Terms Alert – Bewinners Affiliates

Should the GAU boycott and rogue Bewinners (Bwin)

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Updated to add that Affiliate Guard Dog has added Bewinners Affiliates to their rogue list.

Terms and Conditions -
Bewinners – the Affiliate Program of the bwin Group
(“Contractual Relationship”)
§ 1
General
(1) bwin Interactive Entertainment AG (hereinafter referred
to as “bwin AG”) and all its subsidiaries (hereinafter
collectively referred to as “the bwin Group”)
have over 20 million registered customers in more than
25 core markets. The operational business of the bwin
Group is carried out by subsidiaries, associated companies
and joint-ventures with the involvement of the
bwin-Group on the basis of licences (e.g. Italy and Gibraltar)
(each of them hereinafter referred to as “the
Operators” or “bwin”). Full details about the bwin
Group can be found on its investor relations website at
www.bwin.org.
(2) Based on various licenses, bwin respectively the jointventures
offer, amongst others, on the platforms
www.bwin.com, www.bwin.it, www.bwin.com.ar,
www.bwin.com.mx and www.betoto.com (hereinafter
referred to as “the bwin Website/s”) sports betting,
poker, casino games, soft and/or skill games.
(3) The Partner maintains and operates one or more websites
on the internet (hereinafter referred to as “the
Partner Website/s”) and is interested in advertising
the bwin Website. However, the decision which concrete
website(s) shall be advertised by the Partner, shall be
taken by bwin AG according to economic and legal motives.
§ 2
Subject Matter of the Contractual Relationship
(1) Subject matter of this Contractual Relationship shall be
the implementation of Links and other Advertising Instruments
as set out in para 4 provided by bwin on the
Partner Website with the aim of establishing an advertising
cooperation for the mutual benefit of the Parties
hereto. The cooperation shall be non-exclusive.
(2) bwin AG shall inform the Partner about the respective
bwin Website(s) that shall be advertised by the Partner.
bwin AG is, at any time, entitled to replace the bwin
Website by other website(s) operated by the bwin Group
and/or a joint-venture.
(3) The Contractual Relationship is concluded between the
Partner and the Operator, selected by bwin pursuant to
para 2. The Partner may have several Contractual Relationship
Operators depending on the number of bwin
Websites selected by bwin AG. In such case, the Partner
shall have a separate online wallet for each Contractual
Relationship.
(4) The Operator shall provide the Partner with a selection
of advertising instruments e.g. logos, banners, graphics,
texts with links, bwin odds (eg in XML feeds) and other
sales enhancing tools (hereinafter referred to as “Advertising
Instruments”). Upon implementation of
one or more of the Advertising Instruments on the Partner
Website, the Partner offers the users of the Partner
Website the opportunity to directly access the bwin
Website, place bets and/or play games by clicking on the
respective symbols (hereinafter referred to as “the
Link”).
(5) The Partner shall incorporate the Link of its choice
provided within the scope of these Terms and Conditions
in the Partner Website, thus establishing a connection
to the bwin Website. By means of the assigned link
codes, bwin’s registration system identifies customer referrals
from the Link of the Partner Website. The
Links may refer to various coordinated areas.
(6) The Operator shall be entitled to modify, limit, or
provide new Advertising Instruments at any time.
§ 3
Preconditions and Formation of the Contractual
Relationship
(1) bwin expressly states that the promotion or soliciting
of bets and/or games of chance including poker is
subject to legal restrictions in some countries and
may even be prohibited in some cases. Thus, the
Partner acknowledges that should the promoting or
soliciting of bets and games of chance including
poker or the participation in prize games be prohibited
under the rules and regulations of its country of
domicile or be permissible only under certain preconditions
not met here, the Partner must not accept
these Terms and Conditions and must not enter into
the Contractual Relationship with bwin and shall,
consequently, also not be entitled to post the Link on
the Partner Website. Should any disadvantages whatsoever
arise for bwin or the Partner due to disregard
of the relevant prohibitions in the country of domicile
of the Partner, the Partner shall be exclusively liable
for such disadvantages.
(2) bwin provides an online application form which,
provided that the preconditions under § 3 para 1 are
met, is to be transmitted by the Partner to bwin electronically.
Before transmitting the application form,
the Partner must accept these Terms and Conditions.
After transmission of the completed form, the Partner
shall be examined by bwin. In case of approval,
confirmation thereof shall be sent to the Partner by
electronic mail. With the approval of bwin the Contractual
Relationship between bwin and the Partner
is concluded.
