The following words and terms, used throughout this agreement and for the purpose of this agreement, are defined below:
- Affiliate: is defined as a natural or juristic person who has applied and is accepted by TopRefer Affiliate Programme as an affiliate of the affiliate programme in terms of this agreement. Said affiliate may or may not be associated with another natural or juristic
person as a parent, subordinate, subsidiary, or member.
- Affiliate programme: is defined as the affiliate programme operated by TopRefer Affiliate Programme
- Commission: is defined as the commission structure detailed in the Revenue Model section of the TopRefer Affiliate Programme website.
- Confidential information: is defined as:
- Any information of whatever nature obtained by the affiliate from TopRefer Affiliate Programme and/or the merchant and/or its licensors, whether relating to TopRefer Affiliate Programme’s or a merchant’s information and whether in writing or in electronic form or pursuant to discussions between TopRefer Affiliate Programme. Confidential information also can refer to information procured through inspection, testing, visual examination or analysis, (including, without limitation, scientific, business or financial data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, sample reports, models, customer lists, price lists, studies, findings, computer software, inventions or ideas).
- All material, analyses, concepts, compilations and studies compiled from such information specified in this definition in the possession or control of the affiliate. This extends to any dispute between the affiliate and TopRefer Affiliate Programme or the affiliate and a merchant resulting from this agreement;
- Copyright: is defined as and extends to existing and future copyright in the trademark devices, logos, branding, trade dress, websites, marketing material and/or trading styles relating to, or incorporated in, the merchants websites.
- Customer: is defined as a person or entity directed by the affiliate in any manner to a merchant of the TopRefer Affiliate Programme and who can be linked to the affiliate’s ID and who opens an account with such merchant. The opening of an account with a merchant qualified said customer as a TopRefer Affiliate Programme merchant customer whereby all merchant rules, policies, and operating procedures will apply to them.
- Derivative domain: is defined as any domain name which is not a prohibited domain name, and that incorporates in its entirety, or in part, any of the trademarks.
- Derivative website: is defined as a website established by the affiliate, which incorporates in its entirety, or in part, any of the intellectual property.
- Fraudulent activity: is defined as deception which in the sole opinion of the TopRefer Affiliate Programme is intentionally carried out by a customer or affiliate in order to obtain a real or potential, unfair or unlawful gain.
- Intellectual property: is defined as:
- the trademarks; and
- the copyright.
- IP documentation: is defined as the written document(s) published by the merchant and/or TopRefer Affiliate Programme on the TopRefer Affiliate Programme website.
- Licence: is defined as a non-transferable and non-exclusive right awarded to the affiliate by the merchant to use the intellectual property for the sole purpose of directing customers to the respective merchants website/s, in accordance with the terms and conditions of this agreement.
- Marketing material: is defined as the forms of branded and creative material, including but not limited to, various forms of online and offline marketing material, online banners, html and text mailers, and promotional material that TopRefer Affiliate Programme may
provide the affiliate.
- Merchant: is defined as Suzhou NV, a licensed operator of online gaming businesses licensed to operate online gaming businesses and trading under the following names: Villa Fortuna Casino; Big Dollar Casino. These shall be referred to as the merchant brands, and may be changed by the merchant.
- Any breach by the affiliate of any warranty, representation, or agreement contained in this agreement;
- The performance of the affiliates duties and obligations under this agreement;
- Merchants websites: are defined as websites located at, but not limited to, the following urls
www.betbigdollar.com or www.betvillafortuna.com
- Merchants products: are defined as Villa Fortuna Casino and Big Dollar Casino.
- Notice: is defined as a written document, including email communication.
- Parties: is defined as TopRefer Affiliate Programme, the merchant and the affiliate.
- Prohibited domain name: is defined as a domain name, irrespective of territory or top level domain (TLD), which is identical or similar to TopRefer Affiliate Programme, and/or the merchant’s and/or the merchant’s licensors’ trademarks and/or services marks. Affiliates are thereby restricted from registering, acquiring and/or using in any manner or form whatsoever these prohibited domain names.
- TopRefer Affiliate Programme: is defined as Villa Fortuna Casino and Big Dollar Casino trading as TopRefer Affiliate Programme.
- Second-tier affiliate: is defined as an entity or person that the affiliate directs in any manner to TopRefer Affiliate Programme and who can be linked to the affiliate’s affiliate ID. This entity or person becomes an affiliate of TopRefer Affiliate Programme.
- Spam: is defined as any unwanted electronic mail message of a commercial nature advertising or promoting a product or service.
- Agreement: is defined as this affiliate agreement, including the online application form, these terms and conditions and all appendices incorporated therein by reference, including all future updates and additions thereto.
- Trademarks: are defined as those trademark applications and registrations listed in the IP documentation, including equivalent and/or similar applications and registrations in all other countries, the goodwill and/or reputation which attaches to all the aforementioned, as well as the goodwill and/or reputation in the getup, trade dress and/or trading style which relate to or are associated with the registered and/or unregistered trademarks.
- Written /writing: is defined as communication in written form, including e-mail
- Term: is defined as the period that begins upon acceptance and activation of an Affiliate Partner account and remains in full force until the account is terminated in accordance with this agreement.
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- An affiliate must successfully fulfil the requirements of clause 3 of this agreement prior to this agreement coming into force and effect. The affiliate’s successful application to join the affiliate programme in terms of clause 3 constitutes the affiliate’s acceptance of this agreement and is subject to the affiliate’s continued adherence to the terms and conditions of this agreement.
- The affiliate should be advised that many of the provisions of these terms and conditions have been set out for the benefit of the merchant and or its licensor, who has accepted all benefits so created and imposed.
- By applying to be registered as an affiliate of the TopRefer Affiliate Programme, the affiliate certifies that all of their marketing activities adhere to the European Gaming and Betting Association (EGBA) - http://www.eu-ba.org/en/ - Code of Conduct.
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- TopRefer Affiliate Programme shall assess the affiliate’s application on submission thereof.
- To ensure the timely evaluation of an affiliate application, the affiliate will furnish the TopRefer Affiliate Programme with the following information:
- A list of derivative domain names;
- Information on how these domain names are being used;
- Information on the quality of a derivative website including but not limited to information about the websites content, and design;
- The affiliates application information will be compared to the domain name registration information in a whois database for those domain names identified in clause 3.2.1 above;
- Information about the affiliate’s area of focus, including but not limited to
online casinos, sportsbooks, and bingo initiatives;
- The affiliate’s preferred marketing methods; and
- The affiliate’s target market.
- After submitting the required information stipulated in clause 3.2, the affiliate will be required to confirm the information provided on registration, as well as any additional information provided in terms of clause 3.2.
- The affiliate must provide proof of identification including, where possible, a government-issued identification number.
- The affiliate must also provide TopRefer Affiliate Programme with its banking details and preferred method of payment for the payment of commission.
- Once the requirements of clause 3.1 to clause 3.5 are met, the affiliate will be notified in a timely manner of TopRefer Affiliate Programme’s acceptance or rejection of the application. The affiliate acknowledges and agrees that the acceptance of his application depends on its compliance with the provisions of this clause. The acceptance or rejection of any affiliate application is at the sole discretion of the TopRefer Affiliate Programme.
- If an affiliate’s application in accepted, TopRefer Affiliate Programme will award a licence in accordance with clause 4 of this agreement.
- Submission of an application by an affiliate constitutes as agreement and consent for TopRefer Affiliate Programme to independently verify any information provided to it by the affiliate, for the purposes of the application and for specific requests going forward.
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- Once an affiliate is granted a licence by TopRefer Affiliate Programme, the affiliate is only allowed to acquire and use a derivative domain name/s; establish, host, publish and market a derivative website; and acquire and make use of the Merchant’s marketing material; for the sole benefit of the Merchant.
- The affiliate does not have the right to sub-licence the Intellectual Property in any way whatsoever, either in its entirety or in part to any third party.
- Any right not specifically granted in terms of this Agreement is specifically reserved for the exclusive use of the Merchant and/or its licensors.
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- Prohibited Domain Names:
- The affiliate may not register a prohibited domain name.
- Should an affiliate register a Prohibited Domain Name, and without prejudice to any legal remedy or right that the Merchant and/or its licensors may have in law, TopRefer Affiliate Programme and/or the Merchant shall be entitled to terminate this Agreement with immediate effect and claim transfer of the Prohibited Domain Name to the Merchant.
- TopRefer Affiliate Programme shall have sole discretion as to whether a particular domain is a Prohibited Domain Name. The merchant’s decision in this regard is final and binding.
- Derivative Domain Names:
- One or more derivative domain names may be registered by the affiliate.
- The affiliate will supply TopRefer Affiliate Programme with a written, correct and inclusive list of Derivative Domain Names that the Affiliate has or intends to register, acquire or use. Any new additions or amendments to the Affiliates list of Derivative Domain Names will be communicated to TopRefer Affiliate Programme as soon as is reasonably possible.
- The affiliate recognises and accepts that Derivative Domain Names will at all times remain the beneficial property of the Merchant and/or its licensors and in this regard agrees to hold the Derivative Domain Name in Trust on behalf of the Merchant for the Term. On expiry of the Term the Affiliate will transfer, or cause to be transferred, all Derivative Domain Names to the Merchant, or an entity duly nominated by the Merchant in writing, without delay.
- In order to comply with the provisions of clause 6.2.3, the affiliate hereby undertakes to sign and/or complete any and all documents or procedures, and do all things necessary to facilitate the speedy and proper transfer of all Derivative Domain Names to the Merchant, or an entity duly nominated by the Merchant in writing.
- All rights or advantages, and without limitation goodwill, that may arise due to the use of the Derivative Domain Name will accrue for the sole benefit of the Merchant and its licensors.
- Should a certain Derivative Domain name no longer be required by an affiliate, the affiliate will, in a timely manner prior to the URL expiring, inform TopRefer of its intention not to pay the renewal fee, and will, if requested to do so by TopRefer Affiliate Programme, provide all necessary assistance to transfer the Derivative Domain Name to the Merchant, or an entity duly nominated by the Merchant in writing, without delay.
- Without exception, a Derivative Domain Name may only be used for the following purposes:
- To resolve to the respective merchants website; or
- To resolve to a Derivative website; on condition that: if the affiliate is marketing and promoting only one of the merchant’s websites, the affiliate may only market and promote the particular merchant website corresponding with the derivative domain name; if the Affiliate is marketing and promoting more than one of the Merchant’s Websites the affiliate shall give prominence to the Merchant Website corresponding with the Derivative Domain Name; the Derivative Website does not market and/or promote competitor brands or products.
- TopRefer Affiliate Programme and/or the Merchant reserve the right, in their sole discretion, to terminate this Agreement with immediate effect and claim transfer of the Derivative Domain Name to the Merchant if the affiliate, its agent or nominee does not
strictly adhere to the provisions of clause 6.2.7.
- The Merchant has sole discretion as to whether a Derivative Domain Name is a Prohibited Domain and the Merchant’s decision in this regard will be final and binding on the affiliate.
- Derivative Websites and Marketing Material
- If the affiliate elects to establish and promote a derivative website, the affiliate will ensure that the derivative website complies in all aspects with the guidelines published in the IP documentation as may be updated from time-to-time.
- The affiliate will be solely responsible for the development, operation, and maintenance of the Derivative website; the content of its website; and ensuring, amongst others, that any and all content posted on the website, including, but not limited to, images, graphics, data and text, are not libellous or otherwise illegal.
- It is left to the Merchant’s sole discretion as to whether the affiliate is fulfilling its responsibilities in terms of this clause. The Merchant’s decision in this regard will be final and binding on the affiliate. If required, the affiliate will take all necessary action prescribed by the Merchant or its designated agent to remedy the situation, failing which the Merchant shall be entitled to terminate the Agreement with immediate effect.
- The affiliate undertakes to use its best efforts to ensure that the reputation, goodwill and proprietary rights that vest in the Intellectual Property are protected, maintained and wherever possible, enhanced for the ultimate benefit of the Merchant and its licensors.
- Marketing Material
- Once the licence is grant to an affiliate, the affiliate will have access to the intellectual property and the marketing material via the TopRefer Affiliate Programme website, newsletters and Affiliate Managers.
- Without detracting from the affiliate’s other obligations in terms of the Agreement, the affiliate agrees to:
- Procure and use new and updated intellectual property and/or marketing material after it is made available to the affiliate by TopRefer Affiliate Programme and/or the merchant.
- The affiliate shall, when using the Intellectual Property and Marketing Material, ensure that they are reproduced and applied exactly and accurately as intended and shall use them in accordance with the instruction set out by the Merchant (whether in the IP Documentation or otherwise).
- A decision as to whether or not the affiliate is complying with its responsibilities in terms of this clause is left to the sole discretion of the Merchant. The Merchants decision in this regard will be final and binding on the affiliate, and if necessary the affiliate will take all necessary action prescribed by the Merchant or its designated agent to remedy the situation, failing which the Merchant shall be entitled to terminate the Agreement with immediate effect.
- It is permissible for the affiliate to design its own marketing material for the sole purpose
of sending customers to the Merchant’s websites, subject to the following terms and conditions:
- Marketing material designed by the affiliate will stringently adhere to the instructions and guidelines as set out in the IP documentation relating to the use and application of the intellectual property. If the use and/or application of any of the intellectual property is not specifically dealt with in the IP documentation, then prior to the intellectual property being used, the affiliate shall first obtain TopRefer Affiliate Programme’s written approval or instructions on how to proceed.
