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WHEREAS (1) the Wholesaler is in the business of selling certain products and services (together with related access codes) the ("Product"); (2) the Wholesaler wishes to retain UpClick to resell the Product pursuant to the terms hereof; and (3) UpClick wishes to resell the Product pursuant to the terms hereof.
NOW, THEREFORE this Agreement witnesseth that in consideration of the mutual covenants by each of the parties hereto, the parties agree as follows:
1.1 Definitions. For the purposes of this Agreement, the following terms shall have the following meanings:
2. OBLIGATIONS OF UPCLICK
2.1 Offer the Product for Resale. Pursuant to the terms hereof, UpClick shall offer for resale the Product to Customers (the "Offer"). UpClick shall accept payment from Customers via Credit Card, Debit Card, or other means, as it may, at its sole discretion accept from time to time. UpClick reserves the right to modify the means by which it accepts payment from Customers at its sole discretion and without prior notice.
2.2 Purchase Price. As and when requested by UpClick, the Wholesaler shall sell the Product to UpClick at those prices set out in the Application Form (the "Purchase Price"). Wholesaler can adjust the Purchase Price at its discretion through the Site.
2.3 Resale Price of the Product. UpClick shall sell the Product at the prices set out in Application Form (the "Resale Price") provided that the Resale Price shall never be less than thirty percent (30%) more than the Purchase Price. Wholesaler may, at its discretion, sell the Product on CD and/or charge fees for extended download privileges; fees charged for each such feature relating to the Product shall be shared as per the terms of the Fee Schedule.
2.4 Purchase of the Product. Wholesaler shall sell and supply such quantities of Product to UpClick as UpClick requests and in the manner and delay specified by UpClick. UpClick shall inform the Wholesaler of its intention to Purchase Product via an electronic or other manner of protocol that shall be established by UpClick and amended from time to time by UpClick, at its sole discretion (the "Order Protocol"). The Wholesaler shall install and maintain, at its own expense, such equipment as is reasonably necessary to operate the Order Protocol. UpClick shall not be liable to Wholesaler for any loss or destruction of any Product uploaded to the systems of UpClick or otherwise in the possession of UpClick. Without limitation, to the extent that the Product includes executable software programs, Wholesaler shall upload such programs to the Wholesaler systems through the Site. Wholesaler shall also upload to the UpClick system or supply to UpClick all necessary access codes in order to facilitate in the resale thereof by UpClick.
2.5 Payments to Wholesaler. UpClick shall make payments (each a "Payment") of the Purchase Price amounts to the Wholesaler on regular intervals mutually agreed between the Parties. The method of payment of the Payments shall be ACH, EFT, wire transfer, cheque or as may be otherwise implemented by UpClick. Upon a termination hereof where Wholesaler is in default, UpClick may withhold any Payments not yet made in order to offset its actual or potential liabilities.
2.6 Record of Product Resold. UpClick shall maintain a record of the number of Products resold by UpClick to Customers. Such records shall be the definitive evidence of all sales of Products made to Customers and shall be the basis on which all Payments hereunder are made. UpClick shall make such information available to the Wholesaler via the Site.
2.7 Transactions. UpClick shall resell the Product to its Customers directly, or through agents, via the internet, telephone sales or any other means of its choosing.
2.8 Chargebacks. In the event of a Chargeback in relation to the purchase by a Customer of any Product, UpClick shall, for each such Chargeback, deduct a fee set out in the Fee Schedule.
2.9 Refunds. If a Customer returns a Product to UpClick for a refund of the Purchase Price (the "Refund"), UpClick shall, at its sole and absolute discretion, repurchase from a Customer any Product so returned and refund the Resale Price to such Customer. Either party may initiate a Refund of any Transaction. Wholesaler shall reimburse UpClick for any amounts it has received in respect of any Transaction that has been Refunded together with any fees applicable thereto as described in the Fee Schedule.
2.10 Customer Service. As part of the Services, UpClick shall provide support in respect of payment for Transactions only. Any and all Customer queries concerning Product shall be referred to the Wholesaler who shall address such queries in a prompt and professional manner.
