Spendesk partner program - Terms and conditions

Spendesk offers an expense management platform for companies. These terms and conditions (the “Terms”) govern the Partner’s participation in the Spendesk partner program, under which the Partner may introduce Customers to Spendesk in return for Benefits (the “Program”).

1. Definitions

In these Terms, capitalized terms not specifically defined have the meaning attributed to them below:

2. Adherence to the Program

To join the Program, the Partner must be accepted by Spendesk and sign or approve online the customised Adherence Form provided by Spendesk to the Partner. The Partner guarantees to Spendesk that it is lawfully able to enter into commercial contracts and that the person signing or approving the Adherence Form has legal authority to bind the Partner (if the Partner is a legal entity).

3. Introductions eligible to the Benefits

Only Customers who validate the following cumulative conditions shall be considered as introductions giving right to the Benefits (the “Introductions”):

(i) The Customer shall contract with Spendesk for the first time, this contracting being understood as (i) the acceptance by the Customer of the general terms and conditions of use of Spendesk, (ii) the first payment into the Spendesk account by the Customer and (iii) the validation of the Customer’s KYC documents by Spendesk, these three conditions being cumulative (the “Contracting”);

(ii) The Customer shall not already belong to the existing customer base or the list of active prospects of Spendesk. If Spendesk has had a prospecting activity (i.e., physical or virtual meeting) with one or more contacts of the prospect in the last three (3) months, Contracting with the prospect will not be considered as an Introduction from the Partner. Spendesk shall be able to prove this prospecting activity via an extract from its CRM tool.

Spendesk shall provide the Partner with a report listing all Introductions completed over the period, according to the periodicity defined in the Financial Terms. These reports establish, in the event of a dispute, whether or not there has been a Customer Introduction by the Partner and identify the Introduction concerned. These reports shall constitute the main method of proof between the Parties.

It is specified that Spendesk has complete freedom to accept or refuse the Customers introduced by the Partner, for any reason whatsoever, without this giving rise to any compensation for the Partner. Spendesk may contract or not with potential customers without restriction, during the Contract or after its termination.

4. Benefits

4.1. Description and amount

The Partner shall be granted with the Benefits listed in the Financial Terms. These Benefits constitute a total, fixed and final compensation for all the Partner’s services under the Contract, without any exception or reservation. The Partner may not therefore claim any other remuneration, indemnity or payment whatsoever.

The Benefits are due only in the event of Contracting with the introduced Customer.

4.2. Payment (if applicable)

If a commission is due to the Partner under the Financial Terms:

• The Partner shall issue invoices based on Spendesk's reports mentioned in article 3;

• Spendesk shall pay any invoice issued by the Partner within forty-five (45) days of its issue date; and

• The Parties expressly agree that no advance payments on commission shall be made.

4.3. Final settlement of Benefits

At the end of the Contract, regardless of the cause, the Parties undertake to draw up a final statement which (i) shall settle latest Introductions eligible to Benefits and (ii) shall be validated in written by both Parties. Where applicable, any Benefit remaining due by Spendesk shall be granted to the Partner (payment upon presentation of an invoice from the Partner, as the case may be).

4.4. Ancillary costs

The costs incurred by the Partner for the purposes of performing the Contract may be borne by Spendesk subject to Spendesk’s prior written approval. Any reimbursement shall be made upon presentation of the corresponding accounting receipts.

5. Direct relationship between Spendesk and the customer

The Partner expressly acknowledges that it has no rights related to the Spendesk - Customer relationship, other than the Benefits, whether concerning Customers with whom Spendesk subsequently maintains business relationships or concerning Services provided by Spendesk.

By express agreement between the Parties, it is agreed that Spendesk shall have complete freedom to set the amount of the prices that it will invoice to the introduced Customers. In particular, Spendesk has complete freedom to grant the introduced Customers any discounts or rebates it deems appropriate, without the Partner being able to challenge these decisions in any way.

The Partner undertakes not to communicate to the Customers the prices, discounts and rebates offered by Spendesk (subject to provisions to the contrary expressly agreed).

6. Limited scope of the Contract - Independence of the Parties

By joining the Program, the Partner is granted only with the Benefits listed in the Financial Terms and the Partner is not authorized to resell or sublicense Spendesk Services.

The Partner shall under no circumstances act in the name and on behalf of Spendesk, which means, in particular, that the Partner shall not:

• enter into any contract in the name of Spendesk;

• negotiate the agreement applicable to the sale of Spendesk Services to the Customers; or

• claim, in any way, the capacity of agent, representative or employee of Spendesk, nor commit Spendesk towards third parties.

The Parties are professionals, independent of each other, who will always act as such. The Contract does not under any circumstances constitute an employment contract, and any employment relationship is expressly excluded by the Parties, as an essential condition without which the Parties would not have entered into the Contract.

The Parties represent that the Contract cannot under any circumstances be considered as a mandate of common interest, nor as a commercial agent contract, particularly within the meaning of the provisions of articles L. 134-1 et seq. of the French Commercial Code, or as a traveller, representative or sales agent contract (“VRP”) within the meaning of article L. 7311-3 of the French Labour Code.

In particular, the Partner guarantees to Spendesk throughout the term of the Contract that it does not exclusively and consistently exercise a representative profession without carrying out commercial or other professional activity on its own behalf. Should this situation change during the term of the Contract, the Partner undertakes to inform Spendesk immediately and the Contract shall automatically end.

Under the terms hereof, no specific legal structure is formed between the Parties, each retaining its full autonomy, responsibilities and its own customer base.

No Party shall be entitled to compensation of any kind upon termination of the Contract (other than the Benefits specifically listed in the Financial Terms).

7. Amendment of the Contract

Spendesk reserves the right to amend, at any time, all or part of the Contract between Spendesk and the Partner. Any proposed amendment of the Contract will be sent by Spendesk to the Partner by email, no later than two (2) months before the date proposed for its entry into force. The Partner will be deemed to have accepted the proposed amendments if it has not notified Spendesk, before the proposed effective date of these amendments, that it does not accept them. If the Partner refuses the amendments, it can terminate the Contract, without charge, before the proposed effective date of the amendments, under the conditions provided for in article 8.

Spendesk cannot under any circumstances be held liable for any damage, in any capacity whatsoever, in connection with the amendment of the Contract, if the Partner refrains from terminating the Contract and continues to participate in the Program after the effective date of the amendments.

8. Term - Termination

8.1. Term

The Contract shall enter into force from the date of signature or acceptance of the Adherence Form (the “Effective Date”), for an indefinite period.

8.2. Termination

The Contract may be terminated by either Party by any written means, at any time, subject to giving one (1) month’s prior notice.

Spendesk may also terminate the Contract or the Partner’s participation in any aspect of the Program (such as a downgrade in Program tier as described in the Financial Terms) immediately upon notice to the Partner:

(i) if the Partner is in material breach and fails to cure within a reasonable time period specified by Spendesk;

(ii) if the Partner’s participation in the Program could subject Spendesk or its Affiliates to harm; or

(iii) in order to comply with the law or requests of a supervisory authority.

8.3. Effects of termination

Upon termination of the Contract:

(i) Spendesk will remain responsible for the payment of any Benefits due to the Partner pursuant to article 4;

(ii) each Party will immediately cease use of, and remove from its website, or, if instructed by the other Party, destroy all Marketing Materials (as defined in article 9) in its possession;

(iii) the Partner will immediately cease to identify itself or hold itself out as a Program participant or “Partner” of Spendesk; and

(iv) articles 5, 9, 12, 13, 14, 16 and 17 will continue to apply in accordance with their terms.

9. Intellectual property

For the proper performance of the Contract, each Party grants to the other Party a free, non-exclusive, non-transferable, revocable license limited to the territory of the services under these Terms, for the use of (i) its brand (name and associated logo) and (ii) the commercial materials specifically provided under the Contract (together, the “Marketing Materials”).

This licence is granted for a limited term which may in no case exceed the term of the Contract and each Party undertakes to use the Marketing Materials of the other Party only in the strict framework of the performance of the Contract.

With the exception of the licence expressly provided for in this article, each Party agrees that the Contract does not make any other transfer of intellectual property rights relating to the elements belonging to it and of which it remains the exclusive owner.

The Partner undertakes to ensure that its promotional and canvassing practices as well as its communication relating to Spendesk and the Services comply with Spendesk’s brand image and positioning and comply with Spendesk’s quality standards and commercial policy. Each Party undertakes not to associate the other Party’s Marketing Materials with any potentially dangerous, threatening, defamatory, obscene, offensive, sexually explicit, violent, discriminatory or otherwise objectionable or questionable content.

The Partner undertakes to comply with the Spendesk logo charter.

10. Spendesk’s undertakings and guarantees

Spendesk undertakes to provide the Partner with all commercial documents, communication materials and more generally all elements useful for the performance of the Contract.

Spendesk guarantees that it duly owns all intellectual property rights in the Services and/or that it does not infringe any third-party rights in this respect.

11. Partner's undertakings and guarantees

The Partner guarantees to Spendesk that it is a professional with the skills, experience and all the means necessary to properly perform the services referred to in the Contract.

The Partner represents (as the case may be) that it has, on the date of signature hereof, a legal status allowing it to collect the commissions that Spendesk would pay to it under the Financial Terms and holds Spendesk harmless in this respect. Furthermore, the Partner shall be personally responsible for all tax and social security charges arising from the payment of commissions pursuant to the Contract and holds Spendesk harmless in this respect.

12. Confidentiality

Each of the Parties undertakes to keep strictly confidential all documents and information of a legal, commercial, industrial, strategic, technical or financial nature relating to the other Party of which it becomes aware at the time of the conclusion and performance of the Contract, and not to disclose them without the prior written consent of the other Party.

This obligation does not extend to documents and information:

(i) which were previously known by the receiving Party;

(ii) which were already public at the time of disclosure or which would become public without breach of the Contract;

(iii) which would have been lawfully received from a third party; or

(iv) which disclosure would be required by the judicial authorities, pursuant to the laws and regulations or with a view to establishing the rights of a Party under the Contract.

This obligation of confidentiality extends to all employees, contractors, trainees, managers and agents of the Parties as well as their advisers and Affiliates, to whom confidential documents or information may only be transmitted if they are bound by the same obligation of confidentiality as that provided for herein.

It shall continue to have effect for three (3) years following the end of the Contract.

Each Party shall, at its own expense, at the end of the Contract or at any other time, upon receipt of a written request from the other Party, (i) return or destroy all written confidential information provided to it directly or to its advisers and which is in the possession of that Party or in its custody and control, without keeping copies thereof; and (ii) provide a certificate signed by a legal representative confirming that to the best of its knowledge and belief, having made all proper enquiries, the requirements of this clause have been fully complied with.

However, the receiving Party may retain confidential information to the extent required by applicable law or by its internal compliance policies or if such confidential information has been created in accordance with automatic electronic archiving procedures. Any confidential information that is kept by the receiving Party in accordance with the foregoing shall continue to be subject to the confidentiality obligations of the Contract until such confidential information is returned or destroyed.

13. Personal Data

Personal Data is processed by the Parties under the Contract for the purpose of the Introductions.

In accordance with the Data Protection Legislation, the Partner acts as data controller and guarantees to Spendesk that it complies with the obligations of the Data Protection Legislation incumbent upon it due to its status, and in particular that it has defined a compliant legal basis.

Spendesk acts as the recipient of the Personal Data transmitted by the Partner in accordance with the Data Protection Legislation. After transmission of Personal Data, Spendesk acts as data controller.

14. Liability

The liability of each of the Parties is limited to direct material damage, to the exclusion of any indirect and/or immaterial damage suffered by the other Party in the context of the performance or termination of the Contract.

The liability of each of the Parties for any material and/or direct damage suffered by the other Party in the context of the performance or termination of the Contract, regardless of the cause thereof, is limited, for all damages, to the amount paid by Spendesk to the Partner during the twelve (12) months preceding the event giving rise to the damage (or the sum of ten thousand euros (€10,000), only if no fees are paid by Spendesk to the Partner under the Financial Terms).

15. Contract assignment

The Contract is deemed to have been entered into in consideration of the person of the Parties and as such, the Parties may not assign or transfer all or part of their rights or obligations under the Contract to a third party, in any manner whatsoever.

Notwithstanding the provision above, the Partner expressly authorises Spendesk to assign all or part of its obligations under the Contract to an Affiliate, subject to informing the Partner in advance.

16. Miscellaneous

16.1. Non-exclusivity

The Parties do not grant any exclusivity to each other.

16.2. Electronic communication

The Parties acknowledge that, under the conditions provided for in article 1366 of the French Civil Code, emails have the same probative force as written documents on paper. Consequently, emails and messages received electronically must be kept by the Parties under conditions that prevent any alteration of their form or content so as to constitute reliable copies.

16.3. Notifications

All notifications made by email in the context of executing the Contract will be sent:

• with respect to the Partner: to the known email address of the Partner’s primary contact, as listed on the Adherence Form (or any email address subsequently notified by the Partner to Spendesk); and

• with respect to Spendesk: to the address partnerships@spendesk.com

16.4. Autonomy of the Contract

The Contract represents the entirety of the commitments existing between the Parties. It replaces and cancels any previous oral or written commitment relating to the Program. Any document not expressly mentioned in these Terms has no contractual value and is not binding on the Parties.

16.5. Severability

The invalidity or unenforceability of any of the provisions of this Contract shall not entail the invalidity of the other provisions which shall retain their full force and scope. Any invalid or unenforceable provisions will be interpreted to give effect to the intent of the original provisions. If such construction is not possible, the invalid or unenforceable provisions will be severed from these Terms, but the rest of these Terms will remain in full force and effect.

16.6. Dates and time periods

The dates and time periods indicated in the Contract are fixed, with the time periods being expressed in calendar days. When these dates and time periods correspond to or expire on a Sunday or a public holiday in France, they shall not be extended until the first following working day.

16.7. No waiver

Neither Party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under the Contract.

17. Applicable law and competent jurisdiction

The Contract is subject to French law. Any dispute relating in particular to the validity, interpretation, or execution of the Contract will be subject to the exclusive jurisdiction of the Commercial Court of Paris (France).