STRATEGIC PARTNER TERMS AND CONDITIONS – RECIPROCAL AGREEMENT
LAST UPDATED 25 November 2021
Any term or reference in these strategic partner terms and conditions (“Strategic Partner Terms and Conditions”) which is not otherwise defined, shall bear the same meaning as ascribed thereto in the strategic partner referral agreement as entered into between the Parties (the “Agreement”).
1. Marketing and Promotion:
1.1. The Parties shall use only those marketing and other promotional materials, applications, documents or materials that have been approved for use by the other Party in respect of such other Party’s services.
1.2. The Parties shall not publish or use any false, misleading or deceptive materials or information relating to the services provided by the other Party.
1.3. The Parties shall have no authority to enter into contracts that bind or create obligations on the other Party without the prior written authorization of such other Party.
2.1. Either Party may terminate the Agreement at any time by giving the other Party 60 (sixty) days prior written notice of such termination.
2.2. Should a Party commit a material breach of any provision of the Agreement and/or Strategic Partner Terms and Conditions and fail to remedy such breach within 14 (fourteen) days of receiving written notice from the other Party, then the non-defaulting Party shall be entitled, without prejudice to its other rights in law, to cancel the Agreement or to claim specific performance of the other Party’s obligations.
2.3. A Party may terminate the Agreement with immediate effect should such Party, in its sole and unfettered discretion determine that the other Party’s actions bring, could bring, or has brought, the goodwill and reputation of such Party into disrepute.
2.4. Subject to clause 3.6, upon termination of the Agreement, the Parties shall pay to the Referring Party any unpaid Referral Fees accrued prior to the termination effective date.
3.1. For purposes of this clause 3, the following terms shall have the meanings set out beside them:
3.1.1. “Competitive Activity” – any activity undertaken which is directly in competition with the Prescribed Services.
3.1.2. “Prescribed Area” – all territories where either Party is trading indirectly or directly and where the other Party has had dealing in such territories.
3.1.3. “Prescribed Customers” – all corporate parties with whom a Party has a relationship with for the supply of Prescribed Services to such parties or to the customers of such parties which shall include but not be limited to the Referral Client.
3.1.4. “Prescribed Period” – the Term as set out in clause 4 of the Agreement and for a period of 2 (two) years calculated from the termination date.
3.1.5. “Prescribed Services” – all services offered by the Parties, to which the other Party has been exposed during the course and scope of the Agreement, to their respective Prescribed Customers.
3.2. It is recorded that in the course of the relationship, the Parties will:
3.2.1. acquire considerable know-how relating to the Prescribed Services that the other Party provides;
3.2.2. have access to names, details and other information in regard to clients with whom the other Party does business, whether embodied in written form or otherwise; and
3.2.3. have the opportunity of learning and acquiring the trade secrets, business connections and other proprietary and Confidential Information (defined in clause 5.1 below) pertaining to the Prescribed Services.
3.3. The Parties hereby undertake that they shall not be interested, engaged, concerned or associated with in whosever capacity or otherwise, in any entity/ies or in their own name which during any of the months of the Prescribed Period –
3.3.1. render any Prescribed Services in the Prescribed Area;
3.3.2. render, market or sell any Prescribed Services to any Prescribed Customers; and
3.3.3. canvas business from Prescribed Customers.
3.4. The Parties acknowledge and agree that –
3.4.1. the restraints imposed upon them in terms of this clause 3 are reasonable as to subject matter, period and territory; and
3.4.2. The Parties, respectively, will be entitled to the benefit of the restraints set out in this clause 3, interpreted in their widest sense.
3.5. Nothing in this Agreement shall prevent either Party from rendering their own services, existing as at the Effective Date in the ordinary course of their business, and/or from referring their clients to alternative providers of the Prescribed Services, provided that the Parties do not breach any of their confidentiality obligations or undertakings and that the Parties at all times act in good faith toward one another. This is a material term of this Agreement.
3.6. In the event that a Party breaches this clause 3:
3.6.1. The Party in breach will not be entitled to any outstanding Referral Fees which are owed by the aggrieved Party to the Party in breach, as at the date of such breach; and
3.6.2. The aggrieved Party shall be entitled to institute action for any damages suffered by such Party and/ or any alternative remedy. The Party in breach shall be liable for all legal costs on the scale between attorney and own client.
4. Anti-Corruption/FCPA/UK Bribery Act Prohibition.
4.1. The Parties represent and warrant that they shall comply with all applicable local, national, and other laws of all jurisdictions globally relating to anti-corruption, bribery, extortion, kickbacks, or similar matters that are applicable to its business activities in connection with this Agreement, and that it will take no action that will cause the other Party (or any of its affiliates) to violate any such laws.
4.2. The Parties specifically represent and warrant that they are familiar with the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”) and the UK Bribery Act 2010, as amended (“UK Bribery Act”), and that they shall comply with the FCPA and the UK Bribery Act and will take no action that will cause the other to violate the FCPA or the UK Bribery Act.
4.3. The Parties represent and warrant, that no payment of money or provision of anything of value will be offered, promised, paid or transferred, directly or indirectly, by any person or entity, to any government official, government employee, or employee of any company owned in part by a government, political party, political party official, or candidate for any government office or political party office to induce such organizations or persons to use their authority or influence to obtain or retain an improper business advantage for either Party, or which otherwise constitute or have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining business or any improper advantage, with respect to any of the respective Parties’ activities related in any way to this Agreement or any business transacted between the Parties, including without limitation any payment of money or provision of anything of value to any employee of any customer in order to secure a sale.
4.4. The Parties may withhold payments under this Agreement, or terminate this Agreement immediately, if it believes, in good faith, that the other Party has breached the foregoing or caused it to violate the FCPA or other applicable laws. The Parties shall not be liable to the other Party for any claim, losses, or damages related to a Party’s decision to exercise its rights under this provision.
5.1. The term “Confidential Information” as used in the Agreement and/or Strategic Partner Terms and Conditions means, in respect of either Party, all non‐public, confidential or proprietary information or materials disclosed or otherwise acquired by the Party receiving the information (“Receiving Party”) from the Party disclosing the information (“Disclosing Party”), whether or not such information is written or oral or labeled or otherwise identified as confidential or proprietary by the Disclosing Party. Such information includes, without limitation, information related to the Disclosing Party’s trade secrets; trademarks; knowhow; technologies; techniques, systems or processes; existing or future products; client lists; client names and contact details; the names and details of imports and exports; business plans of all corporate parties with whom the Disclosing Party has a relationship with for the supply of services to such parties or to the customers of such parties which shall include but not be limited to the Referral Client; business plans; financial information; accounting statements or audits; and any other information relating to the business or products of the Disclosing Party. Confidential Information does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure in breach of any term of the Agreement; (ii) was known by the Receiving Party without any restriction as to disclosure or use prior to receiving the same directly or indirectly from the Disclosing Party; (iii) was lawfully received by the Receiving Party from a third party without an obligation of confidentiality; or (iv) was independently developed by the Receiving Party without reference to or use of the Confidential Information.
5.2. The Receiving Party and its Representatives (as defined in clause 5.3 below) shall use the Confidential Information delivered to it by the Disclosing Party solely for the purpose of the performance of its obligations set out in the Agreement (“Permitted Purpose”). No other use of the Confidential Information is permitted without the prior written consent of the Disclosing Party which consent the Disclosing Party may provide in its sole and unfettered discretion.
5.3. From the date of its disclosure until 10 (ten) years after the termination date, the Receiving Party shall protect the Disclosing Party’s Confidential Information by using the same degree of care, but no less than a reasonable degree of care, as the Receiving Party uses to protect its own Confidential Information of a like nature. The Receiving Party shall further restrict disclosure of such Confidential Information to those of its directors, officers, employees, agents and advisors, including lawyers, accountants and financial advisors (collectively known as the “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the Receiving Party and who are bound by a duty of confidentiality no less protective of the Disclosing Party’s Confidential Information than as set out in the Agreement.
5.4. The Receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the Disclosing Party reasonable prior written notice, to the extent such notice is not prohibited by law, to permit the Disclosing Party to contest such disclosure. The Receiving Party shall ensure that any such disclosure in terms of this clause 4.4 shall be limited to the required disclosure.
5.5. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of the Confidential Information and will cooperate with the Disclosing Party in every reasonable way for the Disclosing Party to regain possession of the Confidential Information and prevent further unauthorized use or disclosure.
5.6. All Confidential Information shall remain the sole and exclusive property of the Disclosing Party and the Receiving Party shall not acquire any license, intellectual property rights or legal or equitable interest in the Disclosing Party’s Confidential Information except for the limited right to make copies as necessary, and in accordance with the Agreement, for the Permitted Purpose.
6. Data protection:
6.1. Each Party confirms that it has implemented, and agrees to follow its own appropriate administrative, technical, and physical safeguards and other appropriate measures to protect the security, confidentiality and integrity of any data and personal data it obtains and to prevent the misuse and wrongful disclosure thereof.
6.2. Both Parties agree to fully comply with any respective obligations under the EU Data Protection Laws (the GDPR, as well as any other applicable EU legislation), as well as the data protection or privacy laws of any other country where applicable.
6.3. Each Party shall ensure that a comprehensive data protection agreement is signed with any new Referral Clients signed through the Agreement.
7.1. The Parties shall indemnify and hold harmless the other Party on demand against any claims, liabilities, losses, costs, proceedings, damages or expenses arising out of or in connection with any breach by them of any of the provisions of the Agreement (“Damages”). The quantum of the Damages will be limited to the value of the Referral Fees paid to the other Party within 1 (one) year prior to the incident giving rise to the Damages.
7.2. The Parties will not be liable to the other or to any third party in relation to the Agreement for any indirect, unforeseeable, special, punitive, exemplary, or consequential damages whatsoever, including but not limited to property damage, loss of use, loss of business, economic loss, loss of data or loss of profits, without regard to the form of action (including but not limited to contract, negligence, or other actions for extra-contractual liability) arising out of or in connection with the Agreement, materials; and/or the services provided by the respective Parties.
8.1. Neither Party shall be deemed to be an agent or employee of the other. The Parties’ relationship is solely independent. Neither Party is a legal representative of the other and neither Party can assume or create any obligation, representation, warranty, guarantee, express or implied, on behalf of the other.
8.2. All notices, reports and other communications required under the Agreement shall be sent by facsimile, electronic mail, registered mail or other reliable method of transmission and shall be deemed received by the receiving Party on the first business day following transmission where sent by facsimile or electronic mail, and 7 business days following transmission where sent by registered mail, return receipt requested. Notices, reports,
8.3. and other communications shall be sent to the address first noted above, or such other addresses or number that either Party may specify to the other Party in writing.
8.4. The invalidity of any provision of the Agreement shall not affect the validity of other provisions.
8.5. The Agreement constitutes the entire agreement between the Parties relating to the subject matter herein and supersedes any previous agreements, oral or otherwise. The Agreement is binding on the Parties’ successors and assigns.
8.6. Neither Party shall subcontract, assign or transfer any of its rights or obligations under the Agreement without the prior written consent of the other, which consent shall not be unreasonably withheld.
8.7. The Agreement shall be governed and construed in accordance with the laws of England and Wales.
8.8. Both Parties have been free to seek advice and guidance in respect of the terms of these Terms and Conditions and the Agreement as entered into between the Parties. As such the Parties acknowledge that they understand the terms of the Agreement and agree that such terms are fair and reasonable.