2.CASINO DAVOS AG a company incorporated in Switzerland, with registered company
number CHE-35030058935 with its registered office at Promenade 63, 7270 Davos,
Switzerland (“OPERATOR”). Hereinafter also referred to individually as a “Party” and collectively as “Parties”.
A. WHEREAS, the OPERATOR has the needs to retain online affiliate administration services.
B. WHEREAS, the OPERATOR considers that AFFILIATE has the knowledge and expertise in the area of establishing, developing as well as in expertise in the online affiliate administration of enterprises carrying
on activities similar to those of the OPERATOR;
C. WHEREAS, OPERATOR desires to engage AFFILIATE as an independent contractor to perform services for OPERATOR and AFFILIATE is willing to perform such services, on the terms and conditions set forth
D. WHEREAS the OPERATOR wishes to engage AFFILIATE to administer the Affiliate network on the terms and conditions set out below and AFFILIATE is prepared to enter into the present Agreement with the
NOW, THEREFORE, in consideration of the above recitals and the mutual promises and conditions contained in this Agreement, the Parties agree as follows:
For the purposes of this Agreement, the following terms shall have the following meanings:
“Advertising Campaign” is the online campaign, available on AFFILIATE platform,
which affiliates will use to promote one or several of the gaming products of the
OPERATOR. This includes designs, banners and promotional content the text links, the
HTML code provided to affiliates, the tracking system provided by the platform www.Livepartners.ch and all
the tools that permit the follow-up of the advertising campaign. One client can have
one or several advertising campaign(s) related to its account.
“Affiliate network” means the websites, Social media pages, emailings database or any other asset
managed by the AFFILIATE through which the AFFILIATE will redirect traffic to the OPERATOR’s website.
“Customer Acquired” means any person who comes through the AFFILIATE to the OPERATOR’s website,
register and become an active customer for which the AFFILIATE will receive a fee.
“Agreement” means this Agreement, its Appendices and any amendment thereto if applicable.
“Confidential Information” means and includes this Agreement, all trade secrets and all know-how,
financial, marketing, research and development, organizational,
and technical data, and other information not in the public, domain, as well as released or unreleased,
products the marketing or promotion thereof, and/or associated
services, related to either party. Confidential Information may be disclosed orally, in writing or in any other
recorded or tangible form.
“Intellectual Property Rights” All intellectual property rights including, but not limited to, patents, designs,
trademarks, marks, trade names, copyrights, know-how and inventions, whether registered, unregistered or
pending, of the Operator.
“Swiss Gambling Regulator” means the Swiss Federal Gaming Board, its successors and assigns or any
equivalent of similar current or future body or authority.
2. STATUS OF INDEPENDENT SERVICE PROVIDER
It is the parties' intentions that AFFILIATE shall have an independent status and shall manage his affiliation
network at his own discretion while scrupulously respecting the clauses under this agreement.
3. ADMINISTRATIVE SERVICES
The AFFILIATE shall perform and provide online affiliate administrative services (hereinafter referred to as “Service”) for the OPERATOR. AFFILIATE shall use his best efforts to meet the expectations set out by the OPERATOR and warrants that the Services will he performed promptly, diligently and in accordance with all reasonable professional standards for similar services, by the individual executing this Agreement. In order to complete the services, AFFILIATE will require the OPERATOR’s full and timely co-operation and would also require access to all information, explanations and documentation which AFFILIATE regards as being necessary for the purpose of carrying out the Services. Notwithstanding the aforementioned, the AFFILIATE shall always require the prior written approval of the OPERATOR, for any and all types of marketing, promotions, events herein directly and/or indirectly related to the Services, as described in the present Agreement.
AFFILIATE grants that it shall undertake the Service which shall adhere and shall not be unsuitable for the image, reputation and/or name of the OPERATOR. For which AFFILIATE grants that the Service shall not:
a) Promote and/or target people underage, banned in accordance with the responsible gaming directives of
the Swiss Gambling Regulator.
b) Promote and/or target people abroad Switzerland.
c) Promote any game provider and/or game which is not lawfully certified and officially approved by the
Swiss Gambling Regulator.
d) Promote any other online casino operator which is included in the blacklist or not duly recognized as a
license holder by the Swiss Gambling Regulator.
e) Promote sexually explicit material
f) Promote violence
g) Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
h) Promote illegal activities
i) Promote coupons codes or discounts that where not officially provided by the OPERATOR.
j) Incorporate any materials which infringe or assist others to infringe on any copyrights, trademark, or other
intellectual property rights or to violate the law
k) Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially,
ethically or otherwise objectionable to the OPERATOR.
The OPERATOR shall pay to AFFILIATE a fee as agreed above per Customer Acquired hereinafter referred to as the Cost Per Acquisition or the “CPA”. The OPERATOR shall pay AFFILIATE the CPA calculated based on the information and statistics hold by the software of the OPERATOR.
In the case of a fraudulent transaction, banned player, chargeback, closed account, duplicate account or suspected fraudulent transaction made by one of your services or players, LivePartners reserves the right to suspend your commission and cancel the transaction
4.1 PAYMENT TERMS
A. The OPERATOR shall pay AFFILIATE within thirty (30) days from the date of the invoice issued by AFFILIATE.
B. Accepted methods of payment is: Bank Transfer.
C. If the AFFILIATE income is below the minimum amount required to make a payment, AFFILIATE`s earnings will be postponed until the following month and until the minimum threshold is reached.
The minimum amount for payment via Bank Transfer is €250.00.
D. In the event of a miscalculation of the fees, OPERATOR reserves the right to correct any mistake at any time, and to
reclaim any excess payments made by OPERATOR by reducing future payments due to AFFILIATE from.
Except for the ones established in this present Clause 4, no amount, commission and/or payment
shall be claimable by the Affiliates to the OPERATOR,
The OPERATOR will issue a monthly report to AFFILIATE stating the statistics regarding the number of players acquired through the affiliate, the total deposits for one of them and the total bets, describing the Net Profit. AFFILIATE shall send a monthly report to the OPERATOR showing the Fee due by the OPERATOR to AFFILIATE.
5. CONFIDENTIAL INFORMATION & NONDISCLOSURE
Each Party acknowledges that it will receive Confidential Information from the other Party. By Confidential Information the Parties mean all exclusive data or information communicated by or in the name of one of the Parties (Disclosing Party) to the other Party (Receiving Party), to its personnel or to its subcontractors, that is not generally known or disclosed to the public, in whatever form (electronic, written or verbal), at the time or the place when the Confidential Information is communicated and which included in particular, without being exclusive:
a) All marketing plans, financial information, sales estimates, business plans, as well as the content of all
conversations in which the Parties participate concerning the economic activities of their subsidiaries, of
their commercial partners or of their clients and/or Affiliates.
b) Trade secrets, lists of the Parties’ client data.
c) The terms and conditions of this contract as well as any other information that might be mentioned as
being confidential by one of the Parties.
The Receiving Party undertakes to:
a) Not to disclose to any one whatsoever, whether a natural o legal person, all or part of the Confidential
Information and to maintain the strictly confidential nature of the Confidential Information with a degree of
acre at least equal to that which is would reserve for its own Confidential Information. This degree of care
in any event will never by less than that which a reasonable diligent and prudent person would reserve
for such Confidential Information;
b) Only to use the Confidential Information for the sole purpose of performing the subject matter of this
Agreement and to undertake not to make any other use thereof without the prior written approval of the
c) To limit the disclosure of Confidential Information solely to its employees or subcontractors
(Authorized Users) that have the strictest need to know the Confidential Information in view of
performing this contract, to the extent that these persons have subscribed in writing to the
provisions of this contract or have subscribed with the Receiving Party a
confidentiality agreement containing obligations of a similar content,
intended to protect the Confidential Information.
d) To return or destroy, within seven (7) days, unless agreed otherwise between the Parties,
following the request of the Disclosing Party, the Information in view of the provisions of this
contract, to the extent that these persons have subscribed in writing to the provisions of this
contract of have subscribed with the Receiving Party a confidentiality agreement containing obligations
of a similar content, intended to protect the Confidential Information;
e) To return or destroy, within seven (7) days, unless agreed otherwise between the Parties, following
the request of the Disclosing Party, the Confidential Information received as well as any document
related thereto (there included any computers files) without keeping a copy.
The obligations defined in this article do not, or no longer apply to information regarding, which the Receiving Party can prove:
a) That it was in its possession without a confidentiality obligation before its disclosure by the
b) That it had fallen into the public domain at the moment of its disclosure or thereafter, without
its fault or that of the Authorized Users;
c) That it was obtained legally from a third party without a confidentiality obligation, on condition that this
third party has not, to the knowledge of the Receiving Party, breached a confidentiality obligation towards
the Disclosing Party by communicating this information;
d) That it was developed independently by the Receiving Party or by one of its related companies.
This confidentiality obligation will remain in force for as long as the Confidentiality Information
has not fallen into the public domain, without a breach by the Receiving Party.
6. INTELLECTUAL PROPERTY RIGHTS OF EITHER PARTY
(1) All Intellectual Property Rights, title and interest in and to the platform, software, online games, code and logic, including any and all modifications and additions thereto, including copyright, patent rights, trade secrets, trademarks and all other intellectual property rights (collectively “Operator IP”), shall at all times remain the sole property of the Operator. The patents, designs, trademarks, marks, trade names, copyrights, know-how and inventions, whether registered, unregistered or pending, which were owned by Affiliate before the Effective Date of this Agreement (collectively “Affiliate IP”) shall at all times remain the sole property of the Affiliate.
(2) AFFILIATE ACCEPTS THAT ANY USE OR DISCLOSURE OF THE OPERATOR IP AND OPERATOR ACCEPTS THAT ANY USE OR DISCLOSURE OF THE AFFILIATE IP, OTHER THAN IN STRICT ACCORDANCE WITH THIS AGREEMENT, MAY BE ACTIONABLE AS A VIOLATION OF THE OTHER PARTY’S RIGHTS AND MAY BE SUBJECT TO CIVIL AND/OR CRIMINAL ACTION IN MULTIPLE JURISDICTIONS.
EACH PARTY acknowledges the validity of all the intellectual property rights of the Other Party to the Other Party’s IP and shall refrain, for the duration of the collaboration and the duration of such intellectual property rights from any infringement or denying, challenging or attacking validity of Licensor’s intellectual property rights or interests and from assisting any other third party in infringing, denying, challenging or attacking such validity by providing information or advice or otherwise.
(3) EACH PARTY (“FIRST PARTY”) shall notify the OTHER PARTY immediately if THE FIRST PARTY becomes aware of any unauthorized use of the OTHER PARTY’S Intellectual Property Rights.
7. INDEMNIFICATION AND LIMITATION OF LIABILITY
Each Party shall indemnify and hold harmless the other Party and its directors, officers and employees and shareholders (collectively, the “Indemnified Parties”) from and against all third party allegations, claims, actions, suits, demands, damages, liabilities, obligations, losses, settlements, judgements, costs and expenses (including without limitation, reasonable attorney’s fees and costs) which directly arise out of, relate to or result from any act or omission of the breaching Party regarding its obligations under this Agreement.
Neither Party shall be liable for any indirect loss suffered by the other Party.
Neither Party shall be liable for intangible damages, whether direct or indirect, arising out of or in relation with this Agreement, such as, without limitation, loss of profits, loss of revenues, loss of goodwill, loss or corruption of data.
In no event will the aggregate liability of either party to the other under this Agreement exceed the amount of the Fees paid by the OPERATOR to AFFILIATE during the six-month period preceding the date on which the loss occurred or cause for indemnity arose.
This Agreement shall be valid from Effective Date and the Parties agree that from the Effective Date there will be a fixed term of one (1) month and shall be automatically renewed for periods of one month at a time unless the AFFILIATE gives at least three (3) calendar days prior written notice of non-renewal to the other OPERATOR. The OPERATOR may terminate this Agreement during the term of the Agreement immediately upon giving the AFFILIATE a written notice. Such termination shall not be considered as a breach of the Agreement.
