to them;
1.8 'Derivative Domain Name' shall mean any domain name which is not a Prohibited domain name, and which incorporates in whole, or in part, any of the Trade Marks.
1.9 'Derivative Website' shall mean a website established by the Affiliate, which incorporates in whole, or in part, any of the Intellectual Property;
1.10 'Fraudulent Activity' shall mean a deception which in the sole opinion of Referback is deliberately practiced by a Customer or an Affiliate in order to secure a real or potential, unfair or unlawful gain
1.11 'Intellectual Property' shall mean
1.11.1 the Trade Marks; and
1.11.2 the Copyright.
1.12 'IP Documentation' shall mean the written document(s) published by the Merchant and/or ReferBack from time to time on the ReferBack site containing:
1.12.1 a non-exhaustive, directory of the Intellectual Property; and
1.12.2 detailed instructions and guidelines pertaining to the appropriate use and application of the Intellectual Property.
1.13 'License' shall mean a non-transferable and non-exclusive right granted to the Affiliate by the Merchant to use the Intellectual Property only as is strictly necessary to adequately and effectively direct Customers to the respective Merchant's Website/s, in accordance with the terms and conditions of this Agreement.
1.14 'Marketing Material' shall mean various forms of branded, creative material, including but not limited to, online banners, html and text mailers, promotional material and other online and offline marketing material which ReferBack may provide the Affiliate.
1.15 'Merchant' shall mean Carmen Media Group Limited. an operator of online gaming businesses duly licensed by its Licensor's to operate such online gaming businesses and trading under the following names, 'River Belle', 'Lucky Nugget', 'Aces High', 'Jackpot City', 'The Gaming Club', 'Showdown', 'Home Casino,' and 'Belle Rock Entertainment' (collectively referred to as the Merchant's Brands) and as may be changed from time to time by the Merchant or its Licensor's.
1.16 'Merchant's Websites' are websites situated at, but not limited to, the following URLs:
www.riverbelle.com
www.luckynugget.com
www.aceshigh.com
www.jackpotcity.com
www.fr.jackpotcity.com
www.es.jackpotcity.com
www.de.jackpotcity.com
www.gamingclub.com
www.gamingclubjapan.com
www.showdown.com
www.homecasino.com
www.bellerockentertainment.com
1.17 'Merchant's Products' shall mean
River Belle: Online Casino and Poker Room
Lucky Nugget: Online Casino and Poker Room
The Gaming Club: Online Casino, Poker Room and Sportsbook
Aces High: Online Casino
Jackpot City: Online Casino
Showdown: Online Casino
Home: Online Casino
1.18 'Notice' shall mean a written document
1.19 'Parties' shall mean ReferBack, the Merchant and the Affiliate
1.20 'Prohibited Domain Name' shall mean a domain name, irrespective of territory or Top Level Domain (TLD), which is identical or confusingly similar to ReferBack's, and/or the Merchant's and/or the Merchant's licensors trade and/or services marks and which the Affiliate is prohibited from registering, acquiring and/or using in any manner or form whatsoever. A non-exhaustive list of Prohibited Domain Names can be found at …<>
1.21 'ReferBack' shall mean ReferBack Limited trading as ReferBack
1.22 'Second-tier Affiliate' shall mean a person or entity that the Affiliate directs in any manner to ReferBack and who can be linked to The Affiliate's Affiliate ID, which person or entity becomes an Affiliate of ReferBack;
1.23 'Spam' means any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).which is intentionally transmitted to multiple commercial electronic mail messages from or through a computer
1.24 'Agreement' shall mean this affiliate agreement, including the online application form, these terms and conditions and all appendices and annexures incorporated therein by reference, including all future updates and additions thereto.
1.25 'Trade Marks' for purposes of this agreement shall be limited to mean the trade mark applications and registrations listed in the IP Documentation, including equivalent and/or similar applications and registrations in all other countries, the goodwill and/or reputation which attaches to all the aforementioned, as well as the goodwill and/or reputation in the getup, trade dress and/or trading style which relate to or are associated with the registered and/or unregistered trade marks;
1.26 'Written /Writing' shall include e-mail
1.27 'Term' shall be the term of this Agreement, commencing on the activation of the Affiliate's account (commencement date) and remaining in full force and effect until the Affiliate's account is terminated in accordance with this Agreement (termination date).
2. Terms of Use of this Agreement
2.1 An Affiliate must successfully comply with the provisions of Clause 3 of this Agreement prior to this Agreement coming into force and effect. The Affiliate's successful application to become an Affiliate in the Affiliate Programme in terms of Clause 3 confirms the Affiliate's acceptance of this Agreement and is subject to the Affiliate's continued compliance with the terms and conditions of this Agreement.
2.2 The Affiliate should be advised that many of the provisions of these Terms and Conditions are created and imposed for the benefit of the Merchant and or its Licensor, who has accepted all benefits so created and imposed.
3. Appointment as an Affiliate
3.1 ReferBack shall evaluate the Affiliate's application on submission thereof.
3.2 Upon request from ReferBack, the Affiliate will provide ReferBack with:
3.2.1 A list of Derivative Domain Names;
3.2.2 Information on how these domain names are being used;
3.2.3 Information on the quality of a Derivative website including but not limited to information about the website's content, and design;
3.2.4 The Affiliate's application information will be compared to the domain name registration information in a WHOIS database for those domain names identified in Clause 3.2.1 above;
3.2.5 Information about the Affiliate's area of focus including but not limited to online casinos, sportsbooks, and poker initiatives;
3.2.6 The Affiliate's preferred marketing methods; and
3.2.7 The Affiliate's target market.
3.3 After submitting the information required in Clause 3.2, the Affiliate will be required to confirm the information provided on registration as well as any additional information provided in terms of clause 3.2.
3.4 The Affiliate will provide proof of identification including, where possible, a government-issued identification number.
3.5 The Affiliate must also provide ReferBack with its banking details for the payment of Commission.
3.6 After having complied with Clause 3.1 to Clause 3.5 the Affiliate will be notified in a timely manner of ReferBack's acceptance or rejection thereof. The Affiliate acknowledges and agrees that the acceptance of his application depends on its compliance with the provisions of this Clause. The acceptance or rejection of any application made by an Affiliate is at ReferBack's sole discretion.
3.7 Should ReferBack accept the Affiliate's application the Affiliate will be granted a license in accordance with Clause 4 of this Agreement.
3.8 The Affiliate hereby consents to ReferBack independently verifying any information provided to it by the Affiliate pursuant hereto and any other information provided to ReferBack by the Affiliate from time- to- time pursuant to a specific request by ReferBack for such information.
4. Grant and Nature of License
4.1 Upon activation of the Affiliate's account, and subject to this Agreement, particularly clause 6 hereunder, the Merchant hereby grants to the Affiliate the License for the Term. For the sake of clarity, in terms of the License the Affiliate is only permitted to:
4.1.1 Acquire and use a Derivative Domain Name/s;
4.1.2 Establish, host, publish and market a Derivative Website/s; and
4.1.3 Acquire and use the Marketing Material for the exclusive benefit of the Merchant.
4.2 The Affiliate shall not have the right to sub-license the Intellectual Property in any way whatsoever, either in whole or in part to any third party.
4.3 Any right not specifically granted in terms of this Agreement is specifically reserved for the exclusive use of the Merchant and/or its licensors.
5. Use of Intellectual Property and Marketing Material
5.1 Prohibited Domain Names:
5.1.1 The Affiliate may not register a Prohibited Domain Name.
5.1.2 Should an Affiliate register a Prohibited Domain Name, and without prejudice to any legal remedy or right that the Merchant and/or its licensors may have in law, ReferBack and/or the Merchant shall be entitled to terminate this Agreement with immediate effect and claim transfer of the Prohibited Domain Name to the Merchant.
5.1.3 A decision as to whether or not a particular domain name is a Prohibited Domain Name is left to the sole discretion of the Merchant. The Merchant's decision in this regard will be final and binding on the Affiliate.
5.2 Derivative Domain Names:
5.2.1 The Affiliate may register and use one or more Derivative Domain Names.
5.2.2 The Affiliate will furnish ReferBack with a written, accurate and complete list of Derivative Domain Names that the Affiliate has or intends to register, acquire or use. Any new additions or amendments to the Affiliate's list of Derivative Domain Names will be communicated to ReferBack as soon as is reasonably possible.
5.2.3 The Affiliate recognizes and accepts that Derivative Domain Names will at all times remain the beneficial ‘property' of the Merchant and/or its licensors and in this regard agrees to hold the Derivative Domain Name in Trust on behalf of the Merchant for the Term. On expiry of the Term the Affiliate will transfer, or cause to be transferred, all Derivative Domain Names to the Merchant, or an entity duly nominated by the Merchant in writing, without delay.
5.2.4 In order to comply with the provisions of clause 6.2.3, the Affiliate hereby undertakes to sign and/or complete any and all documents or procedures, and do all things necessary to facilitate the speedy and proper transfer of all Derivative Domain Names to the Merchant, or an entity duly nominated by the Merchant in writing.
5.2.5 All rights or advantages, and without limitation goodwill, that may arise due to the use of the Derivative Domain Name will accrue for the sole benefit of theMerchant and its licensors.
5.2.6 Should the Affiliate no longer require a particular Derivative Domain Name, the Affiliate will, in a timely manner prior to the URL expiring, inform RefeBack of its intention not to pay the renewal fee, and will if requested to do so by ReferBack, provide all necessary assistance to transfer the Derivative Domain Name to the Merchant, or an entity duly nominated by the Merchant in writing, without delay.
5.2.7 Without exception, a Derivative Domain Name may only be used for the following purposes:
5.2.7.1 To resolve to the respective Merchant's Website; or
5.2.7.2 To resolve to a Derivative Website; on condition that:
a) if the Affiliate is marketing and promoting only one of the Merchant's Websites, the Affiliate may only market and promote the particular Merchant Website corresponding with the Derivative Domain Name;
b) if the Affiliate is marketing and promoting more than one of the Merchant's Websites the Affiliate shall give prominenceto the Merchant Website corresponding with the Derivative Domain Name;
c) the Derivative Website does not market and/or promote competitor brands or products.
5.2.8 ReferBack and/or the Merchant reserve the right, in their sole discretion, to terminate this Agreement with immediate effect and claim transfer of the Derivative Domain Name to the Merchant if the Affiliate, its agent or nominee does not strictly adhere to the provisions of clause 6.2.7.
5.2.9 A decision as to whether or not a Derivative Domain Name is a Prohibited Domain Name is left to the sole discretion of the Merchant. The Merchant's decision in this regard will be final and binding on the Affiliate.
5.3 Derivative Websites and Marketing Material
5.3.1 If the Affiliate elects to establish and promote a Derivative Website, the Affiliate will ensure that the Derivative Website complies in all aspects with the guidelines published in the IP Documentation as may be updated from time-to-time. Without limiting the general nature of this responsibility, the Affiliate will ensure that the Intellectual Property will accurately reflect any and all amendments, enhancements and additions as outlined in the IP documentation or as officially applied to the respective Merchant Website.
5.3.2 Regarding the establishment, operation and maintenance of Derivative Website, the Affiliate will be solely responsible for:
5.3.2.1 The development, operation, and maintenance of the website;
5.3.2.2 The content of its website; and
5.3.2.3 Ensuring, amongst others, that any and all content posted on the website, including, but not limited to, images, graphics, data and text, are not libelous or otherwise illegal.
5.3.3 A decision as to whether or not the Affiliate is complying with its responsibilities in terms of this clause is left to the sole discretion of the Merchant. The Merchant's decision in this regard will be final and binding on the Affiliate, and if necessary the Affiliate will take all necessary action prescribed by the Merchant or its designated agent to remedy the situation, failing which the Merchant shall be entitled to terminate the Agreement with immediate effect.
5.3.4 The Affiliate undertakes to use its best endeavours to ensure that the reputation, goodwill and proprietary rights that vests in the Intellectual Property are protected, maintained and wherever possible, enhanced for the ultimate benefit if the Merchant and it's licensors.
5.4 Marketing Material
5.4.1 Upon activation of the Affiliate's account, the Affiliate shall be provided access to the Intellectual Property and the Marketing Material via the ReferBack website, newsletters and account relationship managers.
5.4.2 Without derogating from the Affiliate's other obligations in terms of the Agreement, the Affiliate agrees to:
5.4.2.1 Procure and utilize new and updated Intellectual Property and or Marketing Material forthwith after it is made available to the Affiliate by ReferBack and/or the Merchant.
5.4.2.2 The Affiliate shall, when using the Intellectual Property and Marketing Material, cause them to be reproduced and applied exactly and accurately and shall use them in accordance with the specifications and directions laid down by the Merchant from time-to-time (whether in the IP Documentation or otherwise).
5.4.3 A decision as to whether or not the Affiliate is complying with its responsibilities in terms of this clause is left to the sole discretion of the Merchant. The Merchant's decision in this regard will be final and binding on the Affiliate, and if necessary the Affiliate will take all necessary action prescribed by the Merchant or its designated agent to remedy the situation, failing which the Merchant shall be entitled to terminate the Agreement with immediate effect.
5.4.4 The Affiliate may design its own Marketing Material for the sole purpose of directing Customers to the Merchant's Websites, subject to the following terms and conditions:
5.4.4.1 The Affiliate will strictly adhere to the instructions and guidelines as set out in the IP Documentation pertaining to the use and application of the Intellectual Property. If the use and/or application of any of the Intellectual Property is not specifically dealt with in the IP Documentation, then prior to the Intellectual Property being used, the Affiliate shall first obtain ReferBack's prior Written approval or instructions on how to proceed.
