- Terms and Conditions Date of publication: 25/05/2011
- Version: 9.0
These Terms and Conditions shall apply to those Affiliates who register from the 25th May 2011. For the avoidance of doubt those Affiliates who have already registered on the expekt.com affiliate programme prior to the 25th May 2011 shall be governed by the Affiliate Terms and Conditions dated 14th May 2011, Version 8.0.
Expekt.com Affiliate Programme operated by Overtake Limited NV (hereinafter “Overtake”) Terms and Conditions (the “Agreement”).
This Agreement is entered into between Overtake Limited N.V., a company incorporated in the Netherlands Antilles, hereinafter referred to as "the Company" or “Overtake”, and You, hereinafter referred to as "the Affiliate”. This Agreement shall enter into effect on the date the online Affiliate Registration Form is approved by the Company in accordance with Article II.
By completing the affiliate application to expekt.com affiliate programme (the "Affiliate Programme") and clicking "I Accept" on the form, the "Affiliate" hereby agrees to abide by all the terms and conditions set out in this Agreement and this is inclusive of the different commission structures. All commission structures contained in ARTICLE XX of this agreement shall be deemed to form an integral part thereof.
Overtake reserves the right to amend, alter, delete or add to any of the provisions of this Agreement, at any time and at its sole discretion, by publishing new terms and conditions on the website and without giving any advance notice to the Affiliate, subject to the terms and conditions set out in this Agreement. You are therefore advised to check our affiliate Terms and Conditions on a regular basis and the applicable terms and conditions shall be those on the affiliate page of the expekt.com website, provided that nothing to the contrary is stated therein. Your continued (i) participation in the Programme, (ii) use of the expekt.com affiliate website and/or expekt marketing tools (as hereafter defined), or (iii) acceptance of any Affiliate commissions from Overtake confirms your irrevocable acceptance of this Agreement (and any modifications thereto) and therefore you shall be obliged to continuously comply with the terms and conditions of this Agreement as well as to comply with the General Terms and Conditions and Privacy Policy of the website expekt.com (hereafter expekt.com), as well as any other rules and/or guidelines made known to you from time to time from expekt.com and Overtake. For the purposes of this Agreement if there is any discrepancy in terms between the General Terms and Conditions, the Privacy Policy and these Affiliate Terms and Conditions, the latter shall prevail.
ARTICLE I
Purpose
1.1 The Company is in the business of marketing, logistical and general support services in connection with remote gaming. The Company has entered into an agreement with Mangas Gaming Malta Limited, a leading online betting company incorporated in Malta and licensed by the Maltese Lotteries and Gaming Authority, to inter alia assume responsibility for the advertising, marketing and promotional aspects of the online betting business carried out under the expekt.com brand and as part of this function the Company is operating the expekt.com Affiliate Programme through the website www.expekt.com. For the avoidance of doubt, Overtake reserves the right to assign the responsibility for running the expekt.com Affiliate Programme through any other group company which holds the necessary consents and permits to do so.
1.2 The Affiliate maintains and operates one or more websites on the Internet (hereinafter collectively referred to as "the Website"), and/or refers potential customers through other channels.
1.3 This Agreement governs the terms and conditions relating to the promotion by the Affiliate of the website www.expekt.com, hereinafter referred to as "expekt.com.", whereby the Affiliate will be paid a commission as defined under this Agreement depending on the traffic generated to Expekt.com subject to the terms and conditions of this Agreement and to the respective Commission Structure.
1.4 The definition of the term Net Revenue and information relating to the Commission Structures are included in detail under ARTICLE XX below. The Commission Structures may also be viewed on the Affiliate Programme section on the expekt.com website.
1.5 The Company hereby informs the Affiliate and the Affiliate hereby accepts and understands that with reference to expekt.com’s Casino product, the Live Casino products are specifically left out of this Agreement and no commissions or any other payment whatsoever shall be due to the Affiliate for referrals to the said Live Casino products. For the purposes of this Agreement the term “Live Casino” shall include any Live Casino Side Games.
