TERMS AND CONDITIONS
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE SUBMITTING THE REGISTRATION FORM.
By completing the Registration Form of the Programme and by clicking the box entitled "I have read and agree to be bound by the Agreement of the Programme and the Terms and Conditions therein" as set out in the Registration Form, you hereby agree to, subject to your application being approved by the Company, enter into a binding contractual relationship with the Company, and abide by all the terms as set out in the relevant Agreement on a continuous basis.
1. DEFINITIONS AND INTERPRETATION
1.1 The following words and expressions shall have the following meanings in these Terms unless the context requires otherwise:
"Affiliate" means the Applicant who has been approved by the Company to participate in the Programme and who accepts to be bound by the terms of the Agreement upon joining the Programme;
"Affiliate ID" means the unique tracking ID, which corresponds to the Tracking Code that the Company provides exclusively to the Affiliate, and through which the Company tracks and calculates the Fee;
"Affiliate Web Property" means any website, mobile application any social media, blog or a similar point of presence which the Affiliate is entitled to operate, edit or control and use for the purpose of representing the Affiliate;
"Agreement" means the Terms, the Fee Plan, the Marketing Materials, the Marketing Guidance, the Registration Form, the Forbidden Territories List and any Sub-affiliate Agreement (if applicable);
"Applicable Law" all applicable laws, regulations, notices, directions, orders, standards, codes, rules, practice notes, guidelines or any instrument or publication issued by any relevant regulatory body whether having force of law or otherwise;
"Applicant" means any person or entity who applies to participate in the Programme;
"Application" means an application by an Applicant to the Company to participate in the Programme;
"Business Day" means any day other than a Saturday, Sunday or public holiday on which banks in London are open for business;
"Client" means any person which has been approved and on-boarded by a member of the GAIN Group to be its client;
"Commencement Date" means the date on which an Applicant is accepted by the Company as a an Affiliate pursuant to the Agreement and notified of the same;
"Company" GAIN Capital UK Limited, a company incorporated and registered in England and Wales with registered number 1761813 and having its registered office at Park House, 16 Finsbury Circus, London EC2M 7EB, the United Kingdom;
"Customer Agreement" means the agreement in force from time to time between any member of the GAIN Group and a Client;
"Fee" means the amount payable to the Affiliate calculated in accordance with the Fee Plan and based solely on the data contained in the Report;
"Fee Plan" means the plan agreed in writing between the Company and the Affiliate from time to time setting out the basis on which the Fee will be calculated and paid to the Affiliate;
"Forbidden Territories List" means the list of countries available on the GAIN Affiliates Website, as amended from time to time;
"GAIN Affiliates Website" means the website promoted by the GAIN Group from time to time in respect of the Programme which can be found at www.gainaffiliates.com;
"GAIN Group" means the Company and any member of its Group;
"GAIN Group System" means the software used by the GAIN Group from time to time to manage the Programme;
"GAIN Technology" has the meaning given to it under clause 15.1 of the Terms;
"GAIN Website" means any website, mobile application or other client portal from time to time owned or operated by any GAIN Group entity;
"Group" means in relation to a company, that company, any subsidiary undertakings or any parent undertakings from time to time of that company and any subsidiary undertakings from time to time of a parent undertakings of that company. "Parent undertaking" and "subsidiary undertaking" shall have the meanings set out in section 1162 of the UK Companies Act 2006 (as amended);
"IPR" means patents, rights to inventions, copyright and related rights, trademarks, service marks, business names, domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case, whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extension of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
"Marketing Guidance" the marketing guidelines governing an Affiliate’s use of the Marketing Material and made available on the GAIN Affiliates Website, as updated or amended from time to time;
"Marketing Material" any marketing or promotional material provided to the Affiliate by any member of GAIN Group to be used by the Affiliate to refer users to the GAIN Website, including but not limited to banners, text links, images or any other promotional material provided by any member of the GAIN Group to an Affiliate for marketing and promotional purposes;
"Newly Qualified Client" an individual or an entity who was directed to a GAIN Website by an Affiliate, is identified by an Affiliate ID, has been approved by the GAIN Group as its Client, has met specific qualifying requirements as specified in the Fee Plan from time to time, and whose trading account with the GAIN Group is not the subject of any dispute or default;
"Programme" means the affiliate programme operated by the GAIN Group in accordance with the Agreement;
"Registration Form" the online application form of the Programme (as amended from time to time) available on the GAIN Affiliates Website;
"Report" the report to be prepared by the GAIN Group detailing the calculation of the Fee for the relevant month available on the Affiliate’s password-protected area of the GAIN Affiliates Website;
"Spam or Unsolicited Promotions" means emails or any other messages that are circulated by the Affiliate, directly or indirectly, including messages that are posted on newsgroups, chat rooms and other types of online forums and which:
(a) are directed at people who have not consented nor confirmed that they wish to receive promotional messages from the Affiliate;
(b) contain false or misleading statements;
(c) do not truthfully identify the source or the originating IP address;
(d) do not provide the recipient with an option to easily "unsubscribe" themselves from receiving future mailings or promotions; or
(e) are prohibited by Applicable Law governing SPAMs.
