Play North’s Affiliate Program’s Terms & Conditions
18/07/2024
1. Definitions and interpretations
Account Representative means the details of the person who shall act as the account representative and contact person for the Affiliate.
Affiliate means the legal person who applies to participate in the Affiliate Program to provide the Services to the Company.
Agreement means these terms and conditions in its entirety including any and all annexes or addendums attached hereto, whether part of the document upon signature or added at a later time. binding the Affiliate and the Company (also referred to as “Terms and Conditions”).
Affiliate Application Process means the signing up process to the Affiliate Program that includes the filling in and signing of the Affiliate Due Diligence Form, the provision of the Due Diligence Documentation, the acceptance of the Agreement and the approval of the Company in writing.
Affiliate Payments means monthly payments owed to the Affiliate in relation to the marketing Services provided to the Company.
Affiliate Program means the collaboration between the Company and the Affiliate, whereby the Affiliate promotes the Company’s Brands and provides the Services and thereby is paid a commission as defined under the Agreement. The Affiliate Program includes acceptance of and compliance with i) the Terms and Conditions ii) the Affiliate Due Diligence Form.
Affiliate Due Diligence Form means the signup form in which personal information is collected from the Affiliate and the declaration signed.
Affiliate Website/s means the website/s that the Affiliate have included in Section 3 of the Affiliate Due Diligence Form and have subsequently been approved by the Company in writing.
Applicable Laws means the laws that the Company or any of the third party that it is contracting with is obligated to follow whilst providing Services and consist of the following:
Applicable Laws in Malta means all laws of Malta or applicable to it which pertain to online gaming, to the extent relevant to marketing and advertising including but not limited to the Gaming Act, Gaming Commercial Communication Regulations, Gaming Player Protection Regulations, Consumer Affairs Act, Electronic Communications Act, European General Data Protection Regulation (“GDPR”) and the Maltese Data Protection Act , Prevention of Money Laundering and Funding of Terrorism Regulations.
Applicable Laws in the Netherlands means all laws of the Netherlands or applicable to it, which pertain to the offering of the games of chance, to the extent relevant to marketing and advertising, including but not limited to Betting and Gambling Act (Wet op de Kansspelen), Remote Gambling Decree (Besluit kansspelen op afstand) the Media Act (Mediawet), the Unfair Commercial Practices Act (Wet oneerlijke handelspraktijken), GDPR and the Dutch GDPR Implementation Act (Uitvoeringswet Algemene Verordening Gegevensbescherming), Telecom Act (Telecomwet), Decree and Regulation on the Acquisition, Advertising and Addiction Prevention of Games of Chance (Besluit en regeling werving, reclame en verslavingspreventie kansspelen), Guide to the Advertising of Games of Chance (Leidraad reclame voor kansspelen), Duty of Care Directive (Leidraad Zorgplicht), the Advertising Code for Games of Chance (Reclamecode voor de Kansspelen), the Dutch Advertising Code (Nederlandse Reclame Code), the Advertising Code for Social Media (branded content) (Reclamecode social media), the Code of Conduct for Games of Chance (Gedragscode voor kansspelen).
Brands means the websites via which the Company is licensed to operate under in the relative markets and consist of:
The MGA Brand:
1. www.pikakasino.com
The KSA Brand:
www.kansino.nl
Commission means the percentage of the Net Gaming Revenue paid as set out in the Commission Plans expressly agreed between the Company and the Affiliate.
Commission Plans means the plans available as to which the Affiliate will be paid.
Company means Play North LTD:
Play North LTD, is a company registered under the laws of Malta under the company registration number C86563, having its registered address at Level 1, The Centre Tigne Point,, Sliema, TPO 0001, Malta and is licensed and regulated by:
1. The Malta Gaming Authority (MGA), holding licence number MGA/B2C/775/2019, issued on 29/04/2020, to offer type 1 Gaming Services (the “MGA Licence”); and
2. The Kansspelautoriteit (KSA)/ The Netherlands Gambling Authority, holding licence number 1653/01.24 7.167 (the “KSA Licence”), issued on 29/10/2021, to offer Games of Chance.
Confidential Information means information relating but not limited to the business, know-how, designs, trade secrets, market opportunities, transactions, operations, customer affairs, personal data within the meanings of GDPR, data on products, services or underlying technology of the Company and/or the Affiliate Program (including referral fees earned by the Affiliate under the Program and this Agreement in whatever medium).
Data Processing Addendum means the Data Processing Addendum annexed to these Terms and Conditions and forming part of the same Agreement.
Due Diligence Documentation means the statutory and personal documentation requested from the Affiliate by the Company.
Dutch Themes means content which is tailored or is meant to reach out to residents of the Netherlands.
End-User/s means as applicable, the registered customers of the Company.
Referral End-User/s means as applicable, the registered customers of the Company via the Affiliate Website/s.
Material/s mean the marketing material provided by the Company to the Affiliate and includes but is not limited to text links, sub-affiliate links, banners and logos containing the Brand that is supplied through the Company’s websites, for the Affiliate to make use of to conduct its Services.
Minors, means persons below the age of 18 for the jurisdictions targeted under the KSA and the MGA licence..
Net Gaming Revenue (“NGR”) means Referral End Users’ bets less any winnings, bonuses (complimentary money, free money and other incentives), jackpot contribution, jurisdictional gaming duties, taxes and administration (including game providers and financial transactions) fees.
Parties means the Company and the Affiliate.
Services means the marketing services that the Affiliates engage in for the purposes of promoting any of the Brands of the Company.
Vulnerable Persons means minors or persons demonstrating an affinity for high-risk gaming behaviour, persons with an intellectual disability or young adults (persons between the ages of 18-24) or persons that are currently suffering from gambling addiction or persons that have a history of gambling addiction.
In this Agreement, unless the context otherwise requires words importing the singular shall include the plural and vice versa.
2. Purpose & Scope
2.1. This Agreement sets out the terms and conditions between the Company, and the Affiliate who has applied for the Affiliate Program.
2.2. The purpose of this Agreement is to reward enrolled Affiliates for promoting the Brands and for directing potential end-users to the Company’s Brands in accordance with the Applicable laws and to regulate the Parties’ obligations.
2.3. The Affiliate may be promoting either one or multiple Brands of the Company. Whilst the Clause 4 of this Agreement is applicable for the promotion of all the Brands, the Affiliate is further obliged to abide by Clauses 5, 6 or 7 or all, depending on which Brand it has been approved to promote by the Company.
3. Effectiveness
3.1. By completing the Affiliate Application and ticking the “I agree to the terms and conditions” tickbox and signing the Affiliate Due Diligence Form, the Affiliate is agreeing with this Agreement which shall only become effective when the Affiliate Application is accepted by the Company in writing.
3.2. For the avoidance of any doubt, the Company reserves the right to refuse any Affiliate Applications to enroll in the Affiliate Program or request further documentation or information to reprocess the Affiliate Application. Once a decision is reached by the Company, this is deemed to be final and is not open for appeals from the Affiliates.
3.3. Upon acceptance of the Agreement, the Affiliate understands that the Company may at any time (directly or indirectly) solicit potential customer referrals on terms that may differ from those contained in this Agreement or operate websites that are similar to the Affiliate Websites or that compete with the Affiliate Websites.
4. Affiliate’s Obligations and Responsibilities
4.1. The Affiliate agrees and acknowledges that:
4.1.1. it is only permitted to make use of Materials provided by the Company. For all other content or materials that are not designed by the Company, the Affiliate shall obtain written approval of the Company and shall ensure that it is at all times in compliance with Clause 9 of this Agreement;
4.1.2. any presentation of content that is not part of the Material provided to the Affiliate that is deemed to be unsuitable by the Company may result in the termination of this Agreement with immediate effect and for Clause 14 to be invoked by the Company;
4.1.3. where applicable, it shall notify to end users that the Company is the licence holder in the relevant jurisdictions;
4.2. The Affiliate hereby warrants and undertakes:
4.2.1. its employees possess the required knowledge of the Applicable laws to the extent relevant to providing the Services including that no person shall be allowed to participate in the games of chance unless at least 18 years of age ;
4.2.2. that the information provided to the Company during the Affiliate Application Process and on the Affiliate Due Diligence Form is accurate, complete and that such information shall always be kept up to date by the Affiliate;
4.2.3. to provide the Company with any information reasonably required for due diligence and compliance purposes within the framework of the Services and the Agreement, on an yearly basis and in any case, upon the Company’s request;
4.2.4. To comply with any written instructions given by the Company for compliance purposes at all times;
4.2.5. to provide the age demographics of the Affiliate Website/s users to the Company in a correct manner and keep the Company up to date of any changes that take place;
4.2.6. to only promote the Brands on the Affiliate Websites that have been approved by the Company;
4.2.7. to record and provide the Company with all the advertising/promotion displayed on any of the Affiliate Website/s and present it to the Company quarterly or upon request made by the Company;
4.2.8. to only promote the Brand/s and provide the Services in accordance with the Applicable Laws;
4.2.9. to not to actively target the Company’s content and its promotion in jurisdictions where gambling and its promotion is illegal, or any other jurisdictions as may be advised by the Company from time to time;
4.2.10. that the Affiliate Websites used to promote the Brands are not:
i) aimed at children;
ii) aimed at vulnerable groups;
ii) promoting violence;
iii) containing any pornographic or narcotic material;
iv) promoting discrimination based on race, sex, religion, nationality, disability, sexual orientation, ageism, illegal activities;
v) not infringing any intellectual property rights.
4.2.11. it shall not outsource any of the Services and promotions it provides to the Company to any third party without:
i) obtaining written approval from an authorised person in the Company, and
ii) in so far as the Company has given its prior written consent, the Affiliate further warrants to have an agreement in place with the third party containing the same level of protection of this Agreement, including safeguarding confidentiality, non-solicitation and non-competition, data protection, compliance with the Applicable Laws, at least as encompassing as those contained in this Agreement and that such agreement is to be complied with by the third party in question at all times;
The Affiliate agrees and acknowledges to remain fully responsible and liable for any activities performed by a third party for the Services that fall within the scope of this Agreement and the Company shall reserve the right to exercise any of its rights and legal remedies including those stated under Clause 14.
