Referral and Revenue Share Terms

Last revised on 21/09/2017

INTRODUCTION

APEXX Fintech Limited Referral and Revenue Share Terms (“Referral Terms”) and the Agreements, Policies, and Documents incorporated herein, (this “Agreement”), is entered into by and between APEXX Fintech Limited (“APEXX”, “we”, “our”) and the entity or individual who enters into this Agreement (“Introducer”, “Partner” or “you”, “your”). This Agreement sets out the terms and conditions under which you may utilise the APEXX Services.

This Agreement is effective as of the earliest date you do any of the following (the “Effective Date”):

  1. register to participate in the Merchant Referral Programme; 
  2. sign the APEXX Referral and Revenue Share Agreement; 
  3. accept this Agreement online; 
  4. begin accessing and/or participating in the Merchant Referral Programme

This Agreement, as it may be amended from time to time as per clause 18.10, will be available on the “Legal” tab on the APEXX website. In addition to the terms of this Agreement, you agree to be bound by the terms of our Data Protection Policy, Cookies Policy and your APEXX Referral and Revenue Share Agreement (collectively the “Agreement”).

1. Definitions

1.1. Schedule 1 sets out the defined terms used in this Referral and Revenue Shares Agreement, as well as rules on interpretation. 

2. Roles of Parties

2.1. Introducer

2.2.1. is entering the Merchant Referral Programme whereby they refer potential Merchants to APEXX with the intention of the Merchant and APEXX establishing and executing a Commercial Relationship. 
2.2.2. is the Data Controller for all Merchant Data that is sourced by Introducer or provided by Merchant and received by Introducer.

2.2. APEXX

2.2.1. is a provider of, among other things, transaction connectivity Services and ancillary Services (“Merchant Services”)
2.2.2. is the Data Processor for all Merchant Customer Data that is provided by Merchant and received by APEXX
2.2.3. is the Data Controller for all Merchant Data that is sourced by APEXX or provided by Merchant and received by APEXX
2.2.4. is the Data Controller for all Introducer Data that is source by APEXX or provided by Introducer and received by APEXX

3. APPOINTMENT AND SERVICES 

3.1. The Introducer hereby agrees, from time to time to the extent possible, to introduce companies requiring the APEXX Merchant Services (the “Merchant Referrals”) to APEXX (it being understood that the Introducer shall not have an absolute obligation to make any introductions hereunder). A Merchant shall only be considered a Reffered Merchant subject to the following conditions:

3.1.1. The Introducer has made an introduction between APEXX and the Referral Merchant by email, phone or face to face meeting and/or; 
3.1.2. On the first day of each month, the Introducer shall submit to APEXX a list of each Merchant Referral made by the Introducer during the previous month including phone number and contact person via the APEXX Referral Order Form
3.1.3. APEXX must agree that no prior referral has been made by another referring party and/or that APEXX is not currently working with the subject Merchant. APEXX will provide notice within 30 days of the receipt of the referred Merchant list. In such case the Merchant will not qualify as a Merchant Referral. 
3.1.4. The referred Merchant must enter into a contract with APEXX within 12 months of receipt of their referral within the compulsory APEXX Referral Order Form in order to qualify as a Merchant Referral
3.1.5. Should a Referred Merchant become the subject of multiple referrals by multiple referring parties, APEXX at its sole discretion will determine the referral split if any between the multiple referring parties. 

3.2. The Introducer shall not discuss or negotiate rates or the terms of any contract for the APEXX Services with the Merchant without APEXX’s explicit prior written consent. For the avoidance of doubt, nothing in this Agreement shall prevent the Introducer, if it so wishes, sharing all or part of its Commission with a Merchant. 

3.3. APEXX shall not be under any obligation to pursue any Qualified Sales Opportunity or enter into a Merchant Agreement or Commercial Relationship with any Merchant. Execution of a Commercial Relationship by APEXX with any Merchant is at APEXX’s sole discretion and is subject to:

3.3.1. APEXX’s applicable recruitment and credit assessment processes
3.3.2. Any identified Customer risk exposure requiring security; and
3.3.3. The Merchant Agreement being executed between the Merchant and APEXX

3.4. Upon written request by the Introducer, APEXX shall inform the Introducer of its decision to pursue or not pursue any Qualified Sales Opportunity or to enter into a Merchant Agreement with any Merchant. 
3.5. APEXX may vary, terminate or rescind any Merchant Agreement with any Introduced Merchant at its sole discretion and APEXX shall not be under any obligation to notify the Introducer of any such variation, termination or rescission. 

3.6. In respect of any Qualified Sales Opportunity submitted to APEXX by the Introducer under this Agreement, APEXX must: 

3.6.1. Not actively attempt to solicit the Merchant to use any of APEXX’s services instead of the Introducer’s services; and
3.6.2. If the Qualified Sales Opportunity is declined by APEXX, not for a period of twelve (12) months thereafter can actively engage with or solicit such Merchant for the provision of the APEXX Services. 

3.7. Nothing in clause 2.6 shall prevent APEXX from responding to the unsolicited approach from any Merchant regarding APEXX Services. 

4. NON-EXCLUSIVITY

4.1. This Agreement shall be non-exclusive and nothing shall preclude either Party from entering similar agreement with other parties providing similar referrals. 

5. NON-SOLICITATION

5.1. Solicitation of Employees - Introducer agrees that during the term of the Agreement and for two (2) years following the termination of this Agreement for any reason, the Introducer or it’s affiliates acting by itself or in the connection with others will not employ or solicit or attempt to employ or solicit employment for any of APEXX’s current or former employees that otherwise don’t respond to a general solicitation for employment via advertisements. The Introducer will not either directly or indirectly or by acting in connection with others, seek to induce or influence any employee to leave APEXX’s employment. 

5.2. Solicitation of Customers - Introducer agrees that during the terms of this Agreement and for two (2) years following the termination of this Agreement for any reason, neither, Introducer or it’s affiliates will, acting in connection with others, solicit any of APEXX’s customers or prospective customers existing as of the date of termination or take other action to divert business from APEXX or influence any vendor, supplier, customer or potential customer of APEXX to cease doing business with APEXX.

6. OBLIGATIONS OF THE PARTIES

6.1. Each of the Parties shall:

6.1.1. Obtain and maintain all requisite permissions, approvals or license under the Regulatory Requirements to be able to perform its obligations under this Agreement and comply with all Regulatory Requirements and any failure by the Introducer to hold or maintain such permissions, approvals or licenses shall give APEXX the right to terminate this Agreement with immediate effect pursuant to 10.2;
6.1.2. Provide to the other party (at such Party’s reasonable expense) all reasonable assistance in connection with any investigation by or decision of any Regulatory Body

7. INTELLECTUAL PROPERTY

7.1. Introducer Property  - As between APEXX and Introducer, Introducer (or its licensors) does and will own, all right, title, and interest, including all Intellectual Property Rights, in the Introducer Property and Introducer Marks and APEXX shall have no ownership rights in any Introducer Property or Introducer Marks.

7.2. APEXX Property - As between APEXX and Introducer, APEXX (or its licensors) does and will own all right, title, and interest, including all Intellectual Property Rights, in the APEXX Property and APEXX Marks and Introducer shall have no ownership rights in any APEXX Property or APEXX Marks.

8. GRANTS OF RIGHTS

8.1. Grant of Rights by Introducer - The rights granted under this Section with respect to Introducers Marks shall be limited to use thereof solely in connection with performing APEXX’s rights and obligations under this Agreement to: 

8.1.1. accurately refer to Introducer and its products and services; and
8.1.2. identify Introducer as an APEXX business partner; provided, that Introducer may revoke or modify such rights to APEXX in its reasonable discretion at any time upon written notice to APEXX.  With respect to such Introducer Marks, APEXX shall use such Introducer Marks only in compliance with Introducer’s trademark guidelines furnished to APEXX hereunder (which may be updated by Introducer from time to time by delivering an updated version of such guidelines to APEXX) and, shall be granted Rights to use Introducers Marks for marketing and sales materials.  APEXX acknowledges that it shall have no ownership rights in the Introducer’s Marks.  APEXX shall not at any time during or after the Term assert or claim any interest in or do anything that may adversely affect the validity, enforceability, or goodwill of any Introducer Mark. 

8.2. Grant of Rights by APEXX - APEXX grants you a revocable, non-exclusive, non-transferable license to use APEXX’s trademarks used to identify the APEXX Service (the “Trademarks”) solely in conjunction with the use of the APEXX Service. Introducer agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any Trademark or any other trademark, trade name or product designation belonging to or licensed to APEXX (including, without limitation registering or attempting to register any Trademark or any such other trademark, trade name or product designation). Upon expiration or termination of this Agreement, you will immediately cease all display, advertising and use of all of the Trademarks. The rights granted under this Section with respect to APEXX Marks shall be limited to use thereof solely in connection with performing Introducer’s rights and obligations under this Agreement to:

8.2.1. accurately refer to APEXX and its products and services; and
8.2.2. identify APEXX as a business partner.  With respect to such APEXX Marks, Introducer shall have the right to use such APEXX Marks at its discretion. Introducer acknowledges that it shall have no ownership rights in the APEXX Marks.  Introducer shall not at any time during or after the Term assert or claim any interest in or do anything that may adversely affect the validity, enforceability, or good will of any APEXX Mark. 

9. FEES AND PAYMENTS

9.1. General

9.1.1. For each and every transaction processed by APEXX and/or its agents and assigns on behalf of a Merchant referral, APEXX shall pay the Introducer a Referral Fee (herein so called) as set forth in Schedule 2. 
9.1.2. The Introducer shall not be entitled to the foregoing compensation in the event that APEXX can establish that it had a pre-existing active working relationship with the subject Merchant Referral
9.1.3. The Referral Fees shall be paid per quarter per Calendar year in which payments are received from the bank and sent to the address set forth herein.
9.1.4. Each Party will be responsible for its own expenses except to the extent one Party agrees in advance in writing to reimburse such expenses
9.1.5. Payment of the referral fee is for the term of the Merchant Agreement
9.1.6. At the time of each payment, APEXX will provide a statement detailing the computations used by APEXX in arriving at the referral fee. If Introducer disputes any compensation paid to it, Introducer agrees to inform APEXX within thirty (30) days of the date of payment. Introducer waives any claim against APEXX regarding any compensation if Introducer fails to dispute within such thirty (30) day period.
9.1.7. Except as otherwise expressly set forth in this Agreement, all payments to be made under this Agreement shall be in British Pound Sterling (GBP) and delivered via BACS transfer from the APEXX Fintech Bank Account to the Introducer’s Bank Account or a Bank Account authorised by the Introducer. 

9.2. Taxes - The payments specified in this Agreement do not include any governmental taxes, assessments, fees, or duties that may be applicable in connection with the transactions contemplated by this Agreement (collectively “Taxes”).  The Party who is obligated to pay a given fee under this Agreement will be responsible for paying all Taxes associated with such fee, excluding Taxes based on the other Party’s net income or its authority to do business within a given jurisdiction. 

10. CONFIDENTIALITY

10.1. Each Party shall (and, in the case of Introducer, shall cause its other Introducer Entities to, and, in the case of APEXX, shall cause its other APEXX Entities to): 

10.1.1. keep the terms of this Agreement completely confidential, and
10.1.2. not disclose any terms of this Agreement to any Person other than such Party (and, in the case of Introducer, its other Introducer Entities and, in the case of APEXX, its other APEXX Entities) and any relevant taxing authorities, except as otherwise agreed to in writing by both Parties.

11. DATA SECURITY AND PROTECTION

11.1. General  - At all times during the Term and any Transition Period, and for so long as any APEXX Entity has possession of any Introducer and Referral Merchant Confidential Information, APEXX shall, and shall cause the other APEXX Entities to, implement reasonable administrative, technical, and physical safeguards (including, to the extent applicable or appropriate, firewall protection, intrusion detection, encryption, logon identification, passwords and other prevention tools, and network management applications) to protect and secure the Introducer and Referral Merchant Confidential Information against unauthorised access, use and disclosure.  APEXX shall promptly notify Introducer of any breach of security which results in a compromise of the confidentiality or integrity of the Introducer and Referral Merchant Confidential Information, will perform an investigation to learn the cause of the breach, and will take appropriate measures to prevent such a breach in the future.  To the extent that any APEXX Information specifically pertaining to a APEXX Introducer and Referral Merchant is accessed or obtained by any APEXX Entity or the APEXX Services in connection with this Agreement, APEXX shall, and shall cause the other APEXX Entities to, maintain and use such information only as permitted or required by this Agreement and the agreement between APEXX and the applicable Introducer and Referral Merchant.

11.2. Security of your access - You agree to:

11.2.1. Keep your personal details up to date. We may be unable to respond to you if you contact us from an address, telephone number or email account that is not registered with us; and
11.2.2. Take all reasonable steps to protect the security of the personal electronic device through which you communicate with Referral Merchant (including, without limitation, using PIN and/or password protected personally configured device functionality to access and not sharing your device with other people).

11.3. Data Security Compliance - As of the Effective Date APEXX agree to comply with applicable data privacy and security requirements under the Payment Card Industry Data Security Standard (“Association PCI DSS Requirements”) with regards to Introducer’s use, access, and storage of certain credit card non-public personal information on behalf of APEXX. Additionally, Introducer agrees to comply with its obligations under any applicable law or regulation as may be in effect or as may be enacted, adopted or determined regarding the confidentiality, use, and disclosure of cardholder information.

11.4. Further Actions to Comply with Applicable Law  - Without limiting the generality of the foregoing, the administrative, technical, and physical measures designed to protect the Introducer and Referral Merchant Confidential Information shall include those measures required by Applicable Law with respect to the possession, access, or use of Introducer and Referral Merchant Confidential Information by any APEXX Entity.  Accordingly, from and after the Effective Date, APEXX shall (and shall cause the other APEXX Entities to) reasonably cooperate with Introducer and Referral Merchant for the purpose of ensuring compliance with such Applicable Law, including causing to be executed and delivered such documents as Introducer and Referral Merchant may reasonably request.

