The Fitchfork Partner Program Agreement

 

This website can be accessed at www.fitchfork.com, related mobi-sites and software applications (the “Website”) and is owned and operated by Roygenix (Proprietary) Limited registration number 2014/246817/07 (“Fitchfork”, “we”, “us” and “our”).

By signing up for the Partner Program, you are agreeing to be bound by the following Partner Program Agreement (the “Agreement”). The Agreement is between you, as Partner (as defined below in Section A.1.), and Fitchfork. (“Fitchfork”) (Together, the “Parties”, and each a “Party”). You can review the current version of the Agreement at any time at fitchfork.com/partner-terms. Fitchfork reserves the right to update and change the Agreement by posting updates and changes here: fitchfork.com/partner-terms. If a significant change is made, we will provide reasonable notice by email, posting a notice on the Fitchfork Blog and/or in the Partner Dashboard. You are advised to check the Agreement from time to time for any updates or changes that may impact you. Any reference to the Agreement includes any and all terms and documents incorporated by reference.

You must read, agree with and accept all of the terms and conditions contained in this Agreement, Fitchfork’s Privacy Policy, and Fitchfork’s Terms and Conditions before you may become a Partner and, for the avoidance of Fitchfork’s Privacy Policy, and Fitchfork’s Terms and Conditions form part of this Agreement and are incorporated by reference. Some types of Fitchfork Partner Program activities may require that you agree to additional terms (“Additional Terms”). Such Additional Terms are incorporated into this Agreement by reference. In the event of a conflict or inconsistency between this Agreement and the Additional Terms, the Additional Terms will govern, to the extent of such conflict or inconsistency.

Everyday language summaries are provided for convenience only and are not legally binding. Please read the entire Agreement for the complete picture of your legal requirements. This Agreement governs your activities as a Partner, including access to the Partner Dashboard and participation in the activities described on the Partner Program website. Be sure to occasionally check back for updates.

1. Definitions

Unless defined elsewhere in the Agreement, capitalized terms set out in the Agreement are defined as follows:

“Customer” means a customer of the Partner.

“Customer Data” means information (including personal information) relating to a Customer, including, but not limited to, order information, payment information, and account information.

“Partner” means an individual or business that uses the Service to sell products or services.

“Partner Data” means information (including personal information) relating to a Partner, including but not limited to business, financial and product information and any Customer Data.

“Partner Page” means the Partner’s commerce presence hosted by Fitchfork.

“Partner” means an individual or entity that has agreed to the terms of this Agreement and participates in the Fitchfork Partner Program. The different types of Partners are listed below:

1.   A “Gold Partner” is a Partner who has registered for a Partner Account via the Fitchfork Partner Program page. Has opted for a listing of their services only and who promotes the service by:

    1. registering, and being approved by Fitchfork, for a unique partner page (a “Partner Page Link”) link to refer Customers to Fitchfork via such Partner Page Link.

2.   A “Platinum Partner” is a Partner who has registered for a Partner Account via the Fitchfork Partner Program page. Has opted for listing their services as well as processing quotations and/or receiving payment for their listed services and products online.

3.   A “Diamond Partner” is a Partner who has met the Fitchfork Partner criteria and has been accepted by Fitchfork into the Partner Program as a diamond partner. Has opted to partner with Fitchfork in the development of a customized solution for their service offering on Fitchfork.  

“Partner Account” means a Fitchfork Partner Program account.

“Partner Dashboard” means the internal administrative page available to Partners that allows Partners to manage their Partner Account..

“Payment Period” has the meaning as set out in Section 3.2.

“Partner Program” means Fitchfork’s program for Partners that provides exclusive access to resources and, as applicable, the opportunity to earn revenue.

 “Service” means the Fitchfork hosted commerce platform available via www.fitchfork.com and any associated websites, that is used by Partners to sell products and services and manage their businesses across different sales channels.

 “Fitchfork Creative” means any marketing and/or promotional materials relating to Fitchfork and/or Fitchfork brands, including but not limited to copyrighted content, hypertext links, domain names, icons, buttons, banners, graphic files, images and the Fitchfork Trademarks.

“Fitchfork Related Entity/ies” means any entity that directly or indirectly controls, is controlled by, or is under common control with, Fitchfork; where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of another, whether through the ownership of voting securities, by contract, as trustee or executor, or otherwise.

“Fitchfork Trademarks” means the trademarks, logos, service marks and trade names of Fitchfork, whether registered or unregistered, including but not limited to the word mark FITCHFORK.

“Websites” means any websites that are managed by a Partner and that relate to Partner’s activities pursuant to this Agreement.

 

2. Partner Responsibilities

2.1. Marketing Activities

1.   Partner shall bear all costs and expenses related to Partner’s marketing or promotion of Fitchfork or any Fitchfork Related Entity, and, as applicable, Partner’s Page’s, or Partner’s other products or services associated with Partner’s participation in the Partner Program (Collectively, “Partner Marketing Activities”) in any area, location, territory or jurisdiction, unless otherwise determined by Fitchfork in its sole discretion.

2.   In no event shall Partner engage in any Partner Marketing Activities except as expressly set forth in this Agreement. In the event that Partner has a list of emails where the individuals on the list have expressly elected to receive emails from Partner (“Opt-in List”), Partner may make a written request to Fitchfork to send emails regarding the offering of Fitchfork and Fitchfork Related Entities to the individuals on the Opt-in List (and Fitchfork may, in its sole discretion, allow Partner to send such emails). In conducting all Partner Marketing Activities, Partner shall comply with all applicable laws, rules, regulations and directives, including but not limited to those relating to email marketing and “spamming”.

3.   Without limiting the generality of the foregoing, Partner shall (i) not send any email regarding Fitchfork and/or Fitchfork Related Entities to any individual or entity that has not requested such information; (ii) always include Partner’s contact information and “unsubscribe” information at the top and bottom of any email regarding Fitchfork, Fitchfork Related Entities, the Service and/or the Fitchfork platform; and (iii) not imply that such emails are being sent on behalf of Fitchfork or Fitchfork Related Entities.

4.   A Partner shall not (i) engage in any fax, broadcast, telemarketing or any other offline marketing methods with respect to Fitchfork and/or Fitchfork Related Entities; (ii) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to Fitchfork and/or Fitchfork Related Entities; (iii) make any false, misleading or disparaging representations or statements with respect to Fitchfork and/or Fitchfork Related Entities; (iv) copy, resemble or mirror the look and feel of Fitchfork’s websites, Fitchfork Trademarks or Services or otherwise misrepresent Partner’s affiliation with Fitchfork and/or Fitchfork Related Entities; or (v) engage in any other practices which may adversely affect the credibility or reputation of Fitchfork and/or Fitchfork Related Entities, 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 Fitchfork or the Partner’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; or (d) violates the Fitchfork’s Privacy Policy, and Fitchfork’s Terms and Conditions.

WHICH MEANS

Partners cannot send email marketing materials about Fitchfork without Fitchfork’s permission. If Fitchfork gives its permission, the messages must comply with this section and all applicable laws. Partner cannot engage in any illegal or aggressive marketing techniques on behalf of Fitchfork. Partner must not make any false or misleading statements about Fitchfork or represent anything that could cause harm to the credibility of Fitchfork. In all of Partner’s marketing activities, Partner must comply will all applicable laws.

 

2.2. Compliance with Laws

In addition to, and without limiting the provisions of this Agreement, Partner shall perform its obligations hereunder in accordance with the highest applicable industry standards and in compliance with all applicable laws, rules and regulations.

WHICH MEANS

Partner will comply with all applicable laws and highest industry standards.

2.3. Partner Duty to Inform

Partner shall promptly inform Fitchfork of any information known to Partner that could reasonably lead to a claim, demand or liability of or against Fitchfork and/or the Fitchfork Related Entities by any third party.

WHICH MEANS

Partner has to keep Fitchfork informed about any potential claims, demands or liabilities relating to Fitchfork of which the Partner is aware.

2.4. Other Partner Terms

1.   If the Partner is an individual, the Partner must be 18 years or older or at least the age of majority in the jurisdiction where the Partner resides.

2.   To become a Partner, Partner must create a Partner Account by providing all information indicated as required. Fitchfork may reject an application for a Partner Account for any reason, in its sole discretion. Partner acknowledges that Fitchfork will use the email address provided by Partner as the primary method for communication. Partner is responsible for keeping its Partner Account password secure. Fitchfork cannot and will not be liable for any loss or damage arising from Partner’s failure to maintain the security of the Partner Account and password.

3.   If you sign up for a Partner Account on behalf of your employer, your employer shall be deemed to be the Partner for the purpose of this Agreement, and you represent and warrant that you have the authority to bind your employer to this Agreement. Each Partner is responsible for assuring that its employees, agents and subcontractors comply with this Agreement.

4.   Partner acknowledges and agrees that Partner will be responsible for the performance of all of 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 Partner.

5.   Partner acknowledges and agrees that Fitchfork may amend this Agreement at any time by posting the relevant amended and restated Partner Program Agreement on Fitchfork’s website, available at fitchfork.com/partners/terms and such amendments to the Agreement are effective as of the date of posting. If a significant change is made, Fitchfork will provide reasonable notice by email, posting a notice on the Fitchfork Partner Blog and/or in the Partner Dashboard. Partner’s continued participation in the Fitchfork Partner Program after the amended Partner Program Agreement is posted to Fitchfork’s website constitutes Partner’s agreement to, and acceptance of, the amended Agreement. If Partner does not agree to any changes to the Agreement, Partner must terminate the Agreement by discontinuing its participation in the Fitchfork Partner Program.

6.   Partner acknowledges and agrees that Partner’s participation in the Fitchfork Partner Program, including information transmitted to or stored by Fitchfork, is governed by the Fitchfork Privacy Policy found at Fitchfork’s Privacy Policy.

7.   Other than the limited license to use the Fitchfork Trademarks pursuant to Section 5 of this Agreement, Partner shall not use the Fitchfork Trademarks and/or Fitchfork Related Entities’ names or trademarks (meaning any names and/or trademarks or any other protected marks associated with the Fitchfork Service, or the Fitchfork Related Entities) and/or variations or misspellings thereof in Partner’s business name, logo, branding, advertising, social media or domain name (including without limitation top-level domains, sub-domains and page URLs).

8.   Partner shall not purchase or register search engine or other pay-per-click keywords (such as Google AdWords), trademarks or domain names that use the Fitchfork Trademarks and/or the names or trademarks of any Fitchfork Related Entities or any variations or misspellings thereof that may be deceptively or confusingly similar to the Fitchfork Trademarks or the names or trademarks of any Fitchfork Related Entity.

WHICH MEANS

Partner must (i) be at least 18 years old or the age of majority where Partner resides; (ii) provide certain information and agree that email will be our primary method of communication; (iii) make certain acknowledgments if signing up on behalf of an employer or a company; (iv) agree that this Agreement may be changed by Fitchfork at any time; (v) acknowledge and agree to Fitchfork’s privacy policy; and (vi) not use Fitchfork’s trademarks as part of its name or brand unless permitted under this Agreement; and (vii) not buy search engine advertising, trademarks or domain names that mention or use “Fitchfork” or other Fitchfork logos.

3. Fees and Payments

3.1. Revenue Sharing Plans

Subject to: (i) Partner’s compliance with this Agreement, and (ii) the revenue sharing plan associated with a Partner’s activities pursuant to the Partner Program, Partner shall be entitled to receive certain fees from Fitchfork (the “Fees”).

3.1.1 Revenue Sharing Plans for Diamond Partners

The “Diamond Partner” is a revenue sharing plan which allocates revenue between Fitchfork and a Partner whose services or products has been selected to be sold through the Fitchfork Partner Program. Under the Diamond Partner, a Partner is entitled to: ninety percent (90%) of the total revenues from the sale of such services or products, with Fitchfork being entitled to the remaining ten percent (10%).

WHICH MEANS

When a Partner’s service(s) or product(s) is selected by Fitchfork, Partner is paid 90% of the total revenues Fitchfork receives for those service(s) or product(s).

 

3.2. Payment

1.   Fees due to Partner will be calculated by Fitchfork once per month, for each month that the Partner Page is active, provided that Partner has carried out at least one (1) Revenue Generating Activity in the immediately preceding 12-month period.

2.   Where the Fees owing to Partner are greater than ZAR R355 at the end of any Payment Period, the Fees will be paid to Partner. If the Fees owing to Partner are less than ZAR R355 at the end of any Payment Period, Fitchfork 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 Partner from any previous Payment Period and Fees owing to Partner under the current Payment Period are ZAR R355 or more.

WHICH MEANS

Fees owing to the Partner will be paid in accordance with this section. If a Partner wants to continue receiving revenue share for sales, the Partner must carry out at least one Revenue Generating Activity in each consecutive 12-month period.

3.3. Additional Payment Information

1.   All payments are subject to fraud and risk analysis considerations and anti-money laundering procedures and may be withheld during the period of investigation.

2.   Notwithstanding anything to the contrary in this Agreement, Fitchfork shall not be responsible to pay any Fees:

1.   related to fraudulent sales;

2.   related to revenues that have been subject to chargebacks; or

3.   to Partners who are employed by Fitchfork (whether full-time, part-time, term or any other employment-type relationship);

4.   Fitchfork reserves the right to modify the Fees and/or the payment terms at any time upon reasonable advance notice to Partner. Such notice will be provided by email, posting a notice on the Fitchfork blog and/or in the Partner Dashboard. In the event of any disputes over Fees, Fitchfork’s determination will be final and binding.

WHICH MEANS

Fitchfork has the right to set off or withhold payments to Partners in certain circumstances. Fitchfork has the right to alter the Fees, the Fee structure or the payment terms with reasonable notice to Partner.

4. Termination

4.1. Termination

1.   Unless otherwise specified in the Agreement, either Party may terminate this Agreement at any time, with or without cause, effective immediately upon notice to the other Party.

2.   Fraudulent or other unacceptable behaviour by Partner, including breach of the Fitchfork’s Privacy Policy, and Fitchfork’s Terms and Conditions, as determined by Fitchfork in its sole discretion, may result in one or more of the following actions being taken by Fitchfork: (a) termination of Partner’s affiliation with Fitchfork within the Partner Account; (b) suspension of some or all Partner privileges under the Partner Program; and (c) termination of the Partner Account entirely without notice to, or recourse for, Partner.

3.   Fitchfork reserves the right to cancel or modify the Partner Program Agreement in its entirety, including Fees, at any time. If a significant change is made to the Partner Program Agreement, including any material change to Fees, Fitchfork will provide reasonable notice by email, posting a notice on the Fitchfork blog and/or in the Partner Dashboard.

WHICH MEANS

Either Fitchfork or Partner can end this agreement at any time by providing notice to the other. If there is fraud or any other unacceptable behaviour by Partner, or if Partner violates the Fitchfork’s Privacy Policy, and Fitchfork’s Terms and Conditions, Fitchfork can suspend Partner’s privileges or end the agreement without notice. Fitchfork can change or eliminate all or any portion of the Partner Program at any time, upon reasonable notice.

4.2. Consequences of Termination

Upon termination of this 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 Fitchfork Creative and all Confidential Information (as defined below)); (b) Partner shall immediately cease displaying any Fitchfork Creative and/or any Fitchfork Trademarks on any Website or otherwise; and (c) all rights granted to Partner hereunder will immediately cease, including but not limited to the right of Partner to access the Partner Account and Partner Dashboard, Fitchfork API, or to receive any payments of Fees hereunder, unless otherwise determined by Fitchfork in its sole discretion.

WHICH MEANS

If the agreement ends, Partner must stop using and return to Fitchfork all Fitchfork creative material and Fitchfork’s trademarks and logos and Partner will no longer be permitted to access the Fitchfork API or receive Fees from Fitchfork, unless otherwise determined by Fitchfork in its sole discretion.

5. Intellectual Property Rights

5.1. Fitchfork Creative

1.   All Fitchfork Creative will be solely created and provided by Fitchfork unless otherwise agreed to by Fitchfork in writing in advance. Fitchfork will provide Partner with copies of or access to Fitchfork Creative. By using the Fitchfork Creative, you indicate your acceptance of our Fitchfork Trademark Usage Guidelines and you understand that a violation of these guidelines or this Agreement will result in the termination of your license and/or permission to use the Fitchfork Creative. The Fitchfork Creative is provided “as is” and without warranty of any kind.

2.   Partner may display Fitchfork Creative on the Websites solely for the purpose of marketing and promoting the Service and any Fitchfork brands permitted by Fitchfork and by Fitchfork Related Entities during the term of this Agreement, or until such time as Fitchfork may, upon reasonable prior notice, instruct Partner to cease displaying the Fitchfork Creative. Partner may not alter, amend, adapt or translate the Fitchfork Creative without Fitchfork’s prior written consent. Nothing contained in any Fitchfork Creative shall in any way be deemed a representation or warranty of Fitchfork or of any of Fitchfork Related Entity. The Fitchfork Creative shall at all times be the sole and exclusive property of Fitchfork and no rights of ownership shall at any time vest with Partner even in such instances where Partner has been authorized by Fitchfork to make changes or modifications to the Fitchfork Creative.

WHICH MEANS

Partners may promote Fitchfork using the creative materials provided by Fitchfork. The creative materials of Fitchfork belong to Fitchfork, cannot be changed and must be used only to promote the Fitchfork Services and Fitchfork brand.

5.2. Fitchfork Trademarks

During the term of this Agreement, Fitchfork hereby grants to Partner a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to display the Fitchfork Trademarks solely as necessary to perform Partner’s obligations under this Agreement. Partner acknowledges and agrees that: (a) it will use Fitchfork’s Trademarks only as permitted hereunder; (b) it will use the Fitchfork Trademarks in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by Fitchfork in writing from time to time, including but not limited to the Fitchfork Trademark Usage Guidelines; (c) the Fitchfork Trademarks are and shall remain the sole property of Fitchfork; (d) nothing in this Agreement shall confer in Partner any right of ownership in the Fitchfork Trademarks and all use thereof by Partner shall inure to the benefit of Fitchfork; and (e) Partner shall not, now or in the future, apply for or contest the validity of any Fitchfork Trademarks; and (f) Partner shall not, now or in the future, apply for or use any term or mark confusingly similar to any Fitchfork Trademarks.

WHICH MEANS

Fitchfork owns the Fitchfork Trademarks entirely and Partner agrees to use them only in accordance with the Agreement.

5.3. Restrictions on Partner’s Use of the Fitchfork Trademarks

Notwithstanding Section 5.2, Partners shall not use any Fitchfork Trademark including but not limited to the shopping bag logo or the word mark FITCHFORK or variations of the word “Fitchfork” in Partner’s business name, logo, products or services, including without limitation, the name or design of any Application or Theme, unless granted express written permission by Fitchfork in advance of such use.

WHICH MEANS

Partners cannot use the word “Fitchfork”, or the Fitchfork logo, or other Fitchfork trademarks in the name or design of the Partner’s business or logo, or any Partner product or service without permission.

5.4. Proprietary Rights of Fitchfork

As between Partner and Fitchfork, the Fitchfork Creative, Fitchfork Trademarks, all demographic and other information relating to Customer, prospective Customers and Partners, the Services, the Fitchfork API, Customer Data, and all software, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites, and any additional intellectual or other property used by or on behalf of Fitchfork and/or Fitchfork Related Entities or otherwise related to the Service, Fitchfork Partner Program, Fitchfork and/or Fitchfork Related Entities, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “Fitchfork Property”) shall be and remain the sole and exclusive property of Fitchfork. To the extent, if any, that ownership of any Fitchfork Property does not automatically vest in Fitchfork by virtue of this Agreement, or otherwise, and vests in Partner, Partner hereby transfers and assigns to Fitchfork, upon the creation thereof, all rights, title and interest Partner may have in and to such Fitchfork Property (and waives any and all moral rights, as applicable), including the right to sue and recover for past, present and future violations thereof.

WHICH MEANS

All of the information, property and intellectual property you have access to as a result of your participation in the Partner Program belongs entirely to Fitchfork.

 

6. Confidentiality

1.   “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. For the avoidance of doubt, as between Fitchfork and Partner, and Customer Data is the Confidential Information of Fitchfork.

2.   Each Party agrees to use the other Party’s Confidential Information solely as necessary for performing its obligations under this Agreement and in accordance with any other obligations in this 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 this 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 this Agreement; or (C) is thereafter rightly obtained by the receiving Party from a source other than the disclosing Party without breaching any provision of this Agreement.

WHICH MEANS

Both Fitchfork and Partner agree to use Confidential Information only to perform the obligations of the Agreement. Confidential Information must be protected and respected. Customer Data is Fitchfork’s Confidential Information.

7. Disclaimer of warranty

The Fitchfork Partner Program, the Service, the Fitchfork Trademarks, the Fitchfork Creative, and the Fitchfork API are provided “as-is”. Fitchfork makes no warranties hereunder, and Fitchfork 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, Fitchfork further disclaims all representations and warranties, express or implied, that the Service, the Fitchfork API, the Fitchfork Trademarks, the Fitchfork Creative, satisfy all of Partner’s requirements and or will be uninterrupted, error-free or free from harmful components.

WHICH MEANS

Which means: Fitchfork makes no warranties about the Fitchfork Partner Program, the Service, the Fitchfork API, the Fitchfork Trademarks or the Fitchfork Creative.

 

8. Limitation of Liability and Indemnification

8.1. Limitation of Liability

Fitchfork shall have no liability with respect to the Fitchfork Partner Program, the Service, the Fitchfork API, the Fitchfork Trademarks, the Fitchfork Creative or Fitchfork’s obligations under this 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 Fitchfork API, the Fitchfork Trademarks, the Fitchfork Creative, or Partner’s participation or inability to participate in the Fitchfork Partner Program, even if Fitchfork has been advised of the possibility of such damages. In any event, Fitchfork’s liability to Partner under this Agreement for any reason will be limited to the Fees paid to Partner by Fitchfork 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 a Customer and a Partner is strictly between the Customer and the Partner, and Fitchfork is not obligated to intervene in any dispute arising between the Customer and the Partner. Under no circumstances shall Fitchfork be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from or relate to the Partner’s relationship with any Customer. These limitations shall apply even if Fitchfork has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.

WHICH MEANS

Fitchfork is limiting its liability with regard to the Fitchfork Partner Program, the Service, the Fitchfork API, the Fitchfork Trademarks, the Fitchfork Creative, the relationship between the Partner and any Customer, and Fitchfork’s obligations under the Agreement. If there is a liability owed to the Partner by Fitchfork, Fitchfork will provide no more than the Fees that were paid to Partner in the past six months.

8.2. Partner Indemnification

Partner agrees to indemnify, defend and hold harmless Fitchfork and any Fitchfork 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) Partner’s breach of any representation, warranty, obligation or covenant under this Agreement; (b) Partner’s gross negligence or wilful misconduct; (c) any warranty, condition, representation, indemnity or guarantee relating to Fitchfork and Fitchfork Related Entities granted by Partner to any Customer, prospective Partner or other third party; (d) Partner’s use of the Fitchfork API; (e) Partner’s breach of any term of this Agreement (including any documents it incorporates by reference) or a Merchant Agreement; (f) any third party claim that Partner’s products or services, including without limitation any Page infringes the intellectual property or other rights of a third party; (g) the performance, non-performance or improper performance of the Partner’s products or services; and (h) Partner’s relationship with any Customer.

WHICH MEANS

Partner will cover all costs associated with a claim made against, or liabilities incurred by, Fitchfork if it is caused by Partner’s breach of this Agreement (including the Fitchfork’s Privacy Policy, and Fitchfork’s Terms and Conditions), Partner’s gross negligence or wilful misconduct, promises made by Partner to third parties about Fitchfork, Partner’s use of the Fitchfork API, Partner’s products or services, Partner’s infringement or violation of the intellectual property or other rights of a third party, or Partner’s relationship with a Customer.

8.3. Notice of Indemnification

In claiming any indemnification hereunder, the Indemnified Party shall promptly provide Partner with written notice of any claim which the Indemnified Party believes falls within the scope of the indemnifications provided under this Agreement. The Indemnified Party may, at its own expense, assist in the defence if it so chooses, provided that Partner shall control such defence and all negotiations relative to the settlement of any such claim and further provided that in settling any claim the Partner 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.

WHICH MEANS

Fitchfork will notify Partner of any claims and may choose to assist in the defence.

8.4. Non-exclusive remedies

In the event of any breach or threatened breach by Partner of any provision of Sections 2, 5 and/or 6 above, in addition to all other rights and remedies available to Fitchfork under this Agreement and under applicable law, Fitchfork 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 this Agreement and Partner’s engagement hereunder, (c) receive a prompt refund of all amounts paid to Partner hereunder, and (d) be indemnified for any losses, damages or liability incurred by Fitchfork in connection with such violation, in accordance with the provisions of this Section 8.

WHICH MEANS

Which means: If Partner breaches its obligations with respect to Partner’s responsibilities (Section 2), Fitchfork’s intellectual property or other proprietary rights (Section 5) or confidentiality (Section 6), Fitchfork has rights outside of “breach of contract”.

 

9. General provisions

9.1. Force Majeure

If the performance of any part of this 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 this 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.

WHICH MEANS

In case something serious happens outside the control of either Fitchfork or Partner, both will be excused from performance of duties to the extent that such event affects either Party’s ability to perform such duties.

9.2. Independent Contractors

The Parties to this 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. This 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.

WHICH MEANS

Both Fitchfork and Partner are independent contractors and there is no relationship of agents, representatives or otherwise between them.

9.3. Non-Exclusivity

Nothing in this Agreement is intended to create, nor shall it be construed as creating, any exclusive arrangement between the Parties to this Agreement. This Agreement shall not restrict either Party from entering into similar arrangements with others, provided it does not breach its obligations under this Agreement by doing so, including without limitation, any confidentiality obligations.

WHICH MEANS

Both Fitchfork and Partner are non-exclusive to each other and each can enter into similar arrangements with others, as long as that party does not use the other party’s confidential information.

9.4. Notice

Any notice, approval, request, authorization, direction or other communication under this 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 Partner’s email address listed in the Partner Account, and to thepeople@fitchfork.com; (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 Partner Account, and for Fitchfork to 30 Portfofino, 7 Kopje Road, Morningside, Sandton, South Africa, 2196, Attention: Legal Department.

WHICH MEANS

Notice is considered to be sent on the day it is emailed or hand delivered, 2 days after it is given to a courier, or 5 days after it is placed in the mail.

9.5. No Waiver

The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right under this 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.

WHICH MEANS

If a provision is not enforced by either party, it does not mean that they are waiving their rights to enforce that provision in the future.

9.6. Entire Agreement

This Agreement, including any completed application form 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 this 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 this Agreement (whether or not it would materially alter this 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.

WHICH MEANS

This Agreement and the documents it links to and references are the entire agreement governing the relationship between Fitchfork and Partner under the Partner Program, and it replaces any previous agreements.

9.7. Assignment

All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the Parties to this Agreement and to their respective heirs, successors, permitted assigns and legal representatives. Fitchfork shall be permitted to assign this agreement without notice to or consent from Partner. Partner shall have no right to assign or otherwise transfer this Agreement, or any of its rights or obligations hereunder, to any third party without Fitchfork’s prior written consent, to be given or withheld in Fitchfork’s sole discretion.

WHICH MEANS

Partner cannot assign away or transfer this agreement to another party without Fitchfork’s consent.

9.8. Applicable Laws

This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Gauteng and the laws of the Republic of South Africa 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 Gauteng with respect to any dispute or claim arising out of or in connection with this Agreement.

WHICH MEANS

This agreement is covered by the laws of Gauteng, South Africa. If anything were to go wrong, Gauteng is where the issue would be litigated.

9.9. Patent Non-Assertion

Partner and its affiliates covenant not to assert patent infringement claims against Fitchfork, Fitchfork Related Entities, or Fitchfork products and services.

WHICH MEANS

You agree not to sue us for patent infringement.

9.10. Acceptance

By marking the “I have read and agree to the Partner Program Agreement” checkbox, Partner hereby fully agrees with all terms and provisions of this Agreement, including all documents linked to herein.

WHICH MEANS

Clicking the checkbox constitutes full acceptance of this Agreement.

9.11. Competitive or Similar Materials

Fitchfork 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 Partner’s products or services, including without limitation any service or product, regardless of their similarity to Partner’s products or services, provided that Fitchfork does not use Partner’s Confidential Information in so doing.

WHICH MEANS

Which means: Fitchfork may develop products or services that compete with Partner’s products or services so long as Fitchfork does not use Partner’s Confidential Information.

9.12. Feedback

If Partner provides any feedback (including identifying potential errors and improvements) to Fitchfork concerning the Partner Program, the Fitchfork API, the Fitchfork Creative or any aspects of the Service (“Feedback”), Partner hereby assigns to Fitchfork all right, title, and interest in and to the Feedback, and Fitchfork is free to use, reproduce, disclose, and otherwise exploit the Feedback without attribution, payment or restriction, including to improve the Partner Program, Fitchfork API, the Fitchfork Creative and/or the Service and to create other products and services. Fitchfork will treat any Feedback as non-confidential and non-proprietary. Partner will not submit any Feedback that it considers confidential or proprietary.

WHICH MEANS

If you provide Fitchfork with Feedback about the Partner Program, Fitchfork API, Fitchfork Creative or the Service, we will own this Feedback and we can use it without restriction.

9.13. Beta Services

From time to time, Fitchfork may, in its sole discretion, invite Partner to use, on a trial basis, potential new services or features that are in development and not yet available to all Partners or Customers (“Beta Services”). Beta Services may be subject to additional terms and conditions, which Fitchfork will provide to Partner prior to Partner’s use of the Beta Services. Such Beta Services and all associated conversations and materials relating thereto will be considered Confidential Information of Fitchfork and subject to the confidentiality provisions of this Agreement. Fitchfork makes no representations or warranties that the Beta Services will function. Fitchfork may discontinue the Beta Services at any time in its sole discretion. Fitchfork will have no liability for any harm or damage arising out of or in connection with a Beta Service.

9.14. Service Providers

Partner may work with service providers as necessary to facilitate Partner’s performance under this Agreement. Partner acknowledges and agrees that any act or omission by Partner’s service provider amounting to a breach of this Agreement will be deemed to be a breach by Partner.

WHICH MEANS

Partner can work with third parties, but is responsible for any breach of this Agreement by those third parties.

9.15. Industry Standards

1.   Partner’s networks, operating system and software of its web servers, routers, databases, and computer systems (collectively, “Partner System”) must be properly configured to Internet industry standards so as to securely operate Partner’s Website, services and products, as applicable. If Partner does not completely control some aspect of the Partner System, Partner will use all influence that Partner has over the Partner System to do so. Partner must diligently correct any security deficiency, and disconnect immediately any known or suspected intrusions or intruder.

2.   In addition, if Partner has access to Customer Data, Partner: (i) shall only use or store such information for the purpose of providing the Partner’s services to the Customer to whom the Customer Data relates, and shall not share, sell, disclose or otherwise provide such information to any third party, except as provided for in this Agreement; (ii) shall not communicate with Customers directly or indirectly, provided however that Partner may contact Customers if the information is obtained from another source, such as from the Customers themselves; (iii) shall only store such information for as long as reasonably necessary to provide the Partner’s services to the Customer to whom the Customer Data relates; (iv) shall use industry standard measures to protect against unauthorized access to, disclosure or use of such information; (v) shall comply with all applicable laws and regulations relating to the protection and privacy of personally identifiable information in Partner’s provision of the Partner’s services; and (vi) shall notify Fitchfork of any actual or suspected breach or compromise of Customer Data (a “Data Breach”) within two (2) business days of becoming aware of such occurrence. Upon learning of the Data Breach, at its own cost, Partner will: (A) promptly remedy the Data Breach to prevent any further loss of Customer Data; (B) investigate the incident; (C) take reasonable actions to mitigate any future anticipated harm to Fitchfork, the Fitchfork Related Entities, Customers; and (D) regularly communicate the progress of its investigation to Fitchfork and cooperate to provide Fitchfork with any additional requested information in a timely manner.

WHICH MEANS

If Partner has access to Customer Data, Partner will only use it to provide services to the Customer, will not communicate with Customer’s customers unless explicitly allowed, only keep Customer Data for as long as necessary to provide its services to the Customer, use industry standard security measures to protect against security breaches and comply with all laws. If Partner suspects any breach of Customer Data, Partner will notify Fitchfork immediately.

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