AFFILIATE TERMS OF PARTICIPATION


The Terms of Participation (as defined below) and the terms and conditions of the Advertising Agreement contains the complete terms and conditions between you and, subject to Section 1.6 below, Marina District Development Company LLC,  a New Jersey limited liability company, d/b/a Borgata Hotel Casino & Spa, located at 1 Borgata Way, Atlantic City, NJ 08401 USA.


Marina District Development Company LLC is licensed by the New Jersey Division of Gaming Enforcement as an internet gaming operator in New Jersey.


The Terms of Participation include all terms and conditions regarding your application and, if approved, subsequent participation in the Borgata Affiliate Program unless we advise you otherwise.


Any changes to the Terms of Participation will be communicated to you in accordance with Section 1.4 of this document.

FOREWORD

IMPORTANT: PLEASE READ THIS DOCUMENT CAREFULLY BEFORE ACCEPTING THE TERMS OF PARTICIPATION, THEN PRINT AND STORE ALONG WITH ALL CONFIRMATION EMAILS REFLECTING YOUR TRACKER IDs, BONUS CODES, AND FEES.
IF YOU DO NOT AGREE WITH THE TERMS OF PARTICIPATION (OR ARE NOT AUTHORIZED TO DO SO) YOU MAY NOT JOIN OUR AFFILIATE NETWORK OR, IF YOU HAVE ALREADY JOINED OUR AFFILIATE NETWORK, YOU MUST EMAIL US AT affiliatesupport@theborgata.com TO TERMINATE IN ACCORDANCE WITH SECTION 5.2 OF THIS DOCUMENT.  IF YOU HAVE ANY QUESTIONS REGARDING THESE TERMS AND CONDITIONS PLEASE CONTACT US AT THE SAME EMAIL ADDRESS.

This document, the Advertising Agreement and any other guidelines or additional terms we provide to you via email or on our site (together the "Terms of Participation") contain the complete terms and conditions that apply to your participation in the www.borgatapartners.com online affiliate network ("Affiliate Network").  In the event there is a conflict between the Terms of Participation and any other additional terms, the Terms of Participation shall take precedence unless such additional terms expressly reference a variation to the Terms of Participation.

Your attention is drawn to our Affiliates Program Privacy Policy which describes how we deal with and protect your personal information.  By accepting the Terms of Participation, You are also acknowledging and accepting the Privacy Policy.  In the event of any conflict between the Terms of Participation and the Privacy Policy, the Privacy Policy shall control.

Where used in the Terms of Participation, references to:
(i) "you", "your" and/or "Affiliate" mean the individual or entity that applied as the "BENEFICIARY" for payment purposes as submitted or such other individual or entity as mutually agreed between you and us.
(ii) "we", "our", "us", and/ or “borgatapartners” means Marina District Development Company LLC, a New Jersey limited liability company, d/b/a Borgata Hotel Casino & Spa, located at 1 Borgata Way, Atlantic City, NJ 08401 USA, and, if the context requires, the Group (or an applicable member of the Group) as defined in Section 2.6herein.

The purpose of the Affiliate Network is to permit you to advertise one or more Sites on your website (or otherwise online or offline as agreed to by you and us in writing) and earn Fees based upon the Real Money Players you refer to the Site(s in accordance with the terms and conditions of the Terms of Participation.

1. GENERAL

1.1 The Terms of Participation shall govern our relationship with you in connection with the Affiliate Network for the Sites and modifies, replaces and supersedes any previous affiliate program you have entered into with us, or a member of the Group in connection with the Site you are advertising.

1.2 When you indicate your acceptance of these terms and conditions via email or other method otherwise agreed upon YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS SET OUT IN THE TERMS OF PARTICIPATION (as amended or modified from time to time in accordance with Section 1.4 below).

1.3 You are providing, under the Terms of Participation, Referral Services to us, as an independent contractor.  Neither party to the Terms of Participation is an agent, representative or partner of the other Party.  You shall have no right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability on behalf of, or to otherwise bind, us.  The Terms of Participation shall not be interpreted or construed to create an employment relationship, an association, agency, joint venture or partnership between us and you or to impose any liability attributable to such a relationship upon either party.  You expressly agree that, as an independent contractor, you are not entitled to any employee benefits from use, including, without limitation, any employer withholdings or liability for: taxes, FICA, Medicare or Medicaid; medical or disability insurance; vacation or leave; pension; unemployment insurance; or worker’s compensation insurance (collectively, “Employee Benefits”).  To the maximum extent permitted by law, you hereby waive all claims against us (and any member of our Group) for any Employee Benefits.

1.4 We may modify any of the terms of the Terms of Participation at any time, in our sole discretion, by either (i) emailing you a change notice or (ii) by posting the new version of the document on our website. Except in the case of modifications relating to fraud prevention, where there is a mistake in the Terms of Participation, or as required to comply with applicable law (discussed below), which shall be effective on the date of posting or the sending of such notice (whichever is the earlier), all modifications to the Terms of Participation will only take effect FOURTEEN (14) days after the date of posting or sending of any such notice (whichever is the earlier). It is your responsibility to visit the Website frequently to make sure you are up to date with the latest version of the Terms of Participation and its provisions.  IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THE TERMS OF PARTICIPATION. YOUR CONTINUED PARTICIPATION IN THE AFFILIATE NETWORK FOLLOWING SUCH FOURTEEN (14) DAY PERIOD WILL BE DEEMED BINDING ACCEPTANCE OF THE MODIFICATION. You hereby acknowledge that we may unilaterally terminate, vary or transfer the Terms of Participation at any time.  Without limiting the generality of the foregoing, to the extent that we need to alter the terms of this document to comply with applicable laws, rules, and regulations, including, without limitation, New Jersey gaming laws and regulations, any such terms shall be revised and become effective immediately.

1.5 From time to time we may contact you with information regarding specific promotions, unless you notify us otherwise, you will be deemed to have agreed to take part in such promotion and the terms of such promotion shall be incorporated into the applicable Payment Plan and the Terms of Participation for the duration of such promotion.

1.6 You acknowledge and agree that in certain situations a different member of the Group may need to perform obligations under the Terms of Participation and you hereby consent and agree to other Group parties fulfilling such parts of Our obligations as is necessary in order for us to comply with the terms of the Terms of Participation and for us to share such information about you to such other Group entities for this purpose.

1.7 Currently the Sites offered within the Affiliate Network are BorgataPoker.com and BorgataCasino.com.  If you elect to promote BorgataPoker.com and BorgataCasino.com (“Borgata Gaming Sites”) as all or part of your Referral Services, you must complete the Registration Process prior to promoting the Borgata Gaming Sites.  Please note that if you fail to complete the Registration Process or the New Jersey Division of Gaming Enforcement rejects your application for an Ancillary Casino Service Industry Enterprise (ACSIE) license, you shall not be entitled to promote the Borgata Gaming Sites or to receive any Fees in respect of Real Money Players’ play on the Borgata Gaming Sites.

2. DEFINITIONS AND INTERPRETATION

In the Terms of Participation, references to the following words shall have the meanings set out below:

2.1 "Affiliate Cashier Account" means the account into which you receive payment from us. All amounts payable are paid into Affiliate Cashier Accounts, unless specifically agreed otherwise.

2.2 "Banners" and "Text Links" means the graphical artwork or text that includes Tracker IDs and bonus codes and tournament feeds (RSS) that are made available by us.  2.3 "Fees" is the amount due and payable to you, as calculated based solely on our system's data and in accordance with the terms of this document and the applicable Payment Plan.

2.4 "Fraud Traffic" means deposits, revenues or traffic generated on the Services through illegal means or any other action committed in bad faith to defraud us (as determined by us in our sole discretion), regardless of whether or not it actually causes us harm, including but not limited to:

  • deposits generated on stolen credit cards;

  • collusion, manipulation of the service or system, bonuses or other promotional abuse;

  • creation of false accounts for the purpose of generating Fees;

  • unauthorized use of any third-party accounts, copyrights, trademarks and other third-party Intellectual Property Rights (that, for the avoidance of doubt, include our Intellectual Property Rights); and,

  • any activity that constitutes Fraud Traffic under 3.7 or 3.9 below.

2.5 "Group" means our ultimate holding company and any subsidiary companies of our holding company.

2.6 "Intellectual Property Rights" means rights to all existing and future patents, trademarks, design rights, service marks, trade dress, trade or business names (including domain names), registered designs, copyright (including rights in computer software), moral rights, database rights, format rights and topography rights (whether or not any of these is or are registered and including applications for registration), know-how, trade secrets and rights of confidence and all rights and forms of protection throughout the world of a similar nature or with similar effect to any of these for the full unexpired period of any such rights and any extensions and/or renewals thereof.

2.7 "Loyalty Points" shall mean the bonus system which awards Real Money Players points for their activity on a Site, which are explained in greater detail at our BorgataPoker.com and BorgataCasino.com websites.

2.8 "Materials" means Banners and Text Links and any other materials (that may include Our Marks) that have been provided or otherwise made available to you by us and/or pre-approved by us.

2.9 “Minimum Cost Per Acquisition (CPA) Required Deposit” means those deposits which add up to a cumulative deposit for each player in order to satisfy the qualifying criteria.

