1.1. Purpose and appointment: The parties enter into the Referral Partner Agreement to promote Shieldpay’s business and services. Subject to the terms and conditions of this Referral Partner Agreement, we appoint the Referral Partner, on a non-exclusive basis, to work with us pursuant to the agreed activities set out on the Referral Partner Term Sheet (Referral Partner Term Sheet).
1.2. Defined terms: Capitalized terms used but not defined on these Referral Partner T&Cs are defined elsewhere in the Referral Partner Agreement. References to “Shieldpay”, “we”, “us”, or “our” are to Shieldpay Ltd incorporated and registered in England and Wales with company number 10061792 whose registered office is at 3rd Floor, 1 Ashley Road, Altrincham, Cheshire WA14 2DT. References to “Referral Partner” or “you” are to the party identified in the Referral Partner Term Sheet.
1.3. The Services: The services that we provide are the “Services” as defined in the Referral Partner Term Sheet.
2.1. Co-marketing: The parties agree to the co-marketing set out on the Referral Partner Term Sheet (if any). All co-marketing is subject to each party’s final approval before publication of the co-marketing, such approval not to be unreasonably withheld or delayed. As part of any co-marketing, or its own marketing, the Referral Partner may hold itself out only as an “Official Referral Partner” of Shieldpay.
2.2.1. During the Term, we appoint you as a non-exclusive referrer of the Services to potential customers (each a Prospect).
2.2.2. You will comply with any advertising and marketing materials and standards that we make available as part of the referral activities (“Advertising Materials”). No material change or modification are permitted without prior written consent.
2.2.3. You do not have any authority to: (a) set or amend our prices for the Services; or (b) contractually bind us to a Prospect.
2.2.4. You will legally, and with the appropriate consents required by law, refer Prospects by sending an email to us that includes: the name and contact information of the Prospect; the Services the Prospect is interested in contracting with us (if known); the nature of the relationship between you and the Prospect; and any other information we reasonably requests.
2.2.5. Upon receipt of a Prospect’s information, we, in our sole discretion, will determine whether to pursue the Prospect. We are not under any obligation to provide the Services to a Prospect. We will pay to you the referral fee set out on the Referral Partner Term Sheet if, subject to 2.2.6, we and the Prospect sign a contract with a Prospect to provide it Services within 12 months of receipt of an email introducing the Prospect.
2.2.6. You are not entitled to a referral fee where the Prospect: (a) had a previous relationship with us; (b) was previously referred to us by another third party; (c) is domiciled or otherwise based in a territory outside of the territory in which we are able to provide the Services (if any limitation is set out on the Referral Partner Term Sheet); (d) is a current Prospect of Shieldpay; (e) is not an end-user of the Services (e.g. is a reseller or marketing agent); or (f) does not pay the fees to Shieldpay after having signed a contract for the Services. If there is a dispute about whether a referral fee is due, we will have the sole authority to decide the dispute.
2.2.7. We will inform you in writing if you are due a referral fee. Referral fees are calculated on a net revenue basis, meaning contracted revenue (recognised, not deferred, and net of any refund) less all transaction costs.
2.2.8. You will then submit a legally valid invoice to us for the amount of the referral fee. Referral fees are to be paid quarterly, unless specified otherwise on the Referral Partner Term Sheet, we will pay the referral fee within 30 days of receipt of a valid invoice. The referral fee is exclusive of any legally applicable taxes, levies, duties or similar governmental assessments of any nature, including goods and services, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever.
2.3. Training: We may provide you with free, online training that we reasonably may require you to take to ensure the obligations under this Referral Partner Agreement are discharge appropriately.
2.4. Brand use: During the Term, we will provide you on a non-exclusive, revocable, royalty-free, non-sub-licensable license to use the designated trade names, trademarks, service marks, logos, and domain names of Shieldpay in accordance with our Advertising Materials.
3.1. Confidential Information: Confidential Information means any information that is disclosed by a party (Disclosing Party) to the other party (Receiving Party) that is expressly marked as confidential or that a reasonable person under the circumstances would understand to be confidential. Confidential Information does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.
3.2. Strict confidence: Each party will hold in strict confidence for two years after the end of the Term, and will not use other than for the sole purpose of performing its obligations or utilizing its benefits under this Referral Partner Agreement, all Confidential Information of the other party. Nothing in this section 3 prevents the Receiving Party from disclosing the Confidential Information of the Disclosing Party to its corporate affiliates (including subsidiaries), legal advisers, accountants, or other professional advisers or regulatory bodies where required (collectively, Permitted Recipients), provided that (i) the party so disclosing will remain responsible for its obligations and for the Permitted Recipients’ use (and any disclosure) of the Confidential Information.
4.1. Term: The “Initial Term” of this Referral Partner Agreement is the period designated as such on the Referral Partner Term Sheet. Unless stated otherwise on the Referral Partner Term Sheet, the Agreement automatically renews for successive periods equal to the Initial Term (each a Renewal Term), unless a party gives at least 30 days’ written notice of intent to terminate prior to the expiration of the then-current Initial Term or Renewal Term (as applicable), such notice to be effective at the end of the then-current term. The Initial Term and any Renewal Term together are the “Term”.
4.2. Mutual termination: A party may terminate this Referral Partner Agreement by written notice to the other party at any time if: (a) the other party is in material breach and, if remediable, following being notified in writing of such breach, the breach is not remedied within 30 days; (b) if the other party becomes the subject of a petition in liquidation or any other proceeding relating to insolvency, receivership, administration, liquidation or assignment for the benefit of creditors; (c) if a party breaches section 2.2.2 or fails to comply with the Advertising Materials; or (d) at any time on 30 days’ written notice to the other party.
4.3. Accrued rights and liabilities and consequences: Termination of this Referral Partner Agreement, however arising, does not affect the accrued rights and liabilities of the parties as at termination. Subject to the previous sentence, upon termination of this Referral Partner Agreement, all rights under it cease immediately.
4.4. Surviving termination: The sections of this Referral Partner Agreement that by their nature or intent should reasonably be viewed to termination of this Referral Partner Agreement, survive such termination.
5.1. Liability: Nothing in this Referral Partner Agreement excludes or limits a party’s liability for any liability that cannot be excluded or limited under applicable law (such as fraud).
***IMPORTANT: PLEASE READ SECTIONS 5.2-5.3 CAREFULLY AS THEY EXCLUDE AND/OR LIMIT EACH PARTY’S LIABILITY ***
5.2. Losses neither party is liable for: Subject to section 5.1, each party excludes all liability, whether in tort (including for negligence), breach of statutory duty, contract, misrepresentation, restitution or otherwise, direct or indirect, whether foreseeable, known, foreseen, or otherwise, for any: (a) loss of revenue or profits (of any kind); (b) loss of goodwill; (c) loss of business; (d) failure to process data adequately; (e) loss or corruption of data or information; or (f) for any special, indirect, or consequential loss, costs, damages, charges, or expenses, however arising.
5.3. Liability cap: Subject always to sections 5.1, 5.2, 7.9, each party’s total liability, however arising, will under no circumstances exceed in aggregate, the greater of: (1) £10,000; or (ii) 100% of the total amount of referral fees paid or payable to a party pursuant to this Referral Partner Agreement for the 12 months immediately preceding the date any first claim arose.
6.1. Each party agrees to defend, indemnify and hold the other party, its officers, directors, employees, agents, and corporate affiliates, harmless against any claims, demands, actions, proceedings, losses, liabilities, damages, expenses and costs (including court costs and reasonable attorneys’ fees), whether direct or indirect, arising out of, related to, or in connection with: (a) a third party claim that the other party’s Services violate the intellectual property rights of a third party; and (b) a breach by a Referring Party of its obligations under section 2.2.3.
7.1. Rules of interpretation: The following rules of interpretation apply to this Agreement: (a) the words “include” or “including” are deemed to have the words “without limitation” following them; (b) references to the singular include the plural and vice versa; and (c) references to “will” are to be construed as having the same meaning as “shall”.
7.2. Force Majeure: Neither party is liable for a breach caused by an event beyond its reasonable control, including a natural disaster, disease outbreak, war, riot, terrorist action, civil commotion, malicious damage, government action, industrial action or dispute, fire, flood, storm, or failure of third party telecommunications, or other services.
7.3. Invalidity: If any term of this Referral Partner Agreement is found invalid, illegal or unenforceable, the rest of the Agreement remains in effect.
7.4. No waiver: Either party’s delay or failure to enforce a term of the Referral Partner Agreement is not a waiver of that right and does not prevent that party from later enforcing that or any other term.
7.5. Notice: Each party will deliver all notices in respect of legal service or material breach by recorded delivery: in respect of Shieldpay, to our registered office address; and in respect of Referral Partner, to Referral Partner’s address as provided to Shieldpay as part of the onboarding processes or as updated from time to time. Any notices in respect of any matter other than legal service or material breach may be delivered in accordance with the previous sentence or by email. If sent by email, Referral Partner will send such notices to firstname.lastname@example.org and we will send such notices to the Referral Partner to via an email address as provided to Shieldpay as part of the onboarding processes or as updated from time to time. Notice sent by recorded delivery is received three London, UK business days after posting and email notice is received 24 hours after it is sent.
7.6. Assignment: Neither party may assign or transfer this Referral Partner Agreement or any right, benefit or interest under it, without other party’s prior written consent, and any such assignment or transfer without the other party’s prior written consent is void. Notwithstanding the previous sentence, either party may assign this Agreement without the other party’s consent pursuant to a merger, acquisition, change in control or similar transaction.
7.7. Subcontracting: Neither party may subcontract its obligations under this Referral Partner Agreement without the prior written consent of the other party. Notwithstanding the previous sentence, either party may subcontract the provision of its own Services.
7.8. Anti-bribery: The parties will: (i) comply with all applicable law relating to anti-bribery or anti-corruption; (ii) not engage in any act which, if it had occurred in the United Kingdom or the United States would have violated applicable law relating to anti-bribery or anti-corruption; and (iii) promptly report to the other party any request or demand for any undue financial or other advantage of any kind it receives in connection with the performance of this Agreement.
7.9. Entire agreement: This Agreement, including materials incorporated by reference, constitutes the exclusive statement of agreement and understanding between the parties. This Agreement excludes all prior or contemporaneous proposals, understandings, agreements, or representations, whether oral or written about its subject matter. You agree that no representations were made prior to entering into this Agreement and that, in entering into this Agreement, you do not rely on, and will have no remedy in respect of, any statement, representation, warranty, or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as set out in this Agreement. Nothing in this Agreement excludes or limits our liability for fraudulent misrepresentations or excludes (but this Agreement does limit) our liability for any fundamental misrepresentation.
7.10. Third party rights: Nothing in this Referral Partner Agreement creates or confers any rights or other benefits in favour of any person other than the parties to this Referral Partner Agreement even if that person has relied on any such term or has indicated to any party its assent to any such term.
7.11. No agency: This Referral Partner Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
7.12. Governing law and jurisdiction: 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) will be governed by and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the courts of England and Wales.
Last updated: 12 February 2021