Please read these terms and conditions carefully before making any application to become an Affiliate, as they set out your and our obligations in relation to the Nektan Affiliate Programme (“the Affiliate Programme”).
If you do not agree with any of these terms and conditions, you should not apply to become an Affiliate and join the Affiliate Programme.
By applying to become an Affiliate, you hereby accept these terms and conditions and are legally bound by them.
We recommend that you print a copy of these terms and conditions for future reference.
Please note that this marketing opportunity is for commercial use only.
1.1 This document, your completed application form and any other guidelines or additional terms which we provide to you via e-mail or on our website at www.nektanaffiliates.com (“Our Website”) and any amendments thereto from time to time (together the Agreement”) contain the complete terms and conditions agreed between us, Nektan Limited (referred to in this agreement as “We”, “Us” or “Our” as applicable) and you (being the relevant person set out and referred to in the relevant application form and referred to in this agreement as “You” or “your” as applicable) that apply to your application to join and, if Your application is successful, Your participation in) the Affiliate Programme and to promote our clients on whose behalf the Affiliate Programme is administered and managed (“Advertisers”) and their websites (“Advertiser Sites”) and the creation of internet hyperlinks from Your website (“Affiliate Site”) to the Advertiser Sites (“the Links”).
1.2 Each Affiliate Programme Offer (an “Offer”) may be for any Advertiser, and may link to an Advertiser Site. Please note that each Advertiser may have additional terms and conditions in relation to Your promotion of Advertiser Sites, which are also hereby incorporated into this Agreement. You are under no obligation to promote any particular Offers.
1.3 In the event of any conflict between the terms of this Agreement and any other additional terms (whether on Our Website or any third party website or platform), this Agreement shall prevail unless such terms expressly vary this agreement and are confirmed by Us to You in writing.
1.4 We may change or modify any of these terms and conditions, and therefore the Agreement, at any time and at our sole discretion. Notice of any changes will be given in writing to the e-mail address specified in Your application form or as subsequently updated by You in the event of any change and by posting the new version of the Agreement on Our Website seven days in advance of any such changes being made. If You do not agree with any such changes, Your only recourse is to terminate the Agreement in accordance with its terms. Your continued participation in the Affiliate Programme after such notification and posting of any changes will be deemed a binding acceptance of any change or modification and the amended terms and conditions.
1.5 You acknowledge and agree that regulations 9(1) and 9(2) (Information to be provided where contracts are concluded by electronic means) and 11(1) (placing of the order) of the Electronic Commerce (EC Directive) regulations 2002 shall not apply or have any effect on this Agreement by virtue of the provisions of regulation 9(4) and 11(3) as a result of this Agreement being concluded exclusively by exchange of electronic mail or equivalent individual communications.
2 INTERPRETATION AND DEFINITIONS
2.1 In this Agreement (except where the context otherwise requires):
2.1.1 clause headings are included for convenience only and shall not affect the interpretation of this Agreement;
2.1.2 the singular includes the plural and vice versa;
2.1.3 any phrase introduced by the terms “including”, “include” or any similar expression shall be construed as illustrative and shall not limit the sense of the word preceding those terms;
2.1.4 any reference to "persons" includes natural persons, firms, partnerships, companies, corporations, associations, organisations, governments, states, governmental or state agencies, foundations and trusts (in each case whether or not having separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists); and
2.1.5 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.
3 APPLICATION AND REGISTRATION
3.1 To become a member of the Affiliate Program (“Affiliate”) You will need to complete and submit an online application form, which will also involve registration with our affiliate platform, Income Access. Please note that Income Access may have additional terms and conditions in relation to Your participation in the Affiliate Programme, which are also hereby incorporated into this Agreement. We will, in Our sole discretion, determine whether or not to accept Your application. For the avoidance of doubt, Our decision is final and not subject to any right of appeal. We will notify You by email as to whether or not Your application has been successful. If Your application is rejected, You may reapply at any time. If Your application is successful, We will email to You the necessary instructions as to what You must do to include the Links on the Affiliate Site.
3.2 By entering into this agreement, You explicitly consent to receiving e-mail from Us, including, but not limited to, sales reports, training, promotional resources, newsletters and other correspondence.
4 YOUR OBLIGATIONS
4.1 You shall provide Us with all co-operation, information and documents which We reasonably require in connection with Your participation in the Affiliate Programme and agree that We have the right to use any such information to monitor the Affiliate Site to ensure Your compliance with the terms of this Agreement.
4.2 You shall keep the Affiliate Site up to date and in good working order, ensure that the quality of its design, content and functionality does not materially deteriorate and ensure that all content or marketing or advertising activity relating to the site complies with all relevant laws and codes of practice for the duration of the Agreement.
4.3 You shall include at least one Link on the Affiliate site, and maintain Links on the Affiliate Site for the duration of the Agreement.
4.4 You shall not place the Links on the Affiliate Site in a manner which is detrimental to the reputation of Us or any Advertiser and will alter the location of any Link at Our request.
4.5 If Your use of any Link is not in compliance with the terms of this Agreement, We shall be entitled (but not obliged) to take such measures as to render inoperative the Links used by You and to immediately terminate this Agreement without notice to You.
4.6 Throughout the duration of the Agreement, You shall prominently incorporate and continually display the most up-to-date Links provided to You by Us or the Advertiser on the Affiliate Site in a manner agreed between You and Us and shall not alter the form or operation of the Links without Our or the Advertiser’s prior consent.
4.7 You shall provide true and complete information to Us when applying to join the Affiliate Programme and promptly update that information if all or any part of it changes.
4.8 You shall provide Us with reasonable assistance in respect of the display, access to, transmission and maintenance of the Links. In the event that You wish to place the Links on websites other than the Affiliate Site, You must first obtain the relevant Advertiser’s written consent.
4.9 You shall market and refer traffic to the Advertiser Sites and will be solely liable for the content and manner of any such marketing activities, which must be professional, proper, lawful and in accordance with any applicable regulations (including any laws or regulations relating to the content and nature of advertising or marketing including, but not limited to, the Consumer Protection From Unfair Trading Regulations 2008, the CAP Code, the Privacy and Electronic Communications Regulations 2011, the Copyright, Designs and Patents Act 1988, the Communications Act 2003, the Defamation Acts 1996 and 2013, the Human Rights Act 1998 and Data Protection Act 1998) and otherwise comply with the terms of this Agreement. You shall not, and shall not authorise, assist or encourage any third party to:
4.9.1 place Links on any third party website or other platform or medium where the content of and/or material on such website, medium or platform is defamatory, obscene, discriminatory, unlawful, sexually explicit, pornographic, violent or, in Our sole discretion otherwise unsuitable;
4.9.2 develop and/or implement any strategy which has as their direct or indirect result the targeting of marketing of Us, any Advertiser or Advertiser Sites to any person who is less than 18 years old.
4.9.3 place any Links on any third-party website or other medium or platform whose content infringes any third party intellectual property rights, copies or resembles Our Website or any Advertiser Sites in whole or in part, disparages or damages the reputation and/or goodwill of Us or any Advertiser in any way and frames any page of Our Website or any Advertiser Sites in whole or in part
4.10 You shall not directly or indirectly offer any person or entity any consideration or incentive (including, without limitation, payment of money or other benefit) for using the Links on the Affiliate Site to access any Advertiser Site (e.g. by implementing any "rewards" programme for persons or entities who use the Links on the Affiliate Site to access any Advertiser Site);
4.11 You shall not read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to Us or any Advertiser by any person or entity;
4.12 You shall not take any action which could reasonably cause any confusion as to Our or any Advertiser’s relationship with You or any third party, or as to the ownership or operation of any website or service on which any transaction or function may occur;
4.13 You shall not in any way modify, redirect, suppress, substitute or deconstruct the operation of any button, link, or other interactive feature of Our Site or any Advertiser Site;
4.14 You shall not attempt to intercept or redirect (including via user-installed software) traffic from or on any third-party website or other place that participates in the Affiliate Programme;
4.15 You shall not use or register (or apply to register) any trade name, trade mark, domain name or social media profile which contains or is similar to any trade name, trade mark, domain name or social media profile used by or registered in the name of Us or any Advertiser or any other trade name, trade mark, domain name or social media profile which could be understood to designate Us or any Advertiser. You further agree not to attack ownership or seek invalidity or revocation of any trade mark, domain name, social media profile owned or used by Us or any Advertiser in any way
4.16 You shall not use any means or platform to promote a website which in any way resembles the look and/or feel of Our Site or any Advertiser Site whether in whole or in part, not utilise any such means, platform or website to create the impression that such third party platforms or website are Our Website or any Advertiser Website (or any part thereof);
4.17 You shall not, without Our prior written consent, purchase or register keywords, search terms or other identifiers for use in any search engine, portal, sponsored advertising service, social media platform or other search or referral service which are identical or similar to any of Our or any Advertiser’s trade marks or trade names from time to time or otherwise include those trade marks or trade names or any variations of each thereof, or include metatag keywords on the Affiliate Site which are identical or similar to any such trade marks or trade names from time to time. In the event that You carry out any of the activities listed in this clause 4.16 without Our prior written consent We shall be entitled (but not obliged) to, at Our absolute discretion, retain any monies owed to You until such issue is resolved and/or to terminate this Agreement.
4.19 You shall make any attempt to communicate to end users, whether directly or indirectly, to solicit them to move to any third party website not owned by Us or any Advertiser or for any other purpose without Our prior written approval;
4.20 You shall not deliberately market the goods or services of any Advertiser or use the intellectual property rights of any Advertiser to end users located in any territory from which the Advertiser does not accept orders and/or operate;
4.21 You shall not engage in transactions of any kind on any Advertiser Site on behalf of any third party, or authorise, assist, or encourage any other person or entity to do so;
4.22 You shall not, other than providing Links on the Affiliate Site in accordance with this Agreement, post or serve any advertisements or promotional content promoting any Advertiser Site;
4.23 You shall not assign or sub-license the Links or any revenue generated by You under the terms of this Agreement without Our written consent;
4.24 You shall not attempt to artificially increase any monies payable to You by Us or any Advertiser;
4.25 You shall not cause Our Site or any Advertiser Site (or any page thereof) to open in an end user's browser other than as a result of that end user clicking on a Link on the Affiliate Site;
4.26 You shall not take any action in connection with the Affiliate Programme which might in Our sole discretion be likely to damage the reputation and goodwill of either the Affiliate Programme, Income Access and/or any Advertiser. You must also at all times adhere to Income Access’ terms and conditions.
4.27 You shall not conduct any form of spamming or advertise Our products or services or those of any Advertiser in any manner which breaches any law or code of conduct relating to electronic marketing.
4.28 You shall not compile any mailing list in a manner which does not comply with any appropriate law or regulation and maintain any necessary authority to make electronic communications to end users.
4.29 You shall not make any representations, warranties or other statements concerning Us, Advertisers or their/Our relevant products and services.
4.30 You shall not send e-mails or any other electronic message to any recipient listed in any suppression list which We may provide to You from time to time
4.31 If We determine, in Our sole discretion, that You have engaged in any of the foregoing activities, We may (without limiting any other rights or remedies available to Us) withhold any monies otherwise payable to You under this Agreement and/or terminate this Agreement immediately without notice or liability to You.
4.32 If You contact any end users to promote Our Site, an Advertiser’s Site or the Links, You shall make clear in the body of any such communication that such communication is made without the knowledge or involvement of Us or Any Advertiser and that any complaint that the relevant user may wish to make should be addressed to You and Us or any Advertiser.
4.33 Your obligations specified in this clause 4 shall be assumed by You including in favour of any relevant Advertiser.
4.34 You shall at all times comply with the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003, and any other related or similar legislation. Furthermore, You shall, and shall procure that, any third parties who have access to any end user data (or any personal data generally relating to end users of Our Site or any Advertiser Site) via any form of data management arrangement or otherwise with You shall at all times comply with the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003, and any other related or similar legislation. We accept no liability for any breach by You and/or any third party of the Data Protection Act 1998 and/or the Privacy and Electronic Communications (EC Directive) Regulations 2003, and/or any other related or similar legislation.
