1. Who We Are
References to "FanDuel", "we", "us", or "our" in this Agreement are references to:
(a) In respect of the FanDuel.com Site, FANDUEL INC, a company incorporated and registered in New York, United States; and
(b) In respect of the FanDuel.co.uk Site, FANDUEL LIMITED, company incorporated in Scotland and registered under company number SC333797.
2. This Agreement
The terms and conditions contained in this agreement (the “Agreement”) represent the legally binding agreement which will govern your participation in the FanDuel Affiliate Programme (the "Programme"). By clicking "I Agree", you are indicating your acceptance of this Agreement and all of its terms and conditions. References to "you" and "your" in this Agreement mean you, as the applicant to the Programme.
The "FanDuel.com Site" means the site that has its primary home page identified by the URL 'www.FanDuel.com'.
The "FanDuel.co.uk Site" means the site that has its primary home page identified by the URL 'www.FanDuel.co.uk'.
A reference to the "FanDuel Site" shall mean either the FanDuel.com Site or the FanDuel.co.uk Site (as the context requires).
"Your Site" means the site that you listed in your Programme application and on which you will place our ads to link to the FanDuel Site, and "site" means a World Wide Web site.
References to USD or $ in this Agreement shall relate only to the FanDuel.com Site. References to GBP or £ shall relate only to the FanDuel.co.uk Site.
3. Enrolment in the Programme
To begin the enrolment process, you must submit a complete Programme application via the FanDuel Site. We will evaluate your application in good faith and will notify you of its acceptance or rejection. We may accept or reject your application in our sole discretion, including if we determine that Your Site is unsuitable for the Programme. Unsuitable sites include but are not limited to those that:
· promote sexually explicit materials;
· promote violence;
· promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
· promote illegal activities; and/or
· otherwise violate the rights, including the intellectual property rights, of any party including sites which provide unauthorised access to copyrighted content.
4. Links on Your Site
5. Order Processing
We will process registrations and deposits submitted by customers who follow Affiliate Links from Your Site to the FanDuel Site. We reserve the right to reject registrations or deposits that do not comply with our applicable rules and policies from time to time. We will be responsible for all aspects of customer registration and deposit and payments to you under this Agreement. We will track payments made by those who follow Affiliate Links from Your Site to the FanDuel Site and will, from time to time, make available to you reports summarising such sales activity. The form, content, and frequency of these reports may vary from time to time in our absolute discretion.
In addition, you may not:
(a) directly or indirectly offer any person or entity any consideration or incentive (including, without limitation, payment of money (including any rebate), or granting of any discount or other benefit) for using Affiliate Links on Your Site to access the FanDuel Site (e.g., by implementing any "rewards" programme for persons or entities who use Affiliate Links on Your Site to access the FanDuel Site);
(b) read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to us by any person or entity;
(c) in any way modify, redirect, suppress, or substitute the operation of any button, link, or other interactive feature of the FanDuel Site;
(d) make any orders or subscription requests, or engage in other transactions of any kind on the FanDuel Site on behalf of any third party, or authorise, assist, or encourage any other person or entity to do so;
(e) take any action that could reasonably cause any customer confusion as to our relationship with you, or as to the site on which any functions or transactions (e.g., search, order, browse, and so on) occur;
(f) post or serve any advertisements or promotional content around or in conjunction with the display of the FanDuel Site (e.g., through any "framing" technique or technology or pop-up windows), or assist, authorise, or encourage any third party to take any such action;
(g) attempt to circumvent the Referral Fee calculation or artificially increase your Referral Fees (e.g. by intentionally featuring, purchasing or requesting or encouraging any third party to purchase enrolments offered on the FanDuel Site for the purpose (as determined by us) of exceeding any Referral Fee Threshold);
(h) attempt to intercept or re-direct (including, without limitation, via user-installed software) traffic from or on, or divert Referral Fees from, any site that participates in the Programme;
(i) seek to purchase or register any keywords, search terms or other identifiers that include the word "FanDuel" or variations thereof for use in any search engine, portal, sponsored advertising service or other search or referral service;
(j) work with, in any capacity, a site dedicated to promoting coupon codes, promotional codes, discount codes, bonus codes, etc. This includes promotion of codes distributed to you by your point of contact at FanDuel in relation to the Programme, as notified by us to you from time to time (the "Affiliate Manager"); or
(k) optimise for search results including any individual or combination of the terms: “bonus,” “promo code,” “coupon code,” and/or any similar terms and/or their variations. This includes using the aforementioned terms and variations in URL names, webpage and article titles, backlinks, and meta-descriptions.
If we determine, in our sole discretion, that you have engaged in any of the foregoing activities, we may (without limiting any other rights or remedies available to us) withhold any Referral Fees otherwise payable to you under this Agreement and/or terminate this Agreement.
For customer registrations or deposits received on the FanDuel Site during sessions initiated via Affiliate Links on Your Site, you will earn (subject to the other terms of this Agreement) and unless otherwise agreed between the parties, the referral fees specified below ("Referral Fees"), calculated as a percentage of the Net Revenue generated from Referred Customers in any calendar month on a per-band (and not aggregated) basis:
For Referred Customers to the FanDuel.com Site
For Referred Customers to the FanDuel.co.uk Site
By way of example only, if the Net Revenue generated from Referred Customers on the FanDuel.com Site in January 2016 is $3000, your Referral Fee shall be $800.
"Gross Revenue" shall mean the gross revenues retained by FanDuel from Referred Customers participating in real-money contests on the FanDuel Site, which, in respect of each real-money contest entry made by the Referred Customer, shall be calculated as follows:
((Total entry fees of participants) – Contest prizes) / Number of entries into contest)
"Net Revenue" means Gross Revenue, less: (a) 10% Administrative fee deduction (b) any promotional sums (such as deposit matches or bonuses applied to accounts); (c) uncollectable revenues (including chargebacks, payment reversals or revenue derived from fraudulent activity); (d) applicable gaming duties and taxes payable by us at the rate in force on the date of due payment; and (e) reasonable payment processing services charges that are paid to third parties in respect of Referred Customers' deposits and cashouts. For the avoidance of doubt, no Referral Fees shall be due or payable in relation to revenue driven through your own play.
We will pay you the Referral Fees (if any) on a monthly basis. Approximately 10 days following the end of each calendar month, we will send you a payment for the Referral Fees earned in that month, if any, subject to the following. We will accrue and withhold Referral Fees until the total amount due is at least $50. Payment for amounts over $250 can be requested by cheque. Payment amounts over $1,000 can be requested by wire transfer. Payments of $5,000 or more must be requested either by wire transfer or cheque.
For Referred Customers to the FanDuel.co.uk Site only
We will pay you the Referral Fees (if any) on a monthly basis. Approximately 10 days following the end of each calendar month, we will send you a payment for the Referral Fees earned in that month, if any, subject to the following. We will accrue and withhold Referral Fees until the total amount due is at least £50. Payment for amounts over £250 can be requested by cheque. Payment amounts over £1,000 can be requested by wire transfer. Payments of £5,000 (as applicable) or more must be requested either by wire transfer or cheque. Your Referral Fee will cease to be payable in respect of each Referred Customer on that date which is two years after the date on which that Referred Customer first opened a user account as part of a qualifying registration. Your Referral Fees will cease to be payable on the date when these terms and conditions are terminated even if that date is within the two-year period referred to above.
9. Policies and Pricing
10. The Relationship
11. Limited Licence
We grant you a non-exclusive, revocable, limited right to use the Content solely for the purpose of identifying Your Site as a Programme participant and to assist in generating enrolments. You may not modify the Content in any way without our prior written consent. We reserve all of our rights in the Content , our trade names and trademarks, and all other intellectual property rights owned or controlled by us. You agree to follow our trademark and brand guidelines, as those guidelines may change from time to time. You undertake not to make use of the Content in any manner not explicitly set out in this Agreement without our prior written consent. We may revoke the foregoing licence at any time by giving you written notice.
12. Responsibility for Your Site
· the technical operation of Your Site and all related equipment;
· the accuracy and appropriateness of materials posted on Your Site;
· ensuring that all materials posted on Your Site do not violate or infringe upon the rights of any third party (including but without limitation copyrights, trademarks, privacy, or other personal or proprietary rights);
· ensuring that materials posted on Your Site are not defamatory, indecent, infringing of third party rights, or otherwise illegal;
· disclosing your use of affiliate links or advertising on Your Site; and
· ensuring compliance with relevant national laws and regulations regarding the marketing, including but not limited to the Federal Trade Commission’s Endorsement and Testimonial Guides and the British 'Licence Conditions and Code of Practice' (see section 14 and 15 below).
You will indemnify and hold us harmless from and against all claims, damages, liabilities, losses and expenses (including, without limitation, attorneys' fees) resulting from or relating to: (a) the development, operation, maintenance, and/or contents of Your Site; and (b) your breach or non-performance of any of your duties or obligations under this Agreement.
You agree to comply with:
· any and all laws and regulations applicable to Your Site;
· any and all laws and regulations applicable to the FanDuel Site which we may notify to you from time to time as being necessary for our Programme affiliates to comply with, in particular those which the terms of our licences require us to pass through to our Programme affiliates which include those requirements set out in Annex A of this Agreement; and
· our most recent up-to-date guidelines in relation to the use of the Affiliate Links which we may notify to you from time to time.
14. Protection of minors
You will not by yourself, nor will you allow, assist or encourage others to, market and promote the FanDuel Site, directly or indirectly, (i) to persons that are less than 18 years of age or develop or implement marketing and promotion strategies in respect thereof; or (ii) in distribution environments or media that could reasonably be considered to be, in themselves, clearly targeted at under 18s.
15. Data Protection
You hereby acknowledge that all information relating to the Referred Customers (including all personal data, as that term is defined in Section 1 of the Data Protection Act 1998) is our exclusive and sole property and that you have and shall have no rights therein whatsoever. You hereby warrant that any personal data that you process on our behalf pursuant to this Agreement: (a) will always be in accordance with this Agreement or our express instructions; and (b) will be kept secure through appropriate organisational and technical measures implemented by you to prevent the loss of, damage to, or unauthorised access to such personal data.
18. Relationship of Parties
You and we are independent contractors, and nothing in this 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 section.
19. Limitation of Liability
21. Independent Investigation
You may not assign this Agreement, by operation of law or otherwise, without our prior written consent, which consent we may give or withhold in our absolute discretion. Subject to the foregoing restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
23. Disclosure of Marketing Strategy and Placements
Either at the time of enrolment to the Programme or at the request of FanDuel, all sources used for promotion of the FanDuel brand and user acquisition efforts must be disclosed in full. In the case of media buying, lead generation, and/or affiliate networks, a complete itemised breakdown of all sources used to promote FanDuel must be disclosed. This includes weekly updates and calls with an Affiliate Manager. Updates will include any new sources, as well as a count of registrations from each source. If you fail to disclose this information, we may (in our absolute discretion) withhold any Referral Fees otherwise payable to you under this Agreement and/or terminate this Agreement.
Annex A: British Players
1. British Customers
Without prejudice to the generality of the foregoing, you agree that, insofar as you carry out activities on our behalf in relation to any transaction, interaction or dealing (in any way) customers located in Great Britain ("British Customers"), you shall comply with the British Gambling Commission's Licence Conditions and Codes of Practice ("LCCPs") (located here), as may be amended from time to time and, in particular:
· you will conduct yourself as if you were bound by the LCCPs and the same industry codes of practice as are applicable to us (social responsibility code provision 1.1.2(1)(a));
· you will promptly provide such information to us as we may reasonably require in order to enable us to comply with our information reporting and other obligations to the British Gambling Commission (social responsibility code provision 1.1.2(1)(b); and
· you will not place digital advertisements on any sites providing unauthorised access to copyrighted content nor will Your Site serve or furnish any such unauthorised access to copyrighted content.
2. Marketing and Promotion to British Customers
You agree that the manner and content of your marketing and promotion activities directed towards British Customers, whether directly or indirectly, shall be conducted at all times in accordance with: (i) the Gambling Industry Code for Socially Responsible Gambling; (ii) the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing; (iii) the Consumer Protection from Unfair Trading Regulations; and (iv) any and all other applicable rules relating to advertising in Great Britain, each as may be amended from time to time.
If you make available to any British Customer or potential British Customer any incentive or reward scheme or other arrangement under which the customer may receive money, goods, services or any other advantage, the scheme must be designed to operate, and be operated, in such a way that:
· the circumstances in which, and conditions subject to which, the benefit is available are clearly set out and readily accessible to the customer to whom it is offered;
· neither the receipt nor the value or amount of the benefit is: (a) dependent on the customer gambling for a pre-determined length of time or with a pre-determined frequency; or (b) altered or increased if the qualifying activity or spend is reached within a shorter time than the whole period over which the benefit is offered;
· if the value of the benefit increases with the amount the customer spends it does so at a rate no greater than that at which the amount spent increases; and
· if the benefit comprises free or subsidised travel or accommodation which facilitates the customer's attendance at particular licensed premises the terms on which it is offered are not directly related to the level of the customer's prospective gambling.
3. Socially responsible marketing
Notwithstanding the obligation to comply with all applicable advertising regulations, you must ensure any content you create, publish or otherwise distribute and that is intended to attract traffic to the FanDuel Site does not:
· portray, condone or encourage gaming behaviour that is socially irresponsible or could lead to financial, social or emotional harm;
· exploit the susceptibilities, aspirations, credulity, inexperience or lack of knowledge of children, young persons or other vulnerable persons;
· suggest that gaming can provide an escape from personal, professional or educational problems such as loneliness or depression;
· suggest that gaming can be a solution to financial concerns, an alternative to employment or a way to achieve financial security;
· portray gaming as indispensable or as taking priority in life; for example, over family, friends or professional or educational commitments;
· suggest that gaming can enhance personal qualities, for example, that it can improve self-image or self-esteem, or is a way to gain control, superiority, recognition or admiration;
· suggest peer pressure to play nor disparage abstention;
· link gaming to seduction, sexual success or enhanced attractiveness;
· portray gaming in a context of toughness or link it to resilience or recklessness;
· suggest gaming is a rite of passage;
· suggest that solitary gaming is preferable to social gaming;
· be likely to be of particular appeal to children or young persons, especially by reflecting or being associated with youth culture;
· include a child or a young person. No-one who is, or seems to be, under 25 years old may be featured gaming or playing a significant role. No-one may behave in an adolescent, juvenile or loutish way;
· exploit cultural beliefs or traditions about gaming or luck;
· condone or encourage criminal or anti-social behaviour; or
· condone or feature gaming in a working environment (unless licensed gambling premises).