Terms and ConditionsYour contractual relationship with us, Funstage Spielewebseitenbetriebsges.m.b.H., in the affiliate network for the sites below listed ("Agreement") shall be exclusively governed by this terms and conditions (T&C) in the version valid at the time of your registration. . We reserve the right to change this T&C generally in line with regulatory developments or if the nature of the industry landscape changes. Upon first registration in the Affiliate System you acknowledge the exclusive validity of this T&C and agree to the provisions thereof (as amended or modified from time to time). Important: please read this document carefully before accepting this T&C, then print and store along with all confirmation emails reflecting your tracker ids, bonus codes, and affiliate accruals. If you do not agree with the T&C (or are not authorized to do so) you may not join our Affiliate System. If you have any questions regarding these T&C please contact us at the same email address. General enquiries should be sent to firstname.lastname@example.org. Currently the Sites offered within the Affiliate System are: www.gametwist.com
- For registration with our Affiliate System you fill in properly the registration Sign-up form. Following the proper registration we provide you User name and password vial e-mail. You are responsible to keep all your data up-to-date and strictly confidential and not to provide any third party access thereto. Any activity within the Affiliate System under your User name and password is automatically attributed to you. Prior to any out-payment further details will be requested.
- We may modify this T&C at any time, in our sole discretion, by either (i) emailing you a change notice or (ii) by posting the new version of the T&C on our Website. Modifications relating to fraud prevention or correction shall be effective on the date of posting or the sending of such notice. The remaining modifications to the T&C shall only take effect fourteen (14) days after the date of posting or sending of any such notice (whichever is the earlier). It is your responsibility to visit the Website frequently to make sure you are up to date with the latest version of the T&C and its provisions. If any modification is unacceptable to you, you may terminate this agreement within said fourteen (14) days period in writing to email@example.com. Your continued participation in the Affiliate System following such 14 day period will be deemed binding acceptance of the modified T&C.
- From time to time we may contact you with information regarding specific promotions, unless you contradict in writing, you will be deemed to have agreed to take part in such promotion and the terms of such promotion shall be incorporated into the applicable Payment Plan and part of our Agreement for the duration of such promotion.
- You acknowledge and agree that regulations 9(1) and 9(2) (Information to be provided by electronic means) and 11(1) (placing of the order) of the Electronic Commerce Directive 00/31/EC shall not apply to or have any effect on this Agreement.
B. Definitions and Interpretations
In this T&C, references to the following words shall have the meanings set out below, unless explicitly stated otherwise:
- "Affiliate Accrual" is the amount due and payable to you, as calculated based solely on our system’s data and in accordance with these T&C and the applicable Payment Plan.
- "Affiliate Cashier Account" means the account into which you receive payment from us. All payables are paid into such Affiliate Cashier Account, unless specifically agreed otherwise.
- "Affiliate Area" means the area of the Website that is accessible to you (you may need to access some parts of this area by logging on with the username you choose when you signed up as a participant in the Affiliate System and associated password) and that provides certain ´members only´ functionality, including facilities to check relevant statistics, update your profile, create additional Referrer Links and select banners and/or text links.
- "Banners" and "Text Links" means the graphical artwork or text that includes Referrer, IDs that are made available by us in the Affiliate Area and/or pre-approved in writing by us and that you may use to provide your marketing services agreed hereunder2.5 "Brand" means the "Gametwist" brand used in association with online poker, casino, bingo, backgammon and other online games of skill and/or chance together with any other brands operated by us from time to time.
- "Cost Per Acquisition" (or CPA) means the Per Sign-Up Payment Plan referred to in 2.16 below.
- "Electronic Marketing Rules" means our rules for electronic marketing activities which are attached hereto and form an integrated part of this T&C.
