Last Updated: 28/12/2011 / Version: 1.1 These affiliate program Terms and Conditions (the “agreement”) set out the Terms and Conditions between Sarah Enterprises Limited, a company registered in Gibraltar under company number 102825, and whose registered office is at Suite 23, Portland House, Glacis Road, Gibraltar (hereafter “fortuinaffiliates.com”, “we” or “us”) and you (the “affiliate”) in relation to you joining the fortuinaffiliates.com program and to your promotion of our websites currently situated at www.fortuincasino.com and www.fortuinaffiliates.com. By completing the affiliate application on fortuinaffiliates.com and accepting the form, you hereby agree to abide by all the Terms and Conditions set out in this agreement.
1.1. In this Agreement, the following terms, expressions and abbreviations shall have the following meanings, unless the contrary intention appears or the context requires otherwise: “Affiliate application form” shall mean the form or any other method of application made on or by way of the fortuinaffiliates.com website completed by yourself whereby you have requested that you be accepted by us to join the fortuinaffiliates.com program;
“Affiliate website” shall mean your website or websites and shall include any website on which you display or intend to display links; “Agreement” shall mean the fortuinaffiliates.com program Terms and Conditions including any appendix or amendment attached hereto; “Commission” shall mean the commission calculated on the basis of the commission structures on the net revenue; “Commission structures” shall mean the formula for calculating commissions on the basis of net revenue;
“Confidential information” shall mean all confidential information or any other information that is not indicated as being confidential, but which is not publicly known and of whose confidential nature the receiving party is or should be aware of based on the circumstances, including but not limited to business and financial information, lists of customers and buyers, as well as price and sales information and any information relating to products, records, operations, business plans, processes, product information, business know-how or logic, trade secrets, market opportunities and personal data of fortuincasino.com or the fortuinaffiliates.com site;
"Customers" shall mean all account holders with fortuincasino.com who have originally signed up with fortuincasino.com as new customers by accessing the fortuincasino.com site via the links of our affiliate website; “Link” shall mean a hypertext link from the affiliate website to the fortuincasino.com site; “Minimum activity levels” shall be the minimum activity levels of the affiliate established in accordance with clause 7.10; “Minimum deposit” shall be the minimum deposit required in accordance with the Terms and Conditions on the fortuincasino.com site, as amended from time to time;
“Net revenue” shall have the meaning stipulated in clause 7.3; “New customers” shall mean those customers of fortuincasino.com who do not yet have a account and who access the fortuincasino.com site via the links on the affiliate website and who properly register and make real money transfers at least equivalent to the minimum deposit into their fortuincasino.com site account;
“Parties” mean the parties to this agreement; “fortuinaffiliates.com program” shall mean the program whereby the affiliate will be paid a commission as defined under this agreement depending on the traffic generated to the fortuincasino.com site subject to the Terms and Conditions of this agreement and to the applicable commission structure; “fortuincasino.com site” shall mean the website or websites currently situated at the URL: www.fortuincasino.com;
“fortuinaffiliates.com intellectual property rights” shall mean all intellectual and industrial property rights owned by us of any kind, now or hereafter existing, including, without limitation patents, trademarks, service marks, rights in designs, trade names, present and future copyrights, utility models and design patents whether or not any of these are registered and including applications for any such right, matter or thing or registration thereof, trade secrets and rights of confidence, all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world, as well as all documents, information and other records and data provided to the affiliate in the course of the performance of the agreement.
"Third party royalty" shall mean any royalty or revenue share which fortuinaffiliates.com must pay to a third party in order to lawfully exploit any technology or other product used from time to time on the fortuincasino.com site.
1.2. In this Agreement, except where the context requires otherwise: a) The singular includes the plural and vice versa; b) Headings are included for convenience only and shall not affect the interpretation of the Agreement
1.3. In case of any discrepancy between any translated versions of this agreement, the English version shall prevail.
2. AFFILIATE APPLICATION AND ACCEPTANCE
2.1. fortuinaffiliates.com shall evaluate the affiliate application form submitted by yourself and shall inform you in writing including by way of an email whether the affiliate application form is accepted or not. We will in our sole discretion determine whether or not to accept your application and our decision is final and not subject to any right of appeal. In the event that we decide to refuse your application, this agreement shall be terminated with immediate effect.
