Terms and conditions
Energy.Partners Affiliate Program
Energy.Partners is the official affiliate program run by Energy Marketing Solutions Limited, and is registered under the laws of Belize. It has registration number 125492 with the registered address being; Belize City, New Road 35.
Energy.Partners is a marketing company and holds exclusive rights to conduct the following gaming operators affiliate programs: EnergyCasino.com and EnergyBet.com - websites operated by Probe Investments Limited, which is registered under the laws of the European Union member state of Malta. It has registration number C51749 with the registered address being; Cobalt House, Level 2, Notabile Road, Mriehel, Birkirkara, BKR 3000, Malta.
By completing the Affiliate Application for Energy.Partners (the "Affiliate Program") and selecting/clicking "I Accept” and “Submit" on the application form, you (hereinafter referred to as the "Affiliate") hereby agree to abide by all the terms and conditions set out in this Agreement.
Energy.Partners reserves the right to amend, alter, delete or add to any of the provisions of this Agreement, at any time and at its sole discretion, without giving any advance notice to the Affiliate subject to the terms and conditions set out in this Agreement. Your continued (i) participation in the Program, (ii) use of the Energy.Partners website and/or Energy.Partners Marketing Tools (as hereafter defined), or (iii) acceptance of any Affiliate commissions from Energy.Partners confirms your irrevocable acceptance of this Agreement (and any modifications thereto), subject to your continued compliance with the terms and conditions of this Agreement.
An Agreement entered into between Energy.Partners, a company incorporated in Belize hereinafter referred to as "the Company" and the undersigned Affiliate, hereinafter referred to as "the Affiliate", will be effective from the date that the online Affiliate Application Form is approved by Energy.Partners. For the avoidance of doubt, your acceptance of this Agreement forms a contractual relationship between yourself and Energy Marketing Solutions Limited. This Agreement shall supersede, and be read in conjunction with, any other document or agreement entered into between yourself and Energy.Partners in relation to the affiliate relationship.
1.1 Energy.Partners is the official affiliate program run by Energy Marketing Solutions Limited for EnergyCasino.com and EnergyBet.com, websites operated by Probe Investments Limited, which is registered under the laws of the European Union member state of Malta. It has registration number C51749 and a registered address of; Cobalt House, Level 2, Notabile Road, Mriehel, Birkirkara, BKR 3000, Malta.
1.2 The Affiliate maintains and operates one or more websites on the Internet (hereinafter collectively referred to as "the Website", “Marketing Source”, or “Site”).
1.3 This Agreement governs the terms and conditions relating to the promotion of the EnergyCasino.com and/or EnergyBet.com, whereby the Affiliate will be paid a commission depending on the revenues generated for Energy.Partners, subject to the terms and conditions of this Agreement.
2. Acceptance of Affiliate
2.1 The Company shall evaluate the Affiliate Application Form hereby submitted. Energy.Partners reserves the right to refuse the application for any reason, at its sole discretion.
3. Qualifying Conditions
3.1 The Applicant/Affiliate hereby warrants that:
3.1.1 He/She is of the legal age in the applicable jurisdiction to agree to and enter into an Agreement.
3.1.2 He/She is competent and duly authorized to enter into binding Agreements for the Affiliate and/or the Website.
3.1.3 He/She is the proprietor of all rights, licenses and permits to market, promote and advertise Energy.Partners brands in accordance with the provision of this Agreement.
3.1.4 He/She shall comply with all applicable rules, laws and regulations in connection with the promotion of Energy.Partners brands.
3.1.5 He/She fully understands and accepts the terms and conditions of the Agreement.
4. Responsibilities and Obligations of Energy.Partners
4.1 The Company shall provide the Affiliate with all information and marketing materials necessary for the proper implementation of the tracking link.
4.2 The Company shall administer the turnover generated via the links, record the net revenues and the total amount of commission earned via the link, provide the contracting party with commission statistics, and handle all customer services related to the business. A unique tracking identification number will be assigned to all referred customers.
4.3 The Company shall pay the Affiliate the amount due depending on the traffic and/or revenue generated, subject to the terms and conditions of this Agreement.
