GENTING AFFILIATE PROGRAMME TERMS AND CONDITIONS

 

A.         These Terms apply to each individual(s) or entity’s participation in our Affiliate Programme.

 

B.         By completing the registration form found on Genting’s Website(s) or by creating or continuing to host a unique link from your website(s) to the Genting Website(s) you agree to be bound by these Terms and our Privacy Policy as amended and updated from time to time.

 

C.         You should therefore read these terms and conditions carefully before participating in the Genting Affiliate program and/or navigate away from this page in the event that you do not wish to become an Affiliate on these terms.

 

D.         The Genting Website(s) (as defined below) are operated by Genting Alderney Limited, a company incorporated in Alderney (Company Number 1664) whose registered office is located at Century House, 12 Victoria Street, Alderney, GY9 3UF (“Genting”)

 

 

1           Definitions

 

 

1.1      In this Agreement unless the context otherwise requires, the following expressions have the following meanings:-

 

Active User

means user(s) accessing the Genting Website(s) through the Link(s) and who stake/wager real funds on same, as determined for each calendar month in arrears for the purposes of clause 6.

 

Advertising Rules

means the UK Advertising Standard Authority’s Code of Non-Broadcast Advertising, Sales, Promotion and Direct Advertising, Committee of Advertising Practice Guidance on the rules for Gambling Advertisements and the UK Gambling Commissions Licensing Conditions and Codes of Practice (“LCCP”) all as amended, updated and supplemented from time to time.

 

Affiliate

means the individual(s) or entities which participate in our Affiliate program.

 

Affiliate Website(s)

means the website(s) owned and operated by the Affiliate carrying /displaying the Link(s) to the Genting Website(s) as agreed between the parties. 

 

Applicable Laws

means all legislation, by-laws, regulations and other statutory instruments that may govern or restrict (i) gaming in a territory (including participation in gaming by an Active User from a territory; and (ii) laws applicable to advertising of gaming or gaming offers within any territory. (iii) the collection, retention, storage, processing or transfer of personal data.

Consents

means all consents and/or authorisations require under the Data Protection Requirements and in particular express Opt-In by affiliates own data subjects to the receipt of marketing communications by email and other electronic means.

Data Protection Requirements

means all Applicable Laws relating to the processing of personal data and data privacy, including without limitation the Data Protection Directive (95/46/EC) and the Privacy and Electronic communications Directive (2002/58/EC) in each case as implemented into national laws which, in the case of the United Kingdom, means the Data Protection Act 1998 and the Privacy and Electronic  Communications (EC Directive) Regulations 2003; all guidance and codes of practice issued by the Information Commissioner's office ("ICO") or any supervisory authority from time to time; in addition, the Regulation of Investigatory Powers Act 2000, and the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000, and the equivalent of any of the foregoing in any relevant country, territory or jurisdiction, in each case as applicable.

EEA means the European Economic Area 

Effective Date

means the date of this Agreement or deemed acceptance by you by carrying a link on your Affiliate Website to the Genting Affiliate Website(s), or by completing the registration form found on the Genting Website, whichever is the earlier.

 

Model Clauses

means as defined in clause 8.4.6

“Genting Website(s)”

means, as applicable:

 

www.circuscasino.com

www.gentingcasino.com

www.gentingbet.com; and

such other website(s) as Genting may notify its Affiliates of time to time for the purpose of this Agreement.

 

Intellectual Property Rights (“IPR”)

means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, semi-conductor topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world. 

 

Licensing Objectives

the licensing objectives set out by Section 1 of the UK Gambling Act 2005, namely; (i) the prevention of crime; (ii) gaming fairness; and (iii) the protection of children and vulnerable persons from being harmed or exploited by gambling.

 

Link(s)

means the hypertext link(s) from the Affiliates Website(s) to the Linked Page(s)

 

Linked Page(s)

means the page(s) on the Genting Website(s) that a User’s web browser will generate as a result of clicking on the Link(s).

 

Net Gaming Revenue / NGR

means as defined in clause 6.2 (Payment)

Genting Opt-Out Data

means the lists of email addresses disclosed by Genting to the Affiliate from time to time pursuant to this Agreement for the purposes more particularly referred to in clauses 8.3 and 8.4.

