This affiliate agreement (the Agreement ) sets out the complete terms and conditions between Cherry Malta Ltd (Malta), whose principal place of business is situated at 8th Floor, Tagliaferro Business Centre, 14 Gaiety Lane c/w High Street, Sliema SLM 1551, Malta (together, or individually as the context requires, CherryAffiliates ), and you, regarding your application to participate as an affiliate (an Affiliate ) in the CherryAffiliates affiliate programme (the “Affiliate Programme” ). It is important that you read and understand this Agreement. By completing an application to join the Affiliate Programme you are – subject to CherryAffiliates’ approval of your application – agreeing to the terms and conditions of this Agreement. If you do not agree to the following terms and conditions you should discontinue your application. 1.1 This Agreement replaces all previous terms and conditions relating to the Affiliate Programme or any previous affiliate programme offered by CherryAffiliates. You agree that this Agreement supersedes all previous agreements you have had with CherryAffiliates or any Group Company (as defined below).
"Affiliate" means a customer who has signed up to the CherryAffiliates program in order to promote CherryAffiliates brands through Affiliate’s links.
"Affiliate Payment" means any Revenue Share, Hybrid Payments and/or Bounty Payments;
"Affiliate Programme" means an Internet marketing practice that connects businesses selling products online with websites related to those products. The websites are run by third parties who sell products and services for the Internet company and in return receive a commission.
"CherryAffiliates" means the website at http://cherryaffiliates.com and its advertised program;
"Application" means your application to join the Affiliate Programme via the Affiliate Programme Site;
"Cherry Malta Ltd" means between Cherry Malta Ltd (Malta), whose principal place of business is situated at 8th Floor, Tagliaferro Business Centre, 14 Gaiety Lane c/w High Street, Sliema SLM 1551, Malta "Business Day" means any day (excluding Saturdays and Sundays) which is not an official public holiday in Malta;
"Bounty Payments" means the bounty payments described in clause 4.5;
"Code" means the unique code that may be used by Customers when registering for an account with CherryAffiliates which is made available to you via the Affiliate Programme Site;
"Commencement Date" means the date on which CherryAffiliates confirms that your application to join the Affiliate Programme has been accepted;
"Confidential Information" means all information in any form relating to a party (and any Group Company in the case of CherryAffiliates) (the "Disclosing Party" ) that is directly or indirectly disclosed to the other party (the "Receiving Party ), including any personal data and/or customer data, by any of the Disclosing Party’s employees, professional advisers or contractors before or after the Commencement Date;
"Customers" means all persons who open an account with Cherry Malta Ltd or a Group Company for the first time either using a Code or who arrive at cherryaffiliates.com or any other cherryaffiliates.com site by clicking on the Links on the Internet Site;
"Good Industry Practice" means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced contractor acting in good faith;
"Group Company" means Cherry Malta Ltd (Malta) and any body corporate which is from time to time a holding company of that company, a subsidiary of that company or a subsidiary of a holding company of that company ("holding company and "subsidiary having the meanings attributed to them by Article 2 of the Companies Act – Cap 386 of the Laws of Malta) and shall include any company in which a Group Company has a shareholding of 50% or more;
"Hybrid Payment" means the hybrid payments described in clause 4.6;
"Immediate family" means your spouse, partner, parent, child or sibling;
"Internet Site" means your website or websites located at the web address(es) provided to CherryAffiliates in your Application or subsequently changed from time to time and notified to CherryAffiliates via the Affiliate Programme Site;
"IPR" means any and all patents, trademarks, service marks, rights in designs (including semi-conductor topography design rights and circuit layout rights), get-up, trade, business or domain names, goodwill associated with the foregoing, e-mail address names, copyright including rights in computer software (in both source and object code) and rights in databases (in each case whether registered or not and any applications to register and rights to apply for registration of any of the foregoing), rights in inventions and web-formatting scripts (including HTML and XML scripts), know-how, trade secrets and other intellectual property rights which may now or in the future subsist in any part of the world including all rights of reversion and the right to sue for and recover damages for past infringements;
"Links" means hypertext links (either a banner or text link) downloaded from the Affiliate Programme Site that link to the web page http://cherryaffiliates.com or any other site owned or controlled by Cherry Malta Ltd or any Group Company;
"Net Casino Winnings" means total winnings from Customers (stakes received less winnings paid out) made by the casino product accessible via the brands that fall under the CherryAffiliates program less any payments to third party software providers, the cost of any promotional offers (including any sign up bonuses), any jackpot contributions, adjustments made for any credit card charge-backs or any other reversal of a payment, fraudulent or otherwise voided or modified transactions, bad debt, and liability to any betting duty or licensing fees for data or other duty, tax or expense that may arise;
"Net Lottery Winnings" means total winnings from Customers (stakes received less winnings paid out) made by the Lottery product accessible via the www.eurolotto.com website less any payments to third party software providers, the cost of any promotional offers (including any sign up bonuses), any jackpot contributions, adjustments made for any credit card charge-backs or any other reversal of a payment, fraudulent or otherwise voided or modified transactions, bad debt, and liability to any betting duty or licensing fees for data or other duty, tax or expense that may arise;
"Parties" means the parties to this Agreement;
"Revenue Share" means the revenue share payments described in Clause 4.3; and
1.2 In this Agreement (except where the context requires otherwise)
2.1 In consideration of you making the Links available on the Internet Site and subject to the terms and conditions of this Agreement, CherryAffiliates will procure that you are granted a non-exclusive, non-transferable, terminable licence to use the Links on the Internet Site solely for your internal business purposes and in accordance with such other limitations and restrictions as set out in this Agreement.
2.2 It is a condition of this Agreement that you will not do any of the following:
3.1 You warrant and undertake that:
3.2 You agree that:
3.3 You warrant that:
4.1 In consideration of the display of the Links and Code and introducing Customers and subject to clause 15 of this Agreement, you will be entitled to payment on the following terms.
4.2 You will be able to indicate your initial preferred payment option ("Commission Option ) upon having been approved to join the program. The chosen option will be confirmed by CherryAffiliates once CherryAffiliates accepts your Application.
4.3 Subject to these terms, if you select a Revenue Share, CherryAffiliates shall pay you in respect of each Customer:
4.4 If you select a Bounty Payment CherryAffiliates shall pay you the selected payment or current standard payment which is payable in accordance with the terms on the Affiliate Programme Site.
4.5 If you select a Hybrid Payment CherryAffiliates shall pay you:
4.6 You may request to change your Commission Option via the Affiliate Programme Site no more than once every calendar month. CherryAffiliates may accept or reject any such request in its complete discretion. If your request is accepted the new Commission Option will come into effect on the 1st of the following calendar month and will only apply to Customers introduced after that date.
4.7 CherryAffiliates may withdraw a Commission Option at any time by giving notice to you. You will then be required to select another Commission Option via the Affiliate Programme Site which will apply to any Customers whose date of first registration is on or after your date of selection.
4.8 You will be able to review statements showing the number of Customers introduced by you via the Links or using the Code and Affiliate Payments, if any, which have accrued over the course of the calendar month, using the Affiliate Programme Site. Such statements are for information purposes only. CherryAffiliates will endeavour to ensure that such statements will be updated daily but is under no obligation to do so. Provided that you have reached the threshold set out in clause 4.10, CherryAffiliates will, at the end of a calendar month, inform you of the amount of the Affiliate Payments, if any, for the preceding calendar month (the "Amount Due" ).
4.9 In the event that the Amount Due for a calendar month is a negative amount, CherryAffiliates will not carry forward or set off such negative amount against Amounts Due for future months which would otherwise be payable to you. If the Amount Due for a particular calendar month does not exceed 50 EUR or the equivalent in any other currency, CherryAffiliates will be entitled to withhold and carry forward such amount to the end of the next calendar month in which the Amount Due (including any sums carried forward in this way) exceeds 50 EUR or the equivalent in any other currency, at which time payment shall be made in accordance with clause 4.11.
4.10 Subject to clause 4.10 Amounts Due to you in respect of a calendar month will,
4.11 All payments made to you by CherryAffiliates under this Agreement are
4.12 In the event that a Customer:
5.1 In addition to payments to be made under clause 4 above, where a new affiliate registers for the Affiliate Programme for the first time via the Links (a "Sub-Affiliate ) you will be entitled to a payment equivalent to the percentage notified to you via the Affiliate Programme Site, of any payments made to such Sub-Affiliate under its affiliate agreement with CherryAffiliates.
5.2 Sub-Affiliates may not be directly or indirectly owned or controlled by you or your Immediate Family and you shall not be entitled to any payment under this Agreement in relation to such a Sub-Affiliate.
5.3 In the event that any Affiliate Payment to a Sub-Affiliate is reclaimed under the terms of its agreement with CherryAffiliates or payments are made to you in breach of clause 5.2 above you will promptly repay the amount paid on receiving notice from CherryAffiliates. CherryAffiliates will be entitled, but not obliged, to set-off any amount owed as a result against future payments under this Agreement.
5.4 All payments under clause 5 will terminate when payments to the relevant Sub-Affiliate end for whatever reason.
5.5 CherryAffiliates may change the level of any payment due under clause 5.2 above in respect of future Sub-Affiliates you refer at any time by giving notice to you.
5.6 Payments under clause 5 will be made in accordance with clauses 4.10 to 4.12above.
6.1 CherryAffiliates will notify you if it decides, in its absolute discretion, to raise invoices on your behalf in respect of the services you supply under this Agreement as part of a self-billing arrangement.
6.2 In the event that CherryAffiliates notifies you that it will raise invoices on your behalf and you are VAT registered in a member state of the European Union, you agree:
7.1 All IPR in the Links belongs to Cherry Malta Ltd. All IPR in any third party materials shall belong to the third party owner thereof.
7.2 Nothing in this Agreement purports to grant a licence, provide any warranty or offer any indemnity in respect of any data that is not owned by CherryAffiliates or a Group Company. In the event that you require access to any such data, you agree that you will give CherryAffiliates an opportunity to secure rights to the same and (if it becomes necessary to do so) you will pay the costs of securing a licence to the same from the relevant third party data owner or either party may terminate this Agreement immediately.
7.3 Each party shall immediately notify the other party if any claim or demand is made or action brought against it for any infringement or alleged infringement of any IPR which may affect the supply or use of the Links.
8.1 You acknowledge that the security of Cherry Affiliate’s data and its systems is fundamental to the business of CherryAffiliates and its Group Companies, and if you become aware of a breach or potential breach of security relating to the Links, you will immediately notify CherryAffiliates of such breach or potential breach and use your best endeavours to ensure that any potential breach does not become an actual breach and/or to remedy any actual breach and its consequences.
8.2 You warrant that you will at all times comply with the provisions of the Data Protection Act (Cap 440 of the Laws of Malta) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 as updated and amended from time to time and any equivalent legislation in any jurisdiction which is applicable to the Internet Site and your activities.
9.1 During the term of this Agreement and after termination or expiration of this Agreement, each party shall not use any Confidential Information belonging to the other party for any purpose other than in pursuance of its rights and obligations under this Agreement nor disclose any of the other party’s Confidential Information to any person except with the prior written consent of the other party and shall follow Good Industry Practice to prevent the use or disclosure of the Confidential Information. This obligation will not apply to any Confidential Information that
9.2 Each party may disclose any Confidential Information to its directors, other officers, employees, advisers and sub-contractors and to those of any company in its Group to the extent that such disclosure is reasonably necessary in order to comply with its obligations under this Agreement and provided that they are subject to equivalent confidentiality obligations as those set out in this clause.
9.3 On termination of this Agreement each party shall (on request) deliver up to the other party or destroy all copies of Confidential Information in its possession, and (if so requested) shall use all reasonable endeavours to destroy all copies of Confidential Information stored electronically except to the extent that it is obliged to retain such information under any law, regulation or licence condition applicable to that party or any company in its Group.
9.4 The parties shall together determine the content of any communications concerning the relationship between the parties. Such communications shall be issued at a time and in a manner agreed by the parties. You will indemnify and hold harmless CherryAffiliates, its Group Companies and Cherry Malta Ltd from and against any and all losses, demands, claims, damages, costs, expenses (including consequential losses and loss of profit, reasonable legal costs and expenses and VAT thereon if applicable) and liabilities suffered or incurred, directly or indirectly, by CherryAffiliates or Cherry Malta Ltd in consequence of any breach by you of your obligations under this Agreement.
10.1 Save as provided by statute and to the fullest extent permitted by law, the following provisions set out the entire liability of CherryAffiliates, its Group Companies and Cherry Malta Ltd (including any liability for the acts and omissions of its employees, agents and sub-contractors) to you whether in contract, tort, statute, equity or otherwise:
10.2 No exclusion or limitation set out in this Agreement shall apply in the case of:
10.3 The time limit within which you must commence proceedings against CherryAffiliates to recover on any claim shall be 6 months from the date you become aware or should reasonably have become aware of the relevant breach that would form the subject of the claim.
11.1 Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control, and in such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 15 Business Days, the party not affected may terminate this Agreement immediately by giving notice to other party.
11 This Agreement shall commence on the Commencement Date and, subject to clause 11.2, shall continue until either party serves 20 Business Days’ written notice of an intention to terminate.
11.2 CherryAffiliates may terminate this Agreement immediately in the event that:
11.3 Clauses 11.2(b) and (c) will apply if any event occurs, or proceeding is taken, with respect to the Affiliate in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in those clauses.
12.1 Except as set out in clause 12.3 below, termination of this Agreement shall be without prejudice to any rights or obligations which shall have accrued prior to termination.
12.2 On termination of this Agreement all licences granted to the Affiliate pursuant to this Agreement will immediately terminate.
12.3 If CherryAffiliates terminates this Agreement under clause 11.2 or you terminate this Agreement under clause 11.1 (except when you do so following a material variation to the terms of the Agreement as provided herein) you will not be entitled to receive any further payments pursuant to clauses 4 and 5 following such termination.
12.4 Clause 9 together with any other clauses the survival of which is necessary for the interpretation or enforcement of this Agreement will survive termination of this Agreement for whatever reason.
13.1 You will not assign, novate, declare a trust of or otherwise dispose of this Agreement, or any part thereof, without the prior written approval of CherryAffiliates.
13.2 CherryAffiliates may assign or sub-contract any of its rights and obligations under this Agreement to a Group Company at any time without giving notice to you.
14 This Agreement constitutes the entire and only Agreement between the parties with regards to its subject matter and the parties confirm that they have not been induced to enter into this Agreement in reliance upon, nor has it been given, any warranty (including in particular any warranty as to merchantability, fitness for purpose or uninterrupted functionality), representation, statement, assurance, covenant, agreement, undertaking, indemnity or commitment of any nature whatsoever other than as are expressly set out in this Agreement and, to the extent that it has been, it unconditionally and irrevocably waives any claims, rights or remedies which it might otherwise have had in relation thereto.
15.1 Nothing in this Agreement and no action taken by the parties pursuant to this Agreement shall constitute, or be deemed to constitute:
16.1 No breach of any provision of this Agreement shall be waived or discharged except with the express written consent of the parties.
16.2 No failure or delay by a party to exercise any of its rights under this Agreement shall operate as a waiver thereof and no single or partial exercise of any such right shall prevent any other or further exercise of that or any other right.
16.3 CherryAffiliates may modify all or any part of this Agreement at any time. CherryAffiliates will give you five (5) Business Days’ notice of any such changes. If you do not agree to the changes you may serve notice to terminate this Agreement under clause 14.1 before the changes take effect and such changes will not apply for the duration of the notice period set out in clause 14.1. If you fail to terminate this Agreement and continue to participate in the Affiliate Programme you will be deemed to have accepted the changes made under this clause. The latest modified date of these terms and conditions will be displayed at the top of this Agreement.
17.1 Notices and communications from CherryAffiliates will be made by e-mail to the address provided by you on your application to join the Affiliate Programme.
17.2 You should send all notices and communications to the following email address firstname.lastname@example.org or such other e-mail address as notified to you via the Affiliate Programme Site from time to time.
17.3 Notices and communications will be deemed received 4 hours after being sent provided that if such notice would then be deemed to have been received outside the hours of 09:00 to 18:00 (CET time) it will be deemed to have been received at 09:00 on the next Business Day.
18.1 Except for any Group Company and Cherry Malta Ltd no third party may enforce any rights granted to it under this Agreement.
19.1 the Customer shall, upon request from the CherryAffiliates, do and execute, or procure that there shall be done and executed, all such documents, deeds, matters, acts or things as that other may at any time require to give it the full benefit of this Agreement.
20.1 This Agreement (and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this Agreement or its formation) shall be governed by and construed in accordance with Maltese law and the parties hereby irrevocably submit to the jurisdiction of the courts of Malta.
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Cherry Affiliates know they can trust us and that we always give them what's theirs.
Without delay and without negative balance carry-over. We offer you flexible commission rates, life time revenue, effective marketing tools and dedicated affiliate managers.
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