Octopus Mercantile Partner Program

By signing up for the Octopus Mercantile Partner Program, you are agreeing to be bound by the following Partner Program Agreement (the “Agreement”). The Agreement is between you, as Partner (as defined below in Section 1.), and Octopus Mercantile, Inc. (“Octopus”) (together, the “Parties”, and each a “Party”). You can review the current version of the Agreement at any time at octopusmercantile.com/partners. Octopus reserves the right to update and change the Agreement by posting updates and changes here: octopusmercantile.com/partners. If a significant change is made, we will provide reasonable notice by email. You are advised to check the Agreement from time to time for any updates or changes that may impact you.

You must read, agree with and accept all of the terms and conditions contained in this Agreement and Octopus' Privacy Policy before you may become a Partner.

1. Definitions

Unless defined elsewhere in the Agreement, capitalized terms set out in the Agreement are defined as follows:

“Customer” means a customer of the Merchant.

“Customer Data” means information (including personal information) relating to a Customer, including, but not limited to, order information, payment information, and account information.

“eCommerce Provider” means a third party service where a Merchant sells its goods or services.

“Merchant” means an individual or business that uses the Service to sell products or services.

“Merchant Data” means information (including personal information) relating to a Merchant, including but not limited to business, financial and product information and any Customer Data.

“Merchant Store” means the Merchant’s commerce presence hosted by an eCommerce Provider.

“Partner” means an individual or entity that has agreed to the terms of this Agreement and who promotes the Service.

“Partner Account” means a Octopus Partner Program account.

“Partner Manager” means the Octopus employee or contractor designated by Octopus from time to time as the Partner’s primary Octopus contact.

“Payment Period” means the period for the payment of Fees owing to Partner by Octopus, as set out in Section 3.2.

“Partner Program” means Octops’s program for Partners that provides the opportunity to earn revenue share.

“Referred Merchant” means any unique Merchant that: (a) is a paying customer of Octopus; and (b) was introduced by a Referral Partner that actively promoted the Service.

“Service” means the Octopus created eCommerce apps and other channels provided to Merchants, that connects to the Merchant's eCommerce Provider and is used by Merchants to sell products and services.

“Octopus Creative” means any marketing and/or promotional materials relating to Octopus , including but not limited to copyrighted content, hypertext links, domain names, icons, buttons, banners, graphic files, images and the Octopus Trademarks.

“Octopus Trademarks” means the trademarks, logos, service marks and trade names of Octopus Mercantile Inc., whether registered or unregistered.

2. Partner Responsibilities

2.1. Marketing Activities

  1. Partner shall bear all costs and expenses related to Partner's marketing or promotion of Octopus in any area, location, territory or jurisdiction, unless otherwise determined by Octopus in its sole discretion.

  2. Partner shall comply with all applicable laws, rules, regulations and directives, including but not limited to those relating to email marketing and “spamming”.

  3. Without limiting the generality of the foregoing, Partner shall (i) always include Partner’s contact information and “unsubscribe” information at the top and bottom of any email regarding Octopus; and (ii) not imply that such emails are being sent on behalf of Octopus.

  4. A Partner shall not (i) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to Octopus; (iii) make any false, misleading or disparaging representations or statements with respect to Octopus; (iv) copy, resemble or mirror the look and feel of Octopus' websites, Octopus Trademarks or Services or otherwise misrepresent Partner’s affiliation with Octopus; or (v) engage in any other practices which may adversely affect the credibility or reputation of Octopus, including but not limited to, sending email communications or using any Website in any manner, or having any content on any Website, that (a) uses aggressive or low-quality marketing, including marketing services that are unrelated to Octopus' services, (b) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, and/or any illegal or objectionable activities, or (c) violates any intellectual property or other proprietary rights of any third party.

2.2. Compliance with Laws

In addition to, and without limiting the provisions of this Agreement, Partner shall perform its obligations hereunder in accordance with the highest applicable industry standards and in compliance with all applicable laws, rules and regulations.

2.3. Partner Duty to Inform

Partner shall promptly inform Octopus of any information known to Partner that could reasonably lead to a claim, demand or liability of or against Octopus by any third party.

2.4. Other Partner Terms

  1. If the Partner is an individual, the Partner must be 18 years or older or at least the age of majority in the jurisdiction where the Partner resides.

  2. To become a Partner, Partner must apply for a Partner Account by emailing partners@octopusmercantile.com, providing first name, last name and company name (if applicable), email address, and any other information as required. Ocotopus may reject an application for a Partner Account for any reason, in its sole discretion. Partner acknowledges that Ocotopus will use the email address provided by Partner as the primary method for communication.

  3. 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 responsible for assuring that its employees, agents and subcontractors comply with this Agreement.

  4. Partner acknowledges and agrees that Partner will be responsible for the performance of all of its obligations under the 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.

  5. Partner acknowledges and agrees that Octopus may amend this Agreement at any time by posting the relevant amended and restated Partner Program Agreement on Octopus' website, available at octopusmercantile.com/partners and such amendments to the Agreement are effective as of the date of posting. If a significant change is made, Octopus will provide reasonable notice by email. Partner’s continued participation in the Octopus Partner Program after the amended Partner Program Agreement is posted to Octopus' website constitutes Partner’s agreement to, and acceptance of, the amended Agreement. If Partner does not agree to any changes to the Agreement, Partner must terminate the Agreement by discontinuing its participation in the Octopus Partner Program.

  6. Partner acknowledges and agrees that Partner’s participation in the Octopus Partner Program, including information transmitted to or stored by Octopus, is governed by the Octopus Privacy Policy found at octopusmercantile.co/privacy.

  7. Other than the limited license to use the Octopus Trademarks pursuant to Section 5 of this Agreement, Partner shall not use the Octopus Trademarks and/or variations or misspellings thereof in Partner’s business name, logo, branding, advertising, social media or domain name (including without limitation top-level domains, sub-domains and page URLs).

3. Fees and Payments

3.1. Revenue Sharing Plans

Subject to: (i) Partner’s compliance with this Agreement, and (ii) the revenue sharing plan associated with a Partner’s activities pursuant to the Partner Program, Partner shall be entitled to receive certain fees from Octopus (the “Fees”). The revenue sharing plan will set out in your enrollment confirmation email.

3.2. Payment

  1. Fees due to Partner under the Revenue Sharing Plan will be created by Octopus once per month upon receipt of payment from the Merchant, for each month that the Referred Merchant is active.

  2. Octopus distributes Fees owing to its Partners once per calendar month (each such period, a “Payment Period”). Where the Fees owing to Partner are greater than USD $25 at the end of any Payment Period, the Fees will be paid to Partner. If the Fees owing to Partner are less than USD $25 at the end of any Payment Period, Octopus shall be entitled to withhold payment of Fees until the end of the next 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 are USD $25 or more.

3.3. Additional Payment Information

  1. All payments are subject to fraud and risk analysis considerations and anti-money laundering procedures and may be withheld during the period of investigation.

  2. Notwithstanding anything to the contrary in this Agreement, Octopus shall not be responsible to pay any Fees:

    1. related to revenues that have been refunded to Merchants by Octopus;
    2. for a Referred Merchant created or owned in whole or in part by a Partner;
    3. related to fraudulent sales;
    4. related to revenues that have been subject to chargebacks; or
    5. to Partners who are employed by or who are contractors of Octopus.
  3. If any Fees paid by Octopus are subsequently discovered to be subject to one or more of the exclusions set out in Section 3.3.2, or to have been paid in error, Octopus shall have the right, at its sole discretion, to: (a) increase the amount of payments due from Partners described in Section 3.2.1; (b) reclaim any Fees paid to Partner in error; or (c) set off the amounts described in Section 3.3 from payments due to Partner in future Payment Periods. If the Agreement is terminated before such amounts are fully repaid by Partner to Octopus, Partner shall pay to Octopus the remaining balance within thirty (30) days of the effective date of termination of the Agreement.

  4. Octopus reserves the right to modify the Fees and/or the payment terms at any time upon reasonable advance notice to Partner. Such notice will be provided by email. In the event of any disputes over Fees, Octopus' determination will be final and binding.

4. Termination

4.1. Termination

  1. Octopus may terminate this Agreement at any time, with or without cause, effective immediately upon notice to Partner. Partner may terminate this Agreement at any time, with or without cause, effective immediately upon notice to Octopus.

  2. Fraudulent or other unacceptable behaviour by Partner, as determined by Octopus in its sole discretion, may result in the termination of Partner’s affiliation with Merchants within the Partner Account, suspension of some or all Partner privileges under the Octopus Partner Program, or termination of the Partner Account entirely without notice to, or recourse for, Partner.

  3. Octopus reserves the right to cancel or modify the Partner Program Agreement in its entirety, including Fees, at any time. If a significant change is made to the Partner Program Agreement, including any material change to Fees, Octopus will provide reasonable notice by email.

4.2. Consequences of Termination

Upon termination of this Agreement: (a) each Party shall return to the other Party, or destroy (and provide certification of such destruction), all property of the other Party in its possession or control (including all Octopus Creative and all Confidential Information (as defined below)); (b) Partner shall immediately cease displaying any Octopus Creative and/or any Octopus Trademarks on any Website or otherwise; and (c) all rights granted to Partner hereunder will immediately cease, including but not limited to the right of Partner to receive any payments of Fees hereunder, unless otherwise determined by Octopus in its sole discretion.

5. Intellectual Property Rights

5.1. Octopus Creative

  1. All Octopus Creative will be solely created and provided by Octopus unless otherwise agreed to by Octopus in writing in advance. Octopus will provide Partner with copies of or access to Octopus Creative. By using the Octopus Creative, you indicate your acceptance of our Octopus Trademark Usage Guidelines and you understand that a violation of these guidelines or this Agreement will result in the termination of your license and/or permission to use the Octopus Creative. The Octopus Creative is provided “as is” and without warranty of any kind.

  2. Partner may display Octopus Creative on the Websites solely for the purpose of marketing and promoting the Service and any Octopus brands promoted by Octopus during the term of this Agreement, or until such time as Octopus may, upon reasonable prior notice, instruct Partner to cease displaying the Octopus Creative. Partner may not alter, amend, adapt or translate the Octopus Creative without Octopus' prior written consent. Nothing contained in any Octopus Creative shall in any way be deemed a representation or warranty of Octopus. The Octopus Creative shall at all times be the sole and exclusive property of Octopus and no rights of ownership shall at any time vest with Partner even in such instances where Partner has been authorized by Octopus to make changes or modifications to the Octopus Creative.

5.2. Octopus Trademarks

During the term of this Agreement, Octopus hereby grants to Partner a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to display the Octopus Trademarks solely as necessary to perform Partner’s obligations under this Agreement. Partner acknowledges and agrees that: (a) it will use Octopus' Trademarks only as permitted hereunder; (b) it will use the Octopus Trademarks in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by Octopus in writing from time to time; (c) the Octopus Trademarks are and shall remain the sole property of Octopus; (d) nothing in this Agreement shall confer in Partner any right of ownership in the Octopus Trademarks and all use thereof by Partner shall inure to the benefit of Octopus; and (e) Partner shall not, now or in the future, contest the validity of any Octopus Trademarks or use any term or mark confusingly similar to any Octopus Trademarks.

5.3. Restrictions on Partner’s Use of the Octopus Trademarks

Notwithstanding Section 5.2, Partners shall not use any Octopus Trademark including but not limited to the octopus logo or the word mark OCTOPUS MERCANTILE or variations of the word “Octopus Mercantile” in Partner’s business name, logo, products or services, unless granted express written permission by Octopus in advance of such use.

5.4. Proprietary Rights of Octopus

As between Partner and Octopus, the Octopus Creative, Octopus Trademarks, all demographic and other information relating to Merchants including Referred Merchants, prospective Partners and Partners and all software, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites, and any additional intellectual or other property used by or on behalf of Octopus , together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “Octopus Property”) shall be and remain the sole and exclusive property of Octopus. To the extent, if any, that ownership of any Octopus Property does not automatically vest in Octopus by virtue of this Agreement, or otherwise, Partner hereby transfers and assigns to Octopus, upon the creation thereof, all rights, title and interest Partner may have in and to such Octopus Property, including the right to sue and recover for past, present and future violations thereof.

6. Confidentiality

  1. “Confidential Information” shall include, but shall not be limited to, any and all information associated with a Party’s business and 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, Merchant Data, Customer Data, product designs, sales, costs, 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.

  2. Each Party agrees to use the other Party’s Confidential Information solely as necessary for performing its obligations under this Agreement. 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 the duplication, disclosure or use of any such Confidential Information, other than (i) 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 (ii) 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. 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.

7. Disclaimer of warranty

The Octopus Partner Program, the Service, the Octopus Trademarks and the Octopus Creative are provided “as-is”. Octopus makes no warranties hereunder, and Octopus expressly disclaims all warranties, express or implied, including, but not limited to, warranties of merchantability and fitness for a particular purpose. Without limiting the foregoing, Octopus further disclaims all representations and warranties, express or implied, that the Service, the Octopus Trademarks or the Octopus Creative do not infringe or otherwise violate any intellectual property or other proprietary right of any third party in any jurisdiction. Partner understands and agrees that the Octopus Partner Program, the Service, the Octopus Trademarks and the Octopus Creative may not satisfy all of Partner’s or Merchant’s requirements and may not be uninterrupted, error-free or free from harmful components.

8. Limitation of Liability and Indemnification

8.1. Limitation of Liability

Octopus shall have no liability with respect to the Octopus Partner Program, the Service, the Octopus Trademarks, the Octopus Creative or Octopus' obligations under this Agreement or otherwise for any direct, indirect, incidental, special, consequential, or exemplary damages, including but not limited to, damages for losses of profits, goodwill, use, data or other intangible losses resulting in any way from the Service, the Octopus Trademarks, the Octopus Creative, or Partner’s participation or inability to participate in the Octopus Partner Program even if Octopus has been advised of the possibility of such damages. In any event, Octopus' liability to Partner under this Agreement for any reason will be limited to the Fees paid to Partner by Octopus during the six (6) month period immediately preceding the event giving rise to the claim for damages. 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 Octopus is not obligated to intervene in any dispute arising between the Merchant and the Partner. Under no circumstances shall Octopus be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from the Partner’s relationship with any Merchant. These limitations shall apply even if Octopus has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.

8.2. Partner Indemnification

Partner agrees to indemnify, defend and hold harmless Octopus 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 wilful misconduct; (c) any warranty, condition, representation, indemnity or guarantee relating to Octopus granted by Partner to any Merchant, prospective Partner or other third party; (d) Partner’s breach of any term of this Agreement or the Merchant Agreement; (e) any third party claim that Partner’s products or services infringes the intellectual property or other rights of a third party; (g) the performance, non-performance or improper performance of the Partner’s products or services; and (h) Partner’s relationship with any Merchant.

8.3. Notice of Indemnification

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 Partner shall control such defense and all negotiations relative to the settlement of any such claim and further provided that in settling any claim 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.

8.4. Non-exclusive remedies

In the event of any breach or threatened breach by Partner of any provision of Sections 2, 5 and/or 6 above, in addition to all other rights and remedies available to Octopus under this Agreement and under applicable law, Octopus 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 Octopus in connection with such violation, in accordance with the provisions of this Section 8.

9. General provisions

9.1. Force Majeure

If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action (including, but not limited to, any law, regulation or embargo prohibiting the performance contemplated hereunder and/or the failure or refusal of a government agency to issue a license required for any performance pursuant to this Agreement), labour disputes, act of God or any cause beyond the reasonable control of that Party, the Party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such cause. Notwithstanding anything herein to the contrary, the Party prevented from performing hereunder by a force majeure event shall nevertheless use its best efforts to recommence its performance hereunder as soon as reasonably practicable and to mitigate any damages resulting from its non-performance hereunder.

9.2. Independent Contractors

The Parties to this Agreement are independent contractors. Neither Party is an agent, representative or related entity of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.

9.3. Non-Exclusivity

Nothing in this Agreement is intended to create, nor shall it be construed as creating, any exclusive arrangement between the Parties to this Agreement. This Agreement shall not restrict either Party from entering into similar arrangements with others, provided it does not breach its obligations under this Agreement by doing so.

9.4. Notice

Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (a) on the delivery date if delivered personally, or by email to Partner’s email address and to legal@octopusmercantile.com; (b) two (2) business days after deposit with an internationally recognized commercial overnight courier service, with written verification of receipt.

9.5. No Waiver

The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same shall be and remain in full force and effect. Each waiver shall be set forth in a written instrument signed by the waiving Party.

9.6. Entire Agreement

This Agreement, including any completed application form and all guidelines and other documents linked or otherwise reference herein, sets forth the entire agreement and supersedes any and all prior agreements, written or oral, of the Parties with respect to the subject matter hereof (including, but not limited to, any prior version of this Agreement). Neither Party shall be bound by, and each Party specifically objects to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by the other Party in any correspondence or other document, unless the Party to be bound thereby specifically agrees to such provision in writing.

9.7. Assignment

All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the Parties to this Agreement and to their respective heirs, successors, permitted assigns and legal representatives. Octopus shall be permitted to assign this agreement without notice to or consent from Partner. Partner shall have no right to assign or otherwise transfer this Agreement, or any of its rights or obligations hereunder, to any third party without Octopus' prior written consent, to be given or withheld in Octopus' sole discretion.

9.8. Applicable Laws

This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware and the laws of the United States of America applicable therein, without regard to principles of conflicts of laws. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario with respect to any dispute or claim arising out of or in connection with this Agreement.

9.9. Patent Non-Assertion

Partner and its affiliates covenant not to assert patent infringement claims against Octopus, or Octopus products and services.

9.10. Acceptance

By marking the "I have read and agree to the Terms & Conditions" checkbox, or by responding affirmatively in an email specifically mentioning and linking to this agreement, Partner hereby fully agrees with all terms and provisions of this Agreement, including all documents linked to herein.

9.11. Competitive or Similar Materials

Octopus is not precluded from discussing, reviewing, developing for itself, having developed, acquiring, licensing, or developing for or by third parties, as well as marketing and distributing materials, products or services which are competitive with Partner’s products or services, provided that Octopus does not use Partner’s Confidential Information in so doing.

9.12. Service Providers

Partner may work with service providers as necessary to facilitate Partner’s performance under this Agreement. Partner acknowledges and agrees that any act or omission by Partner’s service provider amounting to a breach of this Agreement will be deemed to be a breach by Partner.