Terms Of Service
PARTNER PROGRAM TERMS AND CONDITIONS
These Partner Program Terms and Conditions (the “Terms”) are incorporated into, and constitute an essential part of, the Partner Agreement (the “Agreement”) between A Plus Communications Canada Inc. (“A-Plus”) and Partner. Unless otherwise defined, capitalized terms used herein shall have the meanings ascribed to them in the Agreement.
I. PARTNER OBLIGATIONS.
A. Partner shall use and observe the highest standards of honesty, integrity and fair dealing. Partner will not discredit, dishonor, reflect adversely upon or in any manner injure the reputation or business of A-Plus or any Provider.
B. To the extent required under the agreement between A-Plus and a Provider or if required by the terms of Exhibit 1 to the Agreement for Partner to be eligible for a Tier set forth therein, Partner shall continually provide reasonable customer service and care to Customers to ensure satisfaction and proper account management.
C. To the extent required under the agreement between A-Plus and a Provider or if required by the terms of Exhibit 1 to the Agreement for Partner to be eligible for a Tier set forth therein, Partner shall submit complete and accurate forms and other paperwork, including, but not limited to Customer’s credit information, copies of the Customer’s latest provider invoices and any other forms deemed reasonably necessary by the applicable Provider. Partner acknowledges that errors in such paperwork may result in delays and possibly even cancellation of orders.
D. To the extent required under the agreement between A-Plus and a Provider, Partner shall use commercially reasonable efforts to assist the Provider in collection efforts regarding any Customer account balances which are past due (regardless of whether Partner is entitled to residual Commissions in connection with the account); provided, however, the foregoing shall not apply if Partner is at Tier 1 (as defined in Exhibit 1 to the Agreement).
E. During the Term of the Agreement and for a period of two (2) years following the termination thereof, Partner shall not solicit or sell competing services (“Competing Services”) to any Customer to whom Partner or another A-Plus partner has previously sold Services and the Competing Services would replace the Services to which the Customer is currently subscribed. If Partner does solicit or sell Competing Services to a Customer and A-Plus is or could reasonably be adversely affected, such conduct shall be considered a material breach of this Agreement and all of Partner’s rights hereunder, including any right to continue to receive Commissions, shall immediately terminate.
F. During the Term of the Agreement, Partner shall not accept, agree to accept, solicit, pay, offer, or promise to pay, or authorize the payment directly or indirectly of any money, gift, or anything of value greater than $250 (a “Kickback”) from or to any Provider employee. Such Kickback is considered commercial bribery and a violation of state criminal laws and/or a violation of federal laws such as the Racketeer Influenced and Corrupt Organizations Act, otherwise known as RICO (USA references used).
G. For purposes of receiving any Commissions which may become due hereunder, Partner shall maintain a business checking account at a proper banking institution.
II. A-PLUS’S OBLIGATIONS.
A. A-Plus shall use commercially reasonable efforts to help Partner select a Provider for each Customer based on Partner’s request for information regarding service capabilities.
B. Partner acknowledges that A-Plus or one or more of A-Plus’s other independent sales representatives may already be involved with or have a pre-existing relationship with a Customer.
C. A-Plus shall authorize Partner to use the marketing material provided by or previously approved by Providers for the purpose of marketing and selling the Services.
III. NON-SOLICITATION, ETC.
Partner hereby agrees that during the Term and for a period of two (2) years thereafter, Partner shall not directly or indirectly:
A. solicit any Provider for the purpose of securing a direct agency agreement with the Provider without A-Plus’s prior written approval which approval shall not be unreasonably withheld (provided, however, this provision shall not apply to any Provider on Partners Safe List or with whom Partner already had an agreement in place before the Effective Date or for whom Partner already marketed services through another master agent or other distributor before the Effective Date);
B. solicit, request or influence any Customer, Provider or other person which has a business relationship with A-Plus to discontinue such relationship or otherwise adversely affect the relationship;
C. solicit or otherwise attempt to cause any customer of a Provider, including but not limited to any Customer procured by Partner hereunder, to receive the Services or similar services other than through A-Plus hereunder; or
D. if Partner has utilized the resources of A-Plus with respect to any sales opportunity, solicit or otherwise attempt to sell any Services directly through a Provider or through another master agent with respect to such opportunity.
IV. PARTNER’S STATUS AS INDEPENDENT CONTRACTOR.
A. Partner is an independent contractor and not an employee, franchisee, partner or coventurer of A-Plus or any of its Providers.
B. Partner is not entitled to receive support, office space, resources, or any direct benefit and/or training from the employees, officers, representatives or agents of A-Plus.
C. Partner will be solely responsible for any and all tax liabilities resulting from payments made to Partner under this Agreement.
D. Partner shall pay any and all of its own business expenses in connection with the promotion and sale of the Services hereunder.
E. Partner shall not incur any obligation of indebtedness on behalf of A-Plus or any Provider. Partner shall not represent or imply to any third party that Partner possesses the power or authority to enter into a contract or commitment in the name of or on behalf of A-Plus or any Provider.
