Referral Partner Terms & Conditions Agreement
This Referral Partner Terms & Conditions Agreement (hereinafter the “Agreement”) shall define the conditions and procedures for cooperation between Affiliates and/or Introducing Brokers (hereinafter the “Referral Partner(s)” or “Affiliate”) and Cerus Markets Limited (hereinafter “Cerus”).1. Referrals
1.1 For the purposes of this Agreement, the “Trading Services” means trading facilities from time to time made generally available by CERUS to its clients in respect of products marketed by CERUS under the names CFD and/or spot forex.
1.2 The Referral Partner shall:
- recommend CERUS’s Trading Services to the Referral Partner’s clients and any other persons who make an inquiry to the Referral Partner relating to the Trading Services (all such clients and other persons being “Prospects”);
- provide to each Prospect all such documentation and information that CERUS may from time to time reasonably require. The Referral Partner shall not distribute any documentation or information relating to the Trading Services unless the same has been approved in writing by CERUS;
- at all times comply with all laws and regulatory rules applicable to the performance of this Agreement by the Referral Partner. In particular (but without limitation) the Referral Partner shall not do any act or thing which is or may be misleading, fraud or deceit;
- not make any misleading, untrue or inaccurate statement representation or warranty to any Prospect nor omit to state any fact or give any information to a Prospect necessary in order to make any statement representation or warranty made not misleading, untrue or inaccurate;
- If required, inform each Prospect that the Referral Partner may be paid compensation by CERUS if the Prospect opens an account with CERUS;
- not use any of the trademarks, trade names, logos, get up or other insignia of CERUS in any matter whatsoever without the prior express written consent of CERUS and then on such terms as CERUS may specify;
- not do any act or thing which would or might damage the standing or reputation of CERUS; or
- provide reasonable information and assistance to CERUS in connection with any Prospects.
1.3 The Referral Partner represents and warrants to CERUS that it is and shall continue to be (throughout this Agreement) duly authorized to fulfil this Agreement in compliance with all laws and regulatory rules applicable to it. Particularly, (but without limitation) the Referral Partner represents and warrants to CERUS that it will only solicit Prospects (and any other persons who may require the Trading Services) in compliance with all laws and regulatory rules of any relevant jurisdiction (including where the Referral Partner is located or the Prospect is located) and with the benefit of all appropriate registrations, licenses and/or other authorizations.
1.4 The Referral Partner acknowledges that the arrangements contained in this Agreement are not exclusive to the Referral Partner and that CERUS may enter into similar arrangements with other persons (including competitors of the Referral Partner). CERUS may from time to time by written notice to the Referral Partner notify the Referral Partner that the Referral Partner shall not refer Prospects from any particular geographic region or sector. The Referral Partner shall abide by any such notice and this Agreement shall not apply to any Prospect (or person who might otherwise be an Affiliate Client) from such a geographic region or sector.
1.5 CERUS shall be entitled to accept or refuse to deal with any Prospects in its absolute discretion. Only those Prospects that are approved by CERUS and open a trading account with CERUS shall be considered “Affiliate Clients”.
2. Commission
2.1 Following execution of this Agreement, and the Referral Partner completing CERUS’s online application, along with CERUS’s receipt of required to-know-your customer and Account due diligence information, CERUS shall create a Referral Partner Fee Account (the “Affiliate Fee Account”) to be used for all Commission payments made to or from the Referral Partner under this Agreement as set out in the Schedule A (“Commission”) in respect of trading conducted by Referral Partner Affiliate Clients through accounts opened with CERUS.
2.2 CERUS shall be entitled to reduce the amount of Commission to reflect any increased cost to CERUS in providing the Trading Services which cost(s) is imposed by any law or regulatory rule.
2.3 CERUS may decline to pay compensation to Referral Partner for trading which CERUS, in its sole discretion, determines:
- to have been done excessively without a legitimate intent by the trading party to profit from market movements;
- to have been done while relying on price latency or arbitrage opportunities;
- to be market abuse; or
- to be in violation of any section of the CERUS Client Agreement.
2.4 CERUS will not make a payment to a third party or receive payment from a third party under any circumstances.
2.5 No interest shall be payable to the Referral Partner in respect of the Affiliate Fee Account.
3. Reporting and Payment
3.1 Unless otherwise agreed between the Parties, reporting numbers are based on Cerus Markets Affiliates portal’s dashboard reports of Cerus and/or any other databases and/or dashboards that Cerus may decide from time to time. The report shall summarize data including but not limited to, the number of actions and/or installs and/or impressions and/or other according to the payment model agreed between the Parties, the amount of payment of the reporting month, and other variables of the products.
3.2 If Cerus believes that fraud has occurred, it must take reasonable steps to notify the Referral Partner within two (2) weeks of the closing of a lead transaction and provide evidence. Failure of Advertiser to notify Referral Partner of any fraudulent activity within 2 (two) weeks of closing of lead transaction shall not waive any right or claim of Advertiser against Referral Partner.
3.3 Without prejudice to the rest of the provisions of the present Agreement, Cerus shall process its payment of the previous billing cycle to the Referral Partner on or before the 31st day of the following month (hereinafter referred to as “monthly payments”), subject to the provisions of clause 3.4.
3.4 Moreover, payment of Referral Partner Commission may be delayed or not be paid or annulled/canceled or suspended in the following circumstances:
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- If the activity in the Partner Account or any other account managed or controlled by the Referral Partner or any of the Introduced Clients assigned to the Referral Partner is considered by Cerus as suspicious;
- If Cerus determines that the Referral Partner Commission is derived from activity related, directly or indirectly, to fraudulent or illegal or deceptive practices;
- The Introduced Client performs actions in bad faith, as determined in Cerus’s sole discretion;
3.5 The Referral Partner undertakes to pay all tax, money transfer fees, currency conversion fees, and other mandatory payments applicable to it resulting from this Agreement.
4. Indemnity and Exclusions of Liability
4.1 The Referral Partner shall indemnify CERUS on demand against all costs, claims, losses, damages, liabilities, and expenses (including attorney’s fees) that CERUS may suffer or incur arising out of:
- any fraud, misrepresentation, and/or breach of this Agreement by the Referral Partner;
- any advice given to any person by the Referral Partner;
- any claim action or proceeding to which CERUS may be a party (including any between a third party and the Referral Partner) relating to any act or omission of the Referral Partner;
- any fraud, willful misconduct, or negligence of the Referral Partner in connection with the performance of their respective obligations under this Agreement and the Client Agreement; or
- the violation or misappropriation of any intellectual property rights by Introducing Brooker or its representatives.
4.2 Neither party shall be liable to the other for any special, indirect, or consequential loss or damage (including without limitation any loss of revenue, business, data, profit, anticipated profit, or goodwill) however caused, arising out of or in connection with this Agreement.
4.3 Nothing in this Agreement shall exclude or limit either party’s liability for fraud or death.
5. Confidential Information
5.1 Each Party may have received Confidential Information (the “Receiving Party”) and will receive information and materials from the other Party (the “Disclosing Party”) that are confidential, proprietary, and/or trade secrets (collectively “Confidential Information”). The Receiving Party agrees that it will not disclose Confidential Information, either in written or verbal form, which is received from the Disclosing Party and will hold such Confidential Information in strict confidence and not disclose it to any person including employees, advisors, or agents except those who need to know in order for the Receiving Party to fulfill its obligations under this Agreement.
5.2 Both Parties shall keep confidential and shall not disclose to any person (other than its professional advisors) any of the terms of this Agreement or any information incidental or related thereto or to the business of CERUS. Notwithstanding anything to the contrary in this Agreement or the termination of this Agreement, the clause shall continue to have effect and be binding on the Referral Partner without limit in point of time.
5.3 Notwithstanding the foregoing, Confidential Information shall not include any information that:
- is publicly available or becomes publicly available through no act or omission of the Receiving Party;
- is independently developed by the Receiving Party on its own without reference to the Confidential Information;
- was previously known to the Receiving Party at the time such information was received or obtained by the Receiving Party; or
- was received by the Receiving Party from a source lawfully having possession of such information and the right to disclose the same.
5.4 If the Receiving Party becomes required by law or regulatory rule to disclose any Confidential Information furnished by the Disclosing Party, the Receiving Party shall, if permitted by applicable law, provide the Disclosing Party with prompt prior written notice of such requirement and the terms of and circumstances surrounding such requirement so that the Disclosing Party may seek an appropriate protective order or other remedy, or waive compliance with the terms of this Agreement, and the Receiving Party, if permitted by applicable law, shall provide such cooperation with respect to obtaining a protective order or other remedy as the Disclosing Party shall reasonably request.
5.5 Notwithstanding clause 5.1, if the Receiving Party is nonetheless legally compelled to disclose Confidential Information or else stand liable for contempt or suffer other censure or penalty, the Receiving Party may, without liability hereunder, disclose only that portion of the Confidential Information which such counsel advises that the Receiving Party is legally required to be disclosed.
6. Term and Termination
6.1 This Agreement shall commence with effect from the Effective Date and shall continue in force for twelve calendar months subject to termination by either party giving to the other at least 30 days written notice, or in accordance with this Section 6. This Agreement will automatically renew.
6.2 Either party (the “Notifying Party”) shall be entitled at any time by giving written notice to the other to terminate this Agreement immediately:
- in the event that the other party commits a breach of this Agreement and (if capable of remedy) fails to remedy the same within 10 business days of being required by the Notifying Party in writing to do so (such notice to give reasonable particulars of the alleged breach);
- on the other party passing a resolution, or the court making an order, that such other be wound up, if a receiver, administrative receiver, administrator or like person is appointed in respect of all or a material part of such other’s business or assets, if such other party enters into any composition or arrangement with its creditors, or if any event analogous to the foregoing occurs under the laws of any relevant jurisdiction;
- if any authority having jurisdiction over the business being conducted by this Agreement or any authority of a territory or nation in which business contemplated by this Agreement is being conducted establishes a regulatory scheme which in either party’s sole discretion would make compliance with the terms of this Agreement economically unfeasible;
- if the other party, or any of its officers, directors, members, managers or principals, has been found by a judicial body or regulatory agency to have perpetrated fraud or any other act of theft or dishonesty or has been accused of a crime, if that fraud, theft, act of dishonesty or crime is of such notoriety as would bring disrepute to either party; or
- if the other party has acted with disregard for the care and maintenance of client relationships.
6.3 Termination shall not affect accrued rights and remedies nor the continuance in force of any provision hereof which expressly or by implication is intended to survive termination.
6.4 The Referral Partner shall not be entitled to any payment from the Commission in respect of any period after termination.
6.5 Nothing in this Agreement shall prevent or restrict CERUS from dealing with Prospects and Affiliate Clients after termination.
7. GOVERNING LAW AND JURISDICTION
7.1 Governing law: A Transaction that is subject to the Rules of a Market shall be governed by the law applicable to it under those Rules. Subject thereto, this Agreement shall be governed by and construed in accordance with Labuan laws.
7.2 The law applicable to the relationship before the conclusion of the Agreement: The law applicable to the relationship between us before the conclusion of this Agreement is Labuan laws.
7.3 Jurisdiction: Each of the parties irrevocably:
- agrees for our benefit that the courts of Labuan shall have jurisdiction to settle any suit, action or other proceedings relating to this Agreement ("Proceedings") and irrevocably submits to the jurisdiction of such courts (if this shall not prevent us from bringing an action in the courts of any other jurisdiction); and
- waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court and agrees not to claim that such Proceedings have been brought in an inconvenient forum or that such court does not have jurisdiction over it.
7.4 Waiver of immunity and consent to enforcement: You irrevocably waive to the fullest extent permitted by applicable law, with respect to yourself and your revenue and assets (irrespective of their use or intended use) all immunity on the grounds of sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any courts, (iii) relief by way of injunction, order for specific performance or recovery of property, (iv) attachment of assets (whether before or after judgment) and (v) execution or enforcement of any judgment to which you or your revenues or assets might otherwise be entitled in any Proceedings in the courts of any jurisdiction and irrevocably agree that you will not claim any immunity in any Proceedings. You consent generally in respect of any Proceedings to the giving of any relief or the issue of any process in connection with such Proceedings, including, without limitation, the making, enforcement, or execution against any property whatsoever (irrespective of its use or intended use) of any order or judgment which may be made or given in such Proceedings.
7.5 Service of process: If you are situated outside Labuan, the process by which any Proceedings in Labuan are begun may be served on you by being delivered to the address in Labuan nominated by you for this purpose in the Individually Agreed Terms Schedule. This does not affect our right to serve process in another manner permitted by law.
8. General
8.1 The Referral Partner is not an appointed representative of CERUS. Nothing in this Agreement is intended to or shall operate to create a partnership, joint venture, employment, and representative or agency relationship between the parties. Neither party is the agent of or has any authority to bind or make any representation or warranty on behalf of the other. Neither party shall hold itself out as such an agent and/or as having any such authority.
8.2 This Agreement constitutes the entire Agreement and understanding of the parties and supersedes any previous Agreement (whether oral or written) between the parties relating to the subject matter of this Agreement. The parties acknowledge and agree that in entering into this Agreement, they do not rely on, and shall have no remedy in respect of, any statement, representation, warranty, or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement.
8.3 No variation shall be valid unless in writing and signed on behalf of both parties. No provision of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party, but this does not affect any right or remedy of a third party which exists or is available apart from under that Act. Each of this Agreement's provisions is separate, severable, and enforceable accordingly. If any provision or part thereof is found by a court to be invalid but would be valid if the provision or part of the wording were deleted, then the same shall apply with such deletions as are necessary to make the same valid and enforceable.
8.4 Neither party will be deemed in breach of this Agreement nor liable to the other in the event of any delay or failure to perform by reason and to the extent and duration of any cause beyond its reasonable control including without limitation failure of a utility service, breakdown failure or interruption of power supply or any electronic communication transmission or information system, accident, breakdown of equipment, plant or machinery, fire, flood, storm, default of sub-contractors or suppliers, an act of God, war, civil war, armed conflict, terrorist attack, riot, civil commotion, malicious damage, nuclear chemical or biological contamination, sonic boom, failure or delay of any third party, compliance with law and/or any regulatory system (“Force Majeure”). Each party shall promptly notify the other of any such cause. If any Force Majeure event lasts longer than 30 days, either party may terminate this Agreement immediately upon written notice to the other party.
8.5 The failure to exercise or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. A waiver of a breach of any of the terms of this Agreement or a default under this Agreement does not constitute a waiver of any other breach or default and shall not affect the other terms of this Agreement. A waiver of a breach of any of the terms of this Agreement or a default under this Agreement will not prevent a party from subsequently requiring compliance with the waived obligation.
8.6 The Referral Partner shall not without the prior express written consent of CERUS assign, transfer, charge, sub-license, or deal in any other manner with this Agreement or any of its rights and/or liabilities under it. CERUS shall be entitled to assign, transfer, charge, sub-license, or deal in any other manner with this Agreement or any of its rights and/or liabilities under it.
8.7 Any notice under this Agreement shall be in writing and shall be served by delivering it personally or sending it by pre-paid first-class post, or email to [email protected].
9. Client Complaints
9.1 The Referral Partner will promptly inform Cerus by telephone and in writing of any complaint against Cerus and/or any of its Affiliated Entities that the Referral Partner may come across. Upon Cerus’s request the Referral Partner shall submit a full and detailed report with any supporting documents relating to the complaint within five (5) days of receiving the complaint.
9.2 The Referral Partner agrees to notify Cerus of any written complaint received from any Introduced Client that relates to any function that the Referral Partner has undertaken and, in the event, the Referral Partner agrees action is necessary, it undertakes to take reasonable steps to amend its procedures to avoid the occurrence of similar complaints in the future.
10. Severability
Should any part of this Agreement be held by any court of competent jurisdiction to be unenforceable or illegal or contravene any rule, regulation or by law of any market or regulator, that part shall be deemed to have been excluded from this Agreement from the beginning, and this Agreement shall be interpreted and enforced as though the provision had never been included and the legality or enforceability of the remaining provisions of the Agreement or the legality, validity or enforceability of this provision in accordance with the law and/or regulation and/or other of any other jurisdiction, shall not be affected.11. Assignment
11.1 Cerus may at any time assign to a third party any or all of its rights, benefits, or obligations under this Agreement or the performance of the entire Agreement subject to providing at least five (5) business days prior written notice to the Referral Partner. This may be done, without limitation, in the event of a merger or acquisition of Cerus with a third party, reorganisation of Cerus, upcoming winding up of Cerus, or sale or transfer of all or part of the business or the assets of Cerus to a third party.
11.2 It is agreed and understood that in the event of transfer, assignment, or novation as described in the present paragraph, Cerus shall have the right to disclose and/or transfer all Referral Partner-related information (including without limitation personal data, recording, correspondence, due diligence, and identification documents, files and records, etc.) transfer the Partner Account and/or money maintained in such Partner Account.
11.3 The Referral Partner may not transfer, assign, charge, novate, or otherwise transfer or purport to do so the Referral Partner’s rights or obligations under the Agreement without prior written consent of Cerus.