Bold Apps Affiliate Program for Shopify

AFFILIATE PROGRAM AGREEMENT

TERMS AND CONDITIONS

Last Updated: January 8, 2024

This Affiliate Program Agreement (this “Agreement”) is between you or the entity you represent (the “Affiliate”) and Bold Innovation Group Ltd. (“Bold”), effective as of the date you sign up to be an Affiliate (the “Effective Date”).

PLEASE READ THIS AGREEMENT CAREFULLY. THESE TERMS CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN AFFILIATE AND BOLD. THIS AGREEMENT RELATES TO AND GOVERNS AFFILIATE’S PARTICIPATION IN THE BOLD AFFILIATE PROGRAM AND OTHER ASPECTS OF THE BUSINESS RELATIONSHIP BETWEEN AFFILIATE AND BOLD. BY ENROLLING INTO THE BOLD AFFILIATE PROGRAM OR CHECKING A BOX CONFIRMING ACCEPTANCE, AFFILIATE AGREES TO BE BOUND BY THIS AGREEMENT (INCLUDING THE LINKED DOCUMENTS REFERRED TO IN THESE TERMS), AS REVISED FROM TIME TO TIME. IF YOU DO NOT ACCEPT THIS AGREEMENT OR THE TERMS THEREIN, AFFILIATE MUST NOT PARTICIPATE IN OR ACCESS OR USE THE BOLD AFFILIATE PROGRAM. IF AFFILIATE IS DISSATISFIED WITH THIS AGREEMENT OR ANY OTHER TERMS, CONDITIONS, RULES, POLICIES, GUIDELINES OR PRACTICES APPLICABLE TO THE BOLD AFFILIATE PROGRAM, AFFILIATE’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE PARTICIPATION IN THE BOLD AFFILIATE PROGRAM, AND ALL ASPECTS OF THE SERVICES IN RELATION THERETO. IF AFFILIATE IS PARTICIPATING IN THE BOLD AFFILIATE PROGRAM ON BEHALF OF AN ORGANIZATION, AFFILIATE REPRESENTS THAT IT HAS THE AUTHORITY TO BIND THAT ORGANIZATION TO THIS AGREEMENT, IN WHICH CASE “AFFILIATE” WILL REFER TO SUCH ORGANIZATION.

