MEDIA BUYING TERMS AND CONDITIONS
VERSION 2 – IN FORCE FROM 1 DECEMBER 2020
THIS VERSION OF THE TERMS APPLIES TO ALL CONTRACTS CONCLUDED ON OR AFTER 1 DECEMBER 2020. PLEASE SEE BELOW FOR VERSION 1 OF THE TERMS THAT APPLY TO CONTRACTS CONCLUDED PRIOR TO 1 DECEMBER 2020 AS SET OUT THEREIN.
SUMMARY OF CHANGES IN FORCE FROM 1 DECEMBER 2020
These Terms were last updated on the date set out in Section 18 of these Terms and the summary of changes is as follows:
Section 7.14: References to sub-affiliate in this section have been changed to Media Supply Partner so that it is clear what type of third party is being referred to; and an option has been added for Media Company to amend the terms of any existing agreement it has with an applicable Media Supply Partner to include the same or equivalent terms as these Terms.
Section 9.1: Additional wording has been added to clarify that both parties intend Media Supply Partners to be liable to Advertiser in respect of any breaches by Media Supply Partners of the terms specified in this section.
A new Section 9.2 has been added confirming that Media Company and each Media Supply Partner will be jointly and severally liable to Advertiser and Associated Parties with respect to any indemnity, unless a Media Supply Partner refuses to indemnify Advertiser in which case Media Company will be solely liable.
Media Company is advised to take independent legal advice in respect of these changes. In accordance with Section 16.1, Media Company’s continued provision of the Services to Advertiser following these changes constitutes binding acceptance of these changes.
THESE MEDIA BUYING TERMS AND CONDITIONS (THE “TERMS”), WHEN INCORPORATED INTO AN INSERTION ORDER (AN “IO“), CONSTITUTE A LEGALLY BINDING AGREEMENT (THE “AGREEMENT”) BETWEEN ADVERTISER SPECIFIED IN THE IO AND MEDIA COMPANY SPECIFIED IN THE IO. THESE TERMS ARE NOT INTENDED TO REPRESENT THE RELATIONSHIP BETWEEN A PUBLISHER AND AN ADVERTISING NETWORK.
If you have any questions, please email affiliates@vipcasinoca.wpengine.com.
WEEN A PUBLISHER AND AN ADVERTISING NETWORK.
1. INTRODUCTION
1.1 This Agreement is between Media Company and Advertiser for the purpose of delivering Promotional Content on Media Company Properties in order to increase brand awareness of, and refer real money players to, the Brand Website(s) in accordance with the terms of this Agreement.
2. DEFINITIONS AND INTERPRETATION
2.1 Capitalised words and expressions in this Agreement shall have the meanings set out below:
| “Advertiser” | means the advertising party named in the IO which party may be either (i) a person purchasing advertising inventory directly from Media Company, or (ii) an Agency. |
| “Advertiser Ad Server” | means any third party that provides services to Advertiser to serve and/or track the delivery of the Services. |
| “Advertiser Personal Data” | means any Personal Data that Advertiser makes available to Media Company from time to time for the sole purpose of enabling Media Company to verify the Fees paid or payable by Advertiser pursuant to clause 5. |
| “Agency” | means a person that is an advertising agency and that has specified on the applicable IO that it is acting as the agent for its Customer and contracts with Media Company for the provision of the Services on behalf of that Customer. |
| “Applicable Law” | means a law (including any Data Protection Law), statute, order, regulation, legal requirement, or code (including any applicable code, regulation or standard of any Gaming Authority) in force in any relevant territory from and applicable to the person in question. |
| “Associated Parties” | means, collectively: (i) Advertiser’s (including Agency’s) Group Companies, (ii) Operator and its Group Companies, (iii) Customer and its Group Companies, and (iv) the directors, officers, members, employees, consultants, contractors, agents, affiliates and legal representatives of each of the foregoing persons. For clarity, the foregoing shall not include Advertiser or Agency. |
| “Bankrupt” | means with respect to any person, that such person:
(i) makes a general assignment for the benefit of creditors; (ii) files a voluntary bankruptcy petition, (iii) becomes the subject of an order for relief or is declared insolvent in any bankruptcy or insolvency proceedings; (iv) files a petition or answer seeking a reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any law; (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against such person in a proceeding of the type described in sub-clauses (i) through (v) of this clause; or (vi) seeks, consents to, or acquiesces in the appointment of a trustee, receiver, or liquidator of such person or of all or any substantial part of such person’s properties. |
| “Bet” | means each Stake placed by a Player using the Player’s account on any contingency or event (including sports events) (but excluding Games) as made available on the relevant Brand Website that has been recorded in that Player’s account. |
| “Bet Winnings” | means the amount of money credited to a Player’s account when a Bet placed by that Player wins and is Settled in that Player’s favour. |
| “Brand Guidelines” | means any guidelines and parameters for use of the Brand Marks, use of Promotional Content and references to the Brand Websites that may be provided to Media Company by Advertiser from time to time. |
| “Brand Marks” | means the trade marks and logos of any Brand Websites, as made available to Media Company by Advertiser. |
| “Brand Website” | means a Website that is either (i) operated by Advertiser on behalf of a third party that owns that Website, or (ii) owned by Advertiser, the details of which will be provided by Advertiser to Media Company from time to time. |
| “Change of Control” | means a change in the beneficial ownership of more than 50% of the issued share capital of a company or a change in the identity of the person(s) with legal power to direct or cause the direction of the general management of the company. |
| “Charitable Donation” | means any charitable donation made by, or on behalf of, Advertiser pursuant to Applicable Law or as part of Advertiser’s obligations to a Gaming Authority at the end of each month (or a pro-rated amount thereof). |
| “CPM Fee” | means a cost per thousand impressions of Promotional Content as viewed by the end users of Media Company Properties as specified in the applicable IO. |
| “Commencement Date” | means, unless otherwise agreed in the IO, the date that is the earlier of: (i) the start date of the first advertising campaign or the start date of any accounting period specified in the IO (whichever is earlier); or (ii) the display of the first impression of Promotional Content by Media Company. |
| “Confidential Information” | means all knowledge, information or materials of whatever nature and in whatever form (whether oral or written or in electronic or other form) relating to the disclosing party or its business or its Group Companies and made available or provided by or on behalf of the disclosing party to the recipient party before, on and/or after the Commencement Date and all analyses and other documents prepared by or for the recipient party which contain or otherwise reflect any such information. It includes Player Data and any correspondence between Advertiser and Media Company as well as any information relating to:
(i) any and all Intellectual Property Rights; (ii) proprietary technology and products (including inventions whether patentable or not), including technical data, data record layouts, trade secrets, know-how, research, prototypes, improvements, plans, designs, requirements, architecture, structures, specifications, formulae, models, methods, processes, product plans, databases and database tables, ideas or concepts, products, services, software, inventions, techniques, developments, algorithms, formulas, technology, designs, schematics, drawings, engineering and hardware configuration information; and (iii) business or financial statements and projections, product pricing and marketing, financial or other strategic business plans, subscriber numbers and forecasts, content providers identity and business models. |
| “Controller” | has the meaning given to it in applicable Data Protection Laws. |
| “Cost Per Acquisition” | means the set fee for each new Player as such fee is set out in Media Company’s Account (or as otherwise notified to Media Company from time to time in writing by Advertiser). |
| “Customer” | means a third party for whom an Agency is acting when entering into an IO. |
| “Data Protection Laws” | means the Canadian Personal Information Protection and Electronic Documents Act, Canada’s Anti-Spam Legislation, CAN-SPAM, FTC and FCC Regulations, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data as applicable as of 25 May 2018, the Directive on Privacy and Electronic Communications 2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426), the Privacy and Electronic Communications Directive 2002/58/EC, approved codes of conduct or approved certification mechanisms issues by any relevant regulatory authority, and all other Applicable Laws relating to the Processing of Personal Data and/or privacy (including the privacy of electronic communications) in effect in any relevant territory from time to time, in each case as updated, amended, replaced or superseded from time to time. |
| “Effective Date” | means the date of countersignature of the IO from which the terms and conditions of the Agreement shall take effect. |
| “Fees” | shall have the meaning set out in clause 5.1. |
| “Finance Fees” | means fees and costs (or pro-rated amounts thereof) associated with processing payments made or requested by Players and/or collecting revenue from Players, including:
(i) credit/debit card, eWallet, BACS and bank transaction fees on deposits, withdrawals and the payment of Game Winnings and Bet Winnings; (ii) “chargebacks”, meaning the cost of deposits or wagers made by Players on a credit/debit card which are later refunded (at the Players´, the credit/debit card issuer´s or Advertiser´ request) onto the Players´ credit/debit card, including any additional so-called chargeback fees levied by credit/debit card companies for such credit reversal; and (iii) “Know Your Customer” verification fees. |
| “Fixed Fee” | means any one-off flat-fee or monthly, quarterly or annual fee payable to Media Company for the delivery of fixed placements of Promotional Content, as such fee, payment interval and placement is set out in Media Company’s Account or the applicable IO (or as otherwise notified in writing to Media Company by Advertiser). |
| “Free Bet Token” | means a token awarded to a Player by the relevant Brand Website as a reward or promotional bonus that may be used by that Player to place a Bet of the same value as the token (subject to any exclusions and restrictions applied by the relevant Brand Website), the amount of which token cannot be withdrawn by that Player as cash and which will not be returned to that Player as a Stake in the event the Bet placed using the token wins. |
| “Game Winnings” | means:
(i) any sums paid to Players by way of cash prizes that such Players have won when playing Games; and (ii) contributions booked in accordance with generally accepted accounting principles towards a progressive jackpot or similar product irrespective of when such jackpot is actually paid out. |
| “Games” | means a selection of bingo, slots, instant win, casino games and/or virtual sport games, and such other games that Advertiser may elect to make available on the Brand Website from time to time (including any third party games). |
| “Gamesys Group Partners Website” | means the Website that is operated and controlled by, or on behalf of, Advertiser and which is currently located at www.gamesysgrouppartners.com. |
| “Gaming Approvals” | means any and all required approvals, authorisations, licences, transactional waivers, permits, consents, findings of suitability, registrations, clearances, exemptions and waivers of or from any Gaming Authority, including those relating to the offering or conduct of gaming and gambling activities. |
| “Gaming Authority” | means collectively, those international, federal, state, local, foreign and other governmental, regulatory and administrative authorities, agencies, commissions, boards, bodies and officials or other regulatory body or agency that has jurisdiction over (or is responsible for or involved in the regulation of) gaming or gaming activities, of Advertiser from time to time. |
| “Good Industry Practice” | means all reasonable care, skill and diligence as may be expected of appropriately qualified and experienced persons with appropriate skill and experience in providing services of a similar scope, type and nature to the Services. |
| “Gross Betting Revenue” | means Stakes (excluding Free Bet Tokens) less Bet Winnings and less any Player Incentive Funding. |
| “Gross Win” | means House Win less any Player Incentive Funding. |
| “Group Company” | means in relation to any party, any subsidiary or holding company of such party, or any subsidiary of such holding company, or any other entity controlling or controlled by such party from time to time (and “Group Companies” shall be construed accordingly). |
| “Guaranteed Non-Performance Services” | means the Services provided in consideration for non-performance-based fees including any guaranteed CPM Fee and/or any guaranteed SOV Fee, and in respect of which the levels of the Services to be provided shall be guaranteed, as specified in the applicable IO (or as otherwise notified to Media Company from time to time in writing by Advertiser). |
| “Guaranteed Performance Services” | means the Services provided in consideration for performance-based fees including any Revenue Share and/or Cost Per Acquisition, and in respect of which the levels of the Services to be provided shall be guaranteed, as specified in the applicable IO (or as otherwise notified to Media Company from time to time in writing by Advertiser). |
| “House Win” | means all monies paid by Players to play Games on the relevant Brand Website less any Game Winnings. |
| “Intellectual Property Rights” | means all intellectual property rights and interests, including patents (including patents for software and business methods), rights to inventions, utility models and petty patents, trade marks, service marks, rights in get-up or trade dress, rights to goodwill or to sue for passing off or unfair competition, design rights, copyright and related and/or neighbouring rights, moral rights, rights in computer software, semi-conductor topography rights, database rights, rights of extraction relating to databases, rights to use and protect the confidentiality of Confidential Information (including know-how and trade secrets), trade, business and company names, domain names, in each case whether registerable, registered or unregistered, and including all applications and rights to apply for and be granted, all extensions and/or renewals of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. |
| “Licence Fees and Gaming Taxes” | means a sum equal to the total of:
(i) any gaming licence fees payable to any applicable authority (or a pro-rated amount thereof) from time to time; and (ii) the amount of any gross profits or gaming tax or regulatory fees paid or payable by Advertiser to any regulatory or tax authorities (or a pro-rated amount thereof) in any territory from time to time. |
| “Link” | means a hyperlink (whether in the form of a text link, a graphical banner, a sign-up bonus code comprised of a unique alphanumeric code or otherwise) that incorporates a tracking code and which is placed on Media Company Properties or within Promotional Content that, when clicked on, serves the relevant Brand Website to an end user´s browser, which hyperlink is either:
provided or made available to Media Company (and not subsequently withdrawn) by or on behalf of Advertiser; or created by or on behalf of Media Company and approved by Advertiser in writing in advance. |
| “Marketing Channel” | means each of the channels by which Media Company distributes or makes available Promotional Content to end users from time to time (including via website or application publication (including on Media Company Properties), email, mobile applications, SMS, push notification, social media and/or any other media (online or offline)), provided that in respect of email, SMS, push notification and social media:
(i) the relevant channel has been approved by Advertiser in writing in advance; and (ii) each use of each relevant channel by that Media Company has been reviewed and approved in writing by Advertiser in advance. |
| “Media Company” | means the person that makes available Media Company Properties to Advertiser, as specified on the applicable IO. |
| “Media Company’s Account” | means the account set up for the use of Media Company on Gamesys Group Partners Website, the details of which are set out in the account section of Gamesys Group Partners Website. |
| “Media Company Ad Server” | means any third party that provides services to Media Company and/or Media Supply Partner (as applicable) to serve and/or track the delivery of the Services. |
| “Media Company Properties” | means the Websites as specified on the applicable IO, or as otherwise approved by Advertiser in writing, on which Media Company shall distribute the Promotional Content in providing the Services and which are: (i) owned, operated or controlled by Media Company and/or its Group Companies; (ii) not owned, operated or controlled by Media Company, but on which Media Company and/or its Group Companies have a contractual right to serve the Promotional Content; and/or (iii) the Media Supply Partner Properties.