4.4 The Company reserves the right to refuse any player and/or close player accounts, if it is necessary to comply with the Company's Policy and/or protect the interest of the Company.
4.5 When the Affiliate application is accepted, Energy.Partners will assign a partner identification number to the Affiliate. This number will be present in all of the links in the Affiliate System to identify and match customer referrals to the specific Affiliate.
4.6 The Affiliate Platform will be chosen by Energy.Partners. Energy.Partners reserves the right to change or modify the tracking software at any time and without notice.
4.7 Energy.Partners shall provide the Affiliate with statistics accessible through their Energy.Partners account. Statistics will include: number of new customers, first time depositors, total depositors, net revenue, bonus costs, banner impressions, clicks, several different reports related to the affiliate and player activity, and commission earned. These statistics will be updated once daily, except impressions and clicks - for which data is updated in real-time.
4.8 Energy.Partners, upon the Affiliate electronically signing and agreeing to this Agreement and its terms, will assign an account manager to the Affiliate. Account manager contact details will be visible inside the Affiliate Platform under the “My Accounts - Contacts” tab. The account manager will provide instructions and support to the Affiliate partner during Energy.Partners office working hours. The officially accepted communication channel is email. Any direct communication, and any special agreements, should be made using the Affiliate’s main (used during sign-up) email address and the affiliate manager’s or Energy.Partners team leader’s email addresses.
5. Responsibilities and Obligations of the Affiliate
A. Should the Affiliate wish to place tracking/affiliate links on other websites, the Affiliate must first register each new marketing source in the Affiliate Platform. All marketing sources used by the Affiliate should be registered and tracked separately. If the Affiliate breaches this term, Energy.Partners may terminate this agreement and withhold any and all applicable financial rewards. Exception of this point may be applied in case of media agencies, media networks, affiliate networks, email marketers, and individual digital marketers.
B. Energy.Partners will monitor the Affiliate Marketing Sources to ensure that the Affiliate is complying with the terms of this Agreement. Energy.Partners reserves the right to request modifications or corrections to the information and details published regarding brands administered by the Company, at any time, and the Affiliate agrees to comply with all instructions and requests. If the Affiliate refuses/fails to apply the recommended/requested modifications Energy.Partners reserves the right to terminate the Affiliate Agreement.
5.1 The Affiliate hereby warrants and undertakes:
5.1.1 To, in good faith, actively and effectively advertise, market and promote Energy.Partners brands as widely as possible, to maximize the benefit to the Parties, and that they will abide with all guidelines set out by the Company, as may be communicated and/or made accessible online.
5.1.2 To, in good faith, market and refer potential players to Energy.Partners brands, at their own cost and expense. The Affiliate will be solely responsible for the distribution, content, and manners of their marketing activities. All of the Affiliate's marketing activities must be professional, proper and lawful under applicable laws and negotiations, and in accordance with this Agreement.
5.1.3 To use only links provided within the scope of the partner program, otherwise no warranty whatsoever can be assumed or implied regarding proper registration and revenue accounting. Not to change or modify, in any way, any link or marketing material without prior written authorization from the Company.
5.1.4 To be responsible for the development, the operation, and the maintenance of their website/s, and for all material appearing on the website/s.
5.1.5 That they will not perform any act in bad faith, or use any content which is libelous, discriminatory, obscene, sexually explicit, pornographic, graphically violent, or otherwise unlawful, unsuitable, or questionable.
5.1.6 That they will not actively target any person who is under the legal age for gambling, in the relevant jurisdiction/s.
5.1.7 That they will not actively target markets in any jurisdiction where gambling, and the promotion thereof, is illegal.
5.2 That they will not generate traffic to Energy.Partners brands using illegal or fraudulent activity, including but not limited to:
5.2.1 Sending spam.
5.2.2 Incorrect metatags.
5.2.3 Registering as a player or making deposits directly or indirectly, to any player account through their tracking links for their own personal use and/or the use of their relatives, friends, employees or other third parties, or in any other way attempt to artificially manipulate the commission payable, or to otherwise defraud the Company. Violation of this provision shall be deemed to be fraud and will result in confiscating all commissions, immediate termination of this agreement, and may result in legal action.
5.2.4 That they will not present their Website/s in such a way that it might reasonably cause any risk of confusion with the official sites of EnergyCasino/EnergyBet and/or Energy.Partners, or convey the impression that the Website/s of the contracting party, partly or fully originated with the Company brands.
5.2.5 Without prejudice to such Marketing Material as may be forwarded by the Company and/or made available online through the website http://energy.partners; The Affiliate may not use Energy.Partners brand names or other terms, trademarks and other intellectual property rights that are vested in the Company unless the Company consents to such use in writing.
5.2.6 That they shall not register, or attempt to register, domain names which are similar to, or could be reasonably confused with, the Marks or Sites of the Company, including the Operator's name, or any other associated brands or companies. For the avoidance of doubt, this includes any misspellings of the domain names of any of the Sites (commonly known as typo squatting), or any phonetic plays or variations of any of the Sites.
5.2.7 That they shall not register or attempt to register any logo, trade mark, trade name, insignia, design, domain name or similar identifying material that contains the Marks of, are confusingly similar to, or are derivative works comprised of any of the Marks, or elements of the Marks. In the event that the Affiliate does register any domain name referred to in clause 5.3.6, they will, on demand by the Company, immediately transfer that domain to the Company, or a third-party nominated by the Company, without any claim to financial compensation.
5.2.8 That they understand that they are not permitted to authorize, assist or encourage any third party to open more than one affiliate account without prior written permission from Energy.Partners, undertake any actions that result in the Affiliate Website/s, or any other site, copying or resembling the look or content of the brand’s websites which are represented by Energy.Partners, register (or apply to register) any domain name similar to any domain name (brand name) used by Energy.Partners and it’s brands, use any form of spam (including search engine spamming or spamdexing), or send unsolicited mail in its attempts to refer New Customers.
5.2.9 That any additional advertising/marketing/promotional material created by the Affiliate, and related to brands represented by Energy.Partners, shall require an Energy.Partners manager’s written approval before use.
5.2.10 Through this Agreement, we grant you (The Affiliate) the non-exclusive, non-assignable, right to direct Customers to our site/s in accordance with the limitations and terms and conditions of this Agreement. This Agreement does not grant you an exclusive right or privilege to assist us in the provision of services arising from your referrals. Energy.Partners reserves the right to enter into contracts with, and obtain the assistance of other parties, at any time, to perform services and activities of the same or similar nature as those you are contracted to provide under the terms of this Agreement. The Affiliate shall have no claim to commission or other compensation on business secured by, or through, persons or entities other than themselves.
5.2.11 For the term of this Agreement, the Affiliate may be entrusted with confidential information relating to Energy.Partners or/and it’s represented brands, business, operations, or underlying technology and/or the Affiliate Platform (including but not limited to commissions earned). The Affiliate agrees to avoid disclosure or unauthorized use of any such confidential information to third persons or parties.
5.2.12 The Affiliate shall, at all times, comply with the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003, Malta Gaming Authority advertising conducts, UKGC advertising policies and any other relevant, related or similar applicable legislation.
5.3 The use of Energy.Partners and represented brand names, in affiliate URLs is limited. Brand names may not be used in a derivative URL or Subdomain.
www.yourmarketingsource.com/anyofourbrandsname.html – ALLOWED
anyofourbrandsname.yourmarketingsource.com – NOT ALLOWED
http://www.yourmarketingsource+anyofourbrandsname.com/ – NOT ALLOWED
5.4 Email Marketing/SMS Marketing and Spam
5.4.1 Email marketers, media agencies, networks and SMS marketers are welcome to join our affiliate program. Email marketers and SMS marketers must request prior permission from Energy.Partners representatives before creating or sending any campaigns. Failure to obtain prior permission from your account manager, before sending any email or SMS that includes offers, promotions or the brand names of business/s related to Energy.Partners, may result in the Affiliate account in question being closed.
5.4.2 An Opt-Out/Unsubscribe option must be visibly present in all SMS/Email messages sent out by the Affiliate, allowing the user to choose to no longer receive the message/campaign effective immediately.
