It is important that you read and understand this Agreement. By ticking the box on the application form you are making an application to join the Affiliate Programme and agreeing (subject to our approval of your application) 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 in relation to any Customers introduced via the Links.
1. 1 DEFINITIONS AND INTERPRETATION
"Affiliate Programme Site" means the website at www.betfairaffiliates.com.
“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) on which banks generally are open in the City of London for the transaction of normal banking business;
“Bounty Payments” means any bounty payments made under clauses 4.3 or 4.4 below;
"Casino Link" means a hypertext link downloaded from the Affiliate Programme Site that links to the Betfair Casino’s home page at www.betfaircasino.com so as to enable a person to download and play Betfair Casino’s person to person Casino product;
"Commencement Date" means the date on which Betfair confirms that the Affiliate’s application to join the Affiliate Programme has been accepted;
"Commercialise" means sell, rent, lease or license;
"Confidential Information" means all information which is not publicly known and that is disclosed (by whatever means, directly or indirectly) by one party to another, whether before or after the Commencement Date including any information relating to the IPR, products, operations, processes, plans, intentions, product information, each party's customer data the terms of this Agreement, market opportunities or business affairs of the disclosing party or any of its sub-contractors, suppliers, customers, clients or other contacts;
“Customers” means all Betfair account holders who sign up with Betfair (for the first time) via the Internet Site and the Links;
"Exchange Link" means a hypertext link downloaded from the Affiliate Programme Site that links to the Betfair betting exchange’s home page at www.betfair.com so as to enable a person to register and place bets on the Betfair betting exchange;
"Force Majeure" means any event outside the reasonable control of a party affecting its ability to perform any of its obligations under this Agreement;
"Games Link" means a hypertext link downloaded from the Affiliate Programme Site that links to the Betfair games’ home page at www.betfairgames.com so as to enable a person to register and place bets on the Betfair exchange games;
"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" means, in relation to a company, any entity directly or indirectly controlling, controlled by or under common control of a party;
"Internet Site" means your website or websites located at the web address provided to us 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 the Exchange Link, the Poker Link, the Casino Link and the Games Link.
"Net Exchange Commission" means total commission generated by Betfair from exchange betting via the www.betfair.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 but not limited to any sign up bonuses), payments to any sporting bodies (including but not limited to any football governing bodies and the British Horse Racing Board 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 Games Commission" means total commission generated by Betfair from 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 but not limited to 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 Commission" means total commission generated by Betfair from multiples betting via the www.betfair.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 but not limited to any sign up bonuses), payments to any sporting bodies (including but not limited to any football governing bodies and the British Horse Racing Board 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 commission generated by Betfair Poker from its person to person poker product accessible via the www.betfairpoker.com website less any payments to third party software providers, the cost of any promotional offers (including but not limited to 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 Exchange Commission, Net Multiples Commission, Net Games Commission, Net Poker Rake and Net Casino Winnings produced by Customers;
"Net Casino Winnings" means total winnings generated by Betfair Casino from its casino product as accessible via the www.betfaircasino.com website less any payments to third party software providers, the cost of any promotional offers (including but not limited to 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;
"parties" means the parties to this Agreement;
"Poker Link" means a hypertext link downloaded from the Affiliate Programme Site that links to the Betfair Poker’s home page at www.betfairpoker.com so as to enable a person to download and play Betfair Poker’s person to person poker product; and
“TSED” means The Sporting Exchange Development 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) the singular includes the plural and vice versa; and
(c) 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. LICENCE
2.1 In consideration of you making use of the Links on the Internet Site and subject to the terms and conditions of this Agreement, Betfair will procure that TSED grants to you 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) Commercialise the Links other than on the Internet Site;
(b) display data from the Links via any electronically accessible medium other than the Internet Site without the express written consent of Betfair; and/or
(c) use the Links in a way which proves or is likely to prove detrimental to Betfair.
3. AFFILIATE’S OBLIGATIONS
3.1 You warrant and undertake that:
(a) you have full capacity and authority and all necessary licences, permits and consents 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 comply with Betfair's security guidelines and requirements as may be issued by Betfair from time to time whether in writing or otherwise;
(d) all information you provided in applying to join the Affiliate Programme Site is correct and that you will notify us promptly of any changes;
(e) you will keep secret and not allow anyone else to use your login and password details for the Affiliate Programme Site;
(f) the Internet Site, or any part thereof, is not aimed at people under 18 years of age;
(g) you will not directly or indirectly offer any potential Customer any incentive (including, without limitation, payment of money or other benefit) to use the Links on the Internet Site;
(h) you have obtained and will maintain in force all necessary registrations, authorisations, consents and licences to enable you to fulfil its obligations under this Agreement and that you will fully comply with, and shall continue to fully comply with, all applicable laws and regulations;
(i) 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;
(j) you will not seek to challenge the validity of TSED’s IPR or IPR belonging to any other company within Betfair’s Group; and
you will not:
(i) register any domain names or register keywords, search terms or other identifiers for use in any search engine, portal, sponsored advertising service or other search or referral service; or
(ii) include metatag keywords on the Internet Site
that incorporate terms which are identical or similar to TSED’s trade marks (or trade marks owned by other companies in Betfair’s Group) and you will at all times comply with such reasonable guidelines for the use of Betfair trade marks as may be issued from time to time;
3.2 You agree that
(a) neither you nor your immediate family or friends may become Customers and you shall not be entitled to any payment under this Agreement in relation to such family or friends. Immediate family in this context means your spouse, partner, parent, child or sibling; and
(b) we may monitor the Internet Site to ensure you are complying with the terms of this Agreement and you will provide us with all data and information (including, but not limited to, passwords) to enable us to perform such monitoring at no cost to us.
4. PAYMENT
4.1 You will be able to indicate your preferred payment option when applying to join the Affiliate Programme. The chosen option will be confirmed by us if we accept your application. If you selected revenue share then payments will be made in accordance with clause 4.2 below. If you selected a bounty payment then payments will be made in accordance with clause 4.3 below. If you selected a hybrid payment then payments will be made in accordance with clause 4.4 below. For the avoidance of doubt payments will only be made in respect of Customers introduced using the Links downloaded from the Affiliate Programme Site and no other links previously provided by Betfair or obtained from any other source.
4.2 Except where otherwise agreed in writing if you selected a revenue share you will receive (i) the selected percentage of Net Exchange Commission and Net Multiples Commission for a period of 12 months from the first registration of the Customer; and (ii) the selected percentages of Net Games Commission, Net Poker Rake and Net Casino Winnings for as long as the Customer is a Betfair account holder.
4.3 Except where otherwise agreed in writing if you selected a bounty payment you will receive the selected standard payment or payments which are payable in accordance with the terms on Affiliate Programme Site;
4.4 Except where otherwise agreed in writing if you selected a hybrid payment you will receive (i) the selected hybrid bounty payment or payments which is payable in accordance with the terms on Affiliate Programme Site; (ii) the selected percentage of Net Exchange Commission and Net Multiples Commission for a period of 12 months from the first registration of the Customer; and (iii) the selected percentages of Net Games Commission, Net Poker Rake and Net Casino Winnings for as long as the Customer is a Betfair account holder .
4.5 You may request to change your chosen 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.
4.6 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 for any further Customers you introduce.
4.7 You will be able to review statements showing the number of Customers introduced by you via the Links and your share of Net Revenue and/or Bounty Payments, if any, which have accrued over the course of the calendar month, using the Affiliate Programme Site. Such statements shall be updated daily and are for information purposes only. Provided that you have reached the Revenue Share threshold set out in clause
4.8, Betfair will, at the end of a calendar month, inform you of your total share of Net Revenue and/or Bounty Payments, if any, for the preceding calendar month ("Revenue Share").
4.9 Subject to clause 4.8 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 Betfair receiving 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 in its complete discretion requires you to provide an invoice, within 30 days of receipt of such invoice .
4.10 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.
4.11 For the avoidance of doubt if Betfair makes a payment under this clause 4 which later transpires not to have been due Betfair may deduct such amounts from any future payments due to you under this agreement.
5. DISCLAIMER
Betfair makes no representation that any of its services 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.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All IPR in the Links belongs to TSED. All IPR in any third party materials shall belong to the third party owner thereof.
6.2 Nothing in this Agreement purports to grant a license, provide any warranty or offer any indemnity in respect of any data that is not owned by Betfair. In the event that you require access to any such data, you agree that you will give us 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.
7. NOTIFICATION
7.1 Either 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.
8. DATA PROTECTION AND SECURITY
8.1 You acknowledge that the security of Betfair's data and its systems is fundamental to the business of Betfair 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 remedy any actual breach and its consequences.
8.2 You warrant that you will at all times comply with the provisions of the Data Protection Act 1998 and the Electronic Communications (EC Directive) Regulations 2003 and any equivalent applicable legislation in the jurisdiction in which you operate.
9. CONFIDENTIALITY AND ANNOUNCEMENTS
9.1 During the term of this Agreement and after termination or expiration of this Agreement, the parties will not use any Confidential Information for any purpose other than in pursuance of their rights and obligations under this Agreement nor disclose any 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.
9.2 The parties may disclose any Confidential Information to their directors, other officers, employees, advisers and sub-contractors to the extent that such disclosure is reasonably necessary and in accordance with the requirements set out in clause 9.1.
