This Agreement is entered into by B.O.Tradefinancials Ltd., a private company registered under the laws of the Republic of Cyprus having its registered office at Ioanni Styliamou 6 2nd Floor, Office 202 2003 Nicosia, Cyprus (hereinafter referred to as: the “Affiliates Program Manager”) and Affiliate (hereinafter referred to as: “Affiliate”) (In this Agreement the Affiliates Program Manager and Affiliate may be referred to collectively as the: “Parties”).
The Affiliates Program Manager provides affiliates program management services to the OptionFair brand, its owners and operators (together, “OptionFair”). As such, the Affiliates Program Manager is authorized to enter into this Agreement for the benefit of OptionFair.
1.1. The clause headings are included for convenience only and shall not affect the interpretation of this Agreement.
1.2. Any phrase introduced by the terms “including”, “include” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.3. Any reference to “persons” includes natural persons, firms, partnerships, companies, corporations, associations, organizations, governments, states, governmental or state agencies, foundations and trusts (in each case whether or not having separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists).
In this Agreement, the following terms and words shall have the following meanings unless stated otherwise:
2.1. “Affiliate Commission” means the amount due and payable to Affiliate, as calculated based solely on the data collected by the software with which OptionFair is operated and in accordance with the terms of this Agreement and Exhibit A.
2.2. “Affiliate Commission Account” means the account into which Affiliate receives pursuant hereto. All payments due to Affiliate are paid into Affiliate Commission Accounts, unless specifically agreed otherwise.
2.3. “Affiliate Area” means the area of the tradefinancialpartners.com website that is accessible only to Affiliates and that provides certain ´members only´ functionality, including facilities to check relevant statistics, register Sub-affiliates, update Affiliate’s profile, create additional tracker IDs, select banners and/or text links etc.
2.4. “Banners” and “Text Links” means the graphical artwork or text that includes tracker IDs that are made available by OptionFair in the Affiliate Area and that Affiliate may use to connect customers to the OptionFair Services from Affiliate’s website (or other electronic method) or using other marketing materials.
2.5. “Brand” means OptionFair and other brands used in association with tradefinancialpartners.com
2.6. “Dedicated Site(s)” means the website(s) and any other online site or platform that are owned, operated or controlled by Affiliate from time to time and each of its related pages through which a Trader opens a Trader’s Account and/or accesses the Services.
2.7. “Electronic Marketing Rules” means the OptionFair’s and/or the Affiliates Program Manager's rules for electronic marketing activities, as the Affiliates Program Manager may notify the Affiliate from time to time.
2.8. “Fraud Traffic” means deposits, revenues or traffic generated on the Services through illegal means or any other action committed in bad faith to defraud OptionFair (as determined by the Affiliates Program Manager in the Affiliates Program Manager’s sole discretion), regardless of whether or not it actually causes OptionFair harm, including deposits generated on stolen credit cards, collusion, manipulation of the service or system or other promotional abuse, creation of false accounts for the purpose of generating Affiliate Commission, and unauthorized use of any third-party accounts, copyrights, trademarks and other third-party Intellectual Property Rights (that, for the avoidance of doubt, include the OptionFair related Intellectual Property Rights) and any activity that constitutes Fraud Traffic under Sections 8 or 10 below.
2.9. “Intellectual Property Rights” means rights to all existing and future patents, trademarks, design rights, service marks, trade dress, trade or business names (including domain names), registered designs, copyright (including rights in computer software), moral rights, database rights, format rights and topography rights (whether or not any of these is or are registered and including applications for registration), know-how, trade secrets and rights of confidence and all rights and forms of protection throughout the world of a similar nature or with similar effect to any of these for the full unexpired period of any such rights and any extensions and/or renewals thereof.
2.10. “Marketing Materials” means Banners and Text Links and any other marketing materials that have been provided or otherwise made available to Affiliate by the Affiliates Program Manager which are general marketing material which Affiliate may use in Affiliate’s activities, provided they do not infringe any applicable legislation as is currently in force or as shall be amended from time to time.
2.11. “Minimum Required Deposit” means the minimum amount required to open a Trader’s Account as indicated on the Site, (currently set at US$ 300). Notwithstanding any other provisions contained elsewhere in this Agreement, the Affiliates Program Manager reserves the right to alter the amounts mentioned within this Section at any time by placing a notice on the Site to this effect. All amounts are calculated in United States dollars and may be converted into alternative currencies as indicated on the OptionFair Site at a rate determined by the Affiliates Program Manager in the Affiliates Program Manager’s sole discretion from time to time.
