Terms and Conditions
This Introducer and Affiliate Agreement [Date of agreement] is made By and Between:
(1) LEADCAPITAL MARKETS LIMITED, a company incorporated in Cyprus, with Company Registration Number HE 324232 and CySec License Number 227/14, situated at 9 Kafkasou Str., Treppides Tower, 5th Floor, Aglantzia P.C. 2112, Nicosia, Cyprus (“Leadcapital)
(2) _________________________________ (the “Affiliate”).
(A) Leadcapital has a valid license issued by the Cyprus Securities and Exchange Commission to offer investment services, including transactions in foreign exchange (Forex) and other financial products such as Contracts For Difference (CFDs), futures, Binary Options and other forms of derivatives. Leadcapital, through service providers, establishes, operates and manages a dealing room and an internet based trading system which enables Customers to trade in foreign exchange (Forex) and other financial products.
(B) The Affiliate is willing to promote and market the Websites promoted by Leadcapital and Leadcapital is willing to consider the Leads and/or Qualified Market Traders attributed to the Affiliate subject to and in accordance with the terms and conditions set out in this Agreement.
1. DEFINITIONS and INTERPRETATIONS
1.1 In this Agreement (which expression includes the Recitals, Clauses, Sub-Clauses and Schedules unless the context otherwise requires) unless otherwise specified:
(a) Words in the singular include the plural, words in any gender include every gender and words meaning persons include bodies corporate and natural persons; and (in each case) vice versa.
(b) Section headings are for description only and not used to interpret the Agreement.
1.2 The following terms shall have the following meanings:
Affiliate means a Prospective Affiliate or an Affiliate that has:
(a) been attributed to the Affiliate programme in Leadcapital’s customary tracking protocols, including but not limited to, the use of Leadcapital’s unique Affiliate identification code, cookies or otherwise;
(b) been accepted by Leadcapital in its sole and absolute discretion; and
(c) registered as an Affiliate.
Affiliated Party means any of the following:
(a) any member of Affiliates immediate family; and/or
(b) any of the Affiliate’s Related Entities, 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 Affiliate CPA [cost per activation] Plan:
Agreement means this Agreement made between Leadcapital and the Affiliate.
“Applicable Laws and Regulations” means CYSEC Rules or any other rules of a relevant regulatory authority and all other applicable laws, rules and regulations as in force from time to time.
Branding means any marketing and/or promotional materials relating to Leadcapital and/or Leadcapital’s brands that are promoted by Leadcapital and/or Leadcapital Related Entities as and when Leadcapital deems it necessary or appropriate.
Creative and Creative Information is the creative or other marketing and/or promotional materials relating to Leadcapital, Leadcapital Related Entities and/or the Platforms that the Affiliate has access to.
Customer means any legal or natural person that has opened an account and commenced trading with Leadcapital.
Disqualified Lead means a Lead and/or unique user that has failed to provide Leadcapital with a unique user’s verifiable name, address and contact details on registration.
Fees mean the Fees as set out in Schedule 1 of this Agreement.
Fraud means an actual or attempted act by you or any client which is (i) illegal in any applicable jurisdiction, (ii) made in bad faith, or (iii) intended to defraud us or any of the Sites and/or circumvent any contractual or legal restrictions, regardless of whether such act or attempted act actually causes us or any of the Sites any damage or harm. Fraud shall include, without limitation, collusion; abuse of bonuses or other promotions; violation of money-laundering or other laws and regulations; Spamming; false, misleading or unauthorized advertising or representations; use of stolen credit cards; and unauthorized use of any intellectual property rights (including third parties’ and any of our or the Sites’ rights).
Guidelines means Leadcapitals compliance guidelines as to suitability and qualifications of Customers.
Lead means any unique user that has registered themselves via the Websites introduced by the Affiliate and that has provided Leadcapital with the unique user’s verifiable name, address and contact details on registration. The unique user shall only be recognized for one account per user and/or one account per household.
Malware, Scumware and Spyware means 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.
Names, Trademarks and Marks mean any names and/or Trademarks or any other protected marks associated with Leadcapital.
Promotion Mails means graphical artwork or text regarding specific promotion campaigns, sent by Leadcapital from time to time for dissemination by the Affiliate and/or Introducer.
Prospective Affiliates means any other marketing organizations and/or website owners and/or operators that may be Potential Affiliates of Leadcapital.
Qualified Markets Trader means a Customer who was introduced to Leadcapital by the Affiliate and identified by the Leadcapital Tracker ID, provided that:
(a) Leadcapital confirms that the Affiliate is included in the Affiliate Program and linked to the Site(s) in accordance with this Agreement; and/or
(b) the Customer has been approved by Leadcapital and has made a minimum real money deposit specified in Schedule 1 of this Agreement; and/or
(c) with respect to Affiliates paid under Leadcapital’s CPA plan detailed in Schedule 1 of this Agreement only, Customer has generated spreads in the amount specified in the CPA table detailed in Schedule 1 of this Agreement; and/or
(d) the Customer is not already registered to the Site under a different name or with a different identity; and
(e) has complied with all applicable legal, administrative and regulatory requirements.
Related Entity and Related Entities means any entity that, directly or indirectly, controls, is controlled by, or is under common control with Leadcapital, the Affiliate and/or the Introducer; where "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of another, whether through the ownership of voting securities, by contract, as trustee or executor, or otherwise.
Scalping means a trading strategy that attempts to profit from small and short-term price changes, taking advantage of arbitrage in pricing due to latency or other issues with the trading platform – these abusive trading strategies are not acceptable by the company. Other non-abusive scalping strategies are acceptable.
Sites and Websites are the websites (and all their related pages) promoted by Leadcapital.
Spam means emails and messages that meet any one or more of the following criteria: (i) unsolicited mailing, usually sent to a large number of addressees; (ii) contains false or misleading statements; (iii) does not truthfully identify the source or the originating IP Address and / or the originating email address; (iv) does not contain an online and real time Remove option, (v) bundles certain software with other software, or (vi) inserts icons or causes software download or installation or similar action without the consent of the addressee.
Text Links and Banners means the hyper-linked graphical artwork or texts that are used to direct Customers from the Affiliate’s website to Leadcapital’s Sites using trackers.
2. ALLOCATION OF DUTIES, RIGHTS AND RESPONSIBILITIES
2.1 During the term of this Agreement, the Affiliate will use best efforts and devote reasonable amounts of time, personnel and resources to promote and market the Website banners with respect to the arrangement to bring Leads and/or Qualified Market Traders to Leadcapital and might also introduce to Leadcapital potential Customers in accordance with the procedures detailed in this Agreement. The Affiliate will bear all costs and expenses for activities unless otherwise determined by Leadcapital. The Affiliate is obliged to inform Leadcapital upon request for any website that the Affiliate will use to promote and market the Website banners to ensure the Affiliate’s compliance with Leadcapital’s Guidelines and ensure that all such websites are in accordance with Cyprus Securities and Exchange Commission regulations, directives and guidelines. In case that the Affiliate refuses to provide all requested information to Leadcapital, the latter may terminate the Agreement.
2.2. Neither an Affiliate nor any Affiliated Party, other connected parties and/or Related Entities are eligible to become Qualified Market Traders under the Affiliate’s own Tracker ID(s) given to the Affiliate by Leadcapital after registration and will not be eligible to receive the applicable commission, fees and/or payments whatsoever.
2.3 The Affiliate might introduce Customers to Leadcapital and such introduction under this Agreement shall be made when the Affiliate provides Leadcapital with potential Customers’ details and by completion of the electronic form found in the Websites by the Customer which shall be returned and submitted to Leadcapital by the Customer via the Websites for the purpose of complying with the Know Your Client (KYC) procedures and assessing the suitability and qualifications of Customers under the Company’s Guidelines and (without limitation whatsoever) under any other provisions of law relating to due diligence and bona fides and with all requirements under The Prevention and Suppression of Money Laundering and Terrorist Financing Laws of 2007 and 2010, Law 188 (I)/2007relating to due diligence and bona fides of customers. Leadcapital shall not be required under any circumstances to reveal the Guidelines to the Affiliate or the Customers. Upon Leadcapitals request the Introducer shall disclose any information that is required by Leadcapital in respect to the details of the Customer.
2.4 Leadcapital shall have the right to accept or reject any potential Customer in its sole and absolute discretion, and shall have no liability whatsoever for any rejection. If a potential Customer has been rejected by Leadcapital for any reason or for no reason, the Introducer shall have no further rights under this Agreement with respect thereto.
