This Affiliate Agreement
("Agreement") is made by and between Yadix.
("YDX"), and the entity registered to be a "FOREX
Affiliate" ("AFFILIATE") on the registration page (the
"Registration Page") located at Yadix.com (the "FOREX
Site"). This Agreement shall govern the terms and conditions pursuant to
which AFFILIATE shall promote and market the "Partner Forex Trading
Platforms", including but not limited to, the Yadix
Platform (collectively, the "Platforms").
1. RESPONSIBILITIES OF AFFILIATE.
1.1. Activities. AFFILIATE will use its best efforts and shall devote
reasonable amounts of its time, personnel and resources to (a) promote and
market, within such territory as may be specified by YDX, in its sole
discretion, and communicated to AFFILIATE via e-mail ("Territory"),
the Platforms on those websites with respect to which AFFILIATE has or will
have a marketing arrangement (the "Websites"), and (b) identify for
YDX prospective users of the Platforms within the Territory to which AFFILIATE
has actively promoted the Platforms via the Websites (each, a
"Lead"). In no event shall AFFILIATE engage in any marketing or
promotional activity related to YDX, any YDX Related Entity (as hereinafter
defined) and/or any Platform in any area, location, territory or jurisdiction
outside of the Territory. Subject to Section
1.2.1, AFFILIATE shall bear all
costs and expenses for such activities unless otherwise determined by YDX, in
its sole discretion. As used herein, "Related Entity" shall mean,
with respect to a Party, any entity that, directly or indirectly, controls, is
controlled by, or is under common control with, such Party; where
"control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management policies of another, whether
through the ownership of voting securities, by contract, as trustee or
executor, or otherwise.
1.2. Creative.
1.2.1. Provided by YDX. YDX will provide to AFFILIATE copies of or access to
such creative or other marketing and/or promotional materials relating to YDX,
YDX Related Entities and/or the Platforms as YDX deems necessary or appropriate
(the "Creative"). The Creative shall be accessible from the
"banner bank" located on the FOREX Site. The Creative is provided AS
IS AND WITHOUT WARRANTY of any kind.
1.2.2. Use of Creative. AFFILIATE may display the Creative on the Websites
solely for the purpose of marketing and promoting YDX, YDX Related Entities and
the Platforms in the Territory during the term of this Agreement, or until such
earlier time as YDX may, upon reasonable prior notice, instructs AFFILIATE to
cease displaying the Creative. AFFILIATE may not (a) alter, amend, adapt or
translate the Creative without YDX's prior written consent or (b) remove or
alter any "TM," "®", copyright or other proprietary notice
or designation, including without limitation, any FOREX Mark (as defined in
Section 5.2 below) contained in or displayed on any Creative. Nothing contained
within any Creative shall in any way be deemed a representation or warranty of
YDX or any YDX Related Entity with respect to the Platforms.
1.3. Restrictions on E-Mail Marketing. In no event shall AFFILIATE engage in
any e-mail marketing or promotion with respect to YDX, any YDX Related Entity
and/or any Platform except as expressly set forth herein. In the event that
AFFILIATE has an "opt-in" e-mail address list whereby the individuals
or entities on the list have expressly elected to receive e-mails from
AFFILIATE (an "Opt-in List"), AFFILIATE may make a written request to
YDX to send e-mails regarding YDX, YDX Related Entities and/or the Platforms to
the individuals or entities on the Opt-in List, in each instance. If YDX has
not responded in writing within twenty (20) business days after receipt of such
request, AFFILIATE shall provide YDX with written notice of such failure to
respond, and such request shall be deemed to have been denied if YDX has not
responded within ten (10) business days of receiving such notice. In the event
YDX approves such request, AFFILIATE shall comply with all applicable laws,
rules, regulations and directives, including but not limited to those relating
to e-mail marketing and "spamming". Without limiting the generality
of the foregoing, AFFILIATE shall (a) not send any e-mail regarding YDX, YDX
Related Entities and/or the Platforms: (i) to any
individual or entity that has not requested such information; (ii) to any type
of "Safe List" or through any type of "Safe List" service;
or (iii) as part of a confirmation or thank you letter as a result of a posting
to a classified advertisement website or a "Free for All Links"
website and (b) always include "unsubscribe" information at the top
and bottom of any e-mail regarding YDX, YDX Related Entities and/or the
Platforms.
1.4. Other Prohibited Activities, in addition to the restrictions of Section
1.3 above, AFFILIATE shall not (a) engage in any fax, broadcast or
telemarketing with respect to YDX, YDX Related Entities and/or the Platforms,
(b) make any "use of scumware" (as
hereinafter defined) or use any other predatory advertising or marketing
methods in any of its dealings relating to YDX, YDX Related Entities and/or to
the Platforms, (c) make any false, misleading or disparaging representations or
statements with respect to YDX, YDX Related Entities or the Platforms or (d)
engage in any other practices which may affect adversely the high image,
credibility or reputation of YDX, YDX Related Entities or the Platforms,
including but not limited to, using any Website in any manner, or having any
content on any Website, that (i) promotes sexually
explicit materials, violence, discrimination based on race, sex, religion,
nationality, disability, sexual orientation or age and/or any illegal
activities or (ii) violates any intellectual property or other proprietary
rights of any third party. As used herein, "use of scumware"
shall mean the use of pop-up banners that hide banners that are displayed on a
website, the placement of icons beside keywords found in text that if clicked
will take the visitor to another website, and other similar practices.
1.5. Compliance with Laws. In addition to, and without limiting the provisions
of Sections 1.3 and 1.4 above, AFFILIATE shall perform its obligations
hereunder in accordance with the highest applicable industry standards and in
compliance with all applicable laws, rules and regulations.
1.6. Duty to Inform. AFFILIATE shall promptly inform YDX of any information
known to AFFILIATE related to any Leads, Prospective Affiliates or the
Platforms that could reasonably lead to a claim, demand or liability of or
against YDX and/or the YDX Related Entities by any third party.
2. ACTIVE LEAD FEES. With respect to each Active Lead (as hereinafter defined),
AFFILIATE shall be entitled to receive the Active Lead fees as set forth on
Exhibit 2 hereto (the "Active Lead
Fees"). The Active Lead Fees shall be due and payable within fifteen (15)
days after the end of the applicable month. YDX reserves the right to modify
the Active Lead Fees and/or the payment terms at any time upon reasonable
advance notice to AFFILIATE. As used herein, an "Active Lead" shall
mean a Lead that (a) YDX has attributed to AFFILIATE pursuant to YDX customary
tracking protocols, including but not limited to, the use of AFFILIATE-specific
"gateway" identifications, the use of separate reference pages,
cookies, attributions questions or otherwise, (b) has successfully registered
with the applicable Platform(s), (c) has deposited appropriate monetary fund's
with the applicable Platform(s), using the payment methods designated by the
applicable Platform(s)' management and (d) has complied with all applicable
legal, administrative and regulatory requirements.
3. SECOND TIER AFFILIATE PROGRAM. The provisions of this Section 3 shall apply
to the extent AFFILIATE has been accepted in YDX's "Second Tier Affiliate
Program."
3.1. Prospective Affiliates. In addition to its activities pursuant to Section
1.1 above, AFFILIATE may also identify for YDX other marketing organizations
and/or website owners and/or operators that may be prospective affiliates of YDX
(each, a "Prospective Affiliate"), subject to the terms and
conditions set forth herein.
3.2. Valid Affiliate Fees. With respect to each Valid Affiliate (as hereinafter
defined), AFFILIATE shall be entitled to received the Valid Affiliate fees as
set forth on Exhibit 2 hereto (the "Valid Affiliate Fees"). The Valid
Affiliate Fees shall be due and payable within fifteen (15) days after the end
of the applicable month. YDX reserves the right to modify the Valid Affiliate
Fees and/or the payment terms at any time upon reasonable advance notice to
AFFILIATE. As used herein, a "Valid Affiliate" shall mean a
Prospective Affiliate that has (a) been attributed to AFFILIATE pursuant to YDX
customary tracking protocols, including but not limited to, the use of
AFFILIATE-specific "gateway" identifications, the use of separate
reference pages, cookies, attributions questions or otherwise, (b) been
accepted by YDX, in its sole and absolute discretion, (c) registered as a
"FOREX Affiliate" on the Registration Page and (d) begun actively
promoting YDX, YDX Related Entities and/or the Platforms within four (4) weeks
of such registration.
4. TERMINATION.
4.1. Termination. YDX may terminate this Agreement at any time, with or without
cause, effective immediately upon notice to AFFILIATE.
4.2. Consequences of Termination. Upon expiration or termination of this
Agreement: (a) each Party shall return to the other Party all property of the
other Party in its possession or control (including all Creative and all
Confidential Information, as defined in Section 6); (b) AFFILIATE shall
immediately cease displaying any Creative on any Website or otherwise and (c)
all rights granted to AFFILIATE hereunder will immediately cease; provided,
however, that in the event that AFFILIATE has elected to be compensated on a
"Revenue-Sharing" basis (as described on Exhibit 2) with respect to
either the Active Lead Fees and/or the Valid Affiliate Fees, as applicable,
AFFILIATE shall be entitled to receive any Active Lead Fees and/or Valid
Affiliate Fees, as applicable, as may become due and owing to AFFILIATE
pursuant to terms and conditions of this Agreement, during the three (3) month
period immediately following the effective date of termination of this
Agreement.
4.3. Survival. Sections 4.2, 4.3 and 5 through 10 shall survive the termination
or expiration of this Agreement.
5. PROPRIETARY RIGHTS.
5.1. Proprietary Rights of YDX. As between AFFILIATE and YDX, the FOREX Marks,
the Creative, all demographic and other information relating to Leads, Active
Leads, Prospective Affiliates and Valid Affiliates, the Platforms and all software,
documentation, hardware, equipment, devices, templates, tools, documents,
processes, methodologies, know-how, web sites, and any additional intellectual
or other property used by or on behalf of YDX or otherwise related to the
Platforms, together with all copyrights, trademarks, patents, trade secrets and
any other proprietary rights inherent therein and appurtenant thereto
(collectively, "YDX Property") shall be and remain the sole and
exclusive property of YDX. To the extent, if any, that ownership of any YDX
Property does not automatically vest in YDX by virtue of this Agreement, or
otherwise, AFFILIATE hereby transfers and assigns to YDX, upon the creation
thereof, all rights, title and interest AFFILIATE may have in and to such YDX
Property, including the right to sue and recover for past, present and future
violations thereof.
5.2. FOREX Marks. During the term of this Agreement, YDX hereby grants to
AFFILIATE a limited, revocable, non-exclusive and non-transferable license to
display the names and trademarks associated with the Platforms (collectively,
the "FOREX Marks"), solely as necessary to perform AFFILIATE's
obligations under this Agreement. AFFILIATE acknowledges and agrees that: (a)
it will use the FOREX Marks only as permitted hereunder; (b) it will use the
FOREX Marks in a lawful manner and in strict compliance with all format(s),
guidelines, standards and other requirements prescribed by YDX; (c) the FOREX
Marks are and shall remain the sole property of YDX; (d) nothing in this
Agreement shall confer in AFFILIATE any right of ownership in the FOREX Marks
and all use thereof by AFFILIATE shall inure to the benefit of YDX; and (e)
AFFILIATE shall not, now or in the future, contest the validity of any FOREX
Mark or use any term or mark confusingly similar to any FOREX Mark.
6. CONFIDENTIALITY. Each Party acknowledges and agrees that any and all
information associated with the other Party's business and not publicly known,
including, but not limited to, the contents of this Agreement, specific trading
information, technical processes and formulas, source codes, customer lists,
prospective customer lists, names, addresses and other information regarding
customers and prospective customers, product designs, sales, costs, and other
unpublished financial information, business plans and marketing data, is
confidential and proprietary information ("Confidential
Information"), whether or not marked as confidential or proprietary. Each
Party agrees to use the other Party's Confidential Information solely as necessary
for performing its obligations hereunder. Each Party agrees that it shall take
all reasonable steps, at least substantially equivalent to the steps it takes
to protect its own proprietary information, to prevent the duplication,
disclosure or use of any such Confidential Information, other than (a) by or to
its employees, agents and subcontractors who must have access to such
Confidential Information to perform such Party's obligations hereunder, who
each shall treat such Confidential Information as provided herein; or (b) as
required by any law, regulation, or order of any court of proper jurisdiction
over the Parties and the subject matter contained in this Agreement.
Confidential Information shall not include any information which is: (i) in the public domain, or is already known by or in the
possession of the non-disclosing Party, at the time of disclosure of such
information; (ii) is independently developed by the non-disclosing Party
without breaching any provisions of this Agreement; or (iii) is thereafter
rightly obtained by the non-disclosing Party from a source other than the
disclosing Party without breaching any provision of this Agreement.
7. DISCLAIMER OF WARRANTY. YDX MAKES NO WARRANTIES HEREUNDER, AND YDX EXPRESSLY
DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT
LIMITING THE FOREGOING, YDX FURTHER DISCLAIMS ALL REPRESENTATIONS AND
WARRANTIES, EXPRESS OR IMPLIED, THAT THE PLATFORMS DO NOT INFRINGE OR OTHERWISE
VIOLATE ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY
IN ANY JURISDICTION, INCLUDING, BUT NOT LIMITED TO, THE TERRITORY. AFFILIATE
UNDERSTANDS AND AGREES THAT THE PLATFORMS MAY NOT SATISFY ALL OF THE LEADS' REQUIREMENTS
AND MAY NOT BE UNINTERRUPTED OR ERROR-FREE.
8. LIMITATION OF LIABILITY AND INDEMNIFICATION.
8.1. Limitation of Liability. YDX SHALL HAVE NO LIABILITY WITH RESPECT TO THE
PLATFORMS OR ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR ANY
INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES
EVEN IF YDX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT,
YDX'S LIABILITY TO AFFILIATE UNDER THIS AGREEMENT FOR ANY REASON WILL BE
LIMITED TO THE AMOUNTS PAID TO AFFILIATE BY YDX DURING THE SIX (6) MONTH PERIOD
IMMEDIATELY PRECEEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES. THIS
LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, BUT NOT
LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT
LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.
8.2. Indemnification.
8.2.1. AFFILIATE. AFFILIATE agrees to indemnify, defend and hold harmless YDX
and the YDX Related Entities and the directors, officers, employees,
subcontractors and agents thereof (collectively, the "Indemnified
Party"), with respect to any claim, demand, cause of action, debt or
liability, including reasonable attorneys' fees, to the extent that such action
is based upon or arises out of: (a) AFFILIATE's breach of any representation,
warranty, obligation or covenant under this Agreement; (b) AFFILIATE's gross
negligence or wilful misconduct; or (c) any warranty, condition,
representation, indemnity or guarantee relating to YDX, YDX Related Entities
and/or the Platforms granted by AFFILIATE to any Lead, Prospective Affiliate or
other third party.
8.2.2. Notice. In claiming any indemnification hereunder, the Indemnified Party
shall promptly provide AFFILIATE with written notice of any claim which the
Indemnified Party believes falls within the scope of the foregoing paragraphs.
The Indemnified Party may, at its own expense, assist in the defence if it so
chooses, provided that AFFILIATE shall control such defence and all
negotiations relative to the settlement of any such claim and further provided
that any settlement intended to bind the Indemnified Party shall not be final
without the Indemnified Party's written consent, which shall not be
unreasonably withheld.
9. NON-EXCLUSIVE REMEDIES. In the event (a) AFFILIATE markets or promotes YDX,
any YDX Related Entity or any Platform to any person or entity outside of the
Territory or (b) of any breach or threatened breach of any provision of
Sections 1.2.2, 1.3, 1.4, 1.5, 5 and/or 6 above, in addition to all other
rights and remedies available to YDX under this Agreement and under applicable
law, YDX shall have the right to (i) immediately
enjoin all such activity, without the necessity of showing damages or posting
bond or other security, (ii) immediately terminate this Agreement and
AFFILIATE's engagement hereunder, (iii) receive a prompt refund of all amounts
paid to AFFILIATE hereunder and (iv) be indemnified for any losses, damages or
liability incurred by YDX in connection with such violation, in accordance with
the provisions of Section 8 above.
10. GENERAL PROVISIONS.
10.1. Force Majeure. If the performance of any part of this Agreement by either
Party is prevented, hindered, delayed or otherwise made impracticable by reason
of any flood, riot, fire, judicial or governmental action (including, but not
limited to, any law, regulation or embargo prohibiting the performance
contemplated hereunder and/or the failure or refusal of a government agency to
issue a license required for any performance pursuant to this Agreement), labor disputes, act of God or any cause beyond the
reasonable control of that Party, the Party shall be excused from such performance
to the extent that it is prevented, hindered or delayed by such cause.
Notwithstanding anything herein to the contrary, the Party prevented from
performing hereunder by a force majeure event shall nevertheless use its best
efforts to recommence its performance hereunder as soon as reasonably
practicable and to mitigate any damages resulting from its non-performance
hereunder.
10.2. Independent Contractors. The Parties to this Agreement are independent
contractors. Neither Party is an agent, representative or Related Entity of the
other Party. Neither Party shall have any right, power or authority to enter
into any agreement for, or on behalf of, or incur any obligation or liability
of, or to otherwise bind, the other Party. This Agreement shall not be interpreted
or construed to create an association, agency, joint venture or partnership
between the Parties or to impose any liability attributable to such a
relationship upon either Party.
10.3. Notice. Any notice, approval, request, authorization, direction or other
communication under this Agreement shall be given in writing and shall be
deemed to have been delivered and given for all purposes (a) on the delivery
date if delivered personally or by e-mail to the Party to which the same is
directed; (b) two (2) business days after deposit with an internationally
recognized commercial overnight courier service, with written verification of
receipt; or (c) five (5) business days after deposit in certified or registered
mail, return receipt requested, postage and charges prepaid, to the respective
addresses of the Parties as set forth on the Registration Page.
10.4. No Waiver. The failure of either Party to insist upon or enforce strict
performance by the other Party of any provision of this Agreement or to
exercise any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such Party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same shall
be and remain in full force and effect. Each waiver shall be set forth in a
written instrument signed by the waiving Party.
10.5. Entire Agreement. This Agreement, including all Exhibits hereto, sets
forth the entire agreement and supersedes any and all prior agreements, written
or oral, of the Parties with respect to the subject matter hereof as set forth
herein. Neither Party shall be bound by, and each Party specifically objects
to, any term, condition or other provision that is different from or in
addition to the provisions of this Agreement (whether or not it would
materially alter this Agreement) and which is proffered by the other Party in
any correspondence or other document, unless the Party to be bound thereby
specifically agrees to such provision in writing.
10.6. Amendments and Modifications. No amendment or modification of any
provision of this Agreement shall be valid unless set forth in a written
instrument signed by both Parties.
10.7. Assignment. All the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of the Parties to this Agreement and to
their respective heirs, successors, assigns and legal representatives.
AFFILIATE shall have no right to assign or otherwise transfer this Agreement,
or any of its rights or obligations hereunder, to any third party without YDX's
prior written consent, to be given or withheld in YDX's sole discretion.
