Reseller Program Agreement

The following Reseller Program Agreement, together with any documents and/or additional terms incorporated by reference (collectively, the “Agreement”) govern the appointment of With Reach UK Ltd, a United Kingdom corporation having an office at 3 Lloyd’s Avenue, London, UK (“Reseller”) as the non-exclusive reseller of certain tangible or digital products and services originally manufactured or offered by you (“Supplier” and the “Supplier Offering(s)”). Reseller is an online reseller of tangible and digital goods facilitated through an integrated proprietary bundle of e-commerce transaction solutions and services, including local payments in multiple jurisdictions, tax remittance, fraud detection and liability, customer support and dispute resolution. Reseller acts as the Merchant of Record or “MoR” whereby Reseller and/or its Affiliates, will be recorded (in place of the Supplier) as the party that is conducting the Transaction with end customers. If you do not agree with the terms of this Agreement, you must not access or use Reseller’s services.

RIGHTS GRANTED

Subject to all terms and conditions hereof, Reseller is hereby granted the personal, revocable, non-transferable, non-sublicensable, non-exclusive limited right and license under Supplier’s Intellectual Property Rights (defined as registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world) during the Term to resell the Supplier Offering.

Supplier acknowledges that the resale of the Supplier Offering is dependent on information provided by Supplier. Reseller requires accurate information in respect of the Supplier Offering to complete the sales of the Supplier Offering, calculate the applicable Sales Tax (defined as any national, subnational, federal, state, provincial or local sales, use, transfer, value added, excise, goods and services, environmental, customs, duties, or other transaction tax, like governmental fee or other like charge of any kind associated imposed on a sale or purchase transaction, together with any interest, penalty, addition to tax or additional amount imposed by Applicable Law or taxing authority, whether disputed or not) liability, where applicable, and to allow Reseller to determine whether a Transaction is fraudulent.

The Supplier acknowledges that it may be necessary for certain systems of the Supplier to be connected and integrated into the Reseller systems through application program interfaces provided by Reseller to Supplier (“API”s). The Supplier will, at its sole cost and expense integrate with and make its systems function correctly with the Reseller systems as soon as possible. The Supplier shall take all precautions as may be directed by Reseller to ensure that there is no breach of security and the integrity of the connection between the Supplier’s and Reseller’s systems during the term of this Agreement. Supplier is solely responsible for the installation and uninstallation of the APIs, and neither Reseller nor the Reseller Entities accept liability or responsibility for any losses or damages arising from the installation or uninstallation of the APIs on the Supplier’s website, including any loss of profits, loss of sales, loss of revenues, business interruption, or data loss or corruption.

All Reseller software is made available to the Supplier solely in connection with the Reseller services. With the exception of limited permission to access and use the Reseller software through the specified API in connection with the Reseller Services, the Supplier acknowledges and agrees that nothing in this Agreement conveys, transfers, or grants to the Supplier any rights, title, or interests in or to any Reseller software; and as between the Parties all such rights, title, and interests are retained exclusively by Reseller. The Supplier may not disclose such specified APIs to a third party or permit a third party to use same. In the event of any unauthorized use of the Reseller software (including the API) by or through the Supplier, Reseller may, without prejudice to any other rights, immediately terminate the Supplier’s access to and use of the Reseller software, which may result in the cessation of the Reseller Services. The Supplier shall not modify, reverse engineer, disassemble, or decompile the Reseller software, in whole or in part, or otherwise attempt to discover any source or object code or trade secret related thereto. Any tampering with the Reseller software shall raise a rebuttable presumption of fraud.

Supplier will prevent fraudulent, unauthorized, or illegal access to or use of, and any loss or damage to, the systems of Reseller and Third-Party Service Providers (defined as independent third-party service providers that Reseller uses to provide the Reseller Services including acquirers, internet payment service providers and financial institutions) to the extent within Supplier's control. With respect to any Customer personal information received, accessible or accessed by Supplier, Supplier will comply with Applicable Law regarding the use of such personal information and the requirements of its privacy policy.

INCIDENT RESPONSE

Each Party will notify the other promptly under the circumstances, but in no event later than 2 business days after discovery of any Security Event (defined as any event that results in or may result in any loss or unauthorized destruction, deletion, modification, access, use, disclosure, theft of, compromise of privacy of, or acquisition of Cardholder Data, Transaction data, Authentication Data (defined as data used to authorize a Transaction made with a payment card), Customer information, or any other data that constitutes “personal information” under Applicable Law), suspected fraudulent transactions, or fraudulent, unauthorized or illegal access to, use of, or acquisition or loss of the other Party’s Confidential Information (“Security Incident”). This notification will include (i) the nature of the Security Incident or Security Event, as appropriate; (ii) the type of information at risk: and (iii) what Remediation Efforts (defined as any activity designed to remediate a Security Incident or Security Event which may be required by the Applicable Law, or which may otherwise be necessary, reasonable, or appropriate under the circumstances to mitigate losses or damages either realized or reasonably foreseeable as a result of the Security Incident or Security Event) the Party took or will take to prevent further non-permitted or violating uses or disclosures. The Party suffering the Security Incident or Security Event will undertake all Remediation Efforts at its sole expense. Each Party will reasonably cooperate with the other Party to address or mitigate any Security Incidents or Security Events. Reseller shall have the right to terminate or suspend this Agreement in respect of any Security Breach (defined as a Security Event or a Security Incident in respect of a Party related to Cardholder Data and/or personal identifiable identification) that Reseller reasonably determines is due to an act or omission of Supplier.

RESELLER SERVICES

During the Term, Reseller and/or its Affiliates (defined with respect to either Party, as any corporation or other legal entity which is directly or indirectly controlling or controlled by, or under common control with that Party. Control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation or legal entity) shall provide the following services (“Reseller Services”) to Supplier: (a) facilitate fulfilment of the Supplier Offering to Customers; (b) identify itself as the contracting party and Merchant of Record with Customers; (c) provide merchant of record services (collectively, “Merchant of Record Services” or “MoR Services”) that include payment localization services which enable the acceptance by Reseller of various payment methods for Transactions in certain supported currencies, and concluding Transactions by way of: (i) requiring Customer to agree to be bound by the Reseller Terms and Conditions (defined as the terms and conditions that bind Customers when conducting a Transaction and located at: https://www.withreach.com/terms-of-service) as a condition of acquiring the Supplier Offering; (ii) obtaining payment from a Customer in the applicable available currencies as approved in writing by Reseller; (iii) collecting, settling and remitting aggregate funds for the Transactions to Supplier (less applicable Fees and Sales Tax collected and to be remitted by Reseller); (iv) remitting funds for Refunds in respect of Transactions to Customers pursuant to Reseller’s policies and procedures; and (v) managing all Chargebacks (defined as a charge made to a Customer for the sale of a Supplier Offering that is reversed as a result of a successful dispute by a Customer; (c) calculate, charge, collect and remit the applicable Sales Tax in respect of the Transactions; and (d) by providing direct customer service to Customers.

SUPPLIER ACKNOWLEDGEMENTS, AGREEMENTS AND CONSENTS

Supplier acknowledges that Reseller and/or its Affiliates, is/are appointed as the contracting party for the purpose of concluding the Transactions as the Merchant of Record. Supplier shall take appropriate steps to inform Customers that Reseller and/or its Affiliates is/are the Merchant of Record for their Transactions. Supplier shall ensure that its end user terms of service comply with the Rules and shall be responsible for making any changes to these terms to comply with the Rules.

THIRD PARTY SERVICE PROVIDERS

The Reseller Services are dependent upon Third-Party Service Providers which are subject to modification without notice. Supplier understands that the availability of any authorization, clearance, or settlement of Transactions is or are controlled by Third-Party Service Providers and supported card payment associations, subject to their respective rules and regulations, and are not under the control of Reseller. Internet payment service providers may require Customers to accept their terms of service, in which case those terms shall also apply to Transactions.

SCOPE OF RESELLER SERVICES

Changes in Applicable Law, the Rules, applicable financial services regulations, or Supplier’s sales territories may compel Reseller to modify or refrain from offering certain elements of the Reseller Services to Supplier which may necessitate an amendment to the terms and conditions of this Agreement or the Fees payable hereunder.

SUPPLIER TERMS

All resales of the Supplier Offering are subject to the Supplier Terms (defined as means the Supplier’s standard terms and conditions for subscription or sale of the applicable Supplier Offering as posted on the website of the Supplier and which may be updated from time to time). Reseller shall ensure that each Customer agrees to the applicable Supplier Terms with Supplier in respect of the applicable Supplier Offering.

