Terms & Conditions
Terms & Conditions
This Affiliate Agreement is entered into by and between Think Capital Limited (ACN 158 361 561) whose registered office is at Clarendon house, 2 Church St, Hamilton, Bermuda HM 11 ('ThinkMarkets'); and you (the 'Affiliate').
In submitting your application to become an Affiliate of ThinkMarkets you agree to this Affiliate Agreement. This Affiliate Agreement is entered into as of the date when we agree to accept you an Affiliate. (the 'Effective Date').
ThinkMarkets and Affiliate shall collectively hereinafter be referred to as the 'parties' or individually as a 'party'.
A. ThinkMarkets carries on the business of providing financial trading services, including foreign exchange and, contracts-for-difference.
B. ThinkMarkets intends that the Affiliate will carry ThinkMarkets marketing materials on the Affiliate's websites.
C. ThinkMarkets and the Affiliate wish to enter into this agreement pursuant to which the Affiliate shall refer prospective customers to ThinkMarkets on the terms of this agreement,
NOW, THEREFORE, in consideration of the promises and the mutual representations, warranties, covenants, and agreements hereinafter set forth, the Parties hereto, intending to be legally bound, do hereby agree as follows:
1. Definitions and interpretation
1.1 In this agreement, unless the context otherwise requires:
1.2. Unless the context otherwise requires:
1.3. Clause and Schedule headings shall not affect the interpretation of this agreement.
1.4. A person includes a natural person, corporate or unincorporated body (regardless having separate legal personality) and that person's personal representatives, successors and permitted assigns.
1.5. In the case of conflict or ambiguity between any provision contained in the body of this agreement and any provision contained in the Schedule, the provision in the body of this agreement shall take precedence.
1.6. References to clauses and the Schedule are to the clauses and the Schedule of this agreement.
1.7. The Schedule forms part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedule.
2.1. ThinkMarkets will provide the Affiliate with the Marketing Materials and the Affiliate will display those Marketing Materials on the Website or other marketing materials.
2.2. Marketing Materials displayed by the Affiliate will be linked to ThinkMarkets website pages which have electronic tracking mechanisms attached such that should a person independently decide to apply for an Account with ThinkMarkets, ThinkMarkets is able to determine whether or not that person viewed those particular Marketing Materials prior to opening an Account (each a “Referral”).
2.3. ThinkMarkets will supply the Affiliate with a URL which contains the tracking code to enable ThinkMarkets to monitor applications and activations from the Website.
2.4. Should a Referral apply for an Account, ThinkMarkets shall decide, following receipt of such an application, whether or not to accept that person as a Client in accordance with its then current terms and policies for new Account opening (each accepted client, a “Referred Client”). ThinkMarkets has the right, in its sole discretion, not to accept any Referral as a Referred Client for any reason, or without reason, as it shall determine.
2.5. The Affiliate shall promptly perform such other acts, duties, and services as are reasonably requested by ThinkMarkets from time to time or as are reasonably necessary to fulfil the purposes contemplated by this agreement.
3. Fees and payment
3.1 In consideration of the Affiliate performing services under this agreement, ThinkMarkets will pay to the Affiliate the Fees in the amounts and on the payment, terms set forth in the Schedule hereto subject always to clause 3.3 below. For the avoidance of doubt, ThinkMarkets will not and shall be under no obligation to make payments to the Affiliate (under this agreement or otherwise) other than as listed in the Schedule.
3.2 Unless the Affiliate notifies ThinkMarkets within seven (7) Business Days of the relevant invoice that the amount of Fees is incorrect due to an underpayment, the Affiliate agrees that such Fees will be accepted as correct and not be subject to review absent manifest error.
3.3 ThinkMarkets will not make any payment or will revoke existing or pending payments if:
3.4 If, in the sole discretion of ThinkMarkets, the Affiliate and/or a Referred Client(s) has engaged or is engaging in any activity listed under clause 3.3 above, then ThinkMarkets may immediately:
3.5 ThinkMarkets shall be entitled to review and amend the Fees and payment terms set out in the Schedule at any time upon prior written notice to the Affiliate.
3.6 All payments made to the Affiliate under this agreement are deemed to be inclusive of any VAT and any other similar taxes, charges, and duties payable (“Other Tax”) in respect thereof. The Affiliate shall account for any VAT or Other Tax due or payable in relation to any Fees and indemnify ThinkMarkets and hold it harmless in relation to such VAT or Other Tax due or payable and any other liability arising in relation thereto.
3.7 The Affiliate acknowledges and agrees that:
4. Affiliate’s obligations
4.1 The Affiliate undertakes to ThinkMarkets that it will not at any time:
4.2 Upon request, the Affiliate will promptly provide ThinkMarkets with all information and access to the extent ThinkMarkets is required to satisfy itself of any Regulation or to comply with any request or direction from any Governmental Authority.
5. Marketing Materials licence and Intellectual Property Rights
5.1 ThinkMarkets hereby grants to the Affiliate, for the duration of this agreement, a limited, non-transferable, non-exclusive and royalty free license to use the Marketing Materials for the sole purpose of complying with the Affiliate’s obligations under this agreement.
5.2 The Affiliate acknowledges and agrees that:
Representations and warranties
6.1 The Affiliate represents and warrants to ThinkMarkets that:
6.2 The parties each warrant and represent for themselves that:
7. Limitation of liability
7.1 Subject to clause 7.2 below, ThinkMarkets shall not in any circumstances have any liability for any losses, damages, charges or expenses which may be suffered by the Affiliate (or any person claiming under or through the Affiliate) for any matter arising out of or in relation to this agreement, whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, including loss of profits, loss of business opportunity, special damage (even if ThinkMarkets was aware of the circumstances in which such special damage could arise) or loss or corruption of data.