3.1. You hereby warrant that:
a) You are of the legal age in the applicable jurisdiction to agree to and enter into the agreement;
b) You are competent and duly authorised to enter into binding agreements for the affiliate and the affiliate website;
c) You are the proprietor of all rights, licenses and permits to market, promote and advertise the fortuincasino.com site on the affiliate website in accordance with the provision of this agreement;
d) You shall comply with all applicable rules, laws and regulations in connection with the promotion of the fortuincasino.com site; and
e) You have read carefully and you fully understand and accept the Terms and Conditions of the agreement.
4. INTELLECTUAL PROPETY RIGHTS
4.1. fortuinaffiliates.com hereby grants a non-exclusive, non-transferable, terminable license to use the links on the affiliate website solely to promote the fortuincasino.com site and to refer players to the fortuincasino.com site in accordance with the Terms and Conditions of this Agreement.
4.2. All intellectual property rights in the links belong to fortuinaffiliates.com. All intellectual property rights in any third party materials shall belong to the third party owner thereof.
4.3. Nothing in this agreement grants a license or provides any warranty or offers any indemnity in respect of any data that is not owned by fortuinaffiliates.com.
4.4. Either party shall notify the other party immediately if any claim or demand is made or action brought against it for any infringement or alleged infringement of any intellectual property rights which may affect the supply or use of the links.
4.5. Nothing contained in this agreement will grant either party any right, title or interest in the trademarks, trade names, service marks or other intellectual property rights of the other Party. At no time during or after the term will either party attempt or challenge or assist or allow others to challenge or to register or to attempt to register the marks of the other party or of any company within the group of companies of the other party. Provided also that neither of the parties will register nor attempt to register any mark which is basically similar to and/or confusingly similar to any mark which belongs to the other party or to any company contained within the other party’s group of companies.
5. OBLIGATIONS OF FORTUINAFFILIATES.COM
5.1. fortuinaffiliates.com shall provide you with all information and marketing material it feels necessary for the implementation of the relative links.
5.2. fortuinaffiliates.com shall administer the turnover generated via the links, record the net revenues and the total amount of commission earned via the link, provide the affiliate with commission statistics, and handle all customer services related to the business.
5.3. fortuinaffiliates.com shall pay the affiliate the amount due depending on the net revenues subject to the Terms and Conditions of this agreement.
6. OBLIGATION OF THE AFFILIATE
6.1. You hereby warrant and undertake:
a) To effectively market and promote the fortuincasino.com site and to refer players to the fortuincasino.com site and to do so solely and exclusively at your own cost and expense;
b) To conduct yourself at all times with the due skill, care, diligence, prudence and foresight which would reasonably be expected from a skilled and experienced contractor acting in good faith and in accordance with all applicable laws, enactments, orders or regulations;
d) To conduct all marketing and promotion activities in a professional, manner that shall be lawful under applicable laws and in accordance with this agreement;
e) To use only a link or links provided within the scope of the fortuinaffiliates.com program, otherwise no warranty whatsoever can be assumed for proper registration and sales accounting. Also, not to change or modify in any way any link or marketing material without prior written authorisation from fortuinaffiliates.com;
f) To comply with all security guidelines and other requirements as may be issued by fortuinaffiliates.com from time to time whether in writing or otherwise;
g) That all information you provided in applying to join the affiliate program, including all information you provided in the affiliate application form, is correct and that you will notify us promptly of any changes or updates; and
h) To be responsible for the development, the operation, and the maintenance of the affiliate website as well as for all material appearing on the affiliate website.
