Affiliate Terms and Conditions
Perk Hero Software Inc. (“Perk Hero”)
Last Updated: October 30, 2020
These Affiliate Terms and Conditions (these “Terms” or “Agreement”)) set forth the legally binding terms between Perk Hero Software Inc. (the “Company”, “Perk Hero,” “us,” or “we”) and its Affiliate (“you” or “Affiliate”).
By checking the box “I have read, understand and agree to Perk Hero Affiliate Program’s Term of Use” on https://perkhero.com/apply-for-perk-heros-affiliate-program/ you agree to be bound by these Terms. These Terms create a binding legal agreement between you and the Company, and include an arbitration clause under which certain claims may not be brought in court or decided by a jury. Please read them carefully.
SECTION 1 – DEFINITIONS
In this Agreement, the following terms shall have the following meanings:
(a) “Affiliate” has the meaning set out above;
(b) “Affiliate Policies and Procedures” means the policies and procedures applicable to the Perk Hero Affiliates, as set and amended by Perk Hero from time to time;
(c) “Business Day” shall mean each weekday, except Saturday and Sunday, and any statutory holiday observed in the Province of British Columbia;
(d) “Confidential Information” has the meaning set out in section 8.1(a);
(e) “Customer” means the end-user customers that purchase goods and services from Perk Hero Merchants through the Platform;
(f) “GMV” is defined as the sales volume transacted on the Platform for the Perk Hero Merchants onboarded by the Affiliate less Taxes, shipping, chargebacks and refunds (if any).
(g) “Government Authority” means:
(i) any domestic or foreign government, whether national, federal, provincial, state, territorial, municipal or local (whether administrative, legislative, executive or otherwise);
(ii) any agency, authority, ministry, department, regulatory body, court, central bank, crown corporation, bureau, board or other instrumentality having legislative, judicial, taxing, regulatory, prosecutorial or administrative powers or functions of, or pertaining to, government;
(iii) any court, tribunal, commission, individual, arbitrator, arbitration panel or other body having adjudicative, regulatory, judicial, quasi-judicial, administrative or similar functions; and
(iv) any other body or entity created under the authority of or otherwise subject to the jurisdiction of any of the foregoing, including any stock or other securities, exchange or professional association;
(h) “Intellectual Property Rights” means patents and patent applications, trademarks and trademark applications, certification marks, distinguishing guises, copyrights, domain names, industrial designs, trade secrets, know-how, formulae, processes, inventions (whether patentable or not), technical expertise, research data and other similar property, owned by or licensed to Licensor, including all associated registrations and applications for registration, and all associated rights, including moral rights;
(i) “Merchant Agreement” shall mean the then current form of merchant agreement provided by Perk Hero to be accepted by the Perk Hero Merchant indicating its understanding of all terms and conditions associated with use of the Platform;
(j) “Perk Hero” has the meaning set out above;
(k) “Perk Hero Merchant” means a business that has signed a Merchant Agreement that has been approved by Perk Hero to sell goods and services on the Platform;
(l) “Person” includes an individual, a trust, a partnership, a body corporate or politic, an association and any other incorporated or unincorporated organization or entity;
(m) “Personal Information” means information about an identifiable individual, but does not include the name, title or business address or telephone number of an employee of an organization;
(n) “Platform” means the mobile commerce platform known as “Perk Hero” that features mobile ordering, contactless payments, and digital rewards. The Company will update and modify the Platform from time to time;
(o) “Privacy Laws” means applicable laws relating to data privacy, transborder data flow or data protection, and includes for greater certainty, the Personal Information Protection Act (British Columbia), the Personal Information Protection and Electronic Documents Act (Canada), and any regulations, policies, requirements, guidelines, or standards established or otherwise made pursuant thereto;
(p) “Prospect” means a prospective Perk Hero Merchant;
(q) “Schedules” shall mean the Schedules attached to and forming part of this Agreement;
(r) “Services” means all services which Perk Hero makes available to Perk Hero Merchants including for the benefit of Customers in connection with the Platform;
(s) “Taxes” includes any taxes, duties, fees, premiums, assessments, imposts, levies and other charges of any kind whatsoever imposed by any Governmental Authority, including all interest, penalties, fines, additions to tax or other additional amounts imposed by any Governmental Authority in respect thereof, and including those levied on, or measured by, or referred to as, income, gross receipts, profits, capital, transfer, land transfer, sales, goods and services, harmonized sales, use, value-added, excise, stamp, withholding, business, franchising, property, development, occupancy, employer health, payroll, employment, health, social services, education and social insurance taxes, all surtaxes, all customs duties and import and export taxes, countervail and anti-dumping, all license, franchise and registration fees and all employment insurance, health insurance, and other government pension plan premiums or contributions; and
(t) “Term” means the Initial Term or a Renewal Term.
