Distance’ Affiliate Referral Terms

1. REFERRAL AGREEMENT

   1.1 Acceptance. By entering into this Agreement and participating in the Distance Affiliate Referral Program, Affiliate may, from time to time, refer new prospective customers (the “New Customers”) to Company. Company will pay Affiliate a Referral Fee as set out in Section 1.2 for each Successful Referral. A “Successful Referral” occurs where a New Customer signs up and pays for Distance directly using Affiliate’s dedicated affiliate link provided by Company. Further, for a referral to be deemed a “Successful Referral” the New Customer must also not (a) be a person/entity that has already contracted with the Company in the past or (b) already been referred as a prospective customer to Company by a third party.

   1.2 Referral Fee. Company shall pay Affiliate the Referral Fee for each Successful Referral within 30 days of the end of a quarter for the prior quarter. For instance, for a Referral that signs up on January 1st, the first Referral Fee will be paid out no later than May 1st for the periods January to March inclusive. No Referral Fee will be due and payable to Affiliate in the event the New Customer’s subscription is cancelled or otherwise terminated prior to collecting any payments. Deductions from any of Affiliate’s accrued Referral Fee will be made by Company or, if already paid, Company will have the right to charge back to Affiliate’s commission account (i) the amount of any refund to, or credit to the account of, any New Customer because of rejection or return of Products and Services or payment therefor by the New Customer due to a fault of Affiliate; (ii) the pro rata amount of commissions already paid or credited when final settlement is made with a New Customer on less than full payment basis, or when an account is charged off in whole or in part by Company.

   1.3 Payment. Payments in the Distance Affiliate Program may be handled by a third-party payment provider (the “Payment Provider”). When indicated by Distance, in order to receive payments under this Agreement, Affiliate must create and maintain an account with the Payment Provider using the Payment Provider’s online or app-based dashboard (“Payment Provider Platform”) and accept the Payment Provider’s terms of service. Affiliate acknowledges and agrees that Company is not part of the agreement between Affiliate and Payment Provider and Company declines any and all liability in that regard. Affiliate must keep all information updated and complete within the Payment Provider Platform to receive Referral Fee payments. Payments returned to the Company by the Payment Provider due to incorrect payment email addresses or other incorrect information will not be returned to Affiliate. The Payment Provider Platform may reflect payment history to Affiliate, and the parties agree that: (a) the data shown in the Payment Provider Platform will govern payments to be made, subject to Company’s right to correct errors based on its own records and (b) records and payments will be deemed complete, incontestable, and final twelve (12) months after the applicable Successful Referral occurs.

   1.4 Changes in Fee Structure. Distance may at its sole discretion amend its Referral Fee or the terms of its preferential pricing. Any changes shall be communicated in writing and will apply to any future referrals. In the event Affiliate does not agree to the new Referral Fee or terms, they may terminate the agreement by notifying Distance. In the event of termination, any outstanding fees will be paid within 90 days of the termination date.

2. USE OF AFFILIATE’S TRADEMARK

Affiliate hereby grants to Distance a worldwide, non-exclusive, royalty-free, transferable and sub-licensable right and license to use and display in any manner the Affiliate's name, trademarks, service marks, logos, trade names, in connection with and for the purpose exercising its rights under this Agreement. In addition, at Rare Circle’s discretion, Distance may use any such intellectual property for the purposes of promoting or marketing Affiliate, Affiliate's products or services, or as otherwise agreed to with Affiliate. Affiliate agrees that Distance may use Affiliate’s name to disclose that it is an Affiliate of Distance in Distance’ advertising, promotion, and similar public disclosures with respect to Distance Products and Services.   

3. REPRESENTATIONS & WARRANTIES

   3.1 By Distance. Distance represents and warrants that it owns and has the right to commercialize the Products and Services.

   3.2 By Affiliate. Affiliate represents and warrants that:

   1. neither it nor its salespeople or agents will make representations regarding the Products and Services which are not supported by the Products and Services documentation and marketing materials; and

   2. it does not currently engage in the engineering, development, manufacturing, sale, distribution or commercialization of any Products and Services that have the same or similar characteristics or functions as the Products and Services or that compete with the Products and Services.

   3.3 Indemnification. If a claim is made which, if substantiated, would constitute a breach of one of the foregoing warranties, the party making the warranty at issue agrees to defend, indemnify, and hold the other party harmless from and against any such claim by controlling any resulting litigation, paying any settlement to which it agrees and paying any costs (including reasonable attorneys’ fees) finally awarded against the indemnified party.  The indemnified party agrees to allow the indemnifying party to control any litigation or settlement of such claim.

4. PROPRIETARY RIGHTS AND CONFIDENTIALITY

   4.1 Confidential Information. For purposes of this Agreement, the term “Confidential Information” means (a) any information or materials, in whatever form, received by one party (as “Recipient”) from the other (as “Disclosing Party”) about the Disclosing Party’s business, business plans, customers, suppliers, strategies, trade secrets, operations, records, finances, assets, products and services (including the Products and Services), and technologies and (b) any other confidential or proprietary information designated as such by the Disclosing Party; provided, however, information will not be deemed Confidential Information if it: (a) is or becomes generally known by the public through no act or omission of the Recipient; (b) was in the Recipient’s lawful possession prior to the disclosure and had not been obtained by the Recipient from the Disclosing Party; (c) is lawfully disclosed to the Recipient by a third party without restriction on disclosure; or (d) is independently developed by the Recipient.

