This partnership agreement (hereinafter the Contract) is concluded on [date] by and between:
Xolo Go OÜ (registry code: [number]; registered address: Lõõtsa 8a, Tallinn, the Republic of Estonia; hereinafter Xolo)
[name of the professional] (personal identification code: [number] / date of birth: [date]; hereinafter the Professional),
(A) the Professional is an individual entrepreneur, who provides or will provide to customer(s) (hereinafter the End-Customers) professional services (hereinafter the Services);
(B) the Professional needs a legal entity, management and representation to provide the Services;
(C) Xolo is willing to provide to the Professional a legal entity, under which the Professional can provide the Services to the End-Customers, and also to provide management and representation support to the Professional in providing the Services;
(D) for these purposes, the Parties have agreed to start mutual cooperation in the form of a contractual partnership in the meaning of § 580 of the Estonian Law of Obligations Act (hereinafter the Partnership) by consolidating the general and specific skills, knowledge and experience of each Party and thereby achieving the purpose of running a successful and profitable business for both Parties;
NOW, THEREFORE, the Parties hereto agree as follows:
- OBJECT OF THE PARTNERSHIP
1.1 The object of the Partnership is to consolidate the professional skills of the Professional and the management (incl. representation) skills of Xolo and thereby successfully and profitably provide the Services to the End-Customers and distribute available profits of the Partnership. The Partnership is hereby acting via the legal entity provided by Xolo.
1.2 The Services are provided to the End-Customers by the Partnership. For that purpose, Xolo is authorised to accept and conclude on behalf of the Partnership, itself and the Professional a separate agreement with the End-Customers (hereinafter the Service Contract).
1.3 The Partnership does not constitute an agency, employment or other similar relationship between the Parties. Xolo and/or the Partnership are not obliged to provide to the Professional employees’ benefits, compensations, disability insurance, social security or unemployment compensation coverage or any other statutory benefits. The Professional may not present his/her identity to any third party as an employee, agent, officer etc. of Xolo.
- CONTRIBUTIONS OF THE PARTIES
2.1 The contributions of the Parties shall be limited to the activities that are necessary for achievement of objectives of the Partnership.
2.2 Xolo as the managing partner of the Partnership shall be contributing the following management and representation functions of the Partnership:
2.2.1 provide a legal entity under which the Partnership shall act in relations with third parties;
2.2.2 stipulate the terms and conditions related to the provision of the Services;
2.2.3 review and accept/reject the Service Contract (incl. the Project as stipulated in clause 2.5.2 of this Contract);
2.2.4 manage the Partnership’s assets;
2.2.5 organise support services as stipulated in clause 4 of this Contract (hereinafter the Support Services);
2.2.6 make all other management and representation decisions and activities as provided in this Contract.
2.3 Xolo may use third party service providers, software and/or tools for performing its duties under this Contract. Xolo has the right to make the data of the Partnership (incl. accounting information) available to such third-party service providers.
2.4 Xolo shall be entitled to unilaterally review and amend from time to time the specific terms of this Contract and the Services that the Partnership shall be providing, incl. the specific types of the Services that are eligible to be provided by the Partnership, the types of Support Services available, the countries where the Partnership can be active and the countries where the Support Services are available, the terms and conditions of Business Costs (as stipulated in clause 6.4.1 below) which can be covered from the account of the Partnership, the maximum amount of revenue of the Partnership allowed during specific time period etc. Without prejudice to clause 17.2 of this Contract that regulates the process of making changes to this Contract, the amendments named herein will become applicable and binding to the Professional and the Partnership upon making them public on the website of Xolo and/or via the Platform.
2.5 The Professional as the partner of the Partnership shall be contributing with all other activities aimed at actual and successful provision of the Services to the End-Customers as stipulated in this Contract, including:
2.5.1 find the End-Customers;
2.5.2 prepare the provision of Services (incl. specific terms and conditions which have been identified in a project (hereinafter the Project) and accepted by the End-Customer and thereafter by Xolo who represents itself and the Professional);
2.5.3 provide the Services and other duties according to the terms and conditions of the Service Contract, the Project and clause 5 of this Contract by applying all general and specific skills, knowledge and experience of the Professional.
2.6 The contributions of the Parties in the Partnership shall be regarded to be non-equal and divided accordingly as 5% provided by Xolo and 95% by the Professional.
- MANAGEMENT AND REPRESENTATION OF THE PARTNERSHIP
3.1 By accepting this Contract, the Parties have made a resolution that the right to manage and represent the Partnership is unconditionally and irrevocably granted to Xolo up to the maximum extent provided by the law. Xolo will have unlimited power and authority to carry out any act, take any proceeding, make any decision and execute and deliver any instrument, deed, agreement or document necessary for or incidental to carrying on the business of the Partnership at its own discretion, including, but not limited to, making decisions on any acts and transactions beyond the scope of the everyday activities of the Partnership, making decisions on submitting claims and filing actions against the End-Customers and any third parties on behalf of the Partnership, making decisions on submitting claims and filing actions against the Professional, making amendments to this Contract, the Service Contract and other applicable documents, establishing the terms of provision of the Services, making any payments on the account of the Partnership, making decisions to distribute profit etc. The Professional has the right to initiate the profit distribution process at any time. Xolo will administer such distributions according to the regulation of this Contract.