2.5 If a potential Customer is already a Customer of Leadcapital or in the process of applying for becoming a Customer of Leadcapital, or has been introduced to Leadcapital by others, Leadcapital shall give notice to the Introducer, and the Introducer shall have no rights whatsoever with respect to the introduction of such potential Customer.
2.6 Any Customer that has opened an account with Leadcapital and commenced trading becomes a "Customer" for the purposes of this Agreement. Evidence and confirmation is in the form of an online report provided by Leadcapital to the Introducer.
2.7 Leadcapital will be solely responsible for accepting and safeguarding Customers’ funds in accordance with legislative requirements.
2.8 It is Leadcapital’s sole responsibility to execute Customers’ orders received by the Introducer in accordance with Leadcapital’s Best Order Execution Policy.
2.9 It is Leadcapital’s sole responsibility to maintain the required records in connection with all Customers, and for monitoring Customers’ accounts and collecting margin in line with the trading mechanisms in force.
2.10 - Positions held for less than five (5) minutes, which the company believes, under its sole discretion, were abusive, are prohibited. As such, no spread generated from such trading will count in a revenue-share deal. The company reserves the right to immediately terminate this Agreement if the Affiliate introduces clients who employ abusive trading strategies. In such cases, the company may forfeit any and all profits and rebates from the Affiliate.
2.11 All Branding will be provided by Leadcapital only and is provided on an "as is" basis and without any warranty.
2.12 The Affiliate may display Branding on the Affiliate’s Websites solely for the purpose of marketing and promoting the brands promoted by Leadcapital and/or by Leadcapital Related Entities during the term of this Agreement, or earlier as instructed by Leadcapital. Lead Capital may at any time and in its absolute discretion, instruct the Affiliate to cease displaying Branding.
The Affiliate will use only Leadcapital’s approved Text Links and Banners and Promotion Mails and will not alter their appearance, design or content, unless Leadcapital gives the Affiliate its prior written authorization. At the Affiliate’s request, Leadcapital will provide a code to enable posting of rotating banners in the Affiliate’s Websites. The Affiliate understands and acknowledges that the appearance and contents of Leadcapital’s Text Links and Banners and Promotion Mails constitute the only authorized and permitted representation of the Sites.
The Affiliate will be solely responsible that all the content of the Affiliate’s Websites is original or otherwise is permitted to be published by the owner. The Affiliate may not alter, amend, adapt or translate Branding without Leadcapital’s prior written consent or remove or alter any "TM," "™," copyright or other proprietary notice or designation without Leadcapital’s prior written consent.
Nothing contained in any Branding shall in any way be deemed a representation or warranty of Leadcapital or any Leadcapital Related Entity.
Registering and Tracking Clients
2.13 Leadcapital will register the users of the Affiliate’s Websites and track their trading activity, and will calculate the amounts payable to the Affiliate in accordance with the applicable payment plan. Leadcapital reserves the right to require the Sites to refuse new clients or to close the accounts of existing clients. if necessary in its sole discretion in order to comply with any requirements Leadcapital may periodically establish, including without limitation with regard to Fraud, unlawful activity, breach of the respective Site’s terms and conditions of use, or otherwise.
2.14 Leadcapital will provide the Affiliate with remote online access to reports regarding client activity. Leadcapital will not be liable for the completeness or accuracy of any reports.
Commitment for Confidentiality
2.15 Leadcapital is committed at all times to the secrecy and confidentiality of the Affiliate’s identity and information. However, Leadcapital shall be entitled to inform relevant authorities, banks, credit card companies, electronic payment providers or other financial institutions of the Affiliate’s identity and of any suspected unlawful, fraudulent or improper activity, and the Affiliate will cooperate fully with Leadcapital to investigate any such activity.
Verification of Affiliate Identity
2.16 Leadcapital prohibits and actively prevents money laundering and any activity that facilitates money laundering or funding of terrorist or criminal activities. Leadcapital will verify the Affiliate’s identity through the information provided by the Affiliate and by obtaining information from public sources and data. Leadcapital will make its best efforts to reasonably ensure that Leadcapital knows the true identity of any of its Affiliates.
Unauthorised and Prohibited Marketing Activities
2.17 The Affiliate will not make any claims, representations or warranties in connection with Leadcapital or any of the Sites, and the Affiliate will not be authorized to make any commitment or assume any liability or obligation on Leadcapital’s behalf or on behalf of any of the Sites.
