Review of an 6 page...
Review of an 6 page contract for a Canadian based incorporated firm with global eSales intentions. Please offer opinion and suggested modifications.
PartnerSavvy Program SportSavvy Inc. September 8, 2009
SportSavvy provides a comprehensive suite of online administrative and player Service that enable leagues to run more efficiently and players to enjoy the game more. We have the leading software in the market and would LOVE TO PARTNER WITH YOU to get Our software used by every team based sports organization, and in the process make you a healthy income (you earn on average $1 for every player that uses our system every season they use our system...that’s nice reoccurring revenue!). This contract will explain how we can team up to make this happen. Now…the all important legals:
The terms "Affiliate,", “Sales Partner”, "You," and "Your" refer to you, the applicant. “SportSavvy”, “SportSavvy.com”, "We", “Us” and "Our" refer to SportSavvy Inc. This Agreement is not intended to establish any agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship between You and Us.
SportSavvy has two sales avenues. Our Partner Savvy program (Sales Affiliates) and a Skin Partner program. This contract is for the PartnerSavvy program which is for sales into organizations that typically cater to less than 5,000 athletes and shorter sales cycle. Larger sports organizations, say with many thousands of athletes and many leagues and divisions up to the State/Provincial, National and International levels can be easily handled by Our software but typically some customization is requested and a longer sales cycle exists. For these larger organizations a separate document will govern the relationship with Our sales partners.
Participation in SportSavvy’s PartnerSavvy program expresses Your unconditional acceptance of the terms & conditions herein, and legally binding nature of this agreement. Non-compliance with any of these terms and conditions will result in the forfeiture of all monies owed to You by SportSavvy. Furthermore, any violation of any provision of this Agreement by You may result in denial of access to Your account at the sole discretion of Us, and You may also be subject to both civil and criminal penalties under applicable law.
We will be responsible for providing reasonable access to our services, credit card authorizations, payment processing, cancellations, returns, and related customer services for the SportSavvy services. Under no circumstances whatsoever shall SportSavvy be responsible for lost sales due to technical difficulties preventing SportSavvy from registering sport Organizations, Players or other SportSavvy Services. SportSavvy is not responsible for any delay or failure in performance due to Force Majeure, or other occurrences that are beyond SportSavvy’s reasonable control nor is SportSavvy responsible for short, temporary suspension of the Service as a result of circumstances which SportSavvy could not foresee or suspect.
The use of the Service is at the Customer's sole risk. SportSavvy is in no way responsible for the conduct of its Customers. SportSavvy is not responsible for any indirect, incidental, special, punitive, or consequential damage that results from Customer's use or misuse of the Service.
SportSavvy shall have no liability for any damages suffered by the Customer or any third party as a result of their use or the misuse of the Service.
PartnerSavvy’s Sales Partners:
Our PartnerSavvy Program is only available to individuals who can form legally binding contracts under applicable law, and are not available to minors. At Our sole discretion we may refuse service to anyone at anytime. SportSavvy reserves the right to reject any Sales Partner, customer or organization the does not comply with our operating procedures and policies.
By participating in Our PartnerSavvy Program You are acknowledging and consenting that You have read this agreement and agree to all its terms and conditions.
Depending on Your location You may be required to provide Federal Tax ID or other identifiable information necessary by law. Any falsification of this type of information shall be grounds for denial of payment and immediate PartnerSavvy account termination. It is also Your responsibility to periodically check Your e-mail and our website to stay informed of changes to Our PartnerSavvy program. You are solely responsible for providing accurate address/delivery information to ensure proper delivery of payment. Payments that are returned to Us because of inaccurate delivery information will be held for one (1) year after which time said payments and all future payments will be forfeited by You and will be the sole and non-reversible property of SportSavvy and or allocated to another PartnerSavvy account, in whole or in part.
You are solely responsible for ensuring that the content of Your Site and/or Sales Presentation/communications complies with all applicable copyright and other laws and represents the SportSavvy service accurately. We are not be responsible if You use another party's copyrighted or other proprietary material on Your Site and/on in Your sales presentations or other communications, in violation of the law or any agreement, and Your indemnity below will protect Us if You do so. Also, under no circumstances, shall You undertake any action that will or have the tendency to mislead sport organizations about the SportSavvy service.
You are responsible to ensure that the Customer provides accurate and true contact details, and keeps such contact details up to date. If the Customer provides any information that is inaccurate, not current or incomplete, or SportSavvy has reasonable grounds to suspect that such information is inaccurate, not current or incomplete, SportSavvy has the right to suspend or terminate the services. Additionally any unpaid commissions/fees associated with the account or any other account under the Affiliate will be forfeited.
The Customer may not use any hardware or software intended to damage or interfere with the proper and timely functioning of the Service or to surreptitiously intercept any system, data or personal information from a sports organization, SportSavvy.com web page and/or SportSavvy service.
SportSavvy reserves the right to refuse right of use and access to the website, terminate accounts, remove or edit content, or cancel orders at its sole discretion. SportSavvy will not provide the Service to any individual or company at Our sole discretion and for reasons not limited to:
(a) is harmful to minors;
(b) promotes, solicits or comprises inappropriate, harassing, abusive, pornographic, violent, profane, defamatory, libelous, threatening, obscene, indecent, vulgar or otherwise objectionable or unlawful content or activity;
(c) attempts to mislead others about the Customer’s identity
(d) violates any law, statute, ordinance, or regulation (including without limitation copyright, patent, trademark, service mark, trade name, trade secret, or other intellectual property rights of any third party).
All content included on any SportSavvy webpage, as viewed as “white label” or directly, such as text, graphics, logos, button icons, images, audio clips and software, is the property of SportSavvy or its content suppliers and protected by Canadian, U.S. and international copyright laws. No part of this website may be reproduced or transmitted in any form without the express written consent of SportSavvy.
You accept unconditionally that the Service is distributed on "as is" basis without warranties of any kind, either expressed or implied.
If You use, or attempt to use Our service for purposes of, including but not limited to tampering, hacking, modifying or otherwise corrupting its security or functionality, fraudulent activity in connection with Our site, Your account will be terminated, and You will be subject to damages and other penalties under the laws of Ontario Canada, including criminal prosecution where available. Further, We reserve the right to prosecute a civil and/or criminal action against You where necessary including for any abusive behavior You engage in regarding Your participation in Our Program. You will also be subject to clean up fees including administration costs for damages incurred by Us for any violation of any term of this Agreement. You hereby authorize Us to charge these fees to Your credit card and/or account. We also reserve the right to deny payments for transactions We deem suspicious. If You are found to have engaged in any spamming practices, Your account will be subject to immediate termination and denial of payment. You also agree that We may, at Our discretion, publish on Our Site Your name and contact information including Your IP address, along with information regarding said spamming activity.
We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on Our website and/or by email notification. Modifications may include but are not limited to changes in the Commission Grid, payment procedures and PartnerSavvy program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT AND YOUR RELATIONSHIP WITH SPORTSAVVY. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
Any claim arising out of or relating to this Agreement shall be settled by binding arbitration in accordance with the commercial arbitration laws of Ontario. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in Waterloo, Ontario and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Either You or Us may seek any interim or preliminary relief from a court of competent jurisdiction in Waterloo, Ontario necessary to protect the rights or property of You or Us, pending the completion of arbitration.
This agreement will commence once your affiliate application has been accepted and will cease when terminated by either party. Termination may happen at any time, with or without cause, by giving the other party written notice of termination.
SportSavvy “PartnerSavvy” Online Registration
First Tier 25%
Second Tier 2.5%
PartnerSavvy Managers 1%
First Tier Sales Partners are paid 25% of the online registration fee (approximately $3.00 to $5.00 per player or approximately 2% of the league registration fee. Fees subject to change from time to time and without notice) on each player registration via our online registration module.
Second Tier Sales Affiliates are paid 10% of the fee generated by their referred First Tier Sales Partner (2.5% net payment). Managers (non SportSavvy employees), promotions and bonuses may total an additional 2.5%, thus the total Affiliate payout may be up to 30% of the online registration fee. Referred First Tier Sales Partners will need to be recorded as such on your Sales Partner’s page in order for you to receive Second Tier commission payments. PARTNERSAVVY SALESPERSONS NEED TO BE REGISTERED AS THE SALESPERSON ON ACCOUNT BY THE SPORTS ORGANIZATION WITHIN 30 DAYS OF THE SPORTS ORGANIZATION REGISTERING FOR OUR SOFTWARE, AND NO LATER THAN 10 DAYS AFTER THE FIRST PLAYER REGISTRATION OCCURS. SPORTS ORGANIZATIONS AND/OR CUSTOMERS THAT DO NOT HAVE A REGISTERED SALESPERSON REGISTERED TO THE ACCOUNT WITHIN THIS TIME PERIOD WILL NOT BE ELIGIBLE ACCOUNTS FOR THIS PROGRAM.
Commissions are made the second month following the sale. For example, payment for September's sale will be in November. In accordance with this agreement, customers introduced to Us by You will continue to payout at the appropriate posted affiliate payout for so long as You remain a PartnerSavvy partner and the Client remains an active customer.
Commissions are paid when affiliate reaches a $50 balance. Affiliate commissions are processed on the 1st of the month and payment will be sent out on the 10th of the month in the form of a check payable to the "name" as described in the application form. Accounts under the $50 balance are carried forward to the next sales period until commissions have accumulated to the $50 threshold. Commission payouts that have not exceeded $50 for a period of 3 years will be forfeited by You and recaptured by SportSavvy.
The cookie duration/introduction relation is 60 days, i.e. you will be entitled to receive the commission if a customer completes a sale within 60 days of finding us from your referral/sales presentation. Only one PartnerSavvy salesperson can receive payment for any given sports organization. If you require more time to close a sale it is your responsibility to let Us know [email protected]
We may or may not provide You with more exclusive time.
Sales Partners cannot use the community forums within SportSavvy or Our related sites, including any SkinPartner’s site, to generate sales. Any affiliate sale discovered to be the result, direct or otherwise, of these forums will be voided, and the affiliate will be suspended or terminated at our sole discretion.
Commission can only be earned between the acceptance of the Affiliate application and notice of termination. Fees will be paid by SportSavvy. Any returned cheques, charge backs or fees from a returned order will be adjusted in the next fee payment, and in accordance with this agreement.
Sales Partners can not earn commission on the purchase of their own SportSavvy account. SalesPartners must be individuals and not the sports organization that is using Our service. Any questions concerning this paragraph are welcomed [email protected]
Each of Us (the Warrantor) hereby represents and warrants to the other party as follows:
This Agreement has been duly and validly executed and delivered by the Warrantor and constitutes its legal, valid, and binding obligation, enforceable against the Warrantor in accordance with its terms.
The execution, delivery, and performance by the Warrantor of this Agreement and the consummation of the transactions contemplated hereby will not, with or without giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule or regulation to which the Warrantor is subject, (ii) any order, judgment or decree applicable to or binding upon the Warrantor's assets, (iii) any provision of the Warrantor's by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to or binding upon the Warrantor's assets.
No consent, approval, authorization of, exemption by or filing with any governmental authority or any third party is required to be obtained or made by the Warrantor in connection with the execution, delivery and performance of this Agreement or the taking by the Warrantor of any other action contemplated hereby.
There is no pending or, to the best of the Warrantor's knowledge, threatened claim, action, or proceeding against Warrantor with respect to the execution, delivery or consummation of this Agreement, or with respect to the Warrantor's trademarks, and, to the best of the Warrantor's knowledge, there is no basis for any such claim, action, or proceeding.
You hereby represent and warrant to Us that You will not infringe upon any trademark, trade name, service mark, copyright or other proprietary right of any other person or entity.
Except as otherwise provided in this Agreement or with the consent of the other party hereto, each of the parties hereto agrees that all information including, without limitation, the terms of this Agreement, business and financial information, customer, and pricing and sales information, concerning Us or You or any of Our Referrals provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by such party for its own business purposes or for any other purpose except and solely to the extent that any such information is in furtherance of the purpose of this Agreement or is generally known or available to the public or through a source or sources other than such party hereto or its affiliates. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information (a) to any person pursuant to a subpoena issued by any court or administrative agency, (b) to its accountants, attorneys or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation or legal process.
Damages Disclaimer; Limitation of Liability:
SPORTSAVVY DOES NOT WARRANT FOR THE SERVICE IT IS PROVIDING.
SPORTSAVVY DISCLAIMS ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PURPOSE STATED OR DESIRED BY THE CUSTOMER. SPORTSAVVY DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED.
IN NO EVENT WILL SPORTSAVVY NOR ITS AGENTS, EMPLOYEES, DIRECTORS, MANAGERS, OFFICERS, CONSULTANTS OR SUPPLIERS BE LIABLE FOR LOSSES OR DAMAGES HEREUNDER OR UNDER ANY SERVICES SCHEDULE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL LOSS OR DAMAGE (EVEN IF SPORTSAVVY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS) INCLUDING, BUT NOT LIMITED TO, LOST BUSINESS REVENUE, LOSS OF PROFITS, LOSS OF DATA, FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS OR OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND OR ANY CLAIM BY THE CUSTOMER AND/OR SALESPERSON OR BY ANY OTHER PERSON RESULTING FROM OR ARISING IN ANY CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT, ANY SERVICES SCHEDULE OR ANY OBLIGATION HEREUNDER OR THEREUNDER (INCLUDING THE SERVICES), HOWSOEVER CAUSED (INCLUDING BREACH OF A WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT, OR ANY LEGAL, STATUTORY OR EQUITABLE CAUSE OF ACTION).
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS AGREEMENT SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND OR CLAIM BY THE CUSTOMER, INCLUDING, WITHOUT LIMITATION BREACH OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY AND SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT.
This Agreement shall be governed in all respects by the laws of Ontario. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck, and the remaining provisions shall be enforced. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by You or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between You and Us with respect to the subject matter hereof.
You hereby agree to indemnify, defend and hold harmless SportSavvy, its officers, directors, employees, shareholders, partners, agents, members, successors, assigns and other owners from and against any and all claims, losses, liabilities, damages or expenses (including attorney's fees and costs) of any nature whatsoever incurred or suffered by Us (collectively the "Losses"), in so far as such Losses (or actions in respect thereof) arise out of or are based on:
a) any claim or threatened claim that Our use of the member Trademarks infringes on the rights of any third party; b) the breach of any representation or warranty made by You herein; or, c) or any claim related to Your site.
SportSavvy reserves the right to modify, add or delete any documents, information, graphics or other content appearing on or in connection with the SportSavvy website, including this Agreement, at any time without notice.
All notices to Us in connection with this Agreement shall be deemed given as of the day they are received by Us at the following address:
XXXXX N. Unit B
Waterloo, Ontario Canada
All notices to You in connection with this Agreement shall be deemed given as of the day they are dispatched.
(need to click “I ACCEPT”)