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| “Media Supply Partner” | means: (i) a person to whom Media Company sub-contracts out the provision of certain of the Services subject to clause 16.10; and/or (ii) an agency, an advertising network, a publisher network or any other person with whom Media Company contracts in order to distribute the Promotional Content on Media Company Properties. |
| “Media Supply Partner Properties” | means Websites that are: (i) owned, operated or controlled by a Media Supply Partner and/or its Group Companies; and/or (ii) not owned, operated or controlled by that Media Supply Partner, but on which Media Supply Partner and/or its Group Companies have a contractual right to serve the Promotional Content. |
| “Model Clauses” | means the standard contractual clauses annexed to the EU Fees Decision 2010/87/EU of 5 February 2010 for the transfer of personal data to Processors established in third countries (and any successor clauses). |
| “Net Gaming Revenue” | means Gross Win and/or Gross Betting Revenue less:
(i) Finance Fees; (ii) Licence Fees and Gaming Taxes (iii) any Third Party Licence Fees; (iv) the Charitable Donation allocation; (v) any Third Party Platform Fees; (vi) operating costs (including costs relating to third party service providers and administration fees) (or pro-rated amounts thereof) of the Brand Websites; and (vii) all payments made by and revenues associated with any Player that at any time makes an invalid, criminal, fraudulent or disputed payment (including to where a card company or the paying bank has claimed payment back from Advertiser or where a Player claims payment back because of non-performance) or a payment which is refunded due to responsible gaming or any regulatory reason or requirement (or pro-rated amounts thereof). |
| “OBCA” | means the Ontario Business Corporations Act. |
| “Operator” | means a person that owns a Brand Website. |
| “Personal Data” | means any information relating to an identified or an identifiable natural person (data subject) being one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his/her physical, physiological, mental, economic, cultural or social identity, or as otherwise defined under applicable Data Protection Laws, including Player ID Information. |
| “Player” | means a new end user of a Brand Website who has:
(i) successfully opened an account on that site in accordance with this Agreement; (ii) commenced their application for such account directly from a Valid Click; (iii) generated a minimum of CA$1 as Net Gaming Revenue per month of the Term; and (iv) met the minimum deposit, game-playing and betting requirements, if any, relating to such Brand Website, as set out in Media Company’s Account or otherwise notified to Media Company by Advertiser in writing from time to time. |
| “Player Data” | means any and all information and data relating to Players and their activity on the Brand Websites, including: names, postal addresses, telephone numbers, email addresses or other contact details, usernames, chat names and marketing permissions. |
| “Player ID Information” | means pseudonymised information of a Player provided by Advertiser to Media Company in accordance with clause 15.4. |
| “Player Incentive Funding” | means any funds (or pro-rated amounts thereof) added to Players´ accounts, excluding Game Winnings and Bet Winnings, to incentivise Players to increase their deposits and/or turnover (including bonus money, cash and any loyalty or reward points). |
| “Processor” | means, as applicable, Media Company or any Media Supply Partner or any person that Processes Personal Data in connection with the provision of the Services from time to time. |
| “Process” or “Processing” | means accessing, collecting, obtaining, recording, holding, disclosing, using, altering, deleting, erasing or destroying Personal Data, or carrying out any operation(s) on the Personal Data or as otherwise defined under applicable Data Protection Laws. |
| “Prohibited Material” | means content that contains, promotes or links to:
(i) content aimed or targeted at or which otherwise has particular appeal to persons under the Legal Age; (ii) pornography (including child pornography or illegal sexual acts) and sexually explicit materials; (iii) violence, incitement of hatred or discrimination based on race, ethnic origin, religion, nationality, disability, gender, gender identity, sexual orientation, age, veteran status; (iv) material that is defamatory, libellous, unlawful or otherwise objectionable; (v) material that is obscene, offensive, shocking or otherwise inappropriate; (vi) content that infringes or allegedly infringes the Intellectual Property Rights of Advertiser, its licensors or any third party, including but not limited to scraping text or images from Brand Websites; (vii) viruses, Trojan horses, worms, logic bombs, trap doors, back doors, Easter eggs, time bombs, cancel bots or other material which is malicious or technologically harmful; and/or (viii) illegal activities or content that does not comply with the Applicable Laws or any guidance, conditions and rules applicable to the Promotional Content or the Services or as otherwise set out in this Agreement, and including content that promotes, endorses or supports terrorism of any kind, the use of firearms, content targeting spyware and/or adware, illegal content streaming, pirated music websites, or spam and/or unsolicited emails. |
| “Prohibited Terms” | means any brand name, domain name, game name or other trade mark or service mark (whether registered or not) that may from time to time vest in Advertiser or its licensors (other than the Brand Marks), including the Games, and any additional list of terms which Advertiser may supply to Media Company from time to time. |
| “Promotional Content” | means all content promoting the Brand Websites, including Brand Marks, Links, advertising creative, artwork and copy, that is:
(i) made available to Media Company (and not subsequently withdrawn) by or on behalf of Advertiser; and (ii) created by or on behalf of Media Company, provided such content is approved by Advertiser in writing in advance. |
| “Promotional Content Policies” | means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Advertiser’s and the Associated Parties’ public image, community standards regarding obscenity or indecency, other editorial or advertising policies, and due dates of Promotional Content. |
| “Revenue Share” | means the percentage of Net Gaming Revenue payable to Media Company, as such percentage is set out in Media Company’s Account (or as otherwise notified in writing to Media Company by Advertiser). |
| “Security Incident” | means any unauthorised acquisition, access, use or disclosure of Advertiser Personal Data. |
| “Services” | means the delivery of the Promotional Content on Media Company Properties (including the Guaranteed Performance Services, the Guaranteed Non-Performance Services, the Unguaranteed Performance Services and the Unguaranteed Non-Performance Services) and the advertising, marketing and promotion of the Brand Website(s) via the Marketing Channel(s) in accordance with the terms of this Agreement and otherwise the fulfilment of Media Company´s obligations hereunder. |
| “Settle” | means the outcome of any Game play or Bet, including (if applicable) Operator paying any Game Winnings and/or Bet Winnings to a Player’s account balance if a Game or Bet settles in that Player’s favour. The term “Settled” shall be construed accordingly. |
| “Stake” | means the amount of money used by a Player to place a Bet via that Player’s account. For the avoidance of doubt, any Bet placed using a Free Bet Token shall not be deemed to be a Stake. |
| “SOV Fee” | means a cost based on a fixed percentage of advertising inventory that may be made available on a Media Company Property as Advertiser’s share of voice in respect of other advertisers in accordance with which that Media Company Property’s end users shall view the Promotional Content, as specified in the applicable IO. |
| “Sub-Processor” | has the meaning given to it in applicable Data Protection Laws. |
| “Term” | means the term of this Agreement as set out in clause 13.1. |
| “Territory” | means the country, province, state or other jurisdiction in which the Promotional Content shall be permitted by Advertiser to be accessible to end users therein, as Advertiser notifies Media Company from time to time. |
| “Third Party Licence Fees” | means any and all costs payable to third parties for the use of their Intellectual Property Rights in the Brand Website, the underlying Advertiser proprietary system and/or any of the Games from time to time (or pro-rated amounts thereof). |
| “Third Party Platform Fees” | means the fees paid (or a pro-rated amount thereof) by Advertiser to a third party platform operator (including any social media platform operator from time to time) for it to host, make available or permit access to Games on or through such platform. |
| “Unguaranteed Non-Performance Services” | means the Services provided in consideration for the Unguaranteed Non-Performance Services Fee, and in respect of which the levels of the respective Services to be provided shall be unguaranteed, as specified in the applicable IO (or as otherwise notified to Media Company from time to time in writing by Advertiser). |
| “Unguaranteed Non-Performance Services Fee” | means the fee agreed as consideration for Unguaranteed Non-Performance Services as specified on the IO, including any: (i) unguaranteed CPM Fee, (ii) unguaranteed SOV Fee, (iii) fixed cost per click by an end user of Media Company Properties, and/or (iv) fixed cost per lead of a potential Player made available via Media Company Properties. |
| “Unguaranteed Performance Services” | means the Services provided in consideration for performance-based fees including any Revenue Share and/or Cost Per Acquisition, and in respect of which the levels of the Services to be provided shall be unguaranteed, as specified in the applicable IO (or as otherwise notified to Media Company from time to time in writing by Advertiser). |
| “Unsuitable” | means when Media Company (or its Group Company) or Media Supply Partner (or its Group Company):
(i) is denied or disqualified from eligibility for any Gaming Approval or determined by a Gaming Authority to be unsuitable to be affiliated, associated or connected with any entity that holds a Gaming Approval; (ii) has an affiliation, association, connection or relationship with a third party which causes Advertiser (or an Associated Party) to lose or have suspended, revoked, not renewed or denied, or be threatened by any Gaming Authority with the loss, suspension, revocation, non-renewal or denial of, a Gaming Approval; (iii) in the reasonable opinion of Advertiser, is likely to preclude or materially delay, impede or impair, or jeopardise or threaten the loss, suspension, revocation, non-renewal or denial of a Gaming Approval of Advertiser (or an Associated Party) or any such entity´s application for, or right to the use of, entitlement to or ability to obtain or retain any Gaming Approval required for the operation of its business in any jurisdiction from time to time; or (iv) commits any breach of clause 14; or (v) acts in a manner which is inconsistent with any Gaming Approval or any requirements, standards, instructions or conditions of any Gaming Authority,
it being agreed that Media Company shall be capable of being Unsuitable as a result of the actions and/or omissions of: (a) Media Company or its Group Companies, (b) any Media Supply Partner or its Group Companies, or (c) the directors, officers, members, employees, consultants, contractors, agents or affiliates of the foregoing persons. |
| “Valid Click” | means a click by an end user on a Link that results in the Brand Website being viewable to such end user, as recorded by Advertiser´ systems. |
| “Website” | means a website, including any device-specific versions of such website, and any related applications (including desktop, tablet and native mobile applications). |
2.2 In this Agreement (except where the context otherwise requires):
2.2.1 any reference to a “subsidiary” or “holding company” is to be construed in accordance with the provisions of the OBCA;
2.2.2 any reference to a “party” means a party to this Agreement and includes its permitted assignees and/or the respective successors in title to substantially the whole of its undertaking;
2.2.3 any reference to a “person” includes any natural person, individual, company or other body corporate, firm, corporation, association, partnership, organisation, foundation, trust, government, state or agency of a state or any undertaking (whether or not having separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists);
2.2.4 any reference to a statute, statutory instrument, rule or regulation or any of its provisions is to be construed as a reference to that statute, statutory instrument, rule or regulation or such provision as the same may have been or may from time to time hereafter be amended or re-enacted;
2.2.5 a reference to a statute or statutory provision is a reference to that statute or statutory provision and to all orders, regulations, instruments or other subordinate legislation made under the relevant statute;
2.2.6 words denoting the singular shall include the plural and vice versa and words denoting any gender shall include all genders;
2.2.7 any reference to “control” is to be construed in accordance with the provisions of the OBCA (and “controlling” and “controlled” shall be construed accordingly);
2.2.8 any phrase introduced by the terms “including”, “include”, “in particular”, “for example”, “such as” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
2.2.9 any reference to “writing” includes any methods of representing words in a legible form including writing on an electronic or visual display screen, such as email (and “written” shall be construed accordingly);
2.2.10 the clause headings are included for convenience only and shall not affect the interpretation of this Agreement; and
2.2.11 a reference to any website or webpage at a specified URL includes a reference to such website or webpage at any amended, updated or replacement URL from time to time.
2.3 Any schedules form part of the operative provisions of this Agreement and shall have effect as if set out in full in the body of this Agreement and any references to this Agreement shall, unless the context requires otherwise, include the schedules.
3. APPLICATION TO PARTNER’S PROGRAMME
3.1 Media Company, where an individual, must be at the older of 19 years of age and the age of majority in the jurisdiction in which such individual resides (such age referred to hereinafter as the “Legal Age”) to provide the Services. Where Media Company is an incorporated company, the ultimate beneficial owners, directors and the person operating Media Company’s Account must be at least of Legal Age. Media Company covenants and agrees that it shall comply with this clause and is of the legal age to enter into and be bound by this Agreement in its country of residence. Media Company further covenants and agrees that it is not precluded from providing the Services by the laws of the country in which it resides or is incorporated, as applicable, or by the laws of the country where the Services are made available.
3.2 Media Company warrants, represents and undertakes that neither Media Company Properties nor any domain name or sub-domain owned or controlled by Media Company (whether used or intended to be used for the provision of Media Company Properties or otherwise), nor Media Company’s marketing activities or practices shall generate any content that: (i) contains any Prohibited Material; (ii) consists of, includes or is confusingly similar to any of the Brand Marks or Prohibited Terms; and/or (iii) appears to have been registered in bad faith. Prior to the Commencement Date and at any time during the Term, Advertiser may require that Media Company removes the foregoing material, and/or either transfers to Advertiser or its licensors or (in Advertiser´s or such licensors´ sole discretion) deletes/removes any such domain name, sub-domain or content. Media Company shall inform Advertiser about any such domain name, sub-domain or content owned by Media Company or under its control within a reasonable period of time prior to the execution of the IO by the parties, and shall promptly provide written notice to Advertiser of any subsequent changes to such domain name, sub-domain or content during the Term upon identifying the same.