4.35 Should Your participation in the Affiliate Program (or any activity undertaken by You (or any third party)) be deemed to be in contravention of any requirements or code of practice of any legal or regulatory body, You warrant that, and You shall procure that any third party shall warrant that, the participation and/or the activity will cease immediately upon notification that such participation and/or activity is in contravention of any such legal and/or regulatory requirements and that You shall, and shall procure that any third party shall, act in compliance with any and all investigative and/or rectification requirements of that legal or regulatory body.
4.37 You shall indemnify on demand and hold Us harmless from and against any and all losses, demands, claims, damages, costs, expenses (including, but not limited to, consequential losses and loss of profit, reasonable legal costs and expenses and VAT thereon if applicable) and liabilities suffered or incurred, directly or indirectly, by Us in consequence of any breach by You of this clause 4.
4.38 You shall comply with all applicable laws and any policy notified by Us to You through Our Site or otherwise (including by E-Mail) in relation to money laundering and/or the proceeds of crime.
5 OUR OBLIGATIONS
5.1 We shall supply You with Links for inclusion on the Affiliate Site and may update such Links from time to time. We will notify You of any new or amended Links via the email address provided in Your application form (as updated or changed from time to time) and upon notification to You, such Links shall be updated on the Affiliate Site within a reasonable amount of time following receipt by You of such notification). If You fail to so display the Links We may terminate this Agreement immediately on written notice to You.
5.2 Subject to You complying with Our instructions with regard to tracking end users accessing any Advertiser Site via Links on the Affiliate Site We shall use Our best endeavours to ensure that, whenever an end user links to the relevant Advertiser Site through Links on the Affiliate Site, the relevant end user is identified as originating from the Affiliate Site. However, We shall not be liable to You in any way if We are unable to identify an end user as originating from the Affiliate Site.
6.1 For the avoidance of doubt, please note that each Advertiser may have additional terms and conditions in relation to Your promotion of Advertiser Sites and related payments, which are also hereby incorporated into this Agreement and upon which the terms of this clause are based.
6.2 New applicants to the Affiliate Programme will automatically be paid on a Net Revenue share basis, (as defined below) and such monies shall be dealt with in accordance with clause 6.3. If You would prefer to receive CPA Payments (as defined below) then You should send an email to firstname.lastname@example.org stating on what basis You would like the CPA Payments to be calculated and such requests will be dealt with on a case-by-case basis and monies shall be dealt with in accordance with clause 6.5.
6.3 If You receive a share of Net Revenue, then We shall pay You (in accordance with the provisions of clause 6.7) the currently published percentage of Net Revenues (as defined below) received during the Term (as defined below). The default commission percentage is currently 30% of Net Revenues, as defined below.
6.4 "Net Revenues" shall mean all gross monies received by the relevant Advertiser from Customers through the relevant Advertiser Site less all of the following: (i) monies paid out to Customers as winnings less any bonus playthrough; (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 including without limitation the licensing charges of the British Horse Racing Board (where applicable); (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 (where appropriate) with the relevant Advertiser via a platform owned or operated by a third party; (ix) the cost of 'free bets' or 'free chips' provided to Customers (where appropriate) as a promotional or marketing activity; (x) monies paid out to mobile platform operators; (xi) identity-check processing fees. "Customers" shall mean visitors from the Affiliate Site who enter the relevant Advertiser Site via the Links and who provide registration information to the relevant Advertiser Site (including without limitation the provision of a valid email address) and for whom the relevant Advertiser Site opens an account and such visitor places a bet with the relevant Advertiser and is not at that time an existing customer of the relevant Advertiser Site.
6.5 If You receive CPA Payments, then We shall pay (in accordance with the provisions of clause 6.8) a CPA Payment, as notified to You in writing from time to time ("CPA Payments"), for each real first time depositing Customer that places a qualifying bet or makes a qualifying purchase on the relevant Advertiser Site, provided that the relevant Advertiser receives full payment in respect of such bet or purchase and such bet or purchase is not placed or made using any 'free bet', free offer or other promotion provided by the relevant Advertiser Site to such Customer.
6.6 Where We refer to ‘Lifetime Revenue’ on Our Site (or otherwise), We intend it to mean that You will continue to receive the minimum Revenue Share, in respect of previously-introduced Customers, for such time as those Customers continue to bet, or play, on the relevant Site and Your account remains active and promoting the relevant Advertiser Site .
6.7 We shall provide You with statements accessible through Our Website detailing the number of Customers and Your share of Net Revenues and/or CPA Payments (as appropriate), if any, which have accrued to You over the course of the calendar month. Such statements shall be updated daily. At the end of a calendar month, We shall record Your total share of Net Revenues and/or CPA Payments (as appropriate), if any, during the previous calendar month ("Revenue Share"). In the event that a Revenue Share in any calendar month is a negative amount, We shall be entitled to carry forward and set off such negative amount against future commissions which would otherwise be payable to You. However, We shall also be entitled but not obliged to zero the negative balance that would otherwise be carried forward. If a Revenue Share does not exceed the following amounts, We shall be entitled to withhold and carry forward such sum until the end of the first calendar month in which the Revenue Share (including such carried forward sum) does exceed these amounts, at which time payment shall be made in accordance with clause 6.8: £100 if payment by BACS (UK only), or Envoy), £60 if payable by Skrill, £700 if payment is to be by electronic transfer. For the avoidance of doubt, You will only receive a payout when there is a positive balance and it is greater than the amounts stated above in any given month.
6.8 Subject to clause 6.7, at the end of a calendar month, the Revenue Share (or CPA Payments if applicable) payable by Us to You shall be automatically raised and paid out (in accordance with clause 6.6) by the end of the relevant calendar month. Such Revenue Share shall be paid in pounds sterling . Please note that Nektan Affiliates does not process your payments for commissions, this is the responsibility of the merchant (either Sapphire Rooms, Chomp Casino or Spin Princess).
6.9 If an error is made in the calculation of Your share of the Revenue Share, We reserve the right to correct such calculation at any time and to reclaim from You any overpayment made by Us to You (including, without limitation, by way of reducing future payments which might otherwise be due to You from Us from time to time).
6.10 Net Revenues received in currencies other than pounds sterling or US Dollars shall be converted in accordance with Our standard currency exchange policy.
6.11 If, in Our sole opinion, We suspect any Fraud Traffic has derived from Your acts or omissions, We may withhold payment to You of monies due in accordance with this Agreement while We investigate the relevant transactions. We are not obliged to pay You any monies during this period for any Customers who, in Our sole opinion, are in any way related to the suspected Fraud Traffic or for traffic and or activity outwith the spirit of the program, and We reserve the right to recalculate payments made to You in light of any such Fraud Traffic. “Fraud Traffic” in this context shall mean any traffic directed to the relevant Advertiser Site which derives from or is ancillary to any of Your acts or omissions which is disingenuous and/or outside of the spirit of the affiliate program. For the avoidance of doubt, if any such Fraud Traffic occurs as a result of Your acts or omissions, it shall be considered a material breach of this Agreement and We will be entitled to terminate Your membership of the Affiliate Program immediately without notice or liability to You.
All amounts payable by Us pursuant to this Agreement shall be exclusive of any value added tax (VAT) or other sales tax.
Without prejudice to any other rights or remedies available to Us under this Agreement or otherwise, We shall be entitled to set off any payments otherwise payable by Us to You hereunder, against any liability of You to Us, including any claims We may have against You resulting from or arising from Your breach of this Agreement both before and after termination.
Please note that any payment to You is dependent upon Advertisers providing relevant funds to Us, and therefore You agree that We will only be liable to You for payment of any monies to the extent that We have received relevant funds from relevant Advertisers. You hereby and release and forever discharge all and/or any action, claim, right, demand and set-off, whether in this jurisdiction or any other, whether or not presently know to the parties or to the law and whether in law or equity for payment if We have not received relevant funds from the relevant Advertiser.
7 INTELLECTUAL PROPERTY
7.1 We grant You a non-exclusive, non-transferrable and worldwide licence to use, reproduce electronically and display the Links on the Affiliate Site and access Advertiser Sites through the Links for the sole purpose of participating in the Affiliate Programme under the terms of and for the duration of this Agreement and in accordance with Our guidelines as may be provided to You from time to time. All rights not expressly granted by Us or any Advertiser are hereby reserved.
7.2 You may not alter, modify, manipulate or create derivative works of the Links in any way and only remain entitled to use the Links for the duration of this Agreement.
7.3 You acknowledge that all intellectual property rights and any goodwill arising in the Links and in all products, associated systems and software relating to the services provided by Us to Our Advertisers or Advertisers to end users from time to time shall remain the property of Us or the relevant Advertiser.
7.4 You are not permitted to use the Links or Our or Advertisers’ content after this agreement has terminated or during the term of this Agreement in any way that is detrimental to Us or Our Advertisers or the reputation or goodwill of Us or Advertisers. You are not permitted to alter or modify in any way such content without the express prior written consent of Us or the relevant Advertiser.
7.5 If, in Our reasonable opinion, We determine that use by You of any Links or content provided to You is in any way detrimental to Us or Advertisers or the reputation and goodwill of Us or Advertisers or that You have altered or modified such content in any way, We shall be entitled (but not obliged) to terminate this Agreement immediately on written notice to You (and without liability to You).
8 WARRANTIES AND DISCLAIMERS
8.1 Each party represents and warrants to the other that it has, and will retain for the duration of this Agreement 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 with reasonable skill and care.
8.2 For the avoidance of doubt, You warrant that, on the date of entering into this Agreement You are at least 18 years old.
8.3 You warrant, represent and undertake to Us that You have obtained and will maintain in force all necessary registrations, authorisations, consents and licences to enable You to fulfil Your obligations under this Agreement and that You fully comply with, and shall continue to fully comply with, all applicable laws and regulations.
8.4 You represent, warrant and undertake that the Affiliate Site shall contain no material which, in Our sole opinion, is defamatory, pornographic, unlawful, harmful, threatening, defamatory, obscene, malicious, menacing, harassing, or racially, ethnically, or otherwise objectionable or discriminatory, violent, politically sensitive or otherwise controversial or in breach of any third party rights and shall not link to any such material.
8.5 You warrant that You shall at all times comply with the provisions of the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003, and any other related legislation and You shall indemnify Us and any Advertiser on demand and hold Us and any Advertiser harmless from and against any and all losses, demands, claims, damages, costs, expenses (including, but not limited to, consequential losses and loss of profit, reasonable legal costs and expenses) and liabilities suffered or incurred, directly or indirectly, by Us or any Advertiser in consequence of any breach by You of this warranty.
8.6 You warrant that You have independently evaluated the desirability of participating in the Affiliate Programme and marketing the relevant Advertiser’s goods and services.
8.7 In the case of Advertisers involved in gambling, You understand that gambling laws vary from city to city, state to state and country to country. You warrant that You have independently evaluated the laws which apply to Your activities and believe that You may participate in Our Affiliate Programme without violating any applicable rules or laws.
8.8 We and Our Advertisers make no warranty that Your use of the Links or any other content which either We or an Advertiser supplies to You during the term of this Agreement will not infringe any intellectual property rights or give rise to any other liability on Your part.
8.9 All of the parties’ liabilities and obligations in respect of the subject matter of this Agreement are expressly set out in its terms. Except as stated otherwise in this Agreement and to the maximum extent permitted by applicable law and subject to clause 10, no other warranties, representations and implied terms and conditions concerning the subject matter of this Agreement will be implied into the Agreement or any related contract. Furthermore, neither We, any Advertiser or any providers or underlying vendors are required to maintain redundant systems, network, software or hardware.
You will indemnify on demand, keep indemnified and hold harmless Us, any Advertiser and each of Our or any Advertiser’s associates, officers, directors, employees, agents, shareholders and partners from and against any and all losses, demands, claims, damages, costs, expenses (including without limitation consequential losses and loss of profit, reasonable legal costs and expenses) and liabilities suffered or incurred, directly or indirectly, in consequence of any breach, non-performance or non-observance by You of any of Your obligations or warranties contained in this Agreement.
10 EXCLUSION OF LIABILITY
10.1 Our obligations under this Agreement do not constitute personal obligations of the owners, directors, officers, agents, employees, Advertisers, vendors or suppliers of Nektan Limited other than as provided under the terms of this Agreement.