SECTION 2- AFFILIATE REPRESENTATION
(a) Appointment. Perk Hero hereby appoints Affiliate as its non-exclusive representative to promote the Platform and sign-up Perk Hero Merchants to use the Platform during the Term and Affiliate hereby accepts such appointment on the terms and conditions of this Agreement.
(b) Scope of Appointment. The rights granted to Affiliate apply only to the Platform and the Services and Affiliate has no right or authority to purchase or distribute any other products or goods that Perk Hero may from time to time develop, manufacture, produce or have rights to distribute during the Term.
(c) Perk Hero’s Rights. Affiliate acknowledges that nothing herein shall restrict Perk Hero’s right at any time and from time to time during the Term to (i) enter into other distribution, sales representative, or marketing arrangements of any kind with any Person; (ii) to discontinue the Services; or (iii) to withdraw from offering access to the Platform.
(d) Services Implementation. Affiliate shall arrange with Perk Hero to implement the supply of the Services to and for the benefit of each Perk Hero Merchant in accordance with the timing and requirements requested by such Perk Hero Merchant. All implementations of the Services must be coordinated with Perk Hero, and are subject to Perk Hero’s prior commitments and resource availability.
(e) Merchant Agreement. Perk Hero and Affiliate acknowledge and agree that the license to use the Platform is solely between Perk Hero and the Perk Hero Merchant and is governed by the terms of Perk Hero’s standard form Merchant Agreement. Affiliate acknowledges that, prior to having the right to access and use the Platform, Perk Hero Merchants must agree to and accept the Merchant Agreement.
(a) Affiliate will use best efforts to: (i) understand, comprehend and be able to effectively communicate the Perk Hero messaging and value proposition, (ii) promote the Platform to Prospects and Customers; (iii) increase and maximize sign-ups of Perk Hero Merchants; and (iv) faithfully discharge his or her obligations under this Agreement. Affiliate’s best efforts shall include, without limitation, conducting business in a professional and ethical manner and in compliance with applicable law and Perk Hero’s Affiliate Policies and Procedures. Affiliate shall fairly represent the quality, characteristics, performance capability of the Platform consistent with Perk Hero’s policies. Affiliate shall respond promptly to all inquiries from Perk Hero Merchants and potential Perk Hero Merchants.
(b) Maintenance of Goodwill. Affiliate shall at all times market the Platform in a manner that enhances the reputation, goodwill, acceptance, and consumer awareness of the Platform, and maximizes sales of goods and services through the Platform, and shall take no action, nor permit any action to be taken, that is or may be detrimental to the reputation and goodwill of Perk Hero or the Platform, or that would adversely affect sales of the goods and services through the Platform.
(c) No Commitments. Affiliate shall not make or purport to make any representation, warranty, covenant or commitment intended to be binding on Perk Hero, whether express or implied, without Perk Hero’s prior written consent.
(d) Affiliate Support. Affiliate shall:
(i) promptly inform Perk Hero of any problems encountered with the Platform or the Services that the Affiliate becomes aware of;
(ii) forward to Perk Hero any and all complaints or demands from Customers or other Persons regarding the Platform or Services forthwith following Affiliate learning about such complaint or demand; and
(iii) promptly notify Perk Hero of any conduct that Affiliate believes is, or suspects may constitute or become, an infringement of Perk Hero’s or Perk Hero’s third party licensor’s Intellectual Property Rights.
