Caddy Systems Inc. Affiliate Partnership Program Agreement
This Affiliate Partnership Program Agreement, comprised of these cover pages and the terms and conditions contained in Schedule “A” hereto (collectively, the “Agreement”), is between you and Caddy Systems Inc.
Caddy Systems Offering: Caddy Systems provides a cloud-based, software-as-a-service platform for digital food traceability workflow solutions (“Caddy Systems Offering”)
This Agreement was last updated on 10/31/2023.
SCHEDULE “A”
TERMS AND CONDITIONS
BACKGROUND:
A. Caddy Systems is the provider of the Caddy Systems Offering.
B. Referring Party is in the business of food safety consulting.
C. The Parties desire to enter into a relationship whereby the Referring Party, on a non-exclusive basis, will refer potential customers to Caddy Systems for the Caddy Systems Offering on the terms and conditions described herein.
NOW THEREFORE, the Parties agree as follows:
Definitions
As used in this Agreement, the following words have the meanings set out below:
“Agreement” has the meaning set out in the cover pages.
“Annual Customer Agreement Revenue” means, in each case, the aggregate fees collected by Caddy Systems in respect of the Caddy Systems Offering from valid and binding Customer Agreements with Referred Customers during the applicable calendar year, excluding: (a) any discounts, returns and refunds; (b) any sales, use and value added taxes, duties, imports, and customs charges; and (c) any commissions paid to third parties in connection with the Caddy Systems Offering.
“Caddy Systems Offering” has the meaning set out in the cover pages.
“Caddy Systems” has the meaning set out in the cover pages.
“Confidential Information” has the meaning set out in Section 6.1.
“Customer Agreement” has the meaning set forth in Section 3.1(b).
“Discloser” has the meaning set out in Section 6.1.
“Effective Date” has the meaning set out in the cover pages.
“Feedback” has the meaning set for the in Section 5.4.
“Initial Term” has the meaning set forth in Section 9.1.
“Marks” means trademarks, service marks, brand names, trade names, corporate names, business styles, trade dress, logos, insignia and other commercial symbols.
“Notice” has the meaning set out in Section 10.1.
“Parties” means Caddy Systems and Referring Party, and “Party” means either Caddy Systems or Referring Party.
“Promotional Materials” means any advertising or promotional materials provided by Caddy Systems to Referring Party from time to time.
“Recipient” has the meaning set out in Section 6.1.
“Revenue Share Percentage” means the referral fee percentage set out in the “Financial Terms” section of the “Affiliate Partnership Program Terms” section of the cover pages.
“Revenue Share” has the meaning set out in Section 3.4.
“Referred Customer” has the meaning set forth in Section 3.1.
“Referring Party” has the meaning set out in the cover pages.
“Renewal Term” has the meaning set out in Section 9.1.
“Taxes” has the meaning set out in Section 3.5.
“Term” means the Initial Term and any Renewal Terms.
“Territory” means the location(s) listed in the “Affiliate Partnership Program Terms” section of the cover pages.
REFERRING PARTY RESPONSIBILITIES AND RESTRICTIONS
During the Term, Referring Party will:
on a non-exclusive basis in the Territory promote the Caddy Systems Offering to potential customers and, as applicable, refer any such customers that are interested in procuring the Caddy Systems Offering to Caddy Systems in accordance with the process set forth in Section 3.1;
refer inquiries from prospective customers in respect of the Caddy Systems Offering to the Caddy Systems contact identified by Caddy Systems from time to time;
direct all support enquiring from Referred Customers to Caddy Systems;
exclusively use the Promotional Materials for any advertisement of the Caddy Systems; and
take all commercially reasonable steps to preserve and protect the goodwill and reputation of Caddy Systems.
Referring Party will not:
make any representations, warranties or guarantees, whether publicly or to anyone, with respect to the specifications, features or capabilities of the Caddy Systems Offering that are deceptive, misleading or otherwise inconsistent with the Promotional Materials or any other materials that are made publicly available by Caddy Systems, or represent to any third party that it is an agent of Caddy Systems or has the power to bind Caddy Systems in any way;
provide any information about any person to Caddy Systems that Referring Party does not have the lawful right to share or disclose;
engage in any unfair, anti-competitive, misleading, or deceptive practices respecting the Caddy Systems Offering, including any product disparagement;
offer any gifts, incentives, or benefits to potential or actual Referred Customer which are contrary to such Referred Customer’s corporate policies, Caddy Systems’ policies or any applicable law;
do anything that suggests the Caddy Systems Offering belongs to Referring Party or anyone other than Caddy Systems;
take any action that may interfere with any of Caddy Systems rights in or to Caddy Systems Offering; or
engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Caddy Systems Offering, any Caddy Systems Mark or Caddy Systems.
Revenue ShareS
A prospective customer in the Territory referred to Caddy Systems by Referring Party will qualify as a “Referred Customer” if such prospective customer:
uses the referral code or subscription link provided by Caddy Systems to Referring Party or is referred directly by Referring Party to the Caddy Systems contact person identified by Caddy Systems in writing from time to time; and
within one year following the date that the prospective customer is referred to Caddy Systems by Referring Party, agrees to the terms of a commercial agreement (the “Customer Agreement”) with Caddy Systems for use of the Caddy Systems Offering, which agreement will be a form determined by Caddy Systems.
Notwithstanding Section 3.1, Caddy Systems reserves the right to reject a prospective customer as a Referred Customer at its discretion. Caddy Systems reserves the right to suspend or terminate its provision of the Caddy Systems Offering to any Referred Customer at any time in accordance with the applicable Customer Agreement.
All Customer Agreements will be entered into directly between Caddy Systems and the Referred Customers. As between the Parties, Caddy Systems will own all Referred Customers and Customer Agreements and Referring Party’s rights to such Referred Customers or Customer Agreements will be limited to payment of the Revenue Share in accordance with this Agreement.
During the Term, on an annual basis, Caddy Systems will pay Referring Party the Revenue Share Percentage of all Annual Customer Agreement Revenue collected by Caddy Systems in the immediately preceding calendar year from all valid and binding Customer Agreements between Caddy Systems and a Referred Customer (the “Revenue Share”). Referring Party will be responsible for remitting all Taxes to the applicable governmental or regulatory authority.
Any Revenue Share will be paid in U.S. dollars. Any fees or charges incurred by Caddy Systems to transfer Revenue Share to Referring Party will be deducted from the Revenue Share. Any refunds issued to a Referred Customer will be deducted from the Revenue Share. The Parties acknowledge that the Revenue Share (and any part thereof) paid or payable by Caddy Systems to Referring Party are inclusive of all applicable goods and services tax, harmonized sales tax, or other sales or value-added taxes (“Taxes”).
TRADE-MARK LICENSE
Any use by either Party of the other Party’s Marks must be approved in writing by the owner of such Marks prior to distribution, release or publication. Unless otherwise approved in writing by the Party that owns the Marks, each Party will comply with the branding and trademark guidelines that the other Party provides in writing.
Subject to the terms and conditions of this Agreement, each Party herby grants to the other Party a non-exclusive, royalty-free, fully paid-up, non-transferable, non-sublicensable, and revocable license during the Term to use and display its Marks solely in connection with the marketing, advertising, and promotion of the Caddy Systems Offering. In all cases, each Party will identify the other Party as owner of such Party’s Marks.
On expiration or earlier termination of this Agreement or upon the Mark owner’s request, the other Party will promptly discontinue the display or use of any Marks or any confusingly similar mark or name with any similar goods and in connection with any print or electronic media advertising goods of any kind. Upon expiration or earlier termination of this Agreement, each Party’s rights under this Section 4 will cease immediately.
Other than the express licences granted by this Section 4, Caddy Systems grants no right or licence to Referring Party, by implication, estoppel or otherwise, to the Marks or any other intellectual property rights of Caddy Systems.
Ownership and other reserved rights
All right, title and interest, including intellectual property rights, in and to the Marks of Caddy Systems, the Caddy Systems Offering, and the Promotional Materials, and any updates, adaptations, translations, customizations, modifications, enhancements or derivative works thereof, will remain exclusively with Caddy Systems (or Caddy Systems’ third party suppliers and licensors, if applicable).
All right, title and interest, including intellectual property rights, in and to the Marks of Referring Party and any updates, adaptations, translations, customizations, modifications, enhancements or derivative works thereof, will remain exclusively with Referring Party (or Referring Party’s third party suppliers and licensors, if applicable).
This Agreement will in no way limit Caddy Systems’ right to sell, market, advertise, or promote the Caddy Systems Offering directly or indirectly through third parties, including other referral partners, to any current or prospective customers.
