AFFILIATE PARTNER AGREEMENT
THIS AGREEMENT (the “Agreement”) is entered into on the _____ day of ______________ 20____, by and between:
(a)Advice Island Limited, a limited liability company incorporated and registered under the laws of Malta, with its registered office at Office 5B, Level 3, Piazzetta Business Plaza, Triq it-Torri, Sliema SLM 1605, Malta, registration number C 106672, VAT number MT30582037 (hereinafter the “Company”);
and
(b)the party identified below:
Company name: ___________________________________________________________
Represented by (first name and surname): ________________________________________
Place and date of birth: _______________________________________________________
Tax code: _________________________________________________________________
Address: __________________________________________________________________
VAT number: _____________________________________________________________
Identity document (to be attached): _____________________________________________
Email address: _____________________________________________________________
Telephone number: _________________________________________________________
(hereinafter the “Affiliate Partner”).
The Company and the Affiliate Partner are hereinafter referred to individually as a “Party” and collectively as the “Parties”.
RECITALS
(A) WHEREAS the Affiliate Partner is engaged in developing digital products or services of the Company;
(B) WHEREAS the Company wishes to engage the Affiliate Partner to provide its services in accordance with this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants and conditions contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows.
1. DEFINITIONS
1.1 “Agreement” means this legally binding agreement between the Company and the Affiliate Partner, including the Annexes, as updated from time to time, expressly accepted and signed by the Parties as part of the Agreement.
1.2 “Qualified Sale” means a sale of the Company’s products or services to a customer referred by the Affiliate Partner, where the customer has paid in full for the products or services and such sale has been confirmed by the Company.
1.3“Affiliate Commission” means the monetary compensation paid by the Company to the Affiliate Partner for each Qualified Sale, as set out in Annex A.
1.4“Affiliate Link” means the unique tracking link provided by the Company to the Affiliate Partner for the purpose of tracking referrals and calculating Affiliate Commissions.
1.5 “Annex” means any communication or other document expressly attached to this Agreement at the time of its signature by the Parties or thereafter, subject to the rules governing amendments to the Agreement, which forms an integral and inseparable part of this Agreement.
1.6 “Applicable Laws” means the laws, statutes, ordinances and regulations of the jurisdictions applicable to the performance of this Agreement, to the activities of the Parties and/or to the products or their use, and/or of any jurisdiction, territory or state relevant to this Agreement, as amended from time to time, together with the rules, regulations, orders, codes of conduct, licences or permits, including, without limitation, the rules, regulations, orders, codes of conduct, licences and permits of the Competent Authority (as the case may be). For the avoidance of doubt, the term “governing law” as used in this Agreement shall have its own meaning, distinct from Applicable Laws.
1.7 “Confidential Information” means any information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) that is designated as confidential at the time of disclosure or that ought reasonably to be understood as confidential given the nature of the information and the circumstances of disclosure. Confidential Information may include, without limitation, business plans, customer lists, financial information, marketing strategies, non-public information relating to products or services and other proprietary information.
2. DUTIES AND OBLIGATIONS
2.1 The Affiliate Partner undertakes to:
2.1.1 develop marketing strategies for the Company’s products or services using the Affiliate Link, in accordance with the terms of this Agreement and the Company’s guidelines (Annex B);
2.1.2 refrain from making false or misleading statements about the Company’s products or services;
2.1.3 use the Affiliate Link in a manner that does not adversely affect the Company’s reputation or brand image;
2.1.4 provide the Company with all data necessary to verify the proper performance of the Agreement;
2.1.5 carry out marketing activities exclusively through approved methods and in approved locations, namely as agreed with the Company. In the event of a breach of this provision, the Company reserves the right to suspend the Affiliate Partner or to terminate this Agreement;
2.1.6 comply with all applicable laws, statutes and regulations and any other national and European Union legislation applicable from time to time, as may be referred to and/or applied to this Agreement, with particular but not exclusive reference to the rules governing the promotion of online gaming services with cash prizes. The Affiliate Partner shall be liable for any breach and/or unlawful act connected with its activity, on a purely personal basis where the Agreement is entered into with a self-employed professional, and hereby indemnifies the Company against any liability arising from non-compliance with such legislation;
2.1.7 refrain from any defamatory, discriminatory, obscene, unlawful or otherwise inappropriate conduct, and from publishing anywhere content relating to the consumption of tobacco products, alcohol or psychotropic substances, or content that is sexually explicit, pornographic, obscene, directed at children or overtly violent, and refrain from targeting persons under the age of 18.
2.1.8 In the event of non-compliance with the guidelines provided, the Company hereby assumes no responsibility or obligation with regard to the calculation and consequent payment of the related Affiliate Commissions and reserves the right to suspend or terminate the Agreement with immediate effect. In the event of fraud or circumvention of the requirements, the Agreement shall be terminated automatically, without notice to the Affiliate Partner. Following suspension Page of
and/or termination, the Company shall not be required to pay any Affiliate Commission and may also demand the return of any sums unduly received by the Affiliate Partner. In the event of material breaches, the Company reserves the right to take legal action to protect itself against any damage that may arise from the unlawful or fraudulent conduct of the Affiliate Partner.
2.2 The Company undertakes to:
2.2.1 provide the Affiliate Partner, through appropriate communication channels, with all information useful and necessary for the proper use of the links and of all related management services, also providing periodic reports and statistics in order to ensure support and transparency in operations and to enable the Affiliate Partner to perform its obligations under this Agreement effectively;
2.2.2 regularly inform the Affiliate Partner of new network initiatives, providing it with complete information on their terms and conditions, and provide assistance by email or through other agreed channels;
2.2.3 track customers referred by the Affiliate Partner through the Affiliate Link and calculate the Affiliate Commissions due to the Affiliate Partner; and
2.2.4 pay the Affiliate Commissions to the Affiliate Partner in accordance with the terms set out in Annex A.
3. AFFILIATE COMMISSIONS
3.1 The Company shall pay the Affiliate Partner an Affiliate Commission for each Qualified Sale. The commission structure, whether a fixed amount, a percentage of the sale or another structure, is set out in Annex A, together with the frequency and method of payment.
3.2 The Company reserves the right to withhold or deduct Affiliate Commissions in certain circumstances, including, without limitation, refunds issued to customers, cancellations of Qualified Sales, returns or a breach of this Agreement by the Affiliate Partner.
3.3 The Company shall provide the Affiliate Partner with a monthly report detailing the Qualified Sales, the calculation of the Affiliate Commission for each such sale and any withholdings or deductions made.
3.4 The Affiliate Partner shall be responsible for all taxes associated with the receipt of Affiliate Commissions.
4.CONFIDENTIALITY
4.1 The Receiving Party undertakes to keep all Confidential Information strictly confidential. The Receiving Party shall not disclose or make available Confidential Information to any third party without the prior written consent of the Disclosing Party and shall use it solely for the purpose of performing its obligations under this Agreement.
4.2 The obligations under this clause shall not apply to Confidential Information that: (i) was already lawfully known to the Receiving Party at the time of disclosure; (ii) is disclosed to the Receiving Party by a third party entitled to disclose it; (iii) is publicly available through no fault of the Receiving Party; or (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
4.3 If the Receiving Party is required by law, court order or any governmental or regulatory authority to disclose any Confidential Information, it shall give the Disclosing Party prompt written notice of such requirement prior to disclosure and, where possible, sufficient time to contest the disclosure.
4.4 Upon termination of this Agreement, or at the request of the Disclosing Party, the Receiving Party shall return to the Disclosing Party all Confidential Information and all copies, notes or extracts thereof, unless retention is required by law.
4.5 The Receiving Party’s obligation to protect the confidentiality of Confidential Information shall survive termination of this Agreement and shall continue until such Confidential Information enters the public domain other than through a breach of this Agreement by the Receiving Party.
5. INTELLECTUAL PROPERTY
5.1 The Affiliate Partner acknowledges that the Company and its licensees own all rights, title and interest in and to the services and products and all intellectual property rights therein.
5.2 Nothing in this Agreement grants the Affiliate Partner any right, title or interest in the services, the products or the associated trademarks, except for the right to sell the services or products, or to provide assistance in relation thereto, in accordance with this Agreement.
6. TERM AND TERMINATION
6.1 This Agreement shall commence on the date first written above and shall continue for an indefinite period until terminated by either Party.
6.2 Either Party may withdraw from this Agreement without cause by giving thirty (30) days’ prior written notice to the other Party.
6.3 In the event of withdrawal without cause by the Company, the Affiliate Partner shall be entitled to retain Affiliate Commissions for a maximum of a further thirty (30) days’ from withdrawal, until the end of the next month after the withdrawal.
6.4 Either Party may terminate this Agreement with immediate effect by written notice if the other Party:
(a) breaches any material term or condition of this Agreement and fails to remedy such breach within five (5) days of receipt of written notice thereof, unless such breach cannot be remedied within five (5) days, in which case the defaulting Party shall begin to remedy it immediately upon receipt of such notice and continuously pursue such remedy until completion;
(b) becomes subject to voluntary or involuntary bankruptcy, insolvency, reorganisation, liquidation, dissolution, receivership or similar proceedings, or otherwise ceases to carry on its business; or
(c) remains completely inactive for a period of twelve (12) months, namely does not access the platform for one year.
6.5 In the event of termination for cause, the rights granted to the Affiliate Partner under this Agreement shall cease immediately and the Affiliate Partner shall promptly cease all promotion of the Company’s products or services. Any commissions owed to either Party at the time of termination or expiry shall be paid in accordance with the terms of this Agreement. Thereafter, no claim for indemnity or compensation, whether for severance, goodwill or any investment made by reason of the signature and performance of this Agreement, may be made by the Affiliate Partner, who expressly waives such right.
7. GENERAL PROVISIONS
7.1 This Agreement shall be governed by and construed in accordance with the laws of Malta and of the European Union. The Parties submit to the exclusive jurisdiction of the courts of Malta.
7.2 Any misunderstanding or dispute between the Parties arising out of or in connection with this Agreement, or relating to its performance, interpretation, applicability or amendment, shall be Page of
resolved in good faith through negotiation between the Parties. If the Parties fail to reach an amicable settlement, any dispute, action or proceeding shall be referred by either Party to the exclusive jurisdiction of the competent courts of Malta.
7.3 This Agreement, including any Annexes and appendices, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, between the Parties relating to its subject matter.
7.4 This Agreement may be amended, modified or supplemented only by a written agreement signed by each Party.
7.5 No waiver by either Party of any provision of this Agreement shall be effective unless expressly made in writing and signed by the waiving Party. No waiver by either Party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified in such written waiver.
7.6 The Company reserves the right to assess the Affiliate Partner’s affiliation application and shall inform the Affiliate Partner of the outcome of its assessment. The Company reserves the unquestionable right to reject the application for any reason, without being required to provide any justification.
7.7 The Affiliate Partner undertakes to indemnify and hold harmless the Company from and against any claim, loss, damage, liability or expense incurred as a result of negligent or wilful acts or omissions.
7.8 The Company shall be exempt from any liability, civil or otherwise, for conduct of the Affiliate Partner in breach of Applicable Laws and/or which results, directly or indirectly, in loss of profits, or which involves corruption or destruction of data or any other consequential loss.
7.9 The Company shall further be exempt from any liability for losses, loss of profits or damages suffered by the Affiliate Partner as a result of natural events, force majeure, commercial or labour disputes, acts or failures of government or other authorities, obstruction or failure of telecommunication services or networks, or any other act, omission, delay or failure caused by third parties or otherwise beyond its control.
7.10 If any term or provision of this Agreement is invalid, unlawful or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
7.11 All notices and other communications required or permitted under this Agreement shall be in writing. They may be delivered by hand or sent by recognised overnight courier service, fax or email, provided that receipt is confirmed. Communications shall be addressed to the relevant Party at the address set out in this Agreement or at such other address as the receiving Party may have notified in writing to the sender.
7.12 A notice shall be deemed duly given upon delivery by hand or, in the case of delivery by overnight courier, fax or email, upon confirmed receipt.
Address of the Company
Advice Island Limited
Office 5B, Level 3, Piazzetta Business Plaza
Triq it-Torri, Sliema SLM 1605, Malta
Email: info@topaffiliation.com
Address of the Affiliate Partner
_________________________________________________________________________
_________________________________________________________________________
Email: ___________________________________________________________________
7.13 It is understood that the Affiliate Partner acts as an independent contractor and not as an agent, partner or employee of the Company. The Affiliate Partner shall have no authority to enter into agreements or undertake obligations on behalf of the Company.
7.14 The relationship between the Company and the Affiliate Partner is non-exclusive. Both Parties are free to enter into similar agreements with third parties, unless otherwise provided in this Agreement.
7.15 The Affiliate Partner may not assign or transfer this Agreement, or delegate its obligations hereunder, without the prior written consent of the Company.
7.16 In the event of any dispute arising out of or relating to this Agreement, the Parties agree to negotiate in good faith to resolve the dispute. If the Parties are unable to resolve it, they agree to submit the dispute to mediation before resorting to litigation.
7.17 This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. A signed copy of this Agreement delivered by fax, email or other means of electronic transmission shall have the same legal effect as delivery of a signed original.
Malta, ______________
| For Advice Island Limited _______________________________ Signature | For the Affiliate Partner _______________________________ Signature |
ANNEX A
AFFILIATE COMMISSIONS
1. This Annex A forms part of the Agreement and is subject to its terms and conditions. In the event of any conflict between the provisions of this Annex A and those of the Agreement, the latter shall prevail.
2.This Annex sets out the commission structure that the Company will apply to remunerate the Affiliate Partner for each Qualified Sale.
3. The Company undertakes to pay the Affiliate Partner a commission calculated on completed Qualified Sales, according to one of the following models, to be subsequently agreed between the Parties:
(a) CPA (Cost per Acquisition): a model providing a specific payment for each sale or action performed;
(b) Revenue Share: a payment model under which the commission is determined as a percentage of the revenue generated by users directed by the Affiliate Partner to a promotional campaign;
(c) Hybrid: a payment model combining the Revenue Share and CPA models. The Company tracks every visit to the Operator’s website and, on the basis of the information collected and the traffic generated, commissions are calculated and paid to the Affiliate Partner;
(d) Monthly Flat Fee: a payment model based on a monthly fee payable to the Affiliate Partner, irrespective of the acquisitions generated.
4. After verifying the data imported onto the platform, the Company shall calculate the commission due by the tenth (10th) day of each month, or by the first business day following the tenth (10th) day.
5. Between the tenth (10th) and the fifteenth (15th) day of each month, the Company shall provide the Affiliate Partner with a dedicated document containing the statement of account for the previous month relating to its account, as shown on the platform.
6. The Company shall pay the confirmed amounts within fifteen (15) days of receipt of the relevant invoice issued by the Affiliate Partner.
7. Any further amounts in the nature of ancillary, social security, pension and/or tax charges not specifically approved by the Company shall be excluded from the calculation of the amounts due and, accordingly, shall not be included in the tax document.
8. The minimum amount of Affiliate Commissions that the Affiliate Partner must earn before a payment is made by the Company is € 100.00. If the Affiliate Commissions earned in a given month are lower than the minimum payment amount, they shall be carried forward to the following month.
ANNEX B
GUIDELINES
1. These guidelines form an integral part of the Agreement and set out the operating instructions, terms and conditions with which the Affiliate Partner must comply.
2. Only links and operating materials provided by the Company may be used. Any use other than as agreed requires the specific prior authorisation of the Company; the same applies to the use of promotional codes, promotional materials or initiatives not organised and structured by the Company.
3. Online affiliate activities must be carried out exclusively using methods approved by the Company, using banners or links provided or authorised by the Company, and only on sites authorised by the Company.
4. The Affiliate Partner is not authorised to promote the Company’s website or other authorised websites by email unless prior authorisation has been granted. Where email communication is authorised by the Company, the Affiliate Partner represents that it is conducted on an opt-in basis, in accordance with applicable law.
5. Any changes to the names of the websites used by the Affiliate Partner, as well as changes to hosting location, size, objectives, update frequency or campaign variations, shall be ineffective unless authorised in advance in writing by the Company.
6. The Affiliate Partner is solely responsible for handling any customer complaints and assumes full responsibility for the development, operation and maintenance of its website, as well as for all content published on such website and/or other affiliate channels.
7. In all activities, the Affiliate Partner must exercise the utmost diligence in complying with the laws, statutes, regulations and any other national and European Union legislation applicable at the time of the Agreement, with particular but not exclusive reference to the rules governing the promotion of online gaming services with cash prizes. The Affiliate Partner shall be liable for any breach or unlawful act connected with its activity and hereby indemnifies the Company against any potential liability.
Furthermore, the Affiliate Partner is prohibited from:
8. using any form of financial incentive to promote its activities, employing online traffic or engaging in fraudulent conduct leading to any form of abuse or unfair advantage, whether direct or indirect;
9. engaging in defamatory, discriminatory, obscene, unlawful or otherwise inappropriate actions, or publishing on its website and/or other affiliate channels content relating to tobacco, alcohol or psychotropic substances, or content that is sexually explicit, pornographic, obscene, paedophilic or overtly violent;
10. actively targeting persons under the age of 18;
11. generating traffic to the collection channels through unlawful or fraudulent activities (including, without limitation, sending spam, using incorrect meta tags or registering customers) or attempting in any other way to artificially increase its earnings to the detriment of the Company (for example, the Affiliate Partner may not own or operate more than one affiliate account at the same time).
All. 1: PRIVACY POLICY E COOKIE
All. 2: Affiliates Guideline
