Affiliate Partner Agreement
BatSleep Limited, a company with registration number C 91357 having its registered office at 97, Windsor Street, Malta, Sliema SLM 1853 (hereinafter referred to as the "Advertiser"),
The Person/ the Company set out on the relevant application form (hereinafter referred to as the “Partner”),
collectively referred to as the “Parties” and separately – as the “Party”,
WHEREAS the Advertiser is the company responsible for marketing the offering and the services including casino games provided by Mobile Incorporated Limited (hereinafter referred to as the “Mobinc”), websites as defined hereunder.
WHEREAS by ticking the box and submitting the Partner application on the Advertisers web page (or sending to Advertiser in other way agreed), the Partner accepts and agrees to comply with all the following terms and conditions and with all applicable legislation, and thereby the Agreement becomes binding for the Partner.
WHEREAS this Agreement takes affect and becomes binding for the Parties the day when the Advertiser has evaluated the Partner application and supportive documents and has approved the Partner.
1.1. In this Agreement:
"Action" means a specific Player’s activity or a combination of activities specified in the Agreement, which may, under the conditions provided in the present Agreement, be considered a Deliverable.
"Agreement" means this Affiliate Partner Agreement that defines the general terms and conditions between the Advertiser and the Partner and contains all necessary instructions given by the Advertiser to the Partner with regard to the Advertising Services to be performed.
"Advertiser" means a legal entity specified in the Agreement that places an order for the Advertising Services. The Advertiser has a binding agreement with the Mobinc where Advertiser undertakes to advertise the Product.
“Applicable Laws”- applicable Laws of Malta, following the guidelines of the respective territory.
"Brand" means any names, logos, trade marks, symbols, emblems, marks or designations of Mobinc used in connection and is related to the Product.
"Advertising Materials" means graphical or textual information specified in the applicable Agreement which is either provided by Advertiser to Partner or created by Partner at the direction of Advertiser in accordance with paragraph 2 of this Agreement, and which is aimed at marketing and promoting the Product on the market.
"Advertising Services" means the distribution of the Advertising Materials over the internet using various online delivery methods for the purpose of marketing and promoting the Product and bringing it to the attention of potential customers of the Mobinc.
"Attribution Window" means a period of time specified in the Agreement that allows certain Player’s activity or a combination of activities to qualify as a Deliverable, provided that they are performed within the Attribution Window.
"Billing Model" means a method of calculating the Service Fee due to Partner for the Advertising Services (cost per click (CPC), cost per install (CPI), cost per action (CPA), etc.).
"CPA" means a Billing Model, whereby the Advertiser pays for each specified Action.
"CPC" means a Billing Model, whereby the Advertiser pays when Player follows the link contained in the Advertising Materials.
"CPI" means a Billing Model, whereby the Advertiser pays for each install of the particular application specified by the Advertiser.
"CPM" means a Billing Model, whereby the Advertiser pays for each thousand (1 000) impressions of Advertising Materials.
"Data Protection Legislation" means European Regulation (EU) 2016/679 and Directive 2002/58/EC and any legislation and/or regulation implementing or made pursuant to them, or which amends, replaces, re-enacts or consolidates any of them, and all other applicable laws relating to processing of personal data and privacy that may exist in any relevant jurisdiction.
"Deliverable" means, depending on the Billing Model applied, the Player’s click, impression, install, Action, another activity or combination of activities, which serve a basis for calculation and payment of the Service Fee, as in more detail provided in Section 5 below.
"Double Opt-In Registration" or "DOI Registration" means a type of registration, whereby an Player fills out a registration form on Mobinc web page, receives a link to his/her e-mail and follows this link confirming the registration.
"Mobinc" means Mobile Incorporated Limited, registered in Malta under company number C 84149 whose registered address is at Elite Business Centre, Treja ta' Box Box, Msida MSD 1840, Malta; Mobinc holds following license and certificate granting a right to provide gabling services:
- Malta Gaming Authority license on Gaming services number MGA/B2C/818/2020; AND
- Alcohol and Gaming Commission of Ontario (AGCO) certificate of registration on online gambling services with number OPIG1241834.
"Product" means the remote casino operated by Mobinc and made available to Players in the Territory through the domain name(s) specified in the Agreement.
“Parties” shall mean the Advertiser and the Partner (each a "Party").
"Partner" shall mean the person or entity that applies to participate in the Affiliate Program.
"Partner Sites" means those websites owned and/or operated by or on behalf of the Partner, as specified in the Agreement and any other such websites as may be approved by the Advertiser in accordance with Section 2 below.
“Player”- a person who takes part in games including casino games provided by Mobinc.
