This agreement (“Agreement”) constitutes and governs the contractual relationship between the parties:
Affpower Limited, a company duly registered under the laws of Hong Kong with registration number 2294370, with its registers address at Unit 1604, 16/F Infinitus Plaza 199 Des Voeux RD Central, Sheung Wan, Hong Kong, hereinafter referred to as “Affpower”; and
The person or entity registering as an affiliate of Affpower hereinafter referred to as “Affiliate”.
”Affiliate Fee” is the amount due and payable to the Affiliate as commission/referral fee, as calculated and based solely on Affpower system’s data and in accordance with the terms of this Agreement.
“Affiliate Account” means a personal account opened by an Affiliate and maintained by Affpower as to allow the Affiliate to monitor his activities with Affpower and to receive the Affiliate Fees.
“Approved Marketing Resources” means banners, logos, text links and other creative and marketing tools provided by Affpower to the Affiliate.
“Customer” means a person or entity that follows a link from an Approved Marketing Resource on the Affiliate Sites, to Affpower’s Sites and opens a Player’s Account with Affpower. By opening a Player’s Account with Affpower, the person will become a client of Affpower and accordingly, all rules, policies and terms and conditions that appear on Affpower’s Sites shall be applicable.
“Group of Companies” means anybody corporate or unincorporated business which is related to Affpower, in which the ultimate beneficial owners of Affpower hold an interest and/or are directors and the term “Group”, shall be construed accordingly.
“Gross Income” means the Customers total bets less total winnings per month.
“Net Revenue” means the Gross Income generated from Customers per month less:
- (i) Financial charges, expenses and fees incurred by Affpower;
- (ii) Customer charge backs incurred by Affpower;
- (iii) Taxes incurred by Affpower; and
- (iv) Bonuses given to Customers by Affpower during that same month.
“Player’s Account” means a personal account opened by a Customer and maintained by Affpower as to allow the person to play the online games offered on the Sites.
“Services” means any product or service provided to Customers on a Affpower’s Site.
“Site/s” means the Internet sites of Affpower and all other websites connect to them and accessible through links or other access paths and the Services available through such sites.
“Sub-Affiliates” means affiliates referred to us by the Affiliate using our Approved Marketing Resources.
Affiliate Registration and Acceptance of the Agreement
1. To enroll as an Affpower affiliate the Affiliate shall complete the online affiliate sign up form available on the website www.affpower.com and accept this
2. When completing the affiliate sign-up form the Affiliate shall provide Affpower with true and complete information and promptly update such information if all or any part of it changes. The Affiliate shall also promptly provide such other information as Affpower may reasonably request from time to time.
3. By accepting this Agreement, the Affiliate acknowledges that the Affiliate has read this Agreement and agreed to be bound by its terms and conditions. Furthermore, the Affiliate confirms that the Affiliate has independently evaluated the appropriateness of becoming an affiliate of Affpower and that the Affiliate has not relied on any representation, guarantee, or statements other than those contained in this Agreement.
4. On the Affiliate’s acceptance of this Agreement , Affpower may still reject the Affiliate as an affiliate if it determines, in its sole discretion, that the Affiliate site/s are unsuitable for any reasons which include, but are not limited to, the following reasons:
- (i) The Affiliate violated any local law, regulation, rule or treaty, in particular local gaming laws and regulations;
- (ii) The Affiliate promotes online games to minors;
- (iii) The Affiliate is involved in tortuous conduct such as posting defamatory, libelous, scandalous, or private information about a person(s) or company without their consent; intentionally inflicting emotional distress or otherwise;
- (iv) The Affiliate is violating the trademark, copyright, or other intellectual property rights of a third party;
- (v) The Affiliate promotes discrimination based on race, sex, age, nationality, religion, disability, or sexual orientation;
- (vi) The Affiliate promotes violence, or adult oriented material featuring nudity and acts of a sexual nature; and
- (vii) The Affiliate promotes or uses any form of SPAM or unsolicited commercial email.
5. Affpower reserves the right to terminate the Agreement at any time, and with immediate effect via email notification to the Affiliate, if, after being accepted as an affiliate, the Affiliate transpires to be unsuitable as an Affpower affiliate, according to Affpower’s sole discretion.
6. By downloading the Approved Marketing Resources provided by Affpower and placing it on the Affiliate site/s the Affiliate agrees to be bound by this Agreement even if the Affiliate has not explicitly agreed to it.
7. Affpower may modify this Agreement at any time at its sole discretion, by posting a notice of change on the Site, by sending the Affiliate an update via the Affpower Affiliate interface messaging feature and/or via email. Modifications may include, for example, changes in the Affiliate Fees, payment procedures, and general rules. If the Affiliate does not agree to the modifications in question, the Affiliate may terminate this Agreement in accordance with the terms provided herein. The Affiliate’s continued participation as an affiliate following a notice of change will constitute binding acceptance of the change.
