Domestic Affiliation Program Agreement
Our current commission rates are as follows:
||Darwin, Northern Territory.
||The date that Luxbet advises the Affiliate in writing that it has accepted the Affiliate’s application to join the Luxbet domestic affiliation program submitted through the Luxbet Affiliate Program Website.
||Luxbet Pty Ltd ABN 69 092 104 786 of Fannie Bay Racecourse, Fannie Bay, Darwin, Northern Territory.
||Affiliate, resident in Australia, whose details are those submitted on the “Application” page of the Luxbet Affiliate Program Website when the Affiliate applied to join the Luxbet domestic affiliation program.
||The Applicable Rate for each Affiliate Client is the applicable “Commission Amount” set out on the “Commission Plans” section of the Luxbet Affiliate Program Website at the time that the customer became an Affiliate Client under this Agreement. This particular Commission Amount applies to the Affiliate Client even if the commission amounts published on the Luxbet Affiliate Program Website change after the time that the customer became an Affiliate Client.
The Applicable Rate for a particular period may be increased by way of a promotional rate applicable to the Affiliate which is set out on the Luxbet Affiliate Program Website or otherwise offered to the Affiliate, but this higher promotional rate will only apply for the particular period specified in the offer (not for the life of an Affiliate Client signed up during that period).
By clicking ‘Apply Now’ on the ‘Application’ page on the Luxbet Affiliate Program Website, the Affiliate applies to join the Luxbet domestic affiliation program on the terms set out in this Agreement. If Luxbet advises the Affiliate in writing that it has accepted the Affiliate’s offer, this Agreement will be binding on each party and sets out the terms and conditions applying to the affiliate arrangement between the parties.
Any existing agreement between the Parties in respect of the subject matter of this Agreement is deemed to have been terminated by the Parties with effect immediately prior to the Commencement Date and, notwithstanding any provision in such agreements to the contrary, no further “commission” is payable by Luxbet under such agreements other than “commission” due as at the date of termination.
In these terms and conditions, unless otherwise provided, the following terms have the following meanings:
||the individual or entity, who is not a Tabcorp Employee (or an Immediate Family Member of a Tabcorp Employee), who offers to introduce Affiliate Clients on these Terms and Conditions.
but does not include any person which is not able to be an Affiliate Client under clause 4.6(a) or ceases to be an Affiliate Client under clause 4.6(d).
- subject to clause 4.6(c), all New Clients who are introduced to Luxbet by the Affiliate via the Affiliate's website and successfully open a Betting Account for betting purposes by completing the following process:
- click on an approved Luxbet link within an Approved Affiliate Website that redirects the New Client to a Luxbet landing webpage which has unique tracking parameters applicable to the Affiliate;
- without leaving the Luxbet landing webpage referred to in (a), click on the “Join Now” button on that webpage which redirects the New Client to a Luxbet “sign up” webpage with the same unique tracking parameters applicable to the Affiliate; and
- without leaving the Luxbet “sign up” webpage referred to in (b), successfully open a Betting Account; and
- any Lapsed Client who recommences betting with Luxbet and which Luxbet determines in its absolute discretion should be an Affiliate Client (having regard to the circumstances in which the Lapsed Client recommenced betting),
||this written agreement
||the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and all AML/CTF associated rules, regulations and guidance notes as issued by AUSTRAC from time to time.
||has the meaning given in the Details section on page 1 of this Agreement.
|Approved Affiliate Websites
||each of those websites entered in the “Website URL” section of the form submitted by the Affiliate when they applied to join the Luxbet affiliate program through the Luxbet Affiliate Program Website and any other websites agreed by the parties, in writing, from time to time.
||the regulatory body with responsibility for enforcement of the AML/CTF Act.
||any amount owed to Luxbet under a Luxbet credit facility that Luxbet determines is likely to remain uncollectable or has been written off
- for New Clients which become Affiliate Clients, the betting account with Luxbet that was registered to the Affiliate Client while subject to the unique tracking parameters applicable to the Affiliate; and
- for Lapsed Clients which become Affiliate Clients, the betting account registered to the Affiliate Client with Luxbet at the time Luxbet determines that the Lapsed Client is an Affiliate Client.
||the date set out in the Details section on page 1 of this Agreement.
||is defined in clause 6.2.
||each calendar month during the Term.
|Confidential Information includes:
- information relating to the personnel, policies or business strategies of either Party; and
- information of or relating to the business, systems, operations, customers (including without limitation any person with whom the relevant Party has entered as part of any joint venture, strategic alliance or other business arrangement), properties, Luxbet's customers, the Affiliate's customers, the assets or affairs of a Party or its Related Bodies Corporate, which is or has been disclosed by a Party (or its representatives) to the other Party (or its representatives) or learned or acquired by the other Party (or its representatives) under or in connection with this Agreement (or any preceding agreement between the Parties), whether orally, electronically or in writing, other than any such information which:
- was in the public domain at the time of its disclosure or acquisition by a Party;
- became part of the public domain after its disclosure or acquisition by a Party, otherwise than through a disclosure in breach of an obligation of confidence of a Party;
- is or came lawfully into the possession of a Party wholly independently of and not related in any way to this Agreement and the transactions and activities contemplated by it otherwise than as a result of a disclosure in breach of an obligation of confidence; or
- was independently known by a Party at the time of its disclosure to or acquisition by that Party.
||is defined in clause 6.5.
||electronic communications including, but not limited to e-mail, SMS, blogs, cookies, Facebook messages or such similar internet or telephonic facilities.
|| an actual or attempted act by the Affiliate which, in Luxbet’s reasonable opinion, is:
and shall include, without limitation, collusion, abuse of bonuses or other promotions, violation of money-laundering or other laws and regulations, spamming, false, misleading or unauthorised advertising or representations, use of stolen credit cards or unauthorised use of any of Luxbet’s, the Tabcorp Group’s, or a third party’s intellectual property rights, and registering or attempting to register adwords in breach of this Agreement.
