Reseller Agreement

Reseller Agreement

THIS AGREEMENT (the “Agreement”) is made on the 12h day of September 2019 BETWEEN LATERAL PAYMENT SOLUTIONS LIMITED (“LPS”) a company registered in England and Wales under company number 4306951 whose registered office is at The Old Church, Quicks Road, London, SW19 1EX ("LPS"); and ECWID INC (“ECWID”) a company registered in USA of whose registered office is at 687 S. Coast Highway 101, Suite 239, Encinitas, CA 92024 USA

1. Definitions

   1. Confidential Information technical or commercial know-how, specifications, inventions, processes, secrets or initiatives relating to the trade, business activities, operations, organisation, finances, processes, dealings, specifications, methods, designs, formulae, computer software and technology of either party, as applicable, whether the said information is marked as confidential or is by its nature confidential;
   2. Client Any individual and/or legal entity designing, developing, marketing, maintaining websites, selling products or services over the network;
   3. Final Customer any individual and/or legal entity purchasing over the Network a Product from a Webmaster using the LPS system.
   4. Intellectual Property Rights all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or in relation to passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
   5. Marketing Materials means all materials provided by LPS to the Reseller, or made available to the Reseller by LPS in the course of or in relation to the Reseller’s provision of the Referral Services in accordance with this Agreement;
   6. LPS Service(s) All the secure payment services including technical and financial management of payment transactions carried out by LPS on behalf of a Client and Final Customer;
   7. LPS System All the Software Modules, technology and know-how belonging to LPS or its partners, used to provide the LPS Service;
   8. Network The network using TCP/IP (transmission Control Protocol) through which a Final Customer purchases the Product from the Webmaster
   9. Processing Agreement means the terms and conditions under which LPS provides the LPS Services to its clients;
   10. Product Information, tangible/intangible good or a service offered for sale by the Client and, accepted by the Final Customer via the network;
   11. Referral Service market, promote and advertise LPS Services and introduce Clients to LPS to enter into formal written agreements to engage LPS to provide the LPS Services.
   12. Term means the period of time specified in Clause 5 of this Agreement;

2. The Reseller’s Obligations

   1. The Reseller will promote the LPS Service in accordance with the terms and conditions of this Agreement:
      1. Using all reasonable skill and care;
      2. To a standard expected from a skilled and experienced provider of such services;
      3. In accordance with LPS’ reasonable requests from time to time .
      4. The Reseller is entering into this Agreement as an independent contractor. Nothing in this Agreement shall be construed as creating a relationship of master and servant, principal and agent, or any partnership or joint venture between LPS and the Reseller.
   2. The Reseller shall:
      1. Not have, nor represent that it has, any authority to enter into contracts for or on behalf of LPS, and may only refer to itself as "an LPS Reseller" in a form and manner first approved in writing by LPS in connection with the performance of the Referral Services under this Agreement ;
      2. Disclose to LPS without delay any conflict of interest that may arise as a result of it entering into the Agreement and / or providing the Referral Services;
      3. The Reseller shall at all times act in good faith and not do anything which may adversely affect the goodwill of LPS or its reputation.

3. Referrals

   1. The Reseller will only look to market, sell and promote LPS Services to prospective clients:
      1. who the Reseller considers on reasonable grounds to be sufficiently credit worthy to receive the LPS Service and to have sufficient resources, skills and experience to comply with the terms of the Processing Agreement;
      2. who have obtained all licenses, consents and approvals necessary to be lawfully permitted to conduct their business and receive the LPS Services in accordance with the Processing Agreement;
      3. who have sufficient technical systems and information systems in place to be able to receive the LPS Services in accordance with the terms of the Processing Agreement;

4. The Fees

   1. LPS in consideration of the performance of the Referral Service agrees to pay the Reseller a fee as specified in Schedule 1 (the “Reseller Fee”)
   2. Within 25 days of the end of each month during the Term, the Reseller Fee will be calculated from reports furnished by LPS and shall be paid to the Reseller by Wire Transfer within 25 days of the end of each following month.

5. Term and Termination

   This Agreement shall commence on the date it is executed by both parties and continue thereafter for a period of two years, subject to termination by either party in accordance with this Clause.

   The Agreement may be renewed for further twelve-month periods by agreement between the parties at any time before expiry of the term or any subsequent twelve-month term. Where this Agreement is not so renewed it shall expire without notice.

   1. Either party may give to the other not less than 3 months notice of its intention to terminate this Agreement at any time.
   2. Either party may terminate this Agreement by written notice if the other is in substantial breach of any of its material obligations under this Agreement and (where such breach is remediable) fails to remedy such breach within 30 days of a written notice to do so.
   3. Either party may terminate this Agreement immediately and without notice if:
      1. The other enters into a composition with its creditors;
      2. An order is made for the winding up of the other;
      3. An effective resolution is passed for the winding up of the other (other than for the purposes of amalgamation or reconstruction on terms approved by the first party (such approval not to be unreasonably withheld));
      4. The other has a receiver, manager, administrative receiver or administrator appointed in respect of it;
      5. The other party ceases, or threatens to cease, to carry on the whole or a material part of its business.
   4. LPS may terminate the Agreement immediately on providing notice to the Reseller if the Reseller does anything which may adversely effect the reputation or goodwill of LPS or which may adversely affect the relationship LPS has with its existing Clients at the time of the Reseller’s relevant act or omission.
   5. Upon termination of this Agreement for whatever reason the Reseller agrees to return to LPS all Confidential Information and Marketing Materials in the Reseller’s possession, custody or control and / or delete all copies it holds of the same in whatever form it holds them, as far as is practicable.

6. Intellectual Property Rights

   1. All Intellectual Property Rights in:
      1. The LPS Materials shall at all times remain the sole property of LPS and the Reseller acknowledges that it shall not obtain any rights in respect of such materials at any time as a result of its provision of the Referral Services
   2. The Reseller shall:
      1. Only use LPS trade names, trade marks and / or service marks as directed by LPS for the purposes of providing the Referral Services;
      2. Not refer directly or indirectly to LPS or the LPS Services nor use any LPS trade names, trade marks or service marks in its marketing literature or promotional material unless LPS has first approved the relevant material in writing (which approval shall not be unreasonably withheld);
      3. Notify LPS without delay if it becomes aware of any use or proposed use by any other person of any LPS trade name, trade mark or service mark which might infringe the rights held by LPS in its trade marks, trade names or service marks; and
      4. provide its reasonable assistance to LPS in relation to any action LPS wishes to take against any infringer of any LPS trade name, trade mark or service mark and in relation to the defence of any claim that any such trade mark, trade name or service mark infringes the Intellectual Property Rights of a third party.
   3. If the Reseller wishes to use its own trade names, trade marks or service marks (“Reseller Marks”), it must keep the Reseller Marks separate from those of LPS and not present the Reseller Marks in a manner which may cause confusion as to the ownership of the same, or as to which entity each such Reseller Mark relates.
   4. The Reseller agrees to indemnify LPS against any loss, damage, cost or expense (including reasonable solicitors’ fees and expenses) LPS may suffer or incur arising out of any claim by any third party that the Marketing Materials, either in whole or in part, infringe the Intellectual Property Rights of a third party

7. Warranties

   1. The Reseller warrants that:
      1. Neither the execution of this Agreement nor the performance of the Referral Services by the Reseller will conflict with or result in any breach of any law, regulation, rule, judgment, order, injunction, authorisation, decree or other agreement or contract applicable to the Reseller;
      2. No action, litigation, arbitration or other proceedings or investigations are currently taking place or pending against the Reseller, which if determined adversely to the Reseller, would have an adverse effect on the Reseller’s financial condition, business, operations or reputation;
      3. Any person employed or engaged by the Reseller in relation to the Referral Services is employed or engaged on terms which provide that the Intellectual Property Rights in all work created by that person shall be assigned to and shall vest exclusively in the Reseller.

8. Limitation of Liability

   1. Subject to Clause 8.3, LPS shall only be liable under this Agreement for loss or damage arising directly out of:
      1. Any breach of its obligations under this Agreement; or
      2. its own negligence or wilful misconduct and shall not be liable to the Reseller for any indirect, special or consequential loss or damage suffered by it and arising out of or in connection with this Agreement.
   2. Subject to Clause 8.3, and except in relation to the indemnities contained in Clause 6.4, and any breach of Clause 9, the Reseller shall only be liable under this Agreement for loss or damage arising directly out of:
      1. Any breach of its obligations under this Agreement;
      2. Its own negligence or wilful misconduct and shall not be liable to LPS for any indirect, special or consequential loss or damage suffered by it and arising out of or in connection with this Agreement.
   3. Nothing in this Clause 8 shall be construed to exclude the liability of either party for death or personal injury caused by its negligence, or any other liability not permitted to be excluded under applicable law.

9. Confidentiality

   1. No public announcement, press release, communication or circular concerning this Agreement will be made or sent by the Reseller without LPS’s prior written consent, which shall not be unreasonably withheld.
   2. The Reseller acknowledges that Confidential Information may be disclosed to it or otherwise come to its attention. For the avoidance of doubt, Confidential Information is disclosed to, or otherwise comes to the attention of the Reseller if it is disclosed to or otherwise comes to the attention of the Reseller or any of the Employees. The Reseller agrees and undertakes that it will hold any Confidential Information in complete confidence and will not disclose it in whole or in part at any time to any third party, nor use Confidential Information for any purpose other than the performance of the Reseller’s obligations under this Agreement.
   3. Confidential Information shall not include information which:
      1. At or prior to the time of disclosure by LPS was known to the Reseller as evidenced in writing, except to the extent that such information was obtained by or disclosed to the Reseller in breach of existing confidentiality or other obligations; ;
      2. At or after the time of disclosure by LPS becomes generally available to the public other than through any act or omission on the part of the Reseller;
      3. Is received by the Reseller from a third party free to make such disclosure without breaching any legal obligation; or
      4. Is required to be disclosed by law, court order or request by any government or regulatory authority.

10. Data Protection

    1. Each party shall:
       1. Establish and maintain such systems, security measures and safeguards against the unauthorized access, processing, alteration,damage, loss or destruction of any personal data which comes within its possession as required for it to act in compliance with the Data Protection Act 1998 (the “DPA 1998”) and any other applicable data protection legislation;
       2. Only act in relation to personal data acquired, controlled or processed by it (in each case as defined under the DPA 1998) in accordance with the DPA 1998.

11. General

    1. This Agreement, which includes the Schedules, constitutes the entire agreement of the parties in relation to its subject matter and supersedes and cancels any previous understandings, commitments, arrangements or representations whatsoever whether oral or written, express or implied in relation to that subject matter.
    2. This Agreement shall not be varied unless in writing signed by a duly authorised representative of each party.
    3. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted or modified, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
    4. Neither party will be held liable for any loss or failure to perform its obligations under this Agreement due to circumstances beyond its reasonable control.
    5. Any waiver by either party of a breach of any provision of this Agreement shall not be considered to be a waiver of any subsequent breach of the same or any other provision thereof.
    6. Any notices given by either party hereunder shall be given in writing by the recipient at its address set out above (or such address as such party may notify the other for the purposes hereof). Any such notice shall be deemed to be delivered, if sent by first class post, forty eight hours after posting; and, if sent by facsimile, at the time of transmission, confirmed by a transmission report from the sender’s facsimile machine
    7. The rights, duties and obligations of the Reseller under this Agreement may not be sub-contracted, delegated, assigned or otherwise transferred in whole or part by the Reseller, without the prior written consent of LPS.
    8. Nothing in this Agreement is intended to confer any benefit on any third party (whether referred to herein by name, class, description or otherwise) or any right to enforce a term contained in this Agreement.

12. Governing Law and Jurisdiction

    1. This Agreement shall be governed by and construed in accordance with the laws of England, and both parties submit to the exclusive jurisdiction of the English Courts.

IN WITNESS of which this Agreement has been duly executed by the parties.

Authorised by and on behalf of ECWID

Authorised by and on behalf of Lateral Payment Solutions Limited

Schedule 1

The Fees

For each Merchant that is introduced to LPS by the Reseller and adopts the LPS Services under a Processing Agreement at any time during the Term, or within six months immediately after the expiry or termination of this Agreement, LPS will pay to the Reseller:

0.20% of the value of EU card purchases and 0.10% of the value of Non-EU card purchases settled through the LPS System and collected on behalf of the Merchant. The Fee will be paid for the lifetime of the Reseller Agreement.