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These terms and conditions create a contract between you and Kount (the “Agreement”). Please read the Agreement carefully. To confirm your understanding and acceptance of the Agreement, click “Agree.” This Agreement is made and entered into on the date you click “Agree” (the “Effective Date”). You and Kount may be referred to as a “Party” or collectively as the “Parties”.
Kount provides clients with electronic commerce services including, but not limited to, risk control analysis and fraud screening and you desire to receive a Referral Fee in exchange for referring clients to Kount for the provision of risk control and fraud screening services. In consideration of the foregoing and the mutual covenants and promises set forth herein, and for other good and valuable consideration, the receipt of which the parties hereby acknowledge, the Parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
A. Card Association. Card Association shall mean, without limitation, MasterCard, Visa, PayPal, Bill Me Later, or any other payment card issuer or alternative payments entity for which Kount conducts fraud screening services.
B. Gross Revenue. Gross Revenue shall mean that amount received by Kount in compensation from a Referred Client and recognized by Kount’s finance department as applicable to a particular quarter. Prepaid products shall be recognized as applicable to a quarter pro rata to that portion of the prepaid bucket consumed by the Referred Client in a particular quarter. Gross Revenue shall exclude any discounts, credits, or past due amounts owed to Kount by that Referred Client.
C. Prospect. Prospect shall mean any potential Kount client: (i) with whom a Kount sales representative has directly engaged in discussions about the Kount services within the six-month period preceding the Referral Date; or (ii) has been referred by another third party to Kount within the six-month period preceding the Referral Date. Kount shall provide evidence of any such communication upon your request.
D. Referral. Referral shall have the meaning set out in Section 6(A).
E. Referral Date. Referral Date shall have the meaning set out in Section 6(B)(i).
F. Referral Fee. Referral Fee shall have the meaning set out in Section 6(C).
G. Referred Client. Referred Client shall have the meaning set out in Section 6(B)(iii).
2. Press Releases and Publicity. Either Party may issue a press release announcing the existence of this Agreement, subject to the other Party’s prior approval, not to be unreasonably withheld. The Parties may issue a joint press release announcing the existence of this Agreement upon mutual agreement by the Parties. Neither Party shall publicly disclose the specific terms of this Agreement without the other Party’s prior written approval at its sole discretion. Except as set forth in this Agreement, neither Party shall use any trade name, trademark, service mark, or any other information which identifies the other Party in the Party’s sales, marketing, or publicity activities, including, but not limited to, interviews with representatives of any written publication, television station or network, or radio station or network, without the prior consent of the other Party.
3. Term. The term of this Agreement shall commence on the Effective Date and shall continue for a period of three (3) years, after which the Agreement shall automatically renew for successive one-year periods, unless otherwise terminated by the Parties. Either Party may terminate this Agreement upon thirty (30) days written notice.
A. Confidential Information. “Confidential Information” shall mean information and data belonging to or relating to the business of a Party which is proprietary to the other Party, including but not limited to trade secrets, business and technical information, methods, processes, innovations, discoveries, methodologies, patents, pricing and developments, or such information that is marked as “Confidential Information.” The Party which receives any of such other Party’s Confidential Information under this Agreement (the “Receiving Party”) shall maintain the Confidential Information in confidence, using at least the same degree of care that it uses in protecting its own confidential information, but no less than reasonable care. The Receiving Party shall use the Confidential Information only for the purpose of performing its obligations and/or exercising its rights under this Agreement unless otherwise agreed in writing between the Parties. The Receiving Party shall only disclose the other Party’s Confidential Information to those employees and consultants on a need to know basis to accomplish the purposes and intent of this Agreement and shall ensure that each such employee and consultant complies with the terms of this Section.
B. Exceptions. Receiving Party shall not have any obligation with respect to any portion of Confidential Information of the other Party which: (i) was known to the Receiving Party prior to receipt from the other Party; (ii) is lawfully obtained by the Receiving Party from a third party under no obligation of confidentiality; (iii) is independently developed by the Receiving Party without use of the Confidential Information of the other Party; (iv) is or becomes publicly available other than as a result of any act or failure to act of the Receiving Party or; (v) is disclosed pursuant to subpoena or other legal process, provided that the Disclosing Party is given prior notice of such disclosure (unless such disclosure is prohibited by such subpoena or legal process) and an opportunity to seek a protective order.
C. Post Termination Rights. Within thirty (30) days of the termination or expiration of this Agreement, each party will return all Confidential Information of the other party in its possession at the time of expiration or termination and will not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement.
5. Service Marks. Subject to the terms of this Agreement, Kount hereby grants you a non-exclusive, royalty-free, worldwide license to use Kount’s proprietary trademarks and service marks for the sole purposes set forth in this Agreement. You agree that it will use any such marks of Kount or its affiliates only in the manner authorized in writing by Kount and will display such marks as reasonably directed by Kount. You agree to use the proprietary trademarks and service marks of the Card Associations, and only in the manner authorized by such Card Associations respectively. Subject to the terms of this Agreement, you hereby grant Kount a non-exclusive, royalty-free, worldwide license to use your proprietary trademarks and service marks for the sole purposes set forth in this Agreement. Kount agrees that it will use any such marks only in the manner authorized by you. Except for those limited rights granted pursuant to the terms of this Agreement, nothing in this Agreement shall serve to transfer to either Party any intellectual property rights owned or claimed by the other Party.
6. Referrals and Fees.
A. Referrals. You may, at your own expense, refer clients to Kount for purposes of entering into business relationships with Kount by introducing Kount in person or in writing to that client (the “Referral”). Kount may choose to enter a business relationship with any client at its sole discretion. You shall have no authority to bind Kount in any agreement with a client or otherwise, and you acknowledge that Kount’s relationships with clients shall be governed solely by a Kount Services Agreement. Kount may terminate any Kount Services Agreement at its sole discretion. Kount may terminate this Agreement immediately at any time in its sole discretion if you do not provide one (1) Referred Client to Kount per quarter.
B. Referred Client. A client which is referred to Kount by you shall qualify as a referred client if and only if it meets the following requirements (a “Referred Client”) (unless otherwise agreed by the Parties in writing):
(i) the client is not engaged in a Kount Services Agreement on the date that you refer Kount to a contact within a recommended client’s organization (“Referral Date”); and
(ii) the client enters into a Kount Services Agreement within one year of the Referral Date; and
(iii) the client is not a Prospect of Kount’s on the Referral Date.
C. Referral Fee. Kount will pay you a referral fee equal to 15% of Gross Revenue for each Referred Client’s risk inquiry transaction fees for a period of one year from the Certification Date of the Kount Services Agreement with any such Referred Client (“Referral Fee”). “Certification Date” means the date indicated on the written attestation of certification provided by a Kount engineer to the Referred Client upon the successful testing of the Client’s data collector and risk inquiry implementations. Such Referral Fees shall be calculated and paid by Kount quarterly, on or before the 25th day of the month following the applicable quarter.
7. Customer Access and Marketing. You agree to work with Kount and Kount’s agents, including any designated third-party marketing organizations, as reasonably requested by Kount or its agents and use commercially reasonable efforts to market Kount’s services to your Customers and potential customers. You shall represent Kount’s service offering terms as represented in materials provided to you by Kount or otherwise approved by Kount. You are responsible for all your own marketing costs, travel, and related expenses when promoting or referring Referred Client’s to Kount.
8. Non-Competition; Non-Exclusivity. This Agreement is non-exclusive and shall not prevent either Party from entering contractual relationships with any third party. However, you explicitly agree that neither you nor any of its affiliates shall by itself or in conjunction with others, directly or indirectly, during the term of this Agreement (including any renewal term) and for a period ending one year from the date of termination or expiration of this Agreement, knowingly solicit, target, sell, or offer any services substantially similar to the Kount fraud screening services to any existing Kount customer.
9. Indemnification; Warranty; Limitation of Liability.
A. Indemnification. Each Party shall indemnify, defend and hold harmless, the other Party, its officers, employees, agents and consultants from and against any and all liabilities, losses, damages, claims, causes of action and expenses (including reasonable attorneys’ fees) brought by a third party, to the extent that they are by (i) the negligence or willful misconduct by the other Party, its agents or employees; or (ii) the other Party’s breach of any material representation, warranty, or obligation under this Agreement.
B. Warranty; Disclaimer of Warranties. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT AND THE SCHEDULES ATTACHED HERETO, KOUNT MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, OF ANY KIND. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, KOUNT EXPRESSLY DISCLAIMS, AND YOU EXPRESSLY WAIVE, ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO DESCRIPTIONS OR SPECIFICATIONS, WHETHER OR NOT INCORPORATED INTO THIS AGREEMENT, SHALL CONSTITUTE WARRANTIES OF ANY KIND.
C. Damages. Notwithstanding anything in this Agreement or the Schedules to the contrary, the cumulative aggregate liability of either Party for all losses, claims, suits, controversies, breaches or damages for any cause whatsoever (including but not limited to those arising out of or related to this Agreement) and regardless of the form of action or legal theory shall be limited to the total fees paid or owed by Kount to you under this Agreement during the six month period preceding the event giving rise to the liability. IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL DAMAGES OR THE LIKE, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU UNDERSTAND AND ACKNOWLEDGE THAT KOUNT AND YOU MAY BE USING A THIRD-PARTY VENDOR TO PERFORM CERTAIN SERVICES OR SUPPLY CERTAIN GOODS NECESSARY TO THE PARTIES PERFORMANCE UNDER THIS AGREEMENT. NEITHER PARTY SHALL BE LIABLE FOR ANY DAMAGES SUFFERED BY EITHER PARTY OR ANY THIRD PARTIES RELATED TO SUCH SERVICES OR PRODUCTS.
A. Survival. The following provisions shall survive termination of this Agreement: Section 4, Confidentiality; Section 6(d), Referral Fee; and Section 9, Indemnification, Warranty, Limitation of Liability.
B. Entire Agreement. This Agreement represents the entire understanding between the Parties and may be amended only by an instrument in writing signed by both Parties hereto.
C. No Agency. Nothing in this Agreement shall be deemed to constitute a partnership, association or joint venture between the Parties hereto. Neither Party shall be deemed an agent of the other Party for any purpose whatsoever.
D. No Waiver. The failure of either Party hereto to exercise any right provided for by this Agreement shall not constitute or be deemed to constitute a waiver of that or any other right provided for by this Agreement or otherwise.
E. Assignment. You may not assign this Agreement or any obligation, right, or interest hereunder without the prior written consent of Kount, which consent shall not be unreasonably withheld.
F. Governing Law. The interpretation, validity, and enforcement of this Agreement, and all legal actions brought under or in connection with the subject matter of this Agreement, shall be governed by the laws of the State of Idaho. Any legal action brought under or in connection with the subject matter of this Agreement shall be brought only in the United States federal courts or applicable state courts located in Boise, Idaho. Each Party submits to the exclusive jurisdiction of these courts and agrees not to commence any legal action under or in connection with the subject matter of this Agreement in any other court or forum. Each Party waives any objection to the laying of the venue of any legal action brought under or in connection with the subject matter of this Agreement in the federal or state courts sitting in Boise, Idaho, and agrees not to plead or claim in such courts that any such action has been brought in an inconvenient forum.
G. Notice. Any notice provided under this Agreement must be in writing and shall be deemed to be delivered and received (i) if personally delivered or if delivered by email or courier service, when actually received by the Party to whom notice is sent, or (ii) if delivered by mail (whether actually received or not), at the close of business on the third business day next following the day when placed in the mail, postage prepaid, certified or registered, addressed to the appropriate party, at the address of such Party set forth below (or such other address as such Party may designate by written notice to the other Party in accordance herewith), or (iii) if delivered by next day courier who is a nationally recognized carrier, upon receipt of delivery.
H. Force Majeure. Notwithstanding any other provision of this Agreement, Kount shall not be liable for any failure, inability to perform, or delay in performance hereunder, if such failure, inability, or delay be due to acts of God, war, civil commotion, governmental action, fire, explosion, strikes, other industrial disturbances, equipment malfunction that is beyond its reasonable control, or any other cause that is beyond its reasonable control.
I. Parties In Interest; No Third-Party Beneficiaries. Except as otherwise provided in this Agreement, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective heirs, legal representatives, successors and permitted assigns of the parties to this Agreement. Nothing in this Agreement shall be deemed to confer any rights or remedies upon any person not a party to this Agreement.
J. Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term of this Agreement, such provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision never comprised a part hereof; and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance here from. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part of this Agreement a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
Last Updated: May 22, 2018