These General Terms and Conditions (“Terms”) apply to any referral partner (“Referral Partner”) participating in the Flywire Referral Program (the “Program”) by entering into the Flywire Referral Partner Agreement (the “Agreement”) with Flywire (“Flywire”). Referral Partner and Flywire shall be referred to herein as each a “Party” and together, the “Parties.” Capitalized terms used herein but not otherwise defined shall have the meaning prescribed to them in the Agreement.
1. Relationship of the Parties
Referral Partner and Flywire agree that in performing their respective responsibilities pursuant to this Agreement they are in the position of independent contractors. Nothing in this Agreement or the Parties’ relationship shall be construed to give Flywire or Referral Partner the power to direct and control the day-to-day activities of the other. The general conduct of work performed by Referral Partner and its representatives under this Agreement shall be under Referral Partner’s sole control. Referral Partner further understands and agrees that Referral Partner shall be fully responsible for all tax obligations related to amounts received hereunder. This Agreement is not intended to create, nor does it create and shall not be construed to create, a relationship of partnership or joint venture or agency or any association for profit between Referral Partner and Flywire. Referral Partner is not authorized hereunder to hold itself out as an agent of Flywire or any of its suppliers or to inform or represent to any person that Referral Partner has authority to bind or obligate Flywire or to otherwise act on behalf of Flywire. Referral Partner shall not make any representation or warranty or create any liability or potential liability on behalf of Flywire.
All expenses and disbursements, including those for travel and maintenance, entertainment, training, office, employees, source deductions, taxes, employee taxes or remittances, clerical and general selling expenses that may be incurred by Referral Partner in connection with this Agreement shall be borne wholly and completely by Referral Partner, and Flywire shall not be in any way responsible or liable therefore. Except as otherwise provided, each Party shall bear its own administrative costs and overhead expenses arising out of its performance of this Agreement.
Referral Partner agrees that when referring Payers to Flywire you will: (i) identify yourself by your company name and ensure that you are not speaking on behalf of or giving the impression that you represent Flywire; (ii) identify yourself as a “Referral Partner” for Flywire; (iii) portray Flywire’s services (including without limitation Payex) and, where applicable, the offshore nature of Flywire’s service accurately; (iv) not conduct any marketing or solicitation activities in connection with this Agreement in jurisdictions where Flywire is not permitted to conduct any such marketing or solicitation activities or in a way that may be construed as. Flywire conducting business in the relevant jurisdiction without the appropriate regulatory authorization or approval; and (v) strictly adhere to any Flywire branding or marketing requirements or guidelines as may be communicated to you from time to time. Further, you represent and warrant that all of your referral activities relating in any way to the Flywire’s services (including without limitation Payex) shall comply with applicable laws, regulations, industry self-regulatory standards and best practices and that you shall all times maintain all permits, licenses, registrations, authorizations, consents and approvals required to carry out your business as now conducted and as proposed to be conducted in accordance with this Agreement (whether of a statutory, regulatory, contractual or other nature). At any time, with the provision of written notice to you, Flywire may require you to refrain from making new referrals and representing that you are a Flywire Referral Partner.
Referral Partner represents and warrants that it has the requisite corporate power to execute and deliver this Agreement. This Agreement has been duly and validly executed and delivered by each Party and constitutes a legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws relating to or affecting the enforcement of creditors’ rights in general and by general principles of equity.
2. Confidential Information
Each of Flywire and Referral Partner acknowledges that it may directly or indirectly disclose Confidential Information to the other Party in the course of negotiation of and performance of this Agreement. All such Confidential Information disclosed hereunder shall remain the sole property of the disclosing Party (or other third party), and the receiving Party shall have no interest in, or rights with respect thereto, except as set forth herein. Each Party agrees to treat such Confidential Information with the same degree of care and security as it treats its most confidential information. Each Party may disclose such Confidential Information to its employees and agents who require such knowledge to perform services under this Agreement. Except as otherwise contemplated by this Agreement, neither Flywire nor Referral Partner shall disclose the Confidential Information of the other Party to any third party without the prior written consent of the disclosing Party, and the duty of confidentiality created by this section shall survive any termination of the Agreement.
For the purposes of this Agreement, “Confidential Information” means all proprietary, secret or confidential information or data relating to either Flywire or Referral Partner and its affiliates, operations, employees, products or services, clients, customers or potential customers. Confidential Information shall include without limitation client lists, pricing information and the terms and conditions of this Agreement. Information shall not be considered Confidential Information to the extent, but only to the extent, that such information is: (i) already known to the receiving Party free of any restriction at the time it is obtained; (ii) subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (iii) or becomes publicly available through no wrongful act of the receiving Party; (iv) independently developed by the receiving Party without reference to any Confidential Information of the other; or (v) required to be disclosed by a court of law or regulator. Without limitation, information relating to Flywire’s services (including without limitation the Agent Solution and Payex) shall be the exclusive property and Confidential Information of Flywire.3.
3. Data Security
(a) Use and Protection of Personal Information
Each Party agrees to comply with all applicable laws governing or relating to privacy rights in connection with its performance under this Agreement. To the extent applicable, each Party agrees to protect and keep confidential all non-public personal information (“NPPI”) about or pertaining to the other Party's customers as Confidential Information. Each Party agrees to collect and use the other Party's NPPI only to exercise the rights and perform the obligations for which such information was disclosed, as specifically set forth in or clearly implied by this Agreement.
Neither Party may reuse the other Party's NPPI and agrees to destroy it or return it to the other Party, at such Party's request, if a Party does not have a specific business purpose under the Agreement to retain it; provided, however, that a Party may use its own customer information about an individual who has purchased a product or service from such Party and is thereby a customer of such Party. For avoidance of doubt, persons making payments to a Flywire’s customer pursuant to an agreement with Flywire are customers of Flywire for this purpose (“Client”), and NPPI collected by Referral Partner or Flywire in connection with such payments is Flywire's NPPI.
Unless prohibited elsewhere in the Agreement or by applicable law, a Party may disclose NPPI (i) to the affiliates of the Party for the purposes set forth in this Agreement; (ii) in the ordinary course of its business to its affiliates or third party service providers to carry out the purposes for which such NPPI was disclosed to such Party; or (iii) if such disclosure is required by applicable law. In the event a Party makes a disclosure under (iii), unless prohibited by law, the disclosing Party agrees to notify the other Party in writing, in advance when reasonably possible or, if not reasonably possible, promptly upon making such disclosure, including the nature of the data disclosed, to whom the data was disclosed, and provision of law requiring the disclosure.
To the extent Flywire or Referral Partner, as the case may be, receives from Client or processes any Personal Data on behalf of Client, then: (i) Flywire and Referral Partner shall both comply with their obligations under the applicable Data Protection Legislation; (ii) Flywire and Referral Partner undertake to each other that that it will take all necessary steps to ensure that it operates at all times within the applicable requirements of the Data Protection Legislations, (iii) Flywire and Referral Partner warrant to each other each of them has, and undertakes it will continue to maintain, appropriate technical and organizational measures to protect the Personal Data processed on behalf of Client from unauthorized use or access, accidental loss, damage, destructions, theft or disclosure; (iv) Flywire and Referral Partner (a) shall act only on written instructions from Client; (b) shall maintain records of all processing activities carried out on behalf of Client and shall provide such records promptly to Client on request; (c) unless otherwise requested by Client, shall process Personal Data only to the extent, and in such manner, as is necessary for the provision of Flywire’s services; (v) Flywire and Referral Partner will acquire no rights or interest in the Personal Data; (vi) Flywire and Referral Partner must promptly notify Client if it becomes aware of any security breach that has resulted in the unauthorized disclosure of or access to the Personal Data, with (a) a description of what happened, (b) the type of Personal Data involved, and (c) any other information as may reasonably be required to be disclosed under the Data Protection Legislation; (vii) Flywire and Referral Partner hereby agree to assist Client within such reasonable timescale as may be specified by Client, at Client’s cost and expense, with all subject information requests which may be received from the data subjects of the Personal Data. Should Flywire or Referral Partner receive any such requests directly, Flywire or Referral Partner, as the case may be, will immediately inform each other that it has received the request and Flywire shall forthwith forward the request to Client. Flywire or Referral Partner will not respond in any way to such a request, except on the instructions of Client; (viii) Flywire and Referral Partner agrees to notify Client (upon request) of all sub-processors currently engaged by Flywire or Partner who have access to Client’s personal data (“Personal Data”). Flywire and Referred Partner shall impose on such sub-processors data protection terms that protect the Personal Data to the same standard as required in the GDPR; and (ix) on termination or expiry of this Agreement for whatever reason, or upon written request at any time, Flywire and Referral Partner shall forthwith cease to use or process any Personal Data received from or on behalf of Client under this Agreement, and shall return on demand, or at the request of Client destroy or permanently erase, all Personal Data and copies of those personal data to Client in its possession or control provided there is no legal obligation to retain such data.
(c) Data Security
Both Parties agree (a) to maintain administrative, technical and physical safeguards to guard the security and integrity of Confidential Information and to implement appropriate information security and disposal measures, which are designed to meet the requirements applicable to the Party under applicable law and this Agreement; (b) to implement written information security and disaster recovery plans; and (c) to comply with all applicable laws and regulations regarding the security, handling, use and disclosure of such Confidential Information. Each Party agrees to implement a response program that specifies actions to be taken when that Party detects actual or suspected unauthorized access to its information or systems. As part of such response program, each Party agrees to notify the other Party upon becoming aware of any breach or suspected or attempted breach of security related to its areas, locations, or systems which contain any Confidential Information and to cooperate with the other Party to assist in regaining possession of the Confidential Information and prevent its further unauthorized use, and take any necessary remedial actions.
4. Regulatory Requests
At all times subject to the provisions on confidentiality hereunder, each Party shall: (i) provide to the Party any information that may be required by any regulatory authority in connection with their audit or review of the requesting Party or the subject matter hereof and reasonably cooperate with such regulatory authority in connection with such audit or review; and (ii) provide such other information as any regulatory authority may from time to time reasonably request with respect to Flywire.
5. Intellectual Property
All intellectual property rights of each Party shall remain vested in and owned by each such Party. Each Party agrees that, except as stated herein or as agreed by the Parties in writing, this Agreement does not grant to the other Party any right, title or interest in such Party’s intellectual property rights.
Each of Flywire and Referral Partner may assign its rights or obligations under this Agreement on notice to the other Party in the event of a company reorganization, merger or acquisition. Neither Flywire nor Referral Partner may otherwise assign its rights or obligations without the consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, any assignment on the part of the Referral Partner will only be effective upon assignee’s successful completion of Flywire’s compliance review. Any assignment of this Agreement in violation of this clause shall be deemed to be null and void.
Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing or email from an authorized officer and shall be deemed to have been delivered and given for all purposes at the time mailed or emailed.
8. Entire Agreement and Amendment
This Agreement sets forth the entire agreement and understanding of the Parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any Party hereto. Except as otherwise set forth in Section 2(b), this Agreement may not be modified or amended except by written agreement among all Parties.
9. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES SHALL THE LIABILITY OF FLYWIRE HEREUNDER EXCEED THE AMOUNT OF REFERRAL FEES PAID HEREUNDER DURING BILLING PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY.