CONTRACTING PARTY.
LLAMA GAMING LIMITED, A COMPANY REGISTERED IN ENGLAND UNDER COMPANY NUMBER 7643476, WITH ITS REGISTERED OFFICE ADDRESS AT 27 OLD GLOUCESTER STREET, LONDON, WC1N 3AX, UK.
INTRODUCTION.
This Agreement allows a connection to the Llama Gaming (LLAMA) websites to be offered to users of the Affiliate’s website in order to be able to use and benefit from the products and services provided therein by LLAMA pursuant to the LLAMA “Partner Direct (Affiliate) Programme” subject to acceptance of the terms and conditions of this Agreement.
1.0 LLAMA’S RIGHTS AND OBLIGATIONS.
1.1 REGISTRATION OF AFFILIATE’S CUSTOMERS.
Subject to the terms set out herein, LLAMA agrees to register the Affiliate’s Customers to its website and track their transactions. LLAMA reserves the right to refuse Customers (or to close their accounts) if necessary to comply with any requirements LLAMA may periodically establish, and/or in order for LLAMA to comply with such other obligations and requirements as imposed from time to time. For the purposes of this Agreement, “Customer” means the Affiliate’s visitors who join LLAMA’s customer database (by way of registering at one or more of LLAMA’s products / websites) after arriving at the applicable site(s) via one of Affiliate’s click-thru URLs, which will be provided to the Affiliate when it joins up to the Affiliate Programme. By opening an account with LLAMA, Customers will become customers of LLAMA and, accordingly, all LLAMA’s rules, policies, and operating procedures will apply to them.
1.2 TRACKING CUSTOMERS’ PLAY.
LLAMA will track Customers’ bets and play making available to the Affiliate regular reporting via an affiliate reporting system (subject to any over-riding obligations of confidentiality or data protection issues).
1.3 MODIFICATION.
LLAMA reserves the right to modify, vary or amend any of the terms and conditions contained in this Agreement or replace them at any time and at its sole discretion, by posting a change notice or a new agreement on its site, which it will notify to the Affiliate at the e-mail address provided when it joins the Affiliate Programme. Modifications, variations and/or amendments may include, for example, changes in the scope of available Referral Commissions and Affiliate Programme rules. IF ANY MODIFICATION IS UNACCEPTABLE TO THE AFFILIATE, ITS ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT PURSUANT TO THE TERMS OF CLAUSE 5.1. IT’S CONTINUED PARTICIPATION IN THE REFERRAL PROGRAMME FOLLOWING THE POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON LLAMA’S SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE MODIFICATION OR OF THE NEW AGREEMENT.
2.0 AFFILIATE’S RIGHTS AND OBLIGATIONS.
2.1 LINKING TO LLAMA’S WEBSITES.
By agreeing to participate in this Affiliate Programme, the Affiliate is agreeing to create and maintain unique links from its site to the LLAMA websites. The Affiliate may link to LLAMA with any of its banners, e-mails, articles or with a text link. These are the only methods by which the Affiliate may advertise on LLAMA’s behalf. LLAMA reserves the right to describe itself as acting “in association with the Affiliate” or similar expression on all banners or buttons as required. Authorisation for a white label solution can only be given with express permission from LLAMA in the form of separate signed contract.
2.2 SPAMMING.
LLAMA may terminate this Agreement forthwith on notice without recourse to the Affiliate if there is any form of spamming or if the Affiliate advertises LLAMA’s services in any way that may have a detrimental effect on the image, reputation or integrity of LLAMA. The Affiliate shall not make any claims or representations, or give any warranties, in connection with LLAMA and the Affiliate shall have no authority to, and shall not, bind LLAMA to any obligations. The Affiliate confirms that any mailing list in his/her possession has been compiled in accordance with all applicable rules, legislation and regulations and has all the necessary authority to make such communications.
2.3 CHAT ROOMS / FORUMS.
The Affiliate shall not post messages regarding LLAMA and any of its URL’s to any newsgroups, chat rooms and/or bulletin boards.
2.4 REGISTERING OF DOMAIN NAMES.
The Affiliate shall not register (or apply to register) any domain name similar to any domain name used by or registered in the name of any member of LLAMA’s group, or any other name that could be understood to designate LLAMA or any member of LLAMA’s group. This would include misspellings of any LLAMA brand or domain.
2.5 BIDDING ON BRAND TERMS.
The Affiliate may not purchase or register keywords, search terms or other identifiers for use in any search engine, portal, sponsored advertising service or other search or referral service without the direct authorisation from LLAMA and strict adherence to LLAMA’s Pay Per Click (PPC) and Search Engine Optimisation (SEO) policy, likewise the affiliate may not use trade marks, URL’s or variations thereof for use in HTML coding (including but not limited to ‘meta tags’, ‘meta descriptions’, ‘meta content’, ‘page titles’, ‘titles’).
2.6 GAMING REGULATION.
The Affiliate must not develop and/or implement marketing and/or public relations strategies which infringe any applicable laws regulations or codes of practice relating to marketing including in particular (but without limitation) any laws, regulations or codes of practice applying from time to time under relevant gaming regulation or under the authority of any regulatory body having jurisdiction over the marketing of gambling services.
2.7 RAKEBACK.
The Affiliate must not offer any so-called “rake-back” schemes or similar which offers or allows a proportion of the player’s poker rake to be returned to the player in any form.
2.8 AFFILIATE SITE.
The Affiliate must not use any means to promote sites which resemble in any way the look and/or feel of the LLAMA Site/s whether in whole or in part, nor utilise any such means or site to create the impression that such sites are the Site (or any part of the Site).
2.9 SEARCH ENGINE POLICIES.
The Affiliate must not violate the terms of use and any applicable policies of any search engines.
2.10 AGENCY APPOINTMENT.
By this Agreement, LLAMA grants the Affiliate the non-exclusive, limited, revocable, non-assignable right to direct Customers to any of LLAMA’s sites in accordance with the terms and conditions of this Agreement and to provide a hypertext reference link to the initial, top level display of the Affiliate’s website, for the sole purpose of linking the Affiliate’s website to LLAMA’s websites. This Agreement does not grant the Affiliate any exclusive right or privilege to assist LLAMA in the provision of services arising from the Affiliate’s referrals, and LLAMA intends to contract with and obtain the assistance of others at any time to perform services of the same or similar nature as the Affiliate. The Affiliate shall have no claim for any referral commission or other compensation on business secured by or through persons or entities other than the Affiliate.
2.11 APPROVED LAYOUTS.
The Affiliate will only use LLAMA’s approved advertising creative/banners and will not alter their appearance nor refer to LLAMA in any promotional materials other than those sent to the Affiliate by LLAMA. All other advertising e.g. editorial comments must be approved by the LLAMA Affiliate Team. The appearance and syntax of the hypertext transfer links are designed and designated by LLAMA and constitute the only authorised and permitted representation of LLAMA’s sites. Sites that are misleading to the user, redirect to the LLAMA website or are a copy of the LLAMA website could also result in the termination of the affiliate agreement and/or cancellation of commission.
2.12 GOOD FAITH.
The Affiliate will not knowingly benefit from known or suspected traffic not generated in good faith whether or not it actually causes LLAMA damage. LLAMA reserves the right to retain all commission otherwise due to the Affiliate under this Agreement if LLAMA has reasonable cause to believe that such traffic has been directed in this manner regardless of whether the Affiliate is aware of this.
LLAMA reserves the right to withhold affiliate payments and/or suspend or close accounts where Customers are found to be tampering with or abusing any LLAMA offers or promotions whether with or without Affiliate’s knowledge. Such situations to include but not be limited to arbitrage, bonus abuse and affiliate fraud. LLAMA reserve the right to close any affiliate account if the affiliate only refers, or refers a high level of bonus seeking customers or otherwise deemed unprofitable customers.
2.13 RESPONSIBILITY FOR AFFILIATE SITE.
The Affiliate will be solely responsible for the development, operation, and maintenance of its site and for all materials that appear on its site, and warrants, covenants and undertakes to operate and maintain an acceptable internet usage policy regarding LLAMA and its URLs. For example, the Affiliate will be solely responsible for ensuring that materials posted on its site are not libellous or otherwise illegal. LLAMA disclaim all liability for these matters. Further, the Affiliate shall fully indemnify and hold LLAMA harmless from all claims, damages, and expenses (including, without limitation, legal fees) arising directly or indirectly out of the development, operation, maintenance, and contents of the Affiliate’s site and for any loss or damage suffered by LLAMA or any of its group companies for breach of the terms of this Agreement.
Affiliates must notify LLAMA of any new URL’s they will be using to promote the LLAMA brand. Failure to do so may result in withheld commissions of revenue generated by the un-declared URL. LLAMA’s Affiliate Programme is intended for affiliate’s direct participation. The Affiliate shall not open affiliate accounts on behalf of other participants. Opening an affiliate account for a third party, brokering an affiliate account or the transfer of an affiliate account is not accepted. If the Affiliate wishes to transfer an account to another beneficial account owner it must first request permission to do so by contacting LLAMA. Approval is solely at LLAMA’s absolute discretion. Members of the LLAMA Affiliate program must adhere to LLAMA Affiliates single account policy. The Affiliate shall not endorse LLAMA’s betting business (except by communication of promotional material approved by LLAMA); nor make any claim that LLAMA’s betting business or any of its promotions have been arranged for the benefit of the Affiliate’s customers or users of its website.
2.14 LICENCE TO USE MARKS.
LLAMA hereby grants to the Affiliate a non-exclusive, limited, revocable, non-transferable licence, during the term of this Agreement, to use LLAMA’s trade name, trade marks, service marks, logos and any other designations, which LLAMA may from time to time approve in writing (“Marks”) solely in connection with creating and describing the display of the promotional materials on the Affiliate’s site. The Affiliate will properly and accurately display LLAMA’s Marks in connection with any display and description of the link on the Affiliate’s site. This licence cannot be sub-licensed, assigned or otherwise transferred by the Affiliate. The Affiliate’s right to use the Marks is limited to and arises only out of this licence. The Affiliate shall not assert the invalidity, unenforceability, or contest the ownership of the Marks in any action or proceedings of whatever kind or nature, and shall not take any action that may prejudice LLAMA’s rights in the Marks, render the same generic, or otherwise weaken their validity or diminish their associated goodwill. The Affiliate must notify LLAMA immediately if it becomes aware of the misuse of the Marks by any third party and must contact [email protected]
2.15 CONFIDENTIAL INFORMATION.
During the term of this Agreement, the Affiliate may be entrusted with confidential information relating to LLAMA’s business, operations, or underlying technology and/or the Affiliate Programme (including, for example, Referral Commissions earned by the Affiliate under the Affiliate Programme). The Affiliate agrees to avoid disclosure or unauthorised use of any such confidential information to third persons or outside parties unless it has LLAMA’s prior written consent and that it will use the confidential information only for purposes necessary to further the purposes of this Agreement. The Affiliate’s obligations with respect to confidential information shall survive the termination of this Agreement.
3.0 REFERRAL COMMISSION STRUCTURE.
3.1 REFERRAL COMMISSION CALCULATIONS.
Subject to clause 3.4, LLAMA will pay the Affiliate the referral commissions (as defined on www.llamapartners.com) that LLAMA earns from Customers directed from the Affiliate’s site after they open an account with LLAMA and wager for real money at any of LLAMA’s sites.
LLAMA reserve the right to withhold any commissions generated by referrals that are identified as existing customers.
The Affiliate is responsible for accounting for any VAT deemed due on commissions earned from its commissions received.
Net Revenue for the purpose of this Agreement means the total of client losses in the period, less: All gross monies received by us in respect of all settled bets made by Customers, all casino and games wagers and poker rake after deducting; (i) monies paid out to Customers as winnings; (ii) monies paid in the form of betting duties or taxes (or reasonable provisions in respect thereof) (iii) bad debts; (iv) chargebacks and fraudulent transactions; (v) returned stakes; (vi) transactions which are reversed internally to prevent a charge-back from occurring; (vii) all bonuses; (viii) licensing fees; (ix) payment & processing fees. LLAMA retains the right to withhold commission payments or a portion thereof if it considers profits earned at are a risk of chargeback. Any amounts withheld will only be paid once a period of six months has elapsed.
3.2 REFERRAL COMMISSION PAYMENT CURRENCY.
Referral Commissions arising from Customer accounts are paid in British Pounds Sterling (“GBP”), US Dollars (“USD”) and Euros (“EUR”).
3.3 REFERRAL FEE PAYOUT REQUESTS.
The Affiliate’s LLAMA affiliate account must have affiliate earnings that are exactly or over the payment thresholds of their selected payment method as specified in www.llamapartners.com, before the Affiliate will be eligible for Referral Commission payment. Subject to clause 3.4, Affiliate is entitled to one payout per month, providing it has fulfilled the above Affiliate requirement at the end of the preceding month. There is no maximum commission payment. An active referred Customer is defined as a visitor to the Affiliate’s site(s) who has clicked through to a LLAMA website via the Affiliate’s click-thru link, has registered as a customer, deposited funds to their customer account and conducted betting or playing activity in one or more LLAMA properties – Casino, Live Casino, Virtual Games and Poker. LLAMA will make every effort to ensure that payments are processed before the 20th of every month; however no guarantees are made in respect of date of receipt and/or delays arising from unforeseen circumstances, including but not limited to - technical problems, staff levels and incorrect or incomplete payment information.
3.4 CONTINUED PROMOTION.
The Affiliate shall incorporate and prominently and continually display the most up-to-date links provided by LLAMA somewhere on their website, and the Affiliate shall not alter the form, location or operation of the links without LLAMA’s prior consent. The Affiliate is eligible for Referral Commissions based upon its continued promotion of LLAMA. LLAMA reserves the right to terminate Referral Commission if the Affiliate ceases to promote the LLAMA brand. The Affiliate’s reduced or suspended promotion of LLAMA’s sites will be deemed to represent the Affiliate’s termination of this Agreement.
3.5 INACTIVE ACCOUNTS.
LLAMA reserves the right to withhold commission and close any affiliate account deemed to be inactive for a period of 3 months or more. Decisions on inactivity are made at the discretion of the LLAMA Affiliates team but will be influenced by last login date, number of clicks, impressions and referrals.
4.0 INTELLECTUAL PROPERTY.
Each party owns and shall retain all right, title and interest in its names, logos, trade marks, service marks, copyrights and proprietary technology, including, without limitation, those names, logos, trade marks, service marks, copyrights and proprietary technology currently used or which may be developed and/or used by it in the future including in all materials on its own site. The Affiliate acknowledges that LLAMA’s sites (including without limitation all content, text, images, software, media and other materials on the sites) is proprietary to or licensed by LLAMA, protected under copyright and other intellectual property laws, and may not be reproduced, transmitted, displayed, published or distributed without the express prior written consent of LLAMA.
5 0 TERM AND TERMINATION, CONSEQUENCES AND UNSUITABLE SITES.
5.1 TERM AND TERMINATION.
a. This Agreement shall remain in force from the date of this Agreement for an initial fixed term of one year and shall continue thereafter unless and until terminated on 30 days written notice by one party to the other or otherwise as terminated below. For purposes of notification of termination, delivery via e-mail is considered a written and immediate form of notification.
b. Either party may terminate this Agreement by notice in writing with immediate effect if the other party is in material breach of any of the terms of this Agreement and such breach, where it is remediable, remains unremedied fourteen days after receipt of notice from the terminating party that the other party is in breach.
c. Either party shall have the right to terminate this Agreement with immediate effect on notice in writing if liquidation or similar proceedings relating to insolvency are filed or initiated by or against the other party.
d. After termination, LLAMA shall pay to the Affiliate commission subject to the terms of this Agreement on bets and accounts placed prior to the date of termination but no further commission shall be payable.
5.2 CONSEQUENCE.
Upon termination the Affiliate must immediately discontinue or disable the link to LLAMA’s sites, remove the link and all of LLAMA’s banners/icons and Marks from the Affiliate’s site. All rights and licenses given to the Affiliate in this Agreement shall immediately terminate. The Affiliate will immediately return to LLAMA any confidential information, including without limitation copies of materials from LLAMA’s sites in the Affiliate’s possession, custody or control and will cease all uses of LLAMA’s Marks.
5.3 UNSUITABLE SITES.
LLAMA MAY TERMINATE THIS AGREEMENT IF LLAMA DETERMINES (IN ITS SOLE DISCRETION) THAT THE AFFILIATE’S SITE IS UNSUITABLE. Unsuitable sites include, but are not limited to, those that: are aimed at children, display pornography or other illegal sexual acts, promote violence, promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, promote illegal activities or violate intellectual property rights.
5.4 DUPLICATE ACCOUNTS AND SELF REFERRAL.
The Affiliate shall not open more than one affiliate account without LLAMA’s prior written consent nor will it earn commission on its own or related person’s LLAMA casino, poker, live or games account. The Affiliate Programme is intended for professional website publishers. Members of the LLAMA Affiliate program must adhere to LLAMA Affiliates single account policy.
6.0 RELATIONSHIP OF PARTIES.
LLAMA and the affiliate are independent contractors and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between them. The Affiliate will have no authority to make or accept any offers or representations on LLAMA’s behalf. The Affiliate will not make any statement, whether on its site or otherwise, that would contradict anything in this Agreement.
7.0 INDEMNITY.
The Affiliate shall defend, indemnify, and hold LLAMA, its directors, employees and representatives harmless from and against any and all liabilities, losses, damages and costs, including legal fees, resulting from, arising out of, or in any way connected with (a) any breach by the Affiliate of any warranty, representation or term contained in this Agreement, (b) the performance of the Affiliate’s duties and obligations under this Agreement, (c) The Affiliate’s negligence or (d) any injury caused directly or indirectly by the Affiliate’s acts or omissions, or the unauthorised use of LLAMA’s banners and links or this Affiliate Programme.