9.1 Termination for Cause
Each Party shall have the right, without prejudice to its other rights or remedies, to terminate this Agreement by written notice to the other Party (“Defaulting Party”) if the Defaulting Party
a) is in material breach of any of its obligations under this
Agreement (including obligations as to payments) and that breach
is either (1) incapable of being remedied or (2) remains
un-remedied by the Defaulting Party after receiving written notice
of the breach requiring remedy in a period of whichever is the lesser of
Seven (7) days or any shorter period specified in this Agreement for remedying a breach;
b) violated any requirements for providing the Service stated under a) to k) in paragraph 3.1;
c) becomes bankrupt or insolvent on any definition applying to
the other Party under applicable law of its incorporation or is
otherwise unable to pay its debts in the ordinary course of business;
d) is dissolved (other than by way of a re-organization)
or otherwise ceases to engage in its normal business operations
and is unable thereby to fulfil all its obligations under this Agreement;
e) Any of the Parties, as enforced time by time by the
regulatory authorities, loses any required permits or
other required government or other approval or consent or the
right to operate for any reason and/or are unable thereby to
fulfil all their obligations as outlined in this Agreement.
The Parties shall have the right, without prejudice to its other rights or remedies, to terminate this Agreement by prior written notice to the other Party:
(a) if changes to legislation, regulation or other requirements of any
government or governmental authority or agency make it
illegal or impractical to distribute, provide, marked and/or
operate the Licensed Software, online games, sports betting content
and/or develop the business activity by the OPERATOR and/or develop the
object and/or business between the Parties as contemplated by this Agreement,
in accordance with the Applicable Law and/or the Swiss Gambling Regulator enforcements;
9.2 Consequences of Termination
In case of termination of this Agreement, the OPERATOR shall immediately cease to use the Services and:
9.2.1 Each Party shall immediately return all confidential information received
from the other Party and destroy any copies that may exist.
Such destruction shall be promptly confirmed in writing
upon request of the other Party.
9.2.2 All outstanding sums payable to AFFILIATE by the Customer
shall immediately become due and payable.
The Parties shall not assign or transfer in any manner whatsoever this Agreement to any third party, unless the other Parties expressly agrees to such assignment of transfer in writing.
If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, the Parties shall agree upon any necessary and reasonable adjustment of the Agreement in order to secure the vital interests of the Parties and the main objectives prevailing at the time of execution of the present Agreement. Accordingly, the Parties shall negotiate in good faith to replace such invalid, illegal or unenforceable provision with a valid, legal and enforceable provision which economic effect comes as close as possible to that of the invalid, illegal or unenforceable provision.
(1) All notices under this Agreement and other
communications required or permitted to be given under
this Agreement shall be in writing and shall be deemed
effective upon delivery to the Party to whom addressed by
(i) express courier with verification of actual receipt,
or (ii) facsimile or email with confirmation of receipt
generated by the sending device,
or (iii) registered mail, return receipt requested.
All notices shall be sent to the following address
For OPERATOR: For AFFILIATE:
Casino Davos AG As listed below
Promenade 63, 7270
Email: [email protected]
13. ENTIRE AGREEMENT.
This Agreement constitutes the complete and exclusive understanding and agreement between the Parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter.
Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of each Party.
15. FORCE MAJEURE.
Neither of the Parties shall be defaulting or liable for a failure to perform any of its obligations (apart from its obligations to pay any sums due) insofar as it can be prove that non-compliance was a result of force majeure. The following event are regarded as force majeure (this enumeration not being exhaustive):
I.War, whether declared or not, civil war, civil violence,
riots and revolutions, acts of sabotage, natural disasters
such as violent storms, cyclones, earthquakes, tidal waves,
floods, destruction by lightning, explosions, fires,
destruction of machines, factories and any kind of
installations, boycotts, strikes and lock-outs
of all kinds, go-slows, occupation of
factories and premises and work stoppages;
II.For the purposes of this clause impediment
does not include laws and regulations,
lack of authorizations of licenses,
of permits or of approvals necessary for the
performance of this Agreement and to be issued
by the appropriate public authority.
Events according to those detailed under Clause 15. entitle the Party affected to delay the fulfilment of its duties for the duration of the interference and a measured start- up period and does not constitute default. In the case that the period of force majeure lasts more than sixty (60) days either of the Parties shall be entitled to terminate this Agreement by written notice.
16. GOVERNING LAW AND JURISDICTION
This agreement shall be governed by the laws of Switzerland. Any dispute, controversy or claim arising out of or in connection with this agreement, or the breach, termination or invalidity thereof, shall be exclusively settled by the Commercial court of Switzerland, which shall have absolute jurisdiction over any disputes arising on this Agreement.
These Terms and Conditions were last updated on 1st of April 2021