Partner Program Agreement

Date of last update: 13 October 2021

These terms and conditions form a legally binding agreement between the entity who is approved by Picklebet to become a partner (the Partner) and Puntaa Pty Ltd ACN 601 575 240 (Picklebet), in relation to the Picklebet program for referral partners (the Program).

1.             Enrolment

1.1            The Partner expressly agrees to this Agreement by commencing the Partner Approval Process or participating in the Program.

1.2            To be eligible for the Program, the Partner must: 

(a)             be at least 18 years of age, and must not be precluded from participating in the Program under the laws of the country in which they are resident; and

(b)            complete the Partner Approval Process and be approved by Picklebet.

1.3            Picklebet may at any time reject the Partner if Picklebet determines, in its discretion, that the Partner is unsuitable for the Program.

1.4            If the Partner is rejected, the Partner may re-apply to the Program in the future if they reasonably believe the information to be submitted in the Partner Approval Process has improved to the benefit of Picklebet.

1.5            Picklebet may in its discretion waive the Partner Approval Process if the Partner is already participating in the Program.

2.             General

2.1            The Partner agrees to provide the affiliate services detailed in this Agreement to Picklebet, strictly in accordance with the provisions in this Agreement.

2.2            The Partner acknowledges and agrees that Picklebet has the absolute discretion to appoint other affiliates in any jurisdiction at any time during the Term.

3.             Term and Termination

(a)             The term of the Partner’s participation will be deemed to have started on the later of:

(b)            the start of the Assessment Period; or

(c)             when approved under clause 1.2,

(d)            and will continue for successive periods of 12 months, renewed automatically, unless terminated in accordance with this Agreement (Term).

3.2            Either Picklebet or the Partner may terminate this Agreement and the Partner’s participation in the Program at any time, without cause, by giving the other party at least 30 days’ written notice of termination with such notice to be sent to Picklebet by email to affiliates@picklebet.com. 

3.3            Picklebet may suspend or terminate this Agreement immediately by written notice to the Partner if:

(a)             the Partner breaches any material term of this Agreement; 

(b)            Picklebet, in its absolute discretion, determines the Partner is unsuitable for the Program, including because:

(i)              Picklebet reasonably considers the Partner is operating an Unsuitable Website;

(ii)             Picklebet reasonably considers the Partner is acquiring Customers in a fraudulent manner, including but in no way limited to by using click spam, click farms, multiple accounts, incentivised traffic that is not approved or non-compliant bonus bet content);

(iii)            the Partner is found to have breached clause 5.2(a); or

(iv)            the Partner is subject to an order, or an effective resolution is passed or a petition is presented for its winding up, or there is convened a meeting for the purpose of entering into an examinership, arrangement or composition for the benefit of its creditors, or if a receiver or examiner is appointed over its undertaking or part thereof, or if it is unable to pay its debts (Insolvency Proceedings).

3.4            On termination of this Agreement for any reason:

(a)             all rights and licenses granted to the Partner by Picklebet will terminate immediately and the Partner must immediately cease all use of any Picklebet Approved Materials;

(b)            the Partner must remove any content referencing Picklebet (including any links to the Website) from any website, social media account, or other related media operated by or on behalf of the Partner as soon as practicable, but in any event within 2 business days unless Picklebet grants them an exemption via written notice;

(c)             the Partner will be entitled to unpaid commission under section 8.1, if any, earned by the Partner prior to the date of termination, however Picklebet may withhold payment for a reasonable time to ensure the correct amount of commission is paid;

(d)            the Partner will not be entitled to commission on Customers or transactions received after the date of termination. If the Partner has failed to fulfil any of its obligations as an affiliate under this Agreement, Picklebet will not pay any commission or other fees otherwise owed on termination;

(e)             the Partner must return to Picklebet or destroy at Picklebet’s request any Picklebet Confidential Information, and all copies of Picklebet’s other commercial information in its possession, custody, or control; and

(f)              the Partner and Picklebet will be released from all obligations and liabilities to each other occurring or arising after the date of such termination, except with respect to those obligations that by their nature are designed to survive termination, as set out in this Agreement. Termination will not relieve the Partner from any liability arising from any breach of this Agreement, which occurred prior to termination. All further rights to validly accrued payments, causes of action and any other provisions, which by their terms are also intended to survive termination shall survive any termination.

3.5            The Partner acknowledges and agrees that it is not entitled in contract, tort or otherwise to any additional payment or compensation for any loss or expense incurred as a result of termination of this Agreement. If Picklebet continues to generate Net Revenue following termination, or in its discretion continues to pay commission to the Partner, that will not have the effect of renewing or extending this Agreement. 

4.             Picklebet Responsibilities and Other Matters

4.1            Picklebet agrees that it must:

(a)             make Picklebet Approved Materials and the Data Feed (as required) available to the Partner for the purposes of promoting Picklebet in accordance with this Agreement. The Picklebet Approved Materials and Data Feed will serve to identify the Partner as a member of Picklebet’s Affiliate Program and will establish a link from the Partner’s media to the Program Website;

(b)            subject to Picklebet’s standard processes, register the Customers and track their use of the Website and Picklebet’s products and services as well as maintain a record of the Customers and their activities;

(c)             make available limited access to Picklebet’s affiliate interface, enabling the Partner to access data and other information in respect of Customers which it has referred to Picklebet in accordance with this Agreement (note that this access does not include access to Picklebet’s wagering platform);

(d)            provide the Partner access to high level reports which summarise Customer activity, via the Program Website, which may vary in form, content, and frequency from time to time in Picklebet’s sole and absolute discretion; and

(e)             pay the Partner for each Qualified Action relevant commission, in accordance with the terms of this Agreement. A “Qualified Action” means an individual person who:

(i)              accesses the Program Website via the link available on the Partner’s media, where the link is the last link to the Program Website, or otherwise opens a Betting Account with Picklebet in circumstances where the relevant introduction has been provided by the Partner;

(ii)             is not a computer-generated user, such as a robot (bot), spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person;

(iii)            is not using pre-populated fields;

(iv)            completes all of the information required for such action within the time period allowed by Picklebet; and

(v)             is not later determined by Picklebet to be fraudulent, incomplete, unqualified or a duplicate.

4.2            Picklebet reserves the right to charge back to the Partner’s account any previously paid Qualified Actions that are later determined to have not met the requirements to be a Qualified Action.

4.3            The Partner acknowledges and agrees that payment of any commissions is dependent upon Customers providing such funds to Picklebet, and therefore agrees that Picklebet shall only be liable to the Partner for commissions to the extent that Picklebet has received such funds from the Customers.

4.4            The Partner releases and holds harmless Picklebet, related entities and their respective officers, employees, agents, and contractors from any and all claims by the Partner for commissions if Picklebet has not received such funds from the Customers, which shall carry over to the next month and so on, until such time as funds have been received from Customers.

4.5            Picklebet will, within ten (10) business days of the end of each calendar month, issue to the Partner a report of all Qualified Actions during the previous calendar month relevant to calculation of the Partner’s commission under this Agreement (Activity Report).

4.6            In the event that the Partner is also tracking Qualified Actions and claims a discrepancy within an Activity Report:

(a)             it must provide Picklebet with its reports within three (3) days after receipt of the relevant Activity Report;

(b)            if the Partner’s reported statistics vary from Picklebet’s reported statistics by more than 10% and Picklebet reasonably determines that it has used generally accepted industry methods to track Qualified Actions, then the Partner agrees to act in good faith and use all reasonable endeavours to resolve the differences with Picklebet; and

(c)             if the parties are unable to arrive at a reconciliation, then Picklebet’s figures will be accepted by the parties as being the correct figures.

4.7            Where the Partner has an outstanding balance owing to Picklebet under this Agreement or any other agreement between the Partner and Picklebet, whether or not related to the Affiliate Program, the Partner agrees that Picklebet may offset any such amounts due to Picklebet from amounts payable to the Partner under this Agreement.

5.             Partner Responsibilities

5.1            The Partner must:

(a)             use its best efforts to actively advertise, market and promote Picklebet in order to maximise the number of Customers referred to Picklebet and the commission generated from those Customers;

(b)            act in good faith at all times in relation to all activities carried out under or in connection with this Agreement or the Program;

(c)             comply with any requirements or instructions notified by Picklebet in connection with the Program (including policies, advertising guidelines and disclaimers and lawful directions);

(d)            only use Picklebet Approved Materials for promotional activities in connection with the Program in accordance with Picklebet’s directions including updating imagery with new imagery from time to time as directed;

(e)             only engage in advertising, marketing, and promotional efforts under this Agreement which:

(i)              are lawful;

(ii)             do not use unsolicited email, unauthorised newsgroup postings, chat rooms or through the use of bots, click-spamming or other fraudulent activity;

(iii)            are not published on websites which Picklebet in its sole discretion considers to be Unsuitable Websites;

(iv)            do not contain or link to any material which Picklebet in its sole discretion considers to be Objectionable Content;

(v)             do not breach Picklebet’s Responsible Gambling Policy and responsible gambling requirements, in particular by ensuring to the fullest extent possible that they are not directed at or accessible by individuals who are under 18 years of age or who are known to be problem gamblers;

(vi)            do not breach the Intellectual Property or personal rights of Picklebet or any third party;

(vii)           only reflect positively upon the reputation of Picklebet and the Picklebet Brand;

(viii)         comply with the terms, conditions, guidelines, and policies of any third-party services it utilises as an affiliate in connection with the Program, including but in no way limited to, email providers, social networking services and ad networks; and

(ix)            in the case of social media activities, clearly identify all advertisements and marketing communications as such and reference both Picklebet and the Partner;

(f)              provide Picklebet, at the Partner’s cost, with all data and information reasonably required by Picklebet to enable it to monitor compliance with this Agreement;

(g)            ensure that the correct tracking is utilised on the websites operated by or on behalf of the Partner, including any click and impression tracker. Picklebet will not charge the Partner tracking for referrals which have incorrect or incomplete tracking;

(h)             only use the Data Feed in accordance with this Agreement and not make available the Data Feed to any third party without Picklebet’s written consent;

(i)              notify Picklebet, in writing, if the Partner becomes aware of any matter, fact or circumstance that is likely to put Picklebet in breach of any law or regulation, or result in a breach of this Agreement by either party, or which may prejudice the security or integrity of the Picklebet Website or Picklebet Brand, as soon as reasonably practicable after becoming aware of the matter;

(j)              provide all assistance to Picklebet if required and at the Partner’s cost to meet legal, regulatory or licence requirements or conditions where this assistance is needed in relation to the Partner failing to comply with this Agreement;

(k)             bear all costs and expenses incurred in connection with its activities under this Agreement, including any complaints or enquiries of potential Customers;

(l)              follow all directions made by Picklebet relevant to the Partner’s performance under this Agreement. This includes, if requested by Picklebet, ceasing any conduct, including any form or method of advertising and marketing, relevant or related to the Partner’s performance of its obligations under this Agreement;

(m)           cooperate fully with Picklebet in utilising and maintaining links and other promotional tools as supplied by Picklebet;

(n)             comply with all:

(x)             obligations, requirements, and restrictions under this Agreement; and

(xi)            applicable laws, including as they relate to Picklebet’s and the Partner’s respective businesses, the Partner’s media or use of the links to the Picklebet Website;

(o)            always prominently post and make available to end-users, including prior to the collection of any personally identifiable information, a privacy policy in compliance with all applicable laws that clearly and thoroughly discloses all information collection, use and sharing practices, including providing for the collection of such personally identifiable information in connection with the Affiliate Program and the provision of such personally identifiable information to Picklebet for use as intended by Picklebet;

(p)            ensure that any pop-ups/unders used for the Program are clearly identified as Picklebet material in the title bar of the window and any client-side ad serving software used by Picklebet will only be installed on an end-user’s computer or mobile device if:

(xii)           the function of the software is clearly disclosed to end-users prior to installation;

(xiii)         the installation is pursuant to an affirmatively accepted and plain-English end-user licence agreement; and

(xiv)         the software may be easily removed according to generally accepted methods;

(q)            always prominently post and make available to end-users any terms and conditions in connection with the Offer set forth by Picklebet, or as required by applicable laws regarding such Offers; and

(r)              ensure that all employees, contractors, agents, and representatives of the Partner comply with all of the Partner’s obligations (as applicable) under this Agreement, and do not do anything which would result in the Partner being in breach of those obligations.

5.2            The Partner must not:

(a)             engage in any Prohibited Activity;

(b)            hold itself out as Picklebet, or represent that any of its communications are made by or on behalf of Picklebet;

(c)             make any representations, warranties or other statements concerning Picklebet, the Partner, or any of their respective products or services as expressly authorised in this Agreement;

(d)            conduct itself in any way which brings or could bring Picklebet, its related entities, their respective directors, officers, employees, agents, or contractors, or the reputation of any such persons, into disrepute;

(e)             make representations about Picklebet that are untrue, misleading or deceptive or that Picklebet have directed not to be made;

(f)              engage in misleading marketing, including online, or any misleading and deceptive conduct in relation to any of its activities connected with this Agreement as defined under Australian Consumer Law;

(g)            place Picklebet ads on any online auction platform (ie. eBay, Amazon, etc.);

(h)             operate more than one Partner account without prior written consent from Picklebet;

(i)              trade as, or be associated with a third-party investment business or company which offers investment services on esports;

(j)              place any wager for or on behalf of or in any way connected with any Customer referred by them to Picklebet;

(k)             allow itself, or permit the Partner’s direct relatives (including but not limited to their spouse, partner, parent, child or sibling) or any connected party on behalf of the Partner (whether a director, contractor, partner, agent, employee or otherwise) to become a Customer for the purposes of this Agreement, and the Partner will not be entitled to any payment from Picklebet under this Agreement in relation to such persons;

(l)              establish or launch any app, social network domain, blog domain, profile name or display name or purchase any domains, or bid on any keywords or keyword phrases with any site, URL, directory name or search engine that include, but are not limited to, “Picklebet” including “pickle” with “bet”, the Website, or any name that is substantially identical or deceptively similar to any of Picklebet’s Intellectual Property Rights;

(m)           create, publish, distribute, or permit any written material including terminology, imagery and disclaimers that makes reference to Picklebet other than Picklebet Approved Materials;

(n)             alter, remove or replace any part of the Picklebet Approved Materials without Picklebet’s prior consent;

(o)            outside of the Picklebet Approved Materials and Data Feed, post or serve any advertisements or content promoting the Website or otherwise around or in conjunction with the display of the Website (for example through any pop-up windows or pop-under windows or “framing” technique or technology) or assist, authorise, or encourage any third party to take any such action;  

(p)            solicit, entice, incentivise, or otherwise encourage any Customer to cease betting with Picklebet and/or join another bookmaker; or

(q)            utilise any third-party affiliate in relation to this Agreement.

6.             Representations and Warranties

6.1            The Partner represents and warrants that:

(a)             it has independently evaluated the desirability of participating in the Program and that in entering into this Agreement it is not relying on any representation, guarantee or statement from Picklebet, any related entity of Picklebet or their respective directors, officers, employees, agents, or contractors;

(b)            this Agreement constitutes a legal, valid and binding obligation, enforceable against the Partner;

(c)             the partner has the authority to enter into this Agreement and that by doing so the Partner is not directly or indirectly allowing any of its employees, contractors, agents, and representatives to breach any restraint of trade or other similar employment-related obligation that they may owe to any third-party, including their employers immediately prior to entry into this Agreement; and

(d)            throughout the Term of the Agreement, it will not use any aliases or other means to mask its true identity or contact information.

6.2            Picklebet represents and warrants that:

(a)             This Agreement constitutes a legal, valid, and binding obligation, enforceable against Picklebet; and

(b)            Picklebet has the authority to enter into this Agreement.

7.              Audit

7.1            The Partner will allow Picklebet and its reputable third-party auditors to conduct an audit of the activities and records of the Partner and permit Picklebet to take copies of such records order to confirm that the Partner is complying with all of its obligations under this Agreement. 

7.2            An audit may be conducted after Picklebet provides the Partner with written notice no sooner than 30 business days in advance and during business hours. An audit will be conducted no more than once during each year of the Term.

8.             Payment

8.1            Subject to this clause 8, Picklebet must pay the Partner monthly in arrears a commission equal to the applicable percentage of commission, which is specified in the Partner Package, or as otherwise agreed in writing between the parties derived from Customer transactions made during the Term.

8.2            Partner must issue Picklebet with a tax invoice for any commission due to the Partner within 10 days of receipt of the Activity Report for that period.

8.3            Picklebet will not be obliged to pay any commission in relation to any Customer or Net Revenue which is attributable to or derived from:

(a)             any Prohibited Activity or other breach of this Agreement; 

(b)            transactions made by a Customer where incorrect or incomplete tracking information has been supplied for the Customer;

(c)             transactions made by a Customer in breach of Picklebet’s terms and conditions of use (located at https://help.picklebet.com/hc/en-us/articles/115009926727-Terms-and-Conditions);

(d)            transactions made by a Customer who is being investigated in relation to their credit card use, bank information or address verification (until the investigation is completed and the Customer has been cleared of any breach); or

(e)             transactions made by a Customer who has been banned by Picklebet for any reason including fraud, suspected fraud or breach of Picklebet’s terms and conditions or was otherwise ineligible to make those transactions;

and if any commission has already been paid in relation to that Customer or Net Revenue, it may be set-off against any future payments which might otherwise be due to the Partner.

8.4            All commission payments will be calculated by Picklebet, acting reasonably and in good faith, based on data in the relevant Activity Report or such other data as determined in accordance with section 4.6 above. In the event that Picklebet disputes an invoice:

(a)             Picklebet will notify the Partner of the discrepancy and provide the Partner with its calculation of the relevant commission payment;

(b)            The parties must act in good faith and use all reasonable endeavours to resolve the dispute within ten (10) days of Picklebet notifying the Partner of the discrepancy; and

(c)             if the parties are unable to agree on the relevant commission payment amount, Picklebet’s calculation of the commission payments will be final and, if necessary, the Partner will issue an adjustment note to Picklebet within five (5) days of the relevant adjustment.

8.5            Commission payable for each calendar month will be processed within 30 days of receipt of an undisputed invoice. If the commission for a given month is less than $100 AUD, then payment will be held over to the following month until the total commission payable exceeds $100 AUD.

8.6            In the event that a commission payment amount in any calendar month is a negative amount, Picklebet will be entitled but not obliged to zero the negative balance that would otherwise be carried forward.

8.7            Picklebet will make commission payments to the Partner using the payment details provided by the Partner. If these details are inaccurate or incomplete, Picklebet will make reasonable efforts for six months to contact the Partner via the contact details last provided to obtain alternative payment details. If, following that period, Picklebet is still not in a position to make the payments, it may close or suspend the Partner’s account without further notice and the Partner is deemed to have forfeited any entitlement to payment.

9.             Taxes

9.1            Except as expressly set out in this clause 9, payments made under this Agreement are inclusive of all taxes, and the Partner will not be entitled to any additional payment from Picklebet on account of any liability for taxes incurred in connection with this Agreement.

9.2            If one party (supplying party) makes a taxable supply and the consideration for that supply does not expressly include GST, the party that is liable to provide the GST-exclusive consideration (receiving party) must also pay an amount (GST amount) equal to the GST payable in respect of that supply.

9.3            Subject to first receiving a tax invoice or adjustment note as appropriate, the receiving party must pay the GST amount when it is liable to provide the GST-exclusive consideration.

10.         Intellectual Property

10.1         Except as set out in this clause 10, this Agreement does not transfer ownership of, or otherwise grant any rights in or to, any Intellectual Property Rights of either party.

10.2         Picklebet grants to the Partner a royalty free, non-exclusive, non-transferable and revocable license during the Term to use Picklebet’s trade marks and branding to the extent authorised under this Agreement, for the sole purpose of fulfilling the Partner’s responsibilities under this Agreement.

10.3         The Partner may not alter, modify, manipulate, or create derivative works of the links or any Picklebet graphics, creative, copy or other materials owned by, or licensed to, Picklebet in any way.

10.4         The Partner is only entitled to use the links to the extent provided in this Agreement, Picklebet may revoke this at any time by giving the Partner reasonable written notice.

10.5         Except as expressly stated in this Agreement, nothing in this Agreement is intended to grant the Partner any rights to any of Picklebet’s Intellectual Property.

10.6         The Partner agrees that Picklebet may use any suggestion, comment, or recommendation the Partner chooses to provide to Picklebet without compensation. All rights not expressly granted in this Agreement are reserved by Picklebet.

10.7         The Partner agrees that it will not purchase, acquire, licence, register, seek to register or use any domain names, business names, company names, graphics, creative, copy, trade marks or other Intellectual Property that are substantially identical with or deceptively similar to any of Picklebet’s trade marks, domain names, graphics, creative, copy, identifiers or other Intellectual Property associated with Picklebet.

10.8         The Partner must not 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 (eg. part of the Google Ads program) that are substantially identical with or deceptively similar to any of Picklebet’s trade marks, domain names, graphics, creative, copy, identifiers or other Intellectual Property.

10.9         The Partner must not use any URL or domain name containing any of Picklebet’s trade marks and/or other Intellectual Property for purposes of search engine optimisation (SEO).

11.         Rights and Remedies

11.1         In addition to any other rights and remedies available to Picklebet under this Agreement, Picklebet reserves the right to delete any actions submitted through Picklebet’s links and withhold and freeze any unpaid commissions or charge back any such paid amounts to the Partner’s account if:

(a)             Picklebet determines that the Partner has breached this Agreement;

(b)            Picklebet receives any complaints about the Partner’s participation in the Affiliate Program which Picklebet reasonably believes is in breach of this Agreement; or

(c)             any Qualified Action is later determined to have not met the requirements set forth in this Agreement.

11.2         Any withholding or freezing of commissions by Picklebet, or charge backs for such paid amounts, shall be without regard as to whether such amounts were earned as a result of such breach.

11.3         In the event of a breach of this Agreement, Picklebet reserves the right to disclose the Partner’s identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly impacted or damaged by the Partner’s actions, including as a result of suffering any loss.

12.         Anti-Spam Policy

12.1         Partner must complywith the Spam Act 2003 (Cth) (SPAM Act) and, without limiting the generality of the foregoing, all emails sent in connection with the Affiliate Program must include the appropriate party’s opt-out link.

12.2         Picklebet may request prior approval

(a)             From time to time, Picklebet may, prior to the Partner sending emails containing linking or referencing the Affiliate Program, request that the Partner submit the final version of its email to Picklebet for approval, by sending it to the relevant Picklebet representative, and upon receiving written approval from Picklebet of that email, the email may then be transmitted to the relevant third parties.

(b)            It is solely the Partner’s obligation to ensure that the email complies with the SPAM Act. The Partner acknowledges and agrees not to rely on Picklebet’s approval of its email as confirmation that the email complies with the SPAM Act, or assert any claim that Affiliate is in compliance with the SPAM Act based upon Picklebet’s approval.

13.         Privacy Obligations

13.1         If, as a result of this Agreement, the Partner is able to access any Personal Information about identifiable individuals, then the Partner must:

(a)             strictly comply with all applicable provisions of the Privacy Act 1998 (Privacy Act) which concern or regulate the collection, storage, security, use and disclosure of Personal Information;

(b)            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 of the Partner have access to it;

(c)             not transfer such information outside Australia, or allow any third party outside Australia to have access to it;

(d)            immediately notify Picklebet when the Partner becomes aware of any breach of this clause by the Partner or any of its representatives, employees, or officers; and

(e)             take all reasonable steps to ensure that Personal Information provided to the Partner in connection with this Agreement is accurately recorded.

14.         Fraud and Other Prohibited Actions

14.1         The Partner is expressly prohibited from using any persons, means, devices or arrangements to:

(a)             commit fraud;

(b)            violate any Applicable Law;

(c)             interfere with any other affiliates Picklebet may have;

(d)            falsify information in connection with referrals, including through the links or the generation of commissions; or

(e)             exceed its permitted access to the Picklebet Program.

14.2         Examples of acts which will be regarded by Picklebet as breaching clause 14.1 include, but are in no way limited to, using automated means to increase the number of clicks through the links or completion of any required information, using spyware, using stealware, cookie-stuffing and other deceptive acts or click-fraud. Picklebet shall make all determinations about fraudulent activity in its sole and absolute discretion.

15.         Disclaimer

15.1         The Affiliate Program and links, and the products and services provided in connection with such, are provided to the Partner on an “as is” basis.

15.2         Except as expressly set out in this Agreement, Picklebet expressly disclaims all warranties, express, implied, or statutory, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, and non-infringement, and any warranties arising out of course of dealing, usage, or trade.

15.3         Picklebet does not warrant that the Affiliate Program or links will meet the Partner’s specific requirements or that the operation of the Affiliate Program or links will be completely error-free or uninterrupted.

15.4         Picklebet expressly disclaims any liability for any act or omission of the Partner or its products or services. Picklebet does not guarantee that the Partner will earn any specific amount of commission.

16.         Indemnity

16.1         The Partner agrees to indemnify, defend, and hold harmless Picklebet, its related entities and their respective affiliates, partners and licensors, directors, officers, employees, owners, agents and contractors (together, the Indemnified Parties) against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including legal fees and costs on a full indemnity basis) based on:

(a)             any failure or breach of this Agreement by the Partner, including any representation, warranty, covenant, restriction or obligation made by the Partner (including in relation to clause 6.1);

(b)            any misuse by the Partner, or by a party under the control of the Partner or obtaining access through the Partner, of the links, offers or Picklebet Intellectual Property; or

(c)             any claim related to the Partner’s media, including but not limited to, the content contained on such media (except for the links).

17.         Confidentiality

17.1         Each party must:

(a)             keep confidential all information (written or oral) concerning the business and affairs of the other that it has obtained or received as a result of discussions leading up to or the entering into or performance of this Agreement, including the terms and conditions of this Agreement and any information relating to pricing – but not including any information that is public knowledge (other than by breach of this Agreement), information already known to a party or information independently created by a party (Confidential Information);

(b)            use the Confidential Information solely for the implementation of this Agreement and not for the benefit of any third party;

(c)             not, without the other party’s written consent, disclose the Confidential Information in whole or in part to any other person except: 

(xv)           employees involved in the implementation of this Agreement who have a need to know and who are obligated to keep such information strictly confidential;

(xvi)         professional advisers, who are obligated to keep such information strictly confidential; and

(xvii)        where required by law to do so and when so required only to the extent necessary while preserving as much Confidential Information as is legally and reasonably possible.

17.2         If requested by Picklebet, the Partner must ensure that those of its personnel who have access to any of Picklebet’s Confidential Information sign a non-disclosure agreement in a form acceptable to Picklebet.

18.         Liability

18.1         To the fullest extent permitted by law Picklebet (and its subsidiaries, affiliates, licensors, service providers and any other related personnel) are not liable whether in contract, tort (including negligence),  statute or any other cause of action, even if such loss or damage is foreseeable and whether or not Picklebet has been advised of or should have been aware of the possibility of such, for any loss or damage which may be incurred by the Partner in connection with:

(a)             the Partner’s participation in the Program;

(b)            any changes which Picklebet may make to the Program;

(c)             any unavailability or inoperability of the links, Program Websites, technical malfunction, computer error, corruption or loss of information, or other injury, damage or disruption of any kind beyond the reasonable control of Picklebet;

(d)            any indirect, incidental, consequential, personal injury / wrongful death, special or exemplary damages, including but not limited to loss of profits or loss of business opportunity;

(e)             any permanent or temporary cessation in the provision of the Program (or any features within the Program); or

(f)              for any payment to any Customer or the Partner where:

(xviii)       any new Customer does not register a Betting Account;

(xix)          any new Customer fails to satisfy Picklebet’s customer identification and verification requirements;

(xx)           Picklebet suspends or terminates the Betting Account of a Customer (except in relation to the payment of the commission that is due and payable up to and including the date of suspension or termination of the Betting Account); or

(xxi)          a Customer closes their Betting Account, or Picklebet closes their Betting Account at their request (except in relation to the payment of the commission that is due and payable up to and including the date of suspension or termination of the Betting Account),

1.1            except to the extent such loss or damage is caused by an act of fraud or wilful misconduct by Picklebet.

18.2         The Partner indemnifies Picklebet (and its subsidiaries affiliates, licensors, service providers and other related personnel) against any and all losses, demands, claims, damages, costs, expenses (including legal costs and expenses) and liabilities (Loss) suffered or incurred by Picklebet in consequence of any breach of this Agreement by the Partner, except to the extent that any act or omission by Picklebet contributed to that Loss.

18.3         Picklebet will take reasonable steps to mitigate the amount of any such Loss. An amount payable by the Partner under this indemnity must be paid within 14 days of a demand by Picklebet.

18.4         Notwithstanding clause 18.1, Picklebet’s cumulative liability to the Partner from all causes of action and all theories of liability, will be limited to and will not exceed the amounts paid to the Partner by Picklebet in commissions during the one-month period immediately prior to such claim.

19.         Non-circumvention of Customers and suppliers

19.1         The Partner covenants that they will not, without the prior written permission of Picklebet, either directly or through any intermediary, establish or negotiate to establish any business relationship with a Customer, or a supplier to Picklebet, other than in the course of, and for the sole purpose of, the Partner performing its obligations under this Agreement.

19.2         The Partner acknowledges that damages may be inadequate compensation for breach of this Agreement and, subject to the court’s decision, Picklebet may restrain, by an injunction or similar remedy, any conduct or threatened conduct of the Partner which is or will be a breach of this Agreement.

20.         Restraint

20.1         In this clause 20, the terms “Restraint Area” and “Restraint Period” have the following meaning set out in sub-clauses 20.3 and 20.4 respectively.

20.2         Prohibited conduct

1.2            The Partner represents and warrants that it will not without the prior written consent of Picklebet during the Restraint Period and in the Restraint Area:

(a)             canvass, solicit, interfere with or entice away any person who was a Customer with whom the Partner had contact with or access to Confidential Information or otherwise sensitive information about within the 12 months immediately preceding the termination of the Term;

(b)            as applicable, be employed by, engage in, be involved in, or be associated in any way with any person, firm, company or business that:

(xxii)        provides the same or substantially similar services as Picklebet; and

(xxiii)       competes with the business of Picklebet;

(c)             solicit or endeavour to obtain the services of any person who is an employee, consultant, or contractor of Picklebet:

(xxiv)       at the end of the Term; or

(xxv)        at any time within six months before the expiration of the Term;

(d)            as applicable, be employed by, engaged by, involved in and/or associated with any Customer which the Partner had contact with or had access to Confidential Information or otherwise sensitive information about during the 12 months immediately preceding the termination of the Term and who was a Customer at any time during the 12 months immediately preceding the termination of the Term; and/or

(e)             as applicable, be employed by, engaged by, involved in and/or associated with any supplier to Picklebet or a related body corporate or entity which the Partner had contact with or had access to Confidential Information or otherwise sensitive information about during the 12 months immediately preceding the termination of the Term and who was a supplier at any time during the 12 months immediately preceding the termination of the Term; and/or

(f)              counsel, procure or otherwise assist any person to do any of the acts referred to in sub clauses 20.2(a) to 20.2(e).

20.3         “Restraint Area” means:

(a)             Australia;

(b)            Each State and/or Territory within Australia;

(c)             New South Wales, Victoria and Queensland;

(d)            New South Wales;

(e)             Within a 100km radius of Sydney, Melbourne and Brisbane; and

(f)              Within a 50 km radius of Sydney, Melbourne and Brisbane.

20.4         “Restraint Period” means during the Term and for a further period of:

(a)             12 months; and

(b)            6 months.

20.5         Each restraint separate

(a)             Clauses 20.2, 20.3 and 20.4 will be construed and have effect as if they are a number of separate sub-clauses which result from combining each of the sub-clauses of clause 20.2 with each sub-clause of clause 20.3 and each sub-clause of clause 20.4.

(b)            Each restraint, covenant and combination of restraint and covenant contained in this Agreement is regarded as separate, distinct and severable so that the unenforceability of any restraint or covenant or combination of any restraint or covenant will in no way affect the enforceability of the other restraints or covenants.

20.6         Covenants fair and reasonable

1.3            The Partner acknowledges that the covenants in respect of the restraint of trade contained in this clause 20 are fair and reasonable and that Picklebet is relying upon this acknowledgement in entering into this Agreement.

21.         General

21.1         Costs and expenses of enforcement

(a)             Each party will bear its own legal and other costs and expenses in respect of the preparation, review, and execution of this Agreement.

(b)            The Partner agrees that it is responsible and liable for the payment of all lawyer’s fees and expenses incurred by Picklebet to enforce the terms of this Agreement if the Partner interferes with the fulfillment of this Agreement.

21.2         Entire agreement

(a)             This Agreement including the Partner Package contains the entire agreement and understanding between Picklebet and the Partner and supersedes all prior and/or contemporaneous agreements or understandings, written or oral.

(b)            The Partner agrees that Picklebet shall not be subject to or bound by any insertion, order or online terms and conditions created by the Partner that amend, conflict with, or supplement this Agreement, regardless of whether Picklebet “clicks through” or otherwise indicates its acceptance of such.

21.3         No assignment

(a)             The Partner may not assign all or any part of this Agreement without Picklebet’s prior written consent (which may be withheld in its absolute discretion).

(b)            Picklebet may assign this Agreement at any time, giving the Partner prior written notice of its intention to assign. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors, and valid assigns of the parties to this Agreement.

21.4         Picklebet may make changes

(a)             Picklebet may make changes to this Agreement from time to time by providing notice on the Program Website. Any changes published on the Program Website will be taken to be in effect from the time they are published.

(b)            The latest modification of this Agreement will be as per the date stated at the top of this Agreement. If the Partner does not agree to any variation to this Agreement, it may terminate this Agreement in accordance with clause 3.2.

21.5         No waiver and prior dealings

No course of dealing nor any delay in exercising any rights by either party under this Agreement shall operate as a waiver of any such rights and those rights and remedies shall remain available to either party.

21.6         Relationship of Parties

Picklebet and the Partner are independent contractors, and no terms in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.

21.7         Severability

Any term or part of a term of this Agreement that is held invalid or unenforceable may be severed from this Agreement and the remaining terms or parts of the terms of this Agreement continue in force.

21.8         Jurisdiction

This Agreement will be governed by and construed in accordance with the laws of Queensland, Australia, and each party unconditionally and irrevocably submits to the exclusive jurisdiction of the courts of Queensland and any courts which have jurisdiction to hear appeals from Queensland courts. Each party waives any right to object to any proceedings being brought in any relevant courts.

22.         Interpretation

22.1         In this Agreement unless the contrary intention appears:

(a)             a reference to an agreement or another instrument includes any variation or replacement of either of them;

(b)            a reference to an annexure or schedule is a reference to an annexure or schedule to this Agreement and a reference to this Agreement includes a recital, annexure or schedule;

(c)             a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(d)            the word “person” includes a firm, body corporate, unincorporated association or an authority;

(e)             a reference to a person includes the person's executors, administrators, successors, substitutes (including, without limitation, persons taking by novation) and assigns;

(f)              all dollar amounts are expressed in Australian dollars;

(g)            if the day on which the payment of money falls due is not a Business Day, the due date will be deemed to be the next Business Day;

(h)             an agreement, representation, or warranty on the part of or in favour of two or more persons binds or is for the benefit of them jointly and severally; and

(i)              GST terms used in this Agreement that are not defined and that are defined in the GST Law have the meaning given in the GST Law, unless the context makes it clear that a different meaning is intended.

22.2         Headings are included for convenience and do not affect the interpretation of this Agreement.

22.3         Any reference in this Agreement to writing or similar terms includes a reference to email and comparable means of communication.

22.4         In this Agreement the words “includes”, “including”, “for example” and similar words and phrases are not to be interpreted as words of limitation.

22.5         Definitions

The following definitions apply in this Agreement unless context requires otherwise.

Agreement means this agreement including any schedules and attachments to this agreement.

Assessment Period means a period of 90 days commencing on notice by Picklebet.

Australian Governing Sporting Body means an Australian sports organisation that has a regulatory or sanctioning function and includes each of the Australian State and Territory Thoroughbred Racing, Harness Racing and Greyhound Racing peak bodies, National Rugby League, Australian Rugby Union, Australian Football League, Cricket Australia, Tennis Australia, Soccer Australia, and National Basketball League.

Customer means an individual customer who enters the Website via a Partner link (using the tracking code designated to the Partner) and who successfully registers a betting account and places at least one bet with Picklebet. When opening an account with Picklebet, the Customer must agree to Picklebet’s rules, policies and operating procedures. A Customer does not include any person that is at the time of registration an existing Picklebet account holder or has previously been a Picklebet account holder.

Data Feed means anything published on the Website which relates specifically to the market or event, including odds and corresponding event names and descriptions which is made available to the Partner in accordance with this Agreement.

Intellectual Property Rights includes all patents, rights to inventions, utility models, Copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Net Revenue means all gross monies received by Picklebet from Customers during the Term less all of the following:

(a)             monies paid out to Customers as winnings;

(b)            GST on winnings;

(c)             tax on turnover;

(d)            monies paid in the form of duties, taxes or levies or other statutory deductions or payments to licensing authorities in the form of “product fees” (eg. Racing Victoria Limited) or Australian Governing Sporting Body;

(e)             monies paid in the form of duties, taxes or levies or other statutory deductions or payments to government authorities in the form of a “point of consumption tax”;

(f)              charges levied by electronic payment or credit card organisations;

(g)            monies attributable to fraud;

(h)             returned bets;

(i)              customer verification fees;

(j)              administration fees; and

(k)             bonus bet winnings, bonuses or other incentives offered to the Customer.

Partner Approval Process means the approval process specified by Picklebet for the Program, which may amongst other things require the Partner to provide:

(a)             evidence of web analytics and unique reach of any website or social media account operated by or on behalf of the Partner;

(b)            comprehensive marketing strategy and SEO plans;

(c)             evidence of all listed domains and relevant networks held by the Partner;

(d)            a business model which aligns with Picklebet’s business model; and

(e)             relevant content on the any website or social media account operated by or on behalf of the Partner which attracts valuable Customers.

Partner Package means the partner package detailing the commission payments and other special conditions in the form substantially similar to the template provided in Schedule 1.

Program Website means the website notified by Picklebet where Picklebet makes available information about the Program.

Prohibited Activity means:

(a)             marketing or promoting any website within or to persons from any Restricted Territories;

(b)            involvement in any traffic coming to the Website from any Restricted Territories;

(c)             allowing, assisting or encouraging circumvention of any restriction put in place by Picklebet and/or any website in connection with Restricted Territories; or

(d)            breach of any applicable:

(xxvi)       anti-spam, direct marketing, or marketing communications law;

(xxvii)      anti-money laundering law or regulation; or

(xxviii)     gambling or sports law or regulation, or policy of any Australian Governing Sporting Body.

Restricted Territories include the territories indicated in Picklebet’s Terms and Conditions, which may be changed from time to time.

Picklebet Approved Materials means any content, images, banners, links, data, branding or Intellectual Property Rights which Picklebet provides to the Partner or otherwise approves for use in accordance with this Agreement.

Unsuitable Website means a website which Picklebet considers in its discretion is not suitable for association with the Program, including websites that:

(a)             infringe Intellectual Property Rights or violate other rights of Picklebet or any third parties;

(b)            could be fraudulent, click spam, click farms or fake sites, or show evidence of invalid traffic, hidden ads, bots, crawlers, or malicious code;

(c)             contain sexually explicit, violent, hateful, or otherwise offensive or illegal activities or materials; or

(d)            engage in Prohibited Activity;

(e)             promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;

(f)              are or contain pages that are targeted at any person under 18 years of age or target Customers from Restricted Territories; or

(g)            are otherwise considered by Picklebet in its discretion to be offensive or  inappropriate.

Website means www.Picklebet.com, www.picklebet.com.au and any pages or websites under the Picklebet brand and any Picklebet mobile phone or tablet applications that are owned and/or operated by Picklebet.

EXECUTED as an agreement.

[Choose the most appropriate Partner execution clause below, delete the rest.

OPTIONS:

• Australian company – 2 directors OR director + company secretary

• Australian company – sole director

• Foreign company

• Individual]

[Partner – Australian company – two directors/co sec]

Partner – Australian company – sole director]

[Partner – Foreign company]

[Partner – Individual]