BETAMERICA AFFILIATE PROGRAM TERMS &
Effective: February 2018
These Terms and Conditions outline and define the
relationship between Churchill Downs Technology Initiatives Company d/b/a
BetAmerica, a Delaware corporation (“BetAmerica”) and affiliates that
participate in the BetAmerica Affiliate Program.
These Terms and Conditions are subject to change
at the sole discretion of BetAmerica and any such change will be communicated
to you in accordance with Section 1.3 below.
IMPORTANT: READ THIS ENTIRE DOCUMENT CAREFULLY
BEFORE ACCEPTING THESE TERMS AND CONDITIONS AND PARTICIPATING IN THE
BETAMERICA AFFILIATE PROGRAM. WE ADVISE THAT YOU PRINT AND KEEP A COPY OF IT
(AND ANY UPDATED AGREEMENTS) ALONG WITH OTHER IMPORTANT INFORMATION THAT WILL
BE SENT TO YOU REGARDING YOUR AFFILIATE ACCOUNT.
IF YOU DO NOT AGREE WITH AND ACCEPT THE TERMS AND
CONDITIONS AS IS (OR ARE NOT AUTHORIZED TO DO SO) YOU MAY NOT JOIN THE
BETAMERICA AFFILIATE PROGRAM. IF YOU ARE ALREADY A MEMBER OF THE BETAMERICA
AFFILIATE PROGRAM AND DO NOT ACCEPT THESE TERMS AND CONDITIONS, OR IF YOU
WOULD LIKE TO TERMINATE YOUR PARTICIPATION IN OUR PROGRAM, PLEASE EMAIL US AT
email@example.com. IF YOU HAVE ANY QUESTIONS REGARDING THESE
TERMS AND CONDITIONS PLEASE CONTACT US AT firstname.lastname@example.org.
These Terms and Conditions along with your
completed BetAmerica Affiliate Registration Form, the BetAmerica Marketing
Rules, The BetAmerica.com Terms and Conditions and any other guidelines or
additional terms we provide to you via email or our site, together with the
associated Payment Plan (collectively, the "Agreement")
contain the complete terms and conditions that apply to your participation in
the BetAmerica Affiliate Program ("Affiliate Program").
In the event there is a conflict between these
Terms and Conditions and any other document or communication, these Terms and
Conditions shall control, unless such conflicting terms are expressly
referenced as a variation to these Terms and Conditions.
Currently the Sites offered within the Affiliate
Where used in these Terms and Conditions,
(i) "you", "your" and/or
"Affiliate" mean the individual or entity that applied as the
"BENEFICIARY" for payment purposes on our registration form as
submitted on our website ("Affiliate Registration Form"); and
(ii) "we", "our",
"us" means Churchill Downs Technology Initiatives Company d/b/a
BetAmerica or BetAmerica.com, with its principal place of business at 600 N.
Hurstbourne Parkway, Suite 400, Louisville, KY, 40222.
1.1 This Agreement shall govern the relationship
with you in relation to the BetAmerica Affiliate Program. Affiliates
may not participate in our “Refer a Friend” Program.
1.2 When you indicate your acceptance of these
terms and conditions on the BetAmerica Affiliate Registration Form, you agree
to be bound by all of the terms and conditions herein and in the Agreement
(as amended or modified from time to time in accordance with Section 1.3
1.3 At our sole discretion, we may make changes
or updates to any of the terms and/or conditions contained herein at any
time, by either (i) emailing you a change notice and/or (ii) by posting the
updates or changes on our Website. Except in the case of modifications
relating to fraud prevention, or where there is a mistake in the Agreement
which shall be effective on the date of posting or the sending of such
notice, all modifications will take effect 14 days after the date of posting
or sending of any such notice. It is your responsibility to visit the Website
frequently to make sure you are up to date with the latest version of the
Agreement and its provisions. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU,
YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED
PARTICIPATION IN THE AFFILIATE PROGRAM FOLLOWING SUCH 14 DAY PERIOD WILL BE
DEEMED BINDING ACCEPTANCE OF THE MODIFICATION. See Section 5 below for
1.4 Notwithstanding Section 1.3 above, we may
contact you with promotional information and unless you notify us otherwise,
you will be deemed to have agreed to take part in such promotion and the
terms of such promotion shall be incorporated into the applicable Payment
Plan and this Agreement for the duration of such promotion, or until
terminate your participation in the BetAmerica Affiliate Program pursuant to
the terms herein.
2. DEFINITIONS AND INTERPRETATION
In this Agreement, references to the following
words shall have the meanings set out below:
2.1 "Affiliate Accrual" is the amount
due and payable to you, as calculated based solely on our system’s data and
in accordance with the terms of the Agreement and the applicable Payment
2.2 "Affiliate Cashier Account" means
the account into which you receive payment from us.
