Affiliate Program Agreement
Last Updated September 16, 2020
WHEREAS you, ("Referrer"), may refer a merchant (the "New Merchant") to Helcim for the purpose of the New Merchant obtaining payment processing services from Helcim;
AND WHEREAS Referrer would like Helcim to compensate Referrer for the referral of the New Merchant to Helcim upon the New Merchant processing transactions through Helcim (the "Affiliate Program");
AND WHEREAS Referrer and Helcim have an agreement, (the "Terms of Service") available at https://legal.helcim.com/us/terms-of-service/, which governs the use of all of Helcim's services and websites. In the event that this Agreement and the Terms of Service are in conflict, this Agreement shall prevail, but only to the extent necessary to resolve the conflict. Terms not otherwise defined in this Agreement have the definitions set out in the Terms of Service.IT IS HEREBY AGREED:
- This Agreement is not binding on Helcim until Helcim, in Helcim's sole discretion, has approved Referrer's application to participate in the Affiliate Program by notifying Referrer by email (at the email address provided during the Affiliate Program application process).
- Subject to the terms and conditions set out in Schedule "A" – Terms and Conditions, Helcim will pay to Referrer the corresponding referral fee (the "Referral Fee") set out in Schedule "B" – Referral Fees for each New Merchant referred to Helcim.
- This Agreement, which includes Schedule "A" – Terms and Conditions which is below and Schedule "B" – Referral Fees which is available to Referrer through the Affiliate Portal after Helcim has approved Referrer's Application, constitutes the entire understanding and agreement between Referrer and Helcim, and any and all prior agreements, understandings, representations and warranties relating to Helcim referral or affiliate programs are hereby terminated and cancelled in their entirety and are of no further force or effect.
SCHEDULE "A" TO AFFILIATE PROGRAM AGREEMENT
TERMS AND CONDITIONS
The following terms and conditions are intended to govern the Affiliate Program Agreement and all terms not otherwise defined herein have the meaning ascribed in the Agreement or the Terms of Service.
Means the area of the Helcim website where Referrer will be able to view reports and other information about Referrer's activities in respect of New Merchants and update Referrer's contact and banking information.
Means the Touch whereby a New Merchant is first made known to Helcim and marks the beginning of the Merchant Discovery process.
Means the process whereby a New Merchant interacts with Helcim, Referrer or others during the process of becoming a Qualified Active Merchant.
Qualified Active Merchant
A New Merchant who has successfully completed Helcim's merchant application and underwriting process and had received their first deposit from Helcim.
Means any Touch where the New Merchant is already known to Helcim, and the Merchant Discovery process is ongoing.
Means an interaction with a New Merchant by Helcim, Referrer or another party for the purpose of assisting the Merchant Discovery process. For Referrer, this is accomplished through the New Merchant's use of a URI that contains Referrer's unique identifier.
Status of Referrer
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 Referrer to do so, Referrer 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.
The Referral Fee shall be paid upon Helcim's approval of the New Merchant's application and the New Merchant becoming a Qualified Active Merchant. Only one Referral Fee will be paid to Referrer in respect of any Qualified Active Merchant. 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.
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.
The Referral Fee will be paid by mailed cheque to Referrer (at the address provided during the Affiliate Program application process), or by direct deposit to Referrer's bank account (at Helcim's option), in the currency indicated on Schedule "B" within 30 business days of the end of the month following a New Merchant becoming a Qualified Active Merchant.
There shall be no collusion between Referrer 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 Referrer or the New Merchant, the obligation to pay the Referral Fee shall be nullified and any payment provided to Referrer by Helcim pursuant to this Agreement shall be repaid and be deemed to constitute a valid debt owing from Referrer to Helcim until repaid in full. 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 Referrer's participation in the Affiliate Program or for any affect on the relationship between Referrer and the New Merchant. This section shall survive termination of this Agreement.
Referrer 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) Referrer's breach of any representation, warranty, obligation or covenant under this Agreement; (b) Referrer's gross negligence or wilful misconduct; (c) any warranty, condition, representation, indemnity or guarantee relating to the Services granted by Referrer to any New Merchant or any other third party; (d) Referrer's use of the Services; (e) Referrer's breach of any term of this Agreement or the Terms of Service; (f) any claim that Referrer's products or services infringes the intellectual property or other rights of a third party; (g) the performance, non-performance or improper performance of Referrer's products or services (h) Referrer's relationship with any New Merchant. This section shall survive termination of this Agreement.
For the purpose of this section, the term "Confidential Information" includes, but is not limited to, all reports and records accessible through the Affiliate Portal, all business and financial information, the content of this Agreement, marketing and strategic plans, equipment details, software programs, manuals, maps, customer 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.
Referrer shall keep all Confidential Information strictly confidential and shall take all necessary precautions against unauthorized disclosure of Confidential Information. Referrer shall not use or reproduce any Confidential Information in any manner. Referrer 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, Referrer covenants and agrees with Helcim that, save with the written consent of Helcim, Referrer will not, directly or indirectly, disclose, allow access to, transmit or transfer any Confidential Information to any person outside of Helcim, nor shall Referrer use the same for any purpose.
In the event Referrer is requested or required pursuant to any Court order, or other demand, to disclose any Confidential Information to a third party, Referrer 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.
Representations, Warranties and Covenants
Referrer represents and warrants to, and covenants with, Helcim that:
- Referrer shall at all times act in a competent and professional manner;
- Referrer 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 Referrer, the Services or any part thereof;
- Referrer has made no representations of any kind whatsoever to either the New Merchant or Helcim with respect to any of the Services provided by Helcim;
- Referrer shall not modify, amend or supplement any of Helcim's forms or marketing material;
- Referrer shall not make any representations, warranties, or guarantees on behalf of Helcim;
- Referrer shall not provide any services to the New Merchant on behalf of Helcim;
- Referrer has no exclusive rights with respect to the New Merchant;
- Referrer shall only engage a potential New Merchant using the tools provided in the Affiliate Portal;
- The New Merchant's application process is to be conducted exclusively between Helcim and the New Merchant at the sole discretion of Helcim; and
- The rights between Referrer and Helcim under this Agreement are non-exclusive, and either party is free to contract with other parties.
Term of Agreement and Termination
This Agreement shall be effective as of the date and time that Helcim approves Referrer'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 Referrer 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 Referrer any further Referral Fees and may withhold any other owed amounts. Helcim reserves the right to refuse referrals from Referrer at any point in time. Helcim also reserves the right to make changes to Schedule "B" – Referral Fees at any time and for any reason.
Referrer acknowledges and agrees that Helcim may amend this Agreement at any time by posting the amended Agreement on Helcim's website, available at https://legal.helcim.com/us/affiliate-program-agreement/ and such amended Agreement is effective as of the date of posting. If a significant change is made (as determined by Helcim in Helcim's sole discretion), Helcim will provide reasonable notice to Referrer. Referrer's continued participation in the Affiliate Program after the amended Agreement is posted to Helcim's website constitutes Referrer's agreement to, and acceptance of, the amended Agreement. If Referrer does not agree to any changes to the Agreement, Helcim may suspend payment of any Referral Fees, and Referrer must terminate the Agreement by providing notice to Helcim and discontinuing Referrer's participation in the Affiliate Program.
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 centre of Calgary.
Waiver by Helcim of a breach of any provision of this Agreement by Referrer shall not operate or be construed as a continuing waiver.
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.
Some jurisdictions may have rules or guidelines which govern endorsements, referrals or testimonials. As a participant in the Affiliate Program, and receiving compensation from Helcim, Referrer may be subject to such rules or guidelines. Referrer agrees to comply with any additional rules or guidelines that are applicable to Referrer in Referrer's jurisdiction(s).
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 Referrer. Referrer 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.
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.