Affiliate Programme Terms and Conditions
This affiliate agreement (the “Agreement”) sets out the complete terms and conditions between Power Leisure Bookmakers Ireland Ltd, whose principal place of business is situated at Power Tower, Belfield Office Park, Beech Hill Road. Clonskeagh, Dublin 4, Ireland ("Betfair"), and you, regarding your application to participate as an affiliate (an "Affiliate") in the Betfair affiliate programme (the “Affiliate Programme”).
It is important that you read and understand this Agreement. By completing an application to join the Affiliate Programme you are – subject to Betfair’s approval of your application – agreeing to the terms and conditions of this Agreement. If you do not agree to the following terms and conditions (or are not authorised to do so) you should discontinue your application.
This Agreement replaces all previous terms and conditions relating to the Affiliate Programme or any previous affiliate programme offered by Betfair. You agree that this Agreement supersedes all previous agreements you have had with Betfair or any Group Company (as defined below).
1. DEFINITIONS AND INTERPRETATION
1.1 “Affiliate Payment” means any Revenue Share, Hybrid Payments and/or Bounty Payments;
“Affiliate Programme Site” means the website at www.affiliates.betfair.com;
“Application” means your application to join the Affiliate Programme via the Affiliate Programme Site;
“Arnold Media” means Arnold Media Limited, Level 3, 109 Sir William Reid Street, Gzira, Malta GZR 1033;
"Business Day" means any day (excluding Saturdays and Sundays) which is not an official public holiday in England;
“Bounty Payments” means the bounty payments described in clause 4.5;
“Code” means the unique code that may be used by Customers when registering for an account with Betfair which is made available to you via the Affiliate Programme Site;
"Commencement Date" means the date on which Betfair confirms that your application to join the Affiliate Programme has been accepted;
“Confidential Information” means all information in any form relating to a party (and any Group Company in the case of Betfair) (the “Disclosing Party”) that is directly or indirectly disclosed to the other party (the “Receiving Party”), including any personal data and/or customer data, by any of the Disclosing Party’s employees, professional advisers or contractors before or after the Commencement Date;
“Customers” means all persons who open an account with Betfair or a Group Company for the first time either using a Code or who arrive at www.betfair.com or any other Betfair site by clicking on the Links on the Internet Site;
"Good Industry Practice" means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced contractor acting in good faith;
"Group Company" means Power Leisure Bookmakers Ireland Ltd and any body corporate which is from time to time a holding company of that company, a subsidiary of that company or a subsidiary of a holding company of that company (“holding company” and “subsidiary” having the meanings attributed to them by s.1159 of the Companies Act 2006) and shall include any company in which a Group Company has a shareholding of 50% or more;
“Hybrid Payment” means the hybrid payments described in clause 4.6;
“Immediate family” means your spouse, partner, parent, child or sibling;
"Internet Site" means your website or websites located at the web address(es) provided to Betfair in your Application or subsequently changed from time to time and notified to Betfair via the Affiliate Programme Site;
"IPR" means any and all patents, trade marks, service marks, rights in designs (including semi-conductor topography design rights and circuit layout rights), get-up, trade, business or domain names, goodwill associated with the foregoing, e-mail address names, copyright including rights in computer software (in both source and object code) and rights in databases (in each case whether registered or not and any applications to register and rights to apply for registration of any of the foregoing), rights in inventions and web-formatting scripts (including HTML and XML scripts), know-how, trade secrets and other intellectual property rights which may now or in the future subsist in any part of the world including all rights of reversion and the right to sue for and recover damages for past infringements;
"Links" means hypertext links (either a banner or text link) downloaded from the Affiliate Programme Site that link to the web page www.betfair.com or any other site owned or controlled by Betfair or any Group Company;
"Net Arcade Winnings" means total winnings from Customers (stakes received less winnings paid out) made by the arcade product accessible via the www.betfairarcade.com website less any payments to third party software providers, the cost of any promotional offers (including any sign up bonuses), adjustments made for any credit card charge-backs or any other reversal of a payment, fraudulent or otherwise voided or modified transactions, bad debt, and liability to any betting duty or licensing fees for data or other duty, tax or expense that may arise;
"Net Bingo Winnings" means total winnings from Customers (stakes received less winnings paid out) made by the bingo product accessible via the www.bingo.betfair.com website less any payments to third party software providers, the cost of any promotional offers (including any sign up bonuses), adjustments made for any credit card charge-backs or any other reversal of a payment, fraudulent or otherwise voided or modified transactions, bad debt, and liability to any betting duty or licensing fees for data or other duty, tax or expense that may arise;
"Net Casino Winnings" means total winnings from Customers (stakes received less winnings paid out) generated by the casino product accessible via the www.casino.betfair.com website or any downloadable client less any payments to third party software providers, the cost of any promotional offers (including any sign up bonuses), adjustments made for any credit card charge-backs or any other reversal of a payment, fraudulent or otherwise voided or modified transactions, bad debt, and liability to any betting duty or licensing fees for data or other duty, tax or expense that may arise;
"Net Exchange Commission" means total commission generated from Customers’ exchange betting less adjustments made for any credit card charge-backs or any other reversal of a payment, fraudulent or otherwise voided or modified transactions, bad debt, the cost of any promotional offers (including any sign up bonuses), payments to any sporting bodies (including any football governing bodies and the British Horseracing Authority or any similar body in any jurisdiction) and liability to any betting duty or licensing fees for data or other duty, tax or expense that may arise;
“Net Fixed Odds Winnings” means total winnings from Customers’ fixed odds betting (stakes received less winnings paid out) less adjustments made for any credit card charge-backs or any other reversal of a payment, fraudulent or otherwise voided or modified transactions, bad debt, the cost of any promotional offers (including any sign up bonuses), payments to any sporting bodies (including any football governing bodies and the British Horseracing Authority or any similar body in any jurisdiction), hedging costs and liability to any betting duty or licensing fees for data or other duty, tax or expense that may arise;
"Net Games Commission" means total commission generated from Customers’ playing of exchange games via the www.betfairgames.com website less adjustments made for any credit card charge-backs or any other reversal of a payment, fraudulent or otherwise voided or modified transactions, bad debt, the cost of any promotional offers (including any sign up bonuses) and liability to any betting duty or licensing fees for data or other duty, tax or expense that may arise;
"Net Multiples Winnings" means total winnings from Customers’ multiples betting via the www.betfair.com website (stakes received less winnings paid out) less adjustments made for any credit card charge-backs or any other reversal of a payment, fraudulent or otherwise voided or modified transactions, bad debt, the cost of any promotional offers (including any sign up bonuses), payments to any sporting bodies (including any football governing bodies and the British Horseracing Authority or any similar body in any jurisdiction), hedging costs and liability to any betting duty or licensing fees for data or other duty, tax or expense that may arise;
"Net Poker Rake" means total revenue generated from Customers by the person to person poker product accessible via the www.betfairpoker.com website or any downloadable client less any payments to third party software providers, the cost of any promotional offers (including any sign up bonuses), adjustments made for any credit card charge-backs or any other reversal of a payment, fraudulent or otherwise voided or modified transactions, bad debt and liability to any betting duty or licensing fees for data or other duty, tax or expense that may arise;
"Net Revenue" means the total of Net Arcade Winnings, Net Bingo Winnings, Net Exchange Commission, Net Fixed Odds Winnings, Net Multiples Winnings, Net Games Commission, Net Poker Rake and Net Casino Winnings generated by Customers;
"Parties" means the parties to this Agreement;
“Revenue Share” means the revenue share payments described in Clause 4.3; and
“TSEL” means The Sporting Exchange Limited a company registered in England & Wales with its registered address at Waterfront, Hammersmith Embankment, Chancellors Road, Hammersmith, London W6 9HP.
1.2 In this Agreement (except where the context requires otherwise)
(a) clause headings are included for convenience only and shall not affect the interpretation of this Agreement;
(b) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
(c) the singular includes the plural and vice versa; and
(d) reference to a statute or statutory provision is a reference to that statute or statutory provision and to all orders, regulations, instruments or other subordinate legislation made under the relevant statute.
2.1 In consideration of you making the Links available on the Internet Site and subject to the terms and conditions of this Agreement, Betfair will procure that you are granted a non-exclusive, non-transferable, terminable licence to use the Links on the Internet Site solely for your internal business purposes and in accordance with such other limitations and restrictions as set out in this Agreement.
