Employment Hero – Canadian Partner Incentive Agreement

Inbound Program – Terms and Conditions

The following terms and conditions govern participation in the Partner Incentive Program.

1. DEFINITIONS

For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings given to them as follows:

1. “Active Referral Partner” means a Referral Partner that has referred at least one Qualifying Customer during the previous 24 months.
2. “Benefits Services” means benefits brokerage and advisory services offered by Company to its customers.
3. “Company” or “Employment Hero” means Humi Holdings Corp, Employment Hero Pty Ltd and its affiliates.
4. “Completed Online Referral Application” means the completed referral application submitted by or on behalf of Partner Referral through the Partner Link.
5. “Company Service” means the services provided by Company, including the Benefits Service and the Subscription Service.
6. “Partner Link” means the dedicated URL (link) or email address provided to Referral Partner by Company.
7.  “Qualified Customer” means a Referral that
   1. chooses to subscribe to a paid subscription for a Subscription Service and/or engages a benefits provider through the use of the Benefits Services
   2. is not in a free trial for a Company Service and is an active paying user of a Company Service, and
   3. is using the Company Service in accordance to the terms and conditions established by Company.
8. “Referral” means a business, company, or other legal entity that is
   1. referred to Company through a Completed Online Referral Application by the Referral Partner,
   2. not previously referred by another referral partner of Company or its affiliates, as determined by Company at the time of the initial subscription to the Company Service, and
   3. not previously a customer of, or known by, Company or its affiliates, as determined by Company at the time of the initial subscription to the Company Service.
9. “Referral Date” means the date the Completed Online Referral Application is submitted to Company via the Partner Link.
10. “Referral Fee” means the referral fee set forth on the first page of this Agreement as it relates to Subscription Services and Benefits Services.
11. “Subscription Service” means the paid subscription services provided by Company.

2. PROGRAM

1. Appointment. Subject to the terms and conditions of this Agreement, Company appoints Referral Partner as a non-exclusive referral partner of the Company Service to market and promote the Company Service to potential customers utilizing the Referral Partner’s services during the term of this Agreement. This appointment is non-transferable and revocable, and Referral Partner may not delegate or sublicense any of its rights under this Agreement or use any third party sales representatives, brokers or resellers in exercising its rights under this Agreement without the prior written approval of Company.
2. Reserved Rights. Company reserves the right, in its sole discretion and without any liability:
   1. to market and promote the Company Service in all respects;
   2. to appoint additional referral partners,
   3. to decline to provide the Company Service to any Referral and
   4. independently determine all terms (including pricing) of the Company Service, if any.
3. Relationship of Parties. Referral Partner’s relationship with Company under this Agreement will be that of an independent contractor and no agency, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement. Referral Partner does not have, and will not represent that it has, any authority to bind Company, or to assume or create any obligations or to make any warranties or representations on behalf of Company, or to enter into any agreements regarding the use of the Company Service. Each party shall be solely responsible for its employees and contractors.

3. PARTNER OBLIGATIONS

1. Marketing and Promotion. Referral Partner will market and promote the Company Service to its customary clients using the marketing materials provided by Company, including through a landing page on its website (the “Marketing Materials”). Referral Partner is responsible for all costs and expenses that it incurs in connection with its performance under this Agreement. Each party may make truthful, factual references to the other party’s Services in plain text prose descriptions of features and benefits.
2. Business Practices. Referral Partner will:
   1. conduct business in a manner that reflects favorably at all times on the Company Service and the good name, goodwill and reputation of Company;
   2. make no false or misleading representations with regard to Company or the Company Service;
   3. make no representations, warranties or guarantees with respect to the specifications, features or functionality of the Company Service that are inconsistent with the Marketing Materials;
   4. not negotiate or enter into any agreement with any Referral on behalf of Company;
   5. not advise or otherwise imply to any Referral that Referral has been or will be approved for the Company Service; and
   6. not impose any fees or charges on a Referral for access to the Incentive Program.

4. REFERRAL FEE

1. Payment. In consideration for the marketing and promotion performed by Referral Partner under this Agreement, during the Term of this Agreement, Company will pay Referral Partner the Referral Fee for each Qualified Customer. Company will pay the Referral Fee in Canadian Dollars on a quarterly basis, and will pay the Referral Fee within 31 days from the end of such period, unless the aggregate Referral Fee owed in respect of all Referrals from the Referral Partner for such period is less than $100 (in which case the Referral Fees will be carried to the next period). No more than one Referral Fee shall be paid for each Qualified Customer (including affiliates thereof). For greater certainty, no Referral Fee shall be owing for subsequent subscriptions or renewals of engagements with benefits providers. Referral Partner agrees that Referral Fee calculation shall be determined by Company in good faith and may not be appealed or disputed. If a Qualified Customer cancels their subscription before the minimum term for the relevant Company Services, Referral Fees paid in respect of that Qualified Customer as they relate to Subscription Services may be deducted from any amounts payable to the Referral Partner in any future payments on a pro rata basis.
2. Referral Fee. The Referral Fee owed for each Qualified Customer is calculated based on the Partner Tier you qualify for, as outlined on the first page of this Agreement. For each Qualifying Customer, your Referral Fee may include, along with any applicable Benefits Fee:
   1. a first year rate, being a commission equal to your first year rate multiplied by the value of the Subscription Services contained in the subscription fee that is received by Company, for the first 12 months starting from the date of the Qualified Customer’s first invoice for a Subscription Service, and
   2. an ongoing rate, being a commission equal to your ongoing rate multiplied by the value of the Subscription Services contained in the subscription fee that is received by Company, after the period of the first year rate expires. Referral Fees in respect of Subscription Services will only be payable in relation to a Qualifying Customer until the earlier of:
   3. the date on which the Qualifying Customer ceases to hold a paid subscription for Subscription Services, and
   4. the date on which you cease to be an Active Referral Partner.
3. Taxes. All amounts payable by Company to Referral Partner pursuant to this Agreement are exclusive of any value-added, goods and services, sales, use, levies, consumption, customs, excise, stamp, income or similar taxes and any such taxes imposed on any payments to Referral Partner will be Referral Partner’s sole responsibility. Where any relevant taxation authority imposes any income tax on payments under this Agreement and requires Company to withhold such tax (“Withholding Tax”), Company may deduct such Withholding Tax from the payment to Referral Partner and remit such Withholding Tax to the relevant taxing authority on behalf of Referral Partner. Upon reasonable request by Referral Partner, Company shall furnish Referral Partner with tax receipts or other documentation evidencing the payment of such Withholding Tax when available. Referral Partner will indemnify and hold harmless Company from payment of all taxes and other governmental charges, and any related penalties and interest, arising from the payment of any Referral Fee to Referral Partner under this Agreement. Referral Partner agrees to cooperate in good faith to respond to any query from the applicable tax authorities in connection with any taxes related to amounts payable under this Agreement.

5. INTELLECTUAL PROPERTY RIGHTS

1. License Grant. Subject to the terms and conditions herein, Company hereby grants Referral Partner a limited, non-exclusive, non-transferable, fully-paid, royalty-free, non-sublicensable license for the Term of the Agreement to use, copy and display the Marketing Materials as appropriate solely for the purpose of marketing and promoting the Company Service.
2. License Restrictions. Referral Partner will not (and does not have any right to):
   1. use the Marketing Materials other than to market and promote the Company Service;
   2. make more copies of the Marketing Materials than are reasonably necessary for the authorized use and backup and archival purposes;
   3. modify, translate, create derivative works of, reverse engineer, reverse compile, or disassemble the Marketing Materials or the Company Service;
   4. remove any trademarks, logos, copyright notices, proprietary notices or labels displayed on the Marketing Materials, or on any copies thereof made by Referral Partner;
   5. frame or mirror the Company Service or the Company website or
   6. distribute, sell, lease, rent, lend, or sublicense any part of the Marketing Materials to any third party, except as expressly authorized above.
3. Intellectual Property Ownership. As between Company and Referral Partner, Company solely and exclusively owns the intellectual property rights, title and interest in and to the Company Service, the Marketing Materials, all software, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites, and any additional intellectual or other property comprising a part of Company’s platform and any modifications, enhancements, updates, and derivative works thereof, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto. Except for the limited licenses expressly set forth herein, neither party will acquire any rights, title and interest in and to any patent, copyright, trademark, trade secret, or other intellectual property right of the other party.

6. TERM AND TERMINATION

1. Term. This Agreement will begin on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, will continue in effect for one year (the “Term”). Thereafter, this Agreement will automatically renew for successive one-year periods, unless a party provides the other party with notice of non-renewal not less than thirty (30) days prior to the end of the then-current Term.
2. Termination. A party may terminate this Agreement, at any time, in the event that
   1. the other party breaches any term of this Agreement and fails to cure such breach within fifteen (15) days following notice from the non- breaching party, or
   2. the other party terminates its business activities or becomes insolvent, admits in writing its inability to pay debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority. Company may terminate this Agreement, at any time, for any reason, with thirty (30) days prior written notice.
3. Effect of Termination. Upon the termination or expiration of this Agreement:
   1. all licenses and rights granted under this Agreement will automatically terminate, and
   2. Referral Partner will stop referring customers to Company. Company will only be obligated to pay Referral Partner only the Referral Fee that had accrued and become due and owing prior to the effective date of the termination or expiration; no Referral Fees shall accrue or be earned thereafter. In no event will Company or Referral Partner be liable to the other party for any damages as a result of the exercise of its termination rights pursuant to this Agreement. Sections 4, 5.c, 6.c, 7, 8, 10, 11 and 12 will survive termination or expiration of this Agreement.

7. PUBLICITY

Neither party shall issue a press release or similar public announcement of any kind regarding the parties’ relationship established under this Agreement without the prior written consent of the other party. Other than expressly set forth under this Agreement, neither party shall use publicly the other party’s name, trademarks, service marks and logos to refer to the other party in any way in or with the media without the other party’s prior written consent.

8. CONFIDENTIALITY

In connection with this Agreement, the parties hereto agree to the terms and obligations with respect to confidentiality and nondisclosure set forth in Annex A hereto, which is incorporated by reference here. Neither party shall provide the other party with any personal information or data relating to Referrals.

9. REPRESENTATIONS

Each party represents to the other that 

1. it has full power and authority to enter into and perform this Agreement,
2. the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement, and
3. it will comply with applicable laws in its performance of this Agreement. 

EXCEPT AS SET FORTH HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS REGARDING ITS SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

10. INDEMNITY

1. Intellectual Property Rights indemnity. Each party agrees to indemnify the other party, its affiliates and its officers, directors and employees against a claim asserted against the other party, its affiliates and its officers, directors and employees for claims of infringement of Intellectual Property Rights arising out of the other party’s use of the indemnifying party’s Marketing Materials.
2. Referral Partner indemnities. The Referral Partner indemnifies the Company, its affiliates and its officers, directors and employees against all losses, damages, claims or expenses of any kind including reasonable legal fees, which they or any of them may sustain or incur as a result of any claims:
   1. brought by a third party in connection with the Referral Partner breaching its responsibility not to make any representations or warranties about the Services that purport to bind the Company;
   2. brought by any third party in connection with any act or omission by the Company in relation to a third party’s Personal Information to the extent that such act or omission resulted from the Referral Partner’s instructions or the Referral Partner’s breach of these Referral Terms; and
   3. brought by a third party in connection with the Referral Partner breaching its obligations, representations or other term of this Agreement.
3. Notice and Defense. The indemnifying party will promptly notify the indemnified party of a third-party claim, provided that failure to notify the indemnifying party shall not relieve the indemnifying party of its obligations under this Section 10. The indemnifying party shall have full control and authority over the defense, except that:
   1. the indemnifying party shall not settle any third-party claim or any portion thereof without the indemnified party’s prior written approval, which approval shall be granted or withheld, conditions or delayed in the indemnified party’s sole and absolute discretion, and
   2. the indemnified party may join the defense with its own counsel at its own expense.

11. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS FROM PROVIDING SERVICES TO END USERS, LOSS OF USE, LOSS OF DATA OR LOSS OF GOODWILL), OR THE COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE COMPANY SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EITHER PARTY SHALL NOT EXCEED THE TOTAL REFERRAL FEES PAID BY COMPANY TO REFERRAL PARTNER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS CLAUSE DO NOT APPLY TO THE EXTENT THAT LIABILITY ARISES FROM: (A) THE INDEMNITIES PROVIDED UNDER THE “REFERRAL PARTNER INDEMNITIES” CLAUSE ABOVE; AND (B) BREACH OF ANY LAW OR FRAUDULENT ACT OR BEHAVIOUR. THE PARTIES AGREE THAT THIS SECTION REPRESENTS A REASONABLE ALLOCATION OF RISK.

12. GENERAL

1. Assignment. Partner may not assign or transfer its interests, rights or obligations under this Agreement, in whole or in part, by written agreement, merger, reorganization, sale of all or substantially all of the assets or equity of such party, operation of law or otherwise, without Company’s prior written consent, which shall not be unreasonably withheld. Any attempt to assign or transfer this Agreement by Partner shall be null and void.
2. Non-Disparagement. Each party agrees to instruct its current executive officers and employees to refrain from intentionally making any public communication outside the ordinary course of its business that is intended to criticize or disparage the other party. Nothing set forth herein shall be interpreted to prohibit either party from responding truthfully to incorrect public statements, making truthful statements when required by applicable law, valid subpoena or final court order or from responding to any inquiry by a governmental authority having competent jurisdiction.
3. Governing Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the Province of Ontario and the federal laws of Canada applicable therein.
4. Notices. All notices required or permitted under this Agreement will be in writing and delivered by confirmed facsimile or other electronic transmission, by courier or overnight delivery services, or by certified mail, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth above or to such other address as may be specified by either party to the other in accordance with this Section.
5. Severability. If any term or other provision of this Agreement shall be determined by a court, governmental authority, or arbitrator to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not render the entire Agreement invalid. Rather, this Agreement shall be construed as if not containing the particular invalid, illegal, or unenforceable provision, and all other provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either party. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify this Agreement so as to give effect to the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent permitted under applicable law.
6. Entire Agreement. This Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding this subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to this subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that party’s right to enforce such provisions or exercise such option.

Inbound Program – Annexure A

MUTUAL NONDISCLOSURE AGREEMENT (“MNDA”)

Each party (“Discloser”) may disclose sensitive information to the other party (“Recipient”). The parties agree as follows:

1. Definition. The term Proprietary Information means, to the extent previously, presently or subsequently disclosed by or for Discloser to Recipient, all financial, business, legal and technical information of Discloser or any of its affiliates, suppliers, customers and employees (including information about research, development, operations, marketing, transactions, regulatory affairs, discoveries, inventions, methods, processes, articles, materials, algorithms, software, specifications, designs, drawings, data, strategies, plans, prospects, know-how and ideas, whether tangible or intangible), that is marked or otherwise identified as proprietary or confidential at the time of disclosure, or that by its nature would be understood by a reasonable person to be proprietary or confidential, and including all copies, abstracts, notes, summaries, analyses and other derivatives thereof. Proprietary Information shall not include any information that 

1. was rightfully known to Recipient or any of its Representatives without restriction before receipt from Discloser,
2. is rightfully disclosed to Recipient or any of its Representatives without restriction by a third party,
3. is or becomes generally available to the public without violation of this MNDA by Recipient or
4. is independently developed by Recipient or any of its Representatives without reliance on such information. Discloser represents and warrants to Recipient that it is authorized to disclose any and all Proprietary Information made available to Recipient under this Agreement.

2. Restrictions. As to Discloser’s Proprietary Information, Recipient agrees 

1. to use the Proprietary Information only for purposes of the Agreement, but not for any other purpose, 
2. to maintain the Proprietary Information as confidential, and exercise reasonable precautions to prevent any unauthorized access, use or disclosure in breach of the terms hereof, 
3. not to copy the Proprietary Information, except as reasonably required to perform the transaction contemplated herein, 
4. not to disclose the Proprietary Information to any third party other than Recipient’s and its subsidiaries’ officers, employees, directors, partners, advisors, potential financing sources and agents (collectively, “Representatives”) who have a need to know for the permitted purpose, and who are apprised of the confidential nature of the Proprietary Information and are bound by substantially similar obligations of confidentiality 
5. not to decompile, disassemble or otherwise reverse engineer any Proprietary Information, or use any similar means to discover its underlying composition, structure, source code or trade secrets and 
6. not to export or reexport any Proprietary Information or product thereof in violation of US or other applicable export control laws or regulations. Each party shall be responsible for any breach of the confidentiality obligations contained herein by its respective Representatives unless such Representative has entered into a confidentiality agreement directly with Discloser regarding Discloser’s Proprietary Information in a form that is acceptable to the parties thereto.

3. Compelled Disclosures. These restrictions will not prevent either party and their respective Representatives from complying with any law, regulation, court order or other legal requirement that purports to compel disclosure of any Proprietary Information. Recipient will, to the extent legally permitted, promptly notify Discloser upon learning of any such legal requirement, and reasonably cooperate with Discloser in the exercise of its right to protect the confidentiality of the Proprietary Information before any tribunal or governmental agency.

4. No Licenses. All of Discloser’s rights in and to its Proprietary Information remain the exclusive property of Discloser.

5. Termination. The confidentiality obligations of this MNDA, as they apply to any Proprietary Information disclosed prior to the effective date of expiration or termination of the Agreement, will survive such date for a period of 2 years; provided that such obligations shall survive and continue in effect thereafter with respect to any Proprietary Information that is a trade secret under applicable law. Upon expiration or termination of the Agreement, or upon Discloser’s request, Recipient shall promptly return to Discloser or destroy all originals and copies of any Proprietary Information and all information, records and materials developed therefrom. Notwithstanding the foregoing, Recipient and its Representatives may retain copies of the Proprietary Information to the extent that such retention is required to demonstrate compliance with applicable law, rule, regulation, professional standards, or a bona fide internal data or document retention policy, to the extent generated by automated computer archival back-up systems or as otherwise agreed by the parties; provided, that any such Proprietary Information so retained shall be held in compliance with the terms of this Agreement.

6. Remedies. Due to the unique nature of the Proprietary Information, the parties agree that any breach or threatened breach of this MNDA may cause not only financial harm to Discloser, but also may cause irreparable harm for which money damages may not be an adequate remedy. Therefore, Discloser shall be entitled to seek, in addition to any other legal or equitable remedies, an injunction or similar equitable relief against any such breach or threatened breach without the necessity of proving actual damages or posting any bond.