1. Appointment.
   1. Subject to the terms and conditions of this Agreement, by registering to be a part of the Bold Affiliate Program and accepting these terms and conditions, Bold hereby appoints Affiliate, and Affiliate hereby accepts such appointment, as Bold’s non-exclusive affiliate sales representative for the purpose of promoting and selling Bold Products during the Term.  This is a non-exclusive appointment and Bold may sell Bold Products, directly or indirectly, through any sales channel, including its own employees and other affiliates, partners, third-party agents or sales representatives.  Bold may also from time to time specify certain territories and/or customers that Affiliate is not permitted to sell into or to.
   2. Nothing in this Agreement or in any document executed in connection with this Agreement shall constitute or be construed to be or to create an agency, partnership or joint venture or employer-employee relationship between Bold and Affiliate.  Neither Bold nor Affiliate shall represent their relationship to third parties as being anything other than a sales representative relationship created by an independent contractor agreement. Affiliate shall not have authority and shall make no representation as having authority to act as Bold’s agent.  Bold shall not be bound by and shall bear no responsibility for Affiliate’s activities.  Affiliate shall indemnify Bold and hold Bold harmless for any and all loss, damages or other liability arising from Affiliate’s activities.
   3. Affiliate shall: (i) comply with all Bold policies and with all local laws, licensing regulations and rulings of governmental bodies having jurisdiction over the activities of Affiliate; (ii)  comply with such guidelines, standards and requirements relating to the promotion, display, advertising and sale of Bold Products and the use of Bold’s trademarks as Bold may adopt and provide to Affiliate from time to time; and (iii) perform its obligations as a member of the Bold Affiliate Program in a manner that: (1) reflects favourably on Bold and the good name, goodwill and reputation of Bold; (2) avoids deceptive, misleading or unethical practices that are or might be detrimental to Bold or to the public; (3) makes no false or misleading representations with regards to Bold, including any representations that the Affiliate is the provider of the Bold Products; and (4) not publish or employ or cooperate in the publication or employment or publication of any misleading or deceptive advertising material with regards to Bold or the Bold Products. .
2. Commissions.
   1. Bold shall have sole authority to set the price of the Bold Products sold and offered for sale.
   2. Affiliate shall be entitled to commission payments (“Commissions”) with respect to qualified referral(s) made by the Affiliate for Bold software products (“Bold Products”) installed by a Bold customer (the “Merchant”). For the purposes of this Agreement and the Bold Affiliate Program, “installed” means that the Merchant completed the trial period for the applicable Bold Product and was (or is) a paying customer to Bold for at least one (1) billing cycle for said Bold Product.
   3. Commissions shall accumulate in Affiliate’s dashboard relating to successfully referred Merchants, and Affiliate, and Bold shall pay Commissions on a monthly basis within thirty (30) days of the end of a month , provided that the Commission amount payable is at least fifty United States dollars (50 USD) (“Minimum Payment Amount”). Where the Commissions owed to an Affiliate is less than the Minimum Payment Amount, then any such amounts owed will be deferred to the following month on an ongoing basis until the total amount of Commissions payable to the Affiliate exceeds the Minimum Payment Amount. Notwithstanding the foregoing, Bold may, in its sole discretion, for any reason whatsoever, reject, delay or cancel a Commission payment, as applicable. All Commission amounts owed shall be paid by Bold to the payment information entered into by Affiliate at the time of registering for the Bold Affiliate Program. It is the responsibility of Affiliate to ensure that any and all payment information is accurate, complete and up-to-date.
   4. Commission payments are based on an agreed percentage of “Net Revenue” which is defined as the revenue actually received by Bold from a Merchant for the Bold Products installed net of any fees, costs or expenses associated with the platform on which the Bold Products are made available under the Bold Affiliate Program and any applicable taxes, interest, fines, or other charges or assessments imposed or levied by a governmental agency.
   5. An Affiliate shall not be eligible for Commissions for any Merchant that: (i) is already a customer of Bold; or (ii) has downloaded the applicable Bold Products in the last six (6) months prior to the referral made by the Affiliate.
   6. Bold may accept or refuse orders for Bold Products in its sole discretion and shall not be bound by any order until it has accepted such order.  Bold shall not be liable to Affiliate for any loss or damage caused by non-acceptance of orders, delays in providing Bold Products or for failure to deliver Bold Products to a purchaser thereof.
   7. In the event that Commissions are paid on sales of Bold Products that are subsequently refunded or discounted, for any reason, Bold shall be entitled to withhold and seek repayment for such Commissions from the Commissions generally owing to Affiliate.
   8. Affiliate shall be solely responsible for deducting and remitting all income and other taxes related to Affiliate’s performance of services hereunder, and will be responsible and liable for payment to the proper authorities of such taxes.  Affiliate agrees to indemnify Bold and hold Bold blameless for any and all failures to make proper remittance of any applicable taxes.
3. Term, Renewal and Termination.
   1. The initial term of this Agreement will begin on the Effective Date and will continue to the first anniversary of the Effective Date (the “Initial Term”). At the end of the Initial Term, this Agreement will automatically renew for successive additional one (1) year periods (each a “Renewal Term”). The Initial Term and each Renewal Term are collectively referred to as the “Term”.  Either party may terminate this Agreement at any time for any reason or no reason on at least 30 days prior written notice to the other party.
   2. This Agreement may be terminated immediately by either party upon written notice to the other party: if the other party breaches any material provision of this Agreement; or  if the other party: ceases to do business as a going concern, admits in writing its inability to pay debts as they become due, files or becomes the subject of a petition in bankruptcy, appoints a receiver, acquiesces in the appointment of a receiver or trustee, becomes insolvent, makes an assignment for the benefit of creditor, goes into liquidation or receivership or otherwise loses legal control of its business.
4. Confidentiality.
   1. Each party (the “Receiving Party”) acknowledges that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, financial or other information relating to the Disclosing Party’s business that reasonably should be understood to be confidential given the nature of the information (“Confidential Information”), excluding any information that the Receiving Party can document  is or becomes generally available to the public; or  was in its possession or known by it prior to receipt from the Disclosing Party; or  was rightfully disclosed to it without restriction by a third-party; or  was independently developed without use of or reference to any Confidential Information of the Disclosing Party.
   2. Confidential Information of Bold includes non-public information regarding features, functionality and performance of Bold Products, including any benchmarking studies and service level reports.
   3. The Receiving Party will  take reasonable precautions to protect Confidential Information, and  not to use (except in performance of this Agreement) or divulge to any third-party any Confidential Information.
   4. If the Receiving Party is required by any applicable law, rule or regulation of any court or government agency of competent jurisdiction or pursuant to legal process to disclose all or any part of the Confidential Information of the Disclosing Party, the Receiving Party will  immediately notify the Disclosing Party of the requirement; and  use commercially reasonable efforts to provide the Disclosing Party with an opportunity to take the steps as it desires to challenge or contest the disclosure or seek a protective order or other remedy. Thereafter, the Receiving Party may disclose the Confidential Information, but only to the extent so required and subject to any protective order or other remedy that applies to the disclosure.
5. Privacy. Each party will, and will cause its personnel and subcontractors to, comply with all applicable privacy and data protection laws, rules and regulations, including, without limitation, the provincial legislation which protects personal information, which are applicable to the subject matter of this Agreement.
6. Proprietary Rights.
   1. No rights or licenses to either party’s intellectual or industrial property are granted hereunder.
7. Limited Warranty and Disclaimer.

BOLD DISCLAIMS ALL REPRESENTATIONS, CONDITIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE BOLD PRODUCTS, THE BOLD AFFILIATE PROGRAM, THIS AGREEMENT, OR BOLD’S PERFORMANCE UNDER THIS AGREEMENT, INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.

1. Limitation of Liability.
   1. IN NO EVENT WILL BOLD OR ITS AFFILIATES AND THEIR OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, CONTRACTORS AND AGENTS BE RESPONSIBLE OR LIABLE WITH RESPECT TO THIS AGREEMENT UNDER ANY CONTRACT, TORT, INCLUDING NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHER THEORY OF LIABILITY:  FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES; OR  FOR LOSS OF BUSINESS, PROFITS, OR REVENUES, FAILURE TO REALIZE EXPECTED SAVINGS, OR OTHER COMMERCIAL OR ECONOMIC LOSSES OF ANY KIND, EVEN IF A PARTY IS ADVISED OF THE POSSIBILITY THEREOF.
   2. BOLD’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED DIRECT DAMAGES IN THE AMOUNT OF COMMISSIONS PAID OR PAYABLE BY BOLD TO AFFILIATE IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
   3. IN SOME CIRCUMSTANCES, APPLICABLE LAW MAY NOT ALLOW FOR LIMITATIONS ON CERTAIN IMPLIED WARRANTIES, OR EXCLUSIONS OR LIMITATIONS OF CERTAIN DAMAGES. SOLELY TO THE EXTENT THAT SUCH LAWS APPLY TO AFFILIATE, SOME OR ALL OF SECTION 7 AND 8 OF THIS AGREEMENT MAY NOT APPLY.
2. Public Announcements. All media releases, public announcements or external disclosures of any nature (including any other disclosure of the name or trademarks of a party that indicate a relationship between the parties) by either party relating to this Agreement or its subject matter will be coordinated with and must be approved in advance by the other party prior to any release.
3. Assignment. Affiliate may not assign its rights or obligations under this Agreement without the prior written consent of Bold except:  in connection with a sale of its business, a sale of all or substantially all of its assets, a merger, a change of control transaction, a business combination or other such similar transaction, whether by way of contract, operation of law or otherwise; or  as part of a bona fide corporate reorganization.
4. Notices.
   1. Any notice contemplated by this Agreement, to be effective, must be in writing and delivered as follows:  by email to Affiliate at the email provided by Affiliate upon signing up for the Bold Affiliate Program, or to Bold at [email protected], in which case it will be deemed to be received on the day sent;  by hand to Affiliate at the address provided by Affiliate upon signing up for the Bold Affiliate Program or to Bold at 1700-242 Hargrave Street, Winnipeg, Manitoba R3C 0V1, Canada (“Bold Corporate Address”), in which case it will be deemed to be received on the day of its delivery;   by nationally recognized overnight courier by hand to Affiliate at the address provided by Affiliate upon signing up for the Bold Affiliate Program or to Bold at the Bold Corporate Address, in which case it will be deemed to be received on the next business day after its couriering; or  by prepaid post to Affiliate at the address provided by Affiliate upon signing up for the Bold Affiliate Program or to Bold at the Bold Corporate Address, in which case it will be deemed to be received on the fifth business day after its mailing.
   2. Either party may from time to time give notice to the other party of a substitute address or email address, which from the date such notice is given will supersede for purposes of this Section 11 any previous address or email address specified for the party giving the notice.
5. Entire Agreement. The Agreement constitutes the entire agreement between the parties pertaining to the subject matter of this Agreement and supersedes all prior agreements, proposals, understandings, letters of intent, negotiations and discussions between the parties, whether oral or written, regarding the subject matter of this Agreement. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the parties other than as expressly set out in this Agreement. Bold objects to and rejects any additional or different terms proposed by Affiliate.
6. Amendments. The “Last Updated” legend above indicates when this Agreement was last amended. Bold  may unilaterally amend all or any part of this Agreement  any time by updating this Agreement on the website associated with the Bold Affiliate Program. Bold will provide you with notice of the proposed amendments by posting an amended version of this Agreement with a new version date. Bold will include a link to the previous version of the Agreement beneath the new version date. The amendments will take effect thirty (30) days after the date on which the amended version is posted. Prior to that date, the previous version of the Agreement will continue to apply. If Affiliate disagrees with any amendments, Affiliate may refuse the amendments and cease being a member of the Bold Affiliate Program within the 30-day notice period by providing notice of same. There will be no cost or penalty for doing so. If Affiliate continues to access the services associated with the Bold Affiliate Program after the 30-day period, Affiliate thereby agree to the amended Agreement . You agree to review this Agreement regularly to determine your rights and responsibilities.
7. Waiver. Except as otherwise expressly permitted or specified in this Agreement, this Agreement will not be amended except by a written agreement that: is signed by the authorized signing representatives of each of the parties; and  expressly states that it is intended to amend this Agreement. No waiver of any obligation or any breach of any provision of this Agreement will be effective or binding unless made in writing and signed by the party purporting to give the same and, unless otherwise provided, will be limited to the specific obligation or breach waived.
8. Survival. The termination of this Agreement will not release either of the parties from any obligation or liability that accrued prior to the termination. The provisions of this Agreement requiring performance or fulfilment after the termination of this Agreement as are necessary for the interpretation thereof, and any other provisions hereof, the nature and intent of which is to survive termination of this Agreement, will survive the termination of this Agreement.
9. Governing Law. The Agreement shall be exclusively governed by, construed and interpreted in accordance with the laws of the Province of Manitoba, Canada.
10. Dispute Resolution.
    1. The parties will use the processes described in this Section 16 to attempt to resolve any dispute between the parties arising out of or relating to this Agreement (“Dispute”). If any Dispute arises out of or in connection with this Agreement it shall be referred by one party to the other upon written notice (a "Dispute Notice") given by one party to the other party. The primary points-of-contact will meet and use good faith, reasonable efforts to resolve the Dispute without escalation within 14 days following receipt of the Dispute Notice. If these efforts do not resolve the Dispute, then each party will designate a representative more senior than its primary point-of-contract, and those representatives will meet and use reasonable efforts to resolve the Dispute within 14 days of referral of the Dispute to those senior representatives.
    2. The parties agree that if they are unable to resolve any Dispute as contemplated by Section 16 (a), then such Dispute shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules (the "ICDR Rules") or as otherwise agreed by the parties or ordered by the arbitrator. For the avoidance of doubt, the parties agree that they are not required to participate in mediation. The number of arbitrators shall be one. The seat of arbitration shall be Winnipeg, Manitoba, Canada and the language of arbitration shall be English. The arbitrator shall not be an officer or employee of any party to such Dispute and must have expertise in the field relevant to the Dispute. If within 14 days of a party commencing such arbitration the parties cannot agree upon an arbitrator, the arbitrator will be selected by the process provided in the ICDR Rules. The decision of the arbitrator shall be final and binding upon the parties and there shall be no right of appeal. The fees of the arbitrator shall be borne equally by the parties. Unless otherwise agreed or otherwise determined by the arbitrator, the decision of the arbitrator shall be rendered within sixty (60) days from the date of the closing of the hearing. If grounds for termination of this Agreement are in dispute, no party to such Dispute shall exercise any right of termination until the award of the arbitrator has been rendered.
    3. Notwithstanding any Dispute, the parties will continue to perform their respective obligations under this Agreement while the Dispute is being resolved, unless and until such obligations are terminated or expire in accordance with the provisions of this Agreement.
11. Language. It is the express wish of the parties that the Agreement be drawn up in English. La volonté expresse des parties aux présentes est que ce Agreement soit rédigé en anglais. The parties waive any right to use and rely upon any other language.
12. Export Controls. This Agreement is expressly made subject to any laws, regulations, orders or other restrictions on export from the United States of America (U.S.) or Canada of the Bold Affiliate Program or the Bold Products, or any information about any of them, which may be imposed from time to time by the governments of the U.S. or Canada. Affiliate shall not export the Bold Affiliate Program or the Bold Products, or any information about any of them, without the prior written consent of Bold and compliance with such laws, regulations, orders and other restrictions. By accepting this Agreement and the terms contained herein, Affiliate represents and warrants that: (a) Affiliate is not located in a country that is subject to a U.S. or Canadian government embargo, or that has been designated by the U.S. or Canadian government as a “terrorist supporting” country, and (b) Affiliate is not listed on any U.S. or Canadian government list of prohibited or restricted parties.