TERMS OF SERVICE - PARTNER RESPONSIBILITIES

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.

“Partner” means an individual or entity that has agreed to the terms of this Agreement and participates in the Beat Drop Partner Program. The different types of Partners are listed below:

A “Referral Partner” is a Partner who promotes the Service. The different types of Referral Partners are listed below:

an “Affiliate” has registered for a Partner Account via the Beat Drop Affiliate program page, and if approved and issued a unique referral link by Beat Drop, refers Merchants to Beat Drop via such unique referral link; and
a value added partner or “VAP”, has registered for a Partner Account via the Beat Drop partner program page and works directly with Merchants as a designer, developer or other consultant, or refers Merchants to Beat Drop using a unique referral link associated with the VAP’s Partner Account.
A “Developer” is a Partner who has registered for a Partner Account via the Beat Drop Developer program page and develops Applications or Themes to integrate with the Service. The different types of Developers are listed below:

a “Theme Developer”, develops a Theme for Merchant use, either as a custom Theme or for general distribution to Merchants through the Beat Drop Theme Store;
an “App Developer” develops an Application using the Beat Drop API, either as a custom Application or for general distribution to Merchants through the Beat Drop App Store;
a “Payment Gateway Developer” develops an Application using the Beat Drop API to enable a payment system for Merchants to use with the Service. An Application developed by a Payment Gateway Developer is a “Payment Gateway Application”.
An “Expert” is a VAP who has been accepted by Beat Drop into the Beat Drop Experts program, and is listed in the Beat Drop Experts Directory.

A “Plus Expert” is an Expert who has met the Beat Drop Plus Expert criteria and been accepted by Beat Drop into the Plus Partner Program, has signed a Beat Drop Plus Partner Program addendum, and is listed onexperts.Beat Drop.com/plus.

A “Plus Partner” is a Partner who has met the Beat Drop Plus Partner criteria and has been accepted by Beat Drop into the Beat Drop Plus Partner Program, has signed a Beat Drop Plus Partner Program addendum, and is listed on theBeat Drop.com/plus/partners.

“Partner Account” means a Beat Drop Partner Program account.

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

“Partner Program” means Beat Drop’s program for Partners that provides exclusive access to resources and the opportunity to earn revenue share.

“Plus Partner Program” means the Beat Drop program where Experts and VAPs are selected by Beat Drop to participate in new Beat Drop Plus opportunities, including access to Beat Drop Plus assets and coordinating with Beat Drop on marketing materials.

“Referred Merchant” means any unique Merchant that: (a) has registered for a paid Beat Drop account; and (b) was introduced by a Referral Partner that actively promoted the Service.

“Service” means the Beat Drop hosted commerce platform available via www.beatdrop.ca and any associated websites, that is used by Merchants to sell products and services and manage their businesses across different sales channels.

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

“Beat Drop Related Entity/ies” means any entity that directly or indirectly controls, is controlled by, or is under common control with, Beat Drop; where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of another, whether through the ownership of voting securities, by contract, as trustee or executor, or otherwise.

“Beat Drop Trademarks” means the trademarks, logos, service marks and trade names of Beat Drop Inc., whether registered or unregistered, including but not limited to the word mark Beat Drop and the Shopping Bag Logo.

“Websites” means any websites that are managed by a Partner and that relate to Partner’s activities pursuant to this Agreement.

“Updates” means bug fixes, updates, upgrades, enhancements, modifications and new releases or versions of the Beat Drop API.

2. MARKETING ACTIVITIES

Partner shall bear all costs and expenses related to Partner's marketing or promotion of Beat Drop, and/or Partner’s Partner Program activities in any area, location, territory or jurisdiction, unless otherwise determined by Beat Drop in its sole discretion.