10.2 Other than expressly provided for in this Agreement, in no event will We be liable in contract, tort (including, without limitation, negligence) or for breach of statutory duty or in any other way for:
10.2.1 loss of or to (whether direct, indirect, special, incidental, consequential or punitive) revenues, profits, contracts, business, business opportunities, anticipated savings or wasted expenditure; or
10.2.2 any loss of goodwill or reputation; or
10.2.3 any loss or corruption (whether direct or indirect) of data or information; or
10.2.4 any indirect or consequential losses in any case, whether or not such losses were within the contemplation of the parties at the date of this Agreement, or any other matter under this Agreement.
10.3 Our liability to You shall not, in any event, exceed the sum of the total monies paid by Us to You over the 12 month period preceding the date on which the event or series of related events giving rise to such liability occurred.
10.4 Nothing in this clause 10 shall limit Our liability for death or personal injury resulting from Our negligence or for fraud.
11 FORCE MAJEURE
11.1 Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control (“Force Majeure Event”). In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
11.2 If You become aware of a Force Majeure Event which gives rise to or is likely to give rise to any failure or delay in performing Your obligations under this Agreement, You must notify Us promptly.
11.3 In the event of either party experiencing a Force Majeure Event, it will take reasonable steps to mitigate its effects.
12 TERM AND TERMINATION
12.1 This Agreement shall start on the date that We notify You that Your application has been successful in accordance with clause 3. This Agreement shall continue thereafter unless and until terminated in accordance with this Agreement (the "Term").
12.2 You may terminate this agreement, with or without cause, immediately upon written notice to Us which You may send by e-mail with the subject “Nektan Termination Notice”.
12.3 We may terminate this Agreement at any time and immediately upon written notice to You which We may send by e-mail to the e-mail address provided by You in your application form (or as subsequently updated by You to Us in the event of any change) if We find You to be in breach of any of the terms of this Agreement or We suspect that You and/or anyone connected to You is abusing Your account for Your own gain or in any way which is disingenuous and/or is not in keeping with the spirit of the Affiliate Programme (whether You gain personally from such use or not).
12.4 If for any prolonged period (6 months or longer) You have failed to deliver new Customers, we reserve the right to either lower your share of Net Revenues, or to terminate your membership of the Affiliate Program immediately upon written notice and without further liability to You.
12.5 We may also terminate this Agreement with or without cause on delivery of two weeks’ prior written notice to You.
12.6 Either party may terminate this Agreement immediately upon written notice to the other if:
12.6.1 the other party commits a breach of its material obligations under this Agreement and in the case of a remediable breach, fails to remedy it within 30 days of the date of receipt of notice of such breach from the other;
12.6.2 the other party becomes insolvent or unable to pay its debts (as defined in Section 123 of the Insolvency Act 1986), proposes a voluntary arrangement, has a receiver, administrator or manager appointed over the whole or any part of its business or assets or if any petition shall be presented, order shall be made or resolution passed for its winding up (except for the purposes of a bona fide amalgamation or reconstruction), bankruptcy or dissolution or if it shall otherwise propose or enter into any composition or arrangement with its creditors or any class of them, or it ceases to carry on business or if it claims the benefit of any statutory moratorium or any other similar process or event whether in the United Kingdom or otherwise.
12.7 If You are no longer actively promoting Our Advertisers, We may contact You to discuss Your account. If We do not receive a positive response that You will actively promote Our Advertisers in the future We reserve the right to terminate this Agreement immediately by delivery of written notice to You which We may send by e-mail to the e-mail address provided by You in your application form (or as subsequently updated by You to us in the event of any change).
12.8 The following will apply where We terminate this Agreement:
12.8.1 You shall stop using the Links and stop promoting Our Site or any Advertiser Site immediately
12.8.2 All licences granted to You under this Agreement will terminate immediately
12.8.3 Provided that We have paid or do pay to You such sums as are due at the date of termination which shall be subject to any rights We have to make deductions hereunder, We will have no liability to pay You for further sums.
12.9 Each party shall immediately give notice in writing to the other party of any event within clause 12.5 which occurs during the Term and which would entitle the other party to bring the Term to an end.
12.10 The parties shall have no further rights or obligations under this Agreement after the end of the Term without prejudice to any rights or obligations which have accrued to either party at the time when the Agreement ends save that clauses 1,2 4,8,9,10, 11, 12 and 13, together with those other clauses the survival of which is necessary for the interpretation or enforcement of this Agreement, shall continue to have effect after the end of the Term.