2.3 "Affiliate Portal" means the portal
of the Website that is accessible to you (you may need to access some parts
of this portal by logging on with the security code we assign to you when you
signed up as a participant in the Affiliate Program and associated password)
and that provides certain members only functionality, including facilities to
check relevant statistics, register sub-affiliates, update your profile,
create additional tracking IDs and bonus codes, and select banners and/or
2.4 "Banners" and "Text
Links" means the graphical artwork or text that includes tracking IDs
and bonus codes that are made available to you by us in the Affiliate Portal
and that you may use to connect players to our Services from your website (or
other electronic method).
2.5 "Brand" means the
"BetAmerica" brand used in association with online wagering on
horseracing, greyhound racing and fantasy sports.
2.6 “Chargeback” means an invalid, fraudulent or
disputed credit or debit card payment, including but not limited to, where
the credit card company or the paying bank has claimed payment back from us,
or where the customer claims payment back because of fraudulent use.
2.7 "Fraud Traffic" means deposits,
revenues or traffic generated on the Services through illegal, questionable
or inappropriate means or any other action committed in bad faith to defraud
us (as determined by us in our sole discretion), regardless of whether or not
it actually causes us harm, including but not limited to deposits generated
on stolen credit cards, collusion, manipulation of the service or system,
bonuses or other promotional abuse, creation of false accounts, accounts
directed or set up to bet minimum amounts, and unauthorized use of any
third-party accounts, copyrights, trademarks and other third-party intellectual
property rights (that, for the avoidance of doubt, include our Intellectual
Property Rights) and any activity that we determine in our sole discretion
constitutes fraud traffic.
2.8 "Intellectual Property Rights"
means rights to all existing and future patents, trademarks, service marks,
trade names, trade dress, trade or business names (including domain names),
registered designs, copyright (including rights in computer software), moral
rights, database rights, format rights, know-how, trade secrets and rights of
confidence and all rights and forms of protection throughout the world of a
similar nature and any such rights (whether or not any of these is or are
registered and including applications for registration), and any extensions
and/or renewals thereof.
2.9 "Marketing Materials" means only
those Banners and Text Links and any other marketing materials (that may
include Our Marks) that have been provided or otherwise made available to you
by us and/or pre-approved by us.
2.10 "Minimum Required Deposit" means
the minimum amount required to open a Player Account as indicated at the time
of registration on the BetAmerica.com Site. Total deposits must then add up
to a cumulative deposit for each player in order to satisfy the qualifying
criteria established by your Payment Plan when the total amount of the first
deposit that is required for your payment plan exceeds the minimum deposit
that is required to be a BetAmerica.com player. Notwithstanding any other
provisions contained elsewhere in this Agreement, we reserve the right to
alter the amounts mentioned within this Section 2.10 at any time by virtue of
placing notice on the Site. All amounts are calculated in United States
2.11 "Our Marks" means the words
"BETAMERICA" and "BETAMERICA AFFILIATES" and/or any logo,
mark, domain name or trade name that contains, is confusingly similar to or
is comprised of Our Marks or any other name or mark generated or owned from
time to time by us or our parent entity, Churchill Downs Incorporated or any
of its subsidiaries.
2.12 "Payment Plan" means the payment
plan BetAmerica Affiliates has offered to you and you have accepted under
which we pay you either:
a share of certain revenues generated by Real Money Players as outlined in
the specific Payment Plan ("Percentage Payment Plan"), or
a plan where we pay you based on the number of Real Money Players that you
introduce via your Tracking ID and/or Bonus Code ("Per Sign-up
any other plan notified or agreed by us in writing from time to time.
2.13 "Player Account" means a uniquely
assigned account that is created for a Player when he/she successfully
registers for the Services via a Tracking URL or Sign-up Bonus Code.
2.14 "Real Money Player(s)" means any
person who is attached to your Tracking Link (or if applicable, your
Sub-Affiliate’s Tracking Link) who successfully funds an account, and: (i)
has not been a Player with us before; (ii) is not located in a Restricted Territory
and not under the appropriate age; (iii) who has made the Minimum Required
Deposit of Twenty US Dollars; (iv) who has met the minimum wagering
requirements within Thirty days of Registration; (v) is accepted as a
player under any applicable sign up or identity verification procedure which
we may require; (vi) has adequately fulfilled any other qualification
criteria that we may introduce from time to time; and (vii) has qualified for
BetAmerica Affiliate commissions. Notwithstanding any other provisions contained
elsewhere in this Agreement, we reserve the right to alter the
above-mentioned qualifying criteria at any time by virtue of placing notice
on the Site or emailing a change notice.
2.15 "Restricted Territories" means any
country outside of the United States of America and those states or
territories where BetAmerica does not accept customers from currently.
2.16 "Services" means any product or
service offered to Players on our Sites.
2.17 A "Sign-up Bonus Code" is a unique
alphanumeric code that we may make available to you upon request to provide
to prospective Players. When entered, the system automatically logs the
Sign-up Bonus Codes and records you as the Affiliate in relation to the
2.18 "Sites" means the websites
designated in this Agreement (currently BetAmerica.com) and each of its
related pages through which a Player opens a Player Account and/or accesses
2.19 "Sub-affiliate" means a person that
you have referred to (and that has successfully joined) our Affiliate Program
in accordance with the terms of this Agreement.
