SHOPKEEP REFERRAL PARTNER AGREEMENT
This Referral Agreement (this “Agreement”) is entered into by and between ShopKeep Inc., a Delaware Corporation (“ShopKeep”) and the counterparty executing this Agreement set forth in the signature blocks below (“Referral Partner”) and is made effective as of the last date it has been executed by authorized representatives of both ShopKeep and Referral Partner. This Agreement sets forth the terms and conditions of your participation in ShopKeep’s Referral Partner program for the purpose of selling ShopKeep’s hardware products and web-based services (the “Products” and “Services”).
(a) Referral Partner Authority. Subject to the terms and conditions of this Agreement, Referral Partner may promote and market the Products and Services to prospective customers of ShopKeep located in the United States and its territories in order to cause the prospective customer to enter into an agreement with ShopKeep to receive the Services and Products in accordance with ShopKeep’s standard terms and conditions (the “Merchant User License Agreement”) as such may be modified from time to time. The Services and Products that Referral Partner has the right to promote and market under this Agreement are limited to the Services that ShopKeep determines in its absolute discretion to provide for sale.
(b) Definition. “Referral Partner Customer” means new ShopKeep customers (i) for which the information set forth in Exhibit A attached hereto has been submitted in full by Referral Partner and (ii) that commence using the Service for the first time that the Referral Partner causes to enter into the Merchant User License Agreement, and the receipt by Shopkeep of a Referral Partner Customer payment, as a result of the solicitation of Referral Partner under the authority of this Agreement and excludes existing ShopKeep customers and existing ShopKeep leads that have previously contacted ShopKeep directly or through another Referral Partner. Referral Partner Customer’s Merchant User License Agreements are referred to herein as the “Referral Partner Licenses”.
(c) Onboarding Referral Partner Customers; ShopKeep’s Obligations. Referral Partner shall use the method set forth in Exhibit B attached hereto to transmit the information regarding prospective referral customers to ShopKeep. ShopKeep’s obligations under this Agreement are subject to Referral Partner’s compliance with the terms of this Agreement and the Exhibits attached hereto.
- Restrictions and Limitations on Authority
(a) Restrictions on Trademark Usage. Referral Partner shall not itself and neither permit nor induce any third party to: (i) combine any Services, or any additional ShopKeep services that Referral Partner and ShopKeep agree that Referral Partner shall be permitted to promote and market pursuant to any amendment to this Agreement (the “Additional Services”) with the services of any third party, (ii) use the ShopKeep Marks to offer any service or product that is not provided by ShopKeep or provided under the authority of ShopKeep, (iii) sell or offer for sale the Services with hardware that is not a Product, (iv) remove the ShopKeep Marks from any Product, Service or Additional Service or (v) attach or associate any other trademark or brand name to any Product, Service or Additional Service.
(b) Restrictions on Technology. With regard to ShopKeep’s point of sale application software and/or back-end server based software services (the “Software”), Referral Partner agrees that it has no right to nor any right to authorize any party to (i) make copies of or further distribute the Software, including copying onto any medium, (ii) distribute, rent, sublicense, lease, resell or assign the Software, (iii) alter, modify or adapt the Software or the Shopkeep website, including but not limited to, translating, decompiling, disassembling, reverse engineering, or creating derivative works, (iv) export the Software without the appropriate foreign government licenses and without Shopkeep’s prior written approval, (v) resell, rent or otherwise provide access to the Services or Additional Services to a third party on a service bureau basis or (f) take any action in an attempt to obtain any Referral Partner Customer’s or other ShopKeep user’s data, cause malfunction, crash, tamper with or otherwise impair the ShopKeep website and/or its Services, Additional Services or Software. Any rights not expressly granted hereunder are reserved by ShopKeep.
(c) Restrictions on Pricing. Referral Partner acknowledges that prices and fees to Referral Partner Customers for the Products and Services are subject to change from time to time as set forth on the ShopKeep website, provided that ShopKeep will provide reasonable notice of any changes in the fee schedule. FOR THE AVOIDANCE OF DOUBT, REFERRAL PARTNER ACKNOWLEDGES AND AGREES THAT SHOPKEEP, IN ITS SOLE DISCRETION, WILL SET THE PRICING OFFERED TO REFERRAL PARTNER CUSTOMERS FOR PRODUCTS AND SERVICES.
- Referral Partner Role and Responsibilities.
Referral Partner shall have the role and responsibilities as set forth in Exhibit B attached hereto.
- License to Use ShopKeep Trademarks and Collateral Materials.
(a) Trademark. Subject to the terms hereunder, ShopKeep hereby grants Referral Partner a non-transferable, non-sub-licensable, non-exclusive, revocable, limited license for the Term of this Agreement to reproduce and display the ShopKeep trademarks and product names listed on the ShopKeep Trademark Usage Guidelines, attached hereto as Exhibit C and incorporated herein (“Marks”) solely in association with the promotion of the Services, Products and Additional Services under the authorization of this Agreement and for no other purpose. Referral Partner shall immediately cease use of any Mark in any jurisdiction where such use could result in an infringement of a third party’s rights. Any rights not expressly granted hereunder are hereby reserved by ShopKeep. There are no implied rights of any kind. ShopKeep shall have the right to terminate the license on notice with respect to any use of the Marks that is inconsistent with the ShopKeep Trademark Usage Guidelines, or is otherwise deemed inappropriate by ShopKeep, as determined by ShopKeep in its sole absolute discretion.
(b) Collateral Materials. Subject to the terms hereunder, ShopKeep grants Referral Partner a non-exclusive, non-transferable, non-sublicensable, revocable, limited license for the Term of this Agreement to reproduce and display the ShopKeep collateral materials (including text, artwork, images, videos and audio) on Referral Partner’s web site solely in association with the promotion of the Services, Products and Additional Services as and for no other purpose (the “Collateral Materials”). No rights are granted to create derivative works or use the Collateral Materials other than in connection with promoting the Services, Products and Additional Services.
(a) Referral Partner Fee. In consideration for operating as a Referral Partner of Products and Services in compliance with this Agreement, ShopKeep shall pay the referral partner fees in the amounts set forth on Exhibit D attached hereto (each such payment, a “Referral Partner Fee”). The amount of the Referral Partner Fee and any other consideration paid to Referral Partner pursuant to this Agreement may be changed at any time by ShopKeep at ShopKeep’s sole discretion Each Referral Partner Fee shall be paid to Referral Partner within 30 days of both a Referral Partner Customer entering into a Referral Partner License and the receipt by Shopkeep of a Referral Partner Customer payment.
(b) Accounting Statements. ShopKeep shall make available upon request to the Referral Partner an accounting document listing the Referral Partner Customers that are subject to the Referral Partner Fee, and the amount payable to Referral Partner for each Referral Partner Customer during the prior calendar quarter (the “Accounting Statement”). The Referral Partner agrees that all Accounting Statements are the Confidential Information of ShopKeep and subject to the duty of confidentiality hereunder. Accounting Statements submitted to Referral Partner shall be deemed binding on both ShopKeep and Referral Partner unless Referral Partner contests its accuracy within 10 days of receipt.
(c) Payment Process. Payments to the Referral Partner shall be made solely by ACH funds transfer through Shopkeep’s ACH payment service provider. As a condition to payment, Referral Partner shall submit to ShopKeep in the sign-up web forms an accurate statement of its ACH payment destination parameters. Shopkeep shall not be obligated to use any other payment methodology. ShopKeep shall have no obligation to comply with any unreasonably complex data formatting requirement associated with an ACH payment parameter requirement submitted by Referral Partner.
- Term and Termination
(a) Term. This Agreement is in effect until the earlier of (i) one (1) year from the Effective Date of this Agreement and will automatically renew for one (1) year increments unless either party provides notice of its intention not to renew at least 30 days prior to expiration of the then-current term and (ii) termination of the Agreement in accordance with its terms.
(b) Termination. Either party may terminate this Agreement upon ten (10) days advance written notice delivered to the other party.
(c) EACH PARTY ACKNOWLEDGES AND CONSENTS THAT FOR SECURITY REASONS, UPON TERMINATION OF THIS AGREEMENT, EACH OF SHOPKEEP AND REFERRAL PARTNER MAY ALERT THE REFERRAL PARTNER CUSTOMERS TO THE FACT THAT REFERRAL PARTNER IS NOT OPERATING AS AN AUTHORIZED REFERRAL PARTNER OF SHOPKEEP ANY LONGER.
(d) Right to Terminate Referral Partner License. ShopKeep expressly reserves the right to deny, cancel or terminate any Referral Partner License that it deems necessary, in its discretion, without any liability to Referral Partner to protect the integrity and stability of ShopKeep, to comply with any applicable laws, government rules, credit card association rules or requirements, at the request of law enforcement personnel, in compliance with any dispute resolution process, or to avoid any liability, civil or criminal, on the part of ShopKeep, as well as its affiliates, subsidiaries, partners, officers, directors and employees.
- Confidentiality, Non Exclusivity and Non Solicitation
(a) Confidentiality. Referral Partner agrees that for the duration of this Agreement and thereafter, Referral Partner shall not use, permit use nor disclose any ShopKeep Confidential Information except as expressly permitted herein as necessary and in connection with its activities as an Authorized Referral Partner. “Confidential Information” means non-public information that ShopKeep designates as being confidential or that Referral Partner has reason to know is considered by ShopKeep to be confidential. The identity of any customer referred to ShopKeep and any Accounting Statements transmitted to the Referral Partner are the Confidential Information of ShopKeep. Confidential Information includes, but is not limited to, information in tangible or intangible form relating to and/or including released or unreleased products or services, the marketing or promotion of any of the Products, Services or Additional Services, any software, whether source code or executable, program interface protocols, documentation, ShopKeep‘s business policies or practices, and information received from others that ShopKeep is obligated to treat as confidential, customer identities, customer credit card numbers and Referral Partner Customer passwords, login information and transaction history. Confidential Information does not include any information, however designated, that Referral Partner can document: is or subsequently became publicly available without Referral Partner’s breach of any obligation under this Agreement; became known to Referral Partner prior to disclosure under this Agreement; was independently developed by Referral Partner without reliance on any Confidential Information of ShopKeep or was disclosed to Referral Partner by a third party not subject to a duty of confidentiality to ShopKeep.
(b) Non-exclusivity. Nothing in this Agreement shall prevent ShopKeep from entering into agreements or relationships with third parties similar to this Agreement or any amendment to this Agreement or the relationship established by this Agreement or any Amendment to this Agreement. Referral Partner acknowledges that these third parties may be similarly situated as Referral Partner and offer products or services competitive to Referral Partner and that such activities shall not be a breach of any obligation under this Agreement. Referral Partner acknowledges that ShopKeep and such third parties may be soliciting the same potential customers and therefore Referral Partner agrees that this Agreement shall not restrict either ShopKeep or its Referral Partners from conducting such solicitations or providing services to such customers. ShopKeep shall be entitled to use information as it relates to the services it provides to Referral Partner Customers in accordance with its agreement with such Referral Partner Customers and applicable law.
(i) Referral Partner agrees that during the Term of this Agreement, and for a period of three (3) years thereafter it will not, and it shall not knowingly cause or permit any of its employees, agents, principals, affiliates, subsidiaries or any other person or entity (i) to direct or refer any Referral Partner Customer to any third party entity for any products or services that directly competes with the ShopKeep Products, Services and and Additional Services, provided that the foregoing does not prevent Referral Partner from responding to a request initiated by a Referral Partner Customer to use a provider of services that compete with the ShopKeep Products, Services or Additional Services or (ii) to cause any Referral Partner Customer or its vendors to terminate its participation in any of Services, Products or Additional Services.
(ii) ShopKeep agrees that during the period beginning the Effective Date and ending the date that this Agreement is terminated by either party for any reason, it shall not, and will not knowingly cause or permit any of its employees, agents, principals, affiliates, subsidiaries or any other person or entity to solicit such Referral Partner Customer who is processing credit cards with Referral Partner to any credit card processing service, including but not limited to any such service offered by ShopKeep.
(iii) Each party will remain responsible for resulting damages from such prohibited solicitation as set forth in this Section 7(c) even after the termination of this Agreement. Each party agrees that the compensation payable to the non-breaching party hereunder is sufficient to justify the imposition and enforcement of the terms of this section and this Agreement generally.
- Data Security.
Referral Partner agrees that it shall not sell or license any data identifying or describing Referral Partner Customers as ShopKeep merchants.
Each party (the “Indemnifying Party”) shall indemnify and hold the other party (the “Indemnified Party”) harmless from any damages and costs, including attorney’s fees and settlement amounts, as such costs and damages are incurred by the Indemnified Party arising from (i) breach of the terms and conditions of this Agreement or (ii) any claim brought against the Indemnified Party, its officers, directors or shareholders alleging injury or damage arising from or in connection with the Indemnifying Party’s fraud, willful misconduct or breach of any of the terms of this Agreement.
- Representations and Warranties.
Referral Partner represents and warrants that (i) all information provided by Referral Partner as part of the registration process or in connection with its activity as a Referral Partner is complete and accurate in all material respects; (ii) that it has the due authority to enter into this Agreement, and (iii) that entering into this Agreement with ShopKeep will not breach any agreement Referral Partner has with any third party.
(a) Intellectual Property. Referral Partner agrees that as between the parties, ShopKeep owns the copyrights, trade secrets and patents rights (“Intellectual Property”) embodied in the Products, Services, Additional Services, Marks and Collateral Materials, including any improvements thereto, regardless of the provenance of any such improvement and that Referral Partner shall not hold itself out has holding any rights in such Intellectual Property other than the rights to use the Marks as expressly provided hereunder. As between the parties, ShopKeep owns outright the Marks and Referral Partner shall not hold itself out as owning any interest in the Marks. Referral Partner shall not attempt to register any trademark that is in any way similar in appearance or sound to the Marks in any jurisdiction throughout the world nor will Referral Partner attempt to register or maintain any internet domain names containing text comprising or similar to any of the Marks. Referral Partner shall not contest the registration or oppose the application of ShopKeep for any of the Marks in any jurisdiction throughout the world. Referral Partner agrees that any goodwill arising from Referral Partner’s use of the Marks shall inure to the sole benefit of ShopKeep. Referral Partner shall not nor authorize any third party to copy, distribute, publicly perform, reverse engineer or decompile the Products, Services or Additional Services. No rights to any Intellectual Property of ShopKeep are transferred or granted in this Agreement except certain limited rights to use the Marks and Collateral Material solely as expressly provided herein. All rights in the Products, Services or Additional Services are reserved by ShopKeep. There are no implied rights of any kind.
(b) Assignment. Neither party may assign or delegate its rights or duties under this Agreement to another entity without the express written consent of the other party, provided that no such consent shall be required for an assignment to a successor in interest in connection with a merger transaction or sale of all or substantially all of a party’s assets or stock.
(c) LIMITATION ON LIABILITY: REFERRAL PARTNER ACKNOWLEDGES AND AGREES THAT EXCEPT AS SET FORTH HEREIN SHOPKEEP MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT OR PROVISION OF THE SERVICES, PRODUCTS OR ADDITIONAL SERVICES TO ANY PARTY, WHETHER REFERRED BY REFERRAL PARTNER OR OTHERWISE. REFERRAL PARTNER’S ACTIVITIES CONTEMPLATED BY THIS AGREEMENT ARE BEING CONDUCTED AT REFERRAL PARTNER’S SOLE AND ABSOLUTE RISK. THE PRODUCTS, SERVICES AND ADDITIONAL SERVICES ARE BEING MADE AVAILABLE TO THE REFERRAL PARTNER AND REFERRAL PARTNER’S CUSTOMERS “AS IS” AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED. IN NO CASE WILL SHOPKEEP BE LIABLE TO THE REFERRAL PARTNER FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT OR AS A RESULT OF CONDUCTING ACTIVITIES CONTEMPLATED HEREUNDER, IN EXCESS OF THE AGGREGATE AMOUNT PAID TO REFERRAL PARTNER FOR THE REFERRAL PARTNER FEE IN THE PRIOR 12 MONTHS FROM THE DATE THE CLAIM IS ASSERTED. EXCEPT IN CONNECTION WITH A BREACH OF SECTIONS 2, 4, 7 AND 8 IN NO CASE WILL SHOPKEEP OR REFERRAL PARTNER BE LIABLE FOR CONSEQUENTIAL DAMAGES OR LOST PROFITS AND EACH PARTY WAIVES ANY CLAIM TO COLLECT SUCH CONSEQUENTIAL DAMAGES OR LOST PROFITS FROM THE OTHER PARTY FOR ANY REASON. REFERRAL PARTNER’S USE OF THE MARKS IS AT ITS SOLE AND ABSOLUTE RISK. IN NO CASE SHALL SHOPKEEP BE LIABLE TO REFERRAL PARTNER FOR ANY FAILURE TO DELIVER OR ANY DEFECT IN ANY SOFTWARE, SERVICES, PRODUCTS OR ADDITIONAL SERVICES TO ANY REFERRAL PARTNER CUSTOMER.
(d) No Agency, Partnership or Joint Venture; No Third Party Beneficiaries. The parties agree that nothing in this Agreement establishes an agency, partnership or joint-venture and that the parties are acting as independent contractors. Use of the term “Referral Partner” shall not be the basis of asserting that the parties to this Agreement are partners. Referral Partner shall not hold itself out as an agent of ShopKeep or as having any authority to bind ShopKeep in any agreement. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
(e) Injunctive Relief. The parties hereto agree that any breach of Sections 2, 4, 7,8 or 11(a) shall cause immediate and irreparable harm for which monetary damages would either be insufficient or difficult to quantify, and therefore the injured party may be entitled to immediate injunctive relief in the event of breach or threatened breach of such sections without the requirement of posting bond.
(f) Survival. Notwithstanding the termination or expiration of this Agreement, Sections 2, 7, 8, 9 and 11 shall survive and remain enforceable.
(g) Notice. Referral Partner agrees that all notices from ShopKeep to Referral Partner will be sent either to the email address Referral Partner has placed on file with ShopKeep or mailed first class postage to the postal address Referral Partner has on file with ShopKeep. Notices from Referral Partner to ShopKeep under this Agreement shall be made by email, sent to var@ShopKeep.com with a copy by first class mail to ShopKeep’s address at:
460 Park Avenue South, 7th Floor
New York, NY 10016
In either case, delivery shall be deemed to have been made upon receipt, 2 days after being sent by courier or 1 day after transmission by email with a delivery receipt confirmation.
(h) Titles and Headings, Severability. The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
(i) Choice of Law and Forum. This Agreement shall be construed under the laws of the State of New York, USA as applied to contracts performed entirely within the state. Any dispute arising under this Agreement shall be exclusively heard in the state or federal courts residing in New York County, New York, USA. Each party hereto consents to the jurisdiction of such courts with regard to matters arising in connection with this Agreement and waives any claim it has that such a forum is inconvenient.
(j) Counterparts and Signature. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and such counterparts shall together constitute one and the same instrument. The signatures to this Agreement may be evidenced by facsimile copies or PDF copies reflecting the party’s signature, and any such facsimile copy or PDF copy shall be sufficient to evidence the signature of such party as if it were an original signature.
Exhibit B: Onboarding Referral Partner Customers; Referral Partner Role and Responsibilities
- Referral Partner will identify prospects for ShopKeep Products or Services (each such merchant, a “Prospect Merchant”).
- Referral Partner will transmit the information regarding a Prospect Merchant via the designated ShopKeep Lead Form
- ShopKeep will assign each Prospect Merchant to a POS Specialist (POSS):
- POSS will manage the ShopKeep POS end-to-end sales process
- POSS will engage Prospect Merchant, qualify and enroll in a 14-day trial; and
- POSS will obtain a Card on File
- ShopKeep POS will bill Merchant directly for (a) each month of ShopKeep service (e.g., the price for Service for each Merchant register), and (b) the up-front hardware purchase
- Referral Partner will complete the ShopKeep Boarding Form, if applicable, to affiliate the Prospect Merchant Processing account to Prospect Merchant’s ShopKeep Storefront (Boarding Form can be completed any time after the trail has been created).
- Referral Partner may be requested to provide on-site setup and support at its discretion and pricing.
- ShopKeep will pay the agreed upon Referral Partner Fee to Referral Partner in accordance with the terms set forth in the Referral Agreement.
Exhibit C: Shopkeep Trademark Usage Guidelines
SHOPKEEP TRADEMARK USAGE GUIDELINES:
ShopKeep will advise Referral Partner of any changes to the Marks and Trademark Usage Guidelines, including but not limited to a change from a pending trademark (™) to a registered trademark (®). Upon notice from ShopKeep, Referral Partner agrees to promptly make such revisions to any affected Marks or ShopKeep collateral materials that it is using. ShopKeep may provide further specifications to Referral Partner in addition to these general guidelines and Referral Partner shall be obligated to adhere to them.
The ShopKeep trademarks that Referral Partner is permitted to use pursuant to the Referral Partner Agreement (the Marks) are as follows:
The Simplest Way to Make Smarter Business Decisions™
Referral Partner shall only use the image data files embodying the Marks provided by ShopKeep on its website or to produce its printed collateral materials.
Each instance of the trademark must include either the ® or ™ as indicated above.
Use in Advertising, Promotional, and Sales Materials:
Any use of any ShopKeep logo or tagline must always be in conjunction with the appropriate terms that define the relationship between Referral Partner and ShopKeep. For example: “ Authorized Referral Partner”.
The ShopKeep products and services must be clearly identified by their proper product names, and the use of those names must be used only to accurately describe or reference ShopKeep products and services. Each display of a Mark must appear substantially distinct from Referral Partner’s name or other text so there is no appearance that they are owned by Referral Partner or that Referral Partner has any exclusive association with them. Referral Partner is required to include a disclaimer on its web site indicating that any of the Marks used are owned by ShopKeep. Example language: “Third party marks are registered trademarks of their respective owners. All rights reserved.”
Prohibited Use of the Marks:
Referral Partner is prohibited from displaying the Marks in such a way that implies an affiliation, sponsorship, or endorsement of Referral Partner by ShopKeep other than Referral Partner’s relationship with ShopKeep as an “Authorized Referral Partner” or similar designation as permitted under their guidelines. Referral Partner shall obtain the written permission of ShopKeep before using the Marks for any purpose other than as explicitly provided in this Agreement.
Referral Partner shall not use any of ShopKeep or its affiliates’ Marks, content, images, text or other collateral material in its advertising except as expressly authorized by ShopKeep.
Referral Partner agrees ShopKeep, in its sole discretion and without liability to Referral Partner, may terminate this Agreement on notice in the event Referral Partner is using the ShopKeep Marks in association with (i) unsolicited commercial email (“spam”) or (ii) morally objectionable activities. Morally objectionable activities will include, but are not limited to:
- Activities that defame, embarrass, harm, abuse, threaten, slander or harass ShopKeep, any ShopKeep customer or personnel or any other third parties;
- Activities prohibited by the laws of the United States and/or foreign territories in which Referral Partner or ShopKeep conducts business
- Activities designed to encourage unlawful behavior by others, such as hate crimes, terrorism and child pornography;
- Activities that are tortious, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, or otherwise objectionable;
- Activities designed to impersonate the identity of a third party; and
- Activities designed to harm minors in any way.
Exhibit D: Pricing Addendum
Referral Partner Fee:
In consideration for operating as a Referral Partner of ShopKeep Services in compliance with this Agreement, ShopKeep shall pay Referral Partner a $300 one-time special payment for each Referral Partner Customer (each such payment, a "Referral Partner Fee"). Each Referral Partner Fee shall be paid to Referral Partner within 30 days of Referral Partner Customer(s) entering into a Referral Partner License and the receipt by Shopkeep of Referral Partner Customer(s) payment.