Developer and CoMarketing Partner Agreement
THIS DEVELOPER AND COMARKETING PARTNER AGREEMENT (the “Agreement”) is
entered into as of June 21, 2016 (the “Effective Date”) by and between Uphold Worldwide
Ltd., a corporation with limited liability organized under the laws of Antigua, whose registered
office is at Unit #3B, Bryson's Commercial Complex, Friars Hill Road, St. John’s, Antigua, W.I.
(the “Company”) including its Affiliates and RAR RACING LLC with offices located at 2782 Red
Vista Ct., Henderson, NV 89074 (“Partner”).
WHEREAS, Uphold has created a platform for users to hold and exchange various
forms of value including cryptocurrency, fiat and certain precious metals (the “Uphold
Platform”); and
WHEREAS, Partner has created a financial services application (the “Partner App”) and
wishes to integrate its Partner App with the Uphold Platform; and,
WHEREAS, the Parties wish to cooperate in order to facilitate a mutually beneficial
relationship;
NOW, THEREFORE, in consideration of their mutual promises hereinafter contained and
for other good and valuable consideration, the receipt, adequacy, and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Definitions.
a. “Affiliates” means entities that it controls, is controlled by or is under common
control with.
b. “Background IP” means all Intellectual Property owned or licensed by a party
independent of this Agreement.
c. “Developer Services” means the services provided by Uphold to support
development on the Uphold Platform, as described in paragraph 2.a.
d. “Developer Tools” means any software, code or other resource made available
to Partner through the Developer Services.
e. “Integrated Partner App” means the Partner App as integrated with the Uphold
Platform.
f. “Intellectual Property” or “IP” means anything protectable by an Intellectual
Property Right.
g. “Intellectual Property Right(s)” means all patent rights, copyrights, trademark
rights, rights in trade secrets (if any), design rights, database rights, domain
name rights, moral rights, and any other intellectual property rights (registered or
unregistered) throughout the world.
2. Party Responsibilities.
a. General. The respective Party’s responsibilities are described in Schedule 1
hereto.
3. Intellectual Property.
a. Background IP. All Background IP incorporated in any software, documents,
data or any other materials provided by either Party to the other shall remain the
sole property of the Party providing the Background IP.
b. Developer Tools. Subject to the terms and conditions hereunder, including the
terms and conditions of the Developer Agreement, Uphold grants to Partner a
limited, revocable, nonexclusive, nontransferrable and nonsublicensable
license solely to use and integrate the Developer’s Tools and underlying content
into the Partner App so that it can interface directly with the Uphold Platform.
Partner shall not transfer or sublicense any code, APIs or other Developer Tools
to anyone and will only use SDKs to develop and distribute applications using the
Uphold Platform and Developer Services.
4. Warranty, Disclaimer and Limitation on Liability
a. Proper Authority. Both Parties represent and warrant that they have the
right and authority to enter into this Agreement and to perform its obligations
without the need to obtain any additional consents or approvals.
b. No Conflict. Both Parties represent and warrant that that the performance of
their obligations under this Agreement will not breach or be in conflict with any
other agreement to which that Party is bound.
c. Disclaimer. THE DEVELOPER SERVICES AND TOOLS ARE PROVIDED ON
AN “AS IS” BASIS AND UPHOLD EXPRESSLY DISCLAIMS ALL
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE
SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE,
MERCHANTABILITY, TITLE, AND NONINFRINGEMENT OF THIRD PARTY
RIGHTS. PARTNER ACKNOWLEDGES IT HAS RELIED ON NO
WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SERVICES
WHEN ENTERING INTO THIS AGREEMENT.
d. LIMITATION ON LIABILITY. EXCEPT WITH RESPECT TO A CLAIM OF
INDEMNITY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL
DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING
FROM OR RELATING TO THIS AGREEMENT.
