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Terms and Conditions

These terms and conditions (collectively, the “Terms” or “Agreement”) set out the terms which govern the agreement between Phixey, Inc. D/B/A Phixey (“Company”), referrers who send referral links and/or codes (each, a “Referrer”), and prospective customers of Company in receipt of referral links from Referrers (each, a “Referee”), relating to the provision of marketing services by the Referrer to the Company. By sending a referral link to Referees under Company’s Customer Referral Program, Referrers and Referees hereby agree to all Terms set out herein.

1. Purpose

This Agreement allows Referrers to market and promote Company’s membership program and related services (the “Service”) to Referees under Company’s Customer Referral Program.

2. Eligibility

In order to participate in the Customer Referral Program, it is necessary, but not sufficient, that Referrers:

  • (a) be a current member;
  • (b) at least 18 years old;
  • (c) not be an employee of Company or its affiliates;
  • (d) not be prohibited from participating in the Customer Referral Program by any applicable law or contractual agreement with the Company and/or a third party; and
  • (e) not refer themselves to start a membership.

3. Process

For referral to be successful, it is necessary, but not sufficient, that the following criteria be met:

  • (a) Referee must not currently be a Company customer/member or a previous member within the last one (1) year;
  • (b) Referee must use the Referrer’s referral code or link to sign up for a new membership;
  • (c) Referee must complete the sign up for a membership; and
  • (d) Referee must successfully complete their first payment subscribing for the membership and service as further contemplated herein.

Company reserves the right to allow referral codes to be added after the membership has ended, at its sole discretion.

4. Necessary Consent

Referrer represents and warrants that they have the consent of the Referee(s) to send the referrals.

5. Referee Engagement

Company reserves the right to:

  • (a) enter into any agreements with Referees on terms and conditions acceptable to Company, or to not enter into any agreements at all;
  • (b) set the terms for Referees’ engagement with the Company including any remuneration for such participation; and
  • (c) enter into similar commission arrangements with third parties.

6. Referral Incentive

  1. The Referrer may earn certain incentives (the “Incentive”) as further described herein for each Referee that subscribes to the Services. Company shall determine, in its sole discretion, whether the Referee is eligible for an Incentive and reserves the right to reject any Referee for any reason. Company reserves the right to change or cancel the Incentives at any time.
  2. Issuance of the Incentive will be made after the Company receives its first payment subscribing for the Service from the applicable Referee, and cancellation period has ended. Incentives may vary and are subject to change without notice. The current Incentives are as described on the Phixey Referral Program webpage.
  3. The Incentive cannot be combined with any other offer is valid for a limited time only and may be modified or terminated at any time, in the Company’s sole discretion.

  4. After the first payment subscribing for the Membership/Service only if the Referrer and/or Referee, as applicable, remains as an active member/user in good standing, as determined in Company’s sole discretion, at such time, and based on satisfying the criteria described herein and as further described in the Current Incentive Page shall earn the following:

    • $5 – Orders under $50
    • $10 – Orders over $50
    • $25 – Orders over $100

    (a “Commission”). Referrer is permitted to share its referral code or link directly with friends and family (e.g. via email, personal Facebook, Twitter or LinkedIn).

7. Taxes

Incentives in the form of Commissions are inclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees or charges imposed by a government authority (“Taxes”). Referrer agrees and acknowledges that it is responsible for the reporting and remitting of all applicable Taxes that arise from the Incentive. Notwithstanding the foregoing, Company may withhold from the Incentive any amounts required to be withheld by the appropriate government authority, provided that Company remits such amounts to the appropriate government authority on behalf of the Referrer and supplies Referrer with evidence of such payment.

8. Trademark Usage

The trademarks, logos, service marks and trade names under which Company markets the Service (the “Marks”) shall remain the exclusive property of Company. This Agreement gives Referrer no license regarding the use of such Marks, except that during the term of this Agreement Company grants to Referrer a restricted, non-transferable, non-exclusive, non-sublicensable and revocable license to use the Marks to market and promote Company’s Service, membership, business and initiatives to Referees. Referrer agrees not to use the Marks in any way that may be determined objectionable by Company or confusing to any third parties regarding the nature of the relationship between Company and Referrer. Company reserves the right to approve particular uses of the Marks and/or revoke the license granted herein at any time.

9. Confidential Information

All documentation and information, including without limitation, design and presentation documents, trade secrets, customer lists, techniques, processes and technical and marketing information which is supplied by Company (“Disclosing Party”) to Referrer (“Receiving Party”) in connection with this Agreement (“Confidential Information”) is hereby deemed to be proprietary to Disclosing Party and shall be held in trust and confidence for, and on behalf of, Disclosing Party, by Receiving Party and its employees, agents, distributors and contractors and shall not be disclosed by Receiving Party or used by Receiving Party for any purpose other than as strictly permitted under this Agreement, without Disclosing Party’s prior written consent.

Receiving Party shall not copy or disclose all, or any part of, the Confidential Information except in accordance with the terms and conditions of this Agreement. Receiving Party shall be directly liable for the acts or omissions of its employees, agents, distributors and contractors with respect to such confidentiality obligations. Receiving Party agrees to protect the Confidential Information of the Disclosing Party with at least the same degree of care Receiving Party uses to protect its own trade secrets and proprietary information, which in any event shall be no less than a reasonable degree of care.

The confidentiality obligations of the parties under this Agreement shall not apply to Confidential Information which:

  • (a) at the time of disclosure is within the public domain, other than through a breach of this Agreement;
  • (b) after disclosure becomes readily and lawfully available to the public, other than through a breach of this Agreement;
  • (c) Receiving Party can establish, by documented and competent evidence, was in its possession prior to the date of disclosure of such Confidential Information by Disclosing Party; or
  • (d) is approved in advance in writing by Disclosing Party for disclosure.

10. Warranties

Referrer represents, warrants and covenants that:

  • (a) it meets the eligibility criteria set out in Section 2;
  • (b) it shall not make, and Company shall not be bound by, any offer, acceptance, representation, warranty, or affirmation of fact whatsoever to any Referee or third party respecting Company or the Company products or services, including the performance thereof;
  • (c) it has not paid, and is not aware of any payments, to any third parties with a view to securing an order, contract and/or agreement contemplated hereunder or affecting a purchaser’s decision to approach Company for the Services;
  • (d) it will use reasonable efforts to ensure that any Referee referred to Company is a legitimate individual; and
  • (e) it shall comply with all applicable laws while participating in the Customer Referral Program.

11. Indemnity

Referrer shall indemnify, defend and hold Company harmless against any and all third party proceedings, causes of action, suits, damages, losses, liability, costs and expenses (including reasonable legal fees) whatsoever that may arise, either directly or indirectly, in connection with any breach of the foregoing representations and warranties in Section 10, any misuse, unauthorized use or violation of the Marks and/or Referrer’s performance hereunder.

12. Limitation of Liability

IN NO EVENT SHALL COMPANY BE LIABLE TO REFERRER FOR DIRECT DAMAGES IN EXCESS OF THE TOTAL INCENTIVE PAID TO REFERRER BY COMPANY DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE DAMAGES OCCURRED; AND COMPANY SHALL NOT BE LIABLE FOR ANY PUNITIVE, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS), WHETHER BASED IN CONTRACT OR IN TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATING TO THIS AGREEMENT.

13. Term and Termination

This Agreement begins on the date that Referrer enrolls in the Customer Referral Program and continues until terminated by Company or Referrer. Company may terminate this Agreement at any time, for any reason or for no reason, without notice to the Referrer. On termination or expiration of this Agreement, all licenses granted to Referrer hereunder shall terminate and each party shall return to the other as soon as possible all copies of the other party’s property and materials in its possession or control, including all copies of the other party’s Confidential Information. Where this Agreement expires or terminates as provided for herein, no Incentive shall be payable with respect to any Referee for which Company has not signed an agreement for the applicable Company Service prior to the earlier of (a) the effective date of the expiration or termination of this Agreement and/or (b) the date of notice of termination.

14. Expectations

Referrer acknowledges and agrees that it has no expectation that its business relationship with Company will continue for any minimum period or that Referrer shall obtain any anticipated amount of profits by virtue of this Agreement. Company shall not be liable, by reason of any termination of this Agreement, for compensation, reimbursement or damages on account of the loss of prospective profits or on account of expenditures or commitments whatsoever in connection with the business or goodwill of Referrer. Except as provided in this paragraph, termination hereunder shall be without prejudice to any other right or remedy to which either party may be entitled hereunder, at law, or in equity.

15. Status

Referrer is not an agent or employee of Company nor is it authorized or permitted to make any representations or warranties on behalf of Company. During the term of this Agreement, should the term “partnership,” “partner” or “Referrer” be used to describe the parties’ relationship under this Agreement, the parties agree to make it clear to third parties that these terms refer only to the spirit of cooperation between the parties and do not describe or create the legal status of partners or joint venturers.

16. Severability & Waiver

If any provision of this Agreement is held invalid by any law, rule, order or regulation of any government, or by the final determination of a court of competent jurisdiction, such invalidity will not affect the enforceability of any other provisions not held to be invalid. The provisions of this Agreement shall be interpreted to carry out the intent of the parties to the fullest extent permitted by law. Any delay by either party to exercise any right or remedy under this Agreement will not be construed to be a waiver of that or any other right or remedy hereunder.

17. Governing Law

This Agreement shall be governed by the laws of the State of Florida, without giving effect to the principles of conflicts of law. Any disputes shall be resolved exclusively by the courts in Broward County Florida.

18. Survival

The confidentiality requirements, ownership and proprietary rights, exclusions of warranties, indemnification obligations, limitations of liability and general provisions set forth in this Agreement shall survive the expiration or termination of this Agreement.

19. Notices

All notices of any kind shall be in writing and may be served personally or by prepaid registered or certified mail or by private mail service (for example, Federal Express or DHL) to the addresses noted below.

20. Entire Agreement

This Agreement constitutes the entire agreement of the parties as to the subject matter hereof and supersedes any and all prior oral or written memoranda, understandings and agreements as to such subject matter. Any conflict between the body of this Agreement and its schedules shall be resolved in favour of the schedules. This Agreement may be amended at any time by the Company without notice to the Referrer.
Phixey, Inc.
3000 SW 4 Ave.
Fort Lauderdale, Florida 33315
USA
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