This Affiliate Agreement (“Agreement”) is made by and between Estro LTD (“Company”), and the entity registered to be an Affiliate of the Company (“AFFILIATE”). This Agreement shall govern the terms and conditions pursuant to which AFFILIATE shall promote and market the Company`s FX and CFD trading services.
1. AFFILIATE’S OBLIGATIONS AND REPRESENTATIONS.
AFFILIATE hereby undertakes to:
1. Use its best efforts and devote reasonable amounts of time, personnel and resources to promote and market the Company`s FX and CFD Trading Services.
2. In providing the Services AFFILIATE shall comply in all respects with all applicable laws, regulations and approvals and conduct itself in a professional manner in accordance with industry standards so as not to cause disrepute or ill favor to Company.
3. Comply with and act in accordance to the Company’s terms and policies, as may be amended from time to time, and other policies of the Company relating to the trading services and marketing of the Company.
4. Not to use the name of the Company in any promotional materials or otherwise, without obtaining the prior written approval of the Company relating to the general type of such promotional materials and not to distribute any such promotional materials in any manner or forum which may be offensive or which may cause harm to the Company (including using any website, that (i) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age and/or any illegal activities or (ii) violates any intellectual property or other proprietary rights of any third party). In addition, AFFILIATE shall not engage in any fax, broadcast or telemarketing with respect to the Company or its services or make use of any “scrumware” (the use of pop-up banners that hide banners that are displayed on a website, the placement of icons beside keywords found in text that if clicked will take the visitor to another website, and other similar practices) or use any predatory advertising or marketing methods in any manner related to the Company or its services. AFFILIATE personnel may not generate, distribute or use any promotional material that: (a) is likely to deceive the public (b) contains any material misstatement of fact or a statement that such person knows omits a fact, if such omission makes the promotional material misleading (c) mentions the possibility of profit unless accompanied by an equally prominent statement of the risk of loss (d) includes a measurement or description of or makes any reference to hypothetical results which could have been achieved had a particular trading system been employed in the past unless accompanied by the statement identified below (e) includes any reference to actual past trading profits without mentioning that past results are not necessarily indicative of future results or (f) includes any specific numerical or statistic information about the past performance of any actual accounts (including rate of return) unless such information is and can be demonstrated to be representative of the actual performance for the same time period of all reasonably comparable accounts.
5. Ensure that all promotional material is of a type and character, and is disseminated in a manner, that will not cause disrepute or harm to the Company and comply with all applicable laws and regulations, including without limitation relating to anti-spam laws and regulations. Without limiting the generality of the foregoing, AFFILIATE shall (a) not send any e-mail regarding the Company or its services: (i) to any individual or entity that has not requested such information (ii) to any type of “Safe List” or through any type of “Safe List” service or (iii) as part of a confirmation or thank you letter as a result of a posting to a classified advertisement website or a “Free for All Links” website and (b) always include “unsubscribe” information at the top and bottom of any e-mail regarding the Company and its services. Immediately upon notice from the Company that, in the Company’s opinion, any promotional material (content or method of use) does not comply with this standard, AFFILIATE will cease use of such materials or manner of use. AFFILIATE undertakes to comply with all reasonable instructions received from the Company regarding the content, nature and location of any advertising campaigns or materials.
6. That during the term of this Agreement and for a period of [6] months thereafter, it shall not directly or indirectly provide any similar services to any competitor of the Company.
7. That is shall not bind or attempt to bind the Company in any manner and not to use any trademarks or other mark and/or signs of the Company without prior written consent of the Company.
8. Not to present itself as an agent of the Company in any manner.
9. The Company shall under no circumstances participate in any costs incurred by the AFFILIATE, unless otherwise agreed. All costs of AFFILIATE in connection with its duties hereunder shall be borne solely by AFFILIATE and writing between the Parties.
10. AFFILIATE acknowledges that all customers brought to the Company by AFFILIATE are the Company’s customers and except as provided for herein the any information about these customer are the exclusive and sole property of the Company. Upon termination of this Agreement the customers will remain the Company’s customers.
11. To keep confidential and not disclose except for the benefit of the Company at any time during this agreement or subsequent any trade secrets, techniques, marketing ideas , know how, plans, concepts, data, customer lists, prospective customer lists, names and addresses and other information regarding customers and prospective customers, and any other subject matter pertaining to the Company ,its clients, or customers which AFFILIATE may use or otherwise acquire during its relationship with the Company.
12. At any time during the term of this Agreement the Company can demand that AFFILIATE return any materials or data it received from the Company. To return upon termination of this Agreement any materials or data received by AFFILIATE from the Company.
13. Indemnify the Company for any damage or expense (including attorney fees) incurred as a result of AFFILIATE’s failure to abide by the obligations of any terms of this Agreement, AFFILIATE’s negligence or misconduct, or any warranty, representation, indemnity or guarantee relating to the Company granted by AFFILIATE to any customer or other third party.
2. GRANT OF RIGHTS.
1. Grant. During the term of this Agreement, Company grants AFFILIATE the non-exclusive, non-transferable right to market the Company`s FX and CFD trading services and direct Customers and potential customers to use the Company`s – FX and CFD Trading Services in accordance with the terms and conditions of this Agreement.
2. For avoidance of doubt this Grant does not include and grant or right in the trademarks, trade secrets or intellectual property of the Company which shall all remain the sole and exclusive property of the Company.
3. As between AFFILIATE and COMPANY, the Company’s trademarks and domains, the content of any service or platform, all demographic and other information relating to customers and leads, affiliates and the Company’s platforms and all software, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, web sites, and any additional intellectual or other property used by or on behalf of COMPANY or otherwise related to the foregoing, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “COMPANY Property”) shall be and remain the sole and exclusive property of COMPANY. To the extent, if any, that ownership of any COMPANY Property does not automatically vest in COMPANY by virtue of this Agreement, or otherwise, AFFILIATE hereby transfers and assigns to COMPANY, upon the creation thereof, all rights, title and interest AFFILIATE may have in and to such COMPANY Property, including the right to sue and recover for past, present and future violations thereof.
3. PAYMENT
1. AFFILIATE shall receive payment as appears in the applicable reports available through the affiliate system.
2. Unless otherwise agreed between the Parties in writing, payments will be done by the end of month for the previous month by wire transfer to AFFILIATE bank account, or electronic wallet or as a credit to his trading account the details of which shall be provided to the Company by AFFILIATE from time to time.
3. All payments will be due and payable in United States Dollars, upon the mutual agreement of the Parties.
4. Each party shall bear its own costs and expenses associated with this Agreement.
4. TERM AND TERMINATION.
1. Term. The duration of this Agreement will begin on the Effective Date and will continue thereafter unless it is sooner terminated earlier in accordance with the provisions hereof (“Term”).
2. Either Party may terminate this Agreement hereunder: (a) for default if the other Party breaches this Agreement and does not remedy such breach within 14 days of receipt of written notice of such breach; or (b), if the other Party becomes the subject of a voluntary or involuntary proceeding concerning insolvency, receivership, liquidation, or composition for the benefit of creditors, if such proceeding is not eliminated within Sixty (60) days of proceeding commencement. Or, if required to by any legal authority.
3. Either Party may terminate this Agreement for convenience following a fourteen (14) days notice period pursuant to a written notice.
5. RECORDS, REPORTS
1. It is in AFFILIATE’s sole responsibility to associate AFFILIATE ID with Traders making use of the Trading Services by using Tags provided by the Company or otherwise informing the Company in writing as to its Traders ID.
2. It is in Company’s sole responsibility and obligation to track the activity of the Traders and all traffic associated with their AFFILIATE ID for the duration needed for the Company to fulfill its obligations under this Agreement in full.
3. Daily Report. Throughout the Term Company shall provide AFFILIATE with an online report .
6. Each Party represents that: (a) the execution, delivery and performance of this Agreement have been duly and validly approved and authorized by the Party’s authorized organ; and (ii) it has the right, power, legal capacity and authority to enter into and perform its obligations under this Agreement, and all agreements to which the Party is or will be a party that are required to be executed pursuant to this Agreement.
7. Each party represents that there is no claim, action, suit or proceeding pending or, to the Party’s knowledge, threatened, against the Party at law, in equity, by way of arbitration or before any governmental department, commission, board or agency that might have a material adverse effect on the other Party, nor is the Party aware of any reasonable basis thereof.
8. Disclaimer Of Warranty. COMPANY MAKES NO WARRANTIES HEREUNDER, AND COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, COMPANY FURTHER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, THAT THE PLATFORMS DO NOT INFRINGE OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY IN ANY JURISDICTION.
9. Limitation of Liability.IN NO EVENT WILL THE COMPANY BE LIABLE TO AFFILIATE OR AFFILIATE TRADERS AND\OR ANY THIRD PARTY ENGAGING DIRECTLY OR INDIRECTLY WITH COMPANY’S TRADING SERVICES AND NO PARTY WILL BE ENTITLED TO RECOVER FROM THE COMPANY ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR ANY OTHER CAUSE OF ACTION RELATING TO COMPANY’S TRADING SERVICES OR OTHERWISE RELATING TO THIS AGREEMENT, EVEN IF EITHER PARTY HAS BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, COMPANY’S LIABILTY TO AFFILIATE UNDER THIS AGREEMENT FOR ANY REASON WILL BE LIMITED TO THE AMOUNTS PAID TO AFFILIATE BY THE COMPANY DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS.
10. Independent Contractors. The parties to this Agreement are independent contractors. Neither Party is an agent, representative or related entity of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
11. Notices. Any notice required or permitted to be given under this Agreement shall be in writing and shall be sent by email to the following emails:
For Company: [email protected]
For AFFILIATE: ______________
12. No Waiver. The failure of either party to insist upon or enforce strict performance by the other party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same shall be and remain in full force and effect. Each waiver shall be set forth in a written instrument signed by the waiving party.
13. Entire Agreement. This Agreement, including all Exhibits hereto, sets forth the entire agreement and supersedes any and all prior agreements, written or oral, of the parties with respect to the subject matter hereof as set forth herein. Neither party shall be bound by, and each party specifically objects to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by the other party in any correspondence or other document, unless the party to be bound thereby specifically agrees to such provision in writing.
14. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the United Kingdom without regard to conflict of laws. Exclusive jurisdiction in any action or proceeding arising out of or relating to this Agreement and Appendices will be placed in the relevant courts residing in London (“Jurisdiction Courts”). Each of the Parties hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such action or proceeding in any such Jurisdiction Court, and waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such Jurisdiction Court.
15. All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and to their respective heirs, successors, assigns and legal representatives. AFFILIATE shall have no right to assign or otherwise transfer this Agreement, or any of its rights or obligations hereunder, to any third party without Company’s prior written consent, to be given or withheld in Company’s sole discretion.