- illegal, in any relevant jurisdiction;
- made in bad faith;
- a strategy which is designed to artificially increase the Commissions under this Agreement which is not in the spirit of the arrangement set out in this Agreement; or
- intended to defraud Luxbet or any member of the Tabcorp Group and/or circumvent any contractual or legal restrictions, regardless of whether such act or attempted act actually causes Luxbet, any member of the Tabcorp Group or the Luxbet Website any damage or harm,
- any governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity; and
- any person responsible for administering any relevant laws, licences or approvals.
||is defined in clause 6.4.
|Immediate Family Members
- the parents, siblings, first cousins, uncles and aunts of the relevant person;
- any step-parent, step-sibling and first cousins of the step family of the relevant person;
- any wife, husband, de-facto partner of the relevant person; and
- any child (biological, foster, stepchild or de facto child) of the relevant person.
||an account for which no bets of any kind are placed for a period of 13 months.
||patents, copyright, moral rights, registered designs, registered and unregistered trademarks, trade secrets, know-how and Confidential Information, and all other intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation of July 1967.
||in relation to a person (Relevant Entity) means:
- an administrator, liquidator or provisional liquidator is appointed to the Relevant Entity or a resolution is passed or any steps are taken to appoint, or to pass a resolution to appoint, any of those persons to the Relevant Entity;
- an application or order is made for the winding up or dissolution of the Relevant Entity or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the Relevant Entity;
- a receiver, receiver and manager, trustee, statutory manager, other controller or similar officer is appointed over the assets or undertaking of the Relevant Entity, or any steps are taken to appoint, or to pass a resolution to appoint, any of those persons to the Relevant Entity;
- the Relevant Entity suspends payment of its debts generally or is unable to pay its debts as and when they fall due or is presumed to be insolvent under applicable law, or enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
- the Relevant Entity ceases, or threatens to cease, to carry on business; or
- anything analogous to any of the events in (a) to (e) above occurs under the Laws of any applicable jurisdiction.
||a customer, who is not a Minor, and who has held an account with Luxbet, but which account has become Inactive.
|Luxbet Affiliate Program Website
||the website of the Luxbet domestic affiliation program, currently www.luxbetaffiliates.com.au.
||one hundred dollars ($100.00).
|Minimum Referral Requirement
||in any 12 month rolling period, the Affiliate must refer 4 new Affiliate Clients that:
- make a first deposit; and
- satisfy the customer identification and verification requirements.
||the Minister for Racing and Gaming in the Northern Territory and the government department which supports that Minister.
||any person under the age of 18 years of age.
||is defined in clause 6.3.
||any potential customer who is not a Minor and who:
- has never held a betting account with Luxbet; and
- is not a Lapsed Client.
||each of Luxbet and the Affiliate.
||Privacy Act 1988 (Cth).
||A promotion code used during the sign up process to obtain a sign up deposit offer.
|Related Body Corporate
||has the same meaning as in the Corporations Act 2001 (Cth).
||includes an employee, agent, officer, director, partner, consultant or joint venturer.
||Spam Act 2003 (Cth).
- for an individual, may include: a valid passport, valid driving licence, utility bill, letter of reference from the individual’s bank, or bank statement; and
- for a company, may include: a copy of the company’s certificate of incorporation, articles of association, duly
- approved corporate resolution, a certificate of good standing, power of attorney, and information regarding the identity of the beneficial owner of the company and the identity of the directors of the company.
||any permanent, casual or contract employee or representative of the Tabcorp Group.
- Tabcorp Holdings Limited (Tabcorp);
- Tabcorp's Related Bodies Corporate (including Luxbet); and
- all bodies corporate, trusts, joint ventures or other business associations including alliances, in which Tabcorp or a Related Body Corporate of Tabcorp has a shareholding or participation interest of at least 30%.
||is defined in clause 3.
||the date upon which this Agreement terminates in accordance with clause 12.
|Terms and Conditions
||the terms and conditions set out in this Agreement.
In this Agreement unless the context otherwise requires:
- Headings are used for convenience only and do not affect interpretation;
- Words importing the singular include the plural and vice versa;
- Words importing a gender include any gender;
- Other parts of speech and grammatical forms of a word or phrase defined in this Agreement have a corresponding meaning;
- An expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any Government Agency;
- A reference to a clause, Party, annexure, exhibit or schedule is a reference to a clause of, and a Party, annexure, exhibit and schedule to, this agreement and a reference to this Agreement includes any annexure, exhibit and schedule;
- A reference to a statute, regulation, proclamation, ordinance or by law includes all statutes, regulations, proclamations, ordinances or by laws amending, consolidating or replacing it, whether passed by the same or another Government Agency with legal power to do so, and a reference to a statute includes all regulations, proclamations, ordinances and by laws issued under that statute;
- A reference to a document includes all amendments or supplements to, or replacements or novations of, that document;
- A reference to a party to a document includes that party’s successors and permitted assigns;
- A reference to an agreement other than this Agreement includes an undertaking, deed, agreement or legally enforceable arrangement or understanding whether or not in writing;
- A reference to any asset includes all property of any nature, including, but not limited to, a business, and all rights, revenues and benefits;
- A reference to a document includes any agreement in writing, or any certificate, notice, instrument or other document of any kind;
- A reference to liquidation includes official management, appointment of an administrator, compromise, arrangement, merger, amalgamation, reconstruction, winding up, dissolution, deregistration, assignment for the benefit of creditors, scheme, composition or arrangement with creditors, insolvency, bankruptcy, or any similar procedure or, where applicable, changes in the constitution of any partnership or person, or death;
- No provision of this Agreement will be construed adversely to a party solely on the ground that the party was responsible for the preparation of this Agreement or that provision;
- Unless otherwise indicated, charges and fees in this Agreement are in Australian Dollars (AUD); and
- GST terms used in this Agreement that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the meaning given in that Act, unless the context makes it clear that a different meaning is intended.
This Agreement commences on the Commencement Date and continues until the Termination Date (the Term).
4. Affiliate Obligations
4.1 The Affiliate will use its best efforts to actively and effectively advertise, market and promote Luxbet as widely as possible in a positively assertive manner to maximize the financial benefit to both the Affiliate and Luxbet.
4.2 The Affiliate will promote, advertise and market Luxbet by using the following forms of advertising and promotional material, each of which must first have been approved in writing by Luxbet and not altered by the Affiliate in any way without the prior written consent of Luxbet:
- The creation and maintenance of a unique link from an Approved Affiliate Website to the Luxbet Website to enable customers access to the Luxbet Website;
- Banners, html mailers, editorial columns, images and logos on an Approved Affiliate Website;
- Outbound calls from a call centre (using a pre-approved script) directing persons to an Approved Affiliate Website; and
- Pre-approved Electronic Direct Mail (EDMs) to the Affiliate’s database directing persons to an Approved Affiliate Website.
4.3 The Affiliate is responsible for:
- Updating the Approved Affiliate Websites, including graphics and/or text associated with the link with the Luxbet Website, as and when Luxbet periodically updates the Luxbet Website (including promotions);
- The development, operation, and maintenance of the Approved Affiliate Websites; and
- Ensuring that all materials posted on the Approved Affiliate Websites are not libellous, unlawful, illegal, or in breach of any third party rights.
4.4 The Affiliate must:
- comply with the Privacy Act, in particular National Privacy Principle 1.5 (or any later versions of that principle), if and when collecting any information from Affiliate Clients and disclosing that information to Luxbet;
- comply with all relevant laws, regulations, Luxbet’s licence conditions, this Agreement and any rules and procedures set out in any compliance advices sent from Luxbet to it;
- act within the spirit of the Tabcorp and Luxbet Responsible Gambling Code of Conduct and Manual and in particular must not knowingly procure as Affiliates any Minors or persons known to be acting on behalf of Minors;
- provide reasonable assistance, if required to meet regulatory requirements, to enable Luxbet to meet any of Luxbet’s obligations under its licence conditions or laws and regulations to any regulators, State racing governing bodies (thoroughbred, harness and greyhound) and Sports Controlling Bodies (as that term is defined in the Gambling Regulation Act 2003 (Vic));
- as soon as reasonably practicable after becoming aware of any matter involving or relating to non-compliance with any laws and regulations (such as the requirements of the AML/CTF Act) or any matter which may prejudice the security or integrity of Luxbet’s business, report such events to Luxbet;
- if it wishes to place links or any content associated with Luxbet on a website/s other than an Approved Affiliate Website, first obtain Luxbet’s written consent;
- for the purpose of Luxbet verifying the identity of the Affiliate or the Affiliates relationship with any Affiliate Client or potential Affiliate Client, provide Luxbet with any Supporting Documentation that Luxbet requests, and the Affiliate acknowledges and agrees that Luxbet has the right to delay payment of any amounts due under this Agreement if all necessary Supporting Documentation is not provided; and
- provide Luxbet with the correct bank account details of the Affiliate, for payment by Luxbet of the Commission and any other amounts under this Agreement, and notify Luxbet of any change required to such bank account details from time to time.
4.5 The Affiliate is not authorised or permitted by Luxbet to and must not at any time, including after expiry or termination of this agreement:
- Promote Luxbet in any manner anywhere other than on an Affiliate Approved Website or in accordance with clauses 4.2(c) or 4.2(d);
- Attempt to acquire customers who have not “clicked through” an approved Affiliate link through any form of cookie stuffing or similar illegitimate activity;
- Cloak its search link and redirect users to Luxbet’s Website;
- Transfer or procure the transfer of an Affiliate Client (or person that was an Affiliate Client but has become a Lapsed Client) from Luxbet to a third party wagering operator for the purpose of deriving a benefit of any kind from such a transfer;
- Purchase, acquire, licence, register, seek to register or use any domain names, business names, company names, trademarks or other Intellectual Property that comprises, incorporates or is similar to any brand of the Tabcorp Group, or otherwise any Tabcorp Group trade mark, domain name or other identifier or other Intellectual Property associated with the Tabcorp Group without Luxbet’s prior written consent, which may be given or withheld in Luxbet’s absolute discretion;
- Purchase, acquire, licence register, seek to register or use any keywords, search terms or other identifiers for use in any search engine, portal, social network, blog, sponsored advertising service, advertising network, or other search or referral service and which comprises, incorporates or is similar to any brand of the Tabcorp Group, or any Tabcorp Group trade mark, domain name or other identifier or other Intellectual Property associated with the Tabcorp Group or any related body corporate including but not limited to the word “Tabcorp”, "Luxbet", “Lux”, “Tab”, “Tab.com.au”, “TABSportsbet” or variations thereof (including typos or phonetics);
- Include any metatag keywords on the Approved Affiliate Websites which comprises, incorporates or is similar to any brand of the Tabcorp Group or any Tabcorp Group trade mark, domain name or other identifier or other Intellectual Property associated with the Tabcorp Group;
- Have any URL or domain name containing any trademarks and/or other Intellectual Property of the Tabcorp Group for the intention of search engine optimisation;
- Unless agreed in writing with Luxbet, create a direct link from the Approved Affiliate Websites to a specific promotion that Luxbet is conducting for its existing client database;
- Hold itself out as, represent itself as, or act as if it was Luxbet or any of member of the Tabcorp Group on any social networking sites, forums or blog websites or otherwise;
- Hold itself out or suggest in any way that it is employed by Luxbet and/or the Tabcorp Group (but equally, must not mislead or deceive any Affiliate Clients in any way as to the existence of a commercial arrangement with Luxbet in respect of the Affiliate introducing Affiliate Clients to Luxbet);
- Conduct itself in any way which could bring into disrepute:
- Luxbet and/or the Tabcorp Group; and/or
- Luxbet and/or the Tabcorp Group's reputation;
- Act in breach of the Spam Act or any similar regulatory or policy requirement, or through the use of Electronic Messages, including on any social networking sites, forums or blog websites, generate Affiliate Clients by internet and/or email traffic in a manner that is not in good faith, whether or not it actually causes Luxbet any loss or damage in terms of the Luxbet and/or Tabcorp Group brand, product services or in financial terms; or
- Without the prior written consent of Luxbet, have any financial interest in any competitor, or likely competitor, of the Tabcorp Group.
- Instruct New Clients to use, or otherwise make use of, a Promotion Code that was not expressly assigned to them through direct communication with Luxbet. The Affiliate acknowledges that if they use an unauthorized Promotion Code, New Clients may be allocated to another affiliate associated with that Promotion Code instead of being an Affiliate Client under this Agreement.
4.6 The Affiliate is not authorised or permitted by Luxbet to and must not at any time, including after expiry or termination of this agreement:
- Unless agreed in writing by Luxbet, an Affiliate Client cannot be:
- the Affiliate;
- if relevant, a Related Body Corporate of the Affiliate;
- an Immediate Family Member or Representative of the Affiliate;
- a person who has set up a betting account on behalf of those mentioned in (1), (2) or (3) above; or
- a person who has set up a betting account which is not a genuine betting account with Luxbet, but is instead set up to artificially increase the Commissions under this Agreement or to meet the Minimum Referral Requirement;
- It will not in any way try to derive Commission from wagering activity in betting accounts established by those persons referred to in clause 4.6(a);
- Luxbet may allocate a New Client as an “affiliate client” of another affiliate or agent of Luxbet (and not an Affiliate Client under this Agreement) if Luxbet considers, acting reasonably and having regard to the circumstances, that the other affiliate or agent is better entitled to be allocated that New Client. In determining whether another affiliate or agent is better entitled, Luxbet will have regard to all relevant circumstances, including the circumstances referred to in clause 4.5(o);
- An Affiliate Client will cease to be an Affiliate Client under this Agreement if:
- Luxbet, exercising its absolute discretion, terminates the Betting Account of the Affiliate Client, from the date of termination;
- the Affiliate Client closes (or asks Luxbet to close) its Betting Account, from the date of closure; or
- the Affiliate Client becomes a Lapsed Client, from the date they became a Lapsed Client.
- The Affiliate and Immediate Family Members or Representatives of the Affiliate and if relevant, Related Body Corporates of the Affiliate, are not permitted to make any deposits, directly or indirectly, through any Betting Accounts for the Affiliate’s own personal use or to increase the amounts (including Commissions) payable to the Affiliate under this Agreement; and
- Any transactions that are made in violation of clause 4.6(e) will be deemed to be Fraud and Luxbet will be entitled to deduct all applicable deposits and associated Net Revenue relating to any such transactions from any amounts that may be payable to the Affiliate.
4.7 The Affiliate warrants and represents to Luxbet that it has not registered or applied to register and does not hold:
- any business name, domain name, company name, registered trade mark or trade mark application; or
- any keyword, metatag, search term, URL, domain or other identifier for use in any search engine, portal, sponsored advertising service, other search or referral service or for search engine optimisation,
which comprises, includes or is similar to any Tabcorp Group mark, domain name or Tabcorp Group Intellectual Property or other identifier associated with the Tabcorp Group.
