Affiliates
Affiliates
Upclick
Upclick Merchant & Affiliate Agreements.
Section A
Upclick affiliate agreement
This is a legally binding Agreement by which you (the "Affiliate") agree to refer potential customers (each a "Customer") to us ("Upclick") through the internet. Please read this Agreement carefully as it describes all of your rights and obligations in your relationship with Upclick.
Upclick is in the business of producing, marketing and promoting various online affiliate management and reseller services (the "Service") on the Internet.
Upclick grants the Affiliate the non-exclusive, non-transferable right and license to advertise, market and promote the Service in accordance with the terms and conditions hereof. All other rights and licenses not expressly granted to the Affiliate herein are reserved by Upclick.
Upclick shall provide the Services, subject to the terms hereof. Upclick can change or terminate any part of the Service, at any time and in any manner at its sole discretion and without prior notice to the Affiliate.
Upclick shall pay to Affiliate commissions (the "Commissions") at the rates set out for merchant affiliate offers by each merchant visible in the Affiliate's account through www.upclick.com (the "Site"), such as they may be from time to time. Commissions shall be paid only when the Affiliate refers a valid sale to such merchants through the Site.
The Affiliate shall use its best efforts to actively and effectively advertise, market and promote the Service.
The Affiliate shall engage only in advertising, marketing and promotional efforts which do not violate any law, and which reflect positively upon the business reputation of Upclick and merchants who resell products through Upclick. Upclick shall have the right to review and approve the manner and methods of advertising, marketing and promotion used by the Affiliate in connection with the Service. Affiliate shall send to Upclick a copy of any and all promotional material used in performing hereunder. Whether or not Upclick reviews or comments on such material shall not affect the obligations of Affiliate hereunder. Affiliate shall cease any promotional campaign that Upclick deems inappropriate.
The Affiliate shall bear all costs and expenses incurred in connection with the advertising, marketing and promotion of the Service; including without limitation, all costs directly related to marketing. UNDER NO CIRCUMSTANCES SHALL Upclick BE LIABLE HEREUNDER FOR ANY AMOUNTS OTHER THAN THE FEES.
The Affiliate shall provide a valid and public e-mail address as well as an accurate postal address (no mailboxes) for Upclick or potential merchants to contact the Affiliate.
Upclick shall pay the Commissions as per the terms hereof. No Commissions shall be paid unless Affiliate is owed at least $100 during the then current Commission payment cycle.
Upclick shall have the right to withhold any and all Commissions if Affiliate or any of its affiliates are in breach of this Agreement any other agreement with Upclick or any of its affiliates. To the extent that any chargebacks of transactions occur in respect of customers referred to Upclick by Affiliate, Affiliate shall be obliged to refund both the Commissions earned in respect of such transactions together with a share of the fees incurred by Upclick in respect of the chargeback which corresponds to the share of the Commissions on the transaction earned by the Affiliate. By way of example only, if Affiliate was to earn 35% on the transaction in Commissions and the fee to Upclick for the chargeback is $50, then the Affiliate shall be liable to reimburse Upclick for any Commissions received in respect of the transaction, plus $17.50, being 35% of $50.00. In the event of any inconsistency between these terms and the posted Commissions, the latter shall prevail.
Upclick shall withhold ten percent (10%) of Commissions on a rolling period of three (3) months from when they would otherwise be payable in a non-interest bearing reserve account (the "Reserve Account") which account shall be used to offset liabilities (including, but not limited to, charge backs and refunds) of the Affiliate to Upclick hereunder. In case of termination amounts that accumulate in the Reserve Account shall be paid to Affiliate within one (1) year of the termination hereof, unless this Agreement is terminated for breach in which case the Affiliate forfeits its rights in the amounts held in the Reserve Account. The Reserve Account is not insured in the event of a bankruptcy of Upclick.
The term of this Agreement shall begin as of the date on which the Affiliate has agreed to the terms hereof either through the Site or on paper and shall end one (1) year thereafter after which it shall automatically renew for additional and successive one (1) year terms until terminated pursuant to the terms hereof.
Either party may terminate this Agreement on 2 days written notice to the other party either via the Site or as provided below.
Upclick may terminate this Agreement with immediate effect if the Affiliate is in breach of the terms of this Agreement. Such breach includes, but is not limited to, situations when the Affiliate engages in advertising, marketing, distribution and promotional efforts that would impair the goodwill and business reputation of Upclick or would expose Upclick to legal liability.
Upclick may terminate this Agreement with immediate effect if the Affiliate shall become insolvent or make a bulk sale of its assets or if the Affiliate makes a general assignment for the benefit of creditors, or any proceeding or filing is instituted or made by the Affiliate seeking relief, or to adjudicate it a bankrupt or insolvent, or seeking the liquidation, winding up, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its assets or takes any action to authorize or in furtherance of any of the foregoing.