3.3 These Terms shall not be applicable to persons who will be providing advertising and marketing services to Advertiser acting as “gambling affiliates” in the general course of business as that term is generally used in the igaming industry (“Affiliates”). Affiliates shall instead subscribe to Operator’s terms and conditions for Affiliates.
4. SERVICES
4.1 Subject to Media Company´s compliance with this Agreement, Advertiser grants to Media Company a non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable, royalty free licence, during the Term, to promote the agreed Brand Websites using the Links, Brand Marks and Promotional Content via the Marketing Channels, in each case solely in the manner directed or approved by Advertiser in writing and in accordance with all Applicable Laws, any and all Brand Guidelines, any and all Promotional Content Policies, and this Agreement, and solely on those Media Company Properties approved by Advertiser in writing and solely for the purposes of referring Media Company´s end users to the Brand Websites.
4.2 Advertiser shall specify the Brand Website(s) in association with which Media Company shall provide the Services. The agreed Brand Websites shall then be set out in Media Company’s Account, the applicable IO and/or specified in written notices to Media Company from Advertiser.
4.3 Media Company shall ensure that it shall only use and place on Media Company Properties those Links, Brand Marks and Promotional Content that have been approved in writing by Advertiser, and shall always use the most up-to-date versions thereof as made available, provided or approved by Advertiser from time to time without alteration.
4.4 If Advertiser requests any change to Media Company´s use and positioning of the Links, Brand Marks and/or Promotional Content and/or Marketing Channels from time to time, Media Company shall promptly comply with such request. Media Company shall promptly provide to Advertiser such information as Advertiser may reasonably request (i) to enable Advertiser to monitor Media Company´s compliance with this Agreement and (ii) for regulatory purposes, including as may be requested by Advertiser in relation to any reports or information that Advertiser may wish or need to provide to any Gaming Authority.
4.5 Media Company shall use its best efforts actively and effectively advertise, market and promote the Brand Websites in accordance with this Agreement to maximise the financial benefit to the parties and make available the Promotional Content in prominent positions on Media Company Properties as approved by Advertiser in writing, and shall bear all costs and expense incurred in connection with the same.
4.6 Media Company shall cease immediately all advertising, marketing or promotional efforts in any jurisdiction that Advertiser notifies Media Company to be a jurisdiction from which Operator cannot accept Players.
5. FEES
5.1 In consideration for the performance of the Services, and subject to the terms of this Agreement, Advertiser will pay to Media Company:
5.1.1 the CPM Fee; and/or
5.1.2 the SOV Fee; and/or
5.1.3 the Unguaranteed Non-Performance Services Fee; and/or
5.1.4 the Revenue Share; and/or
5.1.5 the Cost Per Acquisition; and/or
5.1.6 the Fixed Fee,
(together, the “Fees”).
5.2 If Advertiser wishes to amend the quantum or means of calculation of the Fees, Advertiser shall send a written notice to Media Company with details of the proposed amendments (the “Changes”). Media Company shall have 5 business days from the date of such notice (the “Notice Period”) to accept or reject the Changes. If Media Company rejects the Changes, it shall advise Advertiser in writing of its decision within the Notice Period. Upon receipt of a rejection notice from Media Company, Advertiser shall then have the right to either (i) terminate this Agreement, or (ii) maintain the Agreement in force without the Changes. If Media Company accepts the Changes, it shall advise Advertiser in writing of its decision within the Notice Period. Upon receipt of an acceptance notice from Media Company, the terms of this Agreement shall be deemed to have been amended accordingly as of the date of Media Company’s acceptance notice. In the event that Media Company does not provide a response to Advertiser’s proposed amendments within the Notice Period, the Agreement shall be deemed to have been amended to include the Changes with effect from the day after the expiry of the Notice Period.
5.3 Media Company shall not be entitled to any Fees after expiry or termination of this Agreement (including any ‘lifetime revenue share’).
5.4 Any payments to be made by Advertiser under the terms of this Agreement may be made directly by Advertiser or indirectly by a third party acting on behalf of Advertiser.
5.5 In respect of the Guaranteed Non-Performance Services and the Unguaranteed Non-Performance Services only:
5.5.1 Within no later than 30 day of delivery of the Services, Media Company shall provide an invoice to the billing address of Advertiser as set out in the applicable IO, and send a copy of the same to affiliates@vipcasinoca.wpengine.com or such other email address as provided by Advertiser to Media Company in writing from time to time.
5.5.2 Media Company acknowledges that failure by Media Company to send an invoice within the period set out in clause 5.5.1 to an Advertiser who is an Agency may cause such Agency to be contractually unable to collect payment from its Customer, and such Agency shall have no obligation to pay the Fees to Media Company. Where applicable, Media Company agrees to hold Agency liable for payments solely to the extent proceeds have cleared from Customer to Agency for Promotional Content placed in accordance with the applicable IO. For sums not cleared to Agency, Media Company agrees to hold Customer solely liable. Media Company understands that Customer is Agency’s disclosed principal and Agency, as agent, has no obligations relating to such payments, either joint or several, except as specifically set out in this clause.
5.5.3 Media Company shall ensure the invoice provides as specified in the applicable IO: (i) any fixed cost, payable in advance; or (ii) the actual delivery of impressions of Promotional Content, payable in arrears. Where invoicing Advertiser, LiveScore shall invoice Advertiser with the net cost (i.e. the cost after subtracting Advertiser’s commission payable by its Customer, if any).
5.5.4 Unless otherwise agreed in the IO, Advertiser shall pay each invoice in arrears upon receipt of a valid and undisputed invoice within 30 days from the date the invoice is received and approved by Advertiser.
5.5.5 Advertiser shall not be charged by Media Company for any Services that are delivered above any guaranteed and/or capped levels of Services specified in the applicable IO.
5.5.6 Where Advertiser notifies Media Company that the guaranteed and/or capped levels of Services specified in the applicable IO have been reached, Media Company shall suspend delivery of the Services. Media Company shall be held responsible for any costs associated with any Services served beyond such guaranteed and/or capped levels, including any applicable advertising serving charges incurred by Advertiser where it uses an Advertiser Ad Server.
5.5.7 Media Company will track the delivery of the Services via Media Company Ad Server, and separate tracking mechanism shall be used to track desktop and mobile/tablet line items. Where elected by Advertiser, Advertiser shall track delivery of the Services via the Advertiser Ad Server. Any tracking of the delivery of the Services by Media Company shall be carried out to minimise discrepancies with the advertising tracking figures of Advertiser. The measurement used for invoicing the Fees under the applicable IO will be determined using the Advertiser Ad Server. In the event of discrepancy between the advertising tracking figures of the Advertiser Ad Server and the advertising tracking figures of Media Company Ad Server, the advertising tracking figures of the Advertiser Ad Servicer shall prevail. Advertiser shall only be liable to pay Media Company up to a maximum of 10% above the advertising tracking figures of the Advertiser Ad Server. Where such discrepancy exceeds 10% over the invoice period and the Advertiser Ad Server’s advertising tracking figures are lower, Advertiser shall elect to either: (a) consider the discrepancy an under-delivery of the Services, requiring the parties to comply with clause 5.6, or (b) pay the invoice based on the Advertiser Ad Server’s advertising tracking figures plus a 10% upward adjustment to the delivery.
5.5.8 During the Term, Media Company shall make reporting of the performance of the advertising campaigns based on the variables defined in the IO (including Promotional Content execution, placement, impressions, click and cost) , which may include access to online or electronic reporting, promptly in writing upon Advertiser’s request and, in any case, at least as often as every week of the Term. Failure to provide such a report or an inaccurate or incomplete report within five (5) days may result in non-payment for all activity for which data is incomplete or missing until Media Company delivers reasonable evidence of performance.
5.5.9 Where Advertiser uses an Advertiser Ad Server and that Advertiser Ad Server cannot serve the Promotional Content, Advertiser shall have the right to temporarily suspend delivery under the applicable IO for a period of up to 72 hours. Upon written notification by Advertiser of a non-functioning Advertiser Ad Server, Media Company shall suspend the delivery of the relevant Promotional Content within 24 hours of receiving such notification. Following this period, Advertiser shall not be held liable for payment for any Promotional Content that is served until Media Company is notified that the Advertiser Ad Server is able to serve Ads. Advertiser may elect to instruct that Media Company uses a Media Company Ad Server to deliver that Promotional Content until Advertiser Ad Server is able to serve that Promotional Content, in which case Media Company shall arrange for the delivery of that Promotional Content using a Media Company Ad Server within 24 hours. Upon notification that the Advertiser Ad Server is functioning, Media Company shall resume delivery of the Promotional Content within 48 hours. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in Media Company owing a makegood to Advertiser in accordance with clause 5.6.
5.6 In respect of the Guaranteed Performance Services and the Guaranteed Non-Performance Services only:
5.6.1 Media Company will monitor delivery of the Services and, in the case of probable or actual under-delivery of any Guaranteed Performance Services and the Guaranteed Non-Performance Services (as specified in the applicable IO), Media Company shall promptly notify Advertiser in writing.
5.6.2 If the actual levels of any Guaranteed Performance Services and the Guaranteed Non-Performance Services fall below the guaranteed levels specified in the applicable IO, and/or if there is an omission of any Promotional Content (placement or creative unit), Media Company shall arrange as elected by Advertiser:
5.6.2.1 for a makegood flight in accordance with any conditions stipulated by Advertiser. For the avoidance of doubt, makegoods shall not be available for any Unguaranteed Performance Services or any Unguaranteed Non-Performance Services as specified in the applicable IO; and/or
5.6.2.2 a refund to the value of the under-delivered portion of the IO for which it was charged. Where Advertiser made a cash prepayment to Media Company specifically for the advertising campaign for which under-delivery applies, then Advertiser shall be refunded for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the advertising campaign.
5.7 In respect of the Guaranteed Performance Services and the Unguaranteed Performance Services only:
5.7.2 Advertiser shall make available to Media Company a monthly statement setting out the Fees payable by Advertiser to Media Company in accordance with this Agreement.
5.7.3 Subject to the terms of this Agreement, on or before the last day of each calendar month, Advertiser shall pay the Fees due to Media Company in respect of the previous calendar month based upon the monthly statement setting out the Fees to Media Company´s nominated bank account.
5.7.4 Media Company shall not be entitled to any Fees in respect of any of Media Company’s end users that are referred to the Brand Websites having clicked the Links where those end users do not subsequently register as Players and deposit a minimum of CA$10 and play a Game or Bet a minimum of CA$0.01 per Player on each Brand Website.
5.7.5 If Media Company has a negative monthly balance, Media Company´s monthly payable balance of the Fees is automatically reset to CA$0 (or, where applicable, the equivalent in another currency) at the beginning of each calendar month, to ensure that no negative balances are carried forward.
5.7.6 Any Fees calculation will exclude Net Gaming Revenue generated in respect of closed player accounts.
5.7.7 If a Player is banned from playing on a Brand Website for any reason, and Advertiser returns any deposited funds to that Player, Media Company will not be entitled to any Fees that would have otherwise been earned by it in respect of the Net Gaming Revenue generated from such banned Player.
5.7.8 If a Player is being investigated for identity, address, bank information and/or credit card verification, Advertiser will withhold payment of any Fees earned by Media Company in respect of Net Gaming Revenue generated from such Player until such information has been verified to the satisfaction of Advertiser.
5.8 If the total Fees payable to Media Company in any calendar month is below CA$100 (the “Minimum Payout”), the amount of such Fees may not be paid to Media Company in respect of that calendar month and may instead accrue and be carried over until such time as the amount of the Minimum Payout has accrued as Fees, which shall then be paid to Media Company in the subsequent calendar month.
5.9 Without prejudice to clause 5.8, where Media Company has selected one of the following payment methods and the balance of the Fees due to Media Company is less than the following monthly payment thresholds in any calendar month (each, a “Payment Method Threshold”), the amount of such Fees may not be paid to Media Company in respect of that calendar month and may instead accrue and be carried over until such time as the amounts of the Payment Method Thresholds have accrued as Fees, which shall then be paid to Media Company in the subsequent calendar month:
5.9.2 international bank transfer – CA$200 (or, where applicable, the equivalent in another currency);
5.9.3 UK bank transfer – CA$25 (or, where applicable, the equivalent in another currency).
5.10 Advertiser may review the balance of the Fees due to Media Company every six (6) months during the Term. If at any review date the balance of Media Company’s Account is less than CA$5 (or, where applicable, the equivalent in another currency), any Fees due to such Media Company may, at Advertiser´ election, be declared void and the balance of its account in relation to any Fees owed shall be reset to CA$0.
5.11 Media Company shall not be paid in respect of any Services where the click-to-install rate for Advertiser’s or an Associated Party’s mobile applications advertised in any advertising campaign is less than 0.25% as reported by the Mobile Measurement Partner.
5.12 Media Company agrees that Advertiser’s Player tracking methods and/or Promotional Content tracking methods (including its use of the Links and/or an Advertiser Ad Server) are accurate and reasonable, and that all calculations of the Fees owed to Media Company made by Advertiser shall be final. Advertiser shall not be responsible for paying any Fees generated using incorrect Links and resulting in inaccurate or incomplete tracking of Players or Promotional Content.
5.13 The Fees will be paid in Canadian dollars (CA$) by electronic bank transfer in respect of all Brand Websites in accordance with the bank details provided by Media Company in Media Company’s Account or in the applicable IO. Without prejudice to the foregoing, the Fees may be displayed in a different currency in Media Company’s Account on Gamesys Group Partners Website where the Operator stipulates a different currency for such purpose. If Media Company requests payment in a currency other than Canadian dollars (CA$), Media Company shall bear the risk of any shortfall as a result of the currency conversion, as well as all costs associated with that conversion. Similarly, if Media Company’s bank will only accept payments in a currency other than Canadian dollars (CA$), Media Company shall incur the cost of the currency conversion as well as any shortfall as a result of the conversion.
5.14 Except where clause 5.15 applies in circumstances where Media Company has provided incorrect bank details, Media Company shall be entitled but not obliged to charge interest on an overdue amount, from the due date up to the date of actual payment, at the rate of two percent (2%) per annum above the base rate for the time being of Barclays Bank Plc, provided that Media Company shall give written notice to Advertiser that the amount has not been paid, specifying the total amount of interest owed at the date of the notice and the daily rate at which the interest will continue to accrue, the invoice or invoices to which the interest relates, and the addresses to whom and details of the account to which payment should be made.
5.15 If Media Company provides incorrect bank details and a payment is unsuccessful and returned to Advertiser by its payment processor, Advertiser will investigate and notify Media Company and request corrected bank account details, and:
5.15.2 such unsuccessful payments will only be credited to Media Company´s corrected account details once Advertiser has been notified by its payment processor that the payment has been successfully retrieved;
5.15.3 the bank charges associated with any such error shall be deducted from Media Company´s Fees; and
5.15.4 from six months after Advertiser first contacted Media Company to request Media Company’s correct bank details, Advertiser shall have the right but not any obligation to close an Media Company’s Account, terminate this Agreement and withhold any Fees owing.
5.16 Notwithstanding clause 5.15, Advertiser reserves the right to withhold payment of the Fees to Media Company if: (i) it believes or suspects that any transaction or other activity relating to any Link, Gamesys Group Partners Website, Media Company Properties or any Brand Website is suspicious, fraudulent and/or involves or may involve financial crime or similar activity; (ii) there is a breach or suspected breach of this Agreement by Media Company; or (iii) Advertiser has reasonable grounds to believe that the relevant Services, activities or marketing which would have otherwise resulted in such Fees being payable were carried out in a manner which was not in accordance with legal or regulatory requirements. In such event, Advertiser reserves the right to retain indefinitely any revenues relating to that transaction or activity and any other revenues (including the Fees) relating to Media Company.
5.17 The Services shall be monitored by Advertiser’s fraud monitoring partner (which may be provided by Advertiser’s Mobile Measurement Partner or which may be a separate service provider of Advertiser). In the event of discrepancy between the advertising tracking figures of Advertiser’s fraud monitoring partner and Media Company’s fraud monitoring partner, Advertiser’s advertising tracking figures shall prevail. Where installs of Advertiser’s or an Associated Party’s mobile applications are determined by Advertiser’s fraud monitoring partner to be, or to be attributable to, fraudulent, invalid or non-human traffic or where installs of Advertiser’s applications cannot be determined based on the Mobile Measurement Partner’s last-click attribution to a user of Media Company Properties (“Fraudulent Installs“), Advertiser shall be entitled to withhold from any payment of sums due to Media Company the amount equal to the amount directly attributable to the Fraudulent Install or, in the event that payment has already been remitted to Media Company in respect of the Fraudulent Install, Advertiser may elect to either: a) require Media Company to provide to Advertiser within thirty (30) days, a refund equal to the amount directly attributable to the Fraudulent Install, or (b) set off such amount against any amounts, due and payable by Advertiser to Media Company hereunder for any future accounting period.
5.18 If Media Company fails to display online banners and/or advertising copy relating to Advertiser’s Promotional Content in accordance with Advertiser’s instructions, Advertiser shall have the right to withhold all Fees payments due to Media Company until Advertiser’s instructions have been followed.
5.19 Media Company shall be responsible for paying any and all taxes due in connection with any payments made to Media Company, including complying with any rules for registering for, collecting and paying any chargeable income tax, value added tax, sales tax, turnover tax or similar taxes in the country where the Services are provided. Media Company acknowledges and agrees that all payments to Media Company shall be deemed to include all applicable value added tax, sales tax or turnover tax.
5.20 In the event that applicable law is amended to (i) introduce a taxation scheme that is applicable to the operation of any of the Brand Websites, or (ii) if such a scheme is already in place, an increase in the then-current taxation rate, Advertiser has the right to immediately and automatically reduce the Fees payable to Media Company under this Agreement by an amount that Advertiser deems reasonable under the circumstances. In the event that the change is not acceptable to Media Company, the parties shall, both acting reasonably, negotiate a reduction that is mutually acceptable. If the parties are not able to reach an agreement on this issue, Media Company may terminate this Agreement.
6 MEDIA COMPANY ACCOUNTS
6.1 Media Company shall be responsible for:
6.1.1 keeping its bank account details up to date for the purpose of receiving any amounts payable to Media Company in accordance with this Agreement;
6.1.2 keeping its contact details including postal address, telephone number and email address, up to date for the purpose of receiving any notification set out in this Agreement;
6.1.3 maintaining the confidentiality of its email, password and all usage and activity on its account, including use of such account by a third party authorised by Media Company to use its account. Advertiser shall have no liability to reimburse Media Company for any amounts that were either removed or re-directed away from Media Company’s Account where that Media Company’s Account is accessed by a third party as a result of or in connection with Media Company’s failure to comply with this clause;
6.1.4 keeping Advertiser up to date on the details of all Media Company Properties through which it promotes any Brand Websites, including via a network of affiliates; and
6.1.5 providing Advertiser with any documentation requested by Advertiser to approve any changes in the details of its contact information, bank account, Media Company Properties and/or advertising network.
6.2 Media Company shall notify Advertiser by email at affiliates@vipcasinoca.wpengine.com of any known or suspected unauthorised uses of its account, or any known or suspected breach of security, including loss, theft or unauthorised disclosure of its email and/or password.
6.3 Media Company agrees that Advertiser may rely on any data, notice, instruction or request furnished to it by Media Company or by a person reasonably believed by Advertiser to be authorised to act on Media Company´s behalf.
6.4 Where Media Company Properties comprise cashback and incentive Websites: (i) Advertiser reserves the right to limit the amount of cashback given away for all Brand Websites; and (ii) each cashback operator must make Advertiser aware of the nature of its Website.
7 MEDIA COMPANY OBLIGATIONS
7.1 Media Company shall provide the Services in accordance with Good Industry Practice.
7.2 Media Company shall ensure all Promotional Content is compliant with Applicable Laws, the requirements of any applicable regulator (including any applicable Gaming Authority), the Brand Guidelines, the Promotional Content Policies, the terms of this Agreement and Advertiser´ instructions given from time to time (including any guidance notes issued by Advertiser), and shall cooperate fully with Advertiser in the case of any investigation or ruling from any regulator (including any Gaming Authority). Media Company shall remove all Promotional Content, Brand Marks and/or Links where requested by Advertiser in accordance with the timelines provided by Advertiser. Once Advertiser has advised Media Company that a Website is no longer a Brand Website, Media Company shall not conduct any marketing for that former Brand Website that would bring Advertiser or Customer into disrepute or associate an Advertiser or Customer with such former Brand Website against Advertiser’s instructions. Media Company shall remove all Promotional Content, Brand Marks and/or Links where requested by Advertiser in accordance with the timelines provided by Advertiser for such former Brand Website.
7.3 Where Media Company publishes on any Media Company Properties any advertising for the Brand Websites which is either: (i) intended to come to the attention of end users in the Territory; or (ii) likely to come to the attention of such persons, Media Company will ensure that such advertising complies with:
7.3.1 all applicable consumer protection laws;
7.3.2 all Applicable Laws and regulations related to gambling, in each case as updated, amended, replaced or superseded from time to time.
In complying with this clause and for the avoidance of doubt, Advertiser shall have the right to terminate this Agreement on written notice and without any liability to Media Company if, in Advertiser´ reasonable opinion, Media Company is in breach of the obligations set out in this clause.
7.4 Media Company shall comply with any applicable marketing codes and related guidance and, in particular, shall ensure that it shall at all times in relation to advertising for the Brand Websites:
7.4.1 take all reasonable steps to ensure that such advertising is not targeted at individuals under the Legal Age in the applicable jurisdiction either through selection of media, or content;
7.4.2 take into account the likely audience of such advertising and take steps to:
7.4.2.1 where such filters exist (e.g. age filters, interest filters that indicate a particular age bracket, account-logins with age verification or self-declaration), exclude under-19s to the extent possible from receiving or viewing such advertising; and
7.4.2.2 where filters do not exist, establish a minimum audience share of such advertising of 75% over-19s for general content, along with complete exclusion of children’s/young people’s media (e.g. children’s pages of a generally over-19s website);
7.4.3 prevent such advertising being directed at adult audiences posing a risk to under-19s (e.g. adult content that young people are known to participate in (e.g. drinking/gambling/adult TV and cinema);
7.4.4 account for the fact that some audiences are likely to lie about their age, and put secondary filters in place at times when the target audience is similar to the restricted audience (e.g. adding interest filters that would select an older demographic, or the exclusion of interest filters or demographics with wide appeal to children or young people e.g. fashion brands, celebrities with wide youth appeal); and
7.4.5 be able to provide evidence that Media Company has, and has cooperated with Advertiser to have, been diligent in forecasting the likely audience and confident of the likely audience composition ahead of publishing adverts.
7.5 If, having obtained the prior written approval of Advertiser, Media Company markets and promotes the Brand Websites via social media, SMS or push notification, Media Company shall (and shall procure from any third party that provides such Services on behalf of Media Company that it shall):
7.5.1 provide the relevant marketing messages, Links, Brand Marks and/or Promotional Content to Advertiser at least two (2) weeks prior to the target send date in the format requested by Advertiser to enable Advertiser to approve the same;
7.5.2 only send such marketing to its marketing list once Advertiser has provided prior written approval of the same on the day before the target send date;
7.5.3 include Advertiser on its marketing list and send all such marketing to Advertiser each time it uses such marketing;
7.5.4 only send such messages to recipients who have willingly and explicitly consented to receive marketing from Media Company in relation to the Brand Websites, in accordance with applicable Data Protection Laws, such consent having been reaffirmed by the recipient at least within the last 12 months;
7.5.5 clearly display a message in each such communication to state who is sending such marketing communications (and confirm they are not being sent by the applicable Brand Websites);
7.5.6 clearly display an unsubscribe feature in each such communication, clearly detailing methods of unsubscribing from the mailing list;
7.5.7 not send any promotional offers relating to Gamesys Group Partners Website or the Brand Website to recipients under the Legal Age;
7.5.8 comply with Data Protection Laws; and
7.5.9 at least once every six months, and in any event on Advertiser request, provide written evidence to Advertiser of its compliance with this clause.
7.6 If, having obtained the prior written approval of Advertiser, Media Company markets and promotes the Brand Websites via email, Media Company shall (and shall procure from any third party that provides such Services on behalf of Media Company that it shall):
7.6.1 provide the relevant email wording, Links, Brand Marks and/or Promotional Content to Advertiser at least two (2) weeks prior to the target send date in the format requested by Advertiser to enable Advertiser to approve the same;
7.6.2 only send emails to its marketing list once Advertiser has provided prior written approval of the same on the day before the target send date;
7.6.3 include Advertiser on its marketing list by copying affiliates@vipcasinoca.wpengine.com to the relevant email, and send all email marketing to Advertiser each time it uses email marketing;
7.6.4 only email recipients who have willingly and explicitly consented (and have not subsequently withdrawn their consent) to receive marketing from Media Company in relation to the Brand Websites, in accordance with applicable Data Protection Laws, such consent having been reaffirmed by the recipient at least within the last 12 months;
7.6.5 clearly include the header of the applicable Brand Website in every email (incorporating the relevant Brand Marks);
7.6.6 clearly display a message in the header of each such email to state who is sending such marketing communications (and confirm they are not being sent by the applicable Brand Website);
7.6.7 clearly display an unsubscribe feature in each such email clearly detailing methods of unsubscribing from the mailing list;
7.6.8 perform suppression of all email recipient lists against the suppression software tools of Advertiser´ Suppression Provider (as defined below), and in accordance with any Advertiser´ instructions, before each send of email marketing, to remove applicable email addresses from its list (and only send emails to such suppressed list);
7.6.9 accept and comply with the terms and conditions of Advertiser´ third party suppression software provider as is stipulated by Advertiser from time to time (the “Suppression Provider”), including by:
7.6.9.1 not reverse engineering (whether manually or digitally) supressed lists of emails and other contact details;
7.6.9.2 fully cooperating with the Suppression Provider in connection with carrying out suppression activities for the purposes of this Agreement;
7.6.9.3 not making compilations, deductions or inferences from such suppressed lists or any other information provided by the Suppression Provider;
7.6.9.4 not using any information provided by the Suppression Provider or any suppressed lists for any purpose other than the fulfilment of Advertiser´ suppression requirements; and
7.6.9.5 not running any more queries using the Suppression Provider than are necessary to fulfil Advertiser´ requirements;
7.6.10 comply with Data Protection Laws; and
7.6.11 at least once every six months, and in any event on Advertiser request, provide written evidence to Advertiser of its compliance with this clause.
7.7 If Media Company uses any social media platform to market and promote the Brand Websites, Media Company shall (and shall procure from any third party that provides such Services on behalf of Media Company that it shall) fully comply with such social media platform’s terms and conditions (as may be updated from time to time).
7.8 If any form of spam, unsolicited email, spamvertising or spoofing or other unauthorised email direct marketing is sent (or alleged to have been sent) by or on behalf of Media Company, Advertiser may, at its sole discretion, terminate this Agreement (and all other agreements with such Media Company) immediately on written notice to Media Company and withhold all funds then due. Advertiser may incur expenses in dealing with complaints and other issues arising from any spam generated mail sent by or on behalf of Media Company and these expenses may, at Advertiser´ sole discretion, be deducted from the Fees from time to time. Should these expenses not be covered by the Fees, Media Company hereby agrees to indemnify and hold harmless Advertiser, Agency and the Associated Parties from and against all losses, demands, fines, penalties (including any fine or penalty imposed by a Gaming Authority), damages, costs, expenses (including reasonable legal costs and expenses and VAT thereon), liabilities and claims (including any claims from Players) suffered or incurred, directly or indirectly, by or awarded against Advertiser, Agency or any Associated Parties in consequence of or in connection with any breach by Media Company of this clause.
7.9 For advertising campaigns that are to be run on Websites for mobile devices, Media Company warrants, represents and undertakes that it shall:
7.9.1 perform its obligations under this Agreement in accordance with all Applicable Laws and advertising guidelines including but not limited to the Mobile Application Advertising Measurement Guidelines (available here: https://www.iab.com/wp-content/uploads/2015/06/MobileAppsAdGuidelines1FINAL-1.pdf) and IAB Canada’s Digital Advertising Guidelines (available at https://www.iabcanada.com/iab-standards-and-guidelines/digital-advertising-guidelines/);
7.9.2 maintain integration with Advertiser’s mobile measurement partner (“Mobile Measurement Partner”) to send and receive postbacks (also known as server-side tracking) of impressions and clicks on Advertiser’s Promotional Content throughout the duration of the relevant advertising campaigns as specified on the applicable IO for the purposes of enabling Advertiser to determine which Promotional Content and which Media Company Properties drive conversions for Advertiser’s mobile applications pursuant to the reports of the Mobile Measurement Partner. Media Company shall further maintain any and all tracking links provided by Advertiser and/or incorporated into Advertiser’s Ads for such purpose;
7.9.3 ensure that view-through attributions and click-through attributions are and remain enabled throughout the duration of the relevant advertising campaigns as specified on the applicable IO and capped at one (1) day post-view and seven (7) days post-click (each, a “Conversion Window”) of each Promotional Content as reported by the Mobile Measurement Partner, both during and after campaigns are paused (whether paused by either party, a Group Company of either party or a Media Supply Partner, unless otherwise stated by the Advertiser). For the avoidance of doubt, any impressions or clicks of Promotional Content recorded by the Mobile Measurement Partner outside of such Conversion Windows and/or any installations of Advertiser’s mobile applications outside of these Conversion Windows shall not be attributed to Media Company Properties, and no fees shall be payable to Media Company in respect of any such impressions, clicks or installations;
7.9.4 not carry out any act or omission that results in or would likely result in Advertiser’s or an Associated Party’s mobile applications being removed from any online mobile application stores. Media Company shall notify Advertiser promptly upon becoming aware that a mobile application of Advertiser or an Associated Party has been, or is likely to be, removed from any online mobile application store as a result of an act or omission of Media Company, in which circumstances Advertiser shall have the right to terminate this Agreement immediately on written notice to Media Company.
7.10 Media Company will not knowingly benefit from known or suspected traffic not generated in good faith whether or not it actually causes damage to Advertiser. Advertiser reserves the right to retain indefinitely any amounts due to Media Company under this Agreement if it has reasonable cause to believe that such traffic has been caused by or as a result of an act or omission of Media Company.
7.11 Media Company shall submit or otherwise make accessible to Advertiser final technical specifications a reasonable period of time in advance of Advertiser purchasing advertising inventory on Media Company Properties. Where Media Company changes such specifications of already-purchased advertising inventory, Advertiser shall be entitled to suspend delivery of the affected Promotional Content for a reasonable period of time in order to: (i) send revised Promotional Content; (ii) request that Media Company resize the Promotional Content at Media Company’s cost, and with final creative approval of Advertiser, within a reasonable period of time to fulfil any guaranteed levels of the Services as specified in the applicable IO; (iii) accept a comparable replacement; or (iv) immediately cancel the remainder of the affected placement without penalty.
7.12 Media Company shall notify Advertiser a reasonable period of time in advance of any material changes to Media Company Properties that would, in Advertiser’s reasonable opinion, materially change the target audience or materially affect the size or placement of the Promotional Content specified on the applicable IO. In such circumstances, and even where Media Company has failed to provide such notification, Advertiser may cancel the remainder of the affected placement without penalty immediately on written notice and shall not be liable for any Fees for any affected Promotional Content delivered thereafter.
7.13 If Media Company wishes to advertise the Brand Websites via a Media Supply Partner (including a publisher network), it must receive Advertiser’s consent in writing first and grant Advertiser access to an advertiser account on the platform of its publisher network, through which all marketing of the Brand Websites must be accessible to Advertiser.
7.14 If Media Company wishes to contract with a Media Supply Partner, it shall not to do so until it has obtained Advertiser’s written consent to Media Company sub-contracting to the proposed sub-affiliate. Advertiser shall have the right to stipulate specific terms regarding the agreement between Media Company and the proposed sub-affiliate. Media Company shall provide Advertiser with a copy of the proposed agreement between Media Company and the proposed sub-affiliate for its review and revision. At the request of Advertiser, Media Company shall cause a Media Supply Partner in its publisher network to enter into a direct agreement with Advertiser on the same or equivalent terms as this Agreement. For the avoidance of doubt, Advertiser shall not be liable for any payment to any Media Supply Partner nor shall Advertiser pay any fees to Media Company in respect of any Media Supply Partner.
7.15 Media Company shall not provide the information of another person with the intention of impersonating that person or deceiving Advertiser as to its true identity.
7.16 Without prejudice to clause 7.15, Media Company shall meet and maintain all Player registration requirements relating to the Brand Website.
7.17 This Agreement is for commercial use only, and neither Media Company nor its employees, or their family members, friends or associates may make purchases, directly or indirectly, through the Links for their own personal use or to fraudulently increase the Fees or for other fraudulent purposes, for example by registering as Players of Media Company.
8 WARRANTIES
8.1 Each party represents and warrants to the other that it has and will retain throughout the Term all right, title and authority to enter into this Agreement, to grant to the other party the rights and licences granted in this Agreement and to perform all of its obligations under this Agreement.
8.2 Media Company warrants, represents and undertakes (as applicable) in respect of Media Company Properties and the Services (and shall procure that each Media Supply Partner warrants, represents and undertakes (as applicable) in respect of the relevant Media Supply Partner Properties) on a continuing basis that:
8.2.1 Media Company Properties, any content thereon, and any domain name or sub-domain associated with Media Company Properties:
8.2.1.1 are not aimed at children;
8.2.1.2 do not contain any Prohibited Material or (other than as permitted by this Agreement) any Brand Mark or Prohibited Term;
8.2.1.3 do not infringe the rights (including the Intellectual Property Rights) of any third party; and
8.2.1.4 are solely owned and/or controlled by Media Company;
8.2.2 it will only make available the Promotional Content in the Territory and target the Promotional Content at internet protocol addresses in the Territory only;
8.2.3 it will not deliver or otherwise make available the Promotional Content adjacent to any Prohibited Material or any other content notified by Advertiser to Media Company from time to time on any Website (together, the “Editorial Adjacency Guidelines”). In the event that any Promotional Content appears on any Media Company Properties in violation of the Editorial Adjacency Guidelines, Media Company warrants, represents and undertakes that it will correct such violation within 24 hours as elected by Advertiser by either: (a) removing the Promotional Content; and/or (b) providing a makegood in accordance with clause 5.6. Where such correction materially or adversely impacts the applicable IO, the parties shall negotiate in good faith mutually agreed changes to that IO to address such impacts.
8.2.4 it will comply at all times with any and all applicable Brand Guidelines;
8.2.5 it will comply at all times with any and all applicable Promotional Content Policies;
8.2.6 it has obtained and will maintain all necessary registrations, authorisations, consents and licences to enable it to fulfil its obligations under this Agreement;
8.2.7 it will not make any application to register any trade or service mark, business name, company name, domain name or sub-domain which consists of, includes or is confusingly similar to any Brand Mark, Prohibited Term or Intellectual Property Right of Advertiser or a Brand Website or Gamesys Group Partners Website;
8.2.8 it will perform its obligations under this Agreement in accordance with Good Industry Practice;
8.2.9 it will not make, and shall procure that none of its employees make, any defamatory or derogatory statements about, or take part in any activities which are or might reasonably be perceived to be derogatory of or detrimental to the reputation of the Brand Websites, Advertiser, or any Associated Parties; or
8.2.10 it has complied prior to the date of this Agreement, and will comply, with all Applicable Laws, including Data Protection Laws and its obligations set out in clauses 7, 15 and Schedule 1;
8.2.11 Media Company Properties include privacy and cookie notices that shall comply with all Applicable Laws, and that it shall adhere to these.
8.2.12 it has not violated and will not violate any Applicable Laws, including but not limited to all laws relating to gaming in the Territory;
8.2.13 it will not intercept or complete any registration form submitted by Players or potential Players to Advertiser (and/or any other communications between any such persons and Advertiser);
8.2.14 it will not intercept, redirect or otherwise interfere with traffic from any other Advertiser affiliate Website;
8.2.15 all information it submits to Advertiser on the application form and in all other communications between the parties is complete and accurate;
8.2.16 it shall enter into agreements with its Group Companies, Media Supply Partners, any third party service providers and any third party sub-contractors to which it sub-contracts the performance of any part of its obligations under this Agreement to procure that each such Media Supply Partner and sub-contractor shall comply with the terms of this Agreement;
8.2.17 it shall optimise each advertising campaign towards best performing formats;
8.2.18 it shall ensure that the value of each line item of an advertising campaign is delivered evenly across the duration of each advertising campaign;
8.2.19 it shall ensure that only one (1) of Advertiser’s Promotional Content is served to a page at any one time;
8.2.20 it shall display all Promotional Content on above the fold inventory;
8.2.21 it shall run (a) desktop line items of an advertising campaign on desktop inventory only; and (b) tablet/mobile line items of an advertising campaign on tablet/mobile inventory only;
8.2.22 it shall comply with the maximum daily budget caps for each line item as stated in the applicable IO and as amended by Advertiser from time to time as notified to Media Company in writing; and
8.2.23 it shall introduce and comply with frequency caps for the advertising campaign if requested to do so by Advertiser.
8.3 Gamesys Group Partners Website, Brand Marks, Links, Promotional Content and the Brand Websites are provided on an “as is” and “as available” basis, without warranties of any kind, either express or implied, including implied warranties of the ability and fitness for a particular purpose of Gamesys Group Partners Website and the Brand Websites, unless such warranties are legally incapable of exclusion.
9 INDEMNITY
9.1 Without prejudice to Advertiser´s other rights or remedies under this Agreement, Media Company and each Media Supply Partner, shall fully indemnify and hold harmless Advertiser, Agency and the Associated Parties from and against all losses, demands, fines or penalties (including any fine or penalty imposed by a Gaming Authority), damages, costs, expenses (including reasonable legal costs and expenses and VAT thereon), liabilities and claims (including any claims from Players) suffered or incurred, directly or indirectly, by or awarded against Advertiser or any Associated Parties in consequence of or in connection with:
9.1.1 a breach by Media Company of clause 5 (Services) or clause 7 (Media Company Obligations);
9.1.2 a breach by Media Company of any of the warranties set out in clause 8 (Warranties);
9.1.3 a breach by Media Company of clause 11 (Intellectual Property);
9.1.4 a breach by Media Company of clause 15 (Data Protection) or Schedule 2 (Data Processing Terms);
9.1.5 a breach by Media Company of any other provision of this Agreement;
9.1.6 any violation of an Applicable Law by Media Company or any claim or allegation that Media Company violated an Applicable Law;
9.1.7 any infringement of the rights (including the rights in Intellectual Property) of a third party or any claim or alleged claim brought on the basis that the use of the Intellectual Property in Media Company Properties or the provision of the Services infringes the rights of a third party;
9.1.8 any claim against Advertiser due to Media Company having any of its consents, permissions, licences or registrations (including any applicable gaming licences and registrations) suspended, revoked, cancelled, not renewed and/or terminated;
9.1.9 any claim against Advertiser arising out of the gross negligence or wilful misconduct of Media Company; and
9.1.10 any review, suspension or loss of any licences, authorisations or permissions of Advertiser, Agency or an Associated Party arising from Media Company’s breach of this Agreement.
9.2 The indemnification obligations set out in this clause will survive the termination of this Agreement for any reason.
9.3 Media Company shall not use the name of Advertiser or Associated Party in any action or claim without the prior written consent of Advertiser or Associated Party as applicable.
10 LIMITATION OF LIABILITY
10.1 Neither Advertiser nor any Associated Parties shall be liable to Media Company or to any third party in contract, tort (including negligence) or howsoever arising for any:
10.1.1 loss arising from or in connection with loss of revenues, profits, contracts or business or failure to realise anticipated savings; or
10.1.2 loss of goodwill or reputation; or
10.1.3 indirect or consequential losses,
suffered or incurred by Media Company and arising out of or in connection with this Agreement, even if such loss was reasonably foreseeable or Advertiser had been advised of the possibility of Media Company incurring it.
10.2 Nothing in this Agreement shall exclude or limit either party´s liability for:
10.2.1 fraud or fraudulent misrepresentation;
10.2.2 death or personal injury resulting from its negligence or the negligence of its employees or agents; or
10.2.3 any other matter which cannot be excluded or limited by Applicable Laws.
10.3 The total aggregate liability of Advertiser to Media Company for loss or damage under or in connection with this Agreement and in connection with any event or connected series of events shall not exceed the greater of (i) total Fees paid to Media Company by Advertiser in the six (6) months preceding the date on which the liability occurred and (ii) CA$1,000 (or, where applicable, the equivalent in another currency).
11 INTELLECTUAL PROPERTY
11.1 If and to the extent that any Links and/or Promotional Content are created by or on behalf of Media Company, Media Company hereby irrevocably and unconditionally assigns to Advertiser with full title guarantee all right, title and interest (including Intellectual Property Rights) worldwide in perpetuity in and to the Links and Promotional Content without restriction. Media Company waives and/or has and will obtain from the creators of such materials their waivers of all moral rights in such Links and/or Promotional Content (and all similar or equivalent rights in any jurisdiction), and hereby grants to Advertiser all the consents required by Advertiser to exploit such Links and Promotional Content, without limitation so far as possible in perpetuity for any purpose. Media Company shall only use such Links and Promotional Content for the purpose of fulfilling its obligations hereunder.
11.2 Media Company acknowledges and agrees that, other than in accordance with the licences granted to it pursuant to this clause:
11.2.1 it neither has nor obtains any right, title or interest in or to any Intellectual Property Rights of Advertiser or its licensors (including any such right, title or interest as may exist in the Prohibited Terms, the Links, the Promotional Content and any Player Data); and
11.2.2 all right, title and interest (including goodwill) arising from Media Company´s use of any Intellectual Property Rights belonging to Advertiser or its licensors will vest in and/or accrue to Advertiser or its licensors (as applicable). Advertiser or its licensors may, at any time, call for a confirmatory assignment of any such right, title, interest and/or goodwill.
11.3 Advertiser and/or its licensors shall, in their absolute discretion, decide what action to take (if any) in respect of any infringement of any Intellectual Property Rights that may from time to time be vested in Advertiser and/or its licensors. Advertiser and/or its licensors shall have exclusive control over, and conduct of, all claims and proceedings arising out of or in connection with any Intellectual Property Rights, and shall be entitled to retain indefinitely all sums recovered in any action for their own account. Media Company shall not make any admissions other than to Advertiser and/or its licensors and shall provide Advertiser and/or its licensors with all assistance that they may reasonably require in the conduct of any claims or proceedings.
11.4 The provisions of any Applicable Law that either restrict the rights of a licensee to bring proceedings for the infringement of registered Intellectual Property Rights without the consent of the proprietor, or require the proprietor to be joined to such proceedings are expressly excluded from this Agreement to the maximum extent permitted by Applicable Law.
11.5 Advertiser and its licensors may at any time in their sole discretion, with or without notice to Media Company, and with no further liability to Media Company:
11.5.1 modify any of the Brand Marks or Brand Websites; and/or
11.5.2 discontinue, withdraw, terminate, cease or modify using any of the Brand Marks with or without notice or further liability to Media Company. In such event this Agreement shall automatically terminate in relation to the relevant Brand Mark(s).
11.6 Media Company agrees to promptly do and/or procure the doing of all things and to sign and execute and/or procure the signing and execution of all such documents and deeds as may be required in order to perfect and protect or enforce any Intellectual Property Rights of Advertiser and/or the and/or their licensors, and to ensure that all right, title and interest (including Intellectual Property Rights) that may in this Agreement be expressed to vest in Advertiser and/or any of Advertiser Group Companies and/or their licensors shall so vest.
11.7 Media Company shall not:
11.7.1 market Media Company Properties in any way that might compete with Advertiser and/or its licensors´ own marketing efforts unless Media Company has received prior written approval from Advertiser in such regard. Without limiting the generality of the foregoing: Media Company shall not drive pay-per-click traffic to Gamesys Group Partners Website, any Brand Website, Media Company Properties or any other Website, including via any search engine, directory or online database, by bidding on search terms, key words or other identifiers that relate to or consist of, include or are confusingly similar to (i) any of the Brand Marks or any variables of the same; and/or (ii) any of the Prohibited Terms or any variables of the same;
11.7.2 use the Brand Marks for any purpose not authorised hereunder, and shall not make any alteration to or modification of any of the Brand Marks without the prior written consent of Advertiser and/or its licensors (as applicable);
11.7.3 do, cause or authorise, or omit to be done, anything which in Advertiser´ reasonable opinion will or may in any way impair, damage or be detrimental or adversely affect the reputation or goodwill associated with Advertiser (or its licensors) or any Advertiser Group Companies, or any Intellectual Property Rights vested in Advertiser (or its licensors) or any Advertiser Group Companies (or any of their respective licensors). Media Company shall not use any Intellectual Property Rights of Advertiser (or its licensors) or any of Advertiser Group Companies (or any of their respective licensors) in any manner likely to cause harm to the distinctive character or validity of such Intellectual Property Rights;
11.7.4 use misleading Links or Promotional Content or cause any Links to open in an end user´s browser other than as a result of a Valid Click;
11.7.5 apply for, or obtain, registration of any of the Brand Marks or Prohibited Terms for any goods and services anywhere in the world;
11.7.6 apply for, or obtain, registration of any trade mark or service mark anywhere in the world which consists of, includes, or is confusingly similar to any of the Brand Marks or Prohibited Terms;
11.7.7 apply for, or obtain, registration of any domain name or sub-domain anywhere in the world which consists of, includes, or is confusingly similar to any of the Brand Marks or Prohibited Terms; or
11.7.8 copy, and shall otherwise ensure that Media Company Properties does not have the look and feel of or is confusingly similar to, the whole or any part of any of the Brand Websites or the Games.
11.7.9 place Links, Brand Marks or Promotional Content in unauthorised newsgroups, unsolicited email, unauthorised chat rooms or via the use of unauthorised ‘bots’.
11.7.10 not create, publish, distribute, or permit any written material that makes reference to any names, words or phrases without the prior consent of Advertiser that consist of, include or are confusingly similar to (i) any of the Brand Marks or any variables of the same; and/or (ii) any of the Prohibited Terms or any variables of the same;
11.7.11 offer any incentives to Players in addition to what is offered by Advertiser or via a Brand Website. This includes, but is not limited to, rake back, insurance, cash back or anything where Players are compensated outside the normal incentives offered by Advertiser or via a Brand Website without Advertiser’s prior written consent;
11.7.12 establish any social media domain, network domain, blog domain, profile name or display name containing any names, words or phrases that consist of, include or are confusingly similar to (i) any of the Brand Marks or any variables of the same; and/or (ii) any of the Prohibited Terms or any variables of the same;
11.7.13 optimise any page of Media Company Properties for keyword or keyword phrases that include any names, words or phrases in any format (including meta tags, headers or body content) that consist of, include or are confusingly similar to (i) any of the Brand Marks or any variables of the same; and/or (ii) any of the Prohibited Terms or any variables of the same in any format;
11.7.14 purchase or build off-site text links with anchor text for keyword phrases that include any names, words or phrases that consist of, include or are confusingly similar to (i) any of the Brand Marks or any variables of the same; and/or (ii) any of the Prohibited Terms or any variables of the same; and
11.7.15 redirect from any page of Media Company Properties or its advertising network’s websites to the Brand Website.
11.8 Media Company shall, immediately upon Advertiser´s request and in accordance with Advertiser´s instructions, assign and/or transfer to Advertiser (and/or its licensors), or delete (in Advertiser´s and/or its licensors´ sole discretion), any trade mark, service mark, domain name and or sub-domain registration or application obtained and/or registered and/or applied for in breach of clause 11.7. This obligation shall apply irrespective of whether such trade mark, service mark, domain name and/or sub-domain registration or application was made before, on or after the Commencement Date. Until such time as the trade mark, service mark, domain name and/or sub-domain registration or application has been assigned or transferred to Advertiser in accordance with this clause:
11.8.1 Advertiser may, in its sole discretion, withhold and retain indefinitely any Fees payments that may be due to Media Company; and
11.8.2 Media Company shall not allow the trade mark, service mark, domain name and/or sub-domain registration or application to lapse.
11.9 Except as expressly set out in this Agreement, Media Company shall not use in its business (including as, or as part of, its corporate or trading name or logo), or on or in relation to Media Company Properties, any trade mark or service mark which consists of, includes or is confusingly similar to any of the Brand Marks or Prohibited Terms.
12 CONFIDENTIAL INFORMATION
12.1 Subject to clause 12.2, each party undertakes that it will not at any time hereafter use, divulge or communicate to any person (except to its professional representatives or advisers and any employees, agents or sub-contractors who need to know such information for the performance of this Agreement and provided that such party shall inform each of them of, and procure their compliance with the terms of this clause), the terms of this Agreement or any Confidential Information concerning the other party or any Group Company of such other party which may have or may in the future come to its knowledge. Neither party shall use any such Confidential Information except for the performance of this Agreement.
12.2 The obligation of confidentiality contained in clause 12.1 shall not apply or (as the case may be) shall cease to apply to Confidential Information which:
12.2.1 at the time of its disclosure by the disclosing party is already in the public domain, or which subsequently enters the public domain, other than by breach of this Agreement by the receiving party;
12.2.2 is already known to the receiving party (as evidenced by written records) at the time of its disclosure by the disclosing party and was not otherwise acquired by the receiving party from the disclosing party under any obligations of confidence;
12.2.3 is at any time after the Commencement Date acquired by the receiving party from a third party having the right to disclose the same to the receiving party without breach of obligation owed by that third party to the disclosing party;
12.2.4 is required to be disclosed by Applicable Laws or order of a court of competent jurisdiction or government department or agency, provided that prior to such disclosure the receiving party shall, wherever possible and permitted by Applicable Laws, advise the disclosing party of the proposed form of the disclosure;
12.2.5 is independently developed by the receiving party without reference to the Confidential Information of the disclosing party; or
12.2.6 the disclosing party informs the receiving party in writing is not Confidential Information.
12.3 Advertiser shall be entitled to disclose Confidential Information relating to Media Company (which may include contact details and other Personal Data) to its licensors, third party complainants (or their professional advisers) or regulatory authorities if Advertiser believes (in its sole discretion), or a third party alleges, that Media Company: (i) has infringed the rights of Advertiser, its licensors or any third party or has otherwise incorporated any Prohibited Material into Media Company Properties; (ii) has registered any domain name or sub-domain in bad faith; (iii) is in breach of any Applicable Laws or regulatory requirement; or (iv) has sent or caused to be sent any form of spam.
12.4 Neither party shall make any public announcements with respect to any aspect of this Agreement or its relationship with the other party without the prior written approval of the other party for each announcement except as required by Applicable Laws.
13 TERM AND TERMINATION
13.1 The term of this Agreement shall commence on the Commencement Date and remain in effect until terminated in accordance with its terms (the “Term”).
13.2 Unless otherwise set out therein, this Agreement shall terminate automatically without the need for notice by either party upon the earlier of: (i) the expiry of the duration of the advertising campaign dates and/or any accounting periods specified in the IO (whichever is earlier); or (ii) the display of the last impression of Promotional Content by Media Company under the IO.
13.3 Media Company may terminate this Agreement with respect to any Brand Website for any reason upon 10 days´ prior written notice to Advertiser.
13.4 Advertiser may suspend indefinitely or terminate this Agreement, including with respect to any Brand Website, for any reason immediately on written notice to Media Company at any time.
13.5 In the event that Advertiser is ever unable to contact Media Company as a result of its failure to comply with clause 6.1.2, Advertiser shall have the right to suspend indefinitely or terminate this Agreement without the need for notice to Media Company, in which circumstances, Advertiser shall have the right to withhold indefinitely and retain indefinitely any amounts due to such Media Company for each relevant calendar month with effect from the date of the suspension or termination of the Agreement.
13.6 It is acknowledged, without prejudice to the generality of clause 13.4, that Advertiser shall have the right (but not the obligation) to suspend indefinitely or terminate this Agreement or any part of it immediately on written notice to Media Company at any time if Media Company is in breach of any term of this Agreement, including but not limited to:
13.6.1 Media Company, in the reasonable opinion of Advertiser, is not actively promoting the Brand Websites, including by not referring a reasonable number of Players to the Brand Websites, for a period of one (1) month;
13.6.2 a promotion published or operated by Media Company is in the opinion of Advertiser: (a) harmful, inappropriate or aimed at undesirable countries; or (b) in any way in breach of this Agreement; or
13.6.3 Media Company sends or causes to be sent (or is alleged to have sent) any form of spam;
13.6.4 Media Company sends or causes to be sent (or is alleged to have sent) any marketing without explicit consents from an end user or that is in breach of Data Protection Laws;
13.6.5 Media Company commits any actual or alleged breach of any Applicable Law, including any relevant advertising law, regulation or code of practice;
13.6.6 Media Company or Media Company Properties infringe or purportedly infringe the Intellectual Property Rights of Advertiser or any third party;
13.6.7 Media Company fails, or in Advertiser´s reasonable opinion fails, to comply with any of their obligations under this Agreement; or
13.6.8 Media Company fails to comply with clauses 6.1.1 and 6.1.2 for a period of at least three (3) months, as a result of which Advertiser is unable to pay the Fees to Media Company and/or unable to contact Media Company;
13.6.9 Media Company does not log into their Media Company Account or, having logged into such account, elects not to accept any amendments made to this Agreement pursuant to clause 16.1 within one (1) week of the last date that this Agreement was updated. In such circumstances, Advertiser shall have the right to withhold indefinitely and retain indefinitely any amounts due to such Media Company for each relevant calendar month with effect from the date of the suspension or termination of the Agreement, even if Media Company subsequently provides Advertiser with up to date bank details and/or contact details;
13.6.10 Media Company is in material breach of any term of this Agreement;
13.6.11 Media Company does anything that endangers any gaming licenses held by Advertiser or any Associated Party; or
13.6.12 Media Company does anything that brings the reputation of Advertiser, any Associated Party, or any Brands into disrepute;
13.6.13 Media Company is determined by Advertiser in its sole discretion to be a competitor of Media Company, Media Supply Partner or a Group Company of the foregoing; or
13.6.14 either party intends to undergo, undergoes or has undergone a Change of Control.
13.7 If Advertiser serves notice to terminate this Agreement in accordance with its terms, Advertiser shall be entitled to terminate (in such notice or in a separate notice) any or all other affiliate agreements that it has with Media Company at the time of termination of this Agreement.
13.8 Either party may terminate this Agreement with immediate effect by written notice to the other party if the other party becomes Bankrupt.
13.9 Upon termination of this Agreement or any part of it:
13.9.1 Media Company shall no longer be entitled to access Gamesys Group Partners Website or the relevant part of it;
13.9.2 Media Company must remove from Media Company Properties and cease to use and/or distribute (in any way) all relevant Brand Marks and Promotional Content, and disable all relevant Links;
13.9.3 Media Company must procure from any Media Supply Partners the removal from the Media Supply Partner Properties and the cessation of any use and/or distribution (in any way) of all relevant Brand Marks and Promotional Content, and disable all relevant Links;
13.9.4 all relevant rights and licenses given to Media Company in this Agreement shall immediately terminate; and
13.9.5 within five (5) days of termination of this Agreement in its entirety, Media Company must immediately return to Advertiser or (in Advertiser´ sole discretion) destroy or permanently delete all the property in Media Company´s possession or under its control that either (i) belongs to Advertiser, Advertiser Group Companies and/or any of their licensors; and/or (ii) contains any Confidential Information of Advertiser.
13.10 If Advertiser suspends or terminates this Agreement or any part of it, Advertiser retains the right to withhold indefinitely and retain indefinitely any Fees otherwise payable to Media Company in respect of the month in which such suspension or termination occurs and which relates to that portion of this Agreement as may have been suspended or terminated.
13.11 If this Agreement is terminated pursuant to clauses 13.6.5, 13.6.10, 13.6.11 or 13.6.12, Media Company shall not be entitled to unpaid Fees, if any, earned up to and including the date of termination.
13.12 After termination, Media Company will not be entitled to Fees with respect to Players registered before, on or after the date of termination of this Agreement.
13.13 If Advertiser continues to permit Players who have clicked on Links to register with the relevant Brand Website after termination, this will not constitute a continuation or renewal of this Agreement or a waiver of termination, and no Fees shall be payable to Media Company in respect of such Players.
13.14 The following clauses of this Agreement shall survive termination of this Agreement: 5.2, 7, 8, 9, 10, 11.1, 11.2, 11.3, 11.7.3, 12, 13.8, 13.9, 13.10, 13.11, 13.12, 13.13, 14, 15, 16, 17, 18, and Schedule 1, and any other clauses, the survival of which is necessary for the interpretation or enforcement of this Agreement.
14 REGULATORY OBLIGATIONS
14.1 Media Company shall provide such information to Advertiser as Advertiser may reasonably require in order to satisfy any information reporting, disclosure and other related obligations to any Gaming Authority of Advertiser or an Associated Party from time to time. Media Company shall cooperate with requests, inquiries, investigations and the like of any Gaming Authority in connection with the performance of this Agreement, including the disclosure of information to any Gaming Authority that would otherwise be considered confidential pursuant to clause 12 of this Agreement.
14.2 Insofar as Media Company carries out activities pursuant to this Agreement and such activities are subject to any Gaming Approval issued to Advertiser or an Associated Party from time to time, Media Company shall conduct itself as if it was bound by the relevant conditions and the relevant codes of practice to which Advertiser is subject pursuant to such Gaming Approval.
14.3 It is acknowledged that Advertiser and its Associated Parties conduct business in a highly regulated industry under Gaming Approvals issued by Gaming Authorities. In order to ensure compliance with the requirements of Gaming Authorities and to ensure that Advertiser and its Associated Parties are able to maintain such Gaming Approvals, Advertiser may evaluate the suitability of entities with which it does business from time to time. If Advertiser or an Associated Party, acting in good faith and in accordance with industry practice, determines Media Company to be Unsuitable, Advertiser may suspend indefinitely or terminate this Agreement immediately by giving written notice to Media Company and withhold indefinitely and retain indefinitely any monies then due to Media Company.
14.4 No payments or undue financial or other advantage of any kind shall be made by Media Company or its personnel, directly or indirectly, to any entity, government, corporation or other person for the purpose of improperly influencing the consideration of applications for a business activity or the receipt of any other benefits, including the obtaining or retaining of business.
14.5 Media Company shall:
14.5.1 comply with all Applicable Laws relating to anti-bribery and/or anti-corruption (including, if applicable, the UK´s Bribery Act 2010);
14.5.2 not engage in any activity, practice or conduct which constitutes an offence under any applicable anti-bribery and/or anti-corruption legislation (including acts which would constitute an offence under sections 1, 2 or 6 of the UK´s Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK); and
14.5.3 notify Advertiser immediately if it becomes aware that, or has reason to believe that, it has breached its obligations under this clause.
14.6 Media Company shall implement effective systems and controls to prevent slavery and human trafficking from affecting any part of its business and supply chain. Media Company shall, on demand, provide Advertiser with a summary of the steps it takes from time to time to prevent modern slavery and human trafficking (including details of any relevant staff and supplier policies and details of due diligence conducted on suppliers).
15 DATA PROTECTION
15.1 As used in this clause 15 only, the following terms shall have the following definitions:
15.1.1 “Advertiser” means an Advertiser who is not an Agency;
15.1.2 “Aggregated” means a form in which data gathered under an IO is combined with data from numerous campaigns of numerous advertisers and advertising agencies and precludes identification, directly or indirectly, of an Advertiser;
15.1.3 “Collected Data” means the IO Details, Performance Data, and Site Data;
15.1.4 “IO Details” means the details set out in the IO but only when expressly associated with the applicable discloser, including pricing information, description of Promotional Content and placement information of Promotional Content;
15.1.5 “Performance Data” means data regarding an advertising campaign gathered during the delivery of Promotional Content pursuant to the IO, including number of Promotional Content impressions and user interactions, but excluding Site Data or IO Details;
15.1.6 “Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than the performance of the IO;
15.1.7 “Site Data” means any data that is (i) pre-existing Media Company data used by Media Company pursuant to the IO; (ii) gathered pursuant to the IO during the delivery of Promotional Content that identifies or allows identification of Media Company, Media Supply Partner, Media Company Properties, brand, content, context, partners, affiliates or users as such; or (iii) entered by users on any Media Company Property other than User Volunteered Data; and
15.1.8 “User Volunteered Data” means personally identifiable information collected from individual users by Media Company and/or Media Supply Partner during the delivery of Promotional Content pursuant to the IO, but only where it is expressly disclosed to such individual users that such collection is solely on behalf of Advertiser.
15.2 Subject to clause 15.4, each of Advertiser and Media Company shall be a Controller of the Personal Data that that person may Process from time to time, and will Process that Personal Data as a separate and independent Controller for the purposes of this Agreement. Each of the aforementioned parties Processes (or may Process) the Personal Data as Controllers in common and not jointly as joint Controllers.
15.3 Subject to clause 15.4, each of Advertiser and Media Company shall be individually and separately responsible for complying with the obligations that apply to it as a Controller under Data Protection Laws, in particular but without limitation:
15.3.1 ensuring that there is a lawful basis on which to rely to Process such Personal Data; and
15.3.2 ensuring that it keeps Personal Data secure at all times, including by implementing and maintaining at its cost and expense, appropriate technical and organisational measures in relation to such Processing so as to ensure a level of security appropriate to the risks that are presented by the Processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
15.4 Advertiser may choose to make available Advertiser Personal Data to Media Company from time to time. In respect of this Advertiser Personal Data only, Advertiser and Media Company shall be bound by the terms in Schedule 1.
15.5 Unless otherwise authorized by Advertiser, Media Company will not:
15.5.1 use or disclose IO Details of Advertiser, Performance Data, or a user’s recorded view or click of Promotional Content, each of the foregoing on a non-Aggregated basis, for Repurposing or any purpose other than performing under the Agreement, compensating data providers in a way that precludes identification of the Advertiser, or internal reporting or internal analysis;
15.5.2 use or disclose any User Volunteered Data in any manner other than in performing under the Agreement.
15.6 All User Volunteered Data shall be the property of Advertiser, is subject to Advertiser’s posted privacy policy, and is considered Confidential Information of Advertiser. Any other use of such information will be set out in the IO and signed by both parties.
15.7 Unless otherwise set out in the IO, Media Company shall require any Group Company, Media Supply Partner or any third party used by Media Company for the purposes of the performance of this Agreement on behalf of Media Company to be bound by confidentiality and non-use obligations at least as restrictive as those on Media Company under this clause 15.
16 MISCELLANEOUS
16.1 Advertiser may change this Agreement and add to, suspend, discontinue, withdraw, terminate or cease any aspect of this Agreement (but not, for the avoidance of doubt, any terms of any IO) at any time, including by removing or adding any or all Brand Websites with or without notice or further liability to Media Company. Advertiser shall notify Media Company and/or publish the updated Terms with the date on which any changes to the Terms shall take effect. Advertiser recommends that Media Company checks this Agreement online for changes regularly. Media Company´s continued provision of the Services following any such change in this Agreement will constitute binding acceptance of such changes. If Media Company does not agree to any such changes, either party may terminate this Agreement pursuant to clauses 13.3 or 13.4 as appropriate. In the event any or all Brand Websites are removed or in the event that Gamesys Group Partners Website is ceased by Advertiser, this Agreement shall automatically terminate in relation to the relevant Brand Website(s) and/or Gamesys Group Partners Website.
16.2 Subject to clauses 5.2 and 16.1, no provision of this Agreement may be changed, modified, amended, restated, or supplemented by any course of dealing other than by agreement in writing signed by authorized representatives of Advertiser and Media Company.
16.3 Unless agreed otherwise in writing (and without prejudice to Advertiser’s rights to amend this Agreement by notice in accordance with clauses 5.2 and 16.1), no modification or variation of this Agreement shall constitute or be construed as a general waiver of any provisions of this Agreement, nor shall it affect any rights, obligations or liabilities under this Agreement which have already accrued up to the date of such modification or waiver, and the rights and obligations of the parties under this Agreement shall remain in full force and effect, except and only to the extent that they are so modified or varied.
16.4 In no event will any delay, failure or omission (in whole or in part) in enforcing, exercising or pursuing any right, power, privilege, claim or remedy conferred by or arising under this Agreement or by law, be deemed to be or construed as a waiver of that or any other right, power, privilege, claim or remedy in respect of the circumstances in question, or operate so as to bar the enforcement of that, or any other right, power, privilege, claim or remedy, in any other instance at any time or times subsequently.
16.5 If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect. If any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid.
16.6 This Agreement constitutes the entire agreement and understanding of the parties relating to the subject matter of this Agreement and supersedes any previous agreement, arrangement or understanding between the parties (or any of them), whether oral or written, in relation to such subject matter. In entering into this Agreement, the parties have not relied on any statement, representation, warranty, understanding, undertaking, promise or assurance (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement. Each party irrevocably and unconditionally waives all claims, rights and remedies which but for this clause it might otherwise have had in relation to any of the foregoing. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein.
16.7 The terms of this Agreement shall prevail at all times to the exclusion of all other terms and conditions including any terms and conditions which Media Company, Media Supply Partner and/or any third party (including, without limitation, any gambling affiliate advertising platform, advertising exchange platform or intermediary) may purport to apply even if such other terms are submitted in a later document or purport to exclude or override this Agreement, and neither the course of conduct between parties nor trade practice shall act to modify this Agreement.
16.8 Where Media Company is required to be paid via the payment platform of Media Company, the parties hereby agree that any terms and conditions of such platform (the “Seller Terms”) shall not be applicable to Advertiser, this Agreement or any relevant payments due under this Agreement in accordance with clause 16.7. Notwithstanding any purported, alleged or inadvertent acceptance by Advertiser of any Seller Terms following the termination of the Agreement, this Agreement shall supersede any and all such Seller Terms in accordance with clause 16.7.
16.9 Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties, or to authorise any party to act as agent for any other, or create an employee-employer relationship, and no party shall have authority to act in the name or on behalf of or otherwise to bind any other in any way or to hold itself out in its advertising or otherwise in any manner which would indicate or imply any such relationship with the other unless expressly provided otherwise in this Agreement.
16.10 Media Company shall not without the prior written consent of Advertiser assign at law or in equity (including by way of a charge or declaration of trust), sub-license, sub-contract, transfer or deal in any other manner with this Agreement or any rights under this Agreement, or sub-contract any or all of its obligations under it or purport to do any of the same. Any purported action in breach of this clause shall confer no rights on the purported assignee.
16.11 Advertiser shall be entitled to sub-contract any or all of its obligations and/or sub-license or assign any or all of its rights under this Agreement at any time.
16.12 Advertiser shall not be liable for any default or delay in the performance of its obligations if and to the extent such default or delay is caused by any of the following: an act of God, fire, casualty, flood, war, terrorist act, failure of public utilities, widespread labour or civic unrest, assertion or requirement of any governmental authority, epidemic or pandemic, or destruction of production facilities, or other circumstances beyond the reasonable control of the party (each, a “Force Majeure”). To the extent that Media Company is not able to perform its obligations as a result of a Force Majeure, Media Company shall (a) promptly give notice to Advertiser specifying the Force Majeure and giving a good faith estimate of the duration of the Force Majeure Event; (b) use reasonable efforts to overcome the effect of the Force Majeure as soon as possible; and (c) promptly notify Advertiser when the Force Majeure has ceased or been overcome. For the avoidance of doubt, Advertiser shall not be required to make any payment to Media Company for any unperformed services and shall be entitled to terminate this Agreement in accordance with its terms.
16.13 Notwithstanding the covenants for title made in clause 11.1, Media Company shall at the cost and expense of Advertiser execute or cause to be executed all such other documents and do or cause to be done all such further acts and things consistent with the terms of this Agreement as Advertiser may from time to time reasonably require in order to vest in and secure to Advertiser and its successors in title the full benefit of the assets, rights and benefits to be transferred or granted to Advertiser under this Agreement and for the protection and enforcement of the same and otherwise to give full effect to the terms of this Agreement.
16.14 Media Company acknowledges that regulations 9(1), 9(2) and 11(1) of the Electronic Commerce (EC Directive) Regulations shall not apply to this Agreement.
16.15 Any notice relating to a breach of this Agreement, a claim under clause 9 of this Agreement, or termination of this Agreement, shall be in writing. Advertiser´s notice may be validly served if sent by email to the relevant Media Company email address as the relevant Media Company may designate to Advertiser in writing from time to time. Any such email notice shall be deemed to have been served at the time of dispatch of such email, i.e. the time when the email enters Advertiser information system. For the avoidance of doubt, the parties agree that the provisions of this clause shall not apply in relation to the service of any process in any legal action or proceedings arising out of or in connection with this Agreement or the legal relationships established by this Agreement.
16.16 Media Company´s notice or any notice by either party in relation to the service of any process in any legal action or proceedings shall be served by hand, prepaid first class recorded delivery (including special delivery), courier or prepaid first class recorded airmail (a “Posted Notice”) to Advertiser´s address as set out in the applicable IO (or, in relation to the service of any process in any legal action or proceedings), Media Company´s address as stated in the applicable IO) (as applicable). Any notice properly sent or delivered in accordance with the foregoing shall be deemed to have been received:
16.16.1 if delivered personally by hand, on the day and at the time of delivery if delivered between 09.00 and 17.00 on any working day and otherwise at 09.00 on the next working day;
16.16.2 if sent by first class recorded delivery (including special delivery), at 09.00 on the 2nd working day after posting;
16.16.3 if sent by prepaid first class recorded airmail, at 09.00 on the 5th working day after posting; and
16.16.4 if sent by courier, at the time of signature on the courier´s receipt if delivered at or before 17.00 on any working and otherwise at 09.00 on the next working day.
17 GOVERNING LAW AND JURISDICTION
17.1 The validity, construction and performance of this Agreement (and any claim, suit, dispute, action, proceedings or matter arising under or in connection with it or its enforceability or formation) shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein.
17.2 Each party irrevocably submits to the exclusive jurisdiction of the Ontario courts over any claim, suit, dispute, action, proceedings or matter arising under or in connection with this Agreement (including non-contractual disputes or claims) or its enforceability or formation or the legal relationships established by this Agreement and waives any objection to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been brought in an inconvenient forum.
18 DATE OF AGREEMENT
18.1 This Agreement was last updated on 1 December 2020 and supersedes any previous agreement.
SCHEDULE 1
DATA PROCESSING TERMS
In these Data Processing Terms, all terms not otherwise defined herein shall have the meanings given thereto in the main body of this Agreement.
1. PROCESSING
1.1 Data Processor. In respect of the Advertiser Personal Data only, Media Company and its Media Supply Partners are Processors (or Sub-Processors) acting on Advertiser’s behalf. As Processor (or Sub-Processor), Media Company will only act upon Advertiser’s instructions as set out in this Agreement and otherwise as provided in writing by Advertiser to Media Company from time to time. Advertiser Personal Data will be used in accordance with and for the purposes set out in the documented instructions and only as necessary to verify the Fees paid or payable by Advertiser pursuant to clause 5 of the Agreement. If Media Company is ever unsure as to the parameters of the instructions issued by Advertiser it will, as soon as reasonably practicable, revert to Advertiser for the purpose of seeking clarification or further instruction
1.2 Nature, Purpose and Duration of Data Processing. The scope and purpose and duration of Personal Data and Processing (including the type of Personal Data and categories of data subject) covered by this Agreement is set out in Annex A.
1.3 Compliance with Data Protection Laws. Media Company shall:
1.3.1 have in place a data protection officer where required by applicable Data Protection Laws. The contact details are set out in Annex A.
1.3.2 comply with and Process all Advertiser Personal Data in accordance with applicable Data Protection Laws; and
1.3.3 promptly notify Advertiser about any circumstance where it is unable to comply with the Data Protection Laws or any actual or potential changes to the Data Protection Laws, which affect Media Company’s ability to comply with its obligations under this Agreement. Where Media Company is subject to any changes or circumstances under this clause, Advertiser will have the right to suspend the Processing until such time as the Processing is adjusted in such a manner that the non-compliance is remedied. To the extent such adjustment is not possible, Advertiser shall have the right to terminate the relevant part of the Processing by Media Company.
1.4 Co-operation. Media Company shall co-operate and assist Advertiser with any privacy impact assessments and consultations with (or notifications to) relevant regulators that Advertiser considers are relevant pursuant to Data Protection Laws in relation to the Advertiser Personal Data.
1.5 Media Company personnel. Media Company personnel will not process Advertiser Personal Data without authorisation from Advertiser. Media Company shall procure that its personnel are obligated to maintain the security and confidentiality of any Advertiser Personal Data as provided in this Agreement and this obligation continues even after their engagement ends.
1.6 Data subject rights. Media Company shall promptly forward to Advertiser and otherwise co-operate with and assist Advertiser at no charge with any requests from data subjects of any Advertiser Personal Data pursuant to Data Protection Laws (including the ability to correct, delete, block or port Advertiser Personal Data and rights of access and disclosure as set out in clause 2 of this Schedule 1).
1.7 Deletion or return of Advertiser Personal Data. Media Company shall at Advertiser´ option, delete (unless required by Applicable Laws) or return all copies of Advertiser Personal Data and cease Processing such Advertiser Personal Data after the business purposes for which the Advertiser Personal Data was Processed have been fulfilled, or earlier upon Advertiser’s written request.
1.8 Records. Media Company shall maintain a record of all categories of processing activities carried out on behalf of Advertiser which shall be made available to Advertiser upon request.
2. DISCLOSURE
2.1 Media Company will not disclose Advertiser Personal Data outside of Media Company except: (i) as Advertiser directs (including as permitted under this Agreement); or (ii) as required by law.
2.2 In the event that Media Company receives any request for disclosure of (or information in relation to) Advertiser Personal Data by a law enforcement person or agency:
2.2.1 Media Company will, to the extent allowed by law, including the terms of the third party request itself, at no additional charge: (i) attempt to redirect the law enforcement agency to request that data or information directly from Advertiser; (ii) promptly notify Advertiser of receipt of the request; and (iii) use commercially reasonable efforts to comply with Advertiser’s reasonable requests regarding its efforts to oppose the request. If compelled to disclose Advertiser Personal Data to law enforcement, then Media Company will promptly notify Advertiser and provide a copy of the demand, unless legally prohibited from doing so;
2.2.2 if Media Company receives a third party request which is subject to an order not to disclose such request to Advertiser, Media Company will challenge such order in a court of competent jurisdiction and seek court permission to allow Advertiser to intervene in the proceedings. Media Company shall conduct the challenge at its own expense. As part of this effort, Media Company may provide Advertiser’s basic contact information to the requesting agency.
2.3 In the event that Media Company receives any request for disclosure of (or information in relation to) Advertiser Personal Data in a circumstance not covered by clause 2.2 of this Schedule 1: (i) Media Company shall promptly forward such request to Advertiser; and (ii) at no charge, co-operate and assist Advertiser with such request where so directed by Advertiser (including in relation to requests from data subjects pursuant to Data Protection Laws).
3. SECURITY
3.1 Media Company has implemented and will maintain throughout the term of the Agreement appropriate technical and organisational measures, internal controls and information security routines intended to protect Advertiser Personal Data against accidental, unauthorised or unlawful access, disclosure, alteration, loss, or destruction. These shall at all times be of at least the minimum standard required by Data Protection Laws and further be of a standard no less than the standards compliant with good industry practice for the protection of Personal Data to ensure a level of security for the Advertiser Personal Data appropriate to the risk and to assist Advertiser in ensuring compliance with the requirements for the security of processing as set out in Data Protection Laws
3.2 Media Company shall ensure that all Advertiser Personal Data is encrypted at all times while in the possession or under the control of Media Company.
4. NOTIFICATION AND INCIDENTS
4.1 If Media Company becomes aware of or reasonably suspects that any Security Incident has occurred, Media Company will without undue delay (and in any event within twenty-four (24) hours):
4.1.1 notify Advertiser of the Security Incident by email to security@gamesys.co.uk;
4.1.2 investigate (including interviewing service personnel) the Security Incident and provide Advertiser with detailed information about the Security Incident including making available a suitably senior, appropriately qualified individual to discuss any concerns or questions Advertiser may have;
4.1.3 take reasonable steps to mitigate the effects and to minimise any damage resulting from the Security Incident and assist Advertiser in remediating or mitigating any potential damage from a Security Incident to the extent that such remediation or mitigation is within Media Company’s control as well as reasonable steps to prevent a recurrence of such Security Incident, including interviewing and the possible removal of service personnel from the performance of services for Advertiser; and
4.1.4 fully cooperate with Advertiser to develop and execute a response plan to address the Security Incident. Media Company shall at request of Advertiser co-operate in adequately informing the regulatory or individuals involved as so directed by Advertiser.
5. SUB-CONTRACTORS
5.1 Media Company shall not permit sub-contractors to Process Advertiser Personal Data without the prior written approval of Advertiser. Those sub-contractors approved as at the commencement of this Agreement are as set out in Annex A. Any changes to the sub-contractors involved in any Processing pursuant to this Agreement (including any change in the scope or nature of the Advertiser Personal Data involved or any addition or replacement of sub-contractors approved by Advertiser) must be pre-approved in writing by Advertiser
5.2 Any authorisations by Advertiser to use a sub-contractor are on the condition that Media Company remains fully liable to Advertiser for the sub-contractor’s performance of the contract, as well as for any acts or omissions of the sub-contractor in regard of its Processing of Personal Data
5.3 Media Company shall ensure that sub-contractors shall be contractually bound to the same obligations with respect to the Processing of Advertiser Personal Data as to which Media Company is bound by this Agreement relating to security and audit and otherwise. Media Company shall provide copies of documentation to evidence its compliance with this provision to Advertiser on request.
6. TRANSFER OF DATA
6.1 Media Company may only transfer Advertiser Personal Data in the circumstances set out in clauses 2 and 5 of this Schedule 1. Except as set forth above, or as Advertiser may otherwise authorise, Media Company will not transfer to any Advertiser Personal Data.
6.2 Transfers from the EU to countries outside the EEA
6.2.1 Media Company (or any sub-contractor) shall only transfer Advertiser Personal Data from the EEA to a country outside the EEA (or from the UK to a country outside the EEA) where Advertiser has provided its written approval to such transfer. Approved transfers as at the commencement of this Agreement are set out in Annex A
6.2.2 Transfers pursuant to clause 6.2.1 of this Schedule 1 shall only be permissible where: (i) the entity receiving the Advertiser Personal Data is located in a territory which is subject to a current finding by the European Commission (or UK Information Commissioner’s Office as relevant) under applicable Data Protection Laws that it provides adequate protection for Personal Data; (ii) Media Company and the entity receiving the Advertiser Personal Data has entered into the Model Clauses or is subject to an alternative mechanism approved by relevant authorities pursuant to Data Protection Laws (e.g. Binding Corporate Rules) to the extent that such Model Clauses or other mechanism continue to be recognised and accepted by the relevant authorities as a legitimate basis for transfer of Personal Data; or (iii) the necessary statutory approvals required to be obtained by Media Company (or sub-contractor) as a Processor (or Sub-Processor), if any, have all been obtained to enable the transfer of Personal Data
6.2.3 Where Advertiser (as opposed to Media Company or sub-contractor) is the exporting entity, Media Company shall procure that the entity receiving the Advertiser Personal Data pursuant to this clause, enters into Model Clauses with Advertiser (or such other mechanism as Advertiser shall elect) prior to any such transfer taking place. Where Media Company is itself the importing entity receiving the Advertiser Personal Data, it shall itself enter into the Model Clauses with Advertiser (or such other mechanism) under this clause.
6.3 Other transfers out of originating country
6.3.1 To the extent that any Processing of Advertiser Personal Data by Media Company (or sub-contractor) pursuant to this Agreement may involve the transfer of such Advertiser Personal Data out of the country in which it is held and such transfer is not covered by clause 6.2 of this Schedule 1, Media Company (or any sub-contractor) shall only transfer that Advertiser Personal Data where Advertiser has provided its written consent to such transfer.
6.3.2 Transfers pursuant to clause 6.3.1 of this Schedule 1 shall only be permissible where any measures required under Data Protection Laws are in place and remain valid.
7. AUDIT
7.1 Subject to reasonable written advance notice, Media Company shall permit Advertiser and/or a qualified representative (subject to reasonable and appropriate confidentiality undertakings) to conduct during normal working hours periodic security scans and audits of Media Company’s (or its sub-contractors’) systems and processes in relation to Advertiser Personal Data and shall comply with all reasonable requests or directions by Advertiser to verify and/or procure that Media Company is in full compliance with its obligations under this Schedule. Media Company shall promptly resolve, at its own expense, all security issues discovered by Advertiser and reported to Media Company.
7.2 Advertiser shall have the right following any such audit to request additional safeguards, establish back-up security for Advertiser Personal Data and keep back-up Advertiser Personal Data and Advertiser Personal Data files in Media Company’s (or its sub-contractors) possession. The parties shall agree on the additional safeguards to be implemented, if any.
8. WARRANTIES
8.1 Media Company warrants, represents and undertakes (as applicable) that:
8.1.1 the Processing of Advertiser Personal Data described in or contemplated by this Agreement shall not cause Advertiser or require any person to be in breach of the Data Protection Laws;
8.1.2 the Processing of Advertiser Personal Data by Media Company in accordance with the written instructions from time to time of Advertiser shall not cause Advertiser or require any person to be in breach of the Data Protection Laws;
8.1.3 any Advertiser Personal Data it holds shall be made available to Advertiser immediately upon request from Advertiser without hindrance or delay; and
8.1.4 it shall allow Advertiser unrestricted access to the Advertiser Personal Data for any lawful purpose requested by Advertiser.
ANNEX A
| Subject Matter, Nature and Purpose of Processing | Media Company is permitted only to access and view Advertiser Personal Data, and only as, and for as long as, necessary to verify the Fees paid or payable by Advertiser pursuant to clause 5 of the Agreement. | |||
| Duration | See “Term” | |||
| Personal Data | See “Advertiser Personal Data” | |||
| Data Subjects | See “Player” | |||
| Specific Restrictions | N/A | |||
| Processor DPO | N/A | |||
| Permitted Subcontractors and Transfers | ||||
| Name | Services | Location/Transfers | Mechanism | |
| N/A | N/A | N/A | N/A | |
https://vipcasinoca.wpengine.com/media-buying-terms-version-1/
