Please read these Affiliate Terms and Conditions carefully before
applying to become an Affiliate, as they set out our and your legal rights and
obligations in relation to our Affiliate Programme. You will be asked to agree
to these Affiliate Terms and Conditions before becoming an Affiliate.
If you have any questions or comments about the Tote Ireland
Affiliate Programme, please contact us by writing to our Affiliate Team at email@example.com
1. Definitions and interpretation
1.1 In the Agreement:
Email” means an email sent by the Company to an Affiliate in
accordance with Clause 2.3 confirming that the applicant has been accepted into
the Affiliate Programme;
means the person (natural or legal) specified as the applicant for our
Affiliate Programme on the Registration Form;
Programme” means the Company's website affiliate programme for the
Website” means the website or websites owned and operated by
the Affiliate and specified on the Registration Form;
means the agreement between the Company and the Affiliate incorporating these
Affiliate Terms and Conditions, the Registration Form and the Acceptance Email,
and any amendments to it from time to time;
“Confidential Information” means
information that is proprietary or confidential to either Party and is either
clearly labelled as such or identified as Confidential Information in
accordance with Clause 5;
means Tote Ireland, which operates in partnership and as part of the Income
Date” means the date the Agreement comes into force as
specified in Clause 2;
Majeure Event” means an event, or a series of related events,
that is outside the reasonable control of the Party affected (including
failures of or problems with the internet or a part of the internet, hacker
attacks, virus or other malicious software infections or attacks, power
failures, industrial disputes affecting any third Party, changes to the law,
disasters, explosions, fires, floods, riots, terrorist attacks and wars);
Property Rights” means all intellectual property rights
wherever in the world, whether registered or unregistered, including any
application or right of application for such rights (and the “intellectual
property rights” referred to above include copyright and related rights, moral
rights, database rights, confidential information, trade secrets, know-how,
business names, trade names, domain names, trade marks, service marks, passing
off rights, unfair competition rights, patents, petty patents, utility models,
semi-conductor topography rights and rights in designs);
“Leads” the tracked persons using the Tote
Website as a result of promotion by the Affiliate;
means a hyperlink (whether embedded in text or an image or otherwise) from the
Affiliate Website to the Tote Website in the form, of the design, and in a
position on the Affiliate Website specified on the Tote Website;
means the Affiliate and the Company. The Affiliate and the Company may be
referred to individually as a “Party” or collectively as the “Parties”.
means payments of a % of Net Gaming Revenue or (if specially agreed) a bounty
payment for every new registration that wagers an agreed minimum amount.
This method of payment will be confirmed in the Acceptance Email
which will be sent by the Company to the Affiliate in respect of each Payment
Trigger during the Term (subject to the provisions of the Agreement);
“Net Gaming Revenue” shall be defined as Tote’s
Percentage Takeout (as set out in clause 6) on each bet wagered, less a fixed
programme cost (20%) and any player bonuses credited.
Trigger” means wagering by on the Tote Website made by a user
who [first] visited the Tote Website by means of a Link and who made such wager
within 30 days of the date of that first visit;
Materials” means content, works or other materials that:
indecent, obscene, pornographic or lewd material;
irresponsible, reckless or problem gambling;
any applicable laws, regulations or legally binding codes;
any third party Intellectual Property Rights or other rights;
is offensive or abusive, or is likely to cause annoyance, inconvenience or
anxiety to another internet user;
computer viruses, spyware, trojan horses or other malicious or harmful
routines, programs or software;
spam or bulk unsolicited email; and/or
the sole opinion of the Company (as notified to the Affiliate), includes any
Form” means the HTML form on the Tote Partners Website
(totepartners.com) enabling users to apply to become Affiliates;
means the term of the Agreement; and
means the website accessible via the URL www.thetote.com.
1.2 In the Agreement, a reference to a statute or statutory
provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or
re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the interpretation of the
2. The Agreement
2.1 In order to apply to become an Affiliate, the applicant must
complete and submit the Registration Form. By participating in the Affiliate
Programme, the Affiliate shall be bound by these Terms and Conditions.
2.2 The Affiliate is responsible for ensuring that all information
provided on the Registration Form is accurate.
2.3 The Agreement will come into force if and when the Company
sends to the Affiliate the Acceptance Email, following the submission of a
completed Registration Form by the Affiliate.
2.4 The Agreement will continue in force indefinitely, unless and
until terminated in accordance with Clause 11.
3. Affiliate Programme
3.1 The Affiliate will within 30 days following the Effective Date
include one or more Links on the Affiliate Website, and will maintain those
Links on the Affiliate Website during the Term.
3.2 The Company may from time to time during the Term request
amendments to the Links and/or the Affiliate Website for the purpose of
ensuring consistency and quality in the use of the Company's trade marks and
branding, and to the extent that such requests are reasonable the Affiliate
will make such amendments within 7 days of the request.
4. Affiliate obligations
4.1 The Affiliate will provide the Company with:
(a) such co-operation as is required by the Company (acting reasonably) in
connection with the Affiliate Programme; and
(b) all information and documents required by the Company (acting reasonably)
in connection with the Affiliate Programme.
4.2 The Affiliate shall:
(a) keep the Affiliate Website up-to-date and in good working order;
(b) ensure that the quality of design, content and functionality on the
Affiliate Website does not materially deteriorate during the Term;
(c) ensure all marketing of or relating to the Affiliate Website (both online
and offline) is in accordance with applicable law, any applicable codes of
practice, and good industry practice generally.
(d) ensure all marketing of or relating to the Affiliate Website
(both online and offline) promotes responsible gambling; and
(e) comply with all laws and regulations relating to its
activities under this Agreement, as they may change from time to time, and with
any conditions binding on it in any applicable licences, registrations, permits
4.3 The Affiliate shall not:
(a) include any Prohibited Materials on the Affiliate Website, or include any
hyperlink to any Prohibited Materials on the Affiliate Website;
(b) market the Affiliate Website using spam or unsolicited emails or other
unsolicited communications, or using any form of spyware, parasiteware, adware
or similar software, or using any other antisocial or deceptive methods;
(c) increase or seek to increase the number of Payment Trigger events using any
fraudulent or deceptive method;
(d) make any public disclosure relating to the Agreement (including press
releases, public announcements and marketing materials) without the prior
written consent of the Company;
(e) include any hyperlink to the Tote Website from the Affiliate Website that
is not a Link;
(f) include any reference to the Company or the Tote Website on the Affiliate
Website which may be deemed as negative;
(g) attempt to interfere with, compromise the system integrity or
security or decipher any transmissions to or from the Company's servers
(h) take any action that imposes, or may impose at the Company's
sole discretion an unreasonable or disproportionately large load on the
(i) interfere with the proper operation of the Affiliate
(j) bypass the measures the Company may use to prevent or restrict
access to the Affiliate Programme.
4.4 The Affiliate will not take any action in connection with the
Affiliate Programme which might reasonably be expected to lead to the
possibility of damage to the reputation and goodwill of the Company and/or the Tote
4.5 Affiliate may not modify, impair, disable or otherwise
interfere with any tracking codes and/or other technology required by Income
Access in order to ensure proper tracking.
4.6 Affiliates must not “spam” and/or use
unsolicited email. If the Company
reasonably believes that an Affiliate is knowingly sending spam and/or
unsolicited email, the Company, may, in its sole discretion, immediately
terminate such Affiliate’s participation in the Affiliate Programme.
4.7 Each Affiliate is responsible for the quality
and origin of the traffic that it provides to the Company’s Website and the
Affiliate will always remain responsible for the quality and origin of that
traffic. If an Affiliate knowingly sends
traffic of a questionable quality and/or origin to the Company, the Company
may, in its sole discretion, immediately terminate such Affiliate’s participation
in the Affiliate Programme.
4.8 If an Affiliate accidentally or unknowingly directs
traffic of a questionable quality and/or origin to the Tote Website, the
Company may issue a written warning to Affiliate, notifying the Affiliate of
the questionable traffic. If, after
three (3) written warnings, the Affiliate still directs traffic of a
questionable quality and/or origin to the Tote Website, the Company may, in its
sole discretion, immediately terminate such Affiliate’s participation in the
4.9 Affiliates are not permitted to copy any other Affiliate’s
Website. The Company reserves the right
to suspend and/or terminate an Affiliate’s participation in the Affiliate
Programme if they are found to have copied another affiliate’s website.
4.10 Affiliates will comply with all applicable
5. Intellectual Property Rights and Confidential Information
5.1 The Company grants to the Affiliate during the Term a
worldwide, non-exclusive, non-sublicenable royalty-free licence to reproduce
electronically and publish on the Affiliate Website only the Links.
5.2 The Company does not warrant that the use of the Links by the
Affiliate will not infringe any third party Intellectual Property Rights or
give rise to any other liability to the Affiliate.
5.3 The Affiliate will not acquire any interest in the Affiliate
Programme or any of the Company's Intellectual Property Rights, except for the
limited license rights expressly granted under these Terms and Conditions. All
other Company Intellectual Property Rights are expressly reserved to the
5.4 Each Party may be given access to Confidential Information
from the other Party in order to perform its obligations under this Agreement.
A Party's Confidential Information shall not be deemed to include information
(a) is or becomes publicly known other than through any act or
omission of the receiving Party and information shall not be deemed to be in
the public domain merely because it may be derived from one or more items which
are publicly known;
(b) was in the other Party's lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving Party by a third Party
without restriction on disclosure;
(d) is independently developed by the receiving Party, which
independent development can be shown by written evidence;
(e) the Parties agree in writing is not confidential or may be
(f) is required to be disclosed by law, by any court of competent
jurisdiction or by any regulatory or administrative body.
5.5 Each Party shall hold the other's Confidential Information in
confidence and, unless required by law, not make the other's Confidential
Information available to any third party, or use the other's Confidential
Information for any purpose other than the implementation of this Agreement.
5.6 Each Party shall take all reasonable steps to ensure that the
other's Confidential Information to which it has access is not disclosed or
distributed by its employees or agents in violation of the terms of this
5.7 Neither Party shall be responsible for any loss, destruction,
alteration or disclosure of Confidential Information caused by any third party.
5.8 The Customer acknowledges that details of the Payments may constitute
Company Confidential Information.
6.1 In respect of each Payment Trigger which can be verified by
the Company (acting reasonably) the Company will make a Payment to the
6.2 Unless specifically agreed upon in writing, all Payments made
to the Affiliate will be done so in accordance with Tote’s Standard Commission
Structure, as set out at clause 6.6.
6.3 Any Payments to the Affiliate will be paid on Net Gaming
Revenue. Net Gaming Revenue is calculated as Tote’s Percentage Takeout on each
bet wagered, less a fixed programme cost (20%) and any player bonuses.
6.4 Tote’s Percentage Takeout varies depending on product and
territory and is subject to commercial agreements with other international
In the case of Irish Horse Racing Tote Bet Wagering, Tote’s
Percentage Takeouts are:
Other Wager Types
The following are the blended Tote Takeout rates for each
territory. These rates are for indicative purposes only and the actual
percentage takeout for each product, pool and territory will be used to
calculate Net Gaming Revenue.
UK Pools – 13.5%
USA Pools – 11%
South African Pools – 20.3%
French Pools – 13.8%
Dubai Pools – 19.1%
Hong Kong Pools – 14.7%
Irish Greyhound Pools – 19.2%
Colossus Pools – 16%
Percentage takouts may change at any time depending on commercial
agreements with host pools. Tote Ireland will use the actual applicable rates
to calculate Net Gaming Revenue. Tote Ireland does not undertake to inform
Affiliates of changes to these commercial agreements and rates used to calculate
Net Gaming Revenue.
6.5 80% of any player bonuses will count as a cost to the
Affiliate per 6.3 above. Tote may on occasion run promotions for which it will
bare all or a greater proportion of the costs.
6.6 Tote’s Standard Commission Structure is calculated as follows:
Net Gaming Revenue
€0 to €999
€1,000 to €4,999
€5,000 to €9,999
€10,000 & Above
In any Accounting Period if the Net Gaming Revenue was €3,000,
then the payment due to the Affiliate would be calculated as follows: €999 @
25% = €249.75 plus €2,001 @ 30% = €600.30. This would mean the total Payment on
the Net Gaming Revenue would be €850.05.
6.7 Any Affiliate which fails to refer any new wagering accounts
in a 6 month period will be put on a Dormancy Commission Rate of 10%.
6.8 The Company will account to the Affiliate for all Payments due
in respect of a calendar month within 30 days of the end of the following
calendar month, unless the amount due is less than €100.00, in which case the Payments may be held over to the next payment
6.9 All Payments stated in or in relation to the Agreement are
stated inclusive of VAT and any other taxes where relevant, which shall be the
sole responsibility of the Affiliate. The Company is not responsible for
discharging the Affiliate’s tax liability.
6.10 If the Company is required by law to deduct withholding tax
or any other taxes or duties from any Payments, then the Company will deduct
such amounts from the Payments before paying them to the Affiliate.
6.11 Payments to the Affiliate will be made in Euro by bank
transfer (using such payment details as are provided by the Affiliate on the
6.12 No Payments will be due in respect of:
wagers on the Tote Website made by or on behalf of:
(i) the Affiliate;
(ii) any parent undertaking or subsidiary of the Affiliate;
(iii) any employee, agent or officer of the Affiliate or any parent undertaking
or subsidiary of the Affiliate;
(iv) by any natural person related any of the above;
amount received by the Company by means of the fraudulent or unlawful use of a
credit, debit or other payment card, or by any other fraudulent or unlawful
transactions on the Tote Website which are subsequently cancelled, refunded,
reversed, or charged-back (and the Company will be entitled to require
repayment of Payments made as a result of such purchases).
6.13 Both before and after termination of this Agreement, the Company
will be entitled to set-off any amount owed to the Affiliate against any amount
the Affiliate owes to the Company whether under the Agreement or otherwise, and
against any loss or damage suffered by the Company whether in relation to the
Agreement or otherwise arising out of the Affiliate's acts or omissions.
6.14 If an error is made during Net Gaming Revenue calculation,
the Company reserves the right to correct such calculation at any time
throughout the Term and to claim from the Affiliate any overpayment made by the
Company to the Affiliate (including, without limitation, by way of reducing
future payments which might otherwise be due to the Affiliate from time to
6.15 If the Affiliate discovers an error during the calculation of
Net Gaming Revenue, this should be brought to the attention of the Company to
remedy within 12 months of the error occurring. The Company will not guarantee
to remedy errors which have occurred more than 12 months prior to being
notified of such errors.
7.1 Each Party warrants to the other Party:
(a) that it has the legal right and authority to enter into and perform its
obligations under the Agreement; and
(b) that it will perform its obligations under the Agreement with reasonable
care and skill.
7.2 All of the Parties' liabilities and obligations in respect of
the subject matter of the Agreement are expressly set out in the terms of the
Agreement. To the maximum extent permitted by applicable law, no other terms
concerning the subject matter of the Agreement will be implied into the
Agreement or any related contract.
The Affiliate will indemnify and keep indemnified the Company, and
the Company's officers, employees, representatives, agents and subcontractors,
against all damages, losses and expenses (including legal expenses) arising as
a result of any breach by the Affiliate of any term of the Agreement.
9.1 Nothing in the Agreement will exclude or limit the liability
of either Party for:
(a) death or personal injury caused by that Party's negligence;
(b) fraud or fraudulent misrepresentation on the part of that Party; or
(c) any other liability which may not be excluded or limited under applicable
9.2 Subject to Clause 9.1, the
Company's liability to the Affiliate under or in connection with the Agreement
or any collateral contract, whether in contract or tort (including negligence),
will be limited as follows:
(a) the Company will not be liable for any:
(i) loss of profits, income or anticipated savings;
(ii) loss or corruption of any data, database or
(iii) reputational damage or damage to goodwill;
(iv) loss of any commercial opportunity; or
(v) indirect, special or consequential loss or
(b) the Company will not be liable for any losses arising out of a Force
(c) subject to clause 9.2(d), the Company's liability in any calendar year will
in no circumstances exceed the total amount paid (or, if greater, payable) by
the Affiliate to the Company under the Agreement during that calendar year; and
(d) the Company's aggregate liability will in no circumstances exceed the total
amount paid (or, if greater, payable) by the Affiliate to the Company under the
10. Force Majeure Events
10.1 Where a Force Majeure Event gives rise to a failure or delay
in either Party performing its obligations under this Agreement, those
obligations will be suspended for the duration of the Force Majeure Event.
10.2 A Party who becomes aware of a Force Majeure Event which
gives rise to, or which is likely to give rise to, any failure or delay in
performing its obligations under this Agreement, will promptly notify the
10.3 The affected Party will take reasonable steps to mitigate the
effects of the Force Majeure Event.
11.1 Either Party may terminate the Agreement at any time by
giving written notice to the other Party.
11.2 The Company may terminate the Agreement immediately (with or
without giving written notice to the Affiliate) if the Affiliate:
(a) commits any breach of any term of the Agreement;
(b) becomes insolvent or enters into any insolvency process or procedure; or
(c) (where the Affiliate is an individual) the Affiliate dies, or as a result
of illness or incapacity becomes incapable of managing his or her own affairs,
or is the subject of a bankruptcy petition or order.
11.3 If an Affiliate does not generate any
registrations for the Company for a twelve (12) month period, the Company may
terminate this Agreement with or without notice to Affiliate;
12. Effects of termination
12.1 Upon termination all the provisions of the Agreement will
cease to have effect, save that the following provisions of the Agreement will
survive and continue to have effect (in accordance with their terms or
otherwise indefinitely): Clauses 1, 5.3 – 5.8 (inclusive), 8, 9, 12 and 13.
12.2 If the Agreement is terminated by the Company under Clause
11.2, the Company will not have any obligation to make any further Payments to
12.3 Subject to Clause 12.2:
(a) the Company will pay to the Affiliate all Payments arising from Payment
Triggers activated on or before the date of termination of the Agreement in
accordance with the terms of the Agreement; and
(b) termination of the Agreement will not affect either Party’s accrued rights
as at the date of termination.
12.4 On payment by the Company of any outstanding sums as are
properly due and owing at the date of termination (which shall be subject to
any rights to make deductions whether under this Agreement or otherwise), the
Company shall have no further liability for any further sums.
13.1 Tote Ireland may accept gaming accounts from the following
territories: Ireland, United Kingdom, Australia, Austria, Belgium, Canada,
Cayman Islands, Cyprus, Denmark, Finland, Germany, Gibraltar, Greece, Isle Of
Man, Italy, Malta, Netherlands, Norway, Portugal, San Marino Spain and Sweden.
14.1 Any notice given under the Agreement must be in writing
(whether or not described as “written notice” in the Agreement) and must be
delivered personally, sent by pre-paid post, or sent by fax or email, for the
attention of the relevant person, and to the relevant address, fax number or
email address specified on the Registration Form (in the case of the Affiliate)
or the Tote Website (in the case of the Company) (or as notified by one Party
to the other in accordance with this Clause).
14.2 A notice will be deemed to have been received at the relevant
time set out below:
(a) where the notice is delivered personally, at the time of delivery;
(b) where the notice sent by post, 48 hours after posting; and
(c) where the notice sent by fax or email, at the time of the transmission
(providing the sending Party retains written evidence of the transmission).
14.3 No breach of any provision of the Agreement will be waived
except with the express written consent of the Party not in breach.
14.4 If a Clause of the Agreement is determined by any court or
other competent authority to be unlawful and/or unenforceable, the other
Clauses of the Agreement will continue in effect. If any unlawful and/or
unenforceable Clause would be lawful or enforceable if part of it were deleted,
that part will be deemed to be deleted, and the rest of the Clause will
continue in effect (unless that would contradict the clear intention of the
Parties, in which case the entirety of the relevant Clause will be deemed to be
14.5 Nothing in the Agreement will constitute a partnership,
agency relationship or contract of employment between the Parties. The Affiliate
will not make any statement on the Affiliate Website or otherwise which
expressly or otherwise suggests that there is any such relationship between the
14.6 The Company may modify
these Terms and Conditions from
time to time to reflect changes in market conditions affecting our business,
changes in technology, changes in relevant laws and regulatory requirements and
changes in our service offering. Such modification shall be effective upon
posting the Company publishing an updated version of these Terms and Conditions on the Tote Website. The Affiliate's continued
participation in the Affiliate Programme after receipt of such a notice will
constitute the Affiliate's acceptance of the varied Agreement.
14.7 This Agreement may not
be assigned by the Affiliate without the prior written approval of the Company.
14.8 If there is an inconsistency between any of the provisions in
the these Terms and Conditions, the Registration Form, the Acceptance Email,
other attachments or any other document referred to in this Agreement, the
provisions in these Terms & Conditions shall prevail.
14.8 The Agreement is made for the benefit of the Parties, and is
not intended to benefit any third Party or be enforceable by any third Party.
The rights of the Parties to terminate, rescind, or agree any amendment,
waiver, variation or settlement under or relating to the Agreement are not
subject to the consent of any third Party.
14.9 The Agreement constitutes the entire agreement and
understanding of the Parties in relation to the subject matter of the
Agreement, and supersedes all previous agreements, arrangements and
understandings between the Parties relating to the subject matter of the
Agreement. Subject to Clause 9.1, each Party acknowledges that no
representations or promises not expressly contained in the Agreement have been
made by or on behalf of the other Party.
14.10 The Agreement will be governed by and construed in
accordance with the laws of the Republic of Ireland.