TrypScore Advertising Sales Referral Terms
Last Updated August 1, 2021
By signing up for the TrypScore Advertising Sales Referral Program, you are agreeing to be bound by the following terms and conditions (the “Terms”) as per the TrypScore Advertising Sales Referral Agreement (the “Agreement”) executed between you (the “Referrer”) and Medidas Digital Inc. (“Medidas”) (together, the “Parties”, and each a “Party”). Medidas reserves the right to update and change the Terms by posting updates and changes, with the latest date of modification indicated here at https://trypscore.com/sales-referral-terms.
Unless defined elsewhere in the Agreement, capitalized terms set out in the Agreement are defined as follows:
“Advertiser” means an individual or business that pays to utilize the marketing assets available through the TrypScore mobile application.
“Advertiser Data” means information (including personal information) relating to an Advertiser, including but not limited to business, financial and product information and any customer data.
“Application” or “App” refers to the TrypScore mobile application and data platforms.
“Advertiser” means any Advertiser that has installed the App through the marketing efforts (as later defined), and using the personalized tracking link, of the Referrer.
“Referral Fees” means the fees paid to Referrer for Advertisers acquired subject to the terms and conditions of the Agreement.
“Advertising Sales Referral Program” refers to the program referenced within these terms and conditions defining the promotion of TrypScore to potential Advertisers by the Referrer.
“Gross Revenue” means the fees charged as part of a Master Advertising Agreement and any subsequent Insertion Orders executed by Medidas and the Advertiser.
“Insertion Order” means the order, including purchase orders if applicable, for specific TrypScore in-app or out-of-app advertising services and relevant terms.
“Master Advertising Agreement” means the agreement between Medidas and an Advertiser governing the Advertiser’s use of the Medidas services.
“Marketing Assets” means the digital, print or web-based creatives created to describe or promote TrypScore and provided at the sole discretion of Medidas.
“Net Revenue” means Gross Revenue less costs of goods sold with respect to direct costs associated with Insertion Order fulfillment.
“Payment Period” has the meaning as set out in Section 3.2.
“User” means any individual that installs the App and actively participates in activities on the App.
“User Data” means information (including personal information) relating to a User of the App, including, but not limited to, account information, location-based information and driver behavior information.
2. REFERRER RESPONSIBILITIES
2.1 MARKETING ACTIVITIES
Referrer shall bear all own costs and expenses related to Referrer’s promotion of TrypScore (“Marketing Efforts”) unless otherwise agreed to in writing by both parties.
Referrer shall not (i) use malware, spyware or any other aggressive advertising or marketing methods in any of its Marketing Efforts relating to TrypScore; (ii) make any false, misleading or disparaging representations or statements with respect to TrypScore; (iii) solicit Advertisers to leave a TrypScore Master Advertising Agreement; (iv) copy, resemble or mirror the look and feel of TrypScore’s websites, TrypScore Trademarks or Services or otherwise misrepresent Referrer’s affiliation with TrypScore; or (v) engage in any other practices which may adversely affect the credibility or reputation of TrypScore and/or Medidas, 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 TrypScore or the Referrer’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.
2.2 COMPLIANCE WITH LAWS
In addition to, and without limiting the provisions of the Agreement, Referrer shall perform its obligations hereunder in accordance with the highest applicable industry standards and in compliance with all applicable laws, rules and regulations.
2.3 REFERRER DUTY TO INFORM AND DISCLOSE
Referrer shall promptly inform Medidas of any information known to Referrer that could reasonably lead to a claim, demand or liability of or against Medidas by any third party.
2.4 OTHER REFERRER TERMS
If the Referrer is an individual, the Referrer must be 18 years or older or at least the age of majority in the jurisdiction where the Referrer resides.
Referrer acknowledges and agrees that Referrer will be responsible for the performance of all 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 Referrer.
Referrer acknowledges and agrees that Medidas may amend the Terms at any time by posting the relevant amended and restated Terms on TrypScore’s website, available at https://trypscore.com/sales-referral-terms such amendments to the Terms are effective as of the date of posting.
Other than the limited license to use the TrypScore Trademarks pursuant to Section 5 of the Agreement, Referrer shall not use the TrypScore Trademarks and/or Marketing Assets (meaning any names and/or trademarks or any other protected marks associated with TrypScore and/or Medidas Digital Inc.) and/or variations or misspellings thereof in Referrer’s business name, logo, branding, advertising, social media or domain name (including without limitation top-level domains and sub-domains).
Referrer shall not purchase or register search engine or other pay-per-click keywords (such as Google AdWords), trademarks or domain names that use the TrypScore Trademarks and/or the names or trademarks of any Marketing Assets any variations or misspellings thereof that may be deceptively or confusingly similar to the TrypScore Trademarks or the names or trademarks of any Marketing Asset.
3. FEES AND PAYMENTS
3.1 REFERRAL FEES
Subject to: (i) Referrer’s compliance with the Agreement, and (ii) Advertisers acquired through the Referrer’s continued active participation with TrypScore, Referrer shall be entitled to receive Referral Fees from Medidas. The Referral Fees are defined in Attachment 1 to the Agreement.
Fees due to Referrer for current quarter will be calculated by Medidas within 15 days after the quarter end. The calculation requires: 1) confirmation of total Gross Revenue received by Medidas in the current quarter, as defined in the Agreement, from Advertisers referred by Referrer in compliance with the Terms of the Agreement. The calculation of Referral Fees due shall be defined in Schedule “A” of the Agreement.
Medidas distributes Fees owing to the Referrer within 30 days after each quarter end (each such period, a “Payment Period“). Where the Fees owing to Referrer are greater than USD $25 at the end of any Payment Period, the Fees will be paid to Referrer. If the Fees owing to Referrer are less than USD $25 at the end of any Payment Period, Medidas 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 Referrer from any previous Payment Period and Fees owing to Referrer under the current Payment Period are USD $25 or more.
Fee structure and compensation shall be defined in the TrypScore Advertising Sales Referral Agreement duly signed and executed individually by the Parties.
Unless otherwise specified in the Agreement, either Party may terminate the Agreement at any time, with or without cause, upon giving 30 days notice to the other Party in writing or through email.
Fraudulent or other unacceptable behavior by Referrer, including breach of the terms, as determined by Medidas in its sole discretion, may result in one or more of the following actions being taken by Medidas: (a) termination of Referrer’s affiliation with Advertisers within the scope of the Agreement; (b) suspension of some or all Referrer privileges under the Agreement; and (c) termination of the the Agreement entirely without notice to, or recourse for, Referrer.
Medidas reserves the right to cancel or modify the Agreement in its entirety, including the Referral Fees, at any time. If a significant change is made to the Agreement, including any material change to Referral Fees, Medidas will provide reasonable notice by email.
4.2 CONSEQUENCES OF TERMINATION
Upon termination of the 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 Marketing Assets and all Confidential Information (as defined below)); (b) Referrer shall immediately cease displaying any Marketing Assets and/or any TrypScore Trademarks on any Website or otherwise; and (c) all rights granted to Referrer hereunder will immediately cease, including but not limited to the right of Referrer to receive any payments of Referral Fees hereunder, unless otherwise determined by Medidas in its sole discretion.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 TRYPSCORE MARKETING ASSETS
All Marketing Assets will be solely created and provided by Medidas unless otherwise agreed to by Medidas in writing, in advance. Medidas will provide Referrer with copies of or access to Marketing Assets. By using the Marketing Assets, you indicate your acceptance of our Brand Guidelines and you understand that a violation of these guidelines or the Agreement will result in the termination of the Agreement and/or permission to use the Marketing Assets. The Marketing Assets are provided “as is” and without warranty of any kind.
Referrer may display Marketing Assets on their websites solely for the purpose of marketing and promoting TrypScore during the term of the Agreement, or until such time as Medidas may, upon reasonable prior notice, instruct Referrer to cease displaying the Marketing Assets. Referrer may not alter, amend, adapt or translate the Marketing Assets without Medidas’ prior written consent. Nothing contained in any Marketing Assets shall in any way be deemed a representation or warranty of Medidas. The Marketing Assets shall at all times be the sole and exclusive property of Medidas and no rights of ownership shall at any time vest with Referrer even in such instances where Referrer has been authorized by Medidas to make changes or modifications to the Marketing Assets.
5.2 TRYPSCORE TRADEMARKS
During the term of the Agreement, Medidas hereby grants to Referrer a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to display the TrypScore Trademarks solely as necessary to perform Referrer’s obligations under the Agreement. Referrer acknowledges and agrees that: (a) it will use TrypScore’s Trademarks only as permitted hereunder; (b) it will use the TrypScore Trademarks in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by Medidas in writing from time to time; (c) the TrypScore Trademarks are and shall remain the sole property of Medidas; (d) nothing in the Agreement shall confer in Referrer any right of ownership in the TrypScore Trademarks and all use thereof by Referrer shall inure to the benefit of Medidas; (e) Referrer shall not, now or in the future, apply for, or contest the validity of, any TrypScore Trademarks; and (f) Referrer shall not, now or in the future, apply for or use any term or mark confusingly similar to any TrypScore Trademarks.