7.2 Nothing in this agreement shall exclude or limit each party’s liability for: (i) fraud or fraudulent misrepresentation; (ii) death or personal injury caused by that party’s negligence; or (iii) any liability which cannot be excluded by applicable law.
8.1 The Affiliate agrees to indemnify and keep indemnified and hold ThinkMarkets, its directors, shareholders, officers, employees, agents, subsidiaries, holding company or a subsidiary of its holding company (each, an “Indemnified Party”) harmless from and against any and all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) that ThinkMarkets or an Indemnified Party may suffer or incur arising out of or in connection with (i) any act or omission of the Affiliate; (ii) any breach by the Affiliate of its obligations under this agreement; (iii) any inaccuracy or misrepresentation in, or breach of, any of the representations or warranties made by the Affiliate under the agreement; or (iv) any fraud, negligence, wilful misconduct or wilful default in connection with the performance of the Affiliate’s obligations under this agreement.
9. Term and termination
9.1 This agreement will come into effect on the Effective Date and will continue in full force and effect until terminated in accordance with this clause 9.
9.2 ThinkMarkets may terminate this agreement at any time by giving seven (7) Business Days’ written notice to the Affiliate, and this agreement shall be terminated at 5pm on the date of the expiry of that notice period.
9.3 The Affiliate may terminate this agreement at any time by giving thirty (30) Business Days’ written notice to ThinkMarkets and this agreement shall be terminated at 5pm on the date of the expiry of that notice period.
9.4 ThinkMarkets may terminate this agreement with immediate effect by notice in writing:
9.5 Either party may terminate this agreement with immediate effect by notice in writing if:
9.6 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination of this agreement shall remain in full force and effect.
9.7 Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
9.8 On termination:
10. Confidential information and publicity
10.1 Each party shall, during the term of this agreement and thereafter, keep confidential, and shall not use for its own purposes (other than implementation of this agreement) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or Governmental Authority) any and all information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this agreement, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
10.2 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any Governmental Authority, any court or other authority of competent jurisdiction.
10.3 The obligations under this clause 10 will survive termination of this agreement.
10.4 If applicable, the Mutual Non-Disclosure Agreement entered by both parties, prior to the date of this agreement, shall terminate at the Effective Date of this agreement.
11.1. Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
11.2. Any notice shall be deemed to have been received:
11.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
12.1 This agreement constitutes the entire agreement between the parties and no earlier representation or agreement relating to any matter dealt with in this agreement whether written, oral, or implied will have any force or effect from the Effective Date.
12.2 This agreement does not constitute an exclusive agreement between the parties and nothing in this agreement shall preclude either party from committing to similar relationships with other persons.
12.3 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership, joint venture or employer/employee relationship between the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
12.4 Neither party will be liable to the other for any breach or failure to perform any of its obligations under this agreement where such breach is caused by any cause beyond that party’s reasonable control (“Force Majeure Event”) provided that the affected party uses its best endeavours to mitigate the Force Majeure Event. If the Force Majeure Event continues for more than ten (10) days, the party not suffering the Force Majeure Event may terminate this agreement immediately.
12.5 No delay, grant of time, release, compromise, forbearance (whether partial or otherwise) or other indulgence by either party in respect of any breach of the other party’s obligations under this agreement is to operate as a waiver of or prevent the subsequent enforcement of that obligation or be deemed a delay, grant of time, release, compromise, forbearance (whether partial or otherwise) or other indulgence in respect of, or a waiver of, any subsequent or other breach.
12.6 ThinkMarkets may assign any or all its rights under this agreement.
12.7 The Affiliate may not assign any or all its rights under this agreement without the prior written consent of ThinkMarkets.
12.8 The Affiliate’s indemnification obligation will survive the termination of this agreement by either party for any reason.
12.9 Each party will sign all documents and do all things reasonably required by the other party to give effect to the terms and intentions of this agreement.
12.10 A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act
12.11 ThinkMarkets may, in its sole discretion, make any amendment(s) to this agreement upon thirty (30) days written notice to the Affiliate. Any such amendment(s) will apply and be binding on the Affiliate on and from the effective date specified in that notice.
12.12 Amendments to this agreement will not be valid and binding unless they are expressly agreed to by ThinkMarkets in writing.
12.13 This agreement may be executed in two or more counterparts each of which will be deemed to be an original, but all of which when taken together will constitute one and the same instrument.
12.14 This agreement is subject to the laws of Bermuda and the parties irrevocably agree to submit to the non-exclusive jurisdiction of the courts in Bermuda over any claim, dispute or matter (whether contractual or non-contractual) arising under or in connection with this agreement including its formation.
Fees and Payments
You can refer clients from any of these countries:
A qualified client is a new trader who opens up a new live trading account, deposits the minimum required funding based on the country group and affiliate type e.g. a trader from Group A under Bronze will be required to deposit $700 into the account and trade the required amount of closed trades. Qualified Clients must trade the minimum Required Closed Trades equivalent one standard (full standard lot) contract round turn for FX, CFD and Spread Bet.
ThinkMarkets shall after the end of each calendar month send a report to the Affiliate specifying the amount of Fees (if any) payable by ThinkMarkets to the Affiliate in accordance with this agreement.
ThinkMarkets shall make payment to the Affiliate of the Fees due in the report above within twenty (20) Business Days following the last day of the calendar month.
Payment of Fees may be made either:
The Affiliate must notify the payment method to ThinkMarkets in writing.