Further to the above, the Company hereby informs the Affiliate and the Affiliate hereby accepts and understands that expekt.com’s Bingo product and Bingo Side Games are specifically left out of this Agreement and no commissions or any other payment whatsoever shall be due to the Affiliate for referrals to the said Bingo products.
ARTICLE II
Acceptance of Affiliate
2.1 The Company shall evaluate the Affiliate Membership Form hereby submitted and shall inform the Applicant in writing (email) whether the Membership Form is accepted or not. The Company reserves the right to refuse any registration in its sole and absolute discretion.
ARTICLE III
Qualifying Conditions
3.1 The Applicant/Affiliate hereby warrants that:
a) He/She is of the legal age in the applicable jurisdiction to agree to and enter into an Agreement.
b) He/She is competent and duly authorised to enter into binding Agreements for the Affiliate and/or the Website.
c) He/She is the proprietor of all rights, licenses and permits to market, promote and advertise Expekt.com in accordance with the provision of this Agreement.
d) He/She shall comply with all applicable rules, laws and regulations in connection with the promotion of Expekt.com.
e) He/She fully understands and accepts the terms and conditions of the Agreement.
ARTICLE IV
Responsibilities and Obligations of the Company
4.1 The Company shall provide the Affiliate with all information necessary and marketing material for the implementation of the link.
4.2 The Company shall administrate the turnover generated via the links, record the net revenues and the total amount of commission earned via the link, provide the Affiliate with commission statistics, and handle all customer services related to the business. A unique tracking identification code will be assigned to all referred customers.
4.3 The Company shall pay the Affiliate the amount due depending on the traffic generated subject to the terms and conditions of this Agreement.
ARTICLE V
Responsibilities and Obligations of the Affiliate
5.1 The Affiliate hereby warrants and undertakes:
a) To use its best efforts to actively and effectively advertise, market and promote expekt.com 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.
b) To market and refer potential players to expekt.com at its own cost and expense. The Affiliate will be solely responsible for the distribution, content and manners of its marketing activities. All of the Affiliate's marketing activities must be professional, proper and lawful under applicable laws and negotiations and in accordance with this Agreement.
c) To use only a link provided within the scope of the partner programme, otherwise no warranty whatsoever can be assumed for proper registration and sales accounting. Also, not to change or modify in any way any link or marketing material without prior written authorisation from the Company.
d) To be responsible for the development, the operation, and the maintenance of its web site as well as for all material appearing on the web site.
e) To abide by the rules and principles contained in the European Gaming and Betting Association (EGBA) Code of Conduct. The EGBA Code of Conduct may be viewed at: http://www.egba.eu/en/consumers/standards
5.2 The Affiliate hereby warrants:
a) That it will not perform any act which is libelous, discriminatory, obscene, unlawful or otherwise unsuitable or which contains sexually explicit, pornographic, obscene or graphically violent materials.
b) That it will not actively target any person who is under the legal age for gambling.
c) That it will not actively target any jurisdiction where gambling and the promotion thereof is illegal.
d) That it will not generate traffic to expekt.com by illegal or fraudulent activity, particularly but not limited to by:
a. Sending spam.
b. Incorrect metatags.
c. Registering as a player or make deposits directly or indirectly to any player account through his tracker(s) for its own personal use and/or the use of its relatives, friends, employees or other third parties, or in any other way attempt to artificially increase the commission payable or to otherwise defraud the Company. Violation of this provision shall be deemed to be fraud
e) That it will not present its Website(s) in such a way that it might evoke any risk of confusion with expekt.com and/or the Company and/or Mangas Gaming Malta Limited or convey the impression that the web site of the contracting party partly or fully originated with expekt.com and/or the Company and/or Mangas Gaming Malta Limited.
f) Without prejudice to the Marketing Material as may be forwarded by the Company and/or made available online through the website http://affiliates.expekt.com/the Affiliate may not use expekt.com or other terms, trademarks and other intellectual property rights that are vested in the Company unless the Company consents to such use in writing.
g) That it will only provide genuine and bona fide customers.
5.3 The Affiliate is forbidden from offering any so-called rake-back schemes or similar promotions that offer or allow a proportion of the players rake to be returned to the player in any form and Affiliates who contravene this condition shall be banned from sending traffic to the Company. The Company reserves the right to deduct money from the Affiliate for any traffic deemed to have been referred through ‘fraudulent means’ and the Affiliate’s account will be frozen. If the Affiliate offers rake-back in an iPoker cardroom, the cardroom shall have the offending Affiliate’s account frozen. The Affiliate hereby understands that due to an iPoker Network Policy, the Company is prohibited from advertising the expekt.com website on ‘rake-back oriented’ Affiliate sites. For the sake of clarity, any Affiliate site that has the word ‘rake’ in the URL or in the name of the site will be deemed a ‘rake-back oriented’ site. The Affiliate hereby obliges himself to abide by this condition imposed by iPoker and the Affiliate specifically understands and holds the Company and/or Mangas Gaming Malta Limited harmless from any penalties which are incurred by any or both of them as a result of the Affiliate’s contravention of this clause. For the sake of clarity it is further specified that for the purposes of this Agreement the ‘rake-backs’ shall be defined as discounts offered to players by Affiliates.
5.4 The Affiliate is forbidden from promoting the poker product found on the http://www.expekt.com/ site whether online or offline in the United Kingdom. The Affiliate is specifically forbidden from marketing or promoting in any way whatsoever the poker product of http://www.expekt.com/ on any ‘.co.uk’ website. The Affiliate shall be held responsible and shall indemnify Overtake and Mangas Gaming Malta Limited for any claims, liabilities, fines, penalties and/or damages incurred by Overtake and/or Mangas Gaming Malta Limited as a result of the Affiliate’s infringement of this clause.
5.5 The Affiliate is forbidden from promoting, online or offline, all the products found on http://www.expekt.com in France and in all the French Overseas Departments and Territories. The Affiliate shall be held responsible and shall indemnify Overtake and Mangas Gaming Malta Limited for any claims, liabilities, fines, penalties and/or damages incurred by Overtake and/or Mangas Gaming Malta Limited as a result of the Affiliate's infringement of this clause.
ARTICLE VI
Payment
6.1 The Company agrees to pay the Affiliate a commission calculated on the net revenue generated from “New Customers” referred by the Affiliate Website and/or other channel. “New Customers”, for the purposes of this Agreement, are those customers referred to the Company who (i) do not yet have a betting account on expekt.com; (ii) access the website via the link to expekt.com; (iii) properly register and make real money transfers at least equivalent to the minimum deposit into their expekt.com betting account and (iv) place a bet or bets.
6.2 The commission shall be a percentage of the net revenue in accordance with what is set out in the Commission Structures under Article XX. The Commission shall be deemed to be inclusive of value added tax or any other tax if applicable.
6.3 The commission is calculated at the end of each month and payments shall be performed by the 10th-15th of each calendar month, provided that the amount due exceeds €50 ('Minimum Threshold'). If the balance due is less than the Minimum Threshold, it shall be carried over to the following month and shall be payable when it collectively exceeds the Minimum Threshold.
6.4 Payment of commissions shall be made as per the payment method chosen by the Affiliate in the application process. If an error is made in calculating the commission, the Company reserves the right to correct such calculation at any time and will immediately pay out underpayment or reclaim overpayment made to the Affiliate.
6.5 Acceptance of payment by the Affiliate shall be deemed to be full and final settlement of the Balance due for the period indicated.
6.6 If the Affiliate disagrees with the balance due as reported, it shall within a period of thirty (30) days send an email to the Company on Adres poczty elektronicznej jest chroniony przed robotami spamującymi. W przeglądarce musi być włączona obsługa JavaScript, żeby go zobaczyć. and indicate the reasons for such disagreement. Failure to send an email within the prescribed time limit shall be deemed to be considered as an irrevocable acceptance of the Balance due for the period indicated.
6.7 The Company may at its sole discretion delay payment of any Balance to the Affiliate for up to one hundred and eighty (180) days, while it investigates and verifies that the relevant transactions comply with the provisions of this Agreement.
6.8 No payment shall be due when the traffic generated is illegal or contravenes any provision of this Agreement.
6.9 The Affiliate agrees to return all commissions received based on fraudulent or falsified transactions, plus all costs for legal causes or actions that may be brought against the Company to the fullest extent of the law.
6.10 For the sake of clarity the parties specifically agree that upon termination of this Agreement by either party, the Affiliate shall no longer be entitled to receive any payment whatsoever from the Company. Provided that payments already due (earned and unpaid commissions) shall be paid out in accordance with the terms of this Agreement.
6.11 At the sole discretion of the Company the Affiliate may be provided with the opportunity to change the default revenue commission structure. The alternative revenue commission structure is a Cost Per Acquisition (CPA) Module. The Company hereby makes it clearly known unto the Affiliate that only one type of revenue commission structure may be applied and it shall not be possible for two different revenue commission structures to co-exist. Therefore once an Affiliate opts to accept the Company’s offer for a different revenue commission structure to the standard Commission Structure detailed in this Agreement, then the Affiliate is aware and hereby agrees and understands that the new proposed revenue structure shall replace his existing commission structure in its entirety. Notwithstanding the above, all the Affiliate’s obligations assumed under this present Agreement will still continue to apply to the Affiliate up until the termination of this Agreement and thereafter in accordance with the terms and conditions contained in this Agreement.
6.12 The Affiliate shall be exclusively responsible for the payment of any and all taxes, levies, fees, charges and any other money payable or due both locally and abroad (if any) to any tax authority, department or other competent entity by the Affiliate as a result of the revenue generated under this Agreement. The Company shall in no manner whatsoever be held liable for any amounts unpaid but found to be due by the Affiliate and the Affiliate hereby indemnifies the Company in that regard.
ARTICLE VII
Termination
7.1 This Agreement may be terminated by either party by giving a thirty (30) day written notification to the other party. Written notification may be given by an email.
7.2 The Contracting Parties hereby agree that on termination of this Agreement:
a. The Affiliate must remove all references to expekt.com from the Affiliate's websites and/or other marketing channel and communications, irrespective of whether the communications are commercial or otherwise.
b. All rights and licenses granted to the Affiliate under this Agreement shall immediately terminate and all rights shall revert to the respective licensors, and the Affiliate will cease the use of any trademarks, service marks, logos and other designations vested in the Company.
c. The Affiliate will be entitled only to those earned and unpaid commissions as of the effective date of termination; however provided, the Company may withhold the Affiliate's final payment for a reasonable time to ensure that the correct amount is paid. The Affiliate will not be eligible to earn or receive commissions after this date.
d. If this Agreement is terminated by the Company on the basis of the Affiliate's breach, the Company shall be entitled to withhold the Affiliate earned but unpaid commissions as of the termination date as collateral for any claim arising from such breach. It is further specified that termination by the Company due to a breach by the Affiliate of any of the clauses in this Agreement shall not require a notice period and such termination shall have immediate effect upon simple notification by the Company to the Affiliate.
e. The Affiliate must return to the Company any and all confidential information (and all copies and derivations thereof) in the Affiliate's possession, custody and control.
f. The Affiliate will release the Company from all obligations and liabilities occurring or arising after the date of such termination, except with respect to those obligations that by their nature are designed to survive termination. Termination will not relieve the Affiliate from any liability arising from any breach of this Agreement, which occurred prior to termination and/or to any liability arising from any breach of confidential information even if the breach arises at any time following the termination of this Agreement. The Affiliate’s obligation of Confidentiality towards the Company and Mangas Gaming Malta Limited shall survive the termination of this Agreement.
ARTICLE VIII
Warranties
8.1 The Affiliate expressly acknowledges and agrees that the use of the Internet is at its risk and that this Referral Programme is provided "as is" and "as available" without any warranties or conditions whatsoever, express or implied. No guarantee is made that it will make access to its website possible at any particular time or any particular location.
8.2 The Company shall in no event be liable to the Affiliate or anyone else for any inaccuracy, error or omission in, or loss, injury or damage caused in whole or in part by failures, delays or interruptions of the www.expekt.com website or the Affiliate Programme.
ARTICLE IX
Indemnification
9.1 The Affiliate agrees to defend, indemnify and hold the Company and Mangas Gaming Malta Limited and its affiliates, successors, assignees, officers, employees, agents, directors, shareholders and attorneys, free and harmless from and against any and all claims and liabilities, including reasonable attorneys' and experts' fees, related to or arising from:
a) Any breach of Affiliate's representations, warranties or covenants under this Agreement.
b) Affiliate's use (or misuse) of the marketing materials.
c) All conduct and activities occurring under Affiliate's user ID and password.
d) Any defamatory, libelous or illegal material contained within Affiliate Site or Affiliate's information and data.
e) Any claim or contention that Affiliate Site or Affiliate's information and data infringes any third party's patent, copyright, trademark, or other intellectual property rights or violates any third party's rights of privacy or publicity.
f) Third party access or use of Affiliate Site or Affiliate's information and data.
g) Any claim related to Affiliate Site.
h) Any violation of this Agreement.
9.2 The Company reserves the right to participate, at its own expense in the defence of any matter.
ARTICLE X
Company Rights
10.1 The Company and/or expekt.com may refuse any player or close a player's account if it is necessary to comply with the Company's and/or expekt.com’s Policy and/or protect the interest of the Company and/or Mangas Gaming Malta Limited.
10.2 The Company may refuse any applicant Affiliate and/or may close any Affiliate’s account if it is necessary to comply with the Company's Policy and/or protect the interest of the Company. If the Affiliate is in breach of this Agreement or of the Company’s General Terms and Conditions or other rules, policies and guidelines of the Company and/or Mangas Gaming Malta Limited, the Company may besides closing the Affiliate’s account take any other steps at law to protect its interest.
ARTICLE XI
Governing Law & Jurisdictions
11.1 This Agreement shall be governed and construed in accordance with the laws of Malta and any action or dispute relating to this Agreement must be brought in Malta and the Affiliate irrevocably consents to the jurisdiction of the Maltese law courts.
ARTICLE XII
Assignment
12.1 The Affiliate may not assign this Agreement, by operation of law or otherwise, without obtaining the prior written consent of the Company.
12.2 The Company may assign this Agreement, by operation of the law or otherwise, at any time without obtaining the prior consent of the Affiliate.
ARTICLE XIII
Non-Waiver
13.1 The Company's failure to enforce the Affiliate's adherence to all terms outlined in this Agreement shall not constitute a waiver of the right of the Company to enforce the said terms at any time.
ARTICLE XIV
Force Majeure
14.1 Neither party shall be liable to the other for any delay or failure to perform its obligations under this Agreement if such delay or failure arises from a cause beyond the reasonable control of and is not the fault of such party, including but not limited to labour disputes, strikes, industrial disturbances, acts of God, acts of terrorism, floods, lightning, utility or communications failures, earthquakes or other casualty. If a force majeure event occurs, the non-performing party is excused from whatever performance is prevented by the force majeure event to the extent prevented. Provided that, if the force majeure event subsists for a period exceeding thirty (30) days then either party may terminate the Agreement without notice.
ARTICLE XV
Relationship of the Parties
15.1 Nothing contained in this Agreement, nor any action taken by any party to this Agreement, shall be deemed to constitute either party (or any of such party's employees, agents, or representatives) an employee, or legal representative of the other party, nor to create any partnership, joint venture, association, or syndication among or between the parties, nor to confer on either party any express or implied right, power or authority to enter into any agreement or commitment on behalf of (nor to impose any obligation upon) the other party.
ARTICLE XVI
Severability / Waiver
16.1 Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law but, if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such provision will be ineffective only to the extent of such invalidity, or unenforceability, without invalidating the remainder of this Agreement. No waiver will be implied from conduct or failure to enforce any rights and must be in writing to be effective.
ARTICLE XVII
Confidentiality
17.1 All information, including but not limited to business and financial, lists of customers and buyers, as well as price and sales information and any information relating to products, records, operations, business plans, processes, product information, business know-how or logic, trade secrets, market opportunities and personal data of the Company and/or Mangas Gaming Malta Limited shall be treated confidentially. Such information must not be used for own commercial or other purposes or divulged to any person or third party neither direct nor indirectly unless the prior explicit and written consent of the Company and/or Mangas Gaming Malta Limited has been obtained. This provision shall survive the termination of this Agreement.
17.2 The Affiliate obliges himself not to use the confidential information for any purpose other than the performance of its obligations under this Agreement.
ARTICLE XVIII
Changes to this Agreement
18.1 The Company reserves the right to amend, alter, delete or add to any of the provisions of this Agreement, at any time and at its sole discretion, without giving any advance notice to the Affiliate subject to the terms and conditions set out in this Agreement. Any such changes will be posted on expekt.com
18.2 In case of any discrepancy between the meanings of any translated versions of this Agreement, the meaning of the English language version shall prevail.
ARTICLE XVIV
Trademarks
19.1 Nothing contained in this Agreement will grant either party any right, title or interest in the trademarks, trade names, service marks or other intellectual property rights [hereinafter referred to simply as ‘marks’] of the other party. At no time during or after the term will either party attempt or challenge or assist or allow others to challenge or to register or to attempt to register the marks of the other party or of any company within the group of companies of the other party. Provided also that neither of the parties will register nor attempt to register any mark which is basically similar to and/or confusingly similar to any mark which belongs to the other party or to any company contained within the other party’s group of companies.
ARTICLE XX
Commission Structures
20.1 The default commission structure for every affiliate shall be the Net Revenue Share Commission Structure.
20.2 For the purposes of this Agreement the term “administration fee” shall be defined as including gaming tax, payment charges levied by electronic payment or credit card organizations and third party royalties.
20.3 This default Commission Structure shall be twenty five per cent (25%) of the Total Net Revenue generated, per calendar month, from the referred customers recruited by the Affiliate for expekt.com on all products. For the avoidance of doubt the term “Net Revenue” and the calculation thereof is detailed in Article 20.5 hereunder.
By way of illustration the Total Net Revenue shall be calculated as follows:
Net Revenue Casino + (plus)
Net Revenue Sportsbook + (plus)
Net Revenue Poker
= Total Net Revenue
Affiliate Commission = 25% of Total Net Revenue
20.5 Net Revenue Structure:
(a) Calculation and definition of Net Revenue for Casino
Gross Revenue (Bets – [less] Winnings)
- (less) Bonuses
- (less) Administration fee (approximately 17.5%)
- (less) Fraud costs and charge-backs
= Net Revenue
(b) Calculation and definition of Net Revenue for Sportsbook
Gross revenue (Bets – [less] Winnings)
+ (plus) Tournament fees (- [less] Tournament payouts)
- (less) Bonus Payout (+ [plus] Bonus retracted)
- (less) Administration fee (approximately 12%)
- (less) Fraud Costs and charge-backs
= Net Revenue
(c) Calculation and definition of Net Revenue for Poker
Gross revenue (Rake + [plus] Side Games income)
- (less) Administration fee (approximately 27%)
- (less) Bonus Payout (+ [plus] Bonus Retracted)
- (less) Fraud costs and charge-backs
= Net Revenue
20.6 In accordance with article 6.11 above, the CPA (Cost per Acquisition) Commission Structure shall be calculated as follows:
EUR 30 CPA 1 to 20 active customers
EUR 40 CPA 21 to 40 active customers
EUR 50 CPA 41 to 60 active customers
EUR 60 CPA 61 to 99 active customers
EUR 70 CPA 100 or more active customers
For the purposes of this sub-article an “active customer” in Casino and Sportsbook shall mean:
(a) A active customer who deposits and successfully wagers a minimum of EUR 25 in the Casino.
(b) A active customer who deposits and successfully wagers a minimum of EUR 10 in the Sportsbook.
20.7 As has already been stated above the default commission structure shall always be the Net Revenue Commission Structure, consequently the CPA reward model is subject to written approval by the Company for all affiliates who wish to apply, and is strictly up to the total discretion of expekt.com.
