Spendesk Partner Program - Partnership Terms

Spendesk’s main purpose is to deliver a SaaS platform and associated payment services to facilitate the management of corporate purchases and payments (the “Services”).

As part of its activity, the Partner could be led to introduce to Spendesk a certain number of customers, likely to subscribe to the Services offered by Spendesk (the “Customers”). 

As a result, Spendesk and the Partner have both expressed their interest in an arrangement whereby the Partner will introduce potential Customers to Spendesk (the "Spendesk Partner Program").

The Parties have therefore come together to enter into this partnership contract (the “Partnership Contract”).

1. Definitions

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

2. Purpose of the Partnership Contract

The purpose of the Partnership Contract is to define the conditions under which the Partner may introduce Customers to Spendesk and the Compensation granted to the Partner as a reward of such Introductions (as defined bellow, in Article 3 of the Partnership Terms). 

It is expressly agreed between the Parties that the Partner shall under no circumstances act in the name and/or on behalf of Spendesk. In particular, the Partner shall not:

• Enter into any contract in the name of Spendesk; or

• Negotiate the terms and conditions of sale of the Services.

3. Conditions for Introductions

Only introductions who meet the following cumulative conditions shall be considered as successful (the “Introduction(s)”), entitling the Partner to Compensation:

(i) The Customer shall have completed the Onboarding Process;

(ii) At the time of the Onboarding Process, the Customer shall not belong to Spendesk’s existing customer base or list of active prospects, as defined hereinafter. If Spendesk has had a prospecting activity (meaning a telephone or video call, or meeting, whether physical or virtual) with any contacts of the Prospect within three (3) months preceding the Onboarding Process, completion of the Onboarding Process shall not be considered as an Introduction from the Partner. It is specifically agreed between the Parties that Spendesk shall be able to prove this prospecting activity via an extract from its CRM tool.

Spendesk may, at its sole discretion, refuse any Introduction made by the Partner, without any right to Compensation for the Partner. 

Furthermore, Spendesk shall remain entirely free, both during the term of the Partnership Contract and after its expiration or termination, to enter into discussion and/or contractual relationships with any other Customers and/or Prospects, without any restriction and without this conferring any right to Compensation for the Partner.

4. Introductions Compensation

4.1. Right to Compensation

When the Partner makes an Introduction in accordance with the provisions of Article 3 hereof, it shall be rewarded with Compensation, as described in the applicable Adherence Form.

4.2. Terms and conditions

The Partner expressly acknowledges that, except for the rights expressly set out in the Partnership Terms and in the applicable Adherence Form, it holds no rights regarding the relationship between Spendesk and any Customer, whether in relation to : 

• Customers with whom Spendesk establishes or subsequently maintains business relationships; or 

• The  Services provided by Spendesk.

It is further agreed between the Parties that Spendesk shall have full discretion to determine the Fees charged to Introduced Customers, except for any specific discounts expressly agreed between the Parties in the applicable Adherence Form.

In this respect, Spendesk may grant any discounts or rebates to Introduced Customers at its sole discretion, and the Partner shall have no right to object to such decisions.

The Partner also undertakes not to disclose Spendesk’s prices, discounts and rebates.

4.3. Ancillary costs

Spendesk will not bear any ancillary cost incurred by the Partner for the purposes of performing the Partnership Contract, unless otherwise agreed in writing between the Partner and Spendesk.

5. Term - Termination

5.1. Term

The Partnership Contract shall be effective on the date of signature of the applicable Adherence Form (if the Parties sign on a different date, the later date shall only be considered) (the "Effective Date"), for an indefinite period.

The Partnership Contract may be terminated by either Party by any written means, at any time, subject to giving one (1) month’s prior notice. For the avoidance of doubt, the Partner will receive the applicable Compensation even if the Onboarding Process of an Introduced Customer is completed after the termination of the Partnership Contract.

5.2. Termination for breach

In the event of a breach by one of the Parties of any of its obligations under the Partnership Contract, it shall be automatically terminated fifteen (15) days after receipt by the defaulting Party of a formal notice by registered letter with acknowledgement of receipt, which has remained unheeded and which mentions the intention to apply this clause, without prejudice to any damages that may be claimed from the defaulting Party. 

Among the cases of termination for breach, the Partner may invoke Spendesk’s failure to pay invoices as grounds for termination for breach. Notwithstanding the foregoing, such non-payment shall not constitute grounds for termination for breach if Spendesk is disputing one or more invoice(s) issued by the Partner.

6. Intellectual property

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

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

Except for the licence expressly provided for in the Article, each Party agrees that the Partnership Contract does not imply for any 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.

7. Spendesk's obligations 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 Partnership Contract.

Spendesk undertakes to provide its Services to Introduced Customers with care, diligence and in accordance with best practice.

Finally, Spendesk represents and warrants 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.