"Sub-affiliate" any person or entity referred to the Programme by an existing Affiliate and who is approved as an Affiliate by the Company and is subject to the terms of this Agreement save for the applicable fees which are set out in the Sub-affiliate Agreement;
"Sub-affiliate Agreement" means the agreement between the Affiliate, the Sub-affiliate and the Company relating to the fees payable by the Company to the Affiliate and the Sub-affiliate;
"Terms and Conditions or Terms" means these terms and conditions;
"Tracking Code" means one or more unique tracking codes linked to a GAIN Website that is assigned to an Affiliate’s account resulting in all referred traffic and earnings from such Affiliate’s Fee Plan being tracked to the Affiliate for the purpose of calculating the Fee; and
"Trading Platform" means the password protected trading system (including any related software and/or communications link) that the GAIN Group may supply or make available to a Client, either directly or through the GAIN Group’s third party service providers or licensors, and through which a Client can trade online through or with the relevant member in the GAIN Group in accordance with the terms of the Customer Agreement and view the trading account of the Client.
1.2 In these Terms:
(a) a person includes a natural person a corporate or unincorporated body (whether or not having separate legal personality);
(b) appendices form part of the Agreement and shall have effect as if set out in full in the body of these Terms. Any reference to these Terms includes the appendices; and
(c) unless the context otherwise requires, words in the singular include the plural and vice versa; references to writing or written include e-mail.
2. THE SCOPE OF THIS AGREEMENT
2.1 These Terms and Conditions form part of a legally binding agreement between the Company and the Affiliate. The Affiliate should read all documents and other terms forming part of the Agreement before entering into the Agreement.
2.2 The Agreement governs the Programme whereby the Affiliate will be paid a Fee in accordance with the terms of this Agreement and subject to Applicable Laws.
2.3 The Agreement supersedes all previous terms and conditions and any amendments thereto and any prior agreements entered into between the Company and the Affiliate.
3.1 To be considered for the Programme, an Applicant must submit a completed Registration Form to the Company together with any other documentation which the Company may request from time to time.
3.2 The Applicant agrees to provide true, accurate and complete information to the Company at all times, including (but not limited to) in its Registration Form.
3.3 By submitting the Registration Form, the Applicant agrees that such Application constitutes an offer by the Applicant to enter into the Programme on the terms of this Agreement and such offer shall be deemed to be accepted when the Company accepts the Application.
3.4 The Company may, in its sole and absolute discretion, choose to reject any Application for any reason (and the Company is under no obligation to disclose such reasons). Reasons for which the Application may be rejected include, but are not limited to, content on the Applicant’s Web Property that:
(a) is in any way libellous, unlawful, harmful, threatening, obscene, harassing, discriminatory, defamatory, or otherwise objectionable, unsuitable or in breach of any Applicable Law;
(b) contains sexually explicit, pornographic, obscene or graphically violent materials;
(c) facilitates or promotes violence, terrorism, or any other criminal activity; or
(d) infringes or assists or encourages the infringement of any IPR belonging to any person.
3.5 The Company may refuse any Applicant and may close any Affiliate’s account if it is necessary to comply with the GAIN Group’s policy to protect the interest of the GAIN Group. The Company’s decision is final.
3.6 If the Company accepts the Applicant’s Registration Form and enrols the Affiliate on the Programme, the Affiliate will be instructed by the Company to choose an affiliate login and username and will be sent an Affiliate ID. The Affiliate shall not share its login and username or the Affiliate ID details with anyone. It is Affiliate’s responsibility to ensure the security of such details at all times and no member of the GAIN Group shall be responsible for any loss caused as a result of any unauthorised access to, or use of, the Affiliate’s account or security details.
3.7 The Fee Plan and the Marketing Guidance are available on the GAIN Affiliate Website. The Reports and performance information are available on the GAIN Group System which allows the Affiliate to update its profile, create additional Affiliate IDs and access other additional functions as the GAIN Group shall determine at its sole discretion from time to time.
4. QUALIFYING CONDITIONS FOR THE PROGRAMME
4.1 To qualify for the Programme, an Applicant must:
(a) where he/she is an individual, be 18 years or older;
(b) where it is a corporate entity, be within its permitted business scope (if applicable) to enter into the Programme and this Agreement;
(c) be competent and duly authorised to enter into legally binding agreements; and
(d) not have a criminal record in its country of origin or residence.
4.2 The Company reserves the right to close any Affiliate’s accounts and to retain any earnings of an Affiliate who is found to violate this provision 4.
5. GENERAL OBLIGATIONS AND RESPONSIBILITIES OF THE AFFILIATE
5.1 On being accepted as an Affiliate within the Programme and such acceptance is based on material reliance on the agreement, representations, warranties and undertakings of the Affiliate under this Agreement, the Affiliate agrees to:
(a) use its best efforts to actively and effectively advertise, market and promote the relevant GAIN Website and the Trading Platform subject to and in accordance with the Applicable Law and the terms of the Agreement in order to maximise the benefit to the Affiliate and the GAIN Group;
(b) if applicable, obtain and maintain throughout the term of this Agreement, all legal and regulatory authorisations and approvals and make all filing and registrations necessary for it and its officers and employers to perform any and all of their obligations under this Agreement in compliance with all Applicable Law;
(c) to abide by the Marketing Guidance of the Company at all times;
(d) use best endeavours to display the Tracking Codes on the Affiliate Web Property in accordance with the Marketing Guidance without interruption for the duration of the Agreement;
(e) use only Tracking Codes provided within the scope of the Programme;
(f) not to change or modify in any way any Tracking Codes or Marketing Material without prior written authorisation from the Company;
(g) comply with all applicable rules, laws and regulations in connection with the promotion and referrals to a GAIN Website in accordance with the terms of this Agreement; and
(h) be exclusively responsible for the development, the operation, and the updating and maintenance of the Affiliate Web Property as well as for all material appearing on the Affiliate Web Property.
5.2 The Affiliate shall direct potential Clients to the relevant GAIN Website (as determined and notified to the Affiliate by the Company from time to time) in accordance with the terms and conditions of the Agreement.
5.3 The Affiliate shall provide the GAIN Group with all such assistance and co-operation as it or they may require (including but not limited to providing all necessary information reasonably requested by the GAIN Group and/or allow such entities to access all facilities, documents and information systems of the Affiliate in connection with the Programme) to enable the GAIN Group to comply with its obligations under Applicable Law.
6. PROHIBITED ACTIVITIES
The Affiliate shall act prudently and professionally and shall agree:
6.1 not to engage, directly or indirectly, in conduct that is or is deemed by the Company, in its sole and absolute discretion, to be illegal, fraudulent, improper, unfair or otherwise adverse to the operation and reputation of the GAIN Group or detrimental to the Programme, including but not limited to making statements which are factually incorrect or implicitly or explicitly suggesting or indicating that such statements have been approved, sponsored, or endorsed by the GAIN Group, or are otherwise not in accordance with the Marketing Guidance;
6.2 not to place the Tracking Codes on any part of the Affiliate Web Property which may be aimed at people under 18 years of age;
6.3 not to register any domain names, keywords, search terms or other identifiers for use in any search engine, portal, sponsored advertising service or other search or referral service that incorporate terms which are identical or similar to ‘GAIN’, 'GAIN Capital', 'City Index', 'Forex.com', 'Finspreads' or any other Intellectual Property owned by any member of the GAIN Group and to at all times comply with such reasonable guidelines for the use of such trademarks and Intellectual Property as may be made available by the GAIN Group from time to time;
6.4 not to send any unsolicited marketing communications relating to any member of the GAIN Group via SMS, e-mail, pop-over, pop-under or any similar channel without the prior written consent of the Company;
6.5 not to issue any advertisement or distribute any promotional material, whether on the internet or otherwise, about the GAIN Group (except for the Marketing Material) without the express prior written consent of the Company;
6.6 not to take any action that could reasonably cause any end person confusion as to the relationship with the Affiliate and any member of the GAIN Group or as to the GAIN Website on which any functions or transactions are occurring and the Affiliate shall disclose to persons on the Affiliate Web Property that it is not acting on behalf of the GAIN Group or otherwise as an agent, partner or in any other capacity and is not authorised to bind any member of the GAIN Group;
6.7 other than providing the Tracking Codes in accordance with the Agreement and any Marketing Material contemplated under this Agreement, not to post or serve any advertisements or promotional content promoting the GAIN Group or any GAIN Website without the prior written consent of the Company, and the Company may give such consent in relation to a single advertisement or in relation any advertisements complying with this Agreement that used on a particular media channel (i.e. all posts on a social media channel);
6.8 not to attempt to artificially increase the Fee payable to it by the Company or on behalf of the GAIN Group;
6.9 not to operate the Affiliate Web Property containing or promoting any inappropriate content (including, without limitation, defamatory or libellous content, lewd, pornographic, obscene or explicit content, threatening, abusive, harassing, discriminatory or otherwise objectionable or unsuitable content, pirated content, content that promotes violence, terrorism or any other criminal activity, content that infringes any IPR of a third party, or content which could incite religious hatred or prejudice or otherwise in breach of any Applicable Law);
6.10 not to use the Tracking Codes or Marketing Material on peer-to-peer file sharing sites;
6.11 not to engage in indiscriminate or unsolicited commercial advertising emails and SMS referring to the Programme in breach of the applicable SPAM regulations;
6.12 not to place links to any GAIN Website in Spam or Unsolicited Promotions, banner networks, counters, guest books or through similar internet resources;
6.13 not to register as a Newly Qualified Client through Affiliate’s Tracking Code for its own personal use and/or the use of its relatives, friends, employees or other third parties. Violation of this clause 6.1.13 shall be deemed to be fraud;
6.14 not to use any variation, including any misspelling, modification, or derivative of any GAIN Website address;
6.15 not to misuse any GAIN Technology and Marketing Material;
6.16 not to offer any potential Clients, whether directly or indirectly, any kind of incentive, arrangement for payment or portion of the Fee, or any other incentive which may be considered to be a ‘fee sharing arrangement’, ‘rebate’ or ‘soft dollar’ compensation in order to incentivise users to do business with the GAIN Group; and
6.17 other than the Marketing Material not to use any other terms, trademarks or other IPRs that are vested in the GAIN Group without the prior written consent of the Company.