- "Fraud Traffic" means, especially but not limited to, any simulated new Player, any simulated introduction of a Player via your Referrer ID, any double introduction of an individual Player already introduced, any introduction in pretence, any acquisition of Players and/or data through illegal means or similar action, or Players generated via the use of illegal measures and disrupting marketing methods, Spam as defined hereunder creation of false accounts and unauthorized use of any third-party accounts, collusion, manipulation of the service or system, any alterations or modification of the marketing material provided and the Intellectual Property rights. The judging whether an issue is to be considered Fraud Traffic or not, is in our sole discretion, regardless of whether or not it actually causes damages.
- "Group" means our ultimate holding company and any subsidiary companies of our holding company.
- "Intellectual Property Rights" means rights to all existing and future patents, trademarks, design rights, service marks, trade dress, trade or business names (including domain names), registered designs, copyright (including rights in computer software), moral rights, database rights, format rights and topography rights (whether or not any of these is or are registered and including applications for registration), know-how, trade secrets and rights of confidence and all rights and forms of protection throughout the world of a similar nature or with similar effect to any of these for the full unexpired period of any such rights and any extensions and/or renewals thereof, including the words "Gametwist” and/or any logo, mark, domain name or trade name that contains, is confusingly similar to or is comprised of Our Marks (or parts thereof) or any other name or mark owned from time to time by us or any company within the Group.
- "Marketing Materials" means Banners and Text Links and any other marketing materials (that may include Our Marks and Intellectual Property Rights - see 2.9 above) that have been provided or otherwise made available to you via the Affiliate System and/or pre-approved in writing by us.
- "Minimum Required Purchase" means the minimum amount to be paid by a Player required for your Affiliate Accrual, which will be available to you after duly registration with our Affiliate System and is to be treated strictly confidential. We reserve the right to alter the said amount at any time by virtue of placing notice on the Site. All amounts are calculated in Euros and may be converted into alternative currencies as indicated on the Gametwist Affiliate Site at a rate determined by us in our sole discretion from time to time.
- "Net Margin” means the gross turnover generated via one Player within one month less tax, cost for payment providers, costs for app store providers and administration fees (such as handling fees).
- "Payment Plan" means the payment plan you choose.
- "Player Account" means a uniquely assigned account that is created for a Player when he/she successfully registers for the Services via a Referrer URL.
- "Player(s)" means any person who is attached to your Referrer who: (i) has not been a Player with us before; (ii) is not located in a Restricted Territory; (iii) who has made the Minimum Required Purchase; (iv) is accepted as a Player under any applicable sign up or identity verification procedure which we may require; (v) has accumulated the required number of Games notified to you after duly registration with our Affiliate System ; and (vi) has adequately fulfilled any other qualification criteria that we may introduce from time to time. Notwithstanding any other provisions contained elsewhere in this Agreement, we reserve the right to alter the above-mentioned qualifying criteria at any time by virtue of placing notice on the Site.
- "Restricted Territories” means the United States of America, Turkey, Cuba, Iran, North-Korea, Sudan and Syria and/or any other country ao qualified by us at any time by virtue of placing notice on the Site.
- "Services" means any product or service offered to Players on our Sites.
- "Sites" means the websites and any other online site or platform that are owned, operated or controlled by or on behalf of us or the Group from time to time and each of its related pages through which a Player opens a Player Account and/or accesses our Services.
- "Spam" means any email or other electronic communication you send that markets, promotes or that otherwise refers to us, the Site or our Services from time to time, or that contains any Marketing Materials, Our Marks or Referrers and that breaches our Electronic Marketing Rules.
- "Term" means the period from the date that you acknowledge and accept the terms of this Agreement by registration in the Affiliate System, until such time as this Agreement expires or is terminated in accordance with its terms.
- "Referrer(s)" means the unique Referrer URL that we provide exclusively to you, through which we track Players´ activities and calculate Affiliate Accruals.
- "Referrer URL" means a unique hyperlink or other linking tool for referencing our Site or Services through which you refer potential Players. When the relevant Player opens their Player Account, our system automatically logs the Referer URL and records you as the Affiliate.
- "Website(s)" means the Gametwist Partners affiliate website located at the URL www.gametwistaffiliate.com and at any URL with which we replace such URL from time to time (and such other web addresses that are owned, operated or controlled by or on behalf of us from time to time and that make available such website) and each of its related pages.
