(Hereafter the "Agreement or "Contract") is made and entered into on the day, month and year in which this Agreement is time stamped by Our Website, and is effective on the date by which this Agreement is agreed to and signed, the Independent Sales Representative Program Application is accepted by Boomerang Elite Inc., and the Independent Sales Representative has completed their training (hereinafter the "Effective Date").
Boomerang Elite Inc.,
a corporation duly incorporated under the laws of Quebec, having its principal place of business at
1675 Trans-Canada Route,
Email: [email protected]
Phone number: +1-800-652-0079
(Hereafter "Boomerang Elite", "BE" "us", "we", "our", "Owner", )
||"You", "Participant", "ISR", "Representative", "Recipient" or "Your" means the person or entity who is entering into the ISR Program associated with this Agreement.
(Hereafter "you", "your", "they", "ISR", "representative", "Participant", or "Recipient")
(Hereinafter, collectively, the "Party" and "Parties")
In consideration of the terms and covenants of this Agreement, and other valuable consideration, the parties agree as follows:
- The name of the program stipulated in this Agreement is the Boomerang Elite Independent Sales Representative Program (hereafter "ISR Program");
- THIS AGREEMENT TRULY AND COMPLETELY DEFINES THE UNDERSTANDING REACHED BETWEEN THE PARTIES;
- EACH AND EVERY ONE OF THE PROVISIONS OF THIS AGREEMENT IS LEGIBLE;
- YOU DID NOT ENCOUNTER ANY DIFFICULTIES IN UNDERSTANDING THE PROVISIONS OF THIS AGREEMENT; AND
- BEFORE SIGNING THIS AGREEMENT, EACH PARTY HAD THE OPPORTUNITY TO CONSULT A LEGAL ADVISER.
- "Applicable Laws": means all applicable laws, regulations, ordinances, and other rules of the federal, provincial, municipality, territory, parish, county, local government or political subdivision thereof or any other duly constituted public authority having jurisdiction over the Parties or the activities being performed;
- "Boomerang Elite", "BE", "us", "we", "our", or "Owner": shall mean Boomerang Élite Inc. as specified on the first page of this agreement and are the sponsor of the ISR program;
- "Boomerang Elite website", "our website", or "Owner’s website": shall refer to the website that we maintain at https://boomerangelite.com/;
- "Business": shall have the meaning of an organized economic activity as stipulated in Section 1525 para. 3 of the Québec Civil Code;
- "Claims": means any and all liabilities, judgments, costs (including court costs, reasonable attorney’s fees and costs of investigation), fines, penalties, expenses, damages, claims, causes of action, suits and demands, whether based in tort, contract, civil responsibility, strict liability, or otherwise, and whether or not there be any basis in law or in fact;
- "Confidential Information": shall include all information which:
- is confidential:
- by its very nature, at the request of the Party who owns it, or as a result of a presumption which the other Party draws or should draw;
- whether or not its tangible representation bears the legend "confidential" or any other similar legend;
- originates from one of the Parties or its subsidiaries or affiliates, or from any client, supplier, associate or third Party;
- is presented in any form whatsoever, including in verbal, written, visual, auditory, electronic or other forms;
- is supplied, disclosed, communicated or otherwise transmitted to the Interested Party; and
- is not generally known to the public or to any person who could benefit economically from its disclosure.
- Confidential Information shall include all tangible and intangible elements constituting such Information (hereinafter, "Confidential Information Elements"), including the following, without limitation:
- plans, specifications, drawings, sketches, standards, practices, instructions, processes, recipes, formulas, methods, techniques, tactics, policies, methods of use, operations manuals, organization charts, compilations and documentation;
- software, computer files, flowcharts, object codes, source codes and algorithms;
- data, regardless of its nature (i.e. accounting, financial, statistical or other), form or medium;
- samples, prototypes, goods in process, finished goods, accessories and replacement parts;
- equipment, tools, apparatus and machinery;
- Cost lists, price lists, client lists, supplier lists, employee lists, accounts payable lists and accounts receivable lists, as well as all information elements relating to all or part of the said lists;
- minute books and corporate seals, contracts, draft contracts, letters of understanding, offers (whether or not accepted) and proposals;
- annual, semi-annual, quarterly, monthly, forecasted and budgeted financial statements, whether or not published, as well as the notes relating thereto;
- books of account;
- studies, reports, market studies, forecasts and opportunity appraisals;
- inventions, discoveries, improvements, know-how, trade secrets, ideas, research projects and other intellectual or industrial property elements;
- Patentable ideas, registerable industrial designs and copyrights; and
- business plans, marketing plans, development plans, strategies, forecasts and business projections.