8. Partner's obligations and guarantees

The Partner represents that, on the Effective Date, it holds a legal status allowing it to receive any  Commission paid by Spendesk and holds Spendesk harmless in this respect.

Furthermore, the Partner is solely responsible for any tax and social security obligation arising from the payment of Commission(s) pursuant to the Partnership Contract and holds Spendesk harmless in this respect.

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

9. 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 Partnership 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 Partnership 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 Partnership 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 Partnership Contract.

Each Party shall, at its own expense, at the end of the Partnership 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 Partnership Contract until such confidential information is returned or destroyed.

10. Intuitu personae - Partnership Contract assignment

the Partnership Contract is deemed to have been entered into in consideration of the person of the Parties and as such, they shall not delegate or assign any of the rights under the Partnership Contract, nor shall they entrust to a third party the performance of all or part of their obligations, without the prior written consent of the other Party.

11. Miscellaneous provisions

11.1. Independence of the Parties

It is expressly agreed that neither Party may use the provisions of the Partnership Contract to claim, in any way, the capacity of agent, representative or employee of the other Party, nor commit the other Party towards third parties.

The Parties are professionals independent of each other who will always act as such. The Partnership 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 Partnership Contract.

The Parties represent that the Partnership 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 represents and warrants to Spendesk that it does not exclusively and consistently exercise a representative profession without carrying out commercial transactions on its own behalf, and that it will be so throughout the term of the Partnership Contract. Should this situation change during the term of the Partnership Contract, the Partner undertakes to inform Spendesk immediately and the Partnership Contract shall automatically end.

Under the Partnership Contract, 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 Partnership Contract.

11.2. Non-exclusivity

The Parties do not grant any exclusivity to each other.

11.3. Election of domicile and notices

For the performance hereof, each of the Parties elects domicile at its address, as it appears at the beginning of the Partnership Contract. They undertake to inform each other without delay of any change of address by written notice. Failing this, any letter sent to the address indicated at the beginning of this document shall be deemed to have been validly received.

Any reference to written means hereunder shall be understood, unless expressly stated otherwise, as referring to any durable written medium, including email.

11.4. Autonomy of the Partnership Contract, severability and modification

The Partnership Contract represents the entirety of the commitments existing between the Parties. It replaces and cancels any previous oral or written commitment relating to the subject of the Partnership Contract. By express agreement between the Parties, it shall prevail over any general terms and conditions of sale or purchase of either Party.

The Partnership Contract consists of (i) these Partnership Terms and (ii) the applicable Adherence Form. If a term or clause of the Partnership Terms contradicts a term or clause of the applicable Adherence Form, the term or clause of the Partnership Terms would prevail.

All other documents not expressly mentioned in this Article have no contractual value and are not binding on the Parties.

It is expressly agreed between the Parties that the services covered by the Partnership Contract may change over time, during the term of performance of the Partnership Contract; where applicable, the Parties may update the Partnership Contract by bilateral amendment. Any change to the Partnership Contract shall be the subject of an amendment agreement signed by the Parties.

The invalidity or unenforceability of any of the provisions of the Partnership Contract shall not entail the invalidity of the other provisions which shall retain their full force and scope. The Parties shall then meet to determine in good faith the necessary amendments so that each of them is in an economic situation comparable to that which would have resulted from the application of the invalid clause.

11.5. Dates and time periods

The dates and time periods indicated in the Partnership 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.

11.6. Non-waiver

The failure or waiver by a Party to exercise or enforce any right conferred on it by the Partnership Contract may not under any circumstances be considered a waiver of this right for the future, said waiver having effect only in respect of the event in question.

12. Personal Data

Under the Partnership Contract, “Personal Data” - as defined by (i) the Loi relative à l’informatique, aux fichiers et aux libertés no. 78-17 of 6 January 1978 (French data protection act), as amended, and (ii) Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and free movement of such data (“GDPR”) (together referred to as the “Personal Data Protection Regulations”) - is processed by the Parties.

In accordance with the Personal Data Protection Regulations, the Partner acts as data controller and guarantees Spendesk that it complies with the obligations of the Personal Data Protection Regulations incumbent upon it due to its status. In particular, Partner shall ensure that it has all necessary notices (including full information of the nature of the processing) and consents in place to enable the lawful transfer of the personal data to Spendesk for the purposes of the Contract. Spendesk acts as the recipient of the Personal Data transmitted by the Partner in accordance with the Personal Data Protection Regulations. After transmission of Personal Data, Spendesk acts as data controller.

13. Liability

Each Party’s liability under the Partnership Contract is limited to direct material damage, to the exclusion of any indirect and/or immaterial damage suffered by the other Party.

Each Party’s liability for any direct material damage suffered by the other Party in the context of the performance or termination of the Partnership Contract, regardless of the cause thereof, is limited, for all damages, to the sum of ten thousand euros (€10,000).