TradeGecko Referral Partner Agreement

THE FOLLOWING TERMS AND CONDITIONS (“AGREEMENT”) APPLY TO THE SALES REFERRAL ACTIVITIES YOU ENGAGE IN FOR TRADEGECKO PTE LTD (“TRADEGECKO”).   YOU AND THE ENTITY OR COMPANY THAT YOU REPRESENT ("REFERRAL PARTNER") ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY, AND ARE BECOMING A PARTY TO, THIS AGREEMENT.  IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU WILL NOT HAVE ANY RIGHT TO BE A TRADEGECKO REFERRAL PARTNER HEREUNDER.  IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

1.  Definitions

1.1  “Customer” means a third party referred by Referral Partner in accordance with this Agreement and that enters into a Services Agreement with TradeGecko.

1.2  “Fees” means all cash amounts actually received by TradeGecko from a Customer in respect of Services net of any (i) sales, use, value added, and other taxes or governmental assessments or withholding, (ii) credit card or banking fees, (iii) amounts repaid or credited by reason of rejections, defects, or returns (to the extent such amounts are included in such fees), (iv) discounts and (v) commissions payable to third parties, direct project costs and other out-of-pocket amounts paid to third parties.  Fees shall not include any non-recurring fees paid by Customers, including but not limited to training, consulting, implementation, professional services, third-party software fees, or any pass-through expenses paid.

1.3  “Prospect” means a customer or other contact of Referral Partner that may be interested in acquiring the Services.

1.4  “Services Agreement” means the contract by which TradeGecko agrees to provide to a Customer access to and/or use of the Services.

1.5  “Services” means the inventory management software as a service provided by TradeGecko under a Services Agreement.

2.  Referrals and Obligations

2.1  Appointment. TradeGecko hereby appoints Referral Partner as a non-exclusive marketing representative during the Term of this Agreement to promote the sale and use of the Services, in accordance with this Agreement.  Nothing in this Agreement shall be construed as limiting in any manner TradeGecko’s marketing and distribution activities, or its appointment of resellers, agencies, dealers, distributors, licensees, agents or representatives of any kind.  Referral Partner may create an account on the Services (an “Account”) in connection with its performance under this Agreement.  Referral Partner is solely responsible for keeping all information, including contact information, associated with the Account updated, and for keeping the username and password secure. Referral Partner shall promptly notify TradeGecko of any suspected unauthorized access to Referral Partner’s Account. Referral Partner agrees to receive notices regarding the Services and this Agreement via the Account.

2.2  Obligations.  Referral Partner agrees to use reasonable commercial efforts to promote the Services to Prospects.  Referral Partner shall comply with good, ethical and moral business practices and all applicable laws and regulations in engaging in any activities hereunder.

2.3  Affiliate Links. Referral Partner may receive a Commission (as defined below) for Prospects who directly enter into a Service Agreement through Referral Partner affiliate links or other promotional codes provided by TradeGecko.  TradeGecko shall have no obligation to Referral Partner (i) if a Prospect is already under contract to receive the Services from TradeGecko, or (ii) if TradeGecko has already entered into discussions with such Prospect.  Referral Partner shall use commercially reasonable efforts to avoid contacting any known TradeGecko prospects or customers.

2.4  TradeGecko Materials.  TradeGecko may provide Referral Partner with certain materials for use in conjunction with promoting the Services hereunder (“TradeGecko Materials”).  TradeGecko hereby grants Referral Partner a non-exclusive, royalty-free license to use TradeGecko’s name, trade names, trademarks, service marks, and logos (collectively, the “Marks”) solely in connection with Referral Partner’s promotion and marketing of Services, subject to written usage guidelines made available to Referral Partner.  As between the parties, TradeGecko or its licensors own all right, title and interest in and to the Services, the Marks, the TradeGecko software and the TradeGecko Materials.

3.  Commissions; Taxes

3.1  Commissions. TradeGecko will pay Referral Partner for Service Agreements entered into between TradeGecko and Prospects referred by Referral Partner pursuant to Section 2.3 above during the term of this Agreement as follows, and based upon the commission selection chosen by Referral Partner upon the creation of Referral Partner’s Account: (i) 200% of the Fees received by TradeGecko for the first month of Service with respect to a Service Agreement, or (ii) 20% of the Fees received by TradeGecko for such Service Agreement (“Commission”).  Referral Partner may not receive more than one type of Commission and may not change the Commission selection after the Account is created.

3.2  Payment Terms. Such Commission shall be paid on a monthly basis to Referral Partner’s PayPal account provided during Account creation, within thirty (30) days after the end of each calendar month with respect to Fees actually received by TradeGecko from each applicable Customer during the immediately previous calendar month; provided that, payments under 3.1(i) shall be paid in two equal payments following the first and second month of the applicable Services upon receipt of payment from the Merchant for two consecutive months.  If a Services Agreement between a Customer and TradeGecko expires or is terminated for any reason, all obligations to pay Referral Partner a Commission, if any, shall also terminate without liability to TradeGecko.

3.3  Taxes & Expenses.  Each party shall be responsible for and pay any and all applicable taxes, customs, withholding taxes, duties, assessments and other governmental impositions resulting from its own activities under this Agreement.  Each party will be responsible for the expenses that it incurs in connection with the performance of this Agreement.

