If you are in full agreement with the document, kindly return the signature page at the end of the documents

Transcription

1 Introducing Broker Agreement If you are in full agreement with the document, kindly return the signature page at the end of the documents Brokersclub Limited is a limited liability company registered in Malta bearing registration number C52844 and is licensed by the Malta Financial Services Authority as an investment servcies provider in terms of the Investment Services Act. 1

2 An agreement entered into this (day) of (Month) (Year) between: On the first part Brokersclub Ltd, a limited liability company registered in Malta, bearing company registration number C52844 and having its registered office address at 37, George Borg Olivier Street, St Julians, STJ 1082, Malta (hereinafter referred to as the Brokersclub ); And On the second part (Name) a (type of company) company registered in (Country), bearing company registration/file number with registered office address at (hereinafter referred to as the IB ). Each hereinafter referred to as a Party and collectively the Parties. WHEREAS A. Brokersclub is duly licenced with a Category 2 Investment Services Licence issued by the MFSA in terms of the Investment Services Act which allows it to provide execution of orders services on behalf of its clients. B. IB wishes to introduce potential clients to Brokersclub with respect to the Services; C. Brokersclub wishes to consider such introductions in furtherance of its business interests. Now therefore it is agreed as follows: 1. Definitions 1.1 In this Agreement, unless the context otherwise requires the following words shall have the following meanings: Agreement means this Introducing Broker Agreement including any schedules herein as may be amended from time to time; Applicant means any potential Client introduced by IB to Brokersclub who wishes to open an account with Brokersclub; Brokersclub Bank s Names and Trademarks mean all names, brands, logos and trademarks owned, registered or used by Brokersclub. Client means an Applicant for whom Brokersclub has opened one or more accounts. Client Data means the name, address and any other information relating to the Applicant or Client. 2

3 Client Database means the compiled listings of personal and financial data, including but not limited to a combination of names, addresses, telephone numbers, electronic mail addresses, identification information and specific financial data and other information pertaining to the Clients. Confidential Information means information relating to the business, trade secrets, financial condition, marketing strategies, know-how, suppliers, customers, operations, pricing, technical information, contract terms and conditions, plans, portfolio of services, company service information sheets, sales information and all information of any kind whether in written or electronic format, oral or otherwise, and whether or not labeled as Confidential and any other information obtained by either of the Parties from one another pursuant to this Agreement, but shall not include any of the following:- (a) information lawfully in possession of either of the Parties prior to its disclosure by one Party to the other; (b) information in the public domain prior to its disclosure by either of the Parties to the other; (c) information which comes into the public domain after its disclosure by either of the Parties to the other; (d) information which is also disclosed to either of the Parties by a third party who is not legally precluded from disclosing the same to either of them. General Business Terms means Brokersclub prevailing General Business Terms and associated documentation in the form from time to time required by Brokersclub that may be amended without prior notice to IB in terms of which Brokersclub will provide the Services to the Client. IB s Names and Trademarks means all names, brands, logos and trademarks owned, registered or used by IB. MFSA means the Malta Financial Services Authority; Notice has the meaning defined in section 11.1 herein; Services means the provision by Brokersclub of execution of orders services/facilities as well as other activities associated thereto. Trading Platform(s) means any of Brokersclub internet trading platforms. 1.2 All references in this Agreement to a statutory provision shall be construed as including references to: any statutory modification, consolidation or re-enactment thereof for the time being in force in Malta; and all statutory instruments or orders made pursuant to that statutory provision. 1.3 Clause and paragraph headings in this Agreement and in the documents attached hereto are solely intended for ease of reference and do not restrict or otherwise affect the construction or interpretation of any provision. 3

4 1.4 Brokersclub or third parties may have provided IB with a translation of the Agreement. However, in case of discrepancies the English version shall prevail over any other version. 1.5 Where appropriate, words denoting the singular shall include the plural and vice versa. 1.6 The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this. 2. Scope 2.1 Subject to clause 3.1 below IB hereby agrees to introduce to Brokersclub, on a non-exclusive basis, potential Clients interested in entering into a business relationship with Brokersclub with respect to the Services. Notwithstanding the non-exclusive nature of the introductions and assistance with negotiations provided by IB to Brokersclub, IB undertakes not to provide similar introductions and assistance to any other person and/or entity holding a licence issued by the Malta Financial Services Authority. 2.2 The obligation of IB is to endeavour to secure Clients for Brokersclub for the purpose of engaging Brokersclub to provide any one or more of the Services. 2.3 Nothing in this Agreement shall be construed or interpreted as: a delegation by Brokersclub to the IB to give investment advice or undertake any licensable financial services activity under the authority of Brokersclub and/or its licence; a delegation by Brokersclub to the IB to hold itself out as an agent, employee, partner, joint venturer or manager of Brokersclub or otherwise empowered to make representations, to contract or to agree variations to the General Business Terms or otherwise on behalf of Brokersclub. IB acknowledges that it is an independent contractor and is solely and exclusively responsible for accounting to the fiscal and/ or revenue authorities for all taxes, insurance contributions and other liabilities and other charges and dues of a personal nature for which IB is or may become liable; an inducement to the IB to actively promote its introducing services; the granting of any permission by Brokersclub to the IB to pass on any documentation, promoting any particular product or service on behalf of Brokersclub to any person or to assist the potential Client in the completion of any relevant documentation; or the granting of any power by Brokersclub to IB to negotiate or conclude any business whatsoever for or on behalf of Brokersclub, without the direct involvement or the explicit, unequivocal and prior written approval of Brokersclub and/or to receive any funds from Clients and/or give any commitments for or on behalf of Brokersclub. 3. Relationship with Clients 3.1 Brokersclub shall be authorised to deal directly with any person introduced by. Brokersclub shall be solely and exclusively responsible to conduct any due diligence checks in respect of any Client/s 4

5 introduced by IB. Brokersclub shall have an unfettered and absolute discretion to determine whether or not it wishes to accept any Client and any such decision on the part of Brokersclub shall not render Brokersclub liable for any lost commission/s and/or claims of any other nature. 3.2 IB acknowledges that the Services provided by Brokersclub to the Client relate solely to the execution of orders for Clients. Brokersclub shall not advise the Client upon the merits or suitability of any transaction. 3.3 It is acknowledged that Brokersclub will provide the Services to the Client in terms of the General Business Terms. 3.4 IB shall not directly or indirectly, for himself or on behalf of any other person, partnership, company, corporation or other entity, solicit or attempt to solicit any Client whether introduced by IB in terms of this Agreement or otherwise. This provision shall survive the termination of this Agreement. 4. Transfer of Data 4.1 IB acknowledges that it may be required to provide Client Data in its possession concerning Applicants and Clients to Brokersclub. For avoidance of all doubt and dispute IB shall not provide Brokersclub with any information such as the means and resources of the Applicant/Client. 4.2 IB shall comply (and will procure the compliance of all its respective directors, officers, employees or agents) with all relevant provisions of any local Data Protection Act relating to the Client Data kept or used by IB for the purpose of carrying out its obligations under this Agreement. 4.3 IB acknowledges and accepts that Brokersclub shall be free to disclose the IB s name and address to the MFSA as and when required. 5. Intellectual Property Rights 5.1 IB hereby grants to Brokersclub a non-exclusive non-transferable royalty free right for the duration of this Agreement to use IB s Name and Trademarks for the sole purpose of Brokersclub performing its obligations pursuant to this Agreement. 5.2 Without prejudice to anything contained herein Brokersclub hereby grants IB a non-exclusive nontransferable royalty free right for the duration of this Agreement to use the Brokersclub Names and Trademarks for the sole purpose of IB performing its obligation pursuant to this Agreement and provided that: a. each reference to Brokersclub Names and Trademarks shall be in a form agreed (in writing in advance by Brokersclub); b. any and all references to Brokersclub Names and Trademarks by IB shall contain such acknowledgements of Brokersclub ownership of any and all intellectual property rights to Brokersclub Names and Trademarks as Brokersclub may from time to time reasonably require; c. IB shall not use any of Brokersclub Names and Trade-marks other than pursuant to this Agreement and with respect to the Services; 5

6 d. IB shall not apply for or obtain registration, including but not limited to trademark and internet domain names, of any of Brokersclub Names and Trademarks (or any trade or service mark which consists or comprises Brokersclub Names and Trademarks or any similar word or words or logo or parts hereof ) for any goods or services in any country; e. IB shall not dispute or challenge the validity of, or Brokersclub rights to, any of Brokersclub Names and Trademarks as registered or used by Brokersclub during the term of this Agreement; f. IB shall not do or admit others to do anything which may diminish or devalue the reputation, image or prestige of Brokersclub or in any way impair any registration of Brokersclub Names and Trademarks; g. IB shall at Brokersclub request and expense, provide all necessary assistance in prosecuting any application for Brokersclub Names and Trademarks and maintaining any registrations for Brokersclub Name and Trademarks. Brokersclub shall however be under no obligation to prosecute, to grant and/or to maintain any trademark application and/or registration; 5.3 Notwithstanding anything contained herein IB accepts and acknowledges that the ownership of the Client Database vests solely and exclusively in Brokersclub and IB shall have no right, claim and/or entitlement to any intellectual property rights whatsoever in the said Client Database. Without prejudice to generality of this clause, IB shall not transfer any Client Data to any third party. This clause shall survive the termination of this Agreement. 6. Indemnity 6.1 Each Party ( the Indemnifying Party ) agrees to indemnify and hold the other Party ( the Indemnified Party ) and its principals, shareholders, officers, directors, employees, agents and representatives harmless from all claims, losses, expenses, fees including attorney fees, costs, and judgments that may be asserted against the Indemnified Party that result from: a. Any breach by the Indemnifying Party of its duties under this Agreement; b. Any misrepresentation made by the Indemnifying Party herein; c. Any debts or obligations arising from the Indemnifying Party failing to comply with applicable laws and regulations. 7. Payments 7.1 Subject thereto, Brokersclub shall pay to IB such amounts as are set out in the Schedule 1 herein attached. Such payments shall be made monthly in arrears. 7.2 Brokersclub may alter the amounts in the Schedule 1 at any time by giving written notice to IB. 7.3 If a Client terminates the relationship with Brokersclub for any reaosn, Brokersclub shall be entitled to cease payment of any fees due by Brokersclub to IB with respect to that Client. 7.4 In addition to the sums mentioned in 7.2 and 7.3 above, value added tax or any similar tax or duty shall (if applicable) also be payable. 6

7 8. Representations and Warranties 8.1 IB represents and warrants as follows: a. That it has and will maintain for the term of this Agreement all licenses, recognitions, registrations, permissions, authorisations, exemptions and memberships necessary for the conduct of its business; and b. IB has power to enter into and perform this Agreement according to its terms and will, upon request, produce to Brokersclub such board resolutions, partnership agreements or other documentation that Brokersclub may reasonably request. 8.2 Brokersclub represents and warrants as follows: a. That Brokersclub has and will for the term of this Agreement retain all recognitions, registrations, permissions, authorisations, exemptions and memberships necessary for the conduct of its business under this Agreement. b. Brokersclub has the power to enter into and perform this Agreement according to its terms. 8.3 Each party warrants its compliance, as well as that of its officers, employees and associated persons with all laws, rules and regulations to which that party may be subject including all laws, rules, regulations to which it may be subject. 9. Term & Termination 9.1 This Agreement is valid for an indefinite period commencing on the date of this Agreement. 9.2 Brokersclub may, by notice in writing to IB, terminate this Agreement forthwith if any of the following events shall occur: a. any of IB s representations ceases to be true or if IB is in breach of any term, condition or provision of this Agreement and either the breach cannot be remedied or IB fails to remedy the same within receipt of a Notice requiring it to do so; b. IB, being a body corporate, shall present a petition or have a petition presented by a creditor for its winding up, or shall convene a meeting to pass a resolution for voluntary winding up, or shall enter into any liquidation (other than as creditors) or shall have a receiver or administrative receiver of all or any of its undertakings or assets appointed, become the subject of an administration order or be deemed to be unable to pay its debts or, if IB is not a body corporate, any analogous event occurs. 9.3 Notwithstanding anything contained herein, either party may terminate this Agreement by giving to the other party 30 days Notice of termination. 9.4 Termination shall be without prejudice to any rights which accrued before termination which may include the right to claim damages. IB shall be entitled to receive any fees in accordance with clause 7 above, which have accrued and are due payable to it as at the termination of this Agreement. 7

8 10. Confidentiality 10.1 All information of whatsoever nature disclosed by one Party to the other Party (including by the relevant Party s employees, agents and advisers) relating to itself and/or any Client shall be treated as strictly confidential and accordingly shall not be disclosed, without the relevant prior written consent from the Client and/or from the disclosing Party, as the case may be Neither Party shall disclose any Confidential Information to any third party without the relevant prior written consent from the other Party. None of the Confidential Information of either Party shall be used by the other Party or its employees for any purpose other than pursuant to this Agreement The Parties undertake to ensure that their employees and any other person to whom they may have, with the prior written consent of the other Party, disclosed the Confidential Information to, shall not take or make copies of any of the Confidential Information, or authorize any other person so to do other than for the purpose of supplying Confidential Information to the directors and senior employees of the person to whom disclosure of such information is permitted in terms of this Agreement. If at any time any Party requires the other Party to do so, it shall forthwith return or procure the return all documents and materials (and all copies thereof) containing the Confidential Information The Parties shall ensure and procure that none of its employees and/or any other person to whom it may have, with the prior written consent of the other Party, disclosed the Confidential Information to, will do any act, matter or thing which, if done by either of the Parties, would constitute a breach of the obligations under the terms of this Agreement Nothing herein shall restrict either party from disclosing Confidential Information to a third party pursuant to a judicial or other lawful government order, but only to the extent of such order or as may be mutually agreed The Parties acknowledge and agree that all Confidential Information disclosed by or on behalf of either Party shall be and remain the property of the disclosing Party. Nothing in this Agreement shall be construed as granting or conferring any licence or any rights whatsoever (including without limitation any intellectual property rights), whether express, implied or otherwise, in respect of the Confidential Information disclosed to either Party Upon request and direction of either Party the other Party shall forthwith (i) return all documents and other material containing such information together with all copies and reproductions thereof; or (ii) destroy all documents and other materials containing such Confidential Information together with all copies and reproductions thereof and the other Party shall confirm such destruction in writing Nothing in this Article 10 shall impede either Party from retaining any Documents and/or information for such period/s of time subsequent to the termination of this Agreement or the cessation of the provision of the Services as either Party shall be legally bound to retain The provisions of this Clause 10 shall survive the termination of this Agreement for any reason whatsoever. 11. General 11.1 All notices to be given under this Agreement will be in writing and will be sent to the address of the recipient shown on the front page of this Agreement, or any other address the recipient may designate by notice given in accordance with this Clause. Notices may be delivered personally, by first class prepaid letter or transmission. 8

9 11.2 This Agreement shall be binding upon and enure to the benefit of the Parties hereto and their respective legal successors but shall not otherwise be assignable by either party without the written consent of the other which consent shall not be unreasonably withheld No delay or failure by either Party to exercise any of its powers, rights or remedies under this Agreement will operate as a waiver of them, nor will any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them. In order to be effective any waiver/s must be in writing If any part of this Agreement is found by a court of competent jurisdiction or other competent authority to be invalid, unlawful or unenforceable then such part will be severed from the remainder of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law Except as otherwise permitted by this Agreement, no change to its terms will be effective unless it is in writing and signed by persons authorised on behalf of both Parties This is the entire agreement of the parties and replaces any previous agreements or discussions This Agreement is being signed in two (2) counterparts, one original for each party and may be transmitted by facsimile or such similar device and the reproduction of signatures by facsimile or such similar device shall be considered as legally binding. The parties mutually undertake to provide each other with such signed originals of this Agreement or any addendum or amendment thereto executed from time to time upon demand by the other party. 12. Governing Law 12.1 This Agreement shall be governed by and shall be construed in accordance with Maltese law Any dispute arising from this Agreement, or concerning the validity, interpretation and/or enforcement of this Agreement, shall be referred to arbitration, which shall be conducted and regulated by The Malta Arbitration Centre, by one arbiter, chosen by both parties, and in default appointed by the Centre, whose award shall be binding on both Parties, as final and conclusive. The place of arbitration shall be Malta. The language to be used in the arbitral proceedings shall be English. IN WITNESS WHEREOF the Parties have executed this Agreement as of the date above first written. for and on behalf of the IB for and on behalf of the Brokersclub Signature IB Name: Place & Date (DD/MM/YYYY) Signature Name: Place & Date (DD/MM/YYYY) 9