Upon any termination hereof, the Affiliate shall immediately return to Upclick any and all materials, over which Upclick has a proprietary right, that are in the Affiliate's possession and/or in the possession of the Affiliate's agents and employees. The Affiliate shall also immediately remove any hyperlinks and materials, over which Upclick has a proprietary right, from the Affiliate's web site and/or the web sites of the Affiliate's agents.
Any and all information concerning Upclick resellers, merchants, customers and other affiliates shall remain the sole and exclusive property of Upclick and may not be used or disclosed by Affiliate without the prior express written consent of Upclick.
In the event that this Agreement is terminated without default by Affiliate, Upclick shall continue to pay Commissions to Affiliate for one month after such termination after which Upclick shall not be liable for any Commissions to the Affiliate. In the event that this Agreement is terminated on account of a default by Affiliate, Upclick shall not be liable for any Commissions not already paid to the Affiliate from the time that said default occurred.
Payment of Commissions shall be accompanied by a statement that specifies the calculation of the sum to be paid to the Affiliate. Affiliate shall not be entitled to any Commissions on referrals of customers who subsequently chargeback, return or obtain a refund in respect of their purchases through Upclick. Fee statements will therefore be adjusted by Upclick from time to time to reflect overpayments, customer chargebacks and/or credits or underpayments to customers by Upclick. To the extent that Affiliate is liable to refund Commissions pursuant to this provision, Upclick shall deduct the amount of such Commissions from future Commissions payable hereunder. Upclick may also offset any liability of Affiliate to Upclick by withholding Commissions that would be otherwise payable.
Affiliate shall be granted, during the term hereof, the right to monitor the Commissions to which it is entitled, from time to time, via its online login at the Site.
In the event of any dispute as to the amount of Commissions payable, Upclick reports concerning such Commissions shall be authoritative and shall supersede any other tracking that may have been carried out by Affiliate or any third party.
The Affiliate agrees, understands and acknowledges that Upclick may enter into agreements of this type with third parties to promote the Service or a similar version thereof.
The Affiliate has not paid for the use of the trademarks, logos, copyrights, trade names or designations belonging to Upclick, and nothing contained in this Agreement shall give the Affiliate any right to, title to or interest in any of them.
The Affiliate acknowledges that Upclick owns and retains all copyrights and other proprietary rights, as well as any software supplied by Upclick, whether through the Site or otherwise. The Affiliate shall not assert any claim or interest in any trademark, trade name, copyright, service mark or logo belonging or licensed to Upclick, or do anything to adversely affect their validity or enforceability. This includes any act or assistance in any act that may infringe upon, or lead to the infringement of, any software copyright.
Without limiting the generality of the foregoing terms, the Affiliate shall not itself attempt, or assist any third party in attempting, to register any trademark, trade name or other proprietary right with any governmental agency (federal, provincial, local or otherwise) or with any other entity or authority without the express, unequivocal and unambiguous prior written consent of Upclick. The Affiliate shall not affix a trademark, logo or trade name of Upclick to any non-Upclick product. The Affiliate shall not alter, erase, deface or overprint any notice of proprietary rights on anything provided by Upclick.
The Affiliate and Upclick each agree that each may have access to, and become acquainted with, confidential information of the other. The Affiliate and Upclick each specifically agree not to misuse, misappropriate or disclose any such confidential information, directly or indirectly, to any third party.
The Affiliate warrants, represents and covenants to Upclick: (i) that it has all necessary rights, licenses, permissions and business permits, and will comply with all applicable laws, rules and regulations in connection with promoting the Service; (ii) that its practices hereunder shall not consist of use of SPAM, bulk e-mails, fax blasting for any illegal or distasteful business practices; and (iii) that it shall not make any misrepresentations concerning Upclick or any products or services sold through Upclick.
Each party shall defend, indemnify and hold harmless the other and its directors, officers, employees, agents, assigns, and successors-in-interest from and against any and all third-party liability, damages, losses, claims, demands, actions, causes of action and costs (including attorneys' fees and expenses) arising out of or resulting from (i) the indemnifying party's performance under this Agreement including, without limitation, performance, nonperformance, or defect in performance, any statement, misstatement, representation or misrepresentation made by the indemnifying party; (ii) the negligent or willful acts or omissions of the indemnifying party or the indemnifying party's agents and/or employees; and (iii) any statements, claims, representations or warranties made by the indemnifying party or the indemnifying party's agents and/or employees, relating to the Products.
To the maximum extent permitted by applicable law, each party expressly disclaims any implied warranties and conditions, including any implied warranties or conditions of merchantability, fitness for a particular purpose and non-infringement, as well as any warranties that the services provided by either party or that the operation of the services will be interruption or error free.
Notwithstanding anything to the contrary contained herein, neither party, nor its affiliates, agents or licensors, shall, under any circumstances, be liable to the other party or any party for consequential, incidental, special or exemplary damages, even if the party has been apprised of the likelihood of such damages occuring. except as required by law, in no event shall each party's liability (whether based on an action or claim in contract, tort or otherwise) to the affiliate in any way connected with or arising out of this agreement exceed the fees actually paid to the affiliate during the six (6) months prior to the event giving rise to liability.
Upclick shall use its commercially reasonable efforts to perform its obligations hereunder, however, Upclick, its affiliates, agents or licensors shall not be liable for any loss resulting from the activities of the Affiliate, nor from any erroneous statements or errors in transmission, nor for any loss resulting from any delay, interruption or failure to perform hereunder due to any circumstances beyond Upclick's reasonable control including, without limitation, acts of god, fire, explosion, earthquake, riot, terrorism, war, sabotage, accident, embargo, storms, strikes, lockouts, any interruption, failure or defects in Internet, telephone, or other interconnect services or in electronic or mechanical equipment. Upclick's obligations hereunder shall be suspended during any of the foregoing circumstances, which suspension shall not be a cause for termination of this agreement by the Affiliate.
Any notice, demand, request or other communication required or permitted to be given under this Agreement shall be in writing and delivered personally, or sent by prepaid registered mail, return receipt requested (i) to Upclick at the postal address provided therefor on the Site; (ii) to the Affiliate at the address provided therefor upon registration with the Site; or (iii) to such other address as either party may have previously indicated to the other in writing in accordance with the foregoing. Any such notice, request, demand or communication shall be deemed to have been received on the day it was delivered personally, on the fifth (5th) day following mailing, unless there is a disruption of any kind of postal service.
By acceptance of the terms hereof on-line by the Affiliate or by execution of a written acceptance of the terms hereof by the Affiliate, this Agreement together with any supplemental agreements and appendixes constitute the entire validly legally binding agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations and understandings of the parties. No waiver of any of the provisions in this Agreement shall be deemed or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
None of the terms of this Agreement shall be amended by either party unless such an amendment specifically references this Agreement and is agreed to by both parties.
None of the Affiliate or any of its successors may assign this Agreement, or any rights hereunder, directly or by operation of law, without the prior written consent of Upclick which consent may be withheld for any reason, at Upclick's sole discretion.
This Agreement and the provisions hereof shall enure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
The Affiliate shall be liable for and shall indemnify and reimburse Upclick for any and all reasonable attorneys' fees and other costs and expenses paid or incurred by Upclick in the enforcement of this Agreement, or in collecting any amounts due from the Affiliate hereunder, or resulting from any breach of any of the terms or conditions of this Agreement.
All remedies of either party hereunder are cumulative and may be exercised concurrently or separately. The exercise of any one remedy shall not be deemed to be an election of such remedy and shall not preclude the exercise of any other remedy. No failure on the part of either party to exercise and no delay in exercising any right or remedy hereunder shall operate as a waiver of such right or remedy.
If any provision of this Agreement is held invalid or unenforceable by any court of final jurisdiction, it is the intent of the parties that all other provisions of this Agreement be construed to remain fully valid, enforceable and binding on the parties.
This Agreement shall be deemed to be governed and enforced in accordance with the laws applicable in teh Province of Québec, Canada and the courts of the City and District of Montréal shall have exclusive jurisdiction over disputes arising hereunder.
References to "this Agreement" include any schedules, supplementary agreements, addendum, appendixes and amendments and any other agreements, schedules appendixes and amendments promulgated by Upclick and furnished to the Affiliate from time to time.
Section B
Upclick merchant agreement
6785719 Canada Inc. a company registered under the laws of Canada having company registration number 6785719 and registered address at 7075 Place Robert-Joncas, Suite 142, Montreal, QC, Canada, H4M 2Z2, hereinafter referred to as ("Upclick"), and
WHEREAS (1) the Wholesaler is in the business of selling certain products and services (together with related access codes) the ("Product"); (2) the Wholesaler wishes to retain Upclick to resell the Product pursuant to the terms hereof; and (3) Upclick wishes to resell the Product pursuant to the terms hereof.
NOW, THEREFORE this Agreement witnesses that in consideration of the mutual covenants by each of the parties hereto, the parties agree as follows:
"Agreement" means this Merchant Agreement;
"Application Form" means that application form available at the Site, or as may be provided by Upclick to the Wholesaler;
"Business Day" means a day other than Saturday or Sunday on which banks are normally open for business in the Country of Canada;
"Chargebacks" means all approved and settled purchases of the Product by Customers from Upclick for which the purchasing Customer used a Credit Card and for which Credit Card transactions are at any time refused, debited or charged back by the Issuers;
"Fees" means the difference between the Purchase Price and Resale Price of the Products as well as all other fees set out in the Fee Schedule;
"Confidential Information" means Upclick's programs, procedures, proprietary or other software, (including the Software and Documents (as such terms are defined below) equipment and other intellectual property including, without limitation, all information concerning systems and operations, technical specifications, pricing, this Agreement, know how, technology (including encryption technology), business plans and projections and all other business information as well as all information concerning or originating from Upclick, its Clients, suppliers or licensors;
"Credit Card" means a valid and unexpired card issued by an Issuing Institution, and bearing the symbols of Visa, MasterCard, American Express, Diner, Carte Blanche or Discover. The term also includes Debit Cards and online cheques. Upclick shall have the right to add other credit cards and forms of payment to this definition from time to time without notice;
"Customer" or "Customers" mean one or all of the Persons who have, or wish to purchase the Product from Upclick;
"Debit Card" means any device that primarily accesses a demand deposit account of the holder thereof;
"Fee Schedule" means a schedule of fees, charges and prices related to the Services that is posted on the Site, such as it may be from time to time modified by Upclick at its sole discretion without prior notification. The Fee Schedule is attached hereto as Schedule "A" hereto;
"Guarantor" unless otherwise specified in writing, the Guarantor shall be the individual representative of the Wholesaler who completed the Application Form;
"Issuers" means the financial institution issuing the Credit Cards;
"Parties" or "Party" the parties hereto or any one of them;
"Product" has the meaning ascribed thereto in the preamble hereof;
"Site" means the web site of Upclick;
"Services" means the service of reselling the Product pursuant to the terms hereof and all other Services provided by Upclick hereunder;
"Software" means all software used in connection with the supply of the Services hereunder;
"Transaction" shall mean any transactions involving transfer of ownership of or entitlement to the Product between Upclick and a Customer.
Pursuant to the terms hereof, Upclick shall offer for resale the Product to Customers (the "Offer"). Upclick shall accept payment from Customers via Credit Card, Debit Card, or other means, as it may, at its sole discretion accept from time to time. Upclick reserves the right to modify the means by which it accepts payment from Customers at its sole discretion and without prior notice.
As and when requested by Upclick, the Wholesaler shall sell the Product to Upclick at those prices set out in the Application Form (the "Purchase Price"). Wholesaler can adjust the Purchase Price at its discretion through the Site.
Upclick shall sell the Product at the prices set out in Application Form (the "Resale Price") provided that the Resale Price shall never be less than thirty percent (30%) more than the Purchase Price. Wholesaler may, at its discretion, sell the Product on CD and/or charge fees for extended download privileges; fees charged for each such feature relating to the Product shall be shared as per the terms of the Fee Schedule.
Wholesaler shall sell and supply such quantities of Product to Upclick as Upclick requests and in the manner and delay specified by Upclick. Upclick shall inform the Wholesaler of its intention to Purchase Product via an electronic or other manner of protocol that shall be established by Upclick and amended from time to time by Upclick, at its sole discretion (the "Order Protocol"). The Wholesaler shall install and maintain, at its own expense, such equipment as is reasonably necessary to operate the Order Protocol. Upclick shall not be liable to Wholesaler for any loss or destruction of any Product uploaded to the systems of Upclick or otherwise in the possession of Upclick. Without limitation, to the extent that the Product includes executable software programs, Wholesaler shall upload such programs to the Wholesaler systems through the Site. Wholesaler shall also upload to the Upclick system or supply to Upclick all necessary access codes in order to facilitate in the resale thereof by Upclick.
Upclick shall make payments (each a "Payment") of the Purchase Price amounts to the Wholesaler on regular intervals mutually agreed between the Parties. The method of payment of the Payments shall be ACH, EFT, wire transfer, cheque or as may be otherwise implemented by Upclick. Upon a termination hereof where Wholesaler is in default, Upclick may withhold any Payments not yet made in order to offset its actual or potential liabilities.
Upclick shall maintain a record of the number of Products resold by Upclick to Customers. Such records shall be the definitive evidence of all sales of Products made to Customers and shall be the basis on which all Payments hereunder are made. Upclick shall make such information available to the Wholesaler via the Site.
Upclick shall resell the Product to its Customers directly, or through agents, via the internet, telephone sales or any other means of its choosing.
In the event of a Chargeback in relation to the purchase by a Customer of any Product, Upclick shall, for each such Chargeback, deduct a fee set out in the Fee Schedule.
If a Customer returns a Product to Upclick for a refund of the Purchase Price (the "Refund"), Upclick shall, at its sole and absolute discretion, repurchase from a Customer any Product so returned and refund the Resale Price to such Customer. Either party may initiate a Refund of any Transaction. Wholesaler shall reimburse Upclick for any amounts it has received in respect of any Transaction that has been Refunded together with any fees applicable thereto as described in the Fee Schedule.
As part of the Services, Upclick shall provide support in respect of payment for Transactions only. Any and all Customer queries concerning Product shall be referred to the Wholesaler who shall address such queries in a prompt and professional manner.
As part of the Services, for the term hereof only, Upclick grants to Wholesaler a limited, non-transferable, license to use the Site and Software solely for the purpose of using the Services. Nothing in this agreement shall permit the Wholesaler to have any rights in the source code of the Software or to copy, decompile, alter or otherwise modify or transfer any rights in the Software or any other part of the Services. As part of such license Upclick shall supply the Wholesaler with a login and password. Wholesaler shall assume any and all liability for any use of such login and password, whether or not such activity was authorized by the Wholesaler.
The quantity of Products purchased by Upclick hereunder shall be established by Upclick, at its sole discretion. Upclick is under no obligation to purchase any specific quantity of the Product.
Wholesaler grants to Upclick a limited, transferable, license to use, resell and sub-license the Product pursuant to the terms hereof. Nothing in this agreement shall permit the Wholesaler to have any rights in the source code of the Product or to decompile, alter or otherwise modify the Product or any other thereof.
Wholesaler represents and warrants that the Product shall perform as described in any documentation relating thereto and shall be free from defects. If a breach of the foregoing occurs, Wholesaler shall replace, repair, and/or modify such Product without charge to Upclick and without delay. Wholesaler shall test programming materials for viruses, time bombs, back doors and other disabling or harmful devices ("Unauthorized Code") and remove any Unauthorized Code before use by Wholesaler, Upclick, or any Customer. Wholesaler represents and warrants to Upclick that no portion of the Product is subject to the intellectual property rights of any third party, including but not limited to, copyrights, patent rights, trademark rights, trade secret rights, or rights as confidential information.
Throughout the term hereof, Wholesaler and its affiliates shall themselves and shall ensure that: (a) the Product, and all related products or services, do not contain any content that is unlawful, threatening, defamatory, obscene or otherwise objectionable; (b) the Product does not consist of, promote or relate to (A) sexually explicit materials, violence, discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation or age, (B) illegal activities or (C) infringement on intellectual property rights.
The Wholesaler may also promote the Product in any manner it deems fit provided that such promotion does not violate any applicable laws and does not consist of use of bulk e-mails, fax blasting or any illegal or distasteful business practices.
Wholesaler shall be responsible for any and all support and maintenance related to the Product all of which it shall supply to Customers on reasonable terms.
Wholesaler authorises Upclick and its representatives to obtain from third parties financial, credit information and personal background relating to Wholesaler, its shareholders, directors and officers to assist Upclick's determination of whether to accept this Agreement and Upclick's continuing evaluation of the financial and credit status of the Wholesaler. Upon request, Wholesaler shall provide to Upclick or its representatives reasonable access to Wholesaler's facilities and records for the purpose of performing any inspection and/or copying of Wholesaler's books and/or records deemed appropriate by Upclick in order to verify compliance with the terms hereof.
Wholesaler may elect to participate in our Affiliate Program. In the Affiliate Program, other members of the Upclick community may elect to promote Wholesaler's Software by driving traffic to Wholesaler's web site, and Upclick will track the sources of traffic to Wholesaler's site. When an End User makes a purchase upon being driven to Wholesaler's site by an Affiliate, that Affiliate is eligible for an Affiliate Commission, which Wholesaler agrees Upclick may deduct and pay from the sales price of the product. Any Affiliate commissions that result from a particular sale will also be deducted from Wholesaler's account and paid over to whichever Affiliate Upclick's systems indicates referred the sale to Upclick. Wholesaler may set the Affiliate commission on a per product, per account and on a per Affiliate basis.
All affiliates within the Affiliate Network shall remain Upclick's sole property, and shall not belong to Wholesaler. In order to enter the network, each affiliate has entered into a contractual relationship with Upclick. Any affiliate recruited by Wholesaler into Upclick's Affiliate Network through Wholesaler's own efforts or through the use of the affiliate recruiting tool Upclick provides to Wholesaler, or through any other service or other resource Upclick provides to Wholesaler shall remain Upclick's sole property. Wholesaler shall not bypass or circumvent the network with respect to any engagement with a Network Affiliate. The Affiliate Network may make available to Wholesaler tools and resources for the explicit purpose of communicating with affiliates. Wholesaler agrees not to use these tools in a manner that may result in, among other things, avoiding Wholesaler's obligation to pay for services and/or fees associated with the Network, including avoiding paying any Affiliate Commissions, Discount or other cost of sale to Upclick, or the recruitment of affiliates to another affiliate or affiliate-related network.
Fees payable to Upclick, as per the Fee Schedule and any other amounts owing from Wholesaler to Upclick, shall be deducted from Payments. In the event that the Payments are insufficient to pay amounts owing by the Wholesaler to Upclick hereunder, Wholesaler shall pay the balance thereof within three (3) Business Days following demand by Upclick.
Upclick shall hereby deduct from the Payments and establish a reserve account (the "Reserve Account") to ensure Upclick's recovery of any liabilities owed to it or reasonably anticipated to be owed to it by the Wholesaler pursuant to this Agreement including, without limitation, all liabilities in respect of actual and/or potential post-termination Chargeback, post-termination fees, and charges, indemnifications and expenses due or anticipated to be due to Upclick from the Wholesaler. The Reserve Account shall be funded and maintained by Upclick's withholding from the Payments. The amount of the Reserve Account shall be no less than the fixed percentage of total monthly value of sales by Upclick to Customers set out in the Fee Schedule. Upclick may also, at its sole discretion, and without notice to the Wholesaler, reasonably amend the amount required in the Reserve Account in order to mitigate against potential losses to Upclick as a consequence of its performance hereudner. Upclick shall retain possession of the amounts in the Reserve Account for the term hereof and six (6) months thereafter and such additional time as may be necessary in order to mitigate against potential liabilities of Upclick hereunder.
As continuing and collateral security for the due and punctual payment of any and all amounts now owing or which may hereafter become owing to Upclick by the Wholesaler under this Agreement (the "Wholesaler Obligations"), as same may be amended, renewed, extended or supplemented, the Wholesaler hereby charges, mortgages and hypothecates in favour of Upclick, with effect as of and from this date, all right, title and interest of the Wholesaler in and to the Payments and Reserve Account and all funds therein. The Wholesaler further undertakes, upon notice by Upclick at the Wholesaler's expense, to execute and register such documents as may be necessary or desirable to perfect Upclick's security interest and hypothec therein.
Upclick maintains the right to withhold from any Payment the amount of sales, value added or other taxes that Upclick is liable to remit as the reseller of Product to Customers. Wholesaler shall, without limitation, indemnify and hold Upclick harmless for any and all sales taxes or other taxes or levies for which Upclick may be liable as a consequence of performing the Services.
Wholesaler shall defend, indemnify and hold harmless the Upclick, its directors, officers, employees, agents, assigns, and successors-in-interest from and against any and all third-party liability, damages, losses, claims, demands, actions, causes of action and costs (including attorneys' fees and expenses) arising out of or resulting from (i) Wholesaler's performance under this Agreement including, without limitation, performance, nonperformance, or defect in performance, any statement, misstatement, representation or misrepresentation made by Wholesaler; (ii) the negligent or willful acts or omissions of Wholesaler or Wholesaler's agents and/or employees; (iii) any statements, claims, representations or warranties made by Wholesaler or Wholesaler's agents and/or employees, relating to the Products and (iv) infringement or claim thereof of any patent, copyright, trademark, service mark, trade name, trade secret, proprietary and/or confidential information right, and/or any other property right of a third party arising from the use of the Product by Wholesaler, Upclick or Customers.
To the maximum extent permitted by applicable law, upclick expressly disclaims any implied warranties and conditions, including any implied warranties or conditions of merchantability, fitness for a particular purpose and non-infringement, as well as any warranties that the services provided by Upclick or its affiliates hereunder or that the operation of the services will be interruption or error free.
Notwithstanding anything to the contrary contained herein, upclick, its affiliates, agents and licensors, shall not, under any circumstances, be liable to the wholesaler for consequential, incidental, special or exemplary damages, even if upclick has been apprised of the likelihood of such damages occuring. except as required by law, in no event shall upclick's liability (whether based on an action or claim in contract, tort or otherwise) to the wholesaler in any way connected with or arising out of this agreement exceed the fees actually received by the wholesaler for the product actually resold during the six (6) months prior to the event giving rise to liability. without limiting the foregoing, the wholesaler and upclick agree that if any remedy hereunder is determined to have failed of its essential purpose, all limitations of liability and exclusions of damages set forth herein shall remain in effect.
Upclick shall use its commercially reasonable efforts to perform its obligations hereunder, however, Upclick, its affiliates, agents or licensors shall not be liable for any loss resulting from the activities of the Wholesaler, nor from any erroneous statements or errors in transmission, nor for any loss resulting from any delay, interruption or failure to perform hereunder due to any circumstances beyond Upclick's reasonable control including, without limitation, acts of god, fire, explosion, earthquake, riot, terrorism, war, sabotage, accident, embargo, storms, strikes, lockouts, any interruption, failure or defects in Internet, telephone, or other interconnect services or in electronic or mechanical equipment. Upclick's obligations hereunder shall be suspended during any of the foregoing circumstances, which suspension shall not be a cause for termination of this agreement by the Wholesaler.
This Agreement shall be effective commencing on the date that Wholesaler has accepted the terms of this Agreement via the Site or in writing (the "Effective Date") and ending one (1) year thereafter (the "Initial Term"). After the Initial Term, this Agreement shall be renewed automatically for additional consecutive one (1) year periods, unless earlier terminated in accordance with the terms hereof.
Either party may terminate this Agreement at any time on notice to the other party.
Upon any termination of this Agreement, Upclick shall discontinue selling the Products and the licenses to Software, the site and the Product granted hereunder shall immediately terminate. All provisions regarding indemnification, representations, warranties, liability and limits thereon and confidential information shall survive termination and termination of this Agreement shall not relieve the Wholesaler of its obligations to pay accrued Fees or other liabilities to Wholesaler hereunder.
The Wholesaler agrees that it will: (i) not use for purposes other than this Agreement; (ii) not disclose to any third party; and (iii) retain in strictest confidence; all Confidential Information except in the performance of its obligations under this Agreement. The Wholesaler will use reasonable safety precautions so that Confidential Information cannot be accessed from or through its systems. The Wholesaler will require its employees and all other persons who have access to the Confidential Information to be bound by similar obligations. Termination of this Agreement shall not release the Wholesaler from its obligations of confidentiality.
It is agreed between the Parties that performance by Upclick hereunder, whether the representations, warranties and covenants of the Wholesaler are fulfilled or not, shall in no manner whatsoever waive the benefit, to Upclick, of any such representations, warranties and covenants of the Wholesaler. The Wholesaler hereby warrants and covenants to Upclick that:
Duly Constituted. If it is not an individual, that it is duly constituted under the laws of its constituting jurisdiction and that it has legal capacity to enter into this Agreement and perform its obligations hereunder;
Capacity. If it is an individual, that he or she is of at least 18 years of age and of the legal age for the conclusion of verbal contractual obligations in his or her place of residence and his or her place of business and that he or she does not require the consent, approbation, or approval of any other person to conclude or contract a valid obligation of the type set forth herein;
Duly authorized. It or he has the necessary corporate power and authority to execute this Agreement and to perform its or his obligations hereunder. Such execution and performance by the Wholesaler does not require any action or consent of, any registration with, or notification to, any person, or any action or consent under any laws or regulations which the Wholesaler is subject;
Opportunity to consult counsel. It has had the opportunity to consult legal counsel for the purpose of reviewing and obtaining advice as to the terms hereof;
Business. It is entering into this Agreement in its capacity as a business and not as an individual consumer;
Changes in Wholesaler Information. It shall submit to Upclick in writing, for Upclick's written consent, any changes or modifications to the Wholesaler Information;
Upclick's Reputation. It will uphold the good name and reputation of Upclick;
Notice of Defects. It will immediately advise Upclick in writing of defects in the Product or any claim or threatened claim against it in relation to the Product;
Compliance with Laws. The Product conforms to all applicable laws in the jurisdictions where Upclick, Wholesaler and Customers are located. It will conduct its business affairs in an ethical manner and in accordance with the terms and intent of this Agreement, and in compliance with all applicable laws and regulations, including but not limited to all laws and regulations applicable in each jurisdiction where the Product is sold by Upclick. Wholesaler shall not use the Services to sell or promote or otherwise facilitate pornography, gambling or casinos, whether online or otherwise;
Fraud. It shall not promote or allow the use of the Services or the Product in connection with any money laundering, fraudulent or other illegal activities under any laws or regulations of any applicable jurisdiction;
Prohibited Uses. It shall not use the Services to itself or permit any third party to operate any e-wallet, payment aggregation or payment services company, nor shall it use the Services in relation to the sale or promotion of any pornography, pharmacy, pharmaceuticals, drugs, prohibited substances, controlled substances, the collection and resale of personal information or any other product or service deemed unacceptable by Upclick, acting at its sole discretion;
Independent Contractor. The Wholesaler acknowledges to Upclick that this Agreement is a contract for offer of resale of Product to Customers and that Upclick is an independent contractor and that nothing herein shall be construed as creating a joint venture, partnership or for sale agency relationship between them. Neither party has any right to create any obligations on the part of the other party, without the other's prior written consent.
Any notice, demand, request or other communication required or permitted to be given under this Agreement shall be in writing and delivered personally, or sent by prepaid registered mail, return receipt requested (i) to Upclick at the postal address provided therefor on the cover-page hereof; to the Wholesaler at the address provided therefor on the cover-page hereof; or to such other address as either party may have previously indicated to the other in writing in accordance with the foregoing. Any such notice, request, demand or communication shall be deemed to have been received on the day it was delivered personally, on the fifth (5th) day following mailing, unless there is a disruption of any kind of postal service.
Unless otherwise specified, all dollar amounts referred to herein shall be in United States Dollars.
The context requires otherwise, words employing the singular include the plural and vice versa and words employing the gender include all genders.
Upclick may amend or change the Services they provide, at any time, and those changes will be effective for any transactions that take place after the date of the change.
Wholesaler or any of its respective successors may not assign this Agreement, or any rights hereunder, directly or by operation of law, without the prior written consent of Upclick which consent may be withheld for any reason, at Upclick's sole discretion. Upclick or any of its respective successors may assign this Agreement, or any rights hereunder, directly or by operation of law, without the prior written consent of Wholesaler. This Agreement and the provisions hereof shall enure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
The Wholesaler shall be liable for and shall indemnify and reimburse Upclick for any and all reasonable attorneys' fees and other costs and expenses paid or incurred by Upclick in the enforcement of this Agreement, or in collecting any amounts due from the Wholesaler hereunder, or resulting from any breach of any of the terms or conditions of this Agreement.
All remedies of either party hereunder are cumulative and may be exercised concurrently or separately. The exercise of any one remedy shall not be deemed to be an election of such remedy and shall not preclude the exercise of any other remedy. No failure on the part of either party to exercise and no delay in exercising any right or remedy hereunder shall operate as a waiver of such right or remedy.
If any provision of this Agreement is held invalid or unenforceable by any court of final jurisdiction, it is the intent of the parties that all other provisions of this Agreement be construed to remain fully valid, enforceable and binding on the parties.
This Agreement shall be deemed to be governed and enforced in accordance with the laws of the country of contracting Entity. Agreements for Canadian partners with Upclick Canada Inc. will be governed and enforced in accordance to the laws of Canada whose courts shall have exclusive jurisdiction over disputes arising hereunder. Agreements for European and Rest of World partners with Upclick Malta will be governed and enforced in accordance to the laws of Malta whose courts shall have exclusive jurisdiction over disputes arising hereunder.
References to "this Agreement" include any schedules, supplementary agreements, addendum, appendixes and amendments and any other agreements, schedules appendixes and amendments promulgated by Upclick and furnished to the Wholesaler from time to time.
For good and valuable consideration, receipt of which is hereby acknowledged, the Guarantor hereby fully, irrevocably and unconditionally guarantees to Upclick the full and complete performance by the Wholesaler of all the Wholesaler's obligations, present and future, to Upclick (the "Guarantee") under or pursuant to this Agreement.
The liability of the Guarantor under the Guarantee shall be solidary (i.e. joint and several) with the Wholesaler, the Guarantor expressly waiving all benefits of division and discussion. Upclick does not need to exhaust its recourses against the Wholesaler or any other Person before being entitled to full payment from the Guarantor under the Guarantee.
By acceptance of the terms hereof on-line by the Wholesaler or by execution of a written acceptance of the terms hereof by the Wholesaler, in counterparts or otherwise, this Agreement together with its Schedules and any supplemental agreements and appendixes constitute the entire validly legally binding agreement between the Parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations and understandings of the parties. No waiver of any of the provisions in this Agreement shall be deemed or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
The following provisions hereof shall survive any termination hereof: 1, 2.6, 2.8, 3.3, 3.4, 3.5, 3.6, 4, 5, 7, 8 and 9.
The fees below are for purpose use only. Depending on your merchant category, fees applicable could change and additional conditions may apply. Contact us to learn more. Once you sign-up, you have access to your terms in "My account" section
| Fees Applicable | ||
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| Merchant Reserve/Period | 10% / 6 months |
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| Wire Transfer Fee: |
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| Check Fee: |
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| Settlement Period: | Bi-Weekly |
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| Upclick Activation Fee: |
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| Monthly Fee: |
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| Fees & revenue-share opportunities applicable when processing through Upclick | ||
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| Feature | Rate | Description |
| Processing Fee: | Starting at 5.75%* |
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| Gateway Fee: |
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| Cross-sell Fee: |
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| Chargeback Fee: |
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| Chargeback Prevention Fee: | May Apply* |
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| Sales Verification Fee: | May Apply* |
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| Refund Fee: |
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| Exchange Rate Fee: |
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* Certain conditions may apply depending on your merchant category. Contact us to learn more.
The conditions below outline the mandatory compliance measures that all merchants must agree to before beginning to process. Please print, sign, and fax/email to [email protected]
a. Payment must be completed by the Client using an Upclick checkout page.
b. Under no circumstance should the credit card information be gathered by a sales/support agent.
a. Phone number must be maintained in working order and responded to during the posted hours of operation.
b. Phone numbers must be appropriate in relation to the geo-location of the Client.
Failure to adhere to any of the respective components of the Upclick Compliance Notice will result in the punitive measures listed below:
Upclick reserves the right to fine any merchant who has a chargeback ratio greater than 2% (chargebacks divided by transactions) in any period of 30 days.