Referral Partner Agreement

This Referral Partner Agreement and applicable Statement of Work (the “Agreement”), govern the relationship between PSI and Referral Partner for referral of Products by Referral Partner to Prospective Clients. PSI means the relevant PSI group company which has issued an invoice, quotation, proposal, or other document (“Relevant Documents”) or Statement of Work, in relation to engagement of the Referral Partner. Additional or alternative provisions may apply and, if applicable, are set out in the applicable Statement of Work or as otherwise set out in writing and signed by both parties. This Agreement shall apply to the engagement by PSI of Referral Partner to the exclusion of all other terms and conditions, whether included in Relevant Documents, or the general terms and conditions of the Referral Partner. PSI will not be deemed to have accepted any other terms, and this Agreement will at all times prevail.

1. Interpretation

The following definitions and rules of interpretation apply in this agreement.

1.1 Definitions:

Beneficiary: has the meaning given to it in clause 12.1.

Booking Date: means the date when the Prospective Client has booked the Test and/or the date the Prospective Client has rescheduled the Test in accordance with the Booking T&Cs.

Booking T&Cs: has the meaning given to it in clause 3.3(a).

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Claim: has the meaning given to it in clause 12.1.

Client: shall mean the Home Office of the United Kingdom.

Commencement Date: means the date stated stated in the Statement of Work.

Commission: has the meaning given to it in clause 3.2.

Confidential Information: has the meaning given to it in clause 9.2.

Dealings: has the meaning given to it in clause 17.6.

Documentation: shall consist of printed and/or electronic materials relating to the Products, including users’ manuals, technical manuals, sample Tests, order forms, training materials, marketing materials and any other information as generally provided by PSI to its customers.

Domain Names: shall mean the names utilized by PSI as names of the company or any member of its Group Company, products or services of PSI, such as, but not limited to, “PSI, “Skills for English” or any variation on the name other product derived and owned by PSI.

Force Majeure Event: means any circumstance beyond a party’s reasonable control that directly hinders, delays or prevents that party from performing any of its obligations under this Agreement including nuclear accident, acts of God, fire, explosion, drought, natural disaster, collapse of building flood, epidemic or pandemic, terrorist attack, civil war or commotion or armed conflict, war, threat of or preparation for war, imposition of sanctions, embargo, or breaking off of diplomatic relations, nuclear, chemical or biological contamination or sonic boom, any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition or interruption or failure of utility service. For the avoidance of doubt, the mere shortage of labour, materials, equipment or supplies (unless caused by events or circumstances which are themselves Force Majeure Events), strikes, lock-outs or other industrial disputes involving the work force of the party so prevented or of any of its subcontractors or suppliers will not constitute a Force Majeure Event.

Group Company: means in relation to a company, that company, and any entity that directly or indirectly controls, is controlled by, or is under common control with that company.

Indemnifier: has the meaning given to it in clause 12.1.

Initial Term: has the meaning given at clause 13.

Initial Period: has the meaning given at clause 6.1.

Introduction: the provision to a Prospective Client of a link to the booking system for the PSI Product. Introduce, Introduces, and Introduced shall be interpreted accordingly.

Link: shall have the meaning given at clause 3.3(a).

Mandatory Polices: PSI’s mandatory policies and procedures listed in the Schedule 1, as amended by notification to the Referral Partner from time to time.

Market Report: has the meaning given to it at clause 6.2(a).

Minimum Targets: shall mean the annual Introduction targets as agreed between the Parties pursuant to clause 6.2(b).

Monthly Reports: shal have the meaning set out at clause 3.3(b).

Net Income: the payments made to PSI for the Products under a Relevant Contract less any value added tax or other sales tax on them, any out of pocket expenses incurred by PSI in providing the Products and any discounts or rebates granted by PSI.

Performance Review: shall mean the performance review carried out by PSI in accordance with clause 6.

Products: means the computer based English language exams (including all Upgrades thereto) (the “Test”) together with any other services from time to time offered by PSI and which PSI, by express written notice to the Referral Partner, includes within the scope of this agreement.

Product Intellectual Property: means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world, in relation to the Products and/or the Documentation.

Prohibited Act: means

(a) to directly or indirectly offer, promise or give any person working for or engaged by PSI and/or Client a financial or other advantage to:

(i) induce that person to perform improperly a relevant function or activity; or
(ii) reward that person for improper performance of a relevant function or activity;

(b) to directly or indirectly request, agree to receive or accept any financial or other advantage as an inducement or a reward for improper performance of a relevant function or activity in connection with the agreement or the Introductions or marketing of the Products;

(i) under legislation or common law concerning fraudulent acts, including bribery; or
(ii) defrauding, attempting to defraud or conspiring to defraud PSI and/or Client; or
(iii) any activity, practice or conduct which would constitute one of the offenses listed in (a) through (c) above if such activity, practice or conduct had been carried out in the UK.

Prospective Client: a person resident or having its place of business in the Territory who wishes to purchase the Products from PSI and to whom PSI has not at any time previously provided the Products or any other goods or services and with whom PSI has not been in bona fide negotiations to provide the Products in the six months before the Prospective Client actually purchases and/or takes a Test.

Referral Partner: means the referral partner set out in the applicable Statement of Work.

Relevant Contract: a contract for the supply of Products entered into during the Term between PSI and a Prospective Client who was Introduced by the Referral Partner.

Renewal Term: has the meaning given at clause 13.

Staff: shall mean any personnel employed or engaged by the Referral Partner for the purpose of marketing the Products in the Territory and making Introductions.

Statement of Work: means the statement of work signed by the parties setting out the commercial terms between the parties and the Statemnt of Work shall be considered part of this Agreement and all the terms of this Agreement shall apply to the Statement of Work with full force and Effect. In the event of conflict or inconsistency between the terms of this Agreement at the Statement of Work, the terms of the Statement of Work shall prevail.

Term: shall have the meaning given at clause 13.

Test: has the meaning given to it in the definition of Products.

Territory: has the meaning set out in the Statement of Work.

Upgrades: shall mean all new versions and releases, updates, upgrades, revisions, improvements, modifications, and additional functionality enhancements to the Products, which are produced and made generally available by PSI.

1.2 Clause, Schedule, and paragraph headings shall not affect the interpretation of this agreement.

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.

1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders

1.8 This agreement shall be binding on, and enure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.

1.9 A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time. A reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provision.

1.10 A reference to writing or written includes e-mail. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.11 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.

2. Introductions

2.1 PSI appoints the Referral Partner, and Referral Partner accepts the appointment, on a non-exclusive basis, to identify Prospective Clients for PSI in the Territory and to make Introductions of such persons on the terms of this agreement.

2.2 If PSI and Referral Partner are party to any other agreements, to the extent provisions of such agreements relate to the sale, resale and/or marketing of Products (including reseller agreements between the parties or members of their respective Group Company), any such provisions shall from the Commencement Date cease to apply and cease to have any effect.

2.3 PSI and Referral Partner agree to work in accordance with the Joint Marketing Efforts set out in Schedule 2.

2.4 Referral Partner agrees not to enter into an agreement with any other Person related to the sale, resale, marketing or distribution of other goods or products, including for introductions in respect of them, which are similar to or competitive with the Products without obtaining PSI’s prior written consent.

2.5 PSI may in its sole discretion sell, market or distribute the Products to any Person, including resellers, Referral Partners, agents, retailers, and prospective clients or candidates in and outside the Territory.

2.6 Referral Partner shall, and where relevant procure that the Staff shall:

(a) Serve PSI faithfully and diligently and not to allow its interests to conflict with its duties under this agreement;

(b) Use its best endeavours to make Introductions of Prospective Clients;

(d) comply with the Mandatory Policies, all applicable laws, including data protection laws and with reasonable and lawful instructions of PSI;

(e) at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits necessary to conduct its business relating to the exercise of its rights and the performance of its obligations under this agreement;

(f) follow the policies set by PSI from time to time for marketing of the Products and provision of Documentation;

(g) represent PSI and the Products accurately and fairly and avoid any deceptive, misleading or unethical business practices;

(h) not engage in any unfair, competitive, misleading, or deceptive practices respecting PSI, PSI’s trademarks, other intellectual property rights or the Products;

(i) if set, achieve the agreed Minimum Targets;

(j) inform PSI immediately in the event of a potential or suspected or actual security or privacy breach or breach of the Mandatory Policy (and no later than 24 hours after first becoming aware of such breach);

(k) not make any representations, warranties or promises as to the functionality or performance of the Products or any related Documentation or marketing materials, except as contained in any marketing, promotional or product information materials provided by PSI to the Referral Partner from time to time or otherwise specifically approved in advance and in writing by PSI; and

(l) within a reasonable time, advise PSI concerning any significant market information that comes to the Referral Partner’s attention regarding the performance of the Products in the Territory.

2.7 At all times, Referral Partner shall ensure that:

(a) each Staff is suitably qualified, adequately trained and capable of providing the services they are engaged to provide and the applicable obligations on the Referral Partner under this agreement, including marketing of the Products and making Introductions;

(b) the Staff comply with all the relevant policies including Mandatory Policies; and

(c) only those people who are authorised by PSI and/or Referral Partner are involved in providing marketing of the Products and/or making Introductions.

2.8 Referral Partner shall not commit any Prohibited Act. Referral Partner shall ensure it has robust processes in place to identify and report immediately to PSI all confirmed and/or suspected and/or potential cases of any Prohibited Act(s) (and no later than 24 hours after first becoming aware of such cases).

2.9 The Referral Partner shall have no authority, and shall not hold itself out, or permit any person to hold itself out, or otherwise create the impression that it is authorised by PSI or Client for any other purposes (including without limitation conducting workshops) other than as explicitly permitted in this agreement not that it is authorised to bind PSI or Client in any way.

2.10 The Referral Partner shall not make or enter into any contracts or commitments or incur any liability for or on behalf of PSI nor Client, including for the provision of the Products or the price for them, and shall not negotiate any terms for the provision of the Products with Prospective Clients.

2.11 The Referral Partner must disclose to each Prospective Client that it is an introduction agent of PSI and that it has no authority or ability to negotiate or vary the Products or the terms of the Products or enter into any contract on behalf of PSI. All Products will be sold by PSI subject to the relevant terms and conditions that apply to those Products.

2.12 Where a Prospective Client is Introduced by the Referral Partner and the Prospective Client then introduces PSI to a third party who purchases Products from PSI, the Referral Partner shall not, by virtue of such initial Introduction, be deemed to have Introduced the third party to PSI.

2.13 Where PSI has engaged third parties to resell, market and/or distribute the Products and/or make Introductions (“Third Party“) within the same Territory as the Referral Partner, if a Third Party and Referral Partner Introduce PSI to the same Prospective Client, such Prospective Client shall only be considered an Introduction of the Referral Partner if the Referral Partner made the Introduction:

(a) where the Third Party is only permitted to make Introductions and/or market the Products, before the Third Party made an Introduction; or

(b) where the Third Party is permitted to resell the Products (and/or market and distribute the Products) itself, before the Third Party commenced meaningful contract negotiations with the Prospective Client for sale of the Products.

3. Commission and payment

3.1 PSI shall determine the price charged for all Products at its sole discretion.

3.2 The Referral Partner shall be entitled to commission, at the rate of 10% of PSI’s Net Income received by the purchase of the Product by Prospective Client (“Commission”), such Commission shall be due and payable in accordance with the remainder of this clause 3.

3.3 The process shall be as follows:

(a) The Referral Partner shall be assigned a unique link, personal to the Referral Partner, by PSI, which the Referral Partner must share with the Prospective Client to purchase and book Tests and/or purchase Products (each purchase being subject to the PSI terms and conditions displayed on purchase and/or booking (“Booking T&Cs”)) (“Link”);

(b) Monthly reports shall be generated through the Link to ascertain the number of Tests actually taken and/or Products purchased in that relevant month by the Prospective Client (“Monthly Reports”).

(c) Referral Partner shall invoice PSI, on a monthly basis, for the Commission calculated from the Monthly Reports and PSI shall pay such invoices within 30 days of the date of invoice by way of cleared funds and in USD (unless a different currency is agreed by the parties in writing) to the account nominated by Referral Partner in the invoice.

3.4 All sums payable under this Agreement:

(a) are exclusive of value added tax or other applicable sales tax, which shall be added to the sum in question, if applicable;

(b) shall be paid in full without any deductions (including deductions in respect of items such as income, corporation, or other taxes, charges and/or duties) except where the payer is required by law to deduct withholding tax from sums payable to the payee. If the payer is required by law to deduct withholding tax, then the payer and the payee shall co-operate in all respects and take all reasonable steps necessary to:

(i) lawfully avoid making any such deductions; or
(ii) enable the payee to obtain a tax credit in respect of the amount withheld.

