GENERAL TERMS AND CONDITIONS OF USING ADVERTISING SERVICES
hereinafter referred to as "GTC",
1. INTRODUCTORY PROVISIONS
1.1. E-Toto Zakłady Bukmacherskie sp. z o.o., with its registered office in Warsaw at the following address:ulica Żurawia 8 (postal code: 00-503), entered in the Register of Entrepreneurs of the National Court Register by the District Court for the Capital City of Warsaw in Warsaw, 12th Commercial Division of the National Court Register, under KRS No. 0000370248, Statistical Identification Number (REGON) 142666660, Tax Identification Number (NIP) 5272639256, hereinafter referred to as "E-TOTO", is an entity organizing mutual bets on the Internet at the following website: , pursuant to Decision No. AG9(RG3)/7251/15/KLE/2013/17 of the Minister of Finance of November 28, 2014 on granting permission to organize bookmaking mutual bets on the Internet and based on "E-TOTO Net" bookmaking regulations approved on January 3, 2018 by the Minister of Development and Finance, which entered into force on January 7, 2018.
1.2. The partner shall be an entrepreneur within the meaning of applicable regulations, authorized to administer one or more websites, including to publish advertising content and manage websites at which it will publish advertisements of E-TOTO mutual bets with banners linked to website according to the GTC, hereinafter referred to as the "Partner".
1.3. The purpose of cooperation between E-TOTO and the Partner shall be the intensification of E-TOTO's activities striving to build a reliable, professional and recognizable brand evoking positive associations in accordance with the Gaming Act of November 19, 2009 (Journal of Laws from 2018, item 165) ("GA") and arousing interest of potential participants of mutual bets in E-TOTO's offer by outsourcing to the Partner the tasks related to advertising mutual bets, referred to in Article 29b of the GA.
1.4. E-TOTO expresses its will to establish long-term cooperation with the Partner on the terms and conditions specified herein.
2. CONCLUSION OF AN ADVERTISING SERVICE AGREEMENT
2.1. With the aim to establish cooperation and conclude an advertising service agreement with E-TOTO, the Partner shall fill in an application form available on the website of the affiliate platform at the following address: , hereinafter referred to as the "Platform".
2.2. By filling in and sending the application form to E-TOTO, the applicant accepts the GTC and undertakes to comply with its terms and conditions, thus, expresses its will to conclude an advertising service agreement, hereinafter referred to as the "Agreement".
2.3. Having considered the application form, E-TOTO shall inform the applicant by e-mail or automatic acceptance on the Platform whether its application has been accepted. E-TOTO reserves the right to reject the application form without stating the reasons. After E-TOTO has accepted the application, the applicant shall become the Partner, and E-TOTO and the Partner shall conclude the Agreement compliant with the GTC.
2.4. Upon the conclusion of the Agreement, the Partner shall obtain access to an individual panel on the Platform, hereinafter referred to as the "Panel".
2.5. Via the Panel, the Partner shall have access to, among others:
1) all kinds of reports, including the traffic and creation reports, the general report informing the Partner on how many gamers it obtained, how many of them have paid deposits, how many times its creations were clicked on and displayed, what amount its gamers have won and what Additional Remuneration is due to the Partner;
2) market tools, including text link codes, static and dynamic banners;
3) direct communication with the person responsible for cooperation with the Partner, including the possibility of sending messages from the Panel;
4) Panel settings, including the password reset.
3. SUBJECT OF THE AGREEMENT
3.1. In return for the placement of an advertisement of E-TOTO mutual bets (including banners linked to www.etoto.pl website) on the Partner’s website(s) notified via the Panel, hereinafter referred to as "Websites", on the terms and conditions specified by E-TOTO and the Partner, and possible additional activities related to advertising mutual bets in accordance with Article 29b of the GA agreed from time to time by the Parties, E-TOTO shall pay remuneration to the Partner as set forth in item 5 hereof.
4. REPRESENTATIONS OF THE PARTIES
4.1. The Parties represent that the advertisement of mutual bets commissioned to the Partner by E-TOTO:
1) is not addressed to minors, does not depict minors and is not carried out with the participation of minors;
2) does not give rise to any associations of the organization of or participation in the advertised games with physical or intellectual prowess or opportunities for easy wins;
3) does not assert that participation in gambling games has a relaxing or calming effect on the participants or is a means of dealing with personal or financial problems;
4) does not portray refraining from participation or moderate participation in the games in a negative light;
5) does not encourage the staking of higher amounts as a way of increasing the chances for a win;
6) does not evoke associations with: sexual attractiveness, relax or leisure, education or work, professional, personal or financial success.
4.2. The Parties represent that the advertising content published on Websites will contain information on:
1) the consequences of participating in unlawful gambling games;
2) the risks inherent in gambling;
3) the fact that E-TOTO holds a permit to organize the mutual betting game.
4.3. The manner and extent of advertising publications, their content and form as well as the time of publication shall each time be agreed with E-TOTO via the Panel, by email or phone.
4.4. The Partner shall bear full legal liability (including liability for damage up to the value of full loss) for actions contrary to the provisions of items 4.1 and 4.2 above and to arrangements made with E-TOTO as well as for a failure to immediately remove advertising publications on E-TOTO's request, as set forth in item 6.3 hereof.
4.5. E-TOTO shall provide the Partner with materials necessary to execute an advertising order, including its logo design, via the Panel, in accordance with item 2.5.2) hereof.
4.6. The Partner represents that it has acquainted itself with the provisions of Articles 29-29b of the GA and that it is aware of limitations imposed on advertising mutual bets and the prohibition of promoting bookmaking, and it undertakes to take these limitations into consideration when executing the advertising order.
4.7. The Partner shall only bear liability for the content of the Websites, including for maintaining them in accordance with all legal requirements, and for carrying out its own marketing activities, including in accordance with item 4.8 hereof.
4.8. The Partner may not run promotional activities on the Internet using the SEM (Search Engine Marketing) based on web browsers in order to get as best as possible placement of the Websites in paid search results, with the use of the own name of ETOTO or key words or phrases or combinations thereof, the so-called branded keywords, including the name ETOTO, in particular “Etoto bonus”, “Etoto ranking”, “Etoto opinions”, etc. This disclaimer refers also to different forms of spelling of the phrase “ETOTO”, e.g. E-TOTO, Etoto, E-toto, etoto, e-toto, etc.
4.9. E-TOTO provides that it can independently verify the breach referred to in item 4.8. hereof. If E-TOTO considers that the Partner breaches item 4.8. E-TOTO may apply the sanction referred to in item 5.12. and in repeated breach of the item 4.8. hereof may terminate the Agreement with the Partner with immediate effect in accordance with item 7.3. sub-item 4) of the GTC.
5.1. For publishing E-TOTO's advertisements on the Websites pursuant to the provisions hereof, E-TOTO shall pay monthly lump-sum remuneration amounting to PLN 20 (twenty zloty) (the "Remuneration").
5.2. The settlement period is full calendar month, from the first to the last day of the month. If the Agreement enters into force during a month, the first Remuneration shall be calculated proportionally to the number of days in a month when the Agreement was binding.
5.3. In a situation where the presence of E-TOTO's advertisements on the Partner's Websites arouses interest of persons visiting the Websites in E-TOTO's activities within the meaning of item 5.5 hereof, the Partner shall be entitled to respective additional remuneration ("Additional Remuneration").
5.4. Additional Remuneration shall be settled on a monthly basis, in the same settlement periods as the Remuneration.
5.5. Additional Remuneration shall be calculated on the sum of the Net Revenue (i.e. Gross Revenue less costs of bonuses and administrative costs including fees related to rights to results, transaction costs, license fees and costs of maintenance of the affiliate platform) generated by E-TOTO on each gamer who has registered effectively on E-TOTO's website www.etoto.pl as a result of redirection from the link added to E-TOTO advertising publication on Websites and who has placed bets at E-TOTO in the same settlement period (the "Gamer").
5.6. Additional Remuneration shall amount to 25% of the Net Revenue referred to in item 5.5 hereof, obtained by E-TOTO in a monthly settlement period during the first 3 (three) months from the date the Partner commenced the performance of the Agreement, subject to items 5.8-5.10 of the GTC.
5.7. From the 4 (fourth) month of validity of the Agreement, Additional Remuneration shall amount to:
1) 20% of the Net Revenue referred to in item 5.5 hereof, obtained by E-TOTO in a monthly settlement period, if the sum of the Net Revenue calculated in line with items 5.8. – 5.10. is a positive amount
2) 25% of the Net Revenue referred to in item 5.5 hereof, obtained by E-TOTO in a monthly settlement period, if the sum of the Net Revenue calculated in line with items 5.8. – 5.10. is a positive amount and the Partner shall provide at least 50 (fifty) Gamers, who made their first deposit in the given month – settlement period;
3) 30% of the Net Revenue referred to in item 5.5 hereof, obtained by E-TOTO in a monthly settlement period, if the Net Revenue obtained in the given settlement period achieves or exceeds PLN 40,000.00 (say: forty thousand zlotys) and the Partner shall provide at least 100 (one hundred) Gamers, who made their first deposit in the given month – settlement period.
5.8. Additional Remuneration shall be paid the to Partner only if the Net Revenue (revenue equal to the sum of games by all the Partner's Gamers in a given settlement period) is generated by E-TOTO in a given monthly settlement period. If no revenue is generated in a given settlement period, the Partner shall not receive Additional Remuneration, and the possible loss generated by the Partner's Gamers shall be deducted from E-TOTO's Net Revenue generated by the Partner's Gamers the next month.
5.9. The amount of the Additional Remuneration is calculated based on the amount left after covering losses from previous months, which means that Additional Remuneration is paid out to the Partner only if after deduction of losses from the previous month or months there is Net Revenue for the given monthly settlement period.
5.10. If in spite of generating the Net Revenue in a given settlement period the value after deducting losses from previous month or months is negative, it shall be passed as a loss to the next monthly settlement period, while the Partner is not entitled to Additional Remuneration for the settlement period.
5.11. Regardless of the result of the generated Revenue or incurred Loss in 2018, the balance of the Partner's account intended for calculation of the Additional Remuneration as of January 1, 2019 shall amount to PLN 0.
5.12. The Additional Remuneration is not granted in case of breaching the limitation resulting from item 4.8 by the Partner in the month when the Partner breached the provisions of item 4.8 of the GTC.
5.13. The Partner shall issue an invoice to the amount of the Remuneration and the amount of the Additional Remuneration within 14 days of completion of the given settlement period for the previous month. The amount of Additional Remuneration due to the Partner shall be made available by E-TOTO in the Panel, in accordance with item 5.15 of the GTC. The Remuneration and Additional Remuneration shall be paid within 14 days of receiving by E-TOTO an invoice correctly issued by the Partner. The Partner shall define the invoice payment title as "Advertising Agreement of October 1, 2018 – indicating the right month and year of advertising publication on the Websites". The value of Remuneration and Additional Remuneration shall be increased by VAT applicable on the day of issuing the invoice, if the Partner is a VAT payer.
5.14. If the Partner fails to issue the invoice on time referred to in item 5.13 of the GTC, E-TOTO has the right to demand from the Partner to pay the contractual penalty in the amount of 50% of the value of the invoice not issued.
5.15. The Partner may verify the amount of Additional Remuneration via the Panel on the Platform where pursuant to item 2.5.1) hereof, it has access to all kinds of reports, including the traffic and creation reports, the general report on how many Gamers the Partner obtained, how many of them have paid deposits, how many times its creations were clicked on and displayed,what amount its Gamers have won and what Additional Remuneration is due to the Partner.
5.16. E-TOTO agrees that the Partner may send invoices, copies of invoices and corrective invoices in electronic form and at the same time accepts receiving them in paper form if due to technical or formal reasons invoices cannot be sent by email. The documents referred to in this section provided in electronic form must be sent by email to the following address: firstname.lastname@example.org.
5.17. E-TOTO reserves the right to change the email address referred to in item 5.16 hereof and to withdraw this consent (in consequence of which the Partner will lose the right to issue and send invoices to E-TOTO by email from the next day after receiving the notification on withdrawal of acceptance). E-TOTO may notify the Partner about a change of the provided email address and withdraw this consent in writing or by email by sending it to the Partner's email address provided during registration on the Portal.
6. RIGHTS AND OBLIGATIONS OF E-TOTO AND THE PARTNER
6.1. The Parties undertake to mutually respect their interests and notify each other about any circumstances that may considerably affect the performance of the Agreement.
6.2. The Partner undertakes to care for the good name of E-TOTO and to present its image in a respectful way.
6.3. The Partner undertakes to each time remove all advertising publications from the Websites on each request of E-TOTO, even if they have been previously agreed by the Parties, immediately after receiving such a request from E-TOTO (in writing, by email, phone or via the Panel), regardless of the reasons for such a request.
6.4. The Partner undertakes to complete in the Panel all the data required in the form, including in particular: first name, last name, residence address, address of business activity, e-mail address, telephone number. Correct completion of all data in the form is the condition necessary for cooperating under the Agreement.
7. TERM OF THE AGREEMENT
7.1. The Agreement shall be concluded for an indefinite period of time.
7.2. Each Party shall have the right to terminate this Agreement with three-month notice, with the termination being effective at the end of the calendar month.
7.3. E-TOTO may terminate the Agreement with immediate effect if:
1) the Partner commits a gross breach of the provisions hereof;
2) the Partner's Website is unfit for use in accordance with the Agreement;
3) the Partner does not obtain for E-TOTO at least 5 (five) active Gamers within 3 (three) months from the conclusion of the Agreement, where each of these Gamers must: (i) set up an account on website, (ii) pay a deposit and (iii) make at least 1 (one) bet ("Active Gamers") or does not obtain at lest 5 (five) new Active Gamers in each subsequent month of the term of the Agreement;
4) the Partner shall once again breach the limitation resulting from item 4.8 hereof.
7.4. The Partner may terminate the Agreement with immediate effect if E-TOTO is late with the payment of the Remuneration for more than 2 (two) months.
7.5. The declaration of intent regarding the termination of the Agreement in the manner specified in items 7.2-7.4 above must be made in writing, under pain of nullity.
7.6. Upon delivery of the notice of termination referred to in item 7.3, the Partner losses access to information referred to in item 5.15 hereof. In other cases of termination of the Agreement, the Partner shall retain access to the information referred to in item 5.15 hereof for a period of 30 days from the date of delivery of the termination of the Agreement to the other Party.
7.7. The Additional Remuneration generated within 3 months after the expiry of the termination period referred to in item 7.2 hereof or after the termination of the Agreement with immediate effect referred to in item 7.4 hereof shall be paid to the Partner within 30 days from the date of handing over a correctly issued invoice, according to items 5.16 and 5.17 hereof.
7.8. E-TOTO shall hand over to the Partner, upon Partner’s request, notified not later than within 4 months after the expiry of the termination period referred to in item 7.2 hereof or after the termination of the Agreement with immediate effect referred to in item 7.4 hereof, information about the amount of the Additional Remuneration for the period referred to in item 7.7. hereof. The Partner undertakes to issue an invoice within 30 days of the date of handover of the information about the amount of the Additional Remuneration by E-TOTO.
7.9. The Parties mutually agree that if the Partner fails to provide the invoice according to item 7.7. and 7.8 hereof within 3 (three) months of the date of handover of the information about the amount of the Additional Remuneration by E-TOTO, the Partner renounces Additional Remuneration and E-TOTO accepts such a renouncement.
8. SCOPE OF ASSIGNMENT AND PROTECTION OF INTERESTS
8.1. The Parties represent that they are not encumbered by any liabilities contrary to the provisions or purpose of the Agreement and they undertake not to conclude any agreements with third parties that would be detrimental to mutual interests of the Parties and that would make the performance of the Agreement difficult or impossible.
8.2. Neither of the Parties may assign the rights resulting from the Agreement to any third party without prior consent of the other Party provided in writing, under pain of nullity.
8.3. The Partner hereby authorizes E-TOTO to make deductions from the Remuneration, the Additional Remuneration and other receivables due to the Partner under the Agreement towards repayment of receivables of E-TOTO arising from the Agreement, in particular amounts of contractual penalties due to E-TOTO.
9.1. Each Party undertakes to keep secret, during the term of the Agreement and after its termination, any information received in connection with the performance of the Agreement or during negotiations leading to its conclusion, regardless of the place, time, manner and form of the hand-over or disclosure to the other Party, and in particular: (i) information marked with the 'confidential' clause upon its disclosure; (ii) technical, technological, scientific, commercial or organizational information, including information contained in offers, reports, agreements or other documents, independently of whether a given piece of information was formally marked as confidential, hereinafter referred to as "Confidential Information".
9.2. The obligation referred to in item 9.1 hereof shall not apply to publicly known information (or non-confidential by nature) or cases where the disclosure of specific pieces of information and documents is required under applicable provisions of law or by appropriate state institutions on the basis of applicable provisions of law or where disclosure was made by third parties.
9.3. The obligation related to maintaining confidentiality and not using Confidential Information shall be unlimited in time and shall apply regardless of the termination of the Agreement.
10.1. E-TOTO represents that it holds appropriate copyrights or licenses to use advertising materials ordered for publishing on the Partner's Websites via the Panel on the Portal, pursuant to item 2.5.2) hereof, and information, data, excerpts of works, images, trademarks or design patters or other elements contained therein that are under legal protection.
10.2. E-TOTO agrees to the use by the Partner of advertising materials ordered for publishing on the Partner's Websites via the Panel on the Portal, pursuant to item 2.5.2) hereof, including its logo, only for the purposes of the performance of the Agreement and during its term.
11. ADDRESSES OF THE PARTIES, CORRESPONDENCE
11.1. The Parties provide the following correspondence addresses for purposes related to the Agreement:
Partner: as in the Panel;
E-TOTO: ul. Żurawia 8,
11.2. All correspondence, including concerning the proposal of ETOTO, and representations of the Parties shall be made in writing or by email, under pain of nullity.
11.3. The Parties shall inform each other about each change of the address, data or persons indicated in item 11.1 hereof via the Platform on the Panel or in writing, without the necessity to amend the Agreement. If a Party fails to fulfill this obligation, a letter or email sent to the last known address shall be considered to be delivered. In the case of written correspondence, the date of delivery shall be the date of the first intent to deliver a letter.
11.4. If a Party refuses to accept written correspondence sent to its address determined in accordance with the Agreement or collect such correspondence within the prescribed time, such correspondence shall be considered to be effectively delivered on the date of refusal to accept it by the Party or of the expiry of a 14-day period following sending it by the other Party, respectively.
12. FINAL PROVISIONS
12.1. Any matters resulting from these GTC shall be governed by the Polish law.
12.2. Any matters not regulated in these GTC shall be governed by the provisions of the Polish Civil Code, especially those relating to the service agreement and the GA.
12.3. If any of the provisions of the Agreement becomes invalid or ineffective, it shall not invalidate the entire Agreement pursuant to Article 58(3) of the Polish Civil Code. In such case, the Parties shall spare no efforts to substitute such a provision found to be invalid or ineffective with a valid and effective provision that is as close as possible to the original intention of the Parties.
12.4. E-TOTO reserves the right to amend these GTC by publishing the amended GTC on the Platform or by sending the amended GTC to the Partner's email address, at least 3 days before entry into force of such amended GTC. If the Partner does not accept the changes, it may terminate the Agreement in accordance with item 7.2 hereof. The amended GTC, upon their entry into force, shall be binding on all Partners and shall replace these GTC.
12.5. Any terms defined in the Agreement and written in uppercase shall have the same meaning in the entire Agreement.
12.6. Any disputes resulting from cooperation between E-TOTO and the Partner on the performance of the Agreement that cannot be settled amicably shall be settled by a common court having jurisdiction over E-TOTO's registered office.
12.7. The GTC shall enter into force on and apply since January 1, 2019.