5.4.3 Any unsolicited e-mail from the Affiliate is prohibited, and will be considered as Spam. The Affiliate must ensure that all email recipients have subscribed to a list that they or their company owns.
5.5 Cookies Policy
Energy.Partners maintains 30 day expiring cookies, whereby a cookie expires if a visitor has not registered a customer account within this time. We apply a last click served policy.
6. Commission and Affiliate Revenues
6.1 Energy.Partners agrees to pay the Affiliate a commission calculated on the sum total of sports plus casino net revenue, generated from tracked customers referred by the Affiliate. The net revenue shall be calculated on the basis of the following formula:
Net Revenue* = Gross Revenue – Bonuses – Admin Fee
*an additional Market Tax may apply for specific licensed or selected markets, and will be deducted from the Net Revenue directly.
Gross Revenue means the value of the revenues generated by all players referred by the Affiliate across all products; the Gross Revenue would be equal to all (settled) bets less wins. For the avoidance of doubt; any bet that is not accepted for a legitimate reason, at the sole discretion of our company, shall not be considered a settled bet and therefore shall not be included in the calculation of the Gross Revenue.
The term “Bonus” or “Bonuses” refers to any so-called “free money”, “”no deposit bonus”, “player bonus”, “VIP bonus”, “loyalty bonus”, “free spins”, “super spins”, “general bonus offers” “free bets”, “money back” and/or similar.
Net Revenue is calculated on a monthly basis, and refers to the monthly Gross Revenue less costs - which includes but is not limited to: taxes, betting duties, third party commissions/fees, financial transaction fees, bonuses, any other player rewards, cashbacks and charge backs.
Market Tax = deducted from the Net Revenue, applied only on those markets where Energy.Partners brands are licensed, or due to market regulations the brands represented by Energy.Partners must pay additional taxes on profits or other. In case of customers referred from the United Kingdom of Great Britain and Northern Ireland, Energy.Partners deducts, by law, an additional 17% tax from Net Revenue.
6.1.1 Administration Fee
Administration (Admin) Fee is a cost, deducted as a percentage (%), from Gross Revenue. This fee covers taxes, third party commissions and fees, financial transaction fees, charge backs, operator costs, legal costs, account maintenance costs, license fees and any other cost supported and borne by the Company. The Company reserves the right to pass on any costs resulting from fraud to the Affiliate.
The general admin fee applied on the standard commission plan is 17%, however in case of special affiliate commission structures (fixed % revenue share plan, hybrid commission, fixed payments, set up fee’s charged by affiliate, listing fee’s charged by affiliate and other advance fee charged by the affiliate etc.) Energy.Partners reserves the right to set a higher admin fee rate without notice.
6.1.2 Affiliate Commission
The Standard Revenue Share Commission is a percentage of the sum up total Net Revenue generated on Sports and/or Casino products, in accordance with what is set out in the Commission Plan, displayed in the table below.
|No. of New Depositing Customers||Commission Value|
|50-99 New Depositing Customers||40%|
|20-49 New Depositing Customers||35%|
|10-19 New Depositing Customers||30%|
|4-9 New Depositing Customers||25%|
|1-3 New Depositing Customers||20%|
|0 New Depositing Customers||10%|
New Depositing Customer = Customers who signed up to any Energy.Partners brand during an open period (=actual month) and made a deposit.
Please note that First Time Depositing Customers (FTD) and the New Depositing Customers(NDC) are not equivalent. In case of NDC’s the registration month and the first deposit transaction month should be the same, while in case of FTD’s the registration date is not considered.
Affiliates will earn lifetime commission for the referred customers. The commission is offered on a lifetime basis, however the % rate may vary based on the offer set for the Affiliate account.
An Affiliate had a 30% Fixed Revenue Share agreement for a set period of time, after which the Standard Revenue Share Commission was been applied. In such cases all the customers, including the customers referred during the 30% FRS period, will be subject to the Standard Revenue Share Commission.
As standard, Affiliates may have only one type of commission plan activated, covering all referred customers, at any one time. Limited time multiple commission plans may be activated only if an Energy.Partners head of department or director has sent a written notification to the Affiliate. Affiliate account managers are not authorized to grant this right for Affiliates, and without the aforementioned notification the commission plan will be declared null and all costs will be deducted from the Affiliate’s earnings immediately.
6.1.3 CPA/CPL/Flat Monthly Fee/Hybrid Commission Plans and Special Agreements
CPA/CPL/Flat Monthly Fee/Hybrid Commission Plans are not offered as standard. Such plans can be created, based on the marketing plan sent by the Affiliate to Energy.Partners. Energy.Partners representatives will evaluate the Affiliate request and the attached marketing plan. In case of favorable evaluation, Energy.Partners will issue a written addendum agreement with additional terms and conditions, minimum deposit, start and end period, player activity requirements and affiliate partner activity requirements. Energy.Partners management reserves the right to cancel such deals at any time and at their sole discretion, without providing any reason, by sending a formal notice to the Affiliate’s registered main email address. The written addendum agreement will complement and not overwrite this Agreement.
6.1.4 In order to receive an additional commission based on a percentage of the commission earned by Sub-Affiliate(s), the Affiliate shall refer the Sub-affiliate to Energy.Partners through the special sub-affiliate tracking link available in the Affiliate Platform. The Affiliate cannot claim commission on a new Affiliate account created by an Affiliate who simultaneously has another Energy.Partners account. The Affiliate shall ensure that the Sub-Affiliate complies with these terms and conditions by making them aware of them before they enter into any arrangement with the Sub-Affiliate in relation to this agreement. The Affiliate is not allowed to open a Sub-Affiliate account itself. Unless otherwise agreed between the Parties, the Affiliate is entitled to receive 5% of the commission generated by its Sub-Affiliates.
6.2 No Negative Carry Over Policy
Applicable as of January 2017, on all approved affiliate accounts under Revenue Share or Commission structures based on Revenue Share rewards, the negative balance of a closed period will no longer be carried over to the next open period, however in order to make the No Negative Carry Over Policy available, Energy.Partners have had to introduce a Big Winner (also known as High Roller) Policy.
6.2.1 Big Winner Policy
The Big Winner Policy will come into effect when:
6.2.2 A player generates a negative Net Revenue balance of €5000 or more, on any product or game. In such a case the player will be considered to be a Big Winner (or High Roller).
6.2.3 The aggregate negative Net Revenue for the Affiliate is a greater than €2000 at the end of an open period.
6.2.4 If both of the criteria set from point 6.2.2 and 6.2.3 are met, the negative Net Revenue generated by the Big Winner will be isolated until the player becomes profitable for brands represented by Energy.Partners.
6.2.5 All players subject to the Big Winner Policy will be visible to Affiliates in the Customer Reports, within the Affiliate Platform. Such players will be set under a special reward plan called “Big Winner Policy”, further official notification will be not sent automatically, but Affiliates can request such notifications from their account managers on a monthly basis.
6.2.6 Any Big Winner Policy balance carried forward will not be set-off against other customers referred by the affiliate.
6.2.7 Progressive Jackpot Big Winners, for whom jackpot winnings are paid to the customers by third parties are excluded from the Big Winner Policy.
6.2.8 In the open period when a Big Winner customer surpasses his negative net revenue, the Affiliate will begin earning commission for that customer again automatically.
6.2.9 If there is more than one Big Winner, each Big Winner will carry forward his own negative balance.
Commission is calculated at the end of each open period and payments shall be performed between the [5th - 15th] of each calendar month. All payments due under this Agreement shall be made in Euros. The applicable exchange rates, if any, shall be the one used by Energy.Partners payment provider.
6.3.1 Payment Methods and Minimum Payment
Energy.Partners pays the affiliate commission through the following Payment Methods: Bank Transfer, Skrill and Neteller.
The following Minimum Payment amounts apply:
Skrill - €100 (one hundred Euros)
Neteller - €100 (one hundred Euros)
Bank Transfer - €500 (five hundred Euros)
If the balance due is less than the Minimum Payment, it shall be carried over to the following month and shall be payable after the first open period that it exceeds the Minimum Payment threshold.
6.4 Payment of commissions shall be made as per the payment method chosen by the Affiliate in the application process. If an error is made in calculating the commission, the Company reserves the right to correct such calculation at any time, and will immediately pay out underpayment or reclaim overpayment made to the Affiliate.
6.5 Acceptance of payment by the Affiliate shall be deemed to be full and final settlement of the Balance due for the period indicated.
6.6 If the Affiliate disagrees with the balance due as reported, it shall within a period of thirty (30) days send an email to the affiliate account manager or Head of Affiliates of Energy.Partners and indicate the reasons for the dispute. Failure to send an email within the prescribed time limit shall be deemed to be an irrevocable acknowledgment of the balance due for the period indicated. The final decision of Energy.Partners representative in case of any disputes regarding the financial calculations should be accepted by the Affiliate without the right of appeal.
6.7 Energy.Partners may delay payment of any Balance to the Affiliate for up to one hundred and eighty (180) days, while it investigates and verifies that the relevant transactions comply with the provisions of these terms and conditions.
6.8 No payment shall be due when the traffic generated is illegal or contravenes any provision of these terms and conditions.
6.9 The Affiliate agrees to return all commissions received based on fraudulent or falsified transactions, plus all costs for legal causes or actions that may be brought against the Affiliate to the fullest extent of the law.
6.10 If there is a pending payment due to an Affiliate for a period of six (6) months or longer as a result of any or all of the following – incorrect payment details, missing payment details, invalid or no-longer valid payment details, and the Affiliate has not responded to all reasonable contact attempts made by Energy.Partners representatives, the payment will be permanently cancelled.
7.1 This Agreement may be terminated by either party by giving written notification to the other party. Written notification may be given by an email. Notification sent via e-mail is considered a written and immediate form of notification and the Agreement shall accordingly terminate with immediate effect.
7.1.1 Energy.Partners reserves the right to terminate the Agreement if the Affiliate ceases advertising, or stops to generate numerical statistics from the marketing sources registered in the affiliate account towards Energy.Partners brands, unilaterally.
7.1.2 The Affiliate agrees not to register as a player or make deposits to any player account through their own or any other Affiliate’s links, for personal use or the use of third party natural or legal persons in an attempt to artificially increase financial rewards or any statistical metrics. Violation of this provision shall be deemed to be fraud and will result in immediate cancellation of the Affiliate account and confiscation of all commissions and rewards.
7.1.3 If the Affiliate intentionally attempts to harm Energy.Partners, its reputation, or that of its represented brands, in any form, this Agreement may be terminated.
7.1.4 Energy.Partners reserves the right to terminate this agreement unilaterally in the case of the appointed account manager, or team leader of Energy.Partners, being unable to contract the Affiliate via the main registered email address on their account for a period of two consecutive months.
7.1.5 Energy.Partners reserves the right to suspend the Affiliate’s account and stop calculating commission, if invalid information or promotions are shown on their marketing sources. In such a case, if the Affiliate fails to reply to notifications from Energy.Partners within two weeks, then the Affiliate Agreement will be declared null and void, and any unpaid commissions will be confiscated and the Affiliate account closed indefinitely.
7.2 The Parties hereby agree that on termination of this Agreement:
7.2.1 The Affiliate must remove all references to Energy.Partners brands from their website/s and communications, irrespective of whether the communications are commercial or otherwise.
7.2.2 All rights and licenses granted to the Affiliate under this Agreement shall be terminated immediately and shall revert to the respective licensors, and the Affiliate will cease the use of any trademarks, service marks, logos and other designations vested in the Company.
7.2.3 The Affiliate will be entitled only to those earned and unpaid commissions outstanding as of the effective date of termination; however Energy.Partners may withhold the Affiliate's final payment for a period of up to ninety days (90) to ensure that the correct amount is paid. The Affiliate will not be eligible to earn or receive commissions after the date when the termination notice has been issued.
7.2.4 If this Agreement is terminated by the Company because of it being breached by the Affiliate, the Company shall be entitled to withhold the Affiliate’s earned but unpaid commissions as of the termination date as collateral for any claim arising from such breach.
7.2.5 The Affiliate must return to the Company any and all confidential information (and all copies and derivations thereof) in the Affiliate's possession, custody and control.
7.2.6 The Affiliate will release the Company from all obligations and liabilities occurring or arising after the date of such termination, except with respect to those obligations that by their nature are designed to survive termination. Termination will not relieve the Affiliate from any liability arising from any breach of this Agreement, which occurred prior to termination.
7.3 Energy.Partners may terminate this agreement if it is determined, at our sole discretion, that your marketing source/s or marketing activity is unsuitable. Energy.Partners reserves the right to not communicate the reason for termination of this agreement.
7.3.1 Any form of traffic that is generated from any marketing channel/s that is aimed at children, promotes violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, promotes illegal activities, contains and uses unauthorised copyrighted materials, violates intellectual property rights, or is otherwise considered by Energy.Partners to bring the Company, our partners or merchants into disrepute or prejudice the interests of Energy.Partners brands or those of our partners or merchants in any way, is considered unsuitable, constitutes a breach of this Agreement, and may result in Affiliate account termination.
7.4 Sale of Business – Energy.Partners recognize that an Affiliate may wish to sell their Affiliate business to a third party. In such cases we will require an Affiliate to recognize and respect that the personal qualities, probity and background of Affiliates is necessarily fundamental to our decision to accept or refuse a person or company membership of our Affiliate Program.
7.4.1 If an Affiliate wishes to sell or otherwise dispose of the shares or assets of their Affiliate business to a third party (or conclude any transaction of a similar nature with a third party that will result in an effective change in control of their Affiliate business) the Affiliate shall be required, prior to completing the sale, disposal, or transfer, to:
(i) give Energy.Partners no fewer than 10 (ten) days prior written notice of such intention, simultaneously provide such details as Energy.Partners may request - which may include, but not be limited to, details regarding the selling of the Affiliate’s Affiliate ID and full details of the intended purchaser (including their banking details and, if they are already an Affiliate in the Affiliate Program, their Affiliate ID), and furnish Energy.Partners with an irrevocable consent and authority to pay the selling Affiliate’s commission, after the sale is completed, to the purchaser, in a form deemed acceptable to Energy.Partners at our sole discretion; and
(ii) make the deed of sale subject to the suspensive condition that Energy.Partners approve such a purchaser as an Affiliate of the Affiliate Program, and that such an intended purchaser shall, subject to the discretionary approval of Energy.Partners, join the Affiliate Program.
7.4.2 If Energy.Partners reject the intended purchaser as an Affiliate of the Affiliate Program, and the selling Affiliate nevertheless decides to proceed with the sale, we reserve the right to terminate this Agreement insofar as it relates to the selling Affiliate, the business sold and/or the purchaser.
7.4.3 In the case of the new owner of the Affiliate account being approved by Energy.Partners, all CPA/CPL/Flat Monthly Fee/Hybrid Commission Plans and Special Agreements will be declared null. In case of Fixed Revenue Share level agreements, Energy.Partners will set the affiliate account under Standard Revenue Share commission without prior notice from the date when the Energy.Partners team has been informed of, or learned about the sale.
7.4.4 If the Affiliate breaches any of the 7.4, 7.4.1, 7.4.2, 7.4.3 points or applies changes to the company name, Affiliate name, postal address or financial details, under the Affiliate account without sending prior notification to the Energy.Partners account manager, or without written approval from Energy.Partners, we reserve the right to set the Commission level on fixed 10% or, in exceptional cases (decided at our sole discretion), to terminate irrevocably the Affiliate Agreement.
7.5 This agreement shall be considered no longer applicable if Energy.Partners has to re-enter a market with a different platform / URL extension, and cannot migrate its existing database of customers.
7.6 Participating in any kind of Spam activity are seen in direct violation of these terms and conditions and may lead to the immediate termination of your account.
8.1 The Affiliate expressly acknowledges and agrees that the use of the Internet is entirely at their own risk, and that this Referral Program is provided "as is" and "as available" without any warranties or conditions whatsoever, express, or implied. No guarantee is made by Energy.Partners, that it will make access to its website possible at any particular time or from any particular location.
8.2 The Company shall under no circumstances be liable to the Affiliate or anyone else for any inaccuracy, error or omission in, loss, injury or damage caused in whole or in part by failures, delays or interruptions of the Energy.Partners brands websites, Affiliate website, Affiliate Tracking System or Energy.Partners representatives.
9.1 The Affiliate agrees to defend, indemnify and hold Energy.Partners, its brands and its affiliates, successors, officers, employees, agents, directors, managers, shareholders and attorneys, free and harmless from and against any and all claims and liabilities, including reasonable attorneys' and experts' fees, related to or arising from:
9.1.1 Any breach of Affiliate's representations, warranties or covenants under this Agreement.
9.1.2 Affiliate's use (or misuse) of the marketing materials.
9.1.3 All conduct and activities occurring under Affiliate's user ID and password.
9.1.4 Any defamatory, libelous or illegal material contained within Affiliate Site or Affiliate's information and data.
9.1.5 Any claim or contention that Affiliate Site or Affiliate's information and data infringes any third party's patent, copyright, trademark, or other intellectual property rights or violates any third party's rights of privacy or publicity.
9.1.6 Third party access or use of Affiliate Site or Affiliate's information and data.
9.1.7 Any claim related to Affiliate Site.
9.1.8 Any violation of this Agreement.
9.2 Energy.Partners reserves the right to participate, at its own expense in the defense of any matter.
10. Governing Law & Jurisdictions.
10.1 This Agreement will be governed by the laws of Malta. Any disputes arising out of or in connection with this Agreement shall be settled by arbitration in accordance with the Arbitration Act (Chapter 387 of the Laws of Malta) as presently in force, and the Rules of the Malta Arbitration Centre or any other competent courts and/or tribunals in Malta. The language of the proceedings shall be English and the arbitration shall take place in Malta.
11.1 The Affiliate may not assign this Agreement, by operation of law or otherwise, without obtaining the prior written consent of Energy.Partners.
12.1 The Company's failure to enforce the Affiliate's adherence to all terms outlined in this Agreement shall not constitute a waiver of the right of Energy.Partners to enforce said terms at any time.
13. Force Majeure
13.1 Neither party shall be liable to the other for any delay or failure to perform its obligations under this Agreement if such delay or failure arises from a cause beyond the reasonable control of, and is not the fault of, such party, including but not limited to labour disputes, strikes, industrial disturbances, acts of God, acts of terrorism, floods, lightning, utility or communications failures, earthquakes or other incidents. If a force majeure event occurs, the non-performing party is excused from whatever performance is prevented by the force majeure event to the extent prevented.
14. Relationship of the Parties
14.1 Nothing contained in this Agreement, nor any action taken by any party to this Agreement, shall be deemed to constitute either party (or any of such party's employees, agents, or representatives) an employee, or legal representative of the other party, nor to create any partnership, joint venture, association, or syndication among or between the parties, nor to confer on either party any express or implied right, power or authority to enter into any agreement or commitment on behalf of (nor to impose any obligation upon) the other party.
15. Severability / Waiver
15.1 Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law but, if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such provision will be ineffective only to the extent of such invalidity, or unenforceability, without invalidating the remainder of this Agreement. No waiver will be implied from conduct or failure to enforce any rights and must be in writing to be effective.
16.1 All information, including but not limited to business and financial, lists of customers and buyers, as well as price and sales information shall be treated as confidential. Such information must not be used for own commercial or other purposes, either directly or indirectly. This provision shall survive the termination of this agreement.
17. Changes to this Agreement
17.1 The Company reserves the right to amend, alter, delete or add to any of the provisions of this Agreement, at any time and at its sole discretion, without giving any advance notice to the Affiliate subject to the terms and conditions set out in this Agreement. Any such changes will be posted on Energy.Partners internal Affiliate notification system and/or via email to Affiliates.
In case of any discrepancy between the meanings of any translated versions of this Agreement, the meaning of the English language version shall prevail.