Affiliate Terms

 

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 partners@totepartners.com

 

 1. Definitions and interpretation

1.1 In the Agreement:

Acceptance 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;

Affiliate” means the person (natural or legal) specified as the applicant for our Affiliate Programme on the Registration Form;

Affiliate Programme” means the Company's website affiliate programme for the Tote Website;

Affiliate Website” means the website or websites owned and operated by the Affiliate and specified on the Registration Form;

Agreement” 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;

 

Company” means Tote Ireland, which operates in partnership and as part of the Income Access Network.

 

Effective Date” means the date the Agreement comes into force as specified in Clause 2;

Force 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);

Intellectual 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;

Link” 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;

Parties” means the Affiliate and the Company. The Affiliate and the Company may be referred to individually as a “Party” or collectively as the “Parties”.

Payments” 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.

 

Payment 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;

 

Prohibited Materials” means content, works or other materials that:

(a)    includes indecent, obscene, pornographic or lewd material;

(b)    encourages irresponsible, reckless or problem gambling;

(c)     breaches any applicable laws, regulations or legally binding codes;

(d)    infringes any third party Intellectual Property Rights or other rights;

(e)    that is offensive or abusive, or is likely to cause annoyance, inconvenience or anxiety to another internet user;

(f)      includes computer viruses, spyware, trojan horses or other malicious or harmful routines, programs or software;

(g)    includes spam or bulk unsolicited email; and/or

(h)    in the sole opinion of the Company (as notified to the Affiliate), includes any objectionable material.

 

Registration Form” means the HTML form on the Tote Partners Website (totepartners.com) enabling users to apply to become Affiliates;

 

Term” means the term of the Agreement; and

 

Tote Website” 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 Agreement.

 

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 and approvals

 

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 Company's infrastructure;

(i) interfere with the proper operation of the Affiliate Programme; or

(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 Website.

 

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 Affiliate Programme.

 

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 legislation and/or regulations relating to the use of cookies and will use all necessary notification procedures regarding the use of cookies to all visitors.

 

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 Company.

 

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 that:

(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 disclosed; or

(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 Agreement.

 

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. Payments

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 Affiliate.

 

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 betting operators.

 

In the case of Irish Horse Racing Tote Bet Wagering, Tote’s Percentage Takeouts are:

 

 Win

 20%

 Place

 25%

Pick 6

30%

 All Other Wager Types

 30%

 

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

Percentage Commission

€0 to €999

25%

€1,000 to €4,999

30%

€5,000 to €9,999

35%

€10,000 & Above

40%

 

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 date.

 

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 Registration Form).

 

6.12 No Payments will be due in respect of:

(a) any 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;

(b) any 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 means;

(c) any 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 time).

 

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. Warranties

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.

 

 8. Indemnity

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. Liability

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 law.

 

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 software;

                 (iii) reputational damage or damage to goodwill;

                 (iv) loss of any commercial opportunity; or 

                 (v) indirect, special or consequential loss or damage;
(b) the Company will not be liable for any losses arising out of a Force Majeure Event;
(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 Agreement.

 

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 other.

 

10.3 The affected Party will take reasonable steps to mitigate the effects of the Force Majeure Event.

 

11. Termination

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 the Affiliate.

 

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. Territories

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. General

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 deleted).

 

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 Parties.

 

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.