4.2.12. not to market or promote any of the MGA Brands in the Netherlands or other differently regulated markets including but not limited to:
i) on websites that end with “.nl”, or “.be;
ii) websites or other channels which are in Dutch, irrespective of the top-level domain;
iii) websites or other channels which are in English that make specific reference to the Netherlands (such as Top Dutch Online Casinos or Casinos that Accept Dutch Customers or any similar sites or channels, including but not limited to social media channels);
iv) any website or other channel alongside any article which makes reference to the Netherlands, including also the legal or regulatory framework in the Netherlands;
v) websites or other channels on which the iDeal payment method is referenced;
vi) websites or other channels where there are specific Dutch Themes;
vii) websites or other channels that have a name which is typically associated with the Netherlands; viii) websites or other channels where the audience is typically Dutch;
ix) any channel of an affiliate, if the affiliate itself promotes its brand in the Netherlands such as in bars, on bus stops, on Dutch TV or Dutch radio etc.
4.2.13. not to market or promote any of the Brands in Finland including but not limited to on:
i) websites that end with .fi
ii) websites or other channels which are in Finnish, irrespective of the top-level domain; iii) websites or other channels which make specific reference to Finland
(such as Top Finnish Online Casinos or Casinos that Accept Finnish Customers or any similar sites or channels, including but not limited to social media channels);
iv) any website or other channel alongside any article which makes reference to Finland;
v) websites or other channels where there are specific Finnish themes;
vi) websites or other channels that have a name which is typically associated with Finland; vii) websites or other channels where the audience is typically Finnish;
viii) any channel of an affiliate, if the affiliate itself promotes its brand in Finland such as in bars, on bus stops, on Finnish TV or radio etc.
4.3. The Affiliate hereby further agrees and acknowledges that the Affiliate shall not receive any remuneration in whatever kind or form in case of any infringement of Clauses 4.2.12 and 4.2.13 and such default shall be deemed to be material breach of the Agreement and the Company reserves the right to exercise its legal remedies.
4.4. Whilst the Affiliate may only act in accordance with the written instructions and approvals, Affiliate hereby further warrants to comply with the requirements stipulated under:
4.4.1 ‘Clause 5 – MGA Brands Compliance’ when promoting any of the MGA Brands;
4.4.2 ‘Clause 6 – KSA Brand Compliance’ when promoting the KSA Brand;
in addition to the requirements contained under this Clause 4.
5. MGA Brands Compliance
5.1. All commercial communications carried out by the Affiliate must clearly display:
i) the name of the relevant authorised person: Play North LTD;
ii) Reference to the entity which issued the relevant authorisation and authorisation reference number: MGA – MGA/B2C/775/2019;
iii) educational responsible gaming messaging and a sign that shows underage gambling is not permissible.
5.2. All commercial communications executed by the Affiliate must be socially responsible, with particular regard to protect minors and Vulnerable Persons as defined under the Applicable Laws in Malta from harm and exploitation.
5.3. It is imperative that any commercial communication executed by the Affiliate is not targeted to any end-user who has self-excluded or has shown signs or made it known that s/he has developed a gambling problem or any individual who has shown the intention to stop a particular gambling session.
6. KSA Brand Compliance
6.1. The Affiliate hereby warrants that when providing the Services the Affiliate shall not:
i) target minors or Vulnerable Persons in any manner or form including the use of language which may appear appealing to a younger crowd;
ii) include in its advertising any person younger than the age of 24 or is perceived to be younger than 24;
iii) include in is advertising any persons or role models that has a substantial reach among minors or Vulnerable Persons;
iv) promote socially irresponsible behaviour;
v) mislead any persons in any manner including by presenting an unrealistic or incorrect picture of the games of chance advertised or suggesting that gambling is a solution to any sort of problem including but not limited to financial, educational, or personal life problems;
vi) suggest that gambling is to take priority over any other commitments such as family, friends or career;
vii) suggest that gambling can make a person appear in any way that is superior than others, such as strong, tough, attractive, loved or admired;
viii) abuse any superstitions, cultural belief or traditions;
ix) suggest that gambling is harmless or that it will always or most of the times result in a win which would be misleading as well;
x) suggest that gambling is to be actioned in isolation from society;
xi) trigger an impulsive decision in persons or a sense of urgency or attach conditions or feeling of a “one-off chance” in end-users (such as “today only” or “early bird discount” offers)
xii) create the impression that persons participating in the games of chance can generally exercise a dominant influence on the outcomes of a game of chance offered;
xiii) make use of websites that have or are promoting video games, social games or any other types of games that are not games of chance.
6.2. Any Material, communication or content used for the Services in relation to the KSA Brand shall include:
i) “Wat kost gokken jou? Stop op tijd. 18+, and
ii) the url of the KSA Brand.
7. Commission Plans
The Company offers 3 Commission Plans; revenue share, cost-per acquisition (CPA) and a hybrid plan, the latter of which combines the previous two plans:
7.1. Revenue Share Plan
7.1.1. An Affiliate on the Revenue Share Plan will earn Commissions based on the monthly NGR generated by the Referral End-User(s);
7.1.2. Commissions will be earned for the life of the Referral End-Users, on all transactions that the Referral End-Users undertake at the Company’s Brands, for as long as the Affiliate remains a member of the Affiliate Program.