7. AFFILIATE WARRANTIES
7.1 The Affiliate hereby represents, warrants and undertakes an ongoing basis during the term of this Agreement that:
(a) it has full capacity and authority to enter into the Agreement and any documents referred to therein and to perform its obligations under the Agreement;
(b) its obligations under the Agreement shall constitute legal, valid and binding obligations on the Affiliate and such obligations shall be direct, unconditional and general obligations;
(c) all information provided by the Affiliate to the GAIN Group is complete, accurate and not misleading; and
(d) it has obtained and will maintain in force all necessary approvals, filings, Agreement and it has obtained (or will obtain, as appropriate) and will maintain in force all necessary approvals, filings, registrations, authorisations, consents and licences to enable it to fulfil its obligations under the Agreement and that no such approvals, filings, registrations, authorisations, consents or licences are subject to notice of termination or revocation or are reasonably likely to be terminated or revoked.
(e) at all times, it shall comply with Applicable Law, and conduct itself with all due skill, care and diligence in accordance with good industry practice and in compliance with all Applicable Law;
(f) it shall acquaint, apprise and constantly update itself all Applicable Law and ensure compliance of the same in carrying out its obligations under this Agreement, and in this regard, it is acknowledged by the Affiliate that it is the sole duty and responsibility of the Affiliate to be so acquainted, apprised and updated with all Applicable Law, and if necessary, to engage its own professional advisers to advise on its legal and regulatory obligations to carry out its obligations under this Agreement. It is further acknowledged by the Affiliate that it shall not rely on any communication of any member of the GAIN Group as advice or representation to the Affiliate on the laws, rules and regulations which may be applicable to the Affiliate;
(g) it shall promptly notify the Company if any regulatory or legal action has been brought against it;
(h) it shall notify the Company if any information in its Registration Form or otherwise provided to the Company changes or is false, inaccurate or misleading in any respect and to update such information on the GAIN Affiliate Website;
(i) it shall not to encourage or assist any Clients to breach any terms of the Customer Agreement; and
(j) it shall obtain the Company’s prior consent for all websites from which it is referring users to the Gain Website and to keep such information up to date.
8. AFFILIATE WEB PROPERTY AND TRACKING CODES
8.1 The Affiliate shall notify the Company in advance of the Affiliate Web Property where the Affiliate intends to place Tracking Codes for the Company's approval. The Company may refuse to allow the Affiliate to use the Tracking Codes on any Affiliate Web Property in its absolute discretion.
8.2 The Affiliate shall incorporate and display the Tracking Codes on the Affiliate Web Property in a manner agreed with the Company. The Affiliate is solely responsible for ensuring it uses the correct Tracking Code. The Company shall not be responsible for any loss incurred as a result of the Tracking Code being used correctly.
8.3 The Affiliate shall provide reasonable assistance to the Company in respect of the display, access to, transmission and maintenance of the Tracking Codes.
8.4 The Affiliate shall obtain the prior written consent of the Company if it wishes to place the Tracking Codes on another electronic media other than the Affiliate Web Property.
8.5 The Affiliate shall inform users of the Affiliate Web Property that tracking technology will be installed on the users’ hard drive when a user clicks on the Tracking Codes and users shall be given an opportunity to reject such installation.
8.6 The Affiliate agrees not to:
(a) include metatag keywords on the Affiliate Web Property;
(b) modify, redirect, suppress or substitute the operation of any button, link or other interactive feature of a GAIN Website;
(c) cause the Affiliate Web Property or any page thereof to open in a visitor’s browser other than as a result of the visitor clicking on a Tracking Code; and
(d) attempt to intercept or redirect traffic from or on any website that participates in the Programme.
8.7 The Affiliate shall not make the Affiliate Web Property or any Tracking Codes accessible at any time by any person or entity located in the Forbidden Territories List.
8.8 The Company may at its sole discretion render the Tracking Codes inoperative and block the Affiliate’s access to the Programme if the Company believes that Affiliate is in breach of any of the obligations contained in the Agreement.
8.9 The Company may monitor the Affiliate Web Property to ensure compliance with the terms of the Agreement and you shall provide the Company with all data and information (including, but not limited to, log-in information) requested from time to time in order to enable the GAIN Group to perform such monitoring.
8.10 In the event that the Company provides the Affiliate with written notification requesting the removal of any content in breach of the Agreement, the Affiliate shall ensure that such content is removed from the Affiliate Web Property within two (2) Business Days of receipt of such notice.
9. PAYMENTS AND TAX
9.1 The Company shall pay the Fee to the Affiliate in accordance with the terms of this Agreement.
9.2 The Company may unilaterally change the Fee Plan at any time, at its sole discretion by written notice. If Affiliate objects to such change, it shall notify the Company in writing within ten (10) Business Days of receipt of such notice and has a right to terminate the Agreement in accordance with the terms as set out in clause 13. If Affiliate has not rejected the changes to the Fee Plan within ten (10) Business Days, the Affiliate shall be deemed to have accepted the amended Fee Plan. Such amended Fee Plan shall replace any existing Fee Plan in its entirety.
9.3 Any Fee shall be calculated by the Company based on the formula set out in the Fee Plan The Company shall track Newly Qualified Clients’ activity for the purpose of calculating the Fee and such information shall be set out in the Report available to the Affiliate from the GAIN Affiliates Website.
9.4 Subject to the remaining provisions under this clause 9, the Fee shall be paid within thirty (30) days of the Company notifying the Affiliate in accordance with the information set out in the Report. If such day is not a Business Day, payment shall be made on the next Business Day. The Fee shall be paid in US Dollars and in any method as may be determined by the Company subject to Applicable Law and such payment shall be good and valid discharge of the Company’s obligation to pay the Fee.
9.5 If the Fee is less than US$500, such fee shall be carried over and added to the following month's Fee until such time as the aggregate Fee is equal to or exceeds US$500, at which point the Fee (including the amounts carried over) shall become payable. If after six (6) consecutive calendar months, the aggregate Fee remains less than US$500, then the Fee will be cancelled and no Fee shall be payable to the Affiliate and the Company shall be entitled to terminate the Agreement with no liability whatsoever.
9.6 If the Affiliate disagrees with the calculation of the Fee as set out in the Report, the Affiliate shall immediately send the Company a written notice that it disputes the calculation of the Fee or the amount payable. Such notice must be received by the Company within ten (10) Business Days of the date of the Report or the Affiliate’s right to dispute such Report or payment will be deemed waived and the Affiliate shall have no claims in such regard.
9.7 Payment of the Fee is subject to and conditional upon:
(a) receipt by the Company to its satisfaction of all documentation and information required to verify the identity of, and perform anti-money laundering and other checks on the Affiliate; and
(b) the terms of a last click wins model as set out in the Fee Plan.
9.8 No Fee is payable to the Affiliate if a Newly Qualified Client fails to use the Affiliate's Tracking Code.
9.9 The Company shall be entitled, at its sole discretion, to delay or withhold payment of the Fee indefinitely if:
(a) the Company believes that the Affiliate's is acting in breach of the Agreement;
(b) the Affiliate fails, or fails to provide any required information in respect of, the Company’s KYC, anti-money laundering or other checks;
(c) it becomes aware that any of the information provided by the Affiliate is inaccurate, incomplete or misleading;
(d) it becomes aware of an alleged infringement by the Affiliate of any rights of a third party; or
(e) any regulatory or legal action has been brought against the Affiliate.
9.10 Affiliate shall be liable to pay all taxes and other charges due in respect of its receipt of the Fee and Affiliate consents that, to the extent required by Applicable Law, the Company may disclose information regarding the Fee to any tax authority, relevant government agency, regulatory authority or its clients.
9.11 The Affiliate shall bear all costs and expenses in connection with the Agreement and all bank charges in respect of payment of the Fee shall be responsibility of the Affiliate.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 The Company hereby grants to or undertakes to procure the grant to the Affiliate a non-exclusive, non-transferable, revocable worldwide licence to use the Marketing Material for the sole purpose of directing users from the Affiliate Web Property, which has been approved by the Company as included in the Programme, to a GAIN Website via the Tracking Codes.
10.2 The Affiliate’s use of the IPR of the GAIN Group is only authorised to the extent required to establish links and perform the Affiliate’s obligations under this Agreement. The Affiliate may not modify or alter the IPR of the GAIN Group in any way.
10.3 In the event that the Affiliate wishes to use the IPR of the GAIN Group for any purposes outside of this Agreement, the Affiliate must obtain the Company’s prior written consent.
10.4 The Affiliate shall comply with the Marketing Guidance at all times and shall not amend the Marketing Material without the prior written consent of the Company. In the event such consent is given, the Affiliate hereby assigns and transfers to the GAIN Group all of the Affiliate’s right, title and interest in and to any amendments or developments to such Marketing Material.
10.5 The Affiliate agrees and acknowledges that:
(a) all IPR in the GAIN Technology belong to the GAIN Group.
(b) nothing in this Agreement shall be deemed to confer any ownership rights in the GAIN Technology on the Affiliate;
(c) nothing in the Agreement purports to grant a licence, provide any warranty or offer any indemnity in respect of any IPR that are not owned by the GAIN Group; and
(d) it shall not seek to challenge the invalidity, unenforceability or the ownership of any IPR belonging to any member of the GAIN Group.
10.6 Each party shall immediately notify the other party in writing if any claim or demand is made or action brought against it for any infringement or alleged infringement of any IPR which may affect the supply or use of the Tracking Codes and Marketing Material.
11. COMMUNICATION BY THE AFFILIATE
11.1 In respect of any communication by the Affiliate to users containing any Tracking Codes, the Affiliate shall:
(a) where practically possible, include the name and address of the Affiliate as the sender of the communication and the name and/or logo of the Affiliate in the body of the text as well as the ability for the recipient to unsubscribe from such communications
(b) ensure that the recipients of such communication have consented to receive the communication and the Affiliate shall immediately remove from its databases any recipient who wishes to unsubscribe from such communication (whether through the unsubscribe facility or otherwise);
(c) on request by the Company, co-operate with the Company in a timely manner to carry out any data scrubbing exercises against ‘unsubscribe’ databases of the GAIN Group; and
(d) agree the timetable of such communication with the Company in advance, provided that no recipient of an e-mail or SMS shall be re-targeted within one (1) month of such communication without the prior written consent of the Company.
