Terms and Conditions
MARKETING SERVICES AGREEMENT
BY AND BETWEEN
Party of the first part, LUCKIA GAMES, S.A., (“LUCKIA”) with registered office at 3, Real Street, A Offices, 51001, Ceuta (Spain) (Spain) and tax code A-70301817, the corporate purpose of which includes the organisation and operation of online games. appendix.
Party of the second part, the PROVIDER, a natural or legal person with sufficient capacity to enter into this Agreement (the “Agreement”), who has previously completed the provider services form, and who is interested in publicising the Site(s) (as defined below) For this purpose, it has the necessary resources, including the ownership and management of websites or similar formats, and receives the fee which is later established for the operations carried out by users redirected by the PROVIDER from its website or format similar to the Sites.
Based on the above, LUCKIA and the PROVIDER agree to be bound by the following provisions, notwithstanding the demands derived from applicable regulations. If both parties were to reach private agreements of an individual nature in their relationship, these agreements shall prevail over the terms and conditions provided in this Agreement whenever they may be incompatible. In addition, if the PROVIDER is operating in:
- Spain, the terms in Appendix A,
- Portugal, the terms in Appendix B,
- Colombia and Mexico, the terms in Appendix C
are included and incorporated into the Agreement (such country-specific terms being the "Specific Terms")
"Company": means LUCKIA GAMES S.A. and any of its direct or indirect subsidiaries from time to time (including but not limited to: Luckia Entertainment Ltd., Luckia Portugal S.A., and Luckia Colombia S.A.S.),
"LUCKIA Site(s)” or “Site(s)": Any LUCKIA operated website, including any website operated by any Company (including but not limited to: www.luckia.es, www.luckia.pt, , www.luckia.co), in connection with which LUCKIA makes Marketing Materials available to PATRNERS for the purpose of the PROVIDER performing affiliate marketing services in accordance with this Agreement.
"Specific Terms": means the terms specific to the jurisdiction(s) in which the PROVIDER operates at Appendices A, B, and C or as may be published by LUCKIA from time to time;
"PROVIDER Site (s)": means PROVIDER´s owned and/or controlled website(s), mobile app(s) and/or any other marketing channel used by PROVIDER to direct traffic to LUCKIA Site(s) as approved by LUCKIA;
"Applicable Law" means any: (a) statute, statutory instrument, bye law, order, directive, treaty, decree or law (including any common law, judgment, demand, order or decision of any court, regulator or tribunal), including all consumer laws; (b) rule, policy, guidance or recommendation issued by any governmental, statutory or regulatory body; and/or (c) industry code of conduct or guideline, in any case which apply to us and/or to you and/or which relate to the services provided under this Agreement;
"LUCKIA’s Responsible Gaming Policy"LUCKIA’s responsible gaming policy which current version can be found at Responsible Gaming link in LUCKIA´s Sites and LUCKIA may amend from time to time.
"Promotional Messaging": means graphical artwork or text regarding specific promotion campaigns, sent by LUCKIA from time to time for dissemination by the Affiliate by email, telephone call, instant message, SMS or any other method, subject to the recipient’s express and valid consent to receive direct marketing and/or to any other regulations within the applicable jurisdiction.
- OBJECTIVE, NATURE AND PURPOSE OF THE AGREEMENT.
- The PROVIDER shall publicise the Sites with its own resources, indicated above, upon acceptance of the terms, conditions and obligations provided for in this Agreement and whenever it has been expressly accepted as a PROVIDER by LUCKIA.
- The relationship derived from this Agreement and the activity which it entails for each of the parties shall be performed by them independently and autonomously using their own material and human resources. Furthermore, in no case shall the marketing services provision relationship be deemed as employment-related, as a dependency, as an agency, as a joint venture or similar.
- The PROVIDER shall be directly liable for the effects and damages caused to third parties arising from activities covered by this Agreement, with no liability whatsoever being held by LUCKIA. In this regard, PROVIDER shall act at its own risk when providing the services described in this Agreement.
- This Agreement does not include any type of exclusivity in favour of the PROVIDER. It shall be performed directly and may not be transferred or subcontracted. However, the PROVIDER may present sub-providers who, in order to achieve said condition, shall comply with the procedures and requirements required in this Agreement, with particular reference to their explicit acceptance by LUCKIA.
- LUCKIA may transfer the rights and obligations derived from this Agreement to third parties, without this entailing any variation in the rights and obligations of the PROVIDER. In such a case, the PROVIDER authorises LUCKIA to disclose or transfer to the third party any information related to the website, the email address and other non-personal details of the PROVIDER, all as an exception to the stipulations of provision nine.
- The PROVIDER shall refrain from engaging in any activity, whether direct, indirect or in favour of third parties, which enters into competition with LUCKIA or may prejudice its interests.
- The declaration of nullity, termination, invalidity or similar by a competent judicial or arbitration authority of any provision or condition of this Agreement shall not affect the rest of its provisions, which shall remain in force and bind the parties.
- PROVIDER PROCEDURES.
The following circumstances shall be met in order to become a PROVIDER of LUCKIA:
- The PROVIDER shall accept the provisions of this Agreement and complete the provider services form. Both parties agree that clicking on the Send button shall for all intents and purposes imply the acceptance by the party in question of the provisions of this Agreement and the obligations deriving from them.
- The PROVIDER agrees to be bound by the most current version of this Agreement, which LUCKIA may amend from time to time. The most current version of this Agreement will be posted on the LUCKIA affiliates web site https://www.luckia-affiliates.com/ in the Term and Conditions section.
- It is your responsibility to ensure that you are familiar with the most current version of this Agreement, and your continued participation in the LUCKIA´S Affiliate Programme after we post an updated version of this Agreement shall constitute your express agreement to be bound by the updated Agreement. In the event you do not agree with the updated Agreement, your only recourse shall be to terminate your participation in LUCKIA’S Affiliate Programme.
- The PROVIDER shall be accepted by LUCKIA. Prior to this acceptance, LUCKIA may carry out any checks which it deems necessary or appropriate by collecting from the party in question any details, information or documents deemed necessary for that purpose. Acceptance shall be explicitly stated and sent via email. In no case shall there be tacit acceptances.
- The PROVIDER must be of legal age or - in the event of a legal entity - must be constituted as such according to the applicable laws of the country, be a going concern and be duly registered according to said laws, complying with all applicable legislation.
- DURATION AND EFFECTS OF TERMINATION.
- In terms of duration and validity, this Agreement shall be governed by the following rules:
- The Agreement shall enter into force at the same time as the party in question is informed by email about its acceptance as a PROVIDER by LUCKIA
- The duration shall be annual, being automatically renewed for annual periods if neither of the parties communicates its intention not to renew the Agreement prior to the end of the annual period in course, notwithstanding the provisions of the following rules.
- The non-acquisition of new customers by the PROVIDER over a period of 30 consecutive days shall be grounds for the unilateral termination of the Agreement by Luckia.
- Notwithstanding the above, either of the parties may terminate the Agreement at any time without compensation or indemnification, with the sole requirement being the communication of this desire to the other party by email with thirty days' notice. LUCKIA also reserves the right to temporarily suspend or interrupt this Agreement immediately and without notice, either for the period which it freely determines or indefinitely, duly communicating this circumstance to the PROVIDER by the means indicated above or via the website, when any of the circumstances mentioned in the following section occur.
- In any case, LUCKIA may terminate this Agreement or temporarily suspend or interrupt its effectiveness immediately and without notice or compensation if it finds out or suspects that the PROVIDER (a) is using means or methods inappropriate to its function; (b) contravenes industry standards or good customs; (c) is carrying out fraudulent or illegal actions; (d) breaches any obligation or rule derived from this Agreement; (e) provides inaccurate or incomplete details; (f) does not generate a reasonable turnover; or (g) engages in any activity or conduct contrary to the interests, reputation or image of LUCKIA.
- Once this Agreement has been terminated, or temporarily suspended or interrupted, the PROVIDER agrees to stop using the content of LUCKIA, to delete all links to the Sites and to immediately cancel access to the online account. Likewise, the PROVIDER shall delete all links established to LUCKIA and any other material of any kind related to LUCKIA, whether they are names, graphics, logos, identifying images or marketing phrases, and ultimately any material owned by LUCKIA, created by it, provided by it or in any way derived from this Agreement or related to it.
- This Agreement shall not be considered as an agency agreement. For this reason, once the relationship with the PROVIDER has terminated or been suspended, there shall be no entitlement to compensation or indemnification.
4. TFEES AND PAYMENT.
- The PROVIDER shall receive a fee for rendering the marketing services consisting of a percentage on the Net Revenue generated during the previous month by players that PROVIDER directs to the Sites pursuant to this Agreement and, for the avoidance of doubt, this includes those potential customers who become LUCKIA’s customers as a direct result of the PROVIDER's actions, always subject to the following definitions and rules:
- Net Revenue: means the sum total of all of a Player’s bets while playing, less the winnings of a Player, less any credits, bonus or promotional amounts given to a Player, less any chargebacks (including amounts paid as a result of credit card abuse or fraud, or paid to a Player to settle a claim involving the allegation of credit card or other abuse or fraud) or any uncollectible revenue attributable to a Player, less taxes, less admin fees.
- Player: any person related to their tracker who has not previously been a player with LUCKIA, and also
- Meets the customer acceptance criteria established by LUCKIA and has been accepted as such by LUCKIA.
- Meets the requirements as a player stipulated by applicable regulations.
- Has made the minimum deposit indicated below, valid at all times.
- Minimum deposit: initially set at EUR 10, although LUCKIA may modify this amount at any time.
- Tracker: identification code which is used to associate players to a certain PROVIDER, whether via URL links, bonus codes, offline promotions, etc.
- Fee: a percentage calculated on the Net Revenue generated by PROVIDER-registered players. Applicable percentages can be consulted on the website https://www.luckia-affiliates.com/ at every moment. LUCKIA may vary these Commission rates from time to time, in its sole discretion.
- LUCKIA shall be entitled to review fee-generating activities and may retain, thereby waiving payment, any fees accrued in activities of the PROVIDER or the related player if it finds out that said activities have included any type of fraud, unlawfulness or similar conducts. If said fraud, unlawfulness or similar conducts are verified, the fees in question shall be deemed as not accrued, thereby waiving payment.
- LUCKIA shall also be obliged to inform any relevant local authority regarding any fraudulent transactions or suspicion of any fraudulent transaction in terms of Applicable Law.
- In the event of sub-PROVIDERs presented by the PROVIDER and accepted by LUCKIA, the PROVIDER may receive a fee on the terms freely agreed with LUCKIA.
- Luckia reserves the right to unlink Players who are inactive for a period of 6 months from the PROVIDER account.
- The fees shall be calculated and set by LUCKIA in the local currency of the relevant Company as set out in Appendix D below to which the PROVIDER bills. Payment shall be made via bank transfer to the account given by the PROVIDER, notwithstanding the fact that LUCKIA may, at its convenience, use another payment system in the future. Fees shall be set by calendar month and shall be paid within the following calendar month and upon receipt of the invoice issued by the PROVIDER. The PROVIDER must send invoices over 100€ to LUCKIA within a maximum period of three months from the last day of the calendar month in which the fees were earned.
- Fees shall only be paid when a minimum of EUR 100 has been reached by the PROVIDER. If said amount is not reached in a calendar month, any fees shall be added to those of the next calendar month. If they still fail to reach the minimum amount of EUR 100, they shall keep on being added to those of subsequent months, and so on until reaching the minimum amount in a given month, when payment shall be made according to the provisions of the preceding paragraph, i.e. in the following calendar month. No invoices shall be issued until the accumulated fees reach the minimum amount of EUR 100.
- If in a given month the Net Revenue generated by the PROVIDER is a negative amount, that negative amount will be carried to the next month.
- All invoices must be addressed to the relevant company as set out in Appendix D below. If PROVIDER affiliates to several LUCKIA Sites, PROVIDER must invoice to the relevant company separately.
- Net Revenues received in currencies other than euros shall be converted in accordance with our standard currency exchange policy.
- PROVIDERS with residence in the country of the Company (Luckia Portugal, Luckia Colombia, Luckia Mexicanaor Luckia Games) they address the invoice, should issue invoices in the local currency of the Company’s jurisdiction. PROVIDERS which do not reside in the country of the Company will issue their invoices in EUR or USD, at its convenience. LUCKIA will indicate applicable currency exchange rate in each calendar month between local currency and EUR or USD.
4.3 TAX AND OTHER CHARGES
- The PROVIDER is fully responsible for all taxes, fees and other costs incidental to and arising from any payments made to it under this Agreement, including without limitation any processing fees, Fees and Payments. The PROVIDER will indemnify and reimburse LUCKIA for any costs, expenses or losses that may be caused to it as a result of any claim or demand made by any governmental or other authority, with regard to tax withholding obligations or similar obligations to which LUCKIA may be subject in connection with making payments to the PROVIDER. LUCKIA will be entitled to withhold or set-off any such amounts from the payments made to the PROVIDER.
- Payments made by LUCKIA to the PROVIDER shall include VAT or any other applicable tax in LUCKIA country residence.
- If the PROVIDER is VAT registered in a member state of the European Union, it shall provide LUCKIA with a VIES (VAT Information Exchange System) certificate.
- Income tax: LUCKIA will withhold from the invoice issued by the PROVIDER applicable Taxes as far the PROVIDER is obliged to support say Taxes according to the applicable law. If there is an applicable double taxation treaty between the parties, PROVIDER must provide to LUCKIA the relevant tax residence certificates in order to justify the application of reduced tax rates for withholding tax purposes. If PROVIDER does not provide this certificate, LUCKIA will apply tax rate as if PROVIDER were non-resident.
4.4 INFORMATION FOR THE PROVIDER
- The PROVIDER shall have access to the PROVIDERs' platform, where it can view statistics on customers entered, update its profile, create IDs of additional codes and bonus codes, and select banners and/or text links.
- Information and statistics on this platform shall be for information purposes only. LUCKIA shall not be obliged to guarantee the constant update of information and statistics, although it does aim to perform a daily update of the data. Said data may be reviewed and corrected in the event of error.
4.5 PAYMENTS AFTER TERMINATION OF THE AGREEMENT
After the contract has been terminated or temporarily suspended or interrupted, the fee shall be calculated up to the date of the exact termination, suspension or interruption, and an electronic invoice shall be issued for uninvoiced fees up to said date. The final invoice shall be issued in the calendar month following the termination, suspension or interruption and the PROVIDER may issue an electronic invoice for the fees due up to that time. After the end of said calendar month, the PROVIDER may not issue further invoices and shall not be entitled to the payment of any amount, nor shall any other compensation claims be accepted against LUCKIA If the fee does not exceed the minimum amount of EUR 100, the PROVIDER may not claim the amount and the fee shall be cancelled out in the interest of LUCKIA
5. OBLIGATIONS OF THE PROVIDER
- The PROVIDER declares that the information provided to LUCKIA via the application form, as well as any additional information which it may have provided, is a true and fair view of reality and is complete, without containing any omissions or inaccuracies. The PROVIDER shall immediately inform LUCKIA about any changes to the information provided.
- The PROVIDER confirms and agree it has the authority to enter into this Agreement, including but not exclusively confirm that the PROVIDER is of legal age according to applicable law, and in any case not less than of eighteen (18) years of age. LUCKIA reserves the right to request such valid personal identification documents from the PROVIDER that will provide evidence of age; and in the interim, the PROVIDER account may be suspended until satisfactory proof of age is provided to LUCKIA.
- The PROVIDER accepts sole responsibility for determining whether its participation in this MERKETING SERVICES AGREEMENT is legal under any laws or regulatory requirements that apply to the PROVIDER. The PROVIDER understands that LUCKIA do not provide the PROVIDER with any legal recommendation or assurance regarding such legality. It is the PROVIDER who shall remain abreast of all legal and regulatory developments within the jurisdictions it is located or in which (or into which) the PROVIDER conducts marketing activity to ensure that it fully comply with all applicable laws at all times.
- The PROVIDER declares that it is the sole owner of the website, or similar formats, on which it shall insert the advertising of LUCKIA, and that it has no restrictions or restraints on its use in any way. Failing that, it declares that it has authorisation from the owner of the website, or similar formats, to use it as referred to in this agreement.
- The PROVIDER is solely liable for its activities covered by this agreement, which shall be undertaken directly using its own resources, without the possibility to transfer or subcontract them to third parties, thereby holding harmless LUCKIA for said activities.
- The PROVIDER shall be solely liable for ensuring that all material displayed on its website does not infringe any rights of third parties and that it does not exhibit or promote child pornography; illegal sexual acts: violence; racial discrimination; discrimination based on sex, religion, nationality, disability, sexual orientation or physical impairment; political beliefs; commercial material for minors; illegal activities; or any violations of intellectual property rights.
- The PROVIDER, which will provide the marketing services independently and at its own risk, will be solely liable for the content and manner of its marketing and promotional activities related to LUCKIA Sites. All such activities must be conducted at all times in a professional and lawful manner and compliant with the Consumer Protection Legislation and all legislation, regulations and codes of practice (including without limitation relevant advertising codes of practice) within the jurisdiction the PROVIDER is operating from and also the various jurisdictions of the Customers and any related gambling legislation
- The PROVIDER will not market and promote LUCKIA Sites, directly or indirectly, to persons that are less than 18 years of age or such higher age as may apply in the jurisdiction that the PROVIDER targets, or develop or implement marketing and promotion strategies in respect thereof.
- The PROVIDER shall ensure that all the marketing, advertising and promotions thereof is strictly in accordance with any specifications, obligations and/ or limitations in this Agreement, LUCKIA’s Responsible Gaming Policy (which current version you can find at Responsible Gaming link in LUCKIA´s Sites and LUCKIA may amend from time to time), and any Applicable Law. LUCKIA reserves the right to request the PROVIDER to take down any form of use of the marketing material which it deems to be non-compliant with this Agreement or Applicable Law. In case of doubt, PROVIDER should contact us at [email protected]
- The PROVIDER shall notify LUCKIA by email to [email protected] and, where appropriate, shall inform the authorities of its country, about any unauthorised use which it suspects or discovers, or about any breach of security, including the loss, subtraction or unauthorised disclosure of its email address or password. The PROVIDER shall be responsible for maintaining the confidentiality of its email account and password, and for the use and activity of its account, including use by a third party authorised by the PROVIDER.
- The PROVIDER may disclose the promotional content of LUCKIA by mass mailings to its contact lists, avoiding any type of confusion which may identify it with LUCKIA and refraining from using the name of LUCKIA or any other brand of LUCKIA or its business group as its own. In said mailings, it shall refrain from promoting or benefiting third parties or entering into competition with LUCKIA In addition, in all cases and under its exclusive liability, thereby accepting the consequences of non-compliance, it shall comply with the following rules:
- Providing an option to unsubscribe from the mailing list and detailing the steps to ensure this.
- Refraining from sending deals of LUCKIA to minors and to people whose email address has not been voluntarily provided in order to receive promotional information.
- The PROVIDER shall ensure that there is no form of spam in its messages. If any of this were to occur, this Agreement shall be automatically suspended, the commissions pending payment shall be withheld and the PROVIDER shall be liable for all expenses incurred, which shall be subtracted from any unpaid commissions. If this amount were insufficient, said PROVIDER shall be obliged to pay any amount not covered by the retained commissions.
- The PROVIDER shall not enter into direct competition with LUCKIA in advertising spaces of any kind, even though it may have been present in them prior to the validity of this agreement, nor shall it use the same or similar names of LUCKIA, its registered trademarks, or those used by LUCKIA or its corporate group.
- If a PROVIDER generates an excess of traffic exceeding 100,000 clicks per month, it shall be liable for the cost generated by our Affiliate Management platform. Should this occur, LUCKIA shall contact the PROVIDER.
6. ACTIVITIES OF THE PROVIDER.
- The activities of the PROVIDER within the framework of this Agreement shall at all times be governed by good faith, while always adopting the diligence of a reasonable business person. For the provision of the marketing services described in this Agreement, PROVIDER shall perform the services independently, autonomously and at its own risk. In particular, the PROVIDER shall always observe the following rules, which are given by way of illustration rather than limitation:
- If the PROVIDER were to undertake any type of promotions on online paid search engines including the name of LUCKIA or trademarks owned by it or by its business group, in any form, including but not limited to keywords of the campaign, texts, messages and creatives contained in the search results, it shall refrain from including any trademarks owned by LUCKIA or its business group, or which may link to websites or applications which include said trademarks.
- The PROVIDER shall not pay for search engine optimisation if this enters into competition with LUCKIA, even if its optimisation turns out to be prior to the validity of this agreement, with no entitlement to any claims in such an event.
7. THE PROVIDER’S REPRESENTATIONS AND WARRANTIES
Without derogating from, and in addition to, any of the PROVIDER’s other representations, warranties, covenants and obligations contained in this Agreement, the PROVIDER hereby represents and warrants to the LUCKIA the following:
- The execution, delivery and performance by the PROVIDER of this Agreement and the completion by the PROVIDER of the transactions contemplated hereby will not conflict with or violate any provision of law, rule, regulation or Agreement to which the PROVIDER is subject to;
- The PROVIDER is not under the age of either (i) 18, or (ii) the age at which remote gaming activities are legal under the law of the jurisdiction that applies to it, whichever is greater; and the PROVIDER is not a resident of any of the Excluded Territories;
- The PROVIDER is not involved in or does not intend to be involved in or is not aware of any act or traffic that involves its site and that constitutes or can be reasonably expected to constitute Fraud or illegal activity, including but not limited to money laundering, under any applicable law, rule or regulation;
- The PROVIDER shall place Banners and Text Links and or carry out advertising for and on behalf of LUCKIA solely on websites which include content owned or licensed by such website owner and the PROVIDER shall under no circumstances place Banners and Text Links and/or any other form of advertising for or on behalf of the LUCKIA on websites which include content that infringes third party intellectual property rights; and
- By participating in the Programme, the PROVIDER acknowledges that it does not find the LUCKIA’s services to be offensive, objectionable or unfair in any way.
Without limiting any of the LUCKIA’s rights and remedies hereunder or under any applicable laws, the PROVIDER agrees to defend and hold the LUCKIA and its shareholders, directors, officers, employees, agents and other representative harmless, and to immediately indemnify them upon their written demand, against any and all liabilities, losses, damages, costs and expenses, including reasonable legal fees, resulting from, arising out of, or in any way connected with:
- any breach by the PROVIDER of any warranty, representation, or Agreement or clause contained in this Agreement;
- the performance of the PROVIDER’s duties and obligations under this Agreement; and
- any claim or demand by a third party relating to the development, operation, maintenance or content of the PROVIDER’s website, including (for the avoidance of doubt, but without limitation) the content on it, its domain name, metatag or any adword, google-ads or other search engine optimization tool connected to it.
9. NO WARRANTIES
Except as expressly set forth in this agreement, the operator makes no express or implied warranties or representations with respect to the affiliate programme or to any arrangements contemplated by this agreement, including without limitation with regard to their functionality, fitness for a particular purpose, suitability, merchantability, legality or non-infringement. In addition, LUCKIA makes no representation that the operation of the Sites will be uninterrupted or error-free and it will not be liable for the consequences of any interruptions or errors.
10. NO LIABILITY FOR PROMOTED SITES
LUCKIA is not liable in any way, nor does it assume any responsibility for or make any representations or warranties with regard to, any of the Sites, their operations, content or any other aspect related thereto.
11. LIMITATION OF LIABILITY
- Any liability to the PROVIDER arising from this agreement is limited to direct damages only. LUCKIA and any of LUCKIA’s group companies will not be liable for indirect, special, or consequential damage or loss of any kind, including without limitation loss of business, profits, revenue, contracts or anticipated savings, or arising from loss, damage or corruption of any data, even if it has been advised of the possibility of such damages or losses.
- In any event and under any and all circumstances, the LUCKIA’s aggregate and total liability arising with respect to this agreement will not exceed the aggregate of all payments made to the PROVIDER under this agreement over the 12 months preceding the event giving rise to the liability.
- Nothing in this Agreement shall be construed to provide any rights, remedies or benefits to any person or entity not a party to this Agreement.
- Nothing in this Agreement shall serve to limit the LUCKIA’s liability to the PROVIDER for death or personal injury caused by the LUCKIA’s negligence, or for fraud.
- For the avoidance of doubt, in no event shall LUCKIA or LUCKIA´S group shall be responsible for any dispute or claim between the PROVIDER and any customers of the PROVIDER’s website
12. USE OF TRADEMARKS
LUCKIA authorises the PROVIDER to use its trademarks which are linked to this agreement, in compliance with the following rules:
- In no case shall the authorisation be exclusively in favour of the PROVIDER.
- The PROVIDER may not transfer this authorisation to third parties.
- Trademarks shall be exclusively used by the PROVIDER in connection with the display of banners on its website.
- The authorisation for the use of trademarks shall automatically cease upon the termination, interruption or suspension of this agreement.
13. CONFIDENTIALITY AND DATA PROTECTION
13.1. CUSTOMERS DATA
- The PROVIDER acknowledges and agrees that all data relating to the customers shall be and remain LUCKIA’s exclusive property as data controller.
- The PROVIDER will, at all times, take all reasonable precautions to ensure that all user data is sourced, held, used and otherwise processed ethically and in full compliance with all Privacy and Data Protection Requirements. This shall include without limitation the PROVIDER ensuring that the individuals concerned have, where legally required, provided consent, been afforded the opportunity to opt in to receive, and the opportunity to unsubscribe from, any relevant marketing material.
- The PROVIDER accepts and agrees that the PROVIDER shall be solely responsible and liable for selecting the individuals to whom Promotion Messaging will be sent or otherwise communicated, and for ensuring that such activities are carried out in compliance with all applicable Privacy and Data Protection Requirements, including, without limitation, Regulation (EU) 2016/679 (“GDPR”) and Spanish Organic Act 3/2018, dated December 5, on Personal Data Protection and digital rights guarantee), and that the PROVIDER will therefore be the person sending and instigating the sending of all such communications (notwithstanding that they are required to comply with all provisions of this Agreement). It is clarified that any and all data relating to the customers which the customers provide to LUCKIA shall be and remain LUCKIA´s exclusive property.
13.2. DATA PROTECTION AND MARKETING
Without prejudice to any terms set out in this clause 9, the PROVIDER agrees that it shall only send Promotional Messaging to PROVIDER´s marketing customers with LUCKIA´s prior written consent. For the avoidance of doubt, any consent provided by LUCKIA in relation to promotional messaging excludes any consent to send promotional messaging containing solely LUCKIA offers to excluded customers.
- The PROVIDER shall, on notice from LUCKIA, share its database of customers with LUCKIA (via a secure method as notified by LUCKIA to the PROVIDER from time-to-time) prior to sending any direct marketing (the "PROVIDER Customers Database"). The PROVIDER Customers Database will permit LUCKIA to identify any excluded customers who should not receive Promotional Messaging– whether because of objections or whether required in accordance with legal or regulatory obligations. LUCKIA will remove the excluded customers from the PROVIDER Customers and return to the PROVIDER the PROVIDER Customers Database (which for the avoidance of doubt shall be the PROVIDER Customers less the excluded customers). LUCKIA shall only use data provided to it in respect of the PROVIDER Customers Database for the removal of excluded customers from the PROVIDER Customers Database and for no other purpose. The removal of the Excluded Customers following the PROVIDER Customers Database shall not relieve the PROVIDER of any of its obligations under this clause 9. For the purposes of this clause 9.2.1, PROVIDER dully inform and obtain any consents required from the data subjects included in PROVIDER Customers Database in order to share this data with LUCKIA in compliance with applicable Privacy and Data Protection Requirements at all times.
- For the purposes of this clause 9 the terms controller, data subject, personal data, process (and its cognate terms) and processor shall have the meaning given to them in GDPR.
- The PROVIDER acknowledges and agrees that it is a controller in respect of personal data of PROVIDER´s Customers. The PROVIDER acknowledges and agrees that LUCKIA shall be a controller in respect of personal data of Customers. In the event of duplication of data subjects personal data between PROVIDER´s Customers and Customers, the PROVIDER and LUCKIA acknowledge and agree that they shall be acting as independent controllers and not joint controllers in respect of the independent processing of such data subjects' personal data. Furthermore, the PROVIDER acknowledges and agrees that any direct marketing it sends out to PROVIDER´s Customers pursuant to this Agreement and the consents related to the same shall be independent of, and governed separately from, any marketing consents that LUCKIA may have in respect of Customers and LUCKIA 's own marketing of its own services.
- The PROVIDER shall at all times comply with the Data Protection Legislation applicable including, without limitation, ensuring that PROVIDER Customers' personal data: (i) is collected fairly, lawfully and transparently; (ii) is processed in accordance a lawful condition as set out in the GDPR; and (iii) is protected from loss, theft, accidental destruction or unauthorized access by implementing appropriate technical and organization measures in respect of such personal data.
- The PROVIDER warrants that all direct marketing sent to PROVIDER Marketing Customers shall only be done so where such PROVIDER Marketing Customers have given valid consent to receive such marketing communication as required by the Data Protection Legislation. Valid consent shall include data subjects opt-in to such marketing and data subjects being informed that they shall receive marketing relating to LUCKIA (identified preferably specifically or, at the least, by its industry). The PROVIDER warrants that all direct marketing sent to PROVIDER Marketing Customers shall include an opportunity for PROVIDER Marketing Customers to opt-out of all future direct marketing. The PROVIDER warrants that it shall not send direct marketing to any PROVIDER Marketing Customers who have not provided valid consent to receive such marketing or who have unsubscribed to direct marketing.
- The PROVIDER shall notify LUCKIA immediately in the event that it breaches (or suspects that it has breached) any of the warranties in this clause 9.
- Without prejudice to the warranties given in this clause 9, the PROVIDER shall not send any direct marketing or other promotional messaging to any PROVIDER Marketing Customer where it has received instructions from LUCKIA not to send direct marketing – whether pursuant to the removal of Excluded Customers from the PROVIDER Customers Database or otherwise. The PROVIDER shall confirm its compliance with any instructions pursuant to this clause by email to [email protected] , no less than 48 hours after receipt of an instruction from LUCKIA .
- The PROVIDER shall notify LUCKIA immediately in the event that any PROVIDER Customer makes a complaint to the PROVIDER, or where any Competent Data Protection Regulator contacts the PROVIDER, in respect of direct marketing or the PROVIDER's processing of such PROVIDER Customer's personal data, given that the claim is related to direct marketing or promotional messaging of the Sites. PROVIDER shall have collected all relevant consents and have duly informed LUCKIA about the personal data assignment for the purposes described in this clause 9.2.8. and in accordance with applicable data protection laws before sharing any PROVIDER Customer personal data with LUCKIA.
- LUCKIA may, from time to time, request that the PROVIDER provides evidence of its compliance with this clause 9 and PROVIDER shall provide such evidence as LUCKIA may reasonably request within seven days of receipt of such request.
- The PROVIDER shall ensure that all processors acting on its behalf pursuant to this Agreement are bound by contractual terms no less onerous than the standards prescribed by the Data Protection Legislation.
- The PROVIDER shall provide LUCKIA with all such assistance as necessary in respect of data breaches, claims and requests for information made against LUCKIA in respect of any communications sent by the PROVIDER under this Agreement, in particular, any investigations made by a Competent Data Protection Regulator.
- The PROVIDER shall ensure that any communications sent by it or any of its processors are duly tagged to allow tracking in the event that they are forwarded to LUCKIA as part of a complaint.
- The PROVIDER agrees to indemnify LUCKIA and defend LUCKIA at its own expense against all costs, claims, fines, group actions, damages and expenses incurred by LUCKIA or for which LUCKIA may become liable due to any failure by the PROVIDER or its employees, agents subcontractors or processors to comply with any of its obligations under this clause 9 or any failure to comply with Data Protection Legislation. Nothing in this Agreement shall limit the PROVIDER’s liability under this clause 9.
LUCKIA GAMES, SA may at any time amend the terms and conditions of this Agreement and even the requirements for access to the status of PROVIDER, in which case said PROVIDER may withdraw without the right to compensation for any of the parties to this agreement. The amendment of terms and conditions or requirements shall not require the explicit acceptance of the PROVIDER, but it shall be understood, and so agreed by the parties, that the PROVIDER agrees with the amendment by continuing to be a PROVIDER or unambiguously acting as such after finding out about the amendment in question.
15. FORCE MAJEURE
The parties undertake to faithfully and truly comply with the obligations derived from this agreement, with the only exception of there being circumstances of force majeure, including any termination or ruling by an administrative or judicial authority.
16. LEGISLATION AND JURISDICTION
This Agreement shall be governed and construed in accordance with Spanish law. LUCKIA and the PROVIDER shall notwithstanding comply with the laws and regulations of any other jurisdiction in which they operate or in which they perform the transactions contemplated by this Agreement.
Any dispute, controversy or claim deriving from or in conjunction with this Agreement, or a breach, termination or invalidity thereof, shall be exclusively settled by the courts of law of the city of Coruña in Spain. This however, shall not prevent LUCKIA from bringing any action in a Court of any jurisdiction for injunctive or similar relief.
The PROVIDER declares to have read and understood all the provisions, terms and conditions of this Agreement, acting freely and spontaneously and without having been conditioned to consent to it.
For new and existing affiliates for Spain, in addition to all the above clauses, the following Terms & Conditions apply:
- Following the coming into force of the Advertising Decree (Royal Decree 958/2020) on 01 May 2021, the following applies to all PROVIDER marketing to customers in Spain:
- From 1st May 2021 Luckia will only allow to promote through affiliates:
- The Luckia brand or content (i.e. no promotions);
- Promotional activities and commercial communications of promotional activities are not allowed for new or existing customers.
- Marketing of our services to customers in Spain is prohibited unless:
- The websites or mobile apps used are able to prevent access by persons under the age of 18;
- That provides responsible/safer gambling information to visitors/users on a regular basis.
- Commercial communications shall include an ID that categorises them as relating to gambling.
- Commercial communications shall not appear in front of the main content of the page or app in such a way that they block most of such content without the person's prior intervention. In any case, commercial communications may never prevent browsing and must be able to be closed or stopped easily.
- From 1st May 2021 Luckia will only allow to promote through affiliates:
- PROVIDERS shall not promote unlicensed gambling operators.
- All PROVIDERS advertising in Spain warrant that they have read the Advertising Decree and are familiar with it and that they will not breach its terms.
- Should the PROVIDER violate one or more of the prohibitions provided for by the Spanish Gaming Advertising Laws, we may consider this Agreement terminated for reasons attributable to the PROVIDER itself. The PROVIDER, in any case, undertakes to release, indemnify and hold harmless LUCKIA - as well as any other Company of the Group - from and against any liabilities, penalties, fines and actions, including the legal expenses incurred by us - or any other Company of the Group - arising out of or connected with the breach of the Spanish Gaming Advertising Laws.
- In the event of a conflict between the above terms and this Appendix A, this Appendix A shall take precedence
For new and existing affiliates for Spain, in addition to all the above clauses, the following Terms & Conditions apply:
- According to the Portuguese Royal Decree 330/90 which approves Advertising Code:
- Advertising for games and betting must be carried out in a socially responsible manner, respecting, in particular, the protection of minors, as well as other vulnerable and risk groups, privileging the playful aspect of the gaming and betting activity and not disregarding the non players, not appealing to aspects that are connected with the easy obtainment of a gain, not suggesting success, social success or special skills for the purpose of the game, nor encouraging excessive gambling or betting practices.
- Advertising of games and bets directed at or using minors as participants in the message is expressly prohibited.
- In places where events for minors take place or in which they participate as main players, as well as in commercial communications and in the advertising of these events, there must be no mention, explicit or implicit, of games and bets.
- The PROVIDER hereby undertakes to know all the Portuguese Gaming Advertising Laws in force as well as the Manual of Good Practices for Advertising Games and Bets published by Portuguese Gaming Regulation and Inspection Service (SRIJ), which current version can be found at https://www.srij.turismodeportugal.pt/pt/jogo-responsavel/publicidade/, and to be aware of the relative administrative sanction and penalties.
- Should the PROVIDER violate one or more of the prohibitions provided for by the Portuguese Gaming Advertising Laws, we may consider this Agreement terminated for reasons attributable to the PROVIDER itself. The PROVIDER, in any case, undertakes to release, indemnify and hold harmless LUCKIA - as well as any other Company of the Group - from and against any liabilities, penalties, fines and actions, including the legal expenses incurred by us - or any other Company of the Group - arising out of or connected with the breach of the Portuguese Gaming Advertising Laws.
In the event of a conflict between the above terms and this Appendix B, this Appendix B shall take precedence
Colombia and Mexico
For applicants and existing affiliates advertising Brands in Latin America, in addition to the above clauses, the following Terms & Conditions apply:
- Affiliates shall only use promotions that have been pre-authorised by the Regulator and approved by LUCKIA;
- None of the Affiliate's marketing or other content may appeal or be targeted at minors;
- All website footers shall contain appropriate responsible gambling messaging and LUCKIA shall have the right to require PROVIDER to change any content that, in our reasonable opinion, does not meet the applicable standards; and
- Affiliates shall adhere to all responsible gambling requirements as set out by the Regulator or Applicable Law.
- In the event of a conflict between the above terms and this Appendix C, this Appendix C shall take precedence.
Luckia Portugal S.A.
Av. Antonio Augusto de Aguiar, 19, 4º, Sala B, 1050 012, Lisboa, Portugal.
Luckia Colombia S.A.S.
26 SUR Nº 48-41, 05266, Envigado, Antioquia, Colombia.
LUCKIA MEXICANA S.A. DE C.V.
Avenida Prolongación Pase de la Reforma 1236 PB Oficina 6 05348 Santa Fé, Cuajimalpa, Cuajimalpa de Morelos, Estado México, México.
Last update: 02/09/2023
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