"Self-Excluded Player" means any individual that has self-excluded from the Product (including via any overarching national self-exclusion scheme).
"Service Fee" has the meaning provided in Section 4 below.
"Territory" means the country(ies) specified in the Agreement or in any additional agreement made between Parties.
"Spam" means emails and messages that are sent by Partner, directly or indirectly, which: 1) contain false or misleading statements; 2) do not truthfully identify the source or the originating IP Address; or 3) do not contain an online and real time Remove option - for the avoidance of doubt, any Partner who intends mailing for traffic must contact the Advertiser before starting mailing and get a written approval for such activity. Failure to get approval for mailer traffic will result in Agreement immediate termination and any payments withheld.
"Fraud Traffic" means traffic generated to the Product through illegal means or in bad faith to defraud the Advertiser or Mobinc, regardless of whether or not it actually causes them harm. Fraud Traffic includes but is not limited to Spam, false advertising and unauthorized use of any third-party copyrights or trademarks. Fraud Traffic also includes but is not limited to using commissions to solicit Players and divulge or publicize what commissions have been agreed between the Partner and the Advertiser. Any offer to Players that include a percentage of the Partner commission is strictly forbidden and can lead to the immediate termination of this Agreement and the non- payment of Partner revenue (commission). Fraud Traffic also includes the staking or incentivizing of Players in an attempt to get CPA paid as a result. All forms of this activity will result in Partner CPA commission or any Revenue commission not being paid. Additionally, CPA will not be paid for any incentive traffic and for any users (Players) of the services including casino games provided by Mobinc, encouraged using systems and methods such as the doubling system in casinos which is regarded as CPA abuse. For CPA to be paid the traffic must not be Bonus seekers and there should be no personal relationship whatsoever between the Partner and the Players. The Partner can under no circumstances deposit and play under his own CPA and/or Revenue Share account. To be clear, the use of one's own Partner tracker to deposit and play is strictly forbidden.
2. RELATIONSHIP OF THE PARTIES
2.1. The Advertiser engages Partner and Partner undertakes to provide the Advertising Services in the Territory to the benefit of the Mobinc.
2.2. Partner acknowledges and agrees that the fact of signature by both Parties of the Agreement represents neither the Advertiser commitment to spend certain amount of money on the Advertising Services, nor irrevocable authorization by the Advertiser to the Partner to perform the Advertising Services. The Advertiser shall have the absolute right to immediately terminate the Agreement by giving a corresponding notice to Partner via email at any time before the Advertising Services actually started.
2.3. The Advertiser acknowledges and agrees that the Product is provided by MOBINC under its relevant gambling licences and/or approvals. Advertiser is authorized by MOBINC (the owner and licensor of the brand under which the Product is operated) to be responsible for the marketing and promotion of the Product.
2.4. The Parties agree that, the Partner undertakes to cooperate with the Advertiser and/or Mobinc and submit all necessary documents related to the transaction (including, but not limited to, in regards to Know Your Client requirements and work performed under the Agreement), which the Partner and/or Mobinc requires during the collaboration of the Parties. Otherwise, the Partner has the right to withhold any payments until this requirement is fulfilled.
3. PARTNER’S OBLIGATIONS
3.1. The Partner shall only undertake Advertising Services on the Partner Sites, and shall not advertise and/or otherwise promote the Product on any websites unless and until the Advertiser has approved such website(s) (such approved websites each becoming a "Partner Site").
3.2. The Partner shall ensure that all Advertising Services undertaken by or on behalf of the Partner are undertaken in a socially responsible manner and in accordance with all legal and regulatory requirements, including:
3.2.1. Malta Gaming Authority: https://www.mga.org.mt/legislations-regulations/
3.2.2. Alcohol and Gaming Commision of Ontario: https://www.agco.ca/marketing-and-advertising and iGaming Ontario: https://igamingontario.ca/
3.2.3. all applicable laws and regulations related to consumer protection
3.2.4. all Applicable laws and regulations related to gambling, in each case as updated, amended, replaced or superseded from time to time. It is the Partner’s responsibility to make sure that she/he is aware when laws are enacted/updated and directives issued
3.3. If the Partner uses any social media platform in connection with the Advertising Services, the Partner shall (and shall procure from any third party that provides such Advertising Services on behalf of the Partner that it shall) fully comply with such social media platform's terms and conditions (as may be updated from time to time).
3.4. Without prejudice to the rest of this paragraph 3 the Partner shall ensure that all Advertising Services undertaken by or on behalf of the Partner are targeted at the Territory only (including by reference to the language in which it is available) and comply with such written guidelines and/or other instructions as may be provided to the Partner by the Advertiser or Mobinc from time to time in relation to the marketing and promotion for the Product.
3.5. The Partner hereby warrants and undertakes:
3.5.1. to advertise and refer potential Players to the Product and Brand(s) at its own risk, cost and expense. The Partner will be solely responsible for the distribution, content, legality and manners of its marketing activities. All of the Partner's marketing activities must be professional, proper and lawful under applicable laws and regulations and in accordance with this Agreement;
3.5.2. to use its best efforts to actively and effectively advertise, market and promote the Product and Brand(s) as widely as possible in order to maximize the benefit to the Parties and that it will abide with the guidelines of the Company as may be forwarded from time to time and/or accessible online;
3.5.3. to be responsible for the development, the operation, and the maintenance of the Partner site(s) as well as for all material appearing on the Partner site(s);
3.5.4. not to target any jurisdiction/ territory where online gambling and the promotion thereof is illegal or prohibited, including targeting of individuals under the legal gambling age, or allowing, assisting or encouraging others to market and promote any of the Product and Brand(s) to anyone under the legal gambling age in the countries where they are domiciled;
3.5.5. to acknowledge the Advertiser's and Mobinc’s ongoing commitment for the prevention of gambling addiction;
3.5.6. not to generate traffic to the Product and Brand(s) by illegal or fraudulent activity, which may include but are not limited to:
§ presenting the Partner site(s) in such a way that it might evoke any risk of confusion with the Product and the Advertiser or Mobinc or convey the impression that the Partner site(s) is partly or fully originated with/from the Product and the Advertiser or Mobinc;
§ registering as a Player or make deposits directly or indirectly to any Player account through their tracker(s) for own personal use and/or the use of their relatives, friends, employees or other third parties, or in any other way attempt to artificially increase the commission payable or to otherwise defraud the Advertiser;
§ registering more than one Partner account within this Affiliate Program. Any exceptions must be confirmed in writing by the Advertiser;
3.5.7. not to use the Brand(s) or other terms related to the Brand(s), trademarks and other Intellectual Property Rights of the Mobinc, the Advertiser and/or its group of companies unless the Advertiser consents to such use in writing.
3.5.8. to use its reasonable endeavors to display the most up to date content of the Product and Brand(s) on the Partner site in a manner and location agreed by the Parties. The Partner shall not alter the form or operation of the Brand(s) without the Advertiser’s prior written consent;
3.5.9. not to engage in transactions of any kind on the Product on behalf of any third party, or authorize, assist, or encourage other third parties to do so;
3.5.10. to keep the Partner site content compliant with any content and phrasing obligations and/or restrictions imposed on the Advertiser by legal and/or regulatory requirements and/or third-party suppliers;
3.5.11. submit to Advertiser and/or Mobinc all the documents mentioned in Clause 2.4.
3.5.12. to obey advertising rules (Affiliate Marketing Policies which can access here: https://affiliates.conquestador.com/ ) for the respective territories.
3.6. The Partner shall:
3.6.1. not place any links and/or use the Brand and/or any other promotional content (including the Advertising Materials) alongside, in conjunction or in connection with, and shall ensure that the Partner Sites on which the Advertising Materials are posted do not contain:
§ any illegal or inappropriate content (including defamatory content or content which could incite violence, aggression, religious hatred or prejudice on the basis of race, religion, gender, sexual orientation, age or disability or illegal acts); or
§ any content which may harm the reputation of Mobinc and/or the Advertiser;
3.6.2. conduct itself, when performing its obligations and/or exercising its rights under this Agreement an applicable laws, as if it were bound by the same licence conditions and subject to the same codes of practice as Mobinc;
3.6.3. provide such information to Advertiser and/or Mobinc which Advertiser and/or Mobinc may reasonably require in order to enable it to comply with its information reporting and other obligations owed to the any relevant authority;
3.6.4. not do, omit to do or permit to be done, anything which may damage the reputation or goodwill of the Advertiser, MOBINC, the Product or any other remote gambling services provided by Mobinc; and
3.6.5. not do, omit to do or permit to be done, anything which may put any member of the Advertiser's and/or Mobinc's group of companies in breach of applicable law or the licence conditions and/or codes of practice attached to its gambling operating licence(s) from time to time.
3.7. The Advertiser reserves the right to immediately freeze and/or close the Partners account(s) and/or deduct money from the Partner if any traffic is deemed to have been referred through fraudulent means or in breach of the terms and conditions of the Agreement.
3.8. The Advertiser and the Mobinc reserves the right to remove a Player account registered in the Product platform that is deems fraudulent or abusive. Any commission from such a Player account might be deemed void at the Advertisor's and/or Mobinc’s sole discretion.