The Affiliate will be solely responsible for the operation and content of their Websites, including ensuring that materials posted on the Affiliate’s Websites are not, or, if notified by us in our discretion, otherwise unsuitable. The Affiliate shall not, in any of its dealings relating to Leadcapital, Leadcapital Related Entities and/or to the Websites:
(a) use Malware and/or Spyware techniques, or any other aggressive advertising or marketing methods;
(b) make any "use of Scumware" or use any other predatory advertising or marketing methods;
(c) make any false, misleading or disparaging representations;
(d) use or cause Spamming;
(e) in any way alter, affect or interfere with the operation or accessibility of the Sites or any Site page.
(f) engage in any other practices which may adversely affect the high image, credibility, goodwill or reputation of Leadcapital , Leadcapital Related Entities or to the Websites, including but not limited to, having content on 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 and/or libelous, obscene or otherwise illegal; and/or
(ii) violates any intellectual property or other proprietary rights of any third party.
2.18 The Affiliate may in addition to its activities described in Section 2.12 above identify Prospective Affiliates for Leadcapital subject to these terms and conditions.
In the event that a Prospective Affiliate becomes an Affiliate as a result of introduction by a current Affiliate, the Prospective Affiliate must enter into an agreement with the same terms as this Agreement. The current Affiliate shall provide Leadcapital with all information as required on the Prospective Affiliate to assess credentials and compliance with Anti-Money laundering requirements. The current Affiliate shall be entitled to receive Fees as set out in Schedule 2 to this Agreement, in relation to the Prospective Affiliate.
Compliance with Laws
2.19 In addition to, and without limiting the provisions of this Agreement, the Affiliate shall perform its obligations hereunder in accordance with Leadcapital’s Guidelines, industry standards and in compliance with all applicable laws, rules and regulations.
2.20 The Affiliate agrees to provide Leadcapital any of its supporting documents as requested, including an individual’s valid passport copy, valid driving license copy, a copy of a utility bill, a letter of reference from the Affiliate’s bank, and a copy of a bank statement. Or a company’s copy of the company’s certification of incorporation, articles of association (or equivalent document), duly approved corporate resolution, a certificate of good standing, power of attorney, and information regarding the identity of the beneficiary owner of the company and the identity of the directors of the company.
The Affiliate is aware that Leadcapital has the right to delay payments if any of the Affiliate’s supporting documents are not provided.
2.21 Leadcapital has zero tolerance for inappropriate conduct and fraudulent activity. The Affiliate will not engage in, allow, assist, promote, encourage or benefit from, directly or indirectly, any act or traffic that involves Fraud. The Affiliate will act at all times to refrain from, immediately stop and not allow any act or traffic that involves Fraud or that the Affiliate believes or should reasonably believe to potentially involve Fraud, or any act or traffic that is suspected by Leadcapital in its discretion to involve or potentially involve Fraud and informs the Introducing Broker of such suspicion.
Duty to Inform
2.22 The Affiliate shall promptly inform Leadcapital of any information known to the Affiliate related to any Customer that could reasonably lead to a claim, demand or liability of or against Leadcapital and/or Leadcapital Related Entities by any third party.
3. COMMISSION, FEES AND PAYMENTS
3.6 The Affiliate shall be entitled to receive the Commissions as set forth on Schedule 1 (the "Commissions"), due and payable within fifteen 15 days after the end of the applicable month provided all the Affiliate account details provided are correct. Payment is made to the owner of the Affiliate account only. Leadcapital shall issue a statement to the Affiliate by the 15th day of the applicable month. Leadcapital reserves the right to modify the Commissions and/or the payment terms at any time upon reasonable advance notice to the Affiliate. The Commission will be paid only with respect to Customers who have become Customers of Leadcapital, have commenced trading with Leadcapital and after receipt by Leadcapital of an introduction from the Affiliate. No fee will be paid if a Customer is already in the process of becoming a Customer of Leadcapital.
3.7 Leadcapital in its sole discretion shall withhold the payment of any outstanding commissions to any Affiliate should Leadcapital consider that:
(i) the Affiliate has created false account(s) for the purposes of generating Accruals; and/or
(ii) the Customers introduced to Leadcapital by the Affiliate makes an initial deposit but does not trade.
4. COMMENCEMENT AND TERMINATION
4.1 This Agreement has effect as from the date the Affiliate registered on Leadcapital’s branded websites. The Affiliate registers when the Customer completes the relevant registration forms on Leadcapital’s website.
4.2 Either party may terminate this Agreement at any time upon delivery of at least fourteen (14) days prior written notice of such termination to the other. If the Company terminates the Agreement pursuant to this sub-clause, Leadcapital will continue to pay the Fee on business already introduced for a further month from the termination date.
4.3 This Agreement will terminate immediately and without notice:
4.3.1 if the Affiliate fails to obtain, or ceases to hold, any license and/or authorization required to carry out the activities contemplated by this Agreement;
4.3.2 if the Affiliate breaches any representation or warranty given by it in this Agreement or breaches any other term of this Agreement; and/or
4.3.3 in the event of the insolvency, bankruptcy or administration of the Affiliate (or analogous event);
4.3.4 (where the Introducer and/or Affiliate is an individual) in the event of the death of the Affiliate;
4.3.5 if the Affiliate acts dishonestly in its dealings with Leadcapital and/or Leadcapital’s Customers;
4.3.6 if the Affiliate engages in conduct with Leadcapital and or Leadcapital’s Customers which Leadcapital considers is irregular (i.e. not according to established and/or expected standards of behavior), misleading, deceptive and/or unethical;
4.3.7 if the Affiliate does not comply with any Applicable Laws and Regulations in the conduct of its business.
4.4 If Leadcapital, at its sole discretion and in good faith, reasonably determines that Affiliate’s Customers commits any of the actions detailed in sections 2.12, 2.21, 4.23, 4.3.1 to 4.3.7 above and/or reasonably determines that Affiliate’s Customers:
(a) show abnormal trading activity or are adopting trading strategies aimed at exploiting misquotation or are generally deemed to be acting in bad faith (commonly known as “Sniping”); and/or
(b) is trading at market prices that could not be verified with Leadcapital’s liquidity providers and the Introduced Customer is profiting from such activity through the receipt of commissions from Leadcapital;
Leadcapital shall be entitled to:
4.4.1 terminate this Agreement forthwith upon written notice; and/or
4.4.2 terminate the account or accounts affected by abnormal trading or abuse; and/or
4.4.3 withhold the payment of any outstanding commissions and retrieve from the Affiliate’s and/or Introducers commissions any historic trading profits that have been gained from such abuse of liquidity as determined by Licensor at any time at its discretion; and/or
4.4.4 suspend quoting, widen the price spreads or take any other action Leadcapital deems necessary to avoid abnormal or abusive trading.
Such action against single accounts shall not affect Leadcapitals right to terminate the entire Agreement forthwith at any later time due to abnormal trading or abuse.
4.5 If the Agreement is terminated pursuant to clauses 4.3 and 4.4, Leadcapital shall have the right to:
(i) immediately enjoin all such activity, without the necessity of showing damages
(ii) receive a prompt refund of all amounts paid to the Affiliate and/or Introducer hereunder and
(iii) be indemnified for any losses, damages or liability incurred by Leadcapital in connection with such violation, in accordance with the provisions of Section 7.3 below.
4.6 Following the termination of this Agreement, Clauses 5, 6, 7, and 8 shall remain in force and effect.
4.7 Upon termination of this Agreement:
(a) each Party shall return to the other Party all property of the other Party in its possession or control (including all Creative and all Confidential Information);
(b) all rights granted to the Affiliate hereunder will immediately cease. Leadcapital shall be entitled to receive the outstanding balance of monies owed to Leadcapital up to the effective date of termination, during the one (1) month period immediately following the effective date of termination of this Agreement unless termination is due to fraudulent accounts/activity. If an account is closed due to fraudulent activity, Fees or Commissions received from the trading activity of the closed account will be withdrawn; and
(c) the Affiliate shall immediately cease displaying any Creative on any Website or otherwise.
