Genting Affiliates Terms Changes - March 22, 2016

Discussion in 'Casino Industry Buzz and Terms Alerts' started by Guard Dog, Mar 22, 2016.

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    Guard Dog

    Guard Dog Guard Dog Staff Member

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    Mar 22, 2016
    The following are the terms changes from March 22, 2016:

    Applicable Laws means all legislation, by-laws, regulations and other statutory instruments that may govern or restrict
    (i) gaming in a territory (including participation in gaming by an Active User from a territory; and
    (ii) laws applicable to advertising of gaming or gaming offers within any territory.
    (iii) the collection, retention, storage, processing or transfer of personal data.

    Consents means all consents and/or authorisations require under the Data Protection Requirements and in particular express Opt-In by affiliates own data subjects to the receipt of marketing communications by email and other electronic means.

    Data Protection Requirements means all Applicable Laws relating to the processing of personal data and data privacy, including without limitation the Data Protection Directive (95/46/EC) and the Privacy and Electronic communications Directive (2002/58/EC) in each case as implemented into national laws which, in the case of the United Kingdom, means the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003; all guidance and codes of practice issued by the Information Commissioner's office (''ICO'') or any supervisory authority from time to time; in addition, the Regulation of Investigatory Powers Act 2000, and the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000, and the equivalent of any of the foregoing in any relevant country, territory or jurisdiction, in each case as applicable.EEA means the European Economic Area


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    Model Clauses means as defined in clause 8.4.6

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    Genting Opt-Out Datameans the lists of email addresses disclosed by Genting to the Affiliate from time to time pursuant to this Agreement for the purposes more particularly referred to in clauses 8.3 and 8.4.

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    1.2.3 references to an ''entity'' or ''entities'' include any company, corporation or other body corporate wherever and however incorporated and established

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    8.1 Data and privacy

    8.1 For the purposes of this clause 8:-

    8.1.1 “data controller” , “data processor” , “data subject” , “personal data” and “processing” shall have the meanings or the closest equivalent meanings ascribed to them in the Data Protection Requirements;

    8.1.2 the parties acknowledge and agree that each party will process certain personal data in connection with this Agreement, including without limitation personal data about Users and the Genting Opt-Out Data (“Agreement Personal Data”);

    8.1.3 the parties acknowledge and agree that factual arrangements between them will determine whether each party is a data controller or a data processor of the Agreement Personal Data

    8.2 The parties undertake to comply with the Data Protection Requirements and any other related legislation and guidance in performance of this Agreement.

    8.3 The Affiliate warrants and confirms that:-

    8.3.1 without prejudice to clause 8.1.3 that the Affiliate will process the Opt-Out Data as a data processor on behalf of Genting when it uses it for the Genting Opt-Out Data Purpose;

    8.3.2 without prejudice to clause 8.1.3 the parties acknowledge and agree that each party shall act as a separate data controller in respect of the processing of Agreement Personal Data (other than the Genting Opt-Out Data insofar as it is used for Genting Opt-Out Data Purpose) in connection with this Agreement including to send Genting branded communications to individuals (the “Purposes”);

    8.4 The Affiliate warrants and agrees that it shall and shall procure that its sub-contractors shall:-

    8.4.1 obtain and maintain all Consents for any and all marketing communications to / for its database so as to comply with the Data Protection Requirements prior to causing or permitting any marketing communications or initiatives to be sent to the relevant recipient(s);

    8.4.2 only process the Genting Opt-Out Data to the extent required in order to ensure that no communication is sent to any individual whose email address forms part of the Genting Opt-Out Data (the “Genting Opt-Out Data Purpose”) and for no other purpose;

    8.4.3 only process the Genting Opt-Out Data in accordance with Genting’s instructions;

    8.4.4 process the Agreement Personal Data in accordance with the Data Protection Requirements;

    8.4.5 (where Affiliate is based within the EEA) not cause or permit the Genting Opt-Out Data to be transferred outside of the EEA without Genting’s prior written consent;

    8.4.6 (where Affiliate is based outside the EEA) enter into un-amended copies of the following clauses with appendices completed by Genting in respect of the Genting Opt-Out Data:-

    8.4.6.1 Standard contractual clauses for the transfer of personal data from the European Union to processors established in third countries (controller to processor transfers), as set out in the Annex to Commission Decision 2010/87/EU; and/or

    8.4.6.2 Standard contractual clauses for the transfer of personal data from the European Union to controllers established in third countries (controller to controller transfers) as set out in the Annex to Commission Decision 2004/915/EC

    (together the “Model Clauses”)

    The parties acknowledge for the purposes of this clause 8.4.6 that in the case of any conflict between any of the provisions of this Agreement and the Model Clauses (above) the provisions of the Model Clauses shall prevail.

    8.4.7 implement and maintain appropriate technical and organisational measures to protect against the unauthorised or unlawful processing of or access to the Agreement Personal Data and accidental loss, destruction, damage, alteration or disclosure of the Agreement Personal Data and shall ensure that such measures shall at all times be appropriate to the harm which might result from any unauthorised or unlawful processing and such as to ensure the prevention of accidental loss, destruction, or damage to the Agreement Personal Data and fully commensurate with the nature of the Agreement Personal Data which is to be protected;

    8.4.8 if requested to do so it shall provide a written description of the technical and organisational measures employed by it for the processing of the Agreement Personal Data;

    8.4.9 ensure that all individuals employed, engaged or retained by it to access the Agreement Personal Data are informed of the confidential nature of the Agreement Personal Data and take steps to help comply with the Data Protection Requirements and the obligations in respect of same set out within this Agreement;

    8.4.10 ensure that no individuals, employed, engaged or retained by it shall publish, disclose, or divulge any Agreement Personal Data to a third party absent Genting’s formal prior consent in writing;

    8.4.11 time being of the essence comply promptly with Genting’s instructions in respect of the Agreement Personal Data and in any event it agrees that it shall notify Genting within 3 working days if it receives any correspondence from a data subject to exercise any right in respect of the Agreement Personal Data and/or a complaint or request relating to the processing of the Agreement Personal Data and provide Genting with full cooperation and assistance in relation to any request as may be required;

    8.4.12 upon receipt of any request or correspondence from the ICO or other supervisory authority or governmental or regulatory body, in relation to the processing of Agreement Personal Data:-

    8.4.12.1 promptly inform Genting that it has received such request or correspondence;

    8.4.12.2 forward such notice or correspondence to Genting within three (3) working days from the date of receipt; and

    8.4.12.3 provide any information and/or assistance as reasonably requested by Genting to enable it to respond to the request or correspondence;

    8.4.13 promptly notify Genting of any actual or suspected, threatened or “near miss” incident of accidental or unlawful destruction or accidental loss, alteration, unauthorised or accidental disclosure of or access to the Agreement Personal Data or other breach of clause 8.4.7 (“Security Incident”) and promptly provide Genting with all information in its/their possession or control in relation to the Security Incident and with all assistance and cooperation as may reasonably be required in order for Genting to seek to mitigate the effects of the Security Incident, comply with the Data Protection Requirements and adhere to guidance issued by the ICO or other supervisory authority or governmental or regulatory body with regard to security breach management and reporting, and not make any announcement or publish or broadcast any notice of information about the Security Incident or authorise or permit the same;

    8.4.14 once the Affiliate has processed the Genting Opt-Out Data for the Genting Opt-Out Data Purpose, or following expiry or termination of this Agreement the Affiliate shall and shall procure that all sub-contractors shall promptly and permanently delete all of the Genting Opt-Out Data from its/ their computer systems (including without limitation servers, hardware and mobile devices) and from digital media in its/ their possession or control (including without limitation DVD’s, CD’s and USB’s) and promptly destroy or deliver up to Genting all hard copies of the Genting Opt-Out Data in its/their possession or control, and promptly and in any event within 14 days certify in writing to Genting that this has been done;

    8.4.15 ensure the terms, copy, and/or get-up of any communication sent to any individual in connection with this Agreement will make clear to recipients that the sender is the Affiliates own undertaking and such communication is sent in accordance with Consents obtained by the Affiliate;

    8.4.16 ensure that all communications sent to individuals in connection with this Agreement will include clear and simple means by which the individual may unsubscribe all such communications in accordance with the Data Protection Requirements;

    8.4.17 not send or undertake any more than 3 communications or initiatives to its database which advertise Genting offers or promotions;

    8.4.18 immediately upon request cease sending any communications to any individual whose email address is shared with the Affiliate with the direction that it never be used going forward for any marketing communications purpose (including for the avoidance of doubt as may be communicated from time to time by Genting to the Affiliate outside of the formal Genting Opt-Out Data.

    8.5 Subject to Genting and its nominated representative(s) entering into reasonable confidentiality obligations, the Affiliate shall and shall procure that all sub-contractors shall upon request of Genting, on reasonable notice and during regular business hours, at no cost to Genting ensure that its and/or their staff are made available to Genting and its nominated representative(s) and shall provide them with access to all relevant information (whether in electronic or hard copy form) as may be reasonably required in order for Genting, or its appointed representative(s), to assess whether the processing of Agreement Personal Data is in accordance with the obligations set out in this clause 8 (or in the case of sub-contractors, the relevant sub-contract) and shall permit Genting and its nominated representative(s) to inspect the Affiliates premises and those of the sub-contractors and all equipment and procedures relating to the processing of Agreement Personal Data at its/their premises and shall procure that its/their staff shall provide all reasonable cooperation and assistance to Genting and its nominated representative(s) in relation thereto.

