NAPOLEON AFFILIATE PROGRAMME TERMS AND CONDITIONS – version date 15/11/2023 THESE NAPOLEON AFFILIATE PROGRAMME TERMS AND CONDITIONS (these "Terms") shall apply to the entity or individual (as applicable) (the "Affiliate") who has entered into a Napoleon Affiliate Programme Commercial Agreement to which these Terms are linked to (the "Commercial Agreement") with Napoleon Games NV, a company incorporated under the laws of Belgium (company number 0424.851.684), also acting on behalf of any Napoleon Group Company as the case may be and to the extent relevant, with an address at Gentsesteenweg 505, 1080 Sint-Jans-Molenbeek, Belgium ("Napoleon"). Napoleon has the necessary permissions to manage and/or operate the Napoleon Affiliate Programme (as defined below) including without limitation to make payments to the Affiliate. The Affiliate hereby acknowledges and agrees that Napoleon and/or any Napoleon Group Company shall be entitled to enforce the terms of the Agreement including without limitation by exercising any rights and/or carrying out any obligations which Napoleon possesses as detailed in the Agreement. Each of Napoleon and the Affiliate shall hereafter be referred to as a "Party" and collectively referred to as the "Parties."
In these Terms, the following expressions shall have the respective meanings assigned to them:
1.1. (i) Any phrase introduced by the terms "including", "include", "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. (ii) If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of these Terms. (iii) The headings in these Terms are for ease of reference only and shall not affect its construction. (iv) In these Terms, if the context so requires, references to the singular shall include the plural and vice versa.
2.1. In order for the Affiliate to participate in the Napoleon Affiliate Programme, the Commercial Agreement must be executed by both Parties.
2.2. Following the execution of the Commercial Agreement by both Parties, Napoleon shall set up for the Affiliate an account with the Napoleon Affiliate Programme through the Napoleon Affiliate Programme Site (the "Affiliate Account"). The Affiliate shall set up its own password for the Affiliate Account. The Affiliate Account is solely for the benefit of the Affiliate and the Affiliate undertakes that it shall not allow any third party to use the Affiliate Account, password to the Affiliate Account or its identity to access and/or participate in the Napoleon Affiliate Programme.
The Affiliate is fully responsible for any activities undertaken on the Affiliate Account. The Affiliate shall inform Napoleon immediately if the Affiliate suspects that the Affiliate Account is being accessed and/or used by a third party. For the avoidance of any doubt, Napoleon shall not be liable for any activities undertaken on the Affiliate Account and/or for any damages that may arise from the Affiliate Account.
To the extent no Affiliate Account would be set up, parties shall determine in the Commercial Agreement on how communication will be dealt with and in general how the execution of the Agreement shall be governed in relation to where reference is made to the Affiliate Account in these Terms. In addition the Affiliate guarantees to inform Napoleon as soon as possible on any a change of control event, change in the ultimate beneficial owner, termination of the business, any relevant (de)merger or other action that is relevant for the execution of the Agreement. Such communication shall always be done in written format.
2.3. The Affiliate acknowledges that Napoleon may at its sole discretion perform a Know Your Customer (KYC) check to which the Affiliate agrees to fully participate or any other kind of background checks on the Affiliate and request documentation from the Affiliate which Napoleon may also request is notarized by a Public Notary. The Affiliate undertakes to provide Napoleon with all such documents and information requested by Napoleon. Napoleon may terminate the Agreement on written notice to the Affiliate on the basis that the background checks provide a negative or uncertain conclusion.
2.4. The background checks may include the use of specific third-party companies, who perform the investigations.
In the event that Napoleon does not receive the requested documentation and/or information and/or Napoleon in any way suspects that the documents are not accurate, have been tampered with and/or are misleading, Napoleon shall not be obligated to accept such documents as valid and may terminate the Agreement on written notice to the Affiliate.
The background checks may include the use of specific third-party companies, who perform the investigations.
3.1. In the event that Section 2.1 has been complied with in full and subject to the Affiliate's compliance with the terms of the Agreement, Napoleon grants the Affiliate for the term of the Agreement, a non-transferable, non-exclusive, revocable license to place the Links on the Affiliate Marketing, and solely in connection with the Links, to use the Licensed Materials, for the purpose of promoting the Napoleon Sites in the Territory (the "License"). Napoleon may revoke the License at any time on written notice to the Affiliate, and in such event the Affiliate shall immediately destroy or deliver up to Napoleon all such materials that are in the Affiliate's possession (at Napoleon's discretion).
3.2. The Affiliate acknowledges that except for the License which may be granted, the Affiliate has not acquired and will not acquire any right, interest and/or title to the Links and/or the Licensed Materials and/or any other of Napoleon’s (tangible or intangible) assets or intellectual property rights of whatever nature by reason of the Agreement and/or the Affiliate's services provided as detailed in the Agreement.
3.3. The Affiliate undertakes not to: (i) change in any way the Links and/or the Licensed Materials; and/or (ii) use the Links and/or Licensed Materials in a manner that is disparaging and/or which may in any way portray the Napoleon and/or any Napoleon Group Company in a negative light.
3.4. The Affiliate agrees to co-operate fully with Napoleon in order to maintain and/or establish the Links.
3.5. In the event that Napoleon determines that the Affiliate's use of any Link is not in compliance with the Agreement, Napoleon may take such measures as to render such Links inoperative.
3.6. The Affiliate shall prominently incorporate and continually display the most up-to-date Links on the Affiliate Marketing.
3.7. All intellectual property rights created and/or deriving out of this Agreement shall be or become the sole property of Napoleon and the Affiliate shall have no rights therein.
4.1. In consideration of the Affiliates provision of services provided under and in accordance of the Agreement, Napoleon shall pay the Affiliate the Referral Commission.
4.2. The type of Referral Commission and the amount of the Referral Commission paid by Napoleon to the Affiliate (as applicable) is detailed in the Commercial Agreement. The type of Referral Commission and the amount of Referral Commission may be modified in accordance with the terms of the Commercial Agreement.
4.3. With respect to a Referral Commission which contains a CPA Commission and/or Referred Revenue Share Commission (if and as applicable), the calculation of such Referral Commission shall start from the date both Parties have executed the Commercial Agreement ("Start Date"). For the avoidance of doubt, the Affiliate shall not be eligible to receive any payment of the Referral Commission prior to the Start Date.
4.4. With respect to a Referral Commission which contains a Flat Fee Payment, the Flat Fee Payment shall only be payable subject to both Parties having executed the Commercial Agreement. For the avoidance of doubt, the Affiliate shall not be eligible to receive any payment of the Referral Commission prior to such time.
4.5. The Affiliate's shareholders, employees and/or their respective Relatives are not eligible to become a Referred Player and should any of them do so, Napoleon shall not be liable to pay any Referral Commission with respect to such person and such act is considered to be a fraudulent act committed by the Affiliate against Napoleon.
4.6. The number of Referred Players per individual household, tablet device, mobile device and computer is strictly limited to one.
4.7. In the event the Affiliate does not direct at least one Referred Player directly through the Links placed on the Affiliate Websites in any calendar month, Napoleon may reduce the Referral Commission paid at such time by 100% for such calendar month. For the avoidance of doubt, the Referral Commission may be reduced multiple times during the term of the Agreement.
4.8. For the avoidance of doubt, following the termination of the Agreement, the Affiliate will only be entitled to receive the outstanding Referral Commission that has accrued until the effective date of termination of this Agreement. However, Napoleon may reasonably withhold the Affiliate’s final payment to ensure that the correct amount is paid. After such payment, the Affiliate will no longer be entitled to receive any other Referral Commission.
4.9. If Napoleon pays the Affiliate a Referral Commission which contains a CPA Commission and/or Referral Revenue Share Commission, within approximately 5 (five) days of the end of each calendar month, Napoleon shall make available to the Affiliate through the Napoleon Affiliate Programme Site the number of Referred Players generated on the Affiliate Account and the Referral Revenue Commission which has been accrued by the Affiliate in the previous calendar month (the "Referral Commission Statement"). Within 5 days of the Referral Commission Statement being made available to the Affiliate, the Affiliate will send an invoice to Napoleon which contains an amount equal to the Referral Commission for the relevant calendar month to Napoleon by e-mail to: affiliate@napoleongames.be. Subject to Napoleon's receipt of an undisputed invoice at the foregoing email address, Napoleon shall settle such invoice within 60 (sixty) days of receipt of such invoice.
4.10. Without derogating from Sections 4.14 and/or 4.19, with respect to the payment of the Referral Commission which Commission which contains a CPA Commission and/or Referral Revenue Share Commission (if and as applicable), if the Affiliate and another marketing partner of Napoleon and/or any Group Company directs a person to the Napoleon Sites and such person becomes a Referred Player, Napoleon shall pay the party which last directed such person to the Napoleon Sites and the person has subsequently registered with the Napoleon Sites.