   4.2 Confidentiality. The Recipient agrees that it will, both during the term of this Agreement and for a period of 5 years thereafter, hold the Disclosing Party’s Confidential Information in confidence and utilize it only to perform its obligations and exercise its rights under this Agreement. Except as expressly permitted by this Agreement, the Recipient must limit the use of, and access to, all Confidential Information of the Disclosing Party to those of its employees or agents whose use of or access to such Confidential Information is necessary to fulfill the objectives of this Agreement.  The Recipient must use commercially reasonable efforts to prevent unauthorized disclosure, publication, display or use of any Confidential Information of the Disclosing Party.  The Recipient will not copy any Confidential Information of the Disclosing Party without the prior written consent of the Disclosing Party and will reproduce all such notices on any copies of Confidential Information that the Recipient is authorized to make.  The Recipient will not remove any copyright, proprietary rights or confidentiality notice included in or affixed to any Confidential Information of the Disclosing Party.

   4.3 Return of Confidential Information. Upon termination or expiration of this Agreement, the Recipient shall return to the Disclosing Party, at the request of the Disclosing Party, all Confidential Information of the Disclosing Party and certify in writing to the Disclosing Party, within ten (10) days following termination or expiration, that all such Confidential Information has been returned.  Notwithstanding the foregoing, in the event of dispute, the Recipient may retain, until resolution of such dispute, one (1) copy of Confidential Information of the Disclosing Party, and which is reasonably necessary to use for the dispute. 

   
   

5. TERM AND TERMINATION

   5.1 Renewal. This Agreement will continue in perpetuity unless terminated by either party in writing. 

   5.2 Termination for Convenience. Either party may terminate this Agreement for convenience at any time by providing the other written notice.

   5.3 Termination for Breach. The Agreement may be terminated by either party for breach as follows: (i) upon 15-day written notice if the other party breaches or defaults under any material provision of the Agreement and does not cure such breach prior to the end of such 15-day period, or (ii) effective immediately and without notice if the other party becomes insolvent or is the subject of a voluntary or involuntary petition in bankruptcy or of corporate reorganization or any similar relief or of an assignment for the benefit of creditors or appointment of a receiver for any reason or ceases to do business, or otherwise terminates its business operations.

   5.4 Effect of Termination. Upon expiration or termination of this Agreement:

   1. Affiliate shall immediately discontinue all promotion of the Products and Services;

   2. Affiliate shall discontinue all representations or statements from which it might be inferred that any relationship exists between the parties;

   3. Company shall pay all Referral Fees due or accrued up to the termination of this Agreement. 

6. LIMITATION OF LIABILITY

   6.1 Indirect or Consequential Damages. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOST PROFITS, ARISING OUT OF THE PERFORMANCE OR FAILURE TO PERFORM HEREUNDER. 

   6.2 Direct Damages. IN NO EVENT WILL COMPANY’S LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER PURSUANT TO CONTRACTUAL OR EXTRACONTRACTUAL LIABILITY, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AGGREGATE AMOUNT IN REFERRAL FEES PAID BY DISTANCE IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO SUCH LIABILITY.

6. GENERAL PROVISIONS

   7.1 No Partnership.  The parties undertake their respective obligations under this Agreement as independent contractors.  This Agreement does not and is not intended to create any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Affiliate has no authority or power to act in any legal capacity on behalf of Company, including, without limitation authority or power to bind or contract, to license or sublicense Products and Services in the name of Company or to create any liability against Company in any way or for any purpose. Affiliate assumes full responsibility for the actions of its personnel. Each party is responsible for its own expenses in performing its obligations under this Agreement.  Neither party guarantees the financial or other success of any activities carried out under this Agreement.

   7.2 Governing Law. This Agreement and all matters arising out of or relating to this Agreement is governed by the laws of the Province of Quebec, excluding its conflict of law provisions.  The parties hereby consent to the exclusive jurisdiction and proper venue in the courts of Quebec.

   7.3 Notices.  All notices and other communications required or permitted to be given under this Agreement must be in writing and sent by a recognized express courier service and will be effective upon receipt or attempted delivery at the addresses listed in the signature block of the Agreement, unless by such notice a different address will have been designated in writing in accordance with this Section.  A courtesy copy of such notice may be sent by email at the same time. 

   7.4 Privacy Laws. Affiliate agrees to implement and follow good industry practices for safeguarding and maintaining the confidentiality and limiting the use of the personal information of prospects and will comply with all applicable data and privacy protection laws with respect to any personal information.

   7.5 Non-Assignability.  Affiliate must not transfer, assign, subcontract, or delegate any right or obligation hereunder without the prior written consent of the Company.

   7.6 Entire Agreement.  This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement.  Additional or different terms on current or future Affiliate or third-party purchasing documents are expressly objected to and rejected.  If a court of competent jurisdiction finds any part of this Agreement unenforceable, that part is excluded but the rest of this Agreement in question remains in full force and effect. This Agreement may be amended only by a writing signed by the duly authorized representatives of each party.