These terms and conditions (collectively, the “Terms” or “Agreement”) set out the terms which govern the agreement between Octopusapp Inc. D/B/A Jobber (“Company”) and you, the undersigned (the “Referrer”) relating to the provision of marketing services by the Referrer to the Company. By sending a referral link to prospective customers (“Prospects”) under Company’s Customer Referral Program, Referrer hereby agrees to all Terms set out herein.
- Purpose. This Agreement allows Referrer to market and promote Company’s Jobber software and related services (the “Service”) to Prospects under Company’s Customer Referral Program.
- Eligibility. In order to participate in the Customer Referral Program, Referrers must be (a) at least 18 years old; (b) not an employee of Jobber; and (c) not prohibited from participating in the Customer Referral Program by any applicable law or contractual agreement with a third party.
- Prospect Engagement. Company reserves the right to (a) enter into any agreements with Prospects on terms and conditions acceptable to Company, or to not enter into any agreements at all; (b) set the terms for Prospects’ engagement with the Company products and services including any remuneration for such participation, and (c) enter into similar commission arrangements with third parties.
- Referral Incentive. In consideration of the Referrer’s ongoing compliance with the terms of this Agreement, the Company shall pay the Referrer payments in kind for each new Prospect (“Commission”) that enters into a subscription agreement with Company. Company shall determine, in its sole discretion, whether the Prospect referred by Referrer is eligible for a Commission and reserves the right to reject any Prospect for any reason. Company reserves the right to change or cancel the Commission at any time. Payment of the Commission will be made after Company receives its first payment for the Service from the applicable Prospect. The current Commission is as follows:
- For Prospects who enter into a subscription agreement with Company, Jobber credit (“Credit”) equivalent to the monthly value of the Prospect’s current plan.
- For Referrers who are account owner users of the Service (“Owner Referrers“), Credit for any Prospect successfully referred by the Referrer equivalent to the monthly value of the Referrer’s current plan.
- For Referrers who are employee users of the Service (“Employee Referrers“), digital gift cards (collectively, “Digital Gift Cards”) as described on our Customer Referral Program Help Centre webpage, available here: https://help.getjobber.com/hc/en-us/articles/115009616267-Referrals
Credit is added to a Prospect’s and an Owner Referrer’s respective accounts after Company receives its first payment for the Service from the applicable Prospect. Credit would be applied to the Prospect’s and Owner Referrer’s next bill, which would be up to one month later for month-to-month subscriptions and up to one year later for annual subscriptions.
Prospect invites must be sent from within the applicable Referrer’s Jobber account in order for the Referrer to be eligible for a Commission. Payment of the Commission through Digital Gift Cards will be made electronically. Company will provide an Employee Referrer with a link to grant access to the Digital Gift Card after Company receives (a) its first payment for the Service from the applicable Prospect for annual subscriptions, and (b) its second payment for the Service from the applicable Prospect for month-to-month subscriptions. If payment of the Digital Gift Card is not accepted by the Employee Referrer within 90 days of sending the link, Company reserves the right to cancel such Commission.
- Taxes. The Commission is inclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees or charges imposed by a government authority (“Taxes”). Referrer agrees and acknowledges that it is responsible for the report and remitting of all applicable Taxes that arise from the Commission. Notwithstanding the foregoing, Company may withhold from the Commission any amounts required to be withheld by the appropriate government authority, provided that Company remits such amounts to the appropriate government authority on behalf of the Referrer and supplies Referrer with evidence of such payment.
- Trademark Usage. The trademarks, logos, service marks and trade names under which Company markets the Service (the “Marks”) shall remain the exclusive property of Company. This Agreement gives Referrer no license regarding the use of such Marks, except that during the term of this Agreement Company grants to Referrer a restricted, non-transferable, non-exclusive, non-sublicensable and revocable license to use the Marks to market and promote Company’s Service, business and initiatives to Prospects. Referrer agrees not to use the Marks in any way that may be determined objectionable by Company or confusing to any third parties regarding the nature of the relationship between Company and Referrer. Company reserves the right to approve particular uses of the the Marks and/or revoke the license granted herein at any time.
- Confidential Information. All documentation and information, including without limitation, design and presentation documents, trade secrets, customer lists, techniques, processes and technical and marketing information which is supplied by one party (“Disclosing Party”) to the other (“Receiving Party”) in connection with this Agreement (“Confidential Information”) is hereby deemed to be proprietary to Disclosing Party and shall be held in trust and confidence for, and on behalf of, Disclosing Party, by Receiving Party and its employees, agents, distributors and contractors and shall not be disclosed by Receiving Party or used by Receiving Party for any purpose other than as strictly permitted under this Agreement, without Disclosing Party’s prior written consent. Receiving Party shall not copy or disclose all, or any part of, the Confidential Information except in accordance with the terms and conditions of this Agreement. Receiving Party shall be directly liable for the acts or omissions of its employees, agents, distributors and contractors with respect to such confidentiality obligations. Receiving Party agrees to protect the Confidential Information of the Disclosing Party with at least the same degree of care Receiving Party uses to protect its own trade secrets and proprietary information, which in any event shall be no less than a reasonable degree of care. The confidentiality obligations of the parties under this Agreement shall not apply to Confidential Information which: (a) at the time of disclosure is within the public domain, other than through a breach of this Agreement; (b) after disclosure becomes readily and lawfully available to the public, other than through a breach of this Agreement; (c) Receiving Party can establish, by documented and competent evidence, was in its possession prior to the date of disclosure of such Confidential Information by Disclosing Party; or (d) is approved in advance in writing by Disclosing Party for disclosure.
