Affiliate Program Agreement

Last Updated March 31, 2023

Helcim's Affiliate Program is meant to provide fair compensation for promoting its payment services and to compensate registered participants that refer merchants to Helcim services (the "Affiliate Program") in accordance with the following terms.

By participating in any Affiliate Program activities, signing or clicking on “I agree” (or a similar box or button), or when you sign up to use or participate in the Affiliate Program, you agree to be bound by the the terms of the following Affiliate Program Agreement, including Part A and Part B described below (the “Agreement”). The Agreement is between you, as Partner (as defined below) and Helcim Inc. (“Helcim”). Each of Partner and Helcim is a “Party”, and together the “Parties”. You can review the current version of the Agreement at any time at: https://legal.helcim.com/ca/affiliate-partner-program-agreement/. Helcim reserves the right to update and change the Agreement by posting updates and changes here: https://legal.helcim.com/ca/affiliate-partner-program-agreement/. If a significant change is made, we will provide reasonable notice by email, or posting a notice on our website or blog. 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 and all terms and documents incorporated by reference.

This Agreement addresses different types of Affiliate Program activities. Part A applies to all Partners. Part B is provided separately and applies to the Partners that execute a copy of those supplemental terms. In the event of any conflict or inconsistency between Part A and Part B of the Agreement, the provisions of Part B will govern to the extent necessary to resolve any such conflict or inconsistency.

Capitalized terms not otherwise defined in this Agreement shall have the meaning ascribed to them in Helcim's Terms of Service.

Part A - Terms Applicable to All Partners

Definitions

“Partner” or “you” means an individual or entity that has agreed to the terms of this Agreement and participates in Helcim's Affiliate Program.

“Affiliate Reports” means the reports provided through which Partner will be able to access information about Partner's activities in respect of their referrals.
Status of Partner

This Agreement will not be binding on Helcim until Helcim, in Helcim's sole discretion, has approved Partner's application to participate in the Affiliate Program by notifying Partner by email (at the email address provided during the Affiliate Program application process).

Nothing in this Agreement shall be construed to create or imply a joint venture, partnership, principal, agency, consultancy, contractor or employment relationship, or otherwise define the parties as having any relationship among them beyond the terms of this Agreement. Unless Helcim authorizes Partner to do so, Partner shall neither act nor purport to be acting as the legal agent of Helcim, nor enter into any agreement on behalf of Helcim or otherwise bind, nor purport to bind Helcim or cause Helcim to incur liability in any manner whatsoever.
Referral Fee

Subject to the terms and conditions set out herein, Helcim will pay to Partner the corresponding referral fee (the "Referral Fee") set out in Part B. A “New Merchant” means any unique Merchant that: (a) has registered for a Helcim account and who has successfully completed the steps that entitles Partner to pay out(s) in accordance with Part B; and (b) was introduced by a Partner that actively promoted Helcim.

In the event that the New Merchant has previously had an account or other registration with Helcim, the New Merchant's application is declined, the New Merchant does not process any valid transactions, the New Merchant is in breach of any agreement with Helcim, or the New Merchant fails to comply with Helcim's Terms of Service or Acceptable Use Policy, no Referral Fee will be paid. Any payment provided to Partner by Helcim pursuant to this Agreement, which is determined to be unearned in accordance with this section shall be repaid and be deemed to constitute a valid debt owing from Partner to Helcim until repaid in full. Any such debt will become payable as soon as Helcim notifies the Partner. This section shall survive termination of this Agreement.

Notwithstanding anything to the contrary in this Agreement, Helcim is not required to pay any Referral Fee that relates to a fraudulent account or fraudulent sales.
Payment

Where Partner introduces Helcim to a New Merchant and where the conditions of this Agreement (including Parts A and B) are fulfilled, the Referral Fee will be paid by mailed cheque to Partner (at the address provided during the Affiliate Program application process), or by direct deposit to Partner's bank account (at Helcim's option), in the currency and in the time indicated in Part B.
Collusion

There shall be no collusion between Partner and the New Merchant for the purpose of trying to exploit the Affiliate Program, or any payment, from Helcim. If Helcim, in its sole discretion, believes that any collusion occurred on the part of either Partner or the New Merchant, the obligation to pay the Referral Fee shall be nullified and any payment provided to Partner by Helcim pursuant to this Agreement shall be repaid and be deemed to constitute a valid debt owing from Partner to Helcim until repaid in full. Any such debt will become payable as soon as Helcim notifies the Partner. This section shall survive termination of this Agreement.
Limitation of Liability

You acknowledge and agree that Helcim, and any officers, directors, employees, and agents of Helcim, and Helcim's vendors, resellers, distributors, and other contractors, shall not be liable for any consequential, aggravated, punitive, special, exemplary, incidental, direct or indirect damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses, under any theory or cause of action whether in tort, contract or otherwise, resulting in any way from Partner's participation in the Affiliate Program or for any affect on the relationship between Partner and the New Merchant. This section shall survive termination of this Agreement.
Indemnification

Partner agrees to indemnify, defend and hold harmless Helcim, and the directors, officers, employees, contractors and agents thereof (collectively, the "Indemnified Parties"), with respect to any claim, demand, cause of action, debt or liability, including reasonable lawyer's fees (collectively, "Claims"), to the extent that such Claims are based on or arise 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 the Services granted by Partner to any New Merchant or any other third party; (d) Partner's use of the Services; (e) Partner's breach of any term of this Agreement or the Terms of Service; (f) any claim that Partner's products or services infringes the intellectual property or other rights of a third party; (g) the performance, non-performance or improper performance of Partner's products or services (h) Partner's relationship with any New Merchant. This section shall survive termination of this Agreement.
Confidentiality

For the purpose of this section, the term "Confidential Information" includes, but is not limited to, all reports and records accessible through the Affiliate Reports, all business and financial information, the content of this Agreement, marketing and strategic plans, equipment details, software programs, manuals, maps, customer, merchant, and client lists, employee information, supplier information, analyses, reports, technologies, processes and operations, compilations, forecasts, studies, lists, summaries, notes, designs, formulae, innovations, techniques, data, patents and trade secrets of Helcim, as well as the present and contemplated products, techniques and other services evolved or to be used by Helcim.

Partner shall keep all Confidential Information strictly confidential and shall take all necessary precautions against unauthorized disclosure of Confidential Information. Partner shall not use or reproduce any Confidential Information in any manner. Partner hereby agrees and acknowledges that the disclosure of any Confidential Information to competitors of Helcim or to the general public would cause irreparable harm to Helcim. Accordingly, Partner covenants and agrees with Helcim that, save with the written consent of Helcim, Partner will not, directly or indirectly, disclose, allow access to, transmit or transfer any Confidential Information to any person outside of Helcim, nor shall Partner use the same for any purpose.

In the event Partner is requested or required pursuant to any Court order, or other demand, to disclose any Confidential Information to a third party, Partner agrees that they will provide Helcim with prompt notice of such request or requirement so that Helcim, at its option, may seek an appropriate protective order or other remedy to ensure that the Confidential Information will be protected. This section shall survive termination of this Agreement.
Partner Responsibilities
1. Partner shall at all times act in a competent and professional manner;
2. A Partner will not (i) engage in any marketing methods with respect to Helcim, including but not limited to online and offline methods such as fax, broadcast, telemarketing, SMS/text message, email communications, social media or video platforms; (ii) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to Helcim; (iii) make any false, misleading or disparaging representations or statements with respect to Helcim; (iv) prior to the termination of this Agreement in accordance with its terms, target communications to Merchants solely on the basis of the intended recipient being a Merchant and with the intention of migrating Merchants away from Helcim; (v) copy, resemble or mirror the look and feel of Helcim’s websites, Helcim trademarks or services or otherwise misrepresent Partner’s affiliation with Helcim; or (vi) engage in any other practices which may adversely affect the credibility or reputation of Helcim, including but not limited to 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 Helcim or the Partner’s services, (b) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, or any illegal or objectionable activities, or (c) violates any intellectual property or other proprietary rights of any third party; or (d) violates Helcim’s Acceptable Use Policy;
3. Partner will not purchase search engine or other pay-per-click keywords (such as Google Ads), trademarks or domain names that use the Helcim trademarks or any variations or misspellings thereof that may be deceptively or confusingly similar to Helcim trademarks and Helcim branded keywords;
4. Partner shall observe and comply with all applicable laws, ordinances, codes and regulations of governmental agencies, including federal, provincial, state, municipal and local governing bodies having jurisdiction over Partner, the Services or any part thereof;
5. Partner shall not modify, amend or supplement any of Helcim's forms or marketing material;
6. Partner shall not make any representations, warranties, or guarantees on behalf of Helcim;
7. Partner shall not provide any services to the New Merchant on behalf of Helcim;
8. Partner has no exclusive rights with respect to the New Merchant;
9. Partner shall only engage a potential New Merchant using the tools provided by Helcim;
10. The New Merchant's application process is to be conducted exclusively between Helcim and the New Merchant at the sole discretion of Helcim; and
11. The rights between Partner and Helcim under this Agreement are non-exclusive, and either party is free to contract with other parties.
FTC Guidelines

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 Affiliate Program with Helcim, Partner receives compensation for the New Merchant referrals made to Helcim. This may establish a “material connection” according to FTC rules, which creates an obligation for Partner to provide disclosure to consumers.

Full compliance with these guidelines requires, among other things, that (a) Partner clearly and conspicuously disclose that Partner is being compensated for referring New Merchants to Helcim, and (b) Partner not engage in misleading or deceptive advertising. For further information Partner should refer to the statement released by the FTC regarding these guidelines.

Some jurisdictions may have additional rules or guidelines which govern endorsements, referrals or testimonials. As a participant in the Affiliate Program, and receiving compensation from Helcim, Partner may be subject to such rules or guidelines. Partner agrees to comply with any additional rules or guidelines that are applicable to Partner in Partner's jurisdiction(s).
Term of Agreement and Termination

This Agreement shall be effective as of the date and time that Helcim approves Partner's application to participate in the Affiliate Program. Helcim reserves the right to terminate this Agreement at any time and for any reason. If Helcim believes there has been collusion between Partner and the New Merchant, or if any other breach of this Agreement or the Terms of Service has occurred, Helcim shall not be required to pay Partner any further Referral Fees and may withhold any other owed amounts. Helcim reserves the right to refuse referrals from Partner at any point in time.
Your continued participation in the Affiliate Program after we publish or send a notice about our changes to the terms of this Agreement means that you are consenting to the updated terms. If you do not agree to any changes to the Agreement, Helcim may suspend payment of any Referral Fees, and you must terminate the Agreement by providing notice to Helcim and discontinuing your participation in the Affiliate Program.
Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta, and the laws of Canada applicable therein without regard to conflicts of laws principles. The parties agree to irrevocably attorn to the exclusive jurisdiction of the courts in the Province of Alberta in the judicial center of Calgary.
Waiver

Waiver by Helcim of a breach of any provision of this Agreement by Partner shall not operate or be construed as a continuing waiver.
Survival

Any provision of this Agreement which expressly states that it is to continue in effect after termination or expiration of this Agreement, or which by its nature would survive the termination or expiration of this Agreement, shall do so.
Assignment

All the terms and provisions of this Agreement shall be binding upon and enure to the benefit of the parties to this Agreement and their respective heirs, successors, permitted assigns and legal representatives. Helcim shall be permitted to assign this Agreement without notice or consent from Partner. Partner has no right to assign or otherwise transfer this Agreement, or any rights or obligations hereunder, to any third party without Helcim's prior written consent, to be provided or withheld in Helcim's sole discretion.
Severability

If any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, any such provision shall be severable from this Agreement, in which event this Agreement shall be construed as if such provision had never been contained herein and the remainder of this Agreement shall nevertheless remain in full force and effect.
Entire Agreement

This Agreement and the documents it links to and references are the entire agreement governing the relationship between Helcim and Partner under the Affiliate Program, and it replaces any previous agreements.