- TopRefer Affiliate Programme may request with such information and reports, including but not limited to samples of any marketing material, which the affiliate is required to provide.
- Any proposed changes to the Intellectual Property or Marketing Material that the affiliate may wish to make (and then only in terms of the guidelines laid down in the IP Manuals) shall be submitted to TopRefer Affiliate Programme for written approval prior to the use or publication thereof.
- The affiliate recognizes that the intellectual property will at all times remain the property of the merchant and/or its licensors. The affiliate recognizes that it has no claim or right of whatever nature in and to the intellectual property, other than those provided in terms
of the licence.
- The affiliate will not do or cause to be done any act or thing contesting, or in any way impairing or tending to impair, any part of the Merchants or the Merchants licensors rights, title and interest in and to the Intellectual Property.
- The affiliate shall not in any way represent that it has any rights of any nature in the Intellectual Property, other than those that it enjoys in terms of this Agreement.
- The affiliate will take all practical steps to ensure that its employees, agents, contractors or representatives are advised of its duties in terms of the Agreement and that it can give full effect to such duties.
- The affiliate shall, as soon as it becomes aware thereof, give TopRefer Affiliate Programme, in writing, full particulars of any use or proposed use by any other person, firm or company, of a trade name, trademark or mode of promotion or advertising or any element of the Intellectual Property, which amounts or might amount either to infringement of the Merchant’s rights in relation to the Intellectual Property or to any other form of passing-off.
- If the Affiliate becomes aware that any other person, firm or company claims that the Intellectual Property is invalid or that use of the Intellectual Property infringes any rights of another party or that the Intellectual Property is otherwise attacked or attackable, the Affiliate will immediately give TopRefer Affiliate Programme full particulars in writing thereof and shall make no comment or admission to any third party in respect thereof.
- The Merchant and/or its licensors shall have the sole conduct of all proceedings relating to the Intellectual Property and will in their sole discretion decide what action, if any, to take in respect of any infringement or alleged infringement of the Intellectual Property or passing-off or any other claim or counterclaim brought or threatened in respect of the use or registration of the Intellectual Property. The Affiliate shall not be entitled to bring or defend any action for infringement of the Intellectual Property, and the Merchant and/or its Licensors shall not be obliged to bring or defend any proceedings in relation to the Intellectual Property if they decide in their sole discretion not to do so
- The Merchant and/or its licensors will throughout the subsistence of this Agreement, at their own expense, maintain all Intellectual Property registrations in force and shall pay all renewal and any other fees necessary for this purpose. Should any of the Intellectual Property lapse or be held to be invalid for whatever reason, this Licence will continue in respect of the remainder of the Intellectual Property
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- TopRefer Affiliate Programme will sign up customers and track their purchases and their play where appropriate. The merchant has the right to refuse customers (or to close their accounts) if necessary, to comply with any requirements that they may
- TopRefer Affiliate Programme will supply the affiliate with such marketing material as is strictly necessary to market and promote the merchant’s websites and products.
- TopRefer Affiliate Programme will track customers' purchases and customers’ wins and losses and will provide reports summarising this activity. Notwithstanding this, the form, content and frequency of the reports may, at TopRefer Affiliate Programme’s discretion, vary from time to time. TopRefer Affiliate Programme will provide the affiliate with remote online access to reports of customer activity and the commission generated. To gain access the affiliate will need to use the affiliate’s affiliate number and password as provided to the affiliate by TopRefer Affiliate Programme.
- TopRefer Affiliate Programme will facilitate payment of commission from the merchant to the affiliate based on income TopRefer Affiliate Programme’s merchants earn from purchases and play from the affiliates customers after they open an account with the merchant. Payment shall only be made to the affiliate once TopRefer Affiliate Programme has received payment from the merchant. TopRefer Affiliate Programme reserves the right to change payment terms at any time and for any reason. see paragraph 12 below in relation to commission.
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- By applying to be an Affiliate Partner of the TopRefer Affiliate Programme, the affiliate warrants that:
- The information the affiliate supplies TopRefer Affiliate Programme on registration is comprehensive, valid and truthful;
- In the event the affiliate is a juristic person, the person submitting the application has the full right, power and authority to enter into this Agreement on behalf of such entity; and
- The execution of this Agreement by such person, and the performance by the affiliate of the affiliate’s obligations and duties hereunder, do not and will not violate any agreement to which the affiliate are a party or by which the affiliate are otherwise bound.
- The Affiliate hereby accepts the appointment as TopRefer Affiliate Programme’s Affiliate Partner in terms of Clause 3 above. The affiliate acknowledges that this Agreement does not grant the affiliate an exclusive right or privilege to assist TopRefer Affiliate Programme in the provision of services arising from the affiliate’s referrals. The Affiliate shall have no claims to Commissions or other compensation on business secured by or through persons or entities other than the affiliate.
- The Affiliate will not knowingly benefit from known or suspected traffic not generated in good faith, whether or not it actually causes damage to TopRefer Affiliate Programme , its Merchants, its Licensor or Affiliates. TopRefer Affiliate Programme , its Merchant and/or its Licensor has and reserves the right to terminate this Agreement immediately should such activity arise through a person directed to TopRefer Affiliate Programme or its Merchants Websites via the affiliate’s link and to withhold the Commissions payable to the affiliate at any time irrespective of whether such mentioned traffic was directed from the affiliate’s link with or without the affiliate’s knowledge.
- In the giving of effect to this Agreement the Affiliate may not, either directly or indirectly, be a party to the generation, processing, dissemination or the like of Spam.
- Any form of spam will result in the affiliates account being placed under review and all funds due to the affiliate being withheld pending an investigation. If the merchant and/or its licensor incur expenses and/ or damages in dealing with spam generated mail or being blocked by third party internet service providers these same expenses and/ or damages will be deducted from the affiliates account should the merchant and/or its licensor seek recourse against TopRefer Affiliate Programme. If this occurs, the amount of such expenses and/ or damages as determined by a merchant and/or its licensor will be deemed fair and final and acceptable to the affiliate. Should these expenses and/ or damages not be covered by funds in the affiliates account TopRefer Affiliate Programme has the right to investigate other alternative means for obtaining payment, for example: should the affiliate’s account have generated purchasing accounts TopRefer Affiliate Programme will hold payment of commission for these accounts until such a time as the account for expenses and/ or damages has been cleared. Should the affiliates account not be active nor be generating profit through commission payments TopRefer Affiliate Programme shall have the right to demand payment from the affiliate.
- Should the Affiliate require more information regarding TopRefer Affiliate Programme’s Spam policy, please contact TopRefer Affiliate Programme at support@TopRefer.com.
- Should the Affiliate wish to report any incidences of spam, please contact TopRefer Affiliate Programme support@TopRefer.com.
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- Except as otherwise provided in this agreement or with the consent of any other parties hereto, all parties agree that all information, including, but not limited to, the terms of this agreement, business information and technology concerning TopRefer Affiliate Programme or the affiliate, respectively, or any of TopRefer Affiliate Programme’s affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be used, directly or indirectly, by such party for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than such party hereto or its affiliates.
- During the term of this agreement, the affiliate may be entrusted with confidential information relating to the business, operations, or underlying technology of TopRefer Affiliate Programme’s merchants and/ or the affiliate programme (including, for example, commission earned by the affiliate under the affiliate programme). The affiliate agrees to neither disclose nor allow unauthorised use of the confidential information by third persons or outside parties unless the affiliate has TopRefer Affiliate Programme’s prior written consent and that the affiliate will use the confidential information only for the purposes necessary to further the purposes of this agreement. The affiliate’s obligations with respect to confidential information shall survive the termination of this agreement. An affiliate may not be a party ( whether directly or indirectly) to any fraudulent activity.
- Within 3 (three) months after the termination of this agreement, for whatever reason, the recipient of confidential information shall return same or at the discretion of the original
owner thereof, destroy such confidential information, and shall not retain copies,
samples or excerpts thereof.
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- The affiliate shall conform to any relevant data protection laws in the jurisdiction in which the affiliate is domiciled and any jurisdictions in which the affiliate operates.
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- The affiliate may not directly or indirectly benefit from, or be a party to, any money laundering or related illegal activities.
- It is recorded that some jurisdictions in which TopRefer Affiliate Programme operates have strict laws on money laundering that may impose an obligation upon TopRefer Affiliate Programme to report the affiliate to the federal or local authorities within such jurisdictions, if TopRefer Affiliate Programme knows, suspects or has reason to suspect that any transactions in which the affiliate is directly or indirectly involved, amongst other things, involves funds derived from illegal activities or intends to conceal funds derived from illegal activities or involve the use of the affiliate programme or TopRefer Affiliate Programme’s merchants to facilitate criminal activity.
- If TopRefer Affiliate Programme has any knowledge or suspicion envisaged above it may: Immediately suspend, deregister or terminate the affiliate’s membership of the affiliate programme;
- TopRefer Affiliate Programme reserves the right to report the affiliate to the aforementioned federal or local authorities should TopRefer Affiliate Programme, at its absolute discretion, determine that it is obliged, by law, to do so.
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- The affiliate is restricted to one affiliate account only;
- The affiliate shall not earn Commission on the Net Win and of any Second-tier Affiliate if, in the case that the affiliate is a juristic entity, they are the affiliate’s employee, director, shareholder or agent or, in the case that the affiliate is a natural person, they are the affiliate’s employee, agent or direct family member;
- Shall not earn Commission on the Net Win on the affiliate’s own Customer Account nor on the Customer Account/s of the affiliate’s employees or immediate family members.
- If the affiliate or the affiliate’s employees sign up as a Customer at one of TopRefer Affiliate Programme’s Merchant’s Brands, TopRefer Affiliate Programme shall have the right to terminate this Agreement.
- Please see the Commission Deals link in the top menu which sets out the option, calculation and certain payment aspects of Commission, these explanations are specifically incorporated herein by reference.
- TopRefer Affiliate Programme has and reserves the right to pass on any financial costs to the affiliates account that TopRefer Affiliate Programme may incur due to fraudulent activity by the affiliate, the affiliate’s employees and/ or customers/ players whom the affiliate, has introduced to the Merchant.
- If TopRefer Affiliate Programme (in its sole and unfettered discretion) determines that an affiliate is abusing their Commission Model so as to unfairly gain an advantage, TopRefer Affiliate Programme may withhold any Commissions due to such affiliate and change the affiliate’s Commission Model to the Classic Commission Model.
- TopRefer Affiliate Programme will process the Commission earned by the Affiliate in the previous calendar month by the seventh (7th) working day of the following month. TopRefer Affiliate Programme shall not be liable to the affiliate in any manner whatsoever for late payments due to technical, third party or any other unforeseen events arising.
- Payment shall be made by TopRefer Affiliate Programme to the affiliate by way of the method selected by the Affiliate on registration, in US Dollars, EURO or British Pound.
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Sale of business
- This agreement can be terminated by TopRefer Affiliate Programme at any time should the affiliate fail to meet its obligations in accordance with this agreement.
- Notice of termination shall be given in writing by either party to the other. For purposes of notification of termination, delivery via e-mail is considered a written and immediate form of notification and the agreement shall accordingly terminate with immediate effect.
- All rights and licences granted to the affiliate in this agreement shall immediately terminate. The affiliate must immediately remove any reference to TopRefer Affiliate Programme and its merchants or merchants’ websites, brands or products from its site and disable any links from its site to same. In particular, the affiliate shall immediately remove access to any derivative website established by it.
- Upon termination for reasons other than breach of this agreement by the affiliate, the affiliate shall continue to be entitled for a period of one year to receive commission on the terms and conditions as specified herein.
- TopRefer Affiliate Programme may withhold the affiliate’s final six monthly payments for up to three months each to ensure that the correct amount has been calculated and paid.
- If TopRefer Affiliate Programme continues to permit activity (generation of revenue) from customers directed by the affiliate after termination, this shall not be construed to constitute a continuation or renewal of this agreement or a waiver of termination.
- The affiliate will return to TopRefer Affiliate Programme any and all confidential information and/ or customer information, including all copies in the affiliates possession, custody and control and will cease all uses of any of the intellectual property. The affiliate will take immediate steps to transfer ownership to the merchant, of each derivative domain name established by the affiliate, at the merchants cost, not exceeding that incurred by the affiliate on registering the derivative domain name.
- The affiliate, TopRefer Affiliate Programme and TopRefer Affiliate Programme’s merchants and their electronic cash provider, suppliers, contractors, agents, their directors, officers, employees, and representatives shall be released from all obligations and liabilities to each other occurring or arising after the date of such termination, except with respect to those obligations that by their nature are designed to survive termination, as set out in this agreement. termination will not exculpate the affiliate from any liability arising from any breach of this agreement that occurred prior to termination.
- TOPREFER AFFILIATE PROGRAMME MAY TERMINATE THIS AGREEMENT IF IT IS DETERMINED AT TOPREFER AFFILIATE PROGRAMME’S SOLE DISCRETION THAT THE AFFILIATES SITE IS UNSUITABLE. Unsuitable sites include but are not limited to, those sites that are aimed at children, promote violence, promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, promote illegal activities, or violate intellectual property rights, or are otherwise considered by TopRefer Affiliate Programme to bring TopRefer Affiliate Programme or its Merchants into disrepute or prejudice the interests of TopRefer Affiliate Programme or its Merchants in any way.
Death of affiliate
- TopRefer Affiliate Programme recognises that an affiliate may wish to sell his/ her/ its affiliate business to a third party. TopRefer Affiliate Programme requires an affiliate to recognise and respect that the personal qualities, probity and background of TopRefer Affiliate Programme affiliates is vital to TopRefer Affiliate Programme’s decision to accept a person as an affiliate of the affiliate programme.
- If an affiliate wishes to sell or otherwise dispose of the shares or assets of his/ her/ its affiliate business to a third party (or conclude any transaction of a similar nature with a third party that will result in an effective change in control of his/ her/ its affiliate business) the affiliate shall be required, prior to completing the sale, disposal or transfer, to:
- Give TopRefer Affiliate Programme no less than 30 (thirty) days prior written notice of such intention, concurrently provide such details as TopRefer Affiliate Programme may request which shall include, but not be limited to, the selling affiliate’s affiliate ID and full details of the intended purchaser (including their banking details and, if they are already an affiliate of the affiliate programme, their affiliate ID) and furnish TopRefer Affiliate Programme with an irrevocable consent and authority to pay the selling affiliates commission, after the sale is completed, to the purchaser.
- Make the deed of sale subject to the suspensive condition that TopRefer Affiliate Programme approve such buyer as an affiliate of the affiliate programme and that such intended purchaser shall, subject to TopRefer Affiliate Programme’s consent (at TopRefer Affiliate Programme’s sole discretion) join the affiliate programme.
- If TopRefer Affiliate Programme rejects the intended buyer as an affiliate of the affiliate programme and the selling affiliate nevertheless decides to proceed with the sale, TopRefer Affiliate Programme shall terminate this agreement insofar as it relates to the selling affiliate, the business sold and/ or the purchaser.
- In the event of an affiliate’s death, TopRefer Affiliate Programme shall require that the executor of the deceased affiliates estate (or similarly charged person) furnishes TopRefer Affiliate Programme with certified copies of their authority to act on the deceased affiliate’s estate’s behalf, the deceased affiliate’s death certificate and proof of the deceased affiliate’s beneficiaries’ identities.
- The affiliate hereby agrees that TopRefer Affiliate Programme shall be obliged to pay his/ her estate and/ or beneficiaries:
- Only once TopRefer Affiliate Programme has received the information required in clause 12.2.1 above; and
- Any sums that may have accrued to the deceased affiliate as commission prior to his/ her death (or would otherwise accrue thereafter) for a period of 12 (twelve) months after his/ her death. The affiliate hereby waives (on his/ her behalf and on behalf of his/ her estate, heirs, beneficiaries, successors or assigns) any rights that he/ she (or they) may have to any further sums of money and/ or commission under this agreement
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- The affiliate and TopRefer Affiliate Programme are independent contractors, and nothing in this agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. The affiliate shall have no authority to make or accept any offers or representations on TopRefer Affiliate Programme’s behalf. The affiliate shall not make any statement, whether on the affiliates site or otherwise, that conflicts with this clause.
- The affiliate will not be treated as an employee with respect to taxation, legislation, unemployment acts, or any other federal, state, or local statute, ordinance, rule, or regulation of any country whatsoever similar in purpose to the aforementioned code and acts.
- The affiliate shall not make any claims, representations, or warranties in connection with TopRefer Affiliate Programme or its merchants and the affiliate shall have no authority to, and shall not, bind TopRefer Affiliate Programme or its merchants to any obligations outside of this agreement, unless agreed to in writing by either TopRefer Affiliate Programme or its merchants.
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- The affiliate shall defend, indemnify, and hold TopRefer Affiliate Programme and its merchants and their electronic cash providers, suppliers, contractors, agents, their directors, officers, employees, and representatives harmless from and against any and all liabilities, losses, damages, and costs, including reasonable attorney's fees, resulting from, arising out of, or in any way connected with:
- Any breach by the affiliate of any warranty, representation, or agreement contained in this agreement;
- The performance of the affiliates duties and obligations under this agreement;
- The affiliates negligence; or
- Any injury caused directly or indirectly by the affiliates negligent or intentional acts or omissions, or the unauthorised use of TopRefer Affiliate Programme’s banners and link or this affiliate programme.
- Further, the affiliate will indemnify and hold TopRefer Affiliate Programme harmless from all claims, damages, and expenses (including, and without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of the affiliate’s site.
- TopRefer Affiliate Programme makes no express or implied warranties or representations with respect to the affiliate programme, TopRefer Affiliate Programme or commission payment arrangements (including, without limitation, their functionality, warranties of fitness, merchantability, legality, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, TopRefer Affiliate Programme makes no representation that the operation of its site (including service and tracking) will be uninterrupted or error-free. TopRefer Affiliate Programme will not be liable for the consequences of any such interruptions or errors.
- TopRefer Affiliate Programme will not be liable for direct, indirect, special, punitive or consequential damages or for any loss, of any nature whatsoever, arising from or in connection with this agreement or the affiliate programme, even if it has been advised of the possibility of such damages. Further, TopRefer Affiliate Programme’s aggregate liability arising with respect to this agreement and the programme shall not exceed the total commission paid or payable by TopRefer Affiliate Programme to the affiliate under this agreement. TopRefer Affiliate Programme’s obligations under this agreement do not constitute personal obligations of its directors, officers, consultants, agents or shareholders. Any liability arising under this agreement shall be satisfied solely from the referral fee generated and is limited to direct damages.
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- This agreement will be governed by the laws of Curacao, Netherlands Antilles, without reference to rules governing choice of laws. Any action relating to this agreement must be brought in Curacao, Netherlands Antilles and the affiliate irrevocably consents to the jurisdiction of its courts.
- Both parties shall give each other their mutual support in the giving of effect to the spirit, purport and object of this agreement.
- The affiliate may not assign this agreement, by operation of law or otherwise, without TopRefer Affiliate Programme’s prior written consent. Subject to that restriction, this agreement will be binding on and enforceable against the affiliate and TopRefer Affiliate Programme and the affiliate’s and TopRefer Affiliate Programme’s respective
successors and assigns.
- TopRefer Affiliate Programme’s failure to enforce the affiliates strict performance of any provision of this agreement will not constitute nor be construed as a waiver of TopRefer Affiliate Programme’s right to subsequently enforce such provision or any other provision of this agreement.
- TopRefer Affiliate Programme’s rights and remedies hereunder shall be mutually exclusive, i.e., the exercise of one or more of the provisions of this agreement shall not preclude the exercise of any other provision. The affiliate acknowledge, confirm, and agree that damages may be inadequate for a breach or a threatened breach of this agreement and, in the event of a breach or threatened breach of any provision of this agreement, the respective rights and obligations of the parties may be enforceable by specific performance, injunction, or other equitable remedy. Nothing contained in this agreement shall limit or affect any of TopRefer Affiliate Programme’s rights at law, or otherwise, for a breach or threatened breach of any provision of this agreement, it being the intent of this provision to make clear that TopRefer Affiliate Programme’s respective rights and obligations shall be enforceable in equity as well as at law or otherwise.
- Whenever possible, each provision of this agreement shall be interpreted in such a manner as to be effective and valid under applicable law but, if any provision of this agreement is held to be invalid, illegal or unenforceable in any respect, such provision will be ineffective only to the extent of such invalidity, or unenforceability, without invalidating the remainder of this agreement or any provision hereof. No waiver will be implied from conduct or failure to enforce any rights and must be in writing to be effective.
- This agreement will stay in effect for so long as TopRefer Affiliate Programme makes this service available, unless this agreement is terminated prior thereto in terms of
clause 13 above.
- TopRefer Affiliate Programme may amend, alter, delete, interlineate or add to any of the terms and conditions contained in this agreement or the commission schedule at any time and at TopRefer Affiliate Programme’s sole discretion, by posting a change notice or a new agreement on its site. such amendments, alterations, deletions, interlineations or additions may include, for example, changes in the scope of available commissions, fee schedules, payment procedures, and referral programme rules.
- Any amendments, alterations, deletions, interlineations or additions to this agreement or the commission schedule shall be effective immediately upon notice, which may be provided to the affiliate via e-mail or by display on the TopRefer Affiliate Programme website (hereinafter, “notice”). The affiliate’s use of the TopRefer Affiliate Programme website and/ or continued marketing of the merchants websites after such notice is given to the affiliate will be deemed acceptance of such amendments, alterations, deletions, interlineations or additions or the new agreement or commission schedule should this agreement or the commission schedule be replaced in its/ their entirety. Please review this agreement and the commission schedule periodically to ensure familiarity with its most current version.
- No purported modifications, amendments, alterations, additions, deletions or interlineations of this agreement or the commission schedule by the affiliate are permitted or will be recognised by TopRefer Affiliate Programme. None of TopRefer Affiliate Programme’s employees, officers or agents may verbally alter, modify or waive any provision of this agreement or the commission schedule.
- The parties agree that the merchant and its licensor shall be a third party to this agreement in terms of the contracts (rights of third parties) act 1999. The affiliate acknowledges that it is aware that the merchant and its licensors are relying on the provisions of this agreement and promises made by the affiliate. Accordingly the merchant and its licensors may enforce the provisions of this agreement as if it were a party hereto.
- Where this agreement is translated into another language and an inconsistency occurs between the English terms and the translated terms, the English terms will be taken as correct and binding.
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