In no event shall Partner engage in any email marketing or promotion with respect to Beat Drop and/or any Beat Drop Related Entity except as expressly set forth in this Agreement. In the event that Partner has a list of emails where the individuals on the list have expressly elected to receive emails from Partner (“Opt-in List”), Partner may make a written request to Beat Drop to send emails regarding the offering of Beat Drop and Beat Drop Related Entities to the individuals on the Opt-in List. In the event Beat Drop approves such request, Partner shall comply with all applicable laws, rules, regulations and directives, including but not limited to those relating to email marketing and “spamming”.

Without limiting the generality of the foregoing, Partner shall (i) not send any email regarding Beat Drop and/or Beat Drop Related Entities to any individual or entity that has not requested such information; (ii) always include Partner’s contact information and “unsubscribe” information at the top and bottom of any email regarding Beat Drop, Beat Drop Related Entities, the Service and/or the Beat Drop platform; and (iii) not imply that such emails are being sent on behalf of Beat Drop or Beat Drop Related Entities.

A Partner shall not (i) engage in any fax, broadcast, telemarketing or any other offline marketing methods with respect to Beat Drop and/or Beat Drop Related Entities; (ii) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to Beat Drop and/or Beat Drop Related Entities; (iii) make any false, misleading or disparaging representations or statements with respect to Beat Drop and/or Beat Drop Related Entities; (iv) copy, resemble or mirror the look and feel of Beat Drop’s websites, Beat Drop Trademarks or Services or otherwise misrepresent Partner’s affiliation with Beat Drop and/or Beat Drop Related Entities; or (v) engage in any other practices which may adversely affect the credibility or reputation of Beat Drop and/or Beat Drop Related Entities, 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 Beat Drop or the Partner’s 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.

WHICH MEANS

Partners cannot send email marketing materials about Beat Drop without Beat Drop’s permission. If Beat Drop gives its permission, the messages must comply with this section and all applicable laws. Partner cannot engage in any illegal or aggressive marketing techniques on behalf of Beat Drop. Partner must not make any false or misleading statements about Beat Drop or represent anything that could cause harm to the credibility of Beat Drop.

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.

WHICH MEANS

Partner will comply with all applicable laws.

2.3. PARTNER DUTY TO INFORM

Partner shall promptly inform Beat Drop of any information known to Partner that could reasonably lead to a claim, demand or liability of or against Beat Drop and/or the Beat Drop Related Entities by any third party.

WHICH MEANS

Partner has to keep Beat Drop informed about any potential claims, demands or liabilities relating to Beat Drop of which the Partner is aware.

2.4. OTHER PARTNER TERMS

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.

To become a Partner, Partner must create a Partner Account by providing first name, last name and company name (if applicable), email address, and any other information indicated as required. Beat Drop may reject an application for a Partner Account for any reason, in its sole discretion. Partner acknowledges that Beat Drop will use the email address provided by Partner as the primary method for communication. Partner is responsible for keeping its Partner Account password secure. Beat Drop cannot and will not be liable for any loss or damage arising from Partner’s failure to maintain the security of the Partner Account and password.

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.

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.

Partner acknowledges and agrees that Beat Drop may amend this Agreement at any time by posting the relevant amended and restated Partner Program Agreement on Beat Drop’s website, available at http://beatdrop.ca/affiliate-terms-of-service and such amendments to the Agreement are effective as of the date of posting. If a significant change is made, Beat Drop will provide reasonable notice by email, posting a notice on the Beat Drop Partner Blog and/or in the Partner Dashboard. Partner’s continued participation in the Beat Drop Partner Program after the amended Partner Program Agreement is posted to Beat Drop’s 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 Beat Drop Partner Program.

Partner acknowledges and agrees that Partner’s participation in the Beat Drop Partner Program, including information transmitted to or stored by Beat Drop, is governed by the Beat Drop Privacy Policy found at Beatdrop.ca/legal/privacy.

Other than the limited license to use the Beat Drop Trademarks pursuant to Section 5 of this Agreement, Partner shall not use the Beat Drop Trademarks and/or Beat Drop Related Entities’ names or trademarks (meaning any names and/or trademarks or any other protected marks associated with the Beat Drop Service, Beat Drop Inc. or the Beat Drop Related Entities) 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).

WHICH MEANS

Partner must (i) be at least 18 years old or the age of majority where Partner resides; (ii) provide certain information and agree that email will be our primary method of communication; (iii) make certain acknowledgments if signing up on behalf of an employer or a company; (iv) agree that this Agreement may be changed by Beat Drop at any time; (v) acknowledge and agree to Beat Drop’s privacy policy; and (vi) not use Beat Drop’s trademarks as part of its name or brand unless permitted under this Agreement.

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 Beat Drop (the “Fees”). The revenue sharing plans applicable to the different types of Referral Partners are set out in Part B. The revenue sharing plans applicable to the different types of Developers are set out in Part C. The revenue sharing plans applicable to Experts and the Plus Partner Program are set out in Part D.

3.2. PAYMENT

Fees due to Partner under the Reference Plan will be created by Beat Drop once per month upon receipt of payment from the Merchant, for each month that the Referred Merchant Store is active. Fees due to Partner under the App Plan (where the App Developer uses the Beat Drop Billing API) or the Theme Plan will be created by Beat Drop upon receipt of payment from the Merchant for the applicable App or Theme. Fees for Apps with recurring billing will be created by Beat Drop upon receipt of payment for each month that the App is installed on the Merchant Store. Fees due to Partner under the Bounty Plan will be created by Beat Drop once per month upon receipt of payment from the Merchant for two consecutive months.

Beat Drop distributes Fees owing to its Partners twice per calendar month (each such period, a “Payment Period”). The first Payment Period occurs during the first half of the month, and the second Payment Period occurs during the second half of the month. The Fees described in Section 3.2.1 will be paid in either the first Payment Period or the second Payment Period, depending on the date that the Fee was created by Beat Drop. 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, Beat Drop 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.

For App Developers who obtain Beat Drop’s express written permission to forego use of the Beat Drop Billing API, the App Developer shall submit payments due under the App Plan to Beat Drop monthly by way of wire transfer or Automated Clearing House (ACH). The App Developer is responsible for contacting apps@Beat Drop.com to obtain the necessary banking information to execute the transfer. If the balance owed to Beat Drop is less than USD $1,000, App Developer may defer payment until the outstanding balance at the end of a payment period is USD $1,000 or more.

3.3. ADDITIONAL PAYMENT INFORMATION

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

Notwithstanding anything to the contrary in this Agreement, Beat Drop shall not be responsible to pay any Fees:

related to revenues that have been refunded to Merchants by Beat Drop;
for a Referred Merchant created or owned in whole or in part by a Partner;
related to fraudulent sales;
related to revenues that have been subject to chargebacks; or
to Partners who are employed by or who are contractors of Beat Drop.
If any Fees paid by Beat Drop 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, Beat Drop 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 Beat Drop, Partner shall pay to Beat Drop the remaining balance within thirty (30) days of the effective date of termination of the Agreement.

Beat Drop 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, posting a notice on the Beat Drop blog and/or in the Partner Dashboard. In the event of any disputes over Fees, Beat Drop’s determination will be final and binding.

WHICH MEANS

Beat Drop has the right to set off or withhold payments to Partners in certain circumstances. Beat Drop has the right to alter the Fees, the Fee structure or the payment terms with reasonable notice to Partner.

4. TERMINATION

4.1. TERMINATION

Beat Drop 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 Beat Drop.

Fraudulent or other unacceptable behaviour by Partner, as determined by Beat Drop 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 Beat Drop Partner Program, or termination of the Partner Account entirely without notice to, or recourse for, Partner.

Beat Drop 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, Beat Drop will provide reasonable notice by email, posting a notice on the Beat Drop blog and/or in the Partner Dashboard.

WHICH MEANS

Either Beat Drop or Partner can end this agreement at any time by providing notice to the other. If there is fraud or any other unacceptable behaviour by Partner, Beat Drop can suspend Partner’s privileges or end the agreement without notice. Beat Drop can change or eliminate all or any portion of the Partner Program at any time, upon reasonable notice.