V. INDEMNIFICATION, LIMITATIONS OF LIABILITY, DISCLAIMERS, ETC.
A. PARTNER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS A-PLUS, ITS AFFILIATES, OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, ITS AGENTS, AND SUCCESSORS, AGAINST AND FROM ANY AND ALL ACTIONS, CLAIMS, SUITS, LIABILITIES, PROSECUTIONS, PENALTIES, SETTLEMENTS, LOSSES, DAMAGES, COSTS, CHARGES, ATTORNEYS’ FEES, JUDGMENTS, OR SUMS OF MONEY AWARDED TO ANY PARTY AND ACCRUING OR ASSESSED AGAINST A-PLUS RESULTING FROM ANY ACT AND/OR OMISSION OF PARTNER WHILE ENGAGED IN, OR IN CONNECTION WITH, THE DISCHARGE OR PERFORMANCE OF THE SERVICES TO BE DONE OR PERFORMED BY PARTNER HEREUNDER (INCLUDING, WITHOUT LIMITATION, CLAIMS FOR PERSONAL INJURY, DEATH OR DAMAGE TO PROPERTY)
B. PARTNER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS A-PLUS AND ITS AFFILIATES, OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, AGENTS AND SUCCESSORS FROM AND AGAINST ANY AND ALL ACTIONS, CLAIMS, SUITS, LIABILITIES, PROSECUTIONS, PENALTIES, SETTLEMENTS, LOSSES, DAMAGES, COSTS, CHARGES, ATTORNEYS’ FEES, JUDGMENTS, OR SUMS OF MONEY AWARDED TO ANY OF PARTNER’S SUB-CONTRACTORS, MARKETING AGENTS, SALES REPRESENTATIVES, EMPLOYEES AND/OR ANY THIRD PARTY UTILIZED BY PARTNER IN ITS SALES AND MARKETING EFFORTS. PARTNER SHALL BE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR THE PAYMENT OF COMPENSATION, FEES, BONUSES AND SALARIES TO ANY SUCH PERSON.
C. UNDER NO CIRCUMSTANCES SHALL A-PLUS OR ANY PROVIDER BE LIABLE TO PARTNER FOR DAMAGES OF ANY KIND RESULTING FROM ANY CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO THE SUSPENSION OR INTERRUPTION OF SERVICE, DELAYED INSTALLATION DATES, MISSED MOVE DATES, TERMINATION OF THE PROVISION OF ANY SERVICE BY THE APPLICABLE PROVIDER, TERMINATION OF COMMISSIONS THAT CORRESPOND TO TERMINATION OF COMPENSATION PAYMENTS TO A-PLUS BY A PROVIDER, OR TERMINATION BY A-PLUS PURSUANT TO SECTION 3(c) OF THE AGREEMENT.
D. IN NO EVENT SHALL A-PLUS BE LIABLE TO PARTNER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF CUSTOMERS OR LOSS OF GOODWILL, ARISING IN ANY MANNER FROM THIS AGREEMENT AND/OR A-PLUS’S AND/OR ANY PROVIDER’S PERFORMANCE OR NONPERFORMANCE HEREUNDER. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL A-PLUS’S TOTAL LIABILITY HEREUNDER EXCEED AN AMOUNT EQUAL TO THE LESSER OF THE COMMISSIONS DUE TO PARTNER DURING THE THREE (3) MONTHS PRIOR TO ANY CLAIM OF BREACH OR DAMAGE OR $5,000.
E. A-PLUS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT OR THE SERVICES PROVIDED BY ANY PROVIDER, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
A. Partner understands and acknowledges that A-Plus will not pay Commissions to Partner for certain Services (“Non-Commissionable Services”). A-Plus will use commercially reasonable efforts to note any Non-Commissionable Services in the Portal.
B. Partner understands and acknowledges that A-Plus reserves the right to revoke Portal access to Partner or to any user in its sole and absolute discretion, at any time and for any or no reason.
C. Partner understands and acknowledges that A-Plus maintains a zero-tolerance Anti-Harassment/Discrimination/Retaliation Policy. A-Plus’s policy applies to all persons involved in the operation of A-Plus and prohibits harassment, disrespectful or unprofessional conduct by any employee of A-Plus, including independent contractors who do business with A-Plus Partners.
Partner further understands and acknowledges that by signing these Terms and Conditions they also agree to abide by A-Plus’s policy as it relates to anti-harassment/discrimination/retaliation and to immediately report any such conduct that violates our policy for investigation and remedial action.
D. Partner may assign this Agreement upon written consent of A-Plus which consent will not be unreasonably withheld. A-Plus may assign this Agreement. This Agreement is binding upon and shall inure to the benefit of the successors and assigns of each party.
E. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario. Should any provision contained in this Agreement violate any laws of any other province or state in which this Agreement is to be performed, that provision shall be deemed void to the extent it is in violation without invalidating any other provision contained herein. Any action arising out of or relating to this Agreement shall be filed in the courts located in Ottawa, Ontario, Canada, and each party agrees to submit to the exclusive jurisdiction of the federal and state courts located in Ottawa, Ontario, Canada, and to waive all defenses to such jurisdiction and venue.
F. In the event of any dispute or controversy or legal action of any kind concerning the terms of this Agreement, the prevailing party shall be entitled to all reasonable attorneys’ fees and costs.
G. This Agreement may not be changed or modified except by a written agreement signed by the parties hereto.
H. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and shall supersede all previous communications, representations, understandings, and agreements, whether oral or written, between the parties.