DRAFTKINGS AFFILIATE PROGRAM TERMS AND CONDITIONS
“Affiliate Link(s)” shall mean the unique tracking hyperlink (URL) to DraftKings provided by us to the Affiliate for the purposes of tracking the number of New Money Player and calculating the amount of Commission due to the Affiliate.
"Attribution Window" shall be defined as the period of time allowed between a user clicking on an advertisement and the completion of the registration process.
"Conversion" or "Conversions" in reference to advertisements shall be defined as the result of a user viewing an advertisement for DraftKings, clicking on said advertisement, and completing the sign-up and registration process on the DraftKings website.
“First 30 Days Percentage” – applies to New Money Players that are associated to your Affiliate Links. This represents the commission rate to be applied to the daily Net Revenue starting from the date the New Money Player made his or her first cash deposit up to his or her thirty (30) day anniversary date with DraftKings.
“31+ Days Percentage” shall mean the Commission rate to be applied to the daily Net Revenue starting from the Player’s 31st day anniversary date.
“Marketing Materials“ shall mean the content we provide to you in order to market the Program.
"Minor" shall mean any individual under eighteen (18) years of age; provided, however, that Minor shall mean (i) any individual under nineteen (19) years of age who is a legal resident of Alabama or Nebraska, or (ii) any individual under twenty-one (21) years of age who is a legal resident of Massachusetts.
"Net Revenue" is defined as revenue generated through the Program less an administrative fee to cover promotional or retention bonuses, "charge-backs", any fraudulent activity and a proportion of deposit and withdrawal transaction fees. Affiliates may not earn Commissions on revenue derived through their own play.
"New Money Player" shall mean an Internet user without a prior Account on DraftKings.com who (i) accesses DraftKings.com directly through an Affiliate Link; (ii) opens a new Account; and (iii) enters, by way of cash deposit into their Account, contests operated by DraftKings.com.
"Player(s)" shall means any person using any products or services on our Website whether attached to your Affiliate Link or not.
"Program" shall mean all agreements, materials, and services relating to DraftKings' affiliate program located at https://www.draftkings.com/affiliates (subject to change from time to time).
"Program Site" shall mean the site located at https://www.draftkings.com/affiliates.
APPLICATION TO JOIN THE PROGRAM
In order to become an affiliate of DraftKings you must submit a completed application form.
We will review your application and we may then, in our sole discretion, notify you that we accept or reject your application to participate in the Program or require further information from you.
We may reject your application in our sole discretion and for any reason, including, without limitation, if we determine that any of the content included on a Website is unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable including, without limitation, content that is aimed at minors; displays sexual, pornographic or obscene acts; contains graphic violence; contains discriminatory content (whether based on race, sex, religion, nationality, ethnicity, sexual preference, physical disability, gender or otherwise) or violates the intellectual property rights of DraftKings or of any other third party.
TERMS AND CONDITIONS
Subject to the terms and conditions of this Agreement, DraftKings grants to the Affiliate, for the term of this Agreement, the non-exclusive and non-transferable right to market and promote DraftKings solely by means of the placing of the Affiliate Link(s) on the Affiliate Website(s) as approved by DraftKings in each instance.
By agreeing to participate in the Program, you are agreeing to create and maintain unique links from your site that you operate (the “Affiliate Website”) to us. You may link to us with any of, but only with, the Marketing Materials which we have supplied to you. You shall not modify the Marketing Materials or our marks or any other of our intellectual property in any way without our prior written consent. You may also appropriately use other marketing techniques/channels such as social media, email and paid search marketing, subject to the terms and conditions of this Agreement. You shall not use the Marketing Materials or our marks on any website that has not been previously agreed to and approved by us. Any form of spamming is strictly prohibited and will be considered as a breach of this Agreement allowing us the option exercisable at our discretion to terminate immediately and without further notice to you or otherwise to exclude any traffic generated in this manner from Commissions (as defined below) payable to you.
FTC COMPLIANCE; MARKETING ACTIVITIES AND RESPONSIBILITIES
You shall market to and refer potential New Money Players to us. You will be solely liable for the content and manner of such marketing activities. All such marketing activities must be professional, proper and lawful under applicable rules, regulations or laws, including any laws in relation to the content and nature of any advertising or marketing (such as the Endorsement and Testimonial Guidelines published by the United States Federal Trade Commission (the "FTC Guidelines")), and otherwise comply with the terms of this Agreement. For the avoidance of doubt, and without limiting your other legal and regulatory compliance obligations pursuant to this Agreement, you shall include a disclosure statement (as required by the FTC Guidelines as well as any other disclosures that may be provided by DraftKings) within any and all pages, blogs, posts, or social media posts where Affiliate Links for our Program are posted. This disclosure statement should be clear, conspicuous, and concise, stating that you may be compensated for referring potential New Money Players to us.
Conversions from advertisements must occur within a seven-day Attribution Window for In-Application Traffic, and within a one-day Attribution Window for mobile web or fingerprinting traffic. Attribution through View-through or Impressions is strictly prohibited unless you received prior written consent from DraftKings explicitly providing otherwise. DraftKings reserves the right to modify these Attribution Widow timeframes at its sole discretion upon seven (7) days' notice to Referrer.
You shall not yourself, nor shall you authorize, assist or encourage any third party to:
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 Commission fees otherwise payable to you under this Agreement and/or terminate this Agreement.
COMMISSION FEES & PAYMENTS
Commission fees payable to you will be calculated on a calendar month basis in accordance with the following commission structure or as agreed in writing (the "Commission(s)"):
Commission structure for Calendar Year 2017
Subject to the minimum referral requirement, Commission fees payable to you will be calculated on a calendar month basis in accordance with the following Commission structure:
First 30 Days %: 40%
Further, the Commission is subject to a maximum of $1,000 per New Money Player per calendar month.
** Subject to the minimum referral requirement set forth below
Calculation: Subject to the Affiliate's compliance with the terms of this Agreement, DraftKings will pay the Affiliate a commission based upon a calendar month basis. In order to calculate the Commission, DraftKings shall refer to the Affiliate Link used by the Affiliate. The Affiliate hereby agrees that DraftKings measurements and calculations in relation to the Commission shall be final and not subject to review or appeal.
You will only be entitled to Commission on a New Money Player for a period of two (2) years from the date of the New Money Players first deposit on DraftKings.com.
Method of Payment: All payments to you will be due and payable in United States Dollars no sooner than thirty (30) days but no later than sixty (60) days from the last day of the month in which commissions were earned.
You will have the option of receiving your commission payments by check or made electronically by one of our third-party payment providers. Commission balances that are below $75.00 threshold will not be processed for payment and be held and added to subsequent monthly commission earnings until such threshold is met.
Minimum Referral Requirement: Affiliate must acquire a minimum of two (2) New Money Players within any thirty (30) day period in order to qualify for commission (the “Threshold”). Failure to meet the Threshold will result in a reduction of the commission rate on Net Revenue from active players greater than thirty (30) days to a rate of fifteen-percent (15%) in any period in which the Threshold is not met. Further, if the Affiliate fails to acquire a minimum of fifty (50) New Money Players in a sixth (6) month period, DraftKings reserves the right to immediately terminate this Agreement without notice.
Inactive Players: Players that have not entered into any contests for more than 9 months will be deemed inactive and will no longer be counted towards the Affiliate’s revenue.
Player Tracking: You understand and agree that potential New Money Players must link through using your Affiliate Links in order for you to receive Commissions. In no event are we liable for your failure to use or erroneously use Affiliate Links. Notwithstanding any other provision contained herein, we may at any time, and in our sole discretion, alter our tracking system and reporting format.
Player Information and Data: We reserve the right to refuse service to any potential Player and to close the 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.
Payment Hold for fraud or violations of terms: In the event that, in our sole discretion, we suspect any fraud or violations of terms herein, we may delay payment of the Commissions to you for up to one hundred and eighty (180) days while we investigate and verify the relevant players and transactions. We are not obligated to pay Commissions in respect of New Money Players who, in our sole discretion, are not verifiably who they claim to be or are otherwise involved with any fraud or violation of terms. In the event that we determine any activity to constitute as fraudulent or to otherwise be in contravention of this Agreement, then in our sole discretion we may: (i) pay the Commission in full, (ii) recalculate them in light of such suspected fraud or violation and/or (iii) forfeit your future commission fees in respect of such fraud or violation (as appropriate).
Money Laundering: You shall comply with all applicable laws and any policy notified by us through our Site or otherwise in relation to money laundering and/or the proceeds of crime.
Taxation: All taxes due in connection with any payments to you are your sole liability. You are solely responsible for paying all federal and other taxes in accordance with the laws that apply in your local, state, province, and/or country of residence. It is the policy of this program, and in compliance with United States Internal Revenue Service regulations, that we may send an IRS Form 1099-MISC or other appropriate form to any affiliate who earns Commission greater than $600 (USD) in any given calendar year. Depending on the jurisdiction in which you reside, the program may also send you W-9 and/or additional tax forms, which are required in order to receive Commission payments. We reserve the right to withhold (from your existing Account balance) any amount required to be withheld by law or until requested information and forms are received
LICENSE AND INTELLECTUAL PROPERTY
We grant you a non-exclusive, non-transferable license to use the provided Marketing Materials, and to use our API, trade name, trademarks, service marks, logos and any other designations (collectively, the “Licensed Materials”), which we may from time to time approve solely for the duration of this Agreement and for the sole purpose of allowing you to fulfill your obligations in accordance with this Agreement. You must obtain approval for the use of the Licensed Materials in each instance and such approval shall be in DraftKings’ sole discretion. This license cannot be sub-licensed, sold, assigned or otherwise transferred by you. Your right to use the marks, Marketing Materials and any other intellectual property is limited to and arises only out of this license. You may not modify the graphic image or text, or any other of our images, in any way. We reserve all of our rights in the graphic image and text, any other images, our trade names and trademarks, and all other intellectual property rights. You agree to follow our trademark guidelines, as those guidelines may change from time to time. We may revoke your license at any time by giving you written notice.
Nothing herein shall be considered or understood to be a transfer by DraftKings to the Affiliate of any rights whatsoever in the Trade Marks or Trade Secrets or any other intellectual property rights whatsoever and, in particular, the Affiliate agrees not to:
Affiliate hereby acknowledges that all information relating to players is the exclusive and sole property of DraftKings and that the Affiliate has and shall have no rights therein whatsoever.
TERM AND TERMINATION
The term of this Agreement shall commence on the date DraftKings accepts your application to be included in the Affiliate program and will end when terminated by either party as set forth in this Agreement (the "Term"). Either party shall have the right to terminate this Agreement at any time, with or without cause as follows: (i) you may terminate this Agreement at any time upon written notice to us; or (ii) we may terminate this Agreement at any time on seven (7) days' prior written notice.
Upon any termination or expiration of this Agreement: (a) Affiliate shall immediately cease use of the services and remove all links from the Affiliate Website to the DraftKings website; and (b) each party shall remove from its respective website any branding or other proprietary materials received from the other party under the terms of this agreement.
Additionally, we may terminate this Agreement effective immediately if Affiliate violates the terms of this Agreement. Affiliate will only be entitled to Affiliate Commissions during the valid Term of this Agreement. For the avoidance of doubt, it is hereby clarified that DraftKings shall not be liable to pay any Commissions on Net Revenue generated by Players with your Affiliate Links following the termination of this Agreement. Following the termination of this Agreement and the payment to the Affiliate of monies due to it as at the time of termination, DraftKings shall have no obligation to make any further Commission payments to the Affiliate. Termination of this Agreement shall not extinguish either of the parties' obligations under this Agreement which by their terms or context are intended to survive the termination of the Agreement.
The Affiliate shall defend, indemnify and hold DraftKings and its shareholders, directors, officers, employees, agents and representatives, agents, successors and assigns harmless from and against any and all liabilities, losses, damages and costs, including attorney's fees and costs, resulting from, arising out of, or in any way connected with
Except as otherwise provided in this Agreement or with the consent of the other party hereto, each of the parties hereto agrees that all information including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists and pricing and sales information, shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by the other party for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than such party hereto. No party shall disclose, or use for its own benefit or the benefit of any such party's affiliate, any trade secret or confidential, proprietary or other non-public information obtained from the other party during the course of this Agreement. The parties shall protect the confidential information of the other party as if it were its own, but in no instance less than a reasonable standard of care. This Agreement incorporates standard exceptions to the definition of confidential information. This provision shall survive for three (3) years after the termination of this Agreement.
WE MAKE NO WARRANTIES OR REPRESENTATIONS (WHETHER EXPRESS OR IMPLIED BY LAW, STATUTE OR OTHERWISE) WITH RESPECT TO THE AFFILIATE NETWORK, OUR SITES, OUR WEBSITE OR ANY CONTENT, PRODUCTS OR SERVICES AVAILABLE THEREIN OR RELATED THERETO OR THAT OUR SITES, THE WEBSITE, SYSTEM, NETWORK, SOFTWARE OR HARDWARE (OR THAT PROVIDED TO US BY THIRD PARTIES) WILL BE ERROR-FREE OR UNINTERRUPTED OR WITH RESPECT TO THE QUALITY, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR SUITABILITY OF ALL OR ANY OF THE FOREGOING. EXCEPT AS EXPRESSLY STATED OTHERWISE IN THIS AGREEMENT, ALL WARRANTIES, REPRESENTATIONS AND IMPLIED TERMS AND CONDITIONS ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. FURTHERMORE, NEITHER WE (NOR OUR PROVIDERS OR UNDERLYING VENDORS) ARE REQUIRED TO MAINTAIN REDUNDANT SYSTEM(S), NETWORK, SOFTWARE OR HARDWARE.
LIMITATION OF LIABILITIES
IN NO EVENT SHALL DRAFTKINGS, ITS SUPPLIERS AND LICENSORS OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND STOCKHOLDERS SHALL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES ARISING HEREUNDER, EVEN IF DRAFTKINGS, ITS SUPPLIERS AND LICENSORS OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND STOCKHOLDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS.
Modification. DraftKings reserves the right to update or modify this Agreement or any part thereof at any time without notice and you will be bound by such amended Agreement within fourteen (14) days after it is posted at the Program Site. Therefore, we encourage you to visit the Program Site regularly and check the terms and conditions contained in the version of the Agreement in force at such time. Your continued participation in the Program shall be deemed to attest to your agreement to any amendments to the Agreement.
Independent Investigation. You confirm that you have read the Agreement, have had an opportunity to consult with your own legal advisors if so desired, and agree to all its terms and conditions. You confirm that you have independently evaluated the desirability of participating in the Program and you are not relying on any representations, guarantee or statement other than as set forth in this Agreement or any other marketing materials.
Relationship of Parties. There is no relationship of exclusivity, partnership, joint venture, employment, agency or franchise between you or us under this Agreement. Neither party has the authority to bind the other (including the making of any representation or warranty, the assumption of any obligation or liability and/or the exercise of any right or power), except as expressly provided in this Agreement.
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 this Agreement and that such Affiliates may be similar, and even competitive, to you. You understand that we may re-direct traffic and users from our site to any other online site that we deem appropriate in our sole discretion, without any additional compensation to you.
Assignment. Affiliate may not under any circumstances sublicense, assign (by operation of law or otherwise) or otherwise transfer this Agreement or any license or any right, duty or obligation under this Agreement without DraftKings’ prior written consent, and any attempt to do so shall be null and void. Subject to the foregoing limitations, this Agreement will mutually benefit and be binding upon the parties, their successors and assigns.
Waiver; Severability. A failure or delay by either party to enforce any right under this Agreement shall not at any time constitute a waiver of such right or any other right, and shall not modify the rights or obligations of either party under this Agreement. Any waiver by either party of any right under this Agreement shall not constitute a waiver of such right in the future. If any provision or portion of this Agreement is held to be unenforceable or invalid, the remaining provisions and portions shall nevertheless be given full force and effect, and the parties agree to negotiate, in good faith, a substitute valid provision which most nearly affects the parties' intent in entering this Agreement.
Force Majeure. Excluding the payment of money, neither party will be deemed in default of any obligation hereunder nor be liable for any failure or delay in performance which results directly or indirectly from any cause beyond its reasonable control, including without limitation, "Acts of God," delays or failures in the Internet or related carriers and third-party equipment, acts of civil or military authority, strikes, fire, theft, delays by suppliers, or action or inaction by the other party or any third party.
Governing Law. This Agreement shall be governed by and construed under the laws of the Commonwealth of Massachusetts, without regard to principles of conflicts of laws. Application of the U.N. Convention of Contracts for the International Sale of Goods is expressly excluded.
Entire Agreement. These Terms and Conditions, in connection with other obligations and rules detailed in writing, constitute the entire agreement between Affiliate and DraftKings and cannot be modified by Affiliate, supersedes all prior agreements and understandings, whether written or oral, relating to the subject matter of this Agreement.
Last Updated: May 29, 2018