This Agreement is between you (the “Partner”), and Bold Innovation Group Ltd. (“Bold”). Partner agrees to be bound by the Agreement by executing, including without limitation clicking through or electronically signing, any document that references this Agreement. This Agreement includes any and all terms and documents incorporated by reference.
Bold reserves the right to change, amend, and/or delete the terms of the Agreement at any time, in Bold’s sole discretion. The latest version of this document can be found here boldcommerce.com/partners/terms-and-conditions. In the event of a significant change to the Agreement, Bold will, where appropriate and at its sole discretion, notify by (a) email; and/or (b) posting a notice on the Partner Program website. You should check this page and partners.boldcommerce.com from time to time for any updates or changes that may impact you, and it is your sole responsibility to do so. After any amendment to this Agreement is posted to Bold’s Partner Program website, your continued participation in the Partner Program constitutes your agreement to, and acceptance of, the amended Agreement. If you do not agree to any changes to this Agreement, you must terminate this Agreement by discontinuing your participation in the Partner Program, subject to any other wind down obligations specified in any Additional Terms.
As used in this Agreement, “you” and “your” refers to you, the Partner; “we” means (and “us”, “our”, “ours” and “ourselves” refer to) Bold; and “Party” or “Parties” refers to both you and us.
SECTION 1: DEFINITIONS
“Active Partner” means a Partner (Agency Partner or Technology Partner) who successfully refers (a) one or more Bold Product(s) to Merchants grossing a minimum monthly Net Revenue of $100 USD and/or (b) one Bold Master Services Agreement in a year beginning from the Effective Date.
“Bold Products” mean software applications developed by Bold which without limitation include Cashier, Multicurrency, Subscriptions, Upsell, Bundles (full list of Bold Products available on boldcommerce.com/apps).
“Bold Master Services Agreement” means Bold’s master services agreement involving apps for high value Merchants.
“Bold Technology” means the technology and Intellectual Property that Bold uses to provide Bold Products.
“Effective Date” means the date you sign up to the Bold Partner Program.
“End User” means a customer who purchases a product(s) or service(s) from Merchants.
“Fees” means referral commission fees payable to Partner based on the applicable revenue sharing plan/commission as set forth on the Partner Program Rate Sheet.
“Intellectual Property” means all trade secrets, patents and patent applications, Marks, copyrights, moral rights, rights in inventions, and all other intellectual property and proprietary rights, whether registered or unregistered, any application for the foregoing, and all other equivalent rights that may exist anywhere in the world.
“Leads” means information of any person(s) or organization(s) who has the potential to become a Merchant.
“Mark” means any trade names, trademarks, service marks, marks and logos owned by a Party (whether registered or unregistered and including any goodwill acquired in such trademarks).
“Merchant” means an individual or business that uses Bold Products to sell products or services to End Users.
“Net Revenue” means all proceeds actually received by Bold in connection with the Bold Products referred by Merchant under the Partner Program, less any returns and chargebacks.
“Partner” or “Agency Partner” or “Technology Partner” means the Party who participates in Bold Partner Program:
“Agency Partner” is a Partner who promotes Bold Products to a Merchant;
“Technology Partner” is a Partner who, in addition to being an Agency Partner, develops applications, themes, integrations and plugins for Bold Products.
“Partner Program Rate Sheet” means the Partner Program established commission rates found here partners.boldcommerce.com.
“Partner Technology” means technology and Intellectual Property that the Partner develops as a Technology Partner to provide Bold Products to Merchants including without limitation computer software programs, extensions, integrations, themes, plugins Partner’s documentation, schematics, websites, networks, and equipment, as applicable.
“Solution” means any business or financial software provided by a Partner or third party, such as Enterprise Resource Planning (“ERP”), Customer Relationship Manager (“CRM”), or e-commerce platform, including all updates, modifications, and amendments.
“Term” shall mean the term of the Agreement commencing on the Effective Date and expiring on the date of termination according to this Agreement.
“Territory” means all jurisdictions globally where Bold operates a business or provides a service.
SECTION 2: ENGAGEMENT
2.1 By signing up to the Partner Program the Partner hereby chooses to be a partner of Bold and Bold hereby accepts such engagement to act as Bold’s non-exclusive Partner with respect to referral sales of Bold Products to Merchants in the Territory during the Term, solely in accordance with the terms and conditions of this Agreement. Bold may in its sole discretion engage any other person or entity to sell Bold Products.
2.2 Partner shall introduce Bold to Merchants and/or build integrations for Bold, and perform such other responsibilities as reasonably directed by Bold, including forwarding any information provided by Bold, but shall not participate in any sales meetings or negotiations nor have authority to offer or sell Bold Products directly to any Merchant.
SECTION 3: FEES & PAYMENT TERMS
3.1 Subject to Partner obtaining Active Partner status and remaining compliant with this Agreement, Partner shall be entitled to receive Fees from Bold, for referral of Merchants who sign up to and actively use Bold Products, pursuant to the terms of this Agreement, in an amount equal to the commission rate applicable to Partner under the Partner Program signed up to, as set forth in the Partner Program Rate Sheet. The status of each Active Partner will be reviewed by Bold on a monthly or annual basis, as applicable. In the event Partner loses Active Partner status but is subsequently reinstated by Bold in its sole discretion, Partner shall only be paid Fees payable subsequent to reinstatement and not any Fees Partner received or could have received prior to losing Active Partner status.
3.2 Upon actual receipt of payment from a Merchant, based on the Partner Program signed on to by Partner, Bold will make commercially reasonable efforts to pay Fees due to Partner as soon as possible after each quarter end (FYE April 30), but in no event later than sixty (60) days following quarter end (“Payment Period”). If payment from Merchant is received in increments or instalments then payment of Fees will accordingly be incremental or in instalments.
3.3 Where the Fees owing to Partner are greater than $100 USD at the end of any Payment Period, the Fees will be paid to Partner. If the Fees owing to Partner are less than $100 USD at the end of any Payment Period, Bold shall be entitled to withhold payment of Fees until the next appropriate Payment Period in which the balance of unpaid Fees owing to Partner from any previous Payment Period and Fees owing to Partner under the current Payment Period combined are $100 USD or more.
3.4 Notwithstanding anything to the contrary in this Agreement, Bold shall not be responsible to pay any Fees:
(a) upon loss of Active Partner status, notwithstanding any subsequent reinstatement of status;
(b) related to revenues that have been refunded to Merchants by Bold;
(c) for a referred Merchant created or owned in whole or in part, directly or indirectly, by a Partner;
(d) related to fraudulent sales or activity;
(e) for any chargebacks and the affiliated costs or fees;
(f) to Partners who are employed by Bold (through any type of arrangement, directly or indirectly);
(g) to Partners who are employed by the Merchant to whom the Fees relate.
(h) if Bold withdraws from the Partner Program or terminates the Agreement.
3.5 If any Fees paid by Bold are discovered to be subject to one (1) or more of the exclusions set out in section 3.4 above, or that have been paid in error, Bold shall have the right, in its sole discretion, to (a) reclaim any Fees paid in error; or (b) set off the amounts described in section 3.4 from payments due to Partner in future Payment Periods. If the Agreement is terminated before such amounts are fully repaid by Partner to Bold, Partner shall pay to Bold the remaining balance owed within thirty (30) days of the effective date of termination of this Agreement.
3.6 Bold reserves the right to modify the Fees and/or payment terms at any time upon reasonable notice to Partner in accordance with this Agreement. In the event of any disputes over Fees, Bold’s determination will be final and binding.
3.7 All payments shall be in United States Dollars (“USD”) and made by a Bold approved electronic transfer method.
SECTION 4: TERM & TERMINATION
4.1 Unless otherwise specified in this Agreement, the Term of this Agreement shall terminate upon the earlier of termination pursuant to this section 4 (Term & Termination), or upon the expiration of the Partner Program.
4.2 Either Party may terminate this Agreement at any time, with or without cause, upon thirty (30) days prior written notice to the other Party.
4.3 Bold may, in its sole discretion, terminate this Agreement or withdraw from participation in any Partner Program, without notice, if Partner (a) fails to remain an Active Partner, (b) materially breaches its obligations under this Agreement or (c) ceases to operate in the ordinary course, makes an assignment for the benefit of creditors, or becomes the subject of any bankruptcy, liquidation, dissolution, or similar proceeding that is not resolved within sixty (60) days of filing.
4.4 Upon termination, (a) all payment of Fees shall terminate immediately, with the exception of those Fees rightfully owed prior to such termination; (b) all licenses granted under this Agreement shall terminate; (c) subject to a Party’s wind down obligations, (i) Bold shall cease all use of Marks and technology belonging to the Partner, and (ii) Partner shall cease all use of the Marks and technology belonging to Bold including without limitation any Bold Products; and (d) Partner will immediately return or, if instructed, destroy or anonymize Bold’s Confidential Information in its possession or control except to the extent that returning or destroying such Confidential Information would constitute a violation of applicable law. Notwithstanding the foregoing, however, Partner may retain one (1) copy of Bold’s Confidential Information to the extent it is contained in computer archives made in the ordinary course of business that would be commercially impracticable to delete; provided, further, however, that, the obligations under this Agreement shall survive with respect to any Confidential Information that is so retained for the Term of this Agreement.
4.5 All provisions that by their nature should survive termination will do so (including without limitation indemnification and defense obligations, and duties of confidentiality).
SECTION 5: PARTNER OBLIGATIONS
5.1 Partner shall maintain Active Partner status.
5.2 Partner shall bear all costs and expenses related to Partner’s marketing or promotion of Bold Products in any area, location, territory or jurisdiction, unless otherwise determined by Bold in its sole discretion. In conducting all marketing activities, Partner shall comply with all applicable laws, rules, regulations and directives, including but not limited to those relating to commercial electronic messages, email marketing and “spamming”.
5.3 With respect to Bold Products, Partner shall not (a) engage in any online or offline marketing methods in violation of law; (b) imply that any aggressive or illegal marketing is sent regarding or on behalf of Bold or Bold Products; (c) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings; (d) make any false, misleading or disparaging representations or statements; (e) solicit Merchants to leave Bold or terminate Bold Products; (f) engage in any other practices which may adversely affect the credibility or reputation of Bold; (g) violate any Intellectual Property or other proprietary rights; or (h) violate these Bold Partner Terms.
5.4 In the event of a breach of any obligation under this Agreement or of any information known to Partner that could reasonably lead to a claim, demand or liability of or against Bold, Partner shall promptly inform Bold of such.
5.5 If Partner is acting as an agent on behalf of a Merchant, then Partner shall (a) disclose to Bold that it is an agent of a Merchant and the nature of such relationships and (b) disclose to the Merchant any Fees that Partner is entitled to receive from Bold in accordance with this Agreement that are associated with such Merchant’s use of Bold Products.
5.6 Partner shall, without limiting the provisions of this Agreement, comply with all applicable laws, rules, and regulations, and shall perform its obligations specified herein to the highest applicable industry standards.
SECTION 6: INTELLECTUAL PROPERTY
6.1 Partner’s Intellectual Property
(a) Partner Technology. Partner retains all right, title, and interest in all Intellectual Property rights in the Partner Technology. Nothing in this Agreement transfers or conveys to Bold any ownership interest in the Partner Technology. Partner hereby grants to Bold a transferable (except as permitted under this Agreement), exclusive and sub-licensable license to: (i) demonstrate and sell the Partner Technology to Merchants; (ii) test the functionality of the Partner Technology to ensure that it is functional and compatible with Bold Technology and Bold Products; and (iii) use the Partner Technology to satisfy Bold’s other obligations.
(b) Partner Marks. Subject to the terms of this Agreement, Partner grants to Bold a limited, non-exclusive, non-transferable, revocable license to display Partner’s Marks solely to market and promote the relationship contemplated by this Agreement.
6.2 Bold’s Intellectual Property
(a) Bold Technology. Bold retains and owns all right, title, and interest in all Intellectual Property rights in the Bold Technology, Bold’s Documentation, Bold’s Confidential Information, the Bold Products, and all enhancements or improvements to, or derivative works of, the foregoing. Any work product created by the Bold Products (including any inventions used or developed by Bold or its subcontractors in connection with the Bold Products) will be Bold’s Intellectual Property. Nothing in this Agreement transfers to Partner any ownership interest in the Bold Intellectual Property.
(b) Restrictions. Partner shall use the Bold Products only as set forth in this Agreement and the Documentation. Partner shall not (i) reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from any of the Bold Technology, (ii) reproduce, modify, create, or prepare derivative works of any of the Bold Technology, Bold Products or Bold Documentation, (iii) except as permitted by this Agreement, distribute or display any of the Bold Technology or Bold Documentation, (iv) share, sell, rent, lease, or otherwise distribute access to the Bold Products, or use the Bold Products to operate any timesharing, service bureau, or similar business, (v) alter, destroy, or otherwise remove any proprietary notices within the Bold Technology or Documentation, or (vi) disclose the results of any Bold Products or program benchmark tests to any third parties without Bold’s prior written consent.
(c) Marketing Activities; Bold Marks. In conducting any marketing activities under a Partner Program, Partner shall use only those marketing materials Bold provides directly or approves in writing (“Bold Assets”). Partner shall use the Bold Assets and Bold Marks in compliance with all guidelines Bold provides. Partner shall not modify the Bold Assets or Bold Marks without Bold’s prior written approval. Bold grants Partner a limited, non-exclusive, non-transferable, non-assignable, revocable right to display the Bold Assets and Bold Marks solely to fulfill its obligations under this Agreement. This right to use terminates automatically when this Agreement terminates. Notwithstanding the foregoing, Bold retains all right, title, and interest in the Bold Assets and Bold Marks, and nothing in this Agreement confers any right of ownership in the Bold Assets or Bold Marks on Partner, and all use of them inures to Bold’s benefit.
6.3 Open Source. To the extent that any open-source software created and made available by either party has been used in, incorporated into, integrated or bundled with, or used in the development or compilation of, any Partner Technology or Bold Technology (“Open-Source Software”), each party hereby grants to the other solely for the purposes of this Agreement, a non-exclusive, royalty-free, worldwide license to use, reproduce, modify, display, perform, sublicense and distribute the Open-Source Software. To the extent required by the license that accompanies the Open-Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open-Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
SECTION 7: CONFIDENTIALITY
7.1 “Confidential Information” shall include, without limitation, any and all information associated with a Party’s business not publicly known, including specific business information, technical processes and formulas, software, customer lists, prospective customer lists, names, addresses and other information regarding customers and prospective customers, product designs, sales, costs (including any relevant processing fees), price lists, and other unpublished financial information, business plans and marketing data, and any other confidential and proprietary information, whether or not marked as confidential or proprietary. For the avoidance of doubt, as between Bold and Partner, all information provided by Bold including Merchant or customer data is the Confidential Information of Bold.
7.2 Each Party agrees to use the other Party’s Confidential Information solely as necessary for performing its obligations under this Agreement and in accordance with any other obligations in this Agreement including this Section 7 (Confidentiality). Each Party agrees that it shall take all reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent duplication, disclosure or use of any such Confidential Information, other than (a) by or to its employees, agents and subcontractors who must have access to such Confidential Information to perform such Party’s obligations hereunder, who each shall treat such Confidential Information as provided herein, and who are each subject to obligations of confidentiality to such Party that are at least as stringent as those contained herein; or (b) as required by any law, regulation, or order of any court of proper jurisdiction over the Parties and the subject matter contained in this Agreement, provided that, if legally permitted, the receiving Party shall give the disclosing Party prompt written notice and use commercially reasonable efforts to ensure that such disclosure is accorded confidential treatment.
7.3 Confidential Information shall not include any information that the receiving Party can prove: (a) was already in the public domain, or was already known by or in the possession of the receiving Party, at the time of disclosure of such information; (b) is independently developed by the receiving Party without use of or reference to the other Party’s Confidential Information, and without breaching any provisions of this Agreement; or (c) is thereafter rightly obtained by the receiving Party from a source other than the disclosing Party without breaching any provision of this Agreement.
SECTION 8: REPRESENTATIONS & WARRANTIES
8.1 Each Party represents and warrants to the other Party that (a) it has the authority to enter into this Agreement and perform its obligations hereunder; (b) this Agreement does not conflict with any other agreement entered into by it; and (c) it does not conduct business for any unlawful purpose.
8.2 Partner represents and warrants that: (a) the information Partner provides in connection with any Program, including Leads and registration information of referred Merchants and their billing information is current, accurate, and complete; (b) to the extent Partner provides any Personal Information of data subjects protected by the GDPR, Partner has the affirmative prior consent of the data subjects to provide such Personal Information to Bold; (c) Partner will not engage in any unfair or deceptive marketing practices whether by statement, act, omission, or implication and will immediately cease all such marketing upon a written request from Bold; and (d) any Leads or referred Merchants that Partner provides are not on the United States Department of Treasury, Office of Foreign Asset Control’s list of Specially Designated National and Blocked Persons.
SECTION 9: DISCLAIMER OF WARRANTY
9.1 Except as expressly provided in this Agreement, the Bold Products are provided on an “as is” and “as available” basis, and Bold makes no warranties of any kind, whether express, implied, statutory, or otherwise, and specifically disclaims all implied warranties to the maximum extent permitted by applicable law.
SECTION 10: LIMITATION OF LIABILITY AND INDEMNIFICATION
10.1 Bold shall have no liability with respect to Bold’s obligations under this Agreement or otherwise for any direct, indirect, incidental, special, consequential, or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses resulting in any way from the Bold Products or Partner’s participation or inability to participate in the Partner Program even if Bold has been advised of the possibility of such damages. In any event, Partner acknowledges that Bold has no liability to Partner under this Agreement for any reason at any time. This limitation applies to all causes of action in the aggregate, including, but not limited to, breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts. The relationship between a Merchant and a Partner is strictly between the Merchant and the Partner, and Bold is not obligated to intervene in any dispute arising between the Merchant and the Partner. Under no circumstances shall Bold be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from or relate to the Partner’s relationship with any Merchant or other third party. These limitations shall apply even if Bold has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.
10.2 Partner agrees to indemnify, defend and hold harmless Bold and the directors, officers, employees, subcontractors and agents thereof (each, an “Indemnified Party”, and collectively, the “Indemnified Parties”), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees (collectively, “Claims”), to the extent that such claim is based upon or arises out of: (a) Partner’s breach of any representation, warranty, obligation or covenant under this Agreement; (b) Partner’s gross negligence or willful misconduct; (c) any warranty, condition, representation, indemnity or guarantee relating to Bold granted by Partner to any Merchant, prospective Partner or other third party; (d) Partner’s use of the Bold Products; (e) Partner’s breach of any term of this Agreement (including any documents it incorporates by reference) or a Merchant agreement that Partner is party to; (f) any third party claim including without limitation infringement of intellectual property or other rights of a third party; (g) the performance, non-performance or improper performance by Partner; and (h) Partner’s relationship with any Merchant.
10.3 In claiming any indemnification hereunder, the Indemnified Party shall promptly provide Partner with written notice of any claim which the Indemnified Party believes falls within the scope of the indemnifications provided under this Agreement. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that the Indemnified Party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that the Partner will not make any admission on behalf of the Indemnified Party or agree to any terms or conditions that do or reasonably could result in any admission by, or the imposition of any liability upon, the Indemnified Party without the prior written approval of the Indemnified Party.
10.4 In the event of any breach or threatened breach by Partner of any provision of section 2 (Partner Obligations), section 6 (Intellectual Property) and/or section 7 (Confidentiality) above, in addition to all other rights and remedies available to Bold under this Agreement and under applicable law, Bold shall have the right to (a) immediately enjoin all such activity, without the necessity of showing damages or posting bond or other security; (b) immediately terminate this Agreement and Partner’s engagement hereunder; (c) receive a prompt refund of all amounts paid to Partner hereunder; and (d) be indemnified for any losses, damages or liability incurred by Bold in connection with such violation, in accordance with the provisions of Section 9 (Disclaimer of Warranty).
SECTION 11: GENERAL PROVISIONS
11.1 Age. If the Partner is an individual, Partner must be 18 years old or older, or at least the age of majority and consent in the jurisdiction where the Partner resides.
11.2 Creating a Partner Account. To become a Partner, Partner must create a Partner account by providing all information indicated as required in the Partner Program. Bold may reject an application for a Partner account for any reason, in its sole discretion. Partner acknowledges that Bold will use the email address provided by Partner as the primary method for communication. Partner is responsible for keeping its email address updated and Partner Account password secure. Bold cannot and will not be liable for any loss or damage arising from incorrect email or lack of security measures by Partner.
11.3 For Employees. If you sign up for a Partner Account on behalf of your employer, your employer shall be deemed to be the Partner for the purpose of this Agreement, and you represent and warrant that you have the authority to bind your employer to this Agreement. Each Partner is: (a) responsible for ensuring that its employees, agents and subcontractors comply with this Agreement; and (b) liable for any breach of this Agreement by Partner’s officers, directors, employees, agents or subcontractors.
11.4 Audit and Inspection Rights. During the Term of this Agreement, Bold, or its representatives under an appropriate confidentiality obligation, may inspect and audit Partner's books, records and other documents as necessary to verify compliance with the terms and conditions of this Agreement. Bold shall bear all of the costs of any such audit, unless such audit reveals underpayment by, or overpayment to, Partner by more than five percent (5%) for the audited period, in which case, Partner shall reimburse Bold for all of the reasonable costs of such audit.
11.5 Performance. Partner acknowledges and agrees that Partner will be responsible for the performance of all of its obligations under this Agreement, regardless of whether it sublicenses or subcontracts any such obligations to any third party, including but not limited to any affiliates or subsidiaries of Partner.
11.6 Relationship of the Parties. This Agreement does not constitute and shall not be construed as constituting a partnership, joint venture or principal-agency relationship between the Parties. Neither of the Parties nor any of their respective employees or agents, shall have any power, authority or right to obligate or bind the other Party in any manner whatsoever.
11.7 Governing Law & Jurisdiction. This Agreement will be governed by the laws of the Province of Manitoba, without regard to any laws, treaties, or conflicts of laws principles that would apply the law of any other jurisdiction. For any claims or causes of action arising out of this Agreement, the Parties agree to the exclusive jurisdiction of, and courts in, the Province of Manitoba.
11.8 Equitable Relief. Each Party acknowledges that damages may be an inadequate remedy if the other Party violates the obligations under this Agreement, and each Party shall have the right, in addition to any other rights it may have, to seek injunctive relief without any obligation to post any bond or similar security.
11.9 Force Majeure. Neither Party shall be liable for delay or failure in performance resulting from acts beyond the control of such Party, including but not limited to acts of God, acts of war, riot, fire, flood or other disaster, acts of government, strike, lockout or communication line or power failure.
11.10 Notices. Bold will communicate announcements of general interest by email or by posting on its website. Bold will provide Partner with legal notices by email, mail, or courier to the address provided by Partner. Partner shall immediately notify Bold if Partner’s address for notice changes. Except as otherwise specified in this Agreement, all notices must be in writing, with account notices sent to [email protected] and legal notices sent to [email protected].
11.11 Successors and Assigns. Either Party may assign this Agreement without the other Party’s consent to an entity that acquires all or substantially all of its assets or that is an Affiliate of the assigning Party, provided that (a) the assigning Party must provide notice to the other Party of the assignment, (b) the assignee must agree in writing to be bound by this Agreement, and (c) the non-assigning Party may prohibit assignment to a competitor. Except as provided above, neither Party may assign its rights or obligations under this Agreement without the other Party’s prior written consent, such consent not to be unreasonably withheld or delayed, and any attempt to so assign this Agreement will be null and void. This Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns.
11.12 Severability. If any provision of this Agreement is determined to be invalid or unenforceable by any court, then to the fullest extent permitted by law, that provision will be deemed modified to the extent necessary to make it enforceable and consistent with the original intent of the Parties and all other provisions of this Agreement will remain in full force and effect.