2.12. “Minimum Required Trading Activity” means (i) eight trades by the Trader, and (ii) a minimum total trading volume of US$ 500 made by the Trader’. Notwithstanding any other provisions contained elsewhere in this Agreement, the Affiliates Program Manager reserves the right to alter the amounts mentioned within this Section at any time by placing a notice on the Site(s) to this effect. All amounts are calculated in United States dollars and may be converted into alternative currencies as indicated on the Site at a rate determined by the Affiliates Program Manager at its sole discretion from time to time.
2.13. “The OptionFair Marks and/or signs” means the words “OptionFair®”, and/or any logo, mark, domain name or trade name that contains, is confusingly similar to or is comprised of the OptionFair Marks or any other name or mark owned from time to time by OptionFair.
2.14. Trader(s)” means any person using any products or services on the Sites whether attached to Affiliate’s Tracker or not.
2.15. “Qualifying Trader Account” means a uniquely assigned account that is created for a Trader when he/she successfully registers for the Services via a Tracking URL.
2.16. “Qualifying Trader(s)” means any person who is attached to Affiliate’s Tracker (or if applicable, Affiliate’s Sub-Affiliate’s Tracker) who: (i) has not been a Trader with OptionFair before; (ii) is not located in a Restricted Territory; (iii) who has made the Minimum Required Deposit; (iv) who has met the Minimum Required Trading Activity, (v) is accepted as a Trader under any applicable sign up or identity verification procedure which the Affiliates Program Manager may require (vi) is not related to any other Qualifying Trader Account either by name , IP address or deposit source ; and (vii) has adequately fulfilled any other qualification criteria that the Affiliates Program Manager may introduce from time to time. Notwithstanding any other provisions contained elsewhere in this Agreement, the Affiliates Program Manager reserves the right to alter the above-mentioned qualifying criteria at any time by virtue of placing notice on the Site.
2.17. “Restricted Territories” means all countries outside the European Union, EEA countries, Russia, Ukraine, Belarus, Kazakhstan unless specifically approved in advance in writing by the Affiliates Program Manager.
Notwithstanding anything to the contrary in this Agreement, this list may be updated at any time by placing a notice on the OptionFair website.
2.18. “Services” means any product or service offered to customers on the Sites.
2.20. “Site(s)” means the website(s) and any other online site or platform that are associated to OptionFair and/or its owners and operators from time to time and each of its related pages through which a Trader opens a Trader’s Account and/or accesses the Services.
2.21. “Spam” means any email or other electronic communication the Affiliate sends out that markets, promotes or that otherwise refers to OptionFair, the Site or the Services from time to time, or that contains any Marketing Materials, OptionFair’s Marks or Trackers and that breaches the Electronic Marketing Rules.
2.22. “Sub-affiliate” means a person that Affiliate has referred to (and that has successfully joined) OptionFair’s Affiliate Network in accordance with the terms of this Agreement.
2.23. “Sub-Affiliate Commission” means the Affiliate Commission due to any Sub-affiliate under the terms of this Agreement.
2.24. “Tracker(s)” means the unique Tracking URL that the Affiliates Program Manager provides exclusively to Affiliate, through which the Affiliates Program Manager track Qualifying Traders’ Accounts and Qualifying Traders’ activities and calculate Affiliate Commission.
2.25. “Tracking URL” means a unique hyperlink or other linking tool for referencing OptionFair’s Site(s) or Services through which Affiliate refers potential traders. When such referred clients open their Qualifying Trader Account, the Affiliates Program Manager’s system automatically logs the Tracking URL and records Affiliate as the relevant affiliate for commission payments purposes.
2.26. “Website(s)”and / or “Sites” means www.optionfair.com and the Affiliate Area.
3. Marketing Activities and Responsibilities
Affiliate shall market to and refer potential traders to the Sites. Affiliate shall be solely liable for the content and manner of such marketing activities. All such marketing activities must be professional, proper and lawful under applicable rules, regulations or laws (including any laws in relation to the content and nature of any advertising or marketing) of any relevant jurisdiction and otherwise comply with the terms of this Agreement. Affiliate shall not directly or indirectly, nor shall Affiliate authorize, assist or encourage any third party to:
3.1. Contravene CySEC marketing guidelines or other regulators guidelines, wherever they may be. Examples of such contraventions may include
3.2. Place Marketing Materials on any online site or other medium where the content and/or material on such the website or medium is potentially libelous, malicious, discriminatory, obscene, unlawful, sexually explicit, pornographic or violent or that is, in the Affiliates Program Manager’s sole discretion otherwise unsuitable.
3.3. Develop and/or implement marketing and/or public relations strategies that have as their direct or indirect objective the targeting of marketing of OptionFair, the Sites and/or the website to any persons who are less than 18 years of age (or such higher age as may apply in the jurisdiction that Affiliate are targeting), regardless of the age of majority in the location where Affiliate is marketing.
3.4. Breach any applicable rules, laws or regulation relating to electronic marketing.
3.5. Use Marketing Materials in a manner that may potentially confuse or mislead a Trader or potential trader.
3.6. Place Marketing Materials on any online site including but not limited to the Dedicated Site or other medium where the content and/or material on such online site or medium: a) infringes any third party’s Intellectual Property Rights; b) copies or resembles the Site in whole or in part; c) disparages OptionFair or otherwise damages it’s goodwill or reputation in any way.
3.7. Read, intercept, modify, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to the Affiliates Program Manager by any other person.
3.8. In any way alter, redirect or in any way interfere with the operation or accessibility of the Sites or any page thereof.
3.9. Perform any activity on behalf of any third party, or authorize or assist (save by promoting the Site and Services in accordance with this Agreement) any other person to register as a Trader, deposit funds and /or conduct investment activities.
3.10. Offer any so-called cash-back schemes or similar that offer or allow a proportion of the Trader’s funds to be returned to the Trader in any form.
3.11. Take any action that could reasonably cause any Trader confusion as to the Affiliates Program Manager’s relationship with Affiliate or any third party, or as to the ownership or operation of the Sites or Service(s) on which any functions or transactions are occurring.
3.12. Cause any of the Sites (or any parts or pages thereof) to open in a visitor’s browser or anywhere else used for accessing the Services other than as a result of the visitor clicking on Banners or Text Links contained in or as part of any Marketing Materials.
3.13. Attempt to intercept or redirect (including via user-installed software) traffic from or on any online site or other place that participates in OptionFair’s Affiliate Network.
3.14. Use any means to promote any of the Sites that resemble in any way the look and/or feel of any of the Sites whether in whole or in part, nor utilize any such means or site to create the impression that such sites are the Sites (or any part of the Sites).
3.16. Attempt to communicate to Traders whether directly or indirectly on the Sites to solicit them to move to any online site or for other purposes without the Affiliates Program Manager’s prior approval including but not limited to via email, chat boards, or spamming.
3.17. Market and/or promote and/or attempt to market and/or promote the OptionFair Services (or any specified part thereof) or Sites (or specific Site) within territories which are Restricted Territories, or otherwise refer to the Sites in any way to any person located within a Restricted Territory (or that there is a reasonable basis to believe is located in a Restricted Territory).
3.18. Circumvent or attempt to circumvent any restriction which the Affiliates Program Manager has put in place to prevent traders from Restricted Territories from signing up as Traders; or attempt to disguise the geographical location of a trader. If the Affiliates Program Manager determines, in its sole discretion, that Affiliate has engaged in any of the foregoing activities, the Affiliates Program Manager may (without limiting any other rights or remedies available to the Affiliates Program Manager) withhold any Affiliate Commission and/or terminate this Agreement immediately on notice.
3.19. Breach any applicable rule, law or regulation in any jurisdiction, whether or not a Restricted Territory.
3.20. Without derogating from the abovementioned, Affiliate may promote the Dedicated Site in any manner Affiliate deem fit provided however, that Affiliate do not infringe any of the above stipulations and Affiliate shall not create any linkage between the Affiliates Program Manager and Affiliate’s Dedicated Site.
3.21. Profit by referring potential traders to the Sites, in any other way than is contemplated by this Agreement.
4. Approved Marketing Materials
In providing the marketing activities referred to in Section 3 above, the Affiliate shall only use the Marketing Materials. For the avoidance of doubt all Marketing Materials must carry an appropriate Risk Warning “Financial trading risks loss of all your invested capital”. Affiliate shall not modify the Marketing Materials or OptionFair's Marks in any way without the Affiliates Program Manager’s prior written consent. Affiliate shall only use the Marketing Materials in accordance with the terms of this Agreement, any guidelines the Affiliates Program Manager provides to Affiliate on OptionFair’s Site or otherwise from time to time and any applicable laws. The Affiliates Program Manager may charge Affiliate for the cost of any CDs and other customized promotional materials provided to Affiliate at Affiliate’s request and such costs may be deducted from Affiliate’s Commission. During the term of this Agreement, the Affiliates Program Manager grants Affiliate a terminable, non-exclusive, non-transferable right to use the Marketing Materials for the sole purpose of fulfilling Affiliate’s obligations under this Agreement.
5. Competitive Marketing
Affiliate shall not market the Site and/or OptionFair the OptionFair Services or the OptionFair Marks in any way whatsoever, unless such activities are approved in writing by the Affiliates Program Manager (i) on any website on which OptionFair promotes any of the Sites; (ii) on or through any Internet search engine on or through which OptionFair promotes any of the Sites; and (iii) in any other manner that results in Affiliate competing with OptionFair in relation to the promotion of any of the Sites or (iv) otherwise where the Affiliates Program Manager request that Affiliate cease the same.