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 Beat Drop Creative and all Confidential Information (as defined below)); (b) Partner shall immediately cease displaying any Beat Drop Creative and/or any Beat Drop 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 access the Partner Account, Partner Dashboard, Beat Drop API, or to receive any payments of Fees hereunder, unless otherwise determined by Beat Drop in its sole discretion.

WHICH MEANS

If the agreement ends, you must stop using and return to Beat Drop all Beat Drop creative material and Beat Drop’s trademarks and logos and Partner will no longer be permitted to access the Beat Drop API or receive Fees from Beat Drop, unless otherwise determined by Beat Drop in its sole discretion.

5. INTELLECTUAL PROPERTY RIGHTS

5.1. Beat Drop CREATIVE

All Beat Drop Creative will be solely created and provided by Beat Drop unless otherwise agreed to by Beat Drop in writing in advance. Beat Drop will provide Partner with copies of or access to Beat Drop Creative. The Beat Drop Creative may also be accessible from the Partner Program website and the Beat Drop brand guidelines (“Beat Drop Trademark Usage Guidelines”). By using the Beat Drop Creative, you indicate your acceptance of our Beat Drop 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 Beat Drop Creative. The Beat Drop Creative is provided “as is” and without warranty of any kind.

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

WHICH MEANS

Partners may promote Beat Drop using the creative materials provided by Beat Drop. The creative materials Beat Drop provides belong to Beat Drop, cannot be changed and must be used only to promote the Beat Drop Services and Beat Drop brand.

5.2. Beat Drop TRADEMARKS

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

WHICH MEANS

Beat Drop owns the Beat Drop Trademarks entirely and Partner agrees to use them only in accordance with the Agreement.

5.3. RESTRICTIONS ON PARTNER’S USE OF THE Beat Drop TRADEMARKS

Notwithstanding Section 5.2, Partners shall not use any Beat Drop Trademark including but not limited to the shopping bag logo or the word mark Beat Drop or variations of the word “Beat Drop” in Partner’s business name, logo, products or services, including without limitation, the name or design of any Application or Theme, unless granted express written permission by Beat Drop in advance of such use.

WHICH MEANS

Partners cannot use the word “Beat Drop”, or the Beat Drop shopping bag logo, or other Beat Drop trademarks in the name or design of the Partner’s business or logo, or any Partner product or service (including Apps or Themes) without permission.

5.4. PROPRIETARY RIGHTS OF Beat Drop

As between Partner and Beat Drop, the Beat Drop Creative, Beat Drop Trademarks, all demographic and other information relating to Merchants including Referred Merchants, prospective Partners and Partners, the Services, the Beat Drop API, Merchant Data, 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 Beat Drop and/or Beat Drop Related Entities or otherwise related to the Service, Beat Drop Partner Program, Beat Drop and/or Beat Drop Related Entities, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “Beat Drop Property”) shall be and remain the sole and exclusive property of Beat Drop. To the extent, if any, that ownership of any Beat Drop Property does not automatically vest in Beat Drop by virtue of this Agreement, or otherwise, Partner hereby transfers and assigns to Beat Drop, upon the creation thereof, all rights, title and interest Partner may have in and to such Beat Drop Property, including the right to sue and recover for past, present and future violations thereof.

WHICH MEANS

All of the information, property and intellectual property you have access to as a result of your participation in the Partner Program belongs entirely to Beat Drop.

6. CONFIDENTIALITY

“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.

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.

WHICH MEANS

Both Beat Drop and Partner agree to use Confidential Information only to perform the obligations of the Agreement. Confidential Information must be protected and respected.

7. DISCLAIMER OF WARRANTY

The Beat Drop Partner Program, the Experts program, the Plus Partner Program, the Service, the Beat Drop Trademarks, the Beat Drop Creative, and the Beat Drop API (including the Beat Drop Billing API) are provided “as-is”. Beat Drop makes no warranties hereunder, and Beat Drop 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, Beat Drop further disclaims all representations and warranties, express or implied, that the Service, the Beat Drop API, the Beat Drop Trademarks or the Beat Drop 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 Beat Drop Partner Program, the Experts Program, the Plus Partner Program, the Service, the Beat Drop Trademarks, the Beat Drop Creative, and the Beat Drop API may not satisfy all of Partner’s or Merchant’s requirements and may not be uninterrupted, error-free or free from harmful components.

WHICH MEANS

Which means: Beat Drop makes no warranties about the Beat Drop Partner Program, the Experts program, the Plus Partner Program, the Service, the Beat Drop API, the Beat Drop Trademarks or the Beat Drop Creative.

8. LIMITATION OF LIABILITY AND INDEMNIFICATION

8.1. LIMITATION OF LIABILITY

Beat Drop shall have no liability with respect to the Beat Drop Partner Program, the Experts program, the Plus Partner Program, the Service, the Beat Drop API, the Beat Drop Trademarks, the Beat Drop Creative or Beat Drop’s 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 Beat Drop API, the Beat Drop Trademarks, the Beat Drop Creative, or Partner’s participation or inability to participate in the Beat Drop Partner Program, the Experts program, or the Plus Partner Program even if Beat Drop has been advised of the possibility of such damages. In any event, Beat Drop’s liability to Partner under this Agreement for any reason will be limited to the Fees paid to Partner by Beat Drop 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 Beat Drop is not obligated to intervene in any dispute arising between the Merchant and the Partner. Under no circumstances shall Beat Drop 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 Beat Drop has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.

WHICH MEANS

Beat Drop is limiting its liability with regard to the Beat Drop Partner Program, the Experts program, the Plus Partner Program, the Service, the Beat Drop API, the Beat Drop Trademarks, the Beat Drop Creative, the relationship between the Partner and any Merchant, and Beat Drop’s obligations under the Agreement. If there is a liability owed to the Partner by Beat Drop, Beat Drop will provide no more than the Fees that were paid to Partner in the past six months.

8.2. PARTNER INDEMNIFICATION

Partner agrees to indemnify, defend and hold harmless Beat Drop and any Beat Drop Related Entities 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 Beat Drop and Beat Drop Related Entities granted by Partner to any Merchant, prospective Partner or other third party; (d) Partner’s use of the Beat Drop API, including the Beat Drop Billing API; (e) Partner’s breach of any term of this Agreement or the Merchant Agreement; (f) any third party claim that Partner’s products or services, including without limitation any Application or Theme, 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, including without limitation, any Application or Theme; and (h) Partner’s relationship with any Merchant.

WHICH MEANS

Partner will cover all costs associated with a claim made against, or liabilities incurred by, Beat Drop if it is caused by Partner’s breach of this Agreement, Partner’s gross negligence or wilful misconduct, promises made by Partner to third parties about Beat Drop, Partner’s use of the Beat Drop API, Partner’s products or services, Partner’s infringement or violation of the intellectual property or other rights of a third party, or Partner’s relationship with a 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.

WHICH MEANS

Beat Drop will notify Partner of any claims and may choose to assist in the defense.

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 Beat Drop under this Agreement and under applicable law, Beat Drop 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 Beat Drop in connection with such violation, in accordance with the provisions of this Section 8.

WHICH MEANS

Which means: If Partner breaches its obligations with respect to Partner’s responsibilities (Section 2), Beat Drop’s intellectual property or other proprietary rights (Section 5) or confidentiality (Section 6), Beat Drop has rights outside of "breach of contract".

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.

WHICH MEANS

In case something serious happens outside the control of either Beat Drop or Partner, both will be excused from performance of duties to the extent that such event affects either Party’s ability to perform such duties.

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.

WHICH MEANS

Both Beat Drop and Partner are independent contractors and there is no relationship of agents, representatives or otherwise between them.

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.

WHICH MEANS

Both Beat Drop and Partner are non-exclusive to each other and each can enter into similar arrangements with others, as long as that party does not use the other party’s confidential information.

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 listed in the Partner Account, and to legal@Beat Drop.com; (b) two (2) business days after deposit with an internationally recognized commercial overnight courier service, with written verification of receipt; or (c) five (5) business days after deposit in certified or registered mail, return receipt requested, postage and charges prepaid, to the address provided in the Partner Account, and for Beat Drop to 150 Elgin Street, Suite 800, Ottawa, Ontario, Canada K2P 1L4, Attention: Legal Department.

WHICH MEANS

Notice is considered to be sent on the day it is emailed or hand delivered, 2 days after it is given to a courier, or 5 days after it is placed in the mail.

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.

WHICH MEANS

If a provision is not enforced by either party, it does not mean that they are waiving their rights to enforce that provision in the future.

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.

WHICH MEANS

This Agreement and the documents it links to and references are the entire agreement governing the relationship between Beat Drop and Partner under the Partner Program, and it replaces any previous agreements.

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. Beat Drop 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 Beat Drop’s prior written consent, to be given or withheld in Beat Drop’s sole discretion.

WHICH MEANS

Partner cannot assign away or transfer this agreement to another party without Beat Drop’s consent.

9.8. APPLICABLE LAWS

This Agreement shall be governed by and interpreted in accordance ith the laws of the Province of Ontario and the laws of Canada 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.

WHICH MEANS

This agreement is covered by the laws of Ontario, Canada. If anything were to go wrong, Ontario is where the issue would be litigated.

9.9. PATENT NON-ASSERTION

Partner and its affiliates covenant not to assert patent infringement claims against Beat Drop, Beat Drop Related Entities, or Beat Drop products and services.

WHICH MEANS

You agree not to sue us for patent infringement.

9.10. ACCEPTANCE

By marking the "I have read and agree to the Partner Program Agreement" checkbox, Partner hereby fully agrees with all terms and provisions of this Agreement, including all documents linked to herein.

WHICH MEANS

Clicking the checkbox constitutes full acceptance of this Agreement.

9.11. COMPETITIVE OR SIMILAR MATERIALS

Beat Drop 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, including without limitation any Application or Theme, regardless of their similarity to Partner’s products or services, provided that Beat Drop 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.

9.13. INDUSTRY STANDARDS

Partner’s networks, operating system and software of its web servers, routers, databases, and computer systems (collectively,“Partner System”) must be properly configured to Internet industry standards so as to securely operate Partner's Website, Applications and Themes, as applicable. If Partner does not completely control some aspect of the Partner System, Partner will use all influence that Partner has over the Partner System to do so. Partner must diligently correct any security deficiency, and disconnect immediately any intrusions or intruder.

In addition, if Partner has access to Merchant Data, Partner: (i) shall only use or store such information for the purpose of providing the Partner’s services, and shall not share, sell, disclose or otherwise provide such information to any third party, except as provided for in this Agreement; (ii) shall not communicate with Customers directly or indirectly, provided however that Partner may contact Customers if the information is obtained from another source, such as from the Customers themselves; (iii) shall only store such information for as long as reasonably necessary to provide the Partner’s services; (iv) shall use industry standard measures to protect against unauthorized access to, disclosure or use of such information; (v) shall comply with all applicable laws and regulations relating to the protection and privacy of personally identifiable information in Partner’s provision of the Partner’s services; and (vi) shall notify Beat Drop of any actual or suspected breach or compromise of Merchant Data (a “Data Breach”) within two (2) business days of becoming aware of such occurrence. Upon learning of the Data Breach, at its own cost, Partner will: (a) promptly remedy the Data Breach to prevent any further loss of Merchant Data; (b) investigate the incident; (c) take reasonable actions to mitigate any future anticipated harm to Beat Drop, Merchants or Customers; and (d) regularly communicate the progress of its investigation to Beat Drop and cooperate to provide Beat Drop with any additional requested information in a timely manner.