6.2. You hereby warrant:
a) That you will not perform any act which is libellous, discriminatory, obscene, unlawful or otherwise unsuitable or which contains sexually explicit, pornographic, obscene or graphically violent materials;
b) That you will not actively target any person who is under the legal age for gambling;
c) That you will not actively target any jurisdiction where gambling or the promotion thereof is illegal;
d) That you will not register as a player or make deposits directly or indirectly to any player account through his tracker(s) for your own personal use and/or the use of your relatives, friends, employees or other third parties, or in any other way attempt to artificially increase the commission payable or to otherwise defraud fortuinaffiliates.com. Violation of this provision shall be deemed to be fraud;
e) That you will not generate traffic to the fortuincasino.com site by illegal or fraudulent activity, particularly but not limited to by sending spam or by incorrect meta tags;
f) That you will not post or serve any advertisements or promotional content promoting the fortuincasino.com site or otherwise around or in conjunction with the display of the fortuincasino.com site (e.g., through any "framing" technique or technology or pop-up windows or pop-under windows), or assist, authorise or encourage any third party to take any such action;
g) That you will not directly or indirectly offer any potential customer any incentive (including without limitation payment of money or other benefit) to use or to click on the links on the affiliate site; and
h) That you will not register any domain names or register keywords, search terms or other identifiers for use in any search engine, portal, sponsored advertising service or other search or referral service or include meta tag keywords on the affiliate website that incorporate terms which are identical or similar to fortuincasino.com intellectual property rights, in particular trademarks owned by fortuincasino.com.
7.1. fortuinaffiliates.com agrees to pay you a lifetime player commission calculated in accordance with the commission structures (displayed on fortuinaffiliates.com, or individually agreed) on the net revenues generated from customers referred by the affiliate website. The commission shall be deemed to be inclusive of value added tax or any other tax if applicable.
7.2. fortuinaffiliates.com does not carry over any negative commission to the next month. If the previous month has ended negative, amounts will be written off. Excluded from the "no negative carry over" are individual players who won more than 5,000.00 EURO in a single month. These players will be placed in quarantine.
7.3. "Net revenues" shall mean all gross monies received by fortuinaffiliates.com from customers referred to the fortuincasino.com site less all of the following: (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) or other statutory deductions or payments to licensing authorities; (iii) charges levied by electronic payment or credit card organisations; (iv) bad debts; (v) monies attributed to fraud; (vi) returned stakes; (vii) provisions for transactions which are reversed by instruction from the card-holder's bank (commonly referred to as charge-backs); (viii) any monies received from customers who bet with fortuincasino.com via a platform owned or operated by a third party; (ix) the cost of 'free bets' or 'free chips' provided to customers as a promotional or marketing activity; and (x) any third party royalties which fortuincasino.com must pay.
7.4. The commission is calculated at the end of each month and payments shall be made during the next calendar month, provided that the amount due exceeds €500,- (the “minimum threshold”). If the balance due is less than the minimum threshold, it shall be carried over to the following month and shall be payable when it collectively exceeds the minimum threshold. An administrative fee could be set at the sole discretion of fortuinaffiliates.com, to be reduced from each monthly commission payment made to the affiliate.
7.5. Payment of commissions shall be made as per the payment method chosen by yourself in the affiliate application form or otherwise in the application process. If an error is made in calculating the commission, fortuinaffiliates.com reserves the right to correct such calculation at any time and will immediately pay out underpayment or reclaim overpayment made to you.
7.6. Without prejudice to clause 7.4, acceptance of payment made by you shall be deemed to be full and final settlement of the balance due for the period indicated.
7.7. If you disagree with the balance due as reported, you shall, within a period of thirty (30) days, send an email to fortuinaffiliates.com on affiliates(at)fortuinaffiliates.com and indicate the reasons of such disagreement. Failure to send an email within the prescribed time limit shall be deemed an irrevocable acknowledgment of the balance due for the respective period.
7.8. Notwithstanding any other clause in this Agreement, fortuinaffiliates.com may delay payment of any balance to you for any particular calendar month up to one hundred and eighty (180) days, while it has reasonable suspicion that the relevant transactions do not comply with the provisions of these Terms and Conditions.
7.9. No payment shall be due when the traffic generated is illegal or if you are otherwise in breach of these Terms and Conditions.
7.10. You hereby agree to return all commissions received based on fraudulent or falsified transactions or on transactions which are in breach of these Terms and Conditions, plus all costs for legal causes or actions that may be brought against fortuinaffiliates.com or fortuincasino.com to the fullest extent of the law.
7.11. fortuinaffiliates.com reserves the right to set a minimum level of net revenues to be received by fortuinaffiliates.com from your customer activities or to set any other minimum activity levels. Such minimum activity levels will be continuously reviewed and fortuinaffiliates.com reserves the right to terminate any agreement not reaching the minimum activity levels. It is understood by both parties that such minimum activity levels shall be reasonable and that it is intended to avoid accounts where the revenue does not cover our internal costs for maintaining the account and the pay-out procedure.