4.8 If the Affiliate has purchased, acquired, is using, licences, registered or applied to register any business name, domain name, company name, trade mark, keyword, search term or other identifier which comprises, includes or is similar to any Tabcorp Group trade mark, domain name or other identifier or other Intellectual Property associated with the Tabcorp Group, it:
- hereby assigns all rights it has in such business name, domain name or trade mark to the Tabcorp Group;
- must immediately change any such company name to a name not including any Tabcorp Group trade mark, domain name, other identifier or Intellectual Property associated with the Tabcorp Group;
- must cease using any such business name, domain name, company name, keyword, search term or trade mark;
- must take all steps to immediately transfer any related domain name licence, business name registration, trade mark registration or application to a member of the Tabcorp Group, including providing to Luxbet (or a nominee of Luxbet) the relevant authorisation code, domain password, user names, registry keys and any other information necessary for the administration of each such domain name; and
- must co-operate with Luxbet if there are any issues with recordal of the transfer of any business name, domain name, trade mark registration or application and act promptly to address those issues and correct any errors on the relevant registers,
at the Affiliate’s sole cost and expense.
4.9 If the Affiliate does not promptly carry out the steps described in clause 4.8, it hereby appoints Luxbet (or a nominee of Luxbet) as its attorney to take all steps necessary to transfer such domain name licence, business name registration, trade mark registration or application to Luxbet or its nominee, including executing all documents necessary to perfect the transfer to Luxbet or its nominee of such domain name licence, business name registration, trade mark registration or application and to change any relevant company name.
5. Luxbet Obligations
5.1 Luxbet will:
- Provide digital marketing materials (determined at its absolute discretion) for inclusion on the Approved Affiliate Websites which contain unique tracking parameters applicable to the Affiliate;
- Provide full details of its products and services available to Affiliate Clients via the Luxbet Website including details of any plans to enhance such products and services;
- Maintain the Luxbet Website with current product and services information, but will not contribute financially to any initiatives undertaken by the Affiliate to recruit clients;
- Maintain a record of each Affiliate Client introduced by the Affiliate and each of the Affiliate Client's transactions;
- Comply with all laws, regulations and its license conditions when creating accounts for Affiliate Clients; and
- Comply with the Privacy Act when disclosing information to the Affiliate.
5.2 Luxbet will supply the Affiliate with depersonalized reports of wagering activity of Affiliate Clients, in a format and at a frequency determined by Luxbet in its absolute discretion.
5.3 Luxbet will not be responsible or liable for any payment to any Affiliate Client or the Affiliate if:
- Any New Client does not register for a Betting Account;
- Any New Client fails to satisfy the Luxbet customer identification and verification requirements;
- Luxbet, exercising its absolute discretion, suspends or terminates the Betting Account of an Affiliate Client, other than for any payments of Commission that are due and payable up to and including the date of suspension or termination of the Betting Account; or
- An Affiliate Client closes their Betting Account (or Luxbet closes their Betting Account at their request), other than for payments of Commission that are due and payable up to and including the date of closure of the Betting Account.
6.1 Luxbet will pay the Affiliate the Commission calculated in accordance with this clause 6.
6.2 The Commission for each Commission Period is calculated as: Commission = Net Revenue x Applicable Rate.
6.3 Net Revenue for each Commission Period is calculated as: Net Revenue = Gross Turnover – Deductions. Net Revenue that is received in currencies other than Australian Dollars is converted in accordance with Luxbet’s exchange rate policy.
6.4 Gross Turnover for each Commission Period is calculated as the total turnover of all betting transactions relating to each Affiliate Client wagered through their respective Betting Accounts during the Commission Period.
6.5 Deductions are the total of the following in the relevant Commission Period for each Affiliate Client:
- monies paid out to the Affiliate Client’s Betting Account as winnings;
- any returned stakes to the Affiliate Client’s Betting Account;
- any void bets placed by the Affiliate Client through their Betting Account;
- monies paid in the form of betting duties or taxes (or reasonable provisions for each Betting Account transaction by the Affiliate Client);
- Betting Account transactions which are reversed by instruction from the Affiliate Client's bank (commonly known as chargebacks);
- any bet/deposit bonuses or any other incentives offered to the Affiliate Client in relation to their Betting Account;
- any marketing costs and third party software costs directly incurred to maintain the loyalty of the Affiliate Client (or reasonable provisions in respect thereof);
- any charge levied by electronic payment or credit card organisations;
- any fees or charges paid for digital media and/or vision rights or other content in relation to the betting transaction;
- any commissions or other payments which Luxbet pays to any other person in relation to the betting transaction;
- any administration fees and/or product fees paid to sporting bodies and racefields fees paid to racing bodies payable for each transaction by the Affiliate Client on the Betting Account; and
- any other deductions which are incurred by Luxbet and notified by Luxbet to the Affiliate.
6.6 The Applicable Rate to apply in calculation of the Commission is set out in the Details section on page 1. The Affiliate acknowledges that the Applicable Rate may be changed by Luxbet from time to time. Each customer who becomes an Affiliate Client under this Agreement will be subject to the Applicable Rate at the time they became an Affiliate Client. Luxbet will notify Affiliate when it changes the Applicable Rate.