7.1.3. The Affiliate will begin each month on a zero balance. Should the Affiliate close the month with a positive overall NGR, Commissions will be paid on the positive balance. Should the Affiliate close the month with a negative balance, this balance will not be carried forward to the next month.
7.2. Cost-Per Acquisition (CPA) Plan
7.2.1. An Affiliate on the CPA plan will earn a Commission based on each successful Referral End-User that places a deposit on the Company’s Brands.
7.2.2. The amount earned for each successful referral will be agreed upon by both Parties and will be confirmed in writing.
7.2.3. Commissionable earnings will be earned for the life of the Referral End-User, on all transactions that the Referral End-Users undertake at the Company’s Brands.
7.2.4. The Company reserves the right to move CPA Affiliates into the Revenue Share Plan by giving the Affiliate a minimum of 15 days’ notice. Should the Affiliate not agree with this, the Affiliate may terminate the Agreement.
7.3. Hybrid Plan
The Company also offers a tailor-made Hybrid Plan of the 2 Commission Plans explained above.
8. Affiliate Payments
8.1. Affiliate Commissions are effected via bank wire transfers to a bank account of the Affiliate’s choice, subject that the bank account shall be held in the Affiliate’s legal person name. It is the responsibility of the Affiliate to ensure that the bank account details provided in the Affiliate Due Diligence Form are correct.
8.2. Payments are made to the Affiliate following 10 business days after the end of the preceding month.
8.3. All payments shall be made inclusive of VAT, if applicable. The Affiliate is individually responsible for withholding tax, VAT and social fees where applicable.
8.4. The minimum monthly payment threshold is Eur 100. Payments less than Eur 100 will be carried forward until the Affiliate’s earnings exceed such threshold.
8.5. If the Affiliate disagrees with the balance due as reported by the Company, the Affiliate shall notify the Company within 20 days and state the reason for this disagreement. Failure to notify The Company within the prescribed time shall be deemed to be considered as an irrevocable acknowledgement and agreement of the balance due for the period in question.
8.6. The Company reserves the right to withhold payment from any Affiliate that violates any terms of this Agreement.
9. Intellectual Property Rights
9.1. For the avoidance of doubt, nothing in this Agreement shall operate to transfer any interest or ownership of intellectual property and the Affiliate shall only use the intellectual property for the sole purpose of providing the Services.
9.2. Upon termination of this Agreement, the Affiliate shall return to the Company all proprietary material or information and destroy in a manner acceptable to the Company all remaining copies of the same. Notwithstanding any disposition contrary to this Agreement, the Affiliate acknowledges that upon such
termination – it shall return or destroy any original or copy of the Material, Personal Data (as defined in the GDPR) or Confidential Information of the Company, and may not exploit, directly or indirectly, the Company proprietary information, Materials or works. On request of the Company the Affiliate will send a confirmation to the Company stating that all proprietary material, Personal Data or Confidential Information have been deleted or destroyed.
10. Term and Termination
10.1. The term of this Agreement shall begin when the Affiliate application is accepted by the Company and will be continuous unless and until either of the Parties notifies the other in writing via email to [email protected] that it wishes to terminate the Agreement, in which case this Agreement shall be terminated immediately.
10.2. The Company may terminate the Agreement with immediate effect by written notice to the Affiliate if:
i) The Affiliate commits a material breach of its obligations under this Agreement and, in the case of a remediable breach, fails to remedy it within 15 days starting from the date of receipt of the notice;
ii) The Affiliate becomes insolvent or unable to pay its debts, proposes a voluntary arrangement, has a receiver, liquidator, administrator or manager appointed over the whole or any part of its business or assets or if any application shall be presented, order shall be made or resolution passed for its winding up (except for the purposes of a bona fide amalgamation or reconstruction), bankruptcy or dissolution or if it shall otherwise propose or enter into any composition or arrangement with its creditors or any class of them, or it ceases to carry on business or if it claims the benefit of any statutory moratorium;
iii) The Affiliate sells its business, or any part herein, and/or registers any change of beneficial ownership; iv) The Company determines (in the Company’s sole discretion) that the Affiliate has engaged in disreputable activities;
v) The Company determines (in the Company’s sole discretion) that the Affiliate’s Website or content is unsuitable. Unsuitable sites/content include but are not limited to those websites that are aimed or targeted at persons under the legal age for gambling, and in particular at children and minors and Vulnerable Persons, promote sexually explicit materials, promote violence, drug use, promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age. Websites that promote illegal activities, contain libellous, obscene, unlawful or otherwise unsuitable content or violate intellectual property rights and any of the Compliance Clauses (5-6) stipulated in this Agreement that pertain to the Brand that the Affiliate is providing its Services for;
vi) The Affiliate has consecutively targeted the wrong market and made no rectifications or efforts to retract such content;
vii) The Company have reasonable grounds, knowledge or suspicion that the Affiliate has engaged in fraudulent, money laundering and/or funding of terrorism activities;
viii) The Affiliate was or has become a Politically Exposed Person, has been sanctioned or is known to have a criminal record (excluding traffic fines);
ix) The Affiliate does not provide the Due Diligence Documentation or code of conduct that may be required from time to time. Such documentation will be requested to ensure that the Company complies with its legal requirements and policies; and
x) The Company or the Brand to which the Affiliate provides the Services should be merged or acquired during the Term, provided that the Agreement will terminate upon the effective date of the relevant merge or acquisition.
