Private & Confidential
v1.1: 11 March 2019
MOBILE INCORPORATED LIMITED
AFFILIATE MARKETING POLICY
This affiliate marketing policy ("Policy") sets out the basis on which Partner may engage any affiliates in relation to the marketing and promotion of the Licensed Services. Compliance with this Policy by Partner is a material condition of the white label agreement between Mobile Incorporated Limited ("MIL") and Partner ("White Label Agreement"), and constitutes one of the MIL Policies and Procedures referred to in the White Label Agreement. This Policy may be updated by MIL at any time on written notice to Partner.
Any capitalized terms used in this Policy but not defined shall have the meaning set out in the White Label Agreement.
MIL acknowledges that the use of third parties to engage in marketing activities by providing links to the Licensed Services (each an "Affiliate") can be a useful marketing tool for Partner in relation to the marketing and promotion of the Licensed Services. However, both parties acknowledge the importance of ensuring that the Licensed Services are promoted at all times in a socially responsible manner and in accordance with all Applicable Laws, including the Advertising Codes.
Partner acknowledges that, in the context of MIL's gambling licences, any promotional and/or other marketing activities carried out in respect of the Licensed Services (whether by Partner and/or any Affiliate), is considered by regulators to be the responsibility of MIL. Any breach of Applicable Law (including the Advertising Codes) in relation to the promotion of the Licensed Services may result in significant consequences for MIL, including unlimited fines and/or revocation of its gambling licence(s).
As a result, if Partner wishes to engage with and/or appoint any Affiliates in relation to the Licensed Services it must comply in full with this Policy.
This Policy does not constitute approval of any Affiliate programme for the purpose of Clause 4.8 of the White Label Agreement, which may be given or withheld by MIL in its sole discretion upon provision by the Partner of the details of its proposed Affiliate programme.
Partner acknowledges the importance of ensuring that any customer that has self-excluded from the Licensed Services (including via any overarching national self-exclusion scheme) does not receive any marketing materials: (i) for the duration of any period during which such customer has self-excluded; and (ii) thereafter, unless and until such customer has indicated a positive decision to return to gambling. As a result, Partner shall not permit any Affiliate to market the Licensed Services via email, any social media direct messaging, SMS or push notification unless MIL: (i) has given its prior written consent to such Affiliate carrying out such activity; (ii) has approved the relevant marketing messages, links, use of the Partner Brand and any promotional content; and (iii) has approved the intended recipient list for such materials no more than 24 hours prior to the time of sending. Partner shall also ensure that all Affiliates are fully aware of the importance of not sending any promotional and/or other marketing materials to self-excluded customers unless and until notified that such customer has made a positive decision to return to gambling.
Partner shall immediately notify MIL on becoming aware that any Affiliate has sent any marketing materials to any self-excluded customer.
Partner acknowledges and agrees that, as between MIL and Partner, Partner remains at all times primarily responsible for all acts and omissions of its Affiliates. Any act or omission of an Affiliate that, if carried out or omitted by the Partner, would constitute a breach of the White Label Agreement will be deemed to be a breach of the White Label Agreement by the Partner.
The Partner shall not use any third party agency or other service provider in relation to any Affiliate programme without the prior written consent of MIL. Where MIL, in its sole discretion, provides any such consent, the Partner shall ensure that any approved agency or other service provider complies in full with the terms of this Policy. The Partner shall remain liable to MIL for all acts or omissions of any third party agency or service provider (whether approved or not) in relation to any affiliate programme operated by the Partner in relation to the Licensed Services.
MIL shall provide reasonable assistance to the Partner in relation to the tracking of customers that are directed to the Licensed Services by any Affiliate. Without prejudice to the foregoing, Partner acknowledges and agrees that the payment of any Affiliate shall be the sole responsibility of the Partner, and MIL shall have no liability or responsibility in respect of any payments to Affiliates.
The Partner shall ensure that the Affiliate Terms and Conditions include, as a minimum, the mandatory terms set out in Annex I to this Policy.
Mandatory Minimum Terms
The defined terms in this Annex I shall, unless set out in paragraph 1 below, have the meanings given to them in the White Label Agreement (amended only to the extent necessary for use in the context of the applicable Affiliate Terms and Conditions).
"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;
"MIL" means Mobile Incorporated Limited, registered in Malta under company number C84149 and with licence number 000-051011-R-328955-004, whose registered address is at Tower Gate Place, Tal-Qroqq Street, Msida, MSD 1703, Malta; and "Self-Excluded Customer" means any individual that has self-excluded from the Licensed Services (including via any overarching national self-exclusion scheme).
The Affiliate acknowledges and agrees that the Licensed Services are provided by MIL under its relevant gambling licences and/or approvals. Partner is the owner or licensor of the brand under which the Licensed Services are operated, and is responsible for the marketing and promotion of the Licensed Services.
The Affiliate shall not undertake any marketing or promotion of the Licensed Services unless and until the Partner has approved the websites on which the Affiliate intends to market and promote the Licensed Services (such approved websites being the "Sites").
