xSellco Affiliate Partner Program Agreement

BY SELECTING “I AGREE TO TERMS & CONDITIONS”, YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, ANY TERMS OF USE AND PRIVACY STATEMENT ON OR REFERENCED ON THE PARTNER ACCOUNT AND/OR THE XSELLCO SITE, ALL OF WHICH ARE INCORPORATED INTO AND FORM PART OF THIS AGREEMENT. YOU ALSO REPRESENT THAT YOU HAVE READ AND UNDERSTAND ALL OF THE PROVISIONS OF THIS AGREEMENT. YOU MUST ACCEPT THIS AGREEMENT BEFORE YOU CAN PARTICIPATE IN THE XSELLCO AFFILIATE PARTNER PROGRAM. XSELLCO’S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER BY XSELLCO, ACCEPTANCE IS LIMITED TO THESE TERMS. THIS IS A LEGAL AGREEMENT BETWEEN YOU (YOUR COMPANY IF APPLICABLE) AND XSELLCO.

 

WHEREAS, xSellco Limited has created the xSellco Software to enable merchants to manage their online business using xSellco Services;

 

WHEREAS, xSellco Limited has established a Partner Program to enable partners to refer merchants to xSellco in exchange for commissions and other benefits provided by xSellco from time to time; and

 

WHEREAS, Partner desires to become an xSellco partner under xSellco’s Partner Program, to market and promote the xSellco Services and refer merchants to xSellco, on the terms and conditions set forth below.

 

NOW, THEREFORE, xSellco Limited, an Irish incorporated company with registered number 509821 and having its registered offices at Two Haddington Buildings, Haddington Road, Dublin 4, Ireland (“xSellco”) and you or the entity you represent and its directors, employees, contractors, agents and assigns  (“Partner”) agree to the following terms for Partner’s participation in the xSellco Partner Program (“Partner Program”):

 

  1. DEFINITIONS

  • “Affiliate” means with respect to a party, an entity which controls, is controlled by, or is under common control with such party. For purposes of this definition, the term “control” means: (a) beneficial ownership of at least 50% of the voting securities of a corporation or other business organization with voting securities (or such lesser percentage which is the maximum allowance by a foreign corporation in a particular jurisdiction); (b) a 50% or greater interest in the net assets or profits of a partnership or other business organization without voting securities; or (c) the ability to direct the affairs of any such entity.

  • “xSellco Services” means the xSellco Site and Internet web pages, including but not limited to, the functionality, text, data, information, materials, software, and graphics contained or provided in any form or media that may be accessible through the xSellco Software, which is currently located at the xSellco Site, that enable merchants to manage and operate ecommerce businesses, as well as all updates, enhancements and modifications thereto.

  • “xSellco Software” means the SaaS-based software created by xSellco and all intellectual property contained therein. 

  • “Commission” means the compensation that xSellco may provide to Partner for a Referred Merchant.

  • “Partner Program” means the then-current program established by xSellco to incentivize and reward partners to refer merchants to xSellco and to provide partners with other benefits from time to time. Partner Program benefits may have additional terms, conditions, and licences associated with them; Partner’s use thereof is deemed Partner’s acceptance of such additional terms.

  • “Prospect” means a prospective merchant who Partner believes in good faith is interested in purchasing xSellco Services and who Partner registers via the applicable landing page, registration form or link as set out in the Partner Program.

  • “Active Referred Merchant” means a Prospect registered by Partner, accepted by xSellco, and who subsequently purchases and enters into an xSellco License Agreement as a result.

  • “Trademarks” means those xSellco trademarks, marks, trade names, service marks, logos, marketing messages and other proprietary words, symbols and branding that are owned or held by xSellco.

 

  1. ENROLLMENT AND MARKETING RIGHT 

2.1 Enrollment. Upon xSellco’s acceptance of Partner into the Partner Program, Partner must accept this Agreement in order for Partner to participate in the Partner Program. 

 

2.2 Marketing Right. During the Term (as defined below) of this Agreement, xSellco authorises Partner to promote and market the xSellco Services and refer merchants to xSellco on a non-exclusive basis. Partner will use commercially reasonable efforts to market and promote the xSellco Services to Prospects. Any marketing activities undertaken by either party will be at their sole expense unless otherwise agreed in advance in writing.

 

2.3 Marketing Support. xSellco will provide marketing support in connection with marketing the xSellco Services to Prospects as determined between the parties.

 

2.4 Partner Program Administration. xSellco will administer the Partner Program using tools to track Partner’s Partner Program participation and tools to allow Partner to take advantage of Partner Program benefits. xSellco may contact Partner and send notice by telephone, physical and electronic mail or through social media for the primary purpose of administering the Partner Program. 

 

2.5 Change to Partner Program Terms. xSellco may change or discontinue the Partner Program or any aspect of it. xSellco will give Partner 30 days’ notice of any substantive Partner Program change (which may include, without limitation, changes to Commission structure and calculation, and a discontinuation of all or a part of the Partner Program). If Partner disagrees with any substantive change, then Partner has the right to immediately terminate this Agreement upon written notice to xSellco. For all other changes, Partner will be bound by the changes on a going-forward basis as of the date the changes are posted.

 

  1. PROSPECT REGISTRATION

3.1 Opportunity Registration. To register a Prospect, Partner must identify the merchant using the procedure specified by xSellco. xSellco may reject a registration request or change an active referrals status if the Prospect: (a) is the subject of a then-active direct sales effort by xSellco or another xSellco partner, or another partner has registered such Prospect, (b) is the issuer of an applicable public request for proposal, (c) is not a desirable customer for credit or legal reasons, such Prospect’s suspected or actual inability or unwillingness to comply with xSellco’ acceptable use policies, or any other reason determined in xSellco’ sole discretion, (d) the prospect is an account that belongs to the referral partners business, affiliate businesses or subsidiaries.  

 

3.2 xSellco. The purchase, use and support of the xSellco Services by Referred Merchants will be pursuant to xSellco’s then-current prices, policies, terms and conditions, and xSellco will develop, own, administer, control and enter into the agreements with Referred Merchants for the xSellco Services.

 

3.3 No Representations. Partner will not make any warranties concerning the quality, performance or other characteristics of the xSellco Services, other than those which are consistent in all respects with, and do not expand the scope of, the warranties contained in the then-current version of the xSellco Services made available on the xSellco Site.  xSellco expressly excludes all liabilities to third parties arising as a result of a breach by Partner of this provision.  

 

3.4 Contacts. Partner will designate a primary contact person who will serve and have authority to act as Partner’s primary business contact for this Agreement (“Primary Contact”). 

 

  1. COMMISSIONS AND PAYMENT TERMS. 

To be eligible for Commissions, all of the following criteria must be met by an Active Partner;

  • The referred client(s) must be on a paid subscription for xSellco Services for a minimum of 6 months.

  • The referred client(s) must have accepted the xSellco License Agreement.

  • The referred client(s) is not in breach of the xSellco License Agreement.

  • Partner must be in good standing and must not be in breach of the xSellco Partner Program Terms & Conditions.

  • Partner must not be entitled to any compensation through any other xSellco program or agreement with xSellco due to xSellco entering into an xSellco services agreement with the referred client. Commissions will not be provided on xSellco services agreements for xSellco services to be used by partner.

 

Commission

Active Partners may be paid a commission to a partner designated account based on the fees of the recurring xSellco subscriptions received by xSellco from such referred client, less: (a) Third Party Service and Product Fees including bank fees, (b) other xSellco services fees that are not recurring xSellco subscriptions (e.g. one-time professional services fees, (c) the amount of all refunds, and (d) the amount of taxes, duties and other governmental fees.

 

Commission.

Commissions will be calculated based on the percentage set forth in Exhibit A. 