Referral Commission

means the percentage of NGR payable by Genting to the Affiliate for Active Users introduced to the Genting Website(s) via the Affiliate(s) Link(s) in accordance with the commission plan agreed with Genting in writing. This may be amended and updated in accordance with the pre-conditions and deductions from NGR outlined in clause 6.


Regulatory Requirements

means and includes:-

(i) Applicable Laws;

(ii) the Advertising Rules; and

(iii) the Licensing Objectives 

 

Term

means a period from the Effective Date until date of Termination in accordance with this Agreement.

User Information

means:

(i) Navigational information, including but not limited to use of other hyperlinks within or available through the Genting website;

(ii) Transactional information, including but not limited to billing information, including purchases and method of payment; and

(iii) User's internet address and other identifying information such as actual name and address of the User.

 

User(s) 

Means  user(s) accessing the GA Website(s) through the Link(s)

 

 

 

1.2          In this Agreement unless the context otherwise requires:

 

1.2.1           word importing any gender include every gender;

 

1.2.2           words importing persons include firms, companies, and corporations and vice versa;

 

1.2.3 references to an "entity" or "entities" include any company, corporation or other body corporate wherever and however incorporated and established

 

1.2.4           any reference to an enactment includes reference to that enactment as amended or replaced from time to time and any subordinate legislation or byelaw made under that enactment;

 

1.2.5          any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done.

 

2              Licence

 

2.1          Subject to the Affiliate’s ongoing compliance with the provisions of this Agreement (including but not limited to clauses 4, 9, and 12, Genting hereby grants to the Affiliate a non-exclusive, limited, revocable, and non-transferable licence during the Term of this Agreement of applicable approved trademarks, logos and service marks made available by Genting to its Affiliates (“GA Brand Features”), to:

 

                2.1.1       place the Link(s) on the Affiliates Website(s); and

 

                2.1.2       establish Link(s) to the Linked Page(s).

 

                                                (Collectively 2.1.1. – 2.1.2 shall constitute “the Purpose”)

 

2.2          The Licence granted by clause 2.1 (inclusive) shall be exercised solely for the Purpose. For the avoidance of doubt:-

 

2.2.1       the Affiliates right to use the GA Brand Features is strictly limited to the use of pre-approved Icons and Banners containing same;

 

2.2.2       Genting may request and Affiliate shall action any Genting request to amend, adjust, replace or remove GA Brand Features, icons or banners and/or content from the Affiliates Website at any time and any failure to do so shall constitute a material breach of this Agreement;

 

 

2.2.3       Affiliates use of GA’s Brand Features nonetheless remains subject to Genting’s continuing permission at all times.

 

2.3          Both parties agree that the licence granted by clause 2.1 cannot be sub-licensed or assigned by the Affiliate, otherwise than with the Agreement in writing of Genting.

 

3                     Link

 

3.1          The Affiliate agrees to display the Link(s) in a prominent position and/or page of the Affiliates Website(s).

 

4              Affiliate Obligations

 

1.1               The Affiliate hereby agrees and undertakes that:-

 

1.1.1           it shall comply with all relevant Regulatory Requirements are met in its provision of the Link from the Affiliates Website and any related marketing, including but not limited to:-

 

1.1.1.1     ensuring that all advertising to Users is compliant with Applicable (including local) Laws in territories targeted; and

 

1.1.1.2     ensuring that it does not target Users located in territories where gaming (or the marketing of gaming) is prohibited;

 

1.1.1.3     ensuring that it complies with the Advertising Rules

 

1.1.2           it shall not by any act or omission do anything which in Genting’s reasonable opinion is capable of adversely affecting the standing of Genting or any Genting operated Website.

 

1.1.3           it shall not assert the invalidity, unenforceability or otherwise contest the ownership of the GA Brand Features or Genting’s IPR in any action or proceeding of whatever nature, and shall not take any action which may prejudice Genting’s right in the Brand Features or in Genting’s IPR which may render the same generic, or otherwise weaken respective validity or diminish any associated goodwill or other proprietary rights;

 

1.1.4           it shall not apply for a trade or service mark similar to, or reasonably capable of being confused with any trade marks comprising the Icons and Banners or the words “Genting”, “Genting Alderney”, “Genting Stanley”, “Circus Casino”, “Mint Casino”, “Maxims Casino”, “Genting Club” or any other Genting brand.

 

1.1.5           It shall not place pay-per-click bids with any Internet Service Provider on the keywords “Genting”, “Genting Alderney”, “Genting Stanley”, “Circus Casino”, “Circus Poker”, “Genting Bet”, “Genting Casino”, “Genting Poker”, “Genting Club”, “Mint Casino” or “Maxims Casino” or “Resorts World” or similar words, which is either (i) part of the GA Brand Features; or (ii) otherwise proprietary to Genting (including the wider Genting Group of companies).

 

1.1.6           It shall not make any claims representations or warranties in connection with Genting and shall have no authority to and shall not bind Genting to any obligations.

 

1.1.7           It shall not introduce, refer or encourage underage gambling, or Users from territories in which gambling is prohibited by law, or otherwise prohibited by the terms on Genting’s Website(s)

 

1.2               The Affiliate hereby agrees and undertakes that it:

 

1.2.1           shall be solely responsible  for the development, operation and maintenance of its Affiliate Website(s) and for all materials appearing thereon. For example, Affiliate is responsible for ensuring that all materials that appear on its site(s) are not libellous or otherwise illegal.

 

1.2.2           shall comply with any relevant statutory or regulatory, or advertising  and marketing regulations and codes or practice, including, without limitation, the Advertising Rules, requirements of the Alderney Gambling Control Commission, or data protection requirements, and shall comply with any policy notified to it via Genting or otherwise in relation to the same.

 

1.2.3           shall provide Genting from time to time with such details as Genting may require to verify; Affiliates identity, address or ownership of the Affiliates Website(s), standing, or financial details; and such other details as Genting may require for ongoing regulatory, money laundering or internal compliance purposes, without prejudice to the provisions of clause 9.

 

1.3               Affiliate hereby undertakes that it shall indemnify and hold Genting harmless from all claims, damages and expenses (including without limitation, legal fees) relating either to the development, operation, maintenance and contents of its Affiliates Website(s) or from any allegation that its site(s) infringe the IPR rights of third parties. 

 

5              Genting’s Obligations

 

5.1          Subject to the Affiliates ongoing compliance with the provisions of this Agreement Genting hereby agrees that it shall pay the Affiliate’s Commission, as provided by and subject at all times to, the conditions contained in Clause 6 (inclusive).

 

6                     Payment & Process

 

6.1                The Affiliate shall earn Referral Commission (NGR less the deductions outlined at 6.2) at all times subject to the pre-conditions outlined below.

 

6.2                For the purposes of 6.1 & “Referral Commission”:-

 

 “Net Gaming Revenue” / “NGR” shall mean:-

 

A percentage (set out on Genting’s Commission Plans page) of all stakes placed by Active Users on Genting’s Website(s) less winnings (“Gross Gaming Revenue” / “CGR”) less:-

 

6.2.1           gaming duties (as applicable);

 

6.2.2           bonuses;

 

6.2.3           monies paid in the form of duties, taxies or levies to licensing and/or regulatory authorities;

 

6.2.4           third party licensing fees, royalties or progressive jackpot contributions;

 

6.2.5           bad debts;

 

6.2.6           monies attributable to fraud / collusion / improper activity (of Affiliates or Users);

 

6.2.7           charge-backs / transactions reversed by instruction;

 

6.2.8           free bets and/or chips provided to Users as a promotional or marketing activity;

 

6.2.9           network policy fines (if any);

 

6.2.10        tournament overlay costs;

 

6.2.11        network guaranteed promotional and marketing costs, if any;

 

6.2.12        payment services and promotional costs (including age verification costs);

 

6.2.13        customer service costs;

 

6.2.14        any other costs reasonably determined and communicated by Genting.

