Terms and Conditions - Michigan Lottery Digital Affiliate Program
Last Updated: February 2018
Please read these terms and conditions carefully before applying to become a Michigan Lottery Affiliate. It is your responsibility to check back frequently and to review any updates to these terms and conditions. Participation in the Michigan Lottery Digital Affiliate Program (the “Program”) requires acceptance of these terms and conditions in their entirety, as such terms and conditions are amended from time to time.
This Program is administered on behalf of the Michigan Lottery (the “Lottery”) by Pollard Banknote Limited (the “Administrator”). By accepting these terms and conditions, you are entering into an agreement with the Administrator to participate in the Program. The Administrator may change from time to time and your agreement may be assigned to the Lottery or to a successor administrator without your consent.
If you have any questions or comments about the Program, please contact us in writing at email@example.com.
“Acceptance Email” means the email sent to an applicant confirming that the applicant has been accepted into the Program as an Affiliate and defining the Payment structure;
“Acquired Player” means a Registered Player who has made a first time deposit and has placed a minimum of one wager within five (5) years from the last day of the month in which the Registered Player made a first time deposit;
“Affiliate” means any entity or person (natural or legal) that has been authorized to participate in the Program;
“Agreement” means the written terms defining an Affiliate’s participation in the Program, to consist only of: the Application Form; the Acceptance Email; any email from the Administrator to the Affiliate regarding status as an Affiliate or eligibility for Payment that is intended to specifically amend the Agreement; and these terms and conditions, including any updates made thereto;
“Application Form” means an electronic form prescribed by the Bureau which is subject to change at any time and will be provided at the Program Website to facilitate applications for participation in the Program;
“Commission Payment” means a revenue share commission based on the total number of newly Acquired Players as of the last day of a given month;
“Cost Per Acquisition” or “CPA” means a one-time payment made to an Affiliate for each Acquired Player;
“Force Majeure” means an event, or a series of related events, that is outside the reasonable control of the party affected including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software infections or attacks, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights and the “Intellectual Property Rights” include, but are not limited to, copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs;
“Link” means a hyperlink, whether embedded in text, an image, or otherwise, approved for use in the Program that transfers consumers from the Properties to the Portals;
“Lottery” means the Michigan Lottery and its duly authorized representatives;
“Net Gaming Revenue” means the total monthly amount wagered by any Acquired Players generated through an Affiliate’s Property less prizes, bonuses, credits and chargebacks;
“Payment” means compensation payable to an Affiliate in consideration of their participation in the Program, to be calculated as a Commission Payment or Commission Payment and Cost Per Acquisition;
“Portals” means the website, mobile site, and other digital assets owned and operated by the Michigan Lottery;
“Program” means the Michigan Lottery Digital Affiliate Program for promoting the Michigan Lottery’s Portals and online products that may result in Payment to Affiliates;
“Program Website” means the website designed specifically for online Affiliate-registration at https://affiliates.michiganlottery.com/registration.asp and management of the Program at https://affiliates.michiganlottery.com/login.asp;
“Properties” means the website, mobile site, apps, consumer databases or other digital assets owned and operated by the Affiliate and clearly specified on the Application Form;
“Prohibited Materials” means content, works, or other materials that are reasonably determined to constitute:
(a) material that breaches any applicable laws, regulations or legally binding codes;
(b) material that breaches Lottery policies, codes of practice and stated guidelines;
(b) material that infringes any third party Intellectual Property Rights or other rights;
(c) material that is offensive or abusive, or is likely to cause annoyance, inconvenience, or anxiety to another internet user;
(d) promotes violence, discrimination, or illegal activities;
(e) computer viruses, spyware, trojan horses, or other malicious or harmful routines, programs, or software; and/or
(f) spam or bulk non-opted-in, unsolicited emails of any frequency or volume;
“Registered Player” means a consumer who has accessed the Portals using a Link and has successfully completed Michiganlottery.com account registration within ninety (90) days from the date the Link was clicked.