2.2 It is a condition of this Agreement that you will not do any of the following:
(a) display the Links other than on the Internet Site;
(b) display the Code in any offline media without Betfair’s prior written approval;
(c) display data from the Links via any electronically accessible medium other than the Internet Site without the express written consent of Betfair;
(d) do anything that would cause Betfair to believe that a Customer has clicked through the Links to register for an account when that is not the case, sometimes known as ‘cookie stuffing’;
(e) use the Links or Code in a way which proves or is likely to prove detrimental to Betfair; and/or
(f) use the Links or Code in any “pop-up” or “pop-under” advertising without the prior written consent of Betfair.
3. AFFILIATE’S OBLIGATIONS
3.1 You warrant and undertake that:
(a) you have full capacity and authority to enter into this Agreement and any other documents executed by you that may be associated with this Agreement;
(b) you will at all times conduct yourself with all due skill, care and diligence, including Good Industry Practice, and in accordance with your own established procedures and all applicable laws, enactments, orders, regulations and other similar instruments;
(c) you will not make an Application or introduce any Customers as an Affiliate if you are in the employment of Betfair or a Group Company;
(d) you will comply with Betfair's security guidelines and requirements as may be issued by Betfair from time to time whether in writing or otherwise;
(e) all information you provided in your Application is correct and that you will notify Betfair promptly of any changes;
(f) you will promptly change the address of the Internet Site on request by Betfair;
(g) you will keep secret and not allow anyone else to use your login and password details for the Affiliate Programme Site;
(h) the Links will not be placed on any part of the Internet Site which may be aimed at people under 18 years of age;
(i) you will not directly or indirectly offer any potential Customer or Sub-Affiliate any incentive (including payment of money or other benefit) to use the Links or Code;
(j) you have obtained and will maintain in force all necessary registrations, authorisations, consents and licences to enable you to fulfil your obligations under this Agreement and that you will fully comply with all applicable laws and regulations including any advertising codes;
(k) the Internet Site will not contain any material which is defamatory, violent, pornographic, unlawful, threatening, obscene or racially, ethnically, or otherwise discriminatory or in breach of any third party rights and shall not link to any such material;
(l) you will not seek to challenge the validity of IPR belonging to Betfair or any Group Company;
(m) you will use all reasonable endeavours to display the Links and Code on the Internet Site without interruption for the duration of this Agreement;
(n) you will ensure that all communications originating from you relating to Betfair make it clear that such communications are sent by and on behalf of you (and not from or on behalf of Betfair);
(o) you will only use Betfair’s approved marketing, promotional and/or creative materials (banners, images, social media adverts and logos) and you will not edit, alter or amend the appearance, design and content without the prior written consent of Betfair;
(p) you will not encourage or assist any Customers to breach any terms and conditions agreed to when opening an account with Betfair or a Group Company;
(q) you will not, and you will not encourage or assist any Customers to, engage in behaviour which in Betfair’s reasonable opinion breaches the terms or abuses the spirit of a promotion, competition, tournament or offer operated by Betfair or a Group Company;
(r) you will not register any domain names or register keywords, search terms or other identifiers for user in any search engine, portal, sponsored advertising service or other search or referral service that incorporate terms which are identical or similar to ‘Betfair’ or any other trade marks owned by Betfair or a Group Company and you will at all times comply with such reasonable guidelines for the use of such trade marks as may be issued from time to time; and
(s) you will not send any marketing communications relating to Betfair via SMS or email without the prior written consent of Betfair.
3.2 You agree that:
(a) neither you nor your Immediate Family may become Customers and you shall not be entitled to any payment under this Agreement in relation to such persons;
(b) Betfair may monitor the Internet Site to ensure you are complying with the terms of this Agreement and you will provide Betfair with all data and information – including passwords – to enable Betfair to perform such monitoring at no cost to Betfair; and
(c) the Electronic Commerce (EC Directive) Regulations 2002 will not apply to this Agreement.
3.3 You warrant that:
(a) you are not and have never been engaged in any activity, practice or conduct which would constitute an offence under the Bribery Act 2010;
(b) you have not been the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body or any customer regarding any offence or alleged offence under the Bribery Act 2010, and no such investigation, inquiry or proceedings have been threatened or are pending and there are no circumstances likely to give rise to any such investigation, inquiry or proceedings; and
(c) you will adhere to the requirements and principles of the Bribery Act 2010 and inform Betfair of any suspected breaches that may have an impact upon Betfair.
4. PAYMENTS IN RESPECT OF THE LINKS AND CUSTOMERS
4.1 In consideration of the continued display of the Links and Code and introducing Customers and subject to clause 15 of this Agreement, you will be entitled to payment on the following terms.
4.2 You will be able to indicate your initial preferred payment option (“Commission Option”) in your Application. The chosen option will be confirmed by Betfair if Betfair accepts your Application.
4.3 Subject to these terms, if you select a Revenue Share Betfair shall pay you in respect of each Customer:
(a) the agreed percentage of Net Exchange Commission and Net Multiples Winnings for a period of 60 months from the date of first registration if such Customer is introduced on or after 1 December 2013;
(b) the agreed percentage of Net Exchange Commission and Net Multiples Winnings for a period of 36 months from the date of first registration if such Customer is introduced on or after 1 August 2011 but before 1 December 2013;
(c) the agreed percentage of Net Exchange Commission and Net Multiples Winnings for a period of 12 months from the date of first registration if such Customer is introduced before 1 August 2011;
(d) the agreed percentage of Net Fixed Odds Winnings for as long as a Customer has an account with Betfair or a Group Company if such Customer is introduced on or after 1/11/12; and
(e) the agreed percentages of Net Arcade Winnings, Net Bingo Winnings, Net Games Commission, Net Poker Rake and Net Casino Winnings for as long as a Customer has an account with Betfair or a Group Company.
4.4 If you are paid by Betfair on a Revenue Share basis and you do not introduce any Customer for a period of three (3) consecutive months, Betfair reserves the right to pay you no more than 5% of Net Revenue in respect of Customers introduced by you until you introduce a total of three new Customers, at which point (after the introduction of the third Customer) your rate of commission will revert to the level it was before it was reduced in accordance with this clause.
4.5 If you select a Bounty Payment Betfair shall pay you the selected payment or current standard payment which is payable in accordance with the terms on the Affiliate Programme Site.
4.6 If you select a Hybrid Payment Betfair shall pay you:
(a) the selected hybrid bounty payments payable in accordance with the terms on Affiliate Programme Site;
(b) the selected percentage of Net Exchange Commission and Net Multiples Winnings for a period of 36 months from the date of first registration of each Customer if such Customer is introduced on or after 1 August 2011; and
(c) the selected percentages of Net Arcade Winnings, Net Bingo Winnings, Net Games Commission, Net Poker Rake and Net Casino Winnings for as long as each Customer has an account with Betfair or a Group Company.
4.7 You may request to change your Commission Option via the Affiliate Programme Site no more than once every calendar month. Betfair may accept or reject any such request in its complete discretion. If your request is accepted the new Commission Option will come into effect on the 1st of the following calendar month and will only apply to Customers introduced after that date.
4.8 Betfair may withdraw a Commission Option at any time by giving notice to you. You will then be required to select another Commission Option via the Affiliate Programme Site which will apply to any Customers whose date of first registration is on or after your date of selection.
4.9 You will be able to review statements showing the number of Customers introduced by you via the Links or using the Code and Affiliate Payments, if any, which have accrued over the course of the calendar month, using the Affiliate Programme Site. Such statements are for information purposes only. Betfair will endeavour to ensure that such statements will be updated daily but is under no obligation to do so. Provided that you have reached the threshold set out in clause 4.10, Betfair will, at the end of a calendar month, inform you of the amount of the Affiliate Payments, if any, for the preceding calendar month (the "Amount Due").
4.10 In the event that the Amount Due for a calendar month is a negative amount, Betfair may, but will not be obliged to, carry forward and set off such negative amount against Amounts Due for future months which would otherwise be payable to you. If the Amount Due for a particular calendar month does not exceed 50 GBP or the equivalent in any other currency, Betfair will be entitled to withhold and carry forward such amount to the end of the next calendar month in which the Amount Due (including any sums carried forward in this way) exceeds 50 GBP or the equivalent in any other currency, at which time payment shall be made in accordance with clause 4.11.