- "Control" means ownership, directly or indirectly, of fifty percent (50%) or more of either the outstanding voting stock of the controlled entity or any other ownership interest in the controlled entity if such interest has, directly or indirectly, the power to direct or cause the direction of the management and policies of such relevant entity;
- "Dispute" means any dispute arising out of or relating to this Agreement or a breach thereof;
- "Dollars" shall mean American dollars, unless specified differently in this Agreement;
- "Effective Date" shall mean the date of signing of this Agreement on the first page of this Agreement, provided the conditions on the first page are met;
- "Force Majeure" shall mean any causes, whether of the kind herein enumerated or otherwise, not within the control of the Party claiming suspension and which by the exercise of due diligence such Party could not have prevented, including any act of God, any act or omission of any government authority, explosions, fire, riot, war;
- "Independent Sales Representative", "you", "your", "they", "ISR", "representative", "Participants" or "Recipient": refers to the Individual or legal entity who applies for and is accepted into the ISR Program who is an independent third-party contractor of Boomerang Elite and are not otherwise affiliated with Boomerang Elite.
- "Independent Sales Representative Program", "Independent Sales Representative Plan", "ISR program", "ISR plan", "Program" or "Plan": is the membership program of Boomerang Elite Inc.
- "Independent Sales Representative’s website", "Your Website", "their website", "ISR’s website", "representative’ website" or "Recipient’s website": refers to the website that we create for you as per the terms of this Agreement and on which you agree to place a link to our website as specified hereof;
- "Materials": shall mean all writings, objects, or things of any nature given to you by us with the intention to assist you in running your Business;
- "Merchandise", "machines", "product", or "services": means all products, merchandise, stock, and services that is offered by us through our website;
- "Customer", "client", "potential customer", or "potential client": shall mean persons who purchase, agree to purchase, wish or are interesting in purchasing merchandise, product,s or services from Boomerang Elite;
- "Social Media": shall only mean Facebook, Twitter, Youtube, and Instagram, their use for the purposes of this Agreement are subject to this Agreement;
- "Third Party": is a person, either natural or legal, who is not either you or us.
- The goal of this Agreement is for you, as ISR, to sell our merchandise to customers or potential customers.
ISR PROGRAM REGISTRATION & TRAINING
- To register for the ISR Program, you must complete and submit to us an ISR Program Application form, sign this Agreement, and complete our ISR training. The ISR Program Application form is included on Our Website and can be completed and submitted through Our Website;
- ISR training will review your obligations as an ISR and how you can adhere to this Agreement and maintain compliance regarding laws and regulations applicable in the Province of Quebec;
- You will be subjected, from time to time, to continuous training to ensure maintained compliance and to update you on laws, modifications to this Agreement, and relevant news, and events;
- Such ISR training is only intended to ensure compliance and for us to comply with our due diligence obligations and do not limit or encroach on your Independent Contractor Status as stipulated in Section 28;
- Notwithstanding anything to the contrary, your ISR training does not exonerate you in any way whatsoever from your responsibilities pursuant Section 11.7.1.
1COST OF MATERIALS
- After successfully completing and submitting to us an ISR Program Application form, signing, and consenting to this Agreement, completing our ISR training, and being approved as an ISR, we will charge you ninety-nine (99$) dollars to build you a website so that you may participate in the ISR Program;
- We will further charge you nineteen (19$) dollars annually on the anniversary of the Effective Date to host your website;
- We may, at any time and at our discretion, request that you buy materials in order to participate in the ISR Program;
- We represent and warrant to you that we make no profit on the sale of materials, your website, and the hosting of Your Website. These goods and services are sold at cost;
- We reserve the right to add, remove, or modify the materials and Your Website that you need to be part of the ISR program at any time. We will give you a written notice of any of these additions, removals, or modifications, all of which will be subject and compliant with this Section 5, notably Section 5.5;
- We reserve the right to modify the price of the materials and Your Website that you need to be part of the ISR Program at any time. We will give you a written notice of any of these additions, removals, or modifications, all of which will be subject and compliant with this Section 5, notably Section 5.5.
APPROVAL OR REJECTION OF ISR APPLICATION
- We reserve the right to approve or reject any ISR application at our sole and absolute discretion. You will have no legal recourse against us for the rejection of your or any other ISR application.
REASONS FOR REJECTION
- Without limiting the right to reject any application for any reason whatsoever in our absolute discretion, your application will be rejected if it is not complete, if your website, your online profile, or your actions and representations contain images or content that is not acceptable to us, is against the provisions of this Agreement, is inconsistent with the image that we wish to create, or if your website, your online profile or your actions and representations contain any illegal, immoral, repulsive, defamatory, derogatory, harassing, harmful, threatening, obscene, vulgar, pornographic, racial or ethnic objectionable materials, depicts sexual situations, promotes discrimination on the basis of race, sex, sexual preference, national origin, ethnicity, nationality, disability, religious preference, or if you or your website appear to us to violate any patent, trademark, copyright, trade secret, confidential information, the provisions of this agreement, the law, or any other property rights of any other party or third party.
TERMINATION AFTER ACCEPTANCE
- Even after we have accepted you as an ISR, we reserve the absolute right to rescind, annual, or terminate your ISR status for any reason at our sole and absolute discretion, including but not limited to the reasons set forth above.
- Subject to Section 5, you will be fully responsible for all costs and expenses of maintaining and marketing your Business. You hereby hold us harmless from and against the same.
REPRESENTATIONS REGARDING COMPENSATION OR INCOME POTENTIAL
- You make no representations or warranties whatsoever regarding compensation or potential income that may result from the participation in this ISR Program and specifically disclaim any and all warranties relative to compensation or earning potential from having ISR status;
- However, and without limiting the absolute scope of Section 10.1 , if you decide to contravene Section 10.1, we inform you that, pursuant to the Competition Act of Canada, to which our ISR Program is subject, no person shall make any representations relating to compensation under the plan to a prospective participant in the plan unless the representations constitute or include fair, reasonable and timely disclosure of the information within the knowledge of the person making the representations relating to:
- compensation actually received by typical participants in the plan; or
- compensation likely to be received by typical participants in the plan, having regard to any relevant considerations, including:
- the nature of the product, including its price and availability,
- the nature of the relevant market for the product,
- the nature of the plan and similar plans, and
- whether we are a corporation, partnership, sole proprietorship or other forms of business organization.
- By signing and consenting to this Agreement, you represent and declare that we have ensured that you shall make that no representations relating to compensation or potential earnings under this ISR program;
- By signing and consenting to this Agreement, you represent and declare that if you decide to contravene Sections 10.1, 10.3 or any other provisions of this Agreement, that we have sufficiently informed you of the dispositions of the Competition Act of Canada, and that your representations which are contrary to this Agreement relating to compensation under the plan that is made to a prospective Participant in the plan or a Participant must constitute or include fair, reasonable and timely disclosure of the information relating to:
- compensation actually received by typical Participants in the plan; or
- compensation likely to be received by typical Participants in the plan, having regard to any relevant considerations, including those specified in Section 10.2.2.
- For more information, please read Sections 55 and 55.1 of the Competition Act of Canada.
REPRESENTATIONS REGARDING MERCHANDISE
You hereby represent and warrant the following:
- You shall never represent to customers or potential customers of Boomerang Elite that there is an expectation or promise of profit in any way shape or form when a customer purchases or thinks about purchasing merchandise from us;
- You shall represent to customers or potential customers of Boomerang Elite that there is no expectation or promise of profit in any way shape or form when the merchandise is operated;
- You shall represent to customers or potential customers of Boomerang Elite in the clearest and most certain terms that they will make and must expect zero (0) dollars, in fiat currency or in kind, from the purchase of merchandise;
- You shall represent to customers or potential customers of Boomerang Elite that the sale of merchandise cannot be considered an investment of any type. You represent, by signing and consenting to this Agreement, that you will never use the word "investment" to describe or allude to the sale of merchandise to a customer or a potential customer;
- If a potential customer or a customer believes that there is an expectation of profit, that they expect to make more than zero (0) dollars or that they believe that the sale of the merchandise as an investment, you shall not sell them the merchandise;
- You shall represent to potential customers or customers of Boomerang Elite that neither you nor us deal with any effect of the operation of the merchandise.
- That you are fully compliant with any law and regulations applicable to you in your jurisdiction with regards to the sale of the merchandise;
- That you will not give any form of investment, trading, or securities advice to potential customers or customers;
- That you shall represent and ensure that a customer or a potential customer knows that you and Boomerang Elite cannot and are not giving any form of investment, trading, or securities advice to them and that you and Boomerang Elite are not an advisor, an agent, an underwriter, a dealer, an investment dealer, a distributor, an investment fund, a mutual fund, a mutual fund dealer, scholarship fund dealer, exempt market dealer, a restricted dealer or a non-redeemable investment fund as the terms are defined by the Securities Act of Québec (V-1.1);
- If a potential customer or a customer believes that you or Boomerang Elite is giving investment, trading, or securities advice or that they believe that you or Boomerang Elite is an advisor, an agent, an underwriter, a dealer, an investment dealer, a distributor, an investment fund, a mutual fund, a mutual fund dealer, scholarship fund dealer, exempt market dealer, a restricted dealer or a non-redeemable investment fund as the terms are defined by the Securities Act of Québec (V-1.1), you shall not sell them the merchandise;
- That you shall represent and ensure that a customer or a potential customer knows that we and you do not sell or dispose of a security by onerous title; participate as a trader in any transaction in a security through the facilities of an exchange or a quotation and trade reporting system; receive by a registrant of an order to buy or sell a security; transfer or give in guarantee of securities of an issuer from the holdings of a control person in connection with a debt;
- If a potential customer or a customer believes that you or Boomerang Elite is selling or disposing of a security by onerous title; participating as a trader in any transaction in a security through the facilities of an exchange or a quotation and trade reporting system; receiving by a registrant of an order to buy or sell a security; transferring or giving in guarantee of securities of an issuer from the holdings of a control person in connection with a debt, you shall not sell them the merchandise;
- That you will ensure that you and a potential customer or customer understand and comprehend :
- What are Application-specific integrated circuit (ASIC) machines, cryptocurrency, digital currency, digital assets, blockchain, distributed ledger technology, cryptocurrency mining, hash power, hash rates, cryptocurrency wallets, Bitcoin (BTC), Ethereum, and all other major cryptocurrencies;
- how finance, fintech, markets, accounting, and investments work; that you have studied finance and investments and have made investments in the past; that you understand economics;
- How software development, programming, and coding work as well as understand different coding languages and methods;
- That you will keep yourself educated, up-to-date, and informed with regards to all the subjects enumerated in Section 11.7.1;
- Before initiating, soliciting or finalizing a sale of merchandise to a customer or a potential customer, you will ensure that the customer or the potential customer is fully aware of all the matters stipulated in this Section 11.
RANDOM COMPLIANCE CHECKS
- To ensure the performance of this Agreement, we will conduct random compliance tests of all ISRs to ensure that you are compliant with the dispositions of this Agreement, notably, with regards to your obligations pursuant to Sections 10 & 11;
- By agreeing and consenting to this Agreement, you grant us the authorization to conduct these random compliance checks and you waive any privacy rights you may have to the fullest extent provided by the law;
- These random compliance tests will be conducted digitally and in person:
- Digital compliance tests will be in which we will review your website, your Social Media, and any other content and communication you put online;
- Personal compliance tests will be conducted by Boomerang Elite disguised as a potential customer to ensure compliance;
- By agreeing and consenting to this Agreement, you grant us permission to review any communication you make with a potential customer or customer of Boomerang Elite whether via email, SMS message, Social Media message or otherwise, upon request from Boomerang Elite.
- Such Random Compliance checks are only intended to ensure compliance and for us to comply with our due diligence obligations and do not limit or encroach on your Independent Contractor status as stipulated in Section 28.
RESPONSIBILITY TO LINK TO OWNER’S WEBSITE
- As an ISR, you will have the obligations to place links on your website or Social Media directing customers or potential customers to Our Website. We will make available to you button links, text links, and banner advertisements to be placed on your website which will direct customers or potential customers to our website via a hypertext link. As an ISR, you are given a limited term license, during the term of your active participation as an ISR or the term of this Agreement, whichever is shorter, to utilize our logo images provided to you on the website that you designate in the ISR Program Application;
- We make available to you links, banners, and other information advertising our website. Such material is to be used subject to the terms of this Agreement. These materials will contain copyrights, trademarks and other proprietary or intellectual property. You may display these materials on your website for the purpose of promoting our site and participating in the ISR program. If you discontinue the ISR program or if your participation is terminated for any reason, you will immediately cease using these materials and will delete all such materials from your website and from your computers, tablets, cellular phones or other electronic devices. You must obtain our approval of all links to our website that you place on your website. You will cooperate with us in the establishment and placement of links on your website;
- You will only be permitted to use the links that we provide to you on the website that you designate in the ISR Program Application. Any additional websites or entities will require additional submissions of ISR Program Applications and express written approval by us;
- You will not modify the links or other materials that we provide to you or the placement of the links on your website. You consent that we monitor your website to determine continued compliance with this Agreement;
- You consent that we include information relative to traffic from your website in our reports. The information may be provided to third parties;
- You may not place links to our website or website content in newsgroups, message boards, unsolicited email and other types of spam, banner networks, counters, chat rooms, guestbooks, IRC channels or through similar internet sources.
- We strictly forbid the use of unsolicited commercial email (hereafter, "UCE") or SPAM campaigns. We maintain a Zero-Tolerance policy against SPAM, be it direct, third party or any affiliate or similar agent acting on your behalf. As such, we reserve the right to terminate any violating ISR’s account or any part thereof, without notice or compensation;
- Any ISR found to be involved in a SPAM/UCE campaign, including flooding newsgroups, distributing messages to recipients that do not want the information or any other abuse contravening UCE or SPAM legislation will be met as follows:
- Your account will be closed immediately, without the burden of notice of compensation;
- A five hundred dollar (500$) in liquidated damages will be incurred against you;
- In addition to the liquidated damages pursuant to Section 14.2.2 that will be incurred against you for violating this Section 15 or any UCE or SPAM legislation, you will be held accountable for any monetary damages suffered by us, sustained through contravention of this Agreement. This will include, but not limited to punitive damages related to lost clients and brand deterioration;
- We will be responsible for handling all customer inquiries, merchandise orders, customer billing and collection, merchandise delivery relative to customers that enter into our website through the links from your website. Pricing of our merchandise, products, and services is totally within our discretion and we reserve the right to change the pricing structure, terminate any special offers, discontinue products, merchandise or services, or change the terms under which merchandise, products and services are offered at any time, without any advance notice to you or customers accessing our website. Our only responsibility to you is in regard to tracking customer orders that occur through links from your website and make reports to you on the commissions due to you as a result thereof. All such reports shall be un-audited. We will have no obligation to provide you with any specific information relative to any customer, regardless of whether they access our website through a link from your website;
- We are not responsible for the failure to assign any sale or commission to you if the same results from the improper formatting of the link for your website. You should assure at all times that the link is appropriately formatted and report any problems that you may have with the same to us immediately.
- Commissions will be paid to you based upon a percentage of sales made to customers who access Our Website through Your Website. Commissions will be calculated based upon the gross sales price, but not including any delivery, sales tax, special service fees such as packaging, late charges, collection costs, import/export duties, and any other payment made to us that is not the purchase price for the merchandise or product that is purchased. Commissions will not be calculated based upon amounts that are attributable to credit card fraud, credits given to customers, bad debt right-off, and returned goods. We reserve the right to deduct in subsequent months for any commission that we have paid that is for a product that is subsequently returned or refunded, or for any other reason if the previous monthly commission was overpaid or later subject to reduction;
- The percentages and structure to be paid as commissions hereunder are currently set forth in Boomerang Elite Compensation Plan - v. Dec 2018 ENG.pdf. We reserve the right to change and amend the commission rate structure at any time, at our sole discretion;
- Commissions will only be paid on sales that are tracked through our online tracking system and indicate your website‘s link as the source. There is no right to commissions if a customer later returns to our website and makes a purchase through another link or source other than through your website. You have no right to commissions based on subsequent sales, even if the customer first arrived at our website through the link from your website. Commissions will only be tracked and paid when the customer makes a purchase on the same visit that the customer visits our website from the link to our website on your website;
- We will pay commission only upon collection by us. You have no right to commissions until the applicable customer has paid us in full. Only purchases that are made through our online ordering process will count towards commission calculations. For example, if a customer visits our website through the link from your website and instead of placing an online order calls and places an order via telephone, you will have no right to any commission from that sale;
- Commissions will be paid to you on a monthly basis on or about the fifteenth (15th) of the subsequent month for amounts received by us during the previous month. We do not guarantee an exact date of calculation of commissions or payments. All payments will be made via one of the following methods: BE inc. cheque, pay card, wire transfer, transferwise.com, email interac transfer, or Paypal, sent to the information that you supplied in the ISR Program Application. We do not send payments if the total commission due to you is not more than twenty-five ($25) dollars. Amounts below twenty-five ($25) dollars will accrue in your account and payment will be made for the month when your total commissions achieve the minimum twenty-five ($25) dollars. We reserve the right to amend the minimum commission payment amount at any time. We reserve further reserve the right to withhold payment if we judge that you are not compliant or not observing the terms of this Agreement;
- If we sense or it appears that there is fraudulent activity occurring, either from you or any customers or other ISRs affiliated by you, we reserve the right to withhold your commission or any other ISRs’ commission affiliated by you for an undetermined period of time to ensure that fraudulent behaviour is not occurring.
- All parties who make purchases through our website, regardless of whether they may have reached our website through the link from your website, are deemed to be our customers and not your customers relative to our products and services. We will have the right to contact these customers and send future marketing offers to them. You will have no right to commissions on subsequent purchases that may be made by these customers, except for subsequent purchases that may be traced at the time of purchase through a link from your website. Additionally, all such customers and purchases will be subject to our policies, agreements, procedures, rules, and regulations and you have no right or authority to amend or offer any different offers relative to the purchase of products from our website. We, however, reserve the right to amend any of our terms, agreements, conditions, policies, Procedures, pricing, payment policies, collection policies, and all other items relative to our business and sale of products at any time and at our sole discretion.
TRADEMARKS AND COPYRIGHTS
You will have a non-exclusive, limited-term license to use the trademarks, Logos, and copyrighted material that we have provided to you for use solely on the website home page that you designate in the ISR Program Application. You may only use the images that we specifically make available to you in the area of our website that is specifically designated as approved images for ISRs. You may not distribute, reproduce, modify, or amend these images in any way. You may use these images only for the purposes of promoting our website and products on your website in compliance with ISR Program policies and procedures and the terms of this Agreement. The license so granted is subject to complete compliance with all terms and conditions of this Agreement and any policies that we may create and amend from time to time regarding the ISR Program.
- You will only use such items in the form, size, content, and appearance that we provide them to you. You are not permitted to modify them. You agree to display these items prominently on your website. These items may only be used if they contain a hypertext link to our website. This license shall immediately terminate upon the termination of this Agreement or the ISR Program, whichever one is earlier. We may also terminate this license upon notice to you in the event that your use of these items is contrary to or does not conform to our standards. Such standards are determined at our sole and absolute discretion. You agree that we retain all right, titles, and interest in and to all such materials. We will retain all goodwill and other value associated with any of these materials. You will not gain any trademark, copyright, or other proprietary or intellectual rights to such materials. You agree not to take any action that is contrary to or inconsistent with our rights to these materials. You will not use these materials in any way that is damaging, defamatory, disparaging, derogatory, or negative to Boomerang Elite or that paints us in a false or negative light. We may revoke the limited license granted hereunder at any time in writing to you. Upon termination or revocation, you will immediately cease from any use of this material.
- You are not permitted to use any other proprietary or intellectual materials, including but not limited to trademarks, copyrights, logos, text, and any other materials that belong to us or to any other party and which may appear on our website.
- You grant us a non-exclusive right and license to use your trademarks, trade names, service marks, business names, webpage titles, slogans, Logos, and copyrighted materials for the purposes of promoting, advertising, announcing, or marketing your participation in the ISR Program. You represent and warrant to us that no other party has any rights in and to any of these materials and that these materials do not infringe upon or otherwise interfere with the rights of any third party. You represent and warrant to us that you are to be the absolute, sole, and exclusive owner of all such materials, and the owner of all trademark rights, copyrights, and other proprietary or intellectual rights in and to the same. You represent to have the right, power, and authority to license said materials to us as aforesaid, and that you are not under any legal or contractual limitation on the right to so license these materials. We have no obligation to announce, advertise, market, or promote your participation in the ISR Program, but we reserve the right to do the same at our sole discretion.
We cannot guarantee product availability or the term of any price or special promotion or offer.
- After we deliver your website, you are responsible for all matters pertaining to your own website including its development, maintenance, operation, and placing links on your website in compliance with the terms of the ISR Program and this Agreement. You are completely responsible for all items that appear on your website and for assuring that such items do not infringe upon or violate the rights of any other party. We are not responsible for any matter pertaining to your website or the content thereof and you hold us harmless and indemnify us from any and all Claims, suits, threats, demands, liabilities, actions, causes of action related in any way to your website and Business. Such indemnity includes our costs and attorney fees in defending any such matter. You represent and warrant to us that your website does not and will not contain any materials that are illegal or contrary to this Agreement, and that your website is not operated for an illegal purpose or in an illegal manner.
REPRESENTATIONS AND WARRANTIES
- You hereby represent and warrant to us that you have the complete power and authority to enter into this Agreement and that this Agreement constitutes a valid and legally enforceable agreement. The entry into this Agreement has been duly and validly authorized by all necessary corporate or other organizational actions and approvals. Your entry into this Agreement is not prohibited by the terms of any document, is not contrary to any law, rule or regulations, and is not in violation of any court, tribunal or administrative order;
- You hereby represent and warrant to us that you will not make any representations or warranties with regards to the Merchandise;
- We hereby represent and warrant to you that your website does not have any manufacturer or legal guarantee and is accepted by you at your risk and peril;
- The effectiveness of this Agreement shall not commence until your ISR Program Application is accepted by us, you have signed and consented to this Agreement and that you have completed your ISR training. The effectiveness hereof and binding effect shall occur upon the completion of all such conditions. This Agreement shall remain in full force and effect until terminated by either you or by us. Either one of the parties may terminate this Agreement at any time, with or without cause, by giving the other party a written notice of termination in compliance with this Agreement. Notices sent hereunder shall be via Email to you at the Email address indicated in your ISR Program Application or to our Email address indicated at the top of this Agreement. Any and all notices to you via Email at such address shall be deemed to be effective notice to you for all purposes.
- You will forfeit all right to receive past commissions that may have accrued to you if this Agreement is terminated as a result of your failure to comply with the terms of this Agreement or any policies and procedures of the ISR Program that may be established and amended by us at our discretion from time to time. If this Agreement is terminated for any other reason, you will have a right to receive your accrued commissions through the effective date of termination. We reserve the right to withhold final commission payments for a sufficient amount of time in order to assure that the amount paid to you is accurate and not subject to later adjustment for returns or any other reasons. If following final payment, we determine that the amount of commissions that you were paid was too high as a result of subsequent returns or any other adjustment or reason, the differential shall be a debt from you to us and we shall have all legal right to receive a refund of such overpaid commissions from you.
- We reserve the right at our sole and absolute discretion to modify any terms and conditions of the ISR Program and the terms and conditions of this Agreement upon written notice to you. Notice of any changes may be given via Email to you or by posting such changes in the ISR Program sections of our website. Such changes and modifications will take effect upon transmission of Email or posting on our website. You may terminate this Agreement and participation in the ISR Program in the event that any of these modifications are unacceptable to you and such termination shall be your sole and exclusive remedy. In the event that you continue to participate in the ISR Program following such modifications, you will be deemed by your continued participation to accept any and all such changes.
- WE HEREBY DISCLAIM ANY AND ALL WARRANTIES AND LIABILITY RELATED TO ANY DOWNTIME OR FAILURE FOR USERS TO BE ABLE TO ACCESS OUR WEBSITE OR TO ACCESS OUR WEBSITE USING THE LINK FROM YOUR WEBSITE. FURTHERMORE, WE SHALL NOT BE RESPONSIBLE FOR AND HEREBY DISCLAIM ANY AND ALL WARRANTIES RELATED TO OUR WEBSITE, YOUR WEBSITE, THE ISR PROGRAM, YOUR PARTICIPATION IN THE ISR PROGRAM, YOUR ABILITY TO MAKE ANY COMMISSIONS OR OTHERWISE PROFIT THROUGH PARTICIPATION IN THIS ISR PROGRAM, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY NON-INFRINGEMENT, OR ANY CLAIM MADE BASED UPON OUR COURSE OF DEALING OR USAGE OF TRADE. WE DO NOT REPRESENT OR WARRANT THAT OUR WEBSITE OR ANY APPLICATION INCLUDING BUT NOT LIMITED TO ITS LINK TRACKING FEATURES WILL BE ERROR-FREE OR THAT THEY WILL FUNCTION WITHOUT INTERRUPTION. YOU HEREBY USE OUR WEBSITE AND THIS ISR PROGRAM AT YOUR RISK AND PERIL.
- WE SHALL NOT BE RESPONSIBLE FOR ANY DIRECT OR INDIRECT; FORESEEABLE, UNFORESEEABLE, DAMAGES, LOSSES, INJURIES, PREJUDICES OR LIABILITIES OF ANY NATURE, INCLUDING BUT NOT LIMITED TO INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES, LOST PROFITS, LOST BUSINESS OPPORTUNITY OR ANY OTHER DAMAGES; REGARDLESS OF WHETHER WE WERE OR HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME AND TOOK NO ACTION TO PREVENT THE SAME;
- Without limiting the foregoing, our total liability for any damages arising hereunder shall never exceed the total commissions paid and payable us pursuant to the terms hereof.
- In the event that any information is disclosed to you through your participation in the ISR Program related in any way to our corporation, company, and business which we deem to be confidential and proprietary, you agree to hold such information in the strictest of confidence and not to disclose such information to any other party or to use any such information for your own purposes or benefits. Confidential information will include any information regarding our changes or modifications to this Agreement or this ISR Program (which we shall have no obligation to make) or any special treatment that you may receive (which we reserve the right to provide in its sole discretion to any ISR). Confidential information shall also include any and all information related to our business, business plans, marketing plans, user statistics, financial information, pricing, profits, membership information, affiliations, Sales information intellectual property, trade secrets and all other information which we consider to be or one may reasonably consider confidential and proprietary;
- The term of this obligation of confidentiality shall be in force during the term of this Agreement and shall survive the termination of this Agreement, for whatever reason, for a period of two (2) years from the Termination Date.
- You hereby indemnify and hold us and all of our shareholders, officers, directors, employees, contractors, affiliates, agents, successors, and assigns harmless from and against any and all Claims, liabilities, damages, actions, causes of action, suits, threats, demands, settlements, including all costs and attorney fees related thereto that we may incur and which are based in whole or in part upon the your participation in the ISR Program, any claims that any of your trademarks and other proprietary material infringe upon the rights of any other party, your breach of any term, covenants, condition, representation or warranty contained in this Agreement or any policies or procedures of participation in the ISR Program, or any Claim related directly or indirectly to your use, operation or the content of your website.
INDEPENDENT CONTRACTOR STATUS
- This Agreement is made with the express understanding that you are an independent contractor. This Agreement is a contractual relationship, and nothing contained herein shall be construed or applied to create the relationship of employer and employee or principal and agent or master and servant between you and Boomerang Elite or any of your employees or other personnel. Neither you nor any of your employees or other personnel are authorized to act or appear to act as agents or representatives of Boomerang Elite, whether in the performance of this Agreement or otherwise. Any provisions of this Agreement which may appear to give us the right to direct you as to details of performing any work, or to exercise a measure of control over your performance of work, shall be interpreted to mean that we will follow your instructions with respect to the results of the work achieved only and not in the means whereby the work is to be accomplished. You shall have complete and authoritative control as to the details of performing the Object of this Agreement. All work contemplated hereunder, however, shall meet our approval and shall be subject to the general right of inspection, as stipulated in this Agreement. Nothing in this Agreement shall be construed or interpreted to create a partnership or joint venture between yourself and Boomerang Elite;
- You will not be entitled to workers compensation, retirement, insurance or other benefits afforded to employees of Boomerang Elite.
PAYMENT ON BEHALF OF SOMEONE ELSE
- If another person, either legal or physical, makes a payment of the Cost of Materials stipulated in Section 5 on your behalf, both you and said person is jointly and severally liable for the payment of the Cost of Materials and are jointly and severally responsible for any other obligations associated with the payment of the Cost of Materials as stipulated in this Agreement or imposed on you and said person by law, regulation, or third parties.
- Separate Undertakings: The undertakings set forth in this Agreement shall be separate the one from the other and shall be interpreted as such;
- Reasonableness of the Undertakings: each of the Parties recognizes that the undertakings assumed by it:
- are reasonable in all respects, including, without limitation, as to their subject matter, scope and duration, given the consideration referred to hereinabove and the operations of each of the Parties up to that time;
are reasonable in all respects, including, without limitation, as to their subject matter, scope and duration, given the consideration referred to hereinabove and the operations of each of the Parties up to that time;
- are necessary in order to protect the legitimate interests of the other Party; and
- do not prevent it, in any manner whatsoever, from doing business or continuing to do business, as the case may be.
- Judicial Reduction of the Undertakings: If a court or an Arbitration rules that one of the Parties' undertakings is too broad, in particular, but without limitation, as regards its subject matter, scope or duration, the said court or arbiter shall have the power to reduce any such subject matter, scope or duration to the maximum level the court considers reasonable rather than cancel the said undertaking, declare it to be unenforceable or suspend the application thereof. In such a case, the provisions in question shall be deemed to have been amended in accordance with the conclusions of the judgment rendered by the court, after the expiry of all appeal deadlines;
- Discretionary Reduction of the Undertakings: Each of the Parties may, at any time and at its entire discretion, upon merely giving a written notice, reduce the object, scope or duration of any undertaking assumed in its favour by the other Party, cancel the said undertaking or suspend the application thereof. However, no presumption of fact or of law affecting the undertakings not contemplated by such reduction, cancellation or suspension shall be drawn from any such action on the part of the Party in question;
- Other Agreements Between the Parties:
- This Agreement is only part of the overall contractual relationship which exists or may exist between the Parties. Accordingly, it does not contain all of the terms and conditions of such a contractual relationship;
- However, notwithstanding any provision to the contrary, the obligations assumed by the Parties under this Agreement shall be unconditional and shall not depend in any manner whatsoever upon the fulfillment of duties or obligations which are not set forth in this Agreement;
- No Defence: The existence of any right, claim or recourse on the part of one of the Parties arising from any understanding other than that evidenced in this Agreement, shall not, in any manner whatsoever, be a ground of defence, contestation, opposition, set-off or cross-demand with respect to any legal or arbitration proceedings instituted against the either one of the parties in order to assert its rights under this Agreement;
- Assignment: The Parties shall not assign this Agreement or any of the rights or obligations under this Agreement without the prior written approval of the other Party. Subject to the foregoing, this Agreement and the covenants, obligations, undertakings, rights and benefits set forth herein shall be binding on and inure to the benefit of the Parties and their respective successors and assigns;
- No Duress: The Parties represent and expressly acknowledge that the terms and conditions of this Agreement have not been imposed by any one of them, but rather they have been freely discussed amongst them;
- Governing Law: This Agreement, as well as the interpretation or construction thereof, the execution or performance thereof, the application and validity thereof, as well as the effects thereof, are subject to the applicable laws in force and effect in the province of Quebec, which govern all or part of the provisions hereof, to the exclusion of all other Laws applicable in other jurisdictions;
- Governing Jurisdiction: The parties agree, in respect of any claim, arbitration, or legal proceedings for any purpose whatsoever, in connection with the Agreement, to elect the judicial district of Montreal, Province of Quebec, as the proper forum for the hearing of said claims, Arbitration or legal proceedings to the exclusion of any other judicial district which may have jurisdiction over such dispute according to the requirements of the law.
- Amendments: This Agreement may be amended or varied from time to time by mutual agreement between the Parties or unilaterally by us. As the case may be, said amendment or variation effected shall only become effective as of the day when it shall be reduced to writing and duly signed, executed or deemed consented to by the Parties.
- No waiver: The silence of a Party, its failure to exercise, or tardiness in exercising, a right or remedy granted to it pursuant to the Agreement under no circumstances shall be interpreted or construed as a waiver of its rights or remedies, so long as the contractual or legal prescription or limitation period in respect of the exercise of such right or remedy shall not have expired;
- Compliance: Should any provision contravene any applicable law, it shall be interpreted or construed, if need be, in such a manner as to render it in compliance with the applicable law or, failing which, in the manner most likely to reflect the intention of the Parties without departing or derogating from the requirements or stipulations posited by the applicable laws;
- Severability: Where the Agreement contains a prohibited provision, all the remaining provisions of the Agreement shall remain valid and in effect and shall continue to bind the Parties.
- Cumulative Rights: All rights referred to in the Agreement are cumulative. Any waiver of the enforcement of a right granted by one of the Parties to the Agreement for the benefit of another under no circumstances shall be interpreted or construed as a waiver of the enforcement of any other right granted hereunder unless expressed in writing;
- Neutrality of Terms: Where appropriate, the singular number set forth in this Agreement shall be interpreted as the plural number, and the gender shall be interpreted as masculine, feminine or neuter, as the context dictates;
- Headings: No resort shall be had to the headings used in this Agreement in the interpretation or construction of the Agreement; such headings shall serve merely to assist in classifying and identifying the provisions embodying the understanding between the Parties, which provisions have been reduced to writing in this Agreement, and, as a result, no meaning shall be ascribed to them nor may they influence the interpretation or construction of a provision;
- Counterparts: This Agreement will be sent to you via email in a PDF (.pdf) format within 15 days after the contract is entered into. This delivered counterpart shall be also considered an original, and all of which when executed shall constitute one and the same instrument. The exchange of copies of this Agreement and of signature pages by email in PDF (.pdf) format shall constitute effective execution and delivery of this Agreement.
- Successors: Unless otherwise stipulated, this Agreement shall bind the Parties hereto as well as their respective successors, heirs and assigns;
- Calculating Time Periods: In calculating any time periods under this Agreement:s
- the first day of the period shall not be taken into account, but the last one shall;
- the non-juridical days, i.e. Saturdays, Sundays and public holidays, shall be taken into account; and
- whenever the last day is a non-juridical day, the period shall be extended to the next juridical day.
- Notices: Any notice intended for either Party shall be deemed to be validly given if it is in writing and is sent by email to the valid email address of the representative of a Party as set forth in this Agreement or to any other address which the Party in question may have indicated in writing to the other Party provided that the receiving party acknowledges receipt in writing;
- Sufficient time to read the Agreement: You declare that you have taken a sufficient amount of time to read and comprehend this contract. If you have not, please take a sufficient amount of time to do so.
- Survival: Sections in which it is reasonable to expect, notably such as the Sections regarding Confidentiality, Warranty, Indemnity and Limitation of Liability, Indemnification, and Intellectual Property, or if the context so dictates, shall survive this Agreement for a reasonable time period after the termination, for whatever reason, of this Agreement;
- Language: The parties hereto have requested that the present Agreement be drafted in the English language. Les parties déclarent qu’ils ont requis que la présente entente soit rédigée dans la langue anglaise.