The Affiliate shall ensure that all marketing and promotion undertaken in respect of the Licensed Services by or on behalf of the Affiliate is undertaken in a socially responsible manner and in accordance with all legal and regulatory requirements, including:
The Affiliate shall not place any links and/or use the Partner Brand and/or any other promotional content alongside, in conjunction or in connection with, and shall ensure that the Affiliate Sites do not contain:
any illegal or inappropriate content (including defamatory content or content which could incite religious hatred or prejudice on the basis of race, religion, gender, sexual orientation, age or disability); or
any content which may harm the reputation of MIL and/or the Partner.
If the Affiliate uses any social media platform to market and promote the Licensed Services, the Affiliate shall (and shall procure from any third party that provides such Services on behalf of the Affiliate that it shall) fully comply with such social media platform’s terms and conditions (as may be updated from time to time).
Without prejudice to paragraphs 3 to 6 above, the Affiliate shall ensure that all marketing and promotion undertaken in respect of the Licensed Services by or on behalf of the Affiliate is targeted at the Territory only (including by reference to the language in which it is available) and complies with such written guidelines and/or other instructions as may be provided to the Affiliate by Partner or MIL from time to time in relation to the marketing and promotion for the Licensed Services.
The Affiliate shall immediately cease any marketing activities on request by Partner and/or MIL if Partner and/or MIL considers that such marketing activities are in breach of this Agreement.
The Affiliate shall:
conduct itself, when performing its obligations and/or exercising its rights under this Agreement, as if it were bound by the same licence conditions and subject to the same codes of practice as MIL, including the LCCP;
provide such information to Partner and/or MIL as Partner and/or MIL may reasonably require in order to enable it to comply with its information reporting and other obligations owed to the British Gambling Commission and/or any other relevant authority;
not do, omit to do or permit to be done, anything which may damage the reputation or goodwill of the Partner, MIL, the Licensed Services or any other remote gambling services provided by MIL; and
not do, omit to do or permit to be done, anything which may put any member of the Partner's and/or MIL'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, including the LCCP.
The Affiliate 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 Partner and/or MIL to be in breach of any provision of any Data Protection Legislation. Upon the Partner's reasonable written request, the Affiliate shall provide Partner with all co-operation and assistance reasonably requested by the Partner to demonstrate that the Affiliate is complying with Data Protection Legislation. The Affiliate shall notify the Partner promptly upon becoming aware of any breach of direct marketing laws (including Data Protection Legislation) in relation to the Licensed Services.
The Affiliate shall not send any direct marketing to any person unless such marketing has been approved in accordance with the process set out in paragraph 12.
If the Affiliate wishes to send any direct marketing to any person in relation to the Licensed Services (whether via email, direct messaging on social media, SMS or any push notification) it shall notify the Partner of its plans in respect of such direct marketing and Partner shall seek MIL's consent (which it may give or withhold in its sole discretion), on the Affiliate's behalf, in respect of such plans. If MIL provides its written consent to the Affiliate carrying out such marketing, the Partner shall notify the Affiliate of the same and the Affiliate shall (and shall procure from any third party that provides such services on behalf of the Affiliate that it shall):
provide: (i) the relevant marketing messages, links, use of the Partner Brand and/or any other promotional content; and (ii) the intended recipient list, in each case to the Partner (for Partner to provide to MIL) at least two (2) weeks prior to the target send date in the format requested by MIL to enable MIL to approve (or not approve, in its sole discretion) the same;
if MIL provides its approval (which will be notified to the Affiliate by Partner), only send such marketing (in the approved form) to its intended recipient list once MIL has provided prior written approval of the same on the day before the target send date. MIL shall be entitled to require the Affiliate to remove any person from the recipient list for any reason, including but not limited to if MIL believes that such person is a Self-Excluded Person. MIL shall not send any such marketing communication to any recipient if more than 24 hours have elapsed since MIL's written approval of such recipient list;
include the Partner and MIL on its marketing list and send all such marketing to the Partner and MIL each time it uses such marketing (using such contact details as shall be provided to the Affiliate by the Partner from time to time);
without prejudice to the foregoing, only send such messages to recipients who have willingly and explicitly consented to receive marketing from the Affiliate in relation to the Licensed Services (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 Affiliate acknowledges that MIL's approval of any recipient list shall not be confirmation that any such recipient has consented to receive such marketing);
clearly display a message in each such communication to state who is sending such marketing communications (and confirm they are not being sent by MIL and/or Partner and/or the Licensed Services);
clearly display an unsubscribe feature in each such communication clearly detailing methods of unsubscribing from the mailing list;
not send any promotional offers relating to the licensed Services to recipients under the age of 18;
comply at all times with all applicable direct marketing laws and Data Protection Legislation; and
at least once every six months, and in any event on MIL's and/or Partner's request, provide written evidence to Partner and MIL of its compliance with this paragraph 12.
The Affiliate shall keep and maintain full, up to date and accurate original documents, books and records relating to all its activities under this Agreement. The Affiliate shall provide to Partner on request such information as may be reasonably requested by Partner in order to assist or enable Partner and/or MIL to comply with applicable law and/or to assess the Affiliate's compliance with this Agreement.
Without prejudice to any other rights or remedies of the Partner, the Partner may terminate this Agreement immediately on written notice to the Affiliate if:
The Affiliate acknowledges and agrees that MIL may enforce the terms of this Agreement against the Affiliate as if it were a party to the Agreement.