To apply to become an Affiliate, an applicant must complete the Application Form located on the Program Website, accept these terms and conditions during the application process, and submit the Application Form. Only Application Forms submitted through the Program Website will be considered for participation in the Program.
An applicant must be a legally-sanctioned business or an individual at least eighteen (18) years of age, and must not market directly to minors. Employees of the Lottery or its vendors are not eligible to submit an Application Form or be approved as an Affiliate. Spouses, children, siblings, or parents of employees of the Lottery or its vendors are not eligible to submit an Application Form or be approved as an Affiliate.
Any input errors on the Application Form must be identified and corrected by the applicant prior to submission of the Application Form. Once submitted, Application Forms cannot be edited or altered. Upon submission of an Application Form, the applicant’s information will be reviewed by the Administrator and considered for approval. If approved, applicants will receive an Acceptance Email, which will include confirmation of the Payment structure to be used and the rate of Cost Per Acquisition, if any. Only applicants who receive an Acceptance Email are eligible to participate in the Program. Approval of Application Forms is in the sole discretion of the Administrator.
Once approved, Affiliates remain eligible to participate in the Program subject to these terms and conditions and a periodic review of performance. Failure to obtain Acquired Players for a period of three consecutive months may result in termination from the Program.
USE OF PROGRAM LINKS
The Affiliate will, within 60 days following receipt of an Acceptance Email, install one or more Links on its Properties and maintain those Links throughout its participation in the Program. Affiliates may earn Payments only as described in the Payments section below and only with respect to Acquired Players tracked directly through the Links on their Properties.
Affiliates will make such amendments to their Links and/or their Properties, as directed by the Administrator on behalf of the Lottery, at the Affiliate’s sole cost and expense, for the purposes of ensuring consistency and quality in the use of the Lottery's trademarks and branding. Failure to make such amendments on a timely basis may result in termination from the Program.
The Affiliate will ensure that the information on its Application Form and otherwise associated with the Affiliate on the Program Website, including email address and other contact information and identification of the Properties, is at all times complete, accurate, and up-to-date. The Affiliate will cooperate with the Administrator and will provide such information, documentation, or supporting materials as the Administrator may reasonably request for the purposes of confirming compliance with the Program.
The Affiliate must keep its Properties up-to-date and in good working order and ensure that the quality of design, content, and functionality on the Properties does not materially deteriorate during the Affiliate’s participation in the Program. Failure to comply may result in termination from the Program.
The Affiliate must ensure that all marketing of or relating to the Properties (both online and offline) is in accordance with applicable law, any applicable codes of practice (including Lottery codes of practice), and good industry practice generally.
Affiliate acknowledges and agrees that the Administrator may:
(a) send the Affiliate email relating to the Program from time to time including with respect to changes to the Payment structure, the Affiliate’s status under the Program and any other amendments to the Agreement;
(b) monitor, record, use, and disclose to the Lottery data pertaining to the use of the Properties and Acquired Players; and
(c) monitor, crawl, and investigate the Properties to verify compliance with the Program.
The Affiliate must not:
(a) include any Prohibited Materials on the Properties, or include any hyperlink to any Prohibited Materials on the Properties;
(b) market its Properties using spam or unsolicited emails or other unsolicited communications, or using any form of spyware, parasiteware, adware or similar software, or using any other antisocial or deceptive methods;
(c) increase or seek to increase Payment through use of any fraudulent or deceptive method;
(d) make any public disclosure relating to the Agreement or the relationship between Lottery, the Administrator and the Affiliate (including press releases, public announcements and marketing materials) without the prior written consent of the Lottery;
(e) include any hyperlink to the Portals from the Properties that is not an approved Link;
(f) include any reference to the Lottery, the Administrator or the Portals on the Properties that is intended or would reasonably be expected to harm, disparage, defame, deride, or embarrass the Lottery, its staff, officers, directors, vendors, and agents, its business, products, games, and reputation, or would reasonably be expected to cause unwanted or unfavorable publicity;
(g) purchase paid search or social media advertising that competes with Lottery media purchases, including but not limited to: Google Ad Words, Facebook, Yahoo, and Bing;
(h) place Links on Properties that fundraise for politicians;
(i) place Links on Properties that market directly to minors; or
(j) place Links on Properties where the Properties make representations about illegal products or services.
The Affiliate will not take any action in connection with the Program which might reasonably be expected to lead to the possibility of damage to the reputation and goodwill of the Lottery, the Administrator or the Portals.
The Affiliate will not take any action in connection with the Program which might reasonably be expected to harm the contractual relationship between the Administrator and Lottery as it relates to the Administrator’s obligation to administer this Program on Lottery’s behalf.
The Affiliate may not modify, impair, disable, or otherwise interfere with any tracking codes and/or other technology required to ensure proper tracking of the Links.
The Affiliate is not permitted to copy any other Affiliate’s Property. Failure to comply may result in termination from the Program.
Affiliates must not spam and/or use unsolicited email. Failure to comply may result in termination from the Program.
Each Affiliate is responsible for the quality and origin of Registered Players that stem from geo-targeting the state of Michigan. If an Affiliate knowingly sends consumers of a questionable quality and/or origin to the Portals, such Affiliate’s participation in the Program may be terminated.
If an Affiliate accidentally or unknowingly directs consumers of a questionable quality and/or origin to the Portals, the Administrator may issue a written warning to the Affiliate, notifying the Affiliate of the questionable consumers.
Affiliates’ use of the Lottery’s Links, trademarks and logos is subject to a limited, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free license to (a) copy and display the Links solely on the Properties; and (b) use only those of Lottery’s trademarks and logos that Lottery may make available as part of the Program solely on the Properties. The license granted is subject to these terms and conditions and is solely for the limited purpose of participation in the Program. The Lottery does not warrant that the use of the Links by Affiliates will not infringe any third party Intellectual Property Rights or give rise to any other liability on the part of Affiliates. The license set forth in this section will immediately and automatically terminate if at any time an Affiliate does not timely comply with any obligation under these terms and conditions, upon termination from the Program, or upon the discontinuation of the Program. In addition, the Administrator or Lottery may terminate the license set forth in this section in whole or in part upon written notice to the Affiliate. Affiliates will promptly remove from the Properties and delete or otherwise destroy all of the Links and Lottery’s intellectual property with respect to which the license set forth in this section is terminated or as may be otherwise requested from time to time.
RESERVATION OF RIGHTS;SUBMISSIONS
Other than the limited licenses expressly set forth above, Lottery reserves all right, title, and interest (including all intellectual property and proprietary rights) in and to, and Affiliates do not by virtue of these terms and conditions or otherwise, acquire any ownership interest or rights in or to the Program, Links, Link formats, Portals, any domain name owned or operated by Lottery, Lottery’s trademarks and logos, and any other intellectual property and technology that is provided to or used by Affiliates in connection with the Program. If an Affiliate provides Lottery or its designees with suggestions, reviews, modifications, data, images, text, or other information or content about the Program, Links, or Portals, or if an Affiliate modifies any Link in any way, (collectively, “the Submission”), the Affiliate hereby irrevocably assigns to Lottery all right, title, and interest in and to the Submission and grants Lottery (even if the Submission is designated as confidential) a perpetual, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (a) use, reproduce, perform, display, and distribute the Submission in any manner; (b) adapt, modify, reformat, and create derivative works of the Submission for any purpose; and (c) sublicense the foregoing rights to any other person or entity. Additionally, Affiliates hereby warrant that: (a) the Submission is the Affiliate’s original work, or the Submission was obtained in a lawful manner; and (b) Lottery and its designees’ exercise of rights under the license above will not violate any person’s or entity’s rights, including any copyright rights. Affiliates agree to provide Lottery and its designees such assistance as may be required to document, perfect, or maintain the rights in and to the Submission.
Affiliates are eligible to earn Payments for participation in the Program. Payments to Affiliates may be calculated in one of two ways: (1) Commission Payment; or, (2) a combination of Commission Payment and Cost Per Acquisition Payment.
Each Affiliate is only eligible to earn Payments for those Acquired Players that can be specifically attributed to the Affiliate through use of the Links. In the event that a consumer has visited multiple Properties and clicked on each of the Properties’ Links, only the last Affiliate’s Link clicked prior to the consumer’s michiganlottery.com account registration will be eligible to receive credit for the Acquired Player.
The Administrator will account to the Affiliate for all Payments due in respect of a calendar month within thirty (30) days of the end of the following calendar month, unless the amount due is less than twenty-five dollars ($25.00) when Skrill payment method is selected by Affiliate or less than two hundred and fifty dollars ($250.00) when Electronic Fund Transfer payment method is selected by Affiliate. In the event that Payment for any month is less than twenty-five dollars ($25.00) when Skrill payment method is selected by Affiliate or two hundred and fifty dollars ($250.00) when Electronic Fund Transfer payment method is selected by Affiliate, Payment will be held over until such time as the aggregate Payments due exceed twenty-five dollars ($25.00) or two hundred and fifty dollars ($250.00).
The Payment structure for each Affiliate will be denoted in the Acceptance Email. An Affiliate may not negotiate a new Payment structure once the Acceptance Email is sent. The Administrator reserves the right to amend a Payment structure from time to time, upon written notice to the Affiliate.
Payments made pursuant to the Program will be reportable by the Administrator to the US Internal Revenue Service, as required by applicable law. The Affiliate agrees to provide the Administrator with such information as the Administrator may reasonably require to facilitate the preparation and filing of relevant tax reporting forms including Affiliate’s name, address and tax identification number. Affiliates shall be solely responsible for the remittance of any taxes assessable in connection with an Affiliate’s participation in the Program. Neither the Administrator nor the Lottery shall be held responsible for the remittance of taxes or the provision of tax advice.
Payment to Affiliates will be made by electronic bank transfer or Skrill using the information provided by each Affiliate on the Application Form.
Commission Payments will be calculated based on Net Gaming Revenue for the total number of Acquired Players, including previously Acquired Players, in a given month that can be specifically attributed to the Affiliate only. Commission Payments are payable in respect of Acquired Players only. No Commission Payments will be made for Registered Players. In the event that an Affiliate’s attributable Net Gaming Revenue is less than zero in any given month, the Commission Payment amount will be zero.
Commission Payment rates will be based on the number of newly Acquired Players in a given month as follows:
● 0 through 10 Acquired Players = 15% of Net Gaming Revenue
● 11 through 19 Acquired Players = 17% of Net Gaming Revenue
● 20 or more Acquired Players= 20% of Net Gaming Revenue
Commission Payments shall be calculated monthly and shall be payable for a period of five years from the last day of the month in which the consumer became an Acquired Player, or until the Affiliate’s participation in the Program is terminated, whichever occurs first.
Cost Per Acquisition Payments:
CPA Payments, if any, will be calculated as a flat fee per Acquired Player at an amount to be specified in the Acceptance Email.
CPA Payments, if any, are payable once for each Acquired Player. Affiliates are eligible to earn CPA Payments for a period of one year from the date of the Acceptance Email. After the initial one year period, and every quarter thereafter, the Administrator will evaluate an Affiliate to determine eligibility for CPA Payments. Affiliates will be notified of any change to eligibility for CPA Payments by email from the Administrator. No CPA Payments will be made for Registered Players.
No Payments will be due in respect of:
(a) any wagers on the Portals made by or on behalf of:
i. the Affiliate;
ii. any parent corporation or subsidiary of the Affiliate; or
iii. any employee, agent, or officer of the Affiliate.
(b) any amount received through the Portals by means of the fraudulent or unlawful use of a credit, debit, or other payment card, by any other fraudulent or unlawful means; or in any manner that violates these terms and conditions;
(c) any purchases on the Portals which are subsequently canceled, refunded, reversed, or charged-back (repayment of any Payments made as a result of such purchases will be repaid by the Affiliate), or;
(d) any Acquired Player obtained by an Affiliate after the last day of the month in which the Affiliate’s participation in the Program terminated.
(e) any wagers on the Portals made after Affiliate’s participation in the Program has been terminated.
Both before and after termination of an Affiliate’s participation in the Program, amounts owed to the Affiliate may be offset against any amounts owed by the Affiliate whether under the Agreement or otherwise, and against any loss or damage suffered by the Administrator or the Lottery whether in relation to the Agreement or otherwise arising out of the Affiliate's acts or omissions.
The Affiliate warrants to each of the Administrator and the Lottery that:
(a) it has the legal right and authority to enter into and perform its obligations under the Agreement; and
(b) it will perform its obligations under the Agreement with reasonable care and skill.
(c) it is not currently engaged in, and will not engage in, the boycott of a person based in or doing business with a strategic partner as that term is described in 22 USC 8601 to 8606.
The Affiliate will indemnify and hold harmless the State of Michigan, the Administrator and all of their respective departments, bureaus, agencies, offices, commissions, directors, officers, employees, officials, contractors, agents, and affiliates, against any and all actions, claims, losses, damages, liabilities, costs, and expenses (including legal expenses) arising from or relating to Affiliate’s: (a) Properties or any materials that appear on the Properties, including the combination of the Properties or those materials with other applications, content, or processes; (b) use, development, design, manufacture, production, advertising, promotion, or marketing of the Properties or any materials that appear on or within the Properties; (c) use of any Link or intellectual property belonging to Lottery, whether or not such use is authorized by or violates these terms and conditions or applicable law; (d) intentional or negligent acts or omissions; (e) violation of federal, state, or local law; and (f) material breach of these terms and conditions. This clause remains effective beyond termination of the Agreement.
Nothing in the Agreement will exclude or limit the liability of the Affiliate for:
(a) death or personal injury caused by the Affiliate’s negligence;
(b) fraud or fraudulent misrepresentation on the part of the Affiliate; or
(c) any other liability which may not be excluded or limited under applicable law.
Affiliates acknowledge that the Administrator is administering the Program on behalf, and for the sole benefit, of the Lottery. The Administrator’s liability to the Affiliate under or in connection with the Agreement, whether in contract or tort (including negligence), will be limited to payment of Payments due hereunder. Affiliates acknowledge that payment by the Administrator of Payments due hereunder is contingent upon receipt of proceeds from the Lottery. Under no circumstances will the Administrator be liable for payment of Payments in excess of those proceeds actually received by the Administrator from the Lottery.
(a) In addition, and without limiting the generality of the foregoing, the Administrator will not be liable for any Affiliate’s:
(i) loss of profits, income or anticipated savings;
(ii) loss or corruption of any data, database, or software;
(iii) reputational damage or damage to goodwill;
(iv) losses arising out of a Force Majeure Event;
(v) loss of any commercial opportunity; or
(vi) indirect, special, or consequential loss or damage.
Under no circumstances will either the Administrator or the Lottery be liable for any direct, indirect, incidental, special, or consequential damages arising in connection with the Program, even if the Administrator and/or the Lottery have been advised of the possibility of such damages.
FORCE MAJEURE EVENT
Where a Force Majeure Event gives rise to a failure or delay in either the Administrator or the Affiliate performing its obligations under the Agreement, those obligations will be suspended for the duration of the Force Majeure Event. If either party becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement, that party will promptly notify the other. The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.
The Affiliate may terminate the Agreement immediately at any time by giving written notice to the Administrator. The Administrator may terminate the Agreement at any time by giving thirty days written notice to the Affiliate. The Administrator may terminate the Agreement immediately with cause, by giving written notice to the Affiliate. Upon termination of the Agreement, any and all licenses the Affiliate has with respect to the Program will automatically terminate and the Affiliate will immediately stop using the Links and Lottery’s intellectual property and promptly remove from the Properties and delete or otherwise destroy all Links, Lottery’s intellectual property, and any other materials provided or made available under the Agreement or in connection with the Program. Any accrued unpaid Payments may be withheld for a reasonable period of time following termination to ensure that the correct amount is paid. Unless otherwise stated, upon termination of the Agreement, all rights and obligations of the parties will be extinguished. No termination of the Agreement will relieve either the Administrator or the Affiliate for any liability for any breach of, or liability accruing under, these terms and conditions prior to termination.
The Program is contingent upon appropriation of funds by the Michigan Legislature. If funds are not appropriated, these terms and conditions are void and all parties are relieved of any obligations herein. Affiliate will not be entitled to future Payments nor damages of any kind.
The Affiliate acknowledges and agrees that the Lottery may terminate the Program in its entirety at any time at the sole discretion of the Lottery Commissioner.
Unless otherwise specified in these terms and conditions, any notice given or required under the Agreement must be sent via email and will be deemed to have been received at the time of the email transmission (providing the sending party retains written evidence of the transmissions). Notice to the Affiliate is to be sent for the attention of the relevant person to the email address as specified on the Application Form. Notice to the Administrator is to be sent for the attention of the Affiliate Manager to firstname.lastname@example.org.
Failure to enforce any provision of these terms and conditions shall not be construed as a waiver of that provision.
NONDISCRIMINATION AND UNFAIR LABOR PRACTICES
Affiliate warrants that it will not discriminate against any employee or applicant for employment in accordance with the Elliot-Larsen Civil Rights Act, MCL37.2101 et seq., and the Persons with Disabilities Civil Rights Act, MCL 37.1101 et seq. Further, Affiliate understands that the State of Michigan may void any contract with an entity that appears on the Unfair Labor Practice register pursuant to MCL 432.324.
RELATIONSHIP OF PARTIES
Nothing in the Agreement will constitute a partnership, agency relationship, retailer relationship, or contract of employment between the Administrator and the Affiliate, or the Lottery and the Affiliate. The Affiliate will not make any statement on the Properties or otherwise which expressly or impliedly suggests that there is any such relationship between itself and the Administrator or the Lottery.
UPDATES TO TERMS AND CONDITIONS
These terms and conditions may be modified at any time and without notice. All changes are effective upon posting to the Program Website. An Affiliate’s continued participation in the Program after changes are posted constitutes the Affiliate’s acceptance of those changes. For the convenience of all Affiliates, the effective date of these terms and conditions is posted at the top of the document. It is the responsibility of each Affiliate to review these terms and conditions periodically for changes.
The Application Form, these terms and conditions (as amended from time to time), emails from the Administrator to the Affiliate regarding status as an Affiliate or eligibility for Payment that are intended to specifically amend the Agreement, and the Acceptance Email constitute the entire understanding between the Administrator and the Affiliate in relation to participation in the Program, and supersedes all previous agreements, arrangements, and understandings between the parties relating to the Program. The Affiliate acknowledges that no representations or promises not expressly contained in the Agreement have been made by or on behalf of the Lottery.
All of the parties' liabilities and obligations in respect of the subject matter of the Agreement are expressly set out in the Agreement. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of the Agreement will be implied into the Agreement.
Affiliate acknowledges and agrees that this Agreement may be assigned by the Administrator to the Lottery or to a successor administrator without notice to, or the consent of, the Affiliate. Affiliate may not assign its rights and obligations under the Agreement without the prior written consent of the Administrator or its successor in assignment. Any attempted assignment by Affiliate absent written consent will immediately render the Agreement void and relieve the Administrator and Lottery from any future Payments. The rights of the Affiliate to terminate, rescind, or agree to any amendment, waiver, variation, or settlement under or relating to the Agreement are not subject to the consent of any third-party.
If any provision of these terms and conditions is determined to be unlawful or unenforceable by a court of competent jurisdiction, then such provision shall either be modified to lawfully effect the purpose of these terms and conditions, or struck if modification is not possible. In the event a provision is struck, all remaining provisions will remain in full force and effect.
The Agreement will be governed by and construed in accordance with the laws of the State of Michigan, excluding choice-of-law principles, and will be treated as if entered into entirely within Ingham County. Any litigation regarding the Agreement must be brought in Ingham County, Michigan, or in accordance with the Court of Claims Act, MCL 600.6401 et seq. In the event of any litigation, each party agrees to be responsible for its own expenses, including, but not limited to, attorney fees, except as otherwise specified in these terms and conditions.