EverMarkets Bermuda Ltd. (the “Exchange”) and its parent EverMarkets Holdings Inc. (“Holdco”)(together “EMX”) are pleased that you would like to be a part of our Affiliate Program (the “Affiliate Program”).
This Affiliate Program Services Agreement (“Services Agreement”), below, contains the complete terms and conditions that apply to you becoming an affiliate in EMX’s Affiliate Program. The Affiliate Program is a subpart of EMX’s broader Terms of Service. By sharing your EMX affiliate code, you agree to abide by our Services Agreement, below.
Anyone located in or a resident of the United States of America, Cuba, Iran, North Korea, Sudan, Syria, Lebanon, Libya and Somalia, or any other jurisdiction where the services offered by EMX are restricted are prohibited from participating in the affiliate program.
Please note that throughout this Agreement, “we,” “us,” and “our” refer to EMX, and “you,” “your,” and “yours” refer to the affiliate.
This Services Agreement explains our obligations to you and explains your obligations to us for the Affiliate Program offered by EMX. When you use your account or permit someone else to use it to purchase or otherwise acquire access to additional EMX service(s) or products or to cancel your EMX service(s) (even if we were not notified of such authorization), this Services Agreement covers such service or actions.
1.1. To enroll and participate in the Affiliate Program, you must be a natural person (and not any corporate or entity, partnerships of any type or form, trust or any entity, program or protocol that is partly or wholly based on or executing artificial intelligence or machine learning programs or protocols) and have an active EMX account, subject to and in compliance with the requirements of any agreements you have with EMX, such as EMX Terms of Service and this Services Agreement.
1.2. The EMX Affiliate Program allows you to provide a platform for advertising EMX via your “website” or “publishing location” (such as an electronic newsletter blog, social media,IM group or others), thereby driving traffic to the EMX web site or web site content, whereby you may earn a portion of the revenue generated (“Commission”) if a person that is not you or one of your Related Persons as defined below (“Visitor”) trades an EMX listed product after being referred to the EMX web site from an internet hyperlink (“Link”) contained on your web site or publishing location.
1.3. After being referred to the EMX website from a Link contained on your web site or publishing location, Visitors have fourteen (14) days to complete their registration in order for your accounts to be linked. Should the Visitor click on another web site or publishing location’s Link that is not controlled by you or Related Persons or return to the EMX web site via another source-coded advertising Link during the initial fourteen (14) days, your Link will be overwritten, and you will not receive a Commission for that Visitor’s account.
1.4. You are not eligible for a Commission on trades made by you or any Related Persons, your employees, agents, representatives, or contractors, as well as made from several accounts owned by the same person; and EMX employees (or their Related Persons) are not allowed to participate in the EMX Affiliate Program.
1.5. You are also not eligible for any Commission derived from any persons referred to the Platform by relying on any materials, videos, content, deliverables, work product owned by or licensed to EMX (such as its research, blog or social media materials) linked, published, used, exploited or posted on your web site or publishing location.
1.6. For purposes of this Services Agreement, “Related Persons” means:
2.1. You acknowledge and agree that you and your agents shall not:
2.2. You also acknowledge and agree that you and your agents will not publish or send any information about EMX that:
2.3. You acknowledge and agree that EMX may terminate Services if you, your website or your publishing location violates, as determined by EMX in its sole discretion, any of the aforementioned restrictions or additional restrictions. EMX also reserves the right to seek recovery of any or all Commission paid or payable to you or your Related Persons and you hereby agree to such liability and repayment of such Commission if you, your website or your publishing location violates, as determined by EMX in its sole discretion, any of the aforementioned restrictions or additional restrictions.
3.1. EMX may, at its sole discretion, decline any party referred by you, decline anyone as a client and suspend or terminate, in whole or in part, any account or other business relationship with any of its clients (including any customer accepted by it as a client) at any time in its sole discretion.
4.1. Where agreed between EMX and you, the Affiliate trading fee discount shall be published on the Platform for you and the referred client. EMX shall not be liable for any fees agreed between you and the referred client.
4.2. In the event of any dispute between the parties as to any amounts payable under this Services Agreement, such dispute shall, unless resolved between the parties, be referred to arbitration under the rules of the Chartered Institute of Arbitrators. The determination of such arbitrator shall be final and binding on both parties and the costs of any arbitrator shall be borne by the parties in such proportions as the arbitrator may determine.
5.1. Commissions under this Service Agreement will be paid to you based on a share of the net revenue contributions made by referred users. Any increase in your account’s percentage will not lead to retroactive payments. Payments will be made promptly and be sent directly into your account. EMX will track all Commissions earned and may, at its sole discretion, decide not to pay any Commission to you should we believe that any referral has been made in violation of its guidelines, in any breach of this Services Agreement or EMX Membership Agreement due to Visitor, user or customer fraud, or due to Visitor, user or customer contract cancellation. It is your sole, and absolute duty to follow precisely this Agreement and its guidelines at all times. EMX is under no obligation whatsoever to pay any Commission to anyone who does not strictly follow this Services Agreement and its guidelines, as modified from time to time.
6.1. Net revenue shall be the revenue generated for EMX for trades that include your referrals. This is calculated net of discounts or incentives that have been applied to individual accounts. The revenue generated from each trade is calculated as a sum of the fees paid by both sides of the trade.
7.1. The net Revenue Share paid will be vary over time. EMX has the sole right to change such amount without prior notice to you. EMX may also retroactively change the net Revenue Share amount paid to you.
8.1. As an affiliate, we provide you with the Links necessary to promote EMX products and services, which you may display in any area of your website or publishing location as you wish. The Links will identify your site as a member of our Affiliate Program and will establish a Link from your website or publishing location to ours. You acknowledge and agree it is your sole responsibility to indicate your correct unique referral or affiliate ID in the promotional materials you use on your website or publishing location. You may promote the products and services that EMX offers in any manner you choose unless it misleads Visitors about EMX services.
9.1. EMX will not be responsible for lost sales or lost opportunity to earn Commission due to any cause (such as technical difficulties or over-capacity including system overload or load shedding) preventing EMX from registering any account, accepting deposits, executing trades, closing positions, or providing any other product or service to the Visitor.
10.1. Under no circumstances shall we be liable for any direct, indirect, incidental, punitive, special, or consequential damages for any reason whatsoever related to this agreement, your use or inability to use our website(s) or the materials and content of the website(s) or any other websites Linked to such website(s) or your provision of any personally identifiable information to backend service provider or any third party. This limitation applies regardless of whether the alleged liability is based on contract, tort, warranty, negligence, strict liability or any other basis, even if we have been advised of the possibility of such damages or such damages were reasonably foreseeable. Because certain jurisdictions do not permit the limitation or elimination of liability for consequential or incidental damages, our liability in such jurisdictions shall be limited to the greatest extent permitted by law. If any provision of this limitation of liability is found to be unenforceable, only such provision shall be removed, and the remainder shall be enforced to the greatest extent permitted by law.
11.1. With respect EMX, as well as the contractors, agents, employees, officers, directors, shareholders, and affiliates of such parties, you agree to defend, release, indemnify, and hold such parties harmless from all liabilities, claims and expenses, including attorney’s fees and court costs, for third party claims relating to or arising under this Services Agreement, the service(s) provided by EMX, or your use of the service(s) provided by EMX, including, without limitation, infringement by you, or by anyone else using such service(s) we provide to you, of any intellectual property or other proprietary right of any person or entity, or from the violation of any of our operating rules or policies relating to the service(s) provided. When we may be involved in a suit involving a third party and which is related to our service(s) to you under this Agreement, we may seek written assurances from you in which you promise to defend, indemnify and hold us harmless from the costs and liabilities described in this paragraph. Your failure to provide such assurances may be considered by us to be a breach of these Agreement by you. The terms of this paragraph will survive any termination or cancellation of the Agreement.
12.1. You attest that you are 18 years old in order to enter into this Services Agreement.
13.1. This Services Agreement, the referenced agreements, together with all modifications, constitute the complete and exclusive agreement between you and us, and supersede and govern all prior proposals, agreements, or other communications as to the Affiliate Program. This Services Agreement may not be amended or modified by you except by means of a written document signed by both you and an authorised representative of us.
14.1. The referrer shall have no authority, and shall not hold itself out, or permit any person to hold itself out, as being authorized to bind EMX in any way and shall not do any act which might reasonably create the impression that the referrer is so authorized. For the avoidance of doubt the referrer will not make any recommendation, give advice, accept any commitment or guarantee, or accept any responsibility on any matter whatsoever for or on behalf of EMX.
15.1. The failure of us to require your performance of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by us of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
16.1. Except as otherwise set forth herein, your rights under this Services Agreement are not assignable or transferable. Any attempt by your creditors to obtain an interest in your rights under this Services Agreement, whether by attachment, levy, garnishment or otherwise, renders this Services Agreement voidable.
17.1. You agree that EMX will not be held liable for costs, damages or losses caused by force majeure events, including but not limited to, government restrictions, exchange or market rulings, suspension or delay of trading, war, civil disturbances, earthquakes, strikes, equipment failure, communication line failure, authorized access, theft or any problem, technical or otherwise, which may prevent the referrer or the client referred from entering or modifying an order or prevent EMX from an online transaction, or other events or conditions beyond EMX control, as determined and at the sole discretion of EMX.
18.1. The section headings appearing in this Services Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section. You agree that EMX can modify this Services Agreement anytime and you agree to be bound by any changes.
19.1. This agreement shall commence with effect from the date your affiliate agreement application has been accepted by EMX and shall continue until terminated by one month’s written notice given by either party to the other at any time and for whatever reason.
19.2. EMX may terminate this Agreement immediately at any time by giving written notice to you for any reason or no reason at all.
20.1. This Services Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Bermuda. Each party irrevocably agrees that the courts of Bermuda shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
20.2. The referrer may bring no action arising out of the Agreement, by accepting these terms as part of the EMX Terms of Service, the referrer explicitly agrees to be legally bound by this Service Agreement.