Perk Hero will be the primary contact for providing support to Customers as to technical issues relating to the Platform or the Services. Affiliate shall assist Perk Hero in implementing any fixes or other solutions as Perk Hero may request or require.
(e) Records and Reporting Requirements. During the Term, Affiliate shall maintain full, complete and accurate business records documenting (i) sales, service calls and deliveries; (ii) names and addresses of Perk Hero Merchants signed up by the Affiliate; and (iii) such other data and statistical information as Perk Hero may reasonably request from time to time for purposes of internal operational control and marketing. Affiliate shall submit copies of such reports and records to Perk Hero upon Perk Hero’s reasonable request.
(f) Employees. Affiliate is solely responsible for hiring, firing, training and establishing employment policies applicable to his or her employees.
2.3 Trademark Usage
Subject to the terms and conditions of this Agreement, Perk Hero hereby grants Affiliate a non-exclusive, non-transferable, non-sublicensable, revocable (in accordance with Section 9) and limited license to use the trademarks and trade names of Perk Hero (collectively, the “Perk Hero Trademarks”) and third parties licensing to Perk Hero, if any, solely in connection with advertising, promoting or distributing the Platform. Affiliate acknowledges that Perk Hero is the owner of the full right, title, and interest in and to the Perk Hero Trademarks, that its use of the Perk Hero Trademarks shall be deemed to be use by Perk Hero and at all times be under the control of Perk Hero and, with the exception of the limited rights being granted in this Section 2.3, all other rights relating thereto are expressly reserved by Perk Hero. Affiliate agrees to adhere to the standards governing the Perk Hero Trademarks as may be dictated from time to time by Perk Hero and shall not, at any time, do, or cause to be done, any act that affects the use, ownership, validity or goodwill of the Perk Hero Trademarks or to use the Perk Hero Trademarks in a manner not expressly authorized by this Agreement. No other right, title or interest in or to the Perk Hero Trademarks or third parties licensing to Perk Hero trademarks or trade names is granted to Affiliate. Affiliate recognizes Perk Hero or other third parties may have rights or ownership of certain Intellectual Property Rights including trademarks, trade names and patents associated with the Platform. Affiliate will notify Perk Hero of any infringement of such Intellectual Property Rights which Affiliate has actual knowledge. Affiliate shall discontinue use of Perk Hero’s or any applicable third parties’ trademarks or trade names upon termination of this Agreement. Affiliate shall permit Perk Hero to conduct such inspections and audits, as reasonably required, to ensure that Affiliate has complied with the terms and conditions of this Section.
We will provide an initial training program (the “Initial Training Program”) for you. The Initial Training program will be held via teleconference. The Initial Training Program will include instruction in basic business operations, understanding the Platform, business planning and goal setting, selling and marketing techniques, customer service, quality control, conducting sales calls and presentations, and other business, financial and marketing topics we select. We may require you to annually attend one additional training program (which could be our annual meeting or convention).
2.5 Marketing and Advertising
We will provide to you at the time you sign this Agreement, a digital marketing start-up kit to assist you in identifying prospective customers and lead referral sources, and in conducting initial advertising and promotional campaigns to help promote the Perk Hero Merchants that you sign up.
SECTION 3 – COMMISSIONS
Customers pay Perk Hero directly via the Platform for the goods and services purchased from Perk Hero Merchants. Perk Hero receives a commission for orders and payments through the Platform and will pay a percentage of 20% of the gross margin received by Perk Hero from the Perk Hero Merchants onboarded by the Affiliate on the Perk Hero platform. For illustrative purposes, the commission rate and potential payouts based on GMV on a monthly and an annual basis are shown in Schedule A attached to this Agreement. The Affiliate will receive payment of the commissions owing to him or her on a net 30 day basis after month end, with a minimum payout threshold of $100.
SECTION 4 – DELIVERY
4.1 Title and Risk of Loss
(a) Perk Hero and Affiliate agree that no title or ownership of the copyright, trademark, trade secret and other proprietary rights in the Platform or any software code within the Platform is transferred by virtue of this Agreement notwithstanding the use of terms such as “purchase”, “sale” or the like within this Agreement. Perk Hero retains all ownership rights and title to the proprietary and Intellectual Property Rights in the Platform, and any software code within the Platform, and all modifications, enhancements and other works derivative of such software.
(b) Except with the prior written consent of Perk Hero, Affiliate will not, themselves or through any Affiliate, agent or third party:
(i) copy, modify, reproduce, damage or create derivative works and/or competitive products based on any portion of the Services;
(ii) decompile, disassemble or reverse engineer the Platform or Services in whole or in part;
(iii) defeat, disable or circumvent any protection mechanism related to the Platform or Services, including without limitation any code which necessitates use of a password and/or user ID to access the Platform or Services;
(iv) sell, commercially exploit, license, sublicense, lease, rent, transmit, publish or distribute to any third party, or disclose, permit access to or transfer to any third party other than a Customer, any portion of the Platform or Services provided under this Agreement; or
(v) access, use or export the Platform or Services in violation of applicable laws or regulations.
SECTION 5 – SIGN UP PROCESS AND PAYMENT
5.1 Sign-up Process
The Customer must sign up in a manner, which in Perk Hero’s sole discretion, definitely establishes that the Perk Hero Merchants was signed-up by the Affiliate. In order to establish that the Affiliate signed-up the Perk Hero Merchant, the Affiliate must take the following steps:
(a) The Affiliate shall provide the Prospect with a link to a form to set up as a merchant on the Platform and guide the Prospect through the onboarding process to become a Perk Hero Merchant including acceptance by the Prospect of Perk Hero’s Merchant Agreement;
(b) Perk Hero reserves the right to reject a Prospect from becoming Perk Hero Merchant on reasonable grounds, including but not limited to reasons such as Perk Hero’s belief that Perk Hero will be unable to support the Prospect, credit worthiness of the Prospect, that the Prospect’s business is in violation of Perk Hero policies or the policies of third party service providers to Perk Hero, or that the Prospect may use the Platform and Services for illegal purposes or purposes that may bring Perk Hero into public disrepute or economic harm.
(c) If the Prospect requires any equipment of marketing materials, the Affiliate will assist the Prospect with entering an order for such equipment or marketing materials for delivery by Perk Hero to the Customer. Upon payment for such equipment or marketing materials, Perk Hero shall use commercially reasonable efforts to deliver any equipment or marketing materials ordered by Perk Hero Merchants. Upon receipt, Affiliate will assist the Perk Hero Merchant in the set-up and installation of such equipment and marketing materials at the Perk Hero Merchant’s location(s).
Perk Hero shall provide Affiliate a monthly statement with a breakdown of the commission earned by the Affiliate.
Affiliate shall bear and be responsible for the payment of Taxes on all commissions that are paid by Perk Hero to Affiliate. Affiliate is solely responsible for payment of all income, social security, employment-related, or other Taxes incurred as a result of the performance of its obligations under this Agreement and for all obligations, reports, and timely notifications relating to such taxes. Perk Hero shall have no obligation to pay or withhold any sums for such Taxes.
During the Term, Perk Hero reserves the right to audit Affiliate’s processes or to request verification of Affiliate’s compliance with the terms of this Agreement. Affiliate shall, upon reasonable written request by Perk Hero from time to time, provide Perk Hero reasonable access to Affiliate for the purpose of reviewing Affiliate’s processes solely to permit Perk Hero to assess Affiliate’s compliance with the terms of this Agreement. Such access will occur within fifteen (15) days of receipt of the request, during Affiliate’s normal hours of operation and in such a manner as to minimize disruption to Affiliate and to protect the Confidential Information of Affiliate and third parties.
SECTION 6 – WARRANTIES AND INDEMNITIES
Affiliate represents, warrants and covenants to Perk Hero that:
(a) the entering into and performance of this Agreement is not restricted or limited by, and will not result in a breach by it of any other obligations, duties, agreement or covenant to any Person;
(b) it has the authority, unencumbered right, and full corporate power, to enter into and perform this Agreement;
(c) this Agreement has been duly authorized, executed and delivered by it and constitutes a valid, binding and legally enforceable agreement;
(d) the execution and delivery of this Agreement, and the performance of the covenants and agreements herein contained, are not, in any manner or to any extent, limited or restricted by, and are not in conflict with, any commercial arrangements, obligations, contract, agreement, statute, law or instrument to which it is either bound or subject, or by any rights of any other Person; and
(e) it will perform its duties and obligations hereunder, in a careful, diligent, professional, proper, efficient and business-like manner, using Persons with skills and experience appropriate to their function, with a quality and standard of care that is commensurate with highest industry standards.
6.2 Products Warranty
(a) Affiliate shall have no authority to alter or extend any of the warranties of Perk Hero expressly contained or referred to in this Agreement without prior approval of Perk Hero.
(b) Except to the extent permitted by applicable law, the Services and Platform are provided on an “as is” and “as available” basis and Perk Hero disclaims all warranties and conditions with regard to the Platform, including without limitation, the implied warranties or implied conditions of merchantability and fitness for any particular purpose. This section, together with Section 6.2(c) below, shall survive termination or expiration of this Agreement.
(c) Without limiting the generality of the foregoing, Perk Hero makes no representation or warranty that: (i) the Platform will be compatible with any computer or software; (ii) the Platform will function without interruption or error.
SECTION 7 -RISK MANAGEMENT
Affiliate agrees to indemnify, defend (at Perk Hero’s option) and hold Perk Hero, its officers, directors and employees harmless from and against any and all claims, damages, costs, expenses (including, but not limited to, reasonable attorney’s fees and costs) or liabilities that may result, in whole or in part, from Affiliate’s negligence or willful misconduct, or for representations or warranties made by Affiliate related to the Platform in excess of the warranties of Perk Hero.
7.2 Limitation of Liability
(a) Perk Hero shall not be liable to Affiliate pursuant to this Agreement for indirect, special, incidental, consequential or punitive damages, lost revenues or profits, loss of business or loss of data of Affiliate arising from the performance or breach of any terms of, or related in any way to, this Agreement, regardless of the form of action, whether in contract or in tort (including negligence) and regardless of whether Perk Hero was advised of the possibility thereof.
(b) In no event shall Perk Hero’s total cumulative liability to Affiliate for damages, expenses, costs, liability, claims or losses under this Agreement exceed the lesser of: (i) the commissions received by Perk Hero from Perk Hero Merchants signed-up by the Affiliate; and (ii) one thousand dollars ($1,000).
SECTION 8 – CONFIDENTIALITY
(a) “Confidential Information” shall be defined to include all information, including without limitation, marketing, commercial, financial, business, accounting, legal, personal and/or technical information concerning a party disclosed by the disclosing party to the receiving party hereunder or in connection with this Agreement including without limitation such information, the further disclosure of which could reasonably be expected to have an adverse impact on the disclosing party, and any information otherwise identified by the disclosing party as “confidential”, but excludes information:
(i) which at the time of the disclosure by the disclosing party to the receiving party is part of the public domain and readily available to the trade or the public, or which subsequently becomes readily available to the trade or the public through no act or omission of the receiving party or through no breach of a confidentiality or non-disclosure obligation;
(ii) which is lawfully and in good faith obtained by the receiving party from an independent third party without breach of this Agreement, the Merchant Agreement, or any other confidentiality, non-disclosure or license agreement, as shown by documentation establishing the third party as the source of the information, and not obtained by the third party from the disclosing party; or
(iii) which the receiving party can establish, by written record or other tangible and competent evidence, was in its possession prior to disclosure of that information by the disclosing party to the receiving party.
