ACTIVELY INVESTING AFFILIATE PROGRAM TERMS AND CONDITIONS
BY SIGNING THIS AGREEMENT, YOU AGREE TO THESE TERMS AND CONDITIONS, OR BY CONTINUING TO PARTICIPATE IN THE PARTNER PROGRAM YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, AS MAY BE AMENDED FROM TIME TO TIME BY THE COMPANY, AND THAT THESE TERMS AND CONDITIONS FORM A LEGAL, BINDING AND ENFORCEABLE AGREEMENT BETWEEN YOU, THE PARTNER, AND THE COMPANY (AS DEFINED HEREUNDER). IN ADDITION, IF THIS AGREEMENT IS BEING AGREED TO BY A COMPANY OR OTHER LEGAL ENTITY, THEN THE PERSON AGREEING TO THIS AGREEMENT ON BEHALF OF THAT COMPANY OR LEGAL ENTITY HEREBY REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THIS OPERATING AGREEMENT.
THIS AGREEMENT SHALL APPLY ONLY IN JURISDICTIONS WHERE THE PARTNER PROGRAM OPERATION IS NOT RESTRICTED, SUBJECT TO THE COMPANY’S SOLE AND ABSOLUTE DISCRETION.
For the purpose of this Agreement, the following capitalized terms shall have the meaning ascribed to them hereunder:
- "Partner" means an Affiliate or an Introducer.
- "Affiliate" means a company or natural person that enrolled with the Actively Investing Program by filling in the Enrollment Form as an Affiliate.
- "Introducer" means a company or natural person that enrolled with the Actively Investing Program by filling in the Enrollment Form as an Introducer.
- "Partner’s Website" means any website and/or blog url and/or domain and/or social media page which is either owned and operated by the Partner or any of the Partner partners and/or affiliates and/or otherwise, that introduces the Company’s services to potential clients and that links to the Company’s Website.
- "Agreement" means this agreement, including all annexes and exhibits, together with the application form, all as shall be amended from time to time by the Company.
- "Company" means Formula Investment House Ltd, a Company registered under the laws of the British Virgin Islands.
- "Company’s Website" means the www.activelyinvesting.com website, including any subdomain or any combination of the name "Actively Investing" with any ccTLD owned and operated by the Company.
- “Company’s Tracker” means a unique Tracking ID, which is related to a unique hyperlink to the Company’s or a Promoted Company’s site, provided to the Partner in order to refer potential Persons to such sites, and which enables the Company to identify the Partner that has referred a specific Qualified Lead or Qualified Client for the purpose of calculating the Partner’s Fees.
- “Enrollment Form” the application form on the Company’s Website, including the terms of this Agreement.
- “Payment Plan” means a payment method chosen by the Partner according to which the Partner shall be entitled for a Commissions per each Qualified Lead or Qualified Client.
- “Person”: A human user, who is 18+ and a resident of the Territories specified to the Partner by the Company and who is not: (a) a relative of the Partner or any individual, corporation, partnership, joint venture, trust, and any other body corporate or unincorporated organization, directly or indirectly controlling, controlled by or under common control with Partner, and (b) already a client of the company or of any other Promoted Company, or whose details were already given to the company or to any other Promoted Company. It is hereby clarified, without derogating any other right of the Company, that the Company may determine, in its sole discretion, that several Persons maintained under the same household/control/ownership shall be considered as a single account and shall not entitle the Partner to Fees payable with respect to separate Persons.
- “Promoted Company” means any subsidiary, business partner and affiliated company (whether by mutual control or any other kind of affiliation) which gave its consent to be represented by the Company as a Promoted Company for the purpose of this Agreement, including the Company itself.
- "Program" means the Actively Investing Program.
- “Promoted Company’s Website" a website owned or managed by a Promoted Company. The list of Promoted Companies’ Websites (including their subdomains and ccTLDs), as amended by the Company from time to time, shall be delivered to the Partner by the Company.
