1.1. Smarkets (Malta) Limited is a company registered on the 24th July 2008 under the laws of Malta; Registration number: C 44795; Registered address:Level 7, The Hedge, Ir-Rampa ta' San Giljan Street, St. Julians STJ 1062 Malta. Smarkets (Malta) Limited is trading under the name Smarkets. Accordingly any reference to Smarkets shall be construed as constituting a reference to Smarkets (Malta) Limited.?
and by the Laws of Malta. "
1.3. Each person is required to accept this agreement when registering as an affiliate with Smarkets and is bound by them throughout the existence of the relationship.
1.4. In the case of any dispute between the English language version of the agreement and versions in other languages, the English language version shall prevail.
1.5. We may modify any of the terms and conditions included in this Affiliate Agreement or replace it at any time and at our sole discretion by posting a change notice or a new agreement on our site. Modifications may include, for example, changes in the scope of available Commissions and Affiliate Programme rules. If any modification is unacceptable to you, your only option is to terminate the Affiliate Agreement by serving a notice as per section 9.1 of this agreement. Your continued participation in our Affiliate Programme following our posting of a change notice or new agreement on our site will constitute binding acceptance of the modification or of the new agreement.
2.1. In consideration of your continued promotion of Smarkets and or SBK, Smarkets grants you a non-exclusive, non-transferable, terminable licence to use the Smarkets & SBK Links and Promotional Materials on your website. This is subject to the following conditions:
2.1.a. You agree that the Smarkets & SBK Links and Promotional Materials will only be used solely for your internal business purposes.
2.1.b. You agree not to commercialise the Smarkets & SBK Links and Promotional Materials on anything other than on your website without Smarkets express permission.
2.1.c. You agree not to use the Smarkets & SBK Links and Promotional Materials in a way which is or is likely to prove detrimental to Smarkets.
2.2. The Smarkets & SBK Links and Promotional Materials include hypertext links and banners obtained from the Smarkets affiliate portal that link to Smarkets.com, getsbk.com or any other site controlled by Smarkets, and any other promotional materials provided by Smarkets to you.
3. You warrant and undertake that:
3.1. you are fully capacitated and authorised to enter into this agreement;
3.2. you have all necessary licences, permits and consents necessary to enter into this agreement;
3.3. you have accurately completed the Affiliate sign-up form and have provided true and complete information;
3.4. you shall inform us promptly should any of your registration details change, and also provide us with any such other information that we may reasonably request from time to time;
3.5. you are not in the employment of Smarkets or a Smarkets group company, and neither are you an agent, consultant or contractor of Smarkets or a Smarkets group company;
3.6. you shall display the most up-to-date Smarkets Links and Promotional Materials in the manner agreed between you and Smarkets;
3.7. you shall not modify the Smarkets Links and Promotional Materials without prior consent from Smarkets;
3.8. you will not place the Smarkets Links and Promotional Materials on any part of a website aimed at people under 18 years of age, and for jurisdictions outside of Malta, to anyone else who is not of an age where they can lawfully participate in online gambling;
3.9. you will not place the Smarkets Links and Promotional Materials on any part of a website which is defamatory, violent, pornographic, unlawful, threatening, obscene, or racially or otherwise discriminatory, or in breach of any third party rights, and you will not link to any such material;
3.10. you will not purchase or register any domain name similar to any domain name used or registered by Smarkets or any member of the Smarkets group;
3.11. you will at all times act in accordance with all applicable laws, enactments, orders, regulations and similar instruments;
3.12. you will ensure the copy and content on your site is conform the Advertising Codes, written by the Committees of Advertising Practice (CAP) and standard industry practice.
3.13.? you will not use any types of marketing and advertising that are likely to appeal particularly to those younger than 18, including but not limited to cartoons, comic book images and child and youth orientated language;
3.14.? you will not use anyone who is or appears to be under the age of 25, when marketing and promoting the Smarkets brand and services.
3.15. You will keep your Affiliate Site content compliant with any content and phrasing obligations and/or restrictions imposed on the Company by legal and/or regulatory requirements and/or third-party suppliers. In the event that the Affiliate, for any reason, does not have knowledge of such obligations, the Affiliate must update its site within two (2) Working Days upon receipt of a notification from the Company pursuant to article 4.16 of this Agreement.
3.16. you will not spam. We reserve the right to terminate this agreement immediately if you advertise our services by spamming;
3.17. you will make clear when promoting us by email that any communication you send is made by and on behalf of yourself, and is not made by or on behalf of Smarkets;
3.18. you will comply with any Smarkets security guidelines as may be published and circulated from time to time;
3.19. you will not share your Smarkets login or password with any third party;
3.20. you will not give any customer or affiliate any monetary incentive to follow your links;
3.21. you will not bid on the term 'Smarkets', 'SBK' or any variations or misspellings there of in any paid search advertising campaigns;
3.22. you will not encourage any customers to break any of Smarkets's terms and conditions, or engage in behaviour that breaches the spirit of our promotions;
3.23. if you are an individual that you do not reside inside the United States of America, and if you are a business that you are not registered or operating from the United States of America;
3.24. you will not promote Smarkets within any territory which is not an Accepted Territory. You must keep up to date with the list of Accepted Territories as published in this agreement and as otherwise notified to you;
3.25. you are not and have never been engaged in any activity, practice or conduct which would constitute an offence under any applicable bribery legislation, including the Bribery Act 2010;
3.26. you have not been the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body or any customer regarding any offence or alleged offence under any applicable bribery legislation, including the Bribery Act 2010, and no such investigation, inquiry or proceedings have been threatened or are pending and there are no circumstances likely to give rise to any such investigation, inquiry or proceedings; and
3.27. you will adhere to the requirements and principles of all applicable bribery legislation, including the Bribery Act 2010, and inform us of any suspected breaches that may have an impact upon Smarkets.
3.28 If you send any direct marketing communications to individuals (including but not limited to email, SMS and/or push notifications) which (i) include any of Smarkets? Intellectual Property Rights; or (ii) otherwise intend to promote Smarkets Websites, you must first have permission to send such direct marketing communications from the Affiliate Manager. If such permission is granted by Affiliate Manager you must then ensure you have obtained each and every recipient?s explicit consent to receive marketing communications and that such individuals have not opted out of receiving such communication. You must also make it clear, so that no confusion is caused (in regards to the sender of such communication) to the recipient that all marketing communications are sent from you and are not from Smarkets. For the avoidance of doubt, should you wish to engage any third parties in connection with the provision of such direct marketing communications, you shall be responsible for ensuring such third parties comply with the requirements of this clause 3.28.
4.1. In consideration of your continued promotion of Smarkets and display of Smarkets Links and Promotional Materials, and unless otherwise agreed with Smarkets, we will pay you affiliate commissions, which will be a percentage of net revenue generated by your referrals for as long as your referrals are active customers.
4.2. Unless otherwise agreed with Smarkets, this percentage will be 25%.
4.3. We will provide online access to reports and statements in order to help you track your referrals and affiliate commissions generated. These reports will be available from your Smarkets affiliate account on Income Access. These reports are for information purposes only. Smarkets will make its best effort to ensure these statements are accurate and updated daily, but makes no guarantee that this will be the case. We do not accept liability if these reports should prove to be inaccurate or incomplete.
4.4. Affiliate commissions will be paid once per calendar month. Payments will be made by the 14th calendar day following ?the month for which the Commission was earned. Invoices need to be sent to Smarkets by the 6th calendar day to be included in the monthly payment run.
4.5. You must check the tax situation in your own country. All taxes due in connection with any payments to you are your sole liability. You are responsible for complying with the tax rules in your jurisdiction, and for paying income tax and similar taxes if they are applicable.
4.6. Smarkets will not pay interest in the case of late payments.
4.7. Smarkets does not pay commission for customers on Smarkets Pro Tier or Select Tier as per ?3. Commission? of Smarkets General Terms and Conditions.
4.8. No affiliate commissions will be payable in relation to any customers who:
4.8.a. were introduced in breach of any term in this agreement;
4.8.b. who chargeback their initial deposit;
4.8.c. if you are an individual, is a member of your immediate family (spouse, partner, parent, child or sibling);
4.8.d. if you are a business, is an employee, affiliate, agent or contractor of your business, or is an immediate family member (spouse, partner, parent, child or sibling) of any such individual;
4.8.e. fails any identity or KYC checks carried out by Smarkets;
4.8.f. is located in any territory other than an Accepted Territory;
4.8.g. has their account closed within the first calendar month of account opening.
4.9. In any case where Affiliate Commissions were paid to you where they were not due, you will promptly repay the amount after being notified of this by Smarkets. If not repaid, we will reserve the right to reduce future payments which might otherwise be due to you from us.
4.10. In the case of a customer generating a loss in any month, there will not be any negative carry-over of that amount to the following month.
4.11. Withdrawals from your Smarkets account will be governed by the Smarkets Terms and Conditions.
4.12. Net Revenue shall be gross commission revenue generated by your referrals, less adjustments for credit card chargebacks or any other reversal of a payment, fraudulent or voided transactions, the cost of promotional offers, payment processing costs, payments to sporting bodies, and liability for tax and data licence fees.
4.13. The minimum payment for earned commission per month is 50 GBP depending upon the currency denomination of your affiliate account. There is no maximum limit.
4.14. If the affiliate chooses to have their commissions paid in a currency other than GBP, it will be converted to that currency at the previous month-end rate for the period immediately preceding the date of payment obtained from xe.com
4.15. Smarkets reserves the right to reduce the Affiliates commission / change the Reward Plan if the affiliate does not generate a minimum of 6 New Depositing Customers in a period of 3 months.
4.16. You shall provide us with any supporting documents requested by us and you understand that payments may be delayed if supporting documents are not provided.? (e.g. any or all of the following for a corporation: a copy of the company?s certificate of incorporation; constitutional documentation; information regarding the identity of the beneficial owner of the company and the identity of the directors of the company. In the case of? individuals: valid passport copy; valid driving licence copy; a copy of a utility bill; a bank statement)?
4.17. If either party disagrees with the balance due, it shall notify the other party within fourteen (14) days and state the reasons for the disagreement. The disputed amount shall then be compared by Smarkets to reports offered in the Affiliate Account system and the database of Smarkets. The final amount payable shall be as per the figure reported on the Smarkets database.
4.18. Any changes to an Affiliate?s Reward Plan will only be applicable to New Customers and not previously referred customers unless otherwise agreed in writing by the company?s Affiliate Manager.
4.19. Any notice given or made to the Company under the terms of this Agreement shall be sent via email to email@example.com and marked for the attention of the Affiliate Account Manager (or as otherwise notified by Smarkets). Smarkets? shall send the Affiliate any notices given or made under the terms of this Agreement to the email address in the Affiliates? account within the Technical Platform unless otherwise agreed. Any notice shall be deemed to have been received within 24 hours of delivery. If the receipt occurs before 9.00 a.m. CET on a Working Day, such notice shall be deemed to have been received on that specific day. If such receipt occurs after 5.00 p.m. CET on a Working Day, or on any day which is not a Working Day, the notice shall be deemed to have been received at 9.00 a.m. on the following Working Day.
5.1. We will provide you with Smarkets Links and Promotional Materials with which to promote us.
5.2. We will make every effort to ensure that whenever a customer signs up to Smarkets through one of your links and subsequently places a bet, they will be identified as originating from your website. However, this will be on a best-effort basis, and we will not be liable if we are unable to identify a user as originating from your website. We will also rely on your cooperation in complying with our instructions regarding the tracking of customers.
Intellectual Property Rights
6.1. Smarkets owns or licences all IPR in the Smarkets Links and Promotional Materials. Any IPR in third party materials belongs to the third party owner of that IPR.
6.2. This agreement does not grant any licence or provide any warranty or offers any indemnity in respect to data and IP that is not owned by Smarkets. Violating any third party IP rights will be grounds for immediate breach of this agreement.
Data Protection and Security
7.1. You will inform us as soon as you become aware of a breach or a potential breach of security relating to Smarkets Links and Promotional Materials.
7.2. You will use your best endeavours to ensure that any potential breach does not become an actual breach.
7.3. You will use your best endeavours to remedy any actual breach and its consequences.
7.5. If Smarkets shares data with you it is at Smarkets sole discretion. This may be subject to separate terms and conditions and may be declined or stopped at any time. In case you state that you have a data subject?s permission to request their personal data from Smarkets then Smarkets may require evidence of this. This can be in the form of relevant terms and conditions or specific consent for the sharing.
8.1. During the term of this agreement and thereafter, each party shall:
8.1.a. use and reproduce the other party's Confidential Information only for the purposes of this agreement and only to the extent necessary for such purpose;
8.1.b. will restrict disclosure of the other party's Confidential Information to its employees, consultants, or independent contractors with a need to know;
8.1.c. will not disclose the other party's Confidential Information to any third party without the prior written approval of the other party.
8.2. It will not be a breach of this agreement for either party to disclose Confidential Information of the other party if required to do so under law or in a judicial or governmental investigation or proceeding.
8.3. Confidential information includes any information relating to one party that is directly or indirectly disclosed to the other party.
8.4. The confidentiality obligations shall not apply to information that:
8.4.a. is or becomes public knowledge through no action or fault of the other party;
8.4.b. is known to either party without restriction, prior to receipt from the other party under this agreement, from its own independent sources as evidenced by such party's written records, and which was not acquired, directly or indirectly, from the other third party;
8.4.c. either party receives from any third party reasonably known by such receiving party to have a legal right to transmit such information, and not under any obligation to keep such information confidential;
8.4.d. information independently developed by either party's employees or agents provided that either party can show that those same employees or agents had no access to the Confidential information received hereunder.
9.1. Notwithstanding articles 9.3 to 9.5, This agreement may be terminated by one party giving the other party written notice of an intention to terminate, in which case the agreement will be terminated immediately. Termination may be at will, with or without reason, by either party.
9.2. Either party may notify the other party of their intention to terminate the agreement by email.
9.3 Smarkets may terminate the agreement:
?if the Affiliate sells its business, or any part herein, and/or registers any change of beneficial owner or in case the Purchasing Company?s activities are either in conflict with those of Smarkets. This includes situations where the Affiliate Site is purchased by companies providing the same or similar services.
If? the legal and/or regulatory situation in the market has changed or is in the process of changing to such an extent that the objectives of the Agreement can no longer be achieved and/or no longer correspond to the market reality;
9.4. Smarkets reserves the right to terminate the agreement if the Affiliate does not generate a minimum of? 6 New Depositing Customers in a period of 6 months.
9.5. Upon termination of this Agreement:
9.5.a. you must remove all of Smarkets's Links and Promotional materials from your sites;
9.5.b. all rights and licences given to you in this agreement shall terminate;
9.5.c. the Affiliate will only be entitled to receive the outstanding commission due as of the effective termination date of this Agreement.? After this payment the Affiliate will no longer be entitled to receive any other commission.
10.1. The Smarkets Links and Promotional Materials are provided as is and without warranties of any kind, whether express or implied.
10.2. We make no representation that any of our services will be uninterrupted or error free, and will not be liable for the consequences of any such interruptions or errors to the extent permissible by law.
10.3. Smarkets does not accept any liability for damage to you which arises directly or indirectly from a mistake, misprint or malfunction of software.
10.4. It is your responsibility to declare your own taxes according to your own country's regulations.
10.5. Except where expressly provided in this agreement, we exclude liabilities under this agreement to the maximum extent permitted by law.
10.6. Nothing in this agreement excludes or limits Smarkets liability for death or personal injury caused by our negligence, for fraud, or for any other liability which cannot be excluded or limited under applicable law.
10.7. Subject to 10.3. the maximum liability of Smarkets shall not exceed the total Affiliate Commissions paid or payable to you under this agreement.
11.1. A party is not liable for failure to perform their obligations if that failure is a result of Force Majeure if it takes all reasonable steps available to it to minimise the effects of Force Majeure on the performance of its obligations under this agreement.
11.2. If a party is affected by Force Majeure it shall notify the other party in writing of the matters constituting Force Majeure and shall keep the other party informed of any change in circumstances whilst such Force Majeure continues.
11.3. Force Majeure shall mean either an act of God, fire, flood, or other natural disaster, malicious injury, strikes, lock-outs, or other labour troubles, riots, insurrection, war or other reasons of like nature outside of the control of the affected party.
12.1. If we do not enforce your performance of any provision of this agreement, this will not constitute a waiver of our right to subsequently enforce such a provision or any other provision of this agreement.
12.2. Should one or more terms or conditions of this agreement be declared void by a recognised Court of Justice, then the remaining terms and conditions of this agreement will retain their validity.
13. You will indemnify and hold harmless Smarkets 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 Smarkets, in consequence of any breach by you of your obligations under this agreement. This clause will survive the termination of the agreement.
14. For the purposes of this agreement, Accepted Territories means the following countries:
14.1. United Kingdom
14.7. Isle of Man
14.10. New Zealand
14.12. This list may be updated at any time. It is your responsibility to check for any updates to the terms and conditions of this agreement.
Smarkets affiliate agreement. Last updated 2020-02-10