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Terms and Conditions
Affiliate Program Terms and Conditions 0. Definitions In this Agreement, the following words and expressions shall have the following meanings: "Affiliate" means the company or other person entering into this Agreement with Clickgamer Technologies Ltd; "Affiliate Forms" means the form or forms to be completed by the Affiliate specified by Clickgamer Technologies Ltd on the Service Website from time to time; "Affiliate Tracking Service" means the service to measure the number of successful sales resulting from a clickthrough originating from an Affiliate Website using any provided Clickgamer Technologies Ltd links without the use of a promotional code; "Affiliate Website" means the Affiliate's website including the domain name registered in the Affiliate's name; "Chargeback" means any sum due or paid to an Affiliate in respect of a Referral which is repayable on the basis that either the sale in question was never concluded or the lead in question was never realised; "Commencement Date" means the date set out in the Order Form upon which this Agreement comes into full force and effect; "Commission" means the rate of commission specified on the Service Website in relation to any Referrals; "Intellectual Property Rights" means all trade marks (whether registered or unregistered), logos, trade names and copyright and other similar rights (whether now known or in the future created) both in the United Kingdom and all other countries of the world. "Prohibited Site" means a website whose content falls within one of the prohibited classes specified on the Service Website; "Referrals" means leads and/or sales (as the case may be) that are specified on the Service Website as being the basis on which any Commission is paid; "Service" means Clickgamer Technologies Ltd's Affiliate Programs Service more particularly described in this Agreement and the Service Website; "Service Website" means the websites maintained by Clickgamer Technologies Ltd at www.clickgamer.com and www.clickapps.com "Specified Email Address" means: (a) (in the case of Clickgamer Technologies Ltd) affiliates@clickgamer.com with the Affiliate's account number with Clickgamer Technologies Ltd being noted in the subject matter field; and (b) (in the case of the Affiliate) the email address specified in the Affiliate Form. In this document "this Agreement" shall mean the agreement made between Clickgamer Technologies Ltd and the Affiliate which shall consist of the provisions of this document and any terms and conditions that are intended to be binding on the Affiliate which are set out by Clickgamer Technologies Ltd on the Service Website from time to time. 1. General 1. The terms and conditions of this Agreement shall apply as between the parties in respect of the subject matter to the exclusion of all other terms and conditions (including any terms and conditions that the Affiliate purports to apply). 2. This Agreement may not be assigned by the Affiliate without Clickgamer Technologies Ltd's prior written consent. 3. Clickgamer Technologies Ltd shall be entitled to appoint any sub-contractor for the provision of the Services. 4. No forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of its rights operate as a waiver of any subsequent breach and no right, power or remedy herein conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party and each such right, power or remedy shall be cumulative. 5. This Agreement shall be binding upon and enure for the benefit of the successors in title of the parties hereto. 6. If any provision in this Agreement shall in whole or in part be held to any extent to be illegal or unenforceable under any enactment or rule of law then that provision or part shall to that extent be deemed not to form part of this Agreement and the enforceability of the remainder of this Agreement shall not be affected. 7. Clickgamer Technologies Ltd and the Affiliate are each independent contractors with respect to each other and nothing in the Agreement shall create any association, partnership, joint venture or agency relationship between them. 8. This Agreement contains the entire understanding of the parties with respect of the subject matter hereof, supersedes all prior agreements and may not be modified or amended except in writing signed by the parties. 9. Clickgamer Technologies Ltd shall not be liable to the Affiliate for loss arising from or in connection with any representations (except fraudulent), agreements, statements or undertakings made prior to the date of execution of this Agreement other than those representations, agreements, statements or undertakings confirmed by a duly authorised representative of Clickgamer Technologies Ltd in writing or expressly incorporated or referred to in this Agreement. 10. For the purposes of the Contracts (Rights of Third Parties) Act 1999, and notwithstanding any other provision of this Agreement, this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions except for any subsidiary, holding company or other group company of Clickgamer Technologies Ltd. 11. All notices proceedings or other formal documents to be served by either party on the other shall be delivered by hand or by recorded delivery to the other's address as set out at the head of this Agreement (or to an alternative address subsequently notified in writing) or to the Specified Email Address of each of the parties and notices shall be deemed to be received upon delivery. 12. This Agreement is subject to the laws of England and shall be subject to the non-exclusive jurisdiction of the English courts. 2. The Affiliate 1. As a condition of Clickgamer Technologies Ltd entering into this Agreement, the Affiliate shall: (a) complete and submit to Clickgamer Technologies Ltd all applicable Affiliate Forms; and (b) be the registered owner of the domain name directly identifying the Affiliate Website. The Affiliate shall not have access to a URL which simply directs Internet users to Clickgamer Technologies Ltd's Website. 