- Warranties. Referrer represents, warrants and covenants that: (a) it meets the eligibility criteria set out in Section 2; (b) it shall not make, and Company shall not be bound by, any offer, acceptance, representation, warranty, or affirmation of fact whatsoever to any Prospect or third party respecting Company or the Company products or services, including the performance thereof; (c) it has not paid, and is not aware of any payments, to any third parties with a view to securing an order, contract and/or agreement contemplated hereunder or affecting a purchaser’s decision to approach Company for Company products or services; (d) it will use reasonable efforts to ensure that any Prospect referred to Company is a legitimate business; and (e) it shall comply with all applicable laws while participating in the Customer Referral Program.
- Indemnity. Referrer shall indemnify, defend and hold Company harmless against any and all third party proceedings, causes of action, suits, damages, losses, liability, costs and expenses (including reasonable legal fees) whatsoever that may arise, either directly or indirectly, in connection with any breach of the foregoing representations and warranties in Section 8, any misuse, unauthorized use or violation of the Marks and/or Referrer’s performance hereunder.
- Limitation of Liability. IN NO EVENT SHALL COMPANY BE LIABLE TO REFERRER FOR DIRECT DAMAGES IN EXCESS OF THE TOTAL COMMISSION PAID TO REFERRER BY COMPANY DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE DAMAGES WERE OCCURRED; AND COMPANY SHALL NOT BE LIABLE FOR ANY PUNITIVE, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS), WHETHER BASED IN CONTRACT OR IN TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATING TO THIS AGREEMENT.
- Term and Termination. This Agreement begins on the date that Referrer enrolls in the Customer Referral Program and continues until terminated by Company or Referrer. Company may terminate this Agreement at any time, for any reason or for no reason, without notice to Referrer. On termination or expiration of this Agreement, all licenses granted to Referrer hereunder shall terminate and each party shall return to the other as soon as possible all copies of the other party’s property and materials in its possession or control, including all copies of the other party’s Confidential Information. Where this Agreement expires or terminates as provided for herein, no Commission shall be payable with respect to any Prospect for which Company has not signed an agreement for the applicable Company Service prior to the earlier of (a) the effective date of the expiration or termination of this Agreement and/or (b) the date of notice of termination.
- Expectations. Referrer acknowledges and agrees that it has no expectation that its business relationship with Company will continue for any minimum period or that Referrer shall obtain any anticipated amount of profits by virtue of this Agreement. Company shall not be liable, by reason of any termination of this Agreement, for compensation, reimbursement or damages on account of the loss of prospective profits or on account of expenditures or commitments whatsoever in connection with the business or goodwill of Referrer. Except as provided in this paragraph, termination hereunder shall be without prejudice to any other right or remedy to which either party may be entitled hereunder, at law, or in equity.
- Status. Referrer is not an agent or employee of Company nor is it authorized or permitted to make any representations or warranties on behalf of Company. During the term of this Agreement, should the term “partnership,” “partner” or “Referrer” be used to describe the parties’ relationship under this Agreement, the parties agree to make it clear to third parties that these terms refer only to the spirit of cooperation between the parties and do not describe or create the legal status of partners or joint venturers.
- Severability & Waiver. If any provision of this Agreement is held invalid by any law, rule, order or regulation of any government, or by the final determination of a court of competent jurisdiction, such invalidity will not affect the enforceability of any other provisions not held to be invalid. The provisions of this Agreement shall be interpreted to carry out the intent of the parties to the fullest extent permitted by law. Any delay by either party to exercise any right or remedy under this Agreement will not be construed to be a waiver of that or any other right or remedy hereunder.
- Governing Law. This Agreement shall be governed by the laws of the Province of Alberta, Canada, without giving effect to the principles of conflicts of law. Any disputes shall be resolved exclusively by the courts in Edmonton, Alberta.
- Survival. The confidentiality requirements, ownership and proprietary rights, exclusions of warranties, indemnification obligations, limitations of liability and general provisions set forth in this Agreement shall survive the expiration or termination of this Agreement.
- Notices. All notices of any kind shall be in writing and may be served personally or by prepaid registered or certified mail or by private mail service (for example, Federal Express or DHL), or by facsimile with proof of receipt to the addresses noted below.
- Entire Agreement. This Agreement constitutes the entire agreement of the parties as to the subject matter hereof and supersedes any and all prior oral or written memoranda, understandings and agreements as to such subject matter. Any conflict between the body of this Agreement and its schedules shall be resolved in favour of the schedules. This Agreement may be amended at any time by Company without notice to Referrer.
10130 103 St NW #300,
Edmonton, AB T5J 3N9