Partner Program Agreement 

Effective Date: January 01, 2020

By clicking on “I agree” (or a similar box or button) when you sign up for a Partner Account, using the Partner Platform or participating in any Partner Program activities, you agree to be bound by the applicable sections of the Partner Program Agreement (the “Agreement”). The Agreement is between you, as Partner (as defined below in Section A.1.), and Pellea Inc. (“Pellea”) (together, the “Parties”, and each a “Party”). You can review the current version of the Agreement at any time at pellea.com/partner-program-agreement/. Pellea reserves the right to update and change the Agreement by posting updates and changes here: pellea.com/partner-program-agreement/. If a significant change is made, we will provide reasonable notice by email, posting a notice on the Pellea Partner Blog and/or in the Partner Dashboard. You are advised to check the Agreement from time to time for any updates or changes that may impact you. Any reference to the Agreement includes any terms and documents incorporated by reference.

This Agreement addresses different types of Partner activities.  Part A applies to all Partners. Part B applies to specific Partners. You must read, agree with and accept all of the terms and conditions contained in this Agreement Pellea’s Privacy Policy, and Pellea’s Acceptable Use Policy before you may become a Partner and, for the avoidance of doubt Pellea’s Privacy Policy and Pellea’s Acceptable Us Policy form part of this Agreement and are incorporated by reference. For the Partner Program and this Agreement, all references to “Account” and “Services” in Pellea’s Acceptable Use Policy will be deemed to refer to “Partner Account” and “Services or Partner’s participation in the Partner Program”, respectively. Some types of Pellea Partner Program activities may require that you agree to additional terms (“Additional Terms”). Such Additional Terms are incorporated into this Agreement by reference. In the event of a conflict or inconsistency between this Agreement and the Additional Terms, the Additional Terms will govern, to the extent of such conflict or inconsistency.

Everyday language summaries are provided for convenience only and are not legally binding. Please read the entire Agreement for the complete picture of your legal requirements. This Agreement governs your activities as a Partner, including access to the Partner Dashboard and participation in the activities described on the Partner Program website. Be sure to occasionally check back for updates.

Part A – Terms Applicable to All Partners

  1. Definitions

Unless defined elsewhere in the Agreement, capitalized terms set out in the Agreement are defined as follows:

“Associate” is an individual or business that promotes the service by registering, and being approved by Pellea, for a unique referral link (an “Associate Link”) to refer customers or clients to Pellea.

“Associate Account” means an Associate Account.

“Associate Dashboard” means the internal administrative page that allows Associates to manage their Associate Account.

 “Customer or Client” means any individual that visits or transacts via the Merchant Store.

“Customer or Client Data” means information (including personal information) relating to a Customer or Client, including, but not limited to, order information, payment information, and account information.

“Merchant” means an individual or business that uses the Service to sell products or services.

“Merchant Agreement” means the agreement entered into between a Partner and the Merchant governing the Merchant’s use of the Partner’s services.

“Merchant Data” means information (including personal information) relating to a Merchant, including but not limited to business, financial and product information, and any Customer or Client Data.

“Merchant Store” means the Merchant’s commerce presence hosted by Pellea, including their online store and Point of Sale (POS). For clarity, a Merchant may have more than one Merchant Store.

“Partner” means an individual or entity that has agreed to the terms of this Agreement and participates in the Pellea Partner Program.

“Partner Account” means a Partner Account.

“Partner Dashboard” means the internal administrative page that allows Partners to manage their Partner Account.

 “Partner Manager” means the Pellea employee designated by Pellea from time to time as the Partner’s primary Pellea contact.

“Payment Period” has the meaning as set out in Section 3.2.

“Partner Program” means Pellea’s program for Partners that provides exclusive access to resources and, as applicable, the opportunity to earn a revenue share.

 “Revenue Generating Activity” means a revenue-generating activity carried out by Partner, as determined by Pellea, including the following:

  1. Transfer to Merchant by Partner of a Development Store created by Partner and the registration by such Merchant for a paid Pellea account; and
  2. A Revenue Generating Activity will be attributed to Partner on the date the Merchant makes the initial payment of fees for the relevant Merchant Store.

“Service” means the Pellea hosted commerce platform available via www.pellea.com and any associated websites that are used by Merchants to sell products and services and manage their businesses across different sales channels.

 “Pellea Creative” means any marketing and/or promotional materials relating to Pellea and/or Pellea brands, including but not limited to copyrighted content, hypertext links, domain names, icons, buttons, banners, graphic files, images, and the Pellea Trademarks.

 “Pellea Related Entities” means any entity that directly or indirectly controls, is controlled by or is under common control with, Pellea; where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of another, whether through the ownership of voting securities, by contract, as trustee or executor, or otherwise.

