Partner Terms

These Partner Terms (the "Terms") govern the provision of Services (as defined and specified below) to FaceUp, or its Customers (as defined below). These Terms are incorporated by reference into, and form part of, any agreement between the Parties that expressly references them (the “Agreement”). Together, the Agreement and these Terms establish the fundamental terms and conditions under which the Services will be provided. 

If the Partner's company address set forth in the Agreement or otherwise provided by the Partner is in the United States, FaceUp is FaceUp Technology Inc., headquartered at 75 Port City Landing Suite 110, Mt Pleasant, SC 29464, the United States of America. If the Partner's company address set forth herein or otherwise provided by the Partner is elsewhere, FaceUp is FaceUp Technology s.r.o with a registered address at Jiraskova 222/18, Brno, 602 00, Czech Republic.

DEFINITIONS

Any capitalized terms not defined in these Terms shall have the meanings ascribed to them in the Agreement. Other than the terms defined in the body of these Terms, these terms have the following meaning:

"Affiliate" means any entity controlling, controlled by, or under common control of a Party, where "control" means ownership of or the right to control greater than 50% of the voting securities of such entity.

"Approved Target" means a Registered Target that has been explicitly approved by FaceUp.

"Billing Terms" means the billing terms and payment procedures for Partner compensation available at https://www.faceup.com/en/partner-billing-terms, as amended from time to time by FaceUp.

"Code of Conduct" means the Code of Conduct for Partners and Vendors available at https://www.faceup.com/en/code-of-conduct, as amended from time to time by FaceUp, which sets forth the ethical standards, compliance requirements, and conduct expectations applicable to the Partner under this Agreement.

"Customers" mean the customers of FaceUp who have entered into an agreement with FaceUp or Partner, as applicable, to use the Products.

"Deliverables" mean any outputs of the Services and any other documents, products, and materials provided by the Partner to the Customer or FaceUp, as applicable, in connection with this Agreement.

"Feedback" means comments, questions, suggestions, or other feedback relating to the Services or the Products.

“Force Majeure Event” means an unforeseen event outside a Party’s reasonable control where the affected Party took reasonable measures to avoid or mitigate the impacts of the event. Examples of these kinds of events include unpredictable natural disasters like a major earthquake or pandemic; war, riot, or act of terrorism; or public utility or internet failure.

"Intellectual Property Rights" mean all valid patents, trademarks, copyrights, trade secrets, moral rights, feedback and other intellectual property rights, as may exist now or hereafter come into existence, and all renewals and extensions thereof, and all improvements to any of the foregoing, regardless of whether any of such rights arise under the laws of any state, country, or other jurisdiction.

"Laws" mean all applicable local, state, federal, and international laws, regulations, contracts, and internal policies of the Partner, including provisions with respect to fiduciary duties or conflicts of interest, or conventions.

"Partner Portal" means the online platform provided by FaceUp to Partners, through which Partners can access information regarding compensation tiers, thresholds for advancement, performance targets, deal registration and management (PRM), and other partner program requirements and benefits.

“Party" means either FaceUp or the Partner; the "Parties" are both FaceUp and the Partner.

“PRM” means partner relationship management system.

"Products" mean specialized SaaS (software as a service) services provided by FaceUp, as well as other associated products and services facilitated by FaceUp.

"Professional Services" (formerly "Implementation Services") means professional services provided by the Partner under the Agreement, including but not limited to: (a) implementation and integration of the Services; (b) customer onboarding and training; (c) reporting assistance and compliance support; (d) investigation support; (e) legal advice related to the use of the Products; (f) assistance with resolving compliance issues; (g) guidance on next steps and best practices; and (h) any other professional services as may be agreed between FaceUp and the Partner via email. The precise scope of Professional Services for each engagement shall be agreed upon with FaceUp via email.

"Qualified Lead" means a Target or potential Customer with whom the Partner has conducted at least one discovery call, and for which the Partner may be eligible for compensation in accordance with the terms of the Agreement and the Partner Portal.

“Qualified Transaction” means a sale, subscription, referral, or other revenue-generating transaction for the Services that (a) is submitted by the Partner in accordance with FaceUp’s procedures, (b) is accepted or approved by FaceUp, and (c) results in a binding agreement with the Customer or amounts to a Qualified Lead. Transactions that are rejected, cancelled, duplicative, previously known to FaceUp, or that fail to meet FaceUp’s communicated criteria do not qualify as Qualified Transactions.

"Referral Services" mean the referral services provided by the Partner for FaceUp, if applicable.

"Reseller Services" mean the reseller services provided by the Partner for FaceUp, if applicable.

"Services" mean Professional Services, Referral Services,  Reseller Services, or other services provided by the Partner, as applicable.

"Target” means a third party, other than a Partner Affiliate, which is a potential Customer of FaceUp. Targets may include leads identified by the Partner or leads provided by FaceUp at FaceUp's sole discretion. For Referral Services or Reseller Services, a Target must be properly registered in the Partner Portal, in accordance with the applicable Agreement.

"Taxes" mean any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of FaceUp.

“Territory” means the geographic region described in the Agreement, within which Partner is authorized to market, promote, sell and resell the Products. Territory designation may be defined by FaceUp in the applicable Partner Agreement.

"Tier" or "Compensation Tier" means the partner compensation level as defined in the Partner Portal, which determines the commission rates, benefits, and other compensation applicable to the Partner based on performance, sales volume, and other criteria established by FaceUp.

1. SCOPE OF THE AGREEMENT

1.1. Provision of Services. The Partner will provide the Services agreed between the Parties in the applicable Agreement. The Partner may use the Products only insofar as required for the provision of the Services.

1.2. Partner Portal and Deal Flow. Upon execution of the Agreement, FaceUp shall provide the Partner with access to the Partner Portal, an online platform for managing compensation tiers, deal registration, and performance tracking. All sales opportunities must be registered in the Partner Portal immediately upon first contact with a Target or Qualified Lead. 

1.3. Payment. Payment for Services provided by the Partner shall be made in accordance with the applicable Agreement and the Billing Terms. All compensation shall be determined based on the Partner's Tier as defined in the Partner Portal.

2. PROVISION OF THE SERVICES

2.1. Duties of the Partner. The Partner undertakes to: (a) provide the Services with all due care, skill and ability and in accordance with best industry practice; (b) ensure that all personnel involved in the provision of the Services (i) are suitably skilled, qualified, and experienced; and (ii) will comply with the terms of the Agreement and are bound by confidentiality obligations which include keeping the Confidential Information confidential; (c) provide all equipment, tools, and other items required for the provision of the Services as an independent party; (d) promptly give to FaceUp all such information and reports as it may reasonably require in connection provision of the Services; (e) except as authorized by FaceUp, (x) not to act in a way which will incur any liabilities on behalf of FaceUp nor to pledge the credit of FaceUp; or (y) make or give any representations, warranties, guarantees or other promises concerning the Products beyond those contained in FaceUp’s Terms of Service; (f) comply with the Code of Conduct at all times during the term of this Agreement. The Partner acknowledges that compliance with the Code of Conduct is a material condition of this Agreement. 

2.2. Registration of Qualified Leads and Targets. The Partner must register all Qualified Leads and Targets in the FaceUp PRM immediately upon first contact with the Target or lead. "First contact" means the initial communication, meeting, discovery call, or other engagement with a potential Customer. Failure to register a Target or Qualified Lead promptly may result in (a) loss of exclusivity rights for that Target or lead; (b) ineligibility for compensation if the Target is already registered by another partner or is in direct discussions with FaceUp; or (c) rejection of the registration by FaceUp. The Partner agrees to maintain accurate and up-to-date information in the Partner Portal and regularly monitor and update the status of registered opportunities.

2.3. FaceUp Rights. FaceUp reserves the right to (a) modify the Partner Portal functionality, features, and requirements at any time; (b) approve or reject any registered Target or Qualified Lead in its sole discretion; (c) suspend or terminate Partner Portal access for non-compliance with this Agreement.

2.4. Delayed Performance. The Partner undertakes to notify FaceUp on becoming aware of any event or circumstance that will result in, or is reasonably likely to result in, the Partner not meeting any deadline or its duties in Section 2.1. In such circumstances, FaceUp may choose to: (a) agree to remedy plan or an extension of time in respect of the relevant deadlines (and the Parties shall agree a reasonable decrease in the fees to be paid to the Partner to reflect the delayed performance), as applicable; or (b) notify the Partner that remedy plan or an extension is not possible, in which case FaceUp shall be entitled to: (i) obtain substitute services or deliverables from a third party and reclaim any additional costs of such from the Partner, (ii) a refund of any sums already paid by FaceUp or Customer to the Partner in respect of the affected Services, or (iii) renegotiate the terms of the applicable Services (and the Partner agrees to act reasonably and in good faith in such discussions).

2.5. Limitations. Unless specifically authorized by FaceUp in writing: (a) neither the Partner nor the personnel shall have any authority to incur any expenditure in the name of or for the account of FaceUp; (b) the Partner shall not subcontract the performance of the Services; (c) neither the Partner nor the personnel shall hold themselves out as having authority to represent or bind FaceUp. Subject to the foregoing, the Partner's use of permitted subcontractors (if any) will not relieve or diminish its obligations under the Agreement, and the Partner will remain fully liable for its permitted subcontractor.

2.6. Promotion. If implied by the nature of cooperation with the Partner, the Partner will, at minimum, promote FaceUp and its products to Targets in the following way: (A) the Partner shall act as a positive reference to the targets; (b) the Partner shall reach out to its business partners and inform the business partners about the partnership with FaceUp; (c) if applicable, the Partner shall list FaceUp as a provider on Partner’s intranet and in their digital marketing communication to its business partners; (d) the Partner agrees to a localized social media post (LinkedIn, Instagram, or Facebook) to announce the cooperation of the Partner in scope mutually agreed by the Parties; (e) the Partner may choose to apply to events or workshops organized by FaceUp or may accept an invitation to attend an external event together with FaceUp; (f) the Partner may extend an invitation to FaceUp for any (trade) shows, hotel workshops & seminars to co-present with the Partner as applicable and relevant; (g) the Partner agrees to encourage one of the business partners to publish a mutually agreeable written case study after they completed the training phase and are live on FaceUp; and (h) the Partner agrees to encourage and support individual business partners to become active spokespersons of FaceUp through the full use of the products.

2.7. List of personnel. The Partner is responsible for maintaining an updated list of all its personnel who are authorized to provide the Services.

2.8. Documentation and Promotion Materials. FaceUp undertakes to provide the Partner with relevant information relating to its Products. In this respect, FaceUp will provide the Partner with the technical and commercial documents relating to the Products. At FaceUp’s sole discretion, FaceUp will provide Partner with promotion materials to help facilitate promotion of FaceUp Products. If the Partner decides to create digital or tangible marketing materials or a website intended for the promotion of FaceUp Products, both on the internet and its intranet, the final version of such materials shall be subject to final written approval of FaceUp.

2.9. Compliance. The Partner shall at all times provide the Services and perform its other obligations under this Agreement in full compliance with all Laws in any jurisdiction applicable to: (i) the provision of any of the Services by the Partner; (ii) the receipt or use of any of the Services by FaceUp or the Customer, as applicable; and (iii) the performance by the Partner of its other obligations under this Agreement. Where compliance with any Laws is advisable but not mandatory, the Partner shall, as a minimum, comply with best industry practice in relation to compliance with the relevant Laws. 

2.10. Cooperation and Notification of Complaints. As part of its obligations, Partner will promptly investigate and report to FaceUp all complaints received by Partner regarding any of the Products (including, but not limited to, warranty claims), and promptly notify FaceUp of any action taken (or to be taken) in connection therewith. Partner will give immediate attention to and will use its reasonable efforts to promptly respond to and settle (without incurring any obligation or liability on behalf of FaceUp) all complaints received by Partner from any Customer or anyone else arising out of or in connection with the  Products. In handling any complaints, Partner will use its reasonable efforts to maintain and promote good public relations for FaceUp.

2.11. General Restrictions. The Partner shall not, and shall not permit any third party to:(a) rent, lease, lend, sublicense, or otherwise make the Products available to any third party;
(b) use the Products to provide, or incorporate the Products into, any product or service made available to a third party; (c) reverse engineer, decompile, disassemble, translate, adapt, or otherwise attempt to derive or gain access to the source code or any non-public application programming interfaces (APIs) of the Products, except to the limited extent expressly permitted under applicable law, and then only upon prior written notice to FaceUp; (d) copy, modify, translate, adapt, or create derivative works of the Products or any related documentation, unless written consent is obtained from FaceUp; (e) remove, alter, or obscure any proprietary rights notices, disclaimers, or legends contained in or affixed to the Products or any reports, data, or documentation generated thereby, unless written consent is obtained from FaceUp; or (f) publish, disclose, or otherwise make available any benchmark results, performance data, or analyses regarding the Products without the prior written consent of FaceUp.

3. SECURITY & PRIVACY. 

3.1. Technical and Organizational Measures. When providing the Services (other than Referral Services), the Partner agrees to implement and maintain appropriate industry standard technical and organizational measures, at least in scope as provided in FaceUp Data Processing Addendum (“DPA”), if available. Alternatively, FaceUp may provide the minimum standard of technical and organizational measures to be maintained by the Partner, separately.

3.2. Privacy. Parties do not intend for the Partner to process any personal data during the provision of the Services. If the Parties have a DPA, each Party will comply with its obligations in the DPA, the terms of the DPA will control each Party’s rights and obligations as to personal data, and the terms of the DPA will control in the event of any conflict with this Agreement. 

4. OWNERSHIP

4.1. FaceUp Technology. The Partner agrees that FaceUp or its suppliers retain all right, title, and interest (including all Intellectual Property Rights) in and to the Products and all related and underlying technology and documentation and any derivative works, modifications, or improvements of any of the foregoing, including Feedback (collectively "FaceUp Technology"). Except as expressly set forth in this Agreement, no rights in any FaceUp Technology are granted to the Partner.

4.2. Limited License. As applicable and subject to this Agreement, FaceUp grants to the Partner the following non-exclusive rights to: (1) refer FaceUp and demonstrate the Products to Targets and Qualified Leads; (2) implement or integrate the Products and provide Professional Services for the benefit of the Customer; and (3) the right to resell the Products during the agreed term. The Partner will not (and will not allow anyone else to(a) alter or modify the FaceUp brand elements or combine them with any other trademark, service mark, or logo; (b) use the brand elements in a way that implies endorsement or engagement beyond the scope of the Agreement except as required to fulfill the obligations or to identify the Parties’ relationship under this Agreement; or (c) use the brand elements in any context that might harm FaceUp’s reputation or the goodwill associated with the brand elements. In addition, the Partner will promptly cease any use of FaceUp’s brand elements upon written notice from FaceUp; (d) act in violation of Code of Conduct.

4.3. Work Made for Hire. The Services are considered "work made for hire". FaceUp shall own all right, title, and interest, including Intellectual Property Rights, in and to all the Deliverables produced in the course of the provision of any of the Services (including any work in progress and documentation of work developed by the Partner in connection with the Services). To the extent that any such right, title and interest does not vest in FaceUp by operation of law, the Partner hereby irrevocably transfers or assigns to FaceUp, as applicable, as at the date of creation all of its rights, title and interest (including all Intellectual Property Rights) in and to any such Deliverables without further consideration and such transfer or assignment, as applicable, shall also be a transfer or an assignment, as applicable (in respect of any copyright existing therein) of future copyright pursuant to applicable Laws.

4.4. Feedback. The Partner may, from time to time, submit Feedback to FaceUp. All Feedback is given “AS IS”. FaceUp may freely use or exploit such Feedback.

5. TERM AND TERMINATION

5.1. Term. This Agreement is effective as of the Effective Date and continues until terminated or expires in accordance with this Agreement.

5.2. Termination for Convenience. Either Party may terminate this Agreement at any time on thirty (30) days’ notice with no liability to make any further payments (other than in respect of amounts accrued before the termination date).

5.3. Termination for Inactivity. If there has been no engagement, Qualified Transaction, or material activity by the Partner during a period of twelve (12) consecutive months from the execution of the Partner Agreement, this Agreement shall terminate automatically and without notice at the last day of the 12-month period.

5.4. Termination for Failure to Meet Targets. This Agreement will be terminated automatically without notice if the Partner fails to meet the minimum targets, performance thresholds, or other conditions as defined in (a) the applicable Partner Agreement; (b) the Partner Portal; (c) any business plan agreed between the Parties; or (d) any other written performance requirements communicated by FaceUp.

5.5. Termination for Cause. Either Party may terminate this Agreement if the other Party (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter); (d) in the case of the Partner, commits a material breach of the Code of Conduct, or engages in any willful action that violates the Code of Conduct.

5.6. Force Majeure. Either party may terminate the Agreement immediately on notice if a Force Majeure Event prevents either party from performing its obligations for 60 or more consecutive days. However, this Section does not excuse a party’s obligations to pay fees.

5.7. Effect of Termination. Upon any expiration or termination of this Agreement, the Partner will immediately cease all use of and access to all Services (including all related FaceUp Technology). Each Receiving Party will return or destroy Disclosing Party Confidential Information in its possession or control. However, each Receiving Party may retain Disclosing Party Confidential Information in accordance with its standard backup or record retention policies maintained in the ordinary course of business or as required by Applicable Laws, in which case Section 3 (Security & Privacy) and Section 10 (Confidentiality) will continue to apply to retained Confidential Information. Except where an exclusive remedy is specified, the exercise of either Party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

5.8. Final Invoice. If a Party terminates the Agreement pursuant to Section 5.3, the Party receiving payment will, as applicable, either (i) submit a final bill for all outstanding Fees accrued before termination, and the paying party will pay according to Section 7 (Fees), or (ii) issue a refund for any unearned, prepaid fees.

5.9. Survival. The following sections will survive expiration or termination of the Agreement: Section 4.1 (FaceUp Technology ), Section 4.2 (Limited License), Section 4.3 ( Work Made for Hire), Section 5.7 (Effect of Termination), Section 5.9 (Survival), Section 6 (Representations & Warranties), Section 7 (Fees) for fees accrued or payable before expiration or termination, Section 8 (Limitation of Liability), Section 9 (Indemnification), Section 10 (Confidentiality), Section 11 (General Terms).

6. REPRESENTATION & WARRANTIES

6.1. Mutual Warranty. Each Party represents and warrants to the other Party that: (a) such Party is duly incorporated and validly existing under the laws of the jurisdiction of its incorporation; and the execution, delivery, and performance of the Agreement constitute a legal, valid, and binding obligation of such Party; (b) such Party has all requisite corporate power and financial capacity, and authority to execute, deliver, and perform its obligations under the Agreement; and (c) the persons acting on such Party’s behalf have been granted sufficient legal or contractual mandate for establishing rights and obligations of the Party arising hereunder. Furthermore, the Partner represents and warrants that all information provided to FaceUp, including but not limited to financial information, invoices, and other relevant documentation, is accurate, complete, and in accordance with Laws.

6.2. Partner Warranty. The Partner represents, warrants, and undertakes that the provision of the Services will (i) be free from any material defects; (ii) be fit for any purpose for which FaceUp or the Customer has specified it will use the Services; and (iii) comply with all applicable Laws.

6.3. Warranty Disclaimer. FaceUp does not warrant that the Products will be uninterrupted or error-free; nor does it make any warranty as to the results that may be obtained from use of the Products. THE PRODUCTS ARE PROVIDED "AS IS" AND FACEUP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. THE PARTNER ACKNOWLEDGES THAT NEITHER FACEUP NOR ITS THIRD-PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER THE INTERNET, AND THAT THE PRODUCTS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND INTERNET SEARCH ENGINES.FACEUP IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. These disclaimers apply to the maximum extent permitted by applicable Laws.

7. FEES

7.1. Fees and Payment. All fees will be paid by the Parties in accordance with the payment terms set forth in the Agreement, Billing Terms, and in accordance with the Partner Compensation Tier. Except for the prorated refund of prepaid Fees, Fees are non-refundable.

7.2. Compensation Tier. Partner compensation shall be determined based on the Partner's Tier as specified in the Partner Portal. Advancement to a higher Tier is subject to (a) FaceUp's annual review of Partner performance and compensation structure; (b) Partner meeting the conditions and thresholds defined in the Partner Portal and the Agreement; and (c) FaceUp's approval in its sole discretion. When a Partner is moved to a new Tier, the compensation rates applicable to that new Tier shall apply only to Targets or Qualified Leads not yet recorded in FaceUp PRM at the time of Tier change. Existing Customers and registered Targets, Qualified Leads shall continue to be compensated at the rates applicable at the time of their initial registration or acquisition, unless otherwise agreed in writing by FaceUp. 

7.3. Taxes. Partner agrees to pay any applicable customs duties and sales, use, withholding, value-added, personal property, or similar taxes (collectively, "Taxes"). If such Taxes are paid or required to be paid by FaceUp, the amount thereof shall be added to and become a part of the amounts payable by Partner hereunder. Partner will indemnify FaceUp against any claim or demand for payment of any such Taxes. All fees are exclusive of Taxes unless stated otherwise. FaceUp shall not be required to make payment on any invoices if any invoice and supporting documentation are rendered more than ninety (90) days after the Partner was required to submit the invoice to FaceUp.

7.4. No Additional Payment. Unless agreed to the contrary, the Parties have agreed and declare that for the provision of the Services, the Partner shall not be entitled to reimbursement of any costs, fees, or damages.

7.5. Expenses. Partner shall be solely responsible for all costs and expenses of any nature incurred in connection with the performance of its obligations and exercise of its rights under this Agreement. Partner will reimburse FaceUp, at FaceUp’s then-applicable standard rates, for all FaceUp personnel time spent investigating an alleged error that FaceUp reasonably determines to have been caused by: (i) the use of FaceUp Services in violation of the Agreement; (ii) Partner’s or End User’s personnel errors or lack of training; or (iii) failure or malfunction of any product or service not provided by FaceUp.

7.6. No Indemnity. The Parties hereby acknowledge that the fees have been stipulated with respect to granting the Partner a fair share from benefits to be brought to FaceUp and that the Partner shall not be entitled to claim any indemnity or other type of additional payment or remuneration arising therefrom (if any).

7.7. No Double Compensation. If the Partner receives any remuneration, commission, or discount in connection with specific Services provided by the Partner, those same Services may not be used to claim or receive any additional remuneration, commission, or discount from FaceUp.

8. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, ANY CUSTOMERS OR AGENTS FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR OTHER SIMILAR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, INCLUDING THE DELIVERY, USE OR PERFORMANCE OF THE PRODUCTS, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT OR A BREACH BY A PARTY OF ITS PAYMENT OBLIGATIONS, BOTH PARTIES AGREE THAT THEIR AGGREGATE LIABILITY FOR ACTUAL AND DIRECT DAMAGES HEREUNDER SHALL NOT EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY EITHER PARTY UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO LIABILITY.

9. INDEMNIFICATION

9.1. Protection by FaceUp. FaceUp will indemnify, defend, and hold harmless Partner and its Affiliates, and their respective officers, directors, employees, and agents (each, a “Protected Party”), from and against any third-party claim, demand, or action (other than those made by Partner or its Affiliates), and all resulting damages, settlements, costs, and expenses (including reasonable attorneys’ fees), arising out of or relating to (a) any allegation that the Products, when used as authorized under this Agreement, infringe, misappropriate, or otherwise violate any third-party intellectual property right; (b) FaceUp’s gross negligence, willful misconduct, or violation of applicable law; or (c) FaceUp’s failure to pay any required fees, taxes, or other obligations owed to third parties in connection with the Products.

9.2. Protection by Partner. Partner will indemnify, defend, and hold harmless FaceUp and its Affiliates, and their respective officers, directors, employees, and agents each, a “Protected Party”, from and against any third-party claim, demand, or action (other than those made by FaceUp or its Affiliates), and all resulting damages, settlements, costs, and expenses (including reasonable attorneys’ fees), arising out of or relating to (a) Partner’s provision of Services including any representations or warranties regarding the Products that differ from those made by FaceUp; (b) Partner’s gross negligence, willful misconduct, or violation of applicable law; (c) Partner’s breach of any confidentiality, data-protection, or privacy obligations; (d) any disputes between Partner and its customers, referral clients, or downstream resellers, including acts or omissions by Partner ; (e) Partner’s use, modification, or combination of the Products other than as expressly authorized by FaceUp; or (f) any determination by a court, tribunal, or governmental authority that, notwithstanding the independent nature of this Agreement, Partner was an employee, agent, or otherwise entitled to compensation, benefits, or protections beyond those expressly provided herein, including any related claims, damages, liabilities, costs, and expenses (including reasonable legal fees).

9.3. Procedure. The indemnified Party must promptly notify the indemnifying Party in writing of any claim subject to indemnification and provide reasonable cooperation (at the indemnifying Party’s expense) in the defense and settlement of such claim. The indemnifying Party will have sole control of the defense and settlement, except that it may not settle any claim that admits fault or imposes any obligation on the indemnified Party without that Party’s prior written consent. The indemnified Party may participate in the defense at its own expense.

9.4. Exclusive Remedy. This Section 9 states each Party’s entire liability and each Protected Party’s exclusive remedy for the matters described in this Section.

10. CONFIDENTIALITY. 

Each Party (as "Receiving Party") agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (the "Disclosing Party") constitute the confidential property of the Disclosing Party (the "Confidential Information"), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any FaceUp Technology, performance information relating to the Services, and the terms and conditions of this Agreement will be deemed Confidential Information of FaceUp without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including FaceUp’s Affiliates or any permitted subcontractors), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section. The Receiving Party’s confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. This confidentiality obligation applies for 5 years after the lapse of this Agreement, except for know-how for which it will remain applicable in perpetuity.

11. GENERAL TERMS

11.1. No Exclusivity or Agency. Nothing in this Agreement confers the Partner exclusivity to offer, refer, or market the Products in any territory, at any given time. 

11.2. Assignment. This Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns. Neither Party may assign this Agreement without the advance written consent of the other Party, except that either Party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such Party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 11.2 will be null and void.

11.3. Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.

11.4. Governing Law; Dispute Resolution.

11.4.1. Governing Law. This Agreement is construed and governed by the Laws of (i) the State of New York, if the Partner is incorporated in the United States; or (ii) England and Wales, if the Partner is incorporated elsewhere, both as of the date of the Agreement.

11.4.2. Direct Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, whether arising in contract, tort or otherwise (the "Dispute"), the Parties shall first use their best efforts to resolve the Dispute. If a Dispute arises, the complaining Party shall provide written notice to the other Party in a document specifically entitled “Initial Notice of Dispute,” specifically setting forth the precise nature of the dispute (the "Initial Notice of Dispute"). If an Initial Notice of Dispute is being sent to FaceUp, it must be emailed to david.spunar@faceup.com, and cc support@faceup.com. Following receipt of the Initial Notice of Dispute, the Parties shall consult and negotiate with each other in good faith and, recognizing their mutual interest, attempt to reach a just and equitable solution of the Dispute that is satisfactory to both Parties (the "Direct Dispute Resolution"). If the Parties are unable to reach a resolution of the Dispute through Direct Dispute Resolution within thirty (30) days of the receipt of the Initial Notice of Dispute, then the Dispute shall subsequently be resolved by arbitration as set forth below.

11.4.3. Arbitration. IN THE EVENT THAT A DISPUTE BETWEEN THE PARTIES CANNOT BE SETTLED THROUGH DIRECT DISPUTE RESOLUTION, AS DESCRIBED ABOVE, THE PARTIES AGREE TO SUBMIT THE DISPUTE TO BINDING ARBITRATION. BY AGREEING TO ARBITRATE, THE PARTIES AGREE TO WAIVE THEIR RIGHT TO A JURY TRIAL. The arbitration shall be conducted under the Rules of the Vienna International Arbitral Centre, by one (1) arbitrator appointed in accordance with the said Rules. The language of the proceedings shall be English. The limitation of one discovery deposition per side shall be applied by the arbitrator, unless it is determined, based on all relevant circumstances, that more depositions are warranted. The arbitrator shall consider the amount in controversy, the complexity of the factual issues, the number of parties and the diversity of their interests and whether all of the claims appear, on the basis of the pleadings, to have sufficient merit to justify the time and expense associated with the requested discovery. 

11.2.3.1. The arbitration will occur in Vienna, Austria, but the Parties may choose to appear by person, by phone, by another virtual means, or through the submission of documents.

11.2.3.2. The arbitrator will issue a ruling in writing. Any issue concerning the extent to which any dispute is subject to arbitration, the applicability, interpretation, or enforceability of this Agreement shall be resolved by the arbitrator. 

11.2.3.3. All aspects of the arbitration shall be treated as confidential and neither the Parties nor the arbitrator may disclose the content or results of the arbitration, except as necessary to comply with legal or regulatory requirements. The result of the arbitration shall be binding on the Parties and judgment on the arbitrator’s award may be entered in any court having jurisdiction. The arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.

11.5. Construction and Joinder. THIS AGREEMENT MUST BE CONSTRUED AS IF IT WAS JOINTLY WRITTEN BY BOTH PARTIES. BOTH THE PARTNER AND FACEUP AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS. NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. IN THE EVENT OF ANY DISPUTE CONCERNING THE VALIDITY OR ENFORCEABILITY OF THIS PROVISION, SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.

11.6. Injunctive Relief. Notwithstanding the above provisions, FaceUp may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

11.7. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the Party’s at the addresses set forth in the Agreement or at such other address as may be given in writing by either Party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail or (iv) next business day if sent by email.

11.8. Publicity and Announcements. The Partner shall not (orally or in writing) publicly disclose or issue any press or make any other public statement, or otherwise communicate with the media, concerning the existence of this Agreement or the subject matter hereof, without the prior written approval of FaceUp, except to the extent that the Partner (based upon the reasonable advice of counsel) is required to make any public disclosure or filing with respect to the subject matter of this Agreement by Laws.

11.9. Amendments. Notwithstanding the foregoing, FaceUp may modify, amend, or update these Terms, Billing Terms and Compensation Tier from time to time in its sole discretion. FaceUp will provide Partner with written notice of any such modifications at least ten (10) calendar days prior to their effective date. In the event the Partner elects to terminate this Agreement as a result of such modifications, Partner shall provide written notice of termination to FaceUp in accordance with Section 5.2. The then-current version of the Terms will be made available at all times at: https://www.faceup.com/en/legal/partner-terms.

11.10. Waivers. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in writing signed by a duly authorized representative on behalf of the Party claimed to have waived. No provision of any purchase order or other business form employed by the Partner will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect. Notwithstanding the foregoing, FaceUp reserves the right to unilaterally modify, amend, or update these Terms at any time and in its sole discretion. FaceUp shall provide Partner with written notice of any such changes at least 10 calendar days prior to the effective date of the modification. 

11.11. Entire Agreement. This Agreement, together with the Billing Terms, and any documents expressly incorporating or referencing them, constitutes the complete and exclusive statement of the understanding between the Parties and supersedes all prior and contemporaneous agreements, proposals, negotiations, and communications, whether written or oral, relating to the subject matter hereof.

11.12. Independent Contractors. The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other party’s behalf without the other Party’s prior written consent.

11.13. Export Control. In its provision of the Services, the Partner agrees to comply with all export and import laws and regulations of the applicable jurisdictions. Without limiting the foregoing, (i) the Partner represents and warrants that it is not listed on any US, UK, or EU government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a US, UK, or EU government embargo or that has been designated by the US, UK, or EU government as a "terrorist supporting" country, (ii) the Partner will not (and will not permit any of its users to) provide the Services in violation of any US, UK, or EU export embargo, prohibition or restriction, and (iii) the Partner will not submit with the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.

11.4. Counterparts. This Agreement may be executed electronically in counterparts, each of which will be deemed an original and all of which together will be considered the same agreement.