Referring Party or its employees, personnel, or contractors may from time to time provide suggestions, comments or other feedback (“Feedback”) to Caddy Systems with respect of the Caddy Systems Offering. The Parties agree that all Feedback is and will be given entirely voluntarily. Caddy Systems will own all such Feedback and will be free to use, disclose, reproduce, distribute, and exploit the Feedback provided to it as it sees fit.
confidential & Proprietary Information
For purposes of this Section 6, a Party receiving Confidential Information (as defined below) will be the “Recipient” and the Party disclosing such information will be the “Discloser”. “Confidential Information” means all information disclosed by Discloser to Recipient, or otherwise coming into the possession of Recipient in connection with this Agreement, that is marked as “confidential” or would otherwise be understood to be confidential given the circumstances under which it was disclosed; provided, however, that “Confidential Information” does not include: (a) information already known or independently developed by Recipient outside the scope of this relationship, without the benefit of any Confidential Information of Discloser; (b) information that is publicly available through no wrongful act of Recipient; or (c) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
During the Term and at all times thereafter, Recipient will not: (a) disclose Confidential Information of the Discloser to any person or entity, except to: (i) (1) in the case of Referring Party its own employees having a “need to know” the information in connection with this Agreement and that have entered into written agreements no less protective of such Confidential Information than this Agreement; and (2) in the case of Caddy Systems to its employees, affiliates or contractors having a “need to know” the information in connection with this Agreement and that have entered into written agreements no less protective of such Confidential Information than this Agreement; and (ii) such other recipients as the Discloser may approve in writing; or (b) use Confidential Information of the Discloser except to exercise its rights or perform its obligations under this Agreement.
Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information: (a) to the extent that such disclosure is required by applicable law or by the order of a court of competent jurisdiction or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (b) to its legal counsel and other professional advisors, if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (c) in the case of Caddy Systems to potential assignees, acquirers or successors of Caddy Systems, if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Caddy Systems.
COMPLIANCE WITH LAW WARRANTY; Indemnity
Each Party represents and warrants that it will comply with, and will remain in compliance with at all times during the Term, all applicable laws (including all applicable privacy and anti-spam laws) applicable to it, in connection with the performance of its obligations under this Agreement.
Referring Party will indemnify, defend and hold Caddy Systems, its affiliates, subsidiaries, and each of its and their respective directors, officers, employees, subcontractors and other representatives harmless from and against any and all claims, actions, demands, complaints, legal proceedings and related losses, liabilities, damages, judgments, settlements, fines, penalties, reasonable legal fees, and other costs or expenses to the extent arising out of or in connection with any claim by a third party alleging:
any breach by Referring Party of any of its obligations under Sections 2.2(a) or 2.2(b);
Referring Party’s violation of any applicable law (including all applicable privacy and anti-spam laws); or
the Referring Party’s Marks infringing or misappropriating such third party’s intellectual property rights, including patents, copyrights, trade secrets or trademarks.
Limitation of LIability; Disclaimer; AND IndemnitY
SUBJECT TO SECTION 8.3, EACH PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, INCLUDING FOR ANY CLAIMS ARISING OUT OF BREACH OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY, WILL NOT EXCEED THE SUM OF ALL REFERRAL FEES PAID OR PAYABLE BY CADDY SYSTEMS TO REFERRING PARTY.
SUBJECT TO SECTION 8.3, NEITHER PARTY WILL BE LIABLE FOR ANY CLAIMS FOR: (A) PUNITIVE, EXEMPLARY OR AGGRAVATED DAMAGES; (B) DAMAGES FOR LOSS OF PROFITS, GOODWILL OR REVENUE, OR FAILURE TO REALIZE EXPECTED SAVINGS; OR (C) INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES.
SECTIONS 8.1 AND 8.2 WILL NOT APPLY TO LIMIT REFERRING PARTY’S LIABILITY OR OBLIGATIONS PURSUANT TO SECTIONS 7.2 (INDEMNITIES) AND SECTION 6 (CONFIDENTIAL & PROPRIETARY INFORMATION).
THE CADDY SYSTEMS INC. OFFERING AND PROMOTIONAL MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES, CONDITIONS, OR REPRESENTATIONS OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CADDY SYSTEMS INC. DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY REPRESENTATIONS, WARRANTIES OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT TO CADDY SYSTEMS INC. OFFERING AND THE PROMOTIONAL MATERIALS.
TERM AND TERMINATION
This Agreement begins on the Effective Date and continues for a period of 1 year (the “Initial Term”), unless terminated earlier in accordance with its terms. The Agreement automatically renews for successive 1-year periods (each, a “Renewal Term”) unless either Party notifies the other Party in writing at least 30 days prior to the expiry of the Initial Term or the then-current Renewal Term.
Either Party may terminate this Agreement upon 30 day’s written notice to the other Party, for any reason.
Either Party may terminate this Agreement upon written notice of termination to the other Party, effective immediately, if: (a) the other Party is or becomes insolvent or bankrupt or ceases paying its debts as they mature, or makes or files an assignment in bankruptcy or otherwise acknowledges its insolvency, or a trustee, receiver, liquidator or similar official is appointed for the other Party or any substantial portion of its property and assets, or bankruptcy, insolvency, arrangement or similar proceedings are instituted by or against the other Party; or (b) the other Party commits a material breach of the terms of this Agreement, and such breach is not capable of being cured, or if it is capable of being cured, is not cured within 30 days following the delivery of written notice thereof in accordance with this Agreement.
Upon the termination or expiration of this Agreement: (a) Referring Party will immediately discontinue all promotion and marketing of the Caddy Systems Offering and cease using Caddy Systems’ Marks, Promotional Materials and other Caddy Systems’ Confidential Information; (b) each Party will return to the other Party all property of the other Party in its possession or under its control; and (c) Caddy Systems’ payment obligations under Section 3 will immediately cease. Upon request of a Party, the other Party will certify in writing that it has complied with this Section. Termination of this Agreement is without prejudice to any other right, remedy or recourse which either Party may have.
The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates the performance or observance subsequent to termination of expiration of this Agreement, will survive the expiration or termination of this Agreement for any reason: Section 5 (Ownership), Section 6 (Confidentiality), Section 7 (Indemnity), Section 8 (Limitation of Liability), Section 9.4 (Obligations upon Termination), Section 10 (General) and this Section 9.5.
General provisions
Notices. Any notice, consent or approval required or permitted to be given in connection with this Agreement (for purposes of this Section 10.1, a “Notice”) will be in writing and will be sufficiently given if delivered (whether in person, by courier service or other personal method of delivery), or if transmitted by electronic means, provided that proof of electronic receipt is obtained, to the addresses of the respective Party set out in the cover pages of this Agreement. Any Notice delivered or transmitted to a Party as provided above will be deemed to have been given and received on the day it is delivered or transmitted. Any Party may, from time to time, change its address by giving Notice to the other Parties in accordance with this Section 10.1.
Assignment. Referring Party may not assign or transfer this Agreement, or transfer or subcontract any rights or obligations hereunder, without the prior written consent of Caddy Systems. Referring Party will remain responsible for any subcontractor’s performance of this Agreement. Caddy Systems may assign any of its rights, or delegate any of its obligations, under this Agreement, without the consent of Referring Party, to any third party. Any attempt to assign this Agreement in breach of this Section 10.2 will be void and of no effect. Subject to the foregoing, this Agreement will bind and enure to the benefit of the Parties, their permitted successors and permitted assigns.
Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
Entire Agreement. This Agreement constitutes the entire agreement between the Parties concerning the subject matter of this Agreement and supersedes all prior statements, representations, discussions, negotiations and agreements, both oral and written.
Amendments. This Agreement may not be amended or modified except in writing signed by authorized officers of both Parties.
Governing Law. This Agreement and the rights and obligations of the Parties under this Agreement are governed by and are to be construed and interpreted in accordance with the laws of the province of Ontario and the federal laws of Canada applicable therein, excluding its rules of conflicts of law. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario and irrevocably attorn to the exclusive jurisdiction and venue of the courts sitting therein. The United Nations Convention on the International Sale of Goods will not apply to this Agreement.
Public Announcements. Neither Party will issue any press release or make any public announcement (in any medium, including through social media) relating to the subject matter of this Agreement without the prior written consent of the other Party.
Independent Contractors. Referring Party’s relationship to Caddy Systems is that of an independent contractor, and the Parties are not in an agent-principal, employee-employer, franchisor-franchisee or legal partnership relationship. Referring Party will not have, and will not represent to any third party that it has, any authority to act on behalf of Caddy Systems.
Injunctive Relief. Each Party acknowledges that violation of the provisions of Sections 4, 5, or 6 would cause irreparable harm to a Party not adequately compensable by monetary damages. Therefore, in addition to other relief, it is agreed that injunctive relief will be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.
No Strict Construction. The language used in this Agreement is the language chosen by the Parties to express their mutual intent, and no rule of strict construction will be applied against any Party.
Severable. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of a Party in this Agreement, mean the right of such Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
Counterparts. This Agreement may be executed in more than one counterpart and delivered by electronic means. Each counterpart so delivered is deemed an original and all of counterparts together constitute one instrument.
Further Assurances. Each Party will from time to time execute and deliver all such further documents and instruments and do all acts and things as the other Party may reasonably require to effectively carry out or better evidence or perfect the full intent and meaning of this Agreement.