12. TERM AND TERMINATION

12.1. General - The term of this Agreement shall be one (1) year from the Effective Date of this Agreement; provided, however, that this Agreement shall be automatically renewed for everyone one (1) year term, unless either Party gives the other Party written notice of its intention not to renew at least thirty (30) days prior to the last day of the then current term, in which event the last effective date of this Agreement shall be the last day of the then current term. Notwithstanding anything in this Agreement to the contrary, payment obligations under Section 2 of this Agreement shall survive termination and/or suspension of this agreement.

12.2. Exclusion - APEXX may immediately terminate this Agreement and payment obligations under Section 2 of this Agreement will not survive termination and/or suspension of this agreement if any of the following occurs:

12.2.1. we are required by the Associations, the acquiring bank, or an order from a regulatory body to cease working with you as a business Partner; 
12.2.2. we believe that you have breached this Agreement, or are likely to do so; 
12.2.3. any other legal, reputational, or risk-based reason exists, in APEXX’s sole discretion. In the event that APEXX must terminate this Agreement, APEXX shall provide you with written notice as soon as reasonably practicable.

12.3. Duties Upon Termination - Except to the extent required or permitted for performance after the termination of this Agreement or in any separate written agreement between the Parties, Parties shall do the following in the event of termination of this Agreement:

12.3.1. Introducer shall promptly cease any and all use of APEXX Marks and APEXX Confidential Information; and
12.3.2. Except to the extent required or permitted for performance after the termination of this Agreement or in any separate written agreement between the Parties, APEXX shall promptly cease any and all use of Introducer Marks and all Introducer Confidential Information.

13. LIMITATION OF LIABILITY

13.1. EXCEPT FOR AMOUNTS DUE UNDER THIS AGREEMENT OR FOR CLAIMS, DAMAGES, OBLIGATIONS, OR LIABILITY ARISING OR DERIVED FROM FRAUD OR WILLFUL MISCONDUCT, WHICH SHALL NOT BE SUBJECT TO THIS SECTION, 
13.2. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE, AND
13.3. THE AGGREGATE LIABILITY OF A PARTY TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF THAN THE TOTAL AMOUNTS PAID OR PAYABLE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR OMISSION GIVING RISE TO THE RELEVANT CLAIM, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE).
13.4. THE PARTIES ACKNOWLEDGE THAT THIS SECTION HAS BEEN INCLUDED AS A MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO THIS AGREEMENT AND THAT THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT, BUT FOR THE LIMITATIONS OF LIABILITY AS SET FORTH HEREIN.

14. DISCLAIMER OF WARRANTIES

14.1. THE APEXX SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. APEXX DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, TO INTRODUCER AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF INTRODUCER ABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APEXX OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF APEXX’S OBLIGATIONS.
14.2. The Parties acknowledge that the APEXX Service is a computer network based service which may be subject to outages and delay occurrences. As such, APEXX does not guarantee continuous or uninterrupted access to the APEXX Services to Referral Merchant. Introducer further acknowledges that access to the APEXX website or to the APEXX Services may be restricted for maintenance. APEXX will make reasonable efforts to ensure that Transactions are processed in a timely manner; however, APEXX will not be liable for any interruption, outage, or failure to provide the APEXX Services to Referral Merchant.
14.3. Each Party hereby represents and warrants that

14.3.1. It has the full right to enter into this Agreement; and
14.3.2. It will act in accordance with all applicable laws and regulations

15. AMENDMENT

15.1. We may amend this Merchant Terms of Service at any time by posting a revised version of it on our website under the “Legal” section of our website. The revised version will be effective at the time we post it. In addition, if the revised version includes a substantial change, we will provide you with 30 days’ prior notice of any substantial change by posting notice under the “Policy Updates” section contained in the “Legal” section of our website. If you do not agree to the updated terms, you can terminate your Agreement by providing us with notice in the manner indicated in Section 13. If you provide us with termination notice within 30 days of the date of update, then your current terms and conditions shall apply during this notice period.

 

SCHEDULES

Schedule 1 - Definitions and Interpretations
Schedule 2 - APEXX Referral Fees

 

SCHEDULE 1

Definitions and interpretation

All defined terms in this Agreement shall have the meaning assigned to them as defined here or elsewhere in this Agreement and shall apply both to the plural and singular forms of each term, as the context may require. “I/including” means “including without limitation.”  “Days” refers to calendar days unless otherwise specified.  “H/herein,” “hereof,” “hereunder” or similar expressions refer to this Agreement.  

 

SCHEDULE 2

APEXX Referral Fees

APEXX Referral Fees are as defined in your Merchant Agreement.