THE LEGAL AGREEMENT BETWEEN YOU (THE “DISTILITY PIONEER”) AND DISTILITY (DEFINED BELOW) SET OUT BELOW GOVERNS YOUR PARTICIPATION IN THE DISTILITY PIONEER PROGRAM. TO AGREE TO THESE TERMS, CLICK “AGREE.” IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK “AGREE”.For value received, and in consideration of the mutual covenants contained herein, this Agreement (“Agreement”) is entered by 6464076 CANADA INC., OPERATING AS “DISTILITY”, a Federal corporation incorporated pursuant to the Canada Business Corporations Act, having its principal place of business at MaRS Incubator, MaRS Centre, Suite 300, 101 College Street, Toronto, Ontario M5G 1L7 (“Distility”) and the Distility Pioneer (each of Distility and the Distility Pioneer a “party” and together the “parties”). With respect to the Distility Pioneer’s participation in Distility’s customer referral program (the “Distility Pioneer Program”). Distility and the Distility Pioneer agree as follows:1. DEFINITIONS
1.1 For the purposes of this Agreement, the following terms shall have the respective meanings assigned to them below:
(a) “Business Day” shall mean any day, other than a Saturday, Sunday or day upon which Distility’s main corporate bank account is maintained is not open for business;
(b) “Distility 1day1brand” means a brand strategy workshop and brand strategy services;
(c) “Distility Address” means: 6464076 CANADA INC., OPERATING AS “DISTILITY”, MaRS Incubator South Tower, Suite 312, 101 College Street, Toronto, ON M5G 1L7, Email: DistilityPioneer@distility.com / Fax: 416.413.7777
(d) “Effective Date” means the date of acceptance of the Distility Pioneer into the Distility Pioneer Program by providing the Distility Pioneer with a Distility Pioneer Username.
(e) “Person” includes an individual, corporation, partnership, joint-venture, trust, unincorporated organization, the Crown or any agency or instrumentality thereof or any other judicial entity;
(f) “Distility Pioneer Address” means the address provided by the Distility Pioneer as part of the online Distility Pioneer Program registration process.
(g) “Product” shall mean the products offered by Distility including Distility 1day1brand and as described on Distility’s website, with such additions or deletions as Distility may advise from time to time in writing or by publication on its website;
2. APPOINTMENT
2.1 Subject to the terms of this Agreement, Distility hereby appoints the Distility Pioneer and the Distility Pioneer hereby accepts the appointment by Distility as a non-exclusive Distility Pioneer to refer customers to Distility and promote the Products.
2.2 Distility reserves the right to have an unlimited number of Distility Pioneers, partners and resellers to sell its products and services, and Distility shall be under no obligation to pay the Distility Pioneer a referral fee or commission or any remuneration whatever in respect of any such business.
3. Distility Pioneer Activities, lead registration and remuneration
3.1 Subject to the terms and conditions hereof, the Distility Pioneer may promote and market the Products and refer customers to Distility.
3.2 Distility will provide the Distility Pioneer with Distility Pioneer guidelines for advertising and promotional material. The Distility Pioneer will comply with the Distility Pioneer guidelines for all advertising and promotional material. The Distility Pioneer shall not use and shall cease using any advertising, marketing and promotional material which is objected to by Distility.
3.3 As compensation for marketing and referring customers to Distility, Distility agrees to pay to the Distility Pioneer a fixed fee commission (the “Referral Fee”) for each referral of a Person which results in the sale of a Distility 1day1brand (the “Sale”) within ten Business Days of receipt by Distility of payment from the Lead (as defined below) in connection with the Sale. For greater certainty, to qualify for the Referral Fee all of the following requirements must be met:
(a) the Person referred to Distility by the Distility Pioneer (the “Lead”) must be registered by way of the Distility lead registration system as set out on Schedule “A” (the “Lead Registration System”) and which Lead Registration System may be amended from time to time by Distility, in its sole discretion, on notice to the Distility Pioneer and effective on the date specified by Distility in the notice;
(b) the Lead must enter into an agreement with Distility to purchase a Distility 1day1brand Product within 90 days of registration in the Lead Registration System (“Purchase Agreement”);
(c) Distility has received payment from the Lead in respect of the Lead’s purchase of a Distility 1day1brand.
3.4 The Referral Fee will be as follows:
(a) $500 for a Lead registered in the Lead Registration which results in a Sale of a Small Deployment Distility 1day1brand;
(b) $1000 for a Lead registered in the Lead Registration which results in a Sale of a Standard Deployment Distility 1day1brand; or
(c) $1500 for a Lead registered in the Lead Registration which results in a Sale of a Large or Extra Large Deployment Distility 1day1brand.
(d) The Referral Fee may be amended from time to time by Distility, in its sole discretion, on notice to the Distility Pioneer and effective on the date specified by Distility in the notice.
3.5 Distility may pay the Referral Fee by cheque sent by regular mail to the Distility Pioneer at the address set out for notices in this Agreement or by PayPal to the PayPal account specified in writing by the Distility Pioneer.
3.6 All expenses incurred by the Distility Pioneer in connection with the implementation of this Agreement shall be for the account of the Distility Pioneer without reimbursement from Distility.
3.7 Except for the Referral Fee, the Distility Pioneer has no entitlement for remuneration or compensation under this Agreement.
3.8 Distility reserves the right in its absolute discretion and without incurring any responsibility whatever to the Distility Pioneer to discontinue, terminate or limit the availability or production of any or all of the Products.
4. PATENTS AND TRADEMARKS
4.1 Distility hereby grants to Distility Pioneer the non- exclusive right and licence during the term of this Agreement to use and reproduce Distility trademarks, trade names and service marks (the “Licensed Property”) on advertising and promotional material in connection with the promotion of the Products.
4.2 Distility retains all right, title and interest in and to the Licensed Property and to all trade names, service marks, trade-marks, patents, copyrights, industrial designs and other intellectual and industrial property rights for which Distility or its affiliates is the lawful owner or licensee. The Distility Pioneer agrees not to use the Licensed Property and such trade names, service marks, trade-marks, patents, copyrights, industrial designs and other intellectual and industrial property rights except as provided herein.
4.3 The Distility Pioneer’s right to use the Licensed Property shall cease upon termination of this Agreement.
4.4 The Distility Pioneer shall give Distility prompt written notice of any unlicensed use or of conflicting activities by third parties of the Licensed Property of which the Distility Pioneer becomes aware.
5. ENTIRE AGREEMENT
5.1 This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, undertakings, negotiations and discussions, whether oral or written of the parties and there are no warranties, representations or other agreements between the parties in connection with the subject matter hereof except as specifically set forth herein or therein. No amendment to this agreement shall be binding unless executed in writing by the parties to be bound thereby.
6. RELATIONSHIP OF PARTIES
6.1 This Agreement does not constitute the Distility Pioneer as an employee, agent or legal representative of Distility. The Distility Pioneer shall not hold itself out or permit any person within its control or employ to hold himself out as being any of the foregoing. The Distility Pioneer shall conduct its business as an independent contractor or enterprise and under the Distility Pioneer’s name only.
7. ASSIGNMENT OF RIGHTS AND PRIVILEGES
7.1 The rights and privileges granted herein are personal in character and cannot be assigned or transferred by the Distility Pioneer without the consent in writing of Distility. Distility may at any time assign its rights and obligations.
7.2 The Distility Pioneer shall not appoint any third party as its “Sub-Distility Pioneer” to refer customers or promote the Products without prior written approval by Distility.
8. Non-Competition with Distility 1day1brand
8.1 In the event that the Distility Pioneer and/or the Distility Pioneer’s principals, employees or contractors attend three or more Distility 1day1brand workshops during the term of this Agreement, the Distility Pioneer agrees that the Distility Pioneer shall not, either during the term of this Agreement or for a period of 1 year thereafter, directly or indirectly, in any manner whatsoever including, without limitation, either individually, or in partnership, jointly or in conjunction with any other Person, or as employee, principal, agent, director or shareholder, offer or sell products or services which are the same as or substantially similar to or which competes or will compete with Distility 1day1brand. This provision survives termination of the Agreement.
9. INDEMNITY
9.1 The Distility Pioneer assumes and agrees to indemnify, defend and hold Distility harmless from and against any and all claims, demands, causes of action, liabilities and obligations (including reasonable legal fees and costs) arising out of or accruing from any non-compliance by the Distility Pioneer of any covenants, agreements or undertakings of the Distility Pioneer contained in or made pursuant to this Agreement.
10. TERM, TERMINATION AND EFFECT OF TERMINATION OR EXPIRATION
10.1 This Agreement shall continue in full force and effect for five years from the date of its execution.
10.2 Either party shall have the right to cancel this Agreement upon written notice to the other party and the termination shall have immediate effect.
10.3 Neither party shall be liable to the other upon termination for any damages in respect of anticipated profits or any indirect, special, consequential or incidental damages, excepting only (i) the obligation of Distility to pay any Referral Fee which has accrued due or will accrue due in respect of Leads registered pursuant to the Lead Registration System before the Agreement is terminated and (ii) any breach of the provisions of this Agreement.
10.4 The termination or expiration of this Agreement shall not operate as a cancellation of any outstanding Purchase Agreements and Distility shall be responsible for payment of any Referral Fees, provided the requirements of section 3 are satisfied, in respect of a Lead or Leads (if any) registered pursuant to the Lead Registration System before the Agreement is terminated.
10.5 In the event of termination or expiration of this Agreement, the Distility Pioneer shall have no further entitlement to referral fees for Leads registered pursuant to the Lead Registration System after the Agreement is terminated.
11. GOVERNING LAW
This Agreement shall be governed by and construed under the laws of the Province of Ontario, Canada. Each Party hereto irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and consents to the jurisdiction of the courts of the Province of Ontario as applicable. The Parties further hereby waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Agreement.
12. SEVERABILITY
12.1 Any provision of this Agreement that is deemed to be void or unenforceable, in whole or in part, shall not be deemed to affect or impair the validity of any other provision of this Agreement, and each and every paragraph, sub-paragraph and provision of this Agreement is hereby declared and agreed to be separable from each and every other paragraph, sub-paragraph or provision hereof, and to constitute separate and distinct covenants.
13. NOTICES
13.1 All notices, demands, requests, consents and approvals which may or are required to be given or made pursuant to any provisions of this Agreement shall be given or made in writing and shall be served personally, mailed by regular mail or prepaid registered mail, or sent by facsimile or email transmission to the Distility Address, or the Pioneer Address or to such other address as the parties may from time to time advise the other parties hereto by notice in writing. The date of receipt of any such notice, demand or request shall be deemed to be (i) the date of delivery of such notice, demand or request if served personally, (ii) the fourth Business Day following the date of mailing if sent by mail, or (iii) the time of transmission if sent by facsimile or email transmission.
13.2 Any party hereto may from time to time change its address for notice by notice to the other party in the manner set out in section 13.1.
14. GOVERNING LANGUAGE
14.1 The parties hereto confirm that they have requested that this Agreement and all related documents be drafted in English. Les parties ont exigé que le présent contrat et tous les documents connexes soient rédigés en anglais.
SCHEDULE “A”
Lead Registration System
1. Upon acceptance in the Distility Pioneer program, the Distility Pioneer will be assigned a Pioneer Username.
2. There are two main ways that a Distility Pioneer may register a Lead: (i) Hot Lead Registration and (ii) Lead Self-Registration.
a. Hot Lead Registration
i. The Distility Pioneer initiates registration of its Lead by submitting the registration form at http://www.distility.com/leads/”;
ii. The Distility Pioneer may also elect to fill out a Distility “Are You Ready” form with the lead too or have the Lead fill out a Distility “Are You Ready” form, but it is required that Lead also be registered by the Distility Pioneer at http://www.distility.com/leads/; and
iii. The Distility Pioneer refers the Lead to Distility’s website.
b. Lead Self-Registration
i. For Distility Pioneers engaging in more promotional activities, Distility will provide the Pioneer Partner with a unique URL that the Distility Pioneer can promote. The URL is trackable so we know when a Distility “Are You Ready” form (filled out on distility.com) originated from them;
ii. The Lead initiates registration of themselves as a Lead when the Lead fills out a Distility “Are You Ready” form or fills out a form to download brandscammed or other specific content (filled out on distility.com) from the trackable URL associated with the Distility Pioneer.
3. Within 2 Business Days of the initiation of a Lead registration by either the Hot Lead Registration or the Lead Self-Registration, Distility will notify the Distility Pioneer whether (i) the Lead has been registered as the Distility Pioneer’s Lead or (ii) the Lead has not been registered as the Distility Pioneer’s Lead as a result of a prior registration by another Distility Pioneer, a Distility partner, a registration by Distility in the Distility lead registration system or if Distility determines that a Lead or Leads are not bona fide Leads.
4. If the Distility Pioneer disputes the non-registration of any of the Distility Pioneer Leads, then the Distility Pioneer may notify Distility of this dispute by sending an email to DistilityPioneer@distility.com. Distility reserves the right to make a determination of whether a Distility Pioneer Lead or Leads will be registered or not registered in the Distility Lead Registration system, in its sole and absolute discretion.
5. Once registered, a Distility Pioneer Lead Registration remains in effect for 90 days. If no Purchase Agreement has been completed in 90 days, then that Distility Pioneer Lead Registration expires. If Distility determines that a registered Lead or Leads are not bona fide Leads, then Distility reserves the right to cancel the Lead or Leads in the Distility Lead Registration system, and this determination may be made in Distility’s sole and absolute discretion.
6. If the Distility Partner has suggestions for improvement of the Distility Pioneer Registration system, these suggestions can be sent to Distility at DistilityPioneer@distility.com.
7. Distility reserves the right to make changes to the Distility Lead Registration system, in its sole and absolute discretion, upon notice to the Distility Pioneer and with effect either immediately or on the date specified in the notice.