7.12. At the sole discretion of fortuinaffiliates.com, you may be offered the opportunity to restructure your commission structure including by implementing a cost per acquisition (CPA) module or a hybrid module. In the event that you accept such an offer, this new revenue structure shall replace your existing commission structure in its entirety. Notwithstanding the above, all your obligations under the agreement will still continue to apply until the termination of this agreement.
7.13. You shall be exclusively responsible for the payment of any and all taxes, levies, fees, charges and any other money payable or due both locally and abroad (if any) to any tax authority, department or other competent entity as a result of the revenue generated by yourself under this agreement. fortuinaffiliates.com shall in no manner whatsoever be held liable for any amounts unpaid but found to be due by you in this regard.
7.14. All payments made shall be made in EURO (€) or in any other currency as may be specified by fortuinaffiliates.com.
8.1. This agreement may be terminated by either party by giving a thirty (30) day written notification to the other party. Written notification may be given by an email.
8.2. fortuinaffiliates.com may terminate this agreement immediately in the event that the affiliate:
a) Breaches any of the terms of this agreement;
b) Is unable to pay its debts as they fall due with its creditors or becomes subject to an administration order or goes into liquidation or winding up or is made subject to a bankruptcy order;
c) In the opinion of fortuinaffiliates.com, is in breach of any applicable law or regulations; or
d) Does not introduce a new customer to fortuincasino.com for a period of three (3) months.
8.3. You hereby agree that on termination of the agreement:
a) You will remove all links and/or references to the fortuincasino.com site from the affiliate website(s) and/or other marketing channel and communications, irrespective of whether the communications are commercial or otherwise;
b) All rights and licenses granted to you under this agreement shall immediately terminate and all rights shall revert to the respective licensors, and you will cease the use of any intellectual property rights; and
c) You will be entitled only to those earned and unpaid commissions as of the effective date of termination provided that fortuinaffiliates.com may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
8.4. If this agreement is terminated by fortuinaffiliates.com for any of the reasons specified in clause 8.2, fortuinaffiliates.com shall be entitled to withhold any unpaid commissions even if arising prior to the termination date as security for any claim arising from such breach. For the sake of clarity the parties specifically agree that upon termination of this agreement by either party, you shall no longer be entitled to receive any payment whatsoever from fortuinaffiliates.com.
8.5. Immediately upon termination, you shall return to fortuinaffiliates.com any and all confidential information (and all copies and derivations thereof) in your possession, custody or control.
8.6. Termination will not relieve you from any liability arising from any breach of this agreement, which occurred prior to termination and/or to any liability arising from any breach of confidential information even if the breach arises at any time following the termination of the agreement.
9.1. fortuinaffiliates.com makes no representation that any of its services including the fortuincasino.com site shall be uninterrupted or error free and, to the full extent permissible at law, fortuinaffiliates.com shall not be liable for the consequences of such interruptions or errors.
9.2. You acknowledge and accept that links and the affiliate program are provided “as is” without warranties of any kind, whether express or implied.
9.3. All conditions, warranties, terms and undertakings whether express or implied, statutory or otherwise relating to the delivery, performance, quality, accuracy, fitness for purpose, occurrence or reliability of the links or the affiliate program are hereby excluded to the fullest extent permitted by law.
9.4. Clause 9 shall survive the termination of this Agreement.
10.1. You agree to defend, indemnify and hold fortuinaffiliates.com, and Sarah Enterprises Limited and its affiliates, parents, sisters and other group companies, successors, officers, employees, agents, directors, shareholders and attorneys, free and harmless from and against any and all claims and liabilities, including reasonable attorneys' and experts' fees, related to or arising from:
a) Any breach of your representations, warranties or covenants under this agreement;
b) Your use (or misuse) of the marketing materials;
c) All conduct and activities occurring under your user name and password;
d) Any defamatory, libellous or illegal material contained within the affiliate website or your information and data;
e) Any claim or contention that the affiliate website or the affiliate's information and data infringes any third party's patent, copyright, trademark, or other intellectual property rights or violates any third party's rights of privacy or publicity;
f) Third party access or use of affiliate website or affiliate's information and data;
g) Any claim related to affiliate website; or
h) Any violation of this agreement.
