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.
In this Agreement:
"Abusive Player" means a Player who demonstrates
any kind of behavior that the Advertiser deems a violation of its Products
commissions for Abusive Players.
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 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),
a Billing Model, whereby the Advertiser pays for each specified Action.
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.
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.
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 and with
licence number MGA/B2C/818/2020, whose registered
address is at Elite Business Centre, Treja ta' Box Box, Msida MSD 1840, Malta; Mobinc
is licensed online gambling service provider in Malta.
"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.
RELATIONSHIP OF THE PARTIES
Advertiser engages Partner and Partner undertakes to provide the Advertising
Services in the Territory to the benefit of the Mobinc.
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
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
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:
Gaming Authority: https://www.mga.org.mt/legislations-regulations/
3.2.2. all applicable
laws and regulations related to consumer protection
3.2.3. 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).
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;
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
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
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.
3.6. The Partner
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);
§ any content
which may harm the reputation of Mobinc and/or the Advertiser;
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;
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
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
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.
5.1. 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.
Advertising Materials and other materials provided by the Advertiser to the Partner
hereunder shall be used exclusively for the purposes of provision of the
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.
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
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).
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
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
7.1.5. if another
Billing Model is applied - another activity or a combination of activities
specified in the Agreement.
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
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.
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
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.
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
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
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
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.
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
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.
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
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);
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);
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);
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
12.3.8. comply at
all times with all applicable direct marketing laws and Data Protection
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;
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
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
that it has obtained and will maintain in force all necessary registrations,
authorizations, consents and licenses necessary to fulfil its obligations under
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.
15.1 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.
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.
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
16.2.6. the Partner
dilutes or adversely affects the value of any trade name of the Mobinc at any
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
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.
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.
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.
Advertiser unilaterally, holds the right to change and amend the terms of the Agreement
without restriction at any time.
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.
cannot assign its rights and obligations under the Agreement and this Agreement
in whole or in part without prior written consent of the Advertiser.
has the right to assign its rights and obligations under the Agreement to its
affiliated companies and subsidiaries without consent of the Partner;
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
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.