C. Terms & Conditions
- Identity and Disclosure: You shall provide true and complete information to us when completing the registration log-in and promptly update such information if all or any part of it changes. You shall also provide us with such other information as we may reasonably request from time to time.
- Marketing Activities and Responsibilities: You shall market to and refer potential Players to the Sites. You will be solely liable for the content and manner of such marketing activities. All such marketing activities must be professional, proper and lawful under applicable rules, regulations or laws (including any laws in relation to the content and nature of any advertising or marketing of games) and otherwise comply with the terms hereunder and shall allow for our reputation. You shall not yourself, nor shall you authorize, assist or encourage any third party to:
- Place Marketing Materials on any online site or other medium where the content and/or material on such website or medium is potentially libellous, malicious, discriminatory, obscene, unlawful, sexually explicit, pornographic or violent or that is, in our sole discretion otherwise unsuitable or undesirable or potentially causing material disrepute;
- Develop and/or implement marketing and/or public relations strategies that have as their direct or indirect objective the targeting of marketing of us, the Sites and/or the Website to any persons who are less than 18 years of age (or such higher age as may apply in the jurisdiction that you are targeting), regardless of the age of majority in the location where you are marketing;
- Breach the Electronic Marketing Rules;
- Use Marketing Materials in a manner that may potentially confuse or mislead a Player or potential Player;
- Place Marketing Materials on any online site or other medium where the content and/or material on such online site or medium (i) infringes any third party’s Intellectual Property Rights (ii) Copies or resembles the Site in whole or in part (iii) disparages us or otherwise damages our goodwill or reputation in any way (iv) frames any page of the Site in whole or in part;
- Read, intercept, modify, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to us by any other person;
- In any way alter, redirect or in any way interfere with the operation or accessibility of the Sites or any page thereof;
- Register as a Player on behalf of any third party, or authorize or assist (save by promoting the Site and Services in accordance with this Agreement) any other person to register as a Player;
- Take any action that could reasonably cause any Player confusion as to our relationship with you or any third party, or as to the ownership or operation of the site or service on which any functions or transactions are occurring. Any further disclosure of or reference to us requires our prior written consent;
- Post, serve or publish any advertisements, communications or promotional content promoting the Site, our Services, Intellectual Property Rights or Our Marks around or in conjunction with the display of the Site and/or any part or page thereof (for example and without limitation through any "framing" technique or technology or pop-up windows or pop-under windows or interstitials);
- Cause any of the Sites (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 Banners or Text Links contained in or as part of Marketing Materials;
- Attempt to intercept or redirect (including via user-installed software) traffic from or on any online site or other place that participates in our Affiliate System;
- Use any means to promote any of the Sites that resemble in any way the look and/or feel of any of the Sites whether in whole or in part, nor utilize any such means or site to create the impression that such sites are the Sites (or any part of the Sites);
- Attempt to communicate to Players whether directly or indirectly on our Sites to solicit them to move to any online site not owned by us or for other purposes including but not limited to via email, chat boards, or spamming our tables without our prior approval.
- Market or promote (or attempt to market or promote) our Services (or any specified part thereof) or Sites (or specific Site) within the Restricted Territories and/or territories where online social gaming or promoting and marketing thereof is illegal; to attempt to circumvent any restriction which we have put in place to prevent players from Restricted Territories from signing up as Players; or attempt to disguise to geographical location of a Player.
If we determine, in our sole discretion, that you have engaged in any of the foregoing activities or you have attempted to do so, we may (without limiting any other rights or remedies available to us) withhold and/or forfeit any Affiliate Accruals and/or terminate this Agreement immediately on notice.
- Approved Marketing Materials. In providing the marketing activities referred to in Section C.2, you shall only use the Marketing Materials provided by us. You shall not modify the Marketing Materials or Our Marks in any way without our prior written consent. You shall only use the Marketing Materials in accordance with the terms of this Agreement, any guidelines we provide to you on our Site or otherwise from time to time and any applicable laws and regulations. During the term of this Agreement, we grant you a terminable, temporary, non-exclusive, non-transferable right to use the Marketing Materials (and any of our Intellectual Property Rights) for the sole purpose of fulfilling your obligations under this Agreement.
