Last Revised: May 1, 2017
RxSpark Affiliate Partner Program Agreement
RxSpark provides a Patient Discount Prescription Program and
other related services to consumers via a range of channels including the RXS
SITE, direct mailing, and a referral program.
RxSpark is pleased to offer
Authorized Partners access to our APIs and a range of different marketing channels
which allow our Partners to earn on a revenue share basis. Partners earn when their
referred customers make purchases through the RxSpark web platform or use their
Discount Savings Card when purchasing prescription medications. Below are the general
Terms and Conditions governing the RxSpark Affiliate Partner Program. You will need to read and agree to abide by
these before you submit your application to become an Affiliate Partner.
The RxSpark.com website (“RXS SITE”), content and brand are created,
owned and operated by PS Deals, Inc. (under its RxSpark division) ("RXS").
Through the RXS SITE, authorized Affiliate Partners for RXS
("PARTNERS") may access and use the application programming interfaces
(“APIs”) developed by RXS as well as a range of other marketing channel
opportunities ("the APPLICATION") to promote RXS products and
services and receive remuneration. By entering into a separate MARKETING
AGREEMENT (as defined in a separate agreement available upon request), PARTNERS
may also have the opportunity to promote their own products and services via
the APPLICATION and the RXS SITE.
To be become an authorized PARTNER, you must successfully
enroll in the RxSpark Affiliate Partner Program (the "PROGRAM") and
agree to abide by the terms and conditions of this Partner Program Agreement.
This document contains the complete terms and conditions
under which you may access and use the APPLICATION. This document
they each may be amended from time to time, into one comprehensive document,
hereinafter called the "AGREEMENT".
By signing up for the PROGRAM, you indicate your acceptance
of this AGREEMENT and all of its terms and conditions.
Please read this AGREEMENT carefully before registering and
using the APPLICATION.
SECTION 1. ENROLLMENT IN THE PROGRAM
To enroll, you must first submit a completed PROGRAM application
through the RXS SITE.
We will evaluate your application in good faith to ensure
you comply with all our rules and agreements. We may reject your application if
we determine that your business or website is unsuitable for the PROGRAM for
any reason, including, but not limited to, if your site incorporates images or
content, or promotes products, services or materials that are unlawful,
defamatory, obscene, harassing or otherwise objectionable, including, without
limitation, businesses or sites that facilitate illegal activity, promote or
assist others in promoting violence, copyright infringement, spyware, adware
and/or other malicious programs, unsolicited mass distributions of email,
webspam or other similar activities (collectively, "CONTENT RESTRICTIONS").
You will be notified of our decision to accept or reject
your application by email to the email address provided.
SCHEDULE 1, as mentioned throughout this agreement, will be
sent to you separately by email upon successful application to the PROGRAM.
SCHEDULE 1 will outline the commercial terms including TERRITORY, PARTNER
COMMISSION rates and PARTNER MARKETING PLAN.
We may need to contact you in person to clarify any points
before making a decision.
SECTION 2. DEFINITIONS AND INTERPRETATIONS
2.1 In this AGREEMENT, unless the context otherwise
requires, the following words shall have the following meanings:
"ADVERTISEMENTS" means privately branded
sponsorship messages, banner advertisements, interstitials, buttons and the
like developed by PARTNER promoting the APPLICATION for on-line or off-line
promotions executed by PARTNER on the PARTNER SITE.
"AGREEMENT" means this agreement (including the RXS
time to time.
"API KEY" means the unique software code that RXS
provides to PARTNER to enable PARTNER to use the APPLICATION.
"APPLICATION" means the RxSpark.com prescription
aggregation (and related services) website application, including any
modifications, enhancements, or replacements of, or additions thereto, from
time to time.
"BUSINESS DAY" means a day (other than a Saturday
or a Sunday) on which commercial banks are open for business.
"CLAIMS" has the meaning set forth in Section
11 of this Agreement.
"COMMISSION" means the total commission actually
received by RXS from the PBM (Pharmacy Benefit Management company) in
connection with each TRANSACTION completed with a CUSTOMER via the APPLICATION.
"CONFIDENTIAL INFORMATION" means any information
disclosed by a PARTY under this AGREEMENT which is marked as confidential or
which is reasonably apparent as confidential in nature, including all
commercial or technical information relating to the disclosing PARTY's
"CONTENT RESTRICTIONS" has the meaning set forth
in Section 1 of this Agreement.
"CUSTOMER" means a USER or PATIENT situated in the
TERRITORY who purchases a OFFER/SERVICE through the APPLICATION.
"PBM" means A Pharmacy Benefit Management Company,
related merchant or other entity that has entered into a MARKETING AGREEMENT
with RXS pursuant to which it is authorized to offer its goods and services to
USERs via the APPLICATION .
"OFFERS/SERVICES" means products and services
offered or promoted by one or more PBM or other qualifying merchant added from
time to time.
"RXS" means RxSpark (the brand/subdivision of PS
Deals, Inc.) including any successor or permitted assign.
posted on the RXS SITE, as amended and restated from time to time.
"RXS SITE" has the meaning set forth in the
preamble to this Agreement.
"EFFECTIVE DATE" means the date a fully-executed
copy of this AGREEMENT is accepted in writing (including by email or other
electronic means) by an authorized signatory of RXS, whereupon this AGREEMENT
shall become effective between the PARTIES.
"FIRST TIER MEMBER" means a FULLY ACTIVATED USER
while logged onto the RXS SITE or APPLICATION.
"FORCE MAJEURE EVENT" means an event beyond the
reasonable control of a PARTY, including, but not limited to, any failure of
performance or equipment as a result of, the following: (i) acts of God; fire,
flood, earthquake, tsunami, storm other catastrophes; (ii) any law, order,
regulation, direction, action or request of any governmental entity or agency,
or any civil or military authority; (ii) national emergencies, insurrections,
riots wars or acts of terrorism; (iv) unavailability of rights of way or
materials; (v) power outages, Internet outages or failures of Internet
providers; or (v) strikes, lock-outs, work stoppages or other labor
difficulties (except in relation to a PARTY's own workforce). No event
shall be treated as a FORCE MAJEURE EVENT if it is attributable to a willful
act or omission or any failure to take reasonable precautions by a PARTY or any
failure to take reasonable steps to overcome the event.
"FULLY ACTIVATED USER" means a USER inquiry
submitted via a PARTNER's API KEY to the RXS SITE that results in a full and
complete opted-in registration for the APPLICATION.
means the period of 12 months from the EFFECTIVE DATE.
"INTELLECTUAL PROPERTY RIGHTS" means copyright and
related rights, trademarks and service marks, trade names and domain names,
patents, rights to inventions, rights in get-up, rights to goodwill and to sue
for passing off and unfair competition, rights in designs, rights in computer
software, the look and feel of any websites, database rights, rights in
CONFIDENTIAL INFORMATION (including know-how and trade secrets) and any other
intellectual property rights, in each case whether registered or unregistered,
and including all applications (and rights to apply) for, and renewals or
extensions of, such rights and all similar or equivalent rights or forms of
protection which subsist or will subsist, now or in the future, in any part of
"LOSSES" has the meaning set forth in Section
11 of this Agreement.
"PARTIALLY REGISTERED USER" means a USER inquiry
submitted via a PARTNER's API KEY to RXS SITE that results in a basic but not fully
opted-in registration for the APPLICATION.
"PARTNER" means a person or entity who has
successfully enrolled in the PROGRAM and whose participation has not been
terminated pursuant to Section 14 (Termination) of this
"PARTNER ADMINISTRATION PAGE" means the online
page managed by RXS to administer payments due to PARTNER pursuant to this
"PARTNER COMMISSION" means that portion of the
COMMISSION to be allocated to Partner in connection with a TRANSACTION.
"PARTNER MARKETING PLAN" means the plan for the
PARTNER to promote the APPLICATION and related services to the PARNTER's
contacts, clients and customers.
"PARTNER SITE" means the website described in the
prospective partner's PROGRAM application submitted through the RXS SITE, or such
other site as agreed between the PARTIES.
"PARTY" or PARTIES" means RXS and/or each
PARTNER bound by this AGREEMENT.
"PROGRAM" means the RxSpark Affiliate Partner
Program, the terms and conditions of which are set forth in this AGREEMENT.
"RELEVANT EMPLOYEE" has the meaning set forth
in Section 13 (Non-Solicitation) of this Agreement.
"SECOND TIER MEMBER" means a referred contact of a
FULLY ACTIVATED USER, while the referred contact is logged on to the
"TERRITORY" means the limited area of business,
whether designated by geography, industry and/or other metric, as defined in
the territory field in Schedule 1 (Commercial Terms) hereto.
"TRANSACTION" means a transaction for the supply
of goods or services between a USER and a PBM concluded via the APPLICATION
when the USER is logged in.
"USER" means an individual submitted via a
PARTNER's API KEY who uses the APPLICATION but may not have completed a full,
"YEAR" means a period of twelve (12) months
from the EFFECTIVE DATE or an anniversary of such date.
2.2 In this AGREEMENT, unless the context otherwise
a) words in the singular include the plural and vice versa
and words in one gender include all genders;
b) a reference to a statute or statutory provision includes
any statute or statutory provision which modifies, consolidates, re-enacts or
supersedes it whether such statute or statutory provision comes into force
before or after the date of this AGREEMENT;
c) a reference to:
i) any PARTY includes its successors in title and permitted
ii) a PARTY, clause or schedule is to a PARTY to, a clause
of, or a schedule to this AGREEMENT;
f) the words "includes" or "including"
shall be construed as illustrative only and shall not limit the generality of
the preceding words;
g) if there is any conflict or inconsistency between any
clause of this AGREEMENT and any Schedule or Annex to this AGREEMENT, the
clause in this AGREEMENT shall prevail; and
h) the headings in this AGREEMENT are inserted for
convenience only and shall not affect the interpretation of this AGREEMENT.
SECTION 3. REPRESENTATIONS AND WARRANTIES
3.1 Each PARTY represents and warrants to the other
a) it has the power and authority to enter into this
AGREEMENT and to perform its obligations under this AGREEMENT;
b) it is an entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or formation;
c) it is duly qualified and is in good standing in each
jurisdiction in which the conduct of its business, provision of its goods
and/or services, or the ownership of its property requires such qualification;
d) this AGREEMENT constitutes a legal, valid, binding and
e) it shall comply with all laws applicable to its obligations
under this AGREEMENT (including, without limitation, any laws, rules or
regulations relating to the collection or payment of any local, state or
federal taxes associated with its activities under this AGREEMENT);
f) it has the ability and experience to carry out the
obligations assumed by it under this AGREEMENT;
g) by virtue of entering into this AGREEMENT, it is not, and
will not be, in breach of any express or implied obligation to any third party
binding upon it; and
h) all content provided in connection with its business
and/or any representations about its business do not and will not infringe,
misappropriate, or otherwise violate, any INTELLECTUAL PROPERTY RIGHT or right
of privacy or publicity of any third party.
3.2 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY IMPLED WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE APPLICATION IS PROVIDED
TO PARTNER BY RXS "AS IS", "WITH ALL FAULTS" AND "AS
AVAILABLE", AND RXS DOES NOT WARRANT OR GUARANTEE THAT PARTNER'S USE OF
THE APPLICATION WILL BE ERROR FREE, UNINTERRUPTED, SECURE OR TIMELY, OR THAT
USE OF THE APPLICATION WILL RESULT IN ANY REVENUE OR PROFIT FOR PARTNER.
PARTNER ACKNOWLEDGES THAT THE USE OF THE APPLICATION MAY BE SUBJECT TO
LIMITATIONS, DELAYS, OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND
ELECTRONIC COMMUNICATIONS, AND OTHER FORCE MAJEURE EVENTS AND RXS IS NOT
RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, DATA LOSS OR OTHER DAMAGE RESULTING
FROM SUCH PROBLEMS.
SECTION 4. APPOINTMENT
Subject to the terms and conditions of this AGREEMENT, RXS
hereby appoints PARTNER to be a non-exclusive partner of RXS for the promotion
of the APPLICATION in the TERRITORY.
SECTION 5. DURATION
This AGREEMENT shall commence on the EFFECTIVE DATE and
(unless terminated at an earlier date in accordance with Section
14 (Termination)) shall continue in force for the INITIAL TERM and after
that continue unless and until either PARTY gives the other PARTY notice in
writing of not less than three (3) months (the "TERM").
SECTION 6. LICENSE
6.1 Subject to the terms of this AGREEMENT, RXS grants
to PARTNER a non-exclusive, revocable, non-transferable, non-sublicensable,
a) access and use the APPLICATION;
b) display the APPLICATION and any other content provided by
RXS on the PARTNER SITE and Internet connected applications for mobile devices;
c) reproduce and display the RXS name, trademark and logo in
connection with PARTNER's use of the APPLICATION; and
d) upon mutual acceptance of the terms and conditions set
forth in Schedule 1 (Commercial Terms) to this AGREEMENT, may provide promotional opportunities for
PARTNER's products and services.
For the avoidance of doubt, any rights not expressly granted
to PARTNER pursuant to this Section are reserved by RXS.
6.2 PARTNER shall not (and shall not assist or enable
a) sell, lease or sub-license the APPLICATION to any other
individual or organization;
b) reverse engineer, decompile or otherwise endeavor to
obtain the source code to the software comprising the APPLICATION or access the
APPLICATION, the RXS Site or any other deliverables in order to copy any ideas,
features, content, functions or graphics of the APPLICATION, the RXS Site or
any other deliverables; or
c) deliver possession of any copies of or provide access to
the APPLICATION to any third party.
6.3 Within ten (10) days after the execution of this
AGREEMENT, RXS shall provide PARTNER with a unique API KEY. RXS will then
notify PARTNER promptly in the event that RXS releases any modifications,
enhancements or replacements of, or additions to, the APPLICATION.
6.4 When integrating the API KEY, PARTNER shall
reproduce RXS's copyright, proprietary notices and
disclaimers on every such integration.
SECTION 7. DUTIES AND OBLIGATIONS OF PARTNER
a) create marketing material and content for the purpose of
generating FULLY ACTIVATED USERs for the APPLICATION;
b) actively promote and market the APPLICATION during the
INITIAL TERM of this AGREEMENT as described in this Section, to include
offering the APPLICATION on the PARTNER SITE and, if applicable, Internet
connected applications for mobile devices;
c) adhere to the agreed marketing activities outlined in
this AGREEMENT and/or any Schedules and Annexes to this AGREEMENT from time to
d) use all commercially reasonable efforts to ensure that
all FULLY ACTIVATED USERs received and delivered to RXS are accurate;
e) use its reasonable endeavors to promote the distribution
of the APPLICATION throughout the TERRITORY;
f) promptly inform RXS of any facts, opinions or
malfunctions of which PARTNER becomes aware likely to be relevant in relation
to the commercial exploitation of the APPLICATION and which are advantageous or
disadvantageous to the interests of RXS;
g) at all times conduct its business in a manner that will
reflect favorably on the APPLICATION and on the good name and reputation of RXS;
h) not by itself or with others participate in any illegal,
deceptive, misleading or unethical practices including, but not limited to,
disparagement of the APPLICATION or RXS or other practices that may be
detrimental to the APPLICATION, RXS or the public interest;
i) not make any misrepresentations in relation to the
j) not during the term of this AGREEMENT actively market the
APPLICATION outside the TERRITORY without the prior written consent of RXS
provided always that nothing in this AGREEMENT shall prevent PARTNER from
responding to unsolicited requests for the APPLICATION from outside the
k) not during the term of this AGREEMENT (whether alone or
jointly and whether directly or indirectly) be concerned or interested in the
marketing, distribution, licensing or sale of any software
products/applications which are similar to, or competitive, with the
APPLICATION, or which perform the same or similar functions;
l) not make any promises or representations, or give any
warranties or guarantees, in respect of the APPLICATION except as expressly
authorized by RXS in writing;
m) not supply the APPLICATION to any person;
n) use RXS's trademarks, trade names, service marks and
logos relating to the APPLICATION in all ADVERTISEMENTS in accordance with the
registered or agreed style in connection with the distribution of the
APPLICATION and shall not use such trademarks, trade names, service marks or
logos in connection with any other products or services or as part of the
corporate or any trade name of PARTNER. (RXS reserves the right to approve the
form and placement of its trademarks, trade names, service marks and logos on
the PARTNER SITE, in the ADVERTISEMENTS, and in any materials used to promote
the APPLICATION, such approval shall not to be unreasonably withheld or
SECTION 8. OBLIGATIONS OF RXS
a) be solely responsible for the aggregation of the OFFERS/SERVICES
promoted on the RXS SITE (or any successor site) from the PBMs (OFFERS/SERVICES
shall be presented together with (i) any information provided by the PBMs
pertaining to the details of the OFFERS/SERVICES and (ii) the terms and
conditions as provided by the PBMs);
b) process and fulfill FULLY ACTIVATED USERs for RXS's
services within a reasonable time period following receipt of a FULLY ACTIVATED
USER from PARTNER;
c) track and report (via the applicable PARTNER
ADMINISTRATION PAGE) all TRANSACTIONs and COMMISSIONs earned from FULLY
d) provide PARTNER with such marketing and technical
assistance as RXS may in its discretion consider necessary to assist PARTNER
with the promotion of the APPLICATION;
e) endeavor to answer as soon as possible all technical
queries raised by PARTNER concerning the use and functioning of the
f) give PARTNER reasonable advance written notice of any
change in or modification of the APPLICATION or of any intention to discontinue
licensing the APPLICATION in the TERRITORY;
g) provide PARTNER promptly with all information and
assistance necessary to enable PARTNER to perform its obligations under this
AGREEMENT in respect of any modified, enhanced or replacement version of, or
addition to, the APPLICATION;
h) manage the CUSTOMER support services provided to USERs
with respect to the APPLICATION, including, without limitation, account
maintenance and payments with respect to the APPLICATION (CUSTOMER support
activities in respect of purchases will be provided by one or more PBMs); and
i) remit any PARTNER COMMISSIONs earned by PARTNER in
accordance with Section 9 (Remuneration) of this AGREEMENT.
SECTION 9. REMUNERATION
9.1 As material consideration for PARTNER's marketing
commitment, set forth in Section 7 (Duties and Obligations of
Partner), in respect of each TRANSACTION, RXS shall pay to PARTNER a PARTNER
COMMISSION at the rate defined in Schedule 1 (Commercial Terms) of
9.2 The PARTNER COMMISSION shall become due on the
date RXS actually receives the COMMISSION from the PBM in relation to each
9.3 RXS shall send PARTNER a
statement of the PARTNER COMMISSIONS due not later than the seventh (7th) day
of the month following the month in which the PARTNER COMMISSION became due.
9.4 PARTNER COMMISIONS due shall be paid via check or,
if available, electronic funds transfer, in accordance with the terms out
in Schedule 1 (Commercial Terms) of this AGREEMENT.
9.5 Unless otherwise agreed, the currency of payment
for PARTNER COMMISSIONS shall be US Dollars.
9.6 RXS may offset amounts refunded to a USER, PBM/merchant
or other third party on a pro-rata basis against the amounts that are - or in
the future will be - payable to PARTNER under Schedule 1 (Commercial
Terms). If an offset amount is greater than amounts due to PARTNER, RXS
may invoice PARTNER for the difference. RXS may also invoice PARTNER for
amounts refunded to a USER, PBM/merchant or third party, including refunds made
after termination or expiration of this Agreement. PARTNER shall
immediately pay in full all RXS invoices with respect to USER, PBM/merchant or
third party refunds. If RXS makes a refund to a USER or other third party
after paying PARTNER a PARTNER COMMISSION in connection with a TRANSACTION that
is the subject of the refund, PARTNER shall promptly pay RXS for the refunded
amount less any applicable RXS commission that was paid (if applicable).
9.7 RXS agrees to maintain complete and accurate
financial books and records to substantiate RXS’s payments to PARTNER
under Schedule 1 (Commercial Terms). RXS shall preserve such
books and records for a period of at least two years from the time each payment
is made to PARTNER, or such longer period as may be required by applicable law.
9.8 PARTNER shall have the right, at its own cost and
expense, to audit RXS’s books and records from time-to-time during the Term,
but solely to verify the payments made by RXS under this AGREEMENT and in any
case no more frequently than once every 12 months. The audit period may
only be up to 60 days prior to the audit date to allow for any third party
merchant amendments to be effective. Any review of RXS’s books and records
shall be conducted at RXS’s designated location during RXS’s normal business
hours upon not less than 30 days’ prior written notice to RXS. PARTNER
shall cause its representative or agent to employ such reasonable procedures
and methods as are necessary and appropriate in the circumstances to minimize
interference with RXS’s normal business operations. PARTNER shall have access
to such books and records for purposes of audit, through its own
representatives or through an accounting firm selected and paid for by
PARTNER. If the audit demonstrates that RXS underpaid PARTNER during the
audit period, RXS shall pay PARTNER the underpaid amount within 30 days
following the conclusion of the audit. If the underpayment exceeds 10%
percent of the amount that should have been paid, then RXS shall also reimburse
PARTNER for the reasonable costs of the audit. If the audit demonstrates
that RXS overpaid PARTNER, then PARTNER shall reimburse RXS for overpayment
within 30 days of the conclusion of the audit.
9.9 PARTNER acknowledges that with respect to any
TRANSACTION under this AGREEMENT, RXS is acting as an agent only, and not as a
principal or guarantor, and RXS shall have no liability (a) to any USER for any
goods or services due to such USER if the applicable PBM or merchant fails to
honor or perform its obligations in connection with the TRANSACTION, and (b) to
PARTNER for any COMMISSION due to PARTNER from a TRANSACTION in which the
applicable PBM or merchant fails to honor or perform its obligations in
connection with the TRANSACTION.
9.10 Other than with respect to any COMMISSION
received by RXS after termination of this AGREEMENT in relation to a
TRANSACTION concluded prior to the date of such termination, PARTNER shall not
be entitled to any PARTNER COMMISSION, compensation, fee or other payment in
respect of or in connection with the termination of this AGREEMENT.
9.11 Unless otherwise agreed, any PARTNER COMMISSIONS
paid to PARTNER by RXS under this AGREEMENT shall represent PARTNER's sole
remuneration for its activities under this AGREEMENT.
SECTION 10. INTELLECTUAL PROPERTY RIGHTS
10.1 The APPLICATION, the RxSpark name, trademark and
logo, and all INTELLECTUAL PROPERTY RIGHTS in them, or relating to them, are
and shall remain the property of RXS (and/or its third party licensors), and
nothing in this AGREEMENT shall transfer or grant any rights in relation to the
APPLICATION, the RXS name, trademark or RXS logo, other than the limited license
expressly set out in this AGREEMENT.
10.2 PARTNER shall notify RXS immediately if PARTNER
becomes aware of any unauthorized use of the APPLICATION, the RXS name,
trademark or logo, or any of the INTELLECTUAL PROPERTY RIGHTS in them or
relating to them and will assist RXS (at RXS's expense) in taking all steps to
defend RXS's rights in them.
10.3 PARTNER shall not use, reproduce or deal in the
APPLICATION, the RXS name, trademark or logo or any copies of them except as
expressly permitted by this AGREEMENT.
10.4 RXS shall indemnify PARTNER against any claim
that the normal use or possession of the APPLICATION by PARTNER in accordance
with the terms of this AGREEMENT infringes the INTELLECTUAL PROPERTY RIGHTS of
any third party in the TERRITORY provided that RXS is given immediate and
complete control of such claim, that PARTNER does not prejudice RXS's defense
of such claim, that PARTNER gives RXS all reasonable assistance with such
claim, and that the claim does not arise as a result of the use of the
APPLICATION in combination with any software, hardware, equipment or technology
not supplied or approved by RXS. RXS shall have the right to (i) change all or
any part of the APPLICATION in order to avoid any infringement; (ii) obtain for
PARTNER a license to continue using the APPLICATION; or (iii) if neither (i) or
(ii) are commercially reasonable, terminate this AGREEMENT. The foregoing
states the entire liability of RXS to PARTNER in respect of the infringement of
the INTELLECTUAL PROPERTY RIGHTS of any third party.
10.5 PARTNER shall indemnify RXS against any claim
that the normal use or possession of the APPLICATION by PARTNER in accordance
with the terms of this AGREEMENT infringes the INTELLECTUAL PROPERTY RIGHTS of
any third party in the TERRITORY if and to the extent that the claim arises as
a result of the use of the APPLICATION in combination with any software,
hardware, equipment or technology used by PARTNER that are not supplied or
approved by RXS. PARTNER will not agree to any settlement of any matter
arising out of this Section that imposes any obligation on RXS without RXS's
prior written consent.
SECTION 11. INDEMNIFICATION
11.1 Each PARTY, at its sole cost and expense, shall
defend, indemnify and hold the other PARTY, its affiliated and related
entities, and any of their respective officers, directors, agents and
employees, harmless from and against any third party claims, lawsuits, actions,
proceedings or investigations (collectively, "CLAIMS") from and
against any fees, costs, sanctions, penalties, damages, losses or expenses
(including but not limited to attorney's fees and costs) (collectively,
"LOSSES") arising out of or relating to:
a) such PARTY's fraud, willful misconduct, or gross
b) such PARTY's breach or alleged breach of this
c) any claims for any local, state or federal tax
obligations (including any penalties, interest or other additions to tax)
arising from any COMMISSIONS received pursuant to this AGREEMENT;
d) any content provided by such PARTY; and
e) any infringement, misappropriation, or other violation,
of any patent, trademark, copyright, publicity, privacy, trade secret, or other
right of any third party by such PARTY, its content or the use thereof.
11.2 The PARTY seeking indemnification under this
Section shall promptly notify the other PARTY in writing of any CLAIM for which
it seeks indemnification; provided that such indemnified PARTY’s failure to timely
provide such notice shall not relieve the indemnifying PARTY of its
indemnification obligations unless it can demonstrate actual prejudice as a
result of such failure. The indemnifying PARTY shall have the right to, upon
written notice to the indemnified PARTY, elect to assume control of the defense
and settlement of any such CLAIM, and the indemnified PARTY shall have the
right to participate and be represented in the defense of such CLAIM by its own
counsel and at its own expense. The indemnifying PARTY shall not settle any
CLAIM on behalf of the indemnified PARTY without the indemnified PARTY's
prior written consent.
SECTION 12. CONFIDENTIALITY
12.1 During the term of this AGREEMENT and for a
period of three (3) YEARs after termination or expiration of this AGREEMENT,
each PARTY shall:
a) treat as strictly confidential all CONFIDENTIAL
INFORMATION received from the other PARTY; and
b) only use the CONFIDENTIAL INFORMATION received from the
other PARTY for the purpose of fulfilling its obligations and exercising its
rights under this AGREEMENT.
12.2 The terms of Section 12.1 shall not
apply to the disclosure or use of CONFIDENTIAL INFORMATION:
a) with the consent of the disclosing PARTY;
b) as required by law, a court order or by the rules of any
relevant stock exchange or by any relevant regulatory or government authority;
c) to the extent that information has come into the public
domain through no fault of the receiving PARTY.
12.3 In the event that a PARTY is required by
applicable law, rule or regulation, or pursuant to the order of any court or
governmental authority of competent jurisdiction, to disclose CONFIDENTIAL
INFORMATION of the other PARTY, such PARTY shall use commercially reasonable
efforts to (i) provide the other PARTY with at least ten (10) BUSINESS DAYs
prior written notice of such disclosure (where such notice is reasonably
possible without violating any law or regulation); and (ii) limit such
disclosure to the extent practicable.
SECTION 13. NON-SOLICITATION
13.1 Each PARTY undertakes to the other PARTY that,
during the term of this AGREEMENT and for the period of twelve (12) months
after termination of this AGREEMENT, each PARTY shall not without the prior
written consent of the other PARTY:
a) make any offer of employment or enter into any discussion
or negotiations with a view to making any offer of employment to any person
employed by the other PARTY at any time during the term of this AGREEMENT (a
"RELEVANT EMPLOYEE"); or
b) solicit or attempt to solicit services from any RELEVANT
EMPLOYEE on their own account or entice or attempt to entice any RELEVANT
EMPLOYEE away from the other PARTY.
13.2 Neither PARTY shall be deemed to be in breach
of Section 13.1 to the extent that the relevant act occurs in
response to a bona fide general advertisement or other unsolicited
communication (during the term of this AGREEMENT or in the period of twelve
(12) months after termination of this AGREEMENT).
13.3 In the event that a RELEVANT EMPLOYEE is employed
by the other PARTY in breach of this Section, the breaching PARTY shall pay to
the other PARTY a sum equivalent to the greater of: (i) the RELEVANT EMPLOYEE's
salary for his first twelve (12) months' work for the breaching PARTY or (ii)
the RELEVANT EMPLOYEE's salary with the non-breaching PARTY for the twelve (12)
months preceding his employment by the breaching PARTY. The PARTIES agree
that this sum, paid by way of liquidated damages, would represent a fair
estimate of the cost of recruiting a suitable replacement for that RELEVANT
SECTION 14. TERMINATION
14.1 Without prejudice to any other rights or
remedies, either PARTY may, by written notice to the other, terminate this
AGREEMENT (in whole or in part) with immediate effect if:
a) the other PARTY commits a material breach of this
AGREEMENT which is incapable of remedy;
b) the other PARTY commits a material breach of this
AGREEMENT which is capable of remedy and fails to remedy such material breach
within twenty (20) BUSINESS DAYs after receiving written notice requiring it to
remedy that material breach;
c) the other PARTY suspends, or threatens to suspend payment
of its debts or is deemed unable to pay its debts;
d) the other PARTY suspends or ceases, or threatens to
suspend or cease, to carry on all or a substantial part of its business;
e) the voluntary or involuntary insolvency of, or the
institution of proceedings by or against, the other PARTY under any federal or
state bankruptcy or insolvency law that is not dismissed within thirty (30)
(f) an assignment by the other PARTY for the benefit of all
or substantially all of its creditors;
g) a receiver, administrative receiver, administrator or any
similar officer is appointed in respect of the other PARTY, or any step is
taken towards the appointment of any such officer;
h) the other PARTY commences negotiations in relation to, or
enters into, any arrangement, compromise or composition with its creditors or
any class of them (with or without first having sought or obtained a
i) any event occurs, or proceeding is taken, with respect to
the other PARTY in any jurisdiction to which it is subject that has an effect
equivalent or similar to any of the events mentioned in Sections
14.2 RXS may terminate this AGREEMENT (in whole or in
part) upon written notice to PARTNER with effect from the date specified in
such notice if PARTNER:
a) undergoes a change of control where the entity acquiring
control is a competitor of RXS (as determined by RXS in its sole and absolute
b) challenges or disputes the validity of any of RXS's
INTELLECTUAL PROPERTY RIGHTS; or
c) purports to assign any of its rights or obligations under
this AGREEMENT save as in accordance with Section 20 (Assignment and
SECTION 15. CONSEQUENCES OF TERMINATION
15.1 All rights and obligations of the PARTIES shall
cease to have effect immediately on termination of this AGREEMENT, except that
termination shall not affect:
a) the accrued rights and obligations to the PARTIES at the
date of termination;
b) the right to claim damages for losses whenever they occur
provided that they arise out of an event occurring on or before termination of
this AGREEMENT; and
c) the accrued existence and the validity of the rights and
obligations of the PARTIES and any provisions of this AGREEMENT necessary for
the interpretation or enforcement of this AGREEMENT.
15.2 On termination or expiration of this AGREEMENT
for any reason:
a) all licenses granted by RXS to PARTNER under this
AGREEMENT shall terminate;
b) PARTNER shall at its own expense within thirty (30) days
return to RXS or otherwise dispose of in accordance with the directions of RXS
all copies of the APPLICATION and all documentation of any nature whatsoever
relating to the APPLICATION in its possession or control; and
c) certify in writing to RXS that PARTNER has taken the
actions set forth in Section 15.2(b).
SECTION 16. FORCE MAJEURE
Neither PARTY shall be deemed to be in breach of this
AGREEMENT, nor otherwise liable to the other, by reason of any delay in
performance or non-performance of any of its obligations under this AGREEMENT
to the extent that, and for so long as, such delay or non-performance is due to
a FORCE MAJEURE EVENT.
SECTION 17. LIMITATION OF LIABILITY
17.1 Nothing in this AGREEMENT excludes the liability
of either PARTY:
a) for death or personal injury caused by its negligence;
b) for fraud or fraudulent misrepresentation; or
c) for any other matter to the extent that such liability
may not by applicable law be limited or excluded.
17.2 Subject to Section 17.1, RXS shall not be
liable, whether in tort (including for negligence or breach of statutory duty),
contract, misrepresentation, restitution or otherwise for:
a) loss of profits (whether direct or indirect), loss of
business, anticipated savings or similar losses;
b) damage to reputation or goodwill;
c) loss or corruption of data or information; or
d) any special, indirect or consequential loss or damage.
17.3 Except for the liabilities accepted
under Section 17.1, RXS's aggregate liability for all and any events
arising in any YEAR of this AGREEMENT shall be limited to an amount equal to
the amount paid by RXS to PARTNER under this AGREEMENT in respect of the
previous twelve (12) months.
SECTION 18. ELECTRONIC COMMUNICATIONS AND NOTICES
18.1 The PARTIES acknowledge that communications
between them will often involve electronic means. For contractual purposes, the
PARTIES hereby consent to receive communications from each other in an
electronic form and agree that all terms and conditions, agreements, notices,
disclosures, and other communications that either PARTY provides to the other
electronically shall satisfy any legal requirement that such communications
would satisfy if it were in writing and signed by both PARTIES. The foregoing
does not affect any PARTY's statutory rights.
18.2 Any notice to be given to a PARTY under this
AGREEMENT shall be in writing (which includes email) signed or sent by or on
behalf of the PARTY giving it, and shall be deemed effectively
given: (i) upon personal delivery to the PARTY to be notified;
(ii) when sent by confirmed electronic mail or facsimile if sent during
normal business hours of the recipient; if not, then on the next business day;
or (iii) two (2) days after deposit with a national or internationally
recognized overnight courier, specifying guaranteed next or second day
delivery, with written verification of receipt. All communications shall
be sent to the respective PARTIES at the addresses set forth in Schedule
1 (Commercial Terms) hereto (or at such other addresses as shall be
specified by notice given in accordance with this Section.
SECTION 19. RELATIONSHIP OF THE PARTIES
The PARTIES are independent contractors. Nothing in this
AGREEMENT (including, without limitation, any inference that may arise from the
nomenclature of referring to a PARTY as a "PARTNER") is intended to,
or shall operate to, create a joint venture, partnership, franchise, or agency
relationship between the PARTIES. Neither PARTY shall have authority to
act in the name of or on behalf of the other, or to enter into any commitment
or make any representation or warranty or otherwise bind the other in any way.