Other than the terms of the Supplier Terms, Reseller controls the terms on which it does business with its Customers and is responsible for compliance with, and enforcement of, its agreements with such Customers. Reseller shall have sole responsibility for and shall bear all costs associated with its resale of the applicable Supplier Offering to Customers. Reseller and/or its Affiliates reserve the right to determine the pricing of the Supplier Offering and whether to resell the Supplier Offering to any Customer.

FRAUD, REFUNDS, CHARGEBACKS AND OTHER LIABILITY

Reseller shall assume liability for fraud risk to the extent set out below in respect of Losses (defined as damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers) resulting from fraudulent payments. Reseller provides Fraud Monitoring Services which are hereby incorporated by reference. Reseller’s refund policy shall be made available to Customers in the checkout process. If a Refund arises related to the functionality of Supplier Offering or an act of error or omission by Supplier, Supplier shall assume liability for the Refund and any related costs, Sales Tax and fees. The foreign currency exchange rate on refunds shall be the same as applied to the original Transaction for which a refund is being issued.

If a Chargeback arises for any reason other than a fraudulent payment for a Transaction, such as the functionality of Supplier Offering or an act of error or omission by Supplier, Supplier shall assume liability for the Chargeback and any related costs, Sales Tax and fees. Reseller shall assist in resolving chargeback disputes or claims by Customers, as set out in the Reseller Chargeback and Dispute Guide (defined as the policies and procedures used by Reseller to resolve fraud and Chargebacks, which is incorporated by reference and forms part of this Agreement. Supplier agrees to reasonably assist Reseller in preventing and investigating Chargebacks and provide any reasonably requested information.

Supplier shall pay Reseller on demand the amount of all Negative Balances (defined as any amount owed to Supplier by Reseller which is exceeded by the Fees Supplier owes Reseller as well as any costs, fines or penalties, imposed on Reseller by a third-party service provider or any payment card association network.

SALES TAXES

Reseller shall use its organizational structure, local tax registrations and tax software to calculate, collect, and remit the appropriate Sales Taxes a Customer is responsible for paying in respect of all Transactions in accordance with Applicable Law. Reseller shall provide Customers with the proper country specific tax invoice required for the Transactions. All Fees and other amounts in this Agreement are stated exclusive of any Tax (defined as any national, subnational, federal, state, provincial, local, or foreign income, gross receipts, franchise, estimated, alternative minimum, add-on minimum, sales, use, transfer, real property gains, registration, value added, goods and services, ad valorem, escheat, unclaimed or abandoned property, excise, natural resources, severance, stamp, occupation, premium, profits, license, windfall profit, environmental, customs, duties, real property, special assessment, personal property, capital stock, social security, unemployment, disability, payroll, license, employment, employee or other withholding, or other tax, like governmental fee or other like assessment or charge of any kind whatsoever, together with any interest, penalty, addition to tax or additional amount imposed by any law or taxing authority, whether disputed or not). Supplier is responsible for the payments of all Taxes on Fees payable for the Reseller Services. Reseller agrees to provide to Supplier resale exemption certificate(s), or other comparable documentation, indicating that the Supplier Offering purchased under this Agreement are being purchased by Reseller, without modification by Reseller, for the purposes of resale in the ordinary course of Reseller’s business. All payments made to Reseller are to be made without deduction, withholding, set off or other adjustments for Taxes. Neither Party shall be required to reimburse the other Party for taxes based on the other Party’s net income or gross receipts. The Supplier and Reseller shall: (i) each provide the other such assistance as may be reasonably requested on any of them or their representatives in connection with the preparation of any tax return or the audit or other examination by any taxing authority, or judicial or administrative proceeding, relating to liability for Sales Taxes related to Transactions, (ii) each retain and provide the other with any records or other information which may be relevant to such tax return, audit or examination, proceeding or determination. Any expenses incurred in furnishing such information or assistance shall be borne by the party requesting it. If Reseller is audited, assessed or reassessed by a taxing authority regarding a material amount of Sales Tax in respect of the Transactions, Reseller shall reasonably defend its position and the third party costs and expenses incurred by Reseller to defend against such audit or reassessment shall be borne by the Supplier.

FEES AND PAYMENT

Reseller shall be solely responsible for billing and collecting payments from Customers for the Supplier Offerings. The fees payable by Supplier to Reseller for the Reseller Services are set out in the relevant fee schedule (“Fees”).

Reseller shall provide Supplier with a settlement report (“Settlement Report”) in support of each settlement made by Reseller to Supplier describing the aggregate amount of all Transactions and any additional costs submitted and approved through the Reseller that is credited in Cleared Funds by Reseller to the relevant Account(s) of Supplier. The Settlement Report shall be deemed to be an invoice issued by Reseller to Supplier and shall contain detailed information regarding Supplier’s revenue net any Fees, applicable Sales Tax required to be collected and other amounts owing by Supplier to Reseller for the applicable period.

Supplier shall promptly provide Reseller with written notice of objections in respect of the Settlement Reports. If Reseller has not received written notice of any objections to any such report within thirty (30) calendar days of the date upon which such report was first provided, such report shall be deemed to be accurate and complete, and Supplier irrevocably waives any objections to such report.

Payment for all Fees shall be deducted from any Settlement to the Supplier. Fees shall be payable by the Supplier in the home currency of the Supplier, unless otherwise agreed to in writing by Reseller. Supplier shall execute a payment authorization in favor of Reseller which facilitate Payments from Reseller as well as deductions from Supplier’s settlement account for Negative Balances. Reseller shall credit in Cleared Funds (defined as proceeds of Transactions that are available for Settlement) the aggregate amount of all the Transactions in the home currency of Supplier during the relevant period to the relevant Account(s) of the Supplier (the “Settlement”). Settlement may occur in other available currencies if mutually agreed to in writing. Settlement shall be net of any Fees and applicable Sales Tax required to be collected and to be remitted by Reseller. Unless otherwise agreed to in writing, Settlement shall occur twice weekly on Tuesdays and Fridays. In case of holidays and/or regulatory restrictions, Reseller shall pay to the Supplier the relevant amount of the Settlement the following business day. Reseller shall not be required to settle with Supplier where it has not received Cleared Funds for a Transaction. Supplier acknowledges that Reseller has no control over the timing of the receipt of Cleared Funds from the various payment methods.

For amounts payable under this Agreement Reseller is authorized to, and without prior notice, set-off in whole or in part, the amount of such Fees or other sums payable against any sums held or received by Reseller and/or its Affiliates and owed to the Supplier. For the purpose of exercising any set-off right, Reseller is entitled to convert and/or exchange any currency and is authorized to effect any such conversion at its prevailing exchange rate. Any exercise by Reseller of its rights hereunder shall be without prejudice and in addition to any other rights and remedies available to it under this Agreement.

Reseller may request financial statements from the Supplier to assess the Supplier’s financial position. Reseller may delay the payment of any open Settlements following termination of this Agreement.

REPRESENTATIONS AND WARRANTIES

Supplier Representations, Warranties and Covenants

Supplier represents and warrants to Reseller that: (a) it is a corporation duly incorporated and organized and validly subsisting under the laws of its home country and has the corporate power to enter into this Agreement and to perform its obligations hereunder; (b) Supplier is duly qualified as a corporation to do business in each jurisdiction in which the nature of its business or its assets makes such qualification necessary; (c) this Agreement has been duly authorized, executed and delivered by Supplier and is a legal, valid and binding obligation of Supplier, enforceable against Supplier by Reseller in accordance with its terms; (d) it is engaged in a lawful business and has all necessary rights, authorizations, licenses, and permits for its operations, and shall have undertaken and fulfilled all actions and conditions to enter into, to perform under, and to comply with its obligations under the Agreement; (e) it has right, title, and licence in the Supplier Offering to facilitate the Transactions; (f) it will comply with Applicable Law where Supplier is registered and located and any other Applicable Law applicable to it, and will promptly notify Reseller in writing if Supplier cannot so comply; (g) it will not use the Reseller Services for any purpose which is contrary to Applicable Law or the Rules, this Agreement, any additional terms provided by Reseller or its Third-Party Service Providers which apply to Supplier, or in any way that violates or infringes on the Intellectual Property Rights or privacy rights of a third party; and will promptly notify Reseller in writing if Supplier learns that it has used the Reseller Services for any such purpose; (h) it has established, maintains and will maintain a privacy policy on its website through which it informs customers that with respect to Transactions, Customer will be required to provide personal information necessary to process a payment transaction (including fraud prevention) directly to Reseller and its Third-Party Service Providers; (i) it shall inform Customers that Reseller and its Affiliates is/are acting as Merchant of Record of the Supplier in respect of all Transactions; (j) it will promptly notify Reseller in writing of a significant change or if Supplier reasonably anticipates a significant change that will affect the number of Transactions processed hereunder; (k) it will provide Customers with Technical Support in respect of the Supplier Offering; (l) it shall ensure that it has, and shall maintain and provide, at its own expense, its own system and such internet access, hardware, software, and other facilities necessary for Reseller to perform the Reseller Services; and (m) all information (including computer data) provided by Supplier to Reseller in connection with the Reseller Services is true, accurate, and complete in all material respects and free of error, viruses, or malware.

Reseller Representations, Warranties and Covenants

Reseller represents, warrants, and covenants to Supplier that: (a) it is a corporation duly incorporated and organized and validly subsisting under the laws of the United Kingdom and has the corporate power to enter into this Agreement and to perform its obligations hereunder; (b) Reseller is duly qualified as a corporation to do business in each jurisdiction in which the nature of its business or its assets makes such qualification necessary; (c) this Agreement has been duly authorized, executed and delivered by Reseller and is a legal, valid and binding obligation of Reseller, enforceable against Reseller by Supplier in accordance with its terms; and (d) it is engaged in a lawful business and it has all necessary rights, authorizations, licenses, and permits for its operations.

SUSPENSION OF SERVICE

Reseller may suspend all or any part of the Reseller Services to Supplier with prior thirty (30) days notice unless the circumstances and gravity of the matter is such that no notice can be provided by Reseller where: (a) the Supplier has materially breach any Applicable Law, the Rules or provisions of this Agreement; (b) there is a security threat, incident, or breach involving either Party; (c) in the opinion of Reseller, it is necessary or desirable to do so because of volatility, disruption, or illiquidity in foreign currency exchange markets; or (d) any cessation of service from Third-Party Service Providers.

OWNERSHIP AND RESERVATION OF RIGHTS

Subject to the terms and conditions of this Agreement, each Party herby grants to the other Party a limited, non-exclusive, royalty-free, fully paid-up, non-transferable, non-sublicensable and revocable license during the Term to use and display its Trademarks (defined as trademarks, service marks, trade names, brand names, logos, trade dress, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case, whether registered or unregistered and including all registrations and 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) solely in connection with Reseller providing the Reseller Services. Any goodwill arising from the use of a Party’s Trademarks shall inure to the benefit of such Party that owns such Trademarks.

All right, title and interest, including Intellectual Property Rights, in and to the respective Trademarks and Confidential Information of Supplier and Reseller, shall remain exclusively with such Party. All rights not expressly granted to Reseller or Supplier in this Agreement are reserved.

CONFIDENTIAL INFORMATION

For the purposes of this Agreement, a Party or any of its Affiliates, customers, employees, licensors or suppliers receiving Confidential Information shall be the “Recipient” and the Party disclosing such information shall be the “Discloser”. “Confidential Information” means any and all information of Discloser or any of its Affiliates, that has or shall come into the possession or knowledge of Recipient in connection with or as a result of entering into this Agreement, including information concerning Discloser’s past, present or future customers, suppliers, technology or business and this Agreement, provided, however, that “Confidential Information” does not include any information that: (a) is publicly available prior to it being obtained by or becoming known to Recipient, or that subsequently becomes publicly available through a Supplier of this Agreement by Recipient; (b) Recipient can demonstrate was known to it prior to it being obtained by or becoming known to Recipient in connection with or as a result of entering into this Agreement; (c) becomes known to Recipient from a third party, where Recipient had no reason to believe that such third party had any obligation of confidence with respect to such information; or (d) Recipient can demonstrate was independently developed by it who did not have any access to, or the benefit of, the Confidential Information of Discloser; provided, however, that any information about an identifiable individual shall constitute Confidential Information that is subject to the restrictions set out in this Agreement.

During the Term and at all times thereafter, Recipient shall: (a) not disclose Confidential Information of Discloser to any Person (defined as any individual, sole proprietorship, partnership, firm, entity, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate, or governmental or regulatory authority), except: (i) in the case of an Affiliate’s employees, contractors, subcontractors, consultants, Third-Party Service Providers, officers, directors, partners, shareholders, agents and their respective successors, or permitted assigns having a “need to know” the information in connection with this Agreement and that have entered into written agreements no less protective of such Confidential Information than this Agreement; and (ii) such other recipients as Discloser may approve in writing; (b) not use Confidential Information of Discloser or permit it to be accessed or used for any purpose except to exercise its rights or perform its obligations under this Agreement; and (c) take measures to protect the confidentiality and security of such Confidential Information using a reasonable standard of care, and no less than the standard of care taken to protect its own Confidential Information of similar sensitivity.

A Recipient may disclose Discloser’s Confidential Information: (a) to the extent that such disclosure is required by Applicable Law or by the order of a court of competent jurisdiction or similar judicial or administrative body, provided that, except to the extent prohibited by law, Recipient promptly notifies Discloser in writing of such required disclosure and cooperates with Discloser to seek an appropriate protective order; and (b) to its legal counsel and other professional advisors in order to provide applicable professional advisory services in connection with the Party’s business.

A release of Discloser’s Confidential Information may cause serious and irreparable damage and harm to Discloser and that remedies at law may be inadequate, and each Party agrees that Discloser may seek injunctive relief in addition to any other remedy to which Discloser would be entitled.

Upon written request by a Discloser or upon the termination or expiration of this Agreement, each Party shall promptly return to the other Party or destroy all Confidential Information of the other Party in its possession or control. Notwithstanding the foregoing, Recipient may retain any electronically archived Discloser’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations herein.

INDEMNIFICATION

Reseller shall indemnify, defend and hold Supplier, its Affiliates, subsidiaries and each of their respective directors, officers, employees, subcontractors and other representatives (each, a “Supplier Indemnitee”) harmless from and against any and all Losses incurred by a Supplier Indemnitee arising out of or relating to any claim, action, demand, inquiry, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise by a third party that arises from or relates to: (a) any claim brought alleging that Supplier’s use of the Reseller Services infringes on the Intellectual Property Rights of a third party; (b) any breach of any representations, warranties or covenants herein (c) a breach by Reseller of its Confidentiality obligations; or (d) gross negligence or wilful misconduct of Reseller.

Supplier shall indemnify, defend and hold Reseller, its Affiliates, subsidiaries and each of their respective directors, officers, employees, subcontractors and other representatives (each, a “Reseller Indemnitee”) harmless from and against any and all Losses incurred by a Reseller Indemnitee arising out of or relating to an action by a third party that arises from or relates to: (a) warranties, descriptions, fitness, merchantability and safety in respect of the Supplier Offering; (b) claims related to Customers’ use of the Supplier Offering; (c) any claim brought alleging that the Supplier Offering infringes on the Intellectual Property Rights of a third party; (d) inaccurate information, errors and misrepresentations contained in, or related to, information provided by Supplier to Reseller; (e) any breach of any representations, warranties or covenants herein; or (f) gross negligence or wilful misconduct of Supplier.

In the event that a Party wishes to seek indemnification from another Party, the Party seeking indemnity (“Indemnified Party”) must provide to the other Party (“Indemnifying Party”): (i) prompt written notice of the claim upon becoming aware of it, provided that a failure to provide prompt written notice shall only nullify the indemnification to the extent that the Indemnifying Party is prejudiced by the delay; (ii) authority to control and direct the defence and/or settlement of the claim; and (iii) such information and assistance as reasonably requested by the Indemnifying Party in connection with such defence and/or settlement. In any claim for which the Indemnifying Party provides defence on behalf of the Indemnified Party, the Indemnifying Party may participate in such defence, at its own expense, with counsel of its choice. In no event shall the Indemnifying Party enter into any settlement or agree to any disposition, without the prior written consent of the Indemnified Party that contains an admission of liability or wrongdoing on the part of Indemnified Party, otherwise prejudices the rights of the Indemnified Party, or imposes a material obligation on the Indemnified Party that is not wholly discharged by the Indemnifying Party. If the Indemnifying Party does not promptly assume its indemnification obligations, the Indemnified Party may assume such defence and recover all damages, costs and expenses relating thereto.

LIMITATION OF LIABILITY; DISCLAIMER

Neither Reseller nor its Affiliates assume any liability for Supplier’s failure to perform in accordance with this Agreement or any results caused by Supplier’s acts, omissions or negligence, or a subcontractor or an agent of Supplier or an employee of Supplier, nor shall Reseller or any of its Affiliates have any liability for claims of third-party service providers, including, but not limited to, claims of third parties arising out of or resulting from, or in connection with Supplier Offering, programs, contracts, promotions, advertising, infringement, or any claim for libel or slander or for Supplier’s violation of copyright, trademark or other Intellectual Property Rights.

Reseller Disclaimers and Exclusions

EXCEPT WITH RESPECT TO THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, RESELLER HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF COMPATIBILITY, SATISFACTORY QUALITY, COMPATIBLE QUALITY, NON-INFRINGEMENT, FITNESS FOR ANY SPECIAL OR GENERAL PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW. EXCEPT AS OUTLINED IN THIS AGREEMENT, RESELLER MAKES NO REPRESENTATION, WARRANTY OR CONDITION REGARDING THE ERRORS OR OMISSIONS IN THE CONTENT OF THE RESELLER SERVICES AND ACCURACY, TIMELINESS, AVAILABILITY, RELIABILITY OR OPERATION OF THE RESELLER SERVICES.

IN NO EVENT WILL RESELLER BE LIABLE TO SUPPLIER FOR ANY DAMAGES OR LOSSES OF ANY KIND IN RESPECT OF ANY SERVICES PROVIDED TO RESELLER BY THIRD-PARTY SERVICE PROVIDERS OR WHICH ARISE DUE TO (I) A MISTAKE IN THE TRANSMISSION OF ELECTRONICALLY STORED INFORMATION, SUCH AS DELAYS, MISTAKEN TRANSMISSIONS, DISTORTIONS OR THE DISAPPEARANCE OF SUCH INFORMATION, OR (II) ANY DISTURBANCE OR INTERRUPTION IN OPERATION OF THE RESELLER SERVICES OR INABILITY TO ACCESS OR LIMITED ACCESS TO THE RESELLER SERVICES.

LIMITATION OF LIABILITY

THE PARTIES ACKNOWLEDGE THAT THE FOLLOWING PROVISIONS HAVE BEEN NEGOTIATED BY THEM AND REFLECT A FAIR ALLOCATION OF RISK AND FORM AN ESSENTIAL BASIS OF THE BARGAIN AND WILL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY. EXCEPT AS PROVIDED HEREIN, IN NO EVENT WILL RESELLER’S TOTAL AGGREGATE LIABILITY IN CONNECTION WITH OR UNDER THIS AGREEMENT WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE EXCEED THE SUM OF ALL FEES PAID OR PAYABLE BY SUPPLIER TO RESELLER IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL RESELLER BE LIABLE FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) SALES, (C) PROFIT, (D) DATA, (E) USE, OR (F) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE SUPPLIER OFFERINGS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.

THE LIMITS SET FORTH HEREIN WILL NOT APPLY TO: (I) EITHER PARTY’S GROSS NEGLIGENCE, WILFUL MISCONDUCT OR FRAUD; (II) A PARTY’S FAILURE TO COMPLY WITH APPLICABLE LAW; (III) INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY EITHER PARTY; (IV) SUPPLIER’S FAILURE TO COMPLY WITH ITS INFORMATION OBLIGATIONS; AND (V) EITHER PARTY’S FAILURE TO COMPLY WITH ITS CONFIDENTIALITY OBLIGATIONS.

TERM AND TERMINATION

This Agreement shall commence on the Effective Date and continue for a period of one (1) year (“Initial Term”). The Term shall automatically renew for successive periods of one (1) year (each a “Renewal Term” and together with the Initial Term the “Term”), unless terminated earlier in accordance with this Agreement. The Effective Date is the moment of first use of the Reseller Services.

Reseller shall have the right to terminate this Agreement by providing a written notice of termination to the Supplier at least thirty (30) days prior to the desired termination date if: (a) such termination or suspension is required under the Rules or under Applicable Law; (b) the Supplier Offering has excessive Chargebacks; or (c) Reseller is unable to meet the requirements of Third-Party Service Providers for payment processing due to the actions or inactions of Supplier.

Either Party may terminate this Agreement, by giving to the other Party written notice of termination upon the occurrence of any of the following events: (a) the other Party defaults on any of the material terms or conditions of this Agreement and fails to cure such default within thirty (30) days of receipt of written notice thereof; except that in the event of any default that is incapable of being cured, such termination shall be effective immediately; (b) the other Party makes any assignment for the benefit of creditors or is unable to pay its debts as they mature in the ordinary course of business; or (c) any proceedings are instituted by or against the other Party under any insolvency laws or for reorganization, receivership or dissolution.

Upon the termination or expiration of this Agreement: (i) Reseller shall immediately cease all use of Supplier’s Trademarks; (ii) Reseller shall immediately cease to represent itself as Supplier’s authorized reseller with respect to the Supplier Offering; (iii) each Party shall return the other Party’s Confidential Information; and (iv) upon request of a Party, the other Party shall confirm in writing that it has complied with the requirements of this Section.

Termination of this Agreement for any reason shall not relieve either Party of its liability for the payment or performance of any obligation already accrued or resulting from acts, omissions or events occurring prior to the effective date of termination.

SURVIVAL

The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates the performance or observance subsequent to termination or expiration of this Agreement, shall survive the expiration or termination of this Agreement for any reason: Ownership; Reservation of Rights, Confidential Information, Indemnification, Limitation of Liability and Disclaimer, Effect of Termination or Expiration and the General Provisions.

GENERAL PROVISIONS

Notices sent to either Party shall be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party. The sender shall address a notice to the recipient using the current postal or email address that the sender has on file with respect to the recipient. Either party may change its contact information by giving written notice to the other Party in a timely manner.

Supplier shall not assign or transfer this Agreement, or transfer or subcontract any rights or obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Reseller. The rights of Reseller pursuant to this Agreement are freely assignable. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.

This Agreement and any action related thereto shall be governed by and construed in accordance with the laws of England and Wales without regard to conflicts of law principles. The Parties shall initiate any lawsuits in connection with this Agreement in the courts of England and Wales and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein.

Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation”. The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of a Party in this Agreement, mean the right of such Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party. The language used in this Agreement is the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Party. Neither Party shall be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, phone or internet outage or disruption, power outage or disruption, computer malfunction, strikes, slowdowns, walkouts or other labour problems (other than those involving that Party’s employees), internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure Event”). In the event of any failure or delay caused by a Force Majeure Event, the affected Party shall give prompt written notice to the other Party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable shall be severed from this Agreement and all other provisions of this Agreement shall remain in full force and effect. A waiver of any provision of this Agreement must be in writing and a waiver in one instance shall not preclude enforcement of such provision on other occasions.

Reseller is, and shall at all times remain, an independent contractor with Supplier, and Reseller is not, and shall not represent itself to be the mandatary, agent, joint venturer, co-employer, fiduciary trustee, franchisee, partner, or employee of Supplier, or to be related to Supplier other than as an independent sales Reseller. Reseller will not have, and shall not represent to any third party that it has, any authority to act on behalf of Supplier. Supplier consents to the inclusion by Reseller and its Affiliates of Supplier’s name and/or logo in its customer list.

Reseller shall maintain accurate books and records related to its activities under this Agreement for the period required by Applicable Law.

To the extent permitted by Applicable Law, Reseller may collect and analyse transactional data, anonymously and in aggregate, for the purpose of identifying trends, statistics and measurements. For greater clarity, any such data analysed shall be aggregated and shall exclude any personally-identifiable information. Such data shall not be considered Confidential Information and Reseller shall be entitled to use any such data as it may see fit in any manner and for any purpose it may choose. Except as otherwise specifically stated in this Section, the provisions of this Agreement are for the benefit of Reseller and Supplier and not for any other person or entity.

Each Party shall, from time to time, execute and deliver all such further documents and instruments and do all acts and things as the other Party may reasonably require to effectively carry out or better evidence or perfect the full intent and meaning of this Agreement.

This Agreement, and the agreements and other documents required to be delivered pursuant to this Agreement, constitute the entire agreement between the Parties and set out all the covenants, promises, warranties, representations, conditions, and agreements between the Parties in connection with the subject matter of this Agreement and supersede all prior agreements, understandings, negotiations, and discussions, whether oral or written, pre-contractual or otherwise. There are no covenants, promises, warranties, representations, conditions, or other agreements, whether oral or written, pre-contractual or otherwise, express, implied or collateral, whether statutory or otherwise, between the Parties in connection with the subject matter of this Agreement, except as specifically set forth in this Agreement and any document required to be delivered pursuant to this Agreement.

Reseller has the unilateral right to amend the Agreement if a Third-Party Service Provider changes the terms or increases the costs related to its provision of the Services provided hereunder. Reseller may also periodically amend the terms of this Agreement by posting a revised version of this Agreement to its website. In such case, Supplier’s continued use of the Reseller Services constitutes its acceptance of the revised terms.

Neither Party shall issue any press release or make any public announcement (in any medium, including through social media) relating to the subject matter of this Agreement without the prior written consent of the other Party.