8. Affpower hereby grants to the Affiliate a non-exclusive, non-transferable license, during the term of this Agreement, to use Affpower’s intellectual-property marks or those of any Group Company, solely in connection with the display of the Approved Marketing Resources on the Affiliate’s site/s. This license cannot be sub-licensed, assigned or otherwise transferred by the Affiliate. The Affiliate’s right to use these marks is limited to the use of the Approved Marketing Resources as supplied by Affpower and arises only out of this Agreement.
9. The Affiliate shall not assert the invalidity, unenforceability, or contest the ownership of the marks in any action or proceeding of whatever kind or nature, and shall not take any action that may prejudice the rights of Affpower or any Group Company in the marks, render the same generic or otherwise weaken their validity or diminish their associated goodwill.
10. By becoming an Affpower affiliate, the Affiliate agrees to download Approved Marketing Resources, text or promotional materials and place it on the Affiliates site/s. The downloaded Approved Marketing Resources are the only approved types of advertising and the Affiliate may not alter their appearance and/or syntax. Any alteration will result in Affpower not being liable for paying the Affiliate Fees.
11. By placing the Approved Marketing Resources on the Affiliates site/s, the Affiliate shall have no authority to, and shall not, bind Affpower with any obligations.
12. This Agreement does not grant the Affiliate an exclusive right or privilege to assist Affpower in any manner whatsoever in the provision of Services arising from the Affiliate referrals.
13. Affpower reserves the right to contract with and obtain assistance from others, at any time, to perform services/promotion of the same or similar nature as the Affiliates.
14. The Affiliate shall have no claim to any other fees or other compensation on business secured by or through persons or entities other than the Affiliate and their commission due from Sub-Affiliates.
15. Customers will be registered as Affpower’s Customers, and their activity will be monitored.
16. Affpower reserves the right to refuse Customers or to close a Player’s Account if Customers fail to comply with rules, policies, and/or terms and conditions that appear on the Site and/or with any requirements and rules which Affpower may periodically establish.
Affiliate Fees & Payment Terms
17. Affpower will provide the Affiliate with remote online access to reports of its Customers’ activity and the affiliate fees generated from the said Customers. These reports will include clicks, downloads, player activity and commission levels. The form, content and frequency of the reports may vary from time to time at Affpower’s discretion.
18. Affpower aims to execute payments to the Affiliate by the 15th, or next working day, of each month. Negative balances are not carried over to subsequent months. There are three methods by which the Affiliate Fee may be calculated and Affpower shall determine which payment calculation method to allocate to the Affiliate. In the case of a change in calculation method, Affpower will notify the affiliate before the change goes into effect, and will only apply to players introduced by the Affiliate after the change goes into effect. In any case, Affpower will not unilaterally change the Affiliate’s payment calculation method from Percentage of Net Renevue to Cost Per Acquisition payment method, unless requested by the Affiliate. The payment calculation method used will be one of the following:
- (i) Cost Per Acquisition – The Affiliate Fee shall amount to a fixed sum as per the published commission schedule, or a different mutually agreed schedule. The Affiliate Fee shall be payable when a player introduced to Affpower by the Affiliate deposits a sum which is at least equivalent to the minimum deposit allowable by Affpower, or alternatively according to the baseline deal, which sum must equal or exceed an amount stipulated by Affpower; or
- (ii) Percentage of Net Revenue – The Affiliate shall be paid a monthly commission according to the percentage of Net Revenues as per the published com mission schedule, or a different mutually agreed schedule. ; or
- (iii) Hybrid – The Affiliate Fee shall be a combination of the Cost Per Acquisition method and the Percentage of Net Revenue method, as may be determined by Affpower and mutually agreed with the Affiliate.
19. Sub- Affiliate commission – the Affiliate shall be paid a monthly commission according to a percentage of the Net Revenues generated by the Sub-Affiliates referred to Affpower by the Affiliate.
Affiliate Fraud and Good Faith
20. In the event that the Affiliate commits any sort of fraud or illegal activity, the Affiliate agrees to be solely liable for any and all damages that Affpower may suffer as a result of such action and Affpower shall, without affecting its accrued rights, be entitled to terminate this Agreement immediately. The Affiliate will be notified of the termination of this Agreement via email.
21. Should fraudulent activity arise through a person directed to the Site via the Affiliates links, Affpower retains the right to deduct/retract the Affiliate Fees paid to the Affiliate at any time. Affpower’s decision in this regard will be final and no correspondence will be entered into. Affpower reserves the right to:
- (i) retain all amounts due to the Affiliate under this Agreement if it has reasonable cause to believe that such traffic has been caused with the Affiliates knowledge;
- (ii) withhold the relevant Affiliate Fees with respect to such traffic, even if the Affiliate has not knowingly generated such traffic.
Locked Customers will be excluded from Cost per Acquisition Affiliate Fees. Locked Customers are defined as Customer Accounts that are locked by the Site/s, for either fraudulent behavior or abuse.
22. The Affiliate shall not authorize, assist or encourage any third party to:
- (i) place marketing materials on any online site or other medium where the content and/or material on such website or medium is libelous, discriminatory, obscene, unlawful, sexually explicit, pornographic or violent or which is, in Affpower’s sole discretion otherwise unsuitable;
- (ii) develop and/or implement marketing and/or public relations strategies which have as their direct or indirect objective the targeting of marketing Affpower and/or the Site to any persons who are less than 18 years of age (or such higher age as may apply in the jurisdiction that The Affiliate are targeting), regardless of the age of majority in the location the Affiliate are marketing;
- (iii) breach the Electronic Marketing Rules;
- (iv) use marketing materials in a manner that may potentially confuse a Customer or potential Customer;
- (v) place marketing materials on any online site or other medium, where the content and/or material on such online site or medium: infringes any third party’s intellectual property rights, copies or resembles the Site in whole or in part, disparages Affpower or otherwise damages its goodwill or reputation in any way; frames any page of the Site in whole or in part;
- (vi) read, intercept, modify, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to Affpower by any person;
- (vii) in any way alter, redirect or in any way interfere with the operation or accessibility of the Site or any page thereof;
- (viii) register as a Customer on behalf of any third party, or authorise or assist (save by promoting the Site/s and Services in accordance with this Agreement) any other person to register as a Customer;
- (ix) take any action that could reasonably cause any end-user confusion as to Affpower’s relationship with The Affiliate or any third party, or as to the ownership or operation of the Site/s or Service on which any functions or transactions are occurring;
- (x) cause the Site/s (or any parts or pages thereof) to open in a visitor’s browser or anywhere else used for accessing the Services other than as a result of the visitor clicking on Approved Marketing Resources;
- (xi) attempt to intercept or redirect (including via user-installed software) traffic from or on any online site or other place that participates in Affpower’s affiliate program;
- (xii) use any means to promote sites which resemble in any way the look and/or feel of the Site/s whether in whole or in part, nor utilize any such means or site to create the impression that such sites are the official Affpower’s Site/s (or any part of the Affpower’s Site/s); or
23. If Affpower determines that the Affiliate has engaged in any of the foregoing activities, Affpower may (without limiting any other rights or remedies available to Affpower) withhold any Affiliate Fees and/or terminate this Agreement immediately.
24. The Affiliate shall not reassign or move existing Customers between Affiliate Accounts without written consent from Affpower.
25. The Affiliate will not induce existing Customers to re-sign with a different username. Affpower considers the re-signing of existing players as fraud traffic and reserves the right to withhold Affiliate Fees relating to such traffic.
26. While Affpower permits the Affiliate to have Sub-Affiliates, the Affiliate shall not offer any revenue sharing deals which are more advantageous than those being advertised by Affpower in any public forum, website, automated message, private message on a forum, email or any other correspondence that could be sent to a third party. All revenue sharing deals must remain private and confidential. All parties to such agreements must agree not to disclose details to any third party.
27. The Affiliate may not offer any revenue sharing agreement to Sub-Affiliates that is higher than the percentage that they have already received from Affpower for the previous period.
28. The Affiliate agrees to keep confidential any confidential and sensitive information that may be supplied to the Affiliate by Affpower during the continuance of this Agreement and for a period of three (3) years subsequent to the termination of this Agreement, and shall not disclose to any third parties any matters incidental or relating to this Agreement or to Affpower’s business.
No Partnership or Agency
29. The Affiliate shall not be an agent, partner, or employee of Affpower and the Affiliate shall not hold the Affiliate out as such nor as having any power or authority to incur any obligation of any nature expressed or implied on behalf of Affpower.
30. The Affiliate hereby agrees and undertakes fully and effectively to indemnify and hold Affpower or any Group Company, its directors, officers, employees and representatives harmless both before or after the termination of this Agreement for and against all damages, loss, claims, demands, expenses (including legal and professional expenses), costs and liabilities which Affpower or any Group Company may at any time incur directly or indirectly due to all or any breaches by the Affiliate of the terms specified in this Agreement.
31. Affpower shall not be liable to the Affiliate in respect of any loss of profits, goodwill, data or any type of special indirect or consequential loss (including loss or damage suffered by the Affiliate as a result of an action brought by a third party) arising out of this Agreement or the performance thereof even if such loss was reasonably foreseeable or Affpower had been advised of the possibility of the Affiliate incurring the same.
32. Without prejudice to the immediately preceding clause, in the event that Affpower is found liable in any way, by a court of law and/or a similar authority, with legal competence and/or jurisdiction over Affpower, then Affpower’s liability in damages shall be limited to the amount, if any, payable to the Affiliate in the last calendar year by way of net Affiliate Fees under this Agreement.
33. Nothing in this Agreement shall be construed to provide any rights, remedies or benefits to any person or entity who/which is not a party to this Agreement.
Warranties and Representations
34. Affpower makes no express or implied warranties or representations with respect to this affiliate program, Affpower’s Site or any content, products or Services available therein or related thereto (including, without limitation, its functionality, warranties of fitness, merchantability, legality, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage).
35. Affpower makes no representation that the operation of the Sites, system, network, software or hardware (or that provided to Affpower by third parties) will be uninterrupted or error-free and will not be liable for the consequences of any interruptions or errors.
Term and Termination
36. The term of this agreement will begin when the Affiliate downloads a banner or any other marketing tool provided by Affpower and links it to the Site/s and will be continuous unless and until either party notifies the other in writing that it wishes to terminate this agreement, in which case this agreement may be terminated immediately. Termination is at will, for any reason, by either party. For the purposes of notification of termination, delivery via email is considered a written and immediate form of notification.
37. Without prejudice to the generality of the preceding clause, Affpower shall terminate this Agreement immediately and close the Affiliate’s Affiliate Account, with immediate email notification, if the Affiliate:
- (i) uses any form of spamming;
- (ii) discredits Affpower through false advertising, written or uttered words;
- (iii) makes any claims, representations, or warranties in connection with Affpower or its Service; or
- (iv) breaches this Agreement.
38. Upon termination:
- (i) The Affiliate must remove all Affpower’s banner(s) from The Affiliate’s sites and disable any links from the Affiliate’s sites to Affpower’s Site/s.
- (ii) All rights and licenses given to the Affiliate in this Agreement shall be immediately terminated.
- (iii) In the case of termination of this Agreement due to Fraud, or any other illegal activity or unethical marketing activity as defined in this agreement, by the Affiliate, the Affiliate will be entitled only to those unpaid Affiliate Fees, if any, earned by the Affiliate on or prior to the date of termination. In the case of termination of the Agreement for any other reason, the Affiliate will be entitled to Affiliate Fees occurring after the date of termination.
- (iv) If the Affiliate fails to fulfill the Affiliates obligations and responsibilities throughout the term of this Agreement, the Affiliate Fees otherwise owing to the Affiliate on termination shall not be paid to the Affiliate.
- (v) If Affpower continues to permit activity from Customers referred by the Affiliate after the Affiliates termination, this will not constitute a continuation or renewal of this Agreement or a waiver of termination.
- (vi) The Affiliate shall return to Affpower any confidential information and all copies of it in the Affiliates possession, custody or control and will cease all use of any trade names, trademarks, Service marks, logos and any other intellectual property rights, if any.
39. Both parties will 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, which by their nature are designed to survive termination, as set out in this Agreement. Termination will not relieve the parities from any liability arising from any breach of this Agreement, which occurred prior to termination.
Law & Forum and/or community
40. This Agreement shall be governed by and construed in accordance with the laws of the country of Curaçao without giving effect to conflicts of law principles. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
41. Any dispute or difference arising out of or in connection with this Agreement shall be subject to the sole jurisdiction of the Courts of Curaçao.
42. The Affiliate shall not be entitled to assign or otherwise transfer this Agreement nor any of its rights or obligations without Affpower’s prior written consent.
43. Any waiver by Affpower of any breach by the Affiliate of any provision of this Agreement shall not be considered as a waiver of any subsequent breach of the same or any other provision of this Agreement.
44. All notices pertaining to this Agreement will be given by email as follows: to the Affiliate at the email address provided by the Affiliate on the Affiliate sign up form (or as subsequently updated by the Affiliate in the event of change), and to Affpower at the following e-mail address [email protected] Any notice sent by email shall be deemed received on the earlier of an acknowledgement being sent or 24 hours from the time of transmission.
45. Should any provision contained in this Agreement be held by any court or other competent authority to be void or unenforceable in whole or in part, this Agreement shall continue to be valid as to the other provisions thereof and the remainder of the affected provision.
Headings are intended for clarity and to facilitate reading of this Agreement. They are not intended as a means of interpretation for the content of the paragraph that follows each heading. Headings are not intended to bind Affpower in any manner whatsoever.
46. This Agreement is drafted in the English language. Should this Agreement be translated into another language, the text in English language shall in any event prevail.
This Agreement is considered signed and approved:
By Affpower and the Affiliate upon completion of the Affpower affiliate registration form.
The Affiliate is advised to print this document and keep a copy of it in the Affiliate’s files.