Online Referral Partner Agreement

This online referral partner agreement, consisting of this Cover Page and the attached Business Terms (collectively, this “Agreement”), is made and entered into by and between Fiskl and Partner (each, as defined below). The Agreement shall become effective and binding once Partner has completed the Registration Form and accepts the terms and conditions of this the Agreement in the manner provided by Fiskl (the “Effective Date”). Fiskl and Partner are each a “Party” to this Agreement, and together referred to as the “Parties”.

FisklFiskl Limited, a company incorporated and registered in England and Wales with company number 09330290 whose registered office is at 6a Thirlmere Road, London, N10 2DN.
Fiskl’s Notice AddressName: Alina Lapusneanu, CEO

Email: alina [at] fiskl.com

Partnermeans the person or company (including company name, company number, registered address and other information) detailed in the Registration Form submitted to Fiskl.
Partner’s Notice Addressmeans the name, address and email detailed in the Registration Form submitted to Fiskl.

BUSINESS TERMS

Background

Fiskl is the owner and operator of a mobile and online business productivity service designed especially for small and medium sized businesses and independent freelancers (the “Fiskl Service”).   Partner wishes to promote, market and advertise the Fiskl Service to potential Fiskl customers (“Potential Customers”) through its website(s) and other marketing channels, in accordance with Fiskl’s Partner program (“Referral Program”) detailed in this Agreement.  Fiskl wishes to be introduced to such potential customers, and is willing to pay the Partner a commission on the terms of this Agreement if such potential customers purchase the Fiskl Service.

The Parties agree as follows:

1. Interpretation

The following definitions and rules of interpretation apply in this Agreement.

1.1 Definitions:

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Confidential Information: all information disclosed by one Party to the other Party which is marked as or has been otherwise indicated to be confidential or which would be regarded as confidential by a reasonable business person, save to the extent that such information:

  • (i) is already in the public domain at the time of disclosure; or
  • (ii) enters the public domain other than by a breach of any obligation of confidentiality.

Data Protection Legislation: (i) the Data Protection Act 1998, until the effective date of its repeal (ii) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, for so long as the GDPR is effective in the UK, and (ii) any successor legislation to the Data Protection Act 1998 and the GDPR, in particular the Data Protection Bill 2017-2019, once it becomes law.

Intellectual Property Rights: patents, trade marks, design rights (whether registrable or otherwise), applications for any of the foregoing, copyright, moral rights, performers’ rights, trade or business names, database rights, domain names, rights in computer software, website addresses, know-how, secret processes, trade secrets, rights to inventions, and any similar rights in any jurisdiction whether currently existing or created in the future, together with the right to sue for and recover damages or other relief in respect of infringements of any of them.

Net Income: the payments made to Fiskl for the Fiskl Service under a Subscription Contract less any value added tax or other sales tax on them, any payment processing expenses incurred by Fiskl and any discounts or rebates granted by Fiskl.

Qualified Referrals: Potential Customers:

  • (a) who have been Referred by Partner to Fiskl;
  • (b) of whom Fiskl has no prior record in connection with the Fiskl Service;
  • (c) who accept Fiskl’s terms of service and subscribe to the Fiskl Service within the Referral Period, at a Potential Customer’s own discretion and without receiving any monetary or other incentive from Partner; and
  • (d) who are not rejected by Fiskl, and make at least one subscription payment to receive the Fiskl Service. All Potential Customers will be deemed rejected by Fiskl if they do not become a Qualified Referral within the Referral Period.

Referral: the referral of Potential Customers to Fiskl in accordance with Clause 4. Refer, Refers, and Referred shall be interpreted accordingly.

Referral Date: for each Prospective Customer, the date during the term of this Agreement on which the Partner first Refers such Prospective Customer to Fiskl.
Referral Period: for each Prospective Client, 90 days from the Referral Date. On a case by case basis, the Parties may mutually agree in writing (email sufficing) to waive or extend the Referral Period for a particular Potential Customer.

Subscription Contract: a contract for a subscription to the Fiskl Service entered into during the Referral Period between Fiskl and a Prospective Customer who was Referred by the Partner.

1.2 Person. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.3 Amendments to statutes. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.4 Subordinate legislation. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.5 Writing. A reference to writing or written includes e-mail.