4. ADVERTISER OBLIGATIONS
4.1. The Advertiser shall provide the Partner with all information and marketing material necessary for the implementation of the respective links.
4.2. The Advertiser shall prepare and provide to Partner such Advertising Materials as The Advertiser considers are necessary for the provision of the Advertising Services. The Partner shall communicate to the Advertiser all technical and other requirements to the Advertising Materials that the Advertiser is required to take into consideration when preparing such Advertising Materials.
4.3. The Administrator shall administer the turnover generated via the links, record the net revenues and the total amount of commission earned via the links, provide the Partner with commission statistics.
4.4. The Advertiser shall pay the Partner its compensation depending on the traffic generated subject to the terms and conditions of this Agreement and its annexes.
5. ADVERTISING MATERIALS
5.1. At the Advertiser 's request, Partner shall prepare Advertising Materials according to the Advertiser 's guidelines. The Partner shall have a right to use such Advertising Materials in the course of performance of the Advertising Services only upon receipt of the Advertiser 's approval of such Advertising Materials sent via e-mail.
5.2. All Advertising Materials and other materials provided by the Advertiser to the Partner hereunder shall be used exclusively for the purposes of provision of the Advertising Services.
5.3. The Partner shall ensure that all the Advertising Materials render completely and function properly. All costs and damages resulting from technical problems relating to the Advertising Materials shall be borne by Partner.
5.4. The Advertiser may at any time decide to withdraw a particular Advertising Material from publication and/or replace it with any other Advertising Materials at its sole discretion. The Advertiser shall notify the Partner about its decision via email and the Partner shall withdraw and/or replace the Advertising Materials as instructed by the Advertiser no later than twenty-four (24) hours from the receipt of the respective request from the Advertiser. Upon the withdrawal of the Advertising Materials the Partner shall have no right to use such Advertising Materials in the course of performance of the Advertising Services.
6. SERVICE FEE
6.1. In consideration to the provision of the Advertising Services, the Advertiser shall pay Partner a Service Fee. The Service Fee might be defined as: (a) a fixed amount, or (b) might be calculated based on the rate for each Deliverable (specified in the Agreement or agreed additionally via email or other technical means) and the total number of Deliverables provided within each reporting period.
6.2. The Partner's acceptance of the payment of the Service Fee shall be deemed to constitute the full and final settlement of the balance due for the relevant period.
6.3. If the Partner disagrees with the balance due as reported, it shall notify the Advertiser within fifteen (15) days from the date of payment and state the reasons of the disagreement. Failure to notify the Advertiser within the prescribed time limit shall be deemed to be considered as an irrevocable acknowledgment of the balance due for the period indicated.
6.4. The Advertiser may in its sole discretion withhold the payment of any balance to the Partner if the Advertiser needs to investigate and verify that the relevant transactions comply with the provisions of the Agreement.
6.5. No payment shall be due if the Advertiser has reasons to believe that the traffic generated by the Partner is illegal or is in breach of any of the provisions of the Agreement.
6.6. The Partner agrees to immediately return all Service Fee received based on fraudulent or falsified transactions and indemnify the Advertiser for all costs and losses incurred in relation to such transactions (including, but without limitation, legal fees and, damages and costs).
6.7. Special ruling on Service Fee:
6.7.1. If any other partner of the Advertiser re-refers and activates a Player that has not been active for a period of twelve (12) months, then this other partner shall be entitled to the credit for the reactivation and the Player will be assigned to the other partner's Player. This reassignment shall not be based on an automatic time interval but shall be limited only to those re-referral actions that can be materially identified (e.g. via specific promotional codes and only after the set period of inactivity).
6.7.2. A Player that blocks him/herself for responsible gaming reasons within one (1) month from the date of registration shall be excluded from any CPA or Hybrid Commission.
6.8. The Service Fee includes all direct, indirect taxes, commissions, duties, bank charges and other similar levies and expenses that may arise in connection to the present Agreement and other applicable ruling. The Advertiser shall pay any banking fees for outgoing bank transfers and the Partner shall pay any subsequent banking fees charged by intermediary banks and the Partner's bank. The Partner shall bear all other expenses relating to the receipt of the Service Fee and pay all taxes that may arise in connection therewith.
6.9. The Service Fee shall be deemed to be duly paid at the time when the funds are debited from Advertiser's bank account specified in the Agreement or another bank account designated for payment by the Advertiser.
6.10. Service Fee shall be paid to the Partner according to the terms as specified in the Agreement.
6.11. Any payment under this Agreement shall be made in EURO unless agreed otherwise. Where currency conversion or exchange is required, it shall be based upon the exchange rate as obtained from the web site 'XE.com' on the date of payment.