2.20 "Sub-affiliate Accruals" means the
Affiliate Accruals due to any Sub-affiliate as set out in their chosen
2.21 "Term" means the period from the
date that you acknowledge and accept the terms of this Agreement by
indicating such acceptance on the Affiliate Sign-up Form, until such time as
this Agreement expires or is terminated in accordance with its terms.
2.22 "Tracking Link(s)" means the
unique Tracking URL or Sign-up Bonus Codes that we provide exclusively to
you, through which we track Players´ and Real Money Players´ activities and
calculate Affiliate Accruals.
2.23 "Tracking URL" means a unique
hyperlink or other linking tool for referencing our Site or Services through
which you refer potential Real Money Players. When the relevant Player opens
their Player Account, our system automatically logs the Tracking URL and
records you as the Affiliate.
2.24 "Unauthorized Communications"
means any email or other electronic communication you are not authorized by
us to send that markets, promotes or that otherwise refers to us, the Site or
our Services, or that contains Our Marks and is not within the Approved
2.25 "Website(s)" means the BetAmerica
Affiliate website located at the URL http://www.BetAmerica-affiliates.com and
at any URL with which we replace such URL from time to time (and such other
web addresses including RSS feeds that are owned, operated or controlled by
or on behalf of us from time to time and that make available such website)
and each of its related pages.
3. TERMS & CONDITIONS
3.1 Identity and Disclosure. You shall provide
true and complete information to us when completing the Affiliate
Registration Agreement and promptly update such information if all or any
part of it changes. You shall also provide us with such other information as
we may reasonably request from time to time, including accurate and completed
W-9 or W-8BEN forms.
3.2 Marketing Activities and Responsibilities.
You shall market to and refer potential Real Money Players to the Sites
unless they have opted out of receiving communications from you. You will
only utilize the Marketing Materials or any other pre-approved materials for
such communications or advertising.
BetAmerica is committed to providing a secure
account wagering service. Part of our service to customers is to protect
them. Spam, including unsolicited commercial email, unsolicited bulk email,
mass email, and junk email, is a message that advertises goods or services
that you send to someone without their prior consent or in the absence of a
previous relationship, is prohibited. Any Affiliate who is found or is
expected to have spammed while participating in the BetAmerica Affiliate
Program will be terminated from the BetAmerica Affiliate Program and forfeit
any payments earned or owed.
You are strictly prohibited from bidding on any
of Our terms as part of a PPC or Pay Per Click Campaign with any search
engine or other entity.
You will be solely liable for the content, ROI
and manner of such marketing activities which must be pre-approved by us. All
such marketing activities must be professional, proper and lawful under
applicable rules, regulations or laws (including any laws in relation to the
content and nature of any advertising or marketing) and otherwise comply with
the terms of this Agreement. You shall not yourself, nor shall you authorize,
assist or encourage any third party to:
3.2.1 Place Marketing Materials on any online
site or other medium where the content and/or material on such website or
medium is potentially libelous, deceitful, malicious, discriminatory,
obscene, unlawful, sexually explicit, pornographic or violent or that is, in
our sole discretion, otherwise unsuitable.
3.2.2 Develop and/or implement marketing and/or
public relations strategies that have as their direct or indirect objective
the targeting of marketing of us, the Sites and/or the Website to any persons
who are less than 18 years of age (or such higher age as may apply in the
jurisdiction that you are targeting), regardless of the age of majority in
the location where you are marketing.
3.2.3 Breach any Electronic Marketing Rules that
we may provide, or any law of governing use of the Internet
3.2.4 Use Marketing Materials in a manner that
may potentially confuse a Player, potential Player, potential sub affiliate
or sub affiliate.
3.2.5 Place Marketing Materials on any online
site or other medium where the content and/or material on such online site or
Copies or resembles the Site in whole or in part;
disparages us or otherwise damages our goodwill or reputation in any way;
Frames any page of the Site in whole or in part; or
Otherwise not discussed in this Section 3.
3.2.6 Read, intercept, modify record, redirect,
interpret, or fill in the contents of any electronic form or other materials
submitted to us by any other person.
3.2.7 In any way alter, redirect or in any way
interfere with the operation or accessibility of the Sites or any page
3.2.8 Register as a Player on behalf of any third
party, or authorize or assist (except for promoting the Site and Services in
accordance with this Agreement) any other person to register as a Player.
3.2.9 Offer any so-called rebate schemes or
similar that offer or allow a proportion of the player’s wagers to be
returned to the player in any form.
3.2.10 Take any action that could reasonably
cause any end-user confusion as to our relationship with you or any third
party, or as to the ownership or operation of the site or service on which
any functions or transactions are occurring.
3.2.11 Post, serve or publish any advertisements,
communications or promotional content promoting the Site, our Services or Our
Marks around or in conjunction with the display of the Site and/or any part
or page thereof (for example and without limitation through any
"framing" technique or technology or pop-up windows or pop-under
windows or interstitials) to anyone who has opted out of receiving marketing
materials from you;
3.2.12 Cause any of the Sites (or any parts or
pages thereof) to open in a visitor’s browser or anywhere else used for
accessing the Services other than as a result of the visitor clicking on
Banners or Text Links contained in or as part of any Marketing Materials;
3.2.13 Attempt to intercept or redirect
(including via user-installed software) traffic from or on any online site or
other place that participates in our Affiliate Program;
3.2.14 Use any means to promote any of the Sites
that resemble in any way the look and/or feel of any of the Sites whether in
whole or in part, nor utilize any such means or site to create the impression
that such sites are the Sites (or any part of the Sites);
applicable policies of any search engines;
3.2.16 Attempt to communicate to Players whether
directly or indirectly on our Sites to solicit them to move to any online
site not owned by us or for other purposes without our prior approval
including but not limited to via email, chat boards, or the like; or
3.2.17 Attempt to market or promote our Services
(or any specified part thereof) or Sites (or specific Site) within
territories which are Restricted Territories; to attempt to circumvent any
restriction which we have put in place to prevent players from restricted
territories from signing up as Real Money Players; or attempt to disguise the
geographical location of a Player.
If we determine, in our sole discretion, that you
have engaged in any of the foregoing activities, we may (without limiting any
other rights or remedies available to us) withhold any Affiliate Accruals and
terminate this Agreement immediately on notice.
3.3 Approved Marketing Materials. In providing
the marketing activities referred to in Section 3.2, you shall only use the
Marketing Materials provided by us. You shall not modify the Marketing
Materials or Our Marks in any way without our prior written consent. You may
only use the Marketing Materials in accordance with the terms of this
Agreement, any guidelines we provide to you on our Sites or otherwise from
time to time and any applicable laws. We may charge you for the cost of any
CDs and other customized promotional materials purchased by you. During the
term of this Agreement, we grant you a terminable, non-exclusive,
non-transferable right to use the Marketing Materials for the sole purpose of
fulfilling your obligations under this Agreement pursuant to the terms and
conditions of this Agreement.
3.4 Competitive Marketing. You shall not market
the Site and/or us, our Services, or Our Marks in any way whatsoever, unless
such activities are approved in writing by us (i) on any website on which we
promote any of the Sites; (ii) on or through any Internet search engine on or
through which we already promote any of the Sites; (iii) in any other manner
that results in you competing with us in relation to the promotion of any of
the Sites; or (iv) otherwise where we request that you cease the same.
3.5 Non-Assignment. Without prejudice to Section
8.6 below, you acknowledge and agree that Tracking Links are for your sole
use and you shall not assign or sub-license the Tracking Link IDs, Bonus
Codes nor any Affiliate Accruals to any third party without our prior written
3.6 Sub-affiliates. You may refer other persons
to us so that they may also apply to join the Affiliate Program. If any such
person successfully joins the Affiliate Program, these same Terms and
Conditions apply and we will pay you a percentage commission with respect to
such Sub-affiliate in accordance with the Payment Plan, provided that you
register them through the "Register Sub-affiliate" function within
the Affiliate Portal of the Website. You will only receive credit for
Sub-affiliates that comply with all applicable terms of this Agreement. Any
person registered as an Affiliate cannot subsequently be reclassified as a
Sub-affiliate. You shall not:
Register yourself or any person or entity controlled by you as your own
Use fictitious names for the registration of Sub-affiliates;
Offer any type of incentive, payment or otherwise to potential Sub-affiliates
unless such enticements are approved in writing by us, including any
so-called rebate schemes where a proportion of the player’s wagering is
returned to the player or Sub-Affiliate in any form;
Attempt to introduce any addition or variation to our terms in relation to
any potential Sub-affiliate; and
Receive payment on behalf of your Sub-affiliate(s).
For any avoidance of doubt, the payment and contractual
relationships regarding Sub-affiliates shall remain at all times between the
Sub-affiliate and us.
3.7 Commercial Use Only. The marketing
opportunity presented in the Affiliate Program is for commercial use only.
You shall not register as a Player or make deposits to any Player Account
(directly or indirectly) through your Tracking Link(s) (or any
Sub-affiliate’s Tracking Link(s)) for your own personal advantage, gain or
use and/or the use of your relatives, friends, employees, agents or advisors,
or otherwise attempt to artificially increase the payments to you or to
defraud us. Violation of this provision shall be deemed to be Fraud Traffic
and we will terminate your participation in the Affiliate Program.
3.8 Player Information. Pursuant to Oregon law
and the Sites Terms and Conditions, we reserve the right to refuse service to
any potential Player and to close the Player Account of any Player, at any
time, in our sole discretion. All data relating to the Players shall, as
between you and us, remain our exclusive property or proprietary customer
information and you acquire no right to such information.
3.9 Trademarks and Domain Names. You acknowledge
that BetAmerica and/or its parent, subsidiaries, affiliates and/or licensees
own all Intellectual Property Rights comprised in any and all of the
Marketing Materials, our Services, the Site and Our Marks. Any use of any
trade mark (including, but not limited to BetAmerica, Twinspires, Churchill
Downs, and the Kentucky Derby), domain name or trade name that contains, is
confusingly similar to or is comprised of Our Marks (other than in accordance
with the terms of this Agreement) without our prior written permission shall
be unauthorized and further may constitute breach of this Agreement and/or
Fraud Traffic. You shall not register or attempt to register any trademarks
or names that contain, are confusingly similar to or are comprised of Our
Marks. You hereby agree to transfer any domain names or trade mark
application or registrations in respect of Our Marks or marks confusingly
similar to Our Marks you may hold or control to us upon demand. You further
agree not to disparage Our Marks, attack or challenge our ownership of and
title to Our Marks in any way, or bid on Our Marks for pay per click purposes.
3.10 No Employees. No officer, director,
employee, consultant or agent of BetAmerica, its parent, affiliates, supplier
or vendor, is permitted to participate in the Affiliate Program. Similarly,
relatives of each of the foregoing are not permitted to participate in the
Affiliate Program. The term relative shall include (but not be limited to) a
spouse, partner, parent, child or sibling.
4. REPORTS & PAYMENTS
4.1 Reports. We will track and report Player
activity for purposes of calculating your Affiliate Accruals based on your
chosen Payment Plan. The form, content and frequency of the reports may vary
from time to time in our sole discretion. Generally, you will receive a
monthly report with your payment indicating the number of new Real Money
Players that signed up that month per Tracking Link and/or the total amount
due to you after any deductions, chargebacks or set offs that we are entitled
to make under this Agreement. In addition, daily reports may be available
online for you to view new Real Money Players per Tracking Link. We hereby
exclude any and all liability for the accuracy or completeness of any such
4.2 Affiliate Accruals. Subject to Section 4.4
below, Affiliate Accruals will be paid to you on a calendar month basis in
accordance with your chosen Payment Plan after you have completed the
registration process. We may elect, at our sole discretion, to not to accept
your selected Payment Plan choice and we may convert any Payment Plan and any
associated Tracking Links provided hereunder from a Percentage Payment Plan
to a Per Sign-up Payment Plan or vice versa or to any other Payment Plan that
we may operate from time to time, at any time, on notice to you. Payment
plans are available to view at http://www.BetAmerica-affiliates.com/
4.3 Sub-affiliate Accruals. Subject to Section
3.6 and any other restrictions contained herein or in the Payment Plan, you
will receive, in accordance with the Sub-affiliate’s Payment Plan and Section
4.4 below, your commission on the Affiliate Accruals due and payable for the
Real Money Players that your Sub-affiliate(s) refer to our Sites.
Sub-Affiliate Accruals or commissions amounts must be negotiated with a
BetAmericaAffiliates.com representative or account manager.
4.4 Minimum Payment Processed and Time of
Payment. All Affiliate Accruals generated through your chosen Payment Plan
will be paid into your Affiliate Cashier Account within forty-five (45) days
of the close of each calendar month. We may impose reasonable restrictions on
the frequency and amounts that can be cashed out of your Affiliate Cashier
Account for administrative convenience and/or to protect the security of your
account. Currently, an Affiliate must have a minimum balance of $100 to
withdraw from your Affiliate Cashier Account at any time. Affiliates must
provide and are responsible for providing the correct payment details and
applicable tax forms in order for us to be able to process these payments.
4.5 Holdover for Fraud Traffic. In the event
that, in our sole discretion, we suspect any Fraud Traffic, then we may delay
payment of the Affiliate Accruals to you for up to one hundred and eighty
(180) days while we investigate and verify the relevant transactions and
suspend or terminate the Agreement. We are not obligated to pay Affiliate
Accruals with regards to Real Money Players who, in our sole discretion, are
not verifiably who they claim to be or are otherwise involved with Fraud
Traffic. In the event that we determine any activity to constitute Fraud
Traffic, or to otherwise be in contravention of this Agreement, then in our
sole discretion we may in addition to terminating you from the Program: (i)
pay the Affiliate Accruals balance in full, (ii) recalculate them in light of
such suspected Fraud Traffic and/or (iii) deny you payment of your Affiliate
4.6 Method of Payment. All payments to you will
be due and payable in United States Dollars. Payment will be made by check,
wire, ACH, PayPal or any other method as we in our sole discretion decide.
Charges for wires, fees or courier charges for checks will be covered by you
and deducted from your Affiliate Accruals.
4.7 Player Tracking. You understand and agree
that potential Real Money Players must link through using your Tracking Link
ID or use your sign-up bonus code in order for you to receive Affiliate
Accruals and validate reporting. In no event are we liable for your failure
to use Tracking Links or your failure to properly install the Tracking Links
or for potential Real Money Player’s failure to properly enter valid Sign-up
Bonus Codes. Notwithstanding any other provision herein, we may at any time
and in our sole discretion alter our tracking system and reporting format.
4.8 Disputes. If you disagree with the monthly
reports or amount payable, do NOT accept payment for such amount and
immediately send us written notice of your dispute. Dispute notices must be
received within thirty (30) days of our making available your monthly report
or your right to dispute such report or payment will be deemed waived and you
shall have no claims in such regard. Further, deposit of payment check,
acceptance of payment transfer or acceptance of other payment from us by you
will be deemed full and final settlement of Affiliate Accruals due for the
month indicated. Notwithstanding the foregoing, if any overpayment is made in
the calculation of your Affiliate Accruals or a chargeback has occurred, we
reserve the right to correct such calculation at any time by offsetting your
next payment or seeking a refund from you. BetAmerica.com and not BetAmerica-Affiliates.com
player reporting is used in cases of disputes.
4.9 Money Laundering. You shall comply with all
applicable laws and any policy notified by us through our Sites or otherwise
in relation to anti-money laundering.
4.10 Taxes. All taxes due in connection with any
payments to you are your sole liability. You are responsible for complying
with the rules, if any, for registering for and paying state and federal
income tax and similar taxes in respect of your income from this agreement
and for collecting and paying the income tax and social security
contributions in respect of your staff, if you have any staff. If Value Added
Tax (VAT) or any other sales tax or turnover tax is chargeable, you are
responsible for complying with the rules, if any, for registering for the tax
and collecting and paying tax in the country where the services are provided
and you acknowledge that the payments that you receive shall be deemed to
include all VAT or sales tax or turnover tax.
4.11 Minimum Wagering Requirements. We reserve
the right to impose minimum requirements on Players that you refer, in order
to determine the quality of traffic that you are sending. We may impose at
any time stricter wagering requirements immediately, upon written notice to
you that we may send by email to such email address you have provided to us.
5. TERM AND TERMINATION
5.1 Term and Termination. This Agreement will
take effect when you indicate your acceptance of these terms and conditions
on the Affiliate Registration Form and shall continue until terminated in
accordance with the terms of this Agreement.
5.2 Termination by You. You may terminate this
Agreement, with or without cause, immediately upon written notice to us that
you may send by email marked "Termination” to email@example.com.
For the avoidance of doubt, termination of the Agreement will end your
participation in the Affiliate Program as a whole. You may not terminate any
Site in isolation. In the event that you elect to terminate this Agreement,
we shall be entitled to automatically render any Tracking Links inoperative.
For the avoidance of doubt, on termination of this Agreement you will no
longer accrue or receive any Affiliate Accruals. We may delay any final
payments to you until we have reasonably determined that there are no
5.3 Termination by Us. We may terminate this
Agreement immediately or without terminating this Agreement as a whole, any
specific Tracking Links, with or without cause at any time, upon written
notice to you that we may send by email to such email address you have
provided to us. In the event we terminate the Agreement as a whole, we shall
be entitled to automatically render any Tracking Links inoperative. For the
avoidance of doubt, on termination of this Agreement you will no longer
accrue or receive any Affiliate Accruals. If we terminate a specific Tracking
Link, you will no longer accrue or receive any Affiliate Accruals through
that Tracking Link; however, your remaining Tracking Links will not be
affected. You must withdraw all monies in your Affiliate Cashier Account
within thirty (30) days of receiving notice of termination. If such monies
have not been withdrawn by such time then they shall be deemed forfeited and
shall revert to back to us.
5.4 Suspension by Us. For any reason, including
in lieu of termination, we may at our sole discretion and without prejudice
to our further rights and remedies, suspend the Agreement or any specific
Tracking Link. During the period of any suspension, we will notify you that
we will withhold the payment of any Affiliate Accruals that relate to any
affected Tracking Links. Payment of any withheld Affiliate Accruals, if any,
will be made to you on the lifting of the suspension.
5.5 Automatic Termination. If your Affiliate
Cashier Account is inactive, your Agreement and participation in the
Affiliate Program will automatically terminate. In this Section,
"Inactive" means where (i) you have not generated sufficient
Affiliate Accruals to trigger a payment into your Affiliate Cashier Account
or you have not withdrawn from your Affiliate Cashier Account for one hundred
and twenty days or more; or (ii) you have failed to respond to any
verification mails sent to you within a reasonable period of time. Where
automatic termination occurs, any funds remaining within your Affiliate
Cashier Account will revert back to us.
5.6 Effect of Termination. The following will
apply where we terminate:
You shall cease,
desist and stop promoting the Sites and all rights and licenses given to you
under this Agreement will terminate immediately.
You shall return all confidential information and cease use of any of Our Marks
and the Marketing Materials.
We may leave open, redirect or deactivate any Tracking Links in our sole
discretion without any obligation to pay you for Players who subsequently
become Real Money Players.
Provided that we have paid or do pay to you such sums as are due at the date
of termination and that shall be subject to any rights we have to make
deductions hereunder, we will have no further liability to pay you any
Sections 3.5, 3.8, 4.5, 5.4, 6, 7 and 8 and such other provisions as are
necessary for the interpretation or enforcement of this Agreement shall
survive any termination or expiry of this Agreement.
6. LIMITATION OF LIABILITIES AND INDEMNIFICATION
6.1 No Warranties. WE MAKE NO WARRANTIES OR
REPRESENTATIONS (WHETHER EXPRESS OR IMPLIED BY LAW, STATUTE OR OTHERWISE)
WITH RESPECT TO THE BETAMERICA AFFILIATE PROGRAM, OUR SITES, OUR WEBSITE OR
ANY CONTENT, PRODUCTS OR SERVICES AVAILABLE THEREIN OR RELATED THERETO OR
THAT OUR SITES, THE WEBSITE, SYSTEM, NETWORK, SOFTWARE OR HARDWARE (INCLUDING
BUT NOT LIMITED TO THAT PROVIDED TO US BY THIRD PARTIES) WILL BE ERROR-FREE
OR UNINTERRUPTED OR WITH RESPECT TO THE QUALITY, MERCHANTABILITY, FITNESS FOR
PARTICULAR PURPOSE OR SUITABILITY OF ALL OR ANY OF THE FOREGOING. EXCEPT AS
EXPRESSLY STATED OTHERWISE IN THIS AGREEMENT, ALL WARRANTIES, REPRESENTATIONS
AND IMPLIED TERMS AND CONDITIONS ARE HEREBY EXCLUDED TO THE FULLEST EXTENT
PERMITTED BY LAW. FURTHERMORE, NEITHER WE (NOR OUR PROVIDERS OR UNDERLYING
VENDORS) ARE REQUIRED TO MAINTAIN REDUNDANT SYSTEM(S), NETWORK, SOFTWARE OR
6.2 Billing and Collection. We may take any means
necessary to collect money (including, but not limited to hiring a collection
agency and attorneys) that is owed to us by you and you shall be responsible
for any costs associated with such collection. We may, in our sole
discretion, use any available means to block, restrict, remove or discount
from your Tracking Link certain players, deposits or play patterns or reject
the applications of potential players and/or Affiliates so as to reduce the
number of fraudulent, unprofitable transactions, or for any reason we deem
6.3 Liability Limitations. In no event will we be
liable for any direct, indirect, special, incidental, consequential or
punitive loss, injury or damage of any kind (regardless of whether we and/or
you have been advised of the possibility of such loss) including any loss of
business, revenue, profits or data. Our liability arising under this
Agreement, whether in contract, tort (including negligence) or for breach of
statutory duty or in any other way shall only be for direct damages and shall
not exceed the revenues generated and payable to you in relation to the
Site(s) that the dispute relates to over the previous 12 months at the time
that the event giving rise to the liability arises. Our obligations under
this Agreement do not constitute personal obligations of the directors,
officers, agents, employees, vendors or suppliers of BetAmerica, its parent
and their affiliates.
6.4 Indemnification. You shall defend, indemnify
us and our parent and affiliates and each of our respective officers,
directors, employees, agents and representatives and hold the same harmless
from and against any and all claims, demands, liabilities, losses, damages,
costs and expenses (including reasonable legal fees) resulting or arising
(directly or indirectly) from this Agreement.
6.5 Set off. Without prejudice to any other
rights or remedies available to us under this Agreement or otherwise, we
shall be entitled to set off any payments otherwise payable by us to you
hereunder, against any liability you owe to us, including any claims we have
against you resulting from or arising from, your breach of this Agreement.
7. INDEPENDENT INVESTIGATION
7.1 Independent Investigation. YOU WARRANT THAT
YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF MARKETING THE SITE OR
7.2 Independent Research. YOU UNDERSTAND THAT
GAMBLING LAWS MAY VARY FROM STATE TO STATE AND YOU WARRANT THAT YOU HAVE
INDEPENDENTLY EVALUATED THE LAWS OF THE UNITED STATES AND THOSE OF THE
INDIVIDUAL STATES THAT APPLY TO YOUR ACTIVITIES AND BELIEVE THAT YOU MAY
PARTICIPATE IN OUR AFFILIATE PROGRAM WITHOUT VIOLATING ANY APPLICABLE RULES
OR LAWS. YOU INDEMNIFY US AND OUR PARENT AND AFFILIATES AND EACH OF THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS AND HARD THE SAME
HARMLESS FROM ANY ACTIONS, SUITS, FINES, PENALTIES, CLAIMS AND COSTS
(INCLUDING ATTORNEYS’ FEES AND LEGAL COSTS) ASSOCIATED WITH YOU PARTICIPATING
IN AND ADVERTISING ON BEHALF OF THE BETAMERICA AFFILIATE PROGRAM.
8.1 Notices. All notices pertaining to this Agreement
will be given by email as follows: to you at the email address provided by
you on the Affiliate Registration Form (or as subsequently updated by you to
us), and to us at firstname.lastname@example.org. Any notice sent by email shall
be deemed received on the earlier of an acknowledgement being sent or
twenty-four (24) hours from the time of transmission.
8.2 Relationship of Parties. There is no
relationship of exclusivity, partnership, joint venture, employment, agency
or franchise between you or us under this Agreement. You are not entitled to
any benefits beyond those specifically detailed in this Agreement. Neither
party has the authority to bind the other (including the making of any
representation or warranty, the assumption of any obligation or liability
and/or the exercise of any right or power), except as expressly provided in
this Agreement and you shall not act as or hold yourself out as an agent of
BetAmerica, Churchill Downs Incorporated, or any of its subsidiaries.
8.3 Non-Exclusive. You understand that we may at
any time (directly or indirectly), enter into agreements with other
affiliates or third parties on the same or different terms as those provided
to you in this Agreement and that such affiliates or third parties may be
similar, and even competitive to you. You understand that we may re-direct
traffic and users from any of the Sites to any other online site that we deem
appropriate in our sole discretion without any additional compensation to
8.4 Confidentiality and Non-Disclosure. You may
receive confidential information from us, including confidential information
as to our marketing plans, marketing concepts, geographical presence,
structure and payments. This information is confidential and constitutes our
proprietary trade secrets. You shall not disclose this information to any
third party or other person(s), or use such information other than for the
purposes of this Agreement without our prior written consent, except as
expressly required by law (provided that you provide immediate written notice
of such requirement, cooperate with us to protect our confidential
information from such disclosure). You understand that we retain title and
all intellectual property and proprietary rights in the confidential
information. No license under any data, source code, software, trademark,
patent or copyright, or application for same which are now or thereafter may
be obtained by us is either granted or implied by the conveying of
confidential information. You understand that a violation or threatened
violation of the confidentiality of such confidential information may cause
irreparable injury to us, entitling us to seek injunctive relief in addition
to all legal remedies available to us under this Agreement and applicable
law. Player data and identities belong to us and will not be shared with the
affiliates. See 3.8 above
8.5 Press. You may not issue any press release or
other communication to the public with respect to this Agreement, Our Marks
or your participation in the Affiliate Program without our prior written
8.6 Assignment. Except where you have received
our prior written consent, you may not assign (at law or in equity),
sub-license, sub-contract, or deal in any other manner with your rights and
obligations under this Agreement. Any purported assignment in breach of this
clause shall confer no rights on the purported assignee.
8.7 Governing Law. These Terms and Conditions and
the Agreement (including any variation or modification thereto) shall be
deemed executed in the Commonwealth of Kentucky and shall be governed by and
construed in accordance with the laws of the Commonwealth of Kentucky without
giving effect to conflicts of law principles. You irrevocably agree to the
exclusive jurisdiction to the courts located within Louisville, Jefferson
County, Kentucky for any claim, dispute or matter arising out of, or in
connection with, or concerning this Agreement or its enforceability and you
waive any objection to proceedings in such courts on the grounds of venue or
on the grounds that proceedings have been brought in an inconvenient forum.
Nothing in this clause shall limit the right of us to take proceedings
against you in any other court of competent jurisdiction, nor shall the
taking of proceedings in any one or more jurisdictions preclude the taking of
proceedings in any other jurisdictions, whether concurrently or not, to the
extent permitted by the law of such other jurisdiction.
8.8 Severability. Whenever possible, each
provision of this Agreement will 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 or any
other provision hereof.
8.9 Entire Agreement. This Agreement embodies the
complete and entire agreement and understanding between the parties hereto
with respect to the subject matter hereof and supersedes any prior or
subsequent oral or written agreement or understanding between the parties in
relation to such subject matter except for any modification to this Agreement
provided by us to you in accordance with Section 1.3 above. Each of the
parties acknowledges and agrees that in entering into this Agreement, it has
not relied on any statement, representation, guarantee, warranty,
understanding, undertaking, promise or assurance (whether negligently or
innocently made) of any person (whether a party to this Agreement or not)
other than as expressly set out in the Agreement. Nothing in this Section
shall limit or exclude any liability for fraud.
8.10 Third-Party Rights. Except insofar as this
Agreement expressly provides that a third party may in their own right
enforce a term of this Agreement, a person who is not a party to this
Agreement has no right to rely upon or enforce any term of this Agreement.
8.11 No Waiver By Us. If there is a breach of any
provision of this Agreement, it shall not be considered a waiver of any
subsequent breach of the same or any other provision.
8.12 English Language. This Agreement is drafted
in the English language. If this Agreement is translated into another
language, the English language text shall in any event prevail.
Churchill Downs Technology Initiatives Company
d/b/a BetAmerica, a Delaware corporation.
Last modified February 2018