10.3. The Affiliate may terminate the Agreement with immediate effect by written notice to the Company if:
i) The Company commits a material breach of its obligations under the Agreement and, in the case of a remediable breach, fails to remedy it within 15 days of the date of the receipt of the notice;
ii) The Company becomes insolvent or unable to pay its debts, proposes a voluntary arrangement, has a receiver, liquidator, administrator or manager appointed over the whole or any part of its business or assets or if any application shall be presented, order shall be made or resolution passed for its winding up (except for the purposes of a bona fide amalgamation or reconstruction), bankruptcy or dissolution or if it shall otherwise propose or enter into any composition or arrangement with its creditors or any class of them, or it ceases to carry on business or if it claims the benefit of any statutory moratorium.
10.4. Upon termination, the Affiliate hereby agrees:
i) to remove the Company’s content from the Affiliate Website/s and all marketing channels;
ii) to disable any links tagged to the Company’s websites from all marketing channels;
iii) that all rights and licences given to the Affiliate in this Agreement shall immediately terminate;
iv) that it will be entitled only to those unpaid commissions, if any, earned by the Affiliate on or prior to the date of termination. Therefore, the Affiliate shall not be entitled to any commissions occurring after the date of termination;
v) that the Company may withhold the final payment for a reasonable time to ensure that the correct amount is paid or that the Affiliate has honoured clause (i) and (ii) above;
vi) that if the Company decides to continue to permit activity (generation of revenue) from end-users after termination, this will not constitute a continuation or renewal of this Agreement or a waiver of termination;
vii) that the Affiliate is to return any Confidential Information and all copies of it in their possession, custody and control and will cease all uses of any trade name, trademarks, service marks, logos and other designations of the Company.
viii) that both Parties shall be released from all obligations and liabilities to each other occurring or arising after the date of such termination, except with respect to those obligations that by their nature are designed to survive termination.
ix) that Termination will not relieve the Affiliate from any liability arising from any breach of this Agreement which occurred prior to termination.
11. Data Protection
The Data Processing Addendum, which forms part of this Agreement, shall regulate the Parties’ relationship in terms of data protection between themselves.
12. Amendments
The Company may unilaterally amend the provisions of this Agreement. The Company will inform Affiliate of the changes in a timely manner via its website and applications or by any other appropriate means such as via the e-mail address registered by the Affiliate. The Affiliate only recourse is to terminate the Agreement should it not agree with the amendments. Should the Agreement is not terminated within 30 days from the communication of the Amendments, the Agreement and its Amendments are considered accepted.
13. Audit & Incidents
13.1. The Affiliate warrants to provide, throughout the term of this Agreement and for a period of three (3) calendar years after the Agreement’s termination, information and access to its system when the Company requires them for the purposes of compliance, and this right shall extend to all the competent regulatory authorities for the purposes of enabling them to perform their legal duties;
13.2. The Company shall be entitled to contact the Affiliate at any time annually and to make reasonable enquiries to check whether:
i) the Affiliate or any third party that it is contracted with continues to act in accordance with the Agreement;
ii) The information provided by the Affiliate is still correct and the Due Diligence Documents are up to date;
iii) the Affiliate or any third party that it is contracted with continues to comply with Applicable Laws; and
iv) the risk analysis which the Company has conducted for the purposes of outsourcing its work is still adequate. Where necessary, the Company may adopt measures based on the findings of this evaluation.
13.3 The Affiliate acknowledges that the Company is obliged to inform the regulatory authorities immediately, yet in any case no later than 72 hours, about any situation that could damage consumer confidence in the Company’s offering of the games of chance. To this end, the Affiliate agrees to immediately inform the Company of (a suspicion of) situations that could damage consumer confidence in the Company’s offering of games of chance, this includes but is not limited to directing any content or material to Minors, being involved in a fraud incident any other non-compliance with the Applicable Laws.
14. Penalty Clause
Without prejudice to any other legal remedy that the Company may have, if the Company determines that the Affiliate is in breach of either of the Compliance Clauses (5-6) and is providing Services to pertaining Brands or any of the warranties, the Affiliate shall forfeit an immediately payable penalty of € 5,000 that is to be increased by € 1,000 for each calendar day that the breach subsists for.
15. Indemnity and Liability
15.1 The Affiliate shall indemnify the Company on demand and hold the Company harmless 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 the Company in consequence of any breach, non-performance or non-observance by the Affiliate of any of the Affiliate’s obligations or warranties under this Agreement.
15.2 The Company shall not be liable to the Affiliate in contract, tort, or otherwise (including liability for negligence) for loss whether direct or indirect of business, revenue or profits, anticipated savings or wasted expenditure, corruption or destruction of data or for any indirect or consequential loss whatever.
15.3 The liability of the Company shall not, in any event, exceed the sum of the total monies paid by the Company to the Affiliate over the 12 month period preceding the date on which any liability accrued.
15.4 In no event shall the Company be responsible for any claim or dispute between the Affiliate and any user of the Affiliate’s Website.
16. Assignment
The Affiliate shall not, without the Company’s prior written consent, assign at law or in equity (including without limitation by way of a charge or declaration of trust), sublicense deals related to this Agreement or any other rights under it, or subcontract any or all of its obligations under it or purport to do any of the same. Any purported assignment in breach of this article shall confer no rights on the purported assignee.
17. Governing Law and Jurisdiction
This Agreement is construed in accordance with and governed by Maltese law and any disputes arising from this Agreement will be settled by the competent court of Malta.
DATA PROCESSING ADDENDUM
This Data Processing Addendum (“DPA”) forms part of the Terms and Conditions of the Affiliate Program (the DPA and the Terms and Conditions are jointly referred to as “Agreement”) entered into by the Company and the Affiliate, in which this DPA is incorporated by reference.
1. INTERPRETATION
1.1 In this DPA the following capitalised terms shall have the meanings set out below:
| Affiliate Processing | shall have the meaning as set out in Clause 3.2. |
| Applicable Laws | means all laws or regulations, regulatory policies, guidelines or industry codes which apply to Network Personal Data; |
| Business Intelligence
|
means the processing of Network Personal Data under the Agreement for the purposes of understanding consumer use of or interactions with any websites, apps or services of the Affiliate, as determined the Affiliate, by use of the Company technology (as applicable). |
| Cross Device Tracking
|
means the processing of Network Personal Data under the Agreement, relating to consumer journeys across websites on multiple devices, for the purposes of attributing the referral of that consumer to the websites, apps or services of the Affiliate by a third-party publisher of advertising (as applicable). |
| Data Protection Law | means the GDPR, the e-Privacy Directive as amended or substituted from time to time, national laws implementing or supplementing the GDPR, and, to the extent applicable, the data protection or privacy laws of any other country including but not limited to the Dutch GDPR implementation Act (“Uitvoeringswet Algemene verordening gegevensbescherming”), the Maltese Data Protection Act (Chapter 586 of the Laws of Malta) and any other relevant legislation which is applicable during the term of the Agreement, and also, where applicable, the guidance and codes of practice issued by any relevant Supervisory Authority or similar authoritative entity. |
| EEA | means the European Economic Area; |
| GDPR | means the EU General Data Protection Regulation 2016/679; |
| JC Processing | has the meaning set out in Clause 3.1. |
| Lead Generation | means the processing of Network Personal Data under the Agreement (and any related or ancillary agreements between the Parties and any third parties) for the purposes of generating a sales lead for the Affiliate, to be subsequently used in the Affiliate’s own marketing efforts. |
| Network Personal Data | means any Personal Data within the meanings of GDPR Processed by either Party in connection with the provision of the Services under the Agreement; |
| Plugin Integration | means the processing of Network Personal Data under the Agreement (and any related or ancillary agreements between the Parties and any third parties) for the purposes of facilitating the integration of any websites, apps or services of the Affiliate with the technology of a third party adtech provider, by use of the Company technology (as applicable). |
| Reporting | means the processing of Personal Data for the purposes of reporting on Tracking and Cross Device Tracking, and “Reports” shall be interpreted accordingly. |
| Services | means the services provided by (or on behalf of) the Affiliate to the Company pursuant to the Agreement; |
| Subprocessor
|
any person (excluding an employee of either Party) appointed by or on behalf of either Party to Process Personal Data on behalf of such Party or otherwise in connection with the Agreement. |
| Tracking | the processing of Network Personal Data under the Agreement, relating to consumer journeys across websites on a single device, for the purposes of attributing the referral of that consumer to the websites, apps or services of the Affiliate by a third party publisher of advertising. |
| Transaction Queries | the processing of Network Personal Data under the Agreement, relating to consumer journeys across websites, undertaken at the request of a third party publisher of advertising, for the purposes of reassessing the attribution of any referrals of consumers to the websites, apps or services of the Affiliate by Tracking or Cross Device Tracking. |
1.2 The terms, “Controller”, “Data Subject”, “Member State”, “Personal Data”, “Personal Data Breach”, “Processing”, “Processor” and “Profiling” shall have the meanings assigned to them in the GDPR.
2. GENERAL
2.1 This DP.A constitutes both an arrangement between joint Controllers pursuant to Article 26 of the GDPR, and a contract between a Controller and a Processor pursuant to Article 28 of the GDPR, as set out below and as the context requires or permits.
2.2 This DPA shall only apply to the extent that the Parties are Processing Network Personal Data.
2.3 In the event of inconsistencies between the provisions of this DPA and the Agreement, this DPA shall take precedence, unless explicitly agreed otherwise in writing.