13.1 We make no warranties or representations (whether express or implied by law, statute or otherwise) with respect to the Affiliate Programme, Advertiser Sites, Our Site or any content, products or Services available therein or related thereto or that the Affiliate Programme, Advertiser Sites, Our Site, systems, networks, software or hardware (or that provided to Us by third parties) will be error-free or uninterrupted or with respect to the quality, merchantability, fitness for particular purpose or suitability of all or any of the foregoing.
13.2 For the avoidance of doubt, We make no warranty or representation that the Affiliate Programme or Links will meet Your specific requirements or that You will earn any specific amount.
13.3 You acknowledge that any amount reported as payable to You by the Affiliate Programme are not conclusive, and that such amounts shall be calculated exclusively in accordance with the terms of this agreement.
14.1 This agreement constitutes the entire agreement and understanding of the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to the subject matter of this agreement.
14.2 Each party acknowledges and agrees that in entering into this agreement it, and any documents referred to in it, it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance, warranty, understanding or promise (whether made innocently or negligently) of any person (whether party to this agreement or not) that is not set out in this agreement. Nothing in this clause shall operate to limit or exclude any liability for fraud.
14.3 No failure, delay or omission (in whole or in part) by a party to enforce, exercise or pursue any right, power, privilege, claim or remedy provided under this agreement or by law shall be construed as or constitute a waiver of that or any other right, power, privilege, claim or remedy, nor shall it prevent or restrict the further exercise of that or any other right, power, privilege, claim or remedy in any other instance at any other time or times. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14.4 You shall not without Our prior written consent assign at law or in equity (including without limitation by way of a charge or declaration of trust), sub-license or deal 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 assignment, sub-licensing and/or sub-contracting in breach of this clause shall confer no rights on the purported assignee and shall entitle Us, at Our discretion, to terminate this Agreement immediately on written notice to You and with no liability to You. We may assign Our rights under this Agreement on provision of written notice to You, which We may send by E-Mail to the e-mail address provided by You in your application form (or as subsequently updated by You to Us in the event of any change).
14.5 If any provision or part-provision of this agreement is or becomes or is found by any court or administrative body of competent jurisdiction to be invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the other provisions of this agreement, which shall remain in full force and effect.
14.6 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
14.7 All notices pertaining to this agreement must be in writing and shall be given by e-mail as follows: i) by Us to You at the email address provided by You in your application form (or as subsequently updated by You to Us in the event of any change) and ii) by You to Us at info@Nektans.com. Any notice sent by e-mail shall be deemed received on the earlier of an acknowledgement being sent or one working day from the time of transmission.
14.8 Each party undertakes that it shall not at any time hereafter use, divulge or disclose to any person (except to its professional representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this agreement or as may be required by law, a court of competent jurisdiction or any governmental or regulatory body) any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs which may have or may in the future come to its knowledge and each of the parties shall use its reasonable endeavours to prevent the publication or disclosure of such confidential information. Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under this agreement.
14.9 Nothing in this Agreement is intended to or shall be deemed to create relationship of exclusivity, partnership, joint venture, franchise or employment between the parties, or constitute any party the agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
14.10 You understand that We may at any time (directly or indirectly) enter into marketing agreements with other affiliates on the same or different terms as those provided to You in this agreement and that such affiliates may be similar and competitive to You. You understand that We may redirect traffic and users in any manner that We deem appropriate in Our sole discretion, without any additional compensation to You.
14.11 Each party confirms that it is acting on its own behalf and not for the benefit of any other person or entity.
14.12 Neither party shall make, or permit any person to make, any public announcement (via social media or otherwise) concerning this agreement, its terms or subject matter, without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
14.13 Except as expressly provided elsewhere in this agreement, a person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement. This does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
14.14 The validity, construction and performance of this agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
14.15 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter, formation and enforceability (including non-contractual disputes or claims).
14.16 This Agreement is written and is only available in English. In the event of any discrepancy between the meanings of any translated versions of this agreement, the meaning of this version in the English language shall prevail.