Referral Program
This REFERRAL AGREEMENT (the “Agreement”) governs your participation in SumUp, Inc.’s (“SumUp”) customer referral program (“Referral Program”). This Agreement governs all aspects of the Referral Program, including, but not limited to, customer referrals provided to SumUp, any payment of referral fees, and the use of SumUp’s Qualified Referral (as defined in Section 4 below) program; any conflicting or additional terms, conditions, or obligations are of no force or effect unless agreed to in a writing signed by the parties.
This Agreement is a legally binding contract between the person/entity registering for the Referral Program and SumUp. Referrer must accept this Agreement prior to participating in the Referral Program. SumUp may amend or otherwise update this Agreement at any time in its sole discretion, provided that SumUp will notify Referrer in writing of such amendments or updates. By clicking “Register” (whether to accept this Agreement for the first time or upon SumUp’s notification of material amendments or updates), or continuing to operate under this Agreement after notice (including email) of a change of the terms, Referrer is accepting the terms of this Agreement, entering into a contract with SumUp, and are agreeing to be bound by the terms of this Agreement. Do not register, use the SumUp Qualified Referral program as set forth herein, or agree to become a referral partner of SumUp if you are unwilling or unable to be bound by this Agreement. If Referrer is entering into this Agreement on behalf of a company or other legal entity, the signatory represents and warrants that it has the authority to bind such entity to the terms and conditions of this Agreement.
The Parties Agree As Follows:
1. General Scope. Referrer shall use its best efforts to promote and solicit referrals for the sale of SumUp products and the provision of SumUp services related thereto, as directed by SumUp from time to time (“Products”) and otherwise reasonably assist and support SumUp throughout during the Term (when capitalized, having the meaning set forth in Section 11(a)) of this Agreement. In its efforts, Referrer will use the then-current names for the Products (as provided by SumUp) and will Referrer not add to, delete from or modify any sales or marketing documentation or forms provided by SumUp. SumUp reserves the right to change or modify or discontinue any of the Products at any time. SumUp may modify pricing of the Products at any time. Nothing in this Agreement shall be construed as limiting in any manner SumUp’s marketing or distribution activities or its appointment of other dealers, distributors, licensees, agents or representatives of any kind. Referrer acknowledges and agrees that SumUp is not bound to any price (or any other term) with respect to the sale of any Product until it has accepted such sale and Referrer will not represent or imply anything to the contrary to any party.
2. Eligibility. In order to participate in the Referral Program, Referrers must be (1) residents of Canada or the United States; (2) if Referrer is a natural person, at least 18 years old; if Referrer is an entity, its representative to this Agreement, such representative shall be at least 18 years old; (3) not an employee, or whose entity has a representative who is an employee, of SumUp; and (4) not prohibited from participating in the Referral Program by any applicable law, charter, bylaw, rule, regulation, contractual agreement with a third party, or otherwise not prohibited from participating.
3. Responsibilities. Referrer shall comply with good business practices and all applicable laws and regulations. During the Term hereof, Referrer shall not market, promote, sell, lease, solicit or procure orders for or otherwise represent any product or service in direct competition with any of the Products. Referrer shall (1) conduct its business in a manner that favorably reflects upon the Products and SumUp (which shall be determined by SumUp in its sole discretion); (2) disclose that it is receiving a commission for referrals in accordance with applicable advertising and marketing laws and regulations; and (3) refrain from making any false statement or misrepresentation relating to SumUp or its Products.
4. Qualified Referrals. For the purposes hereof, a “Qualified Referral” shall mean a customer or prospect: (i) that is not a current customer or prospect of SumUp or its resellers or sales agents at the time of the referral; (ii) to whom Referrer either has made a sales call or submitted a proposal within ninety (90) days prior to the referral; and (iii) that has been referred to SumUp in compliance will all of the terms of this Agreement. Approval and acceptance of any Qualified Referral or any sale of Product shall be at SumUp’s sole discretion, and SumUp may reject any such Qualified Referral or any sale for any reason. Upon identifying a potential Qualified Referral, Referrer shall notify SumUp of the potential Qualified Referral by (i) navigating to the URL provided by SumUp to the Referrer’s email address specified below, and accurately and completely submitting the requested information related to each potential Qualified Referral; or (ii) as otherwise specified by SumUp, (the “Referral Notice”). SumUp shall notify Referrer within sixty (60) days of Referral Notice if the referral qualifies as a Qualified Referral and whether SumUp accepts such Qualified Referral. Upon receipt of notice from SumUp that the prospective customer is an accepted Qualified Referral, the Referrer will arrange an introductory meeting between the Qualified Referral and SumUp as soon as practical. In the event SumUp fails to respond within sixty (60) days, the referral shall be deemed to have been rejected by SumUp without prejudice, and the parties may still agree to treat a referral as a Qualified Referral upon mutual agreement in writing (email being sufficient) at any time.
5. Fee. For each Qualified Referral that executes a definitive agreement with SumUp to purchase a Product within six (6) months of completion of the Referral Notice (each a “Converted Referral”), SumUp shall pay the Referrer a one-time payment “Commission” as follows: (a) if Referrer has, in accordance with this Agreement, referred nineteen (19) or less Locations (as defined in this Section below) that continue to have current subscriptions with SumUp, three hundred US dollars ($300) per Location; (b) upon Referrer’s twentieth (20th) Location and for every Location(s) thereafter, provided that at least nineteen (19) Locations referred by Referrer have active subscriptions with SumUp at the time of the Converted Referral, five hundred US dollars ($500) per Location. For the purposes of this Agreement, a “Location” means each separate, permanent address of a Converted Referral for which such Converted Referral has purchased a subscription to the Products from SumUp. SumUp will pay Referrer Commissions its one-time referral fee for each Converted Referral within thirty (30) days of the end of the month after SumUp is paid by each Location. For the avoidance of doubt, no Commissions shall be paid for Converted Referrals for which SumUp receives no payment or other compensation (with non-monetary compensation only eligible in SumUp’s sole discretion). SumUp may change the Commission rate or structure at any time upon written notice (email shall suffice) to Referrer.
6. Taxes. The Commission is inclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees or charges imposed by a government authority (“Taxes”). Referrer agrees and acknowledges that it is responsible for the report and remitting of all applicable Taxes that arise from the Commission. Notwithstanding the foregoing, SumUp may withhold from the Commission any amounts required to be withheld by the appropriate government authority, provided that SumUp remits such amounts to the appropriate government authority on behalf of the Referrer and supplies Referrer with evidence of such payment. The Referrer shall provide SumUp with a valid registration number if registered for the purposes of Part IX of the Excise Tax Act (Canada).
7. Trademarks, Trade Names and Other Designations. Subject to the terms of this Agreement, SumUp grants Referrer the a revocable, non-exclusive, non-assignable, non-transferrable, and non-sublicensable license to use and display the SumUp trademarks, trade names and other designations (“Marks”) as they may appear with respect to the Products solely for the purposes set forth in this Agreement. All such use of the Marks shall be in accordance with the SumUp Mark usage guidelines provided to Referrer from time to time (including by email or posted to SumUp’s website) and will enure to the benefit of SumUp. Referrer undertakes and agrees to reproduce faithfully all Marks and proprietary notices, slogans, designs and distinct advertising as may appear on any documentation or other material with respect to Product. Notwithstanding the foregoing, any such use or proposed use of the Marks shall be first presented to SumUp for approval not less than ten (10) business days prior to the intended date of use, and shall be subject to SumUp’s prior approval which may be revoked at any time. Referrer will not use, register or take other action with respect to any Mark anywhere in the world, except to the extent authorized in advance writing by SumUp. Other than as expressly and unambiguously provided in this Agreement, Referrer shall not have any right to use the Marks.
8. Warranty Disclaimer. NEITHER SUMUP NOR ITS AFFILIATES, SUPPLIERS, OR LICENSORS MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS OR REPRESENTATIONS WITH RESPECT TO THE PRODUCTS OR THE SUBJECT MATTER OF THIS AGREEMENT AND SPECIFICALLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. REFERRER SHALL MAKE NO REPRESENTATION, GUARANTEE, WARRANTY OR CONDITION CONCERNING THE PRODUCT EXCEPT AS EXPRESSLY AUTHORIZED IN ADVANCE BY SUMUP IN WRITING.
9. Indemnity. Referrer shall indemnify, defend and hold SumUp harmless against any and all third-party proceedings, causes of action, suits, damages, losses, liability, costs and expenses (including reasonable legal fees) whatsoever that may arise, either directly or indirectly, in connection with any breach by Referrer of this Agreement, or any misuse, unauthorized use or violation of the Marks.
10. Relationship of Parties. The parties hereto expressly understand and agree that each party is an independent contractor in the performance of each and every part of this Agreement. Referrer shall be solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of Referrer’s activities, or those of its employees or agents, in the performance of this Agreement. Referrer does not have the authority, right or ability to bind or commit SumUp in any way (including, without limitation, by agreeing to sales of Products) and will not attempt to do so or imply that it may do so. Referrer will indemnify SumUp from any and all claims, liabilities, damages, debts, settlements, costs, attorneys’ fees, expenses, and liabilities of any type whatsoever that may arise on account of Referrer’s activities, or those of its employees or agents, including without limitation, providing unauthorized representations or warranties to its customers or breaching any term, representation or warranty of this Agreement.
11. Termination.
a. This Agreement shall commence on the date of Referrer’s acceptance of this Agreement (“Effective Date”) and continue for a period of one (1) year (“Term”). Unless terminated earlier as provided herein, this Agreement shall automatically renew on each anniversary of the Effective Date for period of one (1) year. Either party may terminate this Agreement at any time, with or without cause, provided that in the event Referrer intends to terminate this Agreement, it provides SumUp at least thirty (30) days’ advance written notice (email being sufficient). For avoidance of doubt, SumUp may terminate this Agreement with or without cause at any time with immediate effect. Any such termination will not relieve either party of a breach of this Agreement during the Term.
b. Neither party shall incur any liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by the other party arising from or incident to any termination of this Agreement which complies with the terms of the Agreement whether or not the terminating party is aware of any such damage, loss or expenses.
c. Upon termination or expiration of this Agreement for any reason whatsoever, Referrer (i) shall immediately discontinue any use of the name, logotype, Marks, slogans, or any other reference of or to SumUp, (ii) shall immediately discontinue all representations or statements from which it might be inferred that any relationship exists between the parties, (iii) will cease to promote, solicit orders for or procure orders for the Product(s), (iv) will immediately return to SumUp all Proprietary Information (as defined in Section 12 below) and any other information or materials of SumUp in its possession, custody or control in whatever form held (including copies or embodiments thereof relating thereto). Notwithstanding the foregoing, Sections 5 through 12, 13 and 15 and any rights to payments that accrued prior to the Term’s termination shall survive termination or other expiration of this Agreement.
12. Proprietary Rights. The Referrer acknowledges that, in the course of performing its duties under this Agreement, it may obtain business, technical or financial information relating to SumUp, or other information marked “confidential” by SumUp, or other information from SumUp that a reasonable person would consider to be non-public, confidential and/or proprietary to SumUp (collectively, “Proprietary Information”). The Referrer and its employees and agents who are on a “need to know basis” shall, at all times, both during the Term of this Agreement and after its termination, keep in trust and confidence all such Proprietary Information, and shall not use such Proprietary Information other than in the course of its duties as expressly provided in this Agreement; nor shall the Referrer disclose any such Proprietary Information to any employee or agent who is not on a “need to know” basis and is bound by confidentiality obligations no less than set forth in this Agreement, or to any other person without SumUp’s prior written consent. The Referrer shall not be bound by this Section with respect to information it can document has entered or later enters the public domain as a result of no act or omission of the Referrer, or is lawfully received by the Referrer from third parties without restriction and without breach of any duty of nondisclosure by any such third party. Referrer acknowledges and agrees that SumUp owns all right, title and interest in and to the Products and all related Proprietary Information, documentation, sales and marketing materials, and all Marks, as well as all intellectual property rights related to the foregoing. Referrer shall be primarily responsible for any breach of this Section 12 by any employee or agent.
13. Liability Limitation. NEITHER SUMUP NOR ITS AFFILIATES, SUPPLIERS, OR LICENSORS WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR (II) FOR ANY AMOUNT IN EXCESS OF THE AGGREGATE AMOUNT OF FEES PAID TO REFERRER BY SUMUP IN THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE.
14. SMS Messaging. By providing SumUp with Referrer’s mobile phone number(s) on, before, or after execution of this Agreement, Referrer is expressly opting-in to receive SMS and text messages from SumUp relating to the parties’ activities under this Agreement and otherwise in accordance with applicable laws, including for SumUp’s marketing purposes. Referrer acknowledges that messaging and data rates may apply depending on Referrers mobile phone service provider and that Referrer is solely responsible for paying for any such SMS and text messaging fees. Referrer may opt-out of receiving SMS and text messages at any time by replying ‘STOP’ to any SMS or text message sent by SumUp. SumUp will not sell Referrer’s information without Referrer’s consent.
15.Miscellaneous. Referrer may not assign this Agreement nor any right or obligation herein without the prior written consent of SumUp and any purported transfer or assignment will be void. SumUp may assign this Agreement without consent to any successor to all or substantially all of its assets or business. Except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of the permitted successors and assigns of the parties. If any provision of this Agreement is held to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Except as otherwise expressly provided herein, any provision of this Agreement may be amended or waived only with the written consent of both parties. This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the laws of the State of Colorado, without regard to the conflict of laws provisions of such State. Any legal suit, action, or proceeding arising out of or relating to this Agreement must be instituted in the state or federal courts of the United States of America or the courts of the State of Colorado, in each case located in the City of Boulder and County of Boulder, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. This Agreement is the sole agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements or discussions between the parties with respect thereto. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together constitutes one and the same agreement. Delivery of an executed counterpart of this Agreement electronically or by facsimile shall be effective as delivery of an original executed counterpart of this Agreement.
SumUp Inc.
2000 Central Ave, Suite 100
Boulder, CO 80301, USA
www.sumup.com