CHURCHILL DOWNS TECHNOLOGY INITIATIVES COMPANY AFFILIATE PROGRAM
TERMS & CONDITIONS
Effective: August 2019
These Terms and Conditions outline and define the relationship
between Churchill Downs Technology Initiatives Company, (CDTIC which is doing
business as TwinSpires) and affiliates that participate in the
CDTIC Affiliate Program.?
These Terms and Conditions are subject to change at the sole discretion of CDTIC
and any such change will be communicated to you in accordance with Section 1.1
below.?
IMPORTANT: READ THIS ENTIRE DOCUMENT CAREFULLY BEFORE ACCEPTING THESE TERMS AND
CONDITIONS AND PARTICIPATING IN THE CDTIC 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 CDTIC AFFILIATE PROGRAM. IF YOU ARE
ALREADY A MEMBER OF THE CDTIC AFFILIATE PROGRAM AND DO NOT ACCEPT THESE TERMS
AND CONDITIONS, OR IF YOU WOULD LIKE TO TERMINATE YOUR PARTICPATION IN OUR
PROGARM, PLEASE EMAIL US AT info@TwinSpiresaffiliates.com. IF YOU HAVE ANY QUESTIONS
REGARDING THESE TERMS AND CONDITIONS PLEASE CONTACT US at info@TwinSpiresaffiliates.com.
YOU MUST BE AT LEAST 21 YEARS OF AGE TO JOIN THE CDTIC AFFILIATE PROGRAM.?
These Terms and Conditions along with your completed CDTIC Affiliate
Registration Form, the CDTIC Marketing Rules, the CDTIC 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 CDTIC 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.
Given that CDTIC operates in a highly regulated industry, you
consent to CDTIC performing a background check on you and your company and
partner(s) or shareholders if applicable.
Currently the only Sites offered within the Affiliate Program are:
TwinSpires.com
No other products, services or brands of Churchill Downs Incorporated are
permitted.
Where used in these Terms and Conditions, references to:
(i) "you", "your" and/or "Affiliate" mean the
individual or entity that applied ?to
operate as an affiliate and 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, a Delaware corporation d/b/a TwinSpires,
with its principal place of business at 600 N.Hurstbourne Parkway, Suite 400, Louisville, KY, 40222.
1. GENERAL
1.1 This Agreement shall govern the relationship with you in
relation to the CDTIC 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 CDTIC 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 below).
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 termination provisions.
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 CDTIC
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 data and in accordance with the terms of
the Agreement.
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
tracker IDs and bonus codes, and select banners and/or text links.
2.4 "Banners" and "Text Links" means the
graphical artwork or text that includes tracker 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(s)" means the brands represented by CDTIC Affiliates
and mentioned in the Brands and Revenue sections of the Affiliate
Program.? Brands include the "TwinSpires" brand used in
association with online wagering on horseracing and the ?Luckity? brand used in
association with social games in association with online wagering on
horseracing.
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 TwinSpires.com or Luckity.com sites. 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 TwinSpires.com or Luckity.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 dollars.
Any new player tagged to an affiliate must meet a minimum deposit specified
in the TwinSpires Addendum before
commission will start being paid to that affiliate account. If the new player from an affiliate claims a
free money (no deposit) offer, that player still must meet the applicable minimum
deposit set forth in the TwinSpires
Addendum on top of the free money that was placed in
the player's account.
2.11 "Our Marks" means the words "TwinSpires", , and "CDTIC 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 CDTIC has made
available to you and you have accepted under which we have entered into an
agreement to pay you either:
1.a share of certain revenues
generated by Real Money Players as outlined in the specific Payment Plan ("Percentage
Payment Plan"), or 2.a plan where we pay you based
on the number of Real Money Players that you introduce via your Tracker ID
and/or Bonus Code ("Per Sign-up Plan" or ?Cost per Action?),
or 3.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 Real Money Player when he/she successfully registers, as
solely determined by CDTIC,? using a
valid Tracking URL or Sign-up Bonus Code.?
2.14?"Real Money Player(s)" means any person who is
attached to your Tracker (or if applicable, your Sub-Affiliate?s Tracker) 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 required by our websites
as specified in the TwinSpires or Luckity Addendum attached hereto (iv) 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 CDTICs 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.? If you are paid by CDTIC on a Revenue
Share basis and you do not introduce any Real Money Players for a period of
three (3) consecutive months, CDTIC reserves the right to suspend your
percentage of Net Revenue in respect of Real Money Players introduced by you
until you introduce a total of two new Real Money Players, at which point
(after the introduction of the third Real Money Player) your rate of commission
will revert to the level it was before it was reduced in accordance with this
clause.
2.15 "Restricted Territory(ies)" means any country
outside of the United States of America and those states or territories where
TwinSpires or Luckity don?t accept customers from at the time in question.
2.16 "Services" means any product or service offered to Real
Money 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 Real
Money Players. When entered, the system automatically logs the Sign-up Bonus
Codes and records you as the Affiliate in relation to the relevant
Player.?
2.18 "Sites" means the websites designated in this
Agreement (currently TwinSpires.com and Luckity.com) and each of its related
pages through which a Real Money Player opens a Player Account and/or accesses
our Services.
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 Payment Plan.
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 "Tracker(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 Real Money Player opens their
Player Account, our system automatically logs the Tracking URL through Tracking
Cookies and records you as the Affiliate.
2.24 Tracking Cookies will be the tool used to tag a new player
to an affiliate?s account. CDTIC Affiliates program is open to affiliates
directly at www.twinspiresaffiliates.com, via the Commission Junction
network, or any tracking tool of our choosing. A player will be tagged to the
affiliate whose tracking cookie was last placed and measured by our tracking on
their computer or device, regardless of where they registered an affiliate
account.
2.25 "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 Marketing Materials.
2.26 "Website(s)" means the CDTIC Affiliate website
located at the URL http://www.TwinSpiresaffiliates.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.?
TwinSpires are 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 CDTIC Affiliate Program will be terminated from the CDTIC Affiliate
Program and forfeit any payments earned or owed.?
You are strictly prohibited from bidding any Churchill Downs Incorporated Marks
as part of a PPC or Pay Per Click Campaign with any search engine or other
entity that is not part of this program.
Churchill retains title and all intellectual property and
proprietary rights in the Marks. No license under any trademark, patent or
copyright, is either granted or implied by this program.
You will be solely liable for the content, cost 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 medium:
1.Copies or resembles the Site in
whole or in part; 2.Disparages us or otherwise
damages our goodwill or reputation in any way; 3.Frames any page of the Site in
whole or in part; or 4.Otherwise not discussed in this
Section
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 thereof. 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);
3.2.15 Violate the terms of use and
any 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.
3.2.18 Include
metatag keywords on any online site or in any page titles which are
identical or similar to any of Our Marks including but not limited to
"Twinspires" or confusingly similar marks. 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.
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 Trackers are for your sole use and you shall not
assign or sub-license the Tracker IDs, Bonus Codes nor any Affiliate Accruals
to any third party without our prior written consent.?
3.6 Sub-affiliates. You may refer third parties to us so
that they may also apply to join the Affiliate Program. If any such party
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 party registered as an Affiliate
cannot subsequently be reclassified as a Sub-affiliate. You shall not: 1.Register yourself or any person
or entity controlled by you as your own Sub-affiliate; 2.Use fictitious names for the
registration of Sub-affiliates; 3.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; 4.Attempt to introduce any
addition or variation to our terms in relation to any potential Sub-affiliate; 5.Receive payment on behalf of
your Sub-affiliate(s); and 6.Register on behalf of your Sub-affiliate.
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 Tracker(s) (or any Sub-affiliate?s tracker(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 Real Money Player Information. Pursuant to Oregon law
and each site?s respective terms and conditions, we reserve the right to refuse
service to any potential Player and to close the Player Account of any Real
Money Player, at any time, in our sole discretion. All data relating to the
Real Money 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 CDTIC ?and/or its parent or affiliates and 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 Churchill Downs, 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 the is 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, and bid on Our Marks for pay
per click purposes.?
3.10 No Employees. No officer, director, employee,
consultant or agent of CDTIC, 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.
3.11 Payment Plan. All
affiliates will be paid at the rate specified in the TwinSpires Addendum or
Luckity Addendum attached hereto or as may be revised from time to time at the
sole discretion of CDTIC. ?for each
eligible Real Money Player attached to your Tracker.? An Affiliate in good standing will continue
to earn the rate specified in the applicable Addendum for the eligible players
they sent us as long as the following criteria are met, in our sole discretion,
by the Affiliate: 1) Send new
players that meet our criteria anytime in the previous 90 day period 2) Have continued
to promote Affiliate Program on their site in at least previous 30 day period
4. REPORTS & PAYMENTS?
4.1 Reports. We will track and report pertinent Player
activity only 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 Tracker 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 Tracker. We hereby exclude any and all liability for
the accuracy or completeness of any such reports.
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
Trackers 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.TwinSpiresaffiliates.com/revenue.html.
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 CDTIC 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 to
you within forty-five (45) days of the close of each calendar month. We may
impose reasonable restrictions on the frequency and amounts that will be paid
to you ?for administrative convenience
and/or to protect the security of your account. Currently, an Affiliate must
have a minimum Affiliate Accrual balance of $120 to be paid by us. Affiliates
must provide and are responsible for providing the correct payment details, applicable
tax forms and any other reasonable information requested by us 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 Accruals.
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 or
any other method as we in our sole discretion decide. At our discretion 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 Tracker 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 Trackers or your
failure to properly install the Trackers 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 fifteen
(15) calendar 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. We will investigate any dispute and shall promptly render a
decision. You agree to abide by the
results of our investigation and you shall have no other recourse regarding
such dispute.?
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 or change 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?info@TwinSpiresaffiliates.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 Trackers 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 holdbacks.
5.3 Termination by Us. We may terminate this Agreement
immediately in part or in whole with or without terminating? any
specific Trackers and with or without
cause at any time.? Such termination will
be effective upon written notice to you that we may send by email to
such email
address you have provided to us. ?Termination shall be effective even if
you no
longer have access to the email address you provided to us as it is
solely your
responsibility to ensure we have your correct email address.? In the
event we terminate the Agreement as a
whole, we shall be entitled to automatically render any Trackers
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
Tracker,
you will no longer accrue or receive any Affiliate Accruals through that
Tracker; however, your remaining Trackers will not be affected. We will
?pay you any amounts due within forty five ?(45) days of terminating
this agreement. If
such payments are returned to us for any reason 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 Tracker. 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 Trackers. Payment of any
withheld Affiliate Accruals, if any, will be made to you if and on the lifting
of the suspension.
5.5 Automatic Termination.
This Agreement and your participation in the Affiliate Program will
automatically terminate if (i) you have not generated sufficient Affiliate
Accruals to trigger a payment to you for one hundred and twenty days or more;
or (ii) you have failed to respond to any verification attempts sent to you by
us within a reasonable period of time. Where automatic termination occurs, any
funds due ?to you will revert back to us.
5.6 Effect of Termination. The following will apply where we
terminate: 1.You shall cease, desist and stop
promoting the Sites and all rights and licenses given to you under this
Agreement will terminate immediately. 2.You shall return all
confidential information and cease use of any of Our Marks and the Marketing
Materials. 3.We may leave open, redirect or
deactivate any Trackers in our sole discretion without any obligation to pay
you for Players who subsequently become Real Money Players. 4.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 further sums. 5.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 CDTIC
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 HARDWARE.?
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 Tracker
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 appropriate.
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 CDTIC andits parent and any 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 and any actions or inactions by you. 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
SERVICES.
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 HOLD 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 TWINSPIRES AFFILIATE
PROGRAM.
8. MISCELLANEOUS
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 info@TwinSpiresaffiliates.com. 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 CDTIC or Churchill Downs
Incorporated.
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 you.
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 consent.
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 State of California and shall be governed by and construed in
accordance with the laws of the State of California without giving effect to
conflicts of law principles. You irrevocably agree to the exclusive
jurisdiction to the courts located within the State of California 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
Last modified August 2019 TwinSpires
Addendum August 6,
2014 This addendum covers the payment plan available to
affiliates for sending new Real Money Players to TwinSpires.com. CPA Payment Plan: Affiliates will receive $60 per Real Money Player for the
first 10 Real Money Players the particular affiliate sends to TwinSpires.com
during a calendar month.? Affiliates will receive $70 per Real Money Player for the 11th
? 25th Real Money Players the particular affiliate sends to
TwinSpires.com during a calendar month.? Affiliates will receive $70 per Real Money Player for the 26th
(and over 26th) Real Money Players the particular affiliate sends to
TwinSpires.com during a calendar month.? "Real Money Player(s)" means any new player who is
attached to your Tracker (or if applicable, your Sub-Affiliate?s Tracker) 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 required by the
TwinSpires.com website; (iv) who has met the minimum wagering requirements of
($100) One Hundred US Dollars within Thirty days of Registration for
TwinSpires.com.? (Wagering Requirements
are subject to change at the Affiliate Program's discretion).
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