3.5 No Commission or other compensation shall be payable where:

(a) PSI contracts with a third party in the circumstances described in clause 2.12; and/or

(b) A refund is issued by PSI to Prospective Clients for Tests pursuant to Relevant Contracts and/or Booking T&Cs.

3.6 In the event that a refund is issued by PSI to a Prospective Client, but PSI has already paid the Commission for that Prospective Client to Referral Partner, then PSI shall notify Referral Partner in writing of the refund and PSI shall either (at its election):

(a) require a refund from Referral Partner for the corresponding Commission which Referral Partner received from PSI for that Prospective Client within 30 days of the date of such notice; or

(b) notify Referral Partner that PSI will credit the corresponding Commission which Referral Partner received from PSI for that Prospective Client from the next invoice.

3.7 For the avoidance of doubt, Commission shall be payable in accordance with this agreement if the same Prospective Client introduced by the Referral Partner purchases and books a Test more than once and in such case, Commission shall be payable in accordance with this agreement for each test actually paid for and taken for that Prospective Client.

3.8 Termination of this agreement, howsoever arising, shall not affect the continuation in force of this clause 3 and PSI’s obligation to pay Commission to the Referral Partner in accordance with it.

4. Marketing, Domain Name Usage or Registration

4.1 Referral Partner shall ensure that any publicity releases, promotional and marketing materials, announcements, and printed materials by Referral Partner concerning PSI, the Test, the Products, Client or PSI’s sub-contractors or agents, or matters pertaining to this agreement, are reviewed and approved in writing by PSI prior to any use, announcement or publication.

4.2 Referral Partner shall not register for the Domain Names, including, but not limited to, registration of the Domain Name in the Territory. Any such Domain Names or extensions that have previously been registered shall immediately be transferred to PSI. PSI shall license the usage rights of the Domain Name to the Referral Partner limited to the Territory and Term of this agreement.

4.3 Referral Partner may not, without the prior written permission of PSI, purchase any of the PSI product or brand names as keywords for pay per click or online search engine marketing.

4.4 All depictions of PSI logos and products must be current, accurate representation as depicted on the PSI website, and based on PSI approved brand guidelines provided by PSI from time to time.

5. Obligations of PSI

5.1 PSI shall provide the Referral Partner with the information the Referral Partner reasonably requires to perform its duties, including marketing information for and details of the Products, and reasonable, relevant information about PSI.

5.2 PSI shall inform the Referral Partner immediately if PSI suspends or ceases to offer the Products or related services.

5.3 PSI shall not be responsible for any expenses incurred by the Referral Partner unless such expenses have been agreed by PSI in writing, in advance.

5.4 PSI shall be under no obligation to enter into a Relevant Contract.

6. Minimum Targets and Performance Review

6.1 Referral Partner shall during a period of first three (3) months from the Commencement Date (the “Initial Period”):

(a) use its best endeavours to market Products in the Territory and make Introductions; and

(b) actively collect market intelligence in relation to interest in and use of the Products in the Territory.

6.2 At the end of the Initial Period:

(a) the Referral Partner shall provide a detailed report (“Market Report”) on the market intelligence in relation to the interest in, use of, potential use of and availability of the Products in the Territory and opportunities in relation to the Products in the Territory; and

(b) PSI may (but is not obliged to) require agreement between PSI and Referral Partner of a Minimum Target for the number of Introductions to be made annually by Referral Partner based on the Market Report and Introductions made during the Initial Period.

6.3 PSI may, at any time (but not more than twice in any year) conduct a performance review of the Referral Partner (“Performance Review”) and Referral Partner agrees to co-operate with such Performance Review, including the provision of relevant information requested by PSI which may include a further market intelligence report in relation to the Products in the Territory.

6.4 Following completion of the Performance Review, PSI may require reasonable improvements to Referral Partner’s performance by written notice to Referral Partner. If such improvements are not implemented by Referral Partner to the reasonable satisfaction of PSI within a period of two (2) months from the date of notice, PSI may terminate this agreement without further notice to Referral Partner.

7. Representations and Warranties

7.1 PSI represents and warrants that

(a) It has the right, power and authority to enter into this agreement and to fully perform its obligations hereunder,

(b) It possesses all rights necessary to grant the rights to Referral Partner for the marketing of the Products as provided by this agreement, and

(c) When used in accordance with this agreement and any Documentation provided by PSI, the Products will not infringe any patent, trademark, copyright, privacy rights, publicity rights or other proprietary right of any third party.

7.2 Other than the representations and warranties contained in clause 7.1, the Products and Documentation provided by PSI are provided on an “as is” basis, without any warranty of any kind, either express or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose.

7.3 Referral Partner represents and warrants that it has the right, power and authority to enter into this agreement and to fully perform its obligations hereunder.

7.4 Referral Partner represents and warrants that that neither it, nor to the best of its knowledge any Staff, have at any time prior to the commencement of this agreement:

(a) committed a Prohibited Act or been formally notified that it is subject to an investigation or prosecution which relates to an alleged Prohibited Act; and/or

(b) been listed by any government department or agency as being debarred, suspended, proposed for suspension or debarment, or otherwise ineligible for participation in government procurement programs or contracts on the grounds of a Prohibited Act.

7.5 Referral Partner agrees to indemnify and hold harmless PSI, the Client and its officers, directors, agents and employees against all damages and costs, including reasonable legal fees arising as a result of any breach of the Referral Partner of clauses 4, 8.4 and 9. This indemnity shall be subject to clause 12.

8. PSI Intellectual Property

8.1 The Referral Partner shall not produce any marketing material for PSI’s products, services or use PSI’s name, logo or trademarks on any marketing material for the Products without the prior written consent of PSI.

8.2 Referral Partner acknowledges that all PSI Intellectual Property belongs to PSI or PSI’s licensors (as appropriate), and Referral Partner shall not be an owner of any copies of, or have any interest in, the Products, Documentation or other PSI Intellectual Property except as set out in this agreement.

8.3 PSI grants to Referral Partners for the Term a non-exclusive, limited, non-transferrable licence to the PSI Intellectual Property for the sole purpose of marketing the Products in the Territory only and making Introductions.

8.4 Except as expressly set out in this clause, Referral Partner may not sell, rent, lease, loan or otherwise distribute the Products, any Documentation or PSI Intellectual Property, or any derivative works based upon them in whole or in part. Referral Partner shall not reverse engineer, decompile, or otherwise attempt to derive or modify the source code for the Product. Referral Partner shall have no rights to the Product other than the rights expressly set forth herein.

9. Confidentiality

9.1 Except as required to be disclosed by law, both parties agree to keep all of the terms and conditions of this agreement confidential and shall not disclose any provision of this agreement to any other third party without the prior written consent of the other party. This confidentiality provision shall remain in full force and effect subsequent to the termination of this agreement.

9.2 “Confidential Information” shall include, but is not limited to, trade secrets, customer or account lists, supplier lists, pricing information, receipts, financial information relating to each party’s business, marketing arrangements, strategic plans, and any other information and data relating to the business of each party which is disclosed as a consequence of or through its relationship with the other party and which has value to the other party and is not generally known by the party’s respective competitors.

9.3 Each party acknowledges that the other party may disclose certain Confidential Information to the opposite (receiving) party during the course of activities pursuant to this agreement. Both parties acknowledge and agree that Confidential Information is the sole and exclusive property of the disclosing party and that the disclosing party owns all property rights related thereto. Both parties acknowledge and agree that the disclosure of the Confidential Information to the receiving party does not confer upon the receiving party any license, interest, or rights of any kind in or to the Confidential Information except as otherwise provided in this agreement.

9.4 Except as otherwise provided in this agreement, receiving party will hold in confidence and not use, reproduce, distribute, transmit, reverse engineer, decompile, disassemble, or transfer, indirectly or directly, in any form, or for any purpose, the Confidential Information made available by disclosing party to receiving party under this agreement, without the prior written consent of the disclosing party.

9.5 To the extent that Confidential Information constitutes a trade secret under applicable law, the obligations of receiving party with respect to the Confidential Information shall remain in effect for as long as such information shall remain a trade secret under applicable law. To the extent such Confidential Information does not constitute a trade secret, its obligations about the Confidential Information shall remain in effect during the Term of this agreement and for two (2) years thereafter.

9.6 The foregoing confidentiality obligations shall not apply if and to the extent that:

(a) Confidential Information communicated was already known to receiving party, without obligation to keep it confidential, at the time of its receipt from disclosing party;

(b) receiving party establishes that the Confidential Information communicated was received by receiving party in good faith from a third party lawfully in possession thereof and having no obligation to keep such information confidential; or

(c) receiving party establishes that the Confidential Information communicated was publicly known at the time of its receipt or has become publicly known other than by a breach of this agreement by receiving party.

9.7 Each party has had or will have employees to whom Confidential Information of the other is disclosed, or who will have access to Confidential Information of the other, sign a nondisclosure agreement in content substantially like the foregoing confidentiality obligations.

9.8 Each party agrees that it will take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized hereunder to have any such information, which measures shall include the highest degree of care that the receiving party utilizes to protect its own Confidential Information of a similar nature.

9.9 Each party agrees to immediately notify the other in writing of any misuse or misappropriation of Confidential Information of the other party that may come to its attention. The receiving party may disclose Confidential Information pursuant to a valid and binding order issued by a court or government agency, provided that, unless prohibited by law, it provides the disclosing party with prior written notice of such obligation and the opportunity to oppose or contest such disclosure or obtain a protective order.

10. Data protection

10.1 For the purposes of this clause, the following definitions shall apply:

(a) Agreed Purposes: means for the purposes of making Introduction to allow Prospective Clients to purchase Products and for PSI and Referral Partner to calculate and pay the Commission.

(b) Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: have the meaning as set out in the EU GDPR.

(i) any applicable data protection and/or privacy laws in force from time to time in the Territory;
(ii) the EU GDPR and national law implementing it (including without limitation the UK GDPR);
(iii) Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended, and national law implementing it;
(iv) any successor or replacement laws of the above mentioned; and
(v) any binding guidance or code of practice issued by a relevant supervisory or regulatory authority applicable in the Territory.

(a) EU GDPR: the General Data Protection Regulation ((EU) 2016/679).

(b) UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

(a) Permitted Recipients: the parties to this agreement, the employees of each party, any third parties engaged to perform obligations in connection with this agreement.

(b) Shared Personal Data: the personal data to be shared between the parties under this agreement. Shared Personal Data shall be confined to the names and contact details (including email address and telephone number) of Prospective Clients.

10.2 This clause sets out the framework for the sharing of personal data for the Agreed Purpose between the parties as independent controllers (for the purposes of EU GDPR where applicable).

10.3 Referral Partner will regularly disclose to PSI Shared Personal Data collected by Referral Partner solely for the Agreed Purposes.

10.4 Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation, and any material breach of the Data Protection Legislation by one party shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this agreement with immediate effect.

10.5 Each party shall:

(a) ensure that it has all necessary notices and consents and lawful bases in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;

(b) give full information to any data subject whose personal data may be processed under this agreement of the nature of such processing. This includes giving notice that, on the termination of this agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;

(d) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;

(e) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this agreement;

(f) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

(g) not transfer any personal data received from Referral Partner outside the UK or EEA unless the transferor ensures that (i) the transfer is to a country approved under the applicable Data Protection Legislation as providing adequate protection; or (ii) there are appropriate safeguards or binding corporate rules in place pursuant to the applicable Data Protection Legislation; or (iii) the transferor otherwise complies with its obligations under the applicable Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; or (iv) one of the derogations for specific situations in the applicable Data Protection Legislation applies to the transfer.

10.6 Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:

(a) consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;

(b) promptly inform the other party about the receipt of any data subject rights request;

(d) not disclose, release, amend, delete or block any Shared Personal Data in response to a data subject rights request without first consulting the other party wherever possible;

(e) assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, personal data breach notifications, data protection impact assessments and consultations with the Information Commissioner or other regulators;

(f) notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation;

(g) at the written direction of the Referral Partner, delete or return Shared Personal Data and copies thereof to the Referral Partner on termination of this agreement unless required by law to store the Shared Personal Data;

(h) use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;

(i) maintain complete and accurate records and information to demonstrate its compliance with this clause; and

(j) provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties’ compliance with the Data Protection Legislation.

11. Limitation of liability

11.1 Nothing in this agreement shall limit or exclude the liability of either party for:

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

(b) fraud or fraudulent misrepresentation or wilful default;

(d) any matter in respect of which it would be unlawful to exclude or restrict liability.

11.2 Subject to clause 11.1 above:

(a) Neither party shall under any circumstances whatever be liable to the other, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:

(i) any loss of profit, sales, revenue, or business;
(ii) loss of anticipated savings;
(iii) loss of or damage to goodwill;
(iv) loss of agreements or contracts;
(v) loss of use or corruption of software, data or information;
(vi) any loss arising out of the lawful termination of this agreement or any decision not to renew its term, or
(vii) any loss that is an indirect or secondary consequence of any act or omission of the party in question.

(b) PSI shall not be liable for any loss or damage caused by delay in furnishing the Products or any Documentation, including any marketing material. The total liability of PSI in respect of all other loss or damage arising under or in connection with this agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed £25,000 for the Term of this agreement.

12. Indemnity procedure

12.1 Liability under the indemnities set out in this agreement are conditional on the beneficiary of the indemnity (“Beneficiary”) discharging the following obligations to the party giving the indemnity (“Indemnifier”). If any third party makes a claim, or notifies an intention to make a claim, against the Beneficiary that may reasonably be considered likely to give rise to a liability under the indemnity (“Claim”), the Beneficiary shall:

(a) as soon as reasonably practicable, give written notice of the Claim to the Indemnifier, specifying the nature of the Claim in reasonable detail;

(b) not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Indemnifier;

(c) give the Indemnifier and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Beneficiary, so as to enable the Indemnifier and its professional advisers to examine them and to take copies (at the Indemnifier’s expense) for the purpose of assessing the Claim; and

(d) give to the Indemnifier authority (so far as is possible) to avoid, dispute, compromise or defend the Claim.

12.2 Notwithstanding anything to the contrary, PSI shall under no circumstances be liable to Referral Partner or any other persons for any indemnity or other infringement claims if such claim arises partly or wholly from:

(a) combination of the Products or Documentation with other products or documentation not provided by PSI where the claim pertains to such Products or Documentation; nor

(b) any modifications to the Products or Documentation made other than by PSI or without PSI’s prior written consent;

(d) use of the Products or Documentation other then in accordance with this agreement.

13. Commencement and duration

This agreement shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with clause 14, for an initial term of 1 year (“Initial Term”). Thereafter, the agreement shall automatically renew on an annual non-exclusive basis (the “Renewal Term(s)”) unless terminated by either party by written notice to the other party at least ninety (90) days prior to any anniversary date of the agreement. During any Renewal Term(s), each party shall have the option to terminate the agreement by giving the other party ninety (90) days written notice prior to the expiration of the Renewal Term(s). Initial Term and Renewal Term(s) together shall be the “Term”.

14. Termination

14.1 Without affecting any other right or remedy available to it, PSI may terminate this agreement on written notice to Referral Partner if:

(a) the agreement between PSI and its Client is terminated;

(b) PSI ceases to provide the Products;

(c) a Force Majeure Event is affecting Referral Partner’s performance under this agreement for 90 days or more (including non-consecutive days); or

14.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so (for the avoidance of doubt, any breach of clauses 2.6(d) to 2.6(h) (inclusive) shall be considered a material breach of this agreement which cannot be cured);

(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, in either case, within the meaning of section 268 of the Insolvency Act 1986;

(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(d) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;

(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);

(g) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;

(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

(i) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.2(b) to clause 14.2(h) (inclusive);

(j) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

15. Consequences of expiration or termination

15.1 On expiration or termination of this agreement, the following clauses shall continue in force: clause 1, clause 3, 8 to 12 and 15 to 17 (inclusive).

15.2 Expiration or termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.

15.3 On expiration or termination of this agreement, Referral Partner shall:

(a) promptly return all PSI’s Confidential Information to PSI or permanently erase all of PSI’s Confidential Information from its computer systems, and certify in writing that the obligations of this clause have been complied with; and

(b) cease to represent itself as PSI’s authorizes Referral Partner or agent regarding the Products and shall otherwise desist from all conduct or representations that might lead the public believe that Referral Partner is an agent of PSI.

