Marketing Affiliate Program Agreement
Last Modified: December 21, 2022
PLEASE READ THIS MARKETING AFFILIATE PROGRAM CAREFULLY
This is a contract between you (the “Affiliate”) and us 9302204 Canada Inc., carrying on business as Cheelcare (“Cheelcare’), with an office at 6 Sims Cres, Unit 20 Richmond Hill ON L4B 2P1 Canada. It is a legal document so some of the language is “necessarily” legalese but we have tried to make it as readable as possible.
This Marketing Affiliate Program Agreement applies to your participation in our Marketing Affiliate Program (the “Affiliate Program”). These terms are so important that we cannot have your participation in our Affiliate Program unless you agree to them.
We periodically update these terms. We might also choose to replace these terms in their entirety, if, for example, the Affiliate Program changes or ends. If we update or replace the terms, we will let you know via electronic means. If you don’t agree to the update or replacement, you can choose to terminate as we describe below.
Once you complete an application to become an Affiliate, we will review your application and notify you whether you have been accepted to participate in the Affiliate Program, or not. Before we accept your application, we may want to review your application with you, so we may reach out to you for more information.
If you are accepted to participate in the Affiliate Program, then upon notification of acceptance the terms and conditions of this Agreement shall apply in full force and effect, until terminated, pursuant to the terms set forth below. Further, you may be required to complete any enrollment criteria within thirty (30) days of your acceptance. Failure to complete any enrolment criteria within thirty (30) days will result in the immediate termination of this agreement and you will no longer be able to participate in the Affiliate Program.
You will comply with the terms and conditions of this agreement at all times, including any applicable program policies.
- Your Responsibility. As a participant in the Affiliate Program, you will market and promote through social media or through referrals, our products and services in exchange for a commission on any resulting sales.
Scope of Activities. You will promote our products or services by placing links or banners on your website, by promoting our products or services on social media, by sending email campaigns, or by word-of-mouth. You will not engage in activities that could damage our reputation or harm our business in any way. Cheelcare reserves the right to restrict or prohibit any promotional activities at its discretion.
- Guidelines. You must adhere to all guidelines we set, as may be implemented, or updated from time to time. A copy of the Guidelines can be found by visiting www.cheelcare.com/affiliates/guidelines.
- All visual assets made available to you by us, remain our property. You shall have no right of claim to any of the assets in any capacity. You may not alter any of our trademarks, logos, wordmarks or branding assets. You shall not attempt to obtain a trademark or copyright claim for any such materials.
- Our Right To Request Changes. We may monitor your social media activity as it relates to the promotion of our products and services, and if in our discretion, we determine that you are not properly representing our products and services, or if we determine that changes are required, then you agree to make all the changes that we request, immediately.
- Our Right To Republish. We have the right to use any promotional or marketing materials you have created to promote our products and services for our own promotional or advertising use and for any other business use, as we deem suitable.
- Customer Inquiries. In the event that prospects require product information then you agree to direct all product and service inquiries to us.
Commission Structure. You will receive a commission as outlined in Schedule 1 on the sale price for each sale generated through your efforts. You will also be eligible for any bonuses or incentives that we may offer to you. You are not entitled to any other compensation.
- Sales Eligible for Commission. Only sales made directly online at cheelcare.com or www.cheelcare.ca are eligible for commission. The customer must use the Affiliate’s discount code provided to you, the Affiliate by Cheelcare at checkout.
- Sales Not Eligible for Commission. A sale is not eligible for a commission if the credit card is suspected to be fraudulent or if the sale is, otherwise suspected to be fraudulent or if we determine that a sale conflicts with any other commission structure(s) or agreement(s).
- Commission and Payment. In order to receive payment under this agreement, you must have: (i) agreed to the terms of this agreement; (ii) completed all steps necessary to create your account with us, in accordance with our directions; (iii) have a valid and up-to-date payment method with us, as required; and (iv) completed any and all required tax documentation as required or applicable in order to process any payments that may be owed to you.
- Requirements for Payment; Forfeiture. Notwithstanding the foregoing or anything to the contrary in this Agreement, if any of the requirements set forth in section 7(i-iv) remain outstanding for six (6) months immediately following the close of a customer transaction, then your right to receive Commission arising from any and all customer transactions with the associated customer will be forever forfeited (each, a “Forfeited Transaction”). We will have no obligation to pay you commission associated with a Forfeited Transaction. Once you comply with all of the requirements in section 7(i-iv), then you will be eligible to receive commission on customer transactions, as long as these customer transactions do not involve the same Customer associated with a Forfeited Transaction.
- Commission Payment. We will determine the currency in which we pay the commission, as well as the applicable conversion rate. We will not pay more than one commission payment or other similar referral fee on any given customer transaction (unless we choose to in our discretion).
- You are responsible for payment of all taxes and fees (including bank fees) applicable to the commission. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.
- Commission Amounts. We reserve the right to alter or change the commission amount.
- Acceptance and Validity. You will only be eligible for a commission payment for any customer transactions that derived from your leads and efforts. An Affiliate lead will be considered valid and accepted if, in our reasonable determination: (i) it is a new potential customer of ours, and (ii) is not, at the time of submission or ninety (90) days prior, one of our pre-existing customers, or involved in our active sales process. Notwithstanding the foregoing, we may choose not to accept an Affiliate lead in our reasonable discretion.
- Term. This Agreement will apply for as long as you participate in the Affiliate Program, until terminated.
- Termination For Agreement Change. If we update or change the terms of this agreement, you may terminate this agreement on five (5) days written notice to us, provided that you send us written notice within ten (10) days after we send you notice of the change.
- Termination For Cause. We may terminate this agreement (i) upon thirty (30) days notice to you if there is a material breach, if such breach remains uncured at the expiration of such period, (ii) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers; (iii) immediately if we become insolvent; (iv) immediately if we cease operations; and (iv) upon the death of a natural person who is a party to this agreement.
- Relationship of the Parties. Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this agreement.
- Disclaimer of Warranties. WE AND OUR AFFILIATED COMPANIES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY OF OUR PRODUCTS AND SERVICES AND THE AFFILIATE PROGRAM. OUR PRODUCTS AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO OUR PRODUCTS AND SERVICES INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
- No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
- Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL COMMISSION AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED CUSTOMER TRANSACTIONS IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
- Transferable. This Agreement or any rights herein may not be subcontracted or assigned by the Affiliate.
- Non-Exclusive. This Agreement does not create an exclusive agreement between the you and us.
- Confidentiality. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), (i) whether orally or in writing, that is designated as confidential, and (ii) our customer and prospect information, whether or not otherwise designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to its employees, contractors and agents. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any provincial or federal laws, rules or regulations, subpoena or legal process.
- You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) your participation in the Affiliate Program, (b) our use of the prospect data you provided us, and (c) your noncompliance with or breach of this Agreement. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defence or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defence or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
- Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, pandemic, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
- Compliance with Applicable Laws. You shall comply with all applicable foreign and domestic laws (including without limitation export laws and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public.
- Governing Law. The laws of the Province of Ontario and all federal laws of Canada, as applicable, govern this Agreement.
- Entire Agreement. This agreement and its schedules constitute the entire agreement between the parties and supersede all prior agreements or understandings, whether written or oral. This Agreement may not be amended or modified except in writing, signed by both parties.
Commission, Calculations, and Currency
Tier 1 Affiliate: An Affiliate who generates between $0.00 and $9,999.99 in sales per calendar year (January 1st to December 31st).
Commission Rate: 20%
Tier 2 Affiliate: An Affiliate who generates between $10,000.00 and $24,999.99 in sales per calendar year (January 1st to December 31st).
Commission Rate: 25%
Tier 3 Affiliate: An Affiliate who generates over $25,000.00 in sales per calendar year (January 1st to December 31st).
Commission Rate: 30%
How Commission is Calculated
The commission is calculated as follows:
[Total of the sale] – [shipping, duties, taxes, fees] x Commission Rate = Commission Paid
Commissions will be calculated in the currency in which the sale was made. Commissions will be converted to and paid out in either Canadian dollars or US dollars. Any conversion fees shall be deducted from the commission.