(b) Each party acknowledges that in the course of performance of its obligations pursuant to this Agreement, it may obtain certain Confidential Information. Each party hereby agrees that all such Confidential Information communicated to it by the disclosing party, its parent, Affiliates, or Customers, whether before or after the Effective Date, shall be and was received in strict confidence, shall be used only for purposes of this Agreement, and shall not be disclosed to any of its directors, officers, authorized agents or employees, except to the extent necessary and solely for the performance and enforcement of this Agreement, or to third parties without the prior written consent of the disclosing party. The receiving party shall inform any of its directors, officers and employees having access to the Confidential Information of the confidential nature of the Confidential Information and shall ensure that those directors, officers and employees maintain the confidentiality of the Confidential Information in accordance with the terms of this Agreement. The receiving party shall use the same degree of care as it uses to protect its own confidential information of a similar nature, but no less than reasonable care, to prevent the unauthorized use, dissemination or publication of the Confidential Information.
(c) Except as otherwise set out herein, upon termination or expiry of this Agreement, or otherwise upon demand of the disclosing party, the receiving party shall deliver to the disclosing party or destroy all copies of the Confidential Information.
(d) The receiving party shall not be in breach of this Agreement as a result of any disclosure of Confidential Information to the extent the type and amount of such disclosure is required by law or judicial or administrative process, provided that the receiving party provides the disclosing party with as much notice as is reasonably possible in the circumstances prior to disclosing any Confidential Information and co-operates with the disclosing party in any application, proceedings or other action undertaken by the disclosing party to obtain a protective order or other means of protecting the confidentiality of the Confidential Information required to be disclosed.
(e) The parties acknowledge and expressly agree that any breach whatsoever of this Agreement concerning the Confidential Information of the other party, shall cause the other party irreparable harm for which damages alone are not an adequate remedy. Therefore, the parties hereby agree that in the event of any such breach, the party not in breach shall have the right to seek equitable relief, without the necessity of proof of actual damages and that the party allegedly in such breach shall not oppose, defend against, or otherwise interfere with a claim for equitable relief by the other party on the basis that such breach has not caused the other party irreparable harm for which damages are alleged to be an adequate remedy. Such equitable relief, without necessity of proof of damage, will be in addition to any other right that the party not in breach may have under this Agreement, or otherwise in law or in equity.
(f) The provisions of this section shall survive termination or expiration of this Agreement for any reason for a period of one (1) year after said termination or expiration.
8.2 Personal Information
SECTION 9 – TERM, TERMINATION OR EXPIRATION
9.1 Term and Option to Renew
(a) The term of this Agreement shall commence on the Effective Date and, unless terminated by any party as set forth in this Agreement, shall remain in full force and effect for a term of one (1) year (the “Initial Term”).
(b) If Affiliate has been in substantial compliance with all the terms and conditions of this Agreement continually during the Initial Term or a Renewal Term (as defined below), then this Agreement will automatically renewed for an additional one year term (a “Renewal Term”) unless terminated in accordance with Section 9.2 below.
(a) Termination by Affiliate. The Affiliate may terminate this Agreement for convenience upon providing ninety (90) days’ prior written notice to Perk Hero.
(b) Termination with Cause. In the event that any party materially or repeatedly defaults in the performance of any of its duties or obligations set forth in this Agreement, and such default is not substantially cured within ten (10) days after written notice is given to the defaulting party specifying the default, then the party not in default may, by giving written notice thereof to the defaulting party, terminate this Agreement relating to such default as of the date specified in such notice of termination.
(c) Termination for Insolvency or Bankruptcy. Any party may immediately terminate this Agreement and any purchase orders by giving written notice to the other party in the event of (i) the liquidation or insolvency of the other party, (ii) the appointment of a receiver or similar officer for the other party, (iii) an assignment by the other party for the benefit of all or substantially all of its creditors, (iv) entry by the other party into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations, or (v) the filing of a petition in bankruptcy by or against the other party under any bankruptcy or debtors’ law for its relief or reorganization which is not dismissed within ninety (90) days.
9.3 Rights and Obligations Upon Termination or Expiration
Upon termination or expiration of this Agreement:
(a) Affiliate shall immediately discontinue being a representative of the Company;
(b) all rights granted to Affiliate under Sections 2.1 and 2.4, and 3 herein shall immediately terminate; and
(c) Affiliate will immediately cease to market and promote the Platform.
