Partner General Terms & Conditions

The Parties to these Partner General Terms and Conditions are WorkWide, as set out in the Partner Program Agreement, and the Partner, as set out in the Partner Program Agreement.

The following defined terms apply:

• Admin User — Customer Personnel authorised to use the administration form of the WorkWide Technology.
• Appointment — the appointment of the Partner by WorkWide to Resell the Services as contemplated in clause 5.
• Confidential Information — the terms of the Contractual Framework and any information concerning a Party, including the WorkWide Technology (proprietary to WorkWide) and Partner Technology (proprietary to the Partner).
• Customer — a customer of the Partner who purchases the Services from the Partner and enters into the Customer Agreements with WorkWide.
• Customer Agreements — the End User Acceptance Form, End User License Agreement and/or SOW.
• Effective Date — the effective date of the Partner Agreements as set out in the Partner Program Agreement.
• Order Form — an Order Form for Subscription Services and/or Professional Services entered into between the Partner and WorkWide.
• Partner Agreements — the Partner Program Agreement together with these Partner General Terms and Conditions, read as one indivisible agreement.
• Partner Technology — software, methodologies, templates, business processes, documentation or other material authored or licensed by the Partner.
• Professional Services — professional services provided by WorkWide to a Customer pursuant to an agreed SOW.
• Resell — identifying and qualifying an opportunity to sell Services to Customers and executing the commercial deal through the Partner.
• SOW — a statement of work agreed between the Customer and WorkWide specifying the Professional Services to be performed.
• Subscription Services — the subscription services in respect of the WorkWide Software as ordered by the Partner from WorkWide.
• Subscription Term — the subscription term set out in an Order Form for Subscription Services.
• Support Services — the support services described in Annexure A.
• Taxes — all present and future taxes including VAT, withholding taxes, duties, levies and similar charges.
• WorkWide Technology — the Subscription Service, WorkWide Software, Documentation, Support Services and related technology, including updates, Upgrades and derivative works, and WorkWide’s Intellectual Property Rights.

WorkWide is the owner of the WorkWide Technology, is capable of delivering the Professional Services and providing the Support Services. The Partner wishes to Resell the Services and may retain WorkWide to provide Professional Services, Subscription Service licences and Support Services to Customers.

The relationship is governed by, in order of precedence:

1. the Partner Program Agreement;
2. these Partner General Terms and Conditions; and
3. any Order Form,

together forming the entire agreement (the “Contractual Framework”). Any Partner conditions of sale or terms on a Partner purchase order are expressly excluded.

In accordance with the Partner Program Agreement, WorkWide has appointed the Partner to Resell the Services in the Territory.

Professional Services require the Partner to enter into an Order Form for Professional Services with WorkWide, and the Customer to enter into a SOW with WorkWide.

Subscription Services require the Partner to enter into an Order Form for Subscription Services with WorkWide, and the Customer to enter into and accept the End User Acceptance Form and End User License Agreement. Support Services are provided by WorkWide during the Subscription Term. Absent an Order Form and the Customer Agreements, the Partner Agreements do not, in themselves, represent a commitment by the Partner to receive Services or pay Fees.

The Partner Agreements commence on the Effective Date and continue for successive one-year terms unless earlier terminated. Either Party may terminate for convenience on 90 days’ prior written notice. The Partner Agreements operate together; termination of one results in immediate termination of the other. Termination does not extinguish liability arising before the Partner Agreements Termination Date.

For Subscription Services, neither Party may terminate during the Subscription Term except for unremedied material breach. If terminated by the Partner due to WorkWide’s breach, the Partner may claim a refund of prepaid fees for the remainder of the Subscription Term. If terminated by WorkWide due to the Partner’s breach, the Partner shall pay all remaining amounts for the Subscription Term within 30 days.

For Professional Services, the Partner may terminate an Order Form for Professional Services without cause on 30 days’ written notice, paying for Professional Services properly rendered up to the Professional Services Termination Date.

In consideration for the Services, WorkWide shall charge the Partner the Fees set out in the Order Form. Payment obligations are non-cancellable and Fees paid are non-refundable except as expressly set out. Subscription Fees escalate annually as set out in the Order Form. Fees exclude Taxes, for which the Partner is responsible. Invoices are payable within 30 days of receipt unless otherwise agreed. Payments must be made free of set-off, withholding or deduction. Overdue amounts attract interest at 1.5% per month, capitalised monthly in arrears. If amounts are 30+ days overdue, WorkWide may suspend Services and/or migrate the Customer to a direct relationship with WorkWide.

The relationship between the Parties is solely that of buyer and seller. Nothing in the Partner Agreements makes the Partner an agent or representative of WorkWide. The Partner has no right or authority to create any obligation on behalf of, or in the name of, WorkWide.

The Partner shall:

• Be responsible for Partner Personnel’s compliance with the Contractual Framework and Documentation;
• Use commercially reasonable endeavours to prevent unauthorised access to the Subscription Services; and
• Use the WorkWide Technology only in accordance with the Contractual Framework, Documentation and applicable laws.

The Partner shall not, and shall not permit Partner Personnel to:

• Make Subscription Services available to anyone other than a Customer;
• Copy, translate, modify, decompile or reverse engineer the WorkWide Software or Documentation;
• Attempt to discover the source code;
• Merge or combine the WorkWide Software with other software without WorkWide’s consent;
• Attempt unauthorised access to the WorkWide Software or Documentation;
• Disclose Confidential Information to any third party;
• Circumvent any contractual usage limit;
• Use the WorkWide Technology to develop competing products;
• Use the WorkWide Technology to create or run viruses or other harmful code;
• Lend or transfer the WorkWide Software or Documentation to any non-authorised person;
• Other than under an Order Form, license, sell, sublicense, distribute, transfer, rent or lease the WorkWide Technology or include it in an outsourcing offering; or
• Modify, remove or alter trademarks, copyright or other Intellectual Property notices.

All right, title and interest in and to the Intellectual Property Rights in the WorkWide Technology remain vested in WorkWide. All right, title and interest in and to the Intellectual Property Rights in the Partner Technology remain vested in the Partner. Nothing restricts WorkWide’s right to perform similar Professional Services for any other party.

Confidential Information must be treated as strictly private, secret and confidential and not disclosed without prior written consent, except on a need-to-know basis to employees and advisors who first undertake in writing to protect its confidentiality. Standard carve- outs apply for information in the public domain, required by law, or independently developed. Either Party may at any time require return or destruction of Confidential Information.

Any warranty regarding the Services is provided solely and directly by WorkWide to the Customer in the Customer Agreements. The Partner shall not make warranties or representations on behalf of WorkWide. Each Party warrants its corporate power and authority to enter into the Partner Agreements. Except for the warranties expressly set out in the Partner Agreements, to the maximum extent permitted by law WorkWide disclaims all warranties of any kind, including merchantability, accuracy, title, non-infringement and fitness for a particular purpose, and provides the Services on an “as is” basis.

WorkWide indemnifies the Partner against third-party intellectual property infringement claims arising from the Customer’s use of the WorkWide Technology under the Contractual Framework. WorkWide may replace, modify, license or, failing which, terminate the affected Subscription Services and refund prepaid fees for the remainder of the Subscription Term. The indemnity does not apply to combinations with non-WorkWide products, use contrary to the Documentation, Partner/Customer modifications, or use of superseded versions.

The Partner shall be liable, on written demand, for all losses incurred by WorkWide arising from negligence, intentional acts, wilful misconduct, omissions or vandalism by or on behalf of the Partner or Partner Personnel, including tampering with or misuse of the WorkWide Technology, unauthorised modifications, breach of the Partner’s obligations and damage to WorkWide property.

Each Party shall indemnify the other against third-party claims relating to bodily injury or death caused solely by the indemnifying Party’s negligence, fraudulent acts or omissions, and breaches of clauses 11 or 12.

Subject to the indemnity undertakings, neither Party shall be liable to the other for any indirect, special or consequential loss or damage, including loss of profit, revenue, savings, goodwill or data. WorkWide’s liability arising from an Order Form for Subscription Services is limited to 50% of the charges paid by the Partner in the 12-month period immediately preceding the event giving rise to the liability under that Order Form. WorkWide’s liability arising from Subscription Services is limited to a maximum of the Fees paid by the Partner to WorkWide for the Subscription Services in the 12-month period immediately preceding the event. The existence of more than one claim shall not enlarge these limits.

On a material breach of a Partner Agreement that is not remedied within 30 days of written notice, the aggrieved Party may cancel the Partner Agreement (subject to the Subscription Term restrictions) or claim specific performance, without prejudice to its right to claim damages. Equivalent rights apply on a material breach of an Order Form. Either Party may terminate immediately on insolvency or business rescue of the other.

Neither Party shall be liable for delays caused by events beyond its reasonable control (acts of God, strikes, war, fire, flood, pestilence, government order and the like). Performance is suspended during the event and resumes on cessation.

Any dispute arising out of or in connection with the Partner Agreements or an Order Form shall be decided by arbitration held in Sandton, in English, in accordance with the prevailing Rules of Arbitration of the Arbitration Foundation of South Africa (AFSA). The award is final and binding. The Partner Agreements are governed by the laws of the Republic of South Africa. The South Gauteng High Court has jurisdiction to enforce any award. Nothing prevents either Party from applying for urgent interim relief from a court of competent jurisdiction.

The Parties choose their respective addresses set out in the Partner Program Agreement as their domicilium citandi et executandi. Notices delivered by hand are deemed received on the date of delivery; notices sent by email are deemed received on the day of transmission if sent during normal working hours, otherwise on the following working day.

Neither Party may cede its rights or delegate its obligations without the prior written consent of the other Party, which will not be unreasonably withheld.

The Contractual Framework constitutes the sole record of the agreement between the Parties on its subject matter. No Party is bound by any express, tacit or implied term not recorded in the Contractual Framework.

No addition, variation, consensual cancellation or novation of the Partner Agreements is of any force or effect unless reduced to writing and signed by all Parties. WorkWide may, on 30 days’ notice, amend the Partner Program Agreement or these Partner General Terms and Conditions on a going-forward, non-discriminatory basis. If the Partner does not agree, the Partner’s sole recourse is to terminate the Appointment for convenience.

Waiver of any breach does not prejudice remedies for any continuing or other breach. Delay or indulgence does not operate as a waiver. Termination does not prejudice rights in respect of antecedent breach.

If any provision is found invalid or unenforceable, the remaining provisions remain in full force, and the Parties shall agree a valid alternative achieving the same object.

The Partner Agreements are binding upon the successors and permitted assigns of the Parties.