5. Indemnification
a. Partner Indemnification. Partner will defend Uphold, its Affiliates and their
respective officers, directors and employees against any third party claims, and
indemnify and hold the same harmless from and against any and all damages,
costs, fines and other amounts (including reasonable attorneys’ fees) arising out
of or relating to (a) Partner’s acts or omissions hereunder; (b) Partner’s App; and
(c) the Integrated Partner App.
b. Uphold Indemnification. Uphold will defend Partner, its Affiliates and their
respective officers, directors and employees against any third party claims, and
indemnify and hold the same harmless from and against any and all damages,
costs, fines and other amounts (including reasonable attorneys’ fees) arising out
of or relating to (a) Uphold’s acts or omissions hereunder; or (b) Uphold’s
Platform.
c. Indemnification Procedures. The following procedures shall apply with respect
to indemnification: (A) the Indemnified Party shall provide the Indemnifying Party
with prompt written notice upon becoming aware of any such claim (provided that
the failure of the Indemnified Party to promptly notify the Indemnifying Party shall
not relieve the Indemnifying Party of any liability with respect to the claim, except
to the extent the Indemnifying Party demonstrates that the defense of the claim is
prejudiced by such failure); (B) the Indemnified Party shall reasonably cooperate
with of the Indemnified Party in the defense of such claim; and (C) of the
Indemnified Party shall have control over the defense and settlement of any such
claim (provided, that (1) of the Indemnified Party shall keep the Indemnified Party
fully informed concerning the status of any litigation, negotiations or settlements
of any such claim, (2) the Indemnified Party shall be entitled, at its own expense,
to participate in any such litigation, negotiations and settlements with counsel of
its own choosing, and (3) Indemnifying Party shall not have the right to settle any
claim if such settlement arises from or is part of any criminal action or
proceeding, or contains a stipulation to, or an admission or acknowledgement of,
any wrongdoing (whether in tort or otherwise) on the part of the Indemnified Party
without the prior written consent of the Indemnified Party).
6. Term and Termination.
a. Term. This Agreement will be operative on the Effective Date and will continue
for a Term of two (2) years and shall autorenewal for subsequent twoyear terms
until such time as terminated hereunder.
b. Termination.
i. Either party may terminate this Agreement upon thirty (30) days’ prior
written notice.
ii. This Agreement may be terminated immediately upon written notice by
either party if the other party: (i) becomes insolvent, (ii) makes an
assignment for the benefit of creditors, (iii) files or has filed against it a
petition in bankruptcy or seeking reorganization, (iv) has a receiver
appointed or (v) institutes any proceedings for liquidation or winding up.
c. Effect of Termination.
i. Upon termination of this Agreement for any reason, Partner shall
immediately: (i) remove any SDK or other Uphold code from Partner’s
App; (ii) cease access to and use of the Uphold API; (iii) return or destroy
all Uphold Confidential Information; (iv) cease marketing and promoting of
the Integrated Partner App; (v) discontinue use of the Marks, Confidential
Information and all other Intellectual Property Rights of Uphold.
ii. All provisions that logically ought to survive or must survive to fulfill its
essential purpose will survive termination of this Agreement for any
reason.
8. General Provisions
a. Assignment; Binding Effect. Neither party may assign this Agreement, in
whole or in part, without the other party’s prior written consent, except that
Uphold may assign this Agreement without Partner’s consent to an Affiliate or in
the case of a merger, reorganization, acquisition, consolidation, or sale of all, or
substantially all, of its assets. Any attempt to assign this Agreement other than
as permitted herein will be null and of no effect. Without limiting the foregoing,
this Agreement will inure to the benefit of and bind the parties’ respective
successors and permitted assigns.
b. Attorney Fees. In the event any attorney is employed by any party to this
Agreement with regard to any legal action, arbitration or other proceeding
brought by any party for the enforcement of this Agreement, or because of an
alleged dispute, breach, default or misrepresentation in connection with any of
the provisions of this Agreement, then the party or parties prevailing in such
proceeding, whether at trial or upon appeal, shall be entitled to recover
reasonable attorneys’ fees and other costs and expenses incurred, in addition to
any other relief to which it may be entitled.
c. Confidentiality. Each party (the "Disclosing Party") may from time to time
during the term of this Agreement disclose to the other party (the "Receiving
Party") certain Confidential Information, as defined below. The Receiving Party
shall not disclose the Confidential Information of the Disclosing Party and shall
protect the Confidential Information using the same degree of care which the
Receiving Party ordinarily uses with respect to its own Confidential Information,
but in no event with less than reasonable care. The Receiving Party shall not
use the Confidential Information of the Disclosing Party for any purpose not
expressly permitted by this Agreement and shall limit the disclosure of the
Confidential Information of the Disclosing Party to the employees or agents of the
Receiving Party or potential acquirers and/or financing sources who have a need
to know such Confidential Information and who are, with respect to the
Confidential Information of the Disclosing Party bound in writing by confidentiality
terms no less restrictive than those contained herein. "Confidential Information"
means any nonpublic or proprietary information of the Disclosing Party disclosed
to or received by the Receiving Party, either directly or indirectly, in writing, orally
or by inspection of tangible objects, including without limitation, product
information, copyrightable material, trademarkable material, patentable material,
client lists, trade secrets and the terms of this Agreement. Confidential
Information may also include the information of a third party disclosed to the
Disclosing Party under an obligation of confidentiality. Confidential Information,
however, shall not include any information which the Receiving Party can
establish: (i) was in the public domain prior to the time of disclosure to the
Receiving Party by the Disclosing Party; (ii) becomes publicly known after
disclosure to the Receiving Party through no action or inaction of Receiving
Party; (iii) is in the possession of the Receiving Party, without confidentiality
restrictions, at the time of disclosure to the Receiving Party by the Disclosing
Party as shown by Receiving Party's files and records immediately prior to the
time of disclosure; or (iv) is disclosed pursuant to the order or requirement of a
court, administrative agency, or other governmental body, provided, however,
that the Receiving Party shall provide prompt notice thereof to the Disclosing
Party and shall use its reasonable best efforts to obtain a protective order or
otherwise prevent public disclosure of such information.
d. Use of Trademarks. Any reproduction of a Party’s logos, brand names, trade
names or other marks by the other Party is subject to obtaining the first Party’s
express prior approval and complying with Partner guidelines for the same.
Unless stated otherwise, each such authorization is limited and provides only
temporary license and usage rights as contemplated by the parties and may not
be assigned or transferred to any other party.
e. Employee NonSolicitation. For the term of this Agreement and for two (2)
years thereafter, Partner shall not directly or indirectly solicit or encourage any
employee or consultant of Uphold to leave the employ or consultancy or reduce
the services provided to Uphold.
f. Construction. The captions and titles contained in this Agreement are included
for purposes of convenience only, and shall not affect the construction or
interpretation of any of the provisions of this Agreement. Each party and its
counsel have participated fully in the review and revision of this Agreement. Any
rule of construction to the effect that ambiguities are to be resolved against the
drafting party shall not apply in the interpretation of this Agreement.
g. Disputes
i. The Parties shall cooperate and attempt in good faith to resolve any
Dispute promptly by negotiating between persons who have authority to
settle the Dispute and who are at a higher level of management than the
persons with direct responsibility for administration and performance of
the provisions or obligations of this Agreement that are the subject of the
Dispute.
ii. Any Dispute which cannot otherwise be resolved as provided in 7.7.1
shall be resolved by arbitration conducted in accordance with the
applicable International Chamber of Commerce’s (ICC) Rules, but the
rules in this arbitration clause will be followed if there is disagreement
between them and ICC’s procedures. If ICC's rules or procedures change
after the claim is filed, the procedures in effect when the claim was filed
will apply. For a copy of ICC’s rules and procedures, to file a claim or for
other information, please see http://www.iccwbo.org. If ICC is completely
unavailable, and if the Parties cannot agree on a substitute, then either
Party we may request that a court appoint a substitute arbitrator.
iii. Arbitration shall be held in Antigua, W.I. or London, UK, at the election of
the Party asserting a claim hereunder. The Parties may agree to have the
Arbitration held by telephone or solely through written submissions,
unless the arbitrator requires otherwise. A single arbitrator will be
appointed. The arbitrator must:
● Follow all applicable substantive law, except when contradicted by
the ICC rules;
● Follow applicable statutes of limitations;
● Honor valid claims of privilege;
● Issue a written decision including the reasons for the award.
iv. The arbitrator's decision will be final and binding except for any review
allowed by the ICC rules. However, if the claim involves more than
US$100,000 in damages, then either Party may choose to appeal to a
new panel of three arbitrators. The appellate panel is completely free to
accept or reject the entire original award or any part of it. The appeal must
be filed with the arbitration organization not later than thirty (30) days after
the original award issues. The appealing party pays all appellate costs
unless the appellate panel determines otherwise as part of its award.
v. Each Party retains the right to seek judicial assistance: (i) to compel
arbitration; (ii) to obtain interim measures of protection prior to or pending
arbitrations; (iii) to seek injunctive relief in the courts of any jurisdiction as
may be necessary and appropriate to protect the unauthorized disclosure
of its proprietary or confidential information, and (iv) to enforce any
decision of the arbitrator, including the final award.
vi. Arbitration proceedings contemplated by this Section shall be as
confidential and private as permitted by law. To that end, the Parties shall
not disclose the existence, content or results of any proceedings
conducted in accordance with this Section, and materials submitted in
connection with such proceedings shall not be admissible in any other
proceeding, provided, however, that this confidentiality provision shall not
prevent a petition to vacate or enforce an arbitral award, and shall not bar
disclosures required by any laws or regulations.
h. Counterparts. This Agreement may be executed in several counterparts
including as a .pdf attached to email, all of which shall constitute an original and
one and the same instrument with the same force and effect as though each of
the parties had executed the same document.
i. Entire Agreement; Amendment; Waivers. This Agreement, inclusive of the
Developer Agreements, is the complete and exclusive agreement between the
parties with respect to the subject matter hereof and supersedes any prior or
contemporaneous agreements, negotiations and communications (both written
and oral) regarding such subject matter. Except with respect to the Developer
Agreements as provided therein, this Agreement may only be modified by a
written document executed by the parties. No waiver shall be binding unless
executed in writing by the party making the waiver. In the event of any conflict
between this Agreement and any other writing, document, agreement or
understanding, the terms of this Agreement shall control.
j. Further Acts and Assurances. Each party agrees to perform such further acts
and execute and deliver such further agreements or instruments as the other
party may reasonably request, to consummate, evidence or confirm the
agreements contained in this Agreement.
k. Governing Law. This Agreement shall be governed by, construed, and enforced
in accordance with the English law.
l. Notice. Any notice under this Agreement will be in writing and delivered by
personal delivery, express courier, confirmed facsimile, confirmed email, or
certified or registered mail, postage prepaid and return receipt requested.
Notices will be deemed to be effective upon personal delivery, one (1) day after
deposit with express courier, five (5) days after deposit in the mail, or upon
confirmation of receipt of facsimile or email. Notices will be sent to the party at
its address set forth below or such other address as that party may specify in
writing pursuant to this section.
To Uphold: To Partner:
Uphold Worldwide Ltd. ______________________
______________________
Unit #3B, Bryson's Commercial Complex, ______________________
Friars Hill Road ______________________
St. John’s, Antigua, W.I. ______________________
Attention: Juan Pablo Thieriot
Email: [email protected]
With email copy to:
[email protected]
m. Force Majeure. The parties hereto shall not be liable for the nonperformance of
any of their obligations hereunder, except nonpayment of amounts owing
hereunder, if such nonperformance is occasioned by any war, government
regulation or restriction of action, strike, accident, natural disaster, terrorism, civil
commotion, labor disputes, “acts of God” or the public enemy or similar causes
beyond the control of the parties hereto.
n. Injunctive Relief. The Parties acknowledge that monetary damages may not be
a sufficient remedy for unauthorized use or disclosure of Confidential Information
or certain other material breaches of this Agreement, and that each Party may,
without waiving any other rights or remedies, seek injunctive or equitable relief as
may be deemed proper by a court of competent jurisdiction, without the obligation
to post any bond or other security and withhold first seeking to resolve the
Dispute using the procedures described in paragraph 9.7.
o. Third Parties. Except as otherwise provided herein, none of the provisions of
this Agreement shall be for the benefit of, or enforceable by, any third party
beneficiary.
p. Severability. If any provision of this Agreement is unenforceable, illegal or
invalid, such provision will be changed and interpreted to accomplish the
objectives of such provision to the greatest extent possible under applicable law
and the remaining provisions will continue in full force and effect.
IN WITNESS WHEREOF, the parties to this Agreement have executed it to be effective as of
the date first written above.
Partner: Uphold:
RAR RACING, LLC Uphold Worldwide Ltd.