10.8. Applicable Laws. This Agreement shall be governed, construed and enforced
in accordance with the laws of Belize.
Each Party agrees that any legal action, proceeding, controversy or claim
between the Parties arising out of or relating to this Agreement may be brought
and prosecuted only in a court of law in Belize, and by execution of this
Agreement each Party hereto submits to the exclusive jurisdiction of such court
and waives any objection it might have based upon improper venue or
inconvenient forum.
The Parties hereby acknowledge and
agree that with respect to either the Active Lead Fees and/or the Valid
Affiliate Fees, AFFILIATE can elect to be compensated on either the "Flat
Fee" basis or the "Revenue Sharing" basis, as set forth above.
In the event AFFILIATE elects to be compensated on a "Revenue
Sharing" basis with respect to either the Active Lead Fees and/or the
Valid Affiliate Fees, the possibility exists that the fees earned by AFFILIATE
may be "negative" to the extent that the applicable Active Lead
and/or Valid Affiliate's trading activities result in negative earnings. Any
such "negative fees" shall be applied against any Active Lead Fees
and/or Valid Affiliate Fees earned by AFFILIATE in future months until such
"negative fees" have been fully applied.
By marking the "I accept" checkbox, AFFILIATE hereby fully agrees
with all terms and provisions.
By signing this agreement, the AFFILIATE hereby fully agrees with all
terms and provisions. I am not going to use any promotional material for Yadix other than approved and being available on the
creative bank onboard this site. I am not going to send any newsletter
promoting Yadix without a written-in-advance consent
by Yadix. I know that it is strictly forbidden to
imply profit making in Forex without an equally prominent reference to loss. I
know that, in case I breached my obligations under the Terms and Agreement and
other related instructions, Yadix may seek full
remedy from me, and I will be held personally liable for such violation. I
confirm being aware to the requirement that any material promoting Forex must
be associated with an adequate Risk Disclaimer. I know that Forex trading is
risky, that it may incur substantial losses, and that it is not suitable to
every person.
-------------------------- EXHIBIT 1 --------------------------
Execution spreads: Since Yadix facilitates trade for
our Affiliates clients and covers their client deals on a Agency Basis, our
price spreads will mirror the price and liquidity conditions offered by our
global bank liquidity providers. Since market conditions affect liquidity, risk
and bid ask spreads, it is understood that the conditions outlined below are
meant as guidelines and not always as absolutes. For example, the Affiliate can
expect the spreads to widen immediately preceding and following key economic
releases to reflect the real interbank liquidity/risk conditions during those
periods or during less liquid periods of the 24 hour day. Yadix
will always look to support the tightest, most consistent spreads for the
Affiliate and their clients so as to promote trade.
-------------------------- EXHIBIT 2 --------------------------
Rebates
Yadix will pay Affiliates
the following commissions on the Classic, Rebate and Scalper Account. For
custom rebates or high volume affiliate commissions, please contact our
partners department: partners@yadix.com.
Default Rebates:
Classic Account:
0.3 pips per round turn
Rebate
Account: 0.3 pips per round turn
Scalper
Account: 0.2 pips per round turn
* 1 standard
lot = 100,000 of base currency; 0.1 lot = 10,000 of base currency [round turn]
** Affiliate
levels are recalculated automatically by the system every month based on volume
traded by the referred clients in the previous month.
Fee
calculations are non-cumulative as it relates to round-turn volume. The
commissions are accumulated in real time and automatically credited to the
Affiliate account. In order to withdraw the commissions, the Affiliate must
submit his payment details inside his client area and the system will
automatically schedule the payments every month, providing the affiliate
accumulated at least 500 USD in affiliate commissions for the previous month.
If the minimum limit is not accumulated for a given month, the unpaid
commissions are automatically enrolled to the next month. A standard bank wire
fee (USD $50 as per Banking fee policy) will be assessed on all affiliate
commission payouts done via wire transfer.