These Affiliate Program Terms and Conditions (the “Agreement”) are a binding agreement between B2B Wave Inc. (the “Company”) and you or the entity signing up for B2B Wave’s affiliate program (the “Referrer,” and together with the Company, the “Parties,” and each, a “Party”).
WHEREAS the Company is in the business of selling B2B eCommerce platform solutions (the “Services”), which are offered under annual or monthly subscription plans; and
WHEREAS the Company desires to engage the Referrer to introduce to the Company any potential sales leads for the Services (each, a “Customer” and collectively, “Customers”), and the Referrer desires to accept such engagement.
NOW, THEREFORE, in consideration of the premises set forth above and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. ENGAGEMENT
1.1. Engagement. The Company hereby engages the Referrer, and the Referrer hereby accepts such engagement, to act as the Company’s non-exclusive Referrer with respect to sales of the Services to Customers in the United States, Canada, the European Union, and the United Kingdom during the Term, in accordance with this Agreement. The Company may, in its sole discretion, engage any other person to sell the Services.
1.2. Referrer Duties. In all its activities under this Agreement, the Referrer shall: (a) cooperate with the Company and comply with all reasonable and lawful instructions of the Company; (b) act in good faith and with diligence and not allow its interests to conflict with its duties under this Agreement; (c) use its best endeavors to make referrals of Customers agreed pursuant to Article 1.1; and (d) comply with the terms and rules set in Company’s Terms of Service (the “Terms”) found at https://www.b2bwave.com/terms and “Privacy Policy” found at https://www.b2bwave.com/privacy-policy.
1.3. Limited Scope of Authority. The Referrer shall: (a) 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 to bind the Company in any way, and shall not do any act which might reasonably create the impression that the Referrer is so authorised; (b) not make or enter into any contracts or commitments or incur any liability for or on behalf of the Company, including for the provision of the Services or the price for them, and shall not negotiate any terms for the provision of the Services with Customers; (c) disclose to each Customer that it is an introduction agent of the Company and that it has no authority or ability to negotiate or vary the Services or the terms of the Services or enter into any contract on behalf of the Company; (d) not, without the Company’s prior written consent, make or give any representations, warranties or other promises concerning the Services which are not contained in the Company’s marketing material; and (e) not be deemed to have referred a third party to the Company where a Customer, referred by the Referrer, then refers a prospective customer to the Company who purchases Services from the Company.
1.4. Company’s Discretion. The prices, terms, and conditions under which the Company offers or sells any Services shall be determined by the Company in its sole discretion. The Company shall have the authority to control all negotiations regarding any offering of Services. Nothing in this Agreement shall obligate the Company to actually offer or sell any Services or consummate any transaction with any Customer. The Company may terminate any negotiations or discussions at any time and has the right not to proceed with any sale of Services without any liability or obligation to pay compensation to the Referrer.
2. REFERRAL PROCEDURE AND FEES
2.1. Referral Process. The Referrer shall refer a Customer to the Company by providing: (a) information of such Customer to the Company through a form or as otherwise instructed by the Company from time to time; (b) the Customer with the Referrer’s unique referral code (the “Referral Code”), which shall give certain discounts or special offers to the Customer based on the type of Service plan, at the Company’s sole discretion; (c) a unique for each Referrer referral link.
2.2. Reward. In consideration for the services rendered by the Referrer hereunder, the Referrer shall receive from the Company 20% of revenue from recurring services for each Qualified Customer for the duration of a maximum of two years introduced by the Referrer to the Company in accordance with Section 2.1(a) above.
2.3. “Qualified Customer” means a Customer: (i) who acquires the Company’s Services for its own use; (ii) of whom the Company has no record in connection with the Services, or who are not, at the time referred to the Company by the Referrer, in any contractual relations or ongoing negotiations with the Company in connection with the Services; (iii) who accept the terms and acquire, subscribe or purchase one of the Company’s Services plans; (iv) who are not rejected by the Company; and (v) if subscribing to an annual Services plan or a monthly Services plan, makes at least one payment in cleared funds to the Company.
2.4. Limitations. The Referrer shall receive rewards for up to ten (10) Qualified Customer referrals per calendar month unless otherwise authorized in writing by the Company (Rewards). The Company reserves the right to set a limit on the number of times the Referrer may share its Referral Code.
2.5. Reward Qualification. The Referrer will not be entitled to Rewards for any Qualified Customers that subscribe to the Company’s Services after the termination of this Agreement. As Customers can be referred only once, the Referrer shall not be entitled to Rewards in relation to Customers who were referred by other referrers or other third parties (including, but not limited to, other Customers).
2.6. Restrictions. The Referrer hereby covenants that the Referrer will not: (a) duplicate, sell, or transfer the Referral Code in any manner or make it available to the general public (such as by posting it on a coupon website or social media); (b) try to get Qualified Customers by spamming, bulk emailing, or sending large numbers of unsolicited emails; or (c) make misleading claims about the Company, use offensive/abusive content, or misrepresent the Referrer’s connection to the Company.