“Pellea Trademarks” means the trademarks, logos, service marks, and trade names of Pellea Inc., whether registered or unregistered, including but not limited to the word mark PELLEA.

 “Websites” means any websites that are managed by a Partner and that relate to Partner’s activities according to this Agreement.

  1. Partner Responsibilities

2.1. Marketing Activities

  1. Partner shall bear all costs and expenses related to Partner’s marketing or promotion of Pellea or any Pellea Related Entity, and, as applicable, Partner’s other products or services associated with Partner’s participation in the Partner Program (Collectively, “Partner Marketing Activities”) in any area, location, territory or jurisdiction, unless otherwise determined by Pellea in its sole discretion.
  2. In no event shall Partner engage in any Partner Marketing Activities except as expressly outlined in this Agreement. If Partner has a list of emails where the individuals on the list have expressly elected to receive emails from Partner (“Opt-in List”), Partner may make a written request to Pellea to send emails regarding the offering of Pellea and Pellea Related Entities to the individuals on the Opt-in List (and Pellea may, in its sole discretion, allow Partner to send such emails). In conducting all Partner Marketing Activities, Partner shall comply with all applicable laws, rules, regulations, and directives, including but not limited to those relating to email marketing and “spamming”.
  3. Without limiting the generality of the foregoing, Partner shall (i) not send any email regarding Pellea and/or Pellea Related Entities to any individual or entity that has not requested such information; (ii) always include Partner’s contact information and “unsubscribe” information at the top and bottom of any email regarding Pellea, Pellea Related Entities, the Service and/or the Pellea platform; and (iii) not imply that such emails are being sent on behalf of Pellea or Pellea Related Entities.
  4. A Partner shall not (i) engage in any fax, broadcast, telemarketing or any other offline marketing methods with respect to Pellea and/or Pellea Related Entities; (ii) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to Pellea and/or Pellea Related Entities; (iii) make any false, misleading or disparaging representations or statements with respect to Pellea and/or Pellea Related Entities; (iv) solicit Merchants to leave the Pellea Service; (v) copy, resemble or mirror the look and feel of Pellea’s websites, Pellea Trademarks or Services or otherwise misrepresent Partner’s affiliation with Pellea and/or Pellea Related Entities; or (vi) engage in any other practices which may adversely affect the credibility or reputation of Pellea and/or Pellea Related Entities, including but not limited to, sending email communications or using any Website in any manner, or having any content on any Website, that (a) uses aggressive or low-quality marketing, including marketing services that are unrelated to Pellea or the Partner’s services, (b) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, and/or any illegal or objectionable activities, or (c) violates any intellectual property or other proprietary rights of any third party; or (d) violates the Acceptable Use Policy.

2.2. Compliance with Laws

In addition to, and without limiting the provisions of this Agreement, Partner shall perform its obligations hereunder following the highest applicable industry standards and in compliance with all applicable laws, rules and regulations.

2.3. Partner Duty to Inform

Partner shall promptly inform Pellea of any information known to Partner that could reasonably lead to a claim, demand, or liability of or against Pellea and/or the Pellea Related Entities by any third party.

2.4. Partner Duty to Disclose

If Partner is acting as an agent on behalf of a Merchant, then Partner shall disclose to the Merchant any Fees that Partner is entitled to receive from Pellea following this Agreement that is associated with such Merchant.

2.5. Other Partner Terms

  1. If the Partner is an individual, the Partner must be 18 years or older or at least the age of majority in the jurisdiction where the Partner resides.
  2. To become a Partner, Partner must create a Partner Account by providing all information indicated as required. Pellea may reject an application for a Partner Account for any reason, in its sole discretion. Partner acknowledges that Pellea will use the email address provided by Partner as the primary method for communication. Partner is responsible for keeping its Partner Account password secure. Pellea cannot and will not be liable for any loss or damage arising from Partner’s failure to maintain the security of the Partner Account and password.
  3. If you sign up for a Partner Account on behalf of your employer, your employer shall be deemed to be the Partner for this Agreement, and you represent and warrant that you have the authority to bind your employer to this Agreement. Each Partner is responsible for: (a) ensuring that its employees, agents, and subcontractors comply with this Agreement and (b) any breach of this Agreement by Partner’s employees, agents, or subcontractors.
  4. Partner acknowledges and agrees that Partner will be responsible for the performance of all of its obligations under the Agreement, regardless of whether it sublicenses or subcontracts any such obligations to any third party, including but not limited to any subsidiaries of Partner.
  5. Partner acknowledges and agrees that Pellea may amend this Agreement at any time by posting the relevant amended and restated Partner Program Agreement on Pellea’s website, available at pellea.com/partner-program-agreement/and such amendments to the Agreement are effective as of the date of posting. If a significant change is made, Pellea will provide reasonable notice by email, posting a notice on the Pellea Partner Blog and/or in the Partner Dashboard. Partner’s continued participation in the Pellea Partner Program after the amended Partner Program Agreement is posted to Pellea’s website constitutes Partner’s agreement to, and acceptance of, the amended Agreement. If Partner does not agree to any changes to the Agreement, Partner must terminate the Agreement by discontinuing its participation in the Pellea Partner Program.
  6. Partner acknowledges and agrees that Partner’s participation in the Pellea Partner Program, including information transmitted to or stored by Pellea, is governed by the Pellea Privacy Policy found at pellea.com/privacy-policy/.
  7. Other than the limited license to use the Pellea Trademarks according to Section 5 of this Agreement, Partner shall not use the Pellea Trademarks and/or Pellea Related Entities’ names or trademarks (meaning any names and/or trademarks or any other protected marks associated with the Pellea Service, Pellea Inc. or the Pellea Related Entities) and/or variations or misspellings thereof in Partner’s business name, logo, branding, advertising, social media or domain name (including without limitation top-level domains and sub-domains).
  8. Partner shall not purchase or register search engine or other pay-per-click keywords (such as Google AdWords), trademarks or domain names that use the Pellea Trademarks and/or the names or trademarks of any Pellea Related Entities or any variations or misspellings thereof that may be deceptively or confusingly similar to the Pellea Trademarks or the names or trademarks of any Pellea Related Entity.
  9. Fees and Payments

3.1. Revenue Sharing Plans

Subject to (i) Partner’s compliance with this Agreement, and (ii) the revenue sharing plan associated with a Partner’s activities according to the Partner Program, Partner shall be entitled to receive certain fees or credits from Pellea (the “Fees”) or (the “Credits”). The revenue sharing plans applicable to the different types of Partners are set out in Part B.

3.2. Payment

  1. Credits due to Partner under the Reference Plan will be calculated by Pellea once per month upon receipt of payment from the Merchant, for each month that the Merchant Store is active, provided that Partner has carried out at least one (1) Revenue Generating Activity in the immediately preceding 12-month period (as set out in Part B, Section 3.1).
  2. Pellea distributes Fees owing to its Partners twice per calendar month (each such period, a “Payment Period”). The first Payment Period occurs during the first half of the month, and the second Payment Period occurs during the second half of the month. The Fees described in Section 3.2.1 will be paid in either the first Payment Period or the second Payment Period, depending on the date that the Fee was calculated by Pellea. Where the Fees owing to Partner are greater than CAD$25 at the end of any Payment Period, the Fees will be paid to Partner. If the Fees owing to Partner are less than CAD$25 at the end of any Payment Period, Pellea shall be entitled to withhold payment of Fees until the end of the next Payment Period in which the balance of unpaid Fees owing to Partner from any previous Payment Period and Fees owing to Partner under the current Payment Period are CAD$25

or more.

3.3. Additional Payment Information

  1. All payments are subject to fraud and risk analysis considerations and anti-money laundering procedures and may be withheld during the period of investigation.
  2. Notwithstanding anything to the contrary in this Agreement, Pellea shall not be responsible to pay any Fees:
  3. Related to revenues that have been refunded to Merchants by Pellea;
  4. Related to fraudulent sales;
  5. Related to revenues that have been subject to chargebacks; or
  6. To Partners who are employed by Pellea (whether full-time, part-time, term or any other employment type relationship); or
  7. Partners who are employed by the Merchant to whom the Fees relate (whether full-time, part-time, term or any other employment type relationship).
  8. If any Fees paid by Pellea are subsequently discovered to be subject to one or more of the exclusions set out in Section 3.3.2, or to have been paid in error, Pellea shall have the right, at its sole discretion, to: (A) reclaim any Fees paid to Partner in error; or (B) set off the amounts described in Section 3.3 from payments due to Partner in future Payment Periods. If the Agreement is terminated before such amounts are fully repaid by Partner to Pellea, Partner shall pay to Pellea the remaining balance within thirty (30) days of the effective date of termination of the Agreement.
  9. Pellea reserves the right to modify the Fees and/or the payment terms at any time upon reasonable advance notice to Partner. Such notice will be provided by email, posting a notice on the Pellea blog and/or in the Partner Dashboard. In the event of any disputes over Fees, Pellea’s determination will be final and binding.
  10. Termination

4.1. Termination

  1. Unless otherwise specified in the Agreement, either Party may terminate this Agreement at any time, with or without cause, effective immediately upon notice to the other Party.
  2. Fraudulent or other unacceptable behaviors by Partner, including breach of the Acceptable Use Policy, as determined by Pellea in its sole discretion, may result in one or more of the following actions being taken by Pellea: (a) termination of Partner’s affiliation with Merchants within the Partner Account; (b) suspension of some or all Partner privileges under the Partner Program; and (c) termination of the Partner Account entirely without notice to, or recourse for, Partner.
  3. Pellea reserves the right to cancel or modify the Partner Program Agreement in its entirety, including Fees, at any time. If a significant change is made to the Partner Program Agreement, including any material change to Fees, Pellea will provide reasonable notice by email, posting a notice on the Pellea blog and/or in the Partner Dashboard.

4.2. Consequences of Termination

Upon termination of this Agreement: (a) each Party shall return to the other Party, or destroy (and provide certification of such destruction), all property of the other Party in its possession or control (including all Pellea Creative and all Confidential Information (as defined below)); (b) Partner shall immediately cease displaying any Pellea Creative and/or any Pellea Trademarks on any Website or otherwise; and (c) all rights granted to Partner hereunder will immediately cease, including but not limited to the right of Partner to access the Partner Account and Partner Dashboard or to receive any payments of Fees hereunder, unless otherwise determined by Pellea in its sole discretion.

  1. Intellectual Property Rights

5.1. Pellea Creative

  1. All Pellea Creative will be solely created and provided by Pellea unless otherwise agreed to by Pellea in writing in advance. Pellea will provide Partner with copies of or access to Pellea Creative. By using the Pellea Creative, you indicate your acceptance of our Pellea Trademark Usage Guidelines and you understand that a violation of these guidelines or this Agreement will result in the termination of your license and/or permission to use the Pellea Creative. The Pellea Creative is provided “as is” and without warranty of any kind.
  2. Partner may display Pellea Creative on the Websites solely for the purpose of marketing and promoting the Service and any Pellea brands permitted by Pellea and by Pellea Related Entities during the term of this Agreement, or until such time as Pellea may, upon reasonable prior notice, instruct Partner to cease displaying the Pellea Creative. Partner may not alter, amend, adapt or translate the Pellea Creative without Pellea’s prior written consent. Nothing contained in any Pellea Creative shall in any way be deemed a representation or warranty of Pellea or of any of Pellea Related Entity. The Pellea Creative shall at all times be the sole and exclusive property of Pellea and no rights of ownership shall at any time vest with Partner even in such instances where Partner has been authorized by Pellea to make changes or modifications to the Pellea Creative.

5.2. Pellea Trademarks

During the term of this Agreement, Pellea hereby grants to Partner a limited, revocable, non-exclusive, non-sublicensable, and non-transferable license to display the Pellea Trademarks solely as necessary to perform Partner’s obligations under this Agreement. Partner acknowledges and agrees that: (a) it will use Pellea’s Trademarks only as permitted hereunder; (b) it will use the Pellea Trademarks in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by Pellea in writing from time to time, including but not limited to the Pellea Trademark Usage Guidelines; (c) the Pellea Trademarks are and shall remain the sole property of Pellea; (d) nothing in this Agreement shall confer in Partner any right of ownership in the Pellea Trademarks and all use thereof by Partner shall inure to the benefit of Pellea; and (e) Partner shall not, now or in the future, apply for or contest the validity of any Pellea Trademarks; and (f) Partner shall not, now or in the future, apply for or use any term or mark confusingly similar to any Pellea Trademarks.

5.3. Restrictions on Partner’s Use of the Pellea Trademarks

Notwithstanding Section 5.2, Partners shall not use any Pellea Trademark including but not limited to the shopping bag logo or the word mark PELLEA or variations of the word “Pellea” in Partner’s business name, logo, products or services, including without limitation, the name or design of any Application or Theme, unless granted express written permission by Pellea in advance of such use..

5.4. Proprietary Rights of Pellea

As between Partner and Pellea, the Pellea Creative, Pellea Trademarks, all demographic and other information relating to Merchants prospective Partners and Partners, the Services Merchant Data, and all software, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites, and any additional intellectual or other property used by or on behalf of Pellea and/or Pellea Related Entities or otherwise related to the Service, Pellea Partner Program, Pellea and/or Pellea Related Entities, together with all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto (collectively, “Pellea Property”) shall be and remain the sole and exclusive property of Pellea. To the extent, if any, that ownership of any Pellea Property does not automatically vest in Pellea by virtue of this Agreement, or otherwise, and vests in Partner, Partner hereby transfers and assigns to Pellea, upon the creation thereof, all rights, title and interest Partner may have in and to such Pellea Property (and waives any moral rights, as applicable), including the right to sue and recover for past, present and future violations thereof.

  1. Confidentiality
  2.  “Confidential Information” shall include, but shall not be limited to, any information associated with a Party’s business and not publicly known, including specific business information, technical processes and formulas, software, customer or client lists, prospective customer or client lists, names, addresses and other information regarding customers or clients and prospective customers or clients, product designs, sales, costs (including any relevant processing fees), price lists, and other unpublished financial information, business plans, and marketing data, and any other confidential and proprietary information, whether or not marked as confidential or proprietary. For the avoidance of doubt, as between Pellea and Partner, Merchant Data and Customer or Client Data is the Confidential Information of Pellea.
  3. Each Party agrees to use the other Party’s Confidential Information solely as necessary for performing its obligations under this Agreement and following any other obligations in this Agreement including this Section 6. Each Party agrees that it shall take all reasonable steps, at least substantially equivalent to the steps it takes to protect its proprietary information, to prevent the duplication, disclosure or use of any such Confidential Information, other than (i) by or to its employees, agents, and subcontractors who must have access to such Confidential Information to perform such Party’s obligations hereunder, who each shall treat such Confidential Information as provided herein, and who are each subject to obligations of confidentiality to such Party that are at least as stringent as those contained herein; or (ii) as required by any law, regulation, or order of any court of proper jurisdiction over the Parties and the subject matter contained in this Agreement, provided that, if legally permitted, the receiving Party shall give the disclosing party prompt written notice and use commercially reasonable efforts to ensure that such disclosure is accorded confidential treatment. Confidential Information shall not include any information that the receiving Party can prove: (A) was already in the public domain, or was already known by or in the possession of the receiving Party, at the time of disclosure of such information; (B) is independently developed by the receiving Party without the use of or reference to the other Party’s Confidential Information, and without breaching any provisions of this Agreement; or (C) is thereafter rightly obtained by the receiving Party from a source other than the disclosing Party without breaching any provision of this Agreement.
  4. Disclaimer of warranty

The Pellea Partner Program the Service, the Pellea Trademarks, the Pellea Creative are provided “as-is”. Pellea makes no warranties hereunder, and Pellea expressly disclaims all warranties, express or implied, including, but not limited to, warranties of merchantability and fitness for a particular purpose. Without limiting the foregoing, Pellea further disclaims all representations and warranties, express or implied, that the Service, the Pellea Trademarks, the Pellea Creative, satisfy all of Partner’s or Merchant’s requirements and or will be uninterrupted, error-free or free from harmful components.

  1. Limitation of Liability and Indemnification

8.1. Limitation of Liability

Pellea shall have no liability concerning the Pellea Partner Program, the Service, the Pellea Trademarks, the Pellea Creative or Pellea’s obligations under this Agreement or otherwise for any direct, indirect, incidental, special, consequential, or exemplary damages, including but not limited to, damages for losses of profits, goodwill, use, data or other intangible losses resulting in any way from the Service, the Pellea Trademarks, the Pellea Creative, or Partner’s participation or inability to participate in the Pellea Partner Program, even if Pellea has been advised of the possibility of such damages. In any event, Pellea’s liability to Partner under this Agreement for any reason will be limited to the Fees paid to Partner by Pellea during the six (6) month period immediately preceding the event giving rise to the claim for damages. This limitation applies to all causes of action in the aggregate, including, but not limited to, breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts. The relationship between a Merchant and a Partner is strictly between the Merchant and the Partner, and Pellea is not obligated to intervene in any dispute arising between the Merchant and the Partner. Under no circumstances shall Pellea be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from or relate to the Partner’s relationship with any Merchant. These limitations shall apply even if Pellea has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.

8.2. Partner Indemnification

Partner agrees to indemnify, defend and hold harmless Pellea and any Pellea Related Entities and the directors, officers, employees, subcontractors and agents thereof (each, an “Indemnified Party”, and collectively, the “Indemnified Parties”), concerning any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees (collectively, “claims”), to the extent that such claim is based upon or arises out of: (a) Partner’s breach of any representation, warranty, obligation or covenant under this Agreement; (b) Partner’s gross negligence or wilful misconduct; (c) any warranty, condition, representation, indemnity or guarantee relating to Pellea and Pellea Related Entities granted by Partner to any Merchant, prospective Partner or other third party; (d) Partner’s breach of any term of this Agreement (including any documents it incorporates by reference) or a Merchant Agreement; (e) any third party claim that Partner’s products or services, infringes the intellectual property or other rights of a third party; (f) the performance, non-performance or improper performance of the Partner’s products or services, and (g) Partner’s relationship with any Merchant.

8.3. Notice of Indemnification

In claiming any indemnification hereunder, the Indemnified Party shall promptly provide Partner with written notice of any claim which the Indemnified Party believes falls within the scope of the indemnifications provided under this Agreement. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that Partner shall control such defense and all negotiations relative to the settlement of any such claim and further provided that in settling any claim the Partner will not make any admission on behalf of the Indemnified Party or agree to any terms or conditions that do or reasonably could result in any admission by, or the imposition of any liability upon, the Indemnified Party without the prior written approval of the Indemnified Party.

8.4. Non-exclusive remedies

In the event of any breach or threatened breach by Partner of any provision of Sections 2, 5 and/or 6 above, in addition to all other rights and remedies available to Pellea under this Agreement and under applicable law, Pellea shall have the right to (a) immediately enjoin all such activity, without the necessity of showing damages or posting a bond or other security, (b) immediately terminate this Agreement and Partner’s engagement hereunder, (c) receive a prompt refund of all amounts paid to Partner hereunder, and (d) be indemnified for any losses, damages or liability incurred by Pellea in connection with such violation, following the provisions of this Section 8.

  1. General provisions

9.1. Force Majeure

If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable because of any flood, riot, fire, judicial or governmental action (including, but not limited to, any law, regulation or embargo prohibiting the performance contemplated hereunder and/or the failure or refusal of a government agency to issue a license required for any performance according to this Agreement), labor disputes, act of God or any cause beyond the reasonable control of that Party, the Party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such cause. Notwithstanding anything herein to the contrary, the Party prevented from performing hereunder by a force majeure event shall nevertheless use its best efforts to recommence its performance hereunder as soon as reasonably practicable and to mitigate any damages resulting from its non-performance hereunder.

9.2. Independent Contractors

The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, or related entity of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.

9.3. Non-Exclusivity

Nothing in this Agreement is intended to create, nor shall it be construed as creating, any exclusive arrangement between the Parties to this Agreement. This Agreement shall not restrict either Party from entering into similar arrangements with others, provided it does not breach its obligations under this Agreement by doing so, including without limitation, any confidentiality obligations.

9.4. Notice

Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes on the delivery date by email to Partner’s email address listed in the Partner Account, and to [email protected].

9.5. No Waiver

The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same shall be and remain in full force and effect. Each waiver shall be outlined in a written instrument signed by the waiving Party.

9.6. Entire Agreement

This Agreement, including any completed application form and all guidelines and other documents, linked or otherwise incorporated or referenced herein, sets forth the entire agreement and supersedes any prior agreements, written or oral, of the Parties concerning the subject matter hereof (including, but not limited to, any prior version of this Agreement). Neither Party shall be bound by, and each party specifically objects to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by the other Party in any correspondence or other document, unless the Party to be bound thereby specifically agrees to such provision in writing.

9.7. Assignment

All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the Parties to this Agreement and their respective heirs, successors, permitted assigns and legal representatives. Pellea shall be permitted to assign this agreement without notice to or consent from Partner. Partner shall have no right to assign or otherwise transfer this Agreement, or any of its rights or obligations hereunder, to any third party without Pellea’s prior written consent, to be given or withheld in Pellea’s sole discretion.

9.8. Applicable Laws

This Agreement shall be governed by and interpreted following the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario, Canada concerning any dispute or claim arising out of or in connection with this Agreement.

9.9. Patent Non-Assertion

Partners covenant not to assert patent infringement claims against Pellea, Pellea Related Entities, or Pellea products and services.

9.10. Competitive or Similar Materials

Pellea is not precluded from discussing, reviewing, developing for itself, having developed, acquiring, licensing, or developing for or by third parties, as well as marketing and distributing materials, products or services which are competitive with Partner’s products or services, regardless of their similarity to Partner’s products or services, provided that Pellea does not use Partner’s Confidential Information in so doing.

9.11. Feedback

If Partner provides any feedback (including identifying potential errors and improvements) to Pellea concerning the Partner Program, the Pellea Creative or any aspects of the Service (“Feedback”), Partner hereby assigns to Pellea all right, title, and interest in and to the Feedback, and Pellea is free to use, reproduce, disclose, and otherwise exploit the Feedback without attribution, payment or restriction, including to improve the Partner Program, the Pellea Creative and/or the Service and to create other products and services. Pellea will treat any Feedback as non-confidential and non-proprietary. Partner will not submit any Feedback that it considers confidential or proprietary.

9.12. Beta Services

From time to time, Pellea may, in its sole discretion, invite Partner to use, on a trial basis, potential new services or features that are in development and not yet available to all Partners or Merchants (“Beta Services”). Beta Services may be subject to additional terms and conditions, which Pellea will provide to Partner before Partner’s use of the Beta Services. Such Beta Services and all associated conversations and materials relating thereto will be considered Confidential Information of Pellea and subject to the confidentiality provisions of this Agreement. Pellea makes no representations or warranties that the Beta Services will function. Pellea may discontinue the Beta Services at any time in its sole discretion. Pellea will have no liability for any harm or damage arising out of or in connection with a Beta Service.

9.13. Service Providers

Partner may work with service providers as necessary to facilitate Partner’s performance under this Agreement. Partner acknowledges and agrees that any act or omission by Partner’s service provider amounting to a breach of this Agreement will be deemed to be a breach by Partner.

.9.14. Industry Standards

  1. Partner’s networks, operating system and software of its web servers, routers, databases, and computer systems (collectively, “Partner System”) must be properly configured to Internet industry standards to securely operate Partner’s Website, Applications, and Themes, as applicable. If Partner does not completely control some aspect of the Partner System, Partner will use all influence that Partner has over the Partner System to do so. Partner must diligently correct any security deficiency, and disconnect immediately any known or suspected intrusions or intruder.
  2. Also, if Partner has access to Merchant Data, Partner: (i) shall only use or store such information to provide the Partner’s services to the Merchant to whom the Merchant Data relates, and shall not share, sell, disclose or otherwise provide such information to any third party, except as provided for in this Agreement; (ii) shall not communicate with Customers or Clients or Clients directly or indirectly, provided however that Partner may contact Customers or Clients if the information is obtained from another source, such as from the Customers or Clients themselves; (iii) shall only store such information for as long as reasonably necessary to provide the Partner’s services to the Merchant to whom the Merchant Data relates; (iv) shall use industry standard measures to protect against unauthorized access to, disclosure or use of such information; (v) shall comply with all applicable laws and regulations relating to the protection and privacy of personally identifiable information in Partner’s provision of the Partner’s services; and (vi) shall notify Pellea of any actual or suspected breach or compromise of Merchant Data (a “Data Breach”) within two (2) business days of becoming aware of such occurrence. Upon learning of the Data Breach, at its own cost, Partner will: (A) promptly remedy the Data Breach to prevent any further loss of Merchant Data; (B) investigate the incident; (C) take reasonable actions to mitigate any future anticipated harm to Pellea, the Pellea Related Entities, Merchants or Customers or Clients; and (D) regularly communicate the progress of its investigation to Pellea and cooperate to provide Pellea with any additional requested information promptly.

Part B – Additional Terms Applicable to Specific Partners

Part B contains terms applicable to Partners generally.

