1.1 These terms and conditions (T&Cs) are entered into between (i) the Affiliate Entity set out in the Cover Letter and (ii) Smart Charts Limited whose registered offices are at Corporate House, 10 Oratory Street,
1.2 By entering into this relationship you are confirming that this is a ‘business’ relationship and that you are providing the Affiliate Services (as defined in the Cover Letter) as a person in business.
1.3 You are advised to read these T&Cs and the Cover Letter, since together they consist of the entire agreement between us (this “Agreement”).
1.4 This is an Affiliate Program for Smart Charts Limited and all of its’ domains and sub-domains (“Affiliate Program”) that relates to the provision by you of certain affiliate services to us as set out in the Cover Letter (the “Affiliate Services”) upon the terms and conditions set out in herein.
2. Term & Termination
2.1 You are deemed to have accepted this Agreement on the date you tick the box agreeing to this Agreement or execute this agreement (“Commencement Date”).
2.2 Unless terminated in accordance with this clause, this Agreement will continue for no less than 12 months from the Commencement Date (“Term”).
2.3 Following the Term, this Agreement will continue in full force unless and until terminated by either party immediately by providing written notice to the other at the address or email address set out in the Cover Letter.
2.4 In the event of termination in accordance with clause 2.3, all Commissions due and payable to you shall remain due to you in accordance with the terms of this Agreement and the payment terms set out in the Cover Letter.
2.5 We will terminate this Agreement, immediately in the event that we are notified that you have:
(a) committed a material breach of your obligations under this Agreement; or
(b) in our reasonable opinion, or are about to become, the subject of a bankruptcy order or take advantage of any other statutory provision for the relief of insolvent debtor; or
(c) entered into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with its creditors; or
(d) committed fraud in your use of the Affiliate Program or should you abuse this program in anyway; and
(e) convened any meeting of your creditors, enter into voluntary or compulsory liquidation, have a receiver, manager, administrator or administrative receiver appointed in respect of your assets or undertakings or any part of them, any documents are filed with the court for the appointment of an administrator in respect of you, notice of intention to appoint an administrator is given by you or any of your directors or by a qualifying floating charge holder, a resolution is passed or petition presented to any court for your winding up or for the granting of an administration order in respect of you, or any proceedings are commenced relating to your insolvency or possible insolvency.
2.6 In the event of termination in accordance with clause 2.5, no further Commissions shall be due and payable to you.
3.1 The Commission payable to you under this Agreement is as set out in the Cover Letter. We manage our own own Affiliate tracking and payments. Our payment terms are clearly displayed in the Affiliate Dashboard and Cover Letter. By accepting this Agreement you indicate that you have read and are aware of these terms of payment.
3.2 You will automatically be paid on a monthly basis on the Payment Terms set out in the Cover Letter. You acknowledge and agree that commissions will be payable on the last day of the following month from the date of sale.
3.3 In the event of cancellation by the purchaser no commissions will be due and payable to you.
3.4 All payments must be made in $USD unless otherwise agreed in writing between us.
3.5 It is your responsibility to provide the Affiliate Services at your expenses as set out in the Cover Letter.
3.6 If an event occurs outside our reasonable control, which may include, but is not limited to the unavailability of key personnel, any technology being down, or key materials (without which we cannot provide the Affiliate Program) we will notify you by email. In such an instance, we will not be liable to you for any failure or delay in performing our obligations where such failure or delay results from any cause that is beyond our reasonable control. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question.
3.7 Changes to your payment details must be made in writing to the email address on the Cover Letter no later than 5 days prior to a scheduled payment date. We will not be responsible for any charges or penalties charged to you by third parties as a result of incorrect payment details or incorrect Affiliate Links.
4. Status and limitation of liability
By entering into this Agreement, you acknowledge and agree that:
4.1 To the maximum extent permitted by law, any implied terms, representations and warranties are excluded (including those implied by trade, custom, practice or course of dealing);
4.2 You have not relied on any statement, promise or representation made or given by or on our behalf;
4.3 To the maximum extent permitted by law, our aggregate liability arising out of or related to the Affiliate Program, whether in contract, personal injury, damage to belongings or otherwise shall not exceed the amounts actually due to you under this Agreement;
4.4 To the maximum extent permitted by law, we will not be liable to you in any way for:
(a) any indirect, special, or consequential loss, damage, expense, cost, loss of income, business, data, goodwill or profits, or for any loss or damage that was not reasonably foreseeable by us at the time you entered into this Agreement, including any business interruption, third party claims, changes to the Affiliate Program;
(b) any event that we cannot reasonably control and which would have been unavoidable (despite reasonable commercial efforts to prevent the event happening) or resulting from us complying with any relevant requirement under any law or regulation to which we are subject
4.5 except for actions for breach of intellectual property rights (clause 5) or confidential information and privacy (clause 6) or the indemnity (clause 4.8) no action (regardless of form) arising out of this Agreement may be commenced by either party more than one year after the cause of action accrued; and
4.6 Nothing in this Agreement shall be taken to exclude any liability of either party for death or personal injury caused by its negligence or any fraudulent misrepresentation.
4.7 We are not liable (whether caused by our employees, agents or otherwise) in connection with the performance of any of our other obligations under this Agreement.
4.8 You hereby agree to indemnify and hold harmless us and our subsidiaries and affiliates, and each of our directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the Affiliate trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site, including, without limitation, content therein not attributable to us.
4.9 Nothing in this clause 4, shall limit or exclude our liability for death or personal injury caused by our negligence, or for any fraudulent misrepresentation, or for any other matters for which it would be unlawful to exclude or limit liability.
5.0 Intellectual property rights
You acknowledge and agree that:
5.1 All material relating to us, including the information on the Affiliate Dashboard, any branding relating to “Smart Charts" "Smart Charts 2" "The Lifestyle Trader" "Learn To Trade" or "Greg Secker" whether presented before, during or after your Agreement commences are part of our “intellectual property rights”, which includes registered and unregistered rights in any copyright, patents, know-how, trade secrets, trademarks, trade names, design rights, get-up, database rights, and all similar rights.
5.2 You will not, at any time, do anything that would infringe our intellectual property rights, including recording, reusing, reselling or reproducing in whole or in part any information, documents or online content, except in accordance with the Affiliate Services or without our prior consent.
5.3 We will not be responsible (and you will be solely responsible) if you use another person’s copyrighted material or other intellectual property in violation of the law or any third party rights.
6. Confidential information and privacy
All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement, which is marked “Confidential,” will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.
7. Promotion Restrictions
Breach of any Promotion Restriction set out in the Cover Letter will be deemed to be a “material breach” of this Agreement by you.
8. Representations and Warranties
You represent and warrant that:
8.1 This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
8.2 You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party.
8.3 You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
8.4 The nominated individual set out in the Cover Letter has the authority to bind and execute this Agreement.
9.1 You agree that you are an independent contractor and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between or representations on our behalf. You will not make any statement, whether on your Affiliate Website or any other website or otherwise, that reasonably would contradict anything in this Agreement.
9.2 The following clauses shall survive termination of this Agreement: Status & Limitation of Liability (clause 4), intellectual property rights (clause 5) or confidential information and privacy (clause 6), the indemnity (clause 4.8) and General (clause 9)
9.3 The Affiliate Program will be provided with reasonable skill and care, however, in the event of any query or complaint in connection with it, please email us at our email address set out in the Cover Letter
9.4 This Agreement is not enforceable by any third party (whether under statute or otherwise).
9.5 Any notices under this Agreement will be provided to you via the email address you provide in the Cover Letter
9.6 If any of the provisions in this Agreement shall be held to be illegal or unenforceable in whole or in part under any enactment or rule or law, the provision in question shall, to that extent, be deemed not to form part of this Agreement or shall apply with such deletions as may be necessary to make it legal and enforceable and the enforceability of the remainder of this Agreement shall not be affected.
9.7 This Agreement and the benefit of the rights granted to you by this Agreement shall be personal to you and you will not subcontract, novate or assign the rights herein to another party without the prior written consent of the Company.
9.8 The failure of a party to exercise or enforce any right under this Agreement shall not be deemed to be a waiver of that right, nor operate to bar the exercise or enforcement of it at any time or times thereafter.
9.9 This Agreement is the entire agreement between the parties in relation to its subject. No other terms apply.
9.10 Variations to this Agreement will have effect when agreed in writing by the parties. The un-enforceability of any part of this Agreement will not affect the enforceability of any other part, except that We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. In such an event, you will be notified by email. Modifications may include, but are not limited to, changes in the payment procedures and the Affiliate Program rules. If any modification is unacceptable to you, your only option is to terminate this Agreement in accordance with the terms of this Agreement. Your continued participation in the Affiliate Program following the posting of the change notice or new Agreement on our site will indicate your agreement to the changes.
9.11 Unless otherwise agreed, no delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
9.12 If this Agreement conflicts with the Cover Letter then the Cover Letter will take priority.
9.13 The headings and titles contained in this Agreement are included for convenience only and shall not limit or otherwise affect the terms of this Agreement.
9.14 This Agreement is governed jointly by the laws of Malta, England and Wales and the parties submit to the non-exclusive jurisdiction of the courts of Malta, England and Wales.