Notice of Changes to FocalClick Operating Agreement
Posted October 7, 2015
Statement: Per Section 1.4 of the Operating Agreement, FocalClick is hereby providing proper notice of changes to the Operating Agreement effective October 7, 2015. The changes made to your Operating Agreement reflect the notice/addition of (i) The Mexos Affiliate Tracking System replacing our prior tracking software on or about October 7, 2015.(ii) Enhanced definitions of Fee Payment and Pay a Referral Fee (iii) High Rollers (iv) Right to withhold. The NEW Operating Agreement is now posted on our website. www.focalclick.com
The following are our complete terms and conditions to become a member of the Focal Click Affiliate Program. Please read this Operating Agreement carefully and completely. You can enroll as a member of the Focal Click Affiliate Program by creating a unique link to any of the participating Focal Click online casinos using text any of the methods located with the Focal Click website. BY LINKING TO ANY OF THE PARTICIPATING FOCAL CLICK ONLINE CASINOS, YOU ARE DEEMED TO HAVE AGREED TO BE BOUND BY ALL THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT. Peak Interactive N.V, the owner of Focal Click, will automatically become counter-party. IF YOU DO NOT WISH TO ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT CREATE A LINK TO ANY OF THE PARTICIPATING FOCAL CLICK ONLINE CASINOS.
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1. Our Rights and Obligations
1.1 Register your Customers
We will register your customers and will track their play. We reserve the right to refuse customers (or to close their accounts) if necessary to comply with any requirements we may periodically establish. ("Customer" means your customers that use the link from your site to ours and open an account with us. By opening an account with us, they will become our Customers and, accordingly, all Casino rules, policies, and operating procedures will apply to them.)
1.2 Track Customers' Play
We will track customers' play and will send you a report summarizing their activity. The form, content and frequency of the reports may vary from time to time based on our discretion. We will provide you with 24 / 7 remote online access to reports of customer activity and the referral fees generated. You can get access using your AFFILIATE ID and PASSWORD as provided by Focal Click.
1.3 Pay a Referral Fee
We will pay you referral fees on the NET REVENUE we earn from players directed from your referral after they open an account with any of the participating Focal Click online casinos and wager for real money. Focal Click pays earnings only on actual gross monies wagered in the casinos, less wins, bonuses, comps, gifts, chargebacks, progressive game contributions, levy/fees on revenues, deposits and/or applicable gaming tax.
1.4 Modification.
We may modify any of the terms and conditions contained in this Operating Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on our site which we will notify you of. Modifications may include, for example, changes in the scope of available referral fees, fee schedules, and Focal Click Affiliate Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE FOCAL CLICK AFFILIATE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE (WHICH WE WILL NOTIFY YOU OF) WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
1.5 Commitment for Confidentiality
We are committed at all time for secrecy and confidentiality of your identity and information. However, we shall be entitled to inform relevant authorities, online casino operators, other online service providers and banks, credit card companies, electronic payment providers or other financial institutions of your identity and of any suspected unlawful, fraudulent or improper activity, and you will cooperate fully with us to investigate any such activity.
1.6 Payments
We will make payments to you in accordance with the applicable payment plan, as set forth in our payment agreements.
1.7 Data Relating to Players.
It is clarified that any and all data relating to the Players shall be and remain our exclusive property.
2. Your Rights and Obligations
2.1 Linking to any of the participating Focal Click online casinos. By agreeing to participate in the Focal Click Affiliate Program, you are agreeing to create a unique link from your site to any of the participating Focal Click online casinos. You may link to any of the participating Focal Click online casinos using any of the methods contained within the pages of the Focal Click website. These are the only methods by which you may advertise on our participating online casinos behalf. We will terminate this Operation Agreement immediately if there is any form of spamming or if you advertise any of our participating online casinos in any other way. You shall not make any claims, representations, or warranties in connection with Focal Click or any of our participating online casinos and you shall have no authority to, and shall not, bind us to any obligations.
2.2 Agency Appointment By this Operating Agreement
We grant you the non-exclusive right to direct customers to our participating online casino sites and services, in accordance with the terms and conditions of this Operating Agreement. This Operating Agreement does not grant you an exclusive right or privilege to assist us in the provision of services arising from your referrals, and we obviously intend to contract with and obtain the assistance from others at any time to perform services of the same or similar nature as yours. You shall have no claims to referral fees or other compensation on business secured by or through persons or entities other than you.
2.3 Approved Layouts without our prior written approval
You will only use our approved advertising methods contained within the pages of the Focal Click website and will not alter them nor refer to Focal Click or Peak Interactive N.V. in any promotional materials.
2.4 Good Faith
You will not knowingly benefit from known or suspected traffic not generated in good faith whether or not it actually causes Focal Click or any of our participating online casinos damage. We reserve the right to retain all amounts due to you under this Operating Agreement if we have reasonable cause to believe that such traffic has been caused with your knowledge. Even if you have not knowingly generated such traffic, we reserve the right to withhold referral fees with respect to such traffic.
2.5 Responsibility for Your Site
You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. For example, you will be solely responsible for ensuring that materials posted on your site are not libelous or otherwise illegal. Focal Click and all of our participating online casinos disclaim all liability for these matters. Further, you will indemnify and hold Focal Click and all of our participating online casinos harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of your site.
2.6 Playtech
No affiliation can be made between Playtech/iPoker (the gaming software) and your site.
2.7 License to use Marks
We hereby grant to you a non-exclusive, non-transferable license, during the term of this Operating Agreement, to use any of the intellectual-property marks (licensed, in turn by us, from their owner) from any of the participating Focal Click online casinos solely in connection with the display of the approved advertising methods contained within the Focal Click website on your site. This license cannot be sub-licensed, assigned or otherwise transferred by you. Your right to use the marks is limited to and arises only out of this license to use the approved advertising methods contained within the Focal Click website. You shall not assert the invalidity, unenforceability, or contest the ownership of the marks in any action or proceeding of whatever kind or nature, and shall not take any action that may prejudice our or our licensor's rights in the marks, render the same generic, or otherwise weaken their validity or diminish their associated goodwill.
2.8 Confidential Information During the term of this Operating Agreement
You may be entrusted with Confidential Information relating to the business, operations, or underlying technology of any of the participating Focal Click online casinos and/or the Focal Click Affiliate Program (including, for example, referral fees earned by you under the program). You agree to avoid disclosure or unauthorized use of the Confidential Information to third persons or outside parties unless you have our prior written consent and that you will use the Confidential Information only for purposes necessary to further the purposes of this Operating Agreement. Your obligations with respect to Confidential Information shall survive the termination of this Operating Agreement.
2.9 Legality of Use
You accept sole responsibility for determining whether your participation in our Affiliate Program is legal under any laws that apply to you. You understand that we do not provide you with any legal recommendation or assurance regarding such legality. Please consult legal counsel in the applicable jurisdiction if you have any doubts about the legality of your participation in our Affiliate Program or the receipt of any payments from us, under any applicable laws
2.10 Non-Competition
You may not bid on any keywords or keyword phrases which include the words SunPoker, SunPoker.com, Sun Poker, Omni Casino, OmniCasino.com, FlyCasino, FlyCasino.com or any variation thereon, including but not limited to Sun-Poker, Omni-Casino, Fly-Casino, in any format in any pay-per-click search engine. You may not use derivatives of Omni Casino, Fly Casino, SunPoker in domains without prior written consent from a Focal Click affiliate manager. Any affiliate earning commissions from top level domains including Omni Casino, FlyCasino, SunPoker or their derivatives without prior written consent may forfeit their commissions for referrals during this time.
3. Eligibility
3.1 Focal Click Affiliate Members or Associates Not Eligible Members of the Focal Click affiliate program who register wagering accounts at any of the participating online casino member sites in the Focal Click program will not be eligible for referral / affiliate fees as this is deemed to be a conflict of interest. If a Focal Click affiliate program member is found to have any such wagering accounts, a Focal Click staff member will inform the Focal Click affiliate member via email that the account will be removed from earning any such referral / affiliate fees. If it is determined by Focal Click that there is an affiliation between you, any member of your staff, company or family member who is playing in any one of the casinos through your affiliate ID, the management reserves the right to withhold any payment of affiliate earnings.
4. Fee Payment
We will pay you a 25 - 40% commission based on the NET Revenue generated by each customers’ settled funds that is referred by you to any to the participating Focal Click online casinos. We retain the right to change your chosen payment Fee Payment plan upon notice to you. Any such change will take effect only from the date of such notice.
4.1 Negative Balances
With the exception of section 4.1a contained herein, Negative balances (your referred customers win during the month) will not be carried over to the following month. Negative balances will default to zero at the beginning of the following month in order to give you a fresh start for the month.
4.1a High Roller Negative Carry Over
In the event that High Roller players cause high fluctuations from month to month negatively impacting an Affiliates earnings, Management explicitly reserves the right to a) Classify and segment a player as a High Roller and b) To fence such player(s) with negative carry-over as determined for specific situations. This is necessitated by monthly volatility. In an effort to protect general player population earnings, Affiliates will be paid for general population players as customary, but negative carry-over will apply to segmented classified High Roller players. While we reserve the right to classify and de-classify any player as a High Roller at our discretion, the general criteria for determining a High Roller is: if in any given month a player(s) generates negative revenue (for the affiliate) of $5,000 or greater, said Player(s) can/shall be considered a high roller and subject to negative carry over status.
4.2 CPA Payments
In some instances, an affiliate will paid based on a CPA Payment Plan. A CPA Payment is the one-time payment for every qualifying Player payable to you based on your agreement with Focal Click. Please note the following with regard to the CPA payment plan: (i) In any event of a Chargeback or issuance of credit to a qualifying Player, such a Player will not be considered for the purpose of the CPA plan, and any CPA Payment made to you in respect of such player shall be deducted from future payments to you; and (ii) A CPA Payment will be due and payable to you in respect of a qualifying player only upon the first registration of such player in one of the Sites and the depositing of the minimum required amount as agreed upon with Focal Click affiliate managers. Any subsequent activities of such player in that Site or in other Sites, including playing different games in that Site or in other Sites or on different platforms (for example, playing Poker after Casino games), will not entail any additional payment to you. A CPA Payment will be paid to you only once for each qualifying player, regardless of the number of Sites and/or number or type of games played by that player.
4.3 Right to Withhold Amounts and Dormancy
We reserve the right to withhold any and all amounts due and payable to you under this Agreement if we believe that any Fraud has taken place or is contemplated, which involves you or your referred players. Additionally, If you become either Dormant or Inactive at any time during this Agreement, we reserve the right, in our sole discretion, to either restructure, on an individual basis, the Fee Payment calculation model applicable to your account, including in respect of any Commissions due, or to terminate this Agreement.
4.4 Chargebacks and Credits.
All Chargeback and credit amounts will be deducted from your payment or the reserved funds. Chargeback and credit fees will be paid to the credit card companies and will be administered by us. If a Chargeback or any form of credit to the Player occurs during the fee payment-processing period, we reserve the right to deduct such amounts and the associated fees from the amounts due to you under the Revenue Share plan. Any Chargeback or credit to a Player in respect of which you have chosen the CPA payment plan will disqualify such Player and you will not be entitled to any payment with respect to such Player.
5. Term and Termination
5.1 The term of this Operating Agreement will begin when you create a unique link to any of the Focal Click participating online casinos and will be continuous unless and until either party notifies the other in writing that it wishes to terminate the Operating Agreement, in which case this Operating Agreement may be terminated immediately. TERMINATION IS AT WILL, FOR ANY REASON, BY EITHER PARTY. For purposes of notification of termination, delivery via e-mail is considered a written and immediate form of notification.
5.2 Upon termination
You must remove any and all of approved Focal Click advertising methods for any and all of the participating Focal Click online casinos from your site and disable all links from your site to any and all of the participating Focal Click online casinos. All rights and licenses given to you in this Operating Agreement shall immediately terminate. You will be entitled only to those unpaid referral fees, if any, earned by you on or prior to the date of termination. You will NOT be entitled to referral fees with respect to play occurring after the date of termination. If you have failed to fulfill your obligations and responsibilities, we will NOT pay you the referral fees otherwise owing to you upon termination. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid. If we continue to permit play from referred customers after termination, this will not constitute a continuation or renewal of this Operating Agreement or a waiver of termination. You will return to Focal Click any confidential information, and all copies of it in your possession, custody and control and will cease all uses of any trade names, trademarks, service marks, logos and other designations of any and all of the participating Focal Click online casinos, Focal Click and / or Peak Interactive N.V.
5.3 Confidential Information
WE MAY TERMINATE THIS OPERATING AGREEMENT IF WE DETERMINE (IN OUR SOLE DISCRETION) THAT YOUR SITE IS UNSUITABLE. Unsuitable sites include those that are aimed at children, display child pornography or other illegal sexual acts, promote violence, promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, promote illegal activities, violate intellectual property rights.
6. Relationship of Parties
You and we are independent contractors, and nothing in this Operating Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this paragraph.
7. Indemnity
You shall defend, indemnify, and hold Focal Click and their directors, officers, employees, and representatives, any and all of the participating Focal Click online casinos and their directors, officers, employees, and representatives, and the participating Focal Click online casino¹s. and 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 (a) any breach by you of any warranty, representation, or agreement contained in this Operating Agreement, (b) the performance of your duties and obligations under this Operating Agreement, (c) your negligence or (d) any injury caused directly or indirectly by your negligent or intentional acts or omissions, or the unauthorized use of any of the approved advertising methods contained within the Focal Click website.
8. Disclaimers
We make no express or implied warranties or representations with respect to the Focal Click Affiliate Program, any of the participating Focal Click online casinos or referral fee 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, we make no representation that the operation of our site or any and all of the participating Focal Click online casinos sites will be uninterrupted or error-free and will not be liable for the consequences of any interruptions or errors.
9. Limitation of Liability
We will not be liable for indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Operating Agreement or the Focal Click Affiliate Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Operating Agreement and the Focal Click Affiliate Program will not exceed the total referral fees paid or payable to you under this Operating Agreement. Nothing in this Operating Agreement shall be construed to provide any rights, remedies or benefits to any person or entity not a party to this Operating Agreement. Our obligations under this Operating Agreement do not constitute personal obligations of our directors, officers or shareholders, any and all of the participating Focal Click online casinos directors, officers or shareholders or Playtech and / or iPoker’s directors, officers or shareholders. Any liability arising under this Operating Agreement shall be satisfied solely from the referral fee generated and is limited to direct damages.
10. Independent Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS OPERATING AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS OPERATING AGREEMENT OR OPERATE OR CONTRACT WITH WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THIS AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS OPERATING AGREEMENT.
11. Miscellaneous
11.1 Governing Law
This Operating Agreement will be governed by the laws of Curacao, without reference to rules governing choice of law. Any action relating to this Operating Agreement must be brought in Curacao and you irrevocably consent to the jurisdiction of its courts.
11.2 Assignability and Enurement
You may not assign this Operating Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Operating Agreement will be binding on, inure to the benefit of, and enforceable against you and us and our respective successors and assigns.
11.3 Non-Waiver
Our failure to enforce your strict performance of any provision of this Operating Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Operating Agreement. NO MODIFICATIONS, ADDITIONS, DELETIONS OR INTERLINEATIONS OF THIS OPERATING AGREEMENT ARE PERMITTED OR WILL BE RECOGNIZED BY US. None of our employees, officers or agents may verbally alter, modify or waive any provision of this Operating Agreement.
11.4 Remedies
Our rights and remedies hereunder shall not be mutually exclusive, i.e., the exercise of one or more of the provisions of this Operating Agreement shall not preclude the exercise of any other provision. You acknowledge, confirm, and agree that damages may be inadequate for a breach or a threatened breach of this Operating Agreement and, in the event of a breach or threatened breach of any provision of this Operating Agreement, the respective rights and obligations of the parties may be enforceable by specific performance, injunction, or other equitable remedy. Nothing contained in this Operating Agreement shall limit or affect any of our rights at law, or otherwise, for a breach or threatened breach of any provision of this Operating Agreement, it being the intent of this provision to make clear that our respective rights and obligations shall be enforceable in equity as well as at law or otherwise.
11.5 Severability/Waiver
Whenever possible, each provision of this Operating Agreement shall be interpreted in such a manner as to be effective and valid under applicable law but, if any provision of this Operating 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 Operating 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. IN WITNESS WHEREOF, you expressly agree to the terms and conditions of this Operating Agreement by choosing to use any of the approved advertising methods contained within the Focal Click website for any and all of the participating Focal Click online casinos.