7.1. For the purposes of the Agreement, a Deliverable shall mean the following activities:
7.1.1. if a "CPC" Billing Model is applied - each occasion when Player follows the link contained in the Advertising Materials specified in the Agreement;
7.1.2. if a "CPI" Billing Model is applied - each Player’s install (i.e. download, installation and first run) of a particular application after following the link contained in the Advertising Materials specified in the Agreement;
7.1.3. if a "CPM" Billing Model is applied - one thousand displays to Players of the Advertising Materials specified in the Agreement;
7.1.4. if a "CPA" Billing Model is applied - each Player’s action specified in the Agreement;
7.1.5. if another Billing Model is applied - another activity or a combination of activities specified in the Agreement.
7.2. Any activity or a combination of activities performed by Player at a source or as a result of use of a method listed as restricted in the Agreement shall not be considered a Deliverable and shall not form a basis for the Service Fee. Unless explicitly stated otherwise in the Agreement, an incentivized activity or a combination of activities of Players shall not be considered a Deliverable.
7.3. If a particular Attribution Window is specified in the Agreement, only activities performed within the Attribution Window shall form a Deliverable. If Player performs a particular activity or a combination of activities more than once within the same Attribution Window, only the last of such activities or a combination of activities shall form a Deliverable.
7.4. The Advertiser has a right to change the Attribution Window at any time by providing a reasonable notice via e-mail.
8.1. Within five (5) calendar days after the end of the reporting period, Partner shall furnish to the Advertiser appropriate truthful statements with regard to the scope of the Advertising Services provided during the reporting period (the "Partner's Report"). Each Partner's Report shall be sent via e-mail and contain at a minimum such essential information regarding the Advertising Services that is required for calculation of the Service Fee due to Partner at the end of the reporting period and such other additional
8.2. Notwithstanding anything herein to the contrary, total number of Deliverables provided within each reporting period shall be defined on the basis of the figures generated by the Advertiser's automated system that monitors the provision of the Advertising Services (the "Advertiser's Report"). In the event that at the end of the reporting period there is a discrepancy of more than ten percent (10%) between the Advertiser 's Report and Partner's Report, the Parties may agree to use Partner's Reports for the purposes of the definition of the number of Deliverables provided in the reporting period. In the event that the Parties are not able to reach an agreement with regard to which report to use (the Partner's or the Advertiser 's), the Parties may decide to involve an independent third-party specialist at 's expense for independent verification of the correctness of both Partner's Report and the Advertiser 's Report. Upon request of the Advertiser, the Partner shall grant to such specialist an unhindered free access to all necessary Partner's software, documents and information that relate to the provision of the Advertising Services. The purpose of such verification is to determine which report should be used as the basis for the Service Fee calculation.
8.3. In addition to the above, the Partner shall keep and maintain full, up to date and accurate original documents, books and records relating to all its activities under this Agreement. The Partner shall provide to the Advertiser within forty-eight (48) hours upon the Advertiser's request (which may be sent via email) such information as may be reasonably requested by the Advertiser in order to assist or enable the Advertiser and/or Mobinc to comply with applicable law and/or to assess the Partner's compliance with this Agreement and the applicable IO (the "Upon Request Reports"). Such Upon Request Reports shall be provided in the form suitable for the Advertiser and shall list all such information as requested by the Advertiser.
9. CANCELLATION OF ADVERTISING SERVICES
9.1. The Partner shall immediately cease any Advertising Services on request by the Advertiser if Advertiser considers that such marketing activities are in breach of this Agreement.
9.2. Without prejudice to the paragraph above, the Advertiser may at any time for or without cause cancel the Advertising Services in part or in full, whether provided by Partner directly, or provided by Partner through a third party platform, by sending a forty-eight (48) hours cancellation notice to Partner via email. The Advertising Services specified in the cancellation notice shall be considered to be cancelled in forty-eight (48) hours from the moment of receipt by Partner of the cancellation notice from the Advertiser (the "Cancellation Moment").
9.3. In the event of cancellation of the Advertising Services Partner shall be entitled to the Service Fee attributable to the Advertising Services actually performed as of the Cancellation Moment. Upon the Cancellation Moment Partner shall cease the respective Advertising Services. The Advertising Services performed after the Cancellation Moment shall not be payable by the Advertiser.
9.4. If the Service Fee has been paid to the Partner in advance, in the event of cancellation of the Advertising Services Partner shall return to the Advertiser the Service Fee reduced by the amount that accounts for the respective Advertising Services actually performed by Partner as of the Cancellation Moment. Such return payment shall be performed by Partner within fifteen (15) calendar days of the Cancellation Moment.