- “Qualified Lead” means a Person who was directed by the Partner to the Company’s or to a Promoted Company’s website and registered itself via such website, provided that: (a) such person submitted its true, genuine and accurate name, email address and phone number together with its unambiguous consent to be approached by or on behalf of the applicable Promoted Company with commercial propositions via telephone, SMS, email or any other electronic form of communication; and (b) such person did not renounce providing its mentioned details and consent. For the purpose of this Agreement, a Person who did not answer 3 or more telephone calls from a Promoted Company shall not be consider as a Qualified Lead; and (c) was identified as referred from the Partner by the Company’s Tracker.
- “Qualified Client” means a Qualified Lead which has registered to a promoted Company’s trading platform, concluded the entire registration process and was approved by the Promoted Company as such, provided that: (a) the client has made a minimum real money deposit in accordance with the minimum deposit requirement of each Promoted Company; and (b) the client has real intention to utilize the services of the Promoted Company and thus has opened and closed at least five (5) trading positions of at least USD 10,000 in volume (or equivalent in other currency) each, and (c) actions (a) and (b) were approved as concluded by the applicable Promoted Company.
- "Qualified User" means a Qualified Lead or a Qualified Client, as set out in the Partner’s Payment Plan.
- DESCRIPTION AND TERM OF THE PROGRAM
- The purpose of the Program is to allow the Partner to promote the Promoted Companies, their services and Websites, on the Partner’s Website or through email marketing or other on-line marketing activities or in any other way previously approved by the Company in writing in order to provide the Promoted Companies with Qualified Users.
- In order to participate in the Program an applicant must submit the Enrollment Form, which may be rejected by the Company at its sole discretion. The Company as well as the Promoted Company shall evaluate each Enrolment Form and all the information obtained as per paragraphs 3.17 and 3.20 of the present, and might require additional information and/or evidence from the Partner. After assessing all the information gathered, the Company shall inform each applicant whether its participation to the Program is approved, pursuant to which the applicant will become an Affiliate or an Introducer, subject to the Company’s sole discretion.
- PARTNER RESPONSIBILITY
- Partner undertakes not to promote Promoted Companies or place any links to any Websites which: (i) promotes or contains sexually explicit materials; (ii) promotes violence or includes violent materials; (iii) contains any libelous or defamatory content; (iv) promotes racism or discrimination based on race, religion, nationality, gender, sexual orientation or age; (v) distributes or promotes any spyware, adware, trojans, viruses, worms, spybots, keyloggers or any other form of malware; (vi) is directed toward minors; (vii) promotes or facilitates any illegal activity, or otherwise objectionable content, include material that is in breach of and/or infringes any intellectual property rights of any third party (including any material copied from third parties without their permission) and/or including any false, misleading or disparaging representations or statements with respect to the Promoted Companies, their websites and any of their services; (viii) promotes money making content and/or financial advice; (ix) promotes content that is not fair and/or not clear and/or misleading; (x) marketing and/or advertisement in Japanese language - including of the iFOREX brand - shall not be performed and/or promoted using any .jp domains whatsoever. The Company reserves the right to reject or refuse to enter into this Agreement or immediately terminate this Agreement with any Partner that fails to uphold any of these obligations.
- The Partner will not offer its end users and/or visitors any incentive to click on ads and/or links that direct to the Promoted Companies Websites, including, without limitation, offering cash or cash equivalent rewards for clicking such ads and/or links.
- The Partner shall comply with all applicable laws, rules, regulations and directives relating to any of its activities under this Agreement, including without limitation those relating to trading and investments laws, data protection, privacy, false advertising and e-mail marketing ("spamming"). Without limiting the generality of the foregoing, the Partner shall: (a) not send any e-mails regarding the Company, the Promoted Companies and/or their Websites and Services: (i) to any individual or entity that has not requested such information (Opted-in); (ii) to any type of "Safe List" or through any type of "Safe List" service; and (b) always include "unsubscribe" information or button at the top and/or bottom of any such e-mail and/or any other messages or materials circulated under this Agreement by Partner and promptly delete any user who has requested to unsubscribe from the Partner's mailing list. Without derogating from the above, the Partner is aware that the Promoted Companies may operate under local licenses and specific regulations and restrictions which concern, inter alia, with advertising and promotions, including without limitations, the Markets in Financial Instruments Directive (MiFID) and the laws and regulations promulgated under it and shall comply with such licenses, regulations and restrictions when performing its activities with respect to such companies under this Agreement.
- The Partner will not present or use any content at the Partner’s Website or at the Partner’s promotional materials, including, without limitation, graphical images, logos, texts, press releases or marks, that (i) could be interpreted to suggest that such content has been authored, endorsed or otherwise provided by, or represents the views or opinions of the Company and\or the Promoted Companies; (ii) is false, misleading, unfair or unclear; (iii) is defamatory, libelous, obscene, or otherwise objectionable; (iv) infringes, derogates, dilutes, or impairs the rights of the Company, any of the Promoted Companies or any third party.
- The Partner shall not use aggressive marketing tactics. Furthermore, The Partner will not engage in deceptive software download or computer settings practices to promote the Affiliated Companies. The prohibited deceptive practices include, but are not limited to, installing software without user knowledge, changing a user's home page without securing user permission and offering downloadable software that does not install or operate as intended.
- The Company may provide the Partner, from time-to-time, with advertising materials, including internet banners, button or text links, pop-ups and/or any other content as determined by the Company ("Creatives") which the Partner may place on the Partner’s Website or in any other way previously agreed subject to applicable laws and to the restrictions (including without limitations territorial restrictions) provided by the Company with respect to each Creative. The Partner shall not make any alterations to the Creatives and shall not remove any trademark and/or copyrights notices and/or risk warnings and/or disclaimer included in the Creatives. The Partner shall not use any creatives that were not provided to the Partner and/or approved by the Company in writing for use on the Partner Website or in any other way previously approved. The Company may order the Partner at any time to discontinue the use of any Creative previously approved by the Company, and the Partner shall comply with such order immediately.
- The Partner shall not publish any material which refers to the Company or to any of the Promoted Companies, the Creatives or any other name or mark owned by the Company or any of the Promoted Companies unless such publication is in compliance with the Company’s guidelines, territorial restrictions and applicable laws and regulations. Upon request by the Company, the Partner shall immediately remove any publication referring to the Company’s or any Promoted Company, including without limitations any Creative and other name or mark owned by the Company or by any of the Promoted Companies.
- The Partner shall not copy any content from the Company’s and\or from any of the Promoted Companies Websites and/or publications and shall not post in any website and/or elsewhere, any material published in the Company’s and\or in any of the Promoted Companies Websites.
- Under no circumstances shall the Partner use and/or bid in Search Engine Marketing (“SEM”) / contextual marketing campaigns based on the Company’s or on any of the Promoted Companies intellectual property, trademarks and brands, including but not limited to the names “Actively Investing”, “iFOREX”, “iFOREX EUROPE”, “FXnet” and any other name provided by the Company to the Partner spelled in any possible way (including with typos, spaces, signs, symbols or in any other way). Such forbidden use of such trademarks and brands includes the use of such words/trademarks in the Partner’s advertisements or in any part therewith, in the displayed URL and/or in the destination URL.
- Partner shall use Partner Websites for all “Pay Per Click” and/or SEM campaigns. The Partner’s advertisements and/or any part therewith shall not lead or redirect potential clients directly to the Promoted Companies Websites. The Partner is allowed to use the landing pages provided by the Company on the Partner Websites ONLY, but in no way shall the Partner use any URL containing the abovementioned words.
- The Partner is solely responsible for testing links to ensure they are working properly. The Company and any of the Promoted Companies shall have no liability for inoperable or incorrectly placed links.
- The Partner shall be solely responsible to any matter related to the Partner Website, including with respect to the technical operation thereof and to the accuracy of the information and materials posted therein. The Partner undertakes that the Partner Website shall not look like and/or create the impression that they are the Promoted Companies Website and that such Partner Website shall not, unless specifically permitted hereunder, contain and/or display any information and/or materials of the Promoted Companies and/or the Creatives. The Partner further undertakes not to use any domain names similar to the domain names used by the Promoted Companies.
- The Company and the Promoted Companies does not assume any responsibility towards the Partner and/or any third party acting on such information contained in the Partner Website or in the Partner’s promotional materials and/or the Company’s Website as to the accuracy or delay of information such as quotations.
- The Partner shall bear all costs and expenses incurred in connection with its promotion activity on the Partner Website as well as all other related operational costs and taxes arising from the course of his business.
- The Partner hereby releases the Company and the Promoted Companies from any and all responsibilities for the accuracy or reliability or correctness of the information (including feeds, whether provided or presented to end users through the Company’s and\or Promoted Companies Websites. The Partner further acknowledges that it is aware that the information presented to end users through these Websites shall not infer a recommendation to enter into or refrain from entering into specific trading.
- The Partner is solely responsible for any fraudulent behavior by Partner or any Qualified User. Without derogating from the Promoted Companies rights under the agreements between the Promoted Companies and the qualified Users, The Company reserves the right to take action against the Partner and/or any of its Qualified Users that show patterns of manipulating the Commission scheme. If the Company determines at its sole discretion that such conduct is being practiced, it may withhold any Commission payments accrued to the benefit of the relevant Partner and terminate this Agreement with immediate effect.
- The Partner shall provide true and complete information and/or supporting documentation to the Company at all times and/or as may be requested by the Company from time to time. The Partner acknowledges that it is aware that prior receiving any Partner Fee, the Partner must provide the Company with all information as may be requested by the Company, including any information required pursuant to the applicable Laws and Regulations of the Promoted Companies. Such information and/or supporting documentation shall typically include, but is not limited to, the following: For an Individual: (1) copy of a colored valid photo identification card (national identity card or passport); (2) copy of recent Utility Bill (dated within the last 6 months) For a Company: (1) registration name; (2) trading name; (3) country of registration; (4) registration number; (5) registered office address in the country of registration; (6) names of directors/shareholders; (7) report from the Registrar of Companies of the country of incorporation evidencing the information requested as per points (1) – (6) ; (8) a certificate of good standing; (9) copy of a colored valid photo identification card (national identity card or passport) and recent Utility Bill (dated within the last 6 months) of the director(s)/beneficial owner(s). The Partner warrants and represents that at all times all the information and/or supporting documentation provided to the Company shall be true, accurate, up to date and complete and that the Partner shall update the Company in writing upon any change of the information provided.
- Upon receipt of any communication issued by or on behalf of any Government Agency or Regulator to the Partner, concerning any investigation or disciplinary proceeding related to the Partner, any client of the Company or the Company or any Company’s affiliated company (“Regulatory Request”), the Partner must provide the Company with a copy of the communication.
- In Case of a Regulatory Request, the Partner must assist the Company by providing, immediately following receipt of a request in writing from the Company in that regard, a true copy of any and all correspondence, file notes, memoranda or any other communication, notation or other written, electronic or recorded instrument in relation to the subject matter of the Regulatory Request which is in the possession of the Partner.
- At all times and prior posting and/or promoting to any of the Partner Websites any content related to the Promoted Companies, the Partner shall be obligated to inform the Company, either at the time of the application via the Enrolment Form or any time thereafter as applicable through the email email@example.com, of all relevant details including the website addresses and/or domains and/or blog urls. It is provided that the Partner will be prohibited to present content related to the Promoted Companies to any of the Partner Websites, without the prior approval of the Company. Where the Partner promotes the Promoted Companies through email marketing, then the email
shall be included in the Partner’s database, therefore any promotions sent by the Partner will be received as well by the Promoted Companies.
- For avoidance of doubt, it is hereby clarified that a Partner is strictly prohibited, and it is not allowed, to trade on a Qualified Client’s account, or on behalf of a Qualified Client, with a Promoted Company, unless the Qualified Client provided the Promoted Company, in advance, an appointment letter authorizing the Partner to perform trading activities in the Qualified Client’s account, or on the Qualified Client’s behalf.
- In consideration for the referral of Qualified Users by the Partner to the Promoted Companies, during the term of this Agreement, and subject to the Initial Eligibility Criteria (defined herunder) the Partner shall be entitled to a commission for each Qualified User identified by the Company’s Tracker and approved by the Company, as detailed in the Partners Payment Plan and subject to its conditions, or as otherwise agreed in writing between the parties ("Commission"). It is hereby clarified that no consideration shall be paid with respect to users referred by the Partner which were not approved as Qualified Users by the Company or to Partners who were involved directly or indirectly, including by their Qualified Users in Fraud.
- Within 15 days from the end of each calendar month the Company shall issue to the Partner a report detailing the number of Qualified Users referred by the Partner during the relevant month and approved by the Company as Qualified Users, the amount of the first deposit made by such Qualified Users, the trading volume reached and the amount of the Commission due to the Partner based on the report. The Company may not provide all of the mentioned details if such details are not relevant to the Partner. The report issued by the Company shall serve as conclusive evidence for the Partner entitlement to the Commission and the Partner accepts that in the event of a dispute the data available on the Company’s systems shall be final and undisputable.
- The Partner shall issue an invoice for the Commission to the Company after receipt of the report issued pursuant to Section 4.2 and the Company shall pay such invoice within 15 days from receipt thereof.
- Should the Commission for any calendar month be less than US$300, then the Commission shall be carried over to the next calendar month until the total payment equals or exceeds US$300 and such payment will be made by the Company, subject to receipt of an invoice.
- The Commission to which Partner shall be entitled pursuant to this Agreement represents the full and final consideration to which it will be entitled pursuant to this Agreement. It is hereby clarified that the consideration under this agreement is based on and limited to the agreed Commission and the Partner shall not be entitled for any compensation for its marketing and promotion services and efforts performed under this Agreement. The Partner shall further not be entitled for any compensation from any of the Promoted Companies.
- The Company retains the right to review all Commissions for possible Fraud, whether such Fraud is on the part of the Qualified User or on part of Partner, such review period not to exceed 180 days. The Company shall have the right to withhold and cancel any Commission accrued in Partner’s favor and such commissions shall not be paid until such time as the review has been positively concluded. Any incidents of Fraud on part of Partner (including of the Qualified User referred by the Partner), constitutes a material breach of this Agreement, and the Company retains full authority to terminate this Agreement immediately in the event of such breach and to withhold and cancel Partner’s right for Commission which derives from such act of Fraud and\or any other commission. The Company retains the right to set-off from future commissions payable to Partner any amounts already received by Partner which can be shown to have been generated by Fraud. The Company shall determine if the Partner and\or the Qualified User were involved in Fraud according to the Company’s Fraud committee sole discretion. For the purpose of this Agreement the term "Fraud" shall include, but shall not be limited to, (i) the encouragement by Partner or a third party of bonus abuse on the part of a Qualified User, (ii) the opening of an account in breach of the terms of this Agreement or in a breach of the relevant Promoted Company client Agreement and polices, (iii) the offering or providing by Partner or any third party of any unauthorized incentives (financial or otherwise) to potential or existing Qualified Users and\or clients of the Promoted Companies; (iv) any act in contradiction of section 3.21 above; and (v) any other act by Partner, a third party or by a Qualified User which is reasonably understood to have been committed in bad faith against the Company and\or against any of the Promoted Companies regardless of whether or not such action has resulted in any type of harm or damage to the Company and\or to any of the Promoted Companies.
- Subject to an agreed Payment Plan in writing, the Partner may be entitled to the Following Commissions:
- Under a CPA model - in respect of each Qualified User, a Partner may be entitled for a one time Commission only, up to a limit as shall be decided solely by the Company from time to time.
Under a Volume Share model:
- Unless otherwise decided by the Company, in its sole discretion from time to time, a Partner may be entitled to a monthly volume commission in respect of each Qualified Client's trading volume activity, which in any event shall not exceed the total of USD $1,500 per each Qualified client’s lifetime trading volume activity ("Volume Commission”). However, a Partner‘s eligibility to a Volume Commission per a Qualified Client's trading volume activity may be subject to the sum of the accumulative net deposits of Partner's Qualified Clients, as of the date of the relevant Volume Commission payment, calculated on a monthly basis and, subject to Company's sole discretion, will not exceed at any given time twenty percent (20%) of Qualified Clients’ cumulative net deposits.
- For avoidance of doubt, the Volume Commission shall not apply with respect to accounts of corporates/legal entities.
- Initial Eligibility Criteria: Partner will be eligible to start receiving a Commission (as abovementioned) conditioned that Partner introduced at least 3 Qualified Users or Qualified Clients (as the case may be) during the first 3 months following the conclusion of this Agreement and of the Partner's Payment Plan. However, in the event that the Partner introduced less than six (6) Qualified Clients within a period of six (6) consecutive months, the Company has the right to consider all or part of the Commission(s) due as void and consequently not to pay such Commission(s).
- Notwithstanding the foregoing, Partner and Company may agree in writing on a different commission structure and/or on different commission eligibility criteria.
- TERM AND TERMINATION
- This Agreement shall be in effect for undefined period of time commencing on the date in which the Partner executed the Enrollment Form (the “Term“).
- Either party shall have the right to terminate this Agreement upon seven (7) days prior written notice to such effect. However, under the terms of section 4.7.3 above (or as otherwise agreed in accordance with the terms of section 4.7.4 regarding commission eligibility criteria), and subject to Company’s sole discretion, the Company have the right to forthwith terminate the Agreement.
- The Company shall have the right and sole discretion to terminate this Agreement immediately in the event that the Partner breached any of its representations and/or obligations hereunder.
- Upon termination of this Agreement for whatever reason: (a) each party shall forthwith return to the other party all property of the other party in its possession or control (including all documentation, Creatives, promotional materials and all Confidential Information), including any copies and derivations thereof; (b) the Partner shall destroy all of the foregoing and certify in writing to the Company that they have been destroyed; (c) the Partner shall immediately cease to market and/or promote the Promoted Companies in any manner, use of any of the Licensed Materials, the Creatives and shall remove any links provided by the Company; and (d) all rights granted to the Partner hereunder will immediately cease.
- In the event of termination of this Agreement, except in relation to any breach or Fraud of the Partner, and subject that the Partner has met the conditions for receiving a Commission, the Partner shall be entitled to receive the Commission for a period of 2 months after termination.
- Sections 5.4, 5.5, 6, 7, 9, 11.2 and 11.3 shall survive the termination of this Agreement for any reason whatsoever.
- INTELLECTUAL PROPERTY
- The Company owns or otherwise is owns required licenses to all right, title and interest in its names, logos, trademarks, marks, and copyrights, including, without limitation, used in any of the Creatives and shall retain such rights and licenses during the term of this Agreement.
- The Partner may not copy, distribute, modify, or create derivative works from the same. Any good will resulting from Partner 's use of Promoted Companies names, logos, and/or trademarks will inure solely to the benefit of the Promoted Companies and will not create any right, title or interest for the Partner.
- The Company hereby grants Partner a non-transferable, non-exclusive, non-sub licensable, revocable license to place the Creatives on Partner’s Website during the Term, and, solely in connection with the Creatives, to use Promoted Companies logos, trade names, trademarks, service marks and similar identifying material as contained in the Creatives (the "Licensed Materials"), solely for the purpose of promoting the Promoted Companies Websites and services under the restrictions (including without limitations territorial restrictions) provided by the Company with respect to each Licensed Material or each Promoted Company. Partner is not permitted to alter, modify or change the Licensed Materials in any way whatsoever or to use any Licensed Materials for any purpose whatsoever other than promoting the Promoted Companies’ Websites and its services. Nothing in this Agreement shall constitute any transfer or waive of any of the rights and licenses of the Company in the Licensed Materials. Partner may not use the Licensed Materials in any manner that is disparaging or that otherwise portrays the Company, the Promoted Companies or anyone else negatively. The Company reserves all of its intellectual property rights in the Licensed Materials and may revoke the license to use the Licensed Materials at any time by written notice to Partner, whereupon Partner shall immediately destroy or deliver up to the Company all such materials that are in its possession. The aforementioned license shall terminate upon the termination of this Agreement.
- CONFIDENTIALITY and DATA PRIVACY
- The Partner agrees that all information provided to the Partner in the course of the parties dealing, or which came to the attention of the Partner, including, without limitation, the Company’s and the Promoted Companies’ business and financial information, their clients lists, and their marketing strategies, shall remain strictly confidential and shall not be utilized, directly or indirectly, by the Partner for its own business purposes or for any other purpose (including, without limitation for the promotion of other companies or services) and shall not be disclosed by the Partner to any third party, except to the Partner's employees who have a need to know for the purpose of effectuating this Agreement (“Confidential Information”). The foregoing shall not apply to information which is or become generally available to the public through no fault of the Partner, or which was known to the Partner prior to its disclosure by the Company, as evidenced by the Partner's written records.
- The Company shall own and retain all right, title and interest in all names, addresses and other personally identifying information of Qualified Users, and Partner shall have no right to be provided with any such data. Partner shall not keep any details regarding the identity of the Qualified Users or of any person or entity which provided its details to the Company by the link in the Partner’s Website.
- Notwithstanding the foregoing, if personal information of Company’s and/or Promoted Company’s end users, including Qualified Users, (together “Company’s Data Subjects”) will be shared with Partner, Partner will comply with all applicable anti-spam and data privacy legislation and, will use commercially reasonable security measures and controls to secure and protect such information, at least the ones included in Annex 2 of this Agreement, which are hereby incorporated into this Agreement by this reference. Any non-compliance with the requirements herein shall be deemed a material breach of the Agreement and Company shall have the right, in its sole discretion, to terminate the Agreement immediately.
- REPRESENTATIONS AND WARRANTIES
- Each party represents and warrants that there is no legal or other impediment to its entering into this Agreement, and that its entering into this Agreement will not give rise to an infringement of any right whatsoever of any third party.
- The Partner represents and warrants that: (i) it has the professional expertise and experience, and the financial resources, required to reliably and consistently conduct the activities and abide by its obligations under this Agreement; (ii) there is no legal or other impediment to its entering into this Agreement, and that its entering into this Agreement will not give rise to an infringement of any right whatsoever of any third party; (iii) no registration with or approval of any government authority, agency or commission is necessary for the execution, delivery or performance by the Partner of any of the terms of this Agreement, or for the validity and enforceability hereof or with respect to the obligations of the Partner hereunder, except such registrations and approvals that have been made or obtained; (iv) there is no action or proceedings pending against the Partner or any of its shareholders and\or officers or directors in their capacities as officers and directors of the Partner before any court, administrative agency or other tribunal which might have a material adverse effect on its or the Company’s or on the Promoted Companies business or condition, financial or otherwise, or its operation, including without limitations any proceedings related to fraud and\or money laundering and terrorism financing; (v) no director, shareholder, officer, key employee or member of the Partner’s senior management have a criminal record or criminal prosecution and/or investigation pending; (vi) it is, and it shall remain during the term of this Agreement, in full compliance with the laws and regulations applicable within each territory in which it shall promote the Promoted Companies, their services and Websites; (vi) it shall not act as a representative or Tied Agent of the Company or any of Promoted Companies, and shall not provide its end users and\or Qualified User with any Investment Advice; and (vii) It shall fully cooperate with the Company and\or any of the Promoted Companies’ Compliance Officers and Internal Auditors and provide them with any document required by the Compliance Officer or Internal Auditors. The Partner agrees to cease its promotion activities in any territory requested by the Company upon the occurrence of any illegality or suspicion of illegality.
- Except for the above representations, neither party makes any representations or warranties to the other party, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose.
The Partner agrees to indemnify, defend and hold the Company and the Promoted Companies, their shareholders, affiliates and each of their directors, officers, employees and agents, harmless from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) brought by a third party, including by any governmental or administrative agency, to the extent that the same are based upon or arises out of: (a) a breach, or alleged breach, of any of the Partner's representations or obligations herein and (b) any warranty, condition, representation, indemnity or guarantee relating to the Company and\or the Promoted companies granted by the Partner to any third party; and (c) any Partner’s advertising, marketing and promotional activities and efforts. In the event of any breach or threatened breach of any provision of Sections 3 and/or 7 hereunder, then in addition to all other rights and remedies available to the Company under this Agreement and under applicable law, the Company shall have the right to: (i) immediately enjoin all such activity, without the necessity of showing damages or posting bond or other security, (ii) receive a prompt refund of all amounts previously paid to the Partner hereunder, and (iii) be indemnified for any losses, damages or liability incurred by the Company or any of the Promoted Companies in connection with such violation. The Partner shall promptly inform the Company of any information known to the Partner related to any circumstances and events that may reasonably lead to a claim, demand or liability of or against the Company or any of the Promoted Companies by any third party.
The Company may modify any of the terms and conditions contained in this Agreement, at any time and in its sole discretion, by posting a change notice or a new agreement on the Company’s Website or by giving Partner a written notice of the modification, which may be given by email to the email address provided by the Partner to the Company. The change notice or new agreement shall enter into force within 7 days of posting such change notice or new agreement on the Company’s Website. IF ANY MODIFICATION IS UNACCEPTABLE TO PARTNER, THE PARTNER'S ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. PARTNER'S CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE ENTRY INTO FORCE OF A CHANGE NOTICE OR A NEW AGREEMENT ON THE COMPANY’S WEBSITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
- LIMITATION OF LIABILITY
- The Company will not be liable for any indirect, special or consequential damages, or any loss of revenue, profits or data arising in connection with this Agreement or Partner’s participation in the Partners scheme, even if the Company have been advised of the possibility of such damages. Further, the Companies aggregate liability arising with respect to this Agreement will not exceed the total Commission paid to Partner under this Agreement during the six (6) months preceding the event that gave rise to the action or claim.
- No action, whether based in contract, strict liability or tort, including any action based on negligence, arising of the performance of this Agreement, may be brought by the Partner against the Company more than twelve (12) months after such cause of action accrued.
- It is hereby clarified that this agreement is solely between the Company and the Partner and does not create any relationship including partnership, joint venture, employment or principal-agent between the Partner and any of the Promoted Companies which are not a party to this agreement and are hereby exempted of any responsibility towards the Partner.
- GENERAL PROVISIONS
- This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous negotiations, representations, previous agreements and understandings, whether written or oral.
- Except as expressly set forth above and to the maximum extent permitted by applicable law, the Company makes no warranty of any kind, express, implied or statutory, regarding the Company, the Promoted Companies, their services and Websites, and all such warranties, including, without limitation, the implied warranties of merchantability and/or fitness for a particular purpose are hereby expressly disclaimed by the Company. The Partner acknowledges that the Company has not represented or warranted that the operation of the Company’s and\or the Promoted Company’s Websites will be uninterrupted, error free, without delay or without compromise of the security systems and features therein and appurtenant thereto.
- Nothing in this Agreement shall create, or be construed as creating, a partnership, joint venture, employment or principal-agent relationship between the Parties or between the Parties and any of the Promoted Companies.
- No waiver of this Agreement may be implied from any course of dealings between the parties or from any failure of either party to enforce its rights hereunder.
- The Partner shall have no right to assign or otherwise transfer this Agreement, or any of its rights or obligations hereunder, to any third party without the Company’s prior written consent, to be given or withheld in the Company’s sole discretion.
- This Agreement shall be governed by the laws of the BVI and the applicable court in Road Town, Tortola shall have the exclusive jurisdiction with respect to any action arises from this Agreement.
- In any case of inconsistency and/or contradiction between the provisions of this Agreement and the provision of any annex to this Agreement, the provisions of the Agreement shall prevail.
1 accumulative net deposit means, the total accumulative deposits made by the entire Partner’s Qualified Clients less their total accumulative withdrawals during a calendar month.