§ 4
Licence
(1) Upon conclusion of this Contractual Relationship, the
Partner shall be granted a right, non-transferrable
and terminable at any time, entitling him to use the
Link provided for the purpose of establishing links
from the Partner Website to the bwin Website. This
right does not include the right to modify or manipulate
the Link in any way whatsoever without bwin’s
prior written consent. The licence for the use of the
Link (and any further advertising material) shall expire
upon termination of the Contractual Relationship.
These Terms and Conditions shall not allow the
Partner to use the rights of bwin for any other purposes
as established herein without bwin’s prior written
consent.
(2) The preparation and subsequent use of of additional
advertising material and Advertising Instruments relating
to bwin is only permissible with bwin’s prior
consent.
(3) The copyright of the design of the Link provided
within the scope of the Contractual Relationship as
well as for all other information made accessible on
the bwin Website shall remain solely with bwin or the
bwin Group respectively.
(4) A change of the URL address of the Partner Website
shall not constitute a change of these Terms and
- 2 – August 2010
Conditions and the Contractual Relationship in whole
and shall not affect the rights and obligations arising
from these Terms and Conditions.
§ 5
Commission
(1) In return for the implementation of the Link in accordance
with these Terms and Conditions, the Partner
shall receive a commission (“the Commission”), consisting
of the Revenue Share (para 2) less the Bonus
Costs (para 5). The Partner shall be entitled to receive
the Commission beginning with the date a customer becomes
a Paying Active (as defined in para 3) and ending
with the date of termination of the Contractual Relationship.
(2) The Revenue Share shall be calculated as a percentage
of the Revenue Base generated by the Paying Actives in
the previous calendar month. The percentage rate of the
Revenue Share shall depend on the number of new Paying
Actives acquired by the Partner in the previous calendar
month. The respective percentages are listed on
bwin’s website. bwin reserves the right to change the
percentages at any time. However, starting three years
after the date a customer has become a Paying Active
and ending with the termination of the Contractual Relationship,
the percentage rate of the Revenue Share for
this customer shall be reduced to a fixed rate of 5%.
(3) Paying Actives are those customers of bwin who i) have
not yet had a player account with bwin and ii) have accessed
the advertised bwin Website using the Link located
on the Partner Website, iii) have properly registered
with bwin within 30 days after their first access to
the bwin Website by using the Link, iv) have made real
money transfers to their player´s accounts and v) have
performed at least one real-money activity within 90
days after registration.
(4) The term “Revenue Base” shall mean the gross profit
generated in Sportsbook, Poker, Games and Casino
from the Paying Actives (less any player winnings) or
less (i) any taxes or duties, (ii) any third party software
licensing costs, (iii) any marketing, (iv) any administration
and (v) any other transaction costs, including bank
charges and recovered charge backs.
(5) Furthermore, Bonus Costs granted to Paying Actives as
well as to customers who become Paying Actives thereafter
are deducted from the Revenue Share in the same
proportion as stipulated in para 2. “Bonus Costs”
means any bonus money granted by bwin to Paying Actives
as well as to customers who become Paying Actives
thereafter such as deposit bonuses, reload bonuses or
other promotion bonuses and the b’inside points. The
Bonus Costs will be deducted as soon as the player’s account
is credited with the bonus. “b’inside points”
means any loyalty point granted to the Paying Actives in
connection with the b’inside loyalty program of bwin.
(6) A negative Revenue Base will be balanced to zero and
will not be carried over to the next calendar month. A
negative Commission, however, will be carried over to
the next calendar month. In case of termination of this
Contractual Relationship, a negative Commission, if
any, is payable within one month after the termination
date.
(7) In the event that bets and/or games are not executed or
reversed for reasons beyond bwin’s control, the Commission
shall be cancelled subsequently and charged in
the following invoice.
§ 6
Terms of Payment
(1) The Commissions shall be calculated by the Operator
and shall – if possible – be credited to the online wallet of
the Partner until the middle of the following calendar
month. However, the Operator shall not be held liable
for any delay due to technical reasons and events which
are beyond the Operator’s reasonable control. After
crediting the Commission to the online wallet, the
Partner may invoice the Commission electronically.
The Commission can only be invoiced if the credit on
the respective online wallet has reached a minimum
amount of EUR 50,–. If this requirement is not met
within one month, the Commission shall be carried
over until a total of EUR 50,– has accumulated for
the respective online wallet.
(2) With the personal password and the user name chosen
by the Partner and upon conclusion of this Contractual
Relationship pursuant to § 3 para 2, the
Partner shall be granted access to his online wallet on
the Partner’s login area on www.bewinners.com. The
online wallet contains information about the actual
Commission.
(3) If no online invoice is created by the Partner within
12 months after credit of the Commission to his
online wallet, the Commission shall be forfeited and
will be deducted from his online wallet. This regulation
also applies for Commissions older than 12
months, which have been transferred from former
accounts of the Partner. Furthermore, all other demands
and/or claims of the Partner against bwin
shall be forfeited after 12 months after occurrence.
(4) The Commission shall be paid out by the Operator in
the relevant currency (including VAT) depending on
the country where the Operator is domiciled. In case
of www.bwin.com the Commission shall be paid out
in Euros (including VAT).
§ 7
Rights and Obligations of bwin
(1) bwin shall bear any costs arising in connection with
the graphical representation of the Link.
(2) bwin provides the Partner with proper link and Advertising
Instruments.
(3) bwin reserves its right to refuse the access of the
Partner/Customer in certain cases at its discretion.
(4) bwin shall administrate the turnover generated via
the Links, record Revenue Base and the total amount
of the Commission earned via the Link, provide the
Partner with performance statistics online, and handle
all customer services related to the business.
§ 8
Rights and Obligations of the Partner
(1) The Partner represents and warrants that the information
provided to bwin in the online application
form is true and complete. The Partner shall
promptly update such information if all or any part of
it changes.
(2) The Partner confirms that it operates the Partner
Website under its own name and that it is fully and
without any restrictions authorised to dispose
thereof.
(3) The Partner shall assume all costs incurred for the
implementation of the Link. In addition, the Partner
undertakes to bear the costs related to the access to
the Partner Website and display or delivery of the advertisements.
(4) The Partner shall be responsible for the proper technical
incorporation of the Link and for the technical
operation of the Partner Website.
(5) The Partner shall be responsible for the development,
operation, and maintenance of the Partner Website
as well as for all material appearing on the Partner
Website.
- 3 – August 2010
(6) The Partner shall guarantee that the material shown on
the Partner Website does not infringe any rights of third
parties (including copyright and trademark rights, the
general right of personality or any other rights) and that
the Partner Website does not promote violence, sexually
explicit material or discrimination based on race, sex,
religion, national origin, physical disability, political
content, sexual orientation, or underage commercial
material or any illegal content.
(7) The Partner shall not be entitled to present the Partner
Website in such a way that it might evoke any risk of
confusion with the bwin Website or convey the impression
that the Partner Website partly or fully originates
from bwin.
(8) The Partner may not use the name of the Operator or
other terms or trademarks that any company of the
bwin Group is entitled to in any other way than in connection
with the implementation of the Advertising Instruments
on the Partner Website. In this respect, the
Partner shall particularly refrain from using terms that
are confusingly similar to those employed by bwin.
(9) The Partner understands that bwin will not cooperate
with a Partner using a domain or subdomain which is
confusingly similar to “bwin”, “betandwin”, “betoto”,
“sajoo” or any other protected trademark and/or name
right which belongs to the Operator or the bwin Group.
(10) The Partner shall consider the trademarks and name
rights of the Operator and the bwin Group when conducting
a “paid search”-campaign in order to improve
its rankings at search engines. The Partner agrees not to
use keywords that are similar to “bwin” or any other
protected trademark and/or name right belonging to
bwin, including but not limited to: “bwin”, “bewin”
“win”, “b-win”, “biwn”, “betandwin”, “betadnwin”,
“bet&win”, “betwin”, “betoto”.
(11) The Partner acknowledges and agrees that the Operator
may at any time enter into agreements with other partners
on the same or different terms as those provided to
the Partner herein and that such other partners may be
competitors to the Partner.
(12) If bwin determines, at its sole discretion, that the Partner
has engaged in any form of spamming or advertises
bwin’s services in any other unauthorized way, bwin
may (without limiting any other rights or remedies
available to it) withhold any Commission otherwise
payable to the Partner within the framework of this
Contractual Relationship and/or terminate this Contractual
Relationship with immediate effect upon its notice
at any time during the term of this contract.
(13) The Partner may not act in such manner to pose a risk
to the integrity of bwin.
(14) The Partner shall keep the personal password and the
user name confidential.
(15) The Partner undertakes to use the Advertising Instruments
only for the purposes of this Agreement as defined
in § 2 and not provide them to any third party.
§ 9
Confidentiality
(1) All information, in particular business and financial
data, lists of users, as well as price and sales information
shall be treated confidentially. These details must not be
used for own commercial or other purposes, neither directly
nor indirectly.
(2) This shall not apply to such information that is generally
known or may be retrievable via publicly accessible
sources, which, however, do not constitute sources of
the respective contracting party. Each Party shall have
the right to pass on this information if ordered by court,
if the proliferation of such information is effected to
persons who are subject to a statutory duty of secrecy,
or if the information is required to be disclosed by
law.
(3) The Partner shall undertake to comply with the provisions
pursuant to the Data Protection Law and the
data protection regulations of the Telecommunications
Law.
§ 10
Term and Termination
(1) This Contractual Relationship enters into force upon
acceptation of the Partner’s application by the Operator
and is concluded for an indefinite period of time.
(2) The Contractual Relationship may be terminated by
either Party at any time without cause by giving a
thirty (30) days prior notice sent by electronic mail.
(3) The Contractual Relationship may be terminated by
bwin with immediate effect in cases of fraud (or suspected
fraud) pursuant to the regulations set out in §
11 or any breach by the Partner of the obligations (especially
pursuant to § and rules of these Terms and
Conditions.
(4) In case of termination, the Commission shall be
calculated until the date of termination and the Partner
may create an electronic invoice until the end of
the calendar month following the termination. After
expiration of that calendar month, no more invoices
may be created by the Partner and the Partner is not
entitled to any further refunds or any other claims for
compensation against bwin after such termination. If
the Commission does not exceed the minimum
amount of EUR 50,–, no invoice can be created by
the Partner and the Commission shall be forfeited to
bwin’s benefit.
(5) In case of termination of the Contractual Relationship
by bwin with immediate effect pursuant to § 10
para 3, the Partner shall not receive any open Commission
from the day of termination, cannot create
any invoice and the access to his online account shall
be denied with immediate affect. The Partner will be
informed about the termination of the Contractual
Relationship with immediate effect by electronic
mail.
(6) bwin shall be entitled to counterbalance any Commissions
still open with any claims against the Partner.
(7) The account of the Partner will be closed automatically
and the Contractual Relationship is automatically
terminated if during three successive months no
new Paying Actives are generated by the Partner. The
Partner will be informed by bwin via electronic mail
after two successive months without generation of a
new Paying Active that 30 days later the Partner’s account
will be closed and the Contractual Relationship
will be terminated automatically, if during the following
30 days no New Paying Active will be generated
by the Partner. The remaining money on the online
wallet will not be transferred to the Partner, if he did
not create an electronic invoice until the end of the
month following the closing of the account.
(8) In case of termination of this Contractual Relationship,
the Partner shall remove all implemented bwin
links, as well as any other advertising material as
names, symbols, logos or any other material, graphics
and content, licensed or created by bwin and/or provided
to the Partner by bwin in connection with this
Contractual Relationship. He shall have no right of
retention or contest. The Partner shall have no more
access to his online wallet, which will be closed at the
end of the month following the closing of the account.
- 4 – August 2010
§ 11
Rights and Obligations after Termination
The Partner is obliged to return upon expiry or termination
hereof in full and without retaining any transcripts and copies
of all documents received containing the Advertising Instruments
and drawn up within the scope of the Contractual
Relationship. In particular, the Partner may not use for own
business purposes or make available to third parties (for
consideration or free of charge) any information on his activities
for and/or on any data related to bwin. The Partner shall
cease any activity concerning promotion of bwin.
§ 12
Fraud
(1) The Partner shall not receive any Commission and the
Contractual Relationship is terminated with immediate
effect pursuant to § 10 if bwin suspects or can determine
that one of the following fraudulent activities has taken
place:
(a) Fraudulent activities by the players include, but
are not limited to, the following: charge backs, incorrect
player data, minor players, chip dumping,
money laundering;
(b) Fraudulent activities by the Partner include, but
are not limited to, the following: if the Partner is
also registered as a player – e.g. if the Partner and
a Paying Active have the same IP address, if bwin
therefore has doubt about the true identity of the
Partner and if the Partner is not able to provide
bwin with appropriate identification to effectively
verify his identity.
(c) Fraudulent activities in general include, but are
not limited to, the following: multiple subscriptions
from a single e-mail address, subscriptions
with the same credit card number, sequential
names or patterns of names, many subscriptions
from a specific website within a short time span,
subscriptions from employees or other parties related
to the Partner and multiple attempts to subscribe
from the same credit card.
(2) In the event bwin reasonably deems that a fraud has
occurred in relation to the generation of the Commissions,
bwin shall notify the Partner promptly of the nature
of the fraud and – if known and subject always to
bwin’s Privacy Policy – of the identity of the perpetrator
of the fraud. The Partner shall rectify the situation
within 72 hours from the notification. If the situation
cannot be clarified to the satisfaction of bwin within
these 72 hours, bwin shall be entitled to close the account
of the Partner as well as the access to the online
wallet immediately and terminate the Contractual Relationship
with immediate effect. bwin has the right to
withhold any Commission as from the moment bwin
suspects any fraudulent activity.
§ 13
Warranty and liability
(1) bwin shall guarantee that the bwin Website is operated
within the scope of the current technical possibilities.
No liability shall be assumed for any further claims.
(2) The liability of agents, employees and persons contracting
on behalf of bwin shall be limited to intent and gross
negligence. bwin’s liability – for any reason whatsoever
– shall be limited to the amount of the Commissions
paid to the Partner within the past six months. In the
event of the termination of this Contractual Relationship
before expiration of the six months period, the
Commission paid until then shall form the basis for the
assessment of the damage.
§ 14
Force Majeure
Neither Party will be held liable for, or will be considered to
be in breach of or default (e.g. delays in payouts, data delivery,
accuracy of calculation and data) under these Terms
and Conditions on account of any delay or failure to perform
as required by these Terms and Conditions as a result
of any causes or conditions that are beyond such Party’s
reasonable control and that such Party is unable to overcome
through the exercise of commercially reasonable
diligence, including but not limited to, acts of God; war,
riot, embargoes, acts of civil or military authority, or terrorism;
fire, flood, earthquakes, hurricanes, tropical storms or
other natural disasters; fiber cuts; strikes, or shortages in
transportation, facilities, fuel, energy, labor or materials;
failure of the telecommunications or information services
infrastructure; hacking, SPAM, net congestion, or any
failure of a computer, server or software, including Y2K
errors or omissions. If any force majeure event occurs, the
affected Party will give prompt written notice to the other
Party and will use commercially reasonable efforts to
minimize the impact of the event.
§ 15
Place of Jurisdiction and Applicable Law
These Terms and Conditions and the Contractual Relationship
as a whole shall be governed in all respects, including
validity, construction, interpretation and effect, by laws of
the country where the Operator is domiciled, except its
conflict of laws principles. In case of the selection of the
bwin Website www.bwin.com, the laws of Gibraltar apply,
except its conflict of laws principles.
§ 16
Miscellaneous
(1) Should any part of these Terms and Conditions be or
become invalid, these Terms and Conditions shall
remain in full force to the extent reasonably possible
and the invalid parts shall be adjusted to the legal
requirements so that the spirit of these Terms and
Conditions shall be respected as closely as possible.
(2) bwin reserves the right to change any rules and
regulations of these Terms and Conditions at any
time. The Partner shall be notified by electronic mail
of any such change. If the Contractual Relationship is
not terminated within two weeks after notification of
the changes, the changes shall be deemed accepted.
(3) bwin also reserves the right to transfer all rights and
duties from this Contractual Relationship to another
company belonging to the bwin Group .
(4) These Terms and Conditions contain the entire
Terms and Conditions agreed between the Parties in
respect of the subject matter hereof and supersedes
and cancels all previous agreements, negotiations,
commitments and writings between the Parties
hereto in respect of the subject matter hereof.
(5) No delay or omission by either party to exercise any
right or power occurring upon any non-compliance or
default by the other party with respect to any of the
terms of these Terms and Conditions shall impair any
such right or power or be construed to be a waiver
thereof.
(6) All notices or other communications which are
required or permitted hereunder shall be in writing
and sufficient if delivered personally, sent by prepaid
air courier, sent by mail or sent by facsimile
transmission.
(7) All amounts including, but not limited to, the
Commission shall be rounded by bwin to two decimal
places.
- 5 – August 2010
(8) For the calculation of the earnings, foreign currency
amounts shall be calculated according to the average
currency exchange rate published by the Austrian
National Bank.
(9) Any time measurement regarding calculation and
crediting by bwin of the Revenue Shares generated by
the Paying Actives of the Partner is subject to variations
as bwin and the bwin Group are operating in different
time zones.