4.11. If Napoleon pays the Affiliate a Referral Commission which contains a Flat Fee Payment, the Affiliate shall send Napoleon within 5 days of the expiration of each calendar month, the Affiliate will send an invoice for an amount equal to the Flat Fee Payment to Napoleon by e-mail to: affiliate@napoleongames.be. Subject to Napoleon's receipt of an undisputed invoice at the foregoing email address, Napoleon shall settle such invoice within (60 (sixty) days of receipt of such invoice.
4.12. Any amount paid by Napoleon to the Affiliate under the Agreement, shall include without limitation all taxes (such as Value Added Tax, where applicable), duties, fees, excises or tariffs. In the event Napoleon is required to withhold and/or deduct on account of any taxes, all such withholdings and/or deductions shall be considered as paid to the Affiliate. In addition, Napoleon shall have no obligation to increase such payments of Referral Commission to the Affiliate in the event any taxes, duties, withholdings or deductions and/or other governmental assessments become applicable.
4.13. Payment of the Referral Commission to the Affiliate shall be made in Euros.
4.14. Napoleon's records and calculations regarding the number of Referred Players and/or the Referral Commission including without limitation to Referral Revenue Share Commission, Gross Revenues, winnings and/or Net Revenues shall be the sole and authoritative tool and shall not be open to review or appeal.
4.15. If the Affiliate is paid a Referral Commission which contains a Referral Revenue Share Commission, Napoleon may at its discretion: (i) in calculating the Referral Revenue Commission to be paid to the Affiliate in a calendar month take into account the Referral Revenue Commission both positive and negative, generated by the Referred Players on the Napoleon Sites; and/or (ii) in the event that at the conclusion of a calendar month the Referral Commission generated by the Referred Players on the Napoleon Sites is a negative amount, Napoleon will deduct the negative amount (i.e. so called negative carryover) from the Referral Commission in following calendar months calendar until the negative balance has been fully set-off against future positive Referral Commission generated and/or any other payment payable to Napoleon and/or any Napoleon Group Company by the Affiliate and/or Napoleon may issue an invoice for such negative amount and the Affiliate shall pay such amount within 5 (five) days of its receipt of such invoice.
4.16. In the event that the Affiliate is paid a Referral Commission which contains a Referral Revenue Share Commission: if the Referral Revenue Share Commission generated by any Referred Player at any point in time exceeds Euros 100,000 (one hundred thousand Euros) (“Maximum Pay Out”), Napoleon reserves the right at its sole discretion from such point in time such, to no longer deem such Referred Player as a “Referred Player”. For the avoidance of any doubt, such Referred Player shall no longer be used to calculate any Referral Revenue Share Commission (including without limitation in the calendar month in which the Maximum Pay Out occurred). In addition, Napoleon reserves the right at its sole discretion to deduct any Referral Revenue Share Commission already paid with respect to such Referred Player from the Referral Commission in the following calendar months until such amount has been fully set-off against any future positive Referral Commission. In addition Napoleon will not be liable towards the Affiliate to pay any kind of buy-out fee, termination fee or otherwise as a consequence of the Referred Player not being considered to be a Referred Player pursuant to this clause 4.16.
4.17. If the Referral Commission generated in any calendar month is less than Euros 100 ("Minimum Payment"), Napoleon shall not be liable to pay the Referral Commission until such time as the Referral Commission is equal to or greater than the Minimum Payment.
4.18. If any Referred Player is blocked or suspended, for example for reasons of fraud or any failure to validate the end-user account), Napoleon shall not be liable to pay the Affiliate any Referral Revenue Share Commission and/or CPA Commission (as and if applicable) with respect to such Referred Player.
4.19. Without derogating from Section 4.14, if an error is made in the calculation of the number of Referred Players and/or the Referral Commission, Napoleon reserves the right to correct such calculation at any time and to reclaim from the Affiliate any overpayment made by Napoleon to the Affiliate, including without limitation, by way of reducing future payments which might otherwise be due to the Affiliate from Napoleon from time to time and/or issue an invoice for such overpaid amount and the Affiliate shall pay Napoleon such amount within 5 (five) days of its receipt of such invoice.
4.20. In the event that the Affiliate provides Napoleon with incorrect or incomplete payment details or the Affiliate has failed to update its payment details on the Affiliate Account and as a result the Referral Commission is paid to an incorrect payment account and/or not paid at all, Napoleon shall no longer be liable to the Affiliate for any such Referral Commission.
4.21. In the event that the Parties agree in accordance with the Commercial Agreement to change the type of Referral Commission and/or the amount of the Referral Commission paid by Napoleon to the Affiliate (as applicable), such change will only apply to future Referred Players generated in accordance with the Agreement by the Affiliate from (and inclusive of) the date agreed by the Parties (“Date of Change”) and not to any past Referred Players generated in accordance with the Agreement by the Affiliate prior to the Date of Change. The type of Referral Commission and/or the amount of the Referral Commission paid by Napoleon to the Affiliate may be changed multiple times throughout the Agreement.
5.1. Napoleon reserves the right to seek criminal and/or other sanctions against the Affiliate, if Napoleon suspects that the Affiliate, the Referred Player and/or any third party acting indirectly or directly on behalf of the Affiliate has engaged in any fraudulent, dishonest and/or criminal act and Napoleon may disclose such information to the relevant authorities and/or other relevant third parties as may be necessary in this regard.
5.2. Napoleon retains the right to review the Affiliate's activity under the Agreement for possible fraud, whether such is fraud is the Affiliate's, any third party acting indirectly or directly on behalf of the Affiliate and/or a Referred Players. Any review period will not exceed 60 (sixty) days.
5.3. By way of example only "fraud" shall include but not be limited to: (i) any act by the Affiliate, any third party acting indirectly or directly on behalf of the Affiliate and/or by a Referred Player which is reasonably understood to have been committed in bad faith against Napoleon and/or any Napoleon Group Company; (ii) the offering and/or providing by the Affiliate or any third party of any incentives (financial and/or otherwise), including without limitation "rake back" and/or reward scheme, to potential or existing Referred Players; (iii) a chargeback executed by a Referred Player in relation to their initial deposit; (iii) collusion on the part of the Referred Player with any other player on the Napoleon Sites; (iv) the Affiliate's use and/or a Referred Player's use of any device, robot, spider, software, routine or other method (or anything analogous to the foregoing) which attempts to interfere and/or interferes with the proper functioning of the Napoleon Sites and/or the products offered on the Napoleon Sites and/or any related information or transactions on the Napoleon Sites.
5.4. Any fraud on the part of the Affiliate, by any third party acting indirectly or directly on behalf of the Affiliate and/or by a Referred Player, constitutes a breach of the Agreement. Napoleon also retains the right to set-off from future Referral Commission payable to the Affiliate any amounts already received by the Affiliate generated by fraud.
6.1. Throughout the term of the Agreement the Affiliate shall:
6.2. Throughout the term of the Agreement the Affiliate shall not:
6.3. The Affiliate undertakes that the Affiliate Marketing will not, in any way, copy and/or resemble the look and feel of the Napoleon Sites (or any part thereof), nor will the Affiliate create the impression that any of the Affiliate Marketing are any of the Napoleon Sites (or any part thereof).
6.4. The Affiliate acknowledges that its conduct may cause damage to Napoleon and/or the Napoleon Sites’ reputation and/or goodwill and as a result undertake that at all times the Affiliate shall consider the goodwill and reputation of Napoleon and/or the Napoleon Sites and to act in an appropriate manner.
6.5. The Affiliate will ensure that the Affiliate Marketing will not contain any content on the belonging to Napoleon and/or any Napoleon Group Company except (i) with Napoleon's prior written permission; and/or (ii) the Links. 6.6. The Affiliate shall not register a domain name that includes, incorporates and/or consists of the Napoleon’s and/or any Napoleon Group Company's trademarks and/or any domain name that is confusingly similar to such trademarks.
6.7. The Affiliate undertakes not to register and/or attempt to register and/or be complicit in or cooperate with any third party registering or attempting to register, any domain name which is similar to any domain name and/or intellectual property rights of Napoleon and/or intellectual property rights belonging to any Napoleon Group Company), including (for the avoidance of doubt) any misspellings, other variations of the domain names and/or other likenesses.
6.8. Without derogating from Section 6.7, immediately following the execution of the Agreement, the Affiliate will provide Napoleon a list of any domains which breach Section 6.7. If Napoleon becomes aware that the Affiliate has registered a domain name in breach of Section 6.7, it shall inform the Affiliate and the Affiliate agrees (at no cost to Napoleon) to transfer such domain name to Napoleon or any Napoleon Group Company (at the discretion of Napoleon). The foregoing shall also apply to any domain name registered prior to the date of the Agreement. Furthermore, the Affiliate will not allow the domain name registration to lapse, until the domain name has been transferred to Napoleon or the Napoleon Group Companies (as applicable). Napoleon may withhold all Referral Commission until the domain name has been transferred in full in accordance with this Section 6.8, to Napoleon’s satisfaction.
6.9. The Affiliate undertakes to not send any unsolicited and/or spam messages ("Spam") to promote the Napoleon Sites.
6.10. In the event Napoleon and/or any Napoleon Group Company receives a complaint that the Affiliate has been sending Spam, the Affiliate agrees that Napoleon may provide to the party making the complaint any details required for the complaining party to contact the Affiliate directly in order for the Affiliate to resolve the complaint and the Affiliate shall immediately cease sending Spam. The Affiliate undertakes to make every effort to resolve the compliant. In such event, Napoleon may set off or charge the Affiliate for all claims, damages, expenses, costs, and/or fines incurred or suffered by Napoleon and/or any Napoleon Group Company in relation to such Spam.
6.11. Napoleon may terminate the Agreement on written notice to the Affiliate, if Napoleon determines that the Affiliate Websites and/or Social Media Information include any content on the Affiliate Marketing that Napoleon deems is in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable, which by way of example only, might mean that the Affiliate Marketing contains: (i) sexually explicit or pornographic content, (ii) speech or images that are offensive, profane, hateful, threatening, harmful, defamatory, libellous, harassing or discriminatory, (iii) violence, (iv) politically sensitive or controversial issues; (iii) content which is discriminatory based on gender, religion, nationality, sexual orientation, age or disability; and/or (v) any unlawful behaviour or conduct.
6.12. The Affiliate shall ensure that the Affiliate Marketing and/or the Affiliate Marketing’s content is compliant with all Applicable Laws including without limitation any content, phrasing obligations and/or restrictions imposed on Napoleon by Applicable Law including without limitation those required by the Belgian Regulator;
6.13. To permit accurate tracking, reporting and Referral Commission, the Affiliate must ensure that the Links between the Affiliate Marketing and the Napoleon Sites are properly formatted throughout the term of this Agreement.
6.14. If the Affiliate is in doubt regarding the compliance of a particular marketing method and/or material with regards to the Napoleon Sites with Applicable Laws, the Affiliate must seek the appropriate legal advice before starting such marketing and shall immediately provide Napoleon with such advice well in advance of beginning such marketing.
7.2. The Napoleon Sites, Affiliate Programme Site, Napoleon Affiliate Programme and/or and the Links are provided "as is" without any express and/or implied warranty of any kind, and all warranties including warranties of merchantability, non-infringement of intellectual property rights, fitness for any particular purpose, and of completeness and/or accuracy of content are hereby excluded to the fullest extent permitted by law. Napoleon, nor any Napoleon Group Company and/or any of their respective licensors give any warranty and/or representation that the supply of material and content on, and/or links to or from, the Napoleon Sites, Affiliate Programme Site, and/or the Links will be uninterrupted, timely, secure or error free and/or that they are free of viruses or bugs.
7.3. In no event shall Napoleon nor any Napoleon Group Company be responsible and/or liable for any claim or dispute between the Affiliate and any user and/or recipient (as applicable) of the Affiliate Marketing.
7.4. The Affiliate acknowledges that different payment schemes may apply to other participants in the Napoleon Affiliate Programme and who may be paid in a different manner to that of the Affiliate.
7.5. In no way whatsoever shall Napoleon have any lability to the Affiliate with respect to any Affiliate Marketing.
As a result of the Agreement and/or the Affiliate's participation in the Napoleon Affiliate Programme, Napoleon may provide to the Affiliate information which Napoleon considers at its sole discretion to be confidential ("Confidential Information"). The Affiliate shall keep all Confidential Information confidential and shall only use such Confidential Information with respect of carrying out its obligations under the Agreement. The Affiliate shall not disclose the Confidential Information to any third party. Without derogating from the foregoing, the Affiliate will immediately notify Napoleon if the Affiliate becomes aware of a breach of this Section or if a disclosure of Confidential Information is required by law. If requested by Napoleon and/or on termination of this Agreement, the Affiliate shall immediately deliver to Napoleon or destroy all Confidential Information in the Affiliates possession or control.
Notwithstanding the foregoing, the following is considered to be Confidential Information: any information of a commercial value, considered essential for a Party, such as, but not limited to technology, market and business information, financial reports, know-how, trade secrets, products, processes, business strategies, information concerning research, databases, customer information, supplier lists, marketing plans, products development, manner of operation or financial conditions.
9.1. The Affiliate warrants, represents and/or undertakes to Napoleon that:
10.1. During the term of the Agreement and thereafter at any time Napoleon and/or a third party acting on Napoleon's behalf may audit the Affiliate with respect to the Affiliate's compliance with the terms of the Agreement and/or the amount of Referral Commission (if applicable) paid to the Affiliate. Such audit, at Napoleon's discretion may be undertaken remotely and/or at the Affiliate's principal place of business. The Affiliate shall fully co-operate with Napoleon and/or a third party acting on Napoleon's behalf (at no cost to Napoleon) and shall provide all documents, books, records and/or information requested as well as access to the Affiliate's systems. Napoleon and/or or a third party acting on Napoleon's behalf, shall have the right to take copies of any records and/or documentation it reasonably requires.
In the event any audit reveals that Napoleon has overpaid any Referral Commission to the Affiliate, the Affiliate shall reimburse Napoleon all such amounts within 14 days of being notified of such.
The audit costs shall be borne by Napoleon. However, should the audit reveal that the Affiliate has not fully complied with its obligations and/or any requirements under the Agreement, the actual and reasonable costs of that audit will be reimbursed by the Affiliate to Napoleon all such amounts within 14 days of being notified of such.
10.2. Napoleon shall have the right but not the obligation to monitor the Affiliate Marketing, to ensure that the Affiliate is complying with the terms of this Agreement. The Affiliate shall provide (and at no charge to Napoleon), Napoleon with all data and information to perform such monitoring.
Napoleon and/or any Napoleon Group Company will not be liable for any indirect, special and/or consequential damages and/or any loss of revenue, profits, goodwill, reputation and/or data arising in connection with the Agreement and/or the Affiliate's participation in the Napoleon Affiliate Programme. Without derogating from the foregoing, Napoleon's aggregate liability arising with respect to the Agreement will not exceed the total Referral Commission paid to the Affiliate under the Agreement in the 12 months prior to the event giving rise to such liability. Furthermore, nothing in the Agreement shall be construed to provide any rights, remedies or benefits to any person or entity not a party to the Agreement unless explicitly stated herein.
The Affiliate hereby agrees to defend and indemnify Napoleon, any Napoleon Group Company and their respective shareholders, officers, directors, employees, agents, successors and/or assigns (collectively and individually the “Napoleon Indemnified Parties”) on Napoleon's first demand from and against any and all claims, losses, liabilities, damages or expenses (including legal fees and costs) of any nature whatsoever incurred or suffered by any of the Napoleon Indemnified Parties (collectively and individually the "Losses"), in so far as such Losses (or actions in respect thereof) arise out of or are based on (i) the Affiliate's breach of the Agreement; (ii) the Affiliate Marketing; (iii) any claim related to the Affiliate's entitlement to use or the display of the Links and/or Licensed Materials on the Affiliate Marketing; (iv) the Affiliate's non-performance and/or non-observance of the Affiliates obligations in the Agreement; (v) the Social Media Information; (vi) any marketing and/or promotion activities carried out by the Affiliate in relation to Napoleon Affiliate Programme; and/or (vii) if the Agreement has not within 15 (fifteen days) of the Agreement being executed by the Parties.
13.1. The Agreement will come into force when the Commercial Agreement is signed by both Parties and shall continue until terminated in accordance with these Terms. Notice of termination is to be sent both by registered letter and by email by either Party to the other Party.
13.2. At any time, either Party may subject to two weeks prior written notice terminate the Agreement by giving the other Party written notice of termination.
13.3. Without prejudice to Napoleon’s right for indemnification, in the event that the Affiliate breaches the Agreement and/or the Affiliate sells any part of its business and/or registers any change of legal and/or beneficial owner of the Affiliate, Napoleon may, unless indicated otherwise, terminate the Agreement with immediate effect on written notice to the Affiliate.
13.4. Without prejudice to Napoleon’s right for indemnification, Napoleon may, unless indicated otherwise, immediately terminate the Agreement on written notice to the Affiliate in the event that: (i) the Affiliate carries out any action Napoleon reasonably believes will expose the Napoleon or any Napoleon Group Company to regulatory repercussions in any jurisdiction; (ii) Napoleon reasonably believes that the Affiliate has breached Applicable Laws; and/or (iii) Napoleon or any Napoleon Group Company is ordered or required by a regulator including without limitation the Belgian Regulator to terminate its relationship with the Affiliate; (iv) and/or Napoleon or any Napoleon Group Company is required to terminate the Agreement following changes in the Applicable Laws and regulations, verdicts from competent courts or competent government agencies, decisions by the Regulator; and/or (v) any other compelling reason for Napoleon or any Napoleon Group Entity to terminate the Agreement.
13.5. Notice of termination of the Agreement by the Affiliate must be sent to affiliate@napoleongames.be. Notice of termination sent by Napoleon shall be sent to the Affiliate Account Email Address.
13.6. In the event the Agreement is terminated in accordance with Section 13.2, if: (i) Napoleon pays the Affiliate Referral Commission which contains a Referral Revenue Share Commission and/or a CPA Commission (as and if applicable), Napoleon reserves the right to withhold the final Referral Commission payment owed to the Affiliate (if applicable) for a reasonable time to ensure that the correct amount is paid to the Affiliate; or (ii) Napoleon pays the Affiliate Referral Commission which contains a Flat Fee Payment, Napoleon shall only be liable to pay the Affiliate a pro rata amount of the Flat Fee Payment for the amount of days which have expired in full up to the effective date of termination of this Agreement. In any event and for the avoidance of doubt, Napoleon will not be liable to pay to the Affiliate any kind of Referral Commission after termination of the Agreement.
13.7. Other than with respect to termination of the Agreement in accordance with Section 13.2, if the Agreement terminates for any other reason whatsoever, in such event (as applicable) Napoleon may retain any Referral Commission otherwise payable to the Affiliate under the Agreement and will no longer be liable to pay any Referral Commission to the Affiliate.
13.8. Upon the termination of the Agreement for any reason, the Affiliate will immediately cease use of, and remove from the Affiliate Marketing, all Links, Licensed Materials and/or any content owned, developed, licensed or created by Napoleon and/or any Napoleon Group Company and/or provided to the Affiliate by Napoleon in connection with the Agreement from the Affiliate Marketing and all rights and licenses granted to the Affiliate in the Agreement shall immediately terminate.
13.9. Napoleon may suspend the Agreement at its discretion immediately upon notice to the Affiliate, if Napoleon considers that the Affiliate is for any reason unsuitable to be a marketing partner and/or the Affiliate is in breach of the Agreement. Napoleon shall not be required to disclose its reasoning in connection with any such suspension. Where Napoleon suspends the Agreement, it may withhold any Referral Commission that otherwise may have been due to the Affiliate.
14.1. Napoleon shall not be responsible for delay in performing any obligation including without limitation any payment obligation under the Agreement within the time limit required for such performance, due to Force Majeure affecting Napoleon and/or any Napoleon Group Company. Upon the occurrence of a Force Majeure event, such schedule or time-limit for performance shall be extended accordingly.
The term "Force Majeure" means an event beyond the reasonable control of Napoleon and/or any Napoleon Group Company including without limitation acts of God, acts of government/regulators (including without limitation new legislation, regulatory measures and decisions or changes to the Applicable Laws and regulations), fire, flood or storm damage, earthquakes, labour disputes, war, and/or riot.
15.1. The Parties agree that they are Independent Controllers as both the Napoleon and Affiliate process the same set of personal data independent on a different purpose and means of processing. Each Party acts as an independent Data Controller for the Personal Data they hold and are not joint data controllers under Data Protection Legislation.
15.2. The Parties agree that the Personal Data processed in the scope of this Agreement refer to:
(i) Personal data belonging to the Napoleon representative or other persons designated to represent Napoleon for the performance of the Agreement. (ii) Personal Data belonging to the representative of the Affiliate and/or other persons designated to represent the Affiliate for the performance of the Agreement. (iii) Personal Data belonging to potential Referred Player that interacts with the Link on the Affiliate Marketing in order to register and engage in online gaming activity using services provided by Napoleon (Tracking Profile Data). 15.3. Each Party undertakes to comply with any provisions applicable to it from the point of view of the protection of Personal Data set forth in Regulation 679/2016 and other applicable regulations, including, but not limited to, the obligation to process data in accordance with all the principles set out in Article 5 of Regulation 679/2016, the obligation to ensure compliance with and to facilitate the exercise of the rights of the natural persons concerned with regard to data portability, access to the subject, legal access requests and rectification requests, modification and disposal and to ensure the confidentiality and security of Personal Data.
15.4. Each Party undertakes to ensure the protection, confidentiality and security of Personal Data processed in accordance with the legal provisions, including Regulation 679/2016, the terms and conditions of this Agreement and all other applicable data protection law.
15.5. Both Parties ensure that Personal Data is processed only to the extent that processing is required for the performance of this Agreement.
15.6. Both Parties shall ensure that appropriate technical and organizational measures are in place to protect the Personal Data in their possession against unauthorized or unlawful processing and accidental loss, destruction, deterioration, alteration or disclosure.
15.7. Each Party shall co-operate with each other to set out the requirements to meet relevant obligations of Data Protection Legislation (for example in respect of data portability, subject access, lawful access requests and requests for rectification, amendment and disposal).
15.8. If a Party becomes aware of a true or suspected violation of the security, confidentiality or integrity of the Personal Data of the other Party when such data is processed, both Parties agree to notify the other affected party within 12 hours of identifying the breach of the data personally and to consult with each other on the measures that may be necessary or appropriate to investigate, mitigate and remedy the breach and otherwise fulfill their obligations under applicable data protection law.
The notification/communication shall be made to the following contact details:
For Napoleon: E-mail address: DPO@napoleongames.be For the Affiliate: To any of the DPO Contact Details
15.9. Each Party ensures that Personal Data is processed only by persons authorized to do so and under an appropriate contractual obligation regarding privacy laws; 15.10. Unless there is any other legal obligation to do so or appropriate legal grounds, each Party shall return, delete or destroy all Personal Data processed on or on behalf of the other Party, including physical or electronic documents, and copies thereof on any medium or any material derivatives that include such personal data within 5 working days of termination of the Agreement and/or the request for return, erasure or destruction for any reason by a Party.
The Parties are independent contractors, and nothing in the Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the Parties.
Affiliate acknowledges that it has read the Agreement, that it has had the opportunity to receive legal advice and agrees to all the terms and conditions contained in the Agreement. The Affiliate also confirms that it has independently evaluated the desirability of participating in the Napoleon Affiliate Programme and the Affiliate is not relying on any representation, guarantee, or statement other than as set out in the Agreement.
This Agreement and any matters relating hereto shall be governed by and construed in accordance with laws of Belgium. The courts of Brussels will have exclusive jurisdiction over any dispute arising out of or relating to the Agreement.
Napoleon may modify all or any part of these Terms at any time and at its sole discretion. Notice of any modification may be given by Napoleon by: (i) email to the Affiliate Account Email Address and such email shall be deemed to have been served immediately when sent by Napoleon; (ii) through a pop up message pop-up message once the Affiliate logs into the Affiliate Account – whichever occurs sooner. If the Affiliate does not agree to such modification, its only remedy shall be to terminate the Agreement in accordance with its terms. However, should the Affiliate continue to participate in the Napoleon Affiliate Program, this will constitute binding acceptance by the Affiliate of such modification. The Affiliate should keep a record of all such modifications.
20.1. No delay, neglect, or forbearance on the part of either Party in enforcing against the other party any term or condition of the Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that Party under the Agreement.
20.2. Any clause, provision, or portion of the Agreement specifically ruled invalid, void, illegal or otherwise unenforceable by a Belgian court, will be amended to the extent required to render it valid, legal and enforceable, or deleted if no such amendment is feasible, and such amendment or deletion will not affect the enforceability of the other provisions hereof.
20.3. This Agreement expresses the whole agreement between the Parties and any arrangements, representations, letters or understandings that existed prior to the execution hereof, insofar as not specifically expressed in the Agreement, shall be ineffective.
20.4. Napoleon reserves the right to transfer, assign, sublicense or pledge the Agreement, in whole or in part, without your consent: (i) to any Napoleon Group Company; and/or (ii) in the event of a merger, sale of assets or other similar corporate transaction in which the Company may be involved in.
20.5. In case of any discrepancy between the meanings of any translated versions of the Agreement, the meaning of this English language version shall prevail.
20.6. In the event of any contradiction and/or discrepancy between the Terms and the Commercial Agreement, the Terms shall govern.
20.7. Any provisions hereof which expressly or by their nature are required to survive termination or expiration of the Agreement in order to achieve their purpose shall so survive until it shall no longer be necessary for them to survive in order to achieve that purpose.
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