By:
By: ______________________________
Name: ___________________________ Name: Juan Pablo Thieriot
Title: Head of the Reserve and Investor Relations
Title:_____________________________
SCHEDULE 1
1.0 Uphold Responsibilities.
1.1 Developer Services. Uphold agrees to use commercially reasonable efforts to make
available and maintain an API, together with other online tools and resources, to allow Partner
to develop and integrate its Partner App with the Uphold Platform. The Developer Services are
located here: https://developer.uphold.com. Upon Partner request, Uphold will provide technical
resource support to assist with integration on a time and materials basis at Uphold’s standard
services rates of $200/hour. Developer Services Fees will be billed monthly in arrears.
1.2 Compliance. Uphold agrees to provide all KYC and AML compliance measures to allow
for Partner to utilize the Uphold platform to manage its own reserve, and to interface directly
with customer accounts given adequate authorization to do so.
1.3 Directory Promotion. Uphold agrees to promote the Integrated Partner App within the
Uphold “App Center.”
1.4 Newsletter Promotion. Upon general availability of the Integrated Partner App Uphold
agrees to promote the Integrated Partner App via a newsletter directed at relevant Uphold
members as determined by Uphold.
1.5 Blog and Social Media Promotion. Upon general availability of the Integrated Partner
App Uphold agrees to promote the Integrated Partner App via a blog post on Uphold’s website,
and/or via its many social media channels.
2.0 Partner Responsibilities.
2.1 Uphold Deposits. Partner agrees to utilize the Uphold platform to manage its own
reserve and agrees to keep a monthly average minimum of 20,000 USD on the Uphold reserve.
2.2 Partner Promotion. Partner agrees to promote Uphold, and ensure the discoverability
of Uphold’s services via the Partner App.
2.3 Partner Integration. Partner agrees to use commercially reasonable efforts to develop,
integrate and maintain the Partner App with the Uphold Platform using the Developer
Resources including the Uphold API.
2.4 Representations and Warranties to End Customers. Partner agrees not to make any
representations, warranties or other guarantees on behalf of Uphold to end customers or any
thirdparties except with expressed written agreement of Uphold.
2.5 Uphold Developer Agreements. Partner understands that development on the Uphold
Platform is subject to various Membership and Developer Agreements, including the
Membership Agreement, Developer Agreement, Privacy & Data Policy and Cookie Policy (the
“Developer Agreements”), and it agrees to comply fully with the Developer Agreements at all
times. The current version of the Developer Agreements can be viewed here:
https://uphold.com/en/legal/membershipagreement. Partner understands that applicable terms
and conditions are subject to change, and it is the Partner’s responsibility to review and confirm
that it remains in compliance.
2.6 “Powered by Uphold” Promotion. Partner agrees to place “Powered by Uphold” button
or “Connect to Uphold” button as appropriate proximal to the services being offered, as
available in Uphold’s developer documentation here:
https://uphold.com/en/developer/api/documentation/#resources
2.7 Timeframe. Partner agrees to make commercially reasonable efforts to release the
Partner App by October 2016.
2.8 Developer Services Fees. Partner agrees to pay any Developer Services fees incurred
pursuant to Section 1.1 within 30 days of receipt of invoice.
3.0 Mutual Responsibilities.
3.1 CoMarketing. The Parties agree to cooperate in promoting and marketing the
Integrated Partner App. The manner in which the Parties disclose and publicize the their
relationship and the Integrated Partner App is subject to the mutual agreement of the parties as
well as paragraphs 7.3 and 7.4 of this Agreement.
3.2 Compliance with Applicable Law. Both Parties agree to obtain all permits, licenses
and government registrations necessary to perform their respective obligations and activities
contemplated hereunder and shall at all times comply with laws and regulations applicable to
their respective obligations under this Agreement.
3.3 Good Faith and Fair Dealing. The Parties agree to act honestly, fairly, and in good faith
in performing their obligations hereunder. Further, neither Party shall in any way, directly or
indirectly, disparage the other or its products or services, or encourage any of its end user
customers to discontinue use of the other Party’s products or services, during the Term or
thereafter.
The words you are searching are inside this book. To get more targeted content, please make full-text search by clicking here.
PartnerAgreementYoloProsandUphold
Discover the best professional documents and content resources in AnyFlip Document Base.
Search
PartnerAgreementYoloProsandUphold
- 1 - 11
Pages: