This Merchant Service Agreement (the "Agreement") is made by and between C8KE INC., an Ontario, Canada corporation ("C8KE.COM", "C8KE", "c8ke.com", “C8KE.CO”, “c8ke.co”, C8KE App, "We"), and you, as a Merchant user of the C8KE.COM service ("You", "Your", "Merchant").
To be an authorized Merchant of C8KE INC., You agree to abide by the terms and conditions contained in this Agreement. Please read this Agreement carefully before registering and using the C8KE Service as a Merchant. By signing up for C8KE, you indicate Your acceptance of this Agreement and its terms and conditions. If You do not accept this Agreement, do not use the C8KE Service as a Merchant.
If present, a “MERCHANT AGREEMENT ADDENDUM” will be honored by C8KE to set specific terms for the Merchant.
C8KE respects the privacy of its users and promises not to disclose personal or business information to third parties without the express permission of You and Your company. We will not sell Your name, e-mail address, phone number, or any other personal information to anyone else. We consider this information to be private, and it will remain as such. If You have any questions about Your privacy rights, contact us at email@example.com
The Merchant Service Agreement is summarized as follows:
"Influencer" means anyone who has a meaningful social media following. It is rewarded for a legitimate sale, lead, or other measurable action by a Visitor, and uses the C8KE Service to facilitate applications, tracking, reporting, and receipt of commission payment.
"Merchant" means a Web site that pays a reward for a legitimate sale, lead, or other measurable action by a Visitor, and uses the C8KE Service to facilitate sign-ups, tracking, reporting, and issuance of commission payment.
"Visitor" means any person, or user that clicks on a Link to a Your Web site placed on an Influencer’s C8KE profile, social media or web site.
"Sale commission" means the Payout You agrees to pay for Visitors referred to Your Web site that results in a sale of a product or service. The sale could occur at the time of the visit or at a later time not to exceed 30 days. If a sale occurs after 30 days and the Visitor has not returned through an authorized influencer’s site, then no Payout shall occur.
"Payout" means the amount sale commission, or lead commission established and agreed upon by C8KE and You. The Payout may be expressed as a percent of sales.
"Commission" means the amount sale commission, or lead commission established and agreed upon by C8KE and You. The Commission may be expressed as a set amount or as a percent of sales.
"Qualifying Revenues" are revenues derived by the Merchant from authorized sales, excluding costs for shipping, handling, gift-wrapping, taxes, gift certificates, service charges, credit card processing fees, charge backs, returns and bad debt.
"Link" means a hyperlink placed on an Affiliate's site that, when clicked on, serves Your Web site to the Visitor's browser. The Link may be in the form of text, a product image, a button, a banner or any other format acceptable to You, and defined only through Your program on C8KE.COM.
"Click" occurs when an internet user clicks through a Link that an Influencer has placed for a Merchant.
"Measureable Action" occurs when an internet user completes either a purchase, lead form, or other action which the Merchant has defined. When a Measurable Action can be matched, by C8KE to a previous “Click”, a "Commission" occurs and is tracked by C8KE.
"VOID" means a reversal of a Payout previously earned for a sale, or lead that is later rescinded or corrected by You. You may VOID transactions that are fraudulent, or in the case of returned merchandise, duplicate transactions, or other valid reasons.
"Your Account" means a separate, specific account within the Service that is debited based on Your Commissions and Commissions paid to C8KE.
"Account Balance" indicates the current monetary value of monies deposited into Your Account at C8KE. These monies are used to pay Influencers for commissions generated as well as C8KE fees.
"Tracking Code" means a small piece of HTML codes given to the Merchant by C8KE which is used by C8KE to provide the Service.
C8KE has developed, operates and provides a service which allows Web sites to run and/or participate in Influencer Program (the "Service"). You wish to become a Merchant of C8KE and utilize the Service as a Merchant. As a Merchant, Influencer will be establishing relationships with you. All relationships established between You, the Merchant, and Influencer under this Agreement through C8KE’s network will be conducted and managed through the Service.
This in no way shall limit the Merchant from establishing relationships with Influencers through other Influencer Programs Providers, Affiliate Network Providers or engaging in other business development relationships.
Should the necessary Tracking Code be found missing or removed from the Merchant site, C8KE will notify the Merchant in order to rectify the situation. Merchant will be given 14 days to correct the problem and will notify C8KE when the corrections have been made. After 14 days, C8KE will have the right to terminate this agreement and in such event the Merchant would forfeit the remaining Balance in their Account.
At all times, Merchant must maintain a positive balance on their C8KE account – which is used to pay Influencers for commissions generated. If Merchant’s account balance falls below $0, all links will cease to function until such time that the Merchant is able to make a deposit into the account.
C8KE agrees that the transaction fee will remain at 25%, for a period of 9 Months after the execution of this agreement. Client is under no obligation to remain with C8KE. for the entirety of the 9 month period, and may discontinue the service at anytime upon notice without penalty of any kind. Upon any termination by Merchant hereunder, C8KE shall refund any remaining balance in Merchant’s account within a period equal to the "Tracking Gap" plus 10 additional days to account for processing and delivery. At the end of the 9 month period, if Client wishes to continue service with C8KE. reserves the right to re-negotiate pricing so as to reflect current market conditions if C8KE feels necessary.
Influencers shall earn a Commission on authorized transactions when a sale is placed by a customer who follows a Link from the Influencer’s C8KE profile or site to the Merchant’s site. The Merchant will only pay Commission on Qualifying Sales subject to resolution of all outstanding Voids.
All payments to Influencers, including bonuses or rewards, shall be processed through C8KE. Payments to Influencers are made automatically on the 1st day and 16th day of each month when the Influencer account balance reaches $50 or more.
A "Void" is executed by the Merchant as a means to reverse the commission given to a particular influencer on Qualifying Sales. Voids may be the result of (i) canceled sales; (ii) product returns; (iii) duplicate or repeat errors; (iv) non-bona fide Transactions; (v) non-receipt of payment from Customer; (vi) Refund of payment to Customer; (vii) Failure by an Influencer to comply with the Terms of Agreement set forth by C8KE and the Merchant.
C8KE will decide how long a sale remain in an open status prior to being credited to an Influencer. Merchant has to Void or Approve the commission of the sale within the period. After that period, the commission will be paid to the Influencer and the Merchant will no longer be able to reverse the sale.
Merchant agrees to keep in their C8KE account a balance of monies equal to the current value of any open transactions posted to their account.
C8KE will provide support for the Service as indicated on the C8KE Web site and in accordance with the terms and conditions set forth in this Agreement that supersede any other Agreement.
C8KE shall send timely e-mails to inform You of applicable changes or additions to the Service or any C8KE related products and services.
CHANGES TO THE SERVICE
C8KE reserves the right to change, modify, add or remove portions of this Agreement at any time and may add to, change, suspend or discontinue any aspect of the Service at any time. In the event of any material change, C8KE will notify You via e-mail, newsletter or the C8KE Web site at least 7 days prior to any such changes taking effect, at which time You may either agree to such changes or withdraw from the Service. If you choose to withdraw, we will refund all monies contained in your account within a period equal to your “Tracking Gap” plus 10 additional days to account for processing and delivery.
To sign up as a Merchant of C8KE and to use the Service as a Merchant you must be at least 18 (eighteen) years of age, and supply a valid tax-id, which may be your social security number for individuals, or a federal tax-id for corporations or entities.
THE FOLLOWING TYPES OF SITES ARE NOT ALLOWED TO PARTICIPATE IN C8KE: ADULT SITES, SITES THAT DISPLAY ADULT BANNERS, SITES THAT PROMOTE VIOLENCE, BIGOTRY, OR HATRED. SITES THAT PROMOTE ILLEGAL ACTIVITY, including but not limited to CRACKING, and HACKING SITES.
As part of the registration process, You will select a username and password combination that You use to access Your Merchant area within the Service. You shall provide C8KE with accurate, complete and updated registration information. You may not select the name of another person with the intent to impersonate that person or deceive members or other users as to Your true identity. You agree that C8KE may rely on any data, notice, instruction or request furnished to C8KE by You which is reasonably believed by C8KE.COM to be genuine and to have been sent or presented by a person reasonably believed by C8KE.COM to be authorized to act on Your behalf. You shall notify C8KE.COM by e-mail at firstname.lastname@example.org of any known or suspected unauthorized uses of Your Account, or any known or suspected breach of security, including loss, theft or unauthorized disclosure of Your username and password. You shall be responsible for maintaining the confidentiality of Your username and password and You are responsible for all usage and activity on Your Account, including use of the account by a third party authorized by You to use Your Account. Any fraudulent, abusive or otherwise illegal activity may be grounds for termination by C8KE.COM and referral to the appropriate law enforcement agencies.
You represent to C8KE.COM that all content You provide to the Service, to the best of your knowledge, but without special investigation of any kind, is solely owned by You or provided by You with the express authority of the company You represent, does not infringe upon any other individual's or organization's rights (including, without limitation, intellectual property rights) in the United States and Canada, and is not defamatory, libelous, unlawful or otherwise objectionable under the laws of the United States and Canada. You shall not knowingly or intentionally provide, promote, distribute, place or otherwise publish as a Merchant of the Service any content, or Web site that includes content, which is libelous, defamatory, obscene, pornographic, abusive, fraudulent or violates any law. As C8KE.COM may not review all information provided by You, You shall remain solely responsible for Your content and Web site.
Through the Contact and Newsletter features of the C8KE.COM interface, Merchant agrees to limit contact to discussions directly related to the Merchant’s Influencer Program running through C8KE.COM only. Merchant agrees not to promote other offers not directly related to the Merchant’s Influencer Program running through C8KE.COM. If a violation of this is discovered, the Merchant will be given notice and given the opportunity to correct the violation within 72 hours to the satisfaction of C8KE.COM prior to any termination. Merchant must ensure emails they send are in compliance with CAN- Spam and other federal laws.
The Service, its operation, its use and the results of such use shall be performed in A professional and workmanlike manner. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EACH OF C8KE.COM AND MERCHANT DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE SERVICE, ITS USE AND THE RESULTS OF SUCH USE. WITHOUT LIMITING THE FOREGOING, C8KE.COM SPECIFICALLY DISCLAIMS ANY WARRANTY (A) THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, (B) THAT DEFECTS WILL BE CORRECTED, (C) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (D) THAT THE SECURITY METHODS EMPLOYED WILL BE SUFFICIENT, OR (E) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE EXCLUSION MAY NOT APPLY. C8KE.COM will make reasonable commercial efforts to keep its transaction service operational during normal business hours. However, certain technical difficulties may, from time to time, result in temporary service interruptions. Merchant understands and acknowledges that it is normal to have a certain amount of system downtime, up to net 10% of a given calendar month, provided, if Merchant reasonably determines that such downtime greater than net 10% of a given calendar month is adversely or materially impacting Merchant’s ability to derive benefit from the Service, it shall notify C8KE.COM, and C8KE shall give Merchant a refund equal to 25% of all monies paid by Merchant for C8KE.COM transaction fees, excluding those paid to cover earned Commissions by Influencers, during the preceding one month period. Merchant further agrees not to hold C8KE.COM liable for any of the consequences of such interruptions. MERCHANT SHALL HAVE NO LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF ANY WEB SITE OF INFLUENCER OR INFLUENCER CUSTOMER DATA FILES OR SYSTEMS OR PROGRAMS THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. MERCHANT SHALL HAVE NO LIABILITY WITH RESPECT TO MERCHANT OBLIGATIONS HEREUNDER OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF MERCHANT HAS BEEN NOTIFIED OF SUCH DAMAGES. ANY LIABILITY OF MERCHANT HEREUNDER SHALL BE LIMITED TO THE FEES PAID BY MERCHANT TO C8KE.COM UNDER THIS AGREEMENT.
EXCLUDING LIABILITY ARISING FROM OR RELATING TO C8KE.COM’S OBLIGATION TO KEEP MERCHANT INFORMATION CONFIDENTIAL UNDER THE SECTION ENTITLED “NONDISCLOSURE” BELOW AND ANY BREACH BY C8KE.COM OF THE SECTION ENTITLED “OWNERSHIP AND LICENSES”, NEITHER MERCHANT, ON THE ONE HAND, NOR C8KE.COM OR ITS SUPPLIERS OR RESELLERS OR OTHER MERCHANTS, ON THE OTHER HAND, SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR (I) ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER ARISING OUT OF THE USE OF OR INABILITY TO USE THE C8KE.COM SERVICE OR ANY INFORMATION PROVIDED ON THE C8KE.COM WEB SITE OR ANY OTHER HYPERLINKED WEB SITE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF C8KE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (II) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS OR OTHER INACCURACIES IN THE WEB SITE OR ANY HYPERLINKED WEB SITE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE EXCLUSION MAY NOT APPLY. IN SUCH JURISDICTIONS, A PARTY'S LIABILITY IS LIMITED TO THE SMALLEST AMOUNT PERMITTED BY LAW. THIS PARAGRAPH WILL SURVIVE THE FAILURE OF ANY EXCLUSIVE OR LIMITED REMEDY. You agree that C8KE.COM, although the provider of the Service, has no responsibility or liability as a result of placement of authorized Links to Your Web site, from the Influencer.
C8KE.COM agrees to indemnify, defend, and hold harmless Merchant and its affiliates, officers, directors, employees and agents from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees, expert witness fees and costs) directly or indirectly arising from or relating to C8KE.COM's acts or omissions in performance of the Services or its breach of this Agreement.
C8KE.COM acknowledges that in the course of this Agreement it shall have access to confidential and proprietary information ("Confidential Information") of Your company. C8KE.COM agrees not to disclose or disseminate the Confidential Information without Your prior express written consent in each instance. The term "Confidential Information" shall not include information that is or becomes part of the public domain through no action or omission of C8KE.COM, that becomes available to C8KE.COM from third parties without knowledge by C8KE.COM of any breach or violation of fiduciary duty, or that C8KE.COM had in its possession prior to the date of this Agreement. C8KE.COM does not and shall not collect information about a Merchant’s customer transactions, other than what is passed to us through the installed tracking code and displayed on Your own transaction reports. Any information we receive is used solely for tracking and Commission payment purposes. C8KE.COM reserves the right to be able to utilize this data in aggregate to anonymously analyze Service trends, monitor Service efficiencies, and perform such other analysis as C8KE.COM deems appropriate.
C8KE.COM represents and warrants that it owns certain images, technology, content, trademarks, banners and other intellectual property that it shall provide to you, under this Agreement You, the Merchant, are granted a non-exclusive, limited, revocable right to use trademarks and banners. All images, technology and content provided for Your use is and shall remain the sole property of C8KE.COM, and no part thereof shall be deemed assigned or licensed to You except as explicitly provided for herein. All intellectual property rights, including trademarks, copyrights, patent rights or applications, trade names and service marks related to the foregoing shall remain C8KE.COM's sole property, including rights in and to any derivatives thereof. You may not modify the trademarks, banners, the content or any of the images provided to You in any way.
You, the Merchant, hereby grant C8KE.COM a non-exclusive, limited, revocable right to sublicense the use of Merchant provided trademarks and banners to Influencers. All images, technology and content provided for C8KE.COM and Influencer use is and shall remain the sole property of the Merchant and no part thereof shall be deemed assigned or licensed to Influencer or to C8KE.COM except as explicitly provided for herein. All intellectual property rights, including trademarks, copyrights, patent rights or applications, trade names and service marks related to the foregoing shall remain the Merchant’s sole property, including rights in and to any derivatives thereof. C8KE.COM and Influencers may not modify the trademarks, banners, the content or any of the images provided by Merchant in any way.
C8KE.COM makes no representations whatsoever about any other Web site which You may access through the Service. In addition, a link to a non-C8KE.COM Web site does not mean that C8KE.COM endorses or accepts any responsibility for the content or the use of such Web site.
Merchant or C8KE.COM may assign this Agreement to any successor or affiliate upon notice to the other party, provided, in the case of C8KE.COM, the assignee continues to fulfill its obligations and provide the Service hereunder.
Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes or any other cause which is beyond the reasonable control of such party
This Agreement shall be governed by Ontario, Canada law (except for conflict of law provisions). The exclusive forum for any actions brought in connection with this Agreement shall be in the state and federal courts in and for the province of Ontario, Canada and all parties consent to such jurisdiction. The application of the United Nations Convention on the International Sale of Goods is expressly excluded.
This Agreement represents the complete agreement concerning this license and may be amended only by a writing executed by both parties. THE ACCEPTANCE OF ANY PURCHASE ORDER PLACED BY YOU IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS SET FORTH HEREIN AND NOT THOSE IN YOUR PURCHASE ORDER. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable.