Affiliate Agreement

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Affiliate Agreement

November 12, 2017
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SURGE CALLS INC. AFFILIATE AGREEMENT

By signing up to the Surge Calls Affiliate Program you agree to be bound by this Agreement (the “Agreement”). This Agreement is between you, as an Affiliate ( “Affiliate”) and Surge Calls Inc. (“Surge Calls”) (together, the “Parties”, and each a “Party”) which upon execution will represent the complete and entire expression of the Agreement between the Parties, and shall supersede any and all other agreements, whether oral, written, or electronic and is effective the date the Affiliate signs up.

1.            Participation in Campaigns

1.1 Surge Calls will permit the Affiliate to participate in Campaign(s) subject to compliance with this Agreement

1.2 In order for the Affiliate to join any Campaign(s) the Affiliate must first speak with Surge Calls and accurately submit an application form. This Agreement is voidable by Surge Calls immediately if Affiliate conceals or misrepresents itself in any way during the application progress. Surge Calls reserves the right to reject any application in its sole discretion and for any reason or no reason.

1.3 For purposes of this Agreement, any partner, associate, contractor, representative, or agent of Affiliate that participates in or performs any activities for Affiliate as a part of the Network shall be deemed to be a “Sub Affiliate.” Surge Calls requires pre-approval of any and all Sub Affiliate(s) and reserves the right to withhold or refuse approval of any Sub Affiliate(s) for any reason or no reason at all, and Surge Calls may revoke its approval of any Sub Affiliate(s) at any time, with or without notice, for any reason or no reason at all. All Sub Affiliate(s) must comply with the same obligations as required of the Affiliate under this Agreement. Affiliate shall be responsible for the acts and/or omissions of its Sub Affiliate(s).

1.4          Upon acceptance into the program, Campaign(s) will be made available to the Affiliate

2.            Campaigns

Each Advertising Campaign(s) shall be specified in an email specifying the length of each campaign period, pricing, amount of calls and acceptance conditions. Surge Calls may add additional requirements to any Advertising Campaign(s) and such requirements shall be supplemental to and not in lieu of the terms of this Agreement.

3.            Purchase of Calls

3.1 Surge Calls shall purchase Valid Calls (as defined below) from Affiliate on a cost-per-call basis, at the rate set forth in the applicable Campaign(s).

3.2 A Call will only be paid by Surge Calls if it is a “Valid Call”, which means it must meet all the following criteria: (i) Such Call must have been generated in compliance with all the requirements of this Agreement and applicable Campaign(s); and (ii) Such Call meets the minimum call duration as defined in the applicable Campaign(s), or if not defined in the Campaign(s), then meets the minimum duration of 120 seconds after it has been answered by a Client.

3.4 If Surge Calls determines at any time after payment for a Call is made that such Call is not a Valid Call, then Surge Calls shall be entitled to a refund of all amounts paid with respect to such non-Valid Calls.

3.5 All Calls shall be inbound calls initiated by a User. Outbound calls to a User are strictly prohibited, unless approved by the parties, in writing, in a separate Outbound Call and TCPA Compliance Addendum.

3.6 Surge Calls reserves the right, at its sole discretion, to implement a maximum number of valid calls that the Affiliate may generate during a specified period at any time. Calls that are generated in excess of any limit implemented by Surge Calls during a specified period will be deemed as invalid and will not be paid for.

4.            Advertising and Traffic Restrictions

4.1 Compliance with Industry Standards

Affiliate agrees to undertake and complete the services as specified by Surge Calls, including all Ad placement restrictions or channels specified, in accordance with the highest industry standards. Affiliate shall position the Ads in such a manner to assure that they are fully and clearly visible to consumers and displayed in a similar manner as other merchants included in the website.

4.2          Advertising Restrictions

The Affiliate agrees that any advertisement placed on any medium either digital or offline:

A) does not infringe the patents, copyrights, trademarks, rights of publicity, rights or privacy, moral rights, music-related rights or any other right of any third party

B) does not violate any applicable law, statute, ordinance, or regulation regarding the creation and marketing of any online materials including, without limitation those governing false and/or deceptive advertising

C)is true, accurate and complete

D)is not unlawful or defamatory

E) does not contain, promote or offer any form of spyware, adware, viruses or other advertising or information collection software

F) does not contain, link to or promote any of the following: violence, hate crimes (whether racial or otherwise), illegal activities, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.

G) is not pornographic or obscene

4.3          Traffic Restrictions

Surge Calls will not accept traffic from sources that contain, produce, promote, relate to, or have characteristics of Prohibited Conduct. Surge Calls restrict any traffic and will not compensate Affiliate for traffic generated through Prohibited Conduct. "Prohibited Conduct" means generating call traffic through:

(a)          incentivize or offer points, rewards, cash or prizes for any user action

(b)          misleading statements near any Advertising Material (i.e., "You will win $3,000") or falsely suggest a link between Surge Calls and a third-party;

(c)           any Advertising Materials using an unauthorized host;

(d) violation of guidelines of any search engines being utilized;

(e) violation of guidelines of any offline mediums(television, radio) being utilized;

(f) search engine spam, doorway pages, cloaking, etc;

(g) bidding on any trademarked name or terms in any PPC/"keyword"/"adword"/Offer unless given express written permission by Surge Calls

(h) invisible methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the User

(i) telemarketing or any outbound calling unless approved by the parties, in writing, in a separate Outbound Call and TCPA Compliance Addendum.

(j) any type of email marketing. The Affiliate agrees that neither the Affiliate nor any Sub Affiliate(s) contracted by the Affiliate will, with respect to any Campaign or Insertion Order, send or cause to be sent any email to obtain call traffic

(k) any misleading or deceptive conduct or violate any other restrictions imposed by Surge Calls

(l) any other advertising mediums that has been restricted in the applicable Campaign(s)

5.            Fraud

5.1 Surge Calls reserves sole judgment in determining fraud and Affiliate agrees to be bound by any and all such determinations

5.2 Surge Calls actively monitors Traffic, Transactions, Commissions and other related activities for potential fraud. If Surge Calls determines, in its sole discretion, that Affiliate have engaged in any activity that Surge Calls or its Clients considers to be fraudulent or which might bring the reputation or standing of Surge Calls or its Client into disrepute either with the general public or with the Clients or potential Clients of Surge Call or that Affiliate has engaged in activities which might be considered fraudulent, Surge Calls Reserves the right to (i) Suspend and terminate Affiliate’s account effective immediately and with no notice to Affiliate pending further investigation.(ii) release to any third party, information relating to Affiliate identity and location if required to do so in order to enforce these terms and conditions.(iii)it is the OBLIGATION of Affiliate to prove to Surge Calls that it has NOT engaged in fraud. Surge Calls will withhold all Affiliate payments for all Campaign(s) until Affiliate has satisfactorily provided evidence that demonstrates to Surge Calls that Affiliate has not engaged in fraud. If Affiliate is unable to provide Surge Calls with satisfactory evidence that Affiliate has not engaged in fraud within five (5) days then Surge Calls reserves the right to terminate Affiliate’s account and cancel payment on the applicable Commissions, at its sole discretion and without any further obligations to Affiliate.(iv) In addition, in the event that Affiliate has already received payment resulting from fraudulent activities, Surge Calls reserves the right to seek credit or remedy from future or to demand reimbursement from Affiliate for all Commission paid.

6.            Payment

Surge Calls will pay to the Affiliate a Commission (the “Commission”) for each valid call (defined in section 3) and complies with this Agreement. Payment of Commissions are calculated in accordance with Surge Call's tracking platform or as further defined in any applicable Campaign(s). All payments will be made in US funds. Payments to Affiliate in accordance with this Section will be based solely upon the records kept by Surge Calls and/or any other online reporting system used by Surge Calls. In no circumstance will Surge Calls be obligated to pay Commissions to Affiliate unless and until the aggregate amount of the Commissions due and payable to that Affiliate exceeds One Hundred ($100.00) US Dollars. Affiliate shall be paid on a net 30 basis unless otherwise indicated in the applicable Campaign (s). Commissions due and payable by Surge Calls to Affiliate will not accrue interest. Surge Calls reserves the right to withhold all or some of the amounts due to affiliate in the event Surge Calls determines, in its sole discretion, that Affiliate is in violation of this Agreement, for traffic generated by fraudulent means and/ or to offset any past due liability to Surge Calls.

7.            Non-Solicitation

Affiliate agrees that Surge Calls has incurred substantial costs to develop its arrangements with its Clients. The Affiliate agrees not to seek, in any way, to solicit, induce, recruit or encourage, directly or indirectly or attempt to solicit, induce, recruit or encourage work away from Surge Calls; or directly or indirectly offer products and services that are competitive with Surge Calls’ to any of Surge Calls' Clients or to any third party for the benefit of said Clients or directly or indirectly to enter into any agreement or contract, written or otherwise, with any Client during the term of this Agreement and for twelve (12) months thereafter. In the event Affiliate breaches this provision, in addition to its other remedies under this Agreement, including the right to terminate Affiliate for cause, Surge Calls shall be entitled to monetary compensation equal to the value of the total revenue Surge Calls would have earned had such Calls or other products or services been provided to such Client by Surge Calls, plus any and all expenses incurred by Surge Calls to enforce this provision, including reasonable attorney’s fees and costs.  

8.            Confidential Information 

For purposes of this Agreement, “Confidential Information” shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of this Agreement by one party (“Disclosing Party”) to the other party (“Receiving Party”), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to: (i) a party’s business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, processes, methodologies, trade secrets, customer and vendor lists, personally identifiable customer information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format; (ii) the material terms of this Agreement and/or any associated Advertisers and/or Programs; (iii) any information marked or designated by the Disclosing Party as confidential; and (iv) the existence of this Agreement. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in this Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers: (i) who need to know such information in order for the Receiving Party to perform its obligations hereunder; and (ii) who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein. Confidential Information shall not include any information that the Receiving Party can verify with substantial proof: (i) is generally available to or known to the public through no wrongful act of the Receiving Party; (ii) was independently developed by the Receiving Party without the use of Confidential Information; or (iii) was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The Receiving Party agrees that monetary damages for breach of the confidentiality provisions contained herein may not be adequate and that the Disclosing Party shall be further entitled to injunctive relief, without the requirement to post bond. Notwithstanding the foregoing, Surge Calls shall be permitted to disclose information to government regulators during the course of ordinary regulatory inspections, investigations and/or enforcement actions without providing notice to Affiliate. This Section shall survive any termination of this Agreement for a period of 3 years.

9.            Intellectual Property

Surge Calls and its Clients shall own and retain all right, title and interest in its trade names, logos, trademarks, service marks, trade dress, Internet domain names, copyrights, patents, trade secrets, testimonials, endorsements, know how, and proprietary technology, including without limitation those trade names, logos, trademarks, service marks, trade dress, Internet domain names, copyrights, patents, trade secrets, testimonials, endorsements, know how, and proprietary technology currently used or which may be developed and/or used by it in the future ("Intellectual Property"). The Affiliate shall not distribute, sell, reproduce, publish, display, perform, prepare derivative works, or otherwise use any of the Intellectual Property of Surge Calls and its Clients without the express prior written consent of such party.

10.          Representations and Warranties

EACH PARTY REPRESENTS AND WARRANTS TO THE OTHER PARTY THAT: (A) IT HAS THE FULL CORPORATE RIGHT, POWER AND AUTHORITY TO ENTER INTO THE AGREEMENT, TO GRANT THE LICENSES GRANTED HEREUNDER AND TO PERFORM THE ACTS REQUIRED OF IT HEREUNDER; (B) THE EXECUTION OF THE AGREEMENT BY IT AND THE PERFORMANCE OF ITS OBLIGATIONS AND DUTIES HEREUNDER, DO NOT AND WILL NOT VIOLATE ANY AGREEMENT TO WHICH IT IS A PARTY OR BY WHICH IT IS OTHERWISE BOUND; AND (C) WHEN EXECUTED AND DELIVERED, THE AGREEMENT WILL CONSTITUTE THE LEGAL, VALID AND BINDING OBLIGATION OF EACH PARTY, ENFORCEABLE AGAINST EACH PARTY IN ACCORDANCE WITH ITS TERMS.

11.          Limitations of Liability 

SURGE CALLS WILL NOT BE LIABLE TO AFFILIATE 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 SURGE CALLS’ CUMULATIVE LIABILITY TO AFFILIATE THE LESSER OF THE AMOUNT PAID TO AFFILIATE FOR THE SPECIFIC ADVERTISING CAMPAIGN IN QUESTION OR TEN THOUSDAND DOLLARS ($10,000.00). REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST SURGE CALLS MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.

12.          Indemnification

Affiliate agrees to indemnify, defend and hold harmless Surge Calls, its parent company, subsidiaries, and their respective shareholders, its distribution partners, licensors and licensees, affiliated companies, and its clients and any of their officers, directors, employees, representatives and agents, from and against any and all claims, actions, liabilities, losses, expenses, damages and costs (including without limitation, reasonable attorneys’ fees) that may at any time, arising out of or relating to (i) Affiliate’s and Sub Affiliate's Advertisements, website, or the site of any Affiliate(s) or links, contaminated files, virus, worm or Trojan horse contained therein; (ii) any Client, consumer and/or governmental/regulatory complaint arising out of any e-mail campaign conducted by Affiliate or a Sub Affiliate(s); (iii) non-Valid Calls; (iv) any breach or alleged breach of this Agreement, any applicable Campaign(s), or any representation or warranty contained herein by Affiliate and its Sub Affiliate(s), or each of their respective officers, directors, partners, members, managers, employees, agents and attorneys; or (v) any violation or alleged violation of any applicable law, rule, or regulation by Affilaite, its Sub Affiliate(s), or each of their respective officers, directors, partners, members, managers, employees, agents and attorneys. You further agree that Surge Calls has to right to participate as a party in any litigation involving a claim to the extent that the court may permit. Affiliate's obligation to defend and indemnify as set out in this paragraph will survive termination of this Agreement for any reason and will not be otherwise limited by any other term or condition of this or any Agreement

13.          Term and Termination

13.1 The initial term of this Agreement shall commence on the Effective Date. Surge Calls may terminate this Agreement or any applicable Campaign upon twenty-four (24) hours prior written notice to Affiliate, at Surge Calls’ sole discretion, with or without cause, for any reason whatsoever; or immediately for cause upon notice to Affiliate if Surge Calls reasonably determines that Affiliate or any Sub-Affiliate(s) has breached this Agreement or has failed to comply in any respect with any of its obligations hereunder. Affiliate may terminate this Agreement upon twenty-four (24) hours prior written notice to Surge Calls. Upon the termination of Affiliate's participation or this Agreement for any reason, Affiliate will immediately cease all use of and remove all Links, including all Surge Calls and its Client intellectual property, associated with any Campaign(s). In the event that this Agreement is terminated for cause due to a breach of this Agreement, then, Surge Calls shall have no liability to Affiliate for payment for any outstanding amounts otherwise owed to Affiliate for Calls.

13.2 Notwithstanding any termination of the Agreement, Affiliate agrees that Affiliate will continue to be bound by the terms and conditions set out in Sections 7, 8, 9, 10, 11, 12, 13, 15, 16 of this Agreement and any other provisions of the Agreement that may reasonably be expected to survive suspension/termination of the Agreement shall survive and remain in effect in accordance with their terms.

14.          Notices

Any notice, request or other communication to be given by either party with reference to this Agreement shall be made by certified mail, return receipt requested and adequate postage prepaid overnight courier service (without waiver of signature), or facsimile transmission to the addresses or facsimile number shown in the applicable Campaign. Notice shall be deemed delivered upon receipt by the receiving party by signature verification or upon receipt of an electronic verification for facsimile.

15.          Choice of Law and Venue

Both Parties expressly agree that this Agreement shall be governed by the laws of the Province of Ontario, without resort to choice of law, and that any action initiated by wither party shall be made in Toronto in the Province of Ontario and each Party subjects itself to such personal jurisdiction and venue without reservation or exception. Each Party hereby waives any right to a trial by jury and any defense related to jurisdiction and venue.

16.          Severability

If any provision of this Agreement is held invalid or unenforceable for any reason, the invalidity will not affect the validity or enforceability of the remaining provisions of this Agreement.

17.         Electronic Signature

Affiliate understands and agrees that by signing up or clicking the sign up button on the bottom of the screen, which is also known as “Clicking-Through” has read the Affiliate Agreement Terms and Conditions and fully understands and agrees to be bound by the terms and conditions contained in this Agreement in the same manner as if this were a fully executed contract.

Affiliate represents that the person Clicking-Through the Terms and Conditions is authorized to bind the Affiliate. If the person Clicking-Thorough the Terms and Conditions on behalf of Affiliate is not an authorized representative or is unsure whether they have such authority, the person Clicking-Through must stop immediately and verify that Affiliate has provided such authority. By Clicking-Though this Agreement, Affiliate is entering into a binding contract with legal obligations.

18.          Authority to Bind: No Conflict

Each signatory below represents that he or she has the express authority to execute this Agreement thereby binding their respective companies, including obtaining any necessary resolution from any board of directors or a similar entity authorizing execution of and performance under this Agreement. Each Party represents that by entering into this Agreement, that it will neither breach any other existing or previous agreement with a third party nor be considered in default thereof or be in violation of each Party’s respective By-Laws and/or Articles of Incorporation/Organization, where appropriate.

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