Referral Partner Agreement

This Partner Agreement, consisting of this Cover Page and the attached Business Terms (collectively, this “Agreement”), is made and entered into by and between Primaseller and Partner (each, as defined below). The Agreement shall become binding once Partner signs the Agreement in the manner provided by Primaseller with Effective Date as today. Primaseller and Partner are sometimes referred to as a "Party", and together as the "Parties".

Primaseller: Partner:
“Primaseller” means Primaseller Inc., a U.S., State of Delaware company “Partner” or “You” means the person or company (including Company Name and other information) detailed in the Form submitted to Primaseller
Primaseller Headquarters and Notice Address: Partner Information:
2035, Sunset lake Road, Suite B-2
Newark, Delaware 19702
USA
Phone: +1-424- 3325559

For legal notices, provide copies to:
Primaseller, Inc. – Legal Department;
legal@Primaseller.com
“Partner Information” means the information provided by Partner in the Form.
TERM: “Term” shall mean the “Initial Term” and all “Renewal Term(s)” thereafter (each, as defined in Section 4 of the Business Terms).

BUSINESS TERMS

Background

Primaseller is a registered distributor of Primaseller, a Multi-channel inventory management and order fulfillment platform and service that enables synchronized inventory and order management across channels (the “Primaseller Service”). Partner wishes to promote, market and advertise the Primaseller Service to potential Primaseller customers (“Referrals”) through its website(s) and other marketing channels, in accordance with Primaseller’s Partner Program (“Program”) detailed in this Agreement.



Agreement

  1. QUALIFIED REFERRALS, COMMISSIONS
  2. Subject to this Agreement and its terms, Primaseller hereby grants to Partner a free, non-exclusive, non-transferable and revocable license (“License”) to market and distribute the Primaseller Service to Referrals, and to use the Primaseller trademarks, logos and URLs provided by Primaseller and listed in Exhibit A (“Licensed Marks,” as may be amended by Primaseller from time to time), and associated materials, language or code for the sole purpose of promoting the Primaseller Service (collectively, “Marketing Materials”)



  3. PROGRAM COMMITMENTS
    1. The Program
    2. To participate in the Program, Partner must enter this Agreement. Primaseller may accept or reject any application at its sole discretion.

    3. Legal Agreements
    4. As part of its participation in the Program and in acting as Primaseller’s Partner, Partner hereby agrees and consents to the terms of this Agreement and the Program, the Guidelines, and any other requests and rules set by Primaseller from time to time, in its reasonable discretion, in connection with Partner’s ongoing participation in the Program and promotion of the Primaseller Service to Referrals. In all its activities under this Agreement, and specifically such activities relating to Partner’s promotion of the Primaseller Service, Partner shall cooperate with Primaseller and act in good faith. In entering this Agreement, Partner further recognizes and accepts the terms and rules set in Primaseller’s Terms and Conditions and Primaseller’s Privacy Policy (“Privacy Policy,” found here), as applicable to Primaseller’s provision of the Primaseller Service to Referrals, and particularly regarding Partner’s adherence to the Privacy Policy in all matters involving privacy of Referrals’ information.

    5. Promotion
    6. Referral Activities: Partner agrees to engage in continued, active promotion of the Primaseller Service in various marketing channels using the Licensed Marks and Marketing Materials, and to do so in compliance with the terms of this Agreement.

    7. Prohibited Activities
    8. Partner agrees not to associate Marketing Materials with content that is unlawful in any manner, or which is otherwise harmful, threatening, defamatory, obscene, offensive, harassing, sexually explicit, violent, discriminatory, or otherwise objectionable in Primaseller’s sole discretion. Partner agrees not to send unsolicited electronic messages to multiple unrelated recipients (“Spamming”) in promoting the Primaseller Service, or otherwise to engage in any other form of mass electronic communications prohibited by law in connection with activities contemplated under this Agreement.

    9. Permissible Use of Primaseller Marks.
      1. Partner expressly agrees to comply with all the terms herein (particularly Section 5.3) in using the Licensed Marks and in creating Marketing Materials.
      2. Through the Guidelines and otherwise, Primaseller shall provide specifications and other instructions from time to time as to Partner’s permissible use of the Licensed Marks in creating Marketing Materials and promoting the Primaseller Service. Partner further agrees to comply with all such specifications and instructions.
      3. Partner shall ensure that all Licensed Marks appearing on its Marketing Materials are in the form approved by Primaseller in the Guidelines or otherwise, shall not modify any Primaseller Marks or otherwise substantially modify other Marketing Materials contrary to reasonable instructions provided by Primaseller, and shall further comply with reasonable instructions from Primaseller as to the form, content and display of Marketing Materials. Upon termination of this Agreement for any reason whatsoever, or upon written request by Primaseller, the license granted herein shall expire and Partner shall immediately cease all its activities under this Agreement.
    10. Liabilities
    11. Partner shall be solely responsible for its operations in acting under this Agreement, including, without limitation, the legality of Partner’s operations and materials, created and used in connection with this Agreement. Except for a claim alleging that a Primaseller Mark violates a third party’s trademark rights, Primaseller is not responsible for the development, operation or content of Partner’s Marketing Materials and Partner agrees to defend, indemnify and hold Primaseller harmless against any and all claims, actions, causes of action, damages, or expenses (including attorney fees) relating to the development, operation, content and maintenance of Partner’s Marketing Materials.

    12. Customer Relations
    13. During and after the Term, Primaseller shall be the exclusive owner of all relations created via Partner among Primaseller and Referrals with respect to the Primaseller Service, including any and all information identifying Referrals who contract with Primaseller for the use of the Primaseller Service. The Terms and Conditions, Privacy Policy, and Primaseller’s rules and procedures for the Primaseller Service will apply to these Referrals and may be changed by Primaseller without prior notice to Partner, and Partner agrees to convey to Referrals the nature of their relations with Primaseller under the Terms and Conditions.



  4. QUALIFIED REFERRALS, COMMISSIONS
    1. “Qualified Referrals” mean Referrals
    2. (a) referred by Partner to Primaseller and who complete the sign-up procedure in accordance with the procedure described in Section 3.2 below; (b) of whom Primaseller has no record in connection with the Primaseller Service, or who are not, at the time referred to Primaseller by Partner, in any contractual relations or ongoing negotiations with Primaseller in connection with the Primaseller Service; (c) who accept the Terms and Conditions and acquire within one hundred (100) days of being referred to Primaseller by Partner, at a Referral’s own discretion and without receiving any monetary or other incentive from Partner, at least monthly subscriptions of any of the Primaseller Plans (each, as described in the Site at https://www.primaseller.com/pricing); and (d) who are not rejected by Primaseller, and make at least one payment to receive the Primaseller Service. All Referrals will be deemed rejected by Primaseller if they do not become a Qualified Referral within one hundred (100) days of first being submitted to Primaseller by Partner. On a case by case basis, the Parties may mutually agree in writing (email sufficing) to waive or extend the one hundred (100) day time limit for a particular Referral.

    3. Referral Procedure
    4. Each Referral shall be referred to Primaseller by Partner through an email to referrals@primaseller.com, which Partner shall provide all details and submit to Primaseller. Upon receiving each Referral Email, Primaseller shall send an email to the Referral’s email address indicated by the partner, detailing the steps to be taken towards registration to receive the Primaseller Service and become a Qualified Referral. Primaseller shall be responsible for the sales process to all Referrals, subject to the Parties’ continued good-faith cooperation in promoting the sales process to Referral.

    5. Commissions
      1. Responsibilities
      2. Primaseller shall collect all fees from Referrals for the Primaseller Service directly from Referrals (“Subscription Fees”).

      3. Referral Fees
      4. Upon a Referral becoming a Qualified Referral, Primaseller shall pay Partner referral fees in arrears at the applicable percentage of the fees listed on Exhibit B (“Referral Fee Percentage”) (excluding any discounts) payable by the Qualified Referral pursuant to their initial order under the Terms and Conditions for the first year of the associated subscription (“Referral Fees”). For initial orders that have subscription terms in excess of one (1) year, Referral Fees payable with respect to the first year shall be determined proportionately to the total Subscription Fees payable pursuant to the initial order. For clarity, Partner shall only receive Referral Fees on a Qualified Referral’s initial order and Referral Fees will accrue and be payable for, at most, one year from the date of becoming a Qualified Referral. Such Referral Fees shall become payable and be paid to Partner within thirty (30) days of the end of the calendar quarter in which Subscription Fees attributed to such Qualified Referrals are paid to Primaseller. If a Qualified Referral terminates the Service prior to one year after becoming a Qualified Referral, Partner will only receive a pro-rata portion of the Referral Fees for the year in proportion to the Subscription Fees paid by Qualified Referral to Primaseller. The Referral Fee Percentage for a Qualified Referral shall be calculated at time of payment based on projected annual revenue rate (“ARR”) of Qualified Referral Subscription Fees. ARR and the corresponding Referral Fee Percentage shall be calculated on a per Qualified Referral basis with the Referral Fee Percentage set in accordance with the ARR of the Qualified Referral. For each Qualified Referral, Referral Fees to Partner shall be capped at the amounts listed on Exhibit B for the applicable Referral Fee Percentages (“Maximum Payment”).

      5. Associated charges
      6. Partner shall be responsible for payment of all taxes, duties, governmental charges and other like charges levied on the Referral Fees, and Partner shall indemnify, defend and hold Primaseller harmless from and against any claims arising out or relating to all charges emanating from Primaseller’s payment of Referral Fees.



  5. TERM AND TERMINATION
    1. Initial Term
    2. This Agreement shall become effective as of the Effective Date and shall continue for twelve (12) months thereafter (“Initial Term”), unless Primaseller rejects Partner’s application to participate in the Program.

    3. Renewal Term
    4. Following expiration of the Initial Term, this Agreement will be automatically renewed for additional consecutive terms of twelve (12) months (each, a “Renewal Term”), unless a Party gives written notice of termination to the other Party at least thirty (30) days prior to the end of the Initial Term or any Renewal Term.

    5. Early Termination
      1. Without Cause
      2. Primaseller shall have the right to terminate this Agreement at any time for any or no reason by giving ten (10) days’ prior written notice to Partner.

      3. For Cause
      4. Either Party may terminate this Agreement at any time, effective immediately upon written notice to the other Party who has materially breached this Agreement, provided that prior to terminating this Agreement the terminating Party shall provide written notice of such material breach and thirty (30) days’ opportunity for the breaching Party to cure such breach.

      5. Effect of Termination
      6. From and following the date of termination of this Agreement Partner’s rights under this Agreement shall terminate, and Partner shall not be entitled to receive any Referral Fees or any other payments under this Agreement other than commissions or payments earned or accrued prior to termination of this Agreement.



  6. GENERAL
    1. Modification of Agreement
    2. Primaseller may modify this Agreement from time-to-time at its reasonable discretion by posting a change on the Site or notifying Partner via email. If Partner objects to any such change, Partner may terminate this Agreement for cause. Partner’s continued participation in the Program following receipt of notice about changes to this Agreement shall constitute binding acceptance of this Agreement as amended.

    3. Assignment
    4. Primaseller may assign this Agreement at any time. Partner may not assign or transfer this Agreement without Primaseller’s prior written consent, such consent not to be unreasonably withheld.

    5. Intellectual Property Rights
    6. All intellectual property rights (such as but not limited to trademarks, trade names, logos, patents, copyrights, domain names and derivative rights) in Primaseller Marks, the Primaseller Service and related content and technology around the world (“Primaseller IP Rights”) are and will remain the exclusive property of Omnichanneler Technologies Private Limited, a registered company in India and its subsidiary company Primaseller Inc, a Delaware, US registered corporation. The License granted by Primaseller to Partner under Section 1 of the Business Terms is granted solely under the terms of this Agreement and in furtherance of its objectives. Partner’s right to use the Licensed Marks is at the discretion of Primaseller and is subject to Partner’s compliance with the terms of this Agreement, Guidelines, and with all applicable laws and regulations. Partner agrees to (a) not use any Primaseller IP Rights in any manner reasonably likely to breach this Agreement; (b) not do anything contesting or impairing any Primaseller IP Rights; (c) not create or obtain any intellectual property rights (such as but not limited to trademarks, trade names, logos, patents, copyrights, domain names and derivative rights) that are substantially similar to any Primaseller IP Rights; (d) promptly notify Primaseller of any unauthorized use of any Primaseller IP Rights of which Partner has actual knowledge; and (e) always use the Licensed Marks and any other Primaseller Marks in compliance with the Guidelines. Primaseller may perform periodic reviews of any Marketing Materials presented by Partner, and shall have the exclusive authority and discretion to order the removal and/or amendment of any Marketing Materials presented by Partner.

    7. No Waiver
    8. Either Party’s failure to enforce the other Party’s strict performance of any provision of this Agreement will not constitute a waiver of the first Party’s right to subsequently enforce such provision or any other provision of this Agreement.

    9. Limited Warranty
    10. Both Parties warrant that at all times during the Term they will comply with all applicable laws, regulations, codes of practice, as well as this Agreement, the Terms and Conditions, Privacy Policy and Guidelines. During the Term and after termination of this Agreement for any reason whatsoever, Partner expressly undertakes not to do anything that might reasonably be expected to damage the business, interests or reputation of Primaseller and will not make, publish or allow to be made or published any disparaging remarks concerning Primaseller, its representatives, or the Primaseller Service.

    11. Disclaimer of Warranty
    12. Other than Primaseller’s express warranty under the previous subsection 5.5, Primaseller makes no other warranty, express or implied, of any kind and Primaseller expressly disclaims any and all warranties and conditions, including but not limited to any implied warranty of merchantability, fitness for a particular purpose, availability, security, title, and/or non-infringement of the subject matter of this Agreement.

    13. LIMITATION OF LIABILITY
    14. Neither Primaseller nor any officer, employee, director or any other representative of primaseller shall be liable towards partner or towards any third party, under or in connection with this agreement or its termination, in contract, pre-contract, tort or otherwise for (a) any economic loss (including loss of revenues, profits, contracts, business or anticipated savings) or (b) any loss of goodwill or reputation. Such losses include, without limitation, any special, indirect, incidental, statutory, punitive or consequential losses or damages as well as any losses or damages caused by interruption of operations. Notwithstanding any other circumstances or understandings surrounding any relations among the parties, Primaseller’s entire liability to partner under this agreement shall not exceed $100 u.S. For any and all claims for damages of any kind made by partner under this agreement, and by entering this agreement partner recognizes the limitations herein on Primaseller’s liability.

    15. Independent Contractors
    16. The Parties herein act on their own behalf as independent contractors. Nothing in this Agreement shall create any joint venture, agency, franchise, sales representative, employment or any other relationship between the Parties beyond the relations set out in this Agreement, and Partner is expressly precluded from acting on Primaseller’s behalf. Partner’s display of Licensed Marks under this Agreement, other content presented by Partner, or contact among Partner and third parties shall not misrepresent the relations described herein.

    17. Indemnification
    18. Partner will indemnify, defend and hold Primaseller and its subsidiaries, affiliates, officers and employees (the “Primaseller Indemnified Parties”) harmless from and against any and all costs, liabilities, losses and expenses (including but not limited to reasonable attorneys’ fees) resulting from any claim, suit, action, demand or proceeding brought by any third party against the Primaseller Indemnified Parties arising from any of the following: (a) a breach of the Agreement by Partner; (b) the negligence, gross negligence or willful misconduct of Partner or its employees, agents or contractors; or (c) a failure by Partner or its employees, agents, contractors or invitees to comply with the laws and regulations referenced hereinbefore.

    19. Confidential Information and Prohibition on Raiding
    20. Each of the Parties guarantees that all information of a confidential nature received from the other Party before, during and after the conclusion of the Agreement shall remain confidential. Information shall in any event be considered confidential if related to pricing, discounts, Referrals’ information or if designated as confidential by either of the Parties. Neither Party shall for the duration of this Agreement and for one year after termination thereof hire, employ or solicit any employee of the other Party, or have such employee work for such Party either directly or indirectly.

    21. Force Majeure
    22. A Party shall not be obliged to perform any of its obligations herein if it is prevented from doing so by a situation of force majeure. “Force majeure” events shall include events beyond the reasonable control of the Parties, including acts of God, acts of government, acts of nature, strikes or riots, as well as improper performance by Primaseller’s suppliers or defects in objects, materials or software of third parties. If a situation of force majeure lasts for more than thirty (30) days, either Party may terminate this agreement upon written notice to the other Party.

    23. Entire Agreement; Severability
    24. This Agreement represents the entire agreement among the Parties regarding the subject matter thereof and the Parties’ respective obligations and commitments herein. No other documents, or oral or written agreements among the Parties reflect in any way on the agreements laid out in this Agreement. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

    25. Anti-Bribery and Export Compliance
    26. Partner agrees not to promote, approach or submit Referrals, or use distribute, transfer, provide, sub-license, share with, or otherwise offer the Service in violation of any Laws or this Agreement, including, without limitation, the United States Foreign Corrupt Practices Act, the UK Bribery Act and similar anti-corruption statutes in all jurisdictions. Without limiting the foregoing, Partner will not knowingly directly or indirectly export, re-export, transfer, make available or release (collectively, “Export”) the Service to any destination, person, entity or end use prohibited or restricted under US law without prior US government authorization to the extent required by regulation, including without limitation, any parties listed on any of the denied parties lists or specially designated nationals lists maintained under the EAR or the Security, and the Foreign Asset Control Regulations (31 CFR 500 et seq.) administered by the US Department of Treasury, Office of Foreign Assets Control without appropriate US government authorization to the extent required by regulation. Compliance with the trade laws of other countries pertaining to the Export, import, use, or distribution of the Service to Customers and End Users is Partner’s responsibility.

    27. Non-Disparagement
    28. During the Term and for five (5) years thereafter, Partner agrees that it will not disparage Primaseller or any of its officers, directors or employees or otherwise take any action that could reasonably be expected to adversely affect Primaseller’s reputation. For purposes of this Agreement, “disparage” shall mean any negative statement, whether written or oral, about Primaseller or any its officers, directors or employees. The Parties agree and acknowledge that this non-disparagement provision is a material term of this Agreement, the absence of which would have resulted in the Primaseller refusing to enter into this Agreement.

    29. Parties’ Expenses
    30. The Parties shall each carry and pay all their respective costs, charges and expenses incurred by it in the performance of this Agreement, except as otherwise may be agreed-upon by the Parties in writing in advance.

    31. Notices
    32. All notices relating to this Agreement shall be delivered via email (with return receipt) or next-day mail to the addresses detailed in the Cover Page.

    33. Governing Law; Jurisdiction; Dispute Resolution
    34. This Agreement shall be governed by the laws of the state of Delaware, USA, without giving effect to any principles of conflicts of law. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate federal or state court located in the State of Delaware, and the Parties agree not to raise, and hereby waive, any objections or defenses based upon venue or forum non conveniens. Prior to initiating any legal action arising under or relating to this Agreement, a Party shall provide the other Party written notice of a dispute and the Parties shall actively and in good faith negotiate with a view to speedy resolution of such dispute within ten (10) business days of the receipt of such notice.



Exhibit A

PERMITTED PRIMASELLER MARKS FOR USE BY PARTNER

  1. Logos
  2. Licensed Marks to be provided to Partner by Primaseller.



Exhibit B

COMMERCIAL TERMS AND COMMISSION PERCENTAGES

  1. On Initial Paid subscription
  2. 1st year Annual Subscription Fees or Monthly Fees paid on a quarterly basis for the first year : 20%

    On Subsequent payments after first year by the customer including Top-ups, Renewals etc : 20% perpetually till the customer continues to use the Primaseller Service