5.4.4.2 The Affiliate will furnish ReferBack, upon Written request, with such information and reports, including but not limited to samples of any marketing material, as may be required by ReferBack in connection with the Affiliate's use of the Intellectual Property; and
5.4.4.3 Any proposed changes to the Intellectual Property or Marketing Material that the Affiliate may wish to make (and then only in terms of the guidelines laid down in the IP Manuals) shall be submitted to ReferBack for prior written approval prior to the use or publication thereof.
5.5 General
5.5.1 The Affiliate acknowledges that the Intellectual Property will at all times remain the property of the Merchant and/or its licensor's. The Affiliate acknowledges that it has no claim or right of whatever nature in and to the Intellectual Property, other than those provided in terms of the License.
5.5.2 The Affiliate will not do or cause to be done any act or thing contesting, or in any way impairing or tending to impair, any part of the Merchant's or the Merchants licensor's rights, title and interest in and to the Intellectual Property
5.5.3 The Affiliate shall not in any way represent that it has any rights of any nature in the Intellectual Property, other than those that it enjoys in terms of this Agreement
5.5.4 The Affiliate will take all reasonable steps to ensure that its employees, agents, contractors or representatives are made aware of its obligations in terms of the Agreement and that it can give full effect to such obligations.
5.5.5 The Affiliate shall, as soon as it becomes aware thereof, give ReferBack, in Writing, full particulars of any use or proposed use by any other person, firm or company, of a trade name, trade mark or get-up of goods or mode of promotion or advertising or any element of the Intellectual Property, which amounts or might amount either to infringement of the Merchants' rights in relation to the Intellectual Property or to any other form of passing-off.
5.5.6 If the Affiliate becomes aware that any other person, firm or company alleges that the Intellectual Property is invalid or that use of the Intellectual Property infringes any rights of another party or that the Intellectual Property is otherwise attacked or attackable, the Affiliate will immediately give ReferBack full particulars in writing thereof and shall make no comment or admission to any third party in respect thereof.
5.5.7 The Merchant and/or its licensors shall have the sole conduct of all proceedings relating to the Intellectual Property and will in their sole discretion decide what action, if any, to take in respect of any infringement or alleged infringement of the Intellectual Property or passing-off or any other claim or counterclaim brought or threatened in respect of the use or registration of the Intellectual Property. The Affiliate shall not be entitled to bring or defend any action for infringement of the Intellectual Property, and the Merchant and/or its Licensors shall not be obliged to bring or defend any proceedings in relation to the Intellectual Property if they decide in their sole discretion not to do so
5.5.8 The Merchant and/or its licensors will throughout the subsistence of this Agreement, at their own expense, maintain all Intellectual Property registrations in force and shall pay all renewal and any other fees necessary for this purpose. Should any of the Intellectual Property lapse or be held to be invalid for whatever reason, this License will continue in respect of the remainder of the Intellectual Property.
6. ReferBack's Obligations
6.1 ReferBack will register Customers and track their purchases and their play where appropriate. The Merchant has the right to refuse Customers (or to close their accounts) if necessary, to comply with any requirements that they may periodically establish.
6.2 ReferBack will provide the Affiliate with such Marketing Material as is strictly necessary to market and promote the Merchant's Websites and Products.
6.3 ReferBack will track Customers' purchases and, in respect of certain of the Merchant's Brands, Customers' wins and losses and will provide reports summarizing their activity. Notwithstanding this, the form, content and frequency of the reports may, at ReferBack's discretion, vary from time to time. ReferBack will provide the Affiliate with remote online access to reports of Customer activity and the commission generated. To gain access the Affiliate will need to use the Affiliate's Affiliate Number and Password as provided to the Affiliate by ReferBack.
6.4 ReferBack will facilitate payment of Commission from the Merchant to the Affiliate based on income ReferBack's Merchant's earn from purchases and play from the Affiliate's Customers after they open an account with the Merchant. Payment shall only be made to the Affiliate once ReferBack has received payment from the Merchant. ReferBack reserves the right to change payment terms at any time and for any reason. See paragraph 12 below in relation to Commission.
7. Affiliate Obligations
7.1 By applying to be registered as an Affiliate of the Affiliate Program, the Affiliate warrants that:
7.1.1 The information the Affiliate provides ReferBack on registration is complete, valid and honest;
7.1.2 In the event the Affiliate is a juristic person, the person submitting the application has the full right, power and authority to enter into this Agreement on behalf of such entity; and
7.1.3 The execution of this Agreement by such person, and the performance by the Affiliate of the Affiliate's obligations and duties hereunder, do not and will not violate any agreement to which the Affiliate are a party or by which the Affiliate are otherwise bound.
7.2 The Affiliate hereby accepts the appointment as ReferBack's Affiliate in terms of Clause 3 above. The Affiliate acknowledges that this Agreement does not grant the Affiliate an exclusive right or privilege to assist ReferBack in the provision of services arising from the Affiliate's referrals. The Affiliate shall have no claims to Commissions or other compensation on business secured by or through persons or entities other than the Affiliate.
7.3 The Affiliate will not knowingly benefit from known or suspected traffic not generated in good faith, whether or not it actually causes damage to ReferBack, its Merchants, its Licensor or Affiliates. ReferBack, its Merchant and/or its Licensor has and reserves the right to terminate this Agreement immediately should such activity arise through a person directed to ReferBack or its Merchants Websites via the Affiliate's link and to withhold the Commissions payable to the Affiliate at any time irrespective of whether such mentioned traffic was directed from the Affiliate's link with or without the Affiliate's knowledge.
7.4 In the giving of effect to this Agreement the Affiliate may not, either directly or indirectly, be a party to the generation, processing, dissemination or the like of Spam.
7.4.1 Any form of Spam will result in the Affiliate's account being placed under review and all funds due to the Affiliate being withheld pending an investigation. If the Merchant and/or its Licensor incur expenses and/ or damages in dealing with Spam generated mail or being blocked by third party Internet Service Providers these same expenses and/ or damages will be deducted from the Affiliate's account should the Merchant and/or its Licensor seek recourse against ReferBack. If this occurs, the amount of such expenses and/ or damages as determined by a Merchant and/or its Licensor will be deemed fair and final and acceptable to the Affiliate. Should these expenses and/ or damages not be covered by funds in the Affiliate's account ReferBack has the right to investigate other alternative means for obtaining payment, for example: should the Affiliate's account have generated purchasing accounts ReferBack will hold payment of commission for these accounts until such a time as the account for expenses and/ or damages has been cleared. Should the Affiliate's account not be active nor be generating profit through commission payments ReferBack shall have the right to demand payment from the Affiliate.
7.4.2 Should the Affiliate require more information regarding ReferBack's Spam policy, please contact ReferBack at spamreport@ReferBack.com.
7.4.3 Should the Affiliate wish to report any incidences of Spam, please contact ReferBack at spamreport@ReferBack.com.
8. Confidential Information
8.1 Except as otherwise provided in this Agreement or with the consent of any other parties hereto, all parties agree that all information, including, but not limited to, the terms of this Agreement, business information and technology concerning ReferBack or the Affiliate, respectively, or any of ReferBack's Affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by such party for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than such party hereto or its Affiliates.
8.2 During the term of this Agreement, the Affiliate may be entrusted with Confidential Information relating to the business, operations, or underlying technology of ReferBack's Merchants and/ or the Affiliate Program (including, for example, Commission earned by the Affiliate under the Affiliate Program). The Affiliate agrees to neither disclose nor allow unauthorized use of the Confidential Information by third persons or outside parties unless the Affiliate has ReferBack's prior written consent and that the Affiliate will use the Confidential Information only for the purposes necessary to further the purposes of this Agreement. The Affiliate's obligations with respect to Confidential Information shall survive the termination of this Agreement. An Affiliate may not be a party ( whether directly or indirectly) to any Fraudulent Activity
8.3 Within 3 (THREE) months after the termination of this Agreement, for whatever reason, the recipient of Confidential Information shall return same or at the discretion of the original owner thereof, destroy such Confidential Information, and shall not retain copies, samples or excerpts thereof.
9. Data Protection
The Affiliate shall comply with any relevant data protection laws in the jurisdiction in which The Affiliate are domiciled and any jurisdictions in which The Affiliate operate.
10. Money Laundering
10.1 The Affiliate may not directly or indirectly benefit from, or be a party to, any money laundering or related illegal activities.
10.2 It is recorded that some jurisdictions in which ReferBack operates have strict laws on money laundering that may impose an obligation upon ReferBack to report The Affiliate to the federal or local authorities within such jurisdictions if ReferBack know, suspect or have reason to suspect that any transactions in which the Affiliate are directly or indirectly involved, amongst other things, involve funds derived from illegal activities or are intended to conceal funds derived from illegal activities or involve the use of the Affiliate Program or ReferBack's Merchants to facilitate criminal activity.
10.3 If ReferBack has any knowledge or suspicion envisaged above it may:
10.3.1 Immediately suspend, deregister or terminate the Affiliate's membership of the Affiliate Program; and/or
10.3.2 At ReferBack's absolute discretion, not pay the Affiliate any funds due to the Affiliate as Commission.
10.4 ReferBack reserves the right to report the Affiliate to the aforementioned federal or local authorities should ReferBack, at its absolute discretion, determine that it is obliged, by law, to do so.
11. Commission
11.1 Restrictions
11.1.1 The Affiliate is restricted to one Affiliate account only;
11.1.2 The Affiliate shall not earn Commission on the Net Win and/ or Net Rake of any Second-tier Affiliate if, in the case that the Affiliate is a juristic entity, they are the Affiliate's employee, director, shareholder or agent or, in the case that the Affiliate is a natural person, they are the Affiliate's employee, agent or direct family member;
11.1.3 Shall not earn Commission on the Net Win and/ or Net Rake on the Affiliate's own Customer Account nor on the Customer Account/s of the Affiliate's employees or immediate family members.
11.1.4 If the Affiliate or the Affiliate's employees sign up as a Customer at one of ReferBack's Merchants' Brands, ReferBack shall have the right to terminate this Agreement.
11.2 Please see the Commission Schedule which sets out the choice, selection, calculation and certain payment aspects of Commission, which Commission Schedule is specifically incorporated herein by reference.
11.3 ReferBack has and reserves the right to pass on any financial costs to the Affiliate's account that ReferBack may incur due to fraudulent activity by the Affiliate, the Affiliate's employees and/ or Customers/ players whom the Affiliate, as Affiliate, have introduced to the Merchant.
11.4 If Referback (in its sole and unfettered discretion) determines that an Affiliate is abusing their Commission Model so as to unfairly gain an advantage, Referback may withhold any Commissions due to such Affiliate and change the Affiliate's Commission Model to the Classic Commission Model.
11.5 ReferBack will process the Commission earned by the Affiliate in the previous calendar month by the tenth working day of the following month. ReferBack shall not be liable to the Affiliate in any manner whatsoever for late payments due to technical, third party or any other unforeseen events arising.
11.6 Payment shall be made by ReferBack to the Affiliate by way of the method selected by the Affiliate on registration, but only in US Dollars.
12. Termination
12.1 This Agreement can be terminated by ReferBack at any time should the Affiliate fail to comply with its obligations in accordance with this Agreement.
12.2 Notice of termination shall be given in writing by either Party to the other. For purposes of notification of termination, delivery via e-mail is considered a written and immediate form of notification and the Agreement shall accordingly terminate with immediate effect.
12.3 All rights and licenses granted to the Affiliate in this Agreement shall immediately terminate. The Affiliate must immediately remove any reference to Referback and its Merchants or Merchant's Websites, Brands or Products from its site and disable any links from its site to same. In particular, the Affiliate shall immediately remove access to any Derivative Website established by it.
12.4 Upon termination for reasons other than breach of this Agreement by the Affiliate, the Affiliate shall continue to be entitled for a period of one year to receive Commission on the terms and conditions as specified herein.
12.5 ReferBack may withhold the Affiliate's final six monthly payments for up to three months each to ensure that the correct amount has been calculated and paid.
12.6 If ReferBack continues to permit activity (generation of revenue) from Customers directed by the Affiliate after termination, this shall not be construed to constitute a continuation or renewal of this Agreement or a waiver of termination.
12.7 The Affiliate will return to ReferBack any and all Confidential Information and/ or Customer Information, including all copies in the Affiliate's possession, custody and control and will cease all uses of any of the Intellectual Property. The Affiliate will take immediate steps to transfer ownership to the Merchant, of each Derivative Domain Name established by the Affiliate, at the Merchant's cost, not exceeding that incurred by the Affiliate on registering the Derivative Domain Name.
12.8 The Affiliate, ReferBack and ReferBack's Merchants and their electronic cash provider, suppliers, contractors, agents, their directors, officers, employees, and representatives shall be released from all obligations and liabilities to each other occurring or arising after the date of such termination, except with respect to those obligations that by their nature are designed to survive termination, as set out in this Agreement. Termination will not exculpate the Affiliate from any liability arising from any breach of this Agreement that occurred prior to termination.
12.9 REFERBACK MAY TERMINATE THIS AGREEMENT IF IT IS DETERMINED AT REFERBACK'S SOLE DISCRETION THAT THE AFFILIATE'S SITE IS UNSUITABLE. Unsuitable sites are, inter alia, but not limited to, those sites that are aimed at children, promote violence, promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, promote illegal activities, or violate intellectual property rights, or are otherwise considered by ReferBack to bring ReferBack or its Merchants into disrepute or prejudice the interests of ReferBack or its Merchants in any way.
12A Sale of Business; Death of Affiliate
12A.1 Sale of Business
12A.1.1 ReferBack recognises that an Affiliate may wish to sell his/ her/ its Affiliate business to a third party. ReferBack requires an Affiliate to recognise and respect that the personal qualities, probity and background of ReferBack affiliates is vital to ReferBack's decision to accept a person as an Affiliate of the Affiliate Program.
12A..1.2 If an Affiliate wishes to sell or otherwise dispose of the shares or assets of his/ her/ its Affiliate business to a third party (or conclude any transaction of a similar nature with a third party that will result in an effective change in control of his/ her/ its Affiliate business) the Affiliate shall be required, prior to completing the sale, disposal or transfer, to:
12A..1.2.1 give ReferBack no less than 30 (thirty) day's prior written notice of such intention, simultaneously provide such details as ReferBack may request (which shall include, but not be limited to, the selling Affiliate's Affiliate ID and full details of the intended purchaser (including their banking details and, if they are already an Affiliate of the Affiliate Program, their Affiliate ID) and furnish ReferBack with an irrevocable consent and authority to pay the selling Affiliate's Commission, after the sale is completed, to the purchaser. [Click here for the form of consent and authority required by ReferBack]; and
12A..1.2.2 make the deed of sale subject to the suspensive condition that ReferBack approve such purchaser as an Affiliate of the Affiliate Program and that such intended purchaser shall, subject to ReferBack's approval (at ReferBack's sole discretion) join the Affiliate Program.
12A..1.3 If ReferBack rejects the intended purchaser as an Affiliate of the Affiliate Program and the selling Affiliate nevertheless decides to proceed with the sale, ReferBack shall terminate this Agreement insofar as it relates to the selling Affiliate, the business sold and/ or the purchaser.
12A.2 Death of Affiliate
12A.2.1 In the event of an Affiliate's death, ReferBack shall require that the executor of the deceased Affiliate's estate (or similarly charged person) furnishes ReferBack with certified copies of their authority to act on the deceased Affiliate's estate's behalf, the deceased Affiliate's death certificate and proof of the deceased Affiliate's beneficiaries' identities.
12A..2.2 The Affiliate hereby agrees that ReferBack shall be obliged to pay his/ her estate and/ or beneficiaries:
12A..2.2.1 only once ReferBack has received the information required in Clause 13A.2.1 above; and
12A..2.2.2 any sums that may have accrued to the deceased Affiliate as Commission prior to his/ her death (or would otherwise accrue thereafter) for a period of 12 (twelve) months after his/ her death. The Affiliate hereby waives (on his/ her behalf and on behalf of his/ her estate, heirs, beneficiaries, successors or assigns) any rights that he/ she (or they) may have to any further sums of money and/ or Commission under this Agreement.
13. Relationship of Parties
13.1 The Affiliate and ReferBack are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the Parties. The Affiliate shall have no authority to make or accept any offers or representations on ReferBack's behalf. The Affiliate shall not make any statement, whether on the Affiliate's site or otherwise, that conflicts with this Clause.
13.2 The Affiliate will not be treated as an employee with respect to the Internal Revenue Code, Social Security Act, Federal Unemployment Acts, or any other federal, state, or local statute, ordinance, rule, or regulation of any country whatsoever similar in purpose to the aforementioned Code and Acts.
13.3 The Affiliate shall not make any claims, representations, or warranties in connection with ReferBack or its Merchants and the Affiliate shall have no authority to, and shall not, bind ReferBack or its Merchants to any obligations outside of this Agreement, unless agreed to in writing by either ReferBack or its Merchants.
14. Indemnity, disclaimers and Limitation of Liability
14.1 The Affiliate shall defend, indemnify, and hold ReferBack and its Merchants and their electronic cash providers, suppliers, contractors, agents, their directors, officers, employees, and representatives harmless from and against any and all liabilities, losses, damages, and costs, including reasonable attorney's fees, resulting from, arising out of, or in any way connected with:
14.1.1 Any breach by the Affiliate of any warranty, representation, or agreement contained in this Agreement;
14.1.2 The performance of the Affiliate's duties and obligations under this Agreement;
14.1.3 The Affiliate's negligence; or
14.1.4 Any injury caused directly or indirectly by the Affiliate's negligent or intentional acts or omissions, or the unauthorized use of ReferBack's banners and link or this Affiliate Program.
Further, the Affiliate will indemnify and hold ReferBack harmless from all claims, damages, and expenses (including, and without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of the Affiliate's site.