  1. FTC Guidelines
  2. The Federal Trade Commission in the United States (“FTC”) has guidelines for governing endorsements and testimonials. These rules are aimed at increasing transparency between endorsers and consumers. As a member of the Partner Program with Pellea, Associates receives credits for the referrals made to Pellea. This may establish a “material connection” according to FTC rules, which creates an obligation for an Associate to provide disclosure to consumers.
  3. Full compliance with these guidelines requires that information be provided by Associate to consumers clearly and conspicuously, outlining that an Associate is being compensated for referring Customers or Clients to Pellea. For further information, an Associate may refer to the statement released by the FTC regarding these guidelines.
  4. Prohibited Activities
  5. Stores cannot be used to process orders on behalf of the Merchant.
  6. A Merchant cannot be a store opened and/or owned by a Partner and for which that Partner seeks fees according to this Agreement. A Partner will be deemed to have introduced only those Merchants that: (a) access Pellea from that Associate’s Referral Link assigned by Pellea; or (b) are added through a Store within the Associate’s Pellea Associate Dashboard.
  7. Revenue Sharing Plans for Partners
  8. The “Reference Plan” is a revenue-sharing plan that pays Associates to introduce Pellea to a customer or client through a referral link associated with the Associate’s Dashboard. Unless otherwise agreed to in writing by Pellea, under the Reference Plan, an Associate that refers a Customer or Client, using Pellea Service, is entitled to a percentage of revenue to be determined by Pellea in its sole discretion, with Pellea being entitled to the remaining percentage. The Associate will receive a variable one-time credit of zero percent – two percent (0% – 2%) of one month’s revenue received from such Customers or Clients. Any credits are given to an Associate will be paid in two parts. The first half of the credits will be given within 30 days after the Customer or Client pays Pellea their credits. The second half of the credits will be given within 30 days of the end of the calendar month in which the first half of the credits were given. The Reference Plan may also apply where a Customer or Client is introduced to Pellea by more than one Associate using the Associates’ Referral Link. Pellea reserves the right to revise the revenue share amounts applicable to the Reference Plan and any ongoing obligations to receive revenue share from time to time, at its sole discretion, upon reasonable prior notice to Associate. Such notice will be provided by email, posting a notice on the Pellea blog and/or in the Associate Dashboard.  To continue receiving a revenue share for Associates under the Reference Plan, the associate must carry out at least one Revenue Generating Activity in each consecutive 12-month period. Pellea reserves the right to revise the revenue share applicable to the Reference Plan, and any ongoing obligations to receive revenue share from time to time, at its sole discretion, upon reasonable prior notice to the Associate. Such notice will be provided by email, posting a notice on the Pellea blog, and/or in the Associate Dashboard.
  9. To continue receiving a revenue share for Associates under the Reference Plan, the associate must carry out at least one Revenue Generating Activity in each consecutive 12-month period. Pellea reserves the right to revise the revenue share applicable to the Reference Plan, and any ongoing obligations to receive revenue share from time to time, at its sole discretion, upon reasonable prior notice to the Associate. Such notice will be provided by email, posting a notice on the Pellea blog, and/or in the Associate Dashboard.  To continue receiving a revenue share for Associates under the Reference Plan, the associate must carry out at least one Revenue Generating Activity in each consecutive 12-month period. Pellea reserves the right to revise the revenue share applicable to the Reference Plan, and any ongoing obligations to receive revenue share from time to time, at its sole discretion, upon reasonable prior notice to the Associate. Such notice will be provided by email, posting a notice on the Pellea blog, and/or in the Associate Dashboard.
  10. The “Bounty Plan” is a revenue-sharing plan that pays Merchants a variable, one-time payment (“Bounty”) for selling products or services. Unless otherwise agreed to in writing by Pellea, under the Bounty Plan, a Merchant that sells products or services to a Customer or Client, using Pellea Service, is entitled to a percentage of revenue to be determined by Pellea in its sole discretion, with Pellea being entitled to the remaining percentage. The Merchant will receive a variable one-time fee of eighty percent – ninety percent (80% – 90%) of one month’s revenue received from such Customers or Clients. Any fees are payable to a Merchant will be paid in two parts. The first half of the Fees will be paid within 30 days after the Customer or Client pays Pellea their fees. The second half of the Fees will be paid within 30 days of the end of the calendar month in which the first half of the fees were paid. The Bounty Plan may also apply where a Customer or Client is introduced to Pellea by more than one Associate using the Associates’ Referral Link. Pellea reserves the right to revise the revenue share amounts applicable to the Bounty Plan and any ongoing obligations to receive revenue share from time to time, at its sole discretion, upon reasonable prior notice to Merchant. Such notice will be provided by email, posting a notice on the Pellea blog and/or in the Merchant Dashboard.  To continue receiving a revenue share for Merchants under the Bounty Plan, the merchant must carry out at least one Revenue Generating Activity in each consecutive 12-month period. Pellea reserves the right to revise the revenue share amounts applicable to the Bounty Plan and any ongoing obligations to receive revenue share from time to time, at its sole discretion, upon reasonable prior notice to Merchant. Such notice will be provided by email, posting a notice on the Pellea blog and/or in the Merchant Dashboard.
  11. For each Referred Customer or Client identified and product(s) or service(s) delivered to Customer or Client, Partner will be entitled to receive Fees from either the Reference Plan or the Bounty Plan, but not both. Where the Associate introduces Pellea to a Referred Customer or Client through the Associate’s Associate Link associated with Associate’s Dashboard, the Associate will be entitled to receive Fees following the Reference Plan. Where the Merchant sells products or services to customers or clients through a Store associated with Merchant’s Dashboard, the Merchant will be entitled to receive Fees following the Bounty Plan. Whether the Associate or Merchant receives Fees, in respect to the Referred Customer or Client identified or product(s) or service(s) delivered to Customer or Client under either the Reference Plan or the Bounty Plan is at Pellea’s sole and absolute discretion/  Pellea reserves the right to (i) demand and receive information from Associates about any Referred Customer or Client, including but not limited to information concerning traffic sources and methods used to acquire the Referred Customer or Client, and (ii) assess the legitimacy and qualification of such Referred Customer or Client to determine whether fees are payable for such Referred Customers or Client.
  1. Responsibilities

Associates will use their best efforts to (i) promote and market Pellea, and (ii) identify for Pellea prospective Referred Customers or Clients.

Merchants will use their best efforts to (i) promote and market Pellea, and (ii)

Deliver for Pellea Products and Services to Customers or Clients.

  1. Unauthorized and Prohibited Activities

A Partner shall not:

  1. Promote or advertise Pellea and/or Pellea Related Entities on a coupon, deal, or discount sites or GTP/Get Paid to Click or other incentivized sites, or display any offer code on a public-facing page or through the use of a “click to display” offer code;
  2. Use its Ref Link directly in any pay-per-click advertising;
  3. purchase search engine or other pay-per-click keywords (such as Google AdWords), trademarks or domain names that use the Pellea Trademarks and/or the names or trademarks of any Pellea Related Entities or any variations or misspellings thereof that may be deceptively or confusingly similar to the Pellea Trademarks or the names or trademarks of any Pellea Related Entity;
  4. Create or participate in any third-party networks or sub-Associate networks without the express written permission of Pellea;
  5. use or encourage any means of delivering fraudulent traffic, including but not limited to the use of bots or toolbar traffic, cookie stuffing, or use of false or misleading links;
  6. Use direct linking to any page on any Pellea website, without prior written permission from Pellea; or
  7. Mask its referral sites or use deceptive redirecting links.

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