The definitions and rules of interpretation in this clause apply in this agreement.
Affiliate: means you, the person or entity who applies to participate in the Affiliate Program.
Affiliate Application: the application form found at https://partners.gan.com whereby the Affiliate applies to participate in the Affiliate Program.
Affiliate Program: the collaboration between the Company and the Affiliate whereby the Affiliate will promote the Website and create links from the Link Pages to the Website and thereby be paid a commission subject to the terms and conditions of this Agreement and to the applicable Commission Rate.
Affiliate Sites: the websites maintained and operated by the Affiliate.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commission Rates: the commission structure set out at Clause 6.1 or any other commission structure agreed in writing between the Affiliate and the Company.
Company: GAN plc, a company incorporated in England and Wales with company number 03883658 and with its registered office at 2nd Floor, Axe and Bottle Court, 70 Newcomen Street, London SE1 1YT.
Company Trade Mark Guidelines: the guidelines for use of the trade marks, logos and branding from time to time as made available in the media gallery on the GAN Partners Portal.
GAN Partners Portal: the portal made available by the Company through which the Affiliate is able to access marketing materials and commission information.
Link Pages: the web pages of the Affiliate Sites that provide a hyperlink directly to one or more pages of the Website.
Minimum Deposit: a minimum real money transfer requirement set for one or more Affiliates, New Customers, or real money transfer, as from time to time may be communicated to one or more Affiliates or New Customers by the Company.
New Customers: individuals who access the Website via clicking the tracking links on the Affiliate Sites, properly register on the Website and then make real money transfers at least equivalent to the Minimum Deposit into their website account, who do not yet have, and have not had an account with the Company (or any member of the group of companies to which it belongs), and whose account has not been closed indefinitely or for a period exceeding 3 months.
Net Revenue: the revenue generated from New Customer's real money bets less all of the following: (i) monies paid out to New Customers as winnings; (ii) any taxes or duties; (iii) bonus costs and jackpot contributions; (iv) fraud costs; (v) chargebacks; (vi) returned stakes; (vii) any commissions, licensing fees or royalties paid to third parties for providing the games available on the Website; and (viii) administration fees incurred by the Company.
VAT: Value added tax or any equivalent tax chargeable in the United Kingdom or elsewhere.
Website: the Company's websites at any time and currently called https://casino.winstar.com.
Welcome Page: the webpage that New Customers lands on when clicking through to the Website from the Link Pages.
- 1.2 A reference to writing or written includes email.
- 1.3 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. AFFILIATE APPLICATION
- 2.1 The Company shall evaluate the Affiliate Application hereby submitted and shall notify the Affiliate in writing (which may be by email) whether the Affiliate Application is accepted or not. The Company reserves the right to refuse any registration in its sole and absolute discretion. The Company's decision is final and not subject to any right of appeal.
- 2.2 Subject to the Affiliate Application being accepted in accordance with Clause 2.1, the Affiliate is granted the non-exclusive non-assignable right to direct New Customers to the Website in accordance with the terms set out in this Agreement.
- 2.3 This agreement is non-exclusive and does not prevent or restrict the Company from entering into similar or different agreements with third parties. The Company makes no representation that the terms of this agreement are similar to or the same as the terms of any other agreement it has entered or may enter into with any third party.
3. QUALIFYING CONDITIONS
The Affiliate hereby represents and warrants that:
- (a) it has, and will retain throughout the term of this Agreement, title and authority to enter into this Agreement, and to perform all its obligations in this Agreement;
- (b) it has provided the Company with complete, valid and truthful information;
- (c) it has obtained and will maintain in force all necessary registrations, authorizations, consents and licenses necessary to fulfil its obligations under this Agreement;
- (d) it shall comply with all applicable laws and regulations in the performance of their obligations; and
- (e) it fully understands and accepts the contents of this Agreement.
4. COMPANY'S RIGHTS AND OBLIGATIONS
- 4.1 The Company shall be responsible for developing, operating and maintaining the Website.
- 4.2 Subject to Clause 2, the Company shall assign a unique player tracking code to the Affiliate and unique tracking identifications codes for each New Customer. By means of the player tracking code New Customers acquired via the Link Pages on the Affiliate Site and the bets placed during such sessions are registered and/or can be tracked.
- 4.3 The Company shall provide New Customers clicking through directly from the Link Pages access to and use of the Website in accordance with the Company's terms and conditions and policies and procedures from time to time.
- 4.4 The Company shall administer the turnover generated via the Link Pages, record the net revenues and the total amount of commission earned via the Link Pages and shall via the GAN Partners Portal provide the Affiliate with commission statistics, and handle all customer services related to the business of the Company.
- 4.5 Subject to the Affiliate complying with is obligations under this Agreement, the Company shall pay the Affiliate its applicable commission based on the applicable Commission Rates.
- 4.6 The Company may at any time or times without notice to Affiliate:
- (a) change the name of the Website; and
- (b) change the Company Trade Mark Guidelines.
- 4.7 The Company reserves the right to freeze the Affiliate's account with immediate effect and/or deduct money from the Affiliate if any traffic is deemed to have been referred through fraudulent means or in breach of this Agreement.
- 4.8 The Company reserves the right to request any information from the Affiliate for due diligence purposes in line with its obligations under applicable law as it may from time to time deem fit.
- 4.9 The Company may refuse any applicant's New Customer or close a New Customer's account if in the sole opinion of the Company, such action is deemed to be necessary to comply with the Company's internal policies and/or to comply with all applicable laws and regulations.
- 4.10 The Company may refuse any applicant Affiliate and/or may close any Affiliate's account if in the sole opinion of the Company it is necessary to comply with its internal policies and/or to comply with all applicable laws and regulations. If the Affiliate is in breach of this Agreement, the Company may, besides closing the Affiliate's account take any other steps at law to protect its interests.
5. AFFILIATE'S OBLIGATIONS
- 5.1 The Affiliate shall use all reasonable commercial efforts to market and promote the Website and the products and services available on the Website and shall prominently display the Link Pages on the Affiliate Website(s) in accordance with what is agreed between the Company and the Affiliate.
- 5.2 The Affiliate shall be responsible for developing, operating and maintaining the Affiliate Website and for all materials that appear on it. In particular, but without limiting the generality of the foregoing, the Affiliate shall be responsible for:
- (a) the proper functioning and maintenance of the Affiliates Website and all Page Links to the Website;
- (b) compliance with the Company Trade Mark Guidelines and shall not alter any marketing materials provided by the Company without its consent which may be withheld in its absolute discretion;
- (c) ensuring that all news, offers and promotions in relation to the Company and/or the Website are current and up to date;
- 5.3 The Affiliate hereby undertakes, represents and warrants that:
- (a) it will not perform any act, and that the Affiliate Website nor will contain any material, which is libellous, discriminatory, obscene, threatening, unlawful or otherwise unsuitable or which contains sexually explicit, pornographic, obscene or graphically violent materials;
- (b) it will not target any person who is under the legal age for gambling, and shall, for example, not provide facilities for gambling which are meant to appeal particularly to children or young people;
- (c) it will not target any jurisdiction where gambling and the promotion thereof is illegal and the Affiliate shall not be eligible for any commission on any product which is promoted in any jurisdiction where it is illegal to do so.
- (d) it acknowledges the Company's ongoing commitment for the prevention of problem gambling and that the Affiliate will co-operate with the Company to actively reduce gambling addictions by, for example, placing links provided by the Company on the Affiliate Website(s) which direct traffic to websites involved in the business of helping problem gamblers;
- (e) that it will not generate traffic to the Website by illegal or fraudulent activity, particularly but not limited to by:
- (i) sending spam or unsolicited mail in its attempt to refer New Customers to the Website;
- (ii) registering as a player or making deposits directly or indirectly to any player account through his tracker(s) for its own personal use and/or the use of its relatives, friends, employees or other third parties, or in any other way attempt to artificially increase the commission payable or to otherwise defraud the Company. Violation of this sub-clause shall be deemed to be fraud; and
- (iii) that it will not present the Affiliate Website(s) in such a way that it might evoke any risk of confusion with the Website and/or the Company or convey the impression that the Affiliate Website(s) is partly or fully associated with/from the Website and/or the Company.
- (f) not register or purchase domain names, keywords, search terms or other identifiers for use in advertising or search or referral services which are similar or identical with the intellectual property rights of the Company and its group companies or which include the word "Winstar" or variations thereof. The Affiliate shall not create any applications or Internet pages falsely representing Winstar in any way, shape or form on any social media channels (including, but not limited to, Facebook, Google +, Twitter etc.).
- 5.4 The Affiliate shall submit to the Company for prior approval any proposed use of any Company trade mark, domain name, logo, and other elements of branding that the Affiliate may wish to make.
- 5.5 The Affiliate shall provide the Company with:
- (a) all co-operation in relation to this agreement; and
- (b) all access to such information as may be required by the Company, as is necessary for the proper performance of the Company's obligations under this agreement and/or in order to comply with all applicable laws and regulations.
- 5.6 The Affiliate acknowledges and agrees that it has no authority to legally bind the Company in relation to New Customers, other users or anyone else and that it has not been appointed and is not the agent of the Company for any purpose. The Affiliate agrees that it shall not make to anyone any representation or commitment about the Company, the Website or any of the products or services available on the Website.
- 5.7 The Affiliate shall comply with all applicable laws and regulations with respect to its activities under this agreement and to its business including but not limited to ensuring that all of its general marketing and promotional materials in relation to the Website are truthful, not misleading and fully compliant with all applicable law including but not limited to the British Code of Advertising, Sales Promotion, and Direct Marketing (the “CAP Code”) for written communications and the “BCAP Codes” for broadcast advertisements and the Gambling Industry Code for Socially Responsible Advertising and any other advertising codes of practice as required under the Licence Conditions and Code of Practice issued by the Gambling Commission of Great Britain from time to time.
6. CHARGES AND PAYMENT
6.1 The Company will pay the Affiliate at the Commission Rate in respect of Net Revenue in accordance with the following table:
|Number of New Customers Per Month
||Affiliates' share of Net Revenue
|31 or more
By way of illustrative example:
Month 1: if 7 New Customers are referred to the Website via the Affiliate Sites, then the Affiliate shall receive a commission of 30% of the Net Revenue generated by those New Customers.
Month 2: if 4 New Customers are referred to the Website via the Affiliates Sites, then the Affiliate shall receive a commission of 25% of the Net Revenue generated by those 11 New Customers during that monthly period – i.e. the 4 New Customers and the 7 New Customers from the previous month.
Month 3: if 35 New Customers are referred to the Website via the Affiliates Sites, then the Affiliate shall receive a commission of 40% of the Net Revenue generated by those 46 New Customers during that monthly period – i.e. the 35 New Customers and the 11 New Customers from the previous two months.
- 6.2 An affiliate's monthly payable balance is automatically reset to 0 at the beginning of each calendar month. The negative balance is not carried over to the following month. Excluded from the "no negative carry over" are individual players who won more than 4,000.00 Pound Sterling (or the equivalent amount in any other currency) in a single month. These players will be placed in quarantine until the negative balance has been offset.
- 6.3 Affiliate acknowledges and agrees that no payments are due to it under this agreement otherwise than as expressly set out in this agreement.
- 6.4 Payment of commissions validly due under this agreement shall be made in accordance with the payment method chosen by the Affiliate on the GAN Partner Portal. If an error is made in the calculation of the commission, the Company reserves the right to correct such calculation at any time. In the case of any overpayment by the Company, the Company reserves the right to request a refund from the Affiliate or deduct the corresponding amount of overpayment to the Affiliate from the following month's commission, and each month thereafter, until the debt is repaid in full.
- 6.5 Except in the case of manifest error, the Company shall pay the Affiliate the amount shown in the GAN Partners Portal within thirty (30) days of the end of the relevant monthly period.
- 6.6 The Affiliate's acceptance of the payment of the commission shall be deemed to constitute the full and final settlement of the balance due for the relevant period.
- 6.7 The Company may in its sole discretion withhold the payment of any balance to the Affiliate for up to one hundred and eighty (180) days if the Company needs to investigate and verify that the relevant transactions comply with the provisions of the Agreement.
- 6.8 No payment shall be due if the Company has reasons to believe that the traffic generated by the Affiliate is illegal or is in breach of any of the provisions of the Agreement.
- 6.9 The Affiliate agrees to return all Commissions received based on fraudulent or falsified transactions and indemnify the Company for all costs and losses incurred in relation to such transactions (including, but without limitation, legal fees and costs).
- 6.10 The Affiliate is required to provide proof of VAT registration to the Company if deemed applicable by the Company and as further specified from time to time by the Company at its sole discretion.
- 6.11 The Affiliate shall notify the Company of any change in its contact or address details and shall duly complete all relevant forms requiring completion by any taxation or other government authority in relation to its activities under this agreement.
The Affiliate acknowledges and agrees that the Company and its licensors own all intellectual property rights in the Website and all the Company's products and services. Except as expressly stated herein, this agreement does not grant the Affiliate any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences belonging to the Company. All such rights are reserved to the Company.
8.1 Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by Clause 8.2.
8.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this Clause 8; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority or listed stock exchange.
8.3 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
8.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
8.5 This Clause 8 shall survive termination of this agreement, however arising.
9. DATA PROTECTION
- 9.1 Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data, including (without limitation) (i) any data protection legislation from time to time in force in the UK including the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable EU regulation relating to privacy. This clause is in addition to, and does not reduce, remove or replace, a party's obligations arising from such requirements.
- 9.2 Any advertising material sent by the Affiliate shall always contain an unsubscribe facility whereby the recipient can opt to stop receiving advertising material from the Affiliate.
The Affiliate agrees to defend, indemnify and hold the Company and its group companies/affiliates, successors, officers, employees, agents, directors, shareholders and attorneys, free and harmless from and against any and all claims and liabilities, including reasonable legal and expert fees, related to or arising from:
- (a) any breach of Affiliate's representations, warranties or obligations under this Agreement;
- (b) Affiliate's use (or misuse) of the marketing material and the Company's and/or its group companies' intellectual property rights;
- (c) all conduct and activities occurring under Affiliate's user ID and password;
- (d) any defamatory, libellous or illegal material contained on the Affiliate Website(s) or Affiliate's information and data;
- (e) any claim or contention that the Affiliate Website(s) or the Affiliate's information and data infringes any third party's intellectual property rights or violates any third party's rights of privacy or publicity;
- (f) third party access or use of the Affiliate Website(s) or the Affiliate's information and data;
- (g) any claim related to Affiliate Website(s) or the Page Links; and
- (h) any violation of this Agreement or any applicable laws.
11. LIMITATION OF LIABILITY
- 11.1 This Clause 11 sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Affiliate:
- (a) arising under or in connection with this agreement; and
- (b) in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
- 11.2 Except as expressly and specifically provided in this agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.
- 11.3 Nothing in this agreement excludes the liability of the Company:
- (a) for death or personal injury caused by the Company's negligence; or
- (b) for fraud or fraudulent misrepresentation.
- 11.4 Subject to Clause 11.3:
- (a) the Company shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any of the following:
- (i) loss of profits; or
- (ii) loss of business; or
- (iii) depletion of goodwill and/or similar losses; or
- (iv) loss or corruption of data or information; or
- (v) pure economic loss; or
- (vi) for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this agreement; and
- (b) the Company's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the amount paid under this agreement by the Company to the Affiliate during the six (6) months preceding the date on which the claim arose.
12. DURATION AND TERMINATION
- 12.1 This agreement may be terminated by either party by giving thirty (30) days' written notice (which may be by email) to the other party.
- 12.2 This agreement shall automatically be terminated in the event that the Company is precluded from offering online gambling services.
- 12.3 The Company may terminate this Agreement on notice at any time if it discontinues or withdraws, in whole or in part, its affiliate marketing programme. The Company will endeavour to give Affiliate as much notice of the same as reasonably practicable, but any such termination will be without liability to Affiliate.
- 12.4 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:
- (a) the other party commits a material breach of any term of this agreement which breach is irremediable or (if such a breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
- (b) the other party is declared bankrupt or insolvent by court order or if any bankruptcy or insolvency proceedings are commenced against the other party or in the event of any similar situation indicating that the other party is insolvent.
- 12.5 The Affiliate hereby agrees and acknowledges that any breach of applicable laws or regulations may, without limitation, result in fines, penalties, breaches of license conditions and ability to do business, as well as potential civil and criminal action against the Affiliate or the Company by the respective authorities. Without prejudice to any of the Company's rights herein or at law, the Company may forthwith terminate this Agreement, in part or in its entirety, should the Affiliate act in breach of the foregoing and the Affiliate shall be held fully responsible and liable for any such resulting fine, penalty, claim, action, or loss which is caused to us as a result of its actions, omissions or default as the case may be.
13. CONSEQUENCES OF TERMINATION
On termination of this agreement for any reason:
- (a) all licences and benefits granted under this agreement shall immediately terminate;
- (b) each party shall return and make no further use of any materials and other items (and all copies of them) belonging to the other party; and
- (c) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
14. FORCE MAJEURE
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for six months, the party not affected may terminate this agreement by giving thirty (30) days' written notice to the affected party.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16. RIGHTS AND REMEDIES
The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
- 17.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
- 17.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
18. ENTIRE AGREEMENT
- 18.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- 18.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
- 18.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.
- 18.4 Nothing in this clause shall limit or exclude any liability for fraud.
19. ASSIGNMENT AND OTHER DEALINGS
- 19.1 The Affiliate shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this agreement without the prior written consent of the Company.
- 19.2 The Company may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement.
20. NO PARTNERSHIP OR AGENCY
Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
- 21.1 The Company reserves the right to, at any time and at its sole discretion, with or without giving any prior notice to the Affiliate, amend, alter, delete or add any of the provisions of this Agreement. When possible, a notice of the amendments will be sent to the Affiliate's registered email address and such notice will be deemed to be served once sent by the Company. The Affiliate's continuing participation in the Affiliate Program after any amendments or modifications have been made public will be deemed as the Affiliate's acceptance of the new terms and conditions.
- 21.2 It shall be the sole responsibility of the Affiliate to keep updated with the latest version of this Agreement.
22. THIRD PARTY RIGHTS
A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
- 23.1 Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:
- (a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
- (b) in the case of GAN sent by email to: email@example.com and, in the case of the Affiliate, sent by email to the address provided by the Affiliate in GAN Partner Portal.
- 23.2 Any notice or communication shall be deemed to have been received:
- (a) if delivered by hand, on signature of a delivery receipt [or at the time the notice is left at the proper address; and]
- (b) if sent by pre-paid first-class post or other next working day delivery service, at midday on the second Business Day after posting [or at the time recorded by the delivery service; and
- (c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
24. GOVERNING LAW
This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.