14.2 ReferBack makes no express or implied warranties or representations with respect to the Affiliate Program, ReferBack or Commission payment arrangements (including, without limitation, their functionality, warranties of fitness, merchantability, legality, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, ReferBack makes no representation that the operation of its site (including service and tracking) will be uninterrupted or error-free. ReferBack will not be liable for the consequences of any such interruptions or errors.
14.3 ReferBack will not be liable for direct, indirect, special, punitive or consequential damages or for any loss, of any nature whatsoever, arising from or in connection with this Agreement or the Affiliate Program, even if it has been advised of the possibility of such damages. Further, ReferBack's aggregate liability arising with respect to this Agreement and the Program shall not exceed the total Commission paid or payable by ReferBack to the Affiliate under this Agreement. ReferBack's obligations under this Agreement do not constitute personal obligations of its directors, officers, consultants, agents or shareholders. Any liability arising under this Agreement shall be satisfied solely from the referral fee generated and is limited to direct damages.
15. Miscellaneous
15.1 This Agreement will be governed by the laws of Gibraltar, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in Gibraltar and the Affiliate irrevocably consents to the jurisdiction of its courts.
15.2 Both Parties shall give each other their mutual support in the giving of effect to the spirit, purport and object of this Agreement.
15.3 The Affiliate may not assign this Agreement, by operation of law or otherwise, without ReferBack's prior written consent. Subject to that restriction, this Agreement will be binding on, enure to the benefit of, and enforceable against the Affiliate and ReferBack and the Affiliate's and ReferBack's respective successors and assigns.
15.4 ReferBack's failure to enforce the Affiliate's strict performance of any provision of this Agreement will not constitute nor be construed as a waiver of ReferBack's right to subsequently enforce such provision or any other provision of this Agreement.
15.5 ReferBack's rights and remedies hereunder shall be mutually exclusive, i.e., the exercise of one or more of the provisions of this Agreement shall not preclude the exercise of any other provision. The Affiliate acknowledge, confirm, and agree that damages may be inadequate for a breach or a threatened breach of this Agreement and, in the event of a breach or threatened breach of any provision of this Agreement, the respective rights and obligations of the parties may be enforceable by specific performance, injunction, or other equitable remedy. Nothing contained in this Agreement shall limit or affect any of ReferBack's rights at law, or otherwise, for a breach or threatened breach of any provision of this Agreement, it being the intent of this provision to make clear that ReferBack's respective rights and obligations shall be enforceable in equity as well as at law or otherwise.
15.6 Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law but, if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such provision will be ineffective only to the extent of such invalidity, or unenforceability, without invalidating the remainder of this Agreement or any provision hereof. No waiver will be implied from conduct or failure to enforce any rights and must be in writing to be effective.
15.7 This agreement will stay in effect for so long as ReferBack makes this service available, unless this agreement is terminated prior thereto in terms of clause 13 above.
15.8 ReferBack may amend, alter, delete, interlineate or add to any of the terms and conditions contained in this Agreement or the Commission Schedule at any time and at ReferBack's sole discretion, by posting a change notice or a new agreement on its site. Such amendments, alterations, deletions, interlineations or additions may include, for example, changes in the scope of available Commissions, fee schedules, payment procedures, and referral program rules.
15.9 Any amendments, alterations, deletions, interlineations or additions to this Agreement or the Commission Schedule shall be effective immediately upon notice, which may be provided to the Affiliate via e-mail or by display on the ReferBack website (hereinafter, “Noticeâ€). The Affiliate's use of the ReferBack website and/ or continued marketing of the Merchant's websites after such Notice is given to the Affiliate will be deemed acceptance of such amendments, alterations, deletions, interlineations or additions or the new Agreement or Commission Schedule should this Agreement or the Commission Schedule be replaced in its/ their entirety. Be sure to review this Agreement and the Commission Schedule periodically to ensure familiarity with its most current version.
15.10 NO PURPORTED MODIFICATIONS, AMENDMENTS, ALTERATIONS, ADDITIONS, DELETIONS OR INTERLINEATIONS OF THIS AGREEMENT OR THE COMMISSION SCHEDULE BY THE AFFILIATE ARE PERMITTED OR WILL BE RECOGNIZED BY REFERBACK. None of ReferBack's employees, officers or agents may verbally alter, modify or waive any provision of this Agreement or the Commission Schedule.
15.11 The Parties agree that the Merchant and its Licensor shall be a Third Party to this Agreement in terms of the Contracts (Rights of Third Parties) Act 1999. The Affiliate acknowledges that it is aware that the Merchant and its Licensors are relying on the provisions of this Agreement and promises made by the Affiliate. Accordingly the Merchant and its Licensors may enforce the provisions of this Agreement as if it were a party hereto.