11.2 The GAIN Group shall be the exclusive owner of all data relating to all Newly Qualified Clients.
11.3 The Affiliate shall ensure that any communication with users of the Affiliate Web Property, where practically possible, includes a clear message that such communication is made without the knowledge of the GAIN Group and that any complaint should be addressed to the Affiliate.
12. PRIVACY AND SECURITY OF INFORMATION
12.1 The Affiliate shall at all times comply with the applicable data protection, information security and privacy laws and regulations and any equivalent legislation in any jurisdiction applicable to its websites and activities and the performance of its obligations under this Agreement. If necessary, the Affiliate shall obtain all necessary consents for provision of any data by the Affiliate to the GAIN Group in carrying out its obligations under this Agreement. The Affiliate shall not do anything or omit to do anything that will cause the GAIN Group to be in breach of any provision or requirement under any Applicable Law relating to data protection, information security and privacy.
12.3 The Affiliate agrees that the Company may use any personal information provided by the Affiliate for the purposes of carrying out identity and credit checks and that such information may be shared with other members of the GAIN Group and third party service providers, including being sent outside the European Economic Area.
12.4 If the Affiliate becomes aware of a breach or potential breach of security relating to the Tracking Codes, the Affiliate will immediately notify the Company in writing of such breach or potential breach and use its best endeavours to take all necessary steps to remedy any actual breach.
13. TERM AND TERMINATION
13.1 The Agreement shall commence on the Commencement Date shall continue until either party serves not less than five (5) Business Days’ written notice of termination on the other.
13.2 This Agreement will automatically terminate with immediate effect if:
(a) the Affiliate is in breach of the Agreement and the Affiliate has not remedied the breach to the Company’s satisfaction within five (5) Business Days of receipt of a notice from the Company specifying the breach and requiring its remedy;
(b) the Affiliate or any member of the Affiliate’s Group:
(i) is or becomes bankrupt, insolvent or unable to pay its debts within the meaning of the Insolvency Act 1986 or any other applicable insolvency legislation;
(ii) has stopped paying its debts as they fall due;
(iii) takes any step in any applicable jurisdiction to initiate any process in relation to its creditors;
(iv) appoints an administrator in respect of the Affiliate or any member of the Affiliate Group or gives notice of an intention to do so;
(v) ceases or threatens to cease carrying on its business;
(c) the Affiliate has committed serious fraud or dishonesty or abused the Terms;
(d) the Affiliate is in breach of any Applicable Law;
(e) the Affiliate has failed to obtain and maintain throughout the term of this Agreement, any legal and regulatory licences, authorisations and approvals or make any filing or registrations necessary for it and its officers and employers to perform any and all of their obligations under this Agreement; or
(f) the Affiliate is or becomes an employee of the GAIN Group at any time after the Commencement Date.
13.3 With effect from the date of termination, Affiliate shall not be entitled to receive any Fee with respect to any Newly Qualified Clients.
13.4 The Affiliate will release the Company from all obligations and liabilities occurring or arising after the date of such termination, except with respect to those obligations that by their nature are designed to survive termination, including but not limited to clauses 1, this clause 13, 14, 15, 16, 17, 18, 27 and 28. Termination will not relieve the Affiliate from any liability arising from any breach of this Agreement which occurred prior to termination.
13.5 Upon the termination of this Agreement:
(a) all rights and licenses granted to the Affiliate under this Agreement shall immediately terminate and all rights shall revert to the respective licensors, and the Affiliate will cease the use of any IPR of the GAIN Group, including on the Affiliate Web Property;
(b) if this Agreement is terminated by the Company on the basis of the Affiliate’s breach of clauses 13.5(b) and 13.5(c), the Affiliate’s account in the GAIN Group System will immediately be terminated, and such Affiliate shall be removed from the Programme without any Fee being payable to the Affiliate; and
(c) each party shall (on request) deliver up to the other or destroy all copies of confidential information in its possession, and (if so requested) shall use all reasonable endeavours to destroy all copies of confidential information stored electronically except to the extent that it, or any member of its Group, is obliged to retain such information under any Applicable Law.
14.1 The Affiliate shall indemnify and hold harmless the Company and each entity within the GAIN Group, together with their directors, officers, shareholders, employees and suppliers against any and all losses, demands, claims, damages, costs, expenses, fines, penalties and any other liabilities (including reasonable legal costs and expenses and VAT thereon if applicable) on a full indemnity basis, brought against, incurred or suffered directly or indirectly, by any member of the GAIN Group in connection with, related to, or arising from:
(a) any breach of the Affiliate’s representations, warranties, obligations or covenants under this Agreement;
(b) any breach of any Applicable Law, including any failure to obtain any legal or regulatory licences, authorisations or approvals or make any filing or registrations necessary to carry on any regulated activity in connection with the performance of its obligations under this Agreement and any regulatory or legal action brought against it, the Company or any other member of the GAIN Group due to such breach;
(c) all conduct and activities occurring under Affiliate’s user ID and password;
(d) the Affiliate’s misuse of the GAIN Technology or Marketing Material;
(e) any claim related to Affiliate’s Website; and
(f) any act or omission by the Affiliate or said the Affiliate’s employees, agents or sub-contractors in performing the Affiliate’s obligations under this Agreement.
14.2 The Company shall hold the rights under this clause 14 on trust for the benefit of the specified third parties referred to in clause 14.1 if such third parties are unable to enforce this clause 14 directly against the Affiliate due to Applicable Law.
15. LIMITATION OF LIABILITY
15.1 The Affiliate expressly acknowledges and agrees that the use of the internet is at its risk and that the GAIN Affiliates Website, the Tracking Codes, and the GAIN Group System (the "GAIN Technology") are provided "as is" and "as available" without any warranties or conditions whatsoever, express or implied;
15.2 Save as provided in the Agreement, to the fullest extent permitted by law, the Company makes no warranty or representation that the GAIN Technology will:
(a) meet the Affiliate’s requirements or those of Affiliate’s visitors;
(b) be of satisfactory quality to Affiliate;
(c) be fit for a particular purpose;
(d) not infringe the rights of third parties;
(e) be compatible with all systems;
(f) be secure; or
(g) contain information that would all be accurate.
15.3 The Company makes no guarantee of any specific results from the use of the GAIN Technology or from enrolment in the Programme.
15.4 The Company makes no guarantee that the GAIN Technology shall remain functional and accessible to all users of the internet.
15.5 The Company cannot guarantee that the GAIN Group System, both software and hardware, will not have down time or will be error free at any point during the GAIN Group’s business operation. The Company will endeavour to provide the Affiliate with customer and technical support in keeping with industry standards to make sure all problems are resolved on time.
15.6 The Company makes no warranty or representation that any of its services provided as part of the Programme, will be uninterrupted or error free and, to the fullest extent permissible by law, it excludes liability for the consequences of any such interruptions or errors.
15.7 The GAIN Group’s aggregate liability to the Affiliate for all claims under the Agreement shall be limited to the greater of:
(a) the aggregate of all Fees paid to such Affiliate in the six months period preceding the date the circumstances giving rise to the claim arose; and
This limit shall apply however that liability arises, including, without limitation, a liability arising by breach of contract, tort (including negligence) or breach of statutory duty, provided that this clause shall not exclude or limit the GAIN Group’s liability for: (i) death or personal injury caused by its negligence; or (ii) fraud or fraudulent misrepresentation.
15.8 The GAIN Group shall not be liable for a claim under the Agreement unless it receives notice from the Affiliate summarising in reasonable detail the nature of the claim (in so far as it is known) and, as far as is reasonably practicable, an estimate of the amount claimed.
16. CONFIDENTIALITY AND ANNOUNCEMENTS
16.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or member of its Group except as permitted by clause 16.2.
16.2 Each party may disclose the other party’s confidential information:
(a) to its, and its Group members’, employees, officers, representatives or advisors who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Agreement. Each party shall ensure that its employees, officers, representatives or advisors to whom it discloses the other party’s confidential information shall comply with this clause 16; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority;
(c) to such third parties as it deems reasonably necessary in order to prevent crime; and
(d) to such third parties as it may see fit to assist in enforcing its legal or contractual rights against the other party.
16.3 No party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement.
16.4 This clause shall not apply to any confidential information that:
(a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving party in breach of this clause);
(b) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party; or
(c) was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party.
16.5 The Affiliate and the Company shall agree the content and timing of any announcement, publication or other communication concerning the relationship between them before such communication is made.
17. ANTI-BRIBERY AND ANTI-CORRUPTION
17.1 The Affiliate shall:
(a) comply with all Applicable Law relating to anti-bribery and anti-corruption including but not limited to the UK Bribery Act 2010 ("Relevant Requirements");
(b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(c) promptly report to the Company any request or demand for any undue financial or other advantage of any kind received by the Affiliate in connection with the performance of this agreement; and
(d) provide such evidence of compliance with the Relevant Requirements as the Company may reasonably request from time to time.
17.2 Breach of this clause 17 shall be deemed a breach of the Agreement under clause 13.2.
18. TERRITORY OF SINGAPORE AND AUSTRALIA
18.1 This clause 18 shall only apply to Affiliates who advertise, market and promote the GAIN Website related to GAIN Capital Singapore Pte. Ltd (GAIN Capital Singapore) and GAIN Capital Australia Pty. Ltd (GAIN Capital Australia).