6. Non Assignment
Without prejudice to Sub-Section 20.6 (assignment), Affiliate acknowledge and agree that Trackers are for Affiliate’s sole use and Affiliate shall not assign or sub-license (as appropriate) the Tracker IDs, nor any Affiliate Commission to any third party without the Affiliates Program Manager’s prior written consent.
Affiliate may refer other persons to the Affiliates Program Manager so that they may also apply to join the OptionFair’s Affiliate Network. If any such person successfully joins the OptionFair Affiliate Network, the Affiliates Program Manager shall pay Affiliate in respect of the activities of such Sub-affiliate in accordance with the terms of this Agreement, provided that Affiliate registers them through the “Register Sub-affiliate” function within the Affiliate Area of the website. Affiliate shall only receive credit for sub-affiliates that comply with all the terms and conditions of this Agreement. Affiliate shall procure that each Sub-affiliate fully complies with all the terms and conditions of this Agreement. Any person registered as an Affiliate cannot subsequently be reclassified as a Sub-affiliate. Affiliate shall not:
7.1. Register itself or any person controlled by Affiliate as Affiliate’s own Sub-affiliate;
7.2. Use fictitious or alias names for the registration of Sub-affiliates;
7.3. Offer any type of enticement of money or otherwise of monetary value or otherwise to potential Sub-affiliates unless such enticements are approved in writing by the Affiliates Program Manager, including any so-called cash-back schemes where a proportion of the trader’s funds are returned to the trader in any form;
7.4. Attempt to introduce any addition or variation to the OptionFair’s terms in relation to any potential Sub-affiliate;
7.5. Receive Payment on behalf of Affiliate’s Sub-affiliate(s) and for the avoidance of doubt, the payment and contractual relationship in regard to the Affiliate Network shall remain between the Sub-affiliate and the Affiliates Program Manager.
8. Commercial Use Only
Affiliate shall not register as a Trader or make deposits to any Trader Account (directly or indirectly) through Affiliate’s Tracker(s) (or any Sub-affiliate’s tracker(s)) for Affiliate’s own personal use and/or the use of Affiliate’s relatives, friends, employees, agents or advisors, or otherwise attempt to artificially increase the Affiliate Commission payable to Affiliate or to defraud OptionFair. Violation of this provision shall be deemed to be Fraud Traffic.
9. Trader Information
The Affiliates Program Manager reserves the right to refuse service to any potential trader and to freeze and/or terminate the Trader Account of any Trader, at any time, in the Affiliates Program Manager’s sole discretion. All data relating to the Traders shall, as between Affiliate and the Affiliates Program Manager, remain the Affiliates Program Manager’s exclusive property and Affiliate acquires no right to such information except pursuant to the Affiliates Program Manager’s express written instructions.
10. Trademarks and Domain Names
Affiliate acknowledges that OptionFair and/or its affiliates and licensees, own all Intellectual Property Rights comprised in any and all of the Marketing Materials, the OptionFair Services, the Site and the OptionFair Marks. Any use of any trade mark, domain name or trade name that contains, is confusingly similar to or is comprised of the OptionFair Marks (other than in accordance with the terms of this Agreement) without the Affiliates Program Manager’s prior written permission shall be unauthorized and further may constitute Fraud Traffic. By way of example, but without limitation, AFFILIATE MAY NOT REGISTER A DOMAIN NAME THAT INCLUDES THE OPTIONFAIR MARKS OR MARKS CONFUSINGLY SIMILAR TO THE OPTIONFAIR MARKS. Affiliate agrees that all use by Affiliate of the OptionFair Marks including any use of a domain name that includes the OptionFair Marks or marks confusingly similar to the OptionFair Marks inures to OptionFair’s sole benefit and that Affiliate shall not obtain any rights in the OptionFair Marks as a result of such use. Affiliate shall not register or attempt to register any trademarks or names that contain, are confusingly similar to or are comprised of the OptionFair Marks. Affiliate hereby agrees to transfer any domain names or trade mark application or registrations in respect of the OptionFair Marks or marks confusingly similar to the OptionFair Marks Affiliate may hold or control to OptionFair upon demand. Affiliate further agrees not to attack or challenge OptionFair ownership of and title to the OptionFair Marks in any way.
11.1. The Affiliates Program Manager’s shall track and report Qualifying Traders activity for purposes of calculating Affiliate’s Commission. The form, content and frequency of the reports may vary from time to time in the Affiliates Program Manager’s sole discretion.
11.2. In general, Affiliate shall receive a monthly report with Affiliate’s payment indicating the number of new Qualifying Traders that signed up that month per Tracker and/or the total amount due to Affiliate after any deductions or set offs that the Affiliates Program Manager are entitled to make under this Agreement. In addition, daily reports may be available online for Affiliate to view new Qualifying Traders per Tracker. The Affiliates Program Manager hereby excludes any and all liability for the accuracy or completeness of any such reports.
12.1. Affiliate Commission. Subject to Section 12.3 (min. payment) below, Affiliate Commission shall be paid to Affiliate on a calendar month basis.
12.2. Sub-Affiliate Commission. Subject to Section 7, Affiliate shall receive, in accordance with Section 12.3 (min. payment), Affiliate’s commission on the Affiliate Commission due and payable to Affiliate’s Sub-affiliate(s) for Qualifying Traders.
12.3. Minimum Payment and Time of Payment. All Affiliate Commission shall be paid into Affiliate’s Commission Account within 15 (fifteen) working days of the close of each calendar month on presentation by the Affiliate of commercially valid invoice. The Affiliates Program Manager may impose reasonable restrictions on the frequency and amounts that can be cashed out of Affiliate’s Commission Account for administrative convenience and/or to protect the security of Affiliate’s account. At present time, the minimum payout amount is set at US$500. Further, if the amount due is negative in any particular month, then that negative amount shall carry over and be deducted against the following month’s commission.
12.4. Holdover for Fraud Traffic. In the event that, in the Affiliates Program Manager’s sole discretion, the Affiliates Program Manager suspects any Fraud Traffic, then the Affiliates Program Manager may delay payment of the Affiliate Commission to Affiliate for up to 180 (one hundred and eighty) days while the Affiliates Program Manager investigate and verify the relevant transactions. The Affiliates Program Manager is not obligated to pay Affiliate Commission in respect of Qualifying Traders who, in the Affiliates Program Manager’s sole discretion, are not verifiably who they claim to be or are otherwise involved with Fraud Traffic. In the event that the Affiliates Program Manager determines any activity to constitute Fraud Traffic, or to otherwise be in contravention of this Agreement, then in the Affiliates Program Manager’s sole discretion the Affiliates Program Manager may (without prejudice to any other right or remedy the Affiliates Program Manager may have): (i) pay the Affiliate Commission in full, (ii) recalculate them in light of such suspected Fraud Traffic and/or (iii) forfeit Affiliate’s future Affiliate Commission in respect of Fraud Traffic (as appropriate).
12.5. Method of Payment. All payments to Affiliate shall be due and payable in United States Dollars or such other currency as the Affiliates Program Manager shall determine, regardless of the currency any Qualifying Traders assigned to Affiliate’s Tracker may have traded in. Payment shall be made by cheque, bank wire transfer, Skrill, Neteller, or any other method as the Affiliates Program Manager’s in its sole discretion decide; however, the Affiliates Program Manager shall use reasonable endeavors to accommodate Affiliate’s preferred payment method. Charges for wires or courier charges for cheques shall be covered by Affiliate and deducted from Affiliate’s Commission. For the avoidance of doubt, the Affiliates Program Manager has no liability to pay any currency conversion charges or any charges associated with the transfer of monies to Affiliate’s Commission Account.
12.6. Traders Tracking. Affiliate understands and agrees that potential Qualifying Traders must link through using Affiliate’s Tracker ID in order for Affiliate to receive Affiliate Commission. In no event shall the Affiliates Program Manager be liable for Affiliate’s failure to use Trackers.. Notwithstanding any other provision herein, the Affiliates Program Manager may at any time and in the Affiliates Program Manager’s sole discretion alter the Affiliates Program Manager’s tracking system and reporting format.
12.7. Disputes. If Affiliate disagrees with the monthly reports or amount payable, Affiliate must not accept payment for such amount and immediately send the Affiliates Program Manager written notice of Affiliate’s dispute. Dispute notices must be received within 30 (thirty) days of the date the Affiliates Program Manager made available Affiliate’s monthly report and if such notice is not received within 30 (thirty) days, Affiliate’s right to dispute such report or payment shall be deemed waived and Affiliate shall have no claims in such regard. Further, deposit of payment cheque, acceptance of payment transfer or acceptance of other payment from the Affiliates Program Manager to Affiliate shall be deemed full and final settlement of Affiliate’s Commission due for the month indicated. Notwithstanding the foregoing, if any overpayment is made in the calculation of Affiliate’s Commission, the Affiliates Program Manager reserves the right to correct such calculation at any time and to reclaim from Affiliate any overpayment made by the Affiliates Program Manager to Affiliate.
12.8. Money Laundering. Affiliate shall comply with all applicable laws in relation to money laundering and/or the proceeds of crime.
12.9. Taxation. All taxes due in connection with any payments to Affiliate are Affiliate’s sole liability. Affiliate is responsible for complying with the rules, if any, for registering for and paying income tax and similar taxes in respect of Affiliate’s income under this Agreement and for collecting and paying the income tax and social security contributions in respect of Affiliate’s staff, if Affiliate has any staff. If Value Added Tax (VAT) or any other sales tax or turnover tax is chargeable, Affiliate is responsible for complying with the rules, if any, for registering for the tax and collecting and paying tax in the country where the Services are provided and Affiliate acknowledge that the payments that Affiliate receives shall be deemed to include all VAT or sales tax or turnover tax.
13. Term and Termination
13.1. This Agreement shall be effective from the date that Affiliate signs it, until such time as this Agreement expires or is terminated in accordance with its terms.
13.2. Termination by Affiliate. Affiliate may terminate this Agreement, with or without cause, immediately upon written notice to the Affiliates Program Manager that Affiliate may send by email marked “Affiliate Termination” to affiliates@optionFair.com. For the avoidance of doubt, termination of the Agreement shall end Affiliate’s participation in the Affiliate Network as a whole. Affiliate may not terminate any Site in isolation. In the event that Affiliate elect to terminate this Agreement, Affiliate must withdraw all funds in Affiliate’s Commission Account within 30 (thirty) days of sending the above-mentioned email. If such funds have not been withdrawn by such time then they shall be deemed forfeited and shall revert to us.
13.3. Termination by Affiliates Program Manager. The Affiliates Program Manager may terminate this Agreement or without terminating this Agreement as a whole, any specific Trackers, without cause at any time, upon written notice to Affiliate that the Affiliates Program Manager may send by email to such email address Affiliate have provided to the Affiliates Program Manager or by fax to such fax number Affiliate may have provided to the Affiliates Program Manager. In the event that Affiliates Program Manager terminates the Agreement as a whole, the Affiliates Program Manager shall be entitled to automatically render any Trackers inoperative. For the avoidance of doubt, on termination of this Agreement Affiliate shall no longer receive any Affiliate Commission. If the Affiliates Program Manager terminates a specific Tracker, Affiliate shall no longer receive any Affiliate Commission through that Tracker, however, Affiliate’s remaining Trackers shall not be affected.
13.4. Suspension by Affiliates Program Manager. In any circumstance where the Affiliates Program Manager is entitled to terminate this Agreement or terminate any specific Tracker, the Affiliates Program Manager may at its sole discretion and without prejudice to the Affiliates Program Manager’s further rights and remedies, suspend the Agreement or any specific Tracker. During the period of any suspension, the Affiliates Program Manager may withhold the payment of any Affiliate Commission that relates to any affected Trackers. Payment of any withheld Affiliate Commission shall be made to Affiliate on the lifting of the suspension.
13.5. Automatic Termination by Affiliates Program Manager of inactive accounts. If Affiliate’s Commission Account is inactive, Affiliate’s Agreement and participation in the Affiliate Network shall automatically terminate. In this Section, “Inactive” means where: (i) Affiliate has not generated sufficient Affiliate Commission to trigger a payment into Affiliate’s Commission Account or Affiliate has not cashed out any funds (through a withdrawal or a transfer to a Traders Account) for 186 (one hundred and eighty six) days or more; or (ii) Affiliate has failed to respond to any verification mails sent to Affiliate within a reasonable time. Where automatic termination occurs, any funds remaining within Affiliate’s Commission Account shall revert to the Affiliates Program Manager.
13.6. Effect of Termination. The following shall apply where the Affiliates Program Manager terminates this Agreement:
13.6.1. Affiliate shall stop promoting the Sites and all rights and licenses given to Affiliate under this Agreement shall terminate immediately.
13.6.2. Affiliate shall return all confidential information and cease use of any of the OptionFair Marks and the Marketing Materials.
13.6.3. The Affiliates Program Manager may leave open, redirect or deactivate any Trackers in the Affiliates Program Manager’s sole discretion without any obligation to pay Affiliate for traders who subsequently become Qualifying Traders.
13.6.4. Provided that the Affiliates Program Manager has paid or shall pay to Affiliate such sums as are due at the date of termination and that shall be subject to any rights the Affiliates Program Manager has to make deductions hereunder, the Affiliates Program Manager shall have no further liability to pay Affiliate any further sums.
14. No Warranties
THE AFFILIATES PROGRAM MANAGER MAKES NO WARRANTIES OR REPRESENTATIONS (WHETHER EXPRESS OR IMPLIED BY LAW, STATUTE OR OTHERWISE) WITH RESPECT TO THE AFFILIATE NETWORK, THE OPTIONFAIR SITES OR ANY CONTENT OR COMPLIANCE, PRODUCTS OR SERVICES AVAILABLE THEREIN OR RELATED THERETO OR THAT THE OPTIONFAIR SITES, THE WEBSITE, SYSTEM, NETWORK, SOFTWARE OR HARDWARE SHALL BE ERROR-FREE OR UNINTERRUPTED OR WITH RESPECT TO THE QUALITY, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR SUITABILITY OF ALL OR ANY OF THE FOREGOING. EXCEPT AS EXPRESSLY STATED OTHERWISE IN THIS AGREEMENT, ALL WARRANTIES, REPRESENTATIONS AND IMPLIED TERMS AND CONDITIONS ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
15. Billing and Collection Limitations
The Affiliates Program Manager may, in the Affiliates Program Manager’s sole discretion, use any available means to block, restrict, remove or discount from Affiliate’s tracker certain Qualifying Traders, deposits or trade patterns or reject the applications of potential Qualifying Traders and/or Affiliates so as to reduce the number of fraudulent, unprofitable transactions or for any reason whatsoever. The Affiliates Program Manager does not guarantee, represent or warrant the consistent application and/or success of any fraud prevention efforts.
16. Limitation of liability
The Affiliates Program Manager’s obligations under this Agreement do not constitute personal obligations of the owners, directors, officers, agents, employees, vendors or suppliers of the Site or Services other than as provided under this Agreement. Other than as expressly provided in this Agreement, in no event shall the Affiliates Program Manager be liable for any direct, indirect, special, incidental, consequential or punitive loss, injury or damage of any kind (regardless of whether the Affiliates Program Manager has been advised of the possibility of such loss) including any loss of business, revenue, profits or data. The Affiliates Program Manager’s liability arising under this Agreement, whether in contract, tort (including negligence) or for breach of statutory duty or in any other way shall only be for direct damages and shall not exceed the revenues generated and payable to Affiliate in relation to the Site(s) that the dispute relates to over the previous 12 (twelve) months at the time that the event giving rise to the liability arises. However, nothing in this Agreement shall exclude or limit either party’s liability for death or personal injury arising as a result of that party’s negligence or for fraud.
Affiliate shall defend, indemnify and hold the Affiliates Program Manager and its officers, directors, employees and representatives harmless on demand from and against any and all claims, demands, liabilities, losses, damages, costs and expenses (including reasonable legal fees) resulting or arising (directly or indirectly) from Affiliate’s breach of this Agreement.
18. Set off
Without prejudice to any other rights or remedies available to the Affiliates Program Manager under this Agreement or otherwise, the Affiliates Program Manager shall be entitled to set off any payments otherwise payable by the Affiliates Program Manager to Affiliate hereunder, against any liability of Affiliate to the Affiliates Program Manager, including any claims the Affiliates Program Manager has against Affiliate resulting from or arising from, Affiliate’s breach of this Agreement.
19. Independent research
Affiliate hereby warrants that it has independently and diligently evaluated the risks and benefits associated with the marketing of the Site and/or the Services. Affiliate understands that gambling laws and or financial legislation and or regulations may vary from country to country. Affiliate warrants that it has independently, or by the use of a qualified professional if deemed necessary by Affiliate, researched the laws that apply to Affiliate’s activities and believe that it may participate in the OptionFair Affiliate Network without violating any applicable rules or laws.
20.1. Notices. All notices relating to this Agreement shall be given by email. Notices to Affiliate shall be sent to the email address provided by Affiliate (or as subsequently updated by Affiliate to the Affiliates Program Manager in the event of change), and notices to the Affiliates Program Manager shall be sent to the email address from which Affiliate has received Affiliate’s confirmation of participation. Any notice sent by email shall be deemed received on the earlier of an acknowledgement being sent or twenty-four (24) hours from the time of transmission.
20.2. Relationship of Parties. There is no relationship of exclusivity, partnership, joint venture, employment, agency or franchise between Affiliate and the Affiliates Program Manager under this Agreement. Neither party has the authority to bind the other (including the making of any representation or warranty, the assumption of any obligation or liability and/or the exercise of any right or power), except as expressly provided in this Agreement.
20.3. Non-Exclusive. Affiliate understand that the Affiliates Program Manager may at any time (directly or indirectly), enter into marketing terms with other Affiliates on the same or different terms as those provided to Affiliate in this Agreement and that such Affiliates may be similar, and even competitive, to Affiliate. Affiliate understand that the Affiliates Program Manager may re-direct traffic and users from any of the Sites to any other online site that the Affiliates Program Manager deem appropriate in its sole discretion, without any additional compensation to Affiliate.
20.4. Non-Disclosure. As an Affiliate, Affiliate may receive confidential information from the Affiliates Program Manager, including confidential information as to OptionFair’s marketing plans, marketing concepts, structure and payments. This information is confidential t and constitutes OptionFair’s proprietary trade secrets. Affiliate shall not disclose this information to third parties or use such information other than for the purposes of this Agreement without the Affiliates Program Manager’s prior written consent, save as expressly required by law (provided that any such disclosure is only to the extent so required). Affiliate shall return all confidential information upon request by the Affiliates Program Manager, for any reason whatsoever, within five (5) days of such request.
20.5. Press. Affiliate may not issue any press release or other communication to the public with respect to this Agreement, the OptionFair Marks or Affiliate’s participation in this Affiliate Network without the Affiliates Program Manager’s prior written consent, except as required by law or by any legal or regulatory authority.
20.6. Assignment. Except where Affiliate has received the Affiliates Program Manager’s prior written consent, Affiliate may not assign at law or in equity (including by way of a charge or declaration of trust), sub-license or deal in any other manner with this Agreement or any rights under this Agreement, or sub-contract any or all of Affiliate’s obligations under this Agreement, or purport to do any of the same. Any purported assignment in breach of this clause shall confer no rights on the purported assignee.
20.7. Amendments. The Affiliates Program Manager may modify any of the terms of this Agreement at any time, at its sole discretion, by either (i) emailing Affiliate a change notice or (ii) by posting the new version of the Agreement on OptionFair website. Except in the case of modifications relating to fraud prevention or compliance with the law, or where there is a mistake in the Agreement, which shall be effective on the date of posting or the sending of such notice (whichever is the earlier), all modifications to the Agreement shall only take effect 14 days after the date of posting or sending of any such notice (whichever is the earlier). It is Affiliate’s responsibility to visit the OptionFair website frequently to make sure Affiliate is up to date with the latest version of the Agreement and its provisions. If any modification is unacceptable to Affiliate, affiliate’s only recourse is to terminate this Agreement. Affiliate’s continued participation in the Affiliate Network following such 14 day period shall be deemed binding acceptance of the modification. In addition, Amendments to the Agreement may be made whenever regulatory developments or changes needs to be implemented or other circumstances, at the sole discretion of the Affiliates Program Manager, give rise to execute such amendments. The Affiliates Program Manager shall notify Affiliate of such amendments, as stipulated under this Agreement.
20.8. Governing Law. This Agreement (including any variation or modification thereto) shall be deemed executed in the British Virgin Islands and shall be governed by and construed in accordance with English law, conflicts of law principles notwithstanding. Affiliate irrevocably agree that, the competent courts of London in the UK shall have exclusive jurisdiction to determine any claim, dispute or matter arising out of, or in connection with, or concerning this Agreement or its enforceability and Affiliate waives any objection to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been brought in an inconvenient forum. Nothing in this Section shall limit the right of the Affiliates Program Manager to take proceedings against Affiliate in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
20.9. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law but, if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such provision shall be ineffective only to the extent of such invalidity, or unenforceability, without invalidating the remainder of this Agreement or any other provision hereof.
20.10. Entire Agreement. This Agreement embodies the complete agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes any prior or subsequent oral or written agreement or understanding between the parties in relation to such subject matter save in respect of modification to this Agreement provided by the Affiliates Program Manager to Affiliate in accordance with Section 20.7. above. Each of the parties acknowledges and agrees that in entering into this Agreement, it has not relied on any statement, representation, guarantee warranty, understanding, undertaking, promise or assurance (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in the Agreement. Each party irrevocably and unconditionally waives all claims, rights and remedies that, but for this clause, it might otherwise have had in relation to any of the foregoing. Nothing in this Section shall limit or exclude any liability for fraud.
20.11. Third-Party Rights. Except insofar as this Agreement expressly provides that a third party may in their own right enforce a term of this Agreement, a person who is not a party to this Agreement has no right under any law or statute to rely upon or enforce any term of this Agreement but this does not affect any right or remedy of a third party that exists or is available apart from under that local law or statute.
20.12. No Waiver by Affiliates Program Manager. If there is a breach of any provision of this Agreement, it shall not be considered as a waiver of any of the Affiliates Program Manager’s rights or remedies with respect to any subsequent breach of the same or any other provision of this Agreement and Affiliate shall be estopped from raising a contrary claim against the Affiliates Program Manager.
20.13. Rights of OptionFair. For the avoidance of doubt, it is hereby clarified that this Agreement is intended for the benefit of OptionFair and the rights of the Affiliates Program Manager hereunder shall be enforceable by either the Affiliates Program Manager or OptionFair. This Agreement shall not limit in any way the OptionFair rights and OptionFair is authorized to enforce its rights in its sole discretion. In addition, the Affiliates Program Manager may assign any or all of its rights and obligations pursuant to this Agreement at its sole and absolute discretion without any restriction,
20.14. Survival. Sections: 2 (Definitions), 6 (Non assignment), 9 (Trader information), 12.4 (Holdover for fraud traffic), 13.4 (Suspension by Affiliates Program Manager), 14 (No warranties), 15 (Billing and collection limitations), 16 (Limitation of liability), 17 (Indemnification), 18 (Set off), 19 (Independent research) and 20 (Miscellaneous) and such other provisions as are necessary for the interpretation or enforcement of this Agreement shall survive any termination or expiry of this Agreement.