Field Agent Canada Master Service Agreement
Last updated: 07/07/2015
BY USING THE FIELD AGENT CANADA WEBSITE OR BY SUBSCRIBING TO THE USE OF FIELD AGENT CANADA SERVICES PURSUANT TO AN EXECUTED STATEMENT OF WORK, YOU AGREE TO BE BOUND BY ALL THE TERMS AND PROVISIONS OF THIS MASTER SERVICE AGREEMENT (THE “AGREEMENT”) AND CLARIFY THAT (1) YOU ARE AT LEAST 18 YEARS OLD; (2) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND YOURSELF OR THE COMPANY YOU REPRESENT; AND (3) YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS SET FORTH IN SAID AGREEMENTS AND ALL APPLICABLE POLICIES, PROCEDURES AND GUIDELINES.
For purposes of this Agreement, (a) “Field Agent”, “Field Agent Canada”, “we”, “us” or “our” means Sales Is Not Simple Inc., a Canadian corporation and sole licensee of the Field Agent brand, sites and applications in Canada (b) “Site” means the Field Agent websites located at www.ca.fieldagent.net and www.canadianmysteryshopper.ca, and any successor website thereto, including all services provided by us to you through the service platform on the Site, (c) “App” means all the Field Agent mobile applications downloadable on the iPhone app store or Google Play, (d) “Services” means any service that you request or purchase on or through the Site, App or a Statement of Work, including, without limitation, the subscription for the Product, and the work products such service renders, (e) “Affiliate” means any entity controlled by, in control of, or under common control with Field Agent, (f) “Client” or “you” means you the subscriber of services or users of the Site, App or Product, (g) “Agent” means any person, who uses the Product, App, Site, or any successor or replacement websites to perform Services for a Client, and any successor or replacement websites, and (h) “Product” means Software-as-a-Service program of Field Agent, as more particularly identified on the Statement of Work, and all materials related thereto, including without limitation, user guides, specifications and information.
a. Information: When you subscribe to the use of the Product, Site or the App, you will be asked to provide us with, at a minimum, your name, company name, a valid email address, telephone number and such other information that we may request. You agree to provide us with true and accurate information, and to update that information to the extent it changes in any way. When registering or updating your information, you will not impersonate any person or use a name that you are not legally authorized to use.
02. Field Agent’s Role
Field Agent and its Affiliates act strictly as a liaison between third-party Clients and third-party Agents. As liaison, Field Agent and it’s affiliates do provide data delivery, quality control, customer service, and agent payment services. Completion of all responses requested per project is not guaranteed. Project completion rates may vary from project to project based on Agent availability, project time restriction, agent qualification, number of responses requested, and specific job requirements. When requested responses are not gathered the cost of the incomplete responses, and only the incomplete responses, will not be charged or will be refunded to the Client Account. It is the client’s responsibility to review and qualify the delivery and quality of the final product as outlined in section 4. Field Agent will be responsible for and will have sole discretion regarding agent payment, and all customer service issues relating solely to the use of the Site, App and their respective features.
BECAUSE FIELD AGENT ACTS STRICTLY AS A LIAISON BETWEEN CLIENTS AND AGENTS OR OTHER PARTICIPANT DEALINGS, YOU HEREBY RELEASE FIELD AGENT AND ITS AFFILIATES (AND THEIR RESPECTIVE EMPLOYEES, DIRECTORS, AGENTS AND REPRESENTATIVES) FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL, CONSEQUENTIAL AND OTHERWISE) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY DISPUTE BETWEEN ONE OR MORE CLIENTS, AGENTS, OR OTHER USERS OF THE SITE.
a. Requesting Services: To request the use of the Product and the provision of Services thereto, Client must complete and submit a Statement of Work which shall provide a description of the Services requested, terms of the specific use of the Product and the payment that will be provided for such rendered Services. Such Statement of Work, and its terms and provision provided therein, is specifically incorporated herein by reference. Upon entering into the Statement of Work, Client agrees to be bound by this Agreement and the Policies. As a Client, you will be charged a fee for your use of the Product in connection with each request for Services as outlined in the Statement of Work. All fees are in Canadian dollars unless stated otherwise. The Field Agent fees may vary in the future. You agree to pay the amounts set forth in the Statement of Work on the terms set forth herein and therein, and to check the fees and terms each time you use the Product, Site and App.