10. INTELLECTUAL PROPERTY
10.1. The Advertiser and/or its licensors own and will own all right, title and interest in and to all Advertising Materials whether created by the Advertiser or by Partner, to the Product and to any other materials provided by the Advertiser to Partner or created by the Partner in connection to the provision of the Advertising Services (the "Materials"), together with any and all copyright, trade secret, trademark and other intellectual property rights in any such Materials ("Advertiser’s IP Rights"). The Partner hereby assigns and transfers to the Advertiser, without separate compensation, all right, title and interest that the Partner may have or may hereafter acquire in the Materials and all related the Advertiser's IP Rights throughout the world in all mediums now known or hereafter invented free of any encumbrances or liens. The Partner will not contest the validity of the Advertiser's ownership rights or the Advertiser's IP Rights in and to the Materials and hereby waives any moral rights in and to the Materials.
10.2. Nothing contained in this Agreement shall be construed as an assignment or grant to Partner of any ownership right in or to the Advertiser's IP Rights, or any other right, title or interest in or to the Materials. Any use of the Materials shall inure to the benefit of the Advertiser.
10.3. At the request of the Advertiser, the Partner shall execute such form(s) of assignment of copyright or other papers as the Advertiser may reasonably request in order to confirm and vest in the Advertiser the rights in the Materials as provided for herein. In addition, in the event that Partner fails to comply with the Advertiser's request within fifteen (15) calendar days after written request by the Advertiser, Partner hereby appoints the Advertiser as Partner's Attorney-in-Fact to take such actions and to make, sign, execute, acknowledge and deliver all such documents as may from time to time be necessary to confirm in the Advertiser, its successors and assigns, all rights granted herein pursuant to this Section 10.
11.1. In performing of the Advertising Services, each Party may be exposed to the other Party's Confidential Information. "Confidential Information" means information that (i) is marked as confidential or proprietary, (ii) is disclosed under circumstances that would lead a reasonable person to understand that the information is confidential or proprietary, or (iii) is otherwise not known to the general public. Confidential Information may include, but is not limited to, current or future: (a) information, know-how, techniques, methods, information, concepts, ideas or trade secrets; (b) any business, marketing, customer or sales information; (c) any information relating to development, design or operation of technology infrastructure; (d) any information that is received from others that either party is obligated to keep confidential; (e) passwords or other access or security codes necessary to use or provide the Advertising Services or Deliverables; and (f) this Agreement and any communications related to it. Confidential Information may be disclosed in digital or electronic format, in writing, orally, visually, or in the form of drawings, technical specifications, or other tangible items which contain or manifest, in any form, the Confidential Information. Confidential Information does not include information that: (a) is or becomes generally available to the public without unauthorized disclosure; (b) is received by the disclosing party from a third party without restriction against disclosure; or (c) was known to disclosing party without restriction prior to disclosure.
11.2. If Partner collects any data on the users of the Advertiser's Product, such data shall be used exclusively for promotion of the Product according to the Agreement. Partner shall be liable for all proven damages resulting from any other use of such data.
11.3. The Parties agree, unless required by law or provided by the Advertiser to Mobinc, not to make each other's Confidential Information available in any form to any third party or to use each other's Confidential Information for any purpose other than in the performance of this Agreement and the Agreement.
11.4. The Parties agrees to take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but no less than reasonable care, to keep confidential the Confidential Information of the disclosing Party. Each party will use commercially reasonable standards and no less care than each party uses with its own Confidential Information to protect the other party's Confidential Information from unauthorized disclosures for a period of five (5) years from the date of disclosure. Each party acknowledges that, due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this Section and that such breach would cause irreparable harm to the non-breaching party; therefore, the non-breaching party shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it might have at law or under this Agreement.
12. DATA PROTECTION AND DIRECT MARKETING
12.1. The Partner shall comply at all times with all Data Protection Legislation and must not do, or omit to do, and must ensure that its personnel and other representatives do not do or omit to do, anything that would cause (or may be reasonably expected to cause) the Advertiser and/or the Mobinc to be in breach of any provision of any Data Protection Legislation. Upon the Advertiser's reasonable written request, the Partner shall provide the Advertiser with all co-operation and assistance reasonably requested by the Advertiser to demonstrate that the Partner is complying with Data Protection Legislation. The Partner shall notify the Advertiser promptly upon becoming aware of any breach of direct marketing laws (including Data Protection Legislation) in relation to the Product.
12.2. The Partner shall not send any direct marketing to any person unless such marketing has been approved in accordance with the process set out in this paragraph 12.3 below.