 

6.3               Payment of the Referral Commission in accordance with and as provided by clause 6.1 shall at all times be conditional upon the NGR exceeding £100 in any monthly period. For the avoidance of doubt Genting reserves the right to hold over any NGR (whether or not exceeding £100) in respect of any part month to the next full monthly period / or period in which NGR exceeds £100 in aggregate at its sole discretion.

 

6.4               In the event that Affiliate accrues negative return(s) for NGR, Genting reserves the right at its sole discretion to withhold payment under clause 6.1 and/or set off negative returns against any future NGR and/or to pay Affiliate NGR less prior month(s) negative returns in the event that:-

6.4.1 Affiliates have fewer than 5 active referred users during any one month; or

6.4.2 Affiliates have fewer than 15 active referred users, any one of which has online deposits during a monthly period of more than £5000 (currency equivalent or greater), where the basis of the agreement between Genting and Affiliate is that Affiliate is to introduce VIP casino players.

6.5               All amounts payable by Genting pursuant to this Agreement shall (subject to deduction of Gaming Duty at source, as per NGR definition at 6.2) be inclusive of all applicable taxes. For the avoidance of all doubt the Affiliate hereby agrees that it shall pay any taxes chargeable/payable, levied or claimed on its receipt of Referral Commission.

 

If any claim, assessment, demand or claim is made against Genting (or the wider Genting Group) for payment of income tax, national insurance contributions, VAT or similar contributions due or in connection with the Referral Commission then the Affiliate hereby agrees that it shall indemnify Genting (and Genting Group, meaning throughout,  Genting Berhad and its group companies) against any liability assessment, demand, or claim, on a full and continuing basis, notwithstanding termination of this Agreement, together with all costs and expenses thereon and any penalty fine or interest incurred or payable by Genting (or Genting Group Companies) in connection with or in consequence of any such liability assessment or claim.

 

6.6               Both parties agree that Affiliate shall not benefit from traffic known or suspected to have not been generated in good faith, whether or not it causes Genting damage. Genting reserves the right to retain all amounts due to the Affiliate or to set-off against amounts due to the Affiliate under this Agreement if Genting has reasonable cause to believe that traffic and/or elements of NGR has been caused or generated other than in good faith, even if the Affiliate has not knowingly generated such traffic. Genting reserves the right to withhold commission in respect of such traffic.

 

6.7               Both parties agree and acknowledge that Affiliates Referral Commission is at all times subject to User(s) continuing compliance with Genting’s terms and conditions of play, as updated on the Genting Website(s) from time to time.

 

6.8               Both parties agree and accept that no Referral Commission will be payable to Affiliate in event that (i) Affiliate is in breach of these terms; (ii) User’s use of Genting Website(s) is in breach of terms and conditions of play; or (iii) either Affiliate or User is reasonably suspected of fraud, cheating, collusion or other impropriety in respect of the Website(s) or gaming conducted thereon.

 

6.9                Both parties agree and acknowledge that as a condition to payment of Referral Commission that:-

 

6.9.1           Genting reserves the right to make reasonable changes to its commission page and rate, including to the levels of commission due to Affiliates and relevant requirements for entitlement from time to time, and any such changes shall take affect immediately on their being changed on Genting’s commission page.

6.9.2           Genting may engage the services of a third party (currently “Income Access”) to provide both the affiliate platform and system maintenance. We have service levels in place and expect these to be upheld but ultimately we do not have total control over these services and you agree that we cannot be held responsible for any failures arising from such third party services. You agree to cooperate with us, and with our third party service providers.

 

6.9.3           We shall make reasonable efforts to make any payments due to you in a timely manner. However, we shall not be liable for occasional delays or delays outside of our control. For example, any changes in the contact or banking details provided by you may give rise to a delay of up to 60 days in making any payments due. Where you become aware of any overdue payments due to you, please contact us immediately and we will seek to resolve the matter as soon as practicable.

 

6.9.4           We shall use reasonable endeavours to make payments due to you using the payment details provided to us. However, in certain circumstances we may be unable to make payments to you for reasons outside of our control (including but not limited to instances where the bank account details provided by you are inaccurate or incomplete). Where this occurs, we shall make reasonable efforts for a period of up to six (6) months to contact you via the contact details last provided by you to Genting to obtain alternative payment details. If we are still not in a position to make the payments after this period, we may close or suspend your account without further notice and you shall be deemed to have forfeited any entitlement to payment. 

 

6.9.5           If an error is made in the calculation of your share of the revenue share, Genting reserves the right to correct such calculation at any time and to reclaim from you any overpayment made by Genting to you (including, without limitation, by way of set off against future payments which might otherwise be due to you.

 

6.9.6           Genting may withhold or void transactions by Users (and ensuing Referral Commission to Affiliates) which is accrued by or in connection with fraudulent, collusive, or improper activity on the Genting Website(s) or otherwise accrued in breach of Genting Website(s) terms and conditions.

 

7              Recording

 

7.1          The Affiliate agrees that it shall, subject to Genting’s instruction, register and record each time a web browser on the internet or unique IP address requests the Link/ Genting Website(s). The Affiliate shall provide this information to Genting on a monthly basis/or on request as directed by Genting. The parties agree not to artificially inflate the number or reported requests through their own visits to the Link/Genting Website(s) page or adopt other surreptitious means to inflate the same.

 

8                     8.1  Data and privacy

 8.1   For the purposes of this clause 8:-


8.1.1 “data controller” , “data processor” , “data subject” , “personal data” and “processing” shall have the meanings or the closest equivalent meanings ascribed to them in the Data Protection Requirements;


8.1.2 the parties acknowledge and agree that each party will process certain personal data in connection with this Agreement, including without limitation personal data about Users and the Genting Opt-Out Data (“Agreement Personal Data”);


8.1.3 the parties acknowledge and agree that factual arrangements between them will determine whether each party is a data controller or a data processor of the Agreement Personal Data


8.2   The parties undertake to comply with the Data Protection Requirements and any other related legislation and guidance in performance of this Agreement.


8.3    The Affiliate warrants and confirms that:-


8.3.1 without prejudice to clause 8.1.3 that the Affiliate will process the Opt-Out Data as a data processor on behalf of Genting when it uses it for the Genting Opt-Out Data Purpose;


8.3.2 without prejudice to clause 8.1.3 the parties acknowledge and agree that each party shall act as a separate data controller in respect of the processing of Agreement Personal Data (other than the Genting Opt-Out Data insofar as it is used for Genting Opt-Out Data Purpose) in connection with this Agreement including to send Genting branded communications to individuals (the “Purposes”);


8.4 The Affiliate warrants and agrees that it shall and shall procure that its sub-contractors shall:-


8.4.1 obtain and maintain all Consents for any and all marketing communications to / for its database so as to comply with the Data Protection Requirements prior to causing or permitting any marketing communications or initiatives to be sent to the relevant recipient(s);


8.4.2 only process the Genting Opt-Out Data to the extent required in order to ensure that no communication is sent to any individual whose email address forms part of the Genting Opt-Out Data (the “Genting Opt-Out Data Purpose”) and for no other purpose;


8.4.3 only process the Genting Opt-Out Data in accordance with Genting’s instructions;


8.4.4 process the Agreement Personal Data in accordance with the Data Protection Requirements;


8.4.5 (where Affiliate is based within the EEA) not cause or permit the Genting Opt-Out Data to be transferred outside of the EEA without Genting’s prior written consent;


8.4.6 (where Affiliate is based outside the EEA) enter into un-amended copies of the following clauses with appendices completed by Genting in respect of the Genting Opt-Out Data:-


8.4.6.1 Standard contractual clauses for the transfer of personal data from the European Union to processors established in third countries  (controller to processor transfers), as set out in the Annex to Commission Decision 2010/87/EU; and/or


8.4.6.2 Standard contractual clauses for the transfer of personal data from the European Union to controllers established in third countries (controller to controller transfers) as set out in the Annex to Commission Decision 2004/915/EC


(together the “Model Clauses”)


The parties acknowledge for the purposes of this clause 8.4.6 that in the case of any conflict between any of the provisions of this Agreement and the Model Clauses (above) the provisions of the Model Clauses shall prevail.


8.4.7 implement and maintain appropriate technical and organisational measures to protect against  the unauthorised or unlawful processing of or access to the Agreement Personal Data and accidental loss, destruction, damage, alteration  or disclosure of the Agreement Personal Data and shall ensure that such measures shall at all times be appropriate to the harm which might result from any unauthorised or unlawful processing and such as to ensure the prevention of accidental loss, destruction, or damage to the Agreement Personal Data and fully commensurate with the nature of the Agreement Personal Data which is to be protected;


8.4.8   if requested to do so it shall provide a written description of the technical and organisational measures employed by it for the processing of the Agreement Personal Data;


8.4.9   ensure that all individuals employed, engaged or retained by it to access the Agreement Personal Data are informed of the confidential nature of the Agreement Personal Data and take steps to help comply with the Data Protection Requirements and the obligations in respect of same set out within this Agreement;


8.4.10 ensure that no individuals, employed, engaged or retained by it shall publish, disclose, or divulge any Agreement Personal Data to a third party absent Genting’s formal prior consent in writing;


8.4.11 time being of the essence comply promptly with Genting’s instructions in respect of the Agreement Personal Data and in any event it agrees that it shall notify Genting within 3 working days if it receives any correspondence  from a data subject to exercise any right in respect of the Agreement Personal Data and/or a complaint or request relating to the processing of the Agreement Personal Data and provide Genting with full cooperation and assistance in relation to any request as may be required;


8.4.12 upon receipt of any request or correspondence from the ICO or other supervisory authority or governmental or regulatory body, in relation to the processing of Agreement Personal Data:-


8.4.12.1 promptly inform Genting that it has received such request or correspondence;


8.4.12.2 forward such notice or correspondence to Genting within three (3) working days from the date of receipt; and


8.4.12.3 provide any information and/or assistance as reasonably requested by Genting to enable it to respond to the request or correspondence;


8.4.13 promptly notify Genting of any actual or suspected, threatened or “near miss” incident of accidental or unlawful destruction or accidental loss, alteration, unauthorised or accidental disclosure of  or access to the Agreement Personal Data or other breach of clause 8.4.7 (“Security Incident”) and promptly provide Genting with all information in its/their possession or control in relation to the Security Incident and with all assistance and cooperation as may reasonably be required in order for Genting to seek to mitigate the effects of the Security Incident, comply with the Data Protection Requirements and adhere to guidance issued by the ICO or other supervisory authority or governmental or regulatory body with regard to security breach management and reporting, and not make any announcement or publish or broadcast any notice of information about the Security Incident or authorise or permit the same;


8.4.14 once the Affiliate has processed the Genting Opt-Out Data for the Genting Opt-Out Data Purpose, or following expiry or termination of this Agreement the Affiliate shall and shall procure that all sub-contractors shall promptly and permanently delete all of the Genting Opt-Out Data from its/ their computer systems (including without limitation servers, hardware and mobile devices) and from digital media in its/ their possession or control (including without limitation DVD’s, CD’s and USB’s) and promptly destroy or deliver up to Genting all hard copies of the Genting Opt-Out Data in its/their possession or control, and promptly and in any event within 14 days certify in writing to Genting that this has been done;


8.4.15  ensure the terms, copy, and/or get-up of any communication sent to any individual in connection with this Agreement will make clear to recipients that the sender is the Affiliates own undertaking and such communication is sent in accordance with Consents obtained by the Affiliate;


8.4.16 ensure that all communications sent to individuals in connection with this Agreement will include clear and simple means by which the individual may unsubscribe all such communications in accordance with the Data Protection Requirements;


8.4.17 not send or undertake any more than 3 communications or initiatives to its database which advertise Genting offers or promotions;


8.4.18 immediately upon request cease sending any communications to any individual whose email address is shared with the Affiliate with the direction that it never be used going forward for any marketing communications purpose (including for the avoidance of doubt as may be communicated from time to time by Genting to the Affiliate outside of the formal Genting Opt-Out Data.


8.5  Subject to Genting and its nominated representative(s) entering into reasonable confidentiality obligations, the Affiliate shall and shall procure that all sub-contractors shall upon request of Genting,  on reasonable notice and during regular business hours, at no cost to Genting ensure that its and/or their staff are made available to Genting and its nominated representative(s) and shall provide them with access to all relevant information (whether in electronic or hard copy form) as may be reasonably required in order for Genting, or its appointed representative(s), to assess whether the processing of Agreement Personal Data is in accordance with the obligations set out in this clause 8 (or in the case of sub-contractors, the relevant sub-contract) and shall permit Genting and its nominated representative(s) to inspect the Affiliates premises and those of the sub-contractors and all equipment and procedures relating to the processing of Agreement Personal Data at its/their premises and shall procure that its/their staff shall provide all reasonable cooperation and assistance to Genting and its nominated representative(s) in relation thereto.


8.6 The Affiliate shall indemnify Genting on demand from and against all claims, liabilities, costs, expenses, damages, fines, monetary penalties and losses suffered or incurred by Genting and all interest penalties and legal and other professional costs or expenses suffered or incurred by Genting as a consequence of Affiliates failure to adhere to this clause 8.


9                    

9   Representations and Warranties

 

9.1            The  Affiliate represents and warrants to Genting that as of the Effective Date of this Agreement, that:

 

9.1.1           Affiliate has duly registered the domain name of the Affiliate Website(s) with all applicable authorities;

 

9.1.2           Affiliate Website(s) (including without limitation all IPR, content, text, images, software and other materials which Affiliate has placed on Affiliate’s Website(s) is proprietary or licensed to or licensed by the Affiliate and does not and will not infringe upon or violate any IPR, copyright, patent, trade mark, or other proprietary mark of a third party, or any applicable law, regulation or non-proprietary third-party right. The Affiliate hereby agrees to fully indemnify Genting Group for any loss or damage suffered by the Genting Group for breach of this warranty.

 

9.1.3           Any information provided to Genting (including, without limitation, personal information of Users) is true and accurate in all respects and that it shall update personal information at any time from its Affiliate account by clicking the “Update Profile” button and will do so in the event of change of that information.

 

  9.1.4           It shall comply in full with its obligations set down in clause 8.

 

9.2               Genting hereby disclaims any representations, warranties, whether express or implied regarding the subject matter of this Agreement including any implied warranties of quality, fitness for a particular purpose, or implied warranties arising from a course of dealing or course of performance. 

 

 

10           Termination

 

10.1        Either party may terminate this Agreement at any time:-

 

10.1.1     upon 3 days notice in the event of breach of this Agreement; or

 

10.1.2     upon 5 days notice without cause or in the event of the other’s insolvency.

 

10.2        Genting may terminate this Agreement with immediate effect, where:-

 

                10.2.1     the Affiliate has breached or is likely to breach Regulatory Requirements or the requirements of clause 8.

 

10.2.3     the continuance of this Agreement is or is likely to impair Genting’s business goodwill or general business reputation; or

 

10.2.4     any regulatory or statutory approval or licence held by Genting is or is likely to be impaired as a consequence of this Agreement.

 

10.2        Fortwith on termination of the Agreement, the Licence granted by clause 2 shall immediately terminate, and the Affiliate  agrees that it shall:-

 

                10.2.1     disable the Link(s);

 

                10.2.2     remove the Link from the Affiliate Website(s);

 

10.2.3     immediately remove all Icons and Banners and Link(s) from the Affiliates Website(s);

 

10.2.4     immediately return or destroy (as appropriate) all Confidential Information provided to it by Genting pursuant to clauses 8 and 12

 

10.2.5     destroy any copies of material from the Genting Website(s) which are in the Affiliates possession or control

 

10.3        For the avoidance of doubt Genting may terminate this Agreement immediately without notice if:-

 

10.3.1 it determines, in its sole discretion that any content of the Affiliates Website(s) or the Affiliates use of the Link(s) is unsuitable or is or is likely to contravene Regulatory or Data Protection Requirements. “Unsuitable” sites shall include but are not limited to those that are aimed at children, display child pornography or other illegal sexual acts, promote violence or discrimination, promote illegal activities, or violate IPR rights (of Genting or a third party). 


10.3.2 it determines, at its sole discretion, that any content on the Affiliates Website(s) (including without limitation, content provided to the Affiliate by Genting under this Agreement and the Affiliates use of the Link(s) on the Affiliates Website(s), is or is reasonably likely to be in breach of any Applicable Laws (including data protection legislation), Regulatory Requirement, or other regulatory or statutory requirement as may apply from time to time. 


10.3.3 it reasonably determines that you are for any reason unsuitable to be an Affiliate or you have otherwise breached the terms of this Agreement.


10.4    Clauses 2.3, 4.3, 6.6, 8, 9, 10.2, 11, 12, 13.7 and 13.8 shall survive termination of this Agreement, Clause 12 shall endure for a period of three years from date of termination.


 

11           Liability

 

11.1        Save as provided by clauses 4.3, 8, 9, 11, and 12, and save as to liability accrued by either party in respect of fraud, death or personal injury, neither party nor their affiliates shall be liable under this Agreement, under contract, negligence, strict liability or other legal or equitable duties  for any special, incidental or consequential damages, including without limitation, damages for loss of profits, anticipated profits, revenues, anticipated savings, goodwill, business opportunity, or loss of data.

11.2        Subject at all times to the general limitation at 11.1, Genting’s maximum liability under this Agreement for all claims arising from this Agreement shall be limited to any outstanding Referral Commission between Affiliate and Genting as at date of termination.

 

12           Confidentiality

 

12.1        Except as expressly provided in this Agreement, and subject at all times to clause 8 and the Data Protection Requirements, each party undertakes to treat as confidential and keep secret all information of the other party including without limitation personal data received from  the other party (the “Disclosing Party”) marked confidential or which may reasonably be considered to be confidential that is disclosed to the recipient party by the Disclosing Party either before or after commencement or expiry of this Agreement (the “Confidential Information”). The Receiving Party shall protect the Confidential Information with the same degree of care as it employs with regard to its own Confidential Information, provided that the provisions of this clause shall not extend to any Confidential Information  which was lawfully and rightfully in the possession of either party prior to the commencement of this Agreement, or which is/was public knowledge other than by reason of breach  of this obligation.

 

12.2        The foregoing obligation of confidentiality shall remain in full force and effect for a period of three years following termination of this Agreement

 

13           General

 

13.1       Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of the other, or to otherwise bind the other in any way.

 

13.2        All notices in/under this Agreement shall be given in writing. Notice can be given by fax or email to the Genting or Affiliate representative, provided each respective party notifies the other of appropriate contact.

 

13.3        Affiliate may not assign, transfer, or sub-licence any obligations or benefit under this Agreement (including but not limited to the Licence granted to the Affiliate by clause 2) without consent of Genting in writing.

 

13.4        If any provision of this Agreement is or become prohibited by law or is judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required be severed from the Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity and enforcement of the remainder of this Agreement.

 

13.5        This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of this Agreement.

 

13.6        Save where expressly indicated this Agreement is not intended to confer any rights on third parties.

 

13.7        This Agreement may be executed in any number of counterparts or duplicates, each of which shall be an original, and such counterparts or duplicates shall together constitute one and the same agreement.

 

13.8        The Affiliate acknowledges and agrees that Genting’s  business  relies upon the protection of its IPR and Confidential Information  and that in the event of a breach or threatened breach of Confidentiality or misuse of its IPR, that Genting may be caused irreparable damage, such that damages may not be an adequate remedy for any breach of by Affiliate of the provisions of this Agreement. In such instances Genting shall be entitled without proof of special damage to seek the equitable remedies of injunction, specific performance or other equitable relief should the need arise.

 

 

 

13.9        The construction, validity and performance of this Agreement and/or Terms will be governed by the laws of England and the Affiliate submits to the exclusive jurisdiction of the English courts. Genting may however, bring action against the Affiliate in the court of any other jurisdiction if and as appropriate.