PARTNER AGREEMENT TERMS AND CONDITIONS

These Terms and Conditions (“Terms and Conditions”), together with the applicable contract document entered into between Facilisgroup and its promotional distributor customer to utilize Facilisgroup products and services (e.g., Order Form, Sublicense Agreement, etc.) (“Contract Document”) that is governed by these Terms and Conditions (collectively, the “Agreement”), constitute a legally binding agreement between Facilisgroup and its promotional distributor customer named on the Contract Document (“the Partner”).

If the Partner is resident in the United States, “Facilisgroup” means Facilisgroup, LLC, a Missouri limited liability company. If the Partner is resident in Canada, “Facilisgroup” means Facilisgroup Canada Inc., an Ontario, Canada corporation.

Facilisgroup and the Partner are each a “Party” and together are the “Parties”.

Facilisgroup provides the Partner with access to its products and services, subject to and conditional upon the Partner’s acceptance of these Terms and Conditions.

The Partner agrees to these Terms and Conditions by: (1) clicking a box indicating acceptance; (2) executing a Contract Document that references these Terms and Conditions; or (3) accessing or using any products or services of Facilisgroup.

SECTION 1.  DEFINITIONS

1.1               “Annual GMV” has the meaning given to it in the Contract Document.

1.2               “Confidential Information” means: (a) all data and information in any form whatsoever relating to the business, products (including Facilisgroup Platforms), services (including the Services), pricing and operation of the Facilisgroup Group, including proprietary and trade secrets, technology and accounting records, and the Intellectual Property; and (b) information disclosed by Facilisgroup in writing or in any other manner that is noted as confidential at the time of disclosure, either orally or in writing.

1.3               “Effective Date” means the effective date set forth in the applicable Contract Document executed by the Parties.

1.4               “Facilisgroup Group” means, together, Facilisgroup, LLC, a Missouri limited liability company and Facilisgroup Canada Inc., a company incorporated in Ontario, Canada.

1.5               “Facilisgroup Platform(s)” means such software, applications, platforms and related services provided by Facilisgroup, including (without limitation) Syncore^® and “The Signature Collection” website, as is set forth in the Contract Document as being made available for use by the Partner.

1.6               “Facilisgroup Trademarks” means: (a) the Facilisgroup name, logos, marks, designs and slogans; (b) Facilisgroup Platform names, logos, marks, designs and slogans; (c) Services name, logos, marks, designs and slogans; and (d) such other names, logos, marks, designs and slogans as are owned or used by the Facilisgroup Group from time to time.

1.7               “Fixed Price Period” means, if expressly stated in a Contract Document, the time period during which the Fees (or part thereof) are fixed.

1.8               “Intellectual Property” means all right, title and interest in: (a) Facilisgroup Group’s licensed rights to the business system and methodology relating to the ordering, purchasing, cataloging, marketing, promotion, distribution, and sales of articles, including (without limitation) all copyright, trade secrets, confidential information, inventions, rights of invention, patents, and designs in relation thereto; (b) Facilisgroup Group’s licensed rights to the websites and access portals including (without limitation) all URLs, content, images, text, lists, designs, HTML, Java or other code, links, copyright, trade secrets, confidential information, inventions, rights of invention, and patents in relation thereto; (c) Facilisgroup Group’s licensed rights to the data, databases and functional elements relating to the ordering, purchasing, cataloging, marketing, promotion, distribution, and sales of promotional articles, including without limitation searchable online catalogs and online order systems, suppliers’ names, addresses, vendor agreements, products, product descriptions, images, pricing, supply information, invoicing and tracking systems, employee statistics and sales information, including (without limitation) all copyright, trade secrets, confidential information, inventions, rights of invention, patents, and designs in relation thereto; (d) the source code, object code, layout, configuration, architecture, data and all copyrights (including the right to file copyright applications anywhere in the world and the right to any registrations resulting therefrom), trademarks (including the right to file trademark applications anywhere in the world and the right to any registrations resulting therefrom), trade secrets, confidential information, inventions, rights of invention, patents, designs (including the right to file patent applications anywhere in the world in respect of any invention and the right to any patents resulting therefrom), and all other rights in relation thereto in relation to Facilisgroup’s software products and applications; (e) all Facilisgroup’s Services; and (f) the Facilisgroup Trademarks.

1.9               “Services” means the provision by Facilisgroup to the Partner of access to, and usage of, the Facilisgroup Platforms and any related services and benefits set forth in the Contract Document, subject to the terms and conditions of the Agreement.

1.10            “Syncore^®” means Facilisgroup’s ‘Syncore’ branded proprietary 360° promo platform, as more particularly described in the Contract Document and at https://facilisgroup.com/syncore/. 

SECTION 2.  LICENSE TERMS

2.1               Grant of Access. Subject to the terms and conditions set forth in the Agreement, during the term of the Agreement, Facilisgroup hereby grants to the Partner a limited, personal, non-exclusive, non-sublicensable, non-assignable, and cancellable right, for the duration of the Agreement, to: (a) access and utilize the Facilisgroup Platforms which the Partner has contracted with Facilisgroup to utilize, as set forth in a Contract Document; (b) utilize such Facilisgroup Platforms for the purposes of: (i) viewing, storing and accessing data in connection with the Partner’s business; and (ii) making available on the Internet a retail site for the online sale by the Partner of promotional and other articles (“Licensed Website”); and (c) utilize the Facilisgroup Trademarks in association with the Licensed Website in connection with the Partner’s online sales of promotional articles via the Licensed Website, in each case for the Partner’s own business purposes and in a manner consistent with the Contract Document and any and all policies that Facilisgroup communicates to the Partner.

2.2               Authorized Users. The Partner may authorize its employees, contractors and agents of Partner to use the Facilisgroup Platforms in accordance with the Agreement (“Authorized Users”), provided that the Partner shall be solely responsible for all Authorized Users’ compliance with the Agreement. Authorized Users must be at least (i) 18 years of age, or (ii) at least the age of majority in the jurisdiction where they reside and from which they access and use the Facilisgroup Platforms.

SECTION 3.  FEES

3.1               Basis of Fees. The fees payable by the Partner for the Services (“Fees”) shall be charged by Facilisgroup: (a) on a recurring basis for ongoing access to the Services (“Subscription Fees”); or (b) on a one-off or non-recurring basis (“Contracted Fees”), in each case in the amounts set out in the Contract Document. Unless otherwise expressly stated in the relevant Contract Document, Fees relating to access to Facilisgroup Platforms shall be charged and payable on a Subscription Fee basis.

3.2               Taxes. The Partner is responsible for any applicable sales, use, excise, value added, tariffs, intangible or other similar taxes, levies or assessments imposed in respect of any Fees or other amounts payable by the Partner hereunder.

3.3               Payment Terms. Subscription Fees shall be invoiced monthly in advance and shall be due and payable within fifteen (15) days of invoicing. Unless otherwise stated in the Contract Document, Contracted Fees shall be invoiced in full in advance and shall be due and payable within fifteen (15) days of invoicing. 

3.4               Payment Methods. The Partner shall pay the Fees via a payment method approved by Facilisgroup from time to time (“Authorized Payment Method”). If Facilisgroup, in its sole discretion, accepts payments by credit card, such payments shall be subject to a surcharge equal to the fees that Facilisgroup reasonably calculates are charged to Facilisgroup by the credit card company. Facilisgroup uses a third-party service provider for payment services (e.g., card acceptance, merchant settlement and related services). 

3.5               Payment Disputes. The Partner must assert any payment dispute in writing to Facilisgroup within thirty (30) days after the due date of the invoice giving rise to the dispute; otherwise, the invoice will be deemed correct and final. 

3.6               Late Payments. Late payments of Fees shall be subject to a late payment charge of 1.5% per month of the delinquent amount until paid. The late fee is an administrative charge and shall not be deemed interest or penalty. Such late fees shall be added to, and shall be payable with, the next monthly invoice. Facilisgroup shall be entitled to all associated fees and costs, including (without limitation) attorneys’ fees and collection agency charges, related to seeking collection of such late payments.

3.7               Suspension and Reactivation of Subscription Services. If Facilisgroup cannot process payment of Fees using an Authorized Payment Method, subsequent attempts to process payment using any Authorized Payment Method will be made. If unable to successfully process payment of Fees using an Authorized Payment Method, Facilisgroup may suspend and revoke access to the Partner’s account, the Facilisgroup Platforms and/or the Services. Access to the Partner’s account and Partner Data may not be available during such suspension period. Access shall be reactivated upon payment of all outstanding Fees. A reactivation fee equal to the greater of 5% of the balance owed or $250 may be applied to the Partner’s account. 

3.8               Price List and Fixed Price Periods. Facilisgroup shall maintain a price list of standard fees for the Services (including the rates and/or method of calculation of the Fees), whether Contracted Fees or Subscription Fees (“Price List”). Facilisgroup envisages updating the Price List and Fees each calendar year, but nevertheless reserves the right to update the Price List and Fees in its absolute discretion at any time. If the Contract Document states that any Fees are subject to a Fixed Price Period, then, subject to the Partner’s compliance with its obligations under the Agreement and save as provided in Section 13 (Merger or Acquisition), any new or amended Price List and Fees shall not apply to the Partner until the expiry of the Fixed Price Period. Upon expiry of a Fixed Price Period, the then-current Price List shall immediately and automatically apply. If Fees are not subject to a Fixed Price Period, then the new or amended Price List and Fees shall take effect upon the earlier of: (a) the forthcoming 1 January; or (b) upon the expiry of no less than 60 days’ notice of such change to the Partner.

3.9               Accuracy of Sales Data. The Partner warrants and represents that all sales information and data provided to Facilisgroup (including, if the Partner is a new Partner, any sales data provided to calculate the Fees payable) shall be, accurate and complete.

SECTION 4.  INTELLECTUAL PROPERTY AND RESTRICTIONS

4.1               Notification of Unauthorized Use. The Partner agrees to notify Facilisgroup of any unauthorized use of the Intellectual Property by third parties promptly as such use comes to the Partner’s attention, which notice may be provided electronically in accordance with the Agreement. The Partner agrees to cooperate in the prosecution of such infringement, and the Facilisgroup Group retains the right of first refusal to bring infringement or unfair competition proceedings involving the Intellectual Property.

4.2               Restrictions. During and after the term of the Agreement, the Partner shall NOT: (a) make any changes to the Intellectual Property without the prior written consent of Facilisgroup; (b) file or prosecute one or more trademark applications in connection with the Partner’s use or intended use of the Facilisgroup Trademarks or any mark or designation of any kind that is confusingly similar to or dilutive of the Facilisgroup Trademarks; (c) sell, assign, rent, lease, sub-license, distribute, export, import, act as an intermediary or provider, or otherwise grant to third parties any rights which the Partner has pursuant to the Agreement; (d) make accessible to others any of the Intellectual Property; (e) permit anyone other than current employees of the Partner or authorized independent contractors hired by the Partner: (i) to access the Facilisgroup Platforms and/or Services contracted for or ordered by the Partner; (ii) to access, view, store or retrieve data stored by Facilisgroup; or (iii) to access the Facilisgroup portal; (f) undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Facilisgroup Platforms or Services, or any part thereof without the consent of Facilisgroup; (g) infringe, or assist anyone else in infringing the Intellectual Property; (h) take any action, or assist anyone else in challenging, jeopardizing, limiting or interfering with the Intellectual Property; (i) remove, obscure, make illegible or alter any notices or indications of the Intellectual Property and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to any material; (j) use the Facilisgroup Trademarks in any manner which, directly or indirectly, would materially and adversely affect the image of the Facilisgroup Trademarks or the Facilisgroup Group; (k) attack or question the validity of, or assist any individual or entity in attacking or questioning, the title or any rights of or claims by the Facilisgroup Group in and to the Facilisgroup Trademarks, or any other trademark, or other Intellectual Property of the Facilisgroup Group; or (l) directly or indirectly seek for itself or assist any third party to use or acquire any rights, proprietary or otherwise, in the Intellectual Property of or associated or connected with the Facilisgroup Group.