8.0 LIMITATION OF LIABILITY.
LLAMA makes no express or implied warranties or representations with respect to the Affiliate Programme, about LLAMA or the Referral Commission payment arrangements (including, without limitation, functionality, warranties of fitness, merchantability, legality or non-infringement), and do not express nor imply any warranties arising out of a course of performance, dealing, or trade usage. In addition, LLAMA makes no representation that the operation of its sites will be uninterrupted or error-free and will not be liable for the consequences if there are any. In the event of a discrepancy between the reports offered by LLAMA and the LLAMA database, the database shall be deemed accurate. Subject to the below, LLAMA excludes all liability whatsoever in respect of all claims, whether in contract or tort (including negligence) or otherwise, arising out of or in connection with the content of its sites, this Agreement or any other collateral contract, for any loss or damage directly or indirectly incurred, including without limitation for any loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any other indirect or consequential loss or damage.
Nothing in this Agreement shall operate to exclude or limit either party’s liability for:
a) death or personal injury caused by its negligence; or
b) fraud; or
c) any other liability which cannot be excluded or limited under applicable law.
Liability for any claim in respect of the above is limited to £10,000 GBP.
9.0 INDEPENDENT INVESTIGATION.
THE AFFILIATE ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND AGREES TO ALL ITS TERMS AND CONDITIONS. THE AFFILIATE UNDERSTANDS THAT LLAMA MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE OR CONTRACT WITH WEBSITES THAT ARE SIMILAR TO OR COMPETE WITH THE AFFILIATE’S WEBSITE. THE AFFILIATE HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THIS AFFILIATE PROGRAMME AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET OUT IN THIS AGREEMENT.
10.0 MISCELLANEOUS.
10.1 GOVERNING LAW.
The laws of Gibraltar will govern this Agreement, without reference to rules governing choice of law. Any action relating to this Agreement must be brought in Gibraltar and the Affiliate irrevocably consents to the exclusive jurisdiction of its courts.
10.2 ASSIGNABILITY.
The Affiliate may not assign or transfer this Agreement, or its obligations or rights hereunder, by operation of law or otherwise, without LLAMA’s prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the Affiliate and LLAMA and the parties’ respective successors and assigns.
10.3 NON-WAIVER.
LLAMA’s failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of its rights to subsequently enforce such provision or any other provision of this Agreement. NO MODIFICATIONS, ADDITIONS, DELETIONS OR INTERLINEATIONS OF THIS AGREEMENT ARE PERMITTED OR WILL BE RECOGNISED BY LLAMA. None of the employees or agents of either party has any authority to make or to agree to any alterations or modifications to this Agreement or its terms.
10.4 REMEDIES.
The parties’ rights and remedies hereunder shall not be mutually exclusive, that is to say that the exercise of one or more of the provisions of this Agreement shall not preclude the exercise of any other provision. The Affiliate acknowledges, confirms, and agrees that damages may be inadequate for a breach or a threatened breach of this Agreement and, in the event of a breach or threatened breach of any provision of this Agreement, LLAMA may seek enforcement or compliance by specific performance, injunction, or other equitable remedy. Nothing contained in this Agreement shall limit or affect any of LLAMA’s rights at law, or otherwise, for a breach or threatened breach of any provision of this Agreement, it being the intention of this provision to make clear that LLAMA’s rights shall be enforceable in equity as well as at law or otherwise.
10.5 SEVERABILITY/WAIVER.
Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law but, if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such provision will be ineffective only to the extent of such invalidity, or unenforceability, without invalidating the remainder of this Agreement or any provision hereof. No waiver will be implied from conduct or failure to enforce any rights and must be in writing to be effective.
11.0 NOTICES.
Any notice required to be given under this Agreement may be delivered by pre-paid first class post addressed to the party in question at such party’s address shown in this Agreement or any subsequently notified address, or otherwise informed via email. Such notice shall be deemed to be served immediately upon delivery of email or upon expiry of 48 hours after posting (as the case, may be).
12.0 GENERAL.
a) This Agreement embodies the entire understanding and agreement between the parties in connection with the subject matter of this agreement and neither party is relying on any representations, promises, terms, conditions or obligations, oral or written, expressed or implied other than those contained herein.
b) Except where expressly provided in this Agreement, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
c) Save as otherwise stated herein, this Agreement shall not be modified or amended except by agreement in writing by an authorised representative of each of the parties.
d) Neither party shall have the right or authority to bind or to make any representation or warranty on behalf of the other. The headings to this Agreement shall not affect its interpretation.