This is a legal contract between Ava Trade Ltd., a private company (the "Company") its successors and assigns, and you (the "Marketing Partner") executing this document. This document, together with the Terms and Conditions set on my.avapartner.com.
Company hereby grants Marketing Partner the non-exclusive, non-transferable right to market the Company's CFD trading services and direct Customers (also referred to as Traders or Clients) and potential customers to use the Company's CFD Trading Services in accordance with the terms detailed.
The Company does not supervise the activities of Marketing Partner and assumes no liability for any representations made by Marketing Partner. The Company and Marketing Partner are wholly separate and independent from one another. This Agreement between the Company and Marketing Partner does not establish a joint venture or partnership and Marketing Partner is not an employee of the Company.
These terms and conditions are applicable on the entire contractual relationship between Company and MARKETING PARTNER and form together with the Terms and Conditions set on my.avapartner.com the entire agreement containing Particular Terms and Conditions signed by the parties the license agreement (Agreement).
1.1 Headings are for ease of reference only and shall not affect the interpretation of the Agreement.
1.2 The Company or third parties may have provided Marketing Partner with a translation of the Agreement. However, in case of discrepancies the English version shall prevail over the other version
1.3 In the Agreement any reference to an individual person shall include body corporate, unincorporated associations, partnerships and individuals.
1.4 The Agreement covers the relationship between the Company and Marketing Partner. Where Marketing Partner gives instructions to the Company on behalf of a Client, the Particular Terms and Conditions applies and, in case of conflict, prevails over this General Terms.
1.5 The Agreement covers Marketing Partner's right to market the Company. This includes the right to implement links to certain of the Company's web-based services on a proprietary website run by Marketing Partner.
1.6 Marketing Partner agrees to actively market the Trading Platform(s) and any other of the Company's Services towards potential Clients.
2. Marketing Partner's declarations and obligations.
Marketing Partner hereby undertakes to:
2.1 Comply in all respects with all applicable laws, regulations and approvals.
2.2 Conduct itself in a professional manner in accordance with industry standards so as not to cause disrepute or ill favor to the Company.
2.3 Comply with and act in accordance to the Company's Terms and Conditions, as may be amended from time to time, and other policies of the Company relating to the trading services and marketing of the Company.
2.4 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. 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, Marketing Partner will cease use of such materials or manner of use.
2.5 Comply with all reasonable instructions received from the Company regarding the content, nature and location of any campaigns or materials
2.6 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.
2.7 No to 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.
2.8 Marketing Partner cannot amend any of the Trading Conditions and/or the Terms and Conditions set out in the Company's website without prior written approval from the Company. In case such amendment is approved by the Company, Marketing Partner shall be responsible to notify any relevant Client.
2.9 Marketing Partner shall provide the Company with copies of and summaries of pending any claims or litigation with or without connection to this Agreement within 5 days of having received notice of such.
2.10 Marketing Partner represents and warrants as follows:
2.10.1 All of Marketing Partner's employees, agents and associated persons, to the extent required, have been and will continue to be duly recognized and licensed to participate in the transactions contemplated hereby.
2.10.2 Marketing Partner has power to enter into and perform this Agreement according to its terms and will, upon request, produce to the Company such board resolutions, partnership agreements or other documentation that the Company may reasonably request.
3. Services Provided
3.1 The Company developed and operates technology and services allowing traders to trade in CFDs online and offline. Marketing Partner shall provide negotiation to introduction services including but not limited to marketing the Company's CFD trading services and directing Customers and potential customers to use the Company's CFD Trading Services in accordance with the terms detailed.
4. The Company's Obligations
4.1 The Company shall provide Marketing Partner access to reports on my.avapartner.com detailing relevant information to the Marketing Partner with regards to Clients related to it.
4.2 The Company shall timely pay the Payments/Commission as detailed in Section 6 herein.
4.3 The Company shall make available to Marketing Partner access to my.avapartner.com which includes additional information and reports regarding its Agreement with the Company.
4.4 The Company represents and warrants as follows:
4.4.1 The Company has the power to enter into and perform this Agreement according to its terms.
4.4.2 The Company warrants that it is (or its associated companies are) the proprietor of the Company's Names and Trademarks or that it is duly authorized by the proprietor of the same to sublicense them to Marketing Partner on the terms of this Agreement.
5. Relationships with Clients
5.1 Marketing Partner should not represent itself as the Company, and should specify on its website (if it has any) of the nature of the relationship.
5.2 Marketing Partner will not attempt to bind the Company in any manner and not to use any trademarks or signs of the Company without prior written consent of the Company.
5.3 Marketing Partner acknowledges that all Customers introduced or directed to the Company are the Company's customers and any information about these Customers is the exclusive and sole property of the Company. Upon termination of this Agreement the Customers will remain the Company's customers.
5.4 Marketing Partner shall adhere to the Company restrictions and policies as detailed on my.avapartner.com. Such terms may be adjusted by the Company at its sole discretion
5.5 The Company shall be under no obligation whatsoever to accept as a Client any applicant in connection with the services provided by the Marketing Partner.
6.1 All costs of Marketing Partner in connection with its duties hereunder shall be borne solely by Marketing Partner and the Company shall under no circumstances participate in such costs, unless otherwise agreed in writing between the Parties.
6.3 Notwithstanding any other term herein, if the Company suspects or has reason to believe that Marketing Partner and/or a Customer was involved with or attempted arbitrage, CPA fraud and/or fraudulent activity, then Company reserves the right to:
(i) Withhold payment, at its sole discretion.
(ii) Terminate Marketing Partner and/or Customer’s access to services provided by Company, and/or terminate the contract for the provision of services between Company and Marketing Partner and/or Customer, as applicable.
(iii) Block Marketing Partner and/or Customer’s account and arrange for the transfer of any unused balance to Marketing Partner and/or Customer, as applicable.
“Fraudulent activity” shall include, without limitation, collusion between Marketing Partner and one or more Customers, collusion between two or more Customers, instances where Company reasonably believes that trading is intended to generate commissions or fees and not profits, and any other instance where Marketing Partner and/or a Customer has abused the Company’s terms of payment.
6.5 Unless otherwise agreed between the Parties in writing, payments will be done by the 15th day of month for the previous month by wire transfer to Marketing Partner bank account the details of which shall be provided to the Company by Marketing Partner from time to time.
7. Term and Termination
7.1 The duration of this Agreement will begin on the Effective Date and will continue in perpetuity unless it is terminated earlier in accordance with the provisions hereof ("Term").
7.2 Either Party may terminate this Agreement for convenience following a thirty (30) days' notice period pursuant to a written notice.
7.3 The Company may, by notice in writing to Marketing Partner, terminate this Agreement forthwith if any of Marketing Partner's representations ceases to be true, or if Marketing Partner is in breach of any term, condition or provision of this Agreement and either the breach cannot be remedied or Marketing Partner fails to remedy the same within 7 days of receipt of a Notice requiring it to do so.
7.4 Termination shall be without prejudice to any rights which accrued before termination. Marketing Partner shall be entitled to receive any fees in accordance with clause 6 above, which have accrued and are due payable to it as at the termination
8. Taxes. Each Party shall pay its own tax and duties.
9. Records, Reports.
9.1 It is in Marketing Partner's sole responsibility to associate Marketing Partner 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.
9.2 It is in Company's sole responsibility and obligation to track the activity of the Traders and all traffic associated with their Marketing Partner ID for the duration needed for the Company to fulfil its obligations under this Agreement in full.
9.3 Throughout the Term, The Company shall provide Marketing Partner with an online report.
10. Intellectual Property Rights
10.1 All of Company’s intellectual property, including without limitation all of Company’s Names and Trademarks and copyrights, whether or not registered and whether or not registrable, are and shall remain the sole and exclusive property of Company and/or its affiliated companies and Marketing Partner shall have no rights thereto except as explicitly provided herein. Without derogating from the generality of the foregoing, Marketing Partner shall not use any of the Company's Names and Trademarks other than in respect of this Agreement;
10.2 Marketing Partner shall not apply for or obtain registration, including by but not limited to trademark and internet domain names, of any of the Company's Names and Trademarks (or any trade or service mark which consists or comprises the Company's similar word or words or logo or parts hereof) for any goods or services in any country. In case such application and/or registration was done prior to this Agreement, Marketing Partner shall immediately transfer all such rights to the Company on its request;
10.3 Marketing Partner Shall not dispute or challenge the validity of, or the Company's rights to, any of the Company Names and Trademarks as registered or used by the Company during the term of this Agreement;
10.4 Each reference to the Company's Names and Trademarks shall be in a form agreed in writing in advance by the Company;
10.5 Any and all reference to the Company's Names and Trademarks by the Marketing Partner shall contain such acknowledgements of the Company's ownership of any and all intellectual property rights to the Company's Names and Trademarks as the Company may from time to time reasonably require;
10.6 Marketing Partner shall not do or admit others to do anything which may diminish or devalue the reputation, image or prestige of the Company or in any way impair any registration of The Company's Names and Trademarks;
10.7 Marketing Partner shall comply with regulations and practices in force or used in order to safeguard The Company's rights to the Company's Names and Trademarks and Marketing Partner shall cooperate fully with the Company in protecting such rights;
10.8 Marketing Partner shall promptly notify the Company of any contest of the validity or abuse of any of the Company's Names and Trademarks that Marketing Partner becomes aware of;
10.9 Marketing Partner shall indemnify the Company in respect of any and all costs, claims, damages, expenses, losses, demands and liabilities of whatsoever nature suffered or incurrence by the Company as a result of or in connection with the use of the Company's Names and Trademarks by Marketing Partner other than in accordance with this Agreement.
11. Litigation. 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.
12. Limitation of Liability. EXCEPT AS STIPULATED ABOVE, IN NO EVENT WILL THE COMPANY BE LIABLE TO MARKETING PARTNER AND/OR MARKETING PARTNER 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 AND EVEN IF SUCH DAMAGES ARE FORESEEABLE. IN ALL CASES, COMPANY'S MAXIMUM AGGREGATE LIABILITY TO MARKETING PARTNER AND ALL TRADERS RELATING TO COMPANY’S TRADING SERVICES OR THIS AGREEMENT, FOR ANY REASON, WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO MARKETING PARTNER BY COMPANY DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO A CLAIM FOR DAMAGES.
13.1 Marketing Partner shall indemnify the Company for any damage or expense incurred as a result of Marketing Partner's failure to abide by the obligations of any terms of this Agreement.
13.2 If the Marketing Partner is involved in advising clients on trading matters and or providing signals for clients to trade the Marketing Partner shall be responsible for and shall, as a primary obligation, indemnify and hold harmless the Company, its directors, officers, employees and affiliates, from and against any liabilities, claims, demands, proceedings, costs, damages, expenses (including legal fees) and penalties whatsoever arising out of:
13.2.1 Any failure on Marketing Partner's part or that of the Client to comply with an applicable law, rule or regulation; and
13.2.2 Any failure on the part of Marketing Partner to perform any obligation set out in this Agreement or any other agreement between the parties.
13.2.3 The un-authenticity or unenforceability of any contract entered into with the Client;
14.1 Marketing Partner shall keep confidential and not disclose except for the benefit of the Company at any time during this agreement or subsequent any trade secrets, techniques, ideas, know how, plans, concepts, data, and subject matter pertaining to the Company, its clients, or Customers which Marketing Partner may use or otherwise acquire during its relationship with the Company (the "Confidential Information").
14.2 Upon termination of this Agreement, Marketing Partner shall return to the Company any materials or data received by Marketing Partner from the Company.
14.3 At any time during the term of this Agreement the Company can demand that Marketing Partner return any materials or data it received from the Company.
14.4 The provisions of this Section 14 shall not prohibit the use or disclosure of information:
14.4.1 Which is or becomes public domain without breach of this Agreement by the party receiving Confidential Information; or
14.4.2 Which after execution of this Agreement is lawfully acquired from any third party who did not directly or indirectly acquire the same subject to any obligations of confidentiality.
15. 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:
15.1 For Company: ib@AvaTrade.com
15.2 Marketing Partner: ______________
15.3 Notice under this Agreement shall be deemed to be effectively given or made: on delivery to a party, if delivered personally or when sent by e-mail.
16. Parties Relationship. Marketing Partner and Company are independent entities. There is no employment, joint venture or partnership relationship between the Parties nor created by this Agreement. Neither party shall have any right or authority to act on behalf of the other or represent that it has such right or authority unless presented in this Agreement or subsequent written authorization.
17.1 This Agreement constitutes the entire agreement between the parties and nullifies any and all previous agreements both oral and written between the parties.
17.2 Failure by the Company to require strict compliance with any provision of this Agreement shall not constitute a waiver of the Company's rights upon that or any other occasion.
17.3 The invalidity or unenforceability of any part of this Agreement shall not prejudice the validity or enforceability of any other part.
17.4 This Agreement is personal and is not assignable otherwise than by the Company.
17.5 Variations to this Agreement shall be made in writing and signed by both parties, unless otherwise provided herein.
17.6 This is the entire Agreement of the parties and replaces any previous Marketing Partner Agreements or discussions.
17.7 This Agreement shall take effect, when signed or accepted by both parties, unless another date is specifically stipulated.
18. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of England without regard to conflict of laws. Exclusive jurisdiction in any action or proceeding arising out of or relating to this Agreement will be placed in the relevant courts residing in England ("Jurisdiction Courts"), and each party waives any objection to proceedings in the Jurisdiction Courts.