Master Partner Agreement (Trustpilot, Inc.)aprile 2023
This master partner agreement (the "Agreement") is entered into by and between Trustpilot Inc. ("Trustpilot") and the Partner as defined below (Trustpilot and the Partner are jointly referred to as the "Parties" and individually as a "Party").
“Partner” means the entity set forth in the order form signed by both parties referencing an engagement between the Parties under this Agreement (“Order Form”).
This Agreement includes all exhibits, appendices, guidelines, operating rules and policies that are referred to herein or that may be otherwise be published by Trustpilot relevant for the Partner at www.trustpilot.com or other Trustpilot domains depending on the circumstances (as such rules, policies, and guidelines may be amended from time to time), including, without limitation:
Any terms of an Order Form;
Any terms in appendices to this Agreement;
All guidelines referred to in this Agreement, including references made in the appendices or an Order Form are collectively referred to as the "Guidelines".
1.1. Trustpilot operates an online review platform where registered users can write reviews of companies with whom they have had a service or buying experience. Trustpilot provides services to companies that subscribe to Trustpilot’s services which includes software making it easier for companies to invite users to review them on Trustpilot. As part of Trustpilot services, companies are also granted the right to use Trustpilot’s logos, graphics and trademarks (the "Trustpilot Designs") as specified in the Guidelines as well as entitled to display the overall rating score of the specific company calculated by Trustpilot (hereinafter referred to as the "TrustScore") and review snippets on the domains listed when signing up to Trustpilot services.
1.2. This Agreement and any terms under the Order Form referencing this Agreement govern the Partner’s access to and use of Trustpilot services, content, and/or offerings as specified in the Order Form (the “Engagement”).
2. Term and termination
The Agreement will commence on the date the Order Form is mutually executed by the Parties (the “Effective Date”) and continues for the duration of the term set out in the Order Form (“Engagement Term”) unless earlier terminated in accordance with this Agreement. Upon termination of this Agreement, an Order Form, or expiration of the Engagement Term thereof, Partner shall immediately cease accessing and using the services or functionality subject to the Engagement, including without limitation, ceasing to access or to use (as applicable).
2.2. Automatic renewal
Unless otherwise specified in the Order Form, on the last day of the Engagement Term and on each subsequent anniversary of that date, the Engagement will automatically be renewed at Trustpilot’s then-current, standard non-discounted price for an additional period of same duration as the Engagement Term in accordance with the terms referenced to in the Order Form, unless one of the parties notifies the other party of its intent not to renew no less than 30 days prior to the end of the then-current term. The Partner's notification of non-renewal must be made to: email@example.com. Any such non-renewal shall be deemed to be a termination of the Agreement for the purposes hereof.
2.3. Termination for cause and suspension
2.3.1. Either Party may terminate the Agreement for cause with immediate effect upon written notice to the other Party if the other Party is in material breach of the Agreement and fails to remedy – if such breach is remediable – such breach within 14 days after receiving written notice identifying the breach from the non-breaching Party. Notwithstanding the foregoing, Trustpilot reserves the right to suspend access to any services or licenses granted under this Agreement with immediate effect in the event that Trustpilot in its discretion reasonably determines that the Partner is in material breach of this Agreement or the Guidelines.
2.3.2. Notwithstanding section 2.3.1, if the Partner breaches section 5 and/or the Guidelines and/or initiates or threatens to initiate legal proceedings against Trustpilot, this will be regarded as an irremediable material breach of the Agreement which entitles Trustpilot to terminate the Agreement for cause with immediate effect, without giving the Partner the opportunity to remedy the breach and without any obligations to reimburse the Partner for any previous payments.
2.4. Consequences of the termination of the Agreement
2.4.1. Upon termination of the Agreement, the Parties shall be discharged from any obligations under the Agreement unless otherwise specified herein. For avoidance of doubt, in no event will the termination relieve the Partner of its obligation to pay any fees payable to Trustpilot for the relevant term, unless terminated by the Partner due to Trustpilot’s material breach of its
obligations pursuant to section 2.3.1.
2.4.2. In case of termination of the Agreement, no matter the cause, the Partner shall be obligated to cease any use of any services, access to and use of APIs and any other features made available by Trustpilot from the date of termination.
2.4.3. The Partner's unauthorised access to or use of content obtained from Trustpilot including but not limited to user reviews, star ratings, TrustScores, and Trustpilot Designs (“Trustpilot Content”), services, or licenses granted under this Agreement can be prohibited by an injunctive relief without any requirement to post a bond or other security.
3. Prices and payment terms
Partner will pay to Trustpilot all of the fees specified in the Order Form. Unless otherwise specified in the Order Form, all prices are stated in U.S. dollars exclusive of applicable taxes. Trustpilot will inform the Partner of any changes in Trustpilot's prices for the subsequent renewal term (as set forth in section 2) by written notice no later than 45 days prior to the expiration of the current term. Upon execution of this Agreement, payment obligations are non-cancellable and, except as expressly provided in this Agreement, upon payment, all payments made by the Partner are non-refundable.
Unless otherwise specified in the Order Form, amounts due will be invoiced in advance for each period that the Agreement and services under the Order Form are in force and payment will be due upon acceptance of services under the Order Form. In case of late payment, any unpaid amounts will bear interest at the rate of one percent (1%) per month. In addition, Trustpilot may suspend Partner’s access to the Trustpilot Content, services including but not limited to APIs, or licenses, with immediate effect if the Partner fails to pay any fees invoiced by Trustpilot pursuant to this Agreement. Suspension will not relieve Partner of its obligation to pay such invoices or any other fees payable to Trustpilot for the relevant Engagement Term.
4. Warrant disclaimer
TRUSTPILOT DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES REGARDING THIS AGREEMENT, TRUSTPILOT CONTENT, SERVICES INCLUDING BUT NOT LIMITED TO APIS, OR LICENSES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
5.1. The Partner shall indemnify, defend and hold harmless Trustpilot and its affiliates and its and their respective officers, directors, employees and agents (collectively “Indemnitees”) against any liability, losses, damages, penalties, judgments, awards, settlements, costs and expenses (collectively “Losses”) suffered or incurred by any Indemnitee as a result of any third party claim, allegation, action, suit or proceeding (including any investigation or other claim, allegation, action, suit or proceeding by any governmental authority) (“Third Party Claim”) arising from or related to (a) any assertion that the use of any content provided by the Partner or Partner’s customer: (i) infringes the intellectual property rights of a third party and/or (ii) violates applicable law and/or the Guidelines; (b) any assertion that the use by the Partner or Partner’s customer of Trustpilot’s service violates the Guidelines or applicable law; (c) any assertion that use of personal data and/or Trustpilot Content under this Agreement is in breach of contractual commitment of the Partner or Partner’s customer; (d) any assertion that any email message sent or caused to be sent by Trustpilot on the Partner’s or Partner’s customer’s behalf violates any applicable law, rule or regulation, including without limitation applicable privacy laws; (e) Partner’s breach of any of the warranties or representations made by the Partner in this Agreement (f) any acts, statements, or omissions made by Partner to third parties related to this Agreement, or use of Trustpilot services or Trustpilot Content by Partner.
5.2. The Partner shall not bring any claim against any of the Indemnitees arising from or related to any User Content (defined below), including without limitation, any claim that the User Content is defamatory, offensive or otherwise harmful. The Partner shall indemnify, defend and hold harmless the Indemnitees against any Losses suffered or incurred by any of the Indemnitees as a result of any such claim, whether such claim is brought by Partner, any of its affiliates, or any of its or their officers, directors, employees, contractors, agents, shareholders, or any third party.
6. Limitations of liability
6.1. THE USE OF THE TRUSTPILOT SERVICE AND/OR TRUSTPILOT CONTENT IS THE SOLE RESPONSIBILITY OF THE PARTNER. THE TRUSTPILOT CONTENT, SERVICES INCLUDING BUT NOT LIMITED TO APIS, OR LICENSES ARE SUPPLIED "AS IS" AND MAY BE MODIFIED, UPDATED, INTERRUPTED, SUSPENDED OR DISCONTINUED AT ANY TIME WITHOUT NOTICE OR LIABILITY. TRUSTPILOT SHALL NOT BE HELD LIABLE FOR THE GENERAL APPLICABILITY OR AVAILABILITY OF THE TRUSTPILOT CONTENT, SERVICES INCLUDING BUT NOT LIMITED TO APIS, OR LICENSES GRANTED UNDER THIS AGREEMENT. TRUSTPILOT SHALL NOT BE HELD LIABLE FOR THE GENERAL APPLICABILITY OR AVAILABILITY OF THE TRUSTPILOT SERVICE OR ANY USE AND DATA RELATED TO THE PARTNER’S OR THE PARTNER’S CUSTOMER’S USE OF NON-TRUSTPILOT APPLICATIONS.
6.2. UNDER NO CIRCUMSTANCES SHALL TRUSTPILOT BE LIABLE TO THE PARTNER FOR ANY OF THE FOLLOWING TYPES OF LOSS OR DAMAGE ARISING UNDER OR IN RELATION TO THIS AGREEMENT (WHETHER ARISING FOR BREACH OF CONTRACT, MISREPRESENTATION (WHETHER TORTIOUS OR STATUTORY), TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE): (I) ANY LOSS OF PROFITS, CONTRACTS, PURE ECONOMIC LOSS, BUSINESS, BUSINESS OPPORTUNITY, LOSS OR CORRUPTION OF DATA OR INFORMATION OR RECOVERY OF DATA OR INFORMATION, DEPLETION OF GOODWILL, SECURITY BREACH RESULTING FROM A FAILURE OF THIRD PARTY TELECOMMUNICATIONS AND/OR THE INTERNET, WASTED EXPENDITURE, ANTICIPATED SAVINGS OR REVENUE (REGARDLESS OF WHETHER ANY OF THESE IS DIRECT, SPECIAL INDIRECT OR CONSEQUENTIAL); (II) ANY LOSS OR DAMAGE ARISING IN CONNECTION WITH LIABILITIES TO THIRD PARTIES (WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL); OR (III) ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE WHATSOEVER, EVEN IF TRUSTPILOT WAS AWARE OF THE POSSIBILITY THAT SUCH LOSS OR DAMAGE MIGHT BE INCURRED BY THE PARTNER.
6.3. TRUSTPILOT'S TOTAL AGGREGATE LIABILITY TO THE PARTNER INCLUDING WITHOUT LIMITATION LIABILITY FOR BREACH OF CONTRACT, MISREPRESENTATION (WHETHER TORTIOUS OR STATUTORY), TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), BREACH OF STATUTORY DUTY, RESTITUTION OR OTHERWISE, ARISING FROM OR IN CONNECTION WITH THE AGREEMENT, THE TRUSTPILOT CONTENT, SERVICES INCLUDING BUT NOT LIMITED TO APIS, OR LICENSES OR ANY OF THE WEBSITES OPERATED BY TRUSTPILOT SHALL FOR ANY AND ALL ACTIONABLE CIRCUMSTANCES BE LIMITED TO THE ACCUMULATED FEE PAID BY THE PARTNER UNDER THE ENGAGEMENT DURING THE PREVIOUS 12 MONTHS PRIOR TO THE ACTIONABLE EVENT.
6.4. TRUSTPILOT IS NOT RESPONSIBLE, AND SHALL NOT BE HELD LIABLE, FOR THE USERS OF TRUSTPILOT SERVICES AND OTHER THIRD PARTIES’ CONDUCT ON TRUSTPILOT’S WEBSITES OR USE OF THE TRUSTPILOT SERVICE, INCLUDING ANY REVIEW AND OTHER CONTENT PUBLISHED BY USERS ("USER CONTENT")
6.5. NOTHING IN THE AGREEMENT SHALL OPERATE SO AS TO EXCLUDE OR LIMIT EITHER PARTY'S LIABILITY TO THE OTHER FOR DEATH OR PERSONAL PHYSICAL INJURY ARISING OUT OF NEGLIGENCE, FRAUD OR FRAUDULENT MISREPRESENTATION.
If the Partner provides feedback, ideas, suggestions or comments on or regarding Trustpilot's websites, services, or partnerships provided in connection this Agreement ("Feedback"), the Partner hereby grants to Trustpilot a perpetual, irrevocable, transferable, sub-licensable, royalty-free, worldwide license to fully exploit such Feedback for any and all purposes.
8.1. The parties are mutually obliged to keep confidential pieces of information that the parties may have exchanged regarding their undertakings or business relationships under or in relation to this Agreement. Information which derives from or concerns a party can be demanded to be kept secret due to the nature of the matter.
8.2. The duty of confidentiality does not include information which is already published or publicly known unless the publication is due to a breach of the confidentiality obligations laid down in the Agreement. Disclosure of confidential information is not prohibited if such disclosure: (a) is in response to a valid order or request of a court or other governmental body or in order for the party to cooperate with authorities, courts or governmental bodies; (b) is requested to be disclosed on a confidential basis to a party’s attorneys, advisors or potential acquirers or sources of financing in connection with a due diligence request; or (c) is otherwise required by law.
8.3. Notwithstanding the foregoing confidentiality obligation, the parties shall be entitled to disclose the existence of this Agreement to third parties including its termination.
9. Independent contractors
The Parties are independent contractors and will have no power or authority to assume or create any obligation on behalf of one another. This Agreement will not be construed to create or imply any agency or joint venture. The Partner will not make any representations or warranties regarding Trustpilot or Trustpilot Content, services including but not limited to APIs, or licenses and will not negotiate any terms or conditions with respect to the same. Without limiting the generality of the foregoing, the Partner is not authorised to enter into any agreements, including the Trustpilot service subscription agreement, in Trustpilot's name.
The Partner is entitled to issue press releases and/or make public statements regarding the existence and nature of this Agreement with Trustpilot’s prior written consent. Except as otherwise provided in an Engagement, Partner will not use Trustpilot’s trademarks, service marks or logos without Trustpilot’s prior written consent. Partner agrees to display the partner badge on Partner’s website within 90 days of the Effective date which shall remain displayed during the term of this Agreement.
Terms herein that, by their nature, prescribe continuing obligations or rights, including without limitation Sections 4, 5, 6, 7, 8, 9, 11 and 13, will survive the expiration or termination of this Agreement.
12.1. The Partner is not entitled to transfer its rights or obligations under the Agreement to any third party without prior written consent from Trustpilot. Any change of direct or indirect control of the Partner (whether by sale of controlling equity interests or otherwise) will be deemed to be an assignment of the Agreement by the Partner that requires Trustpilot's prior written consent.
12.2 The Parties agree that Trustpilot is hereby entitled to assign and/or transfer all or part of its rights and obligations under this Agreement to any third party, affiliate or other successor in interest, including without limitation as a result of a merger or consolidation, or in connection with the sale or transfer of all or substantially all of its business or assets to which this Agreement relates, or in connection with a corporate reorganisation, or in connection with any other business purpose; provided that such assignee is bound by the applicable terms of this Agreement.
13.1. Partner warrants that:
13.1.1. in all matters relating to the Engagement it will comply with (a) Trustpilot’s instructions including (but without limitation) in relation to any due diligence exercise it is asked to participate in from time to time to ensure compliance with this Agreement; (b) Trustpilot’s mandatory policies and codes as notified by Trustpilot to the Partner and as may be amended by Trustpilot from time to time, including (but without limitation) Trustpilot’s Code of Ethics available at https://legal.trustpilot.com/for-everyone/code-of-ethics; and (c) all applicable laws, statutes, codes and regulation including (but without limitation) anti-bribery and anti-corruption laws and laws relating to economic or financial sanctions, export controls or trade embargoes.
13.1.2. it does not operate in (or have substantial dealings in) any country or territory that is subject to any general financial, trade or investment restrictions or embargoes.
13.2. For the avoidance of doubt, any breach of this Clause 13 shall be considered a material breach for the purposes of Clause 2.3.1.
14.1. This Agreement contains the entire understanding of the Parties relating to the subject matter hereof and replaces and supersedes all prior agreements and understandings, both written and oral, regarding such subject matter. This Agreement may not be modified nor any rights under it waived except in writing and signed by both parties.
14.2. The Agreement, and any disputes directly or indirectly arising from or related to the Agreement, shall be governed exclusively by the laws of the State of New York, without regard to the conflicts of law provisions thereof. Any disputes relating to or accruing from the Agreement shall be settled exclusively in the state or federal courts located in New York County, New York, and the parties hereby irrevocably consent to the jurisdiction of such courts and waive any objections to the laying of venue in such courts.
14.3. Failure of either party to exercise or enforce any of its rights under this Agreement will not act as a waiver of such rights.
14.4. If any part of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, that provision will be stricken and the remaining provisions of this Agreement will remain in full force and effect.
14.5. If there are any discrepancies, disputes, differences or the like between the Agreement and the Guidelines, the Guidelines shall prevail.
14.6. This Agreement may be executed in multiple copies, including electronic transmission, each of which constitutes an agreement for all purposes.