 

Payment Terms.

xSellco will pay the commissions due to partner on a quarterly basis in arrears; provided, however, xSellco will not pay partner the first commission payment for a referred client until such referred client is a paying customer for a minimum of 6 months.

Disputes

In the event that there is a dispute regarding the registration of a client opportunity by partner or if partner is entitled to a commission, the parties will enter into good faith discussions to resolve the dispute, and escalate as appropriate. Upon xSellco’s request, partner will provide information reasonably necessary to resolve such dispute (e.g. documentation that partner’s registration of a client opportunity meets the requirements for a commission). Subject to the foregoing, xSellco’s decision regarding the registration of a client opportunity by a partner or if partner is entitled to commission is final.

 

Charge Backs and Withholding

xSellco may deduct from commissions or, at its option, require partner to repay any amount paid to a partner as commission for a prior period if the invoiced amount on which the commission was based is not paid when due, or is later charged back or refunded for any reason (other than by way of gratuity payment or credit for xSellco failure to provide the xSellco Services to the referred merchant). xSellco will have no obligation to partner to pursue collection efforts against any referred clients. If Partner is also a customer of xSellco and has not timely paid amounts due for xSellco Services, or if partner has any other unpaid amounts due to xSellco, then xSellco may either withhold commissions due to partner under the Partner Program Agreement until those invoices are paid, or deduct the fees owed by partner from the commissions due to partner under the Partner Program Agreement.

 

Inactive Partners

In the event partner is an Inactive Partner, then partner will no longer be entitled to any commissions for a specific referred client or all referred clients, as applicable. An ‘Inactive Partner’ means partner meets one or more of the following:

  • In xSellco’s good faith opinion, Partner has failed to comply with any Partner Acceptable Use Policy set forth in the Partner Program Agreement.

  • Partner is in breach of the Partner Program Agreement.

  • Partner fails to renew the Partner Program Agreement.

  • xSellco terminates the Partner Program Agreement with partner for any reason.

  • Partner has not engaged with xSellco within a 6-month time period.

If xSellco terminates the Partner Program Agreement for convenience, then, commissions will be paid to partner for a period of 6 months after the effective date of termination with respect to referred clients accepted by xSellco before such termination. If xSellco terminates the Partner Program Agreement for any other reason, then no commissions will be earned or paid after the effective date of such termination, notwithstanding any provisions to the contrary in the Partner Program Agreement or the Partner Program Guide, and xSellco will not owe partner any future commissions.

 

Other Program Benefits

In addition to the commissions, xSellco may provide partner with other benefits. xSellco may modify or terminate these other benefits at any time in its sole discretion. xSellco may from time to time pay commissions on more favourable terms than those reflected in the Partner Program as part of a limited promotional offer. Any promotional offers are temporary, do not vary the terms of the Partner Program Agreement and may be subject to additional terms and conditions.

 

  1. TRADEMARKS AND INTELLECTUAL PROPERTY

5.1 Limited Trademark License. The xSellco Trademarks, including but not limited to brand marks, name and logos, are available to Partner only after being approved by xSellco in writing. As long as Partner receives such approval, xSellco grants to Partner a non-exclusive, non-transferable, non-assignable, revocable, limited, royalty-free licence to use the applicable xSellco Trademarks solely in connection with the Partner Program. Partner will comply with xSellco’s guidelines for the use of the xSellco Trademarks and will reasonably cooperate with xSellco in facilitating xSellco’s monitoring of such use. xSellco Limited is the sole owner of the xSellco Trademarks and Partner will not acquire any right, title or interest in the xSellco Trademarks because of Partner’s use of the xSellco Trademarks. Partner will not (a) adopt or use any name, trademark, domain name or other designation that includes all or part of any xSellco Trademark or any term that is confusingly similar, (b) alter, animate or distort the xSellco Trademarks nor combine them with any other symbols, words, images or design elements (including, without limitation, those of Partner), (c) challenge or assist others to challenge the xSellco Trademarks or the registration thereof, or (d) attempt to register or cause to be registered the xSellco Trademarks or any trademarks, marks, trade names, service marks, logos, marketing messages or other proprietary words, symbols and branding confusingly similar to those of the xSellco Trademarks. Partner understands and agrees that all use and goodwill associated with the xSellco Trademarks will inure to the benefit of xSellco. Upon termination or expiration of this Agreement, Partner will cease to use the xSellco Trademarks. xSellco will have the right to immediately suspend or terminate Partner’s use of the xSellco Trademarks if Partner’s usage is improper or inconsistent with the terms of this Agreement or if Partner otherwise breaches this Agreement.

