Block Therapy Academy Referral Partner Agreement
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE SIGNING UP TO BECOME A REFERRAL PARTNER (also known as an AFFILIATE)
1.0 Terms and Conditions of Agreement: By signing up as an Affiliate with Block Therapy Ltd. (the Company), the Parties (being the Affiliate and the Company) agree to the following terms and conditions as set forth in this Agreement.
2.0 Non-Exclusive Relationship: The Parties agree that the Company may contract with as many affiliates other than the Affiliate as the Company decides, in its sole and unfettered discretion.
3.0 Products: The Parties agree that the Company will determine its products, materials, services and memberships (collectively, the “Products”) as well as the selling price from time to time of such items, all in its sole and unfettered discretion.
4.1 Promotional Materials: The Company may make available to the Affiliate in the sole discretion of the Company certain banner advertisements, button links, text links, and/or other graphic or textual material which may include the Trademarks (hereafter defined) as developed by the Company from time to time for display and use by the Affiliate on the Affiliate’s website and other social media used by the Affiliate (collectively, the “Promotional Materials”). The Affiliate shall display the Promotional Materials on the Affiliate’s website and other social media used by the Affiliate prominently and as the Affiliate determines is appropriate, provided that the manner of display shall be strictly subject to the terms and conditions of this Agreement. The Company reserves the unfettered right to require the Affiliate to make changes to the manner of display of the Promotional Materials and the Affiliate agrees to immediately make said changes upon the request of the Company. The Affiliate shall also include a link from the Promotional Materials to the Company’s website, if specified by the Company.
4.2 The Affiliate’s use and display of the Promotional Materials on the Affiliate’s website or on any other form of social media shall strictly conform to the following terms, conditions and specifications. The Affiliate agrees that the Affiliate will not use any graphic, textual or other materials to promote the Company’s website or Products other than the Promotional Materials, unless the Company agrees to such other materials in writing prior to their display. Pictures of the Affiliate using any Products while an Affiliate, strictly in accordance with Agreement, shall be permitted.
4.3 The Affiliate may only use the Promotional Materials for the purpose of promoting the Company’s website (and the Products available thereon), and for linking to the Company’s website.
4.4 The Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials as prepared by the Company. If the Affiliate wishes to alter or otherwise modify the Promotional Materials, the Affiliate must obtain prior written consent from the Company for such alteration of modification.
4.5 The Affiliate agrees to, at all times, abide by the Block Therapy Code of Conduct and Business Practices, and any amendments thereto, noting that all amendments will be communicated to the Affiliate by the Company via the email address on record with the Company for the Affiliate.
5.0 License: The Company hereby grants to the Affiliate a nonexclusive, nontransferable license (the “License”) to use the Promotional Materials as specified under the terms and conditions of this Agreement. The Company may revoke the Affiliate’s License at any time and for any reason in the Company’s sole and unfettered discretion. The term of the License shall also immediately expire upon the termination of this Agreement between the Company and the Affiliate.
6.0 Intellectual Property: The Company retains all right, title, ownership and interest in the Promotional Materials, and in any copyright, trademark (including Trademarks), or other intellectual property rights in the Promotional Materials. Nothing in this Agreement shall be construed to grant the Affiliate any rights, ownership or interest in the Promotional Materials, or in the underlying intellectual property of the Company, other than the right to use the Promotional Materials granted under the License, as set forth herein.
7.0 Relationship of Parties: This Agreement shall not be construed to create any employment relationship, agency relationship, joint venture or partnership between the Company and the Affiliate. The Affiliate shall provide its obligations under this Agreement only as an independent contractor. The Affiliate shall have no authority to contractually bind the Company or to commit the Company to enter into any agreement, nor shall the Affiliate be considered to be an agent of the Company in any respect.
8.1 Commissions: In exchange for the Affiliate’s display of the Promotional Materials, for Affiliate’s compliance with and performance of the terms and conditions of this Agreement the Company shall record as owing to the Affiliate a commission (the “Commission”) in the amount of the percentage, as identified in the Referral Partner Centre, of the selling price received by the Company, in US dollars or converted to US dollars if applicable, for Products sold to any third party (not including packaging, handling and shipping charges or associated taxes paid by the third party to the Company) if the third party is determined by the Company to have initially been referred to the Company by the Affiliate (hereinafter, such a third party shall be referred to as a “User”). The Company will track any third party who purchases via the Company’s website, and determine if they are a User, through use of the Company’s records and whether the third party used the Affiliate’s specific links that the Company will provide to the Affiliate (and presuming that the third party does not disable any necessary tracking cookies). The Company shall keep accurate and up-to-date records of the data used to determine the total amount of Commission owed to the Affiliate. For the term of this Agreement, the Affiliate will be able to access their applicable data through the Referral Partner Centre. The Affiliate is otherwise responsible to keep their own records of Commissions owing. Any dispute by the Affiliate in respect of the Commissions owed by the Company to the Affiliate shall be raised by the Affiliate with the Company within 90 days of the payment of said Commission to the Affiliate, as per section 8.4, failing which the Affiliate waives any right to raise any claim, cause of action or demand, whatsoever, at law or in equity or otherwise, that the Affiliate may have in respect of said Commission.
8.2 The above noted Commission encompasses any and all liability of the Company to the Affiliate, including but not limited to any and all applicable taxes that the Affiliate is required to charge or remit to any government agency based upon the Commission earned including, but not necessarily limited to, sales taxes, goods and services taxes, ad valorem taxes or income taxes.
8.3 This Commission rate is subject to change by the Company at any time and without prior notice and will apply to all Commissions earned after the date the Commission rate is changed. Notification to the Affiliate of any change in Commission rates will be given by the Company via the email address on record with the Company for the Affiliate and updated at the Referral Partner Centre.
8.4 Commissions are held for a period of one month from the completion of any User purchase of Products in the event of any chargeback or sale reversal that may occur. The Company shall pay all Commissions accrued and payable to the Affiliate by the end of the following month from the one in which the Commission accrued (the “Commission Payment Date”). If on any Commission Payment Date, the amount of total Commissions accrued and payable to the Affiliate is less than $100.00, then such accrued and payable balance shall be held over until the month that the total Commissions owing is at least $100.00, and will then be paid together with the Commissions due for that month. Payments will be made electronically to the Affiliate using a platform as identified by the Company and will be converted on the date of payment from US dollars, as recorded in the Referral Partner Centre, to the currency of the country that the Affiliate operates in. As such, the parties agree that they each bear any currency risk arising from change in respective currency values from the dates Commission becomes owing and when it is paid. Affiliate agrees that they will receive payment via the platform as identified by the Company.
8.5 In the event that the Affiliate materially breaches this Agreement and, as a result the Company terminates this Agreement, then any accrued and payable Commissions owing to the Affiliate at the time that this Agreement is terminated by the Company shall be forfeited, and the Company shall not be obligated to pay such Commissions, or any other amounts, to the Affiliate.
8.6 Without restricting any other rights the Company may have under this Agreement, the Company reserves the right to terminate the Agreement, for any reason, and pay any Commission balance accrued to that date. Without restricting the generality of the foregoing, the Company reserves the right to terminate the Agreement, and pay any Commission balance accrued to that date, if at any time the Affiliate does generate a Commission of at least $100 for a period greater than two years.
9.0 Affiliate’s Covenants, Representations and Warranties: The Affiliate covenants, represents and warrants the following:
(a) it is authorized to enter into this Agreement, it is not infringing the rights of any third parties by entering into this Agreement and that it has had an opportunity to have this Agreement reviewed by legal, accounting and other professionals of its choosing prior to accepting the terms and conditions of this Agreement,
(b) the Affiliate’s own website or social media accounts do not and will not contain discriminatory content (whether based upon religion, creed, race, ethnicity, gender, sexual orientation, physical disabilities or otherwise) or any materials which are sexually explicit, obscene or containing pornographic materials, or which promote hate or threaten anyone or defames or libels anyone,
(c) the Affiliate will not use the Promotional Materials in any manner other than as expressly permitted hereunder to promote the sale of the Products during the term of this Agreement,
(d) the Affiliate will not make any claim to ownership of the Promotional Materials or to the copyright, trademark or other intellectual property rights therein,
(e) the Affiliate will not engage in the distribution of unsolicited bulk emails that in any way mentions or makes reference to the Company or the Promotional Materials. For greater certainty, mailing lists with contacts of the Affiliate who wish to be notified by the Affiliate of updates will not be a violation of this covenant, and,
(f) the Affiliate will hold all information that the Affiliate may receive concerning a customer of the Company in strict confidence and only make use of such information to facilitate authorized communications with a customer of the Company for matters strictly related to the Company and in the best interests of the Company.
10.0. Domain Name and Trademarks: The Affiliate will not use at any time either during the term of this Agreement, or at any time thereafter, as part of its website domain name, social media handle, social media name, or part of social media or any other URL, the words “Block Therapy”, “Block Buddy”, Block Baby”, “Block Paddle”, “Fluid Isometrics”, the Company logo or any other trademark owned by the Company (collectively, the “Trademarks”) or any words, logo or domain name confusingly similar to these Trademarks. The Affiliate will not use at any time either during the term of this Agreement or at any time thereafter the Trademarks except as specifically licensed hereunder for use only during the term of this Agreement in respect of the Products. The Affiliate will not make use of the Trademarks in respect of any products, materials, services and memberships that are not Products.
11.0 Release and Indemnity – Affiliate: The Affiliate, at its own expense, shall defend the Company, and its officers, directors, employees, representatives and agents, against any suits, demands, liabilities, claims, actions, expenses, losses, costs and damages of any kind or nature whatsoever, including without limitation, general, direct, special, indirect and consequential damages (the "Claims") brought against such person based upon the following, and shall pay all settlements entered into and damages of any kind awarded against the Company (including reasonable attorneys’ fees) to the extent based on such Claims.
(a) the Affiliate’s breach of any warranty, covenant, material term or representation in this Agreement; and
(b the Affiliate’s breach of any law, regulation, rule, ordinance, or order of any government, court, tribunal, government body or agency or professional association, in the jurisdiction in which the Affiliate operates or any jurisdiction that the Affiliate may be subject to by virtue of its acceptance of customers from such jurisdictions outside of its own jurisdiction. For greater certainty, the Company confirms to the Affiliate that all contracts for the purchase of the Products are entered into between the Company and the customer. The Affiliate is not a party to any of these contracts and is neither liable for nor responsible to either the customer or the Company for a breach of such a contract by either the customer or the Company.
12.0 Records: The Company does not and will not issue any additional records in respect of Commissions paid for purposes of the Affiliate’s tax reporting.
13.0 Minimum Requirements to be An Affiliate: The Affiliate represents and warrants that they are actively enrolled in or have already graduated from one of the training programs in the Block Therapy Academy.
14.0 Use of Coupon/Discount Sites and Cookie Stuffing Prohibited: The Affiliate agrees to not post or promote the Affiliate’s tracking links and the sale of Products on coupon or discount websites. The Affiliate further agrees to not participate in any form of “cookie stuffing” activity with respect to the promotion or sale of the Products.
General Provisions:
15.0 Forbearance or indulgence by either Party in any regard does not constitute a waiver of the term or condition to be performed, and either Party may invoke any remedy available under this Agreement or by law despite the forbearance or indulgence. This Agreement may only be amended with the written consent of both Parties.
16.0 Nothing in this Agreement will be construed to constitute either Party or any of their representatives as a representative or a partner of the other Party.
17.0 If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, the offending provision will be severed from this Agreement and the other provisions of this Agreement will remain in full force.
18.0 The headings used in this Agreement are for reference only and have no legal effect.
19.0 This Agreement is governed by, and must be construed in accordance with, the laws of the Province of Manitoba, Canada. The Parties agree to attorn to the exclusive jurisdiction of the courts of the Province of Manitoba, Canada for the determination of any dispute arising out of this Agreement.
20.0 The prevailing party in any legal action brought by one party against the other and arising out of this Agreement shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses, including court costs, as well as reasonable attorneys' fees.
21.0 This Agreement constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements or representations or warranties of any kind.
22.0 This Agreement is effective upon execution by the Parties and will remain in effect until terminated. Either Party can terminate this Agreement immediately for any reason on notice to the other Party.
23.0 Upon termination of this Agreement for any reason (except for a breach by the Affiliate of the requirements, representations or warranties of paragraphs 10.0, 13.0 and 14.0, in which cases the Affiliate agrees that the Affiliate’s entitlement to Commissions is forfeited), the Affiliate will be entitled to Commissions earned in accordance with this Agreement prior to termination of this Agreement, provided such User orders are filled, shipped and entirely paid for by the User.
24.0 Sections 4.1, 4.2, 4.3, 4.4, 5.0, 6.0, 10.0, 11.0, 12.0, 19.0, 20.0, 21.0, 23.0 and 24.0 as well as any accrued payment obligations, shall survive any termination of this Agreement.