2.12 "Our Marks" means the words  ‘BorgataPoker’, ‘BorgataCasino’, ‘Borgata Hotel Casino & Spa’, ‘Borgata’, Borgata Partners’, and/ or any other name or mark owned from time to time by us or any company within the Group.

2.13 "Payment Plan" means the payment plan you have selected, and we have accepted, under which we pay you in accordance with the Advertising Agreement or  any other plan notified or agreed by us in writing from time to time.

2.14 "Player(s)" means any person using any products or services on our Sites whether attached to your Tracker ID or not.

2.15 "Player Account" means a uniquely assigned account that is created for a Player when he/she successfully registers for the Services via a Tracking URL or Sign-up Bonus Code.

2.16 "Real Money Player(s)" means any person who is attached to your Tracker ID  who: (i) has not been a Player with us before (ii) is accepted as a player under any applicable sign-up or identity verification procedure which we may require; (iii) has adequately fulfilled any other qualification criteria that we may introduce from time to time.  Notwithstanding any other provisions contained elsewhere in this document, we reserve the right to alter the above-mentioned qualifying criteria at any time. 

2.17 "Services" means any product or service offered to Players on our Sites.

2.18 "Sign-up Bonus Code" is a unique alphanumeric code that we may make available to you to provide to prospective Players.  When entered, the system automatically logs the Sign-up Bonus Codes and records you as the Affiliate in relation to the relevant Player.

2.19 "Sites" means the websites and any other online site or platform that are owned, operated or controlled by or on behalf of us or the Group from time to time and each of its related pages through which a Player opens a Player Account and/or accesses our Services.

2.20 "Term" means the period from the date that you acknowledge and accept the terms of this document and execute the Advertising Agreement until such time as the Advertising Agreement is terminated

2.21 "Tracker ID(s)" means the unique Tracking URL or Sign-up Bonus Codes that we provide exclusively to you, through which we track Players' and Real Money Players' activities and calculate Fees.

2.22 "Tracking URL" means a unique hyperlink or other linking tool for referencing our Site or Services through which you refer potential Real Money Players. When the relevant Player opens their Player Account, our system automatically logs the Tracking URL and records you as the Affiliate.

2.23  “Registration Process” means the process whereby you:

  • provide all information we request and any additional information we may request from you from time to time for the purpose of executing the Advertising Agreement.  We will use this information for our own internal records and , if we determine that you must be vendor registered, to complete and file a Vendor Registration Form with the New Jersey Division of Gaming Enforcement; and

  • must, upon our request either (i) complete a Supplementary Vendor Registration form and mail a hard copy of this form to the New Jersey Division of Gaming Enforcement at the address set out in the form within 30 days ofc executing the Advertising Agreement (ii) file an application for an ACSIE licence.

2.24 This document is drafted in the English language.  If this document is translated into another language, the English language text shall in any event prevail.

2.25 All amounts are calculated in United States dollars.

3. TERMS & CONDITIONS

3.1 Identity and Disclosure.  You shall provide true and complete information to us for the purpose of executing the Advertising Agreement and when completing the Supplementary Vendor Registration form and promptly update such information if all or any part of it changes.  You shall also provide us with such other information as we may reasonably request from time to time.

3.2 Referral Services.  To participate in the Referral Services, you shall place Materials that include links to our Sites on your website(s).  You will be solely liable for the content and manner of the Referral Services you provide to us.  All such Referral Services shall be provided in a professional, proper and lawful manner, in compliance with applicable rules, regulations or laws (including any laws relating to the content and nature of any advertising or marketing) and the terms of this document.  You shall not yourself, nor shall you authorize, assist or encourage any third party to:

3.2.1  Place Materials on any online site or other medium where the content and/or material on such website or medium is potentially libellous, malicious, discriminatory, obscene, unlawful, sexually explicit, pornographic or violent or that is, in our sole discretion otherwise unsuitable;

3.2.2 Develop and/or implement marketing and/or public relations strategies that have as their direct or indirect objective the targeting of marketing of us and/or  the Sites to any persons who are less than 21 years of age, regardless of the age of majority in the location where you are marketing;

3.2.4 Use Materials in a manner that may potentially confuse a Player or potential Player;

3.2.5 Place Materials on any online site or other medium where the content and/or material on such online site or medium:

  • Infringes or aids in the infringement of the Intellectual Property Rights of any third party

  • Copies or resembles the Site in whole or in part

  • Disparages us or otherwise damages our goodwill or reputation in any way

  • Frames any page of the Site in whole or in part;

You must have a sufficient 'copyright infringement policy' in place so that either (i) on receipt of a takedown notice from a rights holder, (ii) where an independent third party puts you on notice that content contained on your site is infringing the intellectual property of a third party or (iii) where you reasonably suspect that any of the material on your website infringes the intellectual property of a third party, you shall immediately remove the infringing material from your website.  Failure to remove any infringing content from your website shall be deemed a material breach of the Terms of Participation which is incapable of remedy and we reserve the right to suspend or terminate any of your Tracker IDs or to terminate our relationship with you in its entirety, immediately without notice.

3.2.6 Read, intercept, modify, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to us by any other person;

3.2.7 In any way alter, redirect or in any way interfere with the operation or accessibility of the Sites or any page thereof;

3.2.8 Register as a Player on behalf of any third party, or authorize or assist (save by promoting the Site and Services in accordance with the Terms of Participation) any other person to register as a Player;

3.2.9 Offer any so-called rake-back schemes or similar that offer or allow a proportion of the player's rake to be returned to the player in any form;

3.2.10 Take any action that could reasonably cause any end-user confusion as to our relationship with you or any third party, or as to the ownership or operation of the site or service on which any functions or transactions are occurring;

3.2.11 Post, serve or publish any advertisements, communications or promotional content promoting the Site, our Services or Our Marks around or in conjunction with the display of the Site and/or any part or page thereof (for example and without limitation through any "framing" technique or technology or pop-up windows or pop-under windows or interstitials);

3.2.12 Cause any of the Sites (or any parts or pages thereof) to open in a visitor's browser or anywhere else used for accessing the Services other than as a result of the visitor clicking on Banners or Text Links contained in or as part of any Materials;

3.2.13 Attempt to intercept or redirect (including via user-installed software) traffic from or on any online site or other place that participates in our Affiliate Network;

3.2.14 Use any means to promote any of the Sites that resemble in any way the look and/or feel of any of the Sites whether in whole or in part, nor utilize any such means or site to create the impression that such sites are the Sites (or any part of the Sites);

3.2.15 Violate the Terms of Participation and any applicable policies of any search engines or the customer feedback facilities of e-tailers;

3.2.16 Attempt to communicate to Players whether directly or indirectly on our Sites to solicit them to move to any online site not owned by us or for other purposes without our prior approval including but not limited to via email, chat boards, or spamming our tables; or

3.2.17 Attempt to market or promote our Services (or any specified part thereof) or Sites (or specific Site) within territories which are restricted; to attempt to circumvent any restriction which we have put in place to prevent players from restricted territories from signing up as Real Money Players; or attempt to disguise the geographical location of a Player.

3.2.18 Fail to comply with the regulations set forth by the State of New Jersey Division of Gaming Enforcement set forth in N.J.A.C. 13:69O-1 et seq. 

If we determine, in our sole discretion, that you have engaged in any of the foregoing activities, we may (without limiting any other rights or remedies available to us) withhold any Fees and/or terminate this relationship immediately on notice.
3.3 Approved Materials. In providing the Referral Services, you shall only use the Materials.  You shall not modify the Materials or Our Marks in any way without our prior written consent.  You shall only use the Materials in accordance with the terms of this document, any guidelines we provide to you on our Site or otherwise from time to time, and any applicable laws.  We may charge you for the cost of any customized promotional materials provided to you at your request and such costs may be deducted from your Fees.  Subject to the terms and conditions of this document, we grant you a limited, revocable, non-exclusive, non-transferable, non-sublicensable right and license to use the Materials (and Our Marks to the extent Our Marks are contained within the Materials) for the sole purpose of providing the Referral Services.  You agree that all use by you of Our Marks as contained in the Materials, including any use of a domain name that includes Our Marks, inures to our sole benefit and that you will not obtain any rights in Our Marks as a result of such use.

3.4 Competitive Marketing.  You shall not market the Site and/or use or our Services or Our Marks in any way whatsoever, (i) on any website on which we promote any of the Sites; (ii) by using pay per click and/or search engine optimization marketing techniques in order to target Our Marks or keywords associated with Our Marks or other keywords which are confusingly similar to Our Marks; (iii) in any other manner that results in you competing with us in relation to the promotion of any of the Sites; or (iv) otherwise where we request that you cease the same, unless such activities are approved in writing by us.

3.5 Non Assignment. You acknowledge and agree that Tracker IDs are for your sole use and you shall not assign or sub-license (as appropriate) the Tracker IDs, Bonus Codes nor any Fees to any third party without our prior written consent.

3.6 Commercial Use Only.  This marketing opportunity is for commercial use only.  You shall not register as a Player or make deposits to any Player Account (directly or indirectly) through your Tracker ID(s) for your own personal use and/or the use of your relatives, friends, employees, agents or advisors, or otherwise attempt to artificially increase the Fees payable to you or to defraud us. Violation of this provision shall be deemed to be Fraud Traffic.

3.7 Player Information.  We reserve the right to refuse service to any potential Player and to close the Player Account of any Player, at any time, in our sole discretion.  All data relating to the Players shall, as between you and us, remain our exclusive property and you acquire no right to such information except pursuant to our express written instructions.

3.8 Trademarks and Domain Names.  You acknowledge that we and/or companies within our Group and/or its licensees, own all Intellectual Property Rights comprised in any and all of the Materials, our Services, the Site and Our Marks.  Any use of any trade mark, domain name or trade name that contains, is confusingly similar to or is comprised of Our Marks (other than in accordance with the Terms of Participation) without our prior written permission shall be unauthorized and further may constitute Fraud Traffic.  By way of example, but without limitation, YOU MAY NOT REGISTER A DOMAIN NAME THAT INCLUDES OUR MARKS OR MARKS CONFUSINGLY SIMILAR TO OUR MARKS.  You shall not register or attempt to register Our Marks, or any trademarks or names that contain, are confusingly similar to or are comprised of Our Marks.  You hereby agree to immediately transfer any domain names or trademark applications or registrations you may acquire, hold or control for Our Marks or marks confusingly similar to Our Marks.  You further agree not to attack or challenge our ownership of and title to Our Marks in any way.

3.9 No Group Employees. If you are an officer, director, employee, consultant or agent of the Group or one of its subsidiary parent or associated companies, or suppliers or vendors, you are not permitted to participate in the Affiliate Network or to use directly or indirectly any of the Sites, other than in the course of your employment as a Group employee.  Similarly, 'relative' of Group employees are not permitted to participate in the Affiliate Network or to use directly or indirectly any of the Sites.  For these purposes, the term 'relative' shall include (but not be limited to) any of a spouse, partner, parent, child or sibling.

3.10  Submissions.  If you provide us with suggestions, reviews, modifications, data, images, text, or other information or content about our Services, our Materials, or otherwise in connection with the Terms of Participation (collectively, “Your Submission”), you hereby grant us (even if you have designated Your Submission as confidential) a perpetual, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (a) use, reproduce, perform, display, and distribute Your Submission in any manner; (b) adapt, modify, re-format, and create derivative works of Your Submission for any purpose; and (c) sublicense the foregoing rights to any other person or entity.  Additionally, you hereby warrant that: (y) Your Submission is your original work, or you obtained Your Submission in a lawful manner; and (z) our and our sublicensees’ exercise of rights under the license above will not violate any person’s or entity’s intellectual property, privacy or publicity rights.

4. REPORTS & PAYMENTS

4.1 Reports. We will track and report Player activity for purposes of calculating your Fees based on your chosen Payment Plan.  The form, content and frequency of the reports may vary from time to time in our sole discretion.  Generally, you will receive a monthly report with your payment indicating the number of new Real Money Players that signed up that month per Tracker ID and/or the total amount due to you after any deductions or set offs that we are entitled to make under the Terms of Participation.

4.2 Fees. Subject to Section

4.3 below, Fees will be paid to you on a calendar month basis in accordance with your chosen Payment Plan after you have completed the registration process, executed the Advertising Agreement and  where we have activated additional Tracker IDs. 4.3 Minimum Payment and Time of Payment. All Fees generated will be paid within thirty (30) days of the close of each calendar month.  We may impose reasonable restrictions on the frequency and amounts that can be paid  for administrative convenience and/or to protect the security of your account.  At our sole discretion, we may impose a policy that if the amount due is negative or less than $100.00 in any particular month. 

4.4 Holdover for Fraud Traffic. In the event that, in our sole discretion, we suspect any Fraud Traffic, then we may delay payment of the Fees to you for up to one hundred and eighty (180) days while we investigate and verify the relevant transactions.  We are not obligated to pay Fees in respect of Real Money Players who, in our sole discretion, are not verifiably who they claim to be or are otherwise involved with Fraud Traffic.  In the event that we determine any activity to constitute Fraud Traffic, or to otherwise be in contravention of the Terms of Participation, then in our sole discretion we may: (i) pay the Fees in full, (ii) recalculate them in light of such suspected Fraud Traffic and/or (iii) forfeit your future Fees in respect of Fraud Traffic (as appropriate).

4.5 Method of Payment. All payments to you will be due and payable in United States Dollars.  Payment will be made by check, wire, ACH or any other method as we in our sole discretion decide; however, we will use reasonable endeavours to accommodate your preferred payment method.  Charges for wires or courier charges for checks will be covered by you and deducted from your Fees.  For the avoidance of doubt, we have no liability to pay any currency conversion charges or any charges associated with the transfer of monies to you.

4.6 Player Tracking. You understand and agree that potential Real Money Players must link through using your Tracker ID or use your sign-up bonus code in order for you to receive Fees. In no event are we liable for your failure to use Tracker IDs or for potential Real Money Players' failure to properly enter valid Sign-up Bonus Codes.  Notwithstanding any other provision herein, we may at any time and in our sole discretion alter our tracking system and reporting format.

4.7 Payment Disputes. If you disagree with the monthly reports or amount payable, do NOT accept payment for such amount and immediately send us written notice of your dispute.  Dispute notices must be received within thirty (30) days of our report to you  or your right to dispute such report or payment will be deemed waived and you shall have no claims in such regard. Further, deposit of payment check, acceptance of payment transfer or acceptance of other payment from us by you will be deemed full and final settlement of Fees due for the month indicated.  Notwithstanding the foregoing, if any overpayment is made in the calculation of your Fees, we reserve the right to correct such calculation at any time and to reclaim from you any overpayment made by us to you.

4.8 Money Laundering. You shall comply with all applicable laws and any policy notified by us through our Website or otherwise in relation to money laundering and/or the proceeds of crime.

4.9 Taxation. All taxes due in connection with any payments to you are your sole liability. You are responsible for complying with the rules, if any, for registering for and paying income tax and similar taxes in respect of your income from the Terms of Participation and for collecting and paying the income tax and social security contributions in respect of your staff, if you have any staff.  If Value Added Tax (VAT) or any other sales tax or turnover tax is chargeable, you are responsible for complying with the rules, if any, for registering for the tax and collecting and paying tax in the country where the services are provided and you acknowledge that the payments that you receive shall be deemed to include all VAT or sales tax or turnover tax.

4.10 The Payment Plan that you choose and we approve will apply to all of the Referral Services you provide within the Affiliate Network.  You will not be entitled to receive any Fees for revenues generated by Real Money Players on our Sites except as set out in the Payment Plan you choose for the Sites that are part of the Affiliate Network.

4.11 All payments under the Terms of Participation are subject to adjustment in accordance with the following provision. You agree that in the event that a relevant tax or regulatory authority seeks to recover taxes in any given market that were not originally deducted in the calculation of Fees due to you, then these tax payments will be applied retrospectively to calculate the payments that should have been made to you in the event that these taxes had been deducted.  The difference between this and the actual payments made to you under the Terms of Participation will become a liability of you and will be subject to repayment within 30 days of receipt of an invoice, or on such time period as otherwise agreed by us.  Alternatively, and at our sole discretion, we may set-off any repayment against any Fees payable to you under the Terms of Participation and we shall notify you if we make such as set-off.  Notwithstanding the foregoing, the Parties agree that we shall be entitled to deduct any overpayment from subsequent Fees in order settle such overpayment.

4.12 It is agreed by us that you will be entitled to submit invoices for payment of the Fees.   Those invoices must be sent to us via mail to, Borgata Hotel Casino & Spa, Attn: Internet Gaming Department, 1 Borgata Way, Atlantic City, NJ 08401; via email to affiliatesupport@theborgata.com; or other agreed upon method of communication.

5. TERM AND TERMINATION

5.1 Term and Termination. The Terms of Participation will take effect when you indicate your acceptance of these terms and conditions and execute the Advertising Agreement  The Terms of Participation shall continue until terminated in accordance with the terms of this document.

5.2 Termination By You. You may terminate your participation in the program, with or without cause, immediately upon written notice to us by sending an email marked "Termination borgatapartners.com" to affiliatesupport@theborgata.com.  For the avoidance of doubt, termination of our relationship will end your participation in the Affiliate Network as a whole. You may not terminate any Site in isolation.

5.3 Termination By Us. We may terminate your participation in the program, or without terminating our relationship as a whole, any specific Tracker IDs or with respect to certain Sites, with or without cause at any time, immediately upon written notice to you that we may send by email to such email address you have provided to us. . In the event we terminate your participation in the program as a whole, we shall be entitled to automatically render any Tracker IDs inoperative.  For the avoidance of doubt, on termination of our relationship you will no longer receive any Fees.  If we terminate a specific Tracker ID, you will no longer receive any Fees through that Tracker ID; however, your remaining Tracker IDs will not be affected.

5.4 Suspension By Us. In any circumstance where we are entitled to terminate your participation in the program or terminate any specific Tracker ID, we may at our sole discretion and without prejudice to our further rights and remedies, suspend your participation in the program or any specific Tracker ID.  During the period of any suspension, we may withhold the payment of any Fees that relate to any affected Tracker IDs.  Payment of any withheld Fees will be made to you on the lifting of the suspension.

5.5 Effect of Termination. Immediately upon termination of your participation in the program:
You shall stop promoting the Sites and all rights and licenses given to you under the Terms of Participation will terminate immediately.

You shall return all confidential information and cease all use of Our Marks and the Materials.

We may leave open, redirect or deactivate any Tracker IDs and/or Tracker URL's in our sole discretion without any obligation to pay you for Players who subsequently become Real Money Players.

Provided that we have paid or do pay to you such sums as are due at the date of termination and that shall be subject to any rights we have to make deductions hereunder, we will have no further liability to pay you any further sums.

Sections 1.1, 1.2, 1.3, 2, 3.5, 3.8, 3.9, 3.11, 4.5, 5.6, 6, 7 and 9 and such other provisions as are necessary for the interpretation or enforcement of the Terms of Participation shall survive any termination or expiry of the Terms of Participation.

6. LIABILITIES

6.1 No Warranties. WE PROVIDE THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED BY LAW, STATUTE OR OTHERWISE) RELATING TO THE AFFILIATE NETWORK, OUR SITES, OUR WEBSITE, OUR MATERIALS, OUR MARKS OR ANY CONTENT, PRODUCTS OR SERVICES AVAILABLE THEREIN OR RELATED THERETO WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THAT THE SITE WILL BE WITHOUT ERROR OR INVULNERABLE TO VIRUSES, WORMS, OR OTHER HARMFUL SOFTWARE OR HARDWARE, OR THAT OUR SITES, THE WEBSITE, SYSTEM, NETWORK, SOFTWARE OR HARDWARE WILL BE ERROR-FREE OR UNINTERRUPTED.  TO THE FULLEST EXTENT PERMITTED BY LAW. YOU HEREBY ACKNOWLEDGE THAT THE SITES, THE WEBSITE AND/OR THE SERVICES MAY NOT BE AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING, WITHOUT LIMITATION, PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, UNAUTHORIZED ACCESS, VIRUSES, DENIAL OF SERVICE OR OTHER ATTACKS, TECHNICAL FAILURE OF THE SITE, TELECOMMUNICATIONS INFRASTRUCTURE, OR DISRUPTION, AND THEREFORE WE EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY REGARDING USE AND/OR AVAILABILITY, ACCESSIBILITY, SECURITY OR PERFORMANCE OF THE SITES, THE WEBSITE OR THE SERVICES CAUSED BY SUCH FACTORS. FURTHERMORE, NEITHER WE (NOR OUR PROVIDERS OR UNDERLYING VENDORS) ARE REQUIRED TO MAINTAIN REDUNDANT SYSTEM(S), NETWORK, SOFTWARE OR HARDWARE.

6.2 Billing and Collection Limitations. We may, in our sole discretion, use any available means to block, restrict, remove or discount from your Tracker ID certain Real Money Players, deposits or play patterns or reject the applications of potential Real Money Players and/or Affiliates so as to reduce the number of fraudulent, unprofitable transactions or for any reason. We do not guarantee, represent or warrant the consistent application and/or success of any fraud prevention efforts.

6.3 Liability Limitations. Our obligations under the Terms of Participation do not constitute personal obligations of the owners, directors, officers, agents, employees, vendors or suppliers of the Site or Services. In no event will we be liable for any indirect, special, incidental, consequential or punitive loss, injury or damage of any kind (regardless of whether we have been advised of the possibility of such loss) including any loss of business, revenue, profits, goodwill or data or any compensation, reimbursement, or damages arising in connection with any termination of the Terms of Participation or your participation in the Affiliate Program.  Our liability arising under the Terms of Participation, whether in contract, tort (including negligence) or for breach of statutory duty or in any other way shall only be for direct damages and shall not exceed the revenues generated and payable to you in relation to the Site(s) that the dispute relates to over the previous 12 months at the time that the event giving rise to the liability arises.  However, nothing in the Terms of Participation will operate to exclude or limit either party's liability for death or personal injury arising as a result of that party's negligence or for fraud.  You are solely responsible for any websites that you use to provide the Referral Services, including their development, operation, and maintenance, and all materials that appear on it, and we shall have no liability for your website or for any of your end users’ claims relating to your website.

6.4 Indemnification. You shall defend, indemnify and hold us and our Group, and our and their respective officers, directors, employees and representatives, and all of our successors and permitted assigns, harmless on demand from and against any and all claims, demands, liabilities, losses, damages, costs and expenses (including reasonable legal fees) resulting or arising (directly or indirectly) from: (i) your breach of the Terms of Participation; (ii) your website and any materials that appear on your website (excluding the Materials); (iii) your violation of applicable laws, rules and regulations: and (iv) your negligence or wilful misconduct .

6.5 Set off. Without prejudice to any other rights or remedies available to us under the Terms of Participation or otherwise, we shall be entitled to set off any payments otherwise payable by us to you hereunder, against any liability of you to us, including any claims we have against you resulting from or arising from, your breach of the Terms of Participation.

7. INDEPENDENT INVESTIGATION

7.1 Independent Investigation. YOU WARRANT THAT YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF MARKETING THE SITE OR SERVICES.

7.2 Independent Research. YOU UNDERSTAND THAT GAMBLING LAWS MAY VARY FROM CITY TO CITY, STATE TO STATE AND COUNTRY TO COUNTRY. YOU WARRANT THAT YOU HAVE INDEPENDENTLY EVALUATED THE LAWS THAT APPLY TO YOUR ACTIVITIES AND BELIEVE THAT YOU MAY PARTICIPATE IN OUR AFFILIATE NETWORK WITHOUT VIOLATING ANY APPLICABLE RULES OR LAWS.

8. MISCELLANEOUS

8.1 Notices. All notices pertaining to the Terms of Participation will be given by email as follows: to you at the email address provided by you (or as subsequently updated by you to us in the event of change), and to us at our email address set forth herein.  Any notice sent by email shall be deemed received on the earlier of an acknowledgement being sent or twenty-four (24) hours from the time of transmission.

8.2 Non-Exclusive. You understand that we may at any time (directly or indirectly), enter into marketing terms with other Affiliates on the same or different terms as those provided to you in the Terms of Participation and that such Affiliates may be similar, and even competitive, to you.  You understand that we may re-direct traffic and users from any of the Sites to any other online site that we deem appropriate in our sole discretion, without any additional compensation to you.

8.3 Confidentiality and Non-Disclosure. As an Affiliate, you may receive confidential information from us, including confidential information as to our marketing plans, marketing concepts, structure and payments.  This information is confidential to us and constitutes our proprietary trade secrets. You shall not disclose this information to third parties or use such information other than for the purposes of the Terms of Participation without our prior written consent, save as expressly required by law (provided that any such disclosure is only to the extent so required).

8.4 Press. You may not issue any press release or other communication to the public with respect to the Terms of Participation, Our Marks or your participation in this Affiliate Network without our prior written consent You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to any charity or other cause), or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by the Terms of Participation.

8.5 Assignment. Except where you have received our prior written consent, you may not assign at law or in equity (including by way of a charge or declaration of trust), sub-license or deal in any other manner with the Terms of Participation or any rights under the Terms of Participation, or sub-contract any or all of your obligations under the Terms of Participation, or purport to do any of the same. Any purported assignment in breach of this Section shall confer no rights on the purported assignee.

8.6 Governing Law. The Terms of Participation (including any variation or modification thereto) shall be governed by and construed in accordance with the laws of New Jersey without giving effect to conflicts of law principles.  You irrevocably agree that, subject as provided below, the courts of New Jersey shall have exclusive jurisdiction to determine any claim, dispute or matter arising out of, or in connection with, or concerning the Terms of Participation or its enforceability and you waive any objection to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been brought in an inconvenient forum.  Nothing in this Section shall limit the right of us to take proceedings against you in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.

8.7 Severability. Whenever possible, each provision of the Terms of Participation will be interpreted in such a manner as to be effective and valid under applicable law but, if any provision of the Terms of Participation is held to be invalid, illegal or unenforceable in any respect, such provision will be ineffective only to the extent of such invalidity, or unenforceability, without invalidating the remainder of the Terms of Participation or any other provision here of.

8.8 Entire Agreement. The Terms of Participation embodies the complete understanding of the parties hereto with respect to the subject matter hereof and supersedes any prior or subsequent oral or written agreement or understanding between the parties in relation to such subject matter save in respect of modification to the Terms of Participation provided by us to you in accordance with Section 1.4 above.  Each of the parties acknowledges and agrees that in entering into the Terms of Participation, it has not relied on any statement, representation, guarantee warranty, understanding, undertaking, promise or assurance (whether negligently or innocently made) of any person (whether party to the Terms of Participation or not) other than as expressly set out in this document.  Each party irrevocably and unconditionally waives all claims, rights and remedies that, but for this Section, it might otherwise have had in relation to any of the foregoing.  Nothing in this Section shall limit or exclude any liability for fraud.

8.9 Third-Party Rights. Except insofar as the Terms of Participation expressly provides that a third party may in their own right enforce a term of the Terms of Participation, a person who is not a party to the Terms of Participation has no right under local law or statute to rely upon or enforce any term of the Terms of Participation but this does not affect any right or remedy of a third party that exists or is available apart from under that local law or statute.

8.10 No Waiver By Us. If there is a breach of any provision of the Terms of Participation, it shall not be considered as a waiver of any subsequent breach of the same or any other provision.