 

5.2 Intellectual Property. For the avoidance of doubt, xSellco owns, and will continue to own, all right, title and interest in and to the xSellco Services, the xSellco Site, the Partner Account, the xSellco Trademarks, and any and all xSellco materials provided or made available to Partner under or in connection with this Agreement, including all accompanying worldwide intellectual property rights. Partner receives no rights in the foregoing. xSellco reserves all rights not expressly granted to Partner under this Agreement.

 

5.3 Advertising and Publicity. Partner will not issue any press releases or make any public announcements with respect to this Agreement and Partner’s relationship with xSellco without xSellco’s prior written express consent. xSellco will request Partner’s permission if xSellco plans to use Partner’s name or corporate logos or identity in advertisements or promotions relating to the Partner Program. Partner will not unreasonably withhold or delay Partner’s permission. If xSellco does not receive Partner’s response within 30 days, then Partner will be deemed to have granted permission. Notwithstanding the foregoing, xSellco may include Partner’s name in public lists of xSellco’s partners.

 

  1. TERM AND TERMINATION

6.1 Term. This Agreement commences on the date Partner accepts this Agreement and will continue in effect, unless earlier terminated in accordance with this Agreement, for a period of one year (the “Term”).  This Agreement will renew automatically unless Partner has notified xSellco that it wishes to terminate the Agreement at least 30 days prior to expiry of the Term and/or xSellco does not accept Partner into the Partner Program for a successive term.  Prior to expiry and automatic renewal of the Term, Partner may acknowledge and agree to the updated and replacement Agreement terms and conditions (if any) on the Partner Account on or before the expiration of the then current Term of this Agreement.  If Partner does not acknowledge and agree to the updated and replacement Agreement terms and conditions on or before the expiration of the then-current Term of this Agreement, then this Agreement will automatically renew. xSellco may choose not to renew Partner’s participation in the Partner Program for any reason. Upon Partner’s acknowledgement and agreement to the updated and replacement Agreement terms and conditions, and xSellco’s acceptance of Partner, such updated and replacement Agreement terms and conditions become effective and a new agreement will commence and continue in effect, unless earlier terminated in accordance with this Agreement, for a period of one year (also, referred to as the “Term”). Each Term is considered a new and separate agreement and not cumulative.

 

6.2 Termination by xSellco. xSellco may terminate this Agreement for any of the following reasons: (i) at any time in xSellco’s sole discretion on 30 days prior written notice, (ii) for Partner’s breach of this Agreement and failure to cure such breach within 30 days of xSellco’s written notice of such breach, or (iii) immediately upon written notice for Partner’s breach of Section 5 (Trademarks and Intellectual Property), Section 11 (Covenants of Partner), or Section 12.6 (Compliance with Laws). (iv) Partner has failed to provide xSellco with a referred merchant in the space of 5 months on 30 days written notice.

 

6.3 Termination by Partner. Partner may terminate this Agreement (a) at any time upon 30 days prior written notice, or (b) for xSellco’s breach of this Agreement and failure to cure such breach within 30 days of Partner’s written notice of such breach or (c) in accordance with Clause 2.5. 

 

6.4 Effect of Termination. If this Agreement is terminated for convenience by either party, then neither party will be responsible to the other for any costs or damages that are a direct result of the termination. If this Agreement is terminated for any reason, Partner must apply to xSellco for approval to be re-admitted to the Partner Program and, if accepted, will be re-admitted at the Partner Tier determined by xSellco in its sole discretion. Upon termination of this Agreement, the payment and right to receive any further Commissions will be as set forth in the Partner Account.

