MAYFLY ENTERTAINMENT LIMITED

AFFILIATE PROGRAMME – TERMS AND CONDITIONS  

BACKGROUND

A             Mayfly operates:

• the MEL Websites, for the purpose of marketing its Product to users; and

• the Programme Websites for the purpose of marketing its Affiliate Programme.

B             The Affiliate operates the Affiliate Website for the purpose of marketing its product to users.

C             The Affiliate wishes to become a member of the Affiliate Programme so that it can drive Affiliated Customers to the MEL Websites and earn Commission.

D             Where the Registration Form is completed by the Affiliate and accepted by Mayfly, Mayfly will open an Affiliate Account for the Affiliate, the use of which is governed by these Terms.

E             By agreeing to these terms, the Affiliate confirms that the services are not provided whilst located in China.

1. DEFINITIONS AND INTERPRETATION

• Definitions

In these Terms, the following definitions shall apply:

1.2          Interpretation

• Clause, Schedule and paragraph headings shall not affect the interpretation of these Terms.

• A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

• A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

• Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.

• Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

• A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

• A reference to writing or written includes email.

• References to clauses and schedules are to the clauses and schedules of these Terms.

• Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. ABOUT MAYFLY

2.1             The Affiliate Programme offered through the Programme Website is owned and operated by Mayfly.

2.2             Mayfly is licensed and regulated in the Isle of Man with the following licence details:

2.3             Mayfly may be contacted as follows regarding these Terms:

3. APPLICATION OF THE TERMS TO THE AFFILIATE ACCOUNT, RIGHTS AND RESERVATIONS

3.1          Where an Affiliate Account is opened to use the Product, it is governed by:

3.1.1      these Terms; and

3.1.2      the Privacy Policy;

3.2          Mayfly grants the Affiliate the non-exclusive, limited, revocable, non-assignable right to, exclusively in the Territory,:

3.2.1      direct Potential Customers to the MEL Websites; and

3.2.2      provide a hypertext reference link to the initial, top-level display of the Affiliate Website, for the sole purpose of linking the Affiliate Website to the MEL Websites.

3.3          Mayfly reserves the right to:

3.3.1      describe itself as acting “in association with the Affiliate” or similar expression on all banners or buttons as required;

3.3.2      withhold Commission and close any Affiliate Account which Mayfly considers, in its sole discretion, to be an Inactive Account. Each decision will be influenced by:

(a)           the last login date;

(b)           number of clicks;

(c)           number of impressions; and

(d)           referrals;

3.3.3      notify the Affiliate if the Affiliate Account is an Inactive Account (via the Contact Details);

3.3.4      to retain any funds in an Inactive Account if they remain in an Inactive Account for a period of one (01) month or more from the date of closure;

3.3.5      retain all Commission due to the Affiliate under the Affiliate Account if Mayfly has reasonable cause to believe that such traffic has been directed using Fraud;

3.3.6      refuse Affiliated Customers (or to close their accounts) if necessary to comply with any requirements Mayfly may periodically establish or otherwise as applicable under the terms applying to Customers, and/or in order for us to comply with such other legal and regulatory obligations and requirements, including those provided by the Regulatory Bodies;

3.3.7      terminate the Commission if the Affiliate ceases to promote the MEL Websites;

3.3.8      withhold Commission and/or suspend or close accounts of Affiliated Customers where such Affiliated Customers are found or suspected to be using Fraud;

3.3.9      close the Affiliate Account if the Affiliate only refers, or refers sixty percent (60%) or more of Affiliated Customers:

(a)           closed by traders for arbitrage / unsuitable business;

(b)           closed by security;

(c)           bonus excluded; and

(d)           linked to others closed for Fraud and/or bonus abuse.

4. CHANGES TO THE TERMS

4.1             Mayfly may change any of the Terms in its complete discretion for:

4.1.1   commercial reasons;

4.1.2   regulatory compliance, instructions, guidance or recommendations; or

 4.1.3  customer service reasons.

4.2             Where Mayfly intends to make a change to the Terms, Mayfly will notify the Affiliate through a pop-up banner when the Affiliate logs into the Affiliate Account.

4.3             To continue to use the Product and/or the Affiliate Account after the notification in Clause 4.2 above, the Affiliate will be requested to physically accept the revised terms via the pop-up banner.

4.4             If the updated Terms are unacceptable to the Affiliate, the Affiliate will be unable to continue to use the Affiliate Account and the Product.

4.5             The Terms were last updated in November 2023 and each and every update supersedes des any previous terms.

5. OPENING AN AFFILIATE ACCOUNT

5.1             Registration Form

• The Affiliate shall complete the Registration Form, in which the Affiliate will be asked to provide Mayfly with the Contact Details and, if applicable, the Company Details.

• It is the Affiliate’s responsibility to notify Mayfly of any changes to the Contact Details and/or Company Details, which can be updated by either:

(a)            visiting the “My Account” and “Account Details” section of the Affiliate Account; or

(b) by contacting us using the information in Clause 2.3.

• All personal data about the Affiliate is collected and stored in accordance with the Privacy Policy.

• Identity Verification

• Mayfly will verify the Affiliate’s identity through the information provided by the Affiliate on the Registration Form and by obtaining further information from public sources and data.

• The Affiliate agrees that Mayfly may use any personal information provided by the Affiliate for the purposes of verifying the Affiliate’s identity.

• The Affiliate agrees to provide Mayfly with any supporting documents that Mayfly may reasonably request.

• If the Affiliate is in an individual, it shall provide Mayfly with one (01) form of proof of identification and one (01) form of proof of residential address from the following list:

• valid ID card;
• valid passport copy;
• valid driving licence copy;
• a copy of a utility bill from the last three (03) months;
• a letter of reference from the individual’s bank from the last three (03) months; or
• a copy of a bank statement from the last three (03) months.

• If the Affiliate is a company, it shall provide Mayfly with information regarding the identity of the beneficial owner(s) of the company and the identity of the directors of the company. In the first instance, the Affiliate company shall provide Mayfly;

• A copy of the company’s register of members;
• A copy of the company’s register of directors; and
• Company structure diagram (inclusive of UBO).

Following a review of the initial documents as listed above, Mayfly may request further due diligence documentation to complete its verification checks. If required, this may include but is not limited to:

• a copy of the company’s certificate of incorporation;
• articles of association (or equivalent document);
• a certificate of good standing; and
• power of attorney (if applicable).

• Affiliate Account

• Where the Registration Form and identity verification is accepted by Mayfly, the Affiliate Account will be opened and may be used by the Affiliate to promote the Product.

• The Affiliate Account will be operated using software provided by Income Access.  The Affiliate agrees to be bound by the terms for the use of software as declared by Income Access on their website: https://incomeaccess.com/terms-conditions/.

• Warranties

The Affiliate warrants that it:

• is legally able to enter into contracts;

• has not previously held an Affiliate Account with Mayfly;

• has not had an account closed with a third-party online business as a result of fraudulent activity on the part of the Affiliate;

• acknowledges that it is the Affiliate’s responsibility to ensure that it understands and fully complies with any laws or regulations:
  • provided by the Regulatory Bodies;
  • applicable in the Affiliate’s own country or state; and applicable to the country or countries to which the Affiliate will be marketing or promoting Mayfly;
  • applicable to the country or countries to which the Affiliate will be marketing or promoting Mayfly;
• will comply strictly with these Terms;

• maintain a suitable internet usage policy regarding the MEL Websites and the Affiliate Website; and

• shall not attempt to open an Affiliate Account on behalf of a third party.

These warranties shall continue throughout the period during which the Affiliate is a member of the Affiliate Programme

6. AFFILIATE OBLIGATIONS

6.1          The Affiliate shall:

6.1.1      use all reasonable and commercial efforts to market and promote the Product to generate Affiliated Customers;

6.1.2      extract links from the Affiliate Programme to direct to the landing page of the relevant Mayfly offer (which is created and uploaded by Mayfly to the Affiliate Programme and will contain the full terms and conditions of the relevant offer);

6.1.3      be solely responsible for the development, content, operation, and maintenance of the Affiliate Website, including the proper functioning of all hyperlinks to the landing page of the relevant Mayfly offer;

6.1.4      ensure that each advert promoting an offer created by Mayfly (which is uploaded by Mayfly to the Affiliate Programme) is compliant with Mayfly’s applicable brand image and where the Affiliate requires support in respect of the same, the Affiliate shall follow the process set out in Clause 6.12 below before publishing such advert;

6.1.5      only use syntax of the hypertext transfer links designed and designated by Mayfly as the only authorised and permitted representation of the MEL Websites;

6.1.6      incorporate and prominently and continually display the most up-to-date links and creative provided by Mayfly on the Affiliate Programme;

6.1.7      be solely liable for the content and manner of its marketing and promotional activities ensuring that all such activities are conducted in a professional and lawful manner;

6.1.8      be compliant with all applicable requirements of the Regulatory Bodies;

6.1.9      be compliant with all applicable requirements in force within the jurisdiction that the Affiliate is operating from and also the jurisdictions of the Customers and any related gambling legislation;

6.1.10   ensure that all marketing, advertising and promotions targeted at Potential Customers includes the Statements;

6.1.11   use any banners on the BetVictor, William Hill, Parimatch and Biying Programme as the sole methods of advertising and/or promotion on behalf of Mayfly and in each case shall only use banners with the correct branding to advertise each different brand (for example, it shall only use BetVictor banners to advertise BetVictor and not William Hill); and

6.1.12   in advance of any campaign, where the Affiliate requires clarity, discuss the Proposed Content with Mayfly. Once the Proposed Content has been discussed between Mayfly, the Affiliate shall send Mayfly an electronic version of the Final Content.  Where Mayfly is happy with the Final Content, it shall provide the Approval. The Affiliate shall only commence a campaign when in receipt of the Approval. Within five (05) days of the date of the request from Mayfly, the Affiliate shall also send any historical Final Content to Mayfly for its records, free of charge.

6.2          The Affiliate must not:

6.2.1      use any means to promote the Affiliate Website which resemble in any way the look and/or feel of any of the MEL Websites;

6.2.2      set up or use any websites that create the impression that they are owned and/or operated by Mayfly;

• mislead a Potential Customer that it is promoting Mayfly directly;

• use any emails or articles appearing on the MEL Websites;

• alter the form, location or operation of the links without Mayfly’s prior written consent;

• undertake an E-Promotion without Mayfly’s prior written consent and where consent is granted, the Affiliate shall comply specifically with the requirements set out in Clause 7;

• undertake advertorial style marketing or use pop-under;

• knowingly benefit from traffic known or suspected as being generated as a result of Fraud whether or not it actually causes us damage;

6.2.9      carry out or allow, whether through the Affiliate Website or otherwise:

• any form of spamming;

• advertise or promote Mayfly in any way that may have a detrimental effect on the image, reputation and/or integrity of Mayfly;

• post messages regarding Mayfly or the MEL Websites to any newsgroups, chat rooms and/or bulletin boards;

• make any claims or representations, or give any warranties, in connection with Mayfly; and

• have no authority to, and shall not, bind Mayfly to any obligations;

6.2.10   place or allow the placement of any marketing materials on any third-party website or other medium (including an E-Promotion) pursuant to any campaign where the content of and/or materials on such website or medium is:

• libellous;
• discriminatory;
• obscene;
• unlawful;
• sexually explicit;
• pornographic;
• indecent material;
• hate speech;
• subject matter is highly objectionable; or
• material which is, in Mayfly’s sole discretion, otherwise unsuitable including (but not limited to) online piracy; file sharing; or illegal streaming.

• breach the terms of use and any applicable policies of any search engines;

• attempt to open a second (2^nd) or more Affiliate Accounts without Mayfly’s prior written consent;

• breach any applicable law, regulation or requirement of a Regulatory Body;

• breach the Online Gambling Regulation Act (OGRA) 2001 or any other applicable law or regulation in relation to marketing and promotion of Mayfly or jeopardise any of the licences held by Mayfly or its associated companies;

• transfer an Affiliate Account to new beneficial account owner, without Mayfly’s prior written consent;

• use any challenge or Tipping Pages, without clarifying that the challenge and success is not guaranteed and under no circumstances should results be misconstrued or manipulated to suggest that results were more favourable;

• apply to register, or register, any:

• domain name;
• social media account / page; or
•  

using any names or brands that are the same as, or similar to, those owned and/or operated by Mayfly, including but not limited to a brand or domain using misspelling, addition, omission of characters, phonetic similarity or otherwise.

• purchase or register keywords, bid on Mayfly branded key words, search terms or other identifiers for use in any search engine, portal, sponsored advertising service or other search or referral service without Mayfly’s prior written consent; and

• use trademarks, URLs or variations thereof for use in HTML coding (including but not limited to ‘meta tags’, ‘meta descriptions’, ‘meta content’, ‘page titles’, ‘titles’).

• Third party complaints and Regulatory Fines

• If Mayfly receives a complaint from a customer or a third party which states or infers that the Affiliate has been or is engaging in any of the activities specified in Clause 6.2 and/ or has breached any of the requirements set out in Clause 6.1 and/or Clause 7 (a Complaint), the Affiliate consents to Mayfly disclosing the Affiliate’s Contact Details to the complaining party so that the Affiliate can resolve the complaint directly. In addition, the Affiliate warrants and undertakes that the Affiliate will immediately cease engaging in the practices resulting in the Complaint and make every effort to resolve the complaint as soon as practicable. Mayfly reserves all of its rights without limitation, including the right to immediately terminate the Affiliate Account and to set off or charge the Affiliate for all claims, damages, expenses, costs, or fines incurred or suffered by Mayfly in relation to a Customer or third-party complaint in respect of this Clause 6.3. Nothing stated or omitted in these Terms shall in any manner prejudice any such rights.

• The Affiliate will indemnify and hold Mayfly and its respective directors, officers, members, employees, representatives and advisors harmless from all claims, damages, and expenses (including, without limitation, legal fees and expert witness fees) relating to the development, operation, maintenance, accuracy and compliance of the contents of the Affiliate Website and/ or any materials, products or services linked to it. The Affiliate acknowledges that its conduct as an Affiliate has the potential to cause substantial damage to the reputation of Mayfly and the Affiliate undertakes to consider the reputation of Mayfly and to act in an appropriate manner at all times while holding an Affiliate Account.

• In the event that Mayfly receives a fine from a Regulatory Body directly attributable to the breach by the Affiliate of these Terms, the Affiliate shall reimburse Mayfly in full for the total amount of the fine.

6.4          Guidance

If the Affiliate requires any further guidance on this Clause 6, the Affiliate shall contact the Affiliate Team prior to commencement of a marketing campaign.

7. E-PROMOTION REQUIREMENTS

7.1          Where the Affiliate has obtained consent from Mayfly under Clause 6.2.7 above to operate an E-Promotion, the Affiliate must comply with the following terms set out in this Clause 7, including:  

1.  
2.  
3.  
4.  
5.  
6.  
7. • • Marketing communications for gambling must be socially responsible with particular regard for the need to protect children, young persons and other vulnerable persons from being harmed or exploited (CAP Code 16.1);

• Marketing communications should avoid approaches that give erroneous perceptions of the level of risk involved or the extent of a gambler’s control over a bet or gambling in general;

• Marketing communications should not unduly pressure the audience to gamble, especially when gambling opportunities offered are subject to a significant time limitation;

• Marketers should take care to avoid approaches that trivialise gambling and avoid the impression that the decision to gamble should be taken lightly; and

• Marketing communications must not portray or otherwise refer to individuals

displaying problem gambling behaviours or other behavioural indicators linked

to problem gambling.

7.2          Campaign Terms

The Affiliate shall ensure that the significant terms of any marketing campaign or promotion are contained within the body of the advertisement with a clearly accessible link to the full terms of the promotion not more than one click away. In addition,

 marketing communications that include a promotion and are significantly limited by time or space must include as much information about significant conditions as practicable and must direct consumers clearly to an easily accessible alternative source where all the significant conditions of the promotion are prominently stated and not more than one click away (CAP Code 8.18)

7.3          Opt-In

The Affiliate shall:

• only send an E-Promotion to individuals who have either:

• opted-in; or

(b)           from whom the Affiliate has Third Party Consent;

7.3.2      keep clear and up to date records evidencing the Third-Party Consent, which shall include (without limitation) the Records;

7.3.3      provide copies of the Records to Mayfly within twenty-four (24) hours of the date of Mayfly’s request; and

7.3.4      provide a copy of the Affiliate’s current “opt -in / opt-out” policy which shall be compliant with applicable laws and regulations, within twenty-four (24) hours of the date of Mayfly’s request.

7.4          Sender

7.4.1      Email Campaign: Any email must originate from a valid email address (which is verifiable by Mayfly if required), which is unconnected to Mayfly and which does not contain any registered trademarks, domain names or brand names of the foregoing (or anything confusingly similar), or otherwise infringe the intellectual property rights of any third party. The Affiliate is required to notify Mayfly of any relevant email address used from time to time.

7.4.2      SMS: Any SMS message must show a valid mobile number (which is verifiable by Mayfly if required) to which the “STOP” or “UNSUBSCRIBE” option is directly connected. The Affiliate shall notify Mayfly of any relevant mobile numbers on request.

7.5          Subject Line

The subject line of any email should be agreed in writing by Mayfly prior to use.

7.6          Legal, Regulatory and Responsible Gambling Requirements

7.6.1      Emails: The Affiliate shall:

(a)           include the Statements;

(b)           include confirmation that the email is sent by the Affiliate (usually within the email header and/or footer), and, where applicable, include the Company Details and the email shall not purport to have been sent by Mayfly;

(c)           include a fully functional and clearly visible “unsubscribe” link, which shall be linked solely to the Affiliate, and which does not contain any reference to Mayfly; and

(d)           maintain appropriate records of unsubscribed requests and corresponding email addresses and provide a copy to Mayfly promptly upon request. 

7.6.2      SMS:      The Affiliate shall:

• include the Statements;

• state that the SMS is sent by the Affiliate, and it shall not purport to have been sent by Mayfly;

• include a fully functional and free of charge “STOP” or “UNSUBSCRIBE” option, which shall be linked solely to the Affiliate, and which does not contain any reference to Mayfly;

• maintain appropriate records of any stopped or unsubscribed requests and provide a copy to Mayfly promptly upon request; and

• warrants that the recipient of the SMS has positively consented to being contacted via SMS about the Product available in the gaming sector and can provide evidence to Mayfly on request.

• 18+

An E-Promotion shall only be sent to email addresses and/or mobile numbers where recipients are aged eighteen (18) years of age and over and any corresponding records shall be kept by the Affiliate and made available to Mayfly and/or to any competent regulatory or governmental authority promptly upon request.

• Suppression

The Affiliate shall ensure that any relevant email address is suppressed from any relevant database (and that no further emails are sent to such email address) in accordance with the following:

• immediately following any “UNSUBSCRIBE” or “STOP” option being activated by a recipient of an E-Promotion;

• promptly and in any event within forty-eight (48) hours upon notification by Mayfly to the Affiliate; and

• (Upon request) provide prompt written confirmation to Mayfly and (where relevant) details in respect of any actions taken in accordance with the foregoing.

8. REGISTRATION AND TRACKING OF AFFILIATED CUSTOMERS

8.1          Mayfly agrees to register each Affiliated Customer as a Customer of the relevant MEL Website (subject to such Affiliated Customer meeting the relevant terms at (as applicable): https://www.weidepartner.com/, https://www.biyingpartner.com/,https://www.wh1934partner.com/; and  https://www.parimatchpartners.com/)

8.2          Mayfly shall track the transactions made by each Affiliated Customer via Income Access.

9. COMMISSION

9.1          Calculations

For the purposes of this clause, ‘Commission’ shall include the Commission, the Biying Commission, the Parimatch Commission and the Referral Commission, as applicable.

9.1.1      Mayfly will pay the Affiliate the Commission earned from each Affiliated Customer’s use of the Product for the life of the Affiliate Account only. Mayfly’s calculations of Commission are final and not open to dispute.

9.1.2      At the end of each Period, Mayfly shall calculate all Commission generated by Affiliated Customers.

9.1.3      The Affiliate Account must have aggregate Commission across the Product that meets or exceeds the Minimum Payment Threshold before Mayfly will make a payment of Commission.

Commission per Period.

9.1.5      Commission will only be paid in British Pounds Sterling (GB £), Chinese Renminbi (CNY) and/or Euros (EUR €) based on the currency specified in the Affiliate Account. Commission is calculated in GB £ and converted into EUR where applicable using Mayfly’s internal exchange rates.  Payments made via  USDT or bank transfer are processed where possible in GB £ and may be subject to bank fees and exchange rates. Currency exchange rates are defined by Mayfly at the beginning of each calendar month.  A list of current exchange rates is available upon request.

9.2          Negative Carryover

If an aggregate Commission in respect of any period is a negative amount, Mayfly shall carry forward and set off any such negative amount against all future revenue commission calculations. The Affiliate will only be eligible to receive a pay out when there is a positive balance at the end of each Period which exceeds the minimum payment requirement specified within the definition of Commission.

9.3          Cross Over Commission

Further Commission can be earned by the Affiliate where the Affiliated Customer generates revenue in a Product other than the Target Product.

9.4          Mayfly will not pay the Affiliate any Commission:

9.4.1      for any Affiliated Customer who is already a customer (i.e. a duplicate customer);

9.4.2      if Mayfly has reason to believe that the Affiliate was, or is, involved in any arbitrage activity or scheme;

9.4.3      if actions taken by the Affiliate results in fines and/or penalties to Mayfly; or

9.4.4      where the Affiliate has not notified Mayfly of the URL prior to first use or after subsequent changes.

9.5          The Affiliate is responsible for accounting for any Tax due on Commission earned from the Affiliate’s Commission received. Mayfly will not pay any such Tax and if required by a regulatory authority to pay any such Tax, Mayfly will be entitled to withhold the amount it is required to pay from payments of Commission.

9.6          Mayfly retains the right to withhold Commission payments or a portion of them if it considers profits earned at are a risk of chargeback. Any amounts withheld will only be paid once a period of six (06) months has elapsed.

10. TERM AND TERMINATION

10.1       The Affiliate Account shall operate for the Term, unless sooner terminated in accordance with this Clause 10.  

• Either party may terminate the Affiliate Account:

• at any time on forty-eight (48) hours’ notice;

• by notice in writing with immediate effect if the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;

• if there is a change in law which makes continuation of the Affiliate Agreement non-viable; or

• Where Clause 13.13 applies, if the period of delay or non-performance continues for one (01) month, or on seven days (07) written notice by either party to the other party.

10.3       Mayfly may terminate the Affiliate Account with immediate effect if the Affiliate:

10.3.1   is in breach of any of its obligations in these Terms;

10.3.2   is reasonably suspected of Fraud by Mayfly;

10.3.3   has an Inactive Account; or

10.3.4   uses any websites that are misleading to the Potential Customer, redirect to the MEL Websites, or are a copy of the MEL Websites.

• On termination of the Affiliate Account for any reason:

• all licences and benefits under the Affiliate Account shall immediately terminate;

• each party shall return and make no further use of any equipment, property, materials, and other items belonging to the other party;

• the accrued rights of the parties as at termination, or the continuation after termination of any provisions expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced; and

• save for where there is any suspected Fraud by the Affiliate, Mayfly shall pay to the Affiliate any Commission due and owing up to and including the termination date, but no further Commission shall be payable to the Affiliate thereafter.

11. INTELLECTUAL PROPERTY RIGHTS AND LICENCE

11.1       Mayfly shall retain all IP in the MEL Websites and the Affiliate shall retain all IP in the Affiliate Website.

11.2       The Affiliate acknowledges that the IP in the MEL Websites is proprietary to or licensed by Mayfly and may not be used, reproduced, transmitted, displayed, published or distributed without Mayfly’s prior written consent.

11.3       Mayfly grants to the Affiliate for the Term, a non-exclusive, limited, royalty free, revocable, non-transferable licence to use the Marks solely in connection with creating and describing the display of the promotional materials on the Affiliate Website and at all times exclusively in the Territory. This licence cannot be sub-licensed, assigned or otherwise transferred by the Affiliate. The Affiliate shall not assert the invalidity, unenforceability, or contest the ownership of the Marks in any way (whether by formal action or proceedings of any kind or nature or otherwise), and the Affiliate shall not take any action that may prejudice Mayfly’s rights in the Marks, render the same generic, or otherwise weaken their validity or diminish their associated goodwill. The Affiliate must notify Mayfly immediately if the Affiliate becomes aware of the misuse of the Marks by any third party.

12. LIMITATION OF LIABILITY

• This Clause 12 sets out the entire financial liability of each party to the other:

• arising under or in connection with the Affiliate Account; and

12.1.2         in respect of any representation, misrepresentation, statement or tortious act or omission (including negligence) arising under or in connection with the Affiliate Account

12.2       Except as expressly and specifically provided in these Terms, all warranties and representation, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Terms.

• Nothing in these Terms excludes the liability of either party for:

• death or personal injury caused by a party’s negligence; or

12.2.2         fraud or fraudulent misrepresentation.

12.4       Subject to Clause 12.3, neither party will be liable for any 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 the other party has been advised of the possibility of such damages or losses.

12.5       Each party’s total liability to the other party for a breach of these Terms shall not exceed in aggregate the total of all payments of Commission made to the Affiliate in the period of twelve (12) months immediately preceding the breach in question. If the Affiliate Account has been in existence for a period of less than twelve (12) months as at the date of the claim, the average Commission up to the date of the claim shall be calculated and multiplied by twelve (12).

13. MISCELLANEOUS PROVISIONS

13.1       Notices

13.1.1    Any notice given to Mayfly under or in connection with the Affiliate Account shall be in writing and shall be delivered by email to the legal notice address specified in Clause 2.

13.1.2    Any notice given to the Affiliate under or in connection with the Affiliate Account shall be in writing and shall be delivered by email to the email address specified in the Contact Details.

13.1.3    Any notice shall be considered received by the recipient at 09:00 GMT on the second (2^nd) business day after transmission.

13.2       Entire Agreement

13.2.1    These Terms constitutes the entire agreement between the parties relating to the Affiliate Account and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

13.2.2    Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in these Terms.

13.2.3    Nothing in this clause shall limit or exclude any liability for fraud.

13.3       Third parties

A person who is not a party to the Affiliate Account shall not have any rights under the Contracts (Rights of Third Parties) Act 2001 to enforce any of these Terms.

13.4       Variation

No variation of these Terms shall be effective unless it is in writing, dated and signed by the parties.

13.5       No Partnership or Agency

Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.

13.6       Governing Law

The Affiliate Account and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of the Isle of Man, which shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Affiliate Account or its subject matter or formation.

13.7       non-Exclusivity

The Affiliate Account does not grant the Affiliate any exclusive right or privilege to assist Mayfly in the provision of the Product.

13.8       Assignment

13.8.1   The Affiliate shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Affiliate Account without the prior written consent of Mayfly.

13.8.2   Mayfly may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Affiliate Account.

13.9       Waiver

No failure or delay by a party to exercise any right or remedy provided under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

13.10     Rights and Remedies

The rights and remedies provided in these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.

13.11    Severance

13.11.1 If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Terms.

13.11.2 If any provision or part-provision of these Terms is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

13.12    Confidentiality

During the Term, the Affiliate may be entrusted with confidential information relating to Mayfly’s business, operations, or underlying technology and/or the Affiliate Programme. The Affiliate agrees not to make disclosure or unauthorised use of any such confidential information to third persons or outside parties unless the Affiliate has Mayfly’s prior written consent and that the Affiliate will use the confidential information only for purposes necessary to further the purposes of these Terms. The Affiliate’s obligations with respect to confidential information shall survive the termination of the Agreement.

13.13    Force Majeure

Neither party shall be in breach of these Terms nor liable for delay in performing, or failure to perform, any of its obligations under these Terms if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for one (01) month, either party may terminate the Affiliate Account in accordance with Clause 10.