In this Agreement, “we”, “us” and “our” refer to Borrowell, and “you”, “your” and “yours” refer to the Affiliate.
The Parties agree as follows:
1. Your Application
By submitting your application you confirm your wish to include certain materials promoting Borrowell, and to include a link (where applicable) to Borrowell’s website within those materials on your website and/or in other material published or distributed by you. This Agreement contains the complete terms & conditions that apply to you becoming an affiliate on Borrowell’s Affiliate Program. Borrowell has sole discretion to approve or reject your application to the Affiliate Program.
If you do not wish to apply to Affiliate Program, please do not continue with your registration.
2. Promotional Materials
a) Borrowell may, in its sole discretion, make available to you from time to time certain URLs, banner advertisements, button links, text links, and/or other graphic or textual material for display and use on your website and/or other marketing materials such as postcards, flyers and other information sheets for publication or distribution (the “Promotional Materials”).
b) You may display the Promotional Materials on your website and/or through other methods of publication or distribution (as applicable) and as you see fit, provided that the manner of display shall be subject to the terms of this Agreement. Where applicable, the Promotional Materials shall include a link to Borrowell’s website, as specified by Borrowell.
c) Borrowell has the right to make changes to the Promotional Materials at any time. You shall use the most up-to-date Promotional Materials available from time-to-time.
3. Use of Promotional Materials
Your use and display of the Promotional Materials shall conform to the following terms, conditions and specifications:
a) You may not use any graphic, textual or other materials to promote Borrowell’s website, products or services other than the Promotional Materials, unless Borrowell agrees to such other materials in writing prior to their display.
b) You may only use the Promotional Materials for the purpose of promoting Borrowell’s website (and the products and services available thereon), and for linking to Borrowell’s website.
c) You will not alter, add to, subtract from, or otherwise modify the Promotional Materials as they are prepared by Borrowell. If you wish to alter or otherwise modify the Promotional Materials, you must obtain prior written consent from Borrowell for such alteration of modification.
d) The Promotional Materials (where applicable) will be used to link only to Borrowell’s website, to the specific page and address as specified by Borrowell.
e) Borrowell reserves the right, at any time, to review your use of the Promotional Materials and require you to make any changes in order to comply with the terms of this Agreement. Borrowell may notify you of any changes to your website that we feel should be made, or to make sure that your links to our website are appropriate and to further notify you of any changes that we feel should be made. If you do not make the changes to your website that we feel are necessary, we reserve the right to terminate your participation in the Affiliate Program.
Borrowell hereby grants to you a nonexclusive, nontransferable, revocable license (the “License”) to use the Promotional Materials as specified under the terms of this Agreement. You are only entitled to use the Promotional Materials to the extent that you are a member in good standing of the Affiliate Program. You agree that all uses of the Promotional Materials will be on behalf of Borrowell and the goodwill associated therewith will inure to the sole benefit of Borrowell. The term of the License shall expire upon the expiration or termination of this Agreement.
5. Intellectual Property
Borrowell retains all right, ownership, and interest in the Promotional Materials, and in any copyright, trademark, or other intellectual property in the Promotional Materials. Nothing in this Agreement shall be construed to grant you any rights, ownership or interest in the Promotional Materials, or in the underlying intellectual property, other than the rights to use the Promotional Materials granted under the License as set forth in Section 4.
6. Relationship of Parties
This Agreement shall not be construed to create any employment relationship, agency relationship, or partnership between Borrowell and you. You shall provide services for Borrowell as an independent contractor. You shall have no authority to bind Borrowell into any agreement, nor shall you be considered to be an agent of Borrowell in any respect.
a) In exchange for your display of the Promotional Materials, and for your compliance with and performance of the terms of this Agreement, Borrowell shall pay you a commission (the “Commission”) for referring users to Borrowell’s website through the specific affiliate URL(s) assigned to you from time to time in the event such user reaches a certain stage in the loan application process at www.borrowell.com (a “Referral Event”) and where the first scheduled repayment for the loan resulting from such Referral Event has been successfully collected in full by Borrowell. A Commission will not be paid until such first schedule repayment has been collected in full. The Commission(s) will be the amount or percentage rate set-out as applicable to relevant Referral Event(s) in the Affiliate Area (as defined below) from time to time. The Referral Event(s) for which you shall be paid an applicable Commission shall also be set-out in the Affiliate Area from time to time. Commissions will be based on Referral Events reached by a user accessing Borrowell’s website through the Affiliate’s designated referral URL(s) as listed in the Affiliate Area. Commissions shall only be paid out for recognized Referral Events that are identified by Borrowell’s tracking software/method and which Borrowell has confirmed (in its sole opinion, acting in good faith) as authentic.
b) The Commission(s), Referrals Event(s) for which such Commissions are applicable, and other terms related thereto are subject to change by Borrowell at any time. Borrowell shall send notification of any such change(s) applicable to you at the email address on hand for you.
c) Borrowell shall pay all Commissions accrued and payable to you monthly within 30 days of the end of each applicable month (the “Commission Payment Date”). If on any Commission Payment Date, the amount of total Commissions accrued and payable to you is less than $1.00, then such accrued and payable balance shall be held over to the following month, and paid together with the Commissions due for that month.
d) If you materially breach this Agreement, commit fraud in your use of the Affiliate Program or abuse the Affiliate Program in any way, then Borrowell reserves the right to terminate your participation in the Affiliate Program immediately and without notice. In that event, any accrued and payable Commissions owing to you shall be forfeited and Borrowell shall not be obligated to pay such Commissions to you.
8. Affiliate Area on Borrowell’s Website
a) If we approve your application, you will be granted access and will be given a username and password to the affiliate account interface on Borrowell’s website (the “Affiliate Area”). The Affiliate Area will provide reporting and information on, among other areas, the Commission(s) and Referral Event(s) applicable to you from time to time, records of Referral Events attributed to you, and details of any unpaid and paid earnings resulting from Referral Events.
b) Borrowell shall keep accurate and up-to-date records of the data used to determine the total amount of Commissions owed to you using tracking software/methods chosen by Borrowell. Borrowell may change the software/method used to track Commissions at any time without notice. You shall be given access to these records through the Affiliate Area. Any discrepancy between the amount of Commissions paid/owed according to the records, on the Affiliate Area and the actual amount of Commissions paid/owed to you shall be determined by Borrowell in its sole opinion acting in good faith. Any discrepancy shall be rectified by Borrowell as soon as reasonably possible after such discrepancy has been determined by Borrowell in its sole opinion. Any determination made by Borrowell relating to what Commission(s) is/are owed to you shall be final.
9. Affiliate not to charge users separately
You will not apply any fees or charges to any person for referring such person to Borrowell’s website through your participation in the Affiliate Program, except with the prior written approval of Borrowell. The only compensation to which you are entitled to under this Agreement is through applicable Commission(s).
10. Affiliate’s Representations and Warranties
You represent and warrant the following:
a) This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid and binding obligation, enforceable against you in accordance with its terms.
b) You have the legal authority to enter into this Agreement and to be bound to the promises, covenants, and other duties set forth in this Agreement.
c) Your website(s) do(es) not contain any materials or links to any materials, nor will you use any Promotional Materials in any manner or in connection with any other materials that:
Are sexually explicit, obscene, or pornographic;
Are offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on age, nationality, race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise);
Are disparaging, misleading, obscene or that otherwise portray Borrowell in a negative light;
Are graphically violent, including any violent video game images;
Incorporate any materials that infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law;
Contain software downloads that potentially enable diversions of commission from other members of the Affiliate Program;
Are computer viruses, spyware, trojan horses or other malicious or harmful routines, programs or software; or
Are solicitous of any unlawful behavior.
d) You have obtained any necessary clearances, licenses, or other permission for any intellectual property used on your website(s). Nothing on your website(s) infringes upon the intellectual property rights of any person or entity. No person or entity has brought or threatened an action claiming such infringement, nor do you have any reason to believe that any person or entity will bring or threaten such a claim in the future.
e) You will not use the Promotional Materials in any manner other than those set forth in this Agreement.
f) You will not make any claim to ownership of the Promotional Materials, or of the copyright, trademark, or other intellectual property therein.
g) You will not publish or otherwise distribute any advertising materials for your website(s) or publish or distribute any other types of advertising or informational materials that reference Borrowell or Borrowell’s website unless Borrowell gives prior written consent to the distribution of such materials. You will not use Borrowell’s name (or any name that is confusingly similar to Borrowell’s name) for any purpose on your website(s), in your promotional materials, or in any other context except to promote Borrowell’s website as specified in this Agreement. You will not register any domain name that incorporates Borrowell’s name, or that is confusingly similar to Borrowell’s name.
h) You will not engage in the distribution of any unsolicited bulk emails or unsolicited commercial email (spam) in any way mentioning or referencing Borrowell or Borrowell’s website. You will comply with all applicable anti-spam laws and regulations in Canada and any other applicable jurisdictions in any publishing or distribution that you make of the Promotional Materials.
i) You will not seek to increase the number of users you direct to Borrowell’s website using spam or other unsolicited communications, or using any form of spyware, parasite-ware, unauthorized adware or similar software, or using any other antisocial or deceptive means.
j) You will not seek to increase the number of Referral Events using any fraudulent or deceptive means (such as using any device, program, robot iframes, hidden frames, or cookie surfing techniques that set a tracking cookie without a user actually clicking on a referral link).
You shall indemnify and hold harmless Borrowell and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners from any claim, damage, lawsuit, demand, judgment, settlement, liability, loss, expense, action, complaint, or other costs arising out of i) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (ii) your use or misuse of the Promotional Materials.
Any information that you are exposed to by virtue of your relationship with Borrowell under this Agreement, which information is not available to the general public, shall be considered to be “Confidential Borrowell Information.” You may not disclose any Confidential Borrowell Information to any person or entity, except where compelled by law, unless you obtain prior written consent for such disclosure from Borrowell.
a) This Agreement shall take effect upon Borrowell’s approval of your application to register with the Affiliate Program, and shall remain in full force and effect indefinitely, or until terminated pursuant to this Agreement.
b) Either Party shall have the right to terminate this Agreement at any time and for any cause by giving the other party notice. Written notice can be in the form of mail, email or fax. Upon termination, Borrowell will pay any accrued and unpaid Commission(s) on the next Commission Payment Date.
In addition to notices relating to the Affiliate Program, you consent to Borrowell sending you offers, information on Borrowell’s products and services and other company information or news through email and mail. You can unsubscribe from such communications at any time through the relevant unsubscribe link in any emails or by contacting Borrowell.
Borrowell shall not be responsible for any taxes owed by you arising out of Affiliate’s relationship with Borrowell as set forth in this Agreement. Borrowell shall not withhold any taxes from the Commissions paid to you.
BORROWELL MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING BORROWELL’S SERVICE AND WEBSITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, OR THE PERFORMANCE OR ACCURACY OF ANY THIRD PARTY SOFTWARE USED BY BORROWELL TO OPERATE THE AFFILIATE PROGRAM. ANY IMPLIED WARRANTIES OF BORROWELL’S ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE OR ANY THIRD PARTY SOFTWARE USED BY US TO OPERATE THE AFFILIATE PROGRAM WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
18. Limitation of Liability
BORROWELL WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL BORROWELL’S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT.
19. Governing Law & Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable in the Province of Ontario.
Each Party hereby irrevocably and unconditionally consents to and submits to the exclusive jurisdiction of the courts of the Province of Ontario for any actions, suits or proceedings (“Proceedings”) arising out of or relating to this Agreement and the transactions contemplated hereby. Each Party waives any objection to the venue of any Proceeding arising out of this Agreement or the transactions contemplated hereby in the courts of the Province of Ontario and waives and agrees not to plead or claim in any such court that any Proceeding brought in any such court has been brought in an inconvenient forum.
20. No Waiver
No failure or delay by either Party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor will any single or partial exercise preclude any other or further exercise of any right, power or privilege hereunder.
Neither party shall have the right to assign or subcontract any part of its obligations under this Agreement.
22. Cumulative Rights
Any specific right or remedy provided in this Agreement will not be exclusive but will be cumulative of all other rights and remedies.
23. Successors and Assigns
This Agreement shall be binding on and inure to the benefit of the Parties hereto and their respective heirs, legal or personal representatives, successors, and assigns.
Any provision of this Agreement which imposes an obligation after the termination or expiration of this Agreement shall survive the termination or expiration of this Agreement.
25. Force Majeure
Neither party shall be held responsible for any delay or failure in performance of any part of this Agreement to the extent such delay or failure is caused by earthquake, fire, flood, storm, natural disaster, explosion, war, armed conflict, terrorism, embargo, government requirement (including any law, order, regulation, direction, action or request), civil or military authority, act of God, labour strike, lockout, boycott, supplier failures, breaches or delays, or other similar causes beyond its control and without the fault or negligence of the delayed or non-performing party. The affected party will notify the other party in writing within ten (10) days after the beginning of any such cause that would affect its performance. Notwithstanding, if a party’s performance is delayed for a period exceeding thirty (30) days from the date the other party receives notice under this paragraph, the non-affected party will have the right, without any liability to the other party, to terminate this Agreement.
If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
The headings for section herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.
28. Entire Agreement
This Agreement constitutes the entire agreement between you and Borrowell, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement.
Last updated July 14, 2015