 

6.5 Return of Confidential Information. Upon termination of this Agreement, each party will promptly return to the other party, or destroy at the disclosing party’s direction, all sales literature, documents, materials and any Confidential Information of the other party and other items supplied to it by the other party. Notwithstanding anything to the contrary herein, it is understood and agreed by the parties, that the receiving party's computer systems may automatically back-up Confidential Information disclosed under this Agreement. To the extent that such computer back-up procedures create such copies of the Confidential Information, the receiving party may retain such copies for the period they normally archive backed-up computer records, subject to the confidentiality provisions of this Agreement.

 

6.6 Non-Exclusive Remedy. Except as otherwise expressly stated herein, termination of this Agreement by either party will be a nonexclusive remedy and will be without prejudice to any other right or remedy of such party. Except as otherwise expressly stated herein, the rights and remedies of the parties to this Agreement are cumulative and not alternative.

 

6.7 Survival. The rights and obligations of the parties contained in Sections 1, 5, 6.4, 6.5, 6.6, 6.7, 7, 8, 9, 10, 11 and 12, and those portions of the Partner Program Guide to the extent required to carry out the rights and obligations set forth in this Agreement, will survive the termination of this Agreement.

 

  1. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS

7.1 Each party represents and warrants to the other party that: (a) it has the right to enter into this Agreement and to perform its obligations hereunder; (b) the execution, delivery and performance of this Agreement does not conflict in any material respect with or constitute a material breach or default of any organizational document, agreement or other writing to which it is a party; and (c) it has all licenses, permissions and agreements necessary or appropriate to perform its obligations under this Agreement.

 

7.2 Partner represents and warrants to xSellco that: (a) all information Partner has provided and will provide in connection with the Partner Program and this Agreement, including the information on the Partner Account is true, correct, and complete, and Partner will promptly update such information with respect to any applicable changes; and (b) Partner has not been and is not currently the subject of any investigation or legal proceeding of any kind in relation to spamming or the violation of any consumer protection or deceptive trade practices laws or regulations.

 

7.3 Partner’s effort and resulting performance in the Partner Program are completely under Partner’s control. xSellco does not guarantee Partner’s satisfaction with the Partner Program or Partner’s results. EXCEPT FOR LOSS AND DAMAGE WHICH CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW (a) THE XSELLCO SITE, THE XSELLCO SERVICES, THE PARTNER PROGRAM, THE PARTNER ACCOUNT, THE xSellco TRADEMARKS, AND ANY xSellco MATERIALS PROVIDED BY XSELLCO TO PARTNER ARE PROVIDED “AS IS,” AND ARE PROVIDED WITHOUT ANY OTHER WARRANTIES OF ANY KIND, AND (b) XSELLCO DISCLAIMS ON ITS BEHALF AND ON BEHALF OF ITS AFFILIATES AND SUPPLIERS ALL OTHER WARRANTIES OR CONDITIONS OF ANY KIND WHETHER EXPRESS, IMPLIED OR STATUTORY. THIS LIMITATION INCLUDES, BUT IS NOT LIMITED TO TITLE, NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, TIMELINESS, OR ANY IMPLIED WARRANTY OR CONDITIONS ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. xSellco may from time to time arrange for third party products and services to be made available to its partners on an optional basis under or in connection with the Partner Program. xSellco makes no representations or warranties whatsoever regarding any third party products or services.

 

  1. INDEMNIFICATION

8.1 xSellco Indemnity. xSellco will, at its own expense, indemnify, defend and hold harmless Partner and its Affiliates, and its and their officers, directors, employees, agents, contractors, and attorneys (“Partner Indemnitees”) from and against any third party claims, actions, liabilities, damages, costs or expenses, including attorneys’ fees and costs, awarded against Partner Indemnitees or agreed upon by xSellco in settlement to the extent arising from or related to: (a) any action or omission of xSellco constituting wilful misconduct or fraud; (b) any failure by xSellco to comply with applicable laws or industry regulations; or (c) a claim that the xSellco Trademarks infringe such third party’s rights.

 

8.2 Partner Indemnity. Partner will, at its own expense, indemnify, defend and hold harmless xSellco and its Affiliates, and its and their officers, directors, employees, agents, contractors, and attorneys (“xSellco Indemnitees”) from and against any third party claims, actions, liabilities, damages, costs or expenses, including reasonable attorneys’ fees and costs, awarded against xSellco Indemnitees or agreed upon by Partner in settlement to the extent arising from or related to: (a) any action or omission of Partner constituting wilful misconduct or fraud; (b) any failure by Partner to comply with applicable laws or industry regulations; or (c) any infringement by Partner of the xSellco Trademarks or intellectual property rights of any third party or (d) a claim that the Partner Trademarks infringe any third party’s rights.

Indemnity Process. The party seeking to be indemnified will give prompt written notice to the other party of the claim against which it seeks to be indemnified and will provide the indemnifying party, at the indemnifying party’s expense, with the assistance reasonably necessary for the defence and settlement of the claim. The failure by the indemnified party to timely furnish to the indemnifying party any notice required to be furnished under this Section will not relieve the indemnifying party of its obligations under this Section 8, except to the extent such failure materially and adversely prejudices the ability of the indemnifying party to defend such matter. The indemnifying party will have control of the defence and settlement of any such claim. The indemnifying party will not be liable for any settlement of an action effected without its written consent (which consent will not be unreasonably withheld or delayed), nor will the indemnified party settle any such action without the written consent of the indemnifying party (which consent will not be unreasonably withheld or delayed). The indemnifying party will have no right to bind the indemnified party to terms other than the terms and conditions in this Agreement or admit liability by the indemnified party in any claim, or settlement thereof, without the indemnified party’s prior written consent, which will not be unreasonably withheld or delayed. The indemnified party may engage counsel of its choice at its own expense.

 

  1. LIMITATION OF LIABILITY

9.1 SUBJECT TO SECTION 9.2 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR (a) ANY LOST OR PROSPECTIVE PROFITS OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (b) ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE COMMISSIONS PAID OR PAYABLE BY xSellco TO PARTNER HEREUNDER DURING THE THEN-CURRENT TERM OF THIS AGREEMENT DURING WHICH THE CLAIM OR CAUSE OF ACTION AROSE. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.

 

9.2 The foregoing limitations on liability set forth in Section 9.1 above will not apply: (a) to a party’s breach of its confidentiality obligations under this Agreement, (b) to Partner’s indemnification obligations under this Agreement under clause 8.2(c) or (d), or (c) to limit a party’s liability for fraud, fraudulent misrepresentation, or for death or personal injury caused by negligence.

 

  1. CONFIDENTIALITY

10.1 Each party will hold in confidence and will not use or disclose (except as expressly allowed herein) any “Confidential Information” of the other party. For purposes of this Agreement, Confidential Information will include all code, inventions, algorithms, all business, technical and financial information one party obtains from the other, specifically including all information which is obtained from the other party and which is designated or marked “confidential” or “proprietary” or which the receiving party knows or has reason to know is confidential or proprietary information of the disclosing party. During the Term of this Agreement and for three years after its termination, neither party will disclose to any third party the specific terms of this Agreement without first obtaining the written consent of the other party.

 

10.2 Neither party will be obligated under this Section with respect to information: (a) that is or has become generally available or known to the public through no fault of the receiving party; (b) that is developed independently by the receiving party without use of or reference to the disclosing party’s Confidential Information; (c) that was rightfully received by the receiving party without obligation of confidentiality from a third party; (d) that was in the receiving party’s possession and without a confidentiality obligation before its disclosure by the disclosing party; or (e) whose disclosure is required by law, provided that (if not prohibited by law) the receiving party gives the disclosing party prompt notice of the request for disclosure, gives the disclosing party the opportunity to obtain a protective order or other remedy, and discloses only that portion of the Confidential Information which it is legally compelled to disclose. Each party may disclose the terms and conditions of this Agreement (i) on a confidential basis to its legal or financial advisors, and (ii) on a confidential basis in connection with any financing transaction or due diligence inquiry. The parties specifically acknowledge and agree that the remedy at law for any breach of this Section 10 will be inadequate and that each party, in addition to any other relief available to it, will be entitled to seek temporary and permanent injunctive relief against the offending party without the necessity of proving actual damage or posting a bond.

 

  1. COVENANTS OF PARTNER

11.1 During the Term of this Agreement and for a period of one year after termination, Partner will not intentionally, actively and directly target and solicit Referred Merchants for the specific purpose of converting them to and selling to them replacement services which are a substitute for the xSellco Services. Notwithstanding anything to the contrary in this Section, nothing will: (a) prohibit or restrict Partner from advertising services similar to or competitive with the xSellco Services (b) prohibit or restrict Partner from soliciting a Referred Merchant for services other than the xSellco Services; or (c) prohibit or restrict a Referred Merchant from independently switching to services which are a substitute for the xSellco Services.

 

11.2 During the Term of this Agreement and for a period of one year after termination, Partner will not solicit or encourage, directly or indirectly, any employee of xSellco to terminate his or her employment with xSellco or otherwise interfere with the employment relationship between xSellco and such employee. Notwithstanding anything to the contrary in this Section 11.2, nothing will prohibit or restrict Partner from engaging, directly or otherwise, in generalized searches for employees by use of advertisements in any medium or to engage firms to conduct such searches, so long as such search firms do not target or focus on xSellco or its employees.

 

11.3 Partner will (a) conduct its business in a manner that reflects favourably at all times on xSellco and its good name, goodwill and reputation, (b) not engage in any deceptive, misleading or unethical practices, (c) not engage in any practice that might be detrimental to xSellco, including but not limited to disparagement of xSellco or its products and services, (d) not make false or misleading representations regarding xSellco or its products and services, (e) not publish or employ or cooperate in the publication or employment of any misleading or deceptive advertising material (although Partner is not responsible for any misleading or deceptive material within the marketing literature or other materials provided to Partner by xSellco), and (f) not make any representations, warranties or guarantees to Prospects, Referred Merchants or the trade generally with respect to xSellco which are inconsistent with those contained in the marketing literature provided by xSellco. This provision will survive the termination of this Agreement for a period of one year.

The restrictions set forth in this Section 11 are reasonable and necessary to protect the business interests of xSellco, and are reasonable and necessary to protect the goodwill and other value of xSellco and the benefits bargained for by xSellco under this Agreement. The parties further acknowledge that the restrictions in this Section 11 are narrowly drawn, are fair and reasonable in time and territory, and place no greater restraint upon Partner than is reasonably necessary to secure the goodwill and other value of xSellco and the benefits bargained for by xSellco under this Agreement. The parties specifically acknowledge and agree that the remedy at law for any breach of this Section 11 will be inadequate and that xSellco, in addition to any other relief available to it, will be entitled to seek temporary and permanent injunctive relief against Partner without the necessity of proving actual damage or posting a bond.

 

  1. MISCELLANEOUS

12.1 Notices. xSellco may provide notices to Partner on the Partner Account or via electronic mail, and such notices will be deemed given when posted. All other notices under this Agreement will be in writing with email being sufficient. Such notices shall be sent to the then active xSellco account representative with a cc to legal@xSellco.com and accounts@edesk.com

 

12.2 Status. For all purposes of this Agreement, each party will be and act as an independent contractor and not as partner, joint venture, or agent of the other and will not bind nor attempt to bind the other to any contract.

 

12.3 Assignment. Partner will not have any right or ability to assign or transfer (whether by merger, operation of law or otherwise) this Agreement, in whole or in part, including without limitation any obligations or benefits under this Agreement without the prior express written consent of xSellco, (and any such attempt will be void), which consent may be withheld in xSellco’s sole discretion. A change of control of Partner will be deemed an assignment for purposes of this Section. xSellco may freely assign or transfer this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

 

12.4 Waiver. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. The express waiver by either party of any provision of this Agreement will not constitute a waiver of any future obligation to comply with such provision.

 

12.5 Force Majeure. Neither party will be liable for any breach, or delay in performance, of its obligations under the Agreement if, and to the extent that the breach or delay is directly caused by fire, flood, earthquake or act of God; act of government, war, riot, civil disorder, act of terrorism or revolution; strikes, lock-outs or labour disputes; or other cause similar to the above beyond its reasonable control (a “Force Majeure Event”). The entity delayed or unable to perform will give prompt written notice, including the length of the expected delay, to the entity that expected performance. If a Force Majeure Event occurs, then the parties will promptly mutually review the expected delay and the delayed party or parties will take reasonable measures to minimize any disruption. If the Force Majeure Event continues for 30 continuous days, then either party may terminate this Agreement upon written notice to the other party.

 

12.6 Compliance with Laws. Each party will comply with all applicable federal, state, provincial, and local laws, rules, and regulations in performing its obligations under this Agreement, including, without limitation, all applicable export control laws and regulations. Partner is required to have a corporate policy which communicates internally the need for compliance with applicable anti-bribery and corruption law, sets out good practices that Partner staff should follow, and that rigorously enforces any breach of such policy or the law.

 

12.7 Severability. In the event that any provision of this Agreement is determined to be invalid or unenforceable by a body of competent jurisdiction, that provision will be limited or severed only as necessary to eliminate such invalidity or unenforceability, and the other provisions of this Agreement will remain in full force and effect.

 

12.8 Construction. Headings herein are for convenience of reference only and will in no way affect interpretation of the Agreement. No provision of this Agreement will enure to the benefit of any third parties so as to constitute any such person a third-party beneficiary of this Agreement. This Agreement will be construed without regard to any presumption or rule requiring construction against the drafting party. Each of the individuals executing this Agreement on behalf of a party individually represents and warrants that he or she has been authorized to do so and has the power to bind the party.

 

12.9 Entire Agreement. This Agreement and other documents referenced herein, is the complete agreement between the parties relating to the subject matter of this Agreement and supersedes all proposals, oral or written, any letters of intent, all negotiations, conversations, or discussions between or among the parties relating to the subject matter of this Agreement and all past dealing or industry custom. No changes, modifications, or waivers are to be made to this Agreement unless evidenced in writing and signed by each party’s duly authorized representative. In the event of any conflict between the terms and conditions of the Partner Program Guide and the main terms and conditions of this Agreement, the terms and conditions of the Partner Program Guide will govern and control. The parties hereby agree to execute such other documents and perform such other acts as may be necessary or desirable to carry out the purposes of this Agreement.

 

12.10 Termination of Existing Partner Agreement. This Agreement supersedes any existing agreements, whether written or oral, between Partner and xSellco in which xSellco has agreed to pay Partner a commission or referral fee, or other benefits in exchange for Partner referrals (“Prior Agreements”), and Partner hereby agrees that any such Prior Agreements are terminated effective as of the Effective Date of this Agreement. Partner referrals occurring under any such Prior Agreements will become subject to the terms of this Agreement on the Effective Date of this Agreement. By execution of this Agreement, Partner hereby waives any right to receive commissions or referral fees pursuant to any Prior Agreements for Referred Merchants accruing after the Effective Date of this Agreement and waives any rights to notice set forth in any such Prior Agreements.

 

12.11 Governing Law and Jurisdiction. This Agreement is governed in all respects by the laws of Ireland.  The parties agree that any legal proceedings arising out of or in connection with this Agreement may only be brought in the courts of Ireland.