15.4 Subject to clause 15.2, the party terminating this agreement, or in the case of expiration of this agreement, each party, shall not be liable to the other party for any damage of any kind (whether direct or indirect) incurred by the other party by reason of the expiration or earlier termination of this agreement.

16. Notices

16.1 Any notice or other communication given to a party under or in connection with this agreement shall be in writing, addressed to that party at the address set out at clause 16.2 below or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, or by commercial courier, or email.

16.2 Notices to:

(a) Referral Partner shall be sent to the details provided in the Statement of Work.

(b) PSI shall be sent to PSI Services LLC, 611 N. Brand Blvd., 10th Floor, Glendale, CA 91203 marked for the attention of General Counsel, or if sent by email to [email protected].

16.3 A notice or other communication shall be deemed to have been received:

(a) if delivered personally, when left at the address referred to in clause 16.1;

(b) if sent by pre-paid first class post or other next working day delivery service, on the Business Day after posting;

(d) if sent by email, at the time of transmission.

16.4 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

17. General

17.1 Negotiation and escalation. If any controversy or claim arises relating to this agreement, the parties will attempt in good faith to negotiate a solution to their differences, including progressively escalating any controversy or claim through senior levels of management.

17.2 No partnership or agency.

(a) Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

(b) Each party confirms it is acting on its own behalf and not for the benefit of any other person.

17.3 Entire agreement.

(a) This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

(b) Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.

(c) Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
(d) Nothing in this clause shall limit or exclude any liability for fraud.

17.4 Variation. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

17.5 Reservation of rights. All rights not expressly granted to Referral Partner hereunder are reserved by PSI.

17.6 Assignment and other dealings. This agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner (“Dealings”) with any of its rights and obligations under this agreement without prior written consent of the other party (not to be unreasonably withheld or delayed). Refusal to allow Dealings with competitors shall be considered a reasonable reason for withholding consent. Notwithstanding the foregoing, PSI are permitted to proceed with Dealings with any members of their Group Company without the need to obtain prior consent (written or otherwise) of Referral Partner.

17.7 No automatic waiver.

(a) No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

(b) No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

17.8 Severance.

(a) If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.

(b) If one party gives notice to the other of the possibility that any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

17.9 Third party rights. No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.

17.10 Governing law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

17.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

17.12 Counterparts. This agreement may be executed by way of electronic signature and in any number of counterparts all of which, when taken together shall constitute one and the same instrument. Transmission of an executed counterpart by email (in PDF, JPEG, or other agreed format) shall take effect as delivery of an executed counterpart. No counterpart shall be effective until each party has executed and delivered at least one counterpart.

Schedule 1 Mandatory Policies

Anti-Corruption and Bribery Policy
Environmental and Sustainability Policy
Fraud Response Protocol
Quality Assurance Policy
Security Policy
Whistleblowing Policy

Each as amended from time to time by PSI.

Schedule 2 Joint Marketing Effort

PSI are expecting to leverage the contacts and marketing expertise and local market understanding of the Referral Partner to drive business development in the Territory. Market research suggests that the key stakeholders in the marketplace for the Products are:

Training providers (of English language training)
Specialist advisors (for visa/academic applications)
Students (and their immediate influencers such as family and school/college)

The Parties agree to target the above groups through marketing and business development activities, and to target students through digital/social marketing including influencer marketing approaches.

PSI’s role

PSI shall act as product marketing lead, providing sales/marketing enablement assets in digital form including:

Target personas (from PSI perspective);
Branded templates for email, social, print etc.;
Collateral (product sheets aimed at training providers and visa advisors);
Collateral aimed at candidates themselves;
Creative services support for asset design and production;
If applicable, limited and restricted access to relevant portals; and
Social kits (containing campaign themes, messaging, SEO/PPC keywords).

Referral Partner’s role

Referral Partner shall act as demand generation lead and carry out in-market activities in the Territory including:

Refinement of target personas for local market in the Territory;
Identification of most effective approaches for targeting the key audiences;
Feedback on and refinement of PSI core messaging and assets;
Localisation, subject to prior PSI written consent, (including translation to local language) based on market awareness;
Print and fulfilment;
Representation at trade and industry events;
List building (for stakeholder targeting);
Digital marketing campaign execution;
Direct mail campaigns;
Business development (marketing lead follow-up and direct engagement with stakeholders); and
Any additional activities that PSI and Referral Partner shall agree from time to time.

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