1. Who We Are
References to "FanDuel", "we", "us", or "our" in this Agreement are references to FanDuel, Inc. and FanDuel, Limited.
2. This Agreement
The terms and conditions contained in this agreement (the “Agreement”) represent the legally binding agreement that governs your participation in the FanDuel Affiliate Program (the "Program"). 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 Program.
The "FanDuel Site" means the site that has its primary home page identified by the URL 'www.FanDuel.com' and the FanDuel mobile application.
"Your Site" means the site that you listed in your Program application and on which you will place our ads to link to the FanDuel Site.
3. Enrollment in the Program
To begin the enrollment process, you must submit a complete Program 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 Program. 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 unauthorized access to copyrighted content.
By participating in the Program you agree that you will not engage in any of the activities listed above, or any other illegal activities. If we reject your application, you are welcome to reapply to the Program at any time. You should also note that if we accept your application and Your Site is thereafter determined (in our sole discretion) to be unsuitable for the Program, we may terminate this Agreement immediately and without any liability to you or any third party.
4. Links on Your Site
If and when you have been notified that Your Site has been accepted into the Program, we will provide you with the appropriate ads that you may add to Your Site.
We will provide you with guidelines and graphical artwork to use in linking to the FanDuel Site home page. To permit accurate tracking, reporting, and the accrual of Referral Fees (as defined in section 7 below), we will provide you with special "tagged" link formats to be used in all links between Your Site and the FanDuel Site. You must ensure that each of the links between Your Site and the FanDuel Site properly uses such formats. Links to the FanDuel Site placed on Your Site pursuant to this Agreement and which properly uses such special link formats are referred to as "Affiliate Links". You will earn Referral Fees only with respect to activity on the FanDuel Site occurring directly through Affiliate Links. We will not be liable to you for any failure by you to use Affiliate Links, including to the extent that such failure may result in any reduction of amounts that would otherwise be paid to you under this Agreement.
In addition, you acknowledge and agree that we may crawl or otherwise monitor Your Site for the purpose of ensuring the quality and reliability of Affiliate Links on Your Site (for example, to detect links that are broken or non-functional, links to products that are out of stock or otherwise unavailable, etc.). You hereby agree that: (a) we may take such actions and that you will not seek to block or otherwise interfere with such crawling or monitoring; and (b) we may use technical means to overcome any methods used on Your Site to block or interfere with such crawling or monitoring.
Further, you acknowledge and agree that you will: (a) use any data, graphics, images, text, or other information or material obtained by you from us or the FanDuel Site in connection with this Agreement (collectively, the "Content") only in a lawful manner and only in strict accordance with the terms of this Agreement and any other instructions we may give you in relation to the Content; (b) not modify or alter any Content that consists of a graphic image, other than to resize it (provided you retain the original ratios); (c) not edit any Content that consists of text; (d) not sell, redistribute, sublicense or transfer any Content; (e) not use any Content in a manner intended to send sales to any site other than the FanDuel Site; and (f) promptly delete or otherwise destroy any Content that is no longer displayed on the FanDuel Site or that we notify you is no longer available for your use.
5. Disclosure of Marketing Strategy and Placements
Either at the time of enrollment to the Program 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 itemized 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.
6. 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 summarizing such sales activity. The form, content, and frequency of these reports may vary from time to time in our absolute discretion.
7. Referral Fees
Subject to your compliance with this Agreement, we will pay you (in accordance with section 8 below) Referral Fees for qualifying customers who register, make deposits and enter paid contests on the FanDuel Site via the Affiliate Links from Your Site (the "Referred Customers"). For a Referred Customer to be eligible to earn you a Referral Fee, the Referred Customer must click-through an Affiliate Link from Your Site to the FanDuel Site and must deposit and enter a minimum of $10 of entry fees in real money contests on the FanDuel Site (the "Referral Fee Threshold"). For the avoidance of doubt, the Referral Fee Threshold can be met by cumulative entry fees paid in multiple real money contests, or a single entry fee over the Referral Fee Threshold. We will pay Referral Fees only on eligible referrals, and then only after payment of the Referral Fee Threshold has occurred and there has been no subsequent cancellation or chargeback. Further, a Referred Customer who registered after September 1, 2017 but does not make a deposit or enter a paid contest on the FanDuel Site within 30 days of his or her date of registration will not be eligible to earn you Referral Fees. Referred Customers are only eligible to earn you Referral Fees within the first 730 days of their registration date on the FanDuel Site. As of the date of this Agreement, you will no longer be eligible to earn Referral Fees from Referred Customers who have been registered users of the FanDuel Site for more than 730 days.
We reserve the right to review all Referral Fees for possible fraud on your part or on the part of any Referred Customer. If we reasonably consider that Referral Fees have been generated in whole or in part due to fraudulent practices, we shall be entitled to withhold those Referral Fees or offset an appropriate amount from future payments of Referral Fees (in our sole discretion). For the purposes of these terms and conditions, "fraud" shall include, but shall not be limited to: (i) acts made in bad faith; (ii) a Referred Customer’s collusion with any other player on the FanDuel Site; (iii) you or any third party offering or providing any unauthorized incentive (financial or otherwise) to potential customers (including, without limitation, the sharing by you of any Referral Fees earned by you through your promotion of the FanDuel Site); or (iv) the creation of multiple user accounts (including those to be used by you or your friends, relatives or associates) in order to abuse the Referral Fee mechanism.
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" program 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 authorize, 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, authorize, 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 registrations 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 Program;
(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 Program, as notified by us to you from time to time (the "Affiliate Manager");
(k) optimize 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; or
(l) publish content considered to be improper, adverse to the integrity of FanDuel contests, or in any way detrimental to FanDuel users. This includes, but is not limited to, offering complete FanDuel lineups for sale.
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.
8. Referral Fee Calculation
When you enter the Program, you will either earn (subject to the other terms of this Agreement and unless otherwise agreed in writing between the parties) the referral fees of 35% of the Net Revenue generated from Referred Customers in any calendar month, or a one-time fee for each new user that you refer to FanDuel ("Referral Fees"). However, the maximum Referral Fee you may earn from any individual Referred Customer is $1,000.
By way of example only, if the Net Revenue generated on the FanDuel Site is $2,000 from Referred Customer X and $10,000 from Referred Customer Y, then your Referral Fees shall be $1,700 ($700 for Referred Customer X and the maximum Referral Fee of $1,000 for Referred Customer Y).
"Gross Revenue" shall mean the gross revenues retained by FanDuel from Referred Customers’ entry fees for participating in real-money contests on the FanDuel Site, which, with respect to each real-money contest entry made by the Referred Customer, shall be calculated as follows:
((Total entry fees collected from all contest participants) – total contest prizes) / total number of entries made by all participants into the 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 service charges that are paid to third parties in connection with Referred Customers' deposits and withdrawals. For the avoidance of doubt, no Referral Fees shall be due or payable in relation to revenue generated by your own play.
9. Referral Fee Payment
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, except that we will accrue and withhold Referral Fees until the total amount due is at least $50. You may request that payment of amounts over $250 be made by check. You may request that payments of amounts over $1,000 be made by wire transfer. Payments of $5,000 or more must be made by wire transfer or check.
10. Policies and Pricing
Customers who become customers of the FanDuel Site through the Program will be deemed to be our customers. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, registration and contests will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for registration, if any, under the Program in accordance with our own pricing policies. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular contest.
11. The Relationship
You may not in any manner misrepresent or embellish the relationship between us and you, or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement (including by expressing or implying that we support, sponsor, endorse, or contribute money to any charity or other cause).
12. Limited License
We grant you a non-exclusive, revocable, limited right to use the Content solely for the purpose of identifying Your Site as a Program participant and to assist in generating customer registrations. 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 license at any time by giving you written notice.