SECTION 10 – MISCELLANEOUS
The division of this Agreement into sections, subsections and Schedules, and the insertion of headings, are for convenience of reference only and shall not affect its construction or interpretation.
10.2 Entire Agreement
This Agreement, including any Schedules and documents referred to in this Agreement or attached hereto, constitutes the entire and exclusive statement of agreement between the parties with respect to its subject matter and there are no oral or written representations, understandings or agreements relating to this Agreement which are not fully expressed herein. The parties agree that unless otherwise agreed to in writing by the party intended to be bound, the terms and conditions of this Agreement shall prevail over any contrary terms in any purchase order, sales acknowledgment, confirmation or any other document issued by any party affecting the purchase or sale of Products hereunder.
10.3 Amendment and Waiver
No amendment or waiver of this Agreement shall be binding unless executed in writing by both parties. A waiver by any of the parties of any covenants, conditions or agreements to be performed by the other party or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein contained. Any party’s failure to exercise any of its rights hereunder shall not constitute or be deemed a waiver of forfeiture of any such or other rights.
If, but only to the extent that, any provision of this Agreement is declared or found to be illegal, unenforceable or void, then both parties shall be relieved of all obligations arising under such provision, it being the intent and agreement of the parties that this Agreement shall be deemed amended by modifying such provision to the extent necessary to make it legal and enforceable while preserving its intent, and such unenforceability or invalidity shall not affect the enforceability or validity of the remaining provisions of this Agreement.
10.5 Assignment and Enurement
(a) This Agreement shall not be assigned, in whole or in part, by Affiliate without the prior written consent, in writing, of Perk Hero and any purported assignment made without such consent is void and of no effect. Perk Hero, in its sole and unfettered discretion, may withhold its consent to any assignment.
(b) Perk Hero may assign its rights and obligations pursuant to this Agreement on notice to Affiliate, without consent, and upon such assignment the assignee shall assume all of Perk Hero’s rights and obligations under this Agreement and Perk Hero shall be released from this Agreement, so long as such assignment does not create a material adverse effect on the operations or business of Affiliate.
(c) This Agreement shall be binding on the parties and their respective successors and assigns.
10.6 Relationship of Parties
Nothing in this Agreement shall either render, or be interpreted or construed to mean, that the parties are partners, joint venturers, trustee/beneficiary, employer/employee, or principal/agent of the other. Except as specifically provided in this Agreement, no party shall have any authority whatsoever to obligate or commit the other party, contractually or otherwise, and no party shall do anything whatsoever to represent to any Person that they have any authority to so obligate or commit the other party. Each of Perk Hero and Affiliate agree that each of them are independent contractors. The parties shall only act within the scope of their actual and express authority under this Agreement, and no party shall represent to any Person that it has any authority, or permission, or consent to represent, act on behalf of, or have a commercial relationship with the other except as authorized in writing by the other party to this Agreement. Each party shall pay all wages, salaries and other amounts due its respective employees and shall be responsible for all obligations respecting them relating to income tax withholdings, unemployment insurance premiums, worker’s compensation, health care and pension plan contributions and other similar responsibilities.
The following sections shall survive the expiration or termination of this Agreement, regardless of the reasons for its expiration or termination, in addition to any other provision which by law or by its nature should survive: sections 2.1(c) (Perk Hero Rights), 6.1 (Warranties), 6.2 (Product Warranties), 7.1 (Indemnity), 7.2 (Limitation of Liability), Section 8 (Confidentiality), 9.3 (Rights on Termination) and Section 10.20 (Miscellaneous).
10.8 Time of Performance
Time is hereby expressly made of the essence with respect to each and every term and condition of this Agreement.