    8.6 The Affiliate shall indemnify Genting on demand from and against all claims, liabilities, costs, expenses, damages, fines, monetary penalties and losses suffered or incurred by Genting and all interest penalties and legal and other professional costs or expenses suffered or incurred by Genting as a consequence of Affiliates failure to adhere to this clause 8.


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    9 Representations and Warranties

    9.1 The Affiliate represents and warrants to Genting that as of the Effective Date of this Agreement, that:

    9.1.1 Affiliate has duly registered the domain name of the Affiliate Website(s) with all applicable authorities;

    9.1.2 Affiliate Website(s) (including without limitation all IPR, content, text, images, software and other materials which Affiliate has placed on Affiliate’s Website(s) is proprietary or licensed to or licensed by the Affiliate and does not and will not infringe upon or violate any IPR, copyright, patent, trade mark, or other proprietary mark of a third party, or any applicable law, regulation or non-proprietary third-party right. The Affiliate hereby agrees to fully indemnify Genting Group for any loss or damage suffered by the Genting Group for breach of this warranty.

    9.1.3 Any information provided to Genting (including, without limitation, personal information of Users) is true and accurate in all respects and that it shall update personal information at any time from its Affiliate account by clicking the “Update Profile” button and will do so in the event of change of that information.

    9.1.4 It shall comply in full with its obligations set down in clause 8.

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    10 Termination

    10.1 Either party may terminate this Agreement at any time:-

    10.1.1 upon 3 days notice in the event of breach of this Agreement; or

    10.1.2 upon 5 days notice without cause or in the event of the other’s insolvency.

    10.2 Genting may terminate this Agreement with immediate effect, where:-

    10.2.1 the Affiliate has breached or is likely to breach Regulatory Requirements or the requirements of clause 8.

    10.2.3 the continuance of this Agreement is or is likely to impair Genting’s business goodwill or general business reputation; or

    10.2.4 any regulatory or statutory approval or licence held by Genting is or is likely to be impaired as a consequence of this Agreement.

    10.2 Fortwith on termination of the Agreement, the Licence granted by clause 2 shall immediately terminate, and the Affiliate agrees that it shall:-

    10.2.1 disable the Link(s);

    10.2.2 remove the Link from the Affiliate Website(s);

    10.2.3 immediately remove all Icons and Banners and Link(s) from the Affiliates Website(s);

    10.2.4 immediately return or destroy (as appropriate) all Confidential Information provided to it by Genting pursuant to clauses 8 and 12

    10.2.5 destroy any copies of material from the Genting Website(s) which are in the Affiliates possession or control

    10.3 For the avoidance of doubt Genting may terminate this Agreement immediately without notice if:-

    10.3.1 it determines, in its sole discretion that any content of the Affiliates Website(s) or the Affiliates use of the Link(s) is unsuitable or is or is likely to contravene Regulatory or Data Protection Requirements. “Unsuitable” sites shall include but are not limited to those that are aimed at children, display child pornography or other illegal sexual acts, promote violence or discrimination, promote illegal activities, or violate IPR rights (of Genting or a third party).

    10.3.2 it determines, at its sole discretion, that any content on the Affiliates Website(s) (including without limitation, content provided to the Affiliate by Genting under this Agreement and the Affiliates use of the Link(s) on the Affiliates Website(s), is or is reasonably likely to be in breach of any applicable Committee of Advertising Codes Applicable Laws (including data protection legislation), DPA Regulatory Requirement, or other Regulatory regulatory or statutory requirement as may apply from time to time.

    10.3.3 it reasonably determines that you are for any reason unsuitable to be an Affiliate or you have otherwise breached the terms of this Agreement.

    10.4 Clauses 2.3, 4.3, 6.6, 8, 9, 10.2, 11, 12, 13.7 and 13.8 shall survive termination of this Agreement, Clause 12 shall endure for a period of three years from date of termination.

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    12 Confidentiality

    12.1 Except as expressly provided in this Agreement, and subject at all times to clause 8 and the Data Protection Requirements, each party undertakes to treat as confidential and keep secret all information of the other party including without limitation personal data received from the other party (the 'Disclosing Party') marked confidential or which may reasonably be considered to be confidential that is disclosed to the recipient party by the Disclosing Party either before or after commencement or expiry of this Agreement (the 'Confidential Information'). The Receiving Party shall protect the Confidential Information with the same degree of care as it employs with regard to its own Confidential Information, provided that the provisions of this clause shall not extend to any Confidential Information? which was lawfully and rightfully in the possession of either party prior to the commencement of this Agreement, or which is/was public knowledge other than by reason of breach of this obligation.

    12.2 The foregoing obligation of confidentiality shall remain in full force and effect for a period of three years following termination of this Agreement

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