2. The Affiliate shall, upon the Commencement Date, select a username and password that permits the Affiliate access to the Affiliate Section of the Service Website. The Affiliate shall use its best endeavours to keep the password secure and shall immediately notify Clickgamer Technologies Ltd by email at fraud@clickgamer.com if the Affiliate believes that any unauthorised use has or may be made of such password. 3. The Affiliate shall, at all times, provide to Clickgamer Technologies Ltd, free of charge, accurate, complete and non-misleading information reasonably required by Clickgamer Technologies Ltd for the purposes of providing the Service and, for the avoidance of doubt, this condition shall apply to all information provided by the Affiliate on the Affiliate Forms. 4. The Affiliate shall not use a Prohibited Site for the purpose of making any Referrals. 5. The Affiliate shall not use any information or data arising from the provision of the Service by Clickgamer Technologies Ltd for the sending of unsolicited bulk email (sometimes known as spam) and, in the event that the Affiliate breaches or procures a breach of this condition, Clickgamer Technologies Ltd may, in its absolute discretion, suspend the payment of all or any part of the Commission. 6. The Affiliate acknowledges that Clickgamer Technologies Ltd shall act upon any information or instructions that Clickgamer Technologies Ltd reasonably believes comes from the Affiliate and Clickgamer Technologies Ltd shall not be liable to the Affiliate if it does so. 7. The Affiliate shall ensure that the Affiliate Website does not infringe any applicable laws, regulations and does not contain any material which is obscene, pornographic, offensive, defamatory, threatening, menacing, blasphemous, or in breach of any third party Intellectual Property Rights or liable to incite racial hatred. 8. The Affiliate shall immediately notify Clickgamer Technologies Ltd by email at fraud@clickgamer.com if the Affiliate becomes aware of any allegation that content on the Affiliate Website which may be in breach of condition 9. The Affiliate shall not, in any circumstances, edit, amend, modify or otherwise alter any material provided by Clickgamer Technologies Ltd to the Affiliate under this Agreement including, for the avoidance of doubt, Clickgamer Technologies Ltd Links. 10. The Affiliate acknowledges that the Affiliate shall not prejudice, breach or act in a manner which is inconsistent with the Intellectual Property Rights and other rights of Clickgamer Technologies Ltd and, except only to the extent set out in this Agreement, the Affiliate shall not have or obtain any rights in relation to the Intellectual Property Rights or any other rights of Clickgamer Technologies Ltd. 11. The Affiliate shall indemnify Clickgamer Technologies Ltd against all damages, losses and expenses arising as a result of any claim or action that materials on the Affiliate Website infringe any Intellectual Property Rights belonging to any third party or breach condition 7 of Section 2 of this Agreement. 3. Clickgamer Technologies Ltd 1. In consideration of the Commission and subject to the full and timely performance by the Affiliate of its obligations under this Agreement, Clickgamer Technologies Ltd shall use its reasonable endeavours to provide the Service. 2. Clickgamer Technologies Ltd hereby grants to the Affiliate, a worldwide, non-exclusive, royalty free, non-transferable licence to display Clickgamer Technologies Ltd's Links on the Affiliate Website. 3. In the context of overseeing and administering the Service, Clickgamer Technologies Ltd may monitor the Affiliate Website and any links from it. 4. Clickgamer Technologies Ltd shall use its reasonable endeavours to check that the Affiliate Tracking Service has not, for whatever reason, been deleted or removed from Clickgamer Technologies Ltd Website or deactivated or tampered with in any way. 4. Financial Matters 1. 10% Commission is paid to the affiliate for every successful non-promotional sale generated via a click-through to the Clickgamer website. 2. Clickgamer Technologies Ltd may only recover any Chargeback from the Affiliate if the Chargeback event both occurs within 21 (twenty-one) working days of the end of the calendar month in which the applicable Referral took place. 3. Remittance will be paid via PayPal at the end of every calendar month when commission exceeds one hundred US dollars. Any amount less than one hundred dollars will be carried forward to the next calendar month. 5. Restrictions and E-mail notifications 1. Clickgamer Technologies Ltd shall, by giving no less than 14 days notice to the Affiliate and posting the same on the Service Website, send the Affiliate by email to the Specified Email Address any additional terms and conditions or changes to the way in which the Service shall be provided that are likely to materially affect the Affiliate's position. 2. The Affiliate undertakes not to collect and/or process Personal Data (as defined in the Data Protection Act 1998) from any of Clickgamer Technologies Ltd's customers. 3. The Affiliate confirms to Clickgamer Technologies Ltd that the Affiliate is not a private individual under 18 (eighteen) years of age and none of the sites on which the Affiliate places any Merchant Links shall be a Prohibited Site. 6. Warranties 1. Clickgamer Technologies Ltd hereby warrants to the Affiliate that (a) it will perform the Services with due care and skill and in a professional manner; and (b) it has full power and authority to enter into and perform this Agreement. 