All notices and consents provided for shall be given in writing and delivered by personal delivery, prepaid first class registered or certified mail, by facsimile, by regular mail or e-mail. Notices delivered by facsimile shall be considered to have been received upon the sender obtaining a bona fide confirmation of such delivery. Notices delivered by e-mail shall include the following and shall only be effective if the recipient provides by e-mail a confirmation of delivery and the date of acceptance of the delivery: (i) sender’s name, address, telephone number, fax number and e-mail address; (ii) date and time of the transmission; and (iii) the name and telephone number of a person to contact in the event of transmission problems. Delivery of notices after 4:00 p.m. at the address being served constitutes delivery the following day. Notices delivered by regular mail shall be deemed received on the fifth day after the notice has been mailed. The address for notice shall be as follows:
In the case of Perk Hero: Perk Hero Software Inc.
555 Burrard St Suite 1755,
Vancouver, BC V7X 1M9
Attn: Legal Dept.
Email: [email protected]
Any party may from time to time change its address for notification purposes by giving the other party written notice of the new address and the date upon which it will become effective.
All remedies set forth in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to any party at law, in equity or otherwise, and may be enforced concurrently or from time to time.
All amounts referred to in this Agreement are in Canadian dollars and are payable in Canadian dollars unless otherwise agreed to by the parties in writing.
10.12 Calculation of Time Period
When calculating the period of time within which or following which any act is to be done or step taken pursuant to this Agreement, the date which is the reference date in calculating such period shall be excluded. If the last day of such period is not a Business Day, the period in question shall end on the next Business Day. If under this Agreement any payment or calculation is to be made or any other action is to be taken on a day which is not a Business Day, that payment or calculation is to be made, and that other action is to be taken, as applicable, on or as of the next day that is a Business Day.
The parties hereto have requested that this Agreement and all correspondence and all documentation relating to this Agreement, be written in the English language. Les parties aux présentes ont exigé que la présente entente, de même que toute la correspondance et la documentation relative à cette entente, soient rédigées en langue anglaise.
In the event of any inconsistencies, conflicts or contradictions between the provisions of this Agreement and any documents created pursuant to, or as required under, this Agreement, the provisions of this Agreement shall govern and prevail.
10.15 Further Assurances
Affiliate shall do all things and provide all reasonable assurances as may be required to complete the transactions assignments, transfers, waivers, and arrangements that are contemplated by this Agreement, and Affiliate shall provide, execute and deliver such further documents or instruments required by Perk Hero as may be reasonably necessary or desirable to give effect to this Agreement and to carry out its provisions.
10.16 Compliance with Laws
Affiliate shall strictly comply with, and abide by, all consents, licenses, permits that may exist concerning its activities and/or performance obligations under this Agreement, and Affiliate shall perform its obligations under this Agreement and otherwise conduct its affairs and business in any connection with this Agreement, in strict compliance with all laws, by-laws, regulations, orders, judgements and governmental rulings and decrees.
10.17 Third Party Approvals
The terms of this Agreement shall be subject to applicable securities laws and policies and any required approvals from the Canadian Securities Exchange or other applicable stock exchange on which the shares of Perk Labs Inc. are listed or Perk Labs Inc. is seeking to be listed on.
We may, without prior notice or liability to you, revise these Terms from time to time in our sole discretion, subject to Applicable Laws . When we revise these Terms, we will notify Affiliate via email, the Perk Hero Platform, our website, or any other method we deem to be reasonable in the circumstances. Except as otherwise expressly stated by us, all changes to these Terms are effective immediately.
The laws of the Province of British Columbia, Canada, excluding its conflicts of law rules, govern this Agreement. The exclusive jurisdiction and venue of any action arising out of or related to this Agreement will be either the state or federal courts in British Columbia, Canada, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts. This Agreement constitutes the entire agreement between us and you. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. You may not transfer or assign this Agreement or any of its rights or obligations hereunder without our prior written consent, and any attempt to do so shall be null and void. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
Earnings based on GMV (monthly)
|Perk Hero Margin:||15%||20%||25%||30%|
|Affiliate Payout Percentage:||20%||20%||20%||20%|
Earnings based on GMV (Annual)
|Perk Hero Margin:||15%||20%||25%||30%|
|Affiliate Payout Percentage:||20%||20%||20%||20%|