SECTION 20. ASSIGNMENT AND SUBCONTRACTING
20.1 PARTNER may not assign, transfer, charge or
otherwise encumber, declare a trust over, or deal with in any other manner this
AGREEMENT or any right, benefit or interest under it, or subcontract any of its
obligations under it, without the prior written consent of RXS.
20.2 RXS may at any time assign, transfer, charge or
otherwise encumber, declare a trust over, or deal with in any other manner this
AGREEMENT or any right, benefit or interest under it, or subcontract any of its
obligations under it.
SECTION 21. CUMULATIVE REMEDIES
Save as expressly provided in this AGREEMENT, the rights and
remedies provided under this AGREEMENT are in addition to, and not exclusive
of, any rights or remedies provided by law.
SECTION 22. EXCLUSION OF THIRD PARTY RIGHTS
Unless expressly provided in this AGREEMENT, no term of this
AGREEMENT is enforceable by any person who is not a PARTY to it.
SECTION 23. SEVERENCE
23.1 If any court or competent authority finds that
any provision of this AGREEMENT (or part of any provision) is invalid, illegal
or unenforceable, that provision (or part) shall, to the extent required, be
deemed to be deleted, and the validity and enforceability of the other
provisions of this AGREEMENT shall not be affected.
23.2 If any invalid, unenforceable or illegal
provision of this AGREEMENT would be valid, enforceable and legal if some part
of it were deleted, the PARTIES shall negotiate in good faith to amend such
provision such that, as amended, it is legal, valid and enforceable, and, to
the greatest extent possible, achieves the PARTIES' original commercial
SECTION 24. AMENDMENT
No purported amendment of this AGREEMENT shall be valid
unless it is in writing (which includes by email or other electronic means) and
signed or sent by or on behalf of each PARTY. The PARTIES acknowledge and
agree that this AGREEMENT will be amended from time to time to reflect legal
developments, changes in the business relationship between the PARTIES, and/or
other matters. PARTNER hereby authorizes RXS to send amendments to this
AGREEMENT to PARTNER by electronic means, and PARTNER hereby authorizes RXS to
rely on PARTNER's acceptance of such amendments by electronic means as if such
acceptance had been delivered in writing and signed by both PARTIES. The
foregoing does not affect any PARTY's statutory rights.
SECTION 25. WAIVER
No failure or delay by a PARTY to enforce or exercise any
right or remedy under this AGREEMENT or by law shall be deemed to be a waiver
of that or any other right or remedy, nor shall it operate so as to bar the
enforcement or exercise of that or any other right or remedy at any time
subsequently. Any waiver of any breach of this AGREEMENT shall not be
deemed to be a waiver of any subsequent breach.
SECTION 26. ENTIRE AGREEMENT
26.1 This AGREEMENT constitutes the entire AGREEMENT
and understanding of the PARTIES with respect to the subject matter of this
AGREEMENT and supersedes any prior agreements, representations, understandings
or arrangements between the PARTIES (oral or written) in relation to such
subject matter. Each PARTY acknowledges that:
a) upon entering into this AGREEMENT, it does not rely, and
has not relied, upon any representation (whether negligent or innocent),
statement or warranty made or agreed to by any person (whether a PARTY to this
AGREEMENT or not) except those expressly set out in this AGREEMENT; and
b) the only remedy available in respect of any
misrepresentation or untrue statement made to it shall be a claim for breach of
contract under this AGREEMENT.
26.2 Nothing in this Section shall limit or exclude
any liability for fraud.
SECTION 27. FURTHER ASSURANCE
At its own expense, each PARTY shall, and shall use
reasonable endeavors to procure that any necessary third party shall, promptly
execute all such documents and do all such other acts as are necessary to give
full effect to this AGREEMENT.
SECTION 28. GOVERNING LAW AND JURISDICTION
28.1 This AGREEMENT was formed in Alpharetta, Georgia,
USA. Any dispute or claim (whether contractual or non-contractual)
arising out of or in connection with it, its subject matter or formation shall
be governed by and construed by the laws of the State of Georgia, USA, without
regard to the conflicts of law provisions thereof. The United Nations
Convention on Contracts for the International Sale of Goods does not apply to
28.2 Each PARTY irrevocably agrees that the state
courts residing in Fulton County, the State of Georgia, USA, and the United
States District Court for the Northern District of the State of Georgia, USA,
shall have exclusive jurisdiction to settle any dispute or claim (whether
contractual or non-contractual) arising out of or in connection with this
AGREEMENT, its subject matter or formation, and that each PARTY hereby submits
to the personal jurisdiction of the state and federal courts located in the
State of Georgia, USA.
28.3 Except as otherwise provided within this
AGREEMENT, each PARTY shall pay its own legal, accounting, out-of-pocket and
other expenses incident to this AGREEMENT and to any action taken by such PARTY
in preparation for performing its obligations under this AGREEMENT.
SECTION 29. SURVIVAL
Section 3 (Representations and
Warranties), Section 10 (Intellectual Property Rights, Section
11 (Indemnification), Section 17 (Limitation of Liability) and
this Section 29 (Survival) will survive any expiration or termination
of this AGREEMENT for any reason.