Desert Diamond Sports
Affiliate Terms and Conditions
Desert Diamond Mobile, LLC (“Desert Diamond”) is a Delaware limited liability company and a subordinate economic organization of the Tohono O’odham Nation, a federally recognized Indian tribe. Desert Diamond operates the Desert Diamond Sports website (www.playdesertdiamond.com) and the Desert Diamond Sports app (the “App”). These Affiliate Terms and Conditions (the “Terms”) refer to the Desert Diamond Sports website and the App collectively as the “Site.”
Desert Diamond operates an online affiliate referral program in conjunction with ECOMACCESS INC, a company incorporated and registered in Canada (“Income Access”), and is part of its Income Access Network. Please read these Terms carefully if you wish to apply to join Desert Diamond’s online affiliate referral program, as these Terms set out your legal rights and obligations (and ours) in relation to Desert Diamond’s affiliate program. You must agree to these Terms to become an affiliate. If you have any questions or comments about Desert Diamond’s affiliate program, please contact us by writing to our affiliate team at firstname.lastname@example.org.
1.1 For purposes of Desert Diamond’s online affiliate referral program, the following terms will have the following meanings:
“Acceptance Email” means an email sent by Desert Diamond to an Affiliate in accordance with Paragraph 2.3 confirming that the applicant has been accepted into Desert Diamond’s Affiliate program;
“Acting Reasonably” means acting as a reasonable and prudent holder of a privileged license in the highly-regulated gaming industry;
“Bonuses” means any “free money”, “free bets”, “free games”, “money back”, “top-ups”, loyalty costs, discounts, and promotional items that Leads can use as payment for bets from time to time.
“Chargebacks” means settled bets made by Leads that are later refunded to the Lead (whether at the request of the Lead, Desert Diamond, or a payment provider), plus any chargeback fees levied by the payment provider for the reversal.
“Contractor” means any third-party vendors or service providers of Desert Diamond.
“Effective Date” means the date the Agreement comes into force as specified in Paragraph 2.3;
“Game Win” means real money wagers minus winnings.
“Gaming Taxes” means any and all fees, duties, levies, taxes and charges imposed by any governmental or regulatory authority based on the operation of the Site and whether imposed by reference to turnover or profitability, as fixed charges, or otherwise (but excluding income taxes, taxes related to personnel, and similar taxes, including any other operational taxes that would be charged for a business not involved in gaming).
“Lead” means a tracked person using the Site as a result of promotion by Affiliate;
“Net Gaming Revenue” means Game Win minus: Gaming Taxes, Bonuses, Patron-Related Costs, and Chargebacks. When calculating Net Gaming Revenue, Game Win will not be included in the calculation until the calendar month in which the bet to which a win relates is settled.
“Parties” means Affiliate and Desert Diamond. Affiliate and Desert Diamond may be referred to individually as a “Party” or collectively as the “Parties;”
“Patron-Related Costs” means know your customer/identification fees, geolocation fees, and payment processing fees.
“Payment Trigger” means a Lead has satisfied the four conditions in Paragraph 6.1 and the conditions set forth in Paragraphs 6.2 through 6.5.
“Prohibited Materials” means content, works, or other materials that Desert Diamond determines (Acting Reasonably) constitute:
“Registration Form” means the HTML form on the Site enabling persons (natural or legal) to apply to become an Affiliate; and
“Term” means the term of the Agreement.
1.2 In the Agreement, a reference to a statute or statutory provision includes a reference to:
1.3 The Paragraph headings do not affect the interpretation of the Agreement.
2.1 In order to apply to become an Affiliate, the applicant must complete and submit the Registration Form and accept these Terms during the registration process.
2.2 If the applicant makes any input errors during the order process, these may be identified and corrected by the applicant before the Registration Form is submitted.
2.3 The Agreement will come into force, and an applicant will become an Affiliate, only if Desert Diamond sends the applicant an Acceptance Email, following the submission of a completed Registration Form by the applicant, and the effective date of this Agreement will be later of the date of that email or the date the applicant holds any license required from the Arizona Department of Gaming.
2.4 The Agreement will continue in force indefinitely, unless and until terminated in accordance with Paragraph 11.
3.1 Affiliate will, within 7 days following the Effective Date, include one or more Links on the Affiliate Website and will maintain those Links on the Affiliate Website during the Term.
3.2 Desert Diamond may from time to time during the Term request amendments to the Links and/or the Affiliate Website for the purpose of ensuring consistency and quality in the use of Desert Diamond’s service marks, trademarks, and branding and, to the extent such requests are reasonable, Affiliate will make such amendments within 7 days of the request.
4.1 Affiliate will provide Desert Diamond with:
4.2 Affiliate must:
4.3 Affiliate must not:
4.4 Affiliate will not take any action in connection with the Affiliate Program which might reasonably be expected to lead to the possibility of damage to the reputation and goodwill of Desert Diamond and/or the Site.
4.5 Affiliate may not modify, impair, disable, or otherwise interfere with any tracking codes and/or other technology required by Desert Diamond or Income Access to ensure proper tracking.
4.6 Affiliate must not “spam” and/or use unsolicited email. If Desert Diamond reasonably believes that an Affiliate is knowingly sending spam and/or unsolicited email, Desert Diamond, may, in its sole discretion, immediately terminate Affiliate’s participation in the Affiliate Program.
4.7 Affiliate is responsible for the quality and origin of the traffic it provides to Desert Diamond’s Website and Affiliate will always remain responsible for the quality and origin of that traffic. If Affiliate knowingly sends traffic of questionable quality and/or origin to Desert Diamond, Desert Diamond may, in its sole discretion, immediately terminate Affiliate’s Participation in the Affiliate Program.
4.8 If Affiliate accidentally or unknowingly directs traffic of questionable quality and/or origin to the Site, Desert Diamond may issue a written warning to Affiliate, notifying Affiliate of the questionable traffic. If Affiliate still directs traffic of questionable quality and/or origin to the Site, Desert Diamond may, in its sole discretion, immediately terminate Affiliate’s participation in the Affiliate Program.
4.9 Affiliate may not violate the Intellectual Property Rights of any other affiliate’s website. Desert Diamond, in its sole discretion, may immediately terminate Affiliate’s Participation in the Affiliate Program if Affiliate does so.
4.10 Affiliate will comply with all applicable legislation and regulations relating to its collection, use, storage, and sharing of information relating to visitors to the Affiliate Website, and information and data related to such visitors’ activities, as well as to Affiliate’s use of tracking technologies (such as cookies, web beacons, pixel tags, and other technologies used to collect information) on the Affiliate Website. Affiliate will provide all necessary notifications regarding the foregoing to all visitors to the Affiliate Website.
5.1 Desert Diamond grants to Affiliate during Term a worldwide, non-exclusive, royalty-free license to reproduce electronically and publish on the Affiliate Website only the Links, solely for the purpose of Affiliate’s promotion of Desert Diamond’s gaming services in accordance with this Agreement.
5.2 Desert Diamond does not warrant that the use of the Links by Affiliate will not infringe any third-party Intellectual Property Rights or give rise to any other liability on Affiliate.
6.1 Desert Diamond will make Payments to Affiliate based on the number of Leads who, during the Term, do each of the following: 1) use a Link to visit the Site; 2) register for a new account with Desert Diamond, in compliance with the Rules, while visiting the Site using a Link; 3) make a first-time deposit to the new account in an amount equal to or exceeding $_____ within thirty (30) days after opening the new account; and 4) place a real money wager on the Site within thirty (30) days after opening the new account.
6.2 Desert Diamond will attribute a new account registration to a referral by Affiliate only if the Lead registers for a new account with Desert Diamond using a Link.
6.3 An account opened by a Lead whose address is the same as an existing Desert Diamond account holder will not be considered a “new account” for purposes of Paragraph 6.1.
6.4 A deposit that is reversed, that is the subject of a chargeback, that is made by fraudulent means or through the unlawful use of a credit, debit, or other payment card or payment means, or that is made by any other fraudulent or unlawful means will not be considered as a qualifying deposit for purposes of Paragraph 6.1, regardless of when Desert Diamond learns of the reversal, chargeback, or fraudulent or unlawful means or use.
6.5 A wager will not be considered as a qualifying wager for purposes of Paragraph 6.1 if:
6.6 If Desert Diamond makes any Payments to Affiliate based on an account, deposit, or wager that is non-qualifying under Paragraphs 6.3 to 6.5, or if a Lead opens an account in violation of the Rules, Affiliate shall refund any such Payments to Desert Diamond, regardless of when Desert Diamond determines that the account, deposit, or wager is non-qualifying and regardless of whether the Term has expired. Both during and after the Term, Desert Diamond will be entitled to set off against any sums it owes to Affiliate any sums that Affiliate owes to Desert Diamond, whether under the Agreement or otherwise, and including any sums owed to Desert Diamond because of loss or damage suffered by Desert Diamond because of Affiliate’s breaches of the Agreement or arising out of Affiliate’s acts or omissions.
6.7 The amount Desert Diamond will pay Affiliate based on each Payment Trigger will be set out in the Acceptance Email. That amount will be a fixed sum for each Lead who creates a Payment Trigger, unless Affiliate has elected in its Registration Form to have payments determined based on a percentage of Net Gaming Revenue during the Term from each Lead who creates a Payment Trigger.
6.8 Payments to Affiliate will be made in UK Pounds Sterling by bank transfer (using such payment details as are provided by Affiliate on the Registration Form).
6.9 For each Payment Trigger in a given calendar month, Desert Diamond will account for and pay to Affiliate the sums owing within thirty (30) days after the end of the following calendar month, unless the amount due is less than £100.00, in which case Desert Diamond may defer payment until the sums owed Affiliate equal or exceed £100.00 or until thirty (30) days after the end of the calendar month following the month in which the Term ends.
6.10 If Desert Diamond is required by law to deduct withholding tax or any other taxes or duties from any Payments, then Desert Diamond will deduct such amounts from the Payments before paying them to Affiliate.
6.11 All Payments stated in or in relation to the Agreement are stated inclusive of VAT (where relevant) and Affiliate is solely responsible for paying any VAT (where relevant).
6.12 If either Party does not timely pay any amount owed to the other under or in connection with the Agreement, that Party shall pay simple interest on the overdue amount at the rate of 4% per year above the base rate of HSBC Bank Plc from time to time.
7.1 Each Party warrants to the other Party:
7.2 All of the Parties’ liabilities and obligations in respect of the subject matter of this Agreement are expressly set out in this Agreement and the Rules. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of the Agreement will be implied into this Agreement or any related contract.
Affiliate will indemnify and keep indemnified Desert Diamond, its Contractors, and their officers, employees, representatives, and agents against all damages, losses, and expenses (including legal expenses) arising out of or related to any breach by Affiliate of any term of the Agreement.
9.1 Affiliate irrevocably waives all indirect, special, consequential, punitive, or incidental damages (including, without limitation, those resulting from lost profits, loss of data, or loss of use) arising out of or related to this Agreement, even if Desert Diamond has been advised of, or has knowledge of, the possibility of such damages.
9.2 Desert Diamond will not be liable to Affiliate for any losses arising out of a Force Majeure Event.
9.3 Desert Diamond’s aggregate liability to Affiliate, however arising, will in no circumstances exceed the total amount of Payments owed by Desert Diamond to Affiliate under the terms of the Agreement during the Term.
9.4 Nothing in this Agreement will exclude or limit the liability of Desert Diamond for any liability which may not be excluded or limited under applicable law.
10.1 Where a Force Majeure Event gives rise to a failure or delay in either Party performing its obligations under this Agreement, those obligations will be suspended for the duration of the Force Majeure Event.
10.2 A Party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement, will promptly notify the other.
10.3 The affected Party will take reasonable steps to mitigate the effects of the Force Majeure Event.
11.1 Either Party may terminate the Agreement, at any time and for any reason, with five (5) calendar days’ notice (including weekends and holidays), by giving written notice to the other Party.
11.2 Desert Diamond may terminate the Agreement immediately (with or without giving written notice to Affiliate) if Affiliate:
12.1 Upon termination of this Agreement, all the provisions of the Agreement will cease to have an effect, save that the following provisions of the Agreement will survive and continue to have an effect (in accordance with their terms or otherwise indefinitely): Paragraphs 1, 6, 8, 9, 12, 13, and 14.
12.2 If the Agreement is terminated by Desert Diamond under Paragraph 11.2, Desert Diamond will not have any obligation to make any further Payments to Affiliate.
12.3 Subject to Paragraph 12.2:
12.4 Provided that Desert Diamond has paid or does pay Affiliate such sums as are properly due and owing as of the date of termination, which shall be subject to any rights Desert Diamond has to make set offs whether under this Agreement or otherwise, Desert Diamond shall have no further liability to pay Affiliate any further sums.
13.1 Any notice given under the Agreement must be in writing (whether or not described as “written notice” in the Agreement) and must be delivered personally, sent by pre-paid first-class post, or sent by fax or email, for the attention of the relevant person, and to the relevant address, fax number or email address specified on the Registration Form (in the case of Affiliate) or the Site (in the case of Desert Diamond) (or as notified by one Party to the other in accordance with this Paragraph).
13.2 A notice will be deemed to have been received at the relevant time set out below:
13.3 No breach of any provision of the Agreement will be waived except with the express written consent of the Party not in breach.
13.4 If a Paragraph of the Agreement is determined by an arbitrator or other competent authority to be unlawful and/or unenforceable, the other Paragraphs of the Agreement will continue in effect. If any unlawful and/or unenforceable Paragraph would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted and the rest of the Paragraph will continue in effect (unless that would contradict the clear intention of the Parties, in which case the entirety of the relevant Paragraph will be deemed to be deleted).
13.5 Nothing in the Agreement will constitute a partnership, agency relationship, or contract of employment between the Parties. Affiliate will not make any statement on the Affiliate Website or otherwise which expressly or impliedly suggests that there is any such relationship between the Parties.
13.6 The Agreement may be modified by Desert Diamond posting a new version of the Agreement on the Site and notifying Affiliate in writing that the Agreement has been modified. The modified Agreement will come into effect five (5) days after Affiliate is deemed to have receive the notice, unless Affiliate gives Desert Diamond notice in that five (5) day period that it rejects the modifications and that the Term will end at the conclusion of the five (5) day period. Affiliate’s continued participation in the Affiliate Program beyond five (5) days after receipt of such notice will constitute Affiliate’s acceptance of the modified Agreement.
13.7 Desert Diamond may freely assign its rights and obligations under the Agreement without Affiliate’s consent.
13.8 The Agreement is made for the benefit of the Parties and is not intended to benefit any third Party or to be enforceable by any third Party. The rights of the Parties to terminate, rescind, or agree to any amendment, waiver, variation, or settlement under or relating to the Agreement are not subject to the consent of any third Party.
13.9 The Agreement constitutes the entire agreement and understanding of the Parties in relation to the subject matter of the Agreement and supersedes all previous agreements, arrangements, and understandings between the Parties relating to the subject matter of the Agreement. Each Party acknowledges that no representations or promises not expressly contained in the Agreement have been made by or on behalf of the other Party.
14.1 This Agreement, and the relationship between Affiliate and Desert Diamond will be governed by and construed in accordance with the laws of the State of Arizona, without regard to its conflict of laws analysis.
14.2 Affiliate and Desert Diamond agree to resolve any disputes between them through final and binding arbitration instead of through court proceedings. Any controversy, claim, counterclaim, or other dispute between Affiliate and Desert Diamond arising out of or relating to this Agreement, or the relationship between Affiliate and Desert Diamond (collectively, a “Claim”) shall be submitted for binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA Rules”). Affiliate and Desert Diamond hereby waive any right to a jury trial of any Claim. Affiliate’s agreement to arbitrate includes any Claims it may have against Desert Diamond’s affiliates and Contractors, and the managers/directors, officers, employees, and agents of Desert Diamond, its affiliates, and its Contractors, to the extent a) those Claims arise out of or are related to Affiliate’s Claims against Desert Diamond and b) any such person or entity agrees to participate in the arbitration.
14.3 The arbitration will be heard in Arizona and determined by a single arbitrator. Affiliate and Desert Diamond irrevocably waive, to the fullest extent permitted by law, any objection or claim that that an arbitration proceeding in Arizona is an inconvenient forum.
14.4 The arbitrator must be independent and impartial, and no arbitrator shall have served as a mediator for the dispute being arbitrated. Upon selection, the arbitrator must promptly disclose any circumstances that might cause doubt regarding the arbitrator’s independence or impartiality. Such circumstances include bias, interest in the result of the arbitration, and past or present relations with a party or its counsel.
14.5 If Affiliate demonstrates that the costs of arbitration will be prohibitive in comparison to the costs of litigation, Desert Diamond will pay any required administrative costs and arbitrator’s fees that the arbitrator deems necessary so the cost of the arbitration will not be prohibitive. The arbitrator may apportion the costs of arbitration and the arbitrator’s fees among the parties as the arbitrator deems appropriate in the final award.
14.6 The arbitrator’s decision will be final and binding and may be enforced in any court having jurisdiction. Affiliate and Desert Diamond agree the arbitration will be confidential and the existence of the arbitration and all aspects of it (including, without limitation, any pleadings, motions, or other documents submitted or exchanged, any testimony, and the award) will be kept confidential, except as may lawfully be required in judicial proceedings relating to the arbitration or by governmental agencies.
14.7 If there is a dispute as to whether an issue is arbitrable, the arbitrator will have the exclusive authority to resolve any such dispute. The arbitrator will have the authority to decide whether any dispute is barred by the passage of time or on any other grounds and, if so, to dismiss the arbitration on that basis.
14.8 Consistent with the provisions of Paragraph 9 above, the arbitrator will not be empowered to award a) any indirect, special, consequential, punitive, or incidental damages (including, without limitation, those resulting from lost profits, loss of data, or loss of use), or any sums in lieu thereof or b) any damages against Desert Diamond exceeding the total amount of Payments owed by Desert Diamond to Affiliate under the terms of the Agreement during the Term. The arbitrator must award reasonable attorneys’ fees and costs to the prevailing party. If a written settlement offer is rejected and the arbitration award is equal to or more favorable to the offeror than its written settlement offer, then the offeror will be deemed to be the prevailing party for purposes of awarding attorneys’ fees and costs.
14.9 Affiliate and Desert Diamond will have the right to apply for provisional relief in any court with jurisdiction, including pre-arbitral attachments or preliminary injunctions, and seeking such relief will not be inconsistent with our agreement to arbitrate nor a waiver of the right to have disputes decided by arbitration. This agreement to arbitrate also does not prevent Affiliate or Desert Diamond from seeking relief from federal, state, local, or tribal government agencies.
14.10 Neither Affiliate nor Desert Diamond may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only the individual Claims of Affiliate and Desert Diamond (and Desert Diamond’s affiliates or Contractors if Affiliate asserts any Claims against them). The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
14.11 If any provision of this Paragraph 14 is found invalid or unenforceable, that specific provision will be of no force and effect and shall be severed. The remaining provisions of this Paragraph 14 will continue in full force and effect. No waiver of any provision of this Paragraph 14 will be effective or enforceable unless contained in a writing signed by the party waiving the right or requirement (and, with respect to Desert Diamond, that writing must be signed by its Chief Executive Officer). The provisions of this Paragraph 14 will survive the termination of Affiliate’s relationship with Desert Diamond.
14.12 Notwithstanding any statute, regulation, or judicial interpretation to the contrary, any arbitration over a claim or cause of action arising out of or related to this Agreement, or the relationship between Affiliate and Desert Diamond, must be commenced within one (1) year after such claim or cause of action arose or the claim or cause of action will be forever barred.
14.13 THIS PARAGRAPH 14 LIMITS CERTAIN RIGHTS, INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO BRING AN ACTION IN COURT, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS ACTION OR TO BRING A REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY BEYOND THAT PROVIDED IN THE AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF.