Terms & Conditions | Marketing partnerships for ALLYOUPLAY.COM

Last updated: December 7th, 2020

These Terms and Conditions of Marketing Partnerships (“Terms and Conditions”), as may be amended from time to time, are applicable to all offers, letters of engagement and agreements ("Engagement Letter") as of the respective Effective Date with regard to Marketing Partnerships roles between Ananda Digital Technologies B.v. (hereinafter “Company”) and the Marketing Partner.

Engagement shall be understood as Services provided by the Marketing Partner under the provisions set out in the Engagement Letter inclusive of and inseparably from these Terms and Conditions.

1. Services

Subject to the provisions provided hereunder and the Engagement Letter, the Company engages with the Marketing Partner to perform the duties specified under the Engagement Letter. (the “Services”).
For the Marketing Partner to perform the duties specified under the Engagement Letter, the Company will be providing a uniform resource locator (e.g. WWW.ALLYOUPLAY.COM) (“Website”). The Company, at its own discretion, may change the Website at any time. In the event of such a change, the Company will inform the Marketing Partner in a reasonable time.
Marketing Partner shall always use the up-to-date Website for the provision of the Services and shall make the necessary changes immediately in case the Company informs the Marketing Partner of a change in the Website.
Marketing Partner shall always use the approved Channels for the provision of the Services. The Company may change the approved Channels unilaterally with notice with immediate effect (email to suffice). In case of such a change, the Marketing Partner shall make the necessary changes immediately.
All Services to be provided by the Marketing Partner shall be performed with promptness, skill, care and diligence in a workmanlike manner and at a level of proficiency to be expected of a marketing professional with the background and experience that Marketing Partner has represented it has.
The Marketing Partner warrants that it shall:

Perform the Services in accordance with highest professional standards;
Comply with all applicable statutes, regulations and other legal requirements; and
Devote such time, attention and ability to the business of the Company as may be necessary for the proper provision of the Services.

2. Compensation and invoicing

In consideration of the Services, the Company shall compensate the Marketing Partner as specified in the Engagement Letter (the "Compensation").
The number of users visiting the Website through the link provided by the Marketing Partner and the purchases concluded by those users via one of the following options to be decided by the Company:

The Company will provide the Marketing Partner with a system and shall create reports indicating the details of the clicks generated by the Marketing Partner along with the purchase details of the users visiting the Website through Marketing Partner’s content.
The services of a trusted third party shall be used and the Marketing Partner will execute an agreement with the third party which will be communicated to the Marketing Partner. In this case, tracking and payouts will be concluded by a third party.

For the purposes of Compensation and invoicing, net sales shall mean the sales price after deduction of any and all applicable taxes such as sales tax, value added tax or withholding tax (“Net Sales”).
The Compensation shall be settled, when it reaches EUR 100,00 (“Minimum Amount of Settlement”). Any amount under EUR 100,00 shall be accumulated but not settled until it reaches the Minimum Amount of Settlement.
Notwithstanding the foregoing, the Company’s reports shall prevail in case of any discrepancies and the Company retains the right to retroactively adjust the compensation in the event that the Company discovers a discrepancy after the payment of the relevant invoice.
Each party shall be responsible for taxes imposed on itself, if any. The Marketing Partner shall also be responsible for any costs, fees and taxes that may be applied to the Compensation or the transfer of it.
The Marketing Partner agreed that the Fees include a margin of at least five percent (5%) or whatever is agreed as the minimal possible transfer pricing margin between the country of incorporation of the Marketing Partner and the Company.

3. Independent Contractor Status

The Marketing Partner is an independent contractor, and neither the Marketing Partner nor the Marketing Partner’s employees or contract personnel are, or shall be deemed, Company’s employees. In its capacity as an independent contractor, the Marketing Partner agrees and represents, and the Company agrees, as follows:

the Marketing Partner has the right to perform services for others during the term of his Engagement to the Company ;
the Marketing Partner has the sole right to control and direct the means, manner, and method by which the services required by the Engagement will be performed;
the Marketing Partner shall select the routes taken, starting and quitting times, days of work, and order the work is performed;
the Marketing Partner has the right to hire assistants as subcontractors or to use employees to provide the services required by this Engagement;
the Services required by this Engagement shall be performed by the Marketing Partner, and the Company shall not hire, supervise, or pay any assistants to help Contractor;
neither Marketing Partner nor Marketing Partner’s employees or contract personnel shall receive any training from Company in the professional skills necessary to perform the services required by this Engagement ; and
neither Marketing Partner nor Marketing Partner’s employees or contract personnel shall be required by the Company to devote full time to the performance of the services required by this Engagement

The Marketing Partner receives the Compensation for the Services. Any (other) tax claims, national insurance contributions owed, penalties and/or interest arising from the Engagement are wholly on the Marketing Partners account and risk, without any exceptions.
Any taxes or contributions levied on the basis of law or practice and based upon or related to the salary or other compensation of any employee or other person working through the Marketing Partner on behalf of the Company, without limitation, social security or similar payments, shall be paid by and shall be the exclusive liability of the Marketing Partner unless any (tax or social security) authority deems the Company liable for such payments, in which case the Marketing Partner shall indemnify the Company for all such payments including all costs deriving from such a claim on the Company and subsequently, the Company shall be entitled to set off such payments and costs from the Fees that are due to the Marketing Partner.
In the event the legal relationship described in the Terms and Conditions and Engagement Letter , in deviation from the position and the intention of the Parties, should be considered by the tax authorities and/or the social security administration as an employment relationship or a legal relationship equivalent thereto (in the sense of the relevant legislation) between the Marketing Partner and the Company or between the Company and possible other persons engaged by the Marketing Partner, and the Company therefore is obliged to pay income tax, national insurance contributions and employee insurance schemes, the Company will be entitled to deduct (and pay) this income tax, these national insurance contributions and the employer’s share of the employee insurance schemes from the Compensation. In that case, the resulting disadvantage suffered by the Company from any owed employer’s share of the employee insurance schemes will be fully compensated by a reduction of the Compensation.

4. Confidentiality

“Confidential Information” shall mean, but not limited to, each party’s trade secrets, financial information, formulas, specifications, programs, instructions, technical know-how, methods of operation, research, developments, product plans, products, services, diagrams, formulae, processes, techniques, , firmware, software, designs, ideas, discoveries, inventions, improvements, copyrights, trademarks, trade secrets, customers, suppliers, markets, marketing, finances disclosed by a party either directly or indirectly in writing, orally or visually, to the other party. “Confidential Information” does not include information which:

is in or comes into the public domain without breach of the Engagement by the receiving party;
was in the possession of a party prior to receipt from the other party and was not acquired by a party from the other party under an obligation of confidentiality or non-use;
is acquired by a party from a third party not under an obligation of confidentiality or non-use to the other party; or
is independently developed by a party without the use of any Confidential information of the other party.

The Marketing Partner agrees at all times:

not to disclose to any third party any Confidential Information learned by Marketing Partner at any time or any Confidential Information developed by Marketing Partner pursuant to the Engagement;
the Marketing Partner will only disclose Confidential Information to employees or agents of the Marketing Partner who have a need to know such information in order to carry out Marketing Partner’s responsibilities hereunder, and only then to those who have been advised that such information is confidential and proprietary and then only to those who have agreed to accept the same obligation of confidentiality and nonuse as Marketing Partner;
not to put to commercial use or use in any way except for the benefit of Company any Confidential Information disclosed to Marketing Partner or any Confidential Information developed by Marketing Partner pursuant to this Engagement

The Marketing Partner may disclose the Confidential Information to the extent required by law or order of a court or governmental agency. However, in such a case, the Marketing Partner must give the Company prompt notice and consult with the Company about whether to obtain a protective order or otherwise protect the confidentiality of the Confidential Information.
Immediate and Irreparable harm may be suffered by the Company if the Marketing Partner should breach or violate any of the covenants and agreements set forth in this clause. The Parties agree that such covenants and agreements are reasonably necessary to protect and preserve the Company’s interests.
The Marketing Partner shall be responsible for any breach by its employees or agents of this Engagement and shall take all reasonable measures, at its costs, to restrain any prohibited or unauthorized disclosure of the Confidential Information.
The Marketing Partner accepts and agrees that the Company is allowed to disclose the nature of the relationship between the Marketing Partner and the Company and use his/her name and image for marketing purposes, during and after the term stipulated under the Engagement.

5. Intellectual Property

As a material condition to which Marketing Partner agrees in exchange for the opportunity to provide the Services, Marketing Partner expressly acknowledges and agrees that all Content including but not limited to; videos, photos, posts of any kind, reports, documents, improvements, discoveries, inventions, processes, designs, plans, and trade secrets, any work products whether of a technical nature or not, made or developed by Marketing Partner alone or in conjunction with any other person or entity while providing the Services (“Intellectual Property”) for the Company, shall be the sole and exclusive property of Company. Marketing Partner expressly agrees to disclose and reveal to Company all Intellectual Property, and all information regarding Intellectual Property, concurrent with the discovery or development of the Intellectual Property. Marketing Partner agrees that he will not use, distribute, market or disclose any Intellectual Property created by the Marketing Partner for the Company and owned by the Company to benefit a competitor, customer, individual, or other entity without the express written permission of the Company.
The Marketing Partner retains no right to use Intellectual Property and agrees not to challenge the validity of the Company’s ownership in Intellectual Property. The Marketing Partner hereby assigns to the Company all right, title, and interest in any and all Intellectual Property made by the Marketing Partner for the Company during the Term stipulated under the Engagement Letter. The Marketing Partner shall upon first written request from the Company execute, sign and deliver such documents and/or perform any (legal) actions required and/or requested by the Company to transfer such Intellectual Property to or register in the name of the Company.
As part of the Services, the Marketing Partner acknowledges and agrees that they shall abide by the brand guidelines while creating any Content for the Company and that they will not be compensated in the event that they do not follow the communicated brand guidelines. Whether or not the Marketing Partner follows the brand guidelines shall be determined exclusively by the Company.
The Marketing Partner waives, for now and for the future, his/her global moral rights under the intellectual property rights in local and foreign legislation and regulations and covenant, in so far as legally permissible.

In so far as the intellectual property rights cannot be transferred, the Marketing Partner hereby grants the Company the irrevocable, free, global, perpetual, transferable and exclusive right to use the intellectual property rights.
For the avoidance of doubt, the Compensation includes all claims including goodwill payments which may arise in the future. The Marketing Partner agrees that they are fully paid for any and all IP rights by the Compensation and that they cannot claim any additional compensation or payment regardless of its name or nature, for any intellectual and industrial property rights during or after the Term of Engagement.
Upon termination of the Engagement, the Marketing Partner shall return immediately to the Company all Intellectual Property (including all books, records, notes, data and information relating to the Company or its business and all other Company property), and will certify in writing that he has done so.

6. Non-compete

During the term of the Engagement, the Marketing Partner shall not, either paid or unpaid, carry on business or collaborate with a third party which would directly limit the commercial impact of the Content created by the Marketing Partner for the Company or create a disadvantageous situation for the Company in favour of a competitor of the Company, unless the Company has given its prior written consent, to which consent the Company may attach conditions.
If in doubt about the effect of this Clause 6 in a specific situation, the Marketing Partner is required to apply to the Company prior to any breach of the Clause. The Company shall then give its judgement on the effect of this Clause.

7. Non-Disparagement

The Marketing Partner agrees and covenants that the Marketing Partner during the term stipulated under the Engagement Letter and twenty-four (24) months following the termination of this Engagement will not at any time make, publish, or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments, or statements concerning the Company or its affiliates or their respective businesses, or any of their respective employees, officers, and existing and prospective customers, suppliers, investors and other associated third parties.

8. Penalties

In the event the Marketing Partner breaches any of the terms of this Engagement and particularly the terms stipulated in articles 4 (Confidentiality), 5 (Intellectual Property) 6 (Non-Compete), 7 (Non-Disparagement), the Marketing Partner shall be liable to the Company and shall immediately forfeit a penalty of EUR 50.000 (Fifty thousand Euros) for any and each of such breach and a penalty of EUR 5.000 (Five thousand Euro) per each breach for every day such breach continues, which penalties shall be payable to the Company without further notice of default or judicial intervention being required and which shall not have any prejudice over the Company’s right to seek full compensation of all damages incurred as a result of, or in connection with, such breach, or the right to enforce performance of this Clause.

9. Term and Termination

This Engagement will automatically end at the end of the Term indicated under the Engagement Letter.
Either Party may terminate the Engagement with a prior written notice of 30 days or one quarter of the term, whichever is shorter towards the end of any calendar month, to the other Party.
In the event that the Marketing Partner breaches the terms stipulated in articles 4 (Confidentiality), 5 (Intellectual Property) 6 (Non-Compete), 7 (Non-Disparagement) of these Terms and Conditions, the Company may terminate this Engagement without prior written notice and with immediate effect.
In the event that Company terminates this Engagement for a Material Breach or Marketing Partner terminates the Engagement, the Company's sole liability to Marketing Partner shall be to pay Marketing Partner for any unpaid amounts earned and accrued hereunder through the date of termination without prejudice to the Company’s rights to claim for damages in the event of any breach by the Marketing Partner. For the purpose of this Engagement, termination for Material Breach means termination by the Company because of

Marketing Partner’s willful engagement in illegal conduct or gross misconduct pursuant to which the Company has suffered a loss,
Marketing Partner’s willful and continued failure to perform substantially all of his duties hereunder in any material respect, or
without prejudice to the generality of clause (b) any breach by the Marketing Partner of any obligation set out in the Engagement Letter and these Terms and Conditions.

The Engagement can be terminated by the Company by giving notice with immediate effect, without the Company having the obligation to pay the Marketing Partner any compensation:

in the event of the passing of a resolution for the liquidation, dissolution or winding up (ontbinding or liquidatie) or placement under guardianship of the Marketing Partner; or
in the event the Marketing Partner files a petition for a suspension of payments (surséance van betaling) or for its own bankruptcy (faillissement) or is declared bankrupt.

Upon Termination of the Engagement, all rights and duties of the Parties toward each other under this Terms and Conditions and the Engagement Letter immediately cease except for Article 4 (Confidentiality), 5 (Intellectual Property), 6 (Non-compete), 7 (Non-Disparagement) 8 (Penalties) 11 (Limitation of Liability), 12 (Indemnification), 18 (Dispute Resolution and Governing Law), 19 (Miscellaneous) of the Terms and Conditions.

10. Assignment

The Company may transfer or assign (voluntarily, involuntarily, by operation of law, or otherwise) the Engagement or any of its rights or obligations under the Engagement Letter or this Terms and Conditions, in whole or in part, without the other Party’s consent. Nonetheless, the Marketing Partner may not transfer or assign (voluntarily, involuntarily, by operation of law, or otherwise) this Engagement or the Terms and Conditions or any of its rights or obligations under this Engagement or the Terms and Conditions , whole or in part, without the Company’s prior written consent.

11. Limitation of Liability

Neither party is assuming any liability for the actions or omissions of the other party except as stated in this Terms and Conditions and the Engagement Letter. The Marketing Partner shall hold harmless, defend and indemnify the Company, from any and all claims, actions, proceedings, suits, liabilities, damages (actual, consequential, or incidental), settlements, penalties, fines, costs or expenses (including without limitation, reasonable attorney’s fees and other litigation expenses) of every kind, whether known or unknown, incurred by the Company arising out of this Terms and Conditions and the Engagement Letter.
Notwithstanding any provision to the contrary, nothing in this Terms and Conditions and the Engagement Letter limits or excludes either party’s liability to the extent it relates to: fraud; fraudulent misrepresentation, or any other liability which may not be lawfully limited or excluded.
Each party agrees to use all reasonable endeavors to mitigate any losses which it may suffer under or in connection with this Terms and Conditions and Engagement Letter (including in relation to any losses covered by an indemnity) and any amounts it seeks from the other party in respect of any such liability.

12. Indemnification

The Marketing Partner shall indemnify and hold the Company harmless from any loss or liability arising from performing the Services under this Terms and Conditions and the Engagement Letter.

13. Notices

The Marketing Partner confirms that they have internet access and have an email account to receive notices, communications and information relating to the Agreement and the Services provided hereunder. The Marketing Partner agrees to the receipt of electronic communications and notices by email or by posting of the information on the Website.
Any notice or other communication required to be given under this Terms and Conditions and the Engagement Letter shall be in writing and in English language and shall be sent to the email below:

Company: [email protected]

The Marketing Partner shall notify their email address for communication and notice purposes by sending an e-mail to the aforementioned email address.
Delivery of a notice is deemed to have taken effect (provided that all other requirements in this clause have been satisfied) at 9.00 am on the next Business Day after transmission of the latter of the fax and email.

14. Force Majeure

Either Party shall be excused from any delay or failure in performance required hereunder if caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, acts of God, acts of war, fire, insurrection, strikes, lock-outs, or other serious labor disputes, riots, earthquakes, floods, explosions, or other acts of nature.

15. Entire agreement; Amendments

The Parties agree that this Terms and Conditions including any Exhibits and attached hereto and the Engagement Letter constitute the entire agreement between the Company and the Marketing Partner and that they supersede any and all prior and/or contemporaneous written and/or oral agreements. These Terms and Conditions may be modified by the Company from time to time, at its own discretion.

16. Dispute resolution; Governing law

If any dispute, controversy, or claim arises out of or in connection with the interpretation or application of the provisions of this Terms and Conditions or the Engagement Letter or in connection with the determination of any matters which are subject to objective determination pursuant to this Terms and Conditions and Engagement Letter (the “Dispute”), the Parties shall attempt in good faith to settle such Dispute amicably by negotiation.
These Terms and Conditions and the Engagement Letter shall be construed and interpreted in accordance with and governed by the laws of the Netherlands. Any Disputes arising from or connected to the Engagement that cannot be resolved amicably shall be settled by the applicable court in Amsterdam, the Netherlands.

17. Miscellaneous

Should any provisions of these Terms and Conditions and the Engagement Letter be invalid or unenforceable, then such provision shall be given no effect and shall be deemed not to be included within the terms of these Terms and Conditions and the Engagement Letter , but without invalidating any of the remaining terms of these Terms and Conditions and the Engagement Letter as if the invalid or unenforceable portion was never a part of these Terms and Conditions or the Engagement Letter when it was executed. The Parties hereto shall then endeavor to replace the invalid or unenforceable provision by a valid or enforceable clause, which is closest to the original intent of the invalid or unenforceable provision.

Terms and Conditions for Marketing Partnerships

2. Compensation and invoicing