Affiliate Marketing Agreement (“Agreement”)
Please read this Agreement carefully before you accept it. Once you accept this Agreement it becomes binding upon you / the organization (“Partner Company”) that you represent. If you do not have the right to represent the Partner Company, or if you do not wish to accept all the terms and conditions of this Agreement, then you must not accept this Agreement, you must not complete the Affiliate Sign-up Form and you must not link to the Service (as defined below) OR, if you already have done so, you should contact us immediately. You should print and store this Agreement and the complete the Affiliate Signup Form.
- General provisions
1.1. This Agreement is between SIMPLICITY MALTA LTD, a company incorporated and existing under the laws of Malta (with company number C 89466) whose registered office is at Level G (Office 1/4457) Quantum House, 75 Abate Rigord Street, Ta’ Xbiex, XBX 1120, Malta (referred to in this Agreement as “VJ Group Affiliation”) and the individual or entity stated as ‘Partner Company’ in the Affiliate Signup Form.
1.2. Reference to the ‘Partner Company’ or ‘you’ or ‘your’ is a reference to the person or company identified by name in the Affiliate Signup Form.
1.3. If the information provided in the Affiliate Signup Form is not true or not correct or if the person submitting the Affiliate Signup Form is not authorized to act on behalf of the Partner Company, then without prejudice to any other actions that may be available to VJ Group Affiliation the person submitting the Affiliate Signup Form shall be bound by this Agreement and all the references to ‘Partner Company’ in this Agreement shall be references to the person who submitted the Affiliate Signup Form and/or on whose behalf the Affiliate Signup Form is submitted.
1.4. You declare that you are over 18 years of age.
1.5. You and the Partner Company declare and warrant that the information that you provided in the Affiliate Signup Form is true, complete and correct. You shall notify VJ Group Affiliation immediately of any change in the information provided in the Affiliate Signup Form.
1.6. You agree that VJ Group Affiliation may, at its discretion, carry out verification checks of you and require you to provide certain documents for verification purposes. You agree that you will, when requested, promptly provide documents for the purposes of proof of identity, proof of residence and address, proof of age as may be necessary, in particular:
where the Partner Company is a physical person, you will provide upon request a copy of the official identification document with your photo, document proving your age and your address (such as a utility bill or a bank statement showing your name and address); or in all other cases you will provide a copy of the certificate of incorporation or similar, statue or constituting documents showing shareholders and directors of the entity, certificate of good standing or similar, utility bill or bank statement showing the company name address.
1.7. The Agreement becomes binding upon the Partner Company once you indicate in the Affiliate Signup Form of your acceptance of this Agreement and / or link to any part of the Service as defined in clause 2 of this Agreement.
1.8. This Agreement may be amended from time to time by VJ Group Affiliation by notifying the Partner Company either by email or by posting a new version of the Agreement on the Affiliates website. In case of an amendment dealing with changes of legislation or regulatory policies, security requirements, detection or prevention of illegal activities (such as fraud) or similar matters, the amendments shall become binding on you immediately upon notification. In other cases an amendment becomes binding after 7 days from notification. It is your sole responsibility to check the Affiliate website to ensure that you are aware of the latest version of the Agreement. If an amendment to this Agreement is not acceptable to you, your sole remedy is to terminate this Agreement. Your continued acting under this Agreement and/or promoting the Service signifies your approval and acceptance of the amendment.
1.9 You undertake to carry out your obligations under this Agreement only for the commercial purposes intended herein, i.e. to promote the Participating Sites, and for no other purpose whatsoever (whether for hedging purposes of otherwise).
1.10 Unless explicitly stated otherwise in any of the supplementary rules, in case of any discrepancy between the supplementary rules and the above-mentioned VJ Group Affiliation Marketing Agreement, the provisions of this VJ Group Affiliation Marketing Agreement shall prevail.
1.11 For the purposes of this Agreement, the terms “controller”, “data subject”, “personal data”, “process”, “processing” and “processor” shall have the meaning given to them in the General Data Protection Regulation ((EU) 2016/679),) (“GDPR”).
- Definitions and interpretation
2.1. In this Agreement the following words and phrases shall have the meaning stated below:
2.1.1. “Affiliates Website” means www.vjgroupaffiliation.com or any replacement website applicable from time to time.
2.1.2 “Agreement” means this VJ Group Affiliation Marketing Agreement, as may be modified from time to time.
2.1.3. “Commission Account” shall mean the account that the Partner Company opens on VJ Group Affiliation’s or other system, as may be decided by VJ Group Affiliation, into which the Partner Commission is paid to the Partner Company.
2.1.4. “Dormant Player” shall mean a Player who, after becoming a Referred Player, has not logged into his player account with the relevant Participating Sites for 90 days. For the avoidance of doubt, once a Referred Player becomes a Dormant Player, VJ Group Affiliation may determine in its sole discretion if he/she permanently shall cease to be a Referred Player under this Agreement
2.1.5. “Gross Revenue” for any particular period of time shall mean the total wager less total winnings less total jackpot winnings generated by the Referred Players as a result of them using the Service on the Participating Sites.
2.1.6. “Net Revenue” for any particular period of time shall mean Gross Revenue for the same period of time less bonuses, incentives, jackpot contributions (jackpot wins shall not negatively affect Net Revenue), gaming, value added or digital service taxes and Service Fees.
2.1.7. “Participating Site(s)” means all sites mentioned on the Affiliates Website; which are website(s) owned and operated by VJ Group Affiliation or a Related Company and/or websites VJ Group Affiliation is authorized to promote. Additional websites may be added by VJ Group Affiliation and you can accept to promote them by expressly activating your account for these websites. Once you do so, such additional websites will be automatically included as another “Participating Site” under this Agreement.
2.1.8. “Partner Commission” shall mean the amount due to the Partner Company for the Partner Services rendered under this Agreement, calculated as provided in clause 5 of this Agreement.
2.1.9. “Partner Website” shall mean the website or websites stated under ‘Website’ in the Affiliate Signup Form and as many as may be added or amended from time to time. ‘Partner Website’ also encompasses any other website which host links to one or more VJ Group Affiliation Brands where such links pass referral information associated with the Partner Company.
2.1.10. “Partner Services” shall mean the services undertaken under this Agreement by the Partner Company as stated in clause 3.1. herein.
2.1.11. “Player” means any person using the Service of any of the Participating Sites.
2.1.12. “Player Data” shall mean any information about Players, whether arranged in a database or otherwise, including but not limited to their contact data and other personal data.2.1.13 “Quarantine” and “Quarantined Player” shall have the meaning defined in clause 5.6. [.]