6.7 Subject to clause 6.8, the Commission, in respect of each Commission Period, shall be paid by the 15th business day of the following calendar month.
6.8 If the Minimum Amount is not reached in respect of a Commission Period, no Commission will be paid in respect of that Commission Period and the Commission will be carried over into the next Commission Period, or subsequent Commission Periods, until such time as the Minimum Amount is reached.
6.9 Any negative earnings will be zeroed at the end of each Commission Period and will not be carried forward to the following Commission Period.
6.10 If, after Luxbet has made a payment of Commission:
- Luxbet has a Bad Debt attributable to an Affiliate Client in relation to which a Commission has been paid; or
- Luxbet has paid Commission in connection with fraud (including Fraud),
Luxbet has the right to recover as a set off against future Commissions (or as otherwise agreed between the Parties) the Commission paid in relation to that Bad Debt or in connection with that fraud.
6.11 Luxbet shall use reasonable endeavours to make payments due to the Affiliate using the payment details provided to it. Luxbet will not be liable for payments made to an incorrect bank account due to the Affiliate providing Luxbet with incorrect bank account details. Any amounts payable to the Affiliate which cannot be paid due to the Affiliate's failure to provide complete or accurate bank account details to Luxbet will result in the amount being carried forward until the next available monthly payment run.
6.12 Affiliate should notify Luxbet of any claimed error or dispute in relation to an invoice or payment within 3 months of the date of the relevant invoice or payment. Failure to do so will result in the Affiliate losing all rights to dispute any such invoice or payment thereafter.
7.1 If GST is payable on a Taxable Supply made under this Agreement, the Party providing the Consideration for that Taxable Supply must also pay the amount of GST payable in respect of that Taxable Supply as additional Consideration.
7.2 To the extent that the Consideration for a Taxable Supply comprises non-monetary Consideration:
- It is agreed that the value of the non-monetary Consideration is equal to the value of the Taxable Supply; and
- The Parties will negotiate in good faith to arrive at an equal value for the non-monetary Consideration and the Taxable Supply.
7.3 Subject to clause 7.5, the provision of Consideration under this Agreement is not required until the Affiliate has provided a Tax Invoice or Adjustment Note, as the case may be, to Luxbet.
7.4 Any reference in this Agreement to price, value, sales, revenue or a similar amount, or to cost, expense or other similar amount is a reference to that amount exclusive of GST.
7.5 For the purpose of satisfying the requirements of the GST Law and any additional requirements as determined by the Commissioner of Taxation from time to time, Luxbet and the Affiliate agree that:
- Luxbet may issue a Recipient Created Tax Invoice in respect of any Specified Supply by the Affiliate to Luxbet under this Agreement;
- The Affiliate will not issue a Tax Invoice in respect of any Specified Supply by the Affiliate to Luxbet under this Agreement unless Luxbet notifies the Affiliate that Luxbet will not be issuing a Recipient Created Tax Invoice for that Specified Supply;
- The Affiliate will not issue a Tax Invoice in respect of any Specified Supply by the Affiliate to Luxbet under this Agreement where Luxbet has issued a Recipient Created Tax Invoice for that Specified Supply;
- Luxbet is registered for GST purposes when this Agreement is entered into. Luxbet will notify the Affiliate if it ceases to be registered for GST purposes or ceases to satisfy the requirements for issuing Recipient Created Tax Invoices as set out in the GST Law or as determined by the Commissioner of Taxation from time to time;
- The Affiliate is registered for GST purposes when this Agreement is entered into. The Affiliate will notify Luxbet if it ceases to be registered for GST purposes;
- Luxbet will issue the original or a copy of the Recipient Created Tax Invoice to the Affiliate within 28 days after the later of the date the relevant Specified Supply is made or its value determined and will retain a copy/original;
- Luxbet will issue the original or a copy of an Adjustment Note to the Affiliate within 28 days after the adjustment is identified and will retain a copy/original; and
- Luxbet will not issue a document that would otherwise be a Recipient Created Tax Invoice on or after the date on which Luxbet or the Affiliate has failed to comply with any of the requirements for issuing Recipient Created Tax Invoices as set out in the GST Law or as determined by the Commissioner of Taxation from time to time.
8. Intellectual property
8.1 Luxbet is acknowledged to be the sole owner of all Intellectual Property in all matters, things or processes (including, but not limited to, hardware and software) supplied by Luxbet to the Affiliate in connection with this Agreement.
8.2 Luxbet will:
- At its own cost ensure that it has all necessary rights and licenses to all Intellectual Property subsisting in any logo, mark, design, device, matter, thing or process supplied to Affiliate to be used by the Affiliate at Luxbet's request or direction in promoting Luxbet to potential and actual Affiliate Clients under this Agreement; and
- Indemnify the Affiliate against all losses, damages, liabilities, claims and expenses (including, but not limited to, court and legal costs on a solicitor and own client basis) whatsoever incurred by the Affiliate arising out of or in connection with any alleged breach by Luxbet of clause 8.2(a) or any claim, action or proceedings by a person (Third Party Claim) alleging that any Intellectual Property supplied to the Affiliate by or on behalf of Luxbet to promote Luxbet to potential or actual Affiliate Clients under this Agreement infringes the intellectual property of that third party.
8.3 If a Third Party Claim is made against the Affiliate:
- The Affiliate will notify Luxbet as soon as practicable; and
- Luxbet will, at its own cost, conduct the defence of the Third Party Claim but may not settle the Third Party Claim without the prior written consent of the Affiliate (which will not be unreasonably withheld).
8.4 The Affiliate will indemnify Luxbet against all losses, damages, liabilities, claims and expenses (including, but not limited to, court and legal costs on a solicitor and own client basis) whatsoever incurred by Luxbet arising out of or in connection with the improper and/or unlicensed use of the Intellectual Property supplied by Luxbet to the Affiliate, including using such Intellectual Property not in accordance with the specific terms of this Agreement.
9. Confidential Information
9.1 (General obligation of confidence) Each Party acknowledges that the Confidential Information of the other Party is valuable to that other Party. Each Party undertakes to keep the Confidential Information of the other Party secret and to protect and preserve the confidential nature and secrecy of the Confidential Information of the other Party.
9.2 (Receipt of Confidential Customer Information) Where the Affiliate receives Confidential Information which relates to the customers or business arrangements of Luxbet, the Affiliate acknowledges that it receives that information both on the same terms as if that information was provided to the Affiliate and as agent for Luxbet. Without limiting any other provision in this clause, the Affiliate will:
- Respect the confidentiality of such information, observe the privacy of that information, and comply with the privacy obligations set out in clause 10; and
- Comply with any lawful request made by Luxbet regarding that information.
9.3 (Use or Reproduction of Confidential Information) A Party may use or reproduce the Confidential Information of the other Party for the purposes of or in connection with this Agreement, including the exercise of rights under this Agreement consequent upon any default.
9.4 (Disclosure of Confidential Information) A Party:
- Will not disclose Confidential Information of the other Party to any person except as permitted by this Agreement;
- Will not make, assist or permit any person (including its representatives) to make any unauthorised use, disclosure or reproduction of the Confidential Information of the other Party;
- Will take:
- reasonable efforts to ensure that any person who has access to the Confidential Information of the other Party does not make any unauthorised use, reproduction or disclosure of that information; and
- reasonable steps to enforce the confidentiality obligations imposed or required to be imposed by this Agreement including diligently prosecuting at its cost, any breach or threatened breach of such confidentiality obligations by a person to whom it has disclosed the Confidential Information and, where appropriate, make applications for interim or interlocutory relief; and
- Will co-operate with the other Party in any action which the other Party may take to protect the confidentiality of its Confidential Information.
9.5 (Permitted disclosures)
- The Affiliate may disclose Luxbet's Confidential Information as required by law, by Court Order or to a representative, employee or officer of the Affiliate requiring the information for purposes contemplated by this Agreement but only to the extent necessary for the relevant purpose.
- Luxbet may disclose the Affiliate's Confidential Information as required by law, by Court Order or to a representative, employee or officer of ASIC, the Minister or Luxbet, requiring the information for the purposes contemplated by this Agreement but only to the extent necessary for the relevant purpose.
- A Party may disclose Confidential Information of the other Party to its legal advisers in order to advise the first-mentioned Party in relation to its rights under this Agreement, but only to the extent necessary for that purpose.
9.6 (Disclosures required by law) A Party may disclose Confidential Information of the other Party:
- to the extent required by law or by a lawful requirement of any government or governmental body, authority or agency having authority over the first mentioned Party; or
- if required in connection with legal proceedings relating to this Agreement.
10. Privacy Obligations
- To comply with those provisions of the Privacy Act which concern the security, use and disclosure of personal information;
- To co-operate with any reasonable demands or inquiries made by the Privacy Commissioner;
- To take all reasonable measures to ensure that personal information is protected against loss and against unauthorised access, use, modification, disclosure or other misuse and that only authorised representatives, employees and officers have access to it;
- Not to transfer such information outside Australia, or allow non-Affiliates outside Australia to have access to it;
- Immediately to notify the other Party when it becomes aware of any breach of this clause by itself or any representative, employee or officer; and
- To take all reasonable steps to ensure that personal information provided to it in connection with this Agreement is accurately recorded.
The Affiliate will indemnify and forever hold Luxbet and the Tabcorp Group harmless from all actions, claims, liabilities, losses, damages, costs, and expenses, including legal costs, fines and penalties, arising from or in connection with any breach by the Affiliate of this Agreement.
12.1 Luxbet may immediately terminate this Agreement by giving written notice to the Affiliate if the Affiliate breaches the Agreement and:
- the breach is material and not capable of being remedied; or
- the breach is material and the Affiliate fails to remedy the breach within 5 days of being notified in writing, to the Affiliate’s email address as supplied, of the breach by Luxbet.
12.2 A material breach may include that the Affiliate:
- Breaches any laws and regulations;
- Breaches its obligations in clause 4.1;
- Commits a criminal offence;
- Commits fraud (including a Fraud);
- Uses any Luxbet or Tabcorp Group Intellectual Property improperly and/or without a licence;
- By its business or personal conduct brings the reputation of Luxbet and/or the Tabcorp Group into disrepute;
- Fails to comply or unreasonably delays in complying with any direction given by Luxbet relating to the performance of this Agreement;
- Suspends its promotion of Luxbet or the Luxbet Website or promotes Luxbet or the Luxbet Website other than as permitted under this Agreement; or
- Fails to meet the Minimum Referral Requirement.
12.3 Luxbet may immediately terminate this Agreement from the date of the notice by giving written notice to the Affiliate if:
- Luxbet is requested to do so by the Minister;
- Luxbet is of the reasonable opinion that as a consequence of the actions of the Affiliate that Luxbet may be liable for loss of its Licence or the imposition of any penalty under the Licence by the Minister;
- any applicable law including, without limitation, any statutes, regulations, codes of practice or standards (Law), or the interpretation or enforcement of any applicable Law (including by any regulatory body), has the effect of prohibiting, restricting or otherwise limiting the Affiliate’s ability to promote Luxbet to potential and actual Affiliate Clients in the manner contemplated by the Parties at the time of entry into this Agreement;
- for any reason Luxbet's Licence ceases or is suspended;
- Luxbet, acting reasonably, forms the view that the Affiliate is no longer acting in good faith in relation to the affiliate relationship between the Parties set out in this Agreement;
- the Affiliate:
- Suffers an Insolvency Event;
- Has a mortgagee seek to exercise a right of possession or control over the whole or a part of its property;
- Being a natural person, commits an act of bankruptcy; or
- Is required to be registered or licensed under any legislation for purposes of or incidental to the execution of its obligations under this Agreement and the Affiliate is not registered or licensed or that registration or licence is cancelled, withdrawn or suspended.
12.4 Luxbet may in its absolute discretion terminate this Agreement at any time for convenience by giving 30 days’ written notice to the Affiliate.
12.5 The Affiliate may in its absolute discretion terminate this Agreement at any time for convenience by giving 30 days’ written notice to Luxbet.
12.6 The termination of the engagement of the Affiliate under clauses 12.1, 12.3, 12.4 or 12.5 will not affect any other right or remedy of Luxbet.
12.7 If the Agreement is terminated under clause 12.1, 12.3, 12.4 or 12.5:
- the Affiliate must immediately cease using any of Luxbet’s Intellectual Property;
- the Affiliate's sole right and remedy is to receive any outstanding Commission owing at the Termination Date;
- except for the Commission set out in clause (b), no further Commission is payable to the Affiliate under this Agreement; and
- the Affiliate will not be entitled in contract, tort or otherwise to any additional payment or compensation for losses incurred as a result of the termination.
13. Affiliate Betting Account
The Parties agree that clause 4.6(a) is not intended to prohibit the Affiliate or an Immediate Family Member or Representative of the Affiliate, or if relevant, a Related Body Corporate of the Affiliate, from opening and operating a betting account with Luxbet. However, in the event that this occurs, the relevant persons will not be Affiliate Clients and the Affiliate will not therefore be entitled to any Commission in respect of wagering activity using those betting accounts.
14. Amendment of Terms and Conditions
14.1 The Terms and Conditions may be amended by Luxbet in its discretion at any time subject to any laws or regulatory requirements of the NT Racing Commission or any other relevant legislative or regulatory authorities.
14.2 It is the Affiliate's responsibility to ensure that they keep themselves up to date with the current Terms and Conditions, which will be available on the Luxbet Affiliate Program Website. The Affiliate’s continued participation in the affiliate program following Luxbet’s posting of a change of Terms and Conditions notice or a new agreement on the Luxbet Affiliate Program Website will constitute binding acceptance of the revised Terms and Conditions or of the new agreement.
14.3 If, following the amendment by Luxbet of any Terms and Conditions, the revised Terms and Conditions are not acceptable to the Affiliate, then the Affiliate’s only recourse is to terminate this Agreement.
15. General Terms
15.1 (Stamp duty) Any Stamp duty payable on this Agreement (including any fines or penalties) will be paid by the Affiliate.
15.2 (Governing law)
- This Agreement is governed by the laws of the Northern Territory.
- Each of the Parties irrevocably submits to the jurisdiction of the courts of the Northern Territory.
- This Agreement and rights arising out of or under this Agreement are not assignable by one Party without the prior written consent of the other Party.
- A Party will not unreasonably withhold its consent to assignment.
- A purported assignment without written consent will be deemed to be void and convey no rights.
- Should an Approved Affiliate Website be sold, whether the Affiliate Clients associated with this Agreement are transferred to the new owner is at the discretion of Luxbet (and is subject to the new owner accepting the Luxbet affiliate terms and conditions);
15.4 (Severance) If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.
15.5 (Entire Agreement) This Agreement supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the Parties.
- No right under this Agreement is waived or deemed to be waived except by notice in writing signed by the Party waiving the right.
- A waiver by one Party under any the terms of this Agreement does not prejudice its rights in respect of any subsequent breach of this Agreement by the other Party.
- A Party does not waive its rights under this Agreement because it grants an extension or forbearance to the other Party.
15.7 (Relationship of the parties) This Agreement is not intended to create a partnership, joint venture or relationship of principal and agent between the Parties.
15.8 (Further steps) Each Party will do all things and execute all further documents necessary to give full effect to this Agreement.
- The terms of this Agreement survive its termination to the extent permitted by law.
- This Agreement shall be binding upon the heirs, executors, administrators and successors in title of the Parties.