Schedule 1 – Commercial Partner Agreement Program Terms and Conditions
The following Commercial Partner Agreement Program Terms and Conditions are agreed by the parties and form part of the Agreement with Partner, as identified in the Key Commercial Terms.
TERM AND TERMINATION
The term and termination provisions of this PartnerAgreement are set out in the Key Commercial Terms.
Without affecting any other right or remedy available to it, either party may terminate this Agreement as a whole with immediate effect by giving written notice to the other party, if the other party commits a material breach of this Agreement and such breach is irremediable or (if such breach is remediable) fails to remedy the breach within a period of thirty (30) days after being notified in writing to do so.
Upon termination, neither party shall be responsible to the other for any costs or damages associated with such termination.
INDEPENDENT CONTRACTOR STATUS
Upon execution of this Agreement, Linnworks acknowledges Partner is an authorized non-exclusive Partner for the products and services of Linnworks. Partner acknowledges that it will be an independent contractor and not an employee, agent, subsidiary or corporate affiliate of Linnworks; that Linnworks will continue to sell its products and services directly; and that Linnworks may retain other Partners. Linnworks will not be responsible for filing or paying any local, federal or state taxes on behalf of Partner. Furthermore, Linnworks will not provide retirement or any other benefits customary to employment. Partner shall bear responsibility for its expenses and shall not be entitled to have those expenses reimbursed by Linnworks.
Linnworks owns, and will continue to own, all right, title and interest in and to its platform, services, materials and trademarks, including all worldwide intellectual property rights therein and thereto. Linnworks reserves, and Partner receives no rights in, the foregoing.
Partner owns, and will continue to own, all right, title and interest in and to its services, materials and trademarks, including all worldwide intellectual property rights therein and thereto. Partner reserves, and Linnworks receives no rights in the foregoing.
During the Term of this Agreement, each party will have the non-exclusive, worldwide, royalty-free right to use the other party’s Trademarks for the purposes expressly authorized in this Agreement. Each party will comply with the other party’s guidelines for the use of such party’s Trademarks. Each party will reasonably cooperate with the other party in facilitating the other party’s monitoring of such use. Nothing herein will grant either party any right, title or interest in the other party’s Trademarks. At no time during the Term of this Agreement will either party challenge or assist others to challenge the other party’s Trademarks or the registration thereof or attempt to register or cause to be registered the other party’s Trademarks or any trademarks, marks or trade names confusingly similar to those of the other party. Each party understands and agrees that all use and goodwill associated with the owning party’s Trademarks will inure to the benefit of such owning party. Upon termination or expiration of this Agreement, each party will cease to use the other party’s Trademarks, except as may be expressly authorized in writing by the other party. Each party will have the right to immediately suspend the other party’s use of such party’s Trademarks if such usage is improper or inconsistent with the terms of this Agreement.
REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to the other party that its products and services and other items provided to the other party or its customers do not and will not (i) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation; (iii) be defamatory or libelous; (iv) be lewd or obscene; (v) violate any laws regarding unfair competition, anti-discrimination or false advertising; (vi) promote violence or contains hate speech; or (vii) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines.
Partner represents and warrants that:
It is validly formed and organized under the laws of its state of operation/incorporation;
It is duly authorized to enter, and perform under the terms of, this Agreement;
It has the ability to perform under this Agreement;
It has no conflict of interest, real or apparent, between its obligations to Linnworks hereunder and its obligations to any other party; and
It is not in default of any obligations of law nor subject to any laws, regulations, or decrees that would prevent or limit its performance under this Agreement.
Partner specifically agrees that:
It shall use its best efforts to promote and sell Linnworks’ products and services;
It shall deploy adequately trained and competent personnel in promoting and selling Linnworks’ products and services;
It shall forward all information regarding a Prospect to Linnworks promptly;
Any decision to accept a Prospect as a Referred Merchant shall lie in the sole discretion of Linnworks;
Linnworks shall not be responsible for any out of pocket costs or expenses incurred by Partner in its performance under this Agreement; and
If any amount of commission has been overpaid, Partner shall repay Linnworks on demand the amount so overpaid;
Partner shall conduct itself professionally in all respects and shall not:
Conduct itself in a manner inconsistent with the image and reputation of Linnworks;
Pressure or mislead, or attempt to pressure or mislead, Prospects into using Linnworks;
Make any representation or carry out any work on behalf of Linnworks;
Do anything which would put it or Linnworks in breach of any applicable laws, rules, regulations, codes of conduct or other professional obligations or conditions;
Enter into any contract, make any representation, give any warranty, or incur any liability on behalf of Linnworks;
Issue any press releases, announcement, circulars or other statements orally or in writing on behalf of Linnworks unless the same has been first approved in writing by Linnworks or provided to Partner by Linnworks for specific circulation;
Have any authority, and shall not hold himself out, or permit any person to hold himself out, or otherwise create the impression that it is an agent for, or authorized to bind, Linnworks in any way, and shall not do any act which might reasonably create the impression that Partner is so authorized;
Make or enter into any contracts or commitments or incur any liability for or on behalf of Linnworks, including for the provision of services or the price for them, and shall not negotiate any terms for the provision of services with Referred Merchants;
Produce any marketing material for supply of services by Linnworks or use the Linnworks name, logo or trademarks on any marketing content and material without the prior written consent of Linnworks; and
Withhold material information about the relationship between the Partner and Prospects.
LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR 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 CAUSE OF ACTION. IN NO EVENT SHALL EITHER PARTY BE LIABLE, IN THE AGGREGATE, IN EXCESS OF THE AMOUNT OF FEES ACTUALLY DUE OR PAYABLE HEREUNDER.
Neither party shall use or disclose to any person either during or at any time after its engagement any confidential information about the business or affairs of the other party, its customers or its business contacts, or about any other confidential matters which may come to the receiver’s knowledge while providing the services. “Confidential information” means any information or matter which is not in the public domain and which relates to the affairs of the party, its customers, or its business contacts.
The restriction in this clause does not apply to:
any use or disclosure authorized by the disclosing party or as required by law; or
any information which is already in, or comes into, the public domain otherwise than through an unauthorized disclosure.
All documents, manuals, hardware and software provided by the disclosing party, its customers or its business contacts, and any data or documents (including copies) produced, maintained or stored on its computer systems or other electronic equipment, remain the property of that disclosing party.
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.
Partner will comply with data protection legislation in performing its obligations under this Agreement, including when processing personal data relating to any employee, worker, customer, client, supplier, or agent of Linnworks.
Partner shall notify Linnworks immediately upon becoming aware of any breach, or potential breach, relating to this agreement, including without limitation, any unauthorized or unlawful processing, disclosure of, or access to, personal data and/or any accidental or unlawful destruction of, loss of, alteration to, or corruption of personal data.
COMPLIANCE WITH ALL LAWS
Each party will comply with all applicable laws, rules, and regulations in performing its obligations under this Agreement.
Partner shall have a corporate policy which communicates internally the need for compliance with applicable anti-bribery and corruption laws, sets out good practices that Partner staff should follow, and rigorously enforces any breach of such policy or the law.
Notices. Linnworks may provide notices to Partner via post, or electronic mail, and such notices will be deemed given when posted. All other notices under this Agreement will be in writing, and will be deemed given when personally delivered, when sent by confirmed fax, or three business days (five business days for international addresses) after being sent by prepaid certified or registered mail or one business day (two business days for international addresses) after being sent by overnight or express courier to the Linnworks’ address identified in the Agreement, and to address provided by Partner.
Status. For all purposes of this Agreement, each party is an independent contractor and not a partner, joint venturer, or agent of the other, and neither will bind or attempt to bind the other to any contract. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, designate either party the agent of the other, or authorize either party to make or enter into any commitments for or on behalf of the other, except in accordance with the express provisions of this Agreement. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
Third Party Rights. Except as otherwise expressly stated herein, nothing in this Agreement shall confer any rights on any person other than the parties hereto.
Assignment. Partner shall not 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 Linnworks, which consent may be withheld in Linnworks’ sole discretion. A change of control of Partner will be deemed an assignment for purposes of this section. Linnworks may assign or transfer this Agreement.
Indemnification. Partner shall defend, indemnify and hold harmless Linnworks, its officers, directors, members, employees and agents from and against any loss, liability, claim or damage (including reasonable attorneys’ fees and costs) relating to or arising from (i) any claim or allegation in connection with the conduct of the Partner and (ii) a breach of this Agreement by Partner.
Non-Solicitation. Neither party shall, without the other party’s prior written consent, either during the Term or within 24 months after the date of effective termination of this Agreement, engage, employ or otherwise solicit for employment any employee, agent or contractor of the other party.
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.
Survival. The rights and obligations of the parties set forth in this Agreement which by their nature are intended to survive, will survive the termination of this Agreement.
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 labor 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.
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.
Construction. Headings herein are for convenience of reference only and will in no way affect interpretation of the 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 for whom they are signing.
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.
Termination of Existing Partner Agreement. This Agreement supersedes any and all existing agreements, whether written or oral, between Partner and Linnworks in which Linnworks has agreed to pay Partner a commission, referral fee or other benefits in exchange for referrals (“Prior Agreements”), and Partner hereby agrees that any such Prior Agreements are terminated as of the 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.