12.3. If the Partner wishes to send any direct marketing to any person in relation to the Product (whether via email, direct messaging on social media, SMS or any push notification) it shall notify the Advertiser of its plans in respect of such direct marketing and the Advertiser shall seek Mobinc's consent (which it may give or withhold in its sole discretion), on the Partner's behalf, in respect of such plans. If Mobinc provides its written consent to the Partner carrying out such marketing, the Advertiser shall notify the Partner of the same and the Partner shall (and shall procure from any third party that provides such services on behalf of the Partner that it shall):
12.3.1. provide: (i) the relevant marketing messages, links, use of the Brand and/or any other promotional content; and (ii) the intended recipient list, in each case to the Advertiser (for the Advertiser to provide to the Mobinc) at least two (2) weeks prior to the target send date in the format requested by Mobinc to enable Mobinc to approve (or not approve, in its sole discretion) the same;
12.3.2. if Mobinc provides its approval (which will be notified to the Partner by the Advertiser), only send such marketing (in the approved form) to its intended recipient list once Mobinc has provided prior written approval of the same on the day before the target send date. The Mobinc shall be entitled to require the Partner to remove any person from the recipient list for any reason, including but not limited to if the Mobinc believes that such person is a Self-Excluded Person. Partner shall not send any such marketing communication to any recipient if more than 24 hours have elapsed since the Mobinc's written approval of such recipient list;
12.3.3. include the Advertiser and Mobinc on its marketing list and send all such marketing to the Advertiser and Mobinc each time it uses such marketing (using such contact details as shall be provided to the Partner by the Advertiser from time to time);
12.3.4. without prejudice to the foregoing, only send such messages to recipients who have willingly and explicitly consented to receive marketing from the Partner in relation to the Product (and who have not withdrawn such consent), in accordance with applicable Data Protection Legislation, such consent having been reaffirmed by the recipient at least within the last year (and the Partner acknowledges that Mobinc's approval of any recipient list shall not be confirmation that any such recipient has consented to receive such marketing);
12.3.5. clearly display a message in each such communication to state who is sending such marketing communications (and confirm they are not being sent by Mobinc and/or the Advertiser and/or the Product);
12.3.6. clearly display an unsubscribe feature in each such communication clearly detailing methods of unsubscribing from the mailing list;
12.3.7. not send any promotional offers relating to the Product to recipients under the age of 18;
12.3.8. comply at all times with all applicable direct marketing laws and Data Protection Legislation; and
12.3.9. at least once every six months, and in any event on Mobinc 's and/or the Advertiser's request, provide written evidence to the Advertiser and Mobinc of its compliance with paragraph 10.
13.1. The Parties each warrant and represent that they have the right to enter into and be fully bound by the terms of this Agreement, that they have full authority to do so and that they have taken any and all corporate measures required.
13.2. the Partner represents and warrants to the Advertiser that:
13.2.1. it has the power and authority to enter into the present Agreement and into the applicable Agreement, and to transfer the rights as provided herein;
13.2.2. it has no agreement or understanding with any third party that interferes with or will interfere with its performance of its obligations under the Agreement;
13.2.3. the Advertising Materials will not infringe upon, violate or misappropriate any patent, copyright, trade secret, trademark, privacy, publicity or other intellectual property right of any third party; and
13.2.4. represents, warrants and undertakes that the Partner site shall not contain, or link to, any material which is defamatory, pornographic, unlawful, harmful, threatening, obscene, harassing, or racially, ethnically, or otherwise objectionable or discriminatory, violent, politically sensitive or otherwise controversial or in breach of any third-party rights (including but not limited to IP infringing websites).
13.2.5. warrants that it has obtained and will maintain in force all necessary registrations, authorizations, consents and licenses necessary to fulfil its obligations under this Agreement.
14.1. The Partner will indemnify, defend and hold Advertiser and/or Advertiser's officers, directors and employees harmless, at its own expense, against any claims, actions, damages and costs (including but not being limited to attorneys' fees and costs), arising out of or based upon: (i) a claim that Partner's resources inter alia, Advertising Services, Advertising Materials (when they are being prepared by Partner), Partner's website and/or technology, infringe Intellectual Property or other rights of third parties; or (ii) a breach of any representation or warranty of a Partner set forth herein; or (iii) a breach of any other obligations under this Agreement.
14.2. The Partner acknowledges and agrees that, to the greatest extent permitted by law, the Mobinc shall have no liability to the Partner in relation to this Agreement or its subject matter. The Partner shall indemnify and hold harmless Mobinc against any loss, damage, liability, cost or expense incurred or suffered by Mobinc as a result of any breach of this Agreement by the Partner.
15. GOVERNING LAW
15.1 Any dispute, controversy or claim arising out of or relating to this Agreement, including but not limited to formation, performance, breach, termination or invalidity thereof, shall be settled by Maltese Court in accordance with the Laws of Malta.
15.2. The governing law of the contract shall be the Laws of Malta.
16.1. Notwithstanding any other provision hereof, the Agreement may be terminated by the Parties for or without reason by providing a termination notice via email to any of the contact e-mails not later than forty-eight (48) hours prior to the date of termination (the "Termination Date"). Partner shall be entitled to receive its prorated fees for the duly provided Advertising Services performed up through such Termination Date. All Advertising Materials and other materials shall be returned to Advertiser and Partner should cease use of any of such materials.
16.2. Without prejudice to any other rights or remedies of the Advertiser, the Advertiser may terminate this Agreement immediately on written notice to the Partner if:
16.2.1. the Advertiser is required to do so by Mobinc for any reason;
16.2.2. the Partner breaches any of the provisions at paragraphs 2 to 13 of this Agreement or has otherwise acted in a manner which is inconsistent with any of Mobinc's gambling license/s and/or other approvals or any requirements, standards, instructions or conditions of any applicable regulatory authority.
16.2.3. the Advertiser has any evidences that the Partner performed any spam and/or Traffic Fraud practices related to purchasing any media publishing services by the Advertiser from the Partner according to the Agreement.
16.2.4. the Partner results in any regulatory or enforcement proceedings or other action being taken against the Advertiser and/or the Mobinc;
16.2.5. the Partner brings the Advertiser and/or the Mobinc and/or their business at any time into disrepute;
16.2.6. the Partner dilutes or adversely affects the value of any trade name of the Mobinc at any time;
16.2.7. the Partner otherwise jeopardizes the business of Advertiser and/or the Mobinc.
16.3. If either party becomes insolvent, bankrupt, or enters receivership, dissolution, or liquidation, the other party may terminate this agreement with immediate effect.
16.4. If the Service Fee has been paid by the Advertiser to the Partner in advance, in the event of termination of the Agreement, Partner shall return to Advertiser the Service Fee reduced by the amount that accounts for the respective Advertising Services actually performed by Partner as of the Termination Date. Such return payment shall be performed by Partner within fifteen (15) calendar days of the Termination Date.
17. FORCE MAJEURE
17.1. Neither Party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such Party, including but not limited to electrical outages, failure of Internet service providers, riots, insurrection, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
17.2. In the event that either Party is prevented or delayed in the performance of any of its obligations under this Agreement by Force Majeure, that Party shall use all reasonable endeavors without being obliged to incur any expenditure to mitigate the effects of Force Majeure and/or bring the Force Majeure event to a close, or to find a solution by which the Agreement may be performed despite the continuation of the Force Majeure event.
18. ENTIRE AGREEMENT
18.1. This Agreement combined with the Agreement, its amendments, insertion orders, Marketing Compliance Pack (approved by the Partner by ticking the respective box), constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior negotiations, understandings and agreements between the Parties hereto concerning the subject matter herein.
18.2. The Advertiser unilaterally, holds the right to change and amend the terms of the Agreement without restriction at any time.
18.3. The Advertiser shall inform the Partner on changes and amendments of the Agreement in writing, via email. If the Partner has not objected within 10 working days of the Advertiser sending the amended contract, it shall be deemed to have agreed to the terms of this contract.
18.4. If the Partner opposes to the changes of the Agreement and Parties do not agree otherwise the Agreement is deemed to be terminated on the 10th working day after it has been sent to the Partner.
19.1. Partner cannot assign its rights and obligations under the Agreement and this Agreement in whole or in part without prior written consent of the Advertiser.
19.2. Advertiser, has the right to assign its rights and obligations under the Agreement to its affiliated companies and subsidiaries without consent of the Partner;
19.3. Nothing contained in this Agreement shall be deemed to establish any relationship of partnership, joint venture, employment, franchise or other agency or relationship between the Partner and the Advertiser;
19.4. Neither the Advertiser nor the Partner have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided herein;
19.5. Any notices under the Agreement shall be sent to the addresses set forth in the corresponding Agreement;
19.6. The waiver of any breach or default of the Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving Party;
19.7. If any provision contained in the Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the Parties, and the remaining provisions of the Agreement will remain in full force and effect;
19.8. This Agreement confirms the contracted marketing campaign(s) and describes its details between Partner and the Advertiser, as listed herein. The campaign(s) will be delivered in accordance with the Advertising Agreement enclosed and applicable to Partner.