These General Terms and Conditions (“Terms”) apply to any party (“you”) participating in the Flywire Referral Program (the “Program”) by entering into the Flywire Referral Program Participation Agreement (the “Agreement”) with Flywire G.K. (“Flywire”). Capitalized terms used herein but not otherwise defined shall have the meaning prescribed to them in the Agreement.
1. Eligibility and Conditions of Referral Fee Payments
This Program is not valid where such programs are prohibited. You must be of the age of majority in your relevant jurisdiction. The Referral Fees shall be payable only if: (a) you are not in default under the Agreement and (b) neither you nor Flywire has terminated this Agreement for cause.
2. Relationship of the Parties
You agree that in performing your responsibilities pursuant to the Agreement you are in the position of independent contractor. Nothing in this Agreement or your relationship with Flywire shall be construed to give you the power to direct and control the day-to-day activities of Flywire. The general conduct of work performed by you and your representatives under the Agreement shall be under your sole control. Yoy further understand and agree that you shall be fully responsible for all tax obligations related to any Referral Fees received under the Agreement. The 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 you and Flywire. You 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 you have the authority to bind or obligate Flywire or to otherwise act on behalf of Flywire. You 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 you in connection with this Agreement shall be borne wholly and completely by you, and Flywire shall not be in any way responsible or liable therefore. Except as otherwise provided, you shall bear your own administrative costs and overhead expenses arising out of your performance of the Agreement.
You agree that when referring Prospects 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) portray Flywire’s services (including without limitation Flywire’s online platform) accurately; (iii) not conduct any direct marketing or solicitation activities in connection with this Agreement in jurisdictions where Flywire is not permitted to conduct any such marketing or solicitation activities. Further, you represent and warrant that all of your referral activities under the Program shall comply with applicable laws, regulations, industry self-regulatory standards and best practices. 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 or that Flywire is your Preferred Payment Gateway.
3. Confidential Information
You and Flywire acknowledge that you or Flywire may directly or indirectly disclose Confidential Information to the other party in the source of performance of the Agreement. All such Confidential Information disclosed thereunder 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. You agree to treat such Confidential Information with the same degree of care and security as it treats your most confidential information. You may disclose such Confidential Information to your employees and agents who require such knowledge to perform services under the Agreement. Except as otherwise contemplated by the Agreement, you shall not disclose the Confidential Information to any third party without the prior written consent of Flywire, and the duty of confidentiality created by this section shall survive any termination of the Agreement.
For the purposes of the Agreement, “Confidential Information” means all proprietary, secret or confidential information or data relating to either Flywire or you and its and your respective 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 the 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 shall be the exclusive property and Confidential Information of Flywire.
4. Data Security
You agree to comply with all applicable laws governing or relating to privacy rights in connection with your performance under the Agreement. To the extent applicable, you agree to protect and keep confidential all non-public personal information (“NPPI”) about or pertaining to the Flywire’s Prospects or Referred Clients as Confidential Information. You agree to collect and use Flywire’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 the Agreement.
You may not reuse Flywire’s NPPI and agree to destroy it or return it to Flywire, at Flywire’s request, if you do not have a specific business purpose under the Agreement to retain it; provided, however, that you may use your own customer information about an individual who has purchased a product or service from you and is thereby your customer. For the avoidance of doubt, persons making payments to a Referred Client pursuant to an agreement with Flywire are customers of Flywire for this purpose, and NPPI collected by you or Flywire in connection with such payments is Flywire's NPPI.
Unless prohibited elsewhere in the Agreement or by applicable law, you may disclose NPPI (i) to your affiliates for the purposes set forth in the Agreement; (ii) in the ordinary course of its business to your affiliates or third-party service providers to carry out the purposes for which such NPPI was disclosed to you; or (iii) if such disclosure is required by applicable law. In the event you makes a disclosure under (iii), unless prohibited by law, you agree to notify Flywire 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.
5. Regulatory Requests
At all times subject to the provisions on confidentiality hereunder, you shall: (i) provide to Flywire any information that may be required by any regulatory authority in connection with their audit or review of Flywire 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.
6. Intellectual Property
All intellectual property rights of Flywire shall remain vested in and owned by each Flywire. You agree that, except as stated herein or as agreed by Flywire in writing, this Agreement does not grant you any right, title or interest in Flywire’s intellectual property rights.
Each of Flywire and you may assign its or your rights or obligations under the Agreement on notice to the other party in the event of a company reorganization, merger or acquisition. Neither Flywire nor you may otherwise assign its or your rights or obligations without the consent of the other party, which consent shall not be unreasonably withheld.
Any notice, approval, request, authorization, direction or other communication under the 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.
9. LIMITATION OF LIABILITY
EXCEPT WHERE PROHIBITED BY LAW, BY PARTICIPATING IN THE PROGRAM, YOU RELEASE FLYWIRE AND ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, AND EMPLOYEES (“FLYWIRE PARTIES”) FROM ANY AND ALL LIABILITY FOR ANY LOSS, HARM, DAMAGES, COST, OR EXPENSE ARISING OUT OF OR IN ANY WAY RELATED TO THE PROGRAM. FURTHER, YOU AGREE TO INDEMNIFY AND HOLD HARMLESS FLYWIRE PARTIES FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS ARISING FROM YOUR BREACH OF THESE TERMS OR YOUR VIOLATION OF APPLICABLE LAW.
10. Term and Termination
Flywire may, in its sole and absolute discretion, cancel, change, or suspend any aspect of the Program, the Agreement or these Terms at any time. In the event of such cancellation, change, or suspension, Flywire will promptly notify you of the same. You may also end your participation in the Program at any time.
11. Governing Law
The Agreement shall be governed by and construed in accordance with the laws of Japan, without regard to its conflict of law provisions. You and Flywire consent to, and agree that you and Flywire are subject to, the exclusive jurisdiction of the Tokyo District Court with respect to any actions for enforcement of or breach of the Agreement. By execution and delivery of the Agreement, you and Flywire accept the exclusive jurisdiction of the aforesaid courts.