18.2 In connection with Singapore and Australia, the Affiliate must:
(a) not conduct introducing activities under this Programme as its sole business activity if the Affiliate is a corporation or as their full-time occupation if the Affiliate is an individual, as the case may be;
(b) other than advertising, marketing and promoting the relevant GAIN Website and the Trading Platform in accordance with Applicable Law and the Marketing Guidance, not communicate or otherwise interact or deal with directly or indirectly any person who is or becomes a Client of the GAIN Group or any entity within the GAIN Group, or otherwise purport to act for and on behalf of the GAIN Group in any process relating to the services offered by the GAIN Group including, without limitation, by
(i) opening, approving, maintaining, administering, or closing third party customer brokerage accounts with the GAIN Group,
(ii) soliciting, processing, or facilitating securities or foreign exchange transactions relating to customer brokerage accounts with the GAIN Group,
(iii) extending credit to any customer for the purpose of purchasing securities or any other financial product through, or carrying securities or foreign exchange transactions or any other financial product with, the GAIN Group,
(iv) answering Client enquiries in relation to the GAIN Group or any entity within the group or any of their businesses,
(v) engaging in negotiations of brokerage accounts or securities or any other foreign exchange transactions of the GAIN Group,
(vi) accepting any customer orders for and on behalf of the GAIN Group, or routing orders to markets for the GAIN Group’s execution,
(vii) handling funds or securities or any other transactions of Clients, or effecting clearance or settlement of customer trades,
(viii) resolving or attempting to resolve any problems, discrepancies, or disputes involving Client accounts or related transactions, or
(ix) otherwise generally act for an on behalf of the GAIN Group;
(c) provide any Newly Qualified Client(s) with any form of financial or investment advice, recommendations or opinions or undertake any other activities that would be considered a regulated activity in Singapore or Australia as applicable;
(d) have a power of attorney over any account of a Newly Qualified Client under the Customer Agreement; and
(e) tarnish or otherwise bring into disrepute the image of any member of the GAIN Capital Group or the financial services industry generally in Singapore.
18.3 Newly Qualified Client(s) referred from Tracking Code will also be required to complete an additional acknowledgement concerning the compensation arrangement between the Affiliate and GAIN Capital Singapore which shall be available from the GAIN Affiliates Website or from the Company upon request.
The Company may amend or replace any clause or part of the Agreement (including the Fee Plan) in whole or in part at any time and in its sole and absolute discretion, such changes shall take effect upon the Company publishing any amendments to the Agreement on the GAIN Affiliates Website. If the Affiliate does not agree to such amendments, it shall be entitled to terminate the Agreement in accordance with clause 13. If the Affiliate continues participating in the Programme, the Affiliate shall be deemed to have accepted the amendments to the Agreement.
The Company may at any time and without notice to the Affiliate set off any liability of the Affiliate to the GAIN Group against any liability of the GAIN Group to the Affiliate whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Agreement. Any exercise by the Company of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Agreement or otherwise.
21. ENTIRE AGREEMENT
The Agreement constitutes the entire agreement between the parties with regards to its subject matter and each party confirms that it has not been induced to enter into the Agreement in reliance upon, nor has it been given, any warranty, representation, statement, assurance, covenant, agreement, undertaking, indemnity or commitment of any nature whatsoever other than as expressly set out in the Agreement and, to the extent that it has been, it unconditionally and irrevocably waives any claims, rights or remedies which it might otherwise have had in relation thereto.
No failure or delay by a party to exercise any of its rights under the Agreement shall operate as a waiver thereof and no single or partial exercise of any such right shall prevent any other or further exercise of that or any other right.
23.1 Notices and communications from the Company will be made by e-mail to the address provided by the Affiliate on the Registration Form (or as updated by the Affiliate on the GAIN Affiliate Website from time to time), or by posting such notice or communication on the GAIN Affiliate Website where applicable.
23.2 The Affiliate shall send all notices and communications to the following e-mail address: firstname.lastname@example.org, or such other e-mail address as notified via the GAIN Affiliate Website from time to time.
23.3 Notices and communications will be deemed received at the time of transmission provided that if such time is outside the hours of 09:00 to 17:00 (GMT) on a Business Day or on a day that is not a Business Day, they will be deemed to have been received at 09:00 on the next Business Day.
The Affiliate shall not assign, sub-license or otherwise transfer any rights or obligations under the Agreement without the prior written consent of the Company.
25. THIRD PARTY RIGHTS
A person who is not a party to the Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement (including these Terms) except that each GAIN Group member may enforce the Agreement including these Terms in particular clause 14 (indemnity) and the Company shall hold those rights on trust for the benefit of each GAIN Group member. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under the Agreement are not subject to the consent of any other person.
26. NO AGENCY
Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute one party the agent of another or authorise any party to make or enter into any commitments for or on behalf of any other party.
27. GOVERNING LAW AND JURISDICTION
27.1 The Agreement (and any dispute, proceedings or claim of whatever nature arising out of or in any way relating to the Agreement) shall be governed by and construed in accordance with the laws of England and the parties hereby irrevocably submit to the exclusive jurisdiction of the courts of England.
27.2 This clause 27.2 shall not apply to the Affiliate located in China.
28. ARBITRATION (APPLICABLE TO AFFILIATES LOCATED IN CHINA)
28.1 Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration Rules (LCIA Rules), and such LCIA Rules are deemed to be incorporated by reference into this clause.
28.2 The number of arbitrators shall be one.
28.3 The seat, or legal place, of arbitration shall be London.
28.4 The language to be used in the arbitral proceedings shall be English.
28.5 The governing law of the contract shall be the substantive law of England.