- Competitive Marketing. You shall not market the Site and/or us or our Services or Our Marks in any way whatsoever, unless such activities are approved in writing by us (i) on any website on which we promote any of the Sites; (ii) on or through any Internet search engine on or through which we promote any of the Sites; and (iii) in any other manner that results in you competing with us in relation to the promotion of any of the Sites or (iv) otherwise where we request that you cease the same.
- Non Assignment. Without prejudice to Section H.6, you acknowledge and agree that Referrers are for your sole use and you shall not assign or sub-license (as appropriate) the Referrer IDs or any Affiliate Accruals to any third party without our prior written consent.
- Commercial Use Only. This marketing opportunity is for commercial use only. You shall not register as a Player or purchase virtual goods using any Player Account (directly or indirectly) through your Referrer(s) for your own personal use and/or the use of your relatives, friends, employees, agents or advisors, or otherwise attempt to artificially increase the Affiliate Accruals payable to you. Violation of this provision shall be deemed to be Fraud Traffic.
- Player Information. We reserve the right to refuse service to any potential Player and to close the Player Account of any Player, at any time, in our sole discretion. All data relating to the Players shall, as between you and us, remain our exclusive property and you acquire no right to such information except pursuant to our express written instructions.
- Trademarks and Domain Names. You acknowledge that Funstage Spielewebseitenbetriebsges.m.b.H and/or its affiliates within the Group and licensees, own all Intellectual Property Rights comprised in any and all of the Marketing Materials, our Services, the Site and Our Marks. Any use of any trade mark, domain name or trade name that contains, is confusingly similar to or is comprised of Our Marks or parts thereof (other than in accordance with the terms of this Agreement) without our prior written permission shall be unauthorized and further may constitute Fraud Traffic. By way of example, but without limitation, you may not register a domain name that includes our marks or parts thereof or marks confusingly similar to our marks. You agree that all use by you of Our Marks including any use of our Intellectual Property Rights or domain name that includes Our Marks and/or Intellectual Property Rights or marks confusingly similar to our Marks and/or Intellectual Property Rights inures to our sole benefit and that you will not obtain any rights in Our Marks as a result of such use. You shall not register or attempt to register any trademarks or names that contain, are confusingly similar to or are comprised of Our Marks. You hereby agree to transfer any domain names or trade mark application or registrations in respect of Our Marks or marks confusingly similar to Our Marks you may hold or control to us upon demand. You further agree not to attack or challenge our ownership of and title to Our Marks and/or Intellectual Property Rights in any way.
- No Group Employees. If you are an officer, director, employee, consultant or agent of the Group or one of its subsidiary parent or associated companies, or suppliers or vendors, you are not permitted to participate in the Affiliate System or to use directly or indirectly any of the Sites, other than in the course of your employment as a Group employee. Similarly, ´relative´ of Group employees are not permitted to participate in the Affiliate System or to use directly or indirectly any of the Sites. For these purposes, the term relative shall include (but not be limited to) any of a spouse, partner, parent, child or sibling.
- All Players generated via your marketing activities are exclusively customers of Funstage Spielewebseitenbetriebsges.m.b.H. and all data of or regarding said Players is the sole and unrestricted property of Funstage Spielewebseitenbetriebsges.m.b.H., regardless whether such Players have already used our services or not.
D. Reports & Payments
- Reports. We will track and report Player activity for purposes of calculating your Affiliate Accruals based on your chosen Payment Plan. The form, content and frequency of the reports may vary from time to time in our sole discretion. In addition, daily reports may be available online for you to view new Players per Referrer. We hereby exclude any and all liability for the accuracy or completeness of any such reports.
- Affiliate Accruals. Subject to Section D.4 below, Affiliate Accruals will be paid to you twice on a calendar month basis in accordance with your chosen Payment Plan after you have completed the registration process and/or where we have activated additional Referrers. We may elect not to accept your selected Payment Plan choice and we may convert any Payment Plan and any associated Referrers provided hereunder from a Percentage Payment Plan to a Per Sign-up Payment Plan or vice versa or to any other Payment Plan that we may operate from time to time, at any time, on notice to you.
For the purpose of calculating the turnover, the assessment base shall not be adjusted or affected in any way by turnovers generated with users, who were referred by your advertising method, that do not result directly from the usage of games published only on http://www.gametwist.com (e.g. the usage of other services provided by Funstage by users solicited by you).
- There are several alternative Payment Plans from which you can choose. The Payment Plan that you choose will apply to all Sites within the Affiliate System.
- Per Sign Up Plan (also known as a Cost Per Acquisition or ´CPA´ Plan) based on an amount per each Players that you introduce via your Referrer ID as outlined under http://www.gametwistaffiliate.com/affiliate/display.asp?page=pafe_commission ( "Per Sign-up Plan"), or
- Percentage Plan (also known as Revenue Share plan or any other plan notified or agreed by us in writing from time to time. Monthly Gross Revenue or ´MGR´ Plan) based on a share of the Net Margin generated by Players within one month as outlined under http://www.gametwistaffiliate.com/affiliate/display.asp?page=pafe_commission ("Revenue Share plan ")
- Plan according to individual agreement
You are entitled to receive Affiliate Accruals calculated based on the applicable Payment Plans that are allocated to your Referrers during the term of this Agreement or whilst the concerned Player is operational.
To avoid doubt, you will not be entitled to receive any Affiliate Accruals for revenues generated by Players not generated via your Referrer URL or already on our Sites except as set out in the Payment Plan you choose for the Sites that are part of the Affiliate System. Further any Payment is excluded for Players generated via Fraud Traffic, if so considered on our sole discretion.
- Minimum Payment and Time of Payment. All Affiliate Accruals generated through your chosen Payment Plan will be paid into your Affiliate Cashier Account within two weeks after Approval of your Accruals (twice a month) for each preceding two weeks. We may impose reasonable restrictions on the frequency and amounts that can be cashed out of your Affiliate Cashier Account for administrative convenience and/or to protect the security of your account. Further, if the amount due is negative in any particular month, then that negative amount will carry over and be deducted against the following month.
- Holdover for Fraud Traffic. In the event that, in our sole discretion, we suspect any Fraud Traffic, then we may delay payment of the Affiliate Accruals to you for up to one hundred and eighty (180) days while we investigate and verify the relevant transactions. We are not obligated to pay Affiliate Accruals in respect of Players who, in our sole discretion, are not verifiably who they claim to be or are otherwise involved with Fraud Traffic. In the event that we determine any activity to constitute Fraud Traffic, or to otherwise be in contravention of this Agreement, then in our sole discretion we may: (i) pay the Affiliate Accruals in full, (ii) recalculate them in light of such suspected Fraud Traffic and/or (iii) forfeit your Affiliate Accruals in respect of Fraud Traffic (as appropriate).
- Method of Payment. All payments to you will be due and payable in Euro or such other currency as we will determine, regardless of the currency any Players assigned to your Referrer may have purchased virtual goods in. Payment will be made by any method as we in our sole discretion decide; however, we will use reasonable endeavours to accommodate your preferred payment method. Charges for payouts will be covered by you and deducted from your Affiliate Accruals. For the avoidance of doubt, we have no liability to pay any currency conversion charges or any charges associated with the transfer of monies to your Affiliate Cashier Account.
- Player Tracking. You understand and agree that potential Players must link through using your Referrer ID in order for you to receive Affiliate Accruals. In no event are we liable for your failure to use Referrer. Notwithstanding any other provision herein, we may at any time and in our sole discretion alter our tracking system and reporting format.
- Disputes. If you disagree with the monthly reports or amount payable, do NOT accept payment for such amount and immediately send us written notice of your dispute. Dispute notices must be received within ten (10) working days of our making available your monthly report or your right to dispute such report or payment will be deemed waived and you shall have no claims in such regard. Further, acceptance of payment transfer from us by you will be deemed full and final settlement of Affiliate Accruals due for the month indicated. In case we have not received any such notice within ten (10) working days you shall be considered as accepting the statement provided. In case you give founded notice in time and in writing, the parties shall find an amicable solution within thirty (30) days starting with the receipt of the founded notice by us. Should no amicable agreement be found within thirty (30) days, an independent certified accountant shall be nominated to examine the statement. In case the parties are not able to agree on one certified accountant, the accountant shall be nominated by the president of the Austrian chamber of commerce. The parties shall then provide access to the relevant records to the nominated accountant and shall amicably schedule an appointment therefore; considering a three day notice period in advance. Based on the result of the accountants examination which shall be finally binding for both parties the statements in question shall be corrected respectively. In case the correction of the statements results in a deviation to the disadvantage of yours up to more than 10%, the expenses for the accountant shall be borne by us, otherwise, the expenses for the accountant shall be borne by you.
Notwithstanding the foregoing, if any overpayment is made in the calculation of your Affiliate Accruals, we reserve the right to correct such calculation at any time and to reclaim from you any overpayment made by us to you or to deduct such overpayments from future Affiliate Accruals payments.
- Money Laundering. You shall comply with all applicable laws and any policy notified by us through our Site or otherwise in relation to money laundering and/or the proceeds of crime.
- Taxation. All taxes due in connection with any payments to you are your sole liability. You are responsible for complying with the rules, if any, for registering for and paying income tax and similar taxes in respect of your income from this agreement and for collecting and paying the income tax and social security contributions in respect of your staff, if you have any staff. If Value Added Tax (VAT) or any other sales tax or turnover tax is chargeable, you are responsible for complying with the rules, if any, for registering for the tax and collecting and paying tax in the country where the services are provided and you acknowledge that the payments that you receive shall be deemed to include all VAT or sales tax or turnover tax.
E. Term and Termination
- Term and Termination. This Agreement will take effect upon your first registration and continue until terminated in accordance with the terms of this Agreement.
- You may terminate this Agreement, with or without cause, immediately upon written notice to us that you may send by email marked "Termination Gametwistaffiliate" to firstname.lastname@example.org. For the avoidance of doubt, termination of the Agreement will end your participation in the Affiliate System as a whole. You may not terminate any Site in isolation.
- We may terminate this Agreement or without terminating this Agreement as a whole, any specific Referrers, without cause at any time, upon written notice to you that we may send by email to such email address you have provided to us or by fax to such fax number you may have provided to us. In the event we terminate the Agreement as a whole, we shall be entitled to automatically render any Referrers inoperative. For the avoidance of doubt, on termination of this Agreement you will no longer receive any Affiliate Accruals. If we terminate a specific Referrer, you will no longer receive any Affiliate Accruals through that Referrer; however, your remaining Referrer will not be affected.
- Suspension By Us. In any circumstance where we are entitled to terminate this Agreement or terminate any specific Referrer, we may at our sole discretion and without prejudice to our further rights and remedies, suspend the Agreement or any specific Referrer. During the period of any suspension, we may withhold the payment of any Affiliate Accruals that relate to any affected Referrer. Payment of any withheld Affiliate Accruals will be made to you on the lifting of the suspension.
- Automatic Termination By Us If Your Account Is Inactive. If your Affiliate Account is inactive, your Agreement and participation in the Affiliate System will automatically terminate. In this Section, "Inactive" means where (i) you have not generated sufficient Affiliate Accruals to trigger a payment into your Affiliate Account or you have not cashed out any funds (through a withdrawal) for one hundred eighty (180) days or more; or (ii) you have failed to respond to any verification mails sent to you within a reasonable time. Where automatic termination occurs, any funds remaining within your Affiliate Account will be forfeited and revert to us.
- In the event of termination of this Agreement, all Affiliate Accruals generated through your chosen Payment Plan will be paid into your Affiliate Cashier Account within ten (10) days of the close of the last calendar month, however, you must withdraw all monies in your Affiliate Cashier Account within thirty (30) days of sending the above-mentioned email. If such monies have not been withdrawn by such time then they shall be deemed forfeited and shall revert to us.
- Effect of Termination. The following will apply where we terminate:
- You shall stop promoting the Sites and all rights and licenses given to you under this Agreement will terminate immediately.
- You shall return all confidential information and cease use of any of Our Marks, Intellectual Property Rights and the Marketing Materials.
- We may leave open, redirect or deactivate any Referrer in our sole discretion without any obligation to pay you for potential Players who subsequently become Players.
- Provided that we have paid or do pay to you such sums as are due at the date of termination and that shall be subject to any rights we have to make deductions hereunder, we will have no further liability to pay you any further sums.
- Sections 2, 6 and 8 of this Agreement as well as all restriction as re the Intellectual Property Rights and such other provisions as are necessary for the interpretation or enforcement of this Agreement shall survive any termination or expiry of this Agreement.
- No Warranties. We make no warranties or representations (whether express or implied by law, statute or otherwise) with respect to the Affiliate System, our sites, our website or any content, products or services available therein or related thereto or that our sites, the website, system, network, software or hardware (or that provided to us by third parties) will be error-free or uninterrupted or with respect to the quality, merchantability, fitness for particular purpose or suitability of all or any of the foregoing. Except as expressly stated otherwise in this agreement, all warranties, representations and implied terms and conditions are hereby excluded to the fullest extent permitted by law. Furthermore, neither we (nor our providers or underlying vendors) are required to maintain redundant system(s), network, software or hardware.
- You warrant and represent that all your activities rendered under this Agreement do not violate any laws or regulations especially but not limited to certain limitation as to age and/or online social gaming and are in compliance with all local and EC data protection provisions especially but not limited to, the data of the Players, that the operation, promotion, offering and/or marketing of the Site and services by you does not violate any laws, regulations and/or any other provision and does not cause material disrepute. Upon request you shall be obliged to provide a written declaration with respect to the compliance with all applicable laws. You shall indemnify and hold Funstage Spielewebseitenbetriebsges.m.b.H. harmless against any claims of third parties related to or arising from any breach of such data protection provisions including costs and expenses necessary for any court and/or out of court proceedings.
- Billing and Collection Limitations. We may, in our sole discretion, use any available means to block, restrict, remove or discount from your Referrer certain Players, purchases or play patterns or reject the applications of potential Players and/or Affiliates so as to reduce the number of fraudulent, unprofitable transactions or for any reason. We do not guarantee, represent or warrant the consistent application and/or success of any fraud prevention efforts.
- Liability Limitations. Our obligations under this Agreement do not constitute personal obligations of the owners, directors, officers, agents, employees, vendors or suppliers of the Site or Services other than as provided under this Agreement. Other than as expressly provided in this Agreement, in no event will we be liable for any direct, indirect, special, incidental, consequential or punitive loss, injury or damage of any kind (regardless of whether we have been advised of the possibility of such loss) including any loss of business, revenue, profits or data. Our liability arising under this Agreement, whether in contract, tort (including negligence) or for breach of statutory duty or in any other way shall only be for direct damages and shall not exceed the revenues generated and payable to you in relation to the Site(s) that the dispute relates to over the previous 12 months at the time that the event giving rise to the liability arises. However, nothing in this Agreement will operate to exclude or limit either party’s liability for death or personal injury arising as a result of that party’s negligence or for fraud.
- Indemnification. You shall defend, indemnify and hold us and our officers, directors, employees and representatives harmless on demand from and against any and all claims, demands, liabilities, losses, damages, costs and expenses (including reasonable legal fees) resulting or arising (directly or indirectly) from your breach of this Agreement.
Set off. Without prejudice to any other rights or remedies available to us under this Agreement or otherwise, we shall be entitled to set off any payments otherwise payable by us to you hereunder, against any liability of you to us, including any claims we have against you resulting from or arising from, your breach of this Agreement.
G. Independent Investigation
- Independent investigation. You warrant that you have independently evaluated the desirability of marketing the site or services.
- Independent research. You understand that gambling laws as well as laws re the promoting and marketing of games may vary from city to city, state to state and country to country. You warrant that you have independently evaluated the laws that apply to your activities and believe that you may participate in our Affiliate System without violating any applicable rules or laws.
- Notices. All notices pertaining to this Agreement will be given by email as follows: to you at the email address provided by you on the Affiliate Sign-up Form (or as subsequently updated by you to us in the event of change), and to us: email@example.com Any notice sent by email shall be deemed received on the earlier of an acknowledgement being sent or twenty-four (24) hours from the time of transmission.
- Relationship of Parties. There is no relationship of exclusivity, partnership, joint venture, employment, agency or franchise between you or us under this Agreement. Neither party has the authority to bind the other (including the making of any representation or warranty, the assumption of any obligation or liability and/or the exercise of any right or power), except as expressly provided in this Agreement.
- Non-Exclusive. You understand that we may at any time (directly or indirectly), enter into marketing terms with other Affiliates on the same or different terms as those provided to you in this Agreement and that such Affiliates may be similar, and even competitive, to you. You understand that we may re-direct traffic and users from any of the Sites to any other online site that we deem appropriate in our sole discretion, without any additional compensation to you.
- Confidentiality and Non Disclosure. As an Affiliate, you may receive confidential information from us, including confidential information as to our marketing plans, marketing concepts, structure and payments. This information is confidential to us and constitutes our proprietary trade secrets. You shall not disclose this information to third parties or use such information other than for the purposes of this Agreement without our prior written consent, save as expressly required by law (provided that any such disclosure is only to the extent so required).
- Press. You may not issue any press release or other communication to the public with respect to this Agreement, Our Marks or your participation in this Affiliate System without our prior written consent, except as required by law or by any legal or regulatory authority.
- Assignment. Except where you have received our prior written consent, you may not assign at law or in equity (including by way of a charge or declaration of trust), sub-license or deal in any other manner with this Agreement or any rights under this Agreement, or sub-contract any or all of your obligations under this Agreement, or purport to do any of the same. Any purported assignment in breach of this clause shall confer no rights on the purported assignee.
- Governing Law. This Agreement (including any variation or modification thereto) shall be deemed executed in Austria and shall be governed by and construed in accordance with the laws of Austria without giving effect to conflicts of law principles. You irrevocably agree that, subject as provided below, the courts Austria shall have exclusive jurisdiction to determine any claim, dispute or matter arising out of, or in connection with, or concerning this Agreement or its enforceability and you waive any objection to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been brought in an inconvenient forum. Nothing in this clause shall limit the right of us to take proceedings against you in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
- Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law but, if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such provision will be ineffective only to the extent of such invalidity, or unenforceability, without invalidating the remainder of this Agreement or any other provision hereof.
- Entire Agreement. This Agreement embodies the complete agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes any prior or subsequent oral or written agreement or understanding between the parties in relation to such subject matter save in respect of modification to this Agreement provided by us to you in accordance with Section 1.3 above. Each of the parties acknowledges and agrees that in entering into this Agreement, it has not relied on any statement, representation, guarantee warranty, understanding, undertaking, promise or assurance (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in the Agreement. Each party irrevocably and unconditionally waives all claims, rights and remedies that, but for this clause, it might otherwise have had in relation to any of the foregoing. Nothing in this Section shall limit or exclude any liability for fraud.
- Third-Party Rights. Except insofar as this Agreement expressly provides that a third party may in their own right enforce a term of this Agreement, a person who is not a party to this Agreement has no right under local law or statute to rely upon or enforce any term of this Agreement but this does not affect any right or remedy of a third party that exists or is available apart from under that local law or statute.
- No Waiver By Us. If there is a breach of any provision of this Agreement, it shall be considered as a waiver of any subsequent breach of the same or any other provision.
Terms and Conditions
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