1.6 Including. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.7 Clauses. References to Clauses are to the clauses of this Agreement.

2. Appointment

2.1 Appointment. Subject the terms and conditions of this Agreement, Fiskl appoints the Partner on a non-exclusive basis to identify Prospective Customers for Fiskl in the Territory and to make Referrals of such persons on the terms of this Agreement. The Partner hereby accepts this appointment and agrees and consents to the terms of this Agreement and the Referral Program.

2.2 Referral Program. In order to participate in the Referral Program, Partner must complete the online registration form for participation in the Referral Program found on Fiskl’s website (the “Registration Form”) and enter this Agreement. Fiskl may reject any registration at its sole discretion. Fiskl will send Partner an email notifying the Partner if it has been rejected and this Agreement shall automatically terminate. On acceptance, Fiskl shall assign a unique referral identifier code (“Referral Code”) to the Partner and provide the Partner with access to the online partner portal on Fiskl’s website (“Partner Portal”).

2.3 Duties of Partner.

  • (a) Good faith. Partner shall serve Fiskl faithfully and diligently and not to allow its interests to conflict with its duties under this Agreement;
  • (b) Referrals. Partner shall use its best endeavours to make Referrals of Prospective Customers; and
  • (c) Compliance with instructions. The Partner shall cooperate with Fiskl and comply with all reasonable and lawful instructions of Fiskl, including the compliance obligations set out in Clause 8 of this Agreement.

2.4 Limited scope of authority.

  • (a) No authority to bind. Partner shall have no authority, and shall not hold itself out, or permit any person to hold itself out, as being authorised to bind Fiskl in any way, and shall not do any act which might reasonably create the impression that Partner is so authorised.
  • (b) No authority to contract or negotiate. Partner shall not make or enter into any contracts or commitments or incur any liability for or on behalf of Fiskl, including for the provision of the Fiskl Service or the price for them, and shall not negotiate any terms for the provision of the Fiskl Service with Prospective Customers.

2.5 Limits on representations. Partner shall not, without Fiskl’s prior written consent, make or give any representations, warranties or other promises concerning the Fiskl Service which are not contained in the Marketing Materials.

2.6 Prohibited Activities. Partner agrees not to associate Fiskl or the Marketing Materials with content that is unlawful in any manner, or which is otherwise harmful, threatening, defamatory, obscene, offensive, harassing, sexually explicit, violent, discriminatory, or otherwise objectionable in Fiskl’s sole discretion. Partner agrees not to send unsolicited electronic messages to multiple unrelated recipients in promoting the Fiskl Service, or otherwise to engage in any other form of mass electronic communications prohibited by law in connection with activities contemplated under this Agreement.

2.7 Obligation to disclose limits on authority. Partner must disclose to each Prospective Customer that it is a referral agent of Fiskl and that it has no authority or ability to negotiate or vary the Fiskl Service or the terms of the Fiskl Service or enter into any contract on behalf of Fiskl.

3. Marketing Materials

3.1 Licence. Subject to the terms and conditions of this Agreement, Fiskl hereby grants to Partner a free, non-exclusive, non-transferable and revocable license to use the Fiskl trade marks, logos and URLs as provided by Fiskl from time to time, (“Licensed Marks”), and associated materials, language or code for the sole purpose of promoting the Fiskl Service in accordance with this Agreement (collectively, “Marketing Materials”). Fiskl may revoke this license at any time by giving Partner a written notice (including via email).

3.2 Guidelines. The license to use the Licensed Marks and Marketing Materials granted herein is subject to Fiskl’s usage guidelines (which can be found at https://fiskl.com/company/partners/) incorporated here by reference, as updated from time to time by Fiskl at its sole discretion and any other specifications and instructions provided by Fiskl from time to time (“Guidelines”). Partner expressly agrees to comply with the Guidelines.

3.3 Use of Licensed Marks. Partner shall ensure that its use of Licensed Marks and Marketing Materials are in the form approved by Fiskl in the Guidelines or otherwise, shall not modify any Licensed Marks or otherwise substantially modify any other Marketing Materials contrary to reasonable instructions provided by Fiskl, and shall further comply with reasonable instructions from Fiskl as to the form, content and display of Marketing Materials.

3.4 Reservation of Rights. Fiskl is the owner of all Intellectual Property Rights in the Licensed Marks, the Marketing Materials, the Fiskl Service and any related content and technology (“Fiskl IP Rights”) and Partner agrees that the Fiskl IP Rights shall remain vested in Fiskl both during the term of this Agreement and thereafter and that the use by Partner is as a licensee under the Licensor’s control and subject always to the terms and conditions of this Agreement. All rights (including goodwill) arising from the use by Partner of the Licensed Marks and Marketing Materials shall inure for the sole benefit of Fiskl and Partner agrees that it will not challenge Fiskl’s claim to ownership of the Intellectual Property Rights in the Fiskl IP Rights.

3.5 Notice of Infringement. Partner shall promptly notify Fiskl of any infringement or suspected or threatened infringement of the Licensed Marks or Marketing Materials that may at any time come to its notice, giving reasonable particulars.

4. Referral Process

Partner shall provide its Referral Code to Potential Customers. Each Potential Customer shall be deemed to have been Referred to Fiskl by Partner when the Potential Customer uses the Partner’s Referral Code to enter into a Subscription Contract on the Fiskl Website.

5. Referral Fee

5.1 Referral Fee. Fiskl shall pay Partner a referral fee for each Prospective Client Referred by Partner only when they become a Qualified Referral. Not all Referrals will become Qualified Referrals. The referral fee payable shall be 50% of Fiskl’s Net Income received under each Subscription Contract (“Referral Fee”) for the period ending July 31st, 2018 and 30% of Fiskl’s Net Income received under each Subscription Contract after July 31st 2018.

5.2 Reporting. Fiskl shall provide the Partner with the following information in relation to all Qualified Referrals:

  • (a) the date it enters into a Subscription Contract;
  • (b) the amount of the payments due for the Fiskl Service under the Subscription Contract;
  • (c) the Referral Fee payable to Partner in relation to the Subscription Contract; and
  • (d) how the Referral Fee has been calculated.

5.3 Payment of Referral Fee. The Referral Fees accrued in each calendar month shall become payable and be paid to Partner within thirty (30) days of the end of that calendar month, provided that such Referral Fees accumulate to a total of £100 or more. If the Referral Fees accrued at the end of any calendar month are less than £100, no payment will be rendered until the end of the calendar month in which the Referral Fees accumulate to a total of £100 or more.

5.4 Currency of Commission. Commission shall be payable to the Partner in pounds sterling, or such other currency as Fiskl in its sole discretion may make available to the Partner from time to time.

5.5 Taxes. All sums payable under this Agreement:

  • (a) are exclusive of value added tax or other applicable sales tax, which shall be added to the sum in question;
  • (b) shall be paid in full without any deductions (including deductions in respect of items such as income, corporation, or other taxes, charges and/or duties) except where the payer is required by law to deduct withholding tax from sums payable to the payee. If the payer is required by law to deduct withholding tax, then the payer and the payee shall co-operate in all respects and take all reasonable steps necessary to:
    • (i) lawfully avoid making any such deductions; or
    • (ii) enable the payee to obtain a tax credit in respect of the amount withheld.

5.6 Accounts and records. Fiskl shall keep separate accounts and records giving correct and adequate details of all Subscription Contracts entered into by Fiskl, all payments received under them. Fiskl shall permit the duly appointed representatives of the Partner at all reasonable times, but no more than once in any 12 month period, to inspect all such accounts and records and to take copies of them solely for the purpose of verifying the Referral Fee due to Partner. For the avoidance of doubt, all rights in such records (including database right and copyright) shall belong to Fiskl.

5.7 Disputes about Referral Fee. If any dispute arises as to the amount of Referral Fee payable by Fiskl to Partner, the same shall be referred to Fiskl’s auditors for settlement and their decision, save in the case of manifest error, shall be final and binding on both parties.

5.8 Exclusions from Commission. No Commission or other compensation shall be payable where a Prospective Client is Referred by Partner and the Prospective Client then introduces Fiskl to a third party who purchases the Fiskl Services from Fiskl, Partner shall not, by virtue of such initial Referral, be deemed to have Referred the third party to Fiskl.

5.9 Continuing obligation to pay Referral Fee. Termination of this Agreement, howsoever arising, shall not affect the continuation in force of this Clause 5 and Fiskl’s obligation to pay the Referral Fee to the Partner in accordance with it.

6. Obligations of Fiskl

6.1 Good faith. Fiskl must at all material times act in good faith towards Partner.

6.2 Provision of information. Fiskl shall provide Partner at all material times with the information the Partner reasonably requires to carry out its duties, including marketing information for and details of the Fiskl Service, and information about Fiskl.

6.3 Notices of suspension or cessation of Services. Fiskl shall inform the Partner immediately if Fiskl suspends or ceases to perform the Fiskl Service.

6.4 Payment of expenses. Fiskl shall not be responsible for any expenses incurred by Partner unless such expenses have been agreed by Fiskl in writing, in advance.

6.5 Freedom of Fiskl not to pursue Referrals. Fiskl shall be under no obligation to:

  • (a) follow up any Referral made by Partner; or
  • (b) enter into a Subscription Contract.

7. Confidentiality

7.1 Obligations of confidentiality. Each Party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other Party or of any member of the group of companies to which the other Party belongs, except as permitted by clause 7.2.

7.2 Confidentiality exceptions. Each Party may disclose the other Party’s confidential information:

  • (a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the Party’s obligations under this Agreement. Each Party shall procure that its employees, officers, representatives or advisers to whom it discloses the other Party’s confidential information comply with this clause 7; and
  • (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

7.3 Limited use of confidential information. No Party shall use any other Party’s confidential information for any purpose other than to perform its obligations under this Agreement.

7.4 Return of documents and records. All documents and other records (in whatever form) containing confidential information supplied to or acquired by Partner from Fiskl shall be returned promptly to Fiskl on termination of this Agreement, and no copies shall be kept, whether digitally or otherwise.

8. Compliance

8.1 Compliance. Each Party shall at its own expense comply with all laws and regulations relating to its activities under this Agreement, as they may change from time to time, and with any conditions binding on it in any applicable licences, registrations, permits and approvals.

8.2 Mandatory Polices. Partner shall comply with Fiskl’s mandatory policies as posted on the Partner Portal and as amended by posting a change on the Partner Portal or by notifying Partner via email from time to time.

8.3 Anti-corruption and anti-bribery. Partner shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption in all jurisdictions (“Relevant Requirements”), including but not limited to the Bribery Act 2010 (“BA 2010”) and the United States Foreign Corrupt Practices Act.

  • (a) Conduct outside the UK. Partner shall not engage in any activity, practice or conduct outside the UK which would constitute an offence under sections 1, 2 or 6 of the BA 2010 if such activity, practice or conduct had been carried out inside the UK;
  • (b) Partner’s policies and procedures. Partner shall have and shall maintain in place throughout the term of this Agreement its own policies and procedures, including adequate procedures under the BA 2010, to ensure compliance with the Relevant Requirements and Mandatory Policies, and will enforce them where appropriate; and
  • (c) Reporting obligation. Partner shall promptly report to Fiskl any request or demand for any undue financial or other advantage of any kind received by the Partner in connection with the performance of this Agreement. Partner shall promptly provide such supporting evidence of its compliance with this Clause 8.3 as Fiskl may reasonably request.
    Partner shall notify Fiskl immediately in respect of any breach of this Clause 8.3.

8.4 Sanctions. Partner warrants that is not a person incorporated in or resident in a country subject to economic or trade sanctions by the European Union, U.S. State Department or U.S. Treasury Department’s Office of Foreign Assets Control (the “OFAC”) and it is not listed as a “Specially Designated National,” a “Specially Designated Global Terrorist,” a “Blocked Person,” or similar designation under the OFAC sanctions regime (a “Restricted Person”). Partner shall not market the Fiskl Service to, approach, or submit Referral for, Restricted Persons. Partner shall notify Fiskl immediately in respect of any breach of this Clause 8.4.

8.5 Data Protection Compliance: Each party shall comply with the Data Protection Legislation and agrees that any material breach of the Data Protection Legislation shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this agreement with immediate effect. In the event that the Parties are required under Data Protection Legislation to enter into any other agreement, Partner shall execute and deliver such documents and perform such acts as may reasonably be required.

9. Indemnities.

9.1 Partner shall indemnify, defend and hold Fiskl and its subsidiaries, affiliates, officers and employees (the “Fiskl Indemnified Parties”) harmless from and against any and all costs, liabilities, losses and expenses (including but not limited to reasonable legal fees) resulting from any claim, action, demand, fine or proceeding brought by any third party against the Fiskl Indemnified Parties arising from any of the following: (a) a breach of the Agreement by Partner; (b) the negligence, gross negligence or wilful misconduct of Partner or its employees, agents or contractors; or (c) a failure by Partner or its employees, agents, contractors or invitees to comply with the laws and regulations referenced herein.

9.2 Partner shall be solely responsible for its operations in acting under this Agreement, including the legality of Partner’s operations and materials, created and used in connection with this Agreement. Except for a third party claim alleging that a Licensed Mark infringes a third party’s intellectual property rights, Fiskl is not responsible for the development, operation or content of Partner’s marketing materials and Partner shall defend, indemnify and hold Fiskl Indemnified Parties harmless against any and all costs, liabilities, losses and expenses (including but not limited to reasonable legal fees) resulting from any claim, action, demand, fine or proceeding brought by any third party relating to the development, operation, content and maintenance of Partner’s marketing materials.

10. Limitation of liability

10.1 Unlimited liability. Nothing in this Agreement shall limit or exclude the liability of either Party for:

  • (a) Death or personal injury. Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable).
  • (b) Fraud. Fraud or fraudulent misrepresentation.
  • (c) Liability under indemnities. Liability under the indemnities contained in Clause 9.
  • (d) Unlawful liability restrictions. Any matter in respect of which it would be unlawful to exclude or restrict liability.

10.2 Limitations of liability. Subject to Clause 10.1 above, Fiskl shall not be liable to under any circumstances whatsoever be liable to Partner, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:

  • (a) any loss of profit, revenue, or anticipated savings;
  • (b) any loss of goodwill or reputation;
  • (c) any loss arising out of the lawful termination of this Agreement or any decision not to renew its term, or
  • (d) any loss that is an indirect or secondary consequence of any act or omission of Fiskl.

10.3 Total cap. Subject to Clauses 10.1 and 10.2 above, Fiskl’s total liability to Partner in respect of any loss or damage arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Referral Fees due for the entire term of this Agreement.

11. Term and Termination.

11.1 Term. This Agreement shall commence the Effective Date and shall continue, unless terminated earlier in accordance with the terms of this Agreement, until either Party gives to the other Party ten (10) days prior written notice to terminate at any time for convenience.

11.2 Termination on notice. Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if the other Party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so.

11.3 Accrued rights. 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.

11.4 Clauses to remain in force on termination. All provisions of this Agreement which are intended to have effect following any expiry or termination of this Agreement shall survive termination or expiry of this Agreement, including Clause 1, Clause 5, Clause 7, Clause 9, Clause 10 and Clause 12 (inclusive).

12. General

12.1 No partnership or agency. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of 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.

12.2 Entire agreement.

  • (a) This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous Agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
  • (b) Each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
  • (c) Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
  • (d) Nothing in this Clause shall limit or exclude any liability for fraud.

12.3 Variation. Fiskl may modify this Agreement from time-to-time at its reasonable discretion by posting a change on Fiskl’s Partner Portal or by notifying Partner via email. If Partner objects to any such change, Partner may terminate this Agreement on ten (10) days’ notice. Partner’s continued participation in the Referral Program following receipt of notice about changes to this Agreement shall constitute binding acceptance of this Agreement as amended.

12.4 Assignment and other dealings. Fiskl may assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement at any time. Partner shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.

12.5 No automatic waiver. No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

12.6 Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

12.7 Notices. Any notice given to a Party relating to this Agreement shall be in writing, addressed to that Party and shall be delivered by email to the addresses detailed in the Cover Page. A notice or other communication sent by email shall be deemed to have been received one Business Day after transmission.

12.8 Third party rights. No one other than a Party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.

12.9 Governing law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

12.10 Jurisdiction. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

Last updated: 16.05.2018

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