4.3               Partner Acknowledgements. The Partner acknowledges and agrees: (a) that the Intellectual Property is and shall remain the exclusive property of the Facilisgroup Group, and that the Facilisgroup Trademarks are and shall remain the exclusive property of the Facilisgroup Group; (b) that the Facilisgroup Group are the owner or exclusive licensees of the Intellectual Property; (c) that nothing in the Agreement transfers the Intellectual Property to the Partner; (d) that its use of the Facilisgroup Platforms, Services, the Intellectual Property, and Facilisgroup Trademark shall not create in its favor any right, title, or interest to the Intellectual Property and the marks; (e) that any use of the Intellectual Property outside of the scope of the license granted herein is an immediate violation of the rights of Facilisgroup; and (f) that Facilisgroup and the Facilisgroup Group have the sole and exclusive rights to control any administrative or litigation proceeding involving the Intellectual Property.

4.4               Non-competition. The Partner acknowledges and agrees that during the term of the Agreement and for a period of two (2) years thereafter, the Partner and its owners and principals shall not in any capacity, either directly or indirectly, as an owner, consultant, employee or otherwise engage in, or assist with, the design, creation, marketing, promotion or sale of any product or service, which is in competition with, or substantially similar to, the Facilisgroup Technologies, Services or any parts thereof or any programs associated therewith. Notwithstanding the foregoing, the Partner shall not be in breach of this Section 4.4 solely by : (a) using any third-party product or service, which is in competition with or substantially similar to the Facilisgroup Technologies or Services; or (b) developing or using (in each case by the Partner exclusively for the Partner’s own internal business purposes) a product or service, which is substantially similar to the Facilisgroup Technologies.

4.5               Non-solicitation. The Partner acknowledges and agrees that during the term of the Agreement and for a period of twelve (12) months after its termination, the Partner shall not, directly or indirectly for its own account or benefit or for the account or benefit of any other person or entity, solicit, entice, hire, employ, or endeavor to employ any employee or independent contractor of Facilisgroup for any purpose. Notwithstanding the foregoing, the Partner shall not be in breach of this Section 4.5 solely because it (or any third party on its behalf) (i) makes general public advertisement for an employment or independent contractor vacancy which is not, directly or indirectly, targeted only at Facilisgroup’s employees or independent contractors; and (ii) following its usual hiring or appointment process, hires or employs an individual who responds to such a public advertisement.

4.6               Compliance With Laws. The Partner may not use the Facilisgroup Platforms or Services for any illegal or unauthorized purpose, nor may the Partner, in the use of the Facilisgroup Platforms or Services, violate any laws of the applicable jurisdiction (including but not limited to all copyright laws), or the laws applicable to the Partner in a third-party jurisdiction. The Partner will comply with all applicable laws, rules and regulations in the Partner’s use of the Facilisgroup Platforms and Services and the Partner’s performance of obligations under these Terms and Conditions.

4.7               Compliance With Policies. The Partner shall comply with all policies of Facilisgroup notified to it from time to time, including (without limitation) all restrictions or limitations therein relating to the usage of the Facilisgroup Platforms or Services.

SECTION 5.  CONFIDENTIALITY AND SECURITY

5.1               Use of Confidential Information.The Partner shall: (a) limit access and use of the Confidential Information to those of Partner’s employees that require such access and use in connection with the Partner’s obligations hereunder, who each treat such Confidential Information as provided in this Section 5 (Confidentiality and Security), and who are each subject to obligations of confidentiality to the Partner that are at least as stringent as those contained in this Section 5; (b) not disclose Confidential Information to third parties, unless authorized under this Section 5; (c) protect the Confidential Information as it protects its own confidential information, but in any event with not less than a reasonable degree of care; and (d) not use the Confidential Information for any purpose except as required to perform its obligations under the Agreement or as otherwise specifically permitted hereunder.

5.2               Exceptions. Nothing in this Section 5 (Confidentiality and Security) shall prevent a Partner from disclosing Confidential Information to: (a) a third party to the extent that such Confidential Information is: (i) previously known to the Partner prior to disclosure by Facilisgroup, without any obligation of confidentiality; (ii) publicly known or becomes publicly known through no breach of the Agreement by the Partner; (iii) rightfully received from a third party under no obligation or duty of confidentiality with respect to the Confidential Information; or (iv) independently developed by the Partner without use of the Confidential Information; or (b) a government or their agencies where legally required.

5.3               Passwords and API Credentials. The Partner is responsible for keeping passwords, login or access details and/or credentials provided, used or generated to access the Facilisgroup Platforms, including (without limitation) any Application Programming Interfaces (“APIs”), secret and secure. The Partner is solely responsible for the activity that occurs using such passwords and credentials. Facilisgroup cannot and will not be liable for any loss or damage arising from the Partner’s failure to maintain the secrecy or security of the Partner’s passwords or credentials. Facilisgroup may request additional security measures at any time and reserve the right to adjust these requirements at its discretion. The Partner shall comply with any instructions and policies  relating to the API as may be issued by Facilisgroup from time to time.

5.4               Circumvention and Reverse Engineering. The Partner will not intentionally bypass, or circumvent any of the technical limitations of the Facilisgroup Platforms or Services, including (without limitation) to process orders outside the checkout facility provisioned by Facilisgroup, use any tool to enable features or functionalities that are otherwise disabled in the Facilisgroup Platforms or decompile, disassemble or otherwise reverse engineer the Facilisgroup Platforms.

SECTION 6.  THIRD PARTY SERVICES AND PROCESSORS

6.1               Processing of Fee Payments. Facilisgroup does not capture, save or process payment data relating to payments of Fees by the Partner. Facilisgroup will facilitate secure communications to a pre-determined and limited list of third-party payment processors. 

6.2               Third Party Services. The Services and Facilisgroup Platforms (or certain features or functions thereof) may rely on, integrate with or allow access to, third‑party products, services, platforms or infrastructure (including third‑party data providers, third party APIs, search functionality providers, tax calculation service providers and cloud hosting providers) (together, “Third Party Services”). If the Partner has the option use or enable any Third Party Services and elects to do so, the Partner understands and acknowledges that: (a) the Partner is solely responsible for ensuring full compliance with the applicable license and usage terms for such Third Party Services; and (b) Facilisgroup does not control the availability or performance of Third Party Services and does not warrant that any such Third Party Services will be available at all times. Unless expressly agreed by Facilisgroup, the Partner is responsible for any and all costs and fees incurred in respect of the Partner’s use of Third Party Services.

6.3               Partner Payment Tools. The Facilisgroup Platforms or Services do not include processing electronic payments, credit card payments from its customers or any other online store payment functionality (“Payment Tools”). If the Partner desires to use any such Payment Tool in connection with the Facilisgroup Platforms or Services, the Partner must enter an agreement with a third party vendor for the provision of such Payment Tools, inclusive of registration and management on the payment gateway. 

SECTION 7.  PARTNER DATA

7.1               Privacy Policy. Facilisgroup’s Privacy Policy, available at https://facilisgroup.com/privacy-policy/, as amended from time to time (“Privacy Policy”), is incorporated into these terms by this reference. The Privacy Policy sets out the data that may be collected from or about the Partner (including (without limitation) in connection with its use of the Facilisgroup Platforms and Services) how it is collected, how it is used, to whom it is disclosed, how it is kept secure, and for how long it is retained. 

7.2               Ownership of Data. Facilisgroup acknowledges that, as between Facilisgroup and the Partner, the Partner owns all right, title, and interest, in and to all data, information and other content input into the Facilisgroup Platforms by the Partner and all outputs generated by the Partner via the Facilisgroup Platforms (e.g. reports) to the extent that they are based on such inputs (“Partner Data”) but (for the avoidance of doubt) excluding any of Facilisgroup’s Intellectual Property or Confidential Information. The Partner shall be solely responsible for the accuracy, quality and legality of Partner Data. 

7.3               Return of Data. Provided all amounts due to Facilisgroup from the Partner have been fully paid, upon termination of the Agreement, Facilisgroup will, at the Partner’s request, provide a copy of the Partner Data stored by Facilisgroup on or via the Facilisgroup Platforms or Services in a useable format reasonably determined by Facilisgroup.

SECTION 8.  REPRESENTATIONS, WARRANTIES AND DISCLAIMER

8.1               Partner Representations and Warranties. The Partner represents and warrants that it is authorized to enter into the Agreement and is capable of complying with its terms. The Partner represents and warrants that it will comply with its obligations hereunder and  all applicable laws and regulations and shall ensure that all information provided by the Partner in relation to the Agreement, Fees or the Services shall be accurate and complete.

8.2               Availability. Facilisgroup warrants that it will use commercially reasonable efforts to make the Facilisgroup Platforms available for access and use by the Partner at all times, subject to the limitations set out in this Agreement, excluding periods of scheduled maintenance and excluding non-availability due to events beyond Facilisgroup’s reasonable control (including without limitation, a failure of Third Party Services). In the event of an outage or downtime, Facilisgroup shall use commercially reasonable efforts to promptly rectify the non-availability. In the event of a material outage or repeated outages, Facilisgroup shall implement a corrective action plan which identifies the cause of the outage and sets out the reasonable steps to be taken by Facilisgroup to mitigate the likelihood or impact of recurrence. 

8.3               DISCLAIMER. EXCEPT AS EXPLICITLY SET OUT IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY. THE PARTNER ACKNOWLEDGES THAT THE FACILISGROUP PLATFORMS AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND FACILISGROUP DOES NOT MAKE ANY EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE FACILISGROUP PLATFORMS,  SERVICES OR INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, RELIABILITY, PERFORMANCE, AVAILABILITY, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE. FURTHER, FACILISGROUP DOES NOT REPRESENT OR WARRANT THAT THE FACILISGROUP PLATFORMS OR SERVICES OR PARTNER DATA WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET OR DATA LOSS. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABLE QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS, ARE DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW.

SECTION 9.  CLAIMS AND INDEMNITY

9.1               Indemnity. The Partner agrees to and shall indemnify, defend and hold the Facilisgroup Group harmless from and against any and all liability and costs, including (without limitation) reasonable attorney’s fees, court costs, and other disbursements and out-of-pocket expenses incurred, in connection with or arising out of: (a) the Partner’s violation or breach of any term of the Agreement or any applicable law or regulation, whether or not referenced herein: (b) the Partner’s violation of any rights of any third party; and (c) claims of third parties against Facilisgroup based on the Partner’s breach of any representations contained herein or as a result of any of the Partner’s actions or inactions.

9.2               Defense of Claims. The Partner agrees that the Facilisgroup Group shall have the right to participate in the defense of any claim asserted against either or both of them. The Partner also agrees that the Facilisgroup Group shall be entitled to retain a counsel Facilisgroup’s own choosing at the Partner’s cost. The Partner further agrees to promptly and without delay notify the Facilisgroup Group of any knowledge of a claim, actual, threatened, or likely, against the Facilisgroup Group. The Partner agrees to cooperate fully with the Facilisgroup Group during such proceedings.

SECTION 10.  LIABILITY

10.1            EXCLUSION AND LIMITATION. FACILISGROUP SHALL NOT BE LIABLE TO THE PARTNER FOR ANY INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR OTHER ECONOMIC LOSS, OR ANY INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE FACILISGROUP GROUP’S COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO FACILISGROUP FOR THE AFFECTED SERVICES FOR THE TWELVE (12) MONTHS’ IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION 10.1 SHALL APPLY REGARDLESS OF WHETHER ANY ACTION IS BROUGHT IN CONTRACT OR IN TORT, (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY), OR FUNDAMENTAL BREACH AND/OR FAILURE OF ESSENTIAL PURPOSE OF THE AGREEMENT OR OF ANY REMEDY CONTAINED HEREIN AND SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

10.2            Shortened Statute of Limitations and Waiver of Class Action and Jury Trial.The Partner hereby agrees that any cause of action arising out of or related to the Facilisgroup Platforms or Services must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. The Parties hereby waive any right to a class action lawsuit and to trial by jury in any action or proceeding to enforce or defend any rights under the Agreement.

SECTION 11.  BETA TESTING

11.1            Beta Program. From time to time, Facilisgroup may develop new or updated software, integrations or functionalities (each a “Beta Feature”). Facilisgroup may, at its discretion offer  the Partner access to a Beta Feature for testing before the Beta Feature is further developed and/or released to the general public (a “Beta Program”). 

11.2            Beta Duration. If the Partner participates in a Beta Program, the duration of the Beta Program (“Beta Term”) shall be communicated by Facilisgroup. Facilisgroup may terminate or extend the Beta Term and/or discontinue or extend a Beta Program at any time. The Partner may end its participation in a Beta Program (and terminate the Beta Term) at any time by giving at least 15 days’ written notice to Facilisgroup. Upon termination of the Beta Term, the Partner shall cease using the Beta Feature and any materials relating to the Beta Program provided by Facilisgroup.

11.3            Beta Obligations. If the Partner participates in a Beta Program, then, throughout the Beta Term: (a) Facilisgroup will provide scheduled check-ins and will ensure reasonable availability to address any urgent issues that may arise in relation to the Beta Feature other aspect of the Beta Program; (b) the Partner agrees to provide detailed feedback and communicate any further pain points or inefficiencies relating to the Beta Feature other aspect of the Beta Program; (c) the Partner shall comply with Facilisgroup’s instructions and adhere to best practices outlined by Facilisgroup; and (d) the Partner shall be responsible for any third party fees incurred in connection with its testing or usage of the Beta Feature (including but not limited to third party API access fees).

11.4            Partner Risk. Facilisgroup shall have no obligation to maintain, correct, update, change, modify, or otherwise support any Beta Feature. Facilisgroup makes no guarantee or commitment as to the success of any Beta Feature. Use of a Beta Feature and participation in a Beta Program is at the sole risk of the Partner, not Facilisgroup. Facilisgroup may discontinue a Beta Feature or Beta Program at any time with or without notice. 

11.5            Confidentiality of Beta Features. Any Beta Program, Beta Features and any materials relating to them, shall constitute Facilisgroup’s Intellectual Property and Confidential Information and shall be treated as such in accordance with Sections 4 (Intellectual Property and Restrictions) and 5 (Confidentiality and Security) of these Terms and Conditions.

SECTION 12.  TERMINATION AND SUSPENSION

12.1            Commencement and Duration. The Agreement shall begin on the Effective Date and shall continue until terminated in accordance with the Contract Document or these Terms and Conditions.

12.2            Minimum Subscription Periods. The minimum term of each subscription to Services and Facilisgroup Platforms (including, without limitation, Syncore^®) shall be as specified in the applicable Contract Document (“Minimum Subscription Term”). The Partner may not terminate a subscription or an Agreement during a Minimum Subscription Term, other than as provided in this Section 11 (Termination and Suspension) or the Contract Document.

12.3            Auto-renewal of Subscription Periods. Except as otherwise specified in a Contract Document, subscriptions will automatically and immediately continue indefinitely beyond the expiry of the Minimum Subscription Term (the “Renewal Period”) unless either party elects to terminate the subscription at the end of the Minimum Subscription Term by providing no less than four (4) months’ written notice to the other Party prior to the end of the Minimum Subscription Term. Unless otherwise specified in a Contract Document, either Party may terminate a subscription any time during the Renewal Period by providing no less than four (4) months’ written notice to the other Party. Fees shall continue to accrue from the date of the notice of termination to the effective date of termination, and the Parties shall continue to fulfil all their obligations under the Agreement for the duration of the notice period.

12.4            Termination for Default. Facilisgroup may terminate the Agreement immediately upon a material breach by the Partner that is not capable of cure or that is capable of cure but has not been cured within thirty (30) days after receipt of notice of such breach. For the avoidance of doubt, but without limitation, a breach by the Partner of its obligations under Sections 3 (Fees), 4 (Intellectual Property and Restrictions) or 5 (Confidentiality and Security) shall constitute a material breach of the Agreement which is incapable of remedy.