2. The Affiliate hereby warrants to Clickgamer Technologies Ltd that (a) it has full power and authority to enter into and perform this Agreement; (b) all information provided by the Affiliate shall be complete, accurate and non-misleading; (c) it will comply with all its duties under any data protection laws and regulations applicable to the Affiliate Website; (d) its performance of its obligations under this Agreement will not infringe the Intellectual Property Rights of any third party; (e) none of the information or materials supplied by the Affiliate to Clickgamer Technologies Ltd shall be libellous, obscene, or abusive nor shall it breach any law or regulation or give rise to any legal claims of any sort. 3. Subject to condition 1 of Section 6, all conditions, warranties, representations or other terms concerning the supply of Service which might otherwise be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law, custom or otherwise are hereby expressly excluded to the fullest extent permitted by law. 4. Subject to the remaining terms of this Agreement, Clickgamer Technologies Ltd does not warrant that the provision of the Service or access to the Service Website (or any part of it) will be uninterrupted or error free . 5. Clickgamer Technologies Ltd gives no warranty or representation in respect of the commercial benefit or amount of Commission to be derived from the use by the Affiliate of the Services or that the provision of the Service and the Affiliate Tracking Service will be uninterrupted or error free. 7. Limitation of liability and indemnity 1. SUBJECT TO CONDITIONS 2 AND 3 BELOW CLICKGAMER TECHNOLOGIES LTD'S TOTAL LIABILITY TO THE AFFILIATE INCLUDING IN CONTRACT AND TORT (INCLUDING THE TORT OF NEGLIGENCE) SHALL NOT EXCEED £1,000.00 (ONE THOUSAND POUNDS). 2. None of the limitations and exclusions of liability set out in this Agreement shall apply: (a) in respect of death or personal injury caused by a party's negligence (for which no limit of liability shall apply); or (b) in the case of fraud; or (c) in respect of any breach of the terms implied by Section 12 Sales of Goods Act 1979 and Section 2 Supply of Goods and Services Act 1982; or (d) any other liability which cannot be limited or excluded under applicable law. 3. Notwithstanding anything else in this Agreement, Clickgamer Technologies Ltd shall not be liable to the Affiliate for loss of profits, contracts, loss of reputation, loss caused by any third party deleting, removing, deactivating or tampering with the Affiliate Tracking Service or other indirect or consequential loss whether arising from negligence, breach of contract or howsoever. 4. The Affiliate shall immediately indemnify Clickgamer Technologies Ltd against all proceedings, fees, expenses, payments, liabilities, injury, costs and damages arising out of: (a) the breach by the Affiliate of any of its obligations under this Agreement; and (b) any express or implied warranties, representations, confirmations or acknowledgements that are given by the Affiliate and prove to be untrue 5. Neither party shall be liable to the other for any force majeure event being any situation (other than a failure to pay moneys due to the other party) in which it fails to comply with its obligations under this Agreement due to anything beyond its reasonable control. 8. Disclosure, Information Collection & Confidentiality 1. The Affiliate confirms that the following information may be posted on the Service Website: (a) the Affiliate's identity as one of the entities that has subscribed to the Service; and (b) any information (other than confidential information) that is submitted by the Affiliate to Clickgamer Technologies Ltd. 2. The Affiliate confirms that in order to enable Clickgamer Technologies Ltd to improve and/or in order to promote or market the Service Clickgamer Technologies Ltd may produce statistics or summaries relating to the use of the Service; and Clickgamer Technologies Ltd may contact the Affiliate by email, telephone or post for feedback regarding the Service including any ways in which it might be improved, in any additional services or facilities introduced by Clickgamer Technologies Ltd or in relation to the affiliate programme matters at any time. None of the information referred to in this condition 2 of this section shall identify the Affiliate. 3. Each party agrees and undertakes that both before and following termination of this Agreement for whatever reason it shall keep confidential and shall not use for its own purposes, or without the prior written consent of the other party, disclose to any third party, any information disclosed to it in connection with this Agreement (whether orally or in writing), and which is expressly stated or marked as being confidential or which ought reasonably to be treated as such, unless such confidential information is public knowledge other than as a result of a breach of this condition, has been independently acquired from a third party without restriction on disclosure, is required by law or any regulatory body or is required to be disclosed for the purposes of litigation by or against either party. 9. Term and Termination 1. This Agreement shall commence on the Commencement Date and it shall continue for an initial period of one year ("the Initial Term") and shall continue thereafter for further periods of one year unless and until terminated by either party at any time with immediate effect. 2. The termination of this Agreement shall not limit the enforceability of any of the rights or obligations of the parties that accrued before the termination date. 3. Upon the termination of the Agreement, the Affiliate shall immediately remove all Clickgamer Technologies Ltd Links from the Affiliate Website and, for the avoidance of doubt, the Affiliate shall not be entitled to receive any Commission on any Referrals made after the termination date. 4. The Affiliate shall acquire no rights following the termination of this Agreement to use Intellectual Property Rights of Clickgamer Technologies Ltd including domain names or any text, or images, banners or any other works created by or for Clickgamer Technologies Ltd. 5 Conditions 4 in Section 9, Section 6, 7 and 8 shall survive the termination of this Agreement.
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