2.7. Reward Payments. The Referrer shall receive the Reward(s) within thirty (30) days after the end of the calendar month in which the Company receives from the Qualified Customer the first payment of subscription fees for the Services.
2.8. Withholding. If the Company pays a Reward to the Referrer with respect to a Customer who then ceases to be a Qualified Customer by canceling their monthly subscription for Services or requesting a refund, the Company will have the right to withhold and retain the amounts of Rewards unduly paid out of future Rewards due to the Referrer.
3. CONFIDENTIALITY
3.1. Confidential Information. “Confidential Information” means all non-public, confidential, or proprietary information of Company disclosed by Company to Referrer, whether disclosed orally or disclosed or accessed in written, electronic, or other form, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with this Agreement, as well as the terms and conditions and the existence of this Agreement are confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Company in writing. Company shall be entitled to injunctive relief for any violation of this Section 4. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Referrer at the time of disclosure; or (c) rightfully obtained by the Referrer on a non-confidential basis from a third party.
3.2. Publicity. Referrer shall not (orally or in writing) publicly disclose the existence of this Agreement or the subject matter hereof without the prior written approval of Company, except to the extent that Referrer is required to make any public disclosure or filing with respect to the subject matter of this Agreement by applicable law.
4. INTELLECTUAL PROPERTY
4.1. Ownership. All intellectual property rights in the Company’s trademarks, the Services, and related content and technology (the “Company IP”) are and will remain the exclusive property of the Company. The Referrer agrees to: (a) not use any Company IP in any manner reasonably likely to breach this Agreement; (b) not do anything contesting or impairing any Company IP; (c) not create or obtain any intellectual property rights that are substantially similar to any Company IP; and (d) promptly notify the Company of any unauthorized use of any Company IP of which Referrer has actual knowledge. All rights not explicitly granted under this Agreement are reserved by the Company.
4.2. Limited License. The Company hereby provides the Referrer with the royalty-free, limited, non-exclusive, non-transferable, revocable right to use the trademarks, logos, and URLs provided by the Company to the Referrer, in their unmodified form, and solely during the Term, of the Agreement and for the sole purpose of promoting the Services, subject to the terms of this Agreement.
5. REPRESENTATIONS AND WARRANTIES
5.1. Mutual Representations. Each Party represents and warrants that it is duly organized, validly existing, and in good standing in its state of incorporation, and it has the full power and authority to enter into this Agreement and fulfill its obligations hereunder. Each Party further represents and warrants to the other Party that the information provided by it hereunder, to the best of such Party’s knowledge, when used as authorized: (a) are complete, true, and accurate in every respect; (b) do not violate any applicable law, rule, or regulation; and (c) do not violate the third-party rights of any person or entity in any way.
5.2. Representations of the Referrer. The Referrer further represents and warrants that if the Referrer is providing the Company with contact information for the Customers they refer, the Referrer shall have the right to provide such information to the Company.
6. INDEMNITIES, DISCLAIMERS AND LIMITATION OF LIABILITY
6.1. Indemnity by Referrer. During and after the Term, the Referrer will defend, indemnify and hold harmless the Company, its officers, employees, agents, contractors and affiliates, jointly and severally, from and against all third party Claims (as defined below) and third party Proceedings (as defined below) directly or indirectly arising from, connected with or relating to any negligence, misconduct or breach of this Agreement by the Referrer; (a) “Claims” means claims, counterclaims, complaints, demands, causes of action, liabilities, obligations, damages, legal fees, costs, expenses and disbursements, including reasonable attorney’s fees and court costs, of any nature or kind, whatsoever and howsoever arising, whether known or unknown, whether in law or in equity or pursuant to contract or statute, and whether in any court of law or equity or before any arbitrator or other body, board or tribunal; and (b) “Proceedings” means actions, suits, proceedings, and hearings of any nature and kind in any court of law or equity or before any arbitrator or other body, board or tribunal.
6.2. Disclaimer. The Company makes no warranty, express or implied, of any kind and expressly disclaims all warranties and conditions, including but not limited to any implied warranty of merchantability, fitness for a particular purpose, availability, security, title, and/or non-infringement of the subject matter of this Agreement.
6.3. Limitation of Liability. The Company shall not be liable towards the Referrer or any third party for any special, indirect, incidental, statutory, punitive, or consequential losses or damages as well as any losses or damages caused by interruption of operations. The Company’s entire liability to the Referrer under this Agreement shall not exceed the value of three (3) months of Rewards credited by the Company to the Referrer immediately preceding the date of the event causing or giving rise to the claim, and by entering this Agreement, the Referrer recognizes the limitations herein on the Company’s liability.
7. TERM AND TERMINATION
7.1. Term. The Term of this Agreement shall commence on the Effective Date and expire two (2) years later unless renewed pursuant to this Agreement or terminated earlier in accordance with the provisions of this Agreement (“Initial Term”). Thereafter, this Agreement automatically renews for additional successive one (1) year Terms unless and until either Party provides notice of non-renewal at least thirty (30) days prior to the end of the then-current Term, or unless and until earlier terminated as provided under this Agreement (each a “Renewal Term” and together with the Initial Term, the “Term”).
7.2. Termination Without Cause. Either Party may terminate this Agreement for convenience at any time upon providing fifteen (15) calendar days’ prior written notice to the other Party.
7.3. Termination With Cause by Either Party. Either Party may terminate this Agreement immediately, upon written notice to the other Party if: (a) the other Party ceases to carry on its business; (b) the other Party is or becomes subject to any of the following events (including events in the nature of or analogous to any of the following): (1) bankruptcy or insolvency; (2) any form of voluntary or involuntary insolvency administration or liquidation, including where it has an administrator, examiner or receiver appointed to it, its property and assets or its affairs, but excluding where such administration or liquidation is voluntarily entered into for the purpose of carrying out a reconstruction or amalgamation while solvent; or (3) entering into a scheme or voluntary arrangement with its creditors for partial discharge of indebtedness.
7.4. Termination by the Company for Cause. The Company may terminate this Agreement immediately upon written notice to the Referrer for the Referrer’s breach of this Agreement.
7.5. Rights Upon Termination or Expiration. Upon termination of this Agreement, the Referrer shall: (a) immediately cease using any Company IP and any software or intellectual property licenses granted by one Party to the other pursuant to this Agreement shall terminate; (b) return all equipment, materials, and property belonging to and supplied by the Company in connection with this Agreement; (c) as directed by the Company, return, destroy or delete all copies of Confidential Information; (d) provide to the Company written confirmation the requirements of this Section 7.5 has been complied with; and (e) refer all inquiries regarding the Services to the Company and give the Company notice thereof. From and following the date of termination of this Agreement, the Referrer shall not be entitled to receive any Rewards other than Rewards earned prior to termination of this Agreement.
7.6. Survival. The termination or expiration of this Agreement does not extinguish or otherwise affect any provisions of this Agreement, which by their nature should survive termination or expiration. The following is a non-exclusive list of clauses that will survive the termination or expiration of this Agreement: Article 4, Article 5, Article 7, and the relevant provisions of Article 8.
8. GENERAL
8.1. Notices. Any notice under this Agreement must be in writing and may be given by email to the Parties. A notice is taken to have been received upon the earlier of: (i)the sender receiving an automated message confirming delivery or (ii) three (3) hours after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered.
8.2. Assignment. Except as expressly set forth below in this Section, neither the Agreement nor any of the rights or obligations of the Referrer may be assigned, transferred, charged, subcontracted, or declared under a trust or dealt with in any other manner in whole or in part without the prior written approval of the Company, including a change of control of the Referrer. The Company may assign transfer, charge, subcontract, declare a trust over, or deal in any other manner with any or all of its rights under this Agreement without the prior written consent of the Referrer. The Agreement shall be binding upon and inure to the benefit of the Parties hereto and their successors and permitted assigns.
8.3. Force Majeure. Neither Party shall be liable to the other Party for any delay or failure to perform any of its obligations set forth in this Agreement due to causes beyond its reasonable control or anticipation, including, but not limited to, acts of nature, war, strikes, pandemics, epidemics, internet outage or performance problems, computer viruses, hackers, terrorism, lack or failure of transportation facilities, and changes to laws or governmental regulations. If the period of delay or non-performance continues for three (3) months, the Party not affected may terminate this Agreement by giving thirty (30) days’ written notice to the affected Party.
8.4. No Third-Party Beneficiaries. Nothing in this Agreement is intended to or shall create any third-party beneficiaries, whether intended or incidental.
8.5. Governing Law and Dispute Resolution. 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 laws of Ontario and the federal laws of Canada, excluding its conflict of law provision. In the event of a dispute regarding this Agreement, the Parties shall consult each other in good faith to attempt to resolve the dispute without judicial intervention. If the Parties cannot resolve the dispute, the Parties shall refer the dispute to final and binding arbitration in Toronto, Ontario, by an arbitrator with experience in the subject matter contemplated in this Agreement. If any proceeding or lawsuit is brought by the Company or the Referrer in connection with this Agreement, the prevailing Party in such proceeding shall be entitled to receive its costs, expert witness fees, and reasonable legal fees, including on appeal.
8.6. Entire Agreement. This Agreement constitutes the sole and entire Agreement of the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Each Party agrees that it shall have no remedies for any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
8.7. Severability. In the event any one or more of the provisions of this Agreement shall for any reason be held invalid, illegal, or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal, or unenforceable provision shall be replaced by a mutually acceptable provision which comes closest to the intention of the parties.
8.8. No Agency. This Agreement shall not be construed to create any association, partnership, joint venture, employee, or agency relationship between the Referrer and the Company for any purpose. The Referrer has no authority (and shall not hold itself out as having authority) to bind the Company and shall not make any agreements or representations on the Company’s behalf without the Company’s prior written consent. The Referrer shall be solely responsible for all costs or expenses that may incur in performing its activities under this Agreement.