2.11 UpClick License. As part of the Services, for the term hereof only, UpClick grants to Wholesaler a limited, non-transferrable, license to use the Site and Software solely for the purpose of using the Services. Nothing in this agreement shall permit the Wholesaler to have any rights in the source code of the Software or to copy, decompile, alter or otherwise modify or transfer any rights in the Software or any other part of the Services. As part of such license UpClick shall supply the Wholesaler with a login and password. Wholesaler shall assume any and all liability for any use of such login and password, whether or not such activity was authorized by the Wholesaler.
3. OBLIGATIONS OF THE WHOLESALER
3.1 Sale of Product. The quantity of Products purchased by UpClick hereunder shall be established by UpClick, at its sole discretion. UpClick is under no obligation to purchase any specific quantity of the Product.
3.2 Wholesaler License. Wholesaler grants to UpClick a limited, transferrable, license to use, resell and sublicense the Product pursuant to the terms hereof. Nothing in this agreement shall permit the Wholesaler to have any rights in the source code of the Product or to decompile, alter or otherwise modify the Product or any other thereof.
3.3 Intellectual Property in Product. Wholesaler represents and warrants that the Product shall perform as described in any documentation relating thereto and shall be free from defects. If a breach of the foregoing occurs, Wholesaler shall replace, repair, and/or modify such Product without charge to UpClick and without delay. Wholesaler shall test programming materials for viruses, time bombs, back doors and other disabling or harmful devices ("Unauthorized Code") and remove any Unauthorized Code before use by Wholesaler, UpClick, or any Customer. Wholesaler represents and warrants to UpClick that no portion of the Product is subject to the intellectual property rights of any third party, including but not limited to, copyrights, patent rights, trademark rights, trade secret rights, or rights as confidential information.
3.4 Compliance. Throughout the term hereof, Wholesaler and its affiliates shall themselves and shall ensure that: (a) the Product, and all related products or services, do not contain any content that is unlawful, threatening, defamatory, obscene or otherwise objectionable; (b) the Product does not consist of, promote or relate to (A) sexually explicit materials, violence, discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation or age, (B) illegal activities or (C) infringement on intellectual property rights.
3.5 SPAM Prohibited. The Wholesaler may also promote the Product in any manner it deems fit provided that such promotion does not violate any applicable laws and does not consist of use of bulk e-mails, fax blasting or any illegal or distasteful business practices.
3.6 Maintenance and Service. Wholesaler shall be responsible for any and all support and maintenance related to the Product all of which it shall supply to Customers on reasonable terms.
3.7 Background Check. Wholesaler authorises UpClick and its representatives to obtain from third parties financial, credit information and personal background relating to Wholesaler, its shareholders, directors and officers to assist UpClick's determination of whether to accept this Agreement and UpClick's continuing evaluation of the financial and credit status of the Wholesaler. Upon request, Wholesaler shall provide to UpClick or its representatives reasonable access to Wholesaler's facilities and records for the purpose of performing any inspection and/or copying of Wholesaler's books and/or records deemed appropriate by UpClick in order to verify compliance with the terms hereof.
4. AFFILIATE PROGRAM
4.1 Affiliate Program- Wholesaler may elect to participate in our Affiliate Program. In the Affiliate Program, other members of the UpClick community may elect to promote Wholesaler's Software by driving traffic to Wholesaler's web site, and UpClick will track the sources of traffic to Wholesaler's site. When an End User makes a purchase upon being driven to Wholesaler's site by an Affiliate, that Affiliate is eligible for an Affiliate Commission, which Wholesaler agrees UpClick may deduct and pay from the sales price of the product. Any Affiliate commissions that result from a particular sale will also be deducted from Wholesaler's account and paid over to whichever Affiliate UpClick's systems indicates referred the sale to UpClick. Wholesaler may set the Affiliate commission on a per product, per account and on a per Affiliate basis.
All affiliates within the Affiliate Network shall remain UpClik's sole property, and shall not belong to Wholesaler. In order to enter the network, each affiliate has entered into a contractual relationship with UpClick. Any affiliate recruited by Wholesaler into UpClick's Affiliate Network through Wholesaler's own efforts or through the use of the affiliate recruiting tool UpClick provides to Wholesaler, or through any other service or other resource UpClick provides to Wholesaler shall remain UpClick's sole property. Wholesaler shall not bypass or circumvent the network with respect to any engagement with a Network Affiliate. The Affiliate Network may make available to Wholesaler tools and resources for the explicit purpose of communicating with affiliates. Wholesaler agrees not to use these tools in a manner that may result in, among other things, avoiding Wholesaler's obligation to pay for services and/or fees associated with the Network, including avoiding paying any Affiliate Commissions, Discount or other cost of sale to UpClick, or the recruitment of affiliates to another affiliate or affiliate-related network.
5. FEES AND RESERVE ACCOUNT
5.1 Fees. Fees payable to UpClick, as per the Fee Schedule and any other amounts owing from Wholesaler to UpClick, shall be deducted from Payments. In the event that the Payments are insufficient to pay amounts owing by the Wholesaler to UpClick hereunder, Wholesaler shall pay the balance thereof within three (3) Business Days following demand by UpClick.
5.2 Reserve Account. UpClick shall hereby deduct from the Payments and establish a reserve account (the "Reserve Account") to ensure UpClick's recovery of any liabilities owed to it or reasonably anticipated to be owed to it by the Wholesaler pursuant to this Agreement including, without limitation, all liabilities in respect of actual and/or potential post-termination Chargeback, post-termination fees, and charges, indemnifications and expenses due or anticipated to be due to UpClick from the Wholesaler. The Reserve Account shall be funded and maintained by UpClick's withholding from the Payments. The amount of the Reserve Account shall be no less than the fixed percentage of total monthly value of sales by UpClick to Customers set out in the Fee Schedule. UpClick may also, at its sole discretion, and without notice to the Wholesaler, reasonably amend the amount required in the Reserve Account in order to mitigate against potential losses to UpClick as a consequence of its performance hereudner. UpClick shall retain possession of the amounts in the Reserve Account for the term hereof and six (6) months thereafter and such additional time as may be necessary in order to mitigate against potential liabilities of UpClick hereunder.
5.3 Security for the Wholesaler's Obligations. As continuing and collateral security for the due and punctual payment of any and all amounts now owing or which may hereafter become owing to UpClick by the Wholesaler under this Agreement (the "Wholesaler Obligations"), as same may be amended, renewed, extended or supplemented, the Wholesaler hereby charges, mortgages and hypothecates in favour of UpClick, with effect as of and from this date, all right, title and interest of the Wholesaler in and to the Payments and Reserve Account and all funds therein. The Wholesaler further undertakes, upon notice by UpClick at the Wholesaler's expense, to execute and register such documents as may be necessary or desirable to perfect UpClick's security interest and hypothec therein.
5.4 Liability for Taxes. UpClick maintains the right to withhold from any Payment the amount of sales, value added or other taxes that UpClick is liable to remit as the reseller of Product to Customers. Wholesaler shall, without limitation, indemnify and hold UpClick harmless for any and all sales taxes or other taxes or levies for which UpClick may be liable as a consequence of performing the Services.
6. INDEMNIFICATION AND LIMITATION OF LIABILITY
6.1 Indemnification. Wholesaler shall defend, indemnify and hold harmless the UpClick, its directors, officers, employees, agents, assigns, and successors-in-interest from and against any and all third-party liability, damages, losses, claims, demands, actions, causes of action and costs (including attorneys' fees and expenses) arising out of or resulting from (i) Wholesaler's performance under this Agreement including, without limitation, performance, nonperformance, or defect in performance, any statement, misstatement, representation or misrepresentation made by Wholesaler; (ii) the negligent or willful acts or omissions of Wholesaler or Wholesaler's agents and/or employees; (iii) any statements, claims, representations or warranties made by Wholesaler or Wholesaler's agents and/or employees, relating to the Products and (iv) infringement or claim thereof of any patent, copyright, trademark, service mark, trade name, trade secret, proprietary and/or confidential information right, and/or any other property right of a third party arising from the use of the Product by Wholesaler, UpClick or Customers.
6.2 No Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UPCLICK EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES THAT THE SERVICES PROVIDED BY UPCLICK OR ITS AFFILIATES HEREUNDER OR THAT THE OPERATION OF THE SERVICES WILL BE INTERRUPTION OR ERROR FREE.
6.3 Limitations of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, UPCLICK, ITS AFFILIATES, AGENTS AND LICENSORS, SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE WHOLESALER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF UPCLICK HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURING. EXCEPT AS REQUIRED BY LAW, IN NO EVENT SHALL UPCLICK'S LIABILITY (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE) TO THE WHOLESALER IN ANY WAY CONNECTED WITH OR ARISING OUT OF THIS AGREEMENT EXCEED THE FEES ACTUALLY RECEIVED BY THE WHOLESALER FOR THE PRODUCT ACTUALLY RESOLD DURING THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. WITHOUT LIMITING THE FOREGOING, THE WHOLESALER AND UPCLICK AGREE THAT IF ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.
6.4 Force Majeure. UpClick shall use its commercially reasonable efforts to perform its obligations hereunder, however, UpClick, its affiliates, agents or licensors shall not be liable for any loss resulting from the activities of the Wholesaler, nor from any erroneous statements or errors in transmission, nor for any loss resulting from any delay, interruption or failure to perform hereunder due to any circumstances beyond UpClick's reasonable control including, without limitation, acts of god, fire, explosion, earthquake, riot, terrorism, war, sabotage, accident, embargo, storms, strikes, lockouts, any interruption, failure or defects in Internet, telephone, or other interconnect services or in electronic or mechanical equipment. UpClick's obligations hereunder shall be suspended during any of the foregoing circumstances, which suspension shall not be a cause for termination of this agreement by the Wholesaler.
7. TERM AND TERMINATION
7.1 Term. This Agreement shall be effective commencing on the date that Wholesaler has accepted the terms of this Agreement via the Site or in writing (the "Effective Date") and ending one (1) year thereafter (the "Initial Term"). After the Initial Term, this Agreement shall be renewed automatically for additional consecutive one (1) year periods, unless earlier terminated in accordance with the terms hereof.
7.2 Termination At Will. Either party may terminate this Agreement at any time on notice to the other party.
7.3 Procedure upon Termination. Upon any termination of this Agreement, UpClick shall discontinue selling the Products and the licenses to Software, the Site and the Product granted hereunder shall immediately terminate. All provisions regarding indemnification, representations, warranties, liability and limits thereon and confidential information shall survive termination and termination of this Agreement shall not relieve the Wholesaler of its obligations to pay accrued Fees or other liabilities to Wholesaler hereunder.
8.1 Confidential Information. The Wholesaler agrees that it will: (i) not use for purposes other than this Agreement; (ii) not disclose to any third party; and (iii) retain in strictest confidence; all Confidential Information except in the performance of its obligations under this Agreement. The Wholesaler will use reasonable safety precautions so that Confidential Information cannot be accessed from or through its systems. The Wholesaler will require its employees and all other persons who have access to the Confidential Information to be bound by similar obligations. Termination of this Agreement shall not release the Wholesaler from its obligations of confidentiality.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS
9.1 Representations and Warranties. It is agreed between the Parties that performance by UpClick hereunder, whether the representations, warranties and covenants of the Wholesaler are fulfilled or not, shall in no manner whatsoever waive the benefit, to UpClick, of any such representations, warranties and covenants of the Wholesaler. The Wholesaler hereby warrants and covenants to UpClick that:
10.1 Notices. Any notice, demand, request or other communication required or permitted to be given under this Agreement shall be in writing and delivered personally, or sent by prepaid registered mail, return receipt requested (i) to UpClick at the postal address provided therefor on the cover-page hereof; to the Wholesaler at the address provided therefor on the cover-page hereof; or to such other address as either party may have previously indicated to the other in writing in accordance with the foregoing. Any such notice, request, demand or communication shall be deemed to have been received on the day it was delivered personally, on the fifth (5th) day following mailing, unless there is a disruption of any kind of postal service.
10.2 Currency. Unless otherwise specified, all dollar amounts referred to herein shall be in United States Dollars.
10.3 Number and Gender. The context requires otherwise, words employing the singular include the plural and vice versa and words employing the gender include all genders.
10.4 Amendments. UpClick may amend or change the Services they provide, at any time, and those changes will be effective for any transactions that take place after the date of the change.
10.5 Assignment and Successors. Wholesaler or any of its respective successors may not assign this Agreement, or any rights hereunder, directly or by operation of law, without the prior written consent of UpClick which consent may be withheld for any reason, at UpClick's sole discretion. UpClick or any of its respective successors may assign this Agreement, or any rights hereunder, directly or by operation of law, without the prior written consent of Wholesaler. This Agreement and the provisions hereof shall enure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
10.6 Enforcement. The Wholesaler shall be liable for and shall indemnify and reimburse UpClick for any and all reasonable attorneys' fees and other costs and expenses paid or incurred by UpClick in the enforcement of this Agreement, or in collecting any amounts due from the Wholesaler hereunder, or resulting from any breach of any of the terms or conditions of this Agreement.
10.7 Remedies. All remedies of either party hereunder are cumulative and may be exercised concurrently or separately. The exercise of any one remedy shall not be deemed to be an election of such remedy and shall not preclude the exercise of any other remedy. No failure on the part of either party to exercise and no delay in exercising any right or remedy hereunder shall operate as a waiver of such right or remedy.
10.8 Severability. If any provision of this Agreement is held invalid or unenforceable by any court of final jurisdiction, it is the intent of the parties that all other provisions of this Agreement be construed to remain fully valid, enforceable and binding on the parties.
10.9 Governing Law and Choice of Forum. This Agreement shall be deemed to be governed and enforced in accordance with the laws of the Province of Quebec whose courts shall have exclusive jurisdiction over disputes arising hereunder.
10.10 Whole Agreement. References to "this Agreement" include any schedules, supplementary agreements, addendum, appendixes and amendments and any other agreements, schedules appendixes and amendments promulgated by UpClick and furnished to the Wholesaler from time to time.
10.11 Guarantee. For good and valuable consideration, receipt of which is hereby acknowledged, the Guarantor hereby fully, irrevocably and unconditionally guarantees to UpClick the full and complete performance by the Wholesaler of all the Wholesaler's obligations, present and future, to UpClick (the "Guarantee") under or pursuant to this Agreement.
10.12 Solidarity Liability. The liability of the Guarantor under the Guarantee shall be solidary (i.e. joint and several) with the Wholesaler, the Guarantor expressly waiving all benefits of division and discussion. UpClick does not need to exhaust its recourses against the Wholesaler or any other Person before being entitled to full payment from the Guarantor under the Guarantee.
10.13 Counterparts and On-Line Agreement. By acceptance of the terms hereof on-line by the Wholesaler or by execution of a written acceptance of the terms hereof by the Wholesaler, in counterparts or otherwise, this Agreement together with its Schedules and any supplemental agreements and appendixes constitute the entire validly legally binding agreement between the Parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations and understandings of the parties. No waiver of any of the provisions in this Agreement shall be deemed or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
10.14 Survival. The following provisions hereof shall survive any termination hereof: 1, 2.6, 2.8, 3.3, 3.4, 3.5, 3.6, 4, 5, 7, 8 and 9.
|Fee Name||Fee Rate||Comment|
|Processing Fee:||7.9%||Processing fees are calculated on the total gross amount of your cart in USD and deducted from your account statement at the moment of closing of closing your payment period.|
|Gateway Fee:||$1.00||Gateway fees are calculated on the total number of transactions processed by our gateway whether they are approved or declined by the banking network. These fees are deducted from your account statement at the moment of closing of closing your payment period.|
|Chargeback fees are calculated for each chargeback received and deducted from your account statement at the moment of closing your payment period.|
|Refund fees are calculated for each refund received and deducted from your account statement at the moment of closing your payment period.|
|Currency Retail Fee:||2.50%||If your transaction involves a currency conversion, a retail foreign exchange rate will be applied.
This rate is based on market rates at the time the transaction occurred.
This exchange rate includes a 2.5% spread above the wholesale exchange rate at which UpClick obtains foreign currency.
The specific exchange rate that applies to your multiple currency transaction fee will be displayed at the time the transaction posts to your account.
|Cross Sell Fee:||$1.00,
|Cross-sale fees only apply in the case where you are cross-selling products taken from the Upclick Marketplace. Cross-sale fees are calculated for each Marketplace cross-sale that occurs and deducted from your account statement at the moment of closing your payment period.|
|Reserve for Merchants: and Wholesalers:||10%||Reserve for Merchants: and Wholesalers: 10% A reserve in the amount of 10% will be held for a period no longer than 3 months and released back to your account at the end of the 3 month cycle. Reserves are calculated as a percentage of the total USD amount of each transaction and deducted from your account statement at the moment of closing your payment period.|
|Wire Transfer Fee:||$20.00||Wire transfer fees are calculated for every transfer of funds to your bank account and are deducted from your account statement at the moment of closing your payment period. There are no fees for payments by check. Certain conditions apply.|