2.1.14. “Referred Player” means any Player, not being a Player previously registered at any of the Participating Sites, who as a result of an independent effort of the Partner Company: (1) has been referred to any of the Participating Sites by the Partner Company, and (2) has properly registered and opened an account with any of the Participating Sites, as may be required by VJ Group Affiliation operating the Service, and (3) has been verified and accepted as a Player at any of the Participating Sites, and (4) has fulfilled any qualification conditions as may be prescribed by VJ Group Affiliation operating the Service, and (5) has made the first real money deposit into the said account, as determined solely by VJ Group Affiliation on the basis of information registered on the relevant Participating Site’s or VJ Group Affiliation’s system, and (6) has not become a Dormant Player. Referrals of Partner Company principals, business partner(s), family or friends will not be considered a Referred Player.
2.1.15 “Related Company” shall mean a company involved in the same corporate or day-to-day operational structure as Breckenridge Curacao B.V. or any owner/authorised licensee of the VJ Group Affiliation Brands.
2.1.16. “Service” means any service offered on any of the Participating Site(s).
2.1.17 “Service Fee” means any licensing fees, payment handling fees, chargeback fees and chargeback costs. With any out of the ordinary chargeback fees and chargeback costs VJ Group Affiliation reserves the right to apply additional deductions.
2.1.18. “VJ Group Affiliation Brand” shall mean a brand, trademark, trade name or a domain name, being operated as a skin or a white label on any of the Participating Sites, as may be amended from time to time by VJ Group Affiliation or the owner of the VJ Group Affiliation Brand. For the current list of Participating Sites please click here. It is your responsibility to check the current list of Participating Sites by checking the latest version of this Agreement as published on the Affiliates Website.
2.2. Clause headings are for information purposes only.
- Rights and Obligations of the Partner Company
3.1. The Partner Company shall carry out marketing, advertising and promotion of the Participating Sites and refer prospective Referred Players to the Participating Sites via the Partner Website and any other channels including but not limited to email and SMS messaging (“Partner Services”) in accordance with the terms and conditions of this Agreement.
3.2. The Partner Company shall perform Partner Services actively, effectively, with the best of its ability with the view of making the Service a successful long-term venture and maximizing the benefit for VJ Group Affiliation and the Partner Company.
3.3. The Partner Company shall provide space for banners and links promoting the Service on the Partner Website and, if approved by VJ Group Affiliation, on other websites and media channels.
3.4. Unless specifically agreed otherwise, all marketing material to be used by the Partner Company for carrying out the Partner Service shall be provided by VJ Group Affiliation at no cost to Partner Company.
3.5. Subject to its obligations under clauses 3.6, 3.7, 3.8, 3.10, 3.11 and 3.14, the Partner Company shall carry out the Partner Services as it deems appropriate and effective. The Partner Company shall be solely responsible for the manner in which the Partner Services are carried out and, in respect of marketing material not provided by VJ Group Affiliation, for the content of the said marketing material.
3.6. For any content of any promotion, advertising or marketing done by the Partner Company using any of the VJ Group Affiliation Brands, whether by way of banners, adverts or otherwise, the Partner Company shall at all times obtain and maintain a prior written approval from VJ Group Affiliation. In the case of marketing material provided by VJ Group Affiliation, the provision of such material shall be considered as approval to use such material.
3.7. The Partner Company shall conform and adhere to laws, good practice and good business conduct applicable to the Partner Company, to the operation of the Partner Company’s websites, including the Partner Website, and to the activities carried out by the Partner Company under this Agreement in the geographical markets where Partner Company carries out its activities under this Agreement or which are targeted by the Partner Company.
3.8. Without prejudice to the generality of clause 3.7 above, the Partner Company shall not itself nor authorize or encourage that any third party:
3.8.1. Cause disturbing marketing/traffic.
3.8.2. Conduct the Partner Services in unlawful manner or form, including placing or using any material which is malicious, obscene, sexually explicit, violent, potentially libellous, discriminatory, infringes anyone’s intellectual property rights or goodwill or reputation, targets persons under the age of 18 years (or higher age of majority in the jurisdictions that the Partner Company is targeting).
3.8.3. Interfere with the operation or accessibility of any of the Participating Sites.
3.8.4. Conduct the Partner Services in any way that is misleading or confusing as to the relationship amongst the Referred Player / prospective Referred Player, the Partner Company and VJ Affiliation operating the Participating Sites or as to the operation, functions or ownership of the Participating Sites.
3.8.5. Deploy or use any UMC (Unsolicited Mass Communications), also known as “spam”. Should it become evident to VJ Group Affiliation that the Partner Company does not adhere to this obligation, VJ Group Affiliation shall have the right to terminate this Agreement immediately in addition to other remedies available to VJ Group Affiliation at law. Moreover, should the Partner Company use spam, VJ Group Affiliation will close all account(s) of the Partner Company and withhold funds immediately. Due to ongoing efforts, legal actions will be taken should the use of spam be brought to VJ Group Affiliation’s attention.
3.8.6. Use any form of cookie fishing not promoting the Partner Brands according to brand guidelines.
3.8.7 Provide information or promotion regarding methods for players to defraud or abuse the bonus programs at any VJ Group Affiliation Brands.
3.8.8 Target or advertise to underage or otherwise vulnerable people.
3.9. The Partner Company acknowledges that promoting or soliciting bets is subject to legal restrictions in some countries and may even be prohibited. Such restrictions may vary from time to time. The Partner Company shall not enter into this Agreement if it targets any markets where gambling is illegal or where the promotion, marketing or advertising of gambling is illegal. The Partner Company shall be exclusively liable for such actions and shall hold VJ Group Affiliation harmless and shall fully indemnify VJ Group Affiliation for any liability incurred by VJ Group Affiliation if it doesn’t comply with the provision above.
3.10 The Partner Company is allowed to introduce sub-affiliates. It shall be the sole responsibility of the Partner Company to ensure that sub-affiliates are aware and agree with this Agreement and with all other conditions relevant and applicable to sub-affiliates. The Partner Company hereby undertakes to fully inform and keep informed all sub-affiliates it introduces about all relevant details in relation to the operation of this Agreement.
3.11. The Partner Company shall remain solely responsible towards VJ Group Affiliation for anything done or not done by any of the sub-affiliates it introduced. Any claim of a sub-affiliate arising out of or in connection with this Agreement is a matter solely and exclusively between the Partner Company and the sub-affiliate and neither VJ Group Affiliation nor any other Related Company shall accept any liability in this respect.
3.12. The Partner Company shall not allow any rake-backs in any form or by any means whatsoever. A breach of this condition shall give the right to VJ Group Affiliation to terminate this Agreement immediately.
3.13. The Partner Company acknowledges and accepts that the VJ Group Affiliation retains the right to change or withdraw any part of the Service, at any time and in any manner it deems appropriate, without prior notice to the Partner Company and without any liability whatsoever on the part of VJ Group Affiliation.
3.14. The Partner Company acknowledges and accepts that in order to carry out its obligations under this Agreement in particular in respect of calculating and paying the Partner Commission, VJ Group Affiliation requires to liaise with and obtain information from and pass information to affiliated companies providing the Service on the Participating Sites. In this respect, the Partner Company:
3.14.1. Authorizes VJ Group Affiliation to disclose to and to obtain from affiliated companies operating the Service all information that may be required for the proper operation of this Agreement;
3.14.2. Releases VJ Group Affiliation and such affiliated companies operating the Service from any and all liability related to or arising out of the above-mentioned disclosures.
3.15. The Partner Company shall have the right to utilize VJ Group Affiliation Brands during the period of validity of this Agreement solely and exclusively to the extent that such use has been approved by VJ Group Affiliation for the purposes of carrying out by the Partner Company the Partner Services in accordance with the terms of this Agreement. Without prejudice to the generality of the above:
3.15.1. The Partner Company shall not register or utilize in any way, whether as the Partner Website/software application or otherwise, any domain name that contains any of the VJ Group Affiliation Brands or their variations or misspellings. In case of doubt or similarity of a domain name to any of the VJ GROUP AFFILIATION brands or VJ Group Affiliation Brands, the Partner Company must obtain written consent from VJ Group Affiliation prior to registration or utilization of the domain name;
3.15.2. The Partner Company shall not utilize and shall not allow any third party to utilize any website or software application having a domain name / application name that contains any of the Partner Brands or their variations or misspellings in such a way that results in promoting any website other than the Participating Sites, whether by way of linking, redirecting traffic or otherwise; and
3.15.3. The Partner Company shall not market the Partner Website in any way that might compete with VJ Group Affiliation and/or its licensors´ own marketing efforts, unless the Partner Company has received prior written approval from VJ Group Affiliation in such regard. Without limiting the generality of the foregoing, the Partner Company shall not drive pay-per-click traffic to VJ Group Affiliation or the VJ Group Affiliation Brands, the Participating Sites, the Partner Website or any other website (including via any search engine, directory or online database) by way of bidding on search terms or key words, App Store Optimisation, portal appearance, forum appearance or other identifiers that consist of, include or are confusingly similar to any of the Partner Brand marks.
- Rights and Obligations of VJ Group Affiliation
4.1. VJ Group Affiliation shall make available to the Partner Company tools allowing the Partner Company to monitor the Partner Commission and the payments of the Partner Commission into the Commission Account using an online monitoring system at a secure website.
4.2. VJ Group Affiliation declares and the Partner Company acknowledges and accepts that the Service is operated by VJ Group Affiliation or a Related Company which is responsible for compliance with all regulation or legislation applicable to the operation of the Service. VJ Group Affiliation declares and the Partner Company acknowledges and accepts that VJ Group Affiliation shall not be liable for any losses or damages, howsoever caused, resulting from any change in government regulatory policies or legislation that may preclude or put any restriction on the operation of any part of the Service.
4.3. The Service shall be provided in any form and to any extent that VJ Group Affiliation operating the Service deems appropriate.
4.4. In case of any breach by the Partner Company of any of the Terms and Conditions of this Agreement, in addition to other remedies available to VJ Group Affiliation at law and under this Agreement, VJ Group Affiliation shall have the right to terminate this Agreement by a notice given to the Partner Company. Unless the breach by the Partner Company is serious and/or irreparable (which will be determined by VJ Group Affiliation in its sole discretion), before the termination VJ Group Affiliation shall allow the Partner Company a period of time not less than 10 days to give to the Partner Company the possibility to correct the matter and overcome the failure.
4.5. This Agreement does not impose any exclusivity obligation on VJ Group Affiliation. VJ Group Affiliation shall not be liable in any way whatsoever for engaging in any arrangement competing with the Partner Company.
4.6. Notwithstanding anything else stated in this Agreement, neither VJ Group Affiliation nor any other Related Company, their respective directors, officers, employees, partners, shareholders or consultants shall be held responsible or liable for any loss of income, or loss of the ability to produce income of the Partner Company, even if such loss arises from the inability of VJ Group Affiliation to ensure the delivery of the Service stipulated in this Agreement for any reason whatsoever, whether VJ Group Affiliation is at fault or whether a third party is at fault.
4.7. Unless explicitly stated in this Agreement, VJ Group Affiliation does not make any warranty or representation of any kind.
4.8. In case of a breach by the Partner Company of clause 3.14, in addition to other remedies available to VJ Group Affiliation at law, VJ Group Affiliation shall have the right to become registered as the registrant of all domain names registered or utilized by the Partner Company in breach of clause 3.14 and the Partner Company shall assist VJ Group Affiliation and/or shall assign to VJ Group Affiliation or to the owner of the VJ Group Affiliation Brand, as may be specified by VJ Group Affiliation, all the said domain names irrespective of whether they are top level generic domain name, top country level domains or otherwise.
- Partner Commission
5.1. In consideration for the Partner Services provided by the Partner Company, VJ Group Affiliation or its nominee shall pay to the Partner Company the Partner Commission as stated in this clause 5.
5.2. The Partner Commission payable to the Partner Company shall be based on a percentage of Net Revenue generated by Referred Players in a given calendar month. Payment of Partner Commission is dependent on continuous and ongoing promotion of the Participating Sites and the Partner Commission percentage is determined by the total amount of Net Revenue generated. The standard Partner Commission ladder is outlined in the table below by way of indicative example:
|Number of Referred Players||Commission|
|0 – 10||20%|
|11 – 20||23%|
In cases where the Partner Company introduced sub-affiliates the Partner Company can receive sub-affiliate commission due to the said sub-affiliates after agreement with the designated affiliate manager and approved by the VJ Group Affiliation affiliate director.
5.3. VJ Group Affiliation shall ensure that Partner Commission is paid to the Partner Company on a monthly basis in arrears, not later than the last day of each month in respect of the Partner Commission for the preceding month. The payment shall be accompanied by a written statement that details the calculation of the Partner Commission.
5.4. The Partner Commission shall only be invoiced for, and become payable to, the Partner Company upon:
5.4.1 the Partner Commission amount being equal to or in excess of one hundred euros (€100.00) (and such threshold shall be deemed as the point at which the services have been rendered); and
5.4.2 the Partner Company completing submission of all account profile information required by VJ Group Affiliation (including without limitation VAT information and selection of a self-billing option).
5.5 Where the Partner Company has opted to select self-billing and reasonably believes that an invoice includes a sum which is not accurate or correct, it shall notify VJ Group Affiliation in writing within five (5) business days of the date of invoice. If VJ Group Affiliation does not receive any notification from the Partner Company, the invoice shall be deemed as approved.
5.6 The Partner Commission shall be paid into the Commission Account.
5.7. Any charges that may be applicable to the withdrawal of the Partner Commission from the Commission Account by the Partner Company shall be borne solely by the Partner Company.
5.8. VJ Group Affiliation has the right to adjust payments of the Partner Commission from time to time to reflect any overpayments or other applicable deductions, which were not deducted earlier, such as chargebacks/refunds and related bank fees.
5.8.1 In cases where:
(i) the Partner Company has an individual Referred Player that has generated a negative Net Revenue of -€5,000 or lower; and
(ii) the total Net Revenue applicable to the Partner Company for the month is zero (€0) or lower;
the negative Net Revenues generated by that specific Referred Player shall not be included in the calculation of total Net Revenue applicable for the Partner Company (“Quarantine” and such Referred Player shall be a “Quarantined Player”) until the individual balance of the Quarantined Player has reached a positive sum.
5.8.2 In cases where more than one Referred Player is placed into Quarantine, each will have their own negative balance managed separately for the purpose of clause 5.6.1.
5.8.3 Quarantined Player negative balance, when carried forward, will not be offset against Net Revenue generated by other players.
5.8.4 Once a Quarantined Player has generated Net Revenue sufficient to offset their individual negative balance, their Net Revenue will once again contribute to the general Partner Commission.
5.8.5 VJ Affiliation Group shall not apply any negative carryover. A negative Partner Commission in a given month, will not affect the calculation of Partner Commission in future months.
5.9. All payments of the Partner Commission shall be made in Euro or in such other currency that may be determined by VJ Group Affiliation regardless of the currency used by the Referred Players to use the Service.
5.10. VJ Group Affiliation shall have the right to withhold any and/or all payments to the Partner Company if the Partner Company is in breach of any of the provisions of this Agreement.
5.11. The Partner Commission stated in clause 5.2 above may be subject to VAT, GST or similar taxes (“Tax”) which vary depending on the laws of the country where the Partner Company is operating. If the Partner Company is a business registered for VAT in Malta, VAT shall be paid by VJ Group Affiliation into the Commission Account in addition to the amounts stated in 5.2 only on receipt of a valid VAT invoice. If the Partner Company is based in Malta but not registered for VAT, no VAT shall be paid by VJ Group Affiliation into the Commission Account. If the Partner is not based in Malta, VJ Group Affiliation will account for VAT in Malta in relation to the Partner Services (under reverse charge) and no VAT shall be paid by VJ Group Affiliation into the Commission Account. The Partner Company must comply with all applicable Tax laws in the place where it does business, including complying with obligations to register for VAT if the Partner Commission exceeds the VAT registration threshold.
5.12. The Partner Company shall be solely responsible for registering and accounting for any and all taxes due in relation to any payment made to the Partner Company in terms of this Agreement.
5.13. The Partner Company has the right, at its own expense and at reasonable intervals (no more than once per year), to audit the systems and the figures related to this agreement.
- Duration and Termination
6.1. This Agreement shall become effective as stated in clause 1.7. of this Agreement.
6.2. This Agreement may be terminated by either party by giving 30 days’ written notice to the other party.
6.3. Unless otherwise stated explicitly in this Agreement, each party has the right to terminate this Agreement with immediate effect if the other party is in material breach of this Agreement.
6.4. VJ Group Affiliation reserves the right to terminate this Agreement by a notice in writing (an email being sufficient): (i) if at any time VJ Group Affiliation deems in its reasonable opinion that the Partner Company does not actively promote the Participating Sites including by not referring a reasonable number of Players to the Participating Sites, for a period of one (1) month (and not actively promoting the Participating Sites shall be deemed a material breach of this Agreement); or (ii) for business reasons or for any other reason in accordance with its internal policies, standards and controls.
6.5. In the event of termination of this Agreement without any fault or breach on the part of the Partner Company, the Partner Company shall have the right to continue to receive a Partner Commission, as stated in clause 5, for the period of six months after the date of termination with respect to Referred Players who continue to utilize the Service. The right of the Referred Company to receive the Partner Commission shall cease upon the termination of this Agreement for any other reason. If the Partner Company wishes to resume promotion of the Participating Sites, a new agreement will have to be entered into between the Partner Company and VJ Group Affiliation; and no Referred Player under this Agreement shall be considered as such under any new agreement.
6.6. Referred Players and all Player Data shall remain the property of VJ Group Affiliation at all times.
6.7. Unless explicitly stated otherwise, and with the exception of Confidentiality and Non-Disclosure, all rights and obligations of each Party under this Agreement will cease upon the termination of this Agreement. This shall not prejudice any right accrued to a Party before such termination.
- Confidentiality, Data Protection, Use of Personal Information, Player Data and Non-Disclosure
7.1. Each party acknowledges and agrees that it may have access to or become acquainted with confidential information of the other party. Each party specifically agrees not to misuse, misappropriate or disclose any such confidential information of the other party to any third party, whether directly or indirectly, unless compelled to do so by law.
7.2. Each party accepts that any information of the other party or relating to the other party, including but not limited to information in respect of business and business methods, finances, clients, partners, suppliers, any intellectual property right, whether registered or not, is confidential information of that party unless such information has been put by that party into public domain.
7.3. The Partner Company acknowledges and accepts that all Player Data, including data relating to Referred Players, is the exclusive property of VJ Group Affiliation or other affiliated companies and shall remain so regardless of any termination of this Agreement.
- 7.4 The Partner warrants, represents and undertakes (as applicable) on a continuing basis that it has complied prior to the date of this Agreement, and will comply, with all Applicable Laws, including Data Protection Legislation and its obligations set out in Schedule 1.Indemnification
8.1. The Partner Company shall hold harmless and shall indemnify VJ Group Affiliation for any and all damages of losses suffered by VJ Group Affiliation or its officers or representatives due to any breach by the Partner Company of this Agreement.
9.1. Entire agreement. In case of conflict between this Agreement and other agreements, oral or written, with respect to the matter contemplated hereunder, between VJ Group Affiliation and the Partner Company, this Agreement shall prevail.
9.2. Written amendment. Any amendments to this Agreement shall be agreed upon in writing and signed by authorized representatives for both Parties.
9.3. Assignment. The Partner Company may not assign or transfer this Agreement, in whole or in part, without VJ Group Affiliation’s prior written consent. VJ Group Affiliation may wholly or partly assign or otherwise transfer its rights and obligations under this Agreement to any other company.
9.4. Severability. If any provision of this Agreement is deemed illegal, invalid or unenforceable, this shall not affect the validity or enforceability of any other provisions of this Agreement.
9.5. Force majeure. Notwithstanding any other provisions specified herein, either Party shall be entitled to suspend performance of its obligations under the Agreement in the occurrence of an event beyond the reasonable control of the Party affected, impeding performance or making performance unreasonably onerous, (”Force majeure”) including, but not limited to local and general industrial disputes, fire, war (whether declared or not), armed conflict, terrorist activity, extensive military mobilization, insurrection, requisition, seizure, embargo, governmental action, export and import restrictions, restrictions in the use of power and delays or defects in deliveries by subcontractors caused by such circumstances referred to in this clause. The Party claiming to be affected by Force Majeure shall without undue delay after the occurrence notify the other Party in writing thereof.
9.6. Waiver. No failure or delay of either Party to enforce any one or more provisions of this Agreement, exercise any option which is herein provided, or require the timely performance of any of the terms or provisions hereof, shall be construed or act as a waiver of such term or provision of this Agreement. Either Party may waive the compliance by the other Party with any term or provision here of only by an instrument in writing. The waiver by either Party of any term or provision of this Agreement shall not be construed or act as a waiver concerning any term or provision for the future or any subsequent breach.
9.7. Handling of negative publicity. Upon notice of any negative publicity concerning the Partner Company, or the Partner Company’s owner(s), which VJ Group Affiliation management believes can damage the reputation of and its brands or those of Related Companies, VJ Group Affiliation has the right to terminate the Agreement immediately.
9.8. Temporary disruptions due to hardware failure. The Parties acknowledge that from time to time, as a result of hardware failure, supplier failures, or the like, the services provided under this Agreement by the Parties can be temporarily disrupted. The Partner Company acknowledges and agrees that neither VJ Group Affiliation nor any of its members, shareholders, directors, officers, employees or representatives will be liable to the Partner Company for any special, indirect, consequential, punitive or exemplary damages, or damages for loss of profits or savings, in connection with these temporary disruptions.
9.9. Applicable law. This Agreement shall be governed by and construed in accordance with the law of Malta.
9.10. Dispute resolution. The Parties shall amicably attempt to solve any dispute relating to this Agreement through negotiations between high-level executives of the Parties. If such negotiations are not successful after a period of sixty (60) days from a claim in writing for such negotiations from either Party, the other Party has the right to bring the dispute to final settlement through the courts of Malta. The above notwithstanding, either Party shall be entitled to seek an injunction in any relevant jurisdiction.
IN WITNESS WHEREOF, THE PARTNER COMPANY expressly agrees to the terms and conditions of this Agreement by activating the account at VJ Group Affiliation.
Version 0.3 – 1 May 2021
These Terms and Conditions are available in Japanese and English language for information purposes and ease of access. From a legal perspective, the Japanese language version of these Terms and Conditions will prevail.
DATA PROCESSING TERMS
The following definitions and rules of interpretation apply in this Schedule 2:
“Controller“, “Processor”, “Data Subject”, “Personal Data” and “processing” all have the meanings given to those terms in Data Protection Legislation (and related terms such as “process” shall have corresponding meanings). To the extent that the Act on the Protection of Personal Information of Japan (Act No. 57 of 2003) (“APPI“) is applicable:
“Controller” means a “personal information handling business operator (kojin jouhou toriatsukai jigyousha)” (as defined in Article 2, Paragraph 5 of the APPI) who entrusts a whole or part of the handling of the Personal Data within the necessary scope to achieve its utilisation purpose as set out in Article 23, Paragraph 5, Item 1 of the APPI;
“Processor” means a party who is entrusted by a Controller a whole or part of the handling of the Personal Data within the necessary scope to achieve the utilisation purpose as set out in Article 23, Paragraph 5, Item 1 of the APPI;
“Data Subject” means a “principle (honnin)” as defined in Article 2, Paragraph 8 of the APPI;
“Personal Data” means “personal information (kojin jouhou)” as defined in Article 2, Paragraph 1 of the APPI; and
“processing” means handling (toriatsukai) of Personal Data.
“Data Protection Legislation” means all laws, regulations, legislative and regulatory requirements and codes of practice applicable to the protection and Processing of Personal Data and privacy including, without limitation the UK Data Protection Act 2018 and any regulations or instruments thereunder, the UK’s Privacy and Electronic Communication (EC Directive) Regulations 2003, (and any superseding applicable laws Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”) and any applicable implementing legislation, together with any guidance and code of practice issued by the United Kingdom’s Information Commissioner, and the APPI and any ancillary regulations and guidelines made or published thereunder, all as amended, replaced or superseded from time to time;
“EEA” means the European Economic Area;
“VJ Group Affiliation Company” means, as applicable, VJ Group Affiliation and any relevant entity controlling, controlled by or under common control with VJ Group Affiliation that uses the services provided by Partner Company, each as a Controller in accordance with Data Protection Legislation for the purposes of the Services Agreement and this Agreement. For the purpose of this definition “control” means in respect of any corporate entity, the legal or beneficial ownership, directly or indirectly, of fifty per cent (50%) or more of the shares of such corporate entity ordinarily having voting rights or control directly or indirectly of the appointment of a majority of the board of management and “controlled” and “controlling” shall be interpreted accordingly;
“VJ Group Affiliation Personal Data” means Personal Data provided or made available to Partner Company or collected or created for a VJ Group Affiliation Company in connection with this Agreement;
“Model Clauses” means the standard contractual clauses annex to the Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries (and any successor clauses) and as available at https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32010D0087;
“Security Incident” means unauthorised acquisition, access, use or disclosure of VJ Group Affiliation Personal Data;
“Sub-Processor” means any third party appointed by a Processor to process Personal Data subject to the Controller’s prior approval; and
“Supervisory Authority” means any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering Data Protection Legislation.
- SCOPE AND ROLES
In consideration of VJ Group Affiliation agreeing to provide or procure the provision of VJ Group Affiliation Personal Data to Partner Company and the mutual obligations of the parties, the parties have agreed that:
- the terms of this Agreement will apply to and govern all processing by Partner Company of VJ Group Affiliation Personal Data in connection with the Services Agreement;
- this Agreement is supplemental to the Services Agreements and, in the case of conflict or inconsistency between any of the provisions of this Agreement and the provisions of the Services Agreement, the provisions of this Agreement shall prevail to the extent of such conflict or inconsistency.
- Where Partner Company is Processing VJ Group Affiliation Personal Data in order to provide the services under the terms of the Services Agreement, the parties acknowledge and agree that the VJ Group Affiliation Company is the Controller and Partner Company is a Processor in respect of VJ Group Affiliation Personal Data being Processed.
- Nature, Scope and Purpose of Data Processing.The scope, subject matter, nature and purpose of Processing (including the type of Personal Data and categories of data subject) covered by this Agreement are set out in Appendix 1.
- Compliance with Data Protection Legislation.Partner Company shall:
- have in place a data protection officer where required by applicable Data Protection Legislation. The contact details are set out in Appendix 1;
- comply with and Process all VJ Group Affiliation Personal Data in accordance with applicable Data Protection Legislation (including the implementation of measures in line with the purport of the provisions under Chapter IV, Section 1 of the APPI pursuant to the relevant guidelines of the APPI, if required for the provision of VJ Group Affiliation Personal Data to Partner Company); and
- promptly notify VJ Group Affiliation about any circumstance where it is unable to comply with the Data Protection Legislation or any actual or potential changes to the Data Protection Legislation, which affect Partner Company’s ability to comply with its obligations under this Agreement. Where Partner Company is unable to comply with the Data Protection Legislation, VJ Group Affiliation will have the right to suspend the Processing until such time as the Processing is adjusted in such a manner that the non-compliance is remedied. To the extent such adjustment is not possible, VJ Group Affiliation shall have the right to terminate the relevant part of the Processing by Partner Company.
- Instructions: Processor will only act upon VJ Group Affiliation Company’s instructions in connection with the Processing of VJ Group Affiliation Personal Data as set out in this Agreement (and its Appendix 1) and otherwise as provided in writing by VJ Group Affiliation Company to Partner Company from time to time. VJ Group Affiliation Personal Data will be used in accordance with and for the purposes set out in the documented instructions and only where necessary to provide the Services to VJ Group Affiliation Companies. If the Partner Company is ever unsure as to the parameters of such instructions it will, as soon as reasonably practicable, revert to the VJ Group Affiliation Company for the purpose of seeking clarification or further instructions.
- Notice of non-compliant instructions: Partner Company shall notify VJ Group Affiliation Company immediately if, in its opinion, an instruction infringes Data Protection Legislation.
- Co-operation.Partner Company shall co-operate and assist VJ Group Affiliation Companies with any data protection impact assessments and consultations with (or notifications to) relevant Supervisory Authority that VJ Group Affiliation Companies consider are relevant pursuant to Data Protection Legislation in relation to the VJ Group Affiliation Personal Data and the Services.
- Processor personnel.Partner Company shall procure that its personnel are obligated to maintain the security and confidentiality of any VJ Group Affiliation Personal Data as provided in this Agreement and this obligation continues even after their engagement ends. Processor shall ensure that the personnel processing VJ Group Affiliation Personal Data receive adequate training on compliance with Data Protection Legislation applicable to the processing.
- Data subject rights. Taking into account the nature of the processing activities as described in Appendix 1, the Processor shall assist VJ Group Affiliation Company by appropriate technical and organisation measures, insofar as this is possible, for the fulfilment of its obligations to respond to requests for exercising the data subject rights laid down in Chapter III of the GDPR and the APPI as such it agrees to forward to VJ Group Affiliation Company (within three (3)Working Days of receipt of the request) and otherwise co-operate with and assist VJ Group Affiliation Company at no charge to respond to any requests from or exercise of rights by data subjects (as laid down in Chapter III of the GDPR and the APPI) in respect of the VJ Group Affiliation Personal Data pursuant to Data Protection Legislation (including access to, rectification, erasure or portability of, or for restriction of, or objections to, the Processing of, that data subject’s Personal Data). Processor undertakes that any Sub-Processor appointed in accordance with the terms of this Agreement will comply with the terms of this section.
- Deletion or return of VJ Group Affiliation Personal Data.Processor shall at VJ Group Affiliation Company’s option, delete or return all copies of VJ Group Affiliation Personal Data within thirty (30 days) of the end of the provisions of services relating to the processing (unless required by applicable law to retain such VJ Group Affiliation Personal Data) and cease Processing such VJ Group Affiliation Personal Data after the business purposes for which the VJ Group Affiliation Personal Data was Processed have been fulfilled, or earlier upon VJ Group Affiliation Company’s written request.
- VJ Group Affiliation Personal Data sent in error. Should Processor receive a copy of VJ Group Affiliation Personal Data in error (such error being notified by VJ Group Affiliation to Processor in writing), Processor shall immediatelyreturn such VJ Group Affiliation Personal Data to the sender, and subsequently immediately and permanently delete it. Processor shall certify to VJ Group Affiliation in writing that it has complied with its obligations under this clause 2.7, and provide evidence of such compliance.
- Information: Partner Company shall, on a VJ Group Affiliation Company’s request, make available to VJ Group Affiliation Companies all information necessary to demonstrate compliance with the obligations in this Agreement.
- Partner Company shall maintain a record of all categories of processing activities carried out on behalf of VJ Group Affiliation Companies which shall be made available to VJ Group Affiliation Companies upon request.
- Partner Company will not disclose VJ Group Affiliation Personal Data to any third party except: (i) as VJ Group Affiliation Company directs (including as permitted under this Agreement); or (ii) as required by law.
- In the event that Partner Company receives any request for disclosure of (or information in relation to) VJ Group Affiliation Personal Data by a court, regulatory body or law enforcement body:
- Partner Company will, to the extent allowed by law, including the terms of the third party request itself, at no additional charge: (i) attempt to redirect the relevant court or body to request that data or information directly from VJ Group Affiliation Company; (ii) promptly notify VJ Group Affiliation Company of receipt of the request; and (iii) use commercially reasonable efforts to comply with VJ Group Affiliation Company’s reasonable requests regarding its efforts to oppose the request. If compelled to disclose VJ Group Affiliation Personal Data to the relevant court or body, then Partner Company will promptly notify VJ Group Affiliation Company and provide a copy of the demand, unless legally prohibited from doing so.
- If Partner Company receives a third party request which is subject to an order not to disclose such request to VJ Group Affiliation Company, Partner Company will challenge such order in a court of competent jurisdiction and seek court permission to allow VJ Group Affiliation to intervene in the proceedings. Partner Company shall conduct the challenge at its own expense.
- As part of this effort, Partner Company may provide VJ Group Affiliation Company’s basic contact information to the requesting court or body.
- In the event that Partner Company receives any request for disclosure of (or information in relation to) VJ Group Affiliation Personal Data in a circumstance not covered by clause 2: (i) Partner Company shall promptly forward such request to VJ Group Affiliation Company; and (ii) at no charge, co-operate and assist VJ Group Affiliation Company with such request where so directed by VJ Group Affiliation Company (including in relation to requests from data subjects pursuant to Data Protection Legislation).
- Partner Company has implemented and will maintain throughout the term of the Agreement appropriate technical and organisational measures, internal controls and information security routines (as described in Appendix 2 or as available here) intended to protect VJ Group Affiliation Personal Data against accidental, unauthorized or unlawful access, disclosure, alteration, loss, or destruction. These shall at all times be of at least the minimum standard required by Data Protection Legislation and further be of a standard no less than the standards compliant with good industry practice for the protection of Personal Data to ensure a level of security for the VJ Group Affiliation Personal Data appropriate to the risk and to assist VJ Group Affiliation Companies in ensuring compliance with the requirements for the security of processing as set out in Data Protection Legislation.
- Partner Company shall ensure that all VJ Group Affiliation Personal Data is encrypted at all times while in the possession or under the control of Partner Company.
- NOTIFICATION AND INCIDENTS
- If Partner Company becomes aware of or reasonably suspects that any Security Incident has occurred, Partner Company will without undue delay (and in any event within twenty-four (24) hours):
- notify VJ Group Affiliation Company of the Security Incident by emailing email@example.com;
- investigate (including interviewing service personnel) the Security Incident and provide VJ Group Affiliation Company with detailed information about the Security Incident including making available a suitably senior, appropriately qualified individual to discuss any concerns or questions VJ Group Affiliation Company may have;
- take reasonable steps to mitigate the effects and to minimise any damage resulting from the Security Incident and assist VJ Group Affiliation Company in remediating or mitigating any potential damage from a Security Incident to the extent that such remediation or mitigation is within Partner Company’s control as well as reasonable steps to prevent a recurrence of such Security Incident, including interviewing and the possible removal of service personnel from the performance of services for VJ Group Affiliation Company; and
- fully cooperate with VJ Group Affiliation Company to develop and execute a response plan to address the Security Incident. Partner Company shall at request of VJ Group Affiliation Company co-operate in adequately informing the regulatory or individuals involved as so directed by VJ Group Affiliation Company.
- If Partner Company becomes aware of or reasonably suspects that any Security Incident has occurred, Partner Company will without undue delay (and in any event within twenty-four (24) hours):
- Partner Company shall not permit Sub-Processors to Process VJ Group Affiliation Personal Data without the prior written approval of VJ Group Affiliation Company. Those Sub-Processors approved as at the commencement of this Agreement are as set out in Appendix 1. Any changes to the Sub-Processors involved in any Processing pursuant to this Agreement (including any change in the scope or nature of the VJ Group Affiliation Personal Data involved or any addition or replacement of Sub-Processors approved by VJ Group Affiliation) must be pre-approved in writing by VJ Group Affiliation on behalf of itself or VJ Group Affiliation Company.
- It is a condition of any appointment authorised in accordance with this clause 6that Partner Company remains fully liable to VJ Group Affiliation and VJ Group Affiliation Company for the Sub-Processors’ performance of the Service Agreement and this Agreement, as well as for any acts or omissions of the Sub-Processor in regard of its Processing of Personal Data.
- Partner Company shall ensure that Sub-Processors shall be contractually bound to the same obligations with respect to the Processing of VJ Group Affiliation Personal Data as are set out in this Agreement. Partner Company shall provide copies of documentation to evidence its compliance with this provision to VJ Group Affiliation on request.
- TRANSFER OF DATA
- Transfers from the EEA to countries outside the EEA or from the UK to countries outside the EEA
- Partner Company (or any Sub-Processor) shall only transfer VJ Group Affiliation Personal Data from the EEA to a country outside the EEA (or from the UK to a country outside the EEA) where VJ Group Affiliation has provided its written approval to such transfer. Approved transfers as at the commencement of this Agreement are set out in Appendix 1. Where the Affiliate located in a territory outside of the EEA and UK which is not subject to a current finding by the European Commission (or UK Information Commissioner’s Office as relevant) under applicable Data Protection Legislation that it provides adequate protection for Personal Data and the Controller is located within the EEA or UK, the parties agree that the Model Clauses as set out in Annex B shall apply and be incorporated into this Agreement.
- Transfers pursuant to clause 1.1shall only be permissible where:
- the entity receiving the VJ Group Affiliation Personal Data is located in a territory which is subject to a current finding by the European Commission (or UK Information Commissioner’s Office as relevant) under applicable Data Protection Legislation that it provides adequate protection for Personal Data;
- the transfer is governed by the Model Clauses or is subject to an alternative mechanism approved by relevant authorities pursuant to Data Protection Legislation (e.g. Binding Corporate Rules) to the extent that the Model Clauses or other mechanism continue to be recognised and accepted by the relevant authorities. Where Partner Company or Sub-Processor is the exporting entity in the EU, it shall enter into the Model Clauses with the entity receiving the VJ Group Affiliation Personal Data on behalf of VJ Group Affiliation (and shall provide copies of such EU Model Clauses upon VJ Group Affiliation’ written request). Where VJ Group Affiliation or a VJ Group Affiliation Company (as opposed to Partner Company or Sub-Processor) is the exporting entity, Partner Company shall procure that the entity receiving the VJ Group Affiliation Personal Data pursuant to this clause, enters into Model Clauses with the VJ Group Affiliation Company prior to any such transfer taking place (and shall provide copies of such EU Model Clauses upon VJ Group Affiliation’ written request); or
- the necessary statutory approvals required to be obtained by Partner Company (or Sub-Processor) as a data processor (or Sub-Processor), if any, have all been obtained to enable the transfer of Personal Data.
- The Parties agree that in the event of any inconsistency between the terms of the DPA and the terms of the applicable EU Model Clauses, then the terms of the applicable EU Model Clauses, should prevail between the Parties.
- Other transfers out of originating country
- To the extent that any Processing of VJ Group Affiliation Personal Data by Partner Company (or Sub-Processor) pursuant to this Agreement may involve the transfer of such VJ Group Affiliation Personal Data out of the country in which it is held and such transfer is not covered by clause 1, Partner Company (or any Sub-Processor) shall only transfer that VJ Group Affiliation Personal Data where VJ Group Affiliation has provided its prior written consent to such transfer.
- Transfers pursuant to clause 2.1shall only be permissible where any measures required under Data Protection Legislation are in place and remain valid.
- Subject to reasonable written advance notice, Partner Company shall permit VJ Group Affiliation and/or a qualified representative (subject to reasonable and appropriate confidentiality undertakings) to conduct during normal working hours periodic security scans and audits of Partner Company’s (or its Sub-Processors’) systems and processes in relation to VJ Group Affiliation Personal Data and shall comply with all reasonable requests or directions by VJ Group Affiliation to verify and/or procure that Partner Company is in full compliance with its obligations under this Schedule. Partner Company shall promptly resolve, at its own expense, all security issues discovered by VJ Group Affiliation and reported to Partner Company.
- VJ Group Affiliation shall have the right following any such audit to request additional safeguards, establish back-up security for VJ Group Affiliation Personal Data and keep back-up VJ Group Affiliation Personal Data and VJ Group Affiliation Personal Data files in Partner Company’s (or its Sub-Processors’) possession. The parties shall agree on the additional safeguards to be implemented, if any.
- Partner Company represents, warrants and undertakes that:
- it will comply with all applicable Data Protection Legislation;
- the Processing of VJ Group Affiliation Personal Data described in or contemplated by this Agreement and the Processing of VJ Group Affiliation Personal Data by Partner Company in accordance with the written instructions from time to time of VJ Group Affiliation shall not cause VJ Group Affiliation or require any person to be in breach of the Data Protection Legislation; and
- it shall at all times for the duration of this Agreement and for a period of two (2) years thereafter, at its own cost, effect (with a reputable insurer satisfactory to VJ Group Affiliation) appropriateinsurance policies in relation to normal commercial risks and liabilities arising from Partner Company’s obligations under this Agreement in the amount of not less than £5,000,000.00 for each and every event, together with adequate employer’s liability insurance and shall as soon as practicable after the date of this Agreement, notify such insurer of its obligations hereunder and shall ensure that VJ Group Affiliation is noted on the certificate of insurance and provide a copy of such certificate to VJ Group Affiliation on demand.
Partner Company shall indemnify on demand and hold harmless VJ Group Affiliation and each of VJ Group Affiliation Company(s) from and against all claims, loss, damages, liability (including any direct, indirect or consequential losses, loss of profit and loss of reputation, whether arising in tort (including without limitation negligence), in contract or otherwise) and cost, (including legal costs), fees and expenses arising directly or indirectly out of or in connection with a breach by Partner Company of its obligations under this Agreement. Notwithstanding anything to the contrary within the Agreement, nothing shall limit Partner Company’s liability under the indemnity in this clause 10.
- TERM AND TERMINATION
- This Agreement shall commence on the date that it is entered into and shall continue in full force and effect until the later of the termination of the last of the Services Agreements on which date it shall automatically terminate.
- The provisions of this Agreement shall apply to any Processing of Personal Data received prior to execution of the Agreement, including during any transitional or migration phase.
- Without affecting any other right or remedy available to it, VJ Group Affiliation may immediately terminate this Agreement by notice in writing to Partner Company if Partner Company commits a material breach of any provision of this Agreement or Partner Company repeatedly breaches any of the provisions of this Agreement.
- The provisions of this Agreement which place obligations on Partner Company in respect of the processing of VJ Group Affiliation Personal Data shall continue in force and effect until such time as all VJ Group Affiliation Personal Data (including all copies thereof) has either been returned and/or destroyed.
- Clauses 2,5, 8, 1.3, 10, 11.3, 11.4, 11.5and 13together with those other clauses the survival of which is necessary for the interpretation or enforcement of this Agreement, shall continue to have effect after the termination of this Agreement.
- Save as expressly stated otherwise, any notice given to a party under or in connection with this Agreement shall be in writing in the English language and shall be delivered by hand or by pre-paid first-class recorded post or by courier at its registered office or principal place of business. For the avoidance of doubt and save as expressly stated otherwise, a notice given under this Agreement is not valid if sent by fax or email.
- A courtesy copy of any notice to VJ Group Affiliation or a VJ Group Affiliation Company sent pursuant to this Agreement shall also be sent by email to firstname.lastname@example.org.
- The foregoing sub-clauses of this clause do not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution where any service may be made by any means permitted by law.
- Partner Company shall not assign, transfer, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement without the prior written consent of VJ Group Affiliation.
- The parties agree to take account of any change in Data Protection Legislation, the Personal Information Protection Commission Japan or other relevant supervisory authority. VJ Group Affiliation may on not less than 30 days’ notice to Partner Company amend this Agreement to ensure that it complies with any such change in law or guidance.
- Subject to clause 2, No variation of this Agreement shall be effective unless it is in writing and signed by the parties to this Agreement.
- GOVERNING LAW AND JURISDICTION
- This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Malta.
- Each party irrevocably agrees that the courts of Malta shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims), provided that nothing in this clause shall prevent a party from enforcing any judgement obtained in the court of Malta in any other court with jurisdiction over the other party.
|Subject Matter, Nature and Purpose of Processing||The Affiliate is permitted only to access and view VJ Group Affiliation Personal Data, and only as, and for as long as, necessary to verify Commission paid or payable by VJ Group Affiliation pursuant to clause 5.|
|Personal Data||See “VJ Group Affiliation Personal Data”|
|Data Subjects||See “Player”|
|Permitted Subcontractors and Transfers|
Standard Contractual Clauses
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
Each of the VJ Group Affiliation Group Company’s expressly identified in clause 1 of the Agreement as relevant are hereafter referred to as the “Data Exporter” with respect to the personal data provided by the respective Data Exporter.
The Data Exporter and the Data Importer, each a “party” and collectively “the parties” HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
For the purposes of the Clauses:
- personal data, special categories of data, process/processing, controller, processor, data subjectand supervisory authority shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
- the data exportermeans the controller who transfers the personal data;
- the data importermeans the processor who agrees to receive from the data exporter personal data intended for processing on its behalf after the transfer in accordance with its instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
- the sub-processormeans any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with its instructions, the terms of the Clauses and the terms of the written subcontract;
- the applicable data protection lawmeans the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
- technical and organisational security measuresmeans those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
- Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
- Third-party beneficiary clause
- The data subject can enforce against the data exporter this clause 3, clause 4(b)to clause 4(i), clause 5(a) to clause 5(e) and clause 5(g) to clause 5(j), clause 1 and clause 6.2, clause 7, clause 8.2 and clause 9 to clause 12 as third-party beneficiary.
- The data subject can enforce against the data importer this clause, clause 5(a)to clause 5(e) and clause 5(g), clause 6, clause 7, clause 2 and clause 9 to clause 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
- The data subject can enforce against the sub-processor this clause 1, clause 5(a)to clause 5(e) and clause 5(g), clause 6, clause 7, clause 8.2, and clause 9 to clause 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
- The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
- Obligations of the data exporter
The data exporter agrees and warrants:
- that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
- that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
- that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
- that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
- that it will ensure compliance with the security measures;
- that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
- to forward any notification received from the data importer or any sub-processor pursuant to clause 5(b)and clause 3 to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
- to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2 and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
- that, in the event of sub-processing, the processing activity is carried out in accordance with clause 11by a sub-processor providing at least the same level of protection for the personal data and the rights of data subjects as the data importer under the Clauses; and
- that it will ensure compliance with clause 4(a)to clause 4(i).
- Obligations of the data importer
The data importer agrees and warrants:
- to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
- that it will promptly notify the data exporter about:
- any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
- any accidental or unauthorised access; and
- any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
- to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
- at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
- to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
- that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
- that the processing services by the sub-processor will be carried out in accordance with clause 11; and
- to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
- The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in clause 3or in clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
- If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or its sub-processor of any of their obligations referred to in clause 3or in clause 11 because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
- If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in clause 3or in clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.
- Mediation and jurisdiction
- The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
- to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
- to refer the dispute to the courts in the Member State in which the data exporter is established.
- The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
- Cooperation with supervisory authorities
- The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
- The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
- The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in clause 5(b).
- Governing law
The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely the United Kingdom.
- Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clauses.
- The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
- The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in clause 3for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
- The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the laws of the Member State in which the data exporter is established, namely the laws of England and Wales.
- The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
- Obligation after the termination of personal data processing services
- The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
- The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.
This Appendix 1 forms part of the Clauses and must be completed and signed by the parties.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix 1.
|The data exporter is (please specify briefly your activities relevant to the transfer):||Online game provider.|
|The data importer is (please specify briefly your activities relevant to the transfer):||Marketing Affiliate|
|The personal data transferred concern the following categories of data subjects (please specify)
|VJ Group Affiliation customers|
|Categories of data||See “VJ Group Affiliation Personal Data”|
|The personal data transferred concern the following categories of data (please specify)|
Special categories of data (if appropriate)
|The personal data transferred concern the following special categories of data (please specify)|
|The personal data transferred will be subject to the following basic processing activities (please specify)
|See Schedule 2|
This Appendix 2 forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with clause 4(d) and clause 5(c) (or documents/legislation attached):
The Data Importer will implement reasonable administrative, physical, managerial and technical controls safeguards for protection of the security, confidentiality and integrity of Personal Data with respect to the Services in accordance with applicable legal requirements, and as set forth in Data Importer’s Section 3 of this DPA, and as otherwise agreed by the parties in writing. Data Importer will not materially decrease the overall security of the Services during the term of the Agreement(s).