4.11 Subject to clause 4.10 Amounts Due to you in respect of a calendar month will,
(a) in the event that you are registered for VAT or any equivalent tax in the jurisdiction in which you are based, be paid within 30 days of either (i) Betfair issuing you an invoice for the amount due under the self-billing arrangements described in clause 6 below; or (ii) receipt of your invoice for the amount due; or
(b) if you are not registered for VAT or any equivalent tax in the jurisdiction in which you are based, be paid within 30 days of the end of such calendar month or, if Betfair requires an invoice in respect of the services, within 30 days of either (i) Betfair issuing you an invoice for the amount due under the self-billing arrangements described in clause 6 below; or (ii) receipt of your invoice for the amount due.
4.12 All payments made to you by Betfair under this Agreement are
(a) deemed inclusive of any VAT or other tax payable;
(b) will be paid in pounds sterling; and
(c) will not be paid to any Betfair account.
4.13 Late payment of any amounts due under this Agreement will be subject to interest payable at the then current base rate of the Royal Bank of Scotland plus two (2) percent per annum.
4.14 In the event that a Customer:
(a) has been introduced in breach of any term of this Agreement;
(b) makes an initial deposit which is subject to a chargeback or which is reversed for any other reason;
(c) uses your Refer and Earn code or that of a member of your Immediate Family (or the code relating to any similar or replacement Betfair customer referral scheme) when signing up for an account;
(d) opens an account using a promotional code which you have promoted and which is either expired or has not been approved by Betfair for you to promote;
(e) fails any identity or credit checks carried out by Betfair or on its behalf;
(f) is located in a territory from which the Betfair and its Group Companies does not accept customers;
(g) is suspected by Betfair of (i) acting in breach of the terms and conditions governing his/her account, betting/gaming transactions, and/or any marketing promotion; or (ii) any fraudulent or dishonest activity;
(h) has their account closed within 25 Business Days of the account opening; or
(i) becomes known to Betfair as a person who does not properly fall within the definition of a “Customer”, being a person who had already opened an account with Betfair or a Group Company at the time he/she opened an account by using a Code or by clicking on the Links on the Internet Site
you will not be entitled to receive any Affiliate Payments in respect of such Customer. In the event that any such payment has already been made to you in respect of such Customer you will promptly repay the amount paid on receiving notice from Betfair. Betfair will be entitled, but not obliged, to set-off any amount owed as a result against future Affiliate Payments.
4.15 Betfair will pay the agreed affiliate commission on customers acquired from global territories by .com domains, except from the countries that are listed below: Belgium, Canada, China/Hong Kong, Cuba , Czech Republic, DR Congo, Eritrea, France, Greece, Greenland, Iran, Iraq, Israel, Ivory Coast, Japan, Lebanon, Libya, Netherlands, N. Korea, Slovenia, S. Africa, Somalia, Sudan, Turkey & USA.
Affiliate traffic from sites with country-specific domains will be accepted only from the following countries: Argentina, Australia, Belize, Brazil, Bulgaria, Cambodia, Canada, Chile, Costa Rica, Croatia, Denmark, Estonia, Finland, Georgia, Hungary, Indonesia, Ireland, Italy, Latvia, Lithuania, Luxembourg, Macau, Malaysia, Montenegro, Norway, Panama, Peru, Philippines, Poland, Romania, Russia, Serbia, Singapore, Slovakia, Spain, Sweden, Switzerland, UK & Vietnam
5. PAYMENTS IN RESPECT OF SUB-AFFILIATES
5.1 In addition to payments to be made under clause 4 above, where a new affiliate registers for the Affiliate Programme for the first time via the Links (a “Sub-Affiliate”) you will be entitled to a payment equivalent to the percentage notified to you via the Affiliate Programme Site, of any payments made to such Sub-Affiliate under its affiliate agreement with Betfair.
5.2 Sub-Affiliates may not be directly or indirectly owned or controlled by you or your Immediate Family and you shall not be entitled to any payment under this Agreement in relation to such a Sub-Affiliate.
5.3 In the event that any Affiliate Payment to a Sub-Affiliate is reclaimed under the terms of its agreement with Betfair or payments are made to you in breach of clause 5.2 above you will promptly repay the amount paid on receiving notice from Betfair. Betfair will be entitled, but not obliged, to set-off any amount owed as a result against future payments under this Agreement.
5.4 All payments under this clause will terminate when payments to the relevant Sub-Affiliate end for whatever reason.
5.5 Betfair may change the level of any payment due under clause 5.2 above in respect of future Sub-Affiliates you refer at any time by giving notice to you.
5.6 Payments under this clause will be made in accordance with clauses 4.10 to 4.13 above.
6. INVOICING/SELF BILLING
6.1 Betfair will notify you if it decides, in its absolute discretion, to raise invoices on your behalf in respect of the services you supply under this Agreement as part of a self-billing arrangement.
6.2 In the event that Betfair notifies you that it will raise invoices on your behalf and you are VAT registered in a member state of the European Union, you agree:
(a) that Betfair will raise invoices in respect of the services you supply under this Agreement as part of a self-billing arrangement;
(b) not to raise any invoices for services provided under this Agreement while the self-billing arrangements are in place;
(c) that you will accept each self-billed invoice issued by Betfair in respect of the services provided by you under this Agreement;
(d) to immediately notify Betfair in the event that
(i) your VAT number changes;
(ii) you are no longer registered for VAT; or
(iii) your business is transferred as a going concern.
6.3 The arrangements set out in clause 6.2 above will last for the duration of the Agreement and any subsequent period during which you receive payments under this Agreement.
Betfair makes no representation that any of its services, or those provided by any Group Company, will be uninterrupted or error free and, to the fullest extent permissible by law, it will not be liable for the consequences of any such interruptions or errors.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 All IPR in the Links belongs to TSEL. All IPR in any third party materials shall belong to the third party owner thereof.
8.2 Nothing in this Agreement purports to grant a licence, provide any warranty or offer any indemnity in respect of any data that is not owned by Betfair or a Group Company. In the event that you require access to any such data, you agree that you will give Betfair an opportunity to secure rights to the same and (if it becomes necessary to do so) you will pay the costs of securing a licence to the same from the relevant third party data owner or either party may terminate this Agreement immediately.
8.3 Each party shall immediately notify the other party if any claim or demand is made or action brought against it for any infringement or alleged infringement of any IPR which may affect the supply or use of the Links.
9. DATA PROTECTION AND SECURITY
9.1 You acknowledge that the security of Betfair's data and its systems is fundamental to the business of Betfair and its Group Companies, and if you become aware of a breach or potential breach of security relating to the Links, you will immediately notify Betfair of such breach or potential breach and use your best endeavours to ensure that any potential breach does not become an actual breach and/or to remedy any actual breach and its consequences.
9.2 You warrant that you will at all times comply with the provisions of the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 and any equivalent legislation in any jurisdiction which is applicable to the Internet Site and your activities.
10. CONFIDENTIALITY AND ANNOUNCEMENTS
10.1 During the term of this Agreement and after termination or expiration of this Agreement, each party shall not use any Confidential Information belonging to the other party for any purpose other than in pursuance of its rights and obligations under this Agreement nor disclose any of the other party’s Confidential Information to any person except with the prior written consent of the other party and shall follow Good Industry Practice to prevent the use or disclosure of the Confidential Information. This obligation will not apply to any Confidential Information that
(a) has come into the public domain other than by breach of this Agreement, or any other duty of confidence;
(b) is obtained from a third party without breach of this clause or any other duty of confidence;
(c) has been disclosed to a party by a third party, other than a company within its Group not in breach of any duty of confidence;
(d) is trivial or obvious;
(e) is required to be disclosed by law or other regulatory requirement provided notice is given to the other party prior to disclosure where legal to do so; or
(f) is in the possession of the Party at the time the Confidential Information was disclosed to it by any other party or which is independently developed without reference to any Confidential Information of the other party.
10.2 Each party may disclose any Confidential Information to its directors, other officers, employees, advisers and sub-contractors and to those of any company in its Group to the extent that such disclosure is reasonably necessary in order to comply with its obligations under this Agreement and provided that they are subject to equivalent confidentiality obligations as those set out in this clause.
10.3 On termination of this Agreement each party shall (on request) deliver up to the other party or destroy all copies of Confidential Information in its possession, and (if so requested) shall use all reasonable endeavours to destroy all copies of Confidential Information stored electronically except to the extent that it is obliged to retain such information under any law, regulation or licence condition applicable to that party or any company in its Group.
10.4 The parties shall together determine the content of any communications concerning the relationship between the parties. Such communications shall be issued at a time and in a manner agreed by the parties.
You will indemnify and hold harmless Betfair, its Group Companies and Arnold Media from and against any and all losses, demands, claims, damages, costs, expenses (including consequential losses and loss of profit, reasonable legal costs and expenses and VAT thereon if applicable) and liabilities suffered or incurred, directly or indirectly, by Betfair or Arnold Media in consequence of any breach by you of your obligations under this Agreement.
12. LIMITATION OF LIABILITY
12.1 Save as provided by statute and to the fullest extent permitted by law, the following provisions set out the entire liability of Betfair, its Group Companies and Arnold Media (including any liability for the acts and omissions of its employees, agents and sub-contractors) to you whether in contract, tort, statute, equity or otherwise:
(a) you acknowledge and agree that (except as expressly provided in this Agreement) the Links, Affiliate Programme Site and all Betfair and its Group Companies products are provided "AS IS" without warranties of any kind (whether express or implied);
(b) all conditions, warranties, terms and undertakings (whether express or implied), statutory or otherwise relating to the delivery, performance, quality, accuracy, uninterrupted use, fitness for purpose, occurrence or reliability of the Links or the Affiliate Programme Site are hereby excluded; and
(c) neither Betfair, its Group Companies nor Arnold Media will be liable to you for any losses relating to your use of the Links or the Affiliate Programme Site or any breach of this Agreement by Betfair including loss of profits (whether direct or indirect), revenues, goodwill, anticipated savings, data or any type of special, indirect, consequential or economic loss (including loss or damage suffered by you as a result of an action brought by a third party) even if such loss was reasonably foreseeable or Betfair, its Group Companies or Arnold Media had been advised of the possibility of you incurring such loss.
12.2 No exclusion or limitation set out in this Agreement shall apply in the case of:
(a) fraud or fraudulent misrepresentation;
(b) death or personal injury resulting from the negligence of any party or any of its employees, agents or sub-contractors; and/or
(c) any breach of the obligations implied by (as appropriate) section 12 of the Sale of Goods Act 1979, section 2 of the Supply of Goods and Services Act 1982 or section 8 of the Supply of Goods (Implied Terms) Act 1973.
12.3 The time limit within which you must commence proceedings against Betfair to recover on any claim shall be 2 years from the date you become aware or should reasonably have become aware of the relevant breach that would form the subject of the claim.
13. FORCE MAJEURE
13.1 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, and in such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 15 Business Days, the party not affected may terminate this Agreement immediately by giving notice to other party.
14. TERM AND TERMINATION
14.1 This Agreement shall commence on the Commencement Date and, subject to clause 14.2, shall continue until either party serves 20 Business Days’ written notice of an intention to terminate.
14.2 Betfair may terminate this Agreement immediately in the event that:
(a) the Affiliate breaches any of the terms of this Agreement which, in the case of a breach capable of remedy, has not been remedied within five (5) Business Days of receipt of a notice from Betfair specifying the breach and requiring its remedy;
(b) the Affiliate suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due, begins negotiations for or makes any voluntary arrangement with its creditors, becomes subject to an administration order, has an administrative receiver or receivers appointed in respect of the whole or any part of its assets, goes into liquidation (voluntary or otherwise save for any voluntary liquidation entered into solely for the purposes of a bona fide reconstruction or amalgamation);
(c) the Affiliate is made the subject of a bankruptcy petition or order;
(d) the Affiliate ceases or threatens to cease carrying on its business;
(e) the Affiliate, in Betfair’s opinion, is in breach of the terms of any applicable advertising code of practice including the CAP code and any voluntary codes Betfair has agreed to abide by;
(f) Betfair ceases to accept Customers from or to advertise in any jurisdiction which is targeted by the Internet Site; (g) the Affiliate is in the employment of Betfair or any Group Company at any time after the Commencement Date;
(h) fails to change the web address of the Internet Site on Betfair’s request in accordance with clause 3.1(e); or
(i) Betfair determines that the Internet Site is generating fraudulent traffic or that the Affiliate is engaged in collusion with any other person. Collusion in this context means an attempt by an Affiliate, a group of Affiliates, or a group which includes individuals who are not Affiliates under the Affiliate Programme to create fraudulent income with a coordinated effort.
14.3 Clauses 14.2(b) and (c) will apply if any event occurs, or proceeding is taken, with respect to the Affiliate in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in those clauses.
15. CONSEQUENCES OF TERMINATION
15.1 Except as set out in clause 15.3 below, termination of this Agreement shall be without prejudice to any rights or obligations which shall have accrued prior to termination.
15.2 On termination of this Agreement all licences granted to you pursuant to this Agreement will immediately terminate.
15.3 If Betfair terminates this Agreement under clause 14.2 or you terminate this Agreement under clause 14.1 (except when you do so following a material variation to the terms of the Agreement under clause 19.3) you will not be entitled to receive any further payments pursuant to clauses 4 and 5 following such termination.
15.4 Clauses 10, 11, 12 and 23 together with any other clauses the survival of which is necessary for the interpretation or enforcement of this Agreement will survive termination of this Agreement for whatever reason.
16. ASSIGNMENT AND SUB-CONTRACTING
16.1 You will not assign, novate, declare a trust of or otherwise dispose of this Agreement, or any part thereof, without the prior written approval of Betfair.
16.2 Betfair may assign or sub-contract any of its rights and obligations under this Agreement to a Group Company at any time without giving notice to you.
17. ENTIRE AGREEMENT
This Agreement constitutes the entire and only Agreement between the parties with regards to its subject matter and the parties confirm that they have not been induced to enter into this Agreement in reliance upon, nor has it been given, any warranty (including in particular any warranty as to merchantability, fitness for purpose or uninterrupted functionality), representation, statement, assurance, covenant, agreement, undertaking, indemnity or commitment of any nature whatsoever other than as are expressly set out in this Agreement and, to the extent that it has been, it unconditionally and irrevocably waives any claims, rights or remedies which it might otherwise have had in relation thereto.
18. NO AGENCY OR PARTNERSHIP
18.1 Nothing in this Agreement and no action taken by the parties pursuant to this Agreement shall constitute, or be deemed to constitute:
(a) the parties as a partnership, association, joint venture or other co-operative entity; or
(b) 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.
19. WAIVER & VARIATIONS
19.1 No breach of any provision of this Agreement shall be waived or discharged except with the express written consent of the parties.
19.2 No failure or delay by a party to exercise any of its rights under this Agreement shall operate as a waiver thereof and no single or partial exercise of any such right shall prevent any other or further exercise of that or any other right.
19.3 Betfair may modify all or any part of this Agreement at any time. Betfair will give you five (5) Business Days notice of any such changes. If you do not agree to the changes you may serve notice to terminate this Agreement under clause 14.1 before the changes take effect and such changes will not apply for the duration of the notice period set out in clause 14.1. If you fail to terminate this Agreement and continue to participate in the Affiliate Programme you will be deemed to have accepted the changes made under this clause. The latest modified date of these terms and conditions will be displayed at the bottom of this Agreement.
20.1 Notices and communications from Betfair will be made by e-mail to the address provided by you on your application to join the Affiliate Programme.
20.2 You should send all notices and communications to the following email address email@example.com or such other e-mail address as notified to you via the Affiliate Programme Site from time to time.
20.3 Notices and communications will be deemed received 4 hours after being sent provided that if such notice would then be deemed to have been received outside the hours of 09:00 to 17:00 (UK time) it will be deemed to have been received at 09:00 on the next Business Day.
21. THIRD PARTY RIGHTS
21.1 Except for any Group Company and Arnold Media no third party may enforce any rights granted to it under this Agreement. Except as mentioned above the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement and no rights or benefits expressly or impliedly conferred by it shall be enforceable under that Act against the parties to it by any other person.
21.2 Except with regard to the amendment of clauses 10 and 11 the rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement is not subject to the consent of any person that is not a party to this Agreement.
22. FURTHER ASSURANCE
Each party shall, upon request from the other, do and execute, or procure that there shall be done and executed, all such documents, deeds, matters, acts or things as that other may at any time require to give it the full benefit of this Agreement.
23. GOVERNING LAW AND JURISDICTION
23.1 This Agreement (and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this Agreement or its formation) shall be governed by and construed in accordance with English law and the parties hereby irrevocably submit to the non-exclusive jurisdiction of the courts of England and Wales.
LAST AMENDED DATE: 28th October 2016