5.3 RESTRICTIONS ON REFERRER’S USE OF TRYPSCORE TRADEMARKS
Notwithstanding Section 5.2, Referrer shall not use any TrypScore logos or the word mark TRYPSCORE or variations of the word “TrypScore” in Referrer’s business name, logo, products or services, including without limitation, the name or design of any application or theme.
5.4 PROPRIETARY RIGHTS OF MEDIDAS
As between Referrer and Medidas, the Marketing Assets, TrypScore Trademarks, all demographic and other information relating to Advertisers, prospective Advertising Sales Referral partners, the Services, Advertiser Data, and all software, documentation, templates, tools, documents, processes, methodologies, know-how, websites, and any additional intellectual or other property used by or on behalf of Medidas or otherwise related to TrypScore, TrypScore Advertising Sales Referral Program, TrypScore, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “Medidas Property”) shall be and remain the sole and exclusive property of Medidas. To the extent, if any, that ownership of any Medidas Property does not automatically vest in Medidas by virtue of the Agreement, or otherwise, and vests in Referrer, Referrer hereby transfers and assigns to Medidas, upon the creation thereof, all rights, title and interest Referrer may have in and to such Medidas Property (and waives any and all moral rights, as applicable), including the right to sue and recover for past, present and future violations thereof.
“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, product designs, sales, costs (including any relevant processing fees), 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 the Agreement and in accordance with any other obligations in the Agreement including this Section 6. 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 the 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 the Agreement; or (C) is thereafter rightly obtained by the receiving Party from a source other than the disclosing Party without breaching any provision of the Agreement.
7. DISCLAIMER OF WARRANTY
The TrypScore Advertising Sales Referral Program is provided “as-is”. Medidas makes no warranties hereunder, and Medidas 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, Medidas further disclaims all representations and warranties, express or implied, that the TrypScore mobile application, the TrypScore dashboards, the TrypScore Trademarks, or the TrypScore Marketing Assets satisfy all of Referrer’s or Advertiser’s requirements and or will be uninterrupted, error-free or free from harmful components.
8. LIMITATION OF LIABILITY AND INDEMNIFICATION
8.1 LIMITATION OF LIABILITY
Medidas shall have no liability with respect to the TrypScore Advertising Sales Referral Program, the TrypScore Trademarks, the Marketing Assets or Medidas’ obligations under the 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 TrypScore Trademarks, the TrypScore Marketing Assets, or Referrer’s participation or inability to participate in the Advertising Sales Referral Program, even if Medidas has been advised of the possibility of such damages. In any event, Medidas’ liability to Referrer under the Agreement for any reason will be limited to the Referral Fees paid to Referrer by Medidas 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 an Advertiser and the Referrer is strictly between the Advertiser and the Referrer, and Medidas is not obligated to intervene in any dispute arising between the Advertiser and the Referrer. Under no circumstances shall Medidas be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from or relate to the Referrer’s relationship with any Advertiser. These limitations shall apply even if Medidas has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law. MEDIDAS SHALL NOT BE LIABLE FOR ANY NEGLIGENT ACT COMMITTED BY AN ADVERTISER WHILE OPERATING A VEHICLE THAT CAUSES HARM OR DAMAGE TO THE ADVERTISER OR PASSENGERS OF THEIR, OR ANOTHER, VEHICLE.
8.2 REFERRER INDEMNIFICATION
Referrer agrees to indemnify, defend and hold harmless Medidas and any Medidas 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) Referrer’s breach of any representation, warranty, obligation or covenant under the Agreement; (b) Referrer’s gross negligence or wilful misconduct; (c) any warranty, condition, representation, indemnity or guarantee relating to TrypScore and Medidas Related Entities granted by Referrer to any Advertiser, prospective Advertising Sales Referral partner or other third party; (d) Advertiser’s use of the TrypScore services; (e) Referrer’s breach of any term of the Agreement (including any documents it incorporates by reference) or an Advertiser Agreement; (f) any third party claim that Referrer’s products or services, including without limitation any Marketing Effort, infringes the intellectual property or other rights of a third party; (g) the performance, non-performance or improper performance of the Referrer’s Efforts, including without limitation, any Marketing Effort; and (h) Referrer’s relationship with any Advertiser.
8.3 NOTICE OF INDEMNIFICATION
In claiming any indemnification hereunder, the Indemnified Party shall promptly provide the other Party with written notice of any claim which the Indemnified Party believes falls within the scope of the indemnifications provided under the Agreement. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that the other Party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that in settling any claim the other Party will not make any admission on behalf of the Indemnified Party or agree to any terms or conditions that do or reasonably could result in any admission by, or the imposition of any liability upon, the Indemnified Party without the prior written approval of the Indemnified Party.
8.4 NON-EXCLUSIVE REMEDIES
In the event of any breach or threatened breach by Referrer of any provision of Sections 2, 5 and/or 6 above, in addition to all other rights and remedies available to Medidas under the Agreement and under applicable law, Medidas 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 the Agreement and Referrer’s engagement hereunder, (c) receive a prompt refund of all amounts paid to Referrer hereunder, and (d) be indemnified for any losses, damages or liability incurred by Medidas in connection with such violation, in accordance with the provisions of this Section 8.
9. GENERAL PROVISIONS
9.1 FORCE MAJEURE
If the performance of any part of the 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 the Agreement), labour disputes, act of God or any cause beyond the reasonable control of that Party, the Party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such cause. Notwithstanding anything herein to the contrary, the Party prevented from performing hereunder by a force majeure event shall nevertheless use its best efforts to recommence its performance hereunder as soon as reasonably practicable and to mitigate any damages resulting from its non-performance hereunder.
9.2 INDEPENDENT CONTRACTORS
The Parties to the 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. The 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.
Nothing in the Agreement is intended to create, nor shall it be construed as creating, any exclusive arrangement between the Parties to the Agreement. The Agreement shall not restrict either Party from entering into similar arrangements with others, provided it does not breach its obligations under the Agreement by doing so, including without limitation, any confidentiality obligations.
Any notice, approval, request, authorization, direction or other communication under the 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 Referrer’s email address listed in the Agreement, and to [email protected]; (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 Agreement, and for Medidas to Second Floor, Suite 110, 190 Carleton Drive, St. Albert Alberta T8N 6W2 Attention: CFO.
9.5 NO WAIVER
The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of the Agreement or to exercise any right under the Agreement shall not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same shall be and remain in full force and effect. Each waiver shall be set forth in a written instrument signed by the waiving Party.
9.6 ENTIRE AGREEMENT
The Agreement, including any completed application forms and all guidelines and other documents linked or otherwise incorporated or referenced 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 the 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 the Agreement (whether or not it would materially alter the 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.
All the terms and provisions of the Agreement shall be binding upon and inure to the benefit of the Parties to the Agreement and to their respective heirs, successors, permitted assigns and legal representatives. Medidas shall be permitted to assign the Agreement without notice to or consent from Referrer. Referrer shall have no right to assign or otherwise transfer the Agreement, or any of its rights or obligations hereunder, to any third party without Medidas’ prior written consent, to be given or withheld in Medidas’ sole discretion.
9.8 APPLICABLE LAWS
The Agreement shall be governed by and interpreted in accordance with the laws of the Province of Alberta 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 Alberta with respect to any dispute or claim arising out of or in connection with the Agreement.
9.9 PATENT NON-ASSERTION
Referrer and its affiliates covenant not to assert patent infringement claims against Medidas, Medidas Related Entities, or Medidas products and services.
9.10 COMPETITIVE OR SIMILAR MATERIALS
Medidas 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 Referrer’s products or services, including without limitation any Application, regardless of their similarity to Referrer’s products or services, provided that Medidas does not use Referrer’s Confidential Information in so doing.
If Referrer provides any feedback (including identifying potential errors and improvements) to Medidas concerning the Referrer Program, the TrypScore technology, or any aspects of the Service (“Feedback”), Referrer hereby assigns to Medidas all right, title, and interest in and to the Feedback, and Medidas is free to use, reproduce, disclose, and otherwise exploit the Feedback without attribution, payment or restriction, including to improve the Advertising Sales Referral Program, TrypScore, and/or the technology and to create other products and services. Medidas will treat any Feedback as non-confidential and non-proprietary. Referrer will not submit any Feedback that it considers confidential or proprietary.
9.12 BETA SERVICES
From time to time, Medidas may, in its sole discretion, invite Referrer to use, on a trial basis, potential new services or features that are in development and not yet available to all Referrers or Advertisers (“Beta Services”). Beta Services may be subject to additional terms and conditions, which Medidas will provide to Referrer prior to Referrer’s use of the Beta Services. Such Beta Services and all associated conversations and materials relating thereto will be considered Confidential Information of Medidas and subject to the confidentiality provisions of the Agreement. Medidas makes no representations or warranties that the Beta Services will function. Medidas may discontinue the Beta Services at any time in its sole discretion. Medidas will have no liability for any harm or damage arising out of or in connection with a Beta Service.
9.13 SERVICE PROVIDERS
Referrer may work with service providers as necessary to facilitate Referrer’s performance under the Agreement. Referrer acknowledges and agrees that any act or omission by Referrer’s service provider amounting to a breach of the Agreement will be deemed to be a breach by Referrer.
If any provision of these Program Terms is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of these Program Terms, which will otherwise remain in full force and effect.