12.5            Termination for Insolvency. Without limiting Facilisgroup’s other rights and remedies, in the event of any of the following events or circumstances, Facilisgroup may immediately terminate the Agreement by giving notice to the  Partner if: (a) the Partner becomes bankrupt or insolvent; (b) the Partner becomes insolvent; (c) the Partner makes a general assignment for the benefit of creditors; (d) a petition in bankruptcy is filed by the Partner, or such a petition is filed against the Partner; (e) a receiver or other custodian or trustee of the Partner’s assets or property, or any part thereof is appointed by a Court of competent jurisdiction; and/or (f) the Partner is dissolved, wound up, acquired, or merged. The Partner shall immediately notify Facilisgroup if it becomes, or reasonably suspects it will become, subject to any of the circumstances that would entitle Facilisgroup to terminate the Agreement under this Section 12.5. 

12.6            Termination for Partner Change of Control. Without limiting Facilisgroup’s other rights and remedies, the Partner shall immediately notify Facilisgroup, and Facilisgroup may immediately  terminate the Agreement if there is a change of ownership or control of the Partner which would cause the Partner to be in breach of Section 4.4 (Non-competition).

12.7            Suspension. If the Partner fails to timely pay any amounts due to Facilisgroup under Agreement and such  failure continues for fifteen (15) days or if any circumstances entitling Facilisgroup to terminate the Agreement arise, Facilisgroup may (without limiting or prejudicing its right to termination), at its option, immediately limit, suspend, or terminate the Partner’s use of the Facilisgroup Platforms and Services. Such suspension shall not release the Partner of any of its payment obligations under the Agreement and Facilisgroup shall not be liable to the Partner or to any third party for any liabilities, claims or expenses arising from or relating to such suspension.

12.8            Facilisgroup Obligations Upon Termination. Upon termination of the Agreement, Facilisgroup shall comply with its obligations under Section 7.3 (Return of Data) and Section 14 (Supplier Rebates). 

12.9            Partner Obligations Upon Termination. Upon termination of the Agreement all remaining sums payable and/or due under the Agreement shall be payable by the Partner upon demand. If the Agreement is terminated during a Minimum Subscription Period then, unless the Agreement is lawfully terminated by the Partner under this Section 12, such sums shall include any and all Fees that are (or would have been) payable in respect of the unexpired Minimum Subscription Period. In addition, the  Partner and its Authorized Users shall (a) immediately cease all access and use of the Facilisgroup Platforms, Services and documentation related thereto; (b) immediately cease all use of the Intellectual Property; (c) promptly return all materials and documentation to Facilisgroup which incorporate or utilize the Confidential Information or Intellectual Property; and (d) promptly cease displaying on the Internet any Facilisgroup Trademarks or any other images, text, links, indices, prices, catalogs or other materials provided by Facilisgroup.

12.10          Survival. Notwithstanding anything herein to the contrary, upon termination of the Agreement, Sections numbered 3 (Fees), 4 (Intellectual Property and Restrictions), 5, (Confidentiality and Security), 8 (Representations, Warranties and Disclaimer), 9 (Claims and Indemnity), 10 (Liability), 12 (Termination and Suspension), 13 (Merger or Acquisition), 14 (Supplier Rebates) and 15 (General Provisions) of these Terms and Conditions shall survive the termination of the Agreement.

SECTION 13.  MERGER OR ACQUISITION 

13.1            For the purposes of this Section 13: (a) “Acquirer” means the person, business or entity making an Acquisition; (b) “Acquisition” means a combination of a business or its operations through an equity acquisition, merger, consolidation or acquisition of substantially all of the assets of one of another business and “Acquire(s)” and “Acquired” shall be construed accordingly; (c) “Existing Partner” means a third party that is, as at the date of the Acquisition, also a partner of Facilisgroup; and (d) “Non-Partner” means a third party that is not, as at the date of the Acquisition, a partner of Facilisgroup.

13.2            Partner is acquired by Non-Partner. If the Partner is Acquired by a Non-Partner, thensubject to Section 12.5, unless otherwise agreed by both Parties, the Agreement shall continue in full force and effect and the Fees shall remain due and payable by the Partner under the Agreement unless and until otherwise terminated in accordance with its terms.

13.3            Partner acquires a Non-Partner. If the Partner Acquires a Non-Partner and such Acquisition occurs during a Fixed Price Period, the Fees payable by the Partner (or Acquirer should the Partner be merged or reorganized or cease to exist in connection with the Acquisition) shall be adjusted, with effect from the 1^st January following the date of Acquisition and for the remainder of the Partner’s then-current Fixed Price Period, and shall be calculated as follows:

a)      The Price List against which the Fees payable under the Partner’s then-current Agreement were calculated shall apply.

b)      The revenue used to measure against this Price List will be the sum of the Partner’s latest Annual GMV plus the acquired Non-Partner’s revenue in its last calendar year.

c)      A discount shall be applied from the Price List, equal to the discount that was applied to the Fees payable under the Partner’s then-current Agreement.

13.4            Partner is acquired by an Existing Partner. If the Partner is Acquired by an Existing Partner and the Acquisition occurs during a Fixed Price Period of either or both the Partner and Existing Partner, the Fees collectively payable by the Partner and Existing Partner (or Acquirer should the Partner and/or Existing Partner be merged or reorganized or cease to exist in connection with the Acquisition) shall be adjusted, with effect from the first calendar month following the Acquisition (“Adjustment Date”), and shall be calculated as follows:

a)      The Price List against which the Fees payable under the Existing Partner’s Agreement as at the Adjustment Date shall apply.

b)      The revenue used to measure against this Price List shall be the sum of: (i) the Existing Partner’s revenue in the 12-months immediately prior to the Adjustment Date, plus (ii) the Partner’s latest Annual GMV.

c)      For the remainder of such Fixed Price Period a discount shall be applied from the Price List, equal to the discount that was applied to the Fees currently payable under the Existing Partner’s Agreement.

In addition, at the time that the Existing Partner leaves Facilisgroup, if:

1.      the Fees payable under the Agreement for the remaining Fixed Price Period of the Partner’s Agreement at the time of Acquisition

are greater than

2.      the increase in the Existing Partner’s Fees as consequence of the Acquisition (new Fees payable post-Acquisition during the remainder of the Fixed Price Period minus the Fees that would have been payable post-Acquisition during the remainder of the Fixed Price Period),

then the Existing Partner (or Acquirer should the Existing Partner be merged or reorganized or cease to exist in connection with the Acquisition) shall pay the difference to Facilisgroup.

13.5            Other Acquisitions. Other than as set out in this Section 13, and subject always to Section 12.6, any Acquisition relating to or involving the Partner shall not affect the validity of the Agreement (which shall remain in full force and effect) nor relieve the Partner of its payment obligations under the Agreement (which shall continue unless and until terminated in accordance with the terms of the Agreement).

SECTION 14.  SUPPLIER REBATES

Upon the date of live implementation on Syncore®, the Partner may earn certain rebates from preferred suppliers based on their purchase volumes as calculated and verified by Facilisgroup, in accordance with Facilisgroup’s relevant policy. Payment of such rebates is conditional upon the Partner being and remaining in good standing twice annually in accordance with Facilisgroup’s then-current relevant policy. Such rebates are generally paid via check from Facilisgroup, but certain suppliers may distribute their rebates via credit memo (in which case Facilisgroup shall pass these to the Partner). Following termination of the Agreement, the Partner shall be solely responsible for liaising directly with the relevant supplier to claim any rebate earned by the Partner but not yet paid by Facilisgroup. If, at any time, any sum is overdue from the Partner to Facilisgroup, Facilisgroup may retain and set-off some or all supplier rebates payable to the Partner against such overdue sum. 

SECTION 15.  GENERAL PROVISIONS 

15.1            Injunctive and Equitable Remedies. The Partner acknowledges and agrees that any breach or threatened breach of Sections 4 (Intellectual Property and Restrictions) or 5 (Confidentiality and Security) may cause irreparable harm to Facilisgroup and the Facilisgroup Group for which monetary damages would be an inadequate remedy. Accordingly, in addition to any other rights or remedies available at law or in equity, Facilisgroup shall be entitled to seek immediate injunctive, specific performance or other equitable relief (without the requirement to post a bond or prove actual damages) to prevent or curtail any such breach or threatened breach.

15.2            Inurement. The Agreement shall be binding upon and inure to the benefit of the successors and assigns of Facilisgroup and the heirs, executors, administrators, estate trustees, successors and permitted assigns of the Partner.

15.3            Assignment of Rights and Obligations by Facilisgroup. Facilisgroup shall have the right, without the Partner’s consent, to transfer or assign its interest in the Agreement to any person, persons, partnership, association, corporation, or other entity and the Partner agrees promptly to execute any documents in connection therewith. If Facilisgroup’s assignee assumes all of the obligations of Facilisgroup hereunder and sends the Partner written notice of the assignment so attesting, the Partner agrees promptly to execute a general release of Facilisgroup, and any affiliates of Facilisgroup, from claims or liabilities of Facilisgroup under the Agreement. 

15.4            Assignment of Rights and Obligations by Partner. In the absence of Facilisgroup’s prior written consent, the Partner shall not sell, assign, transfer, convey, donate, pledge, mortgage, or otherwise directly or indirectly encumber the Agreement or any portion thereof and any purported assignment or transfer, by operation of law or otherwise, shall be null and void and shall constitute a breach of the Agreement. Subject to Section 13 (Merger or Acquisition), Facilisgroup shall not unreasonably withhold, condition or delay its consent to an assignment or transfer of the Agreement in connection with an Acquisition of or by the Partner, provided that the assignee or transferee is of good financial standing and capable of compliance with the terms and conditions of the Agreement. For the avoidance of doubt, nothing in this Section 15.3 shall prevent or restrict Facilisgroup from withholding its consent if such transfer or assignment would cause the Partner (or its transferee or assignee) to be in breach of Section 4.4 (Non-competition).

15.5            Entire Agreement The terms and conditions of the Agreement, including these Terms and Conditions and any applicable Contract Document, constitute the entire agreement between the Parties. Both Parties hereby agree that an electronic signature shall be as valid as an original signature and that clicking a box indicating acceptance of the Contract Document or these Terms and Conditions shall be a valid indication of legal acceptance.  If any provision hereof is held invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision, and such invalid provision shall be deemed to be severed from the Agreement, and the other provisions of the Agreement shall remain in full force and effect. 

15.6            Non-waiver. No waiver by Facilisgroup of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of the Agreement. Any termination of the Agreement shall not be construed as a waiver by Facilisgroup of any rights to damage or other legal remedies or equitable relief arising by reason of any breach or termination of the Agreement.

15.7            Relationship of the Parties. The Agreement does not in any way create a relationship of employer/employee or principal/agent between the Parties and neither Party shall act or attempt to act or represent itself as an agent directly or by implication on behalf of the other or attempt to assume or create any obligation on behalf of or in the name of the other. It is expressly understood that the Partner shall have no authority to bind or commit Facilisgroup to obligations not imposed by the Agreement.

15.8            Order of Precedence. If there is any conflict or inconsistency between: (a) these Terms and Conditions; and (b) any Contract Document, then the applicable Contract Document shall prevail to the extent of the conflict or inconsistency.

15.9            Notices to Facilisgroup. All notices required or permitted to be given by the Partner to Facilisgroup under the terms of the Agreement shall be sent by prepaid certified or registered mail, return receipt requested to the address set forth on the Contract Document or at such other address as Facilisgroup may from time to time deliver pursuant to the Agreement. Any notice mailed shall be deemed to have been given and received on the third business day following the date of its mailing.

15.10          Notices to Partner. All notices required or permitted to be given by Facilisgroup to the Partner under the terms of the Agreement shall be sent by electronic mail to the address set forth on the Contract Document. Any notice delivered or transmitted by electronic mail shall be deemed to be given and received on the date of its delivery or transmission, as the case may be, provided that such day is not a Saturday, Sunday, or statutory holiday. If a notice is delivered upon a day that is a Saturday, Sunday, or statutory holiday, then the notice shall be presumed delivered on the next day that is not a Saturday, Sunday, or statutory holiday.

15.11          Export Compliance. The Partner acknowledges and agrees that the Facilisgroup Platforms and Services may be subject to export and import controls under the regulations of the United States, Canada and other countries. The Partner shall comply with all applicable export and import control regulations. The Partner shall not use the Facilisgroup Platforms or Services for any purposes prohibited by export laws and shall be responsible for obtaining all permissions that may be required for any subsequent export, import or use of the Facilisgroup Platforms and Services.

15.12          Force Majeure. Neither Party shall be responsible for failure or delay of performance caused by circumstances beyond its reasonable control, including (without limitation) earthquake, storm, or other act of God; labor disputes; electrical, telecommunications, or other utility failures; failure of third‑party infrastructure providers; failures of Third Pary Services; embargoes; riots; acts of government; or acts of terrorism or war. A Party seeking relief from performance under this Section must (i) provide notice of such circumstances to the other Party as soon as practicable, (ii) use commercially reasonable efforts to avoid or mitigate such circumstances, and (iii) resume performance as soon as practicable upon the cessation of the circumstances. If the failure or delay continues for more than 30 days, either Party may, in its discretion, terminate the Agreement. Such termination will not result in any liability by either Party, except that, if the Partner terminates the Agreement for Facilisgroup’s failure, Facilisgroup shall refund the Partner a pro rata amount of any prepaid Fees applicable to the unused portion of the Fees measured from the last date on which the Partner was able to access the Facilisgroup Platforms or Services. This Section shall not apply to the Partner’s obligation to timely pay Facilisgroup.

15.13          Modification. Facilisgroup may modify these Terms and Conditions, excluding the value of the Fees (for which arrangements, including Facilisgroup’s rights of modification are set out in Section 3 (Fees)), in its discretion at any time. Modifications to these Terms and Conditions shall become effective and binding on the Partner upon the earlier of: (a) the Partner’s acceptance of the modified Terms and Conditions; or (b) upon the expiry of no less than sixty (60) days’  prior  notice to the Partner of such modifications. Notwithstanding the foregoing, Facilisgroup shall not be required to provide prior notice if modifications are necessary to comply with applicable law but shall use commercially reasonable efforts to provide notice when practicable. If a modification takes effect during a Minimum Subscription Term and the Partner believes that a modification would materially adversely affect the Partner’s rights, the Partner may notify Facilisgroup of its concerns within 30 days of its receipt of Facilisgroup’s notification of such modification. If the Parties are unable to resolve such matter within 30 days of Partner’s notification, the Partner may terminate the Agreement by providing written notice to Facilisgroup. Such notice must be served no later than 60 days after the Partner’s notification of its concerns to Facilisgroup and shall expire 60 days’ after service (whereupon the Agreement shall terminate).

15.14          Governing Law. If the Partner is resident in the United States, the Agreement and the performance of the Parties hereunder shall be construed in accordance with and governed by the laws of the State of Missouri, and the laws of the United States, applicable therein. If the Partner is resident in Canada, the Agreement and the performance of the Parties hereunder shall be construed in accordance with and governed by the laws of the Province of Ontario, and the laws of Canada, applicable therein.

15.15          Dispute Resolution. In the event of any dispute between Parties arising out of or in connection with the Agreement, Parties shall attempt in good faith to negotiate a settlement within twenty (20) days of either Party notifying the other of the dispute. Such notification shall be delivered in writing and summarize in sufficient detail the basis of the dispute. If Parties are unable to resolve a dispute within twenty (20) days, all disputes arising under or in connection with the Agreement shall be resolved exclusively through binding arbitration using the American Arbitration Association. If the Partner is resident in the United States, the arbitration shall be conducted in St. Louis, Missouri, unless otherwise agreed by the Parties and the Parties agree to the exclusive jurisdiction of Missouri. If the Partner is resident in Canada, the arbitration shall be conducted in the Province of Ontario, unless otherwise agreed by the Parties and the Parties agree to the exclusive jurisdiction of the Province of Ontario. The language of the arbitration shall be English. Such arbitration shall be conducted, unless otherwise agreed, by a single arbitrator, who shall be a former judge. The award of the arbitrator may be confirmed or enforced in any court of competent jurisdiction. The prevailing Party in any arbitration shall be entitled to recover all costs incurred in connection with the proceeding, including reasonable attorneys’ fees. Notwithstanding the foregoing, nothing is intended to prevent either Party from seeking solely injunctive relief in the state and federal courts with jurisdiction in St. Louis County, Missouri (if the Partner is not resident in Canada) or in the Province of Ontario (if the Partner is resident in Canada).