10.2. fortuinaffiliates.com reserves the right to participate, at its own expense in the defence of any matter.
10.3. Clause 10 shall survive the termination of this agreement.
11. LIMITATION OF LIABILITY
11.1. fortuinaffiliates.com, Sarah Enterprises Limited and its affiliates, parents, sisters and other group companies, successors, officers, employees, agents, directors, shareholders and attorneys shall not be held liable for any form of indirect or consequential damage, including but not limited to loss of turnover/revenues or profits as well as loss of interest and customers even if such damage was foreseeable.
11.2. The total liability of fortuinaffiliates.com for direct damages, with the exclusion of death and personal injury, arising from failure to comply with this agreement or caused by a tort in connection with the execution of this agreement shall be limited to an amount equal to the commissions paid by fortuinaffiliates.com to the affiliate for the two months immediately preceding the event giving cause for damages. In any event, notwithstanding any other clause in this agreement, the total liability of fortuinaffiliates.com for such direct damages shall not exceed the sum of twenty five thousand EURO (€25,000).
11.3. Clause 11 shall survive the termination of this agreement.
12. COMPANY RIGHTS
13. CONFIDENTIALITY AND DATA PROTECTION
13.1. Except as otherwise provided in this agreement, each party shall keep all confidential information of the other party in confidence and use such information only for the purpose of the agreement. Confidential information must not be used for your own commercial or other purposes or divulged to any person or third party neither direct nor indirectly unless the prior explicit and written consent of fortuinaffiliates.com has been obtained.
13.2. The parties shall together determine the content of any communications concerning the relationship between the parties. Such communications shall be issued at a time and a manner agreed by the parties.
13.3. You warrant that you will comply with the provisions of applicable data protection legislation.
13.4. Clause 13 shall survive the termination of this agreement.
14. FORCE MAJEURE
14.1. Neither party shall be liable to the other for any delay or failure to perform its obligations under this agreement if such delay or failure arises from a cause beyond the reasonable control of and is not the fault of such party, including but not limited to labour disputes, strikes, industrial disturbances, acts of God, acts of terrorism, floods, lightning, utility or communications failures, earthquakes or other casualty.
14.2. If a force majeure event occurs, the non-performing party is excused from whatever performance is prevented by the force majeure event to the extent prevented. Provided that, if the force majeure event subsists for a period exceeding thirty (30) days then either party may terminate the agreement by providing notice to the other party.
14.3. Neither party shall be liable to the other in respect of an event of Force Majeure provided that each Party shall take all reasonable steps to minimise the effects of Force Majeure on the performance of its obligations under this agreement.
15. CHANGES TO THIS AGREEMENT
15.1. fortuinaffiliates.com reserves the right to amend, alter, delete or add to any of the provisions of this agreement, at any time and at its sole discretion, without giving you any advance notice subject to the Terms and Conditions set out in this agreement. Any such changes will be posted on the fortuinaffiliates.com site.
16.1. You may not assign this agreement, by operation of law or otherwise, without obtaining the prior written consent of fortuinaffiliates.com.
16.2. fortuinaffiliates.com may assign this Agreement, by operation of the law or otherwise, at any time without obtaining your prior consent.
17. REALTIONSHIP OF THE PARTIES
17.1. Nothing contained in this agreement, nor any action taken by any party to this agreement, shall be deemed to constitute either party, or any of such party's employees, agents, or representatives, an employee, or legal representative of the other party, nor to create any partnership, joint venture, or association among or between the parties, nor to confer on either party any express or implied right, power or authority to enter into any agreement or commitment on behalf of, nor to impose any obligation upon, the other party.
18.1. Whenever possible, each provision of this agreement shall be interpreted in such a manner as to be effective and valid under applicable law.
18.2. 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.
18.3. No waiver will be implied from conduct or failure to enforce any rights and must be in writing to be effective.
19.GOVERNING LAW & JURISDICTIONS
19.1. This agreement shall be governed and construed in accordance with the laws of Gibraltar and any action or dispute relating to this agreement must be brought up in Gibraltar and the affiliate irrevocably consents to the jurisdiction of the Gibraltar law courts.
FortuinAffiliates is operated by Sarah Enterprises Affiliate Terms&Conditions