4.  Warranties; Disclaimer

4.1  Warranties.  Any warranties for the Services or TradeGecko Materials shall run directly from TradeGecko to the Customer or potential Customer.  In no event shall Referral Partner make any representation, guarantee or warranty concerning the Services, TradeGecko Materials or term or conditions of the Services Agreement, except as expressly authorized in writing by TradeGecko.  In addition, Referral Partner shall: (i) refrain from any deceptive, misleading and unethical practice that is or might be detrimental to TradeGecko; (ii) make no false or misleading representations, warranties, or guarantees with regard to TradeGecko or its products and services; (iii) not use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to TradeGecko or the Services; (iv) not copy, resemble or mirror the look and feel of TradeGecko’s websites, TradeGecko trademarks or Services or otherwise misrepresent Referral Partner’s affiliation with TradeGecko or the Services; (v) not send any email regarding TradeGecko and/or the Services to any individual or entity that has not requested such information; and (vi) always include Referral Partner’s contact information and “unsubscribe” information at the top and bottom of any email regarding TradeGecko or the Services.

4.2  Disclaimer. NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

5.  Liability Limitation

EXCEPT WITH RESPECT TO ANY OBLIGATIONS SET FORTH IN SECTION 4.1 AND SECTION 7, NEITHER PARTY WILL BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHATSOEVER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, AND IN NO EVENT SHALL TRADEGECKO’S LIABILITY EXCEED THE COMMISSIONS PAID BY TRADEGECKO TO REFERRAL PARTNER DURING THE TWELVE (12) MONTHS PRIOR COMMENCEMENT OF THE ACTION GIVING RISE TO SUCH LIABILITY. 

6.  Termination

6.1  Term and Termination.  This Agreement shall continue until terminated.  Either party may, at its option, terminate this Agreement upon thirty (30) days’ notice  to the other party for any reason or for no reason whatsoever.  TradeGecko may terminate this Agreement immediately if Referral Partner breaches any term of this Agreement. TradeGecko may provide notice of termination via email or through Referral Partner’s Account on the Services.

6.2  Effect of Termination.  Upon any termination (i) all monies due Referral Partner will immediately become due and payable within thirty (30) days following termination; (ii) Referral Partner shall immediately cease all promotion of the Services and shall immediately return to TradeGecko, or at the option of TradeGecko, destroy, all Confidential Information, TradeGecko Materials, hardware and software provided to Referral Partner hereunder; and (iii) TradeGecko may market, sell or provide the Services to any third party, without obligation to pay Referral Partner any Commissions, except that TradeGecko shall pay Referral Partner Commissions owed with respect to Fees received from Customers after termination of this Agreement for the remainder of period specified in Section 3.1 above, provided that TradeGecko has not terminated this Agreement because of a breach of this Agreement by Referral Partner, in which case no Commissions shall be payable to Referral Partner following termination.  Notwithstanding any termination of this Agreement, the following Sections shall survive:  1, 4, 5, 6.2, 7 and 8.

7.  Confidentiality

In connection with this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”).  Confidential Information shall include this Agreement, any Commission paid or payable hereunder, all customer lists and information relating to TradeGecko’s products, services and pricing and all information designated as confidential by either party or disclosed pursuant to the terms of this Agreement.  A party’s Confidential Information shall not include any information which (i) becomes part of the public domain through no act or omission of the other party; (ii) is lawfully acquired by the other party from a third party without any breach of a confidentiality obligation; or (iii) is disclosed by the disclosing party to a third party without any obligation of confidentiality.  The parties agree to maintain the confidentiality of the other party’s Confidential Information using the highest standard of care and to protect as a trade secret any portion of the other party’s Confidential Information by preventing any unauthorized copying, use, distribution, installation or transfer of possession of such information.  If required by law, the receiving party may disclose Confidential Information of the disclosing party, but will give adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment therefor.  Money damages will not be an adequate remedy if this Section 7 is breached and, therefore, either party may, in addition to any other legal or equitable remedies, seek an injunction or other equitable relief against such breach or threatened breach.

8.  Miscellaneous

8.1  Independent Contractors.  The parties are independent contractors and not partners, joint venturers or otherwise affiliated and neither has any right or authority to bind the other.  Accordingly, Referral Partner shall not commit TradeGecko to any Services Agreement.

8.2  Choice of Law. This Agreement will be governed by the laws of the United States and the State of New York, without reference to rules governing choice of laws. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS"), and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided however, that each party will have a right to seek injunctive or other equitable relief in a court of law.  The prevailing party will be entitled to receive from the nonprevailing party all costs, damages and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award.  The prevailing party will be that party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues.  Each party hereby consents to the arbitration in the State of New York in the county of New York.

8.3  Assignment. Referral Partner may not assign, without the prior written consent of TradeGecko, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part.  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

8.4  Severability.  Any provision of this Agreement that is determined to be unenforceable or unlawful shall not affect the remainder of the Agreement and shall be severable therefrom, and the unenforceable or unlawful provision shall be limited or eliminated to the minimum extent necessary to that this Agreement shall otherwise remain in full force and effect and enforceable.

8.5  Modification.  TradeGecko may modify any term or condition of this Agreement, at any time and in its sole discretion, by posting a change notice or a new agreement to your Account or (in TradeGecko’s discretion) by emailing Referral Partner directly.  IF ANY MODIFICATION IS UNACCEPTABLE TO REFERRAL PARTNER, REFERRAL PARTNER’S ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT.  REFERRAL PARTNER’S CONTINUED PARTICIPATION IN THE REFERRAL PARTNER PROGRAM FOLLOWING A POSTING OF A CHANGE NOTICE OR NEW AGREEMENT AND/OR SENDING THE CHANGE NOTICE CONSTITUTES BINDING ACCEPTANCE OF THE CHANGE.

8.6  Entire Agreement. This Agreement (together with all attachments and exhibits hereto) constitutes the entire agreement between the parties and supersedes any and all prior agreements between them, whether written or oral, with respect to the subject matter hereof.  No waiver by either party, whether express or implied, of any provision of this Agreement, or of any breach thereof, shall constitute a continuing waiver of such provision or a breach or waiver of any other provision of this Agreement.