BROKERS TERMS AND CONDITIONS
These Terms and Conditions sets out the legal relationship between you (“You” or “ Client“) and CLOVERS LIMITED
9/F AMTEL BLDG 148 DES VOEUX
(EPC or the “Company“) with regards to the rendering of the Services, as defined below, by You. These Terms and Conditions together with the applicable IO shall serve as the “Agreement” between you and EPC.
All definitions apply both to their singular and plural forms, as the context may require.
1.1. “Acquisition” shall occur when a Lead makes the required minimum deposit in hisher account with the Client’s Site;
1.2. “Effective Date” means the date You will sign binding EPC’s IO.
1.3. “Parties” means both You and EPC.
1.4. “Party” means You or EPC.
1.5. “Client Marks” shall mean logos, trade names, trademarks, service marks and similar identifying materials which belong to the Client;
1.6. “Confidential Information” shall mean all non-public information, in any form whatsoever, tangible or intangible, including information in oral, visual or computer database form, disclosed by a Party (the “Disclosing Party”) to the other party or to anyone in its behalf (including, without limitation, a hosting service provider) (the “Receiving Party”).
Confidential Information shall include any such information concerning past, present, or future ideas, research and development, know-how, trade secrets, inventions, formulas, specifications, compositions, manufacturing and production processes and techniques, technical data, code, technology and/or product designs, drawings, engineering and/or development specifications, any unannounced product(s) and service(s), and business and marketing plans and proposals, forecasts and projections, market analyses and financial data or any other business activities. Confidential Information shall also include intellectual property and technology, including any processes, methodologies, procedures, trade secrets, software, software applications, tools, databases, systems architecture and design, machine- readable texts and files, literary works or other works of authorship, including documentation, reports, drawings, charts, graphics and other written documentation.
However, Confidential Information shall not include information that (i) is publicly available or becomes publicly available through no act or omission of the Receiving Party, or anyone else on its behalf; (ii) is legitimately obtained by the Receiving Party without restriction, from a source other than the Disclosing Party; (iii) is explicitly approved for release by written authorization of the Disclosing Party; and (iv) is disclosed pursuant to an order or requirement of a court, administrative agency, or other governmental body provided, however, that the Receiving Party shall make the best effort to provide prompt notice of such court order or requirement to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure.
1.7. “Intellectual Property” shall mean all intangible legal rights, titles and interests evidenced by or embodied in or connected or related to the following: (i) all inventions (whether patentable or un-patentable and whether or not reduced to practice), all improvements thereto, patents and patent applications, and any divisional, continuation, continuation in part, extension, reissue, renewal or re-examination of patent issuing therefrom (including any foreign counterparts), (ii) any work of authorship, copyrightable works (including moral rights); (iii) computer software, including any and all software implementations of algorithms, models, methodologies, artwork and designs, whether in source code or object code, (iv) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise, (v) designs and any applications and registrations thereof, (vi) all trade secrets, Confidential Information and business information, (vii) trademarks, service marks, trade names, certification marks, collective marks, logos, brand names, business names, domain names, corporate names, trade styles and trade dress, get-up, and other designations of source or origin and all and applications and registrations thereof, (viii) all documentation, including user manuals and training materials relating to any of the foregoing and descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing, and (ix) all other proprietary rights, industrial rights and any other similar rights;
1.8. “Inventory” shall mean online media webpages, digital placements, apps and any kind of media inventory created by EPC or on its behalf in order to promote the services or the offering of the Client.
1.9. “Lead” shall mean a distinct Internet user who accesses through one of the Links and completes a registration form to the Client’s Site during the term of the Agreement;
1.10. “Links” shall mean banner advertisements, button links, text links and other content, which shall link to a registration form and/or webpage of the Client’s Site or to the download page of the Client’s application.
EPC shall provide You with the following services (the “Services”):
2.1. EPC shall provide the Client with the Inventory in accordance with the specifications provided by the Client in the applicable IO.
2.2.EPC shall refer Leads to the Client’s Site.
3. Representations and Warranties
Mutual Representations and Warranties.
3.1. Each party warrants and represents to the other party that:
3.1.1. it is duly organized and validly existing under the laws of the state of its incorporation.