9.3 On termination the parties 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.
9.4 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.
10. INDEMNITY
You will indemnify and hold harmless Betfair, TSED and Arnold Media from and against any and all losses, demands, claims, damages, costs, expenses (including, but not limited to, 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. This clause will survive termination of this Agreement for whatever reason.
11. LIMITATION OF LIABILITY
11.1 Save as provided by statute and to the fullest extent permitted by law, the following provisions set out the entire liability of Betfair, TSED 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 agrees that (except as expressly provided in this Agreement) the Links and Affiliate Programme Site 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 to the fullest extent permitted by law; and
(c) Neither Betfair, TSED nor Arnold Media will be liable to you for any losses relating to your use of the Links or the Affiliate Programme Site including but not limited to loss of profits (whether direct or indirect), loss of contracts or goodwill, lost advertising, loss of 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, TSED or Arnold Media had been advised of the possibility of you incurring such loss.
11.2 No exclusion or limitation set out in this Agreement shall apply in the case of:
(a) fraud or fraudulent concealment;
(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.
11.3 The time limit within which you must institute suit against Betfair to recover on any claim shall be 2 years from the date the Affiliate should reasonably have become aware or becomes aware of the relevant breach that would form the subject of the claim.
11.4 This clause 11 will survive the termination of this Agreement for whatever reason.
12. FORCE MAJEURE
12.1 If either party is affected by Force Majeure it shall notify the other party in writing of the matters constituting the Force Majeure and shall keep that party informed of their continuance and of any relevant change of circumstances whilst such Force Majeure continues. Neither party shall have any liability to the other in respect of an event of Force Majeure provided it complies with clause 12.2.
12.2 The party affected by Force Majeure shall take all reasonable steps available to it to minimise the effects of Force Majeure on the performance of its obligations under this Agreement.
13. TERM AND TERMINATION
13.1 This Agreement shall commence on the Commencement Date and, subject to clause 13.2, shall continue until either party serves 20 Business Days written notice of an intention to terminate.
13.2 Betfair may terminate this Agreement immediately in the event that the Affiliate
(a) breaches any of the terms of this Agreement which, in the case of a breach capable of remedy, has not been remedied within seven days of receipt of a notice from Betfair specifying the breach and requiring its remedy;
(b) is unable to pay its debts as they fall due or make any voluntary arrangement with its creditors, become subject to an administration order, have an administrative receiver or receivers appointed in respect of the whole or any part of its assets, go into liquidation (voluntary or otherwise save for any voluntary liquidation entered into solely for the purposes of a bona fide reconstruction or amalgamation) or be made the subject of a bankruptcy order or ceases or threatens to cease carrying on its business;
(c) in Betfair’s opinion, is in breach of the terms of any applicable advertising code of practice; or
(d) does not introduce any new Customer to Betfair for a period of four (4) months.
14. CONSEQUENCES OF TERMINATION
14.1 Except as set out in clause 14.3 below termination of this Agreement shall be without prejudice to any rights or obligations which shall have accrued prior to termination.
14.2 On termination of this Agreement all licences granted by TSED to the Affiliate pursuant to this Agreement will immediately terminate.
14.3 If Betfair terminates this Agreement under clause 13.2 the Affiliate will not be entitled to receive any further payments pursuant to clause 4 following such termination.
15. ASSIGNMENT AND SUB-CONTRACTING
15.1 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.
15.2 Betfair may assign or sub-contract any of its rights and obligations under this Agreement to another company within its Group at any time on giving notice to you.
16. 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.
17. NO PARTNERSHIP
Nothing in this Agreement and no action taken by the parties pursuant to this Agreement shall constitute, or be deemed to constitute, the parties as a partnership, association, joint venture or other co-operative entity.
18. WAIVER & VARIATIONS
18.1 No breach of any provision of this Agreement shall be waived or discharged except with the express written consent of the parties.
18.2 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.
We may modify all or any part of this Agreement at any time. We will give you 7 days notice of any such changes. If you do not agree to the changes you may serve notice to terminate this agreement under clause 13.1 before the changes take effect and such changes will not apply for the duration of the notice period set out in clause 13.1. 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.
19. NOTICES
19.1 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.
19.2 You should send all notices and communications to the following email address affiliates@betfair.com or such other e-mail address as notified to you via the Affiliate Programme Site from time to time.
19.3 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.
20. THIRD PARTY RIGHTS
20.1 Except for any company within Betfair’s Group 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.
20.2 Except with regards 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.
21. 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.
22. GOVERNING LAW AND JURISDICTION
22.1 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 jurisdiction of the courts of England and Wales.
LAST AMENDED DATE: 15 October 2007