3. PROCESSING OF NETWORK PERSONAL DATA
3.1 The Company and the Affiliate shall act as joint Controllers in respect of the Processing of Network Personal Data for the purposes of:
3.1.1 Tracking
3.1.2 Cross Device Tracking
3.1.3 Reporting; and
3.1.4 Transaction Queries
together, “JC Processing”, and this DPA sets out the arrangements made between the Parties pursuant to Article 26 of the GDPR in respect of that Processing.
3.2 The Affiliate shall act as Controller, and the Company shall act as Processor, in respect of any Processing of Network Personal Data for the purposes of: [EPB1]
3.2.1 capturing consumer names and contact information on behalf of the Affiliate’s Lead Generation;
3.2.2 Business Intelligence; and
3.2.3 Plugin Integration
together, “Affiliate Processing”, and this DPA sets out the agreement made between the Parties pursuant to Article 28 of the GDPR in respect of that Processing and any other Processing under which one Party acts as Controller and the other Party acts as Processor.
3.3 Processing of Network Personal Data for Lead Generation may be undertaken subject to further agreements between the Parties and third parties (as applicable).
3.4 The Company and the Affiliate will each comply with their respective obligations under Data Protection Law. Each Party will provide the other Party any co-operation reasonably requested to enable the other Party’s compliance or to demonstrate the Party’s own accountability and compliance with this Clause 3 and the Applicable Laws.
3.5 The Affiliate will not provide any Personal Data to the Company without the Company’s prior written consent, unless anticipated by the Company in the Company’s ordinary operation of its marketing network of publishers and affiliates facilitating, amongst other things, affiliate and performance marketing.
4. TERMS APPLICABLE TO JC PROCESSING
4.1 This Clause 4 shall apply in respect of any JC Processing only.
4.2 Both Parties jointly agree that, in respect of JC Processing, Article 6(1)(f) of the GDPR applies to the Processing of Network Personal Data and that the Processing of Network Personal Data is necessary for the purposes of the legitimate interest pursued by both Parties and/or by a third party.
4.3 Transparency
4.3.1 Affiliate must take appropriate measures to provide Data Subjects with information about how Network Personal Data is being processed by or on behalf of the Affiliate, which shall at a minimum include all the information required by Articles 13, 14 and 26 of the GDPR, in a concise, transparent and easily accessible form, using clear and plain language (“Affiliate Fair Processing Notice”).
4.3.2 the Company must take appropriate measures to provide Data Subjects with information about how Network Personal Data is being Processed by or on behalf of the Company, which shall at a minimum include all the information required by Articles 13, 14 and 26 of the GDPR, in a concise, transparent and easily accessible form, using clear and plain language (“Company Fair Processing Notice”).
4.3.3 Affiliate must either:
(A) include a hyperlink to the current Company Fair Processing Notice in the Affiliate Fair Processing Notice; or
(B) ensure the Affiliate Fair Processing Notice contains sufficient information to enable the Company to Process Network Personal Data in accordance with Articles 13, 14 and 26 of the GDPR.
4.4 Data Subject Rights
Each Party shall fulfill their obligations to respond to requests to exercise Data Subject rights under Data Protection Law. Unless otherwise agreed in writing between the Parties, the first recipient of any request by a Data Subject to exercise his or her rights under Data Protection Law shall be primarily responsible for its response. Each Party will provide the other Party any co-operation reasonably requested to enable the other Party’s compliance with this Clause 4.4.
4.5 Personnel
4.5.1 Each Party shall take reasonable steps to ensure the reliability of any employee, agent or contractor who may have access to the Network Personal Data, ensuring in each case that access is:
(A) strictly limited to those individuals who need to know and/or access the relevant Network Personal Data; and
(B) as strictly necessary for the purposes of the Agreement and to comply with Applicable Laws in the context of that individual’s duties.
4.5.2 Each Party shall ensure that all individuals referred to in Clause 4.5.1 are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
4.6 Security And Confidentiality Of Data
4.6.1 Each Party shall, in relation to the Network Personal Data, implement appropriate technical and organisational measures to ensure an appropriate level of security, including, as appropriate, the measures referred to in Article 32(1) of the GDPR. In doing so, each Party shall take into account:
(A) the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing; and
(B) the risk of varying likelihood and severity for the rights and freedoms of natural persons.
4.6.2 In assessing the appropriate level of security, each Party shall in particular take account of the risks that are presented by Processing, including from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Network Personal Data transmitted, stored or otherwise Processed.
4.7 Personal Data Breach
4.7.1 Each Party shall:
(A) notify the other Party without undue delay, and in any case not later than 48 hours upon becoming aware of a Personal Data Breach affecting Network Personal Data (“Network Data Breach”); and
(B) provide the other Party with sufficient information to allow it to meet any obligations to report or inform Data Subjects of the Network Data Breach under or in connection with Data Protection Law; and
(C) meaningfully consult with the other Party in respect of the external communications and public relations strategy related to the Network Data Breach; and
(D) subject to Applicable Law, not notify any data protection regulator of the Network Data Breach without having obtained prior written approval of the other Party; and
(E) not issue a press release or communicate with any member of the press in respect of the Network Data Breach, without having obtained prior written approval by the other Party.
4.7.2 The notification set out in Clause 4.7.1(a) above, shall as a minimum:
(A) describe the nature of the Network Dat§a Breach, the categories and numbers of Data Subjects concerned, and the categories and numbers of Personal Data records concerned; and
(B) describe the likely consequences of the Network Data Breach; and
(C) describe the measures taken or proposed to be taken to address the Network Data Breach.
4.7.3 The Affiliate shall cooperate with the Company and take such reasonable commercial steps as are directed by the Company to assist in the investigation, mitigation and remediation of each Network Data Breach.
4.8 Data Transfers
Neither Party shall transfer Network Personal Data to countries outside of the EEA in breach of Data Protection Law.
4.9 Profiling
The Affiliate shall not use any Personal Data revealed by any Reports for the Profiling of consumers.
4.10 Engagement of Processors
With respect to a proposed Processor, each Party shall:
4.10.1 before the Processor first Processes Network Personal Data, carry out adequate due diligence to ensure that the Processor is capable of providing the level of protection for Network Personal Data required by Data Protection Law; and
4.10.2 ensure that the arrangement with such a Processor , is governed by a written contract including terms that meet the requirements of Article 28(3) of the GDPR.
5. TERMS APPLICABLE TO AFFILIATE PROCESSING
5.1 This Clause 5 shall apply in respect of any Affiliate Processing only (if applicable).
5.2 The Company will:
5.2.1 Process Personal Data for the purposes of Affiliate Processing only in accordance with the Affiliate’s instructions, including in respect of the deletion or return of Personal Data; and
5.2.2 make available to the Affiliate requested information in respect of Personal Data, on at least 30 days prior written notice and during normal business hours, necessary to demonstrate compliance with this Clause 5.2, including to allow for and contribute to reasonable audits, conducted by the Affiliate or the Affiliate’s designated auditor (such designated auditors being subject to the Company’s prior written approval); and
5.2.3 promptly notify the Affiliate if it receives any request from a Data Subject to exercise his or her rights under Data Protection Law, and provide the Affiliate any co-operation reasonably requested to enable the Affiliate to respond to such requests; and
5.2.4 engage Subprocessors in a manner consistent with clause 4.10; and
5.2.5 comply with clauses 4.5 – 4.8.
5.3 The Affiliate hereby grants a general authorisation to the Company under Article 28(2) of the GDPR to engage Subprocessors. The Company shall inform the Affiliate of any intended changes concerning the addition or replacement of Subprocessors.
6. FURTHER PROCESSING
6.1 In relation to any other further Processing of Network Personal Data under the Agreement, to the extent not specified otherwise under this DPA, any Party acting as a Processor will:
6.1.1 Process Network Personal Data for such purposes only in accordance with the Controller’s instructions, including in respect of the deletion or return of Personal Data;
6.1.2 make available to the Controller requested information in respect of Network Personal Data, on at least 30 days prior written notice and during normal business hours, necessary to demonstrate compliance with this Clause 6.1, including to allow for and contribute to reasonable audits, conducted by the Controller or the Controller’s designated auditor (such designated auditors being subject to the Company’s prior written approval);
6.1.3 promptly notify the Controller if it receives any request from a Data Subject to exercise his or her rights under Data Protection Law, and provide the Controller any co-operation reasonably requested to enable the Controller to respond to such requests;
6.1.4 engage Subprocessors in a manner consistent with clause 4.10;
6.1.5 comply with clauses 4.5 – 4.8.
6.2 In the event of any conflict between this Clause 6 and any other agreement between the Parties in respect of the same Processing, such other agreement shall take precedence.
7. LIABILITY
7.1 Each Party shall be solely liable for any costs, claims, losses, damages, expenses or fines arising from:
7.1.1 its breach of Data Protection Law; and
7.1.2 its breach of this DPA or the Agreement; and
7.1.3 Processing of Personal Data in its possession; and
7.1.4 events for which it is responsible;
and accordingly there shall be no joint liability between the Parties in respect of such breaches.
7.2 The Company shall not be liable for any for breaches of Data Protection Law arising in respect of Processing by or in connection with any third party adtech provider whose technology may be integrated with any websites, apps or services of the Affiliate by use of the Company technology (as applicable from time to time).
7.3 Nothing in this DPA limits or excludes the liability of either Party for death, personal injury, fraud, fraudulent misrepresentation or fraudulent misstatement.
8. CHANGES TO THIS DPA
The Company may on at least 7 days’ written notice to the Affiliate (including by the posting of a notice on the Interface) make binding variations to this DPA, which the Company reasonably considers to be necessary to address the requirements of Data Protection Law.
9. SEVERANCE
9.1 Should any provision of this DPA be invalid or unenforceable, then the remainder of this DPA shall remain valid and in force. The invalid or unenforceable provision shall be:
9.1.1 amended as necessary to ensure its validity and enforceability, while preserving the Parties’ intentions as closely as possible or, if this is not possible; or
9.1.2 construed in a manner as if the invalid or unenforceable part had never been contained in the DPA.
10. RIGHTS OF THIRD PARTIES
Third parties shall not be entitled to enforce any of the terms of this DPA.
11. GOVERNING LAW AND JURISDICTION
The governing law and jurisdiction of this DPA shall be the same as that of the Terms and Conditions to which it forms part.