3.1.2. it has full power and authority to execute the Agreement and to perform its obligations hereunder;
3.1.3. the execution of the Agreement and the performance of its obligations hereunder shall be conducted in accordance with all applicable laws, regulations, codes or practice and shall not constitute or result in a breach of any other obligation, contractual or otherwise that it may have;
3.1.4. it will perform its obligations under the Agreement in compliance with all applicable laws, rules and regulations, including, without limitation, privacy and security laws; and
3.1.5. there are no legal, commercial, contractual or other restrictions which preclude or might preclude it from performing its obligations pursuant to the Agreement;
3.2. Client Representations and Warranties.
Client further warrants and represents to EPC that:
3.2.1. it owns all right, title, and interest in the Client Marks and the Client’s Site or possesses all legally valid rights in the Client Marks and the Client’s Site as necessary to provide the Services and to grant the licenses granted to EPC hereunder;
3.2.2. It will provide EPC with the Client’s certificate of incorporation and a certificate of incumbency and good standing, as well as any additional information required by EPC from time to time, in order to allow EPC to conduct a preliminary “know your customer” process in accordance with applicable law and industry standards, and in accordance with EPC’s risk mitigation policies. Such information may include names of all directors and ultimate beneficial owners with a controlling interest in the Client, as well as corroborating documentation as required by EPC in its discretion. Client acknowledges that implementation of the Agreement is subject to satisfactory completion of this process by EPC;
3.2.3. it shall be solely responsible for conducting “know your customer” checks with respect to the Client’s site end users and any end users which referred to the Client’s Site through the Links, in accordance with Applicable Legislation, industry standards and in accordance with EPC’s policies;
3.2.4. It shall be solely responsible for operating the trading platform, which includes but is not limited to pre-defining the Client’s trading risk parameters and risk policy, and monitoring at all times the Client’s current trading position, exposure and risk level. EPC shall bear no responsibility for or liability in connection with operating the trading platform, determining the Client’s risk parameters and/or ensuring that the Client’s trading activity conforms with the risk parameters or policy as determined by the Client and/or monitoring or controlling the Client’s current trading position, exposure and risk level; and
3.2.5. it obtains and maintains all permits, consents, licenses and approvals required for the Client’s Site, and for the conduct of its business activity, as necessary and applicable, which including without limitation from any applicable regulatory authorities, as well as for compliance with any and all laws, regulations and directives applicable to the Client’s performance under the Agreement.
3.2.6 It acknowledge that the Inventory will not be available in the prohibited territories defined under the IO.
4. Data Protection
4.1. to the extent that the Client collects or otherwise has access to Personal Data in connection with the Agreement, then: (a) the Client shall qualify as a Data Controller as this term is defined under applicable Data Protection Laws; (b) the Client agrees that the Data Protection Annex attached herewith as Annex A shall govern the collection, use and transfer of such Personal Data; and (c) the Client hereby represent and warrants that it complies and shall continue to comply with any and all Data Protection Laws. “Data Protection Laws” means any and/or all applicable domestic and foreign laws, rules, directives and regulations, on any local, provincial, state or deferral or national level, pertaining to data privacy, data security and/or the protection of Personal Data, including the Data Protection Directive 95/46/EC and the Privacy and Electronic Communications Directive 2002/58/EC (and respective local implementing laws) concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), including any amendments or replacements to them, including the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. “Personal Data” means any information that is about, or can be related to, an identifiable individual, including any information that can be linked to an individual or used to directly or indirectly identify an individual, natural person;
5. Limitation of Liability
5.1. EXCEPT FOR THE EXCLUSIONS SET OUT IN SECTION BELOW, UNDER NO CIRCUMSTANCES SHALL ONE PARTY BE LIABLE TO THEOTHER PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, HOWEVER CAUSED, WHETHER ARISING UNDER A THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.2. EXCEPT FOR THE EXCLUSIONS SET OUT IN SECTION 4.3 BELOW, TO THE MAXIMUM EXTENT PERMITTED THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY RELATED TO, ARISING OUT OF, OR IN CONNECTION WITH THE AGREEMENT SHALL BE LIMITED TO THE AGGREGATE AMOUNT OF PAYMENTS PAID OR WOULD HAVE BEEN PAID HEREUNDER DURING THE SIX-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
5.3. EXCLUSIONS: (A) BREACH OF SECTION (REPRESENTATIONS AND WARRANTIES); (B) BREACH OF 5 CONFIDENTIALITY UNDERTAKINGS HEREUNDER; (C) INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; AND (D) CLIENT’S ACTION OR OMISSION WHICH CONSTITUTE BREACH OF ANY APPLICABLE LAW OR REGULATION, INCLUDING WITH RELATION TO OFFERING OR MARKETING OF BINARY OPTIONS.
6. Indemnification and Disclaimer of Warranties
6.1.The Client shall indemnify Company, its publishers and its affiliated entities, its employees, its directors and its shareholders, and hold them harmless from any damages, reasonable expenses costs, claims, complaints, governmental investigations or sanctions, penalties or liabilities (including any legal fees) incurred by either of them in the course of providing the Client with services, which are: (a) related directly or indirectly to the Client or any third party on its behalf by offering or marketing of binary options, or any of Client’s action or omission which constitute breach of any applicable law or regulation, (b) the gross negligence or willful conduct of EPC or its employees, personnel or agents in the performance of its obligations under the Agreement (“Claim“).
6.2. EPC shall give prompt written notice to Client of any Claim and shall allow the Client sole control of the defense and settlement of such Claim provided that no such settlement imposes a financial or other liability on EPC unless agreed to by EPC.
6.3. OTHER THAN THE UNDERTAKING TO PROVIDE THE SERVICES AS AGREED HEREUNDER, COMPANY DOES NOT GIVE ANY WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR NONINFRINGEMENT WITH RESPECT TO THE SERVICES PROVIDED HEREIN. COMPANY DOES NOT WARRANT OR OTHERWISE REPRESENT THAT THE INVENTORY WILL BE FREE OF INTERRUPTIONS, ERRORS, BUGS, VIRUSES OR SECURITY PROBLEMS. COMPANY DOES NOT GUARANTY THE EFFECTIVENESS OF THE SERVICES PROVIDED HEREIN.
7.1. ERP shall be entitled to the consideration set out under the “Rate” section in the IO for each Acquisition in accordance with the terms of the Agreement.
7.2. The Acquisition count shall be according EPC’s tracking records which shall be provided either by way of (i) providing You a written monthly report containing such information within ten (10) days of the end of each month, or (ii) providing You access to electronic tools that enable production of such information (each, a “Report”).
7.3. ERP shall send the Client an invoice at the end of each week for the previous week which details the amount of Acquisition, delivered during the previous week.
7.4. Payments will be made without deduction for or on account of any present or future taxes (including, but not limited to, withholding and value added taxes) imposed or levied by any applicable jurisdiction from or through which such payment is made by the Client or any authority therein or thereof having power to tax in connection with the performance by the Client of its obligations under this Agreement (“ Applicable Taxes”) unless EPC is compelled by law to make payment subject to such Applicable Taxes. In the event that the Client is so compelled by law, all Applicable Taxes shall be paid by the Client promptly upon its becoming aware that it is obliged to pay the same. The Client will indemnify EPC in respect of all such Applicable Taxes, and, if any Applicable Taxes or amounts in respect thereof must be deducted from any amount payable or paid by the Client hereunder, the Client shall pay such additional amounts as may be necessary to ensure that EPC receives a net amount equal to the total amount which it would have received had such payment not been subject to such Applicable Tax.
7.5. Payments will be transferred to the EPC’s bank account, by way of wire transfer (unless otherwise requested in writing by EPC) within three (3) days of the date of the invoice issued by EPC based on the Report. In the event that the Client fails to timely transmit any payments to the EPC’s bank account, You shall pay EPC a monthly interest of the lesser of: (i) one and a half percent (1.5%) or (ii) the maximum interest rate allowed under applicable law on the entire amount due to EPC as of the applicable due date.
8.1. Either party may terminate the Agreement: (a) with or without cause, by giving two (2) days prior written notice of its intent to terminate the Agreement to the other party, (b) upon commencement by the other party of any voluntary proceedings with a view to the liquidation, administration, winding up, entry into receivership, reorganization, dissolution or any other insolvency proceedings of such party or upon any assignment by such other party for the benefit of creditors or a composition with creditors or any similar action in consequence of debt, or (c) if a petition is filed by any person for the winding-up, liquidation, bankruptcy, receivership, reorganization or for the administration of the other party or for the appointment of any liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, permanent or interim receiver or administrator in respect of the other party over all or any part of its assets.
8.2. In addition, and without derogating from the parties’ rights above, EPC may terminate the Agreement immediately without incurring any liability to the Client if the Client breached its representations hereunder.
8.3. Immediately upon termination, EPC will be entitled to remove the Links and the Inventory and the parties shall have no further rights and obligations towards each other except for any right or obligation which is, by its nature, intended to survive termination of the Agreement including, without limitation the Parties’ indemnification and confidentiality obligations.
8.4. Notwithstanding the provisions of Section above, upon termination or expiration of the Agreement all amount owed between the Parties shall become due and payable.
9. Intellectual Property
9.1. Client shall retain all right, title and interest in and to the Client’s Site and Marks. The Client hereby grants EPC a non-transferable, non-exclusive, revocable license to use the Client Marks and Client’s Site solely for the purpose of promoting the Client’s Site.
9.2. EPC retains all right, title and interest in and to the Inventory, and all other content created or originated by EPC or anyone acting on its behalf (collectively “EPC Property”). The Agreement shall not transfer to Client any right, title or interest in or to EPC Property, or in any copyright, patent, trade secret, or other intellectual property or proprietary rights related thereto or associated therewith.
10.1. During the Term and at any time thereafter, the Receiving Party shall (a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care, including, with respect to Customer Information, complying with all applicable laws regarding the protection of personal information and each Party’s privacy and personal information security policies; (b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to perform its obligations or as otherwise permitted under the Agreement; (c) not disclose any such Confidential Information to any person, except to the Receiving Party’s representatives who needs to know the Confidential Information to assist the Receiving Party, or act on its behalf, in exercising its rights or performing its obligations under the Agreement. The Receiving Party shall not interpret, reverse-engineer, decompile or disassemble any part of any software to which it is given access by or through the Disclosing Party in connection with the Agreement.
10.2. Each Party agrees that any unauthorized use or disclosure of Confidential Information may cause immediate and irreparable harm to the Disclosing Party for which money damages may not constitute an adequate remedy. Therefore, each Party agrees that injunctive relief may be sought in addition to any other remedies that the Disclosing Party may have.
10.3. Upon termination of the Agreement or upon the Disclosing Party’s earlier request, the Receiving Party shall promptly deliver to the Disclosing Party, or certify to the Disclosing Party in writing that it has destroyed, all of the Confidential Information held by the Receiving Party, any copies or partial copies thereof and material containing such Confidential Information; provided, however, that the Receiving Party shall be entitled to retain Confidential Information (a) as may be required to comply with the Receiving Party’s internal record-keeping policies or any applicable law to which it is subject; or (b) that is maintained as archive copies on the Receiving Party’s disaster recovery and/or information technology backup systems. Any such Confidential Information so retained will continue to be bound by the confidentiality obligations of the Agreement.
10.4. The provisions of this Section shall survive termination of the Agreement for any reason whatsoever.
11.1. Client may not, without the prior written consent of EPC, assign the Agreement, in whole or in part, to any third party and any attempt to do so shall be deemed a material default of the Agreement and shall be void.
11.2. The Agreement is solely for the benefit of the Parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity.
11.3. the Agreement and the annexes attached hereto (if applicable, as such may be amended and re-executed from time to time) shall constitute the entire agreement between Company and Client with respect to the subject matter hereof and all prior agreements, representations, and statements with respect to such subject matter are superseded hereby.
11.4. the Agreement shall not serve to create a principal agent relationship, partnership or joint venture between the parties. Each party shall retain control and full responsibility over its own employees and agents.
11.5. No failure of either party to exercise or enforce any rights under the Agreement shall be construed as a waiver of subsequent breaches.
11.6. In the event any provision of the Agreement is for any reason held invalid, illegal or unenforceable, the parties will begin negotiations for a replacement provision and the remaining provisions of the Agreement will be unimpaired.
11.7. If either party is prevented from performing any of its obligations under the Agreement (except for any payment obligation) due to any cause beyond the party’s reasonable control, including, without limitations, an act of God, fire, flood, explosion, war, strike, embargo, government regulation, civil or military authority, acts or omissions of telecommunication carriers, transmitters, providers, vandals, or hackers, the time for that party’s performance will be extended for the period of the delay or inability to perform due to such occurrence; provided, however, that Client will not be excused from the payment of any sums of money owed by Client to EPC.
11.8. All notices and other communications under the Agreement shall be in writing and shall be delivered by hand, overnight delivery service, registered or certified mail (return receipt requested),or shall be transmitted by electronically confirmed facsimile or email, , to the address, email address or fax or such other addresses as specified above in the order form. Notice shall be deemed given on the same day when delivered by hand or by overnight delivery service, five (5) days after if delivered by registered or certified mail, or one (1) day after transmission if transmitted by electronically confirmed facsimile or email.
11.9. The Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the party drafting the Agreement in construing or interpreting the provisions hereof.
11.10. In cases of dispute that have arisen from discrepancies in the translation of the Agreement from English to another language, the legal authority of the English Agreement shall prevail.
ANNEX A – DATA PROTECTION
1. Company and the Client, as identified in the Agreement (each “Party”), are parties to the Agreement, as defined below, to which this Data Protection Annex applies.
2. By approving the Agreement and this Data Protection Appndix, Client shall qualify as the Data Controller, as this term is defined under Data Protection Laws. All capitalized terms not defined herein shall have the meaning set forth in the Agreement.
3. All capitalized terms not defined in this Data Protection Annex have the meanings set forth in the Agreement.
4. “Agreement” means the agreement between Company and Client which involves Client having access to or otherwise Processing Personal Data;
5. “Approved Jurisdiction” means a member state of the EEA, or other jurisdiction as may be approved as having adequate legal protections for data by the European Commission currently found here https://ec.europa.eu/info/law/law-topic/data-protection_en
6. “Breach Incident” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored or otherwise processed;
7. “Data Protection Laws” means any and/or all applicable domestic and foreign laws, rules, directives and regulations, on any local, provincial, state or deferral or national level, pertaining to data privacy, data security and/or the protection of Personal Data, including the Data Protection Directive 95/46/EC and the Privacy and Electronic Communications Directive 2002/58/EC (and respective local implementing laws) concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), including any amendments or replacements to them, including the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”).
8. “EEA” means those countries that are member of the European Economic Area.
9. “Personal Data” or “personal data” means any information that is about, or can be related to, an identifiable individual. It includes any information that can be linked to an individual or used to directly or indirectly identify an individual, natural person. Personal Data shall be considered Confidential Information regardless of the source.
10. “Process” or “process” means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, access to, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure, or destruction. “Processes” or “processes” and “Processing” or “processing” shall be construed accordingly.
DATA PROTECTION AND PRIVACY
11. If Client has access to or otherwise Processes Personal Data, then Client shall:
11.1. Only Process the Personal Data in accordance with the requirements of the Data Protection Laws as applicable to Data Controllers, and as required under Data Protection Laws, maintain accurate written records of all the Processing activities of any Personal Data carried out under the Agreement.
11.2. without derogating from the foregoing, be responsible to provide data subject with the any information required under the Data Protection Laws, and to allow data subjects to exercise their rights under the Data Protection Laws;
11.3. implement and maintain commercially reasonable and appropriate physical, technical and organizational security measures to protect Personal Data against accidental or unlawful destruction; accidental loss, alteration, unauthorized disclosure or access to personal data transmitted, stored or otherwise processed, and all other unlawful forms of Processing;
11.4. comply with any notification obligations of personal data breach to the supervisory authority and communication obligations to data subjects, as required under Data Protection Laws;
11.5. notify EPC without undue delay, and no later than twenty four (24) hours, after becoming aware of a Breach Incident.
THE TRANSFER OF PERSONAL DATA
12. If Client Processes Personal Data from the EEA in a jurisdiction that is not an Approved Jurisdiction, Client shall ensure that it has a legally approved mechanism in place to allow for the international data transfer.
13. If any of the Data Protection Laws are superseded by new or modified Data Protection Laws (including any decisions or interpretations by a relevant court or governmental authority relating thereto), the new or modified Data Protection Laws shall be deemed to be incorporated into this Data Protection Annex, and Client will promptly begin complying with such Data Protection Laws.
14. Any ambiguity in this Data Protection Annex shall be resolved to permit the Client to comply with all Data Protection Laws. In the event and to the extent that the Data Protection Laws impose stricter obligations on the Client than under this Data Protection Annex, the Data Protection Laws shall prevail.
15. Client agrees that, in the event of a breach of this Data Protection Annex, neither Company nor any relevant Company’s customer will have an adequate remedy in damages and therefore either Company or an affected customer shall be entitled to seek injunctive or equitable relief to immediately cease or prevent the use or disclosure of Personal Data not contemplated by the Agreement and to enforce the terms of this Data Protection Annex or ensure compliance with all Data Protection Laws.