5 PROPRIETARY RIGHTS
Proprietary Rights of Leadcapital
5.1 As between the the Affiliate and Leadcapital, the Leadcapital Marks, all Branding, demographic and other information Prospective Affiliates and Affiliates, Leads, Qualified Market Traders, the Websites and all software, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, Websites, and any additional intellectual or other property used by or on behalf of Leadcapital or otherwise related to the Websites, together with all copyrights, Trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, "Leadcapital Property") shall be and remain the sole and exclusive property of Leadcapital. Nothing in this Agreement shall confer in the Affiliate any right of ownership in the Leadcapital Property and all use thereof by the Affiliate shall ensure to the benefit of Leadcapital
To the extent that ownership of any Leadcapital Property does not automatically vest in Leadcapital by virtue of this Agreement, or otherwise, the Affiliate hereby transfers and assigns to Leadcapital, upon the creation thereof all rights, title and interest the Affiliate may have in and to such Leadcapital Property, including the right to sue and recover for past, present and future violations thereof.
The Affiliate acknowledges and agrees that the Affiliate shall not, now or in the future, contest the validity of any Leadcapital Property or use any term or mark confusingly similar to any Leadcapital Property. The Affiliate will use the Leadcapital Marks in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by Leadcapital;
Affiliate Use of Business IP License
5.2 During the term of this Agreement, Leadcapital hereby grants to the Affiliate a revocable, non-exclusive and non-transferable limited license to use without any warranty, the Trademarks, brand Names, logos, graphical designs and similar intellectual property used by Leadcapital in connection with Leadcapitals Business (the "Business IP") solely as necessary to perform the Affiliate’s obligations under this Agreement and in accordance with any guidelines provided by Leadcapital from time to time. Said license shall be subject at all times, without limitation, to the restrictions imposed in connection with making any representations relating to Leadcapital or their products and services and to the other restrictions set forth in this Agreement. Leadcapital may at any time, at its sole discretion, instruct the Affiliate to cease the use of the Business IP in any activity or manner in which such Business IP is used. If such demand to cease (a) is a result of any regulatory requirement, or (b) relates to Business IP not specifically approved by Leadcapital for use by the Affiliate, then the Affiliate shall be required to immediately and without delay cease the use of such Business IP at such demand of Leadcapital. If such demand to cease is made under circumstances other than those set forth in the preceding sentence, the Introducer and/or Affiliate shall have thirty (30) days to comply with such demand and cease using such Business IP.
Affiliate Use of Name, Trademark, Symbol
5.3 No party to this Agreement will use the name, trademark or symbol that is now or may hereafter be owned by the other party, or any affiliate, except in the manner and to the extent that such party may specifically authorise in writing prior to such use.
5.4 Pay Per Click campaign using any Leadcapital brand Names as keywords e.g. “Stock.com” are not allowed. For avoidance of doubt, any Pay Per Click campaign (or similar marketing campaign, such as Google Adwords, Yahoo Pay Per Click advertising, MSN Pay Per Click advertising and contextual keyword targeted campaigns) resulting in the redirection of a potential customer to Company’s Websites using any Leadcapital brand Names as keywords including but not limited to, “Stock.com shall NOT be viewed as an introduction and such customer shall not be deemed a Customer entitling the Introducer to any fees or compensation under this Agreement
Data Relating to Clients
5.5 Any and all data relating to the clients shall be and remain our exclusive property.
6 CONFIDENTIALITY AND DATA PROTECTION
6.1 Each Party acknowledges and agrees that any and all information associated with the other Partys business and not publicly known, including, but not limited to, the contents of this Agreement, specific trading information, technical processes and formulas, source codes, client lists, prospective client lists, Names, addresses and other information regarding clients and prospective clients, product designs, sales, costs, and other unpublished financial information, business plans and marketing data, is confidential and proprietary information ("Confidential Information"), whether or not marked as confidential or proprietary.
6.2 Each Party agrees to use the other Partys Confidential Information solely as necessary for performing its obligations hereunder and that the Confidential Information will not be released or disclosed to any third party whatsoever without the prior written consent of Leadcapital.
Each Party agrees that it shall take all reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the duplication, disclosure or use of any such Confidential Information, other than:
(a) by or to its employees, agents and subcontractors who must have access to such Confidential Information to perform such Partys obligations hereunder, who each shall treat such Confidential Information as provided herein; or
(b) as required by any law, regulation, or order of any court of proper jurisdiction over the Parties and the subject matter contained in this Agreement. Confidential Information shall not include any information which is:
(i) in the public domain, or is already known by or in the possession of the non-disclosing Party, at the time of disclosure of such information;
(ii) is independently developed by the non-disclosing Party without breaching any provisions of this Agreement; or is thereafter rightly obtained by the non-disclosing Party from a source other than the disclosing Party without breaching any provision of this Agreement.
6.3 Each party agrees to comply with the Data Protection Act of Cyprus and to process all personal data in accordance with that Act.
7 REPRESENTATIONS AND WARRANTIES
7.1 Without derogating from, and in addition to, any of the Affiliate’s other representations, warranties, covenants and obligations contained in this Agreement, the Affiliate hereby represents and warrants to Leadcapital the following: (1) the execution, delivery and performance by the Affiliate of this Agreement and the consummation by the Affiliate of the transactions contemplated hereby will not conflict with or violate any provision of law, rule, regulation or agreement to which the Affiliate is subject to; (2) it has the capacity and authority to execute this Agreement; and (3) the Affiliate is not involved or intends to be involved in or is aware of any act or traffic that involves the Affiliate’s Website and that constitutes or can be reasonably expected to constitute Fraud or illegal activity, including but not limited to money laundering, under any applicable law, rule or regulation.
7.2 The Affiliate agrees to (i) comply at all times with all laws and rules that are applicable to the provision of its services hereunder; (ii) maintain all licenses and permits and obtain all consents and other approvals required for the provision of its services hereunder, (iii) perform its services in a manner designed to avoid incurring any damage to Leadcapital or their property, assets, reputation or goodwill; (iv) keep detailed books and records of its activities and provide Leadcapital upon its request with information relating to its activities under this Agreement; (v) maintain the integrity and security of personal data in compliance with applicable laws and regulations, including any requirements made by Leadcapital under its internal guidelines; and (vi) provide the Company with prompt notice of the occurrence of or any intent to effect a change of ownership or control of the Affiliate.
Indemnification and Limitation of Liability
7.3 The Affiliate hereby shall indemnify and hold harmless Leadcapital and its affiliates or subsidiaries, and their respective officers, directors, employees, and agents against all costs, expenses, fines, penalties, losses, judgments, damages, liabilities and other amounts (including without prejudice to the generality of the foregoing, lawyers’, actuaries’, accountants’ and experts’ fees and settlement amounts) arising out of any suit, claim or proceeding in connection with this Agreement and resulting from (i) any failure of the Affiliate to comply with any or all of the terms of this Agreement, (ii) any breach of any representation or warranty by the Affiliate (iii) any act or omission by the Affiliate or subsidiary, or any officer, director, employee, or agent of each of the foregoing; and (iv) any act of dishonesty or fraud by the Introducer and/or Affiliate in the conduct of the Affiliate’s business or in relation to any matter under this Agreement.
Other than the obligation of Leadcapital to pay to the Affiliate the Fees in accordance with the terms hereof, the maximum aggregate liability of Leadcapital or Leadcapital for any liability arising under or in connection with this Agreement, except in the case of death, bodily injury or fraud, howsoever arising, shall be limited to US$ 25,000.
8 GENERAL PROVISIONS
8.1 If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action (including, but not limited to, any law, regulation or embargo prohibiting the performance contemplated hereunder and/or the failure or refusal of a government agency to issue a license required for any performance pursuant to this Agreement), labor disputes, act of God or any cause beyond the reasonable control of that Party, the Party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such cause. Notwithstanding anything herein to the contrary, the Party prevented from performing hereunder by a force majeure event shall nevertheless use its best efforts to recommence its performance hereunder as soon as reasonably practicable and to mitigate any damages resulting from its non-performance hereunder.
Relationship of Parties
8.2 The relationship between Leadcapital and the Affiliate under this Agreement shall be that of independent parties. Nothing in this Agreement shall be construed to create the relationship of employer and employee, a joint venture, a partnership, association or other legal relationship between Leadcapital and the Affiliate and under no circumstances shall the the Affiliate be deemed, construed or hold itself out to be acting as a broker or agent of Leadcapital.
8.3 This Agreement does not authorise the Introducer or its directors, officers, representatives or employees to bind the Company by any statement, promise, representation, warranty or covenant or to conduct any dealings whatsoever with any person.
8.4 This Agreement does not authorise the Introducer to make any representations in respect of the Company or any of its products and services.
8.5 Each party acknowledges that it is not entering into this Agreement in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any condition, warranty or other term implied by law or otherwise is excluded from this Agreement to the fullest extent permitted by law. In particular, the parties acknowledge that Leadcapital provides no warranty, representation or assurance whatsoever as to, and excludes all liability in respect of the suitability for use in any jurisdiction outside Cyprus of any marketing materials, information or documents supplied or made available from time to time by Leadcapital to the Introducer under or in connection with this Agreement. It is hereby agreed between the parties that it is the responsibility of each party to ensure that any marketing material, information or documents provided to Customers are in accordance with the laws of the country to which such material is used and promoted.
8.6 Nothing contained in this Agreement shall be construed as giving the Affiliate the right to incur any indebtedness on behalf of Leadcapital.
8.7 The parties agree that no exclusive rights are granted or created by this Agreement and that each party hereby reserves the right to establish other referral arrangements in their sole and absolute discretion.
8.8 Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (a) by e-mail to the Party to which the same is directed and/or (b) by telephone call to the respective telephone numbers of the Parties.
8.9 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 Partys 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.
Entire Agreement, Amendments, Counterparts, Authority
8.10 This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior contracts and agreements, if any, between the parties hereto.
8.12 Any modification of or amendment to this Agreement between the Affiliate and Leadcapital shall be published in the Sites. Affiliates shall receive notice by electronic mail of publication of such amendments to the Agreement and the Affiliate shall be granted seventy two (72) hours from receipt of such notice given by electronic mail to contact Leadcapital’s Affiliate Manager and express agreement or disagreement with such changes. No contact with Leadcapital during these 72 hours shall imply that the Affiliate agrees with such modifications. Should the Affiliate express a disagreement with such changes, the Affiliate has the right to terminate this Agreement.
8.13 This Agreement may be executed in any number of counterparts all of which, taken together, shall constitute one and the same instrument.
8.14 The the Affiliate represents that it has the capacity and authority to execute this Agreement, and the execution, delivery and performance of this Agreement does not violate the terms of any other agreement to which it is a party or any material law or regulation to which it is subject. The Affiliate represents that it is fully authorised and/or licensed (if applicable) in the jurisdiction(s) governing its activities to conduct the activities contemplated by this Agreement.
8.15 If any term or provision in this Agreement shall in the whole or in part be held to any extent to be illegal or unenforceable under any enactment or rule of law, that term or provision or part shall to that extent be deemed not to form part of this Agreement and the enforceability of the remainder of this Agreement shall not be affected thereby.
Remedies and Injunctive Relief
8.16 Leadcapital’s rights and remedies hereunder shall not be mutually exclusive, i.e., the exercise of one or more of our rights or remedies in connection with this Agreement shall not preclude the exercise of any other right or remedy. The Affiliate acknowledges, confirms and agrees that damages may be inadequate for a breach or a threatened breach of this Agreement and, in the event of a breach or threatened breach by the Affiliate of any provision of this Agreement, Leadcapital’s rights and obligations may be enforceable by specific performance, injunction, or other equitable remedy. Nothing contained in this Agreement shall limit or affect any of our rights at law, contract or otherwise, for a breach or threatened breach of any provision of this Agreement, it being the intent of this provision to make clear that our respective rights and obligations shall be enforceable in equity as well as at law or otherwise.
Assignment and Delegation
8.17 The benefit, rights, responsibilities and obligations arising under this Agreement may not be assigned or delegated by the Affiliate either in whole or in part without the prior written approval of Leadcapital.
8.18 The Affiliate hereby undertakes to inform the Customer, in writing, via email or via telephone, prior to Leadcapital offering the Customer Leadcapital’s business, that the Affiliate has entered into this Agreement. The Affiliate undertakes to comply with all legal and regulatory requirements in relation to the receipt of Fees and/or Commissions under this Agreement. The Affiliate hereby further undertakes to disclose to the Customer, upon the Customer’s request, details of Fees and/or Commissions to be payable to the Affiliate under the terms of this Agreement.
Governing Law and Jurisdiction
8.19 This Agreement shall be governed, construed and enforced in accordance with the laws of the Republic of Cyprus. Each Party agrees that any legal action, proceeding, controversy or claim between the Parties arising out of or relating to this Agreement may be brought and prosecuted only in a court of law in the Republic of Cyprus, and by execution of this Agreement each Party hereto submits to the exclusive jurisdiction of such court and waives any objection it might have based upon improper venue or inconvenient forum.
Leadcapital The Affiliate [
By: ________________________ By: ________________________
Name: ________________________ Name: ________________________
Title: ________________________ Title: ________________________
Date: ________________________ Date: ________________________