b. Ownership: You expressly agree and acknowledge that Field Agent retains all right, title and interest in and to the Product, technologies, source codes, platforms, work processes, and intellectual property associated with any and all projects initiated by Client, and that any rights, title and interest not expressly granted herein shall be retained by Field Agent. Upon the submission of a Statement of Work, Field Agent grants to Client a personal, non-exclusive, non-sublicensable and non-transferable license for Client to access and use the Product in accordance with the terms of this Agreement, Statement of Work and Policies. Further, upon submission of a Statement of Work, Field Agent grants to Client an irrevocable, perpetual, royalty-free, fully paid, transferable and sublicensable right and license to reproduce, distribute and use the photos, responses, information, feedback, content and other materials (the “Materials”) uploaded to or generated by the Product pursuant to the provision of Services for Client’s personal or business use subject to Section 0.3(c).
c. Limitations on Requested Services: Except as otherwise provided herein, Client agrees that it will not copy, modify, translate, create derivative works based on, disassemble, reverse engineer or otherwise attempt to discover the source code, object code, underlying structure or algorithms of, the Product. Further, Client agrees that it shall not remove any trademark or copyright notice in the Product. You will not (a) make any Service or the Product available to, or use any Service or the Product for the benefit of, anyone other than you, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or the Product, or include any Service or the Product in a service bureau or outsourcing offer, (c) use the Product to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) interfere with or disrupt the integrity or performance of the Product or third-party data contained therein, (e) attempt to gain unauthorized access to any Service or the Product or its related systems or networks, (f) permit direct or indirect access to or use of any Service or the Product in a way that circumvents a contractual usage limit, and (g) copy the Product or any part, feature, function or user interface thereof. As a Client, you may not request, purchase, or offer to purchase any Service that violates applicable law or is prohibited by the Policies. Notwithstanding any provision of this Agreement, Field Agent will have the right, in its sole discretion, to determine the content, appearance, design, functionality and all other aspects of the Product, Site and App (including the right to re-design, modify, remove and alter the content, appearance, design, navigation, functionality, and other aspects of the Product, Site or App and/or any page thereof and any element, aspect, portion or feature thereof, from time to time). You agree that with your subscription you will only request and accept Services from Agents that have been submitted through the Site, for the duration of your subscription.
d. Independent Contractor: You acknowledge that Agents are agreeing to perform Services for you as independent contractors and not employees.
04. Approving and Rejecting Services
Clients will be notified by email, sent to the email address tied to the client account upon the completion of the requested Services. If the client chooses to opt out this notification, it will be the client’s responsibility to monitor the time of completion. At such time, the Client will have three (3) business days, from the date of receipt of said notification, to reject the performed Services based upon the specifications set forth in the Statement of Work. A notice of rejection, with sufficient detail describing the nonconformity with the Statement of Work, shall be provided to Field Agent by email as posted on the Site or in the Statement of Work. In the absence of the receipt of a timely rejection notice, said completed Services will be deemed approved and completed to the Client’s satisfaction, and you agree that Services are approved and funds are remitted to the performing Agent, and you are not entitled to any refund of your payment for such Services.
05. Payment for Services
a. Upon Submission of Request: Payment for the performance of requested Services and use of the Product, and Field Agent fees associated with the submission of any requests for such Services, must be made to Field Agent at the time said request as outlined and set forth on the Statement of Work at such time that the Statement of Work is submitted. These payments can be made via a credit card, PayPal account, or bank account or as otherwise provided in your Statement of Work. By accepting the terms of this Agreement and submitting requests for Services pursuant to a Statement of Work, as a Client, you hereby authorize us to initiate debit or credit entries to your credit card, PayPal account or bank account in accordance with this Agreement or as otherwise provided in the Statement of Work. Outlined below are some of or standard options for payment terms. These terms may be altered in our Statement of Work, in that case the terms outlined in the Statement of Work will replace any outline here.
I. Prepaid Jobs. Each Client must prepay for work they intend on acquiring through the Services by funding Field Agent Prepaid Jobs (“Prepaid Jobs”) with a credit card via PayPal or via funding a prepaid account. Prepaid Jobs are subject to the Field Agent Prepaid Jobs Terms and Conditions. Prepaid Jobs are maintained in a single Prepaid Job account for you solely for use of the Services. The amount of Prepaid Jobs funded must be at least equal to the total amount that will be owed to Agents upon completion and acceptance of the Services and any amounts payable to Field Agent in connection with Client’s use of the Site. If the Prepaid Jobs are purchased with proceeds from a bank account, the Prepaid Jobs may not be available for use for up to four (4) days before such funds are available for disbursement to an Agent’s Payment Account (defined below). After Client’s acceptance of the Services, the Payment Service will debit the amount owed to each Agent from the Client’s Payment Account, and credit each Agent’s Payment Account that amount.
II. Jobs on Credit. Clients may request to be billed for work they intend on acquiring through the Services. Jobs on Credit are subject to the Field Agent Jobs on Credit Terms and Addendum. Purchase orders are required prior to jobs being processed with terms of 0% net 30. If Field Agent enters into an alternate service agreement; the terms in such agreement will supersede those outlined in this agreement. The amount of Jobs billed must be at least equal to the total amount that will be owed to Agents upon completion and acceptance of the Services and any amounts payable to Field Agent in connection with Client’s use of the Site. After Client’s acceptance of the Services, the Payment Service will debit the amount owed to each Agent from the Client’s Payment Account, and credit each Agent’s Payment Account that amount.
b. Taxes: All transactions will be charged 13% HST in addition to the base job fees listed in the Statement of Work. These responsibilities are strictly with respect to the client actions and transaction. As liaison, Field Agent will be responsible coordinating, collecting, and reporting agent tax documentation, including but not limited to SIN and T4A documentation.
c. Transaction Errors: In the event there is an error in the processing of any transaction described above, corrective debits or credits shall be made, as applicable, to correct such error, provided that any such correction is made in accordance with applicable laws and regulations. Further we may make any inquiries we consider necessary to validate the error, which may include ordering a credit report, performing credit checks, or verifying the information you provide against third party databases. If we are unable to debit any PayPal Account you select for any reason, you authorize us to resubmit the debit, plus any applicable fees, to any other ACH-Enabled Bank Account you have (or, in the case of any fees that are owed under this Agreement, to deduct such amounts from the funds in your Payment Account). Your authorizations provided pursuant to this Payment for Services Section will remain in full force and effect until we receive written notification from you of any termination. Any termination of these authorizations will become effective as soon as we have had a reasonable amount of time to act on it, but in any event not later than thirty (30) days after written notice of termination is received by us in accordance with Section 12(e) of this Agreement. If you believe that any payment transaction initiated by us (or our agent) is erroneous, or if you need more information about any such transaction, you should contact us as soon as possible.
d. Restrictions and Limitations: We reserve the right to terminate or suspend any subscription, or to delay the availability of any requests for Services, transfer or disbursement of any amounts, in each case for any reason in our sole discretion, including, without limitation, if we believe that a Client is in violation of this Agreement, or the Statement of Work. If Field Agent terminates your subscription because you have violated the Policies then any Services that have been completed by Agents but not yet accepted by you will be deemed accepted.
e. Our Liability: We (and our Affiliates) act only in the capacity of a payment processor in facilitating the transactions between Clients and Agents, and are not otherwise involved in the actual transactions. We will only be responsible for initiating purchases of Prepaid Jobs and the transfers or disbursements at the direction of Clients and Agents. We will be entitled to rely on the instructions of Clients and Agents without any further inquiry or liability whatsoever. We will not be liable if we are not able to complete a transaction for any reason, including, but not limited to,
If any system or equipment was not working properly and you knew or had been advised about the breakdown before you initiated the transaction;
If you do not have enough available funds in your Prepaid Job account or in your Payment Account to complete the applicable transaction. Terms will be established in a Statement of Work.
If circumstances beyond our control (such as, but not limited to, power outages, fire, flood, mechanical or systems failure) prevent the proper execution of the transaction, despite reasonable precautions we have taken;
If your transaction is intercepted by legal process or other encumbrances restricting transfer, or your participation in the Site has been terminated or suspended for security purposes;
If we are unable to confirm your identity or have reason to believe that the transfer requested is unauthorized; or
If you have not provided us with correct, current and complete payment information.
f. Statements and Account Balances: All purchase of any Prepaid Jobs, making payments to an Agent or other payment transaction occurring with respect to a Payment Account will be reflected on the Site. In addition, you may access your transaction information (your “Activity History”) online in the “Clients,” and “View Transaction History” (or equivalent) areas of the Site at any time. You may access this feature only with a browser that is compatible with the Service, including any security features that are part of the Service. Interest will not be paid on Prepaid Jobs or any amounts held in Payment Accounts.
g. Subscriptions: When a client account is created, the account defaults to a free default set of job building features. If a client chooses, other subscription packages may be purchased under the “Account” tab of the Client page of the site. All subscriptions must be paid for with valid credit card. The face value of the subscription package chosen will be charged to the card used at the point of purchase. After the initial purchase, a recurring payment of the face value of the package chosen will be charged to the card initially used every month on the date subscribed, until the subscription is canceled. To cancel the subscription, a client must choose to cancel the subscription in the account tab of the client page of the site.
06. Restricted Use of Information
You may use information or other data acquired from your use of the Product, the Site and/or App solely to the extent necessary for you to use the Site and/or App and for no other purpose, including but not limited to, for purposes of solicitation, advertising, marketing, unsolicited e-mail or spamming, harassment, invasion of privacy, or otherwise objectionable conduct. Field Agent and its Affiliates retain all right, title and interest in and to the Product, the Site, App, and all intellectual property rights contained therein. You shall not sell, license, distribute, or lease any information or data acquired from your use of the Product, the Site or App without previous consent with Field Agent through a reseller or licensing agreement. You may generally publicize your use of the Site, however you may not issue any press release with respect to Field Agent the App or the Site, without Field Agent’s express prior written consent.
08. No Warranties and General Release
a. NO WARRANTIES: THE PRODUCT, THE SITE AND THE APP, THE PAYMENT SERVICE AND THE SITE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FIELD AGENT MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION:
1. ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT VALIDITY OF PATENT AND TECHNOLOGY RIGHTS CLAIMS, WHETHER ISSUED OR PENDING, OR THE ABSENCE OF LATENT OR OTHER DEFECTGS, WHETHER OR NOT DISCOVERABLE;
2. THAT THE PRODUCT, THE SITE AND APP, THE PAYMENT SERVICE OR THE PRODUCT, THE SITE SERVICES WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OPERATE WITHOUT ERROR, OR WILL CONTAIN ANY PARTICULAR FEATURES OR FUNCTIONALITY;
3. THAT THE INFORMATION, CONTENT, OR MATERIALS INCLUDED ON THE PRODUCT, THE SITE AND APP WILL BE AS REPRESENTED BY CLIENTS OR AGENTS, THAT THE SERVICES ARE LAWFUL, OR THAT CLIENTS OR AGENTS WILL PERFORM AS PROMISED; OR
4. ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
b. GENERAL RELEASE: FIELD AGENT IS NOT INVOLVED IN TRANSACTIONS BETWEEN CLIENTS AND AGENTS OR OTHER PARTICIPANT DEALINGS. YOU HEREBY RELEASE FIELD AGENT AND ITS AFFILIATES (AND THEIR RESPECTIVE EMPLOYEES, DIRECTORS, AGENTS AND REPRESENTATIVES) FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, COMPENSATORY AND OTHERWISE) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY DISPUTE BETWEEN ONE OR MORE CLIENTS, AGENTS, OR OTHER USERS OF THE PRODUCT, THE SITE AND THE APP.
09. Indemnity; Limitation of Liability
a. Indemnity and Defense: You will indemnify and hold harmless Field Agent and its Affiliates (and their respective employees, directors, agents and representatives) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity (“Claim”) that arises out of or relates to: (1) any actual or alleged breach of your representations, warranties, or obligations set forth in this Agreement; (2) use of the Product, the provision of Services and any Materials, including any actual or alleged infringement of any intellectual property or proprietary rights by any of your Services or Materials; and/or (3) your failure to comply with any applicable laws and regulations in connection with your use of the Site, the App and the Product.
b. Limitation of Liability: TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FIELD AGENT AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY Loss of business, loss of data, interruption of business, lost good will, or for any INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SITE, THE PRODUCT, THE APP, THE PAYMENT SERVICE, THE SITE SERVICES, THE INABILITY TO USE THE SITE SERVICES, OR ANY SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SITE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FIELD AGENT’S OR ITS AFFILIATES’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHER THEORY), WARRANTY OR OTHERWISE, EXCEED THE AMOUNT OF FEES EARNED BY FIELD AGENT IN CONNECTION WITH YOUR REQUEST FOR, OR YOUR PERFORMANCE OF, SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
10. Applicable Law; Arbitration
The Product, the Site and App are arranged, sponsored, and managed by Sales Is Not Simple Inc. in the province of Newfoundland & Labrador, Canada. The laws of the province of Newfoundland & Labrador govern this Agreement and all of its terms and conditions, without giving effect to any principles of conflicts of laws. You agree that any action at law or in equity arising out of or relating to these terms and conditions shall be submitted to confidential arbitration in St. John’s, Newfoundland & Labrador, except that, to the extent you have in any manner violated or threatened to violate Field Agent’s intellectual property rights, Field Agent may seek injunctive or other appropriate relief in any provincial or federal court in the province of Newfoundland & Labrador, and you consent to exclusive jurisdiction and venue in such courts. Arbitration under this agreement shall be conducted under the rules then prevailing of the Canadian Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.
The term of each subscription and provision of Services shall be specified in the Statement of Work. Field Agent, in its sole discretion, may terminate your subscription pursuant to the Statement of Work, suspend access to the Product and Site, or remove any Agreement listings immediately without notice for any reason. Client may at any time stop using the Product, Site and App, provided that in discontinuing any Site or App activities, Client must use Field Agent’s standard functionality and further must abide by all applicable Field Agent Policies, Procedures and Guidelines. Termination of your subscription and use of Field Agent services will also terminate all authorizations made pursuant to Section 3 of this Agreement. In no event will termination relieve the Client’s obligation to pay any fees payable to Field Agent for the period prior to the effective date of termination.
12. General Provisions
a. Entire Agreement: This Agreement, executed Statement of Work, and the general terms and conditions of the Site and App, including the Policies constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede and cancel all prior and contemporaneous agreements, claims, representations, and understandings of the parties in connection with the subject matter hereof.
b. Assignment: You may not assign this Agreement without our prior written consent. We may assign this Agreement at any time, without notice. Subject to the foregoing, this Agreement will be binding on each party’s successors and permitted assigns.
c. Severability: If any provision of this Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions.
d. No Waiver: We will not be considered to have waived any of our rights or remedies, or portion thereof, unless the waiver is in writing and signed by us. Field Agent’s failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of Field Agent’s right to subsequently enforce such provision or any other provisions of this Agreement.
e. Notices: All notices relating to this Agreement (including the Payment Service) will be sent by e-mail or will be posted on the Site. We will send notices to you at the e-mail address maintained in our records for you. You must send notices to us at our current e-mail address published on the Site. E-mail notices are deemed written notices for all purposes for which written notices may be required. E-mail notices are deemed received the business day after transmission if properly addressed to the intended recipient.
f. Force Majeure. Neither party shall be liable for any failure or delay in performance hereunder to the extent such failure or delay is caused by factors beyond its reasonable control, such as acts of God, acts of a public enemy, fire, storm, civil disturbance, sabotage, accident, embargo, labor disputes, etc. Each party shall use its reasonable best efforts to minimize the duration and adverse consequences caused by any such force majeure event.
g. Conflict. To the extent the terms of this Agreement and the Statement of Work conflict, the Statement of Work shall control.
13. Compliance with Laws
a. Registrations: You agree that it is your responsibility to determine whether and to what extent any permits, registrations, authorization or filings (including without limitation with respect to the transfer of technology) are required by any governmental agency in any jurisdiction in which you have requested or are performing Services (“Permits”). YOU ALSO AGREE THAT FIELD AGENT AND ITS AFFILIATES ARE NOT OBLIGATED TO DETERMINE WHETHER ANY SUCH PERMITS APPLY TO ANY TRANSACTION.
b. Compliance with Laws: The Site and App may be used only for lawful purposes and in a lawful manner. You may not use the Site and App in any manner that violates any applicable law or governmental regulation. In addition to your obligations with respect to Taxes and Permits above, you agree to comply with all applicable laws, statutes, and regulations of any jurisdiction in which you request or perform Services.
c. Investigation: Field Agent has the right, but not the obligation, to monitor any activity, content and Materials associated with the Site and App. Field Agent may investigate any reported violation of its Policies or complaints and take any action that it deems appropriate.