13. Responsibility for Your Site
You are solely responsible for the development, operation, content and maintenance of Your Site and for all materials that appear on Your Site. For example, but without limitation, you are solely responsible for:
· 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 .
We disclaim all liability for the matters listed above and for any matter relating to Your Site.
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 Program affiliates to comply with, in particular those which the terms of our licenses require us to pass through to our Program 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, of which we may notify to you from time to time.
15. 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 21 years of age in Massachusetts) 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 18 year olds (21 year olds in Massachusetts).
16. Data Protection
You hereby acknowledge that all information relating to the Referred Customers 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 organizational and technical measures implemented by you to prevent the loss of, damage to, or unauthorized access to such personal data.
17. Term of this Agreement
The term of this Agreement (the "Term") will begin upon our acceptance of your Program application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from Your Site, all links to the FanDuel Site, and all of our trademarks, trade dress, and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program. You are eligible to earn Referral Fees only on qualifying registrations and deposits from Referred Customers that occur during the Term, and only if the relevant registrations or deposits are not cancelled and are made by means consistent with this Agreement. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on the FanDuel Site (or on a page that is about the Program). Modifications may include, for example, changes in the scope of available Referral Fees, Referral Fee calculation, payment procedures, and Program rules. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Program following our posting of a change notice or new agreement on the FanDuel Site will constitute binding acceptance of the change.
19. 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.
20. Limitation of Liability
You expressly agree that your use of the FanDuel Site and the Affiliate Links and your participation in the Program is at your own risk. The FanDuel Site, the Affiliate Links and your participation in the Program are available on an "as is" basis, without warranty of any kind, express or implied. Neither FanDuel nor any of its information providers, licensors, employees, agents, consultants or contractors, makes any warranty or representation whatsoever regarding the FanDuel Site and any other FanDuel sites, the Affiliate Links or the Program, any information, services or products provided or available through or in connection with the FanDuel Site and any other FanDuel sites or any results obtained through the use thereof. We hereby disclaim on behalf of ourselves and all our information providers any and all warranties including, without limitation: (1) any warranties as to the availability, accuracy or content of information, products or services; and (2) any warranties of title or warranties of merchantability or fitness for a particular purpose (to the extent permitted by law). Any liability of FanDuel, its information providers, licensors, employees, agents, consultants, or contractors, including, without limitation, any liability for damages caused or allegedly caused by any failure of performance, error, omission, interruption, deletion, defect, failure of delivery of merchandise, delay in operation or transmission, computer virus, communications line failure, theft or destruction or unauthorized access to, alteration of, or unlawful use of FanDuel's records, whether for breach of contract, tortious behavior, negligence, or under any other cause of action, shall be strictly limited to the amount of total Referral Fees paid to you under this Agreement. To the fullest extent permitted by law, FanDuel, its information providers, licensors, employees, agents, consultants or contractors, hereby exclude all liability for any indirect, special, incidental, or consequential damages or for any loss of revenue, profits or data (whether direct or indirect), arising out of this Agreement or the Program and/or out of the use or inability to use the FanDuel Site, the Affiliate Links and/or any other FanDuel sites or for any breach of warranty, even if we have been advised of the possibility of such damages.
You agree that you will not hold FanDuel responsible for the selection or retention of, or any acts, errors, or omissions by, any third party in connection with the FanDuel Site and/or any other FanDuel sites, including, without limitation, those with whom FanDuel contracts to operate various portions of the FanDuel Site and/or any other FanDuel sites and those to whom FanDuel provides links to for content, advertising or any other type of data or information.
We make no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, 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 the FanDuel Site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
22. Independent Investigation
You acknowledge that you have read this 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 Agreement or operate sites that are similar to or compete with Your Site. You have independently evaluated the desirability of participating in the Program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.
This Agreement and the relationship between you and FanDuel shall be governed by the laws of the State of New York without regard to conflict of law provisions, and the parties hereby submit themselves to the non-exclusive jurisdiction of the courts of the State of New York sitting in New York County as regards any claim, dispute or matter arising under or in relation to this Agreement
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.