3.2 Xolo shall have the right to delegate its rights and obligations (incl. management of the Partnership) to third parties at the expense of the Partnership.
3.3 The Professional shall not restrict the authorities, representation rights and performance of any acts and transactions (the right to contest) of Xolo. By entering into the Partnership, the Professional shall give up his/her right to contest up to the maximum limit provided by the law.
3.4 Without the knowledge and written consent of Xolo, the Professional shall not have the right to represent the Partnership or Xolo. If the Professional carries out an operation or transaction in the name of the Partnership and/or Xolo without a written authorization of Xolo or by exceeding the limits of authorization, the Professional is personally responsible for the fulfilment of the obligations resulting from the latter acts and transactions, incl. for any damages which may incur.
3.5 As specified in the Service Contract and subject to corresponding explicit requests of the End-Customers, the Professional shall be entitled to enter in his/her own name and on his/her own account into separate non-disclosure agreements (hereinafter the NDA) and/or the data processing agreements (hereinafter the DPA) with the End-Customers in relation to the provision of the Services. The Partnership and Xolo will not be a party to such NDA and/or DPA. The NDA and/or DPA will only be binding to the Professional. The NDA/DPA will not constitute a part of the Service Contract. Without prejudice to the fact that such NDA/DPA is not binding to the Partnership and Xolo, Xolo may provide upon request of the Professional a draft of NDA/DPA for signing between the Professional and the End-Customers.
4.1 The Support Services include, for example, the following: organise access to the Platform (that allows communication between the Professional and Xolo, between the Professional and the End-Customers and management and review of the activities of the Partnership to the extent allowed by Xolo), the accounting and tax compliance, invoicing and expense management, transaction management etc. of the Partnership. The Support Services can be in more detail described on the Platform.
4.2 The Support Services shall be provided to the Partnership either by Xolo or a third party. The Professional is aware and accepts that a third-party provider of the Support Services could be related to Xolo (e.g. a group company). The Professional hereby authorises Xolo to agree on the terms and conditions, enter into the agreement, and amend or terminate the agreement with the third-party provider of the Support Services.
4.3 The Support Services are provided on an “as is” and “as available” basis without any warranties of any kind.
4.4 In justified cases, Xolo has the right to restrict access to the Platform at its sole discretion and the Professional cannot submit any claims against the Partnership and/or Xolo related to such restrictions.
4.5 Xolo shall maintain the accounting information and/or documents of the Partnership in accordance with applicable laws.
4.6 The Professional is obliged to cooperate with Xolo and the provider of the Support Services in fulfilling the accounting and tax obligations of the Partnership, incl. the provision of true and complete information and documents on time, and give explanations as requested by Xolo or the provider of the Support Services. The Professional shall be solely liable for the correctness of the information, documents and explanations provided by the Professional for accounting and tax purposes.
- PROVISION OF THE SERVICES BY THE PROFESSIONAL
5.1 The Professional shall provide the Services to the End-Customers (incl. bearing the responsibility for quality, lawfulness, security, protection, backup and all other relevant aspects) according to the terms and conditions of the Service Contract and this Contract.
5.2 The Professional shall conduct background checks about the End-Customers, verify the representation rights of contact persons of the End-Customers, investigate that the End-Customers have sufficient finances to pay for the Services and that the End-Customers are not insolvent. The Professional shall follow that End-Customers pay the Service Fee on time (as defined in clause 6.3 below) and, if necessary, collect the Service Fee from the End-Customers.
5.3 When providing the Services, the Professional shall take into consideration the interests of the Partnership and avoid damaging the Partnership and/or Xolo and/or any other party.
5.4 The Partnership and/or Xolo are not obliged to provide the Professional with any resources (incl. financial, general and specific skills, knowledge and experience, business trips, equipment, software, tools etc.), unless agreed separately by the Parties.
5.5 The Professional shall procure all necessary authorizations, licenses, approvals and permits to provide the Services.
5.6 The Professional has to follow personally the occupational health and safety requirements and cover relevant costs.
- FINANCIAL MATTERS
6.1 Xolo opens one or several bank accounts for the Partnership (hereinafter the Bank Account). The Bank Account is a sub-account of Xolo ́s account opened in the bank or other financial institution with separate IBAN that enables to keep track of funds of the Partnership separately from the funds of Xolo and the other partnerships.
6.2 The Professional unconditionally confirms and agrees that:
6.2.1 the Bank Account is operated and managed solely by Xolo;
6.2.2 the Professional does not have direct access to the Bank Account and cannot make transactions on the Bank Account by him-/herself;
6.2.3 Xolo shall make available to the Professional the existing financial information as stipulated in clause 6.6 of this Contract;
6.2.4 Xolo applies its best efforts in operating the Bank Account and making payments on the Bank Account as soon as possible according to the needs of the Partnership, requests of the Professional and obligations stipulated in this Contract. Xolo may however restrict any payments from the Bank Account at its sole discretion and request for additional information in case of suspicions regarding substance of the payment or adverse financial situation of the Partnership;
6.2.5 in case of submission of any claims against the Partnership, Xolo or the Professional, Xolo may at its sole discretion restrict, until full clarification of these claims, all payments from the Bank Account, incl. payment of Business Costs, Support Fee and Distributed Profit as stipulated in clause 6 of this Contract;
6.2.6 Xolo is not a bank or other financial institution. The funds in the Bank Account are not secured by Xolo and are not subject to any funds protection scheme. Xolo does not guarantee preservation of the funds in the Bank Account;
6.2.7 Xolo keeps separate track of the funds on the Bank Account, but because the Bank Account is only a virtual sub-account of the bank account of Xolo, factually the funds of the Partnership can be kept together with the funds of Xolo and other partnerships. One of the downsides of such structure of the Bank Account may be that a bailiff or a debt-collecting agency may not distinguish between the funds of different partnerships and may restrict the use of all sub-accounts, even though the Partnership is not a reason for such restriction. Should it happen, Xolo will apply its best efforts to release the funds of the Partnership from such restriction.
6.3 At the request of the Professional, Xolo shall issue invoices to the End-Customers for the provided Services. Relevant rights will be allocated to the Partnership. Value added tax (hereinafter the VAT) or any other tax will be added to the billable amount, if applicable. The End-Customers shall make payments for the provided Services (hereinafter the Service Fee) to the Bank Account. Xolo has the right to cancel an invoice or issue a credit invoice.
6.4 Upon receipt of the net (excl. of VAT) Service Fee or other net (excl. of VAT) income of the Partnership (hereinafter the Income) to the Bank Account, it shall be used by the Partnership as follows:
6.4.1 all business costs, which are directly related to the provision of the Services and which are substantiated with proper invoices and documents (hereinafter the Business Costs) may be covered by the Partnership. If the Professional needs to conduct the Business Costs, he/she forwards the relevant invoice to Xolo for determination of whether such costs can be regarded to be the Business Costs or not. Xolo proceeds the requests related to the Business Costs as soon as possible and, if they are accepted, Xolo organises the payment from the Bank Account. If the Partnership does not have sufficient financial resources to cover all requested Business Costs, Xolo pays the accepted Business Costs based on the FIFO (first in, first out) principle, unless the Parties agree otherwise;
6.4.2 the fee in the amount of up to 5.26% (excl. of VAT, if applicable) of each Business Costs will be deducted and paid immediately to cover the Support Services provided by the third-party service provider (hereinafter the Support Fee) as stipulated in this Contract and agreement with the provider of the Support Services. The Support Fee may be calculated based on the actual payments made by the Partnership from the Bank Account (cash-based system). For example, if the Professional has initiated Business Costs payment (which has been accepted by Xolo) in the amount of EUR 95 (excl. of VAT) and relevant payment has been made by Xolo from the Bank Account, the Support Fee shall be paid in the amount of EUR 5 (plus VAT, if applicable) from the Bank Account. The Professional confirms that he/she is aware of the fact that the Support Fee may change from time to time and Xolo is obliged to notify the Professional of such changes 30 days beforehand;
6.4.3 all other costs, liabilities and obligations of the Partnership (incl. any applicable taxes) as well as claims of third parties incurred in connection with the Services and/or the activities of the Partnership (hereinafter the Liabilities) shall be covered from the account of the Partnership. The Professional is obliged to inform Xolo immediately if he/she becomes aware of any Liabilities against the Partnership and/or his/her activities.
6.5 The Partnership cannot purchase any tangible assets without explicit prior written consent of Xolo.
6.6 Xolo is not obligated to prepare or organise the preparation of the annual reports or the activity reports of the Partnership. Xolo shall make available to the Professional the existing financial information, incl. accounting information, transactions in the Bank Account, total cash flow as well as cash flow in respect of each of End-Customers and each Project, via the Platform.
6.7 Subject to the decision of Xolo, the Professional may be issued a limited debit card related to the Bank Account. The terms and conditions of issuing and using a debit card (incl. requesting additional information, customer identification, limitations of use, etc.) may be decided by a third-party service provider and be outside the control of Xolo. The Professional shall be solely liable for any use, misuse, loss, theft or unauthorized duplication of the debit card or the data contained on it. The debit card can be used solely for the purposes of paying for Business Costs (hereinafter the Card Payments). Xolo shall inform the Professional upon issuance of the debit card or later of the terms and conditions which are related to the usage of the debit card. The Professional has to submit all documents (incl. invoices) related to the Card Payments to Xolo within 7 calendar days of the card transaction. The above-mentioned payments are regarded to be the Business Costs if the terms and conditions stipulated in clause 6.4.1 of this Contract are fulfilled. If the Professional does not submit documents related to the Card Payments, Xolo shall regard such payments as follows: (i) if the content of the transaction indicates that the payment is probably related to the business of the Partnership which cannot be evidenced by a proper document (e.g. invoice), Xolo regards it as unverified expense (hereinafter the Unverified Costs), or (ii) if the content of the transaction indicates that the payment is probably not related to the business of the Partnership, Xolo may regard this payment to be a fringe benefit or a profit distribution to the Professional as stipulated in clause 6.9 of this Contract (hereinafter the Unknown Payments). Xolo has the right to declare and pay all applicable taxes related to the Unverified Costs and Unknown Payments from the account of the Partnership without a prior consent of the Professional. For the sake of clarity, upon distribution of the profits, the amount of the Unknown Payments will be deducted from the part of the Distributed Profit to be paid out to the Professional in the meaning of clause 6.9 of this Contract.
6.8 The retained profit of the Partnership is calculated as follows: Income minus Business Costs minus Support Fee minus any Liabilities incurred in connection with the Services (incl. any applicable taxes) and/or the activities of the Partnership minus Unverified Costs minus previously Distributed Profit in the meaning of clauses 6.7 and 6.9 of this Contract (hereinafter the Retained Profit).
6.9 The Retained Profit may be distributed as follows:
6.9.1 the Professional may make a proposal to distribute the Retained Profit at any time;
6.9.2 based on the proposal of the Professional, Xolo shall make a unilateral decision whether and at what amount to distribute the Retained Profit. Xolo has to proceed the relevant request within 3 working days. Upon making a decision, Xolo shall consider the general financial status of the Partnership, the Services in progress, risk of any potential claims against the Partnership and other relevant circumstances. Xolo does not act as a lender or creditor, nor does it approve any requests to allow the Retained Profit to be lower than 0 (zero);
6.9.3 if Xolo makes a decision to distribute the Retained Profit, the designated amount shall be divided between the Professional and Xolo pro rata to the percentages of their contributions to the Partnership as stipulated in clause 2.6 above (hereinafter the Distributed Profit);
6.9.4 if the Professional does not make a proposal to distribute the Retained Profit, Xolo has the right (e.g. when the amount of accumulated profit is substantial or it is required by law, the authorities, the bank or other financial institution or Xolo) to make a unilateral decision to distribute the Retained Profit partially or in full (given that financial status and other conditions as named in clause 6.9.2 allow distribution of the Retained Profit). The Professional is aware that the Retained Profit may be distributed on an annual basis;
6.9.5 the Parties hereby agree that upon distribution of the Retained Profit, Xolo is not required to provide to the Professional any additional management reports, balance sheets and/or profit and loss statements. The reporting in this case shall be conducted as stipulated in clause 6.6 of this Contract;
6.9.6 the amounts of the Distributed Profit shall be transferred from the Bank Account to the personal bank accounts of the Professional and Xolo.
6.10 The Parties hereby agree that if the Partnership suffers any losses, these will not be distributed between the Parties in accordance with the procedure stipulated in clause 6.9 above. Xolo is not responsible for any losses of the Partnership. If under any circumstances, the Partnership suffers any losses, Xolo is authorized to use any legal and financial remedies to set-off that negative amount against the Professional, which include, but is not limited to automatic set-off against any funds available, at the cost of the Professional. The Professional is obliged to cover immediately (but not later than requested by Xolo) all losses, which may arise related to the activities of the Partnership and which cannot be covered by the funds of the Partnership. The technical, financial, commercial and other risks related to the provision of the Services and/or the activities of the Partnership are levied at the level of the Professional, incl. the consequences of delay in payment or non-payment of the Service Fee by the End-Customers.
6.11 The Parties are obliged to pay all applicable taxes related to the Distributed Profit and shall be solely responsible and liable for any payments, penalties, third-party charges, accusations, indictments or verdicts implying or determining Party ́s evasion of tax payments, tax frauds or any other illegalities related to the Party’s duties and obligations as a taxpayer. The Professional shall remedy these costs to Xolo, should these costs of the Professional first be collected from Xolo. If the Distributed Profit is taxed at the level of the Partnership, the applicable taxes shall be deducted from the amounts payable to the Parties. No interest shall be paid to the Parties related to this Contract.
7.1 The Parties acknowledge and confirm that any information or materials exchanged by the Parties in connection with this Contract are confidential (hereinafter the Confidential Information), and the Parties shall maintain the confidentiality of all such information and materials (hereinafter the Confidentiality Obligation). The Parties may disclose information about the conclusion of this Contract to third parties.
7.2 The Parties acknowledge that, in the course of performing the responsibilities and obligations under this Contract, they may be exposed to or acquire information which is confidential to the End-Customers and such information shall as well be regarded as Confidential Information. The Parties agree to put their best efforts to hold Confidential Information of the End-Customers confidential. If the Professional and the End-Customers have entered into a separate NDA as specified in clause 3.5 of this Contract, the Professional shall as well follow this NDA upon handling the Confidential Information of the End-Customers.
7.3 Confidential Information and Confidentiality Obligation shall not include information which:
7.3.1 is already known or may be known by the general public;
7.3.2 the Parties grant to the banks, auditors, accountants, legal councils and third parties who are involved in the activities of the Partnership or to whom this Contract is granted by law;
7.3.3 have to be disclosed according to the law based on the assumption that the authorities have made legally authorised and proper enquiries.
7.4 The Professional is aware that Xolo fulfils the obligations resulting from the Money Laundering and Terrorist Financing Prevention Act and other legal acts established on its basis. Xolo can disclose the documents and/or information carriers related to the Professional and/or the End-Customers and the data included therein to the person performing the supervision at the terms and pursuant to the procedure stipulated by law.
7.5 The Professional agrees to share information and documents electronically (incl. over the Internet and via email). The Professional confirms that he/she is aware of the risks related to the forwarding of the electronic mail over the Internet, incl. that the messages could disappear, confidential and private information could be intentionally or non-intentionally changed, stolen or disclosed to third parties. Xolo is not responsible for the risks related to the electronic forwarding (over the Internet) of information and documents and their potential consequences. It is the sole liability of the Professional.
7.6 The termination of this Contract does not deprive each Party of the rights and obligations created in clause 7 of this Contract.
- INTELLECTUAL PROPERTY
8.1 Any and all intellectual property rights to any intellectual property objects (hereafter the Intellectual Property) created by the Professional either in the course of or in connection with the performance of the Services shall belong to the Professional until the moment when they have to be transferred to the End-Customers according to the Service Contract.
8.2 The Intellectual Property may be divided between the Professional and the End-Customers threefold:
8.2.1 if not otherwise explicitly agreed in the Project (as stipulated in clauses 8.2.2 or 8.2.3), the Intellectual Property shall remain in full with the Professional; or
8.2.2 if explicitly agreed in the Project, the Intellectual Property shall be assigned and transferred from the Professional to the End-Customers, to the fullest extent permitted under law for an unlimited period. Simultaneously with the transfer obligation, the Professional undertakes to grant the End-Customers exclusive right to use all moral rights related to the result of the Services. The intellectual property rights shall be transferred to the End-Customers as of the moment of receipt of the full payment for the Services and in accordance with the regulation of the Service Contract; or
8.2.3 if explicitly agreed in the Project, the Professional shall retain the Intellectual Property to him-/herself, but will provide to the End-Customers with a non-exclusive license allowing them to use the Intellectual Property. The specific terms of such license shall be stipulated in the Service Contract or, additionally, in the Project.
8.3 The Professional is liable to confirm and guarantee that the Services (incl. any development, use, production, distribution or exploitation thereof) will not infringe, misappropriate or violate any intellectual property or other rights of any party. In case of a breach, the Professional shall be liable for any loss, claim or demand arising from such breach.
8.4 Xolo does not contribute any intellectual property rights to the Partnership and intellectual property of Xolo or any related party of Xolo that is used in connection with the fulfilment of this Contract shall in all cases remain with Xolo or any related party of Xolo.
- RIGHTS AND OBLIGATIONS OF XOLO IN PREVENTION OF MONEY LAUNDERING AND TERRORIST FINANCING
9.1 The Professional is obliged at any time to submit information (e.g. tax residency, citizenship, address, contract details, origin of funds) and documents (e.g. identity documents) to Xolo that could be required by Xolo relating to money laundering and terrorist financing prevention (incl. resulting from the money laundering and terrorist financing prevention acts or the legal acts issued on its basis, international legal acts and the instructions of the authorities).
9.2 The Professional is obliged to immediately notify Xolo of any changes of the information and/or documents submitted during the validity period of this Contract. Xolo has the right to terminate the Partnership and this Contract without the advance notice in the situation where the Professional and/or the End-Customers are not duly forwarding the information and/or documents to Xolo that could be required by Xolo related to money laundering and terrorist financing prevention.
- OTHER RIGHTS AND OBLIGATIONS OF THE PARTIES
10.1 During the term of this Contract, the Parties jointly and severally undertake to act in the performance of this Contract primarily in the interests of the Partnership, each other's economic interests and the objectives set out in this Contract. Among other things, the Parties undertake to:
10.1.1 exercise their rights and perform their obligations in good faith and protect the Partnership from damage and take into account the interests of the other Party;
10.1.2 perform their rights and obligations arising from this Contract in such a manner as is necessary to fulfil and comply with the requirements of this Contract and the Service Contract;
10.1.3 notify the other Party of all material circumstances relating to the contractual relationship towards which the other Party has a justified interest;
10.1.4 use all reasonable endeavours to settle any disputes arising between any persons in connection with the Partnership.
10.2 The Professional is obliged to:
10.2.1 fulfil his/her obligations arising from this Contract and the Service Contract in a manner that does not adversely affect the rights of the Partnership and/or Xolo and/or other parties;
10.2.2 cooperate with Xolo and the Partnership and provide requested assistance, incl. timely and comprehensive documentation, information and other resources;
10.2.3 submit only true and complete information and/or documents;
10.2.4 render the Services with proper skill, care and diligence and by observance of the appointed dates and fulfil all other obligations under the Service Contract. Xolo may cover from the account of the Partnership any costs which are related to the incomplete or defective provision of Services and/or other duties which are performed by the Professional;
10.2.5 immediately inform Xolo, if the Professional should not be able to fulfil his/her obligations according to this Contract and/or the Service Contract;
10.2.6 notify Xolo of the comments and recommendations made by the End-Customers to ensure the higher quality, faster and more efficient servicing and cooperation;
10.2.7 make all endeavours and cover all costs to collect Service Fee from the End-Customers;
10.2.8 inform Xolo if the Services are provided to a related party of the Professional (persons are deemed to be related if they have common economic and/or personal interests);
10.2.9 use all rights and obligations of the Professional only for lawful purposes;
10.2.10 notify Xolo during the validity period of this Contract and within 5 years after the termination of this Contract of the changing of his/her contact data;
10.2.11 inform Xolo immediately of changing the location of the provision of the Services and/or the tax residency of the Professional. Xolo has not conducted and will not conduct any analysis for determining the place of the provision of the Services and/or the tax-residency of the Professional, meaning the responsibility of the correctness of the above assumption relies solely on the Professional;
10.2.12 not assign, transfer, sell, encumber, sublicence, rent, lease or in any other way dispose the rights and obligations arising from this Contract and/or the Service Contract to any third party without the prior written consent of Xolo;
10.2.13 maintain all documents and information related to the Services and/or the Partnership within 10 years as of the dissolution of the Partnership;
10.2.14 not make any management decisions on behalf of the Partnership, not transact any business on behalf of the Partnership and/or Xolo, not take any binding responsibilities on behalf of the Partnership, unless it is otherwise stipulated in this Contract or derives from a separate authorisation of Xolo given beforehand in written form.
- LIABILITY OF THE PARTIES
11.1 This Contract is exclusively for the benefit of the Parties and shall not be construed as conferring, either directly or indirectly, any rights or causes of action upon third parties.
11.2 The Parties shall be jointly and severally liable for the obligations of the Partnership in the external relationship between the Partnership and the End-Customers or between the Partnership and any other third parties. This shall not apply and the Professional shall be personally and solely liable for the obligations and the damages deriving from: (a) any operation or transaction that the Professional performs or enters into in the name of the Partnership and/or Xolo without a written authorization of Xolo or by exceeding the limits of the authorization as stipulated in clause 3.4 of this Contract or (b) the NDA/DPA entered into with the End-Customers in the Professional’s own name and on personal account as stipulated in clause 3.5 of this Contract.
11.3 In the internal relation of the Parties within the Partnership, the Professional agrees to indemnify Xolo and any persons related to Xolo (incl. other persons who are engaged with Xolo through a partnership business model, cooperation partners, sub-contractors, employees and any other parties) against any costs, damage, claims, liabilities, settlements, legal fees and other expenses incurred as a result of the Professional's breach of this Contract and/or the Service Contract or any provisions of the applicable laws and any other action or inaction by, for or on behalf of the Professional and/or the Partnership. The Professional undertakes to indemnify Xolo, and to keep it indemnified from: (a) any costs, calls, losses, taxes and other matters for which Xolo and/or the Partnership become liable or arising as a direct or indirect result of its status in the Partnership or arising from carrying out the Professional’s instructions; (b) any claims, losses, or liabilities arising as a result of a breach of the obligation, warranties and representations of the Professional under this Contract and/or the Service Contract. After liquidation of the Partnership, the Professional will take over as a defendant, any and all claims and obligations which are related to the Partnership and/or which might arise after the liquidation of the Partnership.
11.4 In the internal relations of the Parties within the Partnership Xolo may only be held liable for possible damages arising from its non-performance or inaccurate performance of obligations of Xolo under this Contract, whereas Xolo shall not in any case be liable for the loss of profit, indirect loss or non-patrimonial damage, incl. any indirect or consequential damages. The total liability of Xolo shall in all cases be limited to not more than EUR 1,000. The foregoing limitations shall not apply in case of deliberate or gross negligent breach of this Contract by Xolo. The limitation period for submitting any claim against Xolo is 6 months from the act of breach.
11.5 Xolo does not bear any liabilities related to the actions of any third party. For example, Xolo is not liable for the correctness of the information and/or documents provided by the Professional. Xolo is also not liable for the negative consequences resulting from the absence of necessary clarifications or the incorrectness of information/documents received from the Professional. The Professional is obliged to notify Xolo immediately of the changes, observations and additional information that could be important related to this Contract and/or the Service Contract.
11.6 Non-performance or improper performance of contractual obligations shall not be considered a breach of this Contract if it was caused by circumstances beyond the control of the Parties, could not and should not have been foreseen or prevented (hereinafter the Force Majeure). These circumstances must be verifiable and, notwithstanding the foregoing unforeseen circumstances, the Parties are required to take measures to mitigate the potential damage. If the impediment is temporary, the breach of obligation is excusable only for the time when the obligation was obstructed. A Party whose activities in the performance of its contractual obligations are prevented by unforeseeable circumstances shall immediately notify the other Party of that and of the means applied to minimize the consequences.
12.1 If required by the End-Customers or Xolo, the Professional shall obtain relevant insurance which covers damages and consequences that may arise from the provision of the Services.
12.2 The Professional may also obtain voluntary personal insurance that covers his/her liability in connection with fulfilment of this Contract and/or the Service Contract.
12.3 The applicable minimal value of the insurance policy and maximum personal liability of the Professional under the insurance policy shall be specified by the End-Customers in the referred Project and/or by Xolo.
12.4 Each insurance policy must include the damaged person’s (Xolo, the End-Customers or any other) right to claim damages directly from the insurer during the term and 5 years after termination of the insurance policy. The rest terms of the insurance policy shall be agreed by the Professional with the End-Customers and/or Xolo.
12.5 If the Professional breaches the insurance obligation, as stipulated herein, Xolo shall be entitled to make such insurance by itself at the expense of the Partnership.
- ENTRY INTO FORCE, TERMINATION AND DISSOLVEMENT
13.1 As a pre-condition for entering into the Partnership, Xolo will require the Professional to register on the Platform and provide information and documents about the Professional, incl. his/her personal data, tax residency, copies of identification documents, his/her skills, knowledge and experience, the purpose of his/her business activities and End-Customers (the “Know-Your-Customer” process, hereinafter the KYC). As part of the KYC process, Xolo may require a recorded video interview with the Professional, either conducted by the representative of Xolo or a third party.
13.2 After successful conclusion of the KYC process, Xolo may invite the Professional to enter into this Contract and form a Partnership for the purpose of provision of the Services. In this case Xolo shall provide to the Professional the terms and conditions of this Contract, the Service Contract and other applicable documents for review and acceptance through the Platform. The Professional shall accept this Contract, the Service Contract and other applicable documents by clicking the corresponding checkboxes on the Platform. Even though the text of these documents is electronic and not physically signed by the Professional, by accepting them the Professional unconditionally agrees with them and obliges to follow them. If the Professional does not agree with any of the clauses of this Contract, the Service Contract or other applicable documents, he/she should not accept them.
13.3 This Contract enters into force and the Partnership is formed when the Professional accepts this Contract, the Service Contract and other applicable documents provided by Xolo as stipulated in clause 13.2 of this Contract. This Contract shall be entered into and the Partnership formed for indefinite time.
13.4 Both Parties shall have the right to terminate this Contract and thereby the Partnership ordinarily at any time without a cause by sending at least 30 days prior written notice to the other Party.
13.5 In addition to the extraordinary termination grounds stipulated by the applicable laws, Xolo shall be entitled to terminate this Contract and thereby the Partnership extraordinarily at any time and without providing any prior notice to the Professional, incl. in the following cases: a) it is required by an order or a restriction of any state authority, b) due to any changes in the applicable laws or regulations of state authorities, c) due to requirements and restrictions of third party service providers (banks, other financial institutions, debit card service providers), d) due to any other circumstances which forbid or restrict the activity of the Partnership, e) in case of significant deterioration or danger of a significant deterioration of the Professional´s financial situation which can affect the Professional's ability to fulfil this Contract and/or the Service Contract, f) in case of initiation, threatening or warning of the Professional´s insolvency or bankruptcy proceedings, g) in the case of the Professional´s permanent incapacity to provide the Services, or h) if continuation of this Contract and the Partnership would unreasonably damage the lawful interests of Xolo, the Partnership and/or the End-Customers. In such cases, Xolo shall not bear any responsibility towards the Partnership and the Professional that may arise due to or in connection with such termination of this Contract and the Partnership.
13.6 Upon termination of this Contract, the Partnership shall be liquidated by Xolo acting as the sole liquidator of the Partnership. In the course of the liquidation process Xolo shall establish all assets and obligations of the Partnership. The Professional is obliged to participate in the liquidation process upon request of Xolo, including, but not limited to, the provision to Xolo and other competent persons explanations and documents, make available to Xolo all the existing assets of the Partnership, provide overviews of all End-Customers and the state of Services provided/to be provided to them, return back issued debit cards etc. Xolo shall cover the obligations of the Partnership at the account of the Partnership and distribute the Retained Profit in accordance with the terms of this Contract. The contributions of the Parties (as stipulated in clauses 2.2 and 2.5 of this Contract) shall not be returned, distributed or compensated separately to the Parties. The Parties hereby agree that upon liquidation of the Partnership, the Partnership shall not return the contributions of the Parties, but shall only distribute the Retained Profit in accordance with the principles stipulated in clause 6.9 of this Contract. Should there be potential claims against the Partnership, Xolo shall reserve the funds that may be necessary to cover such claims. At latest within a year after liquidation of the Partnership, Xolo may close the Bank Account. The liquidation costs shall be covered at the account of the Partnership.
13.7 If during the dissolution of the Partnership, Xolo shall not be able to contact the Professional within 3 months via Platform or email, the part of the profit of the Partnership that is distributed to the Professional shall be paid to the Professional’s last known bank account number. If such payment is returned to Xolo, the part of the profit of the Partnership that should be distributed to the Professional shall be paid to Xolo in full. In case of a loss, Xolo has the right to submit a claim against the Professional and/or take any other actions to cover the loss.
13.8 Xolo shall have a univocal right to refuse termination of this Contract and liquidation of the Partnership, if according to the knowledge of Xolo, this would unreasonably damage the lawful interests of Xolo, the Partnership and/or the End-Customers.
13.9 All provisions of this Contract that in accordance with the context are meant to survive the termination of this Contract and/or the liquidation of the Partnership or deactivation/cancelation of the Professional’s access to the Platform, shall continue to apply to the Professional until all legal and/or financial issues between the Parties and/or the End-Customers are settled or until it is reasonable. Without prejudice to the generality of the foregoing, the clauses of this Contract related to confidentiality (clause 7), intellectual property (clause 8), obligation to renew contact information and preserve data and documents (clauses 10.2.10 and 10.2.13), liability (clause 11), insurance (clause 12), termination and liquidation (clause 13) shall survive the termination of this Contract for any reason.
- REPRESENTATIONS AND WARRANTIES
14.1 Each Party respectively represents and warrants to the other Party that:
14.1.1 the Party has full legal right, power, authority and competence to enter into, execute and deliver this Contract and have taken all necessary steps and actions, as appropriate and necessary to authorise or permit the execution, delivery and performance of this Contract and the transactions contemplated hereby;
14.1.2 no voluntary or compulsory liquidation proceedings or insolvency or bankruptcy proceedings have been initiated, threatened or warned on it.
14.2 The Professional represents and warrants to Xolo the following:
14.2.1 he/she has active legal capacity and he/she is acting on his/her own name and account;
14.2.2 there are no lawsuits, administrative, arbitration or other legal proceedings (including, but not limited to tax proceedings) against the Professional;
14.2.3 he/she has all general and specific professional skills and experience, qualifications, assets and resources to provide the Services according to the request and needs of the End-Customers;
14.2.4 he/she does not participate in the Partnership for the purposes of illegal activities; the activities of the Professional and/or the Partnership will be compliant with any applicable laws during the validity period of this Contract;
14.2.5 he/she is aware of all aspects, which are relevant related to the provision of the Services through the Partnership, incl. applicable obligations (e.g. any law, judgement, award, order, permit, licence, consent, contract, approval or prescript), liabilities and risks. The Professional is aware of the fact that he/she is solely responsible and liable to fulfil all personal and other tax and legal obligations which the participation in the Partnership triggers;
14.2.6 he/she is willing to bear full liability for the obligations, liabilities and risks related to the Partnership and/or provision of the Services;
14.2.7 he/she does not grant any access related rights of the Platform to third parties;
14.2.8 he/she has notified Xolo of all circumstances towards which Xolo and/or the Partnership has or could have recognizable material interest, considering the aim of this Contract;
14.2.9 all information and/or documents submitted to Xolo and/or the End-Customers are true and complete;
14.2.10 he/she is aware of the fact that Xolo engages many persons through a similar partnership business model and is willing to accept all material aspects and consequences, which this may have to the Partnership;
14.2.11 there are no other circumstances, which would prejudice or preclude the right of the Professional to enter into, execute and deliver this Contract;
14.2.12 he/she is aware of the fact that Xolo has the right, in its sole discretion, to restrict or suspend the activity of the Partnership, profit distributions of the Partnership and the access of the Professional to all or any part of the resources which are made available to the Professional after the conclusion of this Contract at any time and for any reason without prior notice and/or liability.
14.3 The Parties immediately notify the other Party in writing of any circumstances arising after the conclusion of this Contract, which causes any of the representations and warranties to become untrue, inaccurate or misleading which is material for disclosure to the other Party.
15.1 All notices between the Parties (incl. any invoice, notice or other communication) in connection with this Contract shall be communicated to the other Party, in writing by email or via the Platform.
15.2 The Parties have agreed that sending notices via email or Platform shall always be preferred. The Professional undertakes to ensure, at all times, that its contact email address notified to Xolo is valid and in working order. The Parties have agreed that any notice sent to the Professionals’ email address or through the Platform, shall be deemed to be received by the Professional after 3 calendar days have passed from sending such notice.
- GOVERNING LAW AND DISPUTE RESOLUTION
16.1 This Contract is covered by the laws of the Republic of Estonia. The Parties proceed from the valid legal acts of the Republic of Estonia and other acts regulating the mutual relations in matters not regulated in this Contract.
16.2 At the occurrence of different opinions, the Parties are obliged to notify the other Party of it and pursue to settle the problem by negotiations. If no agreement is reached, the disputes are solved pursuant to the procedure set by the legal acts of the Republic of Estonia.
16.3 Any dispute, controversy or claim arising out of or relating to this Contract, or the breach, termination or validity thereof will be settled by Harju County Court, the Republic of Estonia as the court of first instance.
- OTHER TERMS
17.1 The headings of the clauses of this Contract have been inserted for convenience of reference only and in no way restrict or modify any of the terms or provisions hereof. Whenever the singular, masculine or neuter is used in this Contract the same shall be construed as including the plural or feminine or anybody corporate or unincorporated where the context or reference to the Parties hereto so requires.
17.2 This Contract is the entire contract between the Parties and supersedes all prior representations, negotiations, writings, memoranda, and agreements with respect to the subject matter hereof. No modification, representation or warranty, variation, or amendment shall be of any force or effect unless it is in writing and signed by all Parties, unless otherwise stipulated in this Contract. Hereby the Professional understands and agrees that the Partnership relation of the Parties is in the development stage, thus it may be necessary to change or amend the terms of the Partnership on the basis of objective reasons. If such need occurs, Xolo undertakes to notify the Professional at least 30 days in advance of the enforcement of the new terms of this Contract. In case the Professional disagrees with the amendments, the Professional will be entitled to terminate this Contract within 20 days as of the notification submitted by Xolo, by sending a termination notice to Xolo, in which case this Contract shall be deemed terminated after 10 days of receipt of the termination notice. The Professional shall be deemed to have agreed with the new terms, if the Professional does not contest the new terms within 20 days as of Xolo’s notification. Non-agreement to the new terms by the Professional does not preclude Xolo from the right to terminate the Partnership as stipulated in this Contract. The foregoing Contract amendment regulation shall not apply if the amendment of this Contract is required due to the change in the applicable laws or other regulations that have influence on this Contract and/or the Partnership or if it is required by any decree, regulation or restriction of any state authority. In such case the amendment shall enter into force immediately upon provision of corresponding notice to the Professional, whereas in this case the Professional shall not be allowed to terminate this Contract.
17.3 If one or more of the foregoing provisions are or become invalid, the validity of the remaining provisions shall not be affected thereby. The invalid provision shall be replaced by a valid one, which achieves to the extent possible the purpose and the commercial goal of the invalid provision.
17.4 This Contract forms a legally binding agreement if the terms are accepted by the Professional and when Xolo has confirmed the acceptance of the Professional.