English
By completing and submitting the application form found on the TrophyRoom Affiliates website, or completing the Application Questionnaire received, the Affiliate acknowledges that it has read this Agreement and agrees to be bound by its terms and conditions.
This agreement is made between you (the Affiliate) and the respective TR Party (as TR Party is defined below).
Affiliate: means the party (other than the respective TR Party), to this Agreement, who wishes to join the Affiliate Program;
Approved Content: means: the Affiliate Tracker; Banners and Text Links; and any other content including (but not limited to) mailers, video banners, widgets; in each case as made available by TrophyRoom to Affiliate via the Media Gallery;
Affiliate Customers: means those potential TR Customers that Affiliate directs (or has collected contact information from, for the purpose of directing) to Sites/Apps pursuant to this Agreement and who become TR Customers as a direct result of the Affiliate’s actions;
Affiliate Fraud: means an actual or attempted act by the Affiliate which is reasonably deemed by TrophyRoom to be (i) illegal in any applicable jurisdiction; (ii) made in bad faith; or (iii) intended to defraud TrophyRoom or any of the Sites/Apps and/or circumvent any contractual or legal restrictions, regardless of whether such act or attempted act actually causes TrophyRoom or any of the Sites/Apps or any damage or harm. Affiliate Fraud shall include, without limitation: collusion; abuse of bonuses or other promotions; abuse of the Affiliate Commission reward structure; violation of money-laundering or other laws and regulations; false, misleading or unauthorized advertising or representations; use of stolen credit cards; rake-back activity (refunding of platform fees);
Affiliate Channel: means the medium in which the affiliate chooses to promote the Sites/Apps, included but not limited to websites, apps, email lists controlled by the Affiliate or any third-party channel.
Affiliate Commission: means the commission paid to Affiliate by the respective TR Party, based on either (i) Revenue Reward; (ii) CPA; (iii) a combination of Revenue Reward and CPA; or (iv) as otherwise agreed in writing between the parties, and in accordance with clause 8;
Affiliate Tracker: a unique tracking URL created by TrophyRoom exclusively for the Affiliate, through which TrophyRoom shall track the volume of TR Customers directed to the respective Sites/Apps by Affiliate;
Applicable Regulation: means (i) Consumer Protection Legislation: (ii) any present or future applicable code of practice or adjudication of the Committee of Advertising Practice or the Advertising Standards Authority; (iii) any present or future applicable code of practice or judgment passed by the Supreme Court of India and (iv) any other laws, statutes and regulations which are applicable to the respective TR Party, the Affiliate Program or the Affiliate, throughout the Territory, in each case, from time to time in force;
Approve and Approved: means TrophyRoom’s approval, in its sole discretion, upon receipt, review and approval of the potential Affiliates application form, and the acceptance of the Affiliate into the Affiliate Program;
Approved Purpose: means the use by Affiliate of Approved Content to direct genuine potential TR Customers to the Site in order for such TR Customers to deposit money using the Sites/Apps;
Banners and Text Links“, are the graphical artwork or text that direct traffic to Sites/Apps through the Affiliate Tracker, to permit a TR Customer to hyperlink to any Site;
“Chargeback” or “Credit”: means any situation where a payment transaction is either revoked, incomplete or for which a credit is otherwise given. These include, but are not limited to, credit card transactions which are not collectable by the credit card company as a result of any TR Customer’s non-payment or Customer Fraud;
“Consumer Protection Legislation”: means the legislative and statutory requirements applicable to the conduct of arrangements with the TR Customers and potential customers.
CPA: means a fixed payment to be paid to the Affiliate in respect of each TR Customer who makes a Deposit;
Customer Fraud: means an actual or attempted act by any TR Customer which is reasonably deemed by TrophyRoom to be (i) illegal in any applicable jurisdiction; (ii) made in bad faith; or (iii) intended to defraud TrophyRoom or any of the Sites/Apps and/or circumvent any contractual or legal restrictions, regardless of whether such act or attempted act actually causes TrophyRoom or any of the Sites/Apps any damage or harm. Customer Fraud shall include, without limitation, collusion; abuse of bonuses or other promotions; violation of money-laundering or other laws and regulations; use of stolen credit cards;
Data Protection Legislation: means all applicable data protection, privacy and electronic marketing legislation, including any equivalent, replacement or repealing legislation, and any codes of practice issued by a Competent Data Protection Regulator relating to the same at any time;
“Deposits”: are the funds successfully transferred by TR Customers to their TR Customer accounts at the relevant Sites/Apps;
“Excluded Customers”: means those individuals notified to the Affiliate by TrophyRoom who should not receive direct marketing from the Affiliate;
Excluded Territories: means any state, country, jurisdiction or territory included in the list of countries, as updated by TrophyRoom from time to time.
“Fraud”: means Affiliate Fraud and Customer Fraud;
“Winning Taxes”: means any tax, duty or levy, including VAT/GST or equivalent, payable by the respective TR Party to any authority in any jurisdiction in respect of stakes, platform fees, winnings or entry fees received from TR Customers, whether charged on turnover, gross profits and/or any other profit calculation, although not including corporate income tax or equivalent;
KQC means the key qualifying criteria relating to promotions and/or TrophyRoom’s services;
Media Gallery: means the online repository where TrophyRoom will make available, and Affiliate can access and use, the Approved Content;
“Net Revenues”: means the gross revenue actually received by the respective TR Party from TR Customers from TrophyRoom’s fantasy sports products, less (i) any bonuses paid to that TR Customer (taking into account any adjustments to the same); (ii) any winnings paid to that TR Customer; (iii) Chargebacks; (iv) any credit card (or other payment) processing fees; (v) Taxes; and (vi) any other revenue returns, credits, compensations or refunds given to TR Customers;
“Revenue Reward”: means a percentage of Net Revenues payable to the Affiliate;
“Sites/Apps“: means any of the websites and/or mobile apps operated and/or promoted by TrophyRoom, any TrophyRoom group company or TrophyRoom brands (or any designated third party appointed by TrophyRoom from time to time), and all of their related pages, to which the links embedded within the Approved Content will direct potential TR Customers;
Territory means India, excluding any Excluded Territories;
“TR Customer”: is an individual that: (i) has opened a new account with TrophyRoom in respect of relevant Sites/Apps; (ii) has not previously opened an account with TrophyRoom in respect of such Sites/Apps; (iii) has had their account registration details adequately validated and approved by TrophyRoom, including (without limitation) that such individual is confirmed to be 18 years of age or above and does not reside in an Excluded Territory; (iv) places stakes, or plays, (as applicable) with deposited money on the relevant Sites/Apps via the Affiliates Tracker(s); and (v) is qualified and authorised to access and use the relevant Sites/Apps in accordance with the terms and conditions of use of such Sites/Apps and complies with all applicable laws, rules and regulations;
TR IPR means (i) all intellectual property rights owned by and/or licensed to TrophyRoom or any TrophyRoom group company or any TrophyRoom brands including, without limitation: patents, utility models, rights to inventions, copyright and neighboring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world; (ii) all databases of TR Customers; (iii) all rights in and to the Sites/Apps; and (iv) the TR Trade Marks;
“TR Trade Marks”: means any logo, trade mark, trade name, design, domain name, insignias or similar identifying material that are owned by, and/or licensed to, TrophyRoom or any of its group companies, or any of the Sites/Apps;
Affiliate Program Commission Table: means the details, made available on TrophyRoom’s website via https://trophyroom.io/affiliates/, of the default remuneration that will be payable to the Affiliate.
TR Party: means (i) if the Affiliate is domiciled or located in any country other than India, TrophyRoom Pte Ltd; and (ii) if the Affiliate is domiciled or located in India, TrophyRoom India Pvt Ltd.
TrophyRoom: means, for the purposes of this Agreement, TrophyRoom India Pvt Ltd, a company registered in India with registered company number XXX and its registered office at B1/H3, Mohan Co-Operative, Mathura Rd, Industrial Area, Block B, New Delhi, Delhi 110044.
TrophyRoom Affiliates Website: means the website at https://trophyroom.io/affiliates, or as otherwise modified or replaced by TrophyRoom from time to time.
2.1 The parties hereby agree that this Agreement will become binding on each of them at the point the Affiliate is Approved to be a participant in the Affiliate Program.
2.2 The Affiliate acknowledges and agrees that it is not: an employee, agent or subcontractor of TrophyRoom or any company in the same group of companies as TrophyRoom and is not connected in any way to a person or company which meets this definition (each a Connected Party). Should Affiliate become a Connected Party at any time during the Term, it shall immediately notify TrophyRoom and this Agreement will terminate. The Affiliate acknowledges and agrees that it may not be a Connected Party and a participant in the Affiliate Program.
2.3 The Affiliate acknowledges that TrophyRoom is subject to the requirements of the Applicable Regulations.
2.4 By joining the Affiliate Program the Affiliate hereby agrees, warrants and represents that it will, at all times:
3.1 Once Affiliate has been Approved, the respective TR Party will, as applicable, either (i) grant to the Affiliate or (ii) procure the grant from TrophyRoom to the Affiliate of, a non-exclusive, revocable, non-transferable license during the Term to use: (i) the Affiliate Tracker; and (ii) any of the Approved Content solely for the Approved Purpose, throughout the Territory and in accordance with this Agreement (License). The License will terminate automatically upon the termination of this Agreement for any reason.
3.2 Affiliate acknowledges that TrophyRoom may operate additional affiliate programmes in connection with the Sites/Apps or any other sites, and (unless otherwise agreed in writing), the Affiliate will have no right in connection with such other programmes.
3.3 The Affiliate acknowledges and agrees that: (i) as between the Affiliate and the respective TR Party, the respective TR Party is the sole and exclusive owner of the TR IPR; (ii) the respective TR Party is entitled to use the same in any way or manner at its sole discretion; and (iii) it has no rights in and to the TR IPR other than as expressly provided for in this Agreement.
3.4 The Affiliate acknowledges and agrees that all data relating to the TR Customers shall be and remain, as between the Affiliate and the respective TR Party, the respective TR Party’s exclusive property.
3.5 The Affiliate shall immediately cease to use all TR IPR including without limitation the Licensed Marks upon being notified to do so by TrophyRoom (either by electronic or written notification) or on any termination of this Agreement.
3.6 The License granted to Affiliate, and the right to receive Affiliate Commission is in respect of genuine commercial use only. The Affiliate, its family members, friends or associates may not make Deposits, directly or indirectly, via any Affiliate Tracker or links contained within the Approved Content.
3.7 If the Affiliate wishes to make test transactions to evaluate the system (including Deposits), it should contact [email protected] and provide payment proof as instructed, so the respective TR Party can refund the charges once the Affiliate has completed its testing.
4.1 By joining the Affiliate Program the Affiliate agrees to market, promote and refer potential TR Customers to the Sites/Apps, by displaying and sharing Approved Content.
4.2 The Affiliate will be solely liable for the content and manner of its marketing and promotional activities.
4.3 In the event TrophyRoom amends any Affiliate Tracker, or any other URL embedded within any Approved Content (New Content) it shall notify Affiliate. Affiliate shall immediately upon such notification: (i) remove any previous and/or outdated content from its site; and (ii) ensure it uses only the New Content in the future
5.1 The Affiliate must ensure at all times that all KQC are displayed in a clear and transparent manner.
5.2 The Affiliate shall ensure that all marketing, advertising and promotions targeted at potential TR Customers in India or otherwise subject to regulation by the relevant authorities shall include the wording set out below:
5.3 The Affiliate shall use only the Approved Content to promote or direct potential TR Customers to the Sites/Apps. The Affiliate shall not use any other content, images, logos, banners or links to promote or direct potential TR Customers to the Sites/Apps.
5.4 The Affiliate shall not, without the prior written consent of TrophyRoom (such consent to be given or withheld in TrophyRoom’s sole discretion) alter: the appearance, design, layout, graphics or content of the Approved Content.
5.5 The Affiliate shall not alter the appearance, design or content of any Approved Content, or complete any action that will have the effect of: (i) altering or removing any KQC or other promotional terms and conditions included by TrophyRoom in or on any Approved Content; or (ii) affecting the means by which a potential TR Customer may access such KQC or other promotional terms and conditions from the Approved Content, including the expectation that such KQC or promotional terms and conditions must be accessible within a single ‘click’ (or technological equivalent location in non-browser based platforms and technologies such as mobile phone applications) by potential TR Customers.
5.6 Participation as an Affiliate in the Affiliate Program is only permitted if the proposed Affiliate is the older of: (i) the legal age for participating in paid fantasy sports in the proposed Affiliate’s jurisdiction; or (ii) eighteen (18) years of age.
5.7 The Affiliate must provide appropriate evidence of his/her age. TrophyRoom shall determine in its sole discretion whether or not any evidence provided is appropriate and sufficient to determine the Affiliate’s age.
5.8 The Affiliate acknowledges and agrees that: (i) s/he will not be entitled to participate in the Affiliate Program; and (ii) the Affiliates account may be suspended until satisfactory proof of age is received by TrophyRoom.
5.9 The Affiliate will not, nor will it allow, assist or encourage others to, market and/or promote the Affiliate Program, any Approved Content or any of the Sites/Apps, directly or indirectly, to persons that are not: (i) eighteen (18) years of age; or (ii) the legal age for participating in paid fantasy sports in the jurisdiction the Affiliate is targeting and/or operating within.
5.10 Under no circumstances shall the Affiliate:
5.11 The Affiliate will not engage in, allow, assist, promote, encourage or benefit from, directly or indirectly:
5.12 The Affiliate will act at all times to refrain from, immediately stop and not allow any act or traffic that involves Fraud or that it believes or should reasonably believe to potentially involve Fraud, or any act or traffic that TrophyRoom informs the Affiliate is suspected by it, at its discretion, to involve or potentially involve Fraud.
5.13 In the event that TrophyRoom suspects Affiliate Fraud it reserves the right to place restrictions on the Affiliates account including but not limited to suspending the Affiliates account and retaining all sums within the account as well as commencing a full investigation. The Affiliate hereby gives TrophyRoom its authorisation to inform the appropriate authorities or third parties of such an incident and only once TrophyRoom is satisfied that the matter is resolved shall it remove any restrictions on the Affiliates account.
5.14 TrophyRoom does not allow any form of rake-backs in the Affiliate Program. The Affiliate will not offer any rake-back or so-called rake-back schemes whatsoever, or any similar schemes that offer or allow a portion of the TR Customer’s platform fees to be returned to the TR Customer in any form. The Affiliate must not advertise or be engaged with any site that offers rake-backs. TrophyRoom reserves the right to withhold any amounts due to the Affiliate if it believes the Affiliate was involved in any rake-back activity.
5.15 The Affiliate will be solely responsible for the operation and content of its sites, and shall ensure that materials posted on its site or any third party site (including any of the search terms and/or key words linked to such content): (i) are not libellous, obscene, sexually explicit, violent or illegal; (ii) do not provide unauthorised access to copyrighted content; (iii) do not otherwise actually or potentially infringe any rights of TrophyRoom and/or any other third party; (iv) are original and owned by or licensed to the Affiliate, and that the look and feel of the Affiliates site does not resemble any of the Sites/Apps; (v) negatively match against any potentially harmful search terms including (but not limited to) those likely to be used by persons attempting to stop or reduce their gambling, for example gambling exclusion block gambling account stop gambling etc. and (vi) are not otherwise deemed, at TrophyRoom’s sole discretion, unsuitable.
5.16 The Affiliate will remove such content immediately upon TrophyRoom notifying the Affiliate that any content is in breach of the above provisions. If Affiliate is unable or unwilling to remove such content, then this Agreement will terminate with immediate effect and the Affiliate shall immediately cease its use of any Approved Content.
5.17 The Affiliate is responsible for strictly adhering to the laws and regulations of India and/or any other jurisdiction relevant to either the location of the Affiliate or the corresponding TR Party. The Affiliate hereby fully accepts and acknowledges its own legal responsibilities and explicitly indemnifies the corresponding TR Party from any damages, lawsuits, legal proceedings or similar arising out of the actions of the Affiliate.
5.17 The Affiliate shall not contest the validity, enforceability or ownership of the Licensed Marks, in any action or proceeding of whatever nature, and shall not take any action that may prejudice TrophyRoom, the TR IPR, the Affiliate Program or any of the Sites/Apps, or diminish TrophyRoom’s goodwill and/or reputation, or the goodwill in the TR IPR.
5.18 The Affiliate shall not register or attempt to register any logo, trade mark, trade name, insignia, design, domain name or social media account that: (i) contain any element of TR IPR, or (ii) are confusingly similar to any TR IPR. In the event that the Affiliate registers any domain name or social media account in breach of this clause 5.18, it will, on demand by TrophyRoom, immediately (i) cease its use of any such domain name or account; and (ii) transfer, at its own cost and expense, any such domain name or account to TrophyRoom (or to a third party nominated by TrophyRoom).
5.19 The Affiliate shall not place, purchase or register pre-click bids, keywords, search terms or any other identifiers for use in any search engine, portal, sponsored advertising service or other search or referral service which are identical, are similar or otherwise resemble any TR IPR. This includes, and is not limited to, any words containing, or derived from, such TR IPR and any typo errors or phonetics of the same.
5.20 The Affiliate will not make any claims, representations or warranties in connection with the respective TR Party or any of the Sites/Apps. The Affiliate is not authorised to make any commitment or assume any liability or obligation on the respective TR Party’s behalf or on behalf of any of the Sites/Apps.
5.21 The Affiliate acknowledges and agrees that in the event that the Affiliate is found to be in breach of any of clauses 5.1 to 5.20 above, the respective TR Party reserves the right to suspend the Affiliates account and/or withhold payment of all monies due to the Affiliate until it is satisfied that the matter is resolved and that the Affiliate is no longer in breach. If the respective TR Party cannot satisfy itself within that any such breach has been resolved, it reserves the right to treat all payments or amounts due to the Affiliate as forfeited and to immediately terminate the Agreement.
6.1 In accordance with TrophyRoom’s policy of prohibiting and actively preventing money laundering and any activity that facilitates money laundering or the funding of terrorist or criminal activities, TrophyRoom will thoroughly verify the Affiliates identity. Such verification may be undertaken through the information provided by the Affiliate and by obtaining information from public sources and data.
6.2 Should TrophyRoom be unable to adequately satisfy itself of the Affiliates identity, the Affiliate may not participate in the Affiliate Program and this Agreement will terminate. In such eventuality, TrophyRoom shall not be obliged to provide the Affiliate with any information as regards the reasons for such failure to identify the Affiliate.
6.3 The Affiliate agrees that the respective TR Party may use any personal information provided by the Affiliate for the purposes of verifying its identity in accordance with clause 6.
6.4 The Affiliate agrees to promptly provide the respective TR Party with any supporting documents requested by the respective TR Party. The Affiliate is aware that the respective TR Party has the right to delay and/or withhold payments if supporting documents are not provided. Supporting documents may include original and/or copies of any or all of the following:
7.1 TrophyRoom will register the TR Customers and track their play, and will calculate the Affiliate Commission accordingly. TrophyRoom may use the Affiliate Tracker and/or cookies and/or native SDKs or any other third-party software to conduct such tracking.
7.2 TrophyRoom reserves the right to refuse new TR Customers or to close the accounts of existing TR Customers. Such actions will be at TrophyRoom’s sole discretion in order to comply with any Applicable Regulation or, without limitation, in the event of actual or suspected Customer Fraud, unlawful activity, breach of the respective Sites/Apps terms and conditions of use, or otherwise.
7.3 TrophyRoom may, from time to time, appoint third parties as designated parties whose websites shall be included, for the purposes of this Agreement, as Sites/Apps.
7.4 Payments. The respective TR Party will pay the Affiliate Commission in accordance with the applicable reward plan.
7.5 Reports. TrophyRoom will provide the Affiliate with remote online access to reports regarding TR Customer activity and the Affiliate Commission generated (if applicable). The form, content and frequency of the reports will be subject to change at TrophyRooms discretion. TrophyRoom will not be liable for the completeness or accuracy of any reports.
7.6 Recording Calls. All telephone conversations between the Affiliate and any of TrophyRoom’s staff may be recorded, and the Affiliate hereby consents to such recording. Any recordings will be treated in the strictest confidence and the content may be used by TrophyRoom in the event of a misunderstanding, dispute, or for training purposes.
8.1 The mechanism for calculating the Affiliate Commission will be agreed in writing between the parties (for which email shall suffice). In the event no such written agreement is reached between the parties, the Affiliate Commission shall be calculated in accordance with the Affiliate Program Commission Table.
8.2 For the avoidance of doubt, where there is no revenue payable or received by TR in respect of any TR Customer transaction, no Affiliate Commission shall be payable.
8.3 At any time where three (3) calendar months have passed without the Affiliate directing at least ten Participating TR Customers to the Sites/Apps, the respective TR Party shall be entitled, in its discretion to: (i) suspend the Affiliates account; and/or (ii) reduce the rate of the Affiliate Commission. Such reduction may be notified to the Affiliate or may be published within the Affiliate Program Commission Table.
8.4 If the Affiliate account is unused for withdrawals, or is otherwise inactive (such inactivity may include, for example, the Affiliate not logging into his/her account), for a period of at least six (6) months, it will be deemed an Inactive Account. The respective TR Party shall notify the Affiliate that its account is an Inactive Account and that the Inactive Account Fee will be deducted if the Affiliate does not reactivate its account (Inactive Account Notice).
8.5 In the event an Inactive Account Notice is sent to the Affiliate, the respective TR Party shall be entitled to retain fifty percent (50%) of the total balance remaining on the Inactive Account (Inactive Account Fee) after fourteen (14) days have elapsed from the date of such Inactive Account Notice. Should the Affiliate subsequently fail to withdraw the remaining balance from his/her account, the respective TR Party shall be entitled, upon expiry of forty five (45) days from the date of the Inactive Account Notice, to retain the remainder of the balance on such Inactive Account without further notice to the Affiliate. Following such retention, the Affiliates account will be closed and this Agreement will be terminated.
8.6 The parties acknowledge and agree that TrophyRoom shall be entitled to change the Affiliate Program Commission Table at any time, upon notice to the Affiliate. Any such change (including a corresponding reduction in the Affiliate Commission) will take effect from the date such notice is sent to the Affiliate (including notices sent by email or via the Affiliate Program newsletter).
8.7 The Affiliate shall ensure that the payment and/or bank account details in its account are accurate, complete and up to date. Affiliate shall promptly update its payment details in the event its payment or contact information changes.
8.8 At the start of every calendar month, the respective TR Party will make available to the Affiliate in his/her account a statement showing any balance due to the Affiliate in respect of the previous calendar month (Statement). All calculations in connection with the Statement (and the corresponding Affiliate Commission) will be made by the respective TR Party (based on systems’ data and records), and its calculations will be final and binding.
8.9 As part of the monthly payments process, the respective TR Party will carry out a data reconciliation process to ensure data accuracy and correct billing for the previous month. This process may include, without limitation, a) the detection of Fraud (with any connected payments excluded from the Affiliates Remuneration); and b) failed transactions attributed to the Affiliates account. The respective TR Party shall begin the reconciliation process at the start of every calendar month.
8.10 The Statement will be deemed to have been accepted and agreed by the Affiliate if the respective TR Party does not receive any comments as to the accuracy of the Statement within two (2) weeks of making the Statement available to the Affiliate.
8.11 The respective TR Party will pay the Affiliate Commission in accordance with each payout request initiated by the affiliate. Each request will be manually reviewed and additional documents may be required from the affiliate to support its actions. The Monthly Minimum payout is set to the equivalent of Rs. 2,000. The payout will be effected using the payment systems and payout currencies made available by the respective TR Party. The respective TR Party reserves the right to change payments systems, methods and payout currencies available at any time at its own discretion.
8.12 If the Monthly Minimum is not achieved by the Affiliate in a particular calendar month, the respective TR Party will be entitled to withhold payment and carry the amount due to the Affiliate to the next calendar month and so on, until the Monthly Minimum is reached. All payments will be due and paid in the Affiliates selected currency, or in any other currency at the respective TR Party’s discretion.
8.13 The respective TR Party will transfer funds only to the designated account or wallet detailed on the Affiliates application or registration form. It is the Affiliates responsibility to ensure that such designated account or wallet is not restricted from receiving funds from the respective TR Party. Third party wire transfers are prohibited by the respective TR Party. In the event the Affiliate, and/or the Affiliates designated bank account or wallet, is located within the United States of America (or any other non-Indian jurisdiction as notified by the respective TR Party to the Affiliate from time to time), Affiliate must comply with additional requirements in order to receive payment; such requirements to be notified by the respective TR Party to the Affiliate from time to time.
8.14 The Affiliate is fully responsible for all taxes, transaction fees, fees and other costs incidental to and arising from any payments made to it under this Agreement. The Affiliate hereby indemnifies and agrees to immediately reimburse the respective TR Party for any costs, expenses or losses that may be caused to, or suffered by the respective TR Party, as a result of any claim or demand made by any governmental or other authority, with regard to tax withholding obligations or similar obligations to which the respective TR Party may be subject in connection with making payments to the Affiliate. The respective TR Party will be entitled to withhold or set-off any such amounts from any payments made to the Affiliate.
8.15 In the event that, for whatever reason (including but not limited to incorrect details being provided by the Affiliate), the respective TR Party is charged by either its own, or the Affiliates bank for paying, or attempting to pay the Affiliate Commission (Bank Charges), Affiliate hereby indemnifies the respective TR Party against and all such Bank Charges. the respective TR Party shall be entitled to set-off Bank Charges against future Affiliate Commission owing to the Affiliate and/or shall request immediate repayment of such Bank Charges from the Affiliate.
8.16 The respective TR Party shall be entitled to withhold any amounts due and payable to the Affiliate under this Agreement, including if TrophyRoom, in its sole discretion, believes::
8.17 Further, the respective TR Party shall be entitled to set-off from future amounts payable to the Affiliate, any amounts already received by the Affiliate which the respective TR Party believes have been generated by Fraud.
9.1 During the Affiliates participation in the Affiliate Program, the respective TR Party may disclose to the Affiliate or the Affiliate might otherwise obtain certain information which is either marked as or by its nature is confidential and proprietary to the respective TR Party (herein referred to as “Confidential Information”).
9.2 The Affiliate shall keep all such Confidential Information in strict confidence and not use any part of it, directly or indirectly, for any purpose other than the Approved Purpose.
9.3 Confidential Information shall not include any information that is generally known or available to the public, or information required to be disclosed by applicable law or any legal agency having jurisdiction over the Affiliate (in which case the Affiliate will give the respective TR Party immediate notice of such requirement).
10.1 This Agreement will come into force when the Affiliates application to join the Affiliate Program is approved by TrophyRoom and shall continue in force unless and until either the Affiliate or the respective TR Party notifies the other in writing (via email shall suffice) that it wishes to terminate this Agreement, in which case this Agreement will be terminated immediately (Term).
10.2 Notwithstanding the provisions of clause 10.1 above, and in addition to its other termination rights set out in this Agreement, the respective TR Party may immediately terminate this Agreement if it determines, at its sole discretion:
10.3 Following the termination of this Agreement for any reason, all rights and licenses granted to the Affiliate in this Agreement shall immediately terminate. The Affiliate shall not be entitled to any additional Affiliate Commission post-termination. Further, the Affiliate must immediately:
10.4 The respective TR Party may withhold the Affiliate’s final payment for a reasonable time to ensure that the correct amount is paid and that there are no debts or liabilities owing from Affiliate. the respective TR Party will be entitled to deduct from any payments due and payable to the Affiliate, any such debts and liabilities it is owed, if any.
10.5 Any continued access and use by TR Customers of any of the Sites/Apps following the termination of this Agreement shall not constitute a continuation or renewal of this Agreement or a waiver of its termination. For the avoidance of doubt, no additional payments will be due from the respective TR Party to the Affiliate in relation to the same.
10.6 The following clauses shall survive termination of this Agreement for any reason: 2.4, 8.4, 10.3, 10.4, 11, 12, 13, 15, and 20.
Without derogating from, and in addition to, any of the Affiliate’s other representations, warranties, covenants and obligations contained in this Agreement, the Affiliate hereby represents and warrants to the respective TR Party the following:
Without limiting any of the respective TR Party’s rights and remedies hereunder or under any Applicable Regulation, the Affiliate hereby agrees to defend and hold the respective TR Party and its shareholders, directors, officers, employees, agents and other representative harmless from, and to immediately indemnify them upon their written demand against, any and all liabilities, losses, damages, costs and expenses, (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) resulting from, arising out of, or in any way connected with:
13.1 The Affiliate accepts sole responsibility for determining whether its participation in the Affiliate Program is legal under any Applicable Regulation. The Affiliate understands that the respective TR Party does not provide it with any legal recommendation or assurance regarding such legality.
13.2 The Affiliate acknowledges that s/he should obtain independent legal advice in respect of its participation in the Affiliate Program, and that if the Affiliate has any doubts about its participation in the Affiliate Program or the receipt of any payments from the respective TR Party, the Affiliate should not participate in the Affiliate Program.
14.1 Except as expressly set forth in this Agreement, the respective TR Party makes no express or implied warranties or representations with respect to the Affiliate Program or to any arrangements contemplated by this Agreement, including without limitation with regard to their functionality, fitness for any particular purpose, suitability, merchantability, legality or non-infringement.
14.2 In addition, the respective TR Party makes no representation that the operation of the Sites/Apps will be uninterrupted or error-free and it will not be liable for the consequences of any interruptions or errors.
14.3 The respective TR Party shall not be liable in any way, nor does it assume any responsibility for or make any representations or warranties with regard to, any of the Sites/Apps, their operations, content or any other aspect related thereto.
15.1 Any liability of the respective TR Party to the Affiliate arising from this Agreement and the Affiliate Program is limited to direct losses only. The respective TR Party will not, under any circumstances, be liable for indirect, special, or consequential damage or loss of any kind, nor will it be liable for any other losses including, without limitation:
15.2 In any event and under any and all circumstances, the respective TR Party’s total liability arising with respect to this Agreement and the Affiliate Program will not exceed the lower of:
(i) the aggregate of all payments actually paid to the Affiliate under this Agreement over the twelve (12) months preceding the event giving rise to the liability; and
(ii) Rs. 10,000 (ten thousand Rupees).
15.3 Nothing in this Agreement shall serve to limit either party’s liability to the other for: death or personal injury caused by that party’s negligence; or for fraud.
15.4 For the avoidance of doubt, in no event shall the respective TR Party be responsible for any dispute or claim between the Affiliate and any (i) Affiliate Customer; or (ii) any other user of the Affiliate’s website.
16.1 The relationship between the parties to this Agreement is that of independent contractors and nothing contained in this Agreement shall be deemed to create a joint venture, partnership, employment, agency or similar arrangement between the parties.
16.2 No party possesses the power or authority to bind the other, or to assume or create any obligation or responsibility, expressed or implied, on behalf of the other, and no party shall represent to anyone that it possesses such power or authority. The Affiliate will not make any statement, whether orally, on its site or otherwise, that could be reasonably construed to contradict the foregoing.
17.1 The respective TR Party may unilaterally amend any of the terms and conditions contained in this Agreement, at any time and at its sole discretion, by posting the amended agreement on the “Terms & Conditions” page on the TrophyRoom Affiliates Website. Any changes will take effect from the date specified at the head of the updated version of this Agreement (Amendment Date), and Affiliate hereby agrees to be bound by such changes from the Amendment Date. The Affiliate is solely responsible for regularly checking the TrophyRoom Affiliates Website and making itself aware of any such amended versions and changes.
17.2 The Affiliate must regularly log in to the TrophyRoom Affiliates Website to review any amended versions of this Agreement.
17.3 Any variation of or amendment to this Agreement must, if the variation or amendment is proposed by (i) the respective TR Party, be published on the TrophyRoom Affiliates Website; and (ii) Affiliate, be documented in writing and signed by both parties. None of Affiliate, or the Affiliate or the respective TR Party’s employees, officers or agents may orally amend, modify or waive any provision of this Agreement.
17.4 If any amendment made pursuant to clause 17.1 is unacceptable to the Affiliate, the Affiliate’s only recourse is to terminate this agreement with immediate effect. Affiliate’s continued participation in the Affiliate Program following the Amendment Date will constitute a binding acceptance by Affiliate of the amended Agreement, irrespective of whether or not the Affiliate has actually learned of or read the relevant changes.
18.1 Affiliate agrees that it shall not send direct promotional or marketing messages to any TR Customer or potential TR Customer via email, post, SMS, or any other means unless it has received TrophyRoom’s explicit prior written consent. In no circumstance shall any consent provided by TrophyRoom pursuant to this clause 18.1 include the right for Affiliate to send any such direct marketing messages, or any other content, to Excluded Customers.
18.2 In the event that Affiliate has been given written permission by TrophyRoom to engage in direct marketing, the Affiliate shall, prior to sending any such communication, share its database of Affiliate Customers (Affiliate Database) with TrophyRoom (via a secure method as notified by TrophyRoom to the Affiliate from time-to-time). TrophyRoom will use its bespoke software (the “Excluded Customers API”) to identify anyone within the Affiliate Database who is an Excluded Customer. TrophyRoom will remove the Excluded Customers from the Affiliate Database before returning the revised Affiliate Database to the Affiliate. TrophyRoom shall use the data within the Affiliate Database solely for the purpose of identifying and removing any Excluded Customers. The removal of the Excluded Customers from the Affiliate Database shall not relieve the Affiliate of any of its obligations under this clause 18.
Data Protection Legislation & TR Customers
19.1 For the purposes of this Agreement, the terms controller, data subject, personal data, process, processing and processor shall each have the meaning given to them in the Data Protection Legislation.
19.2 The Affiliate acknowledges and agrees that it is a controller in respect of personal data of Affiliate Customers. The Affiliate acknowledges and agrees that TrophyRoom shall be a controller in respect of personal data of TR Customers.
19.3 In the event of duplication of any data subject’s personal data between Affiliate Customers and TR Customers, the Affiliate and the respective TR Party acknowledge and agree that they shall be acting as controllers in common and not joint controllers in respect of the independent processing of such data subject’s personal data.
19.4 The Affiliate represents, warrants and agrees that, subject always to clause 18.1 and 18.1:
19.5 The Affiliate shall not market any goods or services to any TR Customer, or transfer such TR Customer’s details to any third party, unless that TR Customer’s information is in the Affiliate’s possession prior to the execution of this Agreement.
19.6 The Affiliate shall notify TrophyRoom immediately in the event that it breaches (or suspects that it has breached) any of the warranties in this clause 19.
19.7 The Affiliate shall comply with, and shall confirm its compliance by email to [email protected], with any instructions given by TrophyRoom pursuant to this clause 19, no less than 48 hours after receipt of such instruction.
19.8 The Affiliate shall notify TrophyRoom immediately in the event that (i) any Affiliate Customer makes a complaint to the Affiliate, or (ii) any Competent Data Protection Regulator contacts the Affiliate, in respect of direct marketing or the Affiliate’s processing of any Affiliate Customer’s personal data.
19.9 The respective TR Party may, from time to time, request that the Affiliate provides evidence of its compliance with this clause 19 and Affiliate shall provide such evidence as the respective TR Party may reasonably request promptly, and in any event within seven (7) days of receipt of such request.
19.10 The Affiliate shall ensure that all processors acting on its behalf pursuant to this Agreement are bound by contractual terms no less onerous than the standards prescribed by the Data Protection Legislation.
19.11 The Affiliate shall provide the respective TR Party with all such assistance as necessary or requested by the respective TR Party in respect of data breaches, claims and requests for information made against the respective TR Party (including any data subject access requests) in respect of any communications sent by the Affiliate under this Agreement; and in particular, any investigations made by a Competent Data Protection Regulator.
19.12 The Affiliate hereby indemnifies the respective TR Party against all costs, claims, fines, group actions, damages and expenses incurred by the respective TR Party, or for which the respective TR Party may become liable, due to any failure by the Affiliate, its employees, agents, subcontractors or processors, to comply with any of its (or their) obligations under this clause 19 and/or the Data Protection Legislation. Nothing in this Agreement shall limit the Affiliate’s liability under this clause 19.
19.13 The Affiliate hereby acknowledges that the respective TR Party may process the Affiliate’s personal data for the following purposes:
19.14 The Affiliate further acknowledges that its personal data may be disclosed by the respective TR Party to relevant third parties for such purposes, including (without limitation) to:
and the Affiliate hereby agrees to cooperate fully and promptly with the respective TR Party in respect of any such investigations of activities which it or any such third party may carry out.
20.1 Remedies and Injunctive Relief. The exercise of one or more of the respective TR Parties rights or remedies in connection with this Agreement shall not preclude the exercise of any other right or remedy. The Affiliate acknowledges, confirms and agrees 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 by the Affiliate of any provision of this Agreement, the respective TR Party’s rights and obligations may be enforceable by specific performance, injunction, or other equitable remedy. Nothing contained in this Agreement shall limit or affect any of the respective TR Party’s rights at law, contract or otherwise, for a breach or threatened breach of any provision of this Agreement.
20.2 This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the laws of India.
20.3 Each party irrevocably agrees that the courts of India shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
20.4 The English language version of this Agreement will prevail over any other language version issued by TrophyRoom.
20.5 Severability. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
20.6 Third Parties. A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
20.7 No Waiver. The respective TR Party’s failure to enforce the Affiliate’s strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
20.8 No Assignment. The Affiliate may not assign or transfer this Agreement, the License or any part thereof without the respective TR Party’s prior written consent.
20.9 Entire Agreement. This Agreement constitutes the complete understanding and agreement of the parties and supersedes all prior negotiations, understandings, agreements, representations and warranties of any nature whether or not in writing between the parties with respect to the subject matter of this Agreement.
20.10 Notices. Unless otherwise agreed to by the parties in writing, all notices required under this Agreement will be deemed effective (i) in the case of notices sent by the Affiliate, when received and read by the respective TR Party with a read receipt requested by way of email to [email protected], and (ii) in the case of notices sent from the respective TR Party to the Affiliate, when the email is sent to the email address registered by the Affiliate when setting up his or her account.