MARKETING
PARTNER AGREEMENT
THIS AGREEMENT (“Agreement”) is made by and
between:
PARTIES
(1) [Broker Name ], being a company
incorporated and existing under the laws of the British
Virgin Islands, (“Company” or “[Broker
Namer]”), and regulated by the British Virgin Islands Financial Services Commission
(“BVIFSC”),
(2) A person, includes a natural person,
corporate or unincorporated body (whether or not having
separate legal personality) who has
successfully completed a process of application and registration as the
Company’s Marketing Partner via the web-site [Broker Website] (“Marketing
Partner”) each a “Party” and collectively the “Parties”.
BACKGROUND
(A) WHEREAS [Broker Company Namer] is the
parent of an international group) operating under the following companies via
each respective licence (“the licences”)
(B) WHEREAS [Broker Namer] has the sole and
exclusive license to use the domain www.[Broker Namer].com
Worldwide;
(C) WHEREAS [Broker Namer], under the terms
of its licenses, is in the business of providing investment and
ancillary services such as the reception
and transmission of orders and/or the execution of client orders
in relation to financial instruments to
retail and professional clients and /for dealing on own account
(“Investment Services”);
(D) WHEREAS [Broker Namer], under the terms
of its operating license issued for each member of the Ava
Group has to adhere at all times to the
relevant Applicable Laws and Regulations.
(E) WHEREAS, at the date of this Agreement,
[Broker Namer] engages in the online trading of, FX Options, Contracts
for Difference (“CFDs”) and Spread-betting in underlying financial instruments
such as foreign exchange, commodities, indices, shares and bonds, collectively known
as Financial instruments;
(F) WHEREAS [Broker Namer] wishes to engage
the Marketing Partner for the purpose of providing services related to
the business development, promotion and marketing of its Investment Services to
clients and potential clients of the [Broker Namer], as further described
herein;
(G) AND WHEREAS the Marketing Partner is
willing to refer Clients
to the [Broker Namer] in return for payment stated on
the Fee schedule as agreed with the Company and subject to the terms and
conditions of this Agreement, including with respect to the conduct of work by the
Marketing Partner in a manner that is compliant with the Applicable Laws and
Regulations of the [Broker Namer] and [Broker Namer]’s Marketing and Communication
Guidelines at all times.
This Agreement sets out the obligations of
the Marketing Partner in acting, on the basis and within the terms and
limits of this Agreement, for [Broker Namer]. These obligations include
indicatively: (a) that the Marketing Partner adheres to the Marketing and
Communication Guidelines of [Broker Namer] at all times; and (b) the
limits and restrictions set on the Marketing Partnering executing the
activities envisaged herein. Specifically, the Marketing Partner is
prohibited from offering investment advice (unless the Marketing Partner is
authorized and regulated to do so) as defined under the Applicable Laws and
Regulations of the [Broker Namer], to clients or from managing or operating any trading
account of, or for, any client or from receiving any funds from any client for
whatever purpose. The Marketing Partner is further prohibited from using
any language or practices that may be construed as offering any promise or
guarantee of any trading gain or profit to any client. The Marketing Partner is
notified that nothing in its communications or interactions with
any actual or prospective clients (whether oral, written, electronic or
otherwise and through whatever medium) in relation to [Broker Namer], should be
untrue, unfair, misleading, or aggressive.
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. INTERPRETATION
The following definitions and rules of
interpretation apply in this Agreement.
1.1 Definitions: Adverse Action: means
any circumstances:
(i) Where any Client (actual or
prospective) referred to the [Broker Namer] by the Marketing Partner submits a complaint
to the Company, any member of the [Broker Namer], or any regulatory body
issuing a license to any member of the [Broker Namer] or any complaints body in any
country where the [Broker Namer] holds a licence or any other competent
authority (including regulatory authorities in the domestic jurisdiction of the Client) or
commences any judicial or arbitral proceedings against the Company or any
member of the [broker
name] which are adversely determined by the relevant
court or arbitral tribunal against the Company/member of the [Broker Namer], and which
complaint or proceedings are in any way related to a breach by the
Marketing Partner of its obligations under this Agreement, the Marketing and Communication
Guidelines, or
(ii) Where any Client (actual or
prospective) makes any derogatory or defamatory statement against the Company,
any member of the [Broker Namer], which is in any way related to a breach of
the obligations to which the Marketing Partner is subject to in accordance with the
provisions of this Agreement, or
(iii) Where the Company has evidence or
otherwise reasonably determines that the Marketing Partner is in breach
of its obligations as set out in this Agreement; or
(iv) Where any Client commits a material
breach of its Terms and Conditions with any member of the
[broker], including but not limited:
(a) refusal or failure to provide or
update, or providing false, inaccurate, or misleading information or documents.
(b) engaging in any behaviour which could
be considered by the Company as abusive of the [Broker Namer]’s trading
systems, including but not limited engaging in any practices for the purpose of
deriving a benefit
from delays in the prices, trading at
off-market prices and/or outside trading hours, abusing the system. for trading
at manipulated prices; or
(c) any event of default under the Terms
and Conditions. Marketing Partner Application Form: means the form located at the
web-site [Broker Website] completed by the Marketing Partner before or at the time
of entry into this Agreement, the provisions of which are incorporated
herein and are an integral part hereof. Applicable Laws and
Regulations: means all laws, regulations, directives, circulars, regulatory administrative
decisions, rules of any regulated market or exchange to which any member of the
[broker]and the Marketing Partner are or may be subject to from time to
time, including without limitation:
Banned Jurisdictions: means, Belgium, Brazil, Democratic People's Republic of Korea
(DPRK), New Zealand, Turkey, USA, and any such other jurisdiction as the Company
may from time to time at its discretion designate as a “Banned Jurisdiction”
by a written notice to the Marketing Partner.
Client:
means a legal or natural person which is either a prospective client of the
[Broker Namer], and has been properly identified for Anti Money Laundering
purposes, and has otherwise completed a client on boarding process in
accordance with the Terms and Conditions of any member of the [Broker Namer].
Confidential Information: means, without limitation, all tangible and intangible information
and materials.being disclosed to the Marketing Partner in connection with this
Agreement, in any form or medium (and without regard to whether the information is
owned by the Company or any member of the [Broker Namer] or by a
third party), including but not limited to:
(i) the existence and terms of this
Agreement;
(ii) any information relating to:
(a) the business, affairs, Clients, trading
platforms, liquidity providers, data or feed providers and other vendors,
plans, intentions, or marketing plans and opportunities, financial position and
financial projections of the Company or of the [Broker Namer]; and
(b) the operations, processes, product
information, know-how, designs, trade secrets or software of the
Company or of the [Broker Namer];
(iii) any information or analysis derived
from Confidential Information.
but not including any information which:
(a) was available to the Marketing Partner
on a non-confidential basis prior to disclosure by the Company.
or
(b) the Parties agree in writing is not
confidential or may be disclosed; or
(c) was publicly known at the time of the
disclosure or becomes publicly known through no wrongful act or failure
of the Marketing Partner (or its employees, officers, representatives or
advisers). Intellectual Property Rights: means without limitation patents,
know-how, trademarks, rights to inventions, copyright and related rights, trade
marks, business names and domain names, lists and information on any
Clients, information on business or trading practices and remuneration, client incentive
and loyalty schemes, commission or other similar incentive schemes for
Marketing Partners and other business partners, rights in get-up, goodwill and the right to
sue for passing off, rights in designs, database rights, and
all other intellectual property rights, in each case whether registered or
unregistered and including all applications and rights to apply for and be
granted, renewals or extensions of, and rights to claim priority from
such rights and all similar or equivalent rights or forms of protection which
subsist or will subsist now or in the future in any part of the world.
Marketing and Communication Guidelines: means the guidelines under which the Marketing Partner is expected to
market the company to prospective clients and the guidelines under which the
Marketing Partner is expected to communicate with both prospective clients and
Clients as may be amended from time to time.
Qualified Trader: A human user who was directed by an Marketing Partner and
identified by a Tag ID
assigned to such Marketing Partner or
identified by entering a partner code assigned to such Marketing Partner;
provided that:
(i) such Marketing Partner is confirmed by
Company as included in the Program and is linked to the Site(s) in
accordance with this Agreement,
(ii) such user has been approved by the
Company and within 24 months of the date of such approval has made a
minimum real money deposit of at least USD/EUR/GBP/AUD 250, or such
other minimum amount as shall be specified by the Program from time to time,
(iii) with respect to CPA commission, the
user within 24 months of the date of approval has closed at least 1 trade, or
such other amount as shall be specified by the Program from time to time or
agreed between the company and the Marketing Partner, and
(iv) such user is not already registered to
the Site(s) under a different name or through a different identity. It is
hereby clarified that neither an Marketing Partner nor any of its Marketing
Partnered Parties are eligible to become Qualified Traders under such Marketing Partner's
Tag ID(s), and should an Marketing Partner or any of its Marketing Partnered
parties do register, Marketing Partner will not be eligible to receive the
applicable commission or any other compensation whatsoever. For the purposes
hereof, the term "Marketing Partnered Party" shall mean any of the
following: (i) any member of Marketing Partner's immediate family; (ii)
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 Marketing Partner.
Referral:
the referral of prospective Clients to the Company where such referral results
in a Client successfully registering for a trading account with any member of
the [Broker Namer]. Services: the services to be provided by the Marketing Partner, as
set out in Clause 3.1 below.
Website: means http://www.[Broker
Namer].com
2. ESTABLISHMENT OF RELATIONSHIP
2.1 Upon the earlier submission and
completion by the Marketing Partner of the Marketing Partner
Application Form or execution by the
Marketing Partner of this Agreement, the Company shall conduct an initial
review of the Marketing Partner. In the event the Company is willing to enter
into this Agreement with the Marketing Partner, the Company’s authorized representative
(the “Marketing Partner
Manager”) shall contact the Marketing Partner using the
contact details provided by the Marketing Partner in the
Marketing Partner Application Form or otherwise and notify the Marketing
Partner about provisional acceptance thereof as the Company’s Marketing Partner
and about commencement by the Company of the Marketing Partner due-diligence,
KYC and verification process (the “Verification Process”).
2.2 As soon as reasonably practicable after
giving notice to the Marketing Partner under Clause 2.1 above, the
Marketing Partner Manager shall contact the Marketing Partner and inform him of
the KYC, antimony laundering and other verification and compliance
documentation that the Marketing Partner will have to provide to the
Company in the course of the Verification Process, including the documents specified
in Clause 2.3 below.
2.3 The Marketing Partner shall, as soon as
reasonably possible upon receipt of the communication from the Company
under Clause 2.2 above, provide to the Company such documents as the Company
shall determine in its sole discretion for the purposes of completion of
the Verification Process and as may be required for the purposes of the [Broker Namer]
complying with the Applicable Laws and Regulations. Without prejudice
to the generality of the foregoing, the Marketing Partner shall provide to the
Company copies of the following documentation:
(i) If the Marketing Partner is a natural
person, the Marketing Partner’s proof of residence and proof of identity in
a form satisfactory to the Company.
(ii) If the Marketing Partner is a body
corporate, copies of all statutory documents of the Marketing Partner,
including but not limited to its memorandum and articles of association,
certificate of incorporation, proof of registered address, register of directors
and shareholders, certificate of good standing; and
(iii) Detailed description of the Marketing
Partner’s source(s) of traffic (Digital and offline) which the Marketing
Partner intends to use for the purposes of introducing potential Clients to the
[Broker Name], including web-address of the Marketing Partner’s website(s) and
details of any off-line media or other activities operated by the Marketing Partner
(“Traffic”). The Marketing Partner shall only obtain Traffic, including
a website, which have been communicated and approved by the Company during the Verification
Process. Where the Marketing Partner wishes to use additional and/or different
Traffic, these shall be communicated and approved by the Company prior to being
used by the Marketing Partner for the purpose of providing the Services.
2.4 The Marketing Partner shall ensure that
all and any documents requested from it under this Clause 2 are
provided to the Company in a form satisfactory to the Company before the date
of any commission payment becoming due to the Marketing Partner under this Agreement.
The Marketing Partner understands and agrees that the Company reserves the right to
withhold any commission and any other payments due to the Marketing Partner hereunder
until the Verification Process is completed to the Company’s satisfaction.
The Marketing Partner Manager shall notify the Marketing Partner of successful completion
of the Verification Process.
2.5 The Marketing Partner understands and
agrees that Company reserves the right to permanently. withhold any
commission from the Marketing Partner and update the Marketing Partner’s
account accordingly so that no commissions (including with respect to
periods preceding the date of occurrence of any of the items in
the following list) will be payable to Marketing Partner, and Marketing Partner
will not have any claims against the Company, if any of the following
occur:
1. The verification process has not been
completed to the Company’s satisfaction within twelve (12) months
following registration of the Marketing Partner in [Broker Website].
2. A valid payment method has not been
implemented within twelve (12) months following registration of the
Marketing Partner in [Broker Website].
3. The Marketing Partner is not responsive
for at least six (6) months, and the Company is not able to proceed
with the commission payment.
4. The Marketing Partner has the commission
set on hold by the Company for a period exceeding six (6) months.
5. The Marketing Partner account has been
permanently suspended due to abuse, violation of one or more provisions of
this Agreement or of the Communication Guidelines.
6. The Marketing Partner shall immediately notify
the Company in writing in the event of any changes to its circumstances (or
in the event where the Company notifies the Marketing Partner that it has
become aware of such changes) that cause any of the documents submitted to
the Company during the Marketing Partner Verification Process be outdated or
invalid, and shall henceforth provide to the Company accurate and
up-to-date documents reflecting any such changes.
3. REFERRALS
3.1 In consideration of the commissions
payable by the Company under Clause 7 below, the Marketing Partner
agrees to serve as a point of referral and facilitator for the purposes of
introducing prospective
Clients to the [Broker Namer] and to provide to the
Company with the following Services:
(i) Provide a link from its own website to
the Website.
(ii) Approach the prospective Clients
and/or otherwise advertise the Website or the trading platform
[Broker Namer].com through off-line Traffic
Sources.
(iii) Provide true, fair and accurate
information to prospective Clients in relation to the Investment Services offered by
the [Broker Namer] in respect of trading by Clients Financial Instruments that
the [Broker Namer] may engage in. Provide a true, fair and accurate description of the
[Broker Namer]’s business such as to enable a correct and balanced
understanding by the prospective Clients of the services offered by the [Broker
Namer]. The Marketing Partner shall ensure that each prospective Client who
approaches or is approached by the Marketing Partner is provided with information
concerning the risks involved in trading Financial Instruments, including
the risk of losing most of or all capital invested by a prospective Client.
Such information must be not less detailed than that contained in the
Risk Disclosure Statement
(iv) Comply with any business-related
instructions or directions given to the Marketing Partner by the Company in
carrying out the Services provided for herein.
(v) The Marketing Partner shall not
approach any potential Clients or distribute any advertising or marketing
materials whatsoever about the [Broker Namer] in any Banned Jurisdictions, or
outside the scope permitted by this Agreement.
(vi) The Marketing Partner shall not
support the Clients on any technical or other matters associated with the
Clients’ trading with the [Broker Namer] and shall direct the Clients to the
relevant member of [Broker Namer]’s customer support service in the event any such
matters arise. The Marketing Partner will not induce, encourage, push or
promote any prospective Client (either through offline or online ways or means
or in any other tactics) to enter into any portfolio management service to
any Client, whether directly or indirectly, or operate or direct operation of
any Client’s account, even if the Client seeks to provide the Marketing
Partner any authority or power of attorney to authorize such operation.
3.2 The Marketing Partner shall not allow
its interests to conflict with its duties under this Agreement and shall
comply with all reasonable and lawful instructions of the Company.
3.3 Where the Company, in its absolute discretion,
considers that the Marketing Partner does not satisfy the requirements
of the Company as set out in this Agreement or that the Marketing Partner is
otherwise
not fit to provide Services to the Company or [Broker
Namer], the Company, in its absolute discretion may terminate this
Agreement with immediate effect by giving to the Marketing Partner a written
notice,
without prejudice to any of the rights of the Company
under this Agreement.
3.4 The Marketing Partner shall have no
authority, and shall not hold itself out, or permit any person to hold
itself out, as being authorised to bind the Company or any member of the Group
in any way, and shall not do any act or otherwise
conduct itself in such manner which might reasonably create the impression
that the Marketing Partner is so authorised. The Marketing Partner shall not
make or enter
into any contracts or commitments or incur any
liability for or on behalf of the Company. Breach of the provisions of this
Clause 3.4 shall allow the Company to immediately terminate this Agreement by
giving
a written notice to the Marketing Partner.
3.5 The Marketing Partner shall use only
such marketing or advertising materials relating to the Company or
the Investment Services, as is provided to the Marketing Partner by the
Company. The Marketing Partner shall not produce any such
material, or use the Company's or [Broker Namer]’s name, logo or trademarks,
without the prior written consent and approval of the Company. In cases where
the logo of
the Company is used in accordance with the foregoing,
it must be clearly indicated that the website of the Marketing Partner
is a tool for the direction of prospective Clients for registration as Clients
of the [broker name].
3.6 The Company shall have the right to
reject, in its sole and absolute discretion, any of the Traffic Sourcesused by
the Marketing Partner. The Marketing Partnershall, immediately upon receipt
from the Company of a notification to that effect, cease using the Traffic Sources so
identified by the Company for the purposes of providing services under this
Agreement.
3.7 The Marketing Partner shall not give or
offer any investment, tax, legal or any other advice or opinion or
information (whether oral, written or electronic in any mode or medium) unless
the Marketing Partner is authorized and regulated to carry out these activities. Without
prejudice to the generality of the foregoing unless the Marketing Partner is
authorized and regulated to do so, the Marketing Partner shall not:
(i) in consideration of any prospective or
actual Client’s personal circumstances provide any opinion on trading or
the direction of the markets and/or of financial instruments;
(ii) in consideration of any prospective or
actual Client’s personal circumstances advise on any investment strategies;
(iii) in consideration of any prospective or actual Client’s personal
circumstances advise on opening of new positions in any financial instrument (whether
offered by the [Broker Namer] or not);
(iv) in consideration of any prospective or
actual Client’s personal circumstances advise on closing existing positions
in any financial instrument (whether offered by the [Broker Namer] or not);
(v) in consideration of any prospective or
actual Client’s personal circumstances give to any advice or recommendation
on hedging positions in such Client's portfolio;
(vi) in consideration of any prospective or
actual Client’s personal circumstances provide any kind of custom-made
trading signals to prospective or actual Clients.
3.8 The Marketing Partner:
(i) shall not represent to any prospective
Clients or otherwise create an impression that such Clients are guaranteed
any profits by the [Broker Namer];
(ii) shall not make any misleading
statements, represent or otherwise create an impression with the prospective
Clients that CFD trading is simple or that it does not require knowledge,
experience and understanding of the financial markets and instruments;
(iii) shall not in any way create an
impression with prospective or actual Clients (either through communication
with them or otherwise) that leveraged trading in Financial Instruments offers guaranteed or risk
free returns;
(iv) shall not in any way compare an
account of the potential Client of the [Broker Namer] to normal bank accounts or
create an impression or communicate to the potential Clients that any account
with the [Broker Name] bears interest and/or enjoys any statutory and regulatory
protections afforded to the bank accounts;
(v) shall not manage or operate any trading
account of, or for, any Client, and further shall not undertake any
portfolio management (whether on discretionary or on advisory basis) for any
active or prospective Client;
(vi) agrees that it will not represent to
any prospective Client that the [Broker Namer] will guarantee such Client against
losses or limit the losses of such Client;
(vii) shall not use any language or
practices that may be construed as offering any promise or guarantee of any
trading gain or profits to any Client;
(viii) shall not engage in high pressure
sales tactics or any unethical techniques with regard to any Client and shall
abide at all times by high ethical standards in its dealings with all Clients;
(ix) shall not seek to advise, direct or
influence, directly or indirectly, how any Client will respond to the [Broker
Namer]’s questionnaires aimed at the Company assessing the knowledge and
experience of the Client
or at assessing the source of wealth and economic
profile of the Client, and
(x) shall adhere at all times to the
Marketing and Communication Guidelines of the Company.
3.9 No exclusivity is granted to the
Marketing Partner by virtue of this Agreement.
3.10 The Services provided by the Marketing
Partner, are provided at its own cost and risk.
3.11 In cases which the Marketing Partner
works with the Company as “tier / master Marketing Partner”, the
Marketing Partner shall ensure that all and any Sub-Marketing Partners (as
defined in 6.10 below)
working under his account comply with the
terms of this Agreement and the Marketing and Communication
Guidelines. The Marketing Partner shall be directly liable to the Company for
any actions of any Sub-Marketing Partners working under the Marketing Partner’s
account.
4. RELATIONSHIP WITH CLIENTS
4.1 Marketing Partner shall not represent
itself as the Company or any member of the [Broker Namer] and should
specify on its website (if it has any) of the nature of the Marketing Partner
relationship.
4.2 Marketing Partner will not attempt to
bind the Company or any member of the [Broker Namer] in any manner and
not to use any trademarks or signs of the [Broker Namer] without prior written
consent of the Company.
4.3 Marketing Partner acknowledges that all
customers including Clients brought to the [Broker Namer] by Marketing
Partner are [Broker Namer]’s customers except as provided for herein any
information about these
customers are the exclusive and sole property of the
Company. Upon termination of this agreement the customers will remain
the Company’s customers.
4.4 Marketing Partner shall adhere to
Company advertising restrictions and policies as detailed on www.[Broker
Website]. Such terms may be adjusted by Company at its sole discretion.
4.5 Marketing Partner shall ensure that
there is no conflict of interest between Marketing Partner and any
Client in connection with the subject of this Agreement.
4.6 All Client accounts will be
self-directed accounts. No money manager, mirror trading, copy trading or signal
trader accounts shall be permitted unless the Marketing Partner is authorized
and regulated to do so.
4.7 Marketing Partner will not trade on
Client’s behalf.
4.8 Company shall be under no obligation
whatsoever to accept as a Client any Applicant introduced by Marketing
Partner.
5. COMPLIANCE WITH LAWS AND POLICIES
5.1 Each Party shall, at its own expense,
comply with the Applicable Laws and Regulations relating to its activities
under this Agreement, as they may change from time to time, and with any
conditions binding on it in any applicable licences, registrations, permits and
approvals.
5.2 The Marketing Partner hereby represents
that it shall at all times comply with the Applicable Laws and Regulations
of the [Broker Namer] in providing such Services.
5.3 The Marketing Partner shall comply with
the Marketing and Communication Guidelines which the Marketing Partner
confirms it has read, understood and accepted. A copy of the Marketing and Communication
Guidelines can be accessed on https://www.[Broker Website]/.
5.4 The Marketing Partner understands that
the Company is authorised and regulated in the conduct of its
activities and shall adhere at all times to Applicable Laws and Regulations.
The Marketing Partner understands, accepts and agrees that it will at all times ensure
that none of its actions cause any actual or potential breach of
the Applicable Laws and Regulations by the [Broker Namer] and undertakes to
cooperate with the Company in any requests aimed at achieving or enhancing
[Broker Namer]’s compliance with the Applicable Laws and Regulations.
5.5 The Marketing Partner undertakes to
cooperate, if required by any relevant authority in connection with the
Services which it provides to the Company pursuant to this Agreement and to
allow the Company, the Company’s Compliance function or its internal or external
auditors as well as its national competent authorities effective
access to: (a) data (including all communications and all documentation in
whatever mode or form) related to the Services which it provides to the
Company pursuant to this Agreement without withholding or delaying any such access
or data; and (b) the business premises of the Marketing Partner.
5.6 The Marketing Partner shall ensure that
all communications in which it engages in the course of providing Services to
the Company in accordance with the provision of this Agreement, (whether oral, written,
electronic or otherwise and through whatever mode or medium) including in
relation to [Broker Namer], are fair, clear, not misleading and not aggressive
and that nothing in its communication or interaction with any
Client, will be untrue, unfair, misleading or aggressive. The Marketing Partner
agrees and accepts that this will be the subject of assessment at regular
intervals by the Company, as deemed appropriate by the Company at its sole
discretion. The Marketing Partner undertakes to cooperate fully with the
Company at all times and to provide all such documentation, records of
communication as well as other information and clarifications that may be required by the
Company in order to enable the Company to undertake such assessments.
5.7 The Marketing Partner shall not engage
in any conduct which gives the impression that the regulated status of
the [Broker Namer] applies to the Marketing Partner, or that the Investment
Services provided by the
[Broker Namer] are provided by the Marketing Partner.
5.8 The Marketing Partner is and remains
responsible at all times to ensure that any material, documents. or
information provided by the Company are in accordance with the laws of the
country in which such material, documents or information are marketed or used or are to be
marketed or used.
6. ANTI-BRIBERY COMPLIANCE
6.1 The Marketing Partner agrees and
accepts not to engage or encourage directly or indirectly in any conduct
that may be construed to be an act of bribery or corruption of any government
or public official or any other executive (including indicatively corporate executives)
who can make, direct or influence a decision, and to comply with all laws, statutes
and regulations relating to anti-money laundering and corruption which are
applicable to it.
6.2 The Marketing Partnershall on no
occasion make or offer a payment in money or in kind, or otherwise offer or
accept any inducement seeking to: (a) obtain or retain business; (b) obtain a
share/percentage in the payment; or (c) induce someone to behave improperly,
irrespective of whether they are government, public or private
sector officials or employees.
7. COMMISSION AND PAYMENT
7.1 Subject to the provisions of this
Clause 7 and subject at all times to the Marketing Partner being in full compliance
with its obligations under this Agreement, the Marketing Partner shall be
entitled to Commission if a prospective Client referred by the Marketing Partner
registers with any member of the [Broker Namer] accepting the Terms and
Conditions, and continuously complies with the relevant compliance, anti-money
laundering, know-your-customer requirements, trading and other terms and
conditions. The Marketing Partner acknowledges, understands, agrees and accepts that
the [Broker Namer] retains at all times the sole right as to
whether to accept a prospective Client as a Client of the [Broker Namer] and
that it will at no time be permitted to participate in [Broker Namer]’s assessment
of the knowledge and experience of the prospective Client of Financial Instruments or
in the [Broker Namer]’s assessment of the source of wealth and economic
profile of the prospective Client for the purposes of any member of the [Broker
Namer] complying with its legal obligations pertaining to the combating of financial
crime and money laundering, or in any other assessment or evaluation of the
prospective Clients that the [Broker Namer] may undertake for any reason.
7.2 The amount of commission and or other
payments (collectively the “Commission”) payable shall be as
determined in accordance with Fee schedule agreement agreed between the Company
and the Marketing Partner. Notwithstanding anything to the contrary in this
Agreement or in any Fee schedule agreement, no Commission will be payable to the
Marketing Partner prior to the registration and compliance with the
other conditions referred to herein of five (5) prospective Clients referred by
the Marketing Partner who make a minimum required deposit as determined
by the [Broker Namer] and open and close at least one trade (the "Minimum Trade
Requirement"). Once the Minimum Trading Requirement has been achieved,
Commission will be payable to the Marketing Partner with respect to all Clients
referred by the Marketing Partner from the first such Client, all in
accordance with the other provisions of this Agreement and any
applicable fee schedule agreement.
FOR THE REMOVAL OF ANY DOUBT IT IS HEREBY
CLARIFIED THAT THE COMPANY RESERVES THE RIGHT, AT ITS SOLE AND
ABSOLUTE DISCRETION, TO CHANGE, MODIFY, ADD OR REMOVE, AT ANY TIME, ANY CRITERIA
APPLYING TO ANY COMMISSIONS, INCLUDING WITHOUT LIMITATION, SETTING ANY BASELINE,
THRESHOLD, MINIMUM DEPOSITS/EARNINGS AND/OR OTHER REQUIREMENT(S) FOR RECEIVING
ANY COMMISSION.
7.3 The Company shall within 15 (fifteen)
Business Days of the end of each calendar month in which any Clients
referred by the Marketing Partner had any trading activity in their trading
accounts with the Company, make payment as per the agreed Fee schedule.
7.4 The Company shall have a right to
suspend and/or withhold any accrued but unpaid Commissions in the event
of breach by the Marketing Partner of any provision of this Agreement or of any
applicable law or if the Company has a reason to believe that there is a
Non-Qualified Traffic in the Marketing Partner account. In the event
that the Company determines the activity constitutes Non-Qualified Traffic, the Company
shall recalculate or withhold the Commissions accordingly and in its sole
discretion. It is hereby
further clarified that in any event that the Company
determines that the suspected transactions are in fact Non-Qualified
Traffic, the Company shall have the right, in addition to any other right or
remedy available to it under this Agreement or applicable law, to render
the link assigned to such Marketing Partner inoperative, to change the Marketing
Partner’s compensation plan (including retroactively) and immediately
block Marketing Partner's access to the Company’s Marketing Partner program,
with no compensation to Marketing Partner. Marketing Partner hereby
irrevocably waives any claim or demand against the Company, its Marketing Partners,
its directors, officers, shareholders, employees in respect of such action
taken by the Company.
7.5 “Non-Qualified Traffic” means traffic
from the Marketing Partner and/or Clients and/or any deposit and/or
revenues generated by any Client which the Company has reason the believe in
its sole and absolute discretion to: (i) have been obtained by illegitimate means
(including without limitation to those relating to e-mail marketing and “spamming”);
(ii) be false and/or non-compliant with the Marketing Partner program
(including collusion between Marketing Partners and Clients or encouragement of trading activity
intended to generate Commissions and not profits); (iii) have been obtained by
misleading conducts and/or through collusion and/or manipulation of [Broker
Namer]’s services, system, bonuses and/or promotions (including
without limitation, via offers to share the Commissions directly or indirectly
with Customers, and any other unauthorized use of any third party
accounts, copyrights or trademarks), in each case, regardless
of whether or not it actually causes harm to the Company or [Broker Namer].
7.6 For avoidance of doubt and without
derogating from the generality of the foregoing, the Marketing Partner
shall not be entitled to receive Commissions and/or any other payment (pursuant
to any arrangement between the Marketing Partner and the Company) if the
Company has a reason to believe that the Client trading accounts are owned
and/or managed by the Marketing Partner and/or any of its shareholders
and/or officers and/or any of their family members and/or dependents
and/or relatives.
7.7 The Company reserves the right to take
legal actions against the Marketing Partner in the event the Marketing
Partner shall attempt to manipulate the Company and/or abuse the Company's
Marketing Partner program. Without limitation of the foregoing, the Company
reserves the right to withhold, setoff and/or deduct from any payment due to Marketing
Partner hereunder in the event of such manipulation and/or abuse and may also
terminate this Agreement with immediate effect.
7.8 The Marketing Partner undertakes to
provide to the Company as soon as reasonably practicable after the date of
this Agreement coming into effect, and in any event not later than the date on
which the first payment of the Commission becomes due, accurate wire transfer
details or other pre-agreed upon payment methods which shall indicate the
Marketing Partner as the sole beneficiary of the payment. The Company
shall have a right to reject any payment to the Marketing Partner hereunder if
the Marketing Partner is not the sole beneficiary in the payment details provided
by the Marketing Partner to the Company. The Company shall not be liable for
any errors or inaccuracies in the payment details provided by the
Marketing Partner.
7.9 Commission shall be payable to the
Marketing Partner in United States Dollars only, unless the Company
elects at its discretion to effect a payment in any other currency.
7.10 The Marketing Partner shall bear its
own costs in providing Services hereunder and shall be solely responsible
for the payment of all its personnel, marketing, communication, administration
and other overhead expenses, taxes and/or charges and/or fees and duties
arising from the provision of Services pursuant to this Agreement (including on domain
and other internet related payment).
7.11 It is agreed by both Parties, that the
Commission payable by the Company to the Marketing Partner is subject
to review from time to time and change by the Company in its absolute
discretion.
7.12 It is agreed by both Parties that the
Company shall be entitled to reduce, without providing the Marketing
Partner prior notice, any existing revenue share of the Marketing Partner by up
to five percent (5%) following six (6) months of inactivity. For the avoidance of
doubt; "inactivity" means the failure to introduce new active
customers.
7.13 Without prejudice to the provisions of
Clause 24 (Indemnity and Remedial Action) below, the Commissions payable by
the Company under this Agreement shall be subject to malus and clawback, such that in the
case of Adverse Action against the Company or [Broker Namer], the Company may
refuse to make further payments of Commission, and/or may demand repayment of any
Commissions already paid to the Marketing Partner up to the amount of a
reasonable estimate of the Company’s loss resulting from such breach or
failure. The Company and the Marketing Partner agree that the provisions of
this Clause 7.9 are without prejudice to any other rights which the Company or [Broker
Namer] may have against the Marketing Partner, whether arising under law, contract or
otherwise.
7.14 Where the Marketing Partner refers to
the [Broker Namer] persons who also become Marketing Partners of the
Company (“Sub-Marketing Partner”), the Marketing Partner, in effectively a
Master Marketing Partner capacity, shall be entitled to such payments as shall be
agreed between the Company and the Marketing Partner in writing.
7.15 The Company may, in its sole and
absolute discretion, provide additional remuneration in the form of a
reward, based on qualitative and other criteria that the Company may establish
from time to time, having also regard to Applicable Laws and Regulations.
7.16 The Company has the absolute right,
after giving prior notice to the Marketing Partner, to change the
Commission payable to the Marketing Partner for reasons related to the
Company’s remuneration policy by giving to the Marketing Partner at least 15 Business Days’
advance notice by e-mail. Where the Marketing Partner does not return to the
Company with written objections to the proposed changes to the
Commission and continues to provide Services after receiving or being deemed to
have received notice in accordance with the provisions of this Agreement, the
Marketing Partner will be deemed to have accepted such change
in the Commission payable, by conduct. For the avoidance of doubt, any change
in Commission made hereunder shall apply, from the date on which any
such change became effective, shall apply with respect to both the Clients referred
by the Marketing Partner prior to such change and the Clients referred after
such change, but shall not affect any payments of Commission accrued up to the effective
date of such change.
7.17 In addition, the Company may, in its
sole discretion, retroactively change the Commission payable to the
Marketing Partner, in the event that the Company has a reasonable suspicion of
a manipulation of the Company and/or the Trading Platform and/or of any abuse of the
Marketing Partner Program and/or of the Marketing Partner's compensation plan
(including collusion between Marketing Partners and Customers or
encouragement of trading activity intended to generate Commissions and not
profits) and/or from any other reasonable grounds in the Company's sole and
absolute discretion. In such event, effective as of the date specified in the
Company's notification to the Marketing Partner regarding the change of
the Commission, the Marketing Partner shall be compensated under the new
compensation plan and it shall not be entitled to receive any payment under the
previous compensation plan (and in the event that any payments have already been made
under the previous compensation plan, the Marketing Partner shall immediately
return the Company any such payment and the Company shall also be permitted
to deduct such payments from any future payments due to the Marketing Partner,
which may cause an Marketing Partner's account to be in a negative balance.
7.18 The Marketing Partner is prohibited
from receiving or handling any funds from any Client for any purpose
whatsoever, whether as recipient for its own account or for the purpose of
relaying or delivering such funds to any other person or entity, including, without
limitation, the Company.
8. ANTI-MONEY LAUNDERING
8.1 Without prejudice to the provisions of
Clause 8.2 below, when introducing Clients, the Marketing
Partner hereby undertakes not to refer any
Client which it knows or believes or reasonably should have known or
believed may be involved in any money-laundering or terrorist financing
activities.
8.2 The Marketing Partner shall provide the
Company with any information the Company deems as necessary in relation
to its obligation to undertake an assessment of the Marketing Partner with
respect to money laundering risk.
8.3 The Marketing Partner shall update the
Company by written notice, as soon as possible, about any change
(whether actioned or expected) in its corporate, financial and legal status and
with respect to any regulatory, judicial, police or other investigations in its affairs
or affairs of its shareholders and key personnel.
9. OBLIGATIONS OF THE COMPANY
9.1 The Company shall use its reasonable
efforts to provide the Marketing Partner with the information the
Marketing Partner reasonably requests in writing in order to carry out its
duties, including marketing information, details related Financial
Instruments.
9.2 The Company shall, as set out in Clause
7.7 above, not be responsible for any costs incurred by the Marketing
Partner unless such costs have been agreed by the Company in writing, in
advance.
9.3 The Company shall:
(i) be under no obligation to follow up on
any referral made by the Marketing Partner or to provide Investment
Services to any natural or legal person referred to it by the Marketing
Partner.
(ii) have the entire discretion to reject
any prospective Client or to terminate any Client referred to it by the
Marketing Partner for any reason that it deems appropriate, including without
limitation for matters pertaining to its commercial policy or regulatory compliance with
the Applicable Laws and Regulations.
(iii) have the full and sole right to
decline any prospective or actual Client that fails the [Broker Namer]’s assessments
and requirements for knowledge and experience as well as for the reason of
anti-money laundering and financial crime prevention.
10. REPRESENTATIONS AND WARRANTIES
10.1 Where the Marketing Partner is a
natural person, it hereby represents and warrants to the Company the
following:
(i) it has the capacity to enter into this
Agreement and to perform the Services provided for hereunder, (ii) it
shall not be in breach of the Applicable Laws and Regulations in providing the
Services, (iii) it is not bankrupt or subject to any administrative,
insolvency order, tax or other proceedings, and (iv) has not been
convicted for any criminal activity or been subject to any sanctions,
regulatory or other investigations, for unlawful or unethical conduct or breach of any
law, regulation or professional conduct other than minor
traffic offenses.
10.2 Where the Marketing Partner is a legal
person, it hereby represents and warrants to Company as follows:
(i) It has full power and authority to execute and
deliver this Agreement and to perform its obligations hereunder and to
provide the Services and transactions contemplated hereunder and that there are
no other undertakings or agreements preventing it from committing
itself in accordance with this Agreement and performing its
obligations hereunder.
(ii) The execution and delivery of this
Agreement, and the performance by the Marketing Partner of its obligations
hereunder, have been duly authorized by its relevant governance bodies in
accordance with applicable law and its internal statutes and regulations.
(iii) This Agreement, upon execution and
delivery by the Company and the Marketing Partner, will constitute the legal,
valid and binding obligations of the Marketing Partner, enforceable against the Marketing
Partner in accordance with its terms.
(iv) The Marketing Partner and its
shareholders, Board of Directors and key staff have not been subject to any legal
or regulatory investigations or been subject to any sanctions or fines or other
penalties for breaches of the Applicable Laws and Regulations applicable to it,
including without limitation, any fines or sanctions for
breaches of and financial services laws and regulations.
10.3 The Marketing Partner hereby warrants
and undertakes that the information provided on the Marketing Partner
Application Form is true, fair, complete and accurate. The Company has the
right to constantly monitor the activities of the Marketing Partner for the
purpose of ensuring compliance with the provisions of the Marketing Partner
Application Form and this Agreement. In the event in which any such
information is or becomes false, misleading or inaccurate, the Marketing
Partner agrees and accepts that the Company shall have the right to
terminate this Agreement with immediate effect by a written notice to
the Marketing Partner.
10.4 The Marketing Partner acknowledges
that Clients referred to the Company become Clients of the [Broker
Namer] and are not clients of the Marketing Partner and further, that it shall
refrain at all times from
any action which could be construed by prospective or
actual Clients to indicate that there is a contractual or other legal
relationship between the Clients and the Marketing Partner. The Marketing
Partner undertakes to inform prospective Clients that their legal
relationship is solely with the [Broker Namer] and that all communications
with respect to their ISAs and their trading at large shall be solely with the
[Broker Namer].
10.5 The Marketing Partner undertakes that
it shall not solicit or entice away from the [Broker Namer], any Clients of
the [Broker Namer], either for the benefit of itself or any third party and
shall not encourage or facilitate the migration of any Client to any competitor of the
[Broker Namer] for the duration of this Agreement and for a
period of two (2) years after termination of this Agreement may have taken
place.
11. INTELLECTUAL PROPERTY
11.1 The Marketing Partner acknowledges and
agrees that Intellectual Property Rights belonging to the Company and
[Broker Namer], shall remain the proprietary property of the Company and
[Broker Namer] as appropriate, and that nothing in this Agreement or in any
disclosures made during the course of this Agreement or emanating
therefrom shall be construed as granting to the Marketing Partner any right, entitlement,
licence, patent, copyright, design licence or any other Intellectual Property
Rights which may now or hereafter exist. Nothing in this Agreement shall be deemed to
be a waiver, transfer or entitlement to any such Intellectual Property Rights by the
Company or [Broker Namer].
11.2 Subject to the provisions of this
Clause 11 (Intellectual Property), the Marketing Partner may use [Broker Name]logo and brand names with the prior written permission of the
Company in accordance with Clause 3.5 above.
12. CONFIDENTIALITY
12.1 The Marketing Partner undertakes that
it shall not at any time during this Agreement, and for a period of five (5)
years after termination of this Agreement, disclose to any person any
Confidential Information
concerning the business, marketing strategy, affairs
and Clients of the Company or clients of any member of the [Broker Namer],
except as permitted by Clause 12.2 below.
12.2 The Marketing Partner may disclose the
Company's Confidential Information: (i) to its employees, officers, representatives
or advisers who need to know such information for the purposes of carrying
out the Marketing Partner’s obligations under this Agreement. The Marketing Partnershall
procure that its employees, officers, representatives or advisers to whom it
discloses the [Broker
Name]Confidential Information comply with this Clause
12 and are bound by relevant confidentiality and professional undertakings
to the Marketing Partner; and
(ii) as may be required by law, a court of
competent jurisdiction or any governmental or regulatory authority
12.3 No Party shall use any other Party's
Confidential Information for any purpose other than to perform its
obligations under this Agreement.
12.4 All documents and other records
(whether verbal, in writing, electronic or otherwise, stored in whatever
mode or medium) containing Confidential Information supplied to or acquired by
the Marketing Partner from the Company shall be returned promptly to the Company
on termination of this Agreement, and no copies shall be kept. Where Confidential
Information has been kept in physical, electronic or other mode of
storage, the Marketing Partner shall return one copy to the Company and confirm
to the Company that it has deleted all other copies, other than one single
copy it may deem necessary to maintain so as to defend itself in any action
in front of any court of competent jurisdiction or any governmental or
regulatory authority.
13. COMMENCEMENT AND DURATION
13.1 This Agreement shall take effect in
accordance with clause 27 below and shall continue until terminated
earlier in accordance with Clause 14 below.
14. TERMINATION
14.1 Without affecting any other right or
remedy available to it, and subject to the provisions of Clause 20 below,
either Party may terminate this Agreement for any reason, at any time, after
providing to the other Party five (5) Business Days’ written notice.
14.2 The Company shall have a right to
terminate this Agreement with immediate effect by a written notice to
the Marketing Partner at any time during any evaluation period.
14.3 Without prejudice to the provisions of
Clauses 14.1 and 14.2 above, the Company may terminate this Agreement
with immediate effect by giving written notice to the Marketing Partner if:
(i) the Marketing Partner commits a
material breach (as determined by the Company in its reasonable opinion) of
this Agreement, including without limitation, a breach of any of its
obligations under this Agreement (including where the Marketing Partner provides false,
inaccurate or misleading KYC, compliance and anti-money laundering
information under Clause 2 hereof) or in general the conduct of the
Marketing Partner is one that the Company, acting at its discretion and
reasonably, deems to cause regulatory
or reputation issues to the Company; (ii) the Marketing Partner produces or uses any
advertising on marketing in breach of the requirements of Clause 3.6 above; (iii) the
Marketing Partner rejects any proposed change in Commission communicated to it
by the Company pursuant to Clause 7 above; (iv) the Marketing
Partner is in breach of the provisions of Clause 3.1 (ii) and (vii) above; (v) where
any Client referred by the Marketing Partner commits any breach of the Terms
and Conditions of any member of the [Broker Namer], including without limitation, a
breach in relation to abusive or unfair trading practices or
manipulation of the electronic trading platform;
(vi) any Client referred to a Group company
provides fraudulent, inaccurate or misleading documentation in the
course of the KYC and anti-money laundering checks, as may be required by the
Company and the Applicable Laws and Regulations;
(vii) where the Marketing Partner is a
legal entity, the Marketing Partner becomes insolvent or is subject to any
insolvency, administrative, regulatory or professional proceedings as per the
applicable provisions in its jurisdiction of incorporation, or, where the Marketing
Partner is a natural person, is subject to bankruptcy
proceedings;
(viii) The Marketing Partner does not, in
the Company’s discretion, act reasonably and in good faith; (ix) The
Marketing Partner becomes or is reasonably likely to become incapable of
performing it obligations under this Agreement; (x) The Marketing
Partner is in breach of the mandatory policies; (xi) Pursuant to
Clause 25.3 of this Agreement; (xii) Where the Marketing Partner, being a
natural person, dies or, by reason of illness or incapacity (whether
mental or physical), is incapable of managing his or her own affairs or becomes
a patient under any mental health legislation.
14.4 All Clients referred to the Company
during the term of this Agreement, shall remain Clients of the Company
upon termination or cessation of this Agreement (unless such Client is
terminated by the Company in its sole discretion for any reason whatsoever). The
Marketing Partner shall not interfere with any Client's right to
maintain the Client's account with, or transfer the Client's account to or
from, the Company.
14.5 For the avoidance of doubt, all terms
of this Agreement constitute material terms.
15. CONSEQUENCES OF TERMINATION
15.1 The Parties agree that the following
clauses are material clauses that survive termination of this Agreement:
Clause 1 (Interpretation), Clause 11 (Intellectual Property), Clause 12
(Confidentiality), Clause
16 (No Partnership or Agency), Clause 17 (Data
Protection), Clause 24 (Indemnity and Remedial Action), Clause 26 (Record
Keeping) and Clause 28 (Governing Law).
15.2 Termination of this Agreement shall
not affect any rights, remedies, obligations or liabilities of the Parties
that have accrued up to the date of termination, including the right to claim
damages in respect of any breach of the Agreement which existed at or before the date
of termination.
16. NO PARTNERSHIP OR AGENCY
16.1 The relationship between the Company
and the Marketing Partner shall be that of independent parties. Nothing in
this Agreement is intended to, or shall be deemed to, establish an
employee-employer relationship, any partnership or joint venture between any of the
Parties, constitute any Party the agent of another Party, or
authorise any Party to make or enter into any commitments for or on behalf of
any other Party. Furthermore, the Marketing Partner agrees that:
(i) Where the Marketing Partner is not
authorised and regulated in the provision of investment or any other
services, it shall not hold itself out as being regulated to provide any
services for which it is not duly authorised and regulated in accordance with the
provisions of the Applicable Laws and Regulations, and shall not make use of
the contractual or other relationship which it has with the Company, to
represent or hold itself out as being so regulated; and
(ii) The Marketing Partner shall not engage
in any conduct which gives the impression that the regulated status of
the [Broker Namer] applies to itself, or that the Investment Services provided
by the [Broker Namer] are
provided by the Marketing Partner.
16.2 Without prejudice to the generality of
the above, the Marketing Partner shall not be construed or hold itself
out as acting as broker or agent of the Company or [Broker Namer] and shall not
indicate or seek to indicate such in any marketing or communication material.
16.3 The Marketing Partner shall not use
the name of the Company or [Broker Namer] in answering its telephone
or in any other ways represent that it is associated with the Company or
[Broker Namer] other than
in a relationship of an Marketing Partner. In
contracting for support services such as rent, telephone and utilities,
the Marketing Partner shall not use or refer the name of the Company or [Broker
Namer].
16.4 The Marketing Partner confirms that it
is acting on its own behalf and for solely its own benefit and not for the
benefit of any other person.
17. DATA PROTECTION
17.1 The Marketing Partner shall ensure
that-
(i) it has obtained all necessary rights
from third parties and any notification or consent requirements which may
be required from any person in relation to or for the purposes of processing
data for the purposes of providing Services in accordance with its obligations
under this Agreement;
(ii) it has complied with all other
requirements under any applicable privacy and data protection laws, regulations,
and mandatory codes.
17.2 The Marketing Partner shall, upon
request of the Company, provide to the Company all such documentation and
information evidencing its compliance with the requirements of this Clause 17.
17.3 The Marketing
Partner agrees and accepts that nothing in this Agreement creates an obligation
for the Company to share any information it gathers or acquires at any
stage about any Client, with the Marketing Partner.
18. ENTIRE AGREEMENT
18.1 This Agreement constitutes the entire
agreement between the Parties and supersedes and extinguishes all
previous agreements, promises, assurances, warranties, representations and understandings
between them, whether written or oral, relating to its subject matter.
18.2 Each Party acknowledges that in
entering into this Agreement it does not rely on, and shall have no remedies in
respect of, any statement, representation, assurance or warranty (whether made
innocently or negligently) that is not set out in this Agreement.
18.3 Nothing in this Clause shall limit or
exclude any liability for fraud.
19. VARIATION
19.1 Subject to the provisions of Clause 25
(Amendments to this Agreement) below, no variation of this Agreement
shall be effective unless it is in writing and signed by the Parties (or their
authorised representatives).
20. ASSIGNMENT AND OTHER DEALINGS
20.1 This Agreement is personal to the
Parties and, subject to the provisions of Clause 20.2 below, neither Party shall
assign, transfer, mortgage, charge, subcontract, declare a trust over or deal
in any other manner with any of its rights and obligations under this Agreement.
20.2 The Company may, by providing five (5)
Business Days’ written notice in accordance with the provisions of Clause
23 (Notices) below of this Agreement, assign, novate, transfer, mortgage,
charge, subcontract, declare a trust over or deal in any other manner with
any of its rights and obligations under this Agreement to any
member of the [Broker Namer] or to any third party that it reasonably considers
at its discretion capable of performing the duties, responsibilities and
obligations under this Agreement.
20.3 In respect of any notification given
by the Company to the Marketing Partner for the assignment, or novation or
transfer of rights and obligations to any third party (unless such assignment,
transfer or novation is made to any member of the [Broker Namer] in which case
the Marketing Partner hereby consents to such assignment, transfer or novation,
effective upon notice being provided by the Company and without any further
action being required on the part of the Marketing Partner for effecting such assignment,
transfer or novation) in accordance with the provisions of this Clause 20,
failure on the part of the Marketing Partner to object to such transfer within the
notice period provided for in Clause 20.2 above shall evidence
its acceptance of such transfer, and the transfer of the rights and obligations
of the Company under this Agreement shall take effect giving rise to a
direct contractual relationship between the transferee and the
Marketing Partner.
21. WAIVER
21.1 No failure or delay by a Party to
exercise any right or remedy provided under this Agreement or by law shall
constitute a waiver of that or any other right or remedy, nor shall it prevent
or restrict the further
exercise of that or any other right or remedy. No
single or partial exercise of such right or remedy shall prevent or
restrict the further exercise of that or any other right or remedy.
22. SEVERANCE
22.1 If any provision or part-provision of
this Agreement is or becomes invalid, illegal or unenforceable, it shall be
deemed modified to the minimum extent necessary to make it valid, legal and
enforceable. If such modification is not possible, the relevant provision or
part-provision shall be deemed deleted. Any modification to or
deletion of a provision or part-provision under this Clause 22 shall not affect
the validity and enforceability of the rest of this Agreement.
23. NOTICES
23.1 Any notice or other communication
given to a Party under or in connection with this Agreement shall be in
writing, addressed to that Party in accordance with the contact details stated
in this Clause 23 in respect of each Party, or such other address as that Party may have
specified to the other Party in writing in accordance with
this Clause 23, and in addition, shall be sent via email to support@[Broker
Website].
24. INDEMNITY AND REMEDIAL ACTION
24.1 The Marketing Partner will indemnify
the Company and keep the Company indemnified on demand in respect of all
direct, indirect, punitive, incidental, special, consequential damages or any
other damages, all liabilities, costs, claims, demands and expenses (including
legal costs) of any nature whatsoever (collectively, “Losses”) which the Company may
suffer or incur as a direct or indirect result of any act or omission of
the Marketing Partner in connection with its relationship with the Company or
any Client referred by the Marketing Partner to the Company or any failure by
the Marketing Partner to perform any of the Marketing Partner’s obligations under
this Agreement and the Marketing and Communication Guidelines but
excluding any Losses which result from the Company’s own negligence, fraud,
wilful misconduct or material breach by the Company of the terms of this
Agreement.
24.2 Without prejudice to the generality of
the above, the Marketing Partner agrees to indemnify and hold
harmless the Company for any Losses suffered as a result of Adverse Action.
24.3 Where any Adverse Action consists of
or relates to any derogatory or defamatory statement against
the Company or its Group, the Marketing
Partner undertakes to take such remedial action and make such corrective
statement as the Company may instruct for the purposes of addressing the effect
of the Adverse Action, provided always that the Marketing Partner will not
be required to make any statement which is misleading or untrue.
25. AMENDMENTS TO THIS AGREEMENT
25.1 Notwithstanding any other provision
contained in this Agreement, the Company retains the right at any time to
amend the provisions contained herein. Such amendment shall become effective
with immediate effect as published on www.avapartner.
25.2 Where any amendment is deemed by the
Company to be necessary or appropriate for the purposes of compliance with any
Applicable Laws and Regulations, the Marketing Partner agrees, acting at the request of
the Company, to effect such amendments within the timeframe set by the Company
at its entire discretion and as may be necessary or appropriate for this
purpose.
25.3 In the case in which the Marketing
Partner does not agree to any amendment which the Company considers
reasonable or appropriate in accordance with the provisions of Clauses 25.1 and
25.2 above, within the period set by the Company, this Agreement may be
terminated by the Company without further notice.
26. RECORD KEEPING
26.1 The Marketing Partner should be able
to provide to the Company at any time, evidence of its compliance with the
provisions of this Agreement, and for this purpose, and without limitation of
the generality of the above, it shall maintain at all times adequate
records regarding the following:
(i) the content of any statement or
representation made to any Client, (along with a translation in the case in which
the relevant communication is not in English),
(ii) the manner and means in which any such communication was communicated, and
(iii) copies of all written and electronic communication with Clients, in
whatever mode or mediumtransmitted, including all marketing communication.
26.2 The Marketing Partner shall maintain
such records throughout the duration of this Agreement and for five
years after the termination hereof and shall deliver all such records to the
Company at any time upon request by the Company and upon termination of this Agreement.
27. EXECUTION
27.1 This Agreement shall take effect upon
the Marketing Partner agreeing to its Terms and Conditions by ticking
the relevant box electronically at the website www.[Broker Website] AND upon
the Company sending to Marketing Partner a notice of acceptance in accordance
with Clause 2.4 above.
28. GOVERNING LAW
28.1 This Agreement and any dispute or
claim arising out of or in connection with it or its subject be matter or
formation (including non-contractual disputes or claims) shall be governed by
and construed in accordance with the law of England and Wales.
29. JURISDICTION
29.1 Any dispute arising out of or in
connection with this contract, including any question regarding its existence,
validity or termination, shall be referred to and finally resolved by
arbitration under the LCIA Rules, which Rules are deemed to be
incorporated by reference into this Clause 29. The number of arbitrators
shall be three. The seat, or legal place of arbitration shall be London,
England. The language to
be used in the arbitral proceedings shall be English.
Marketing Partner: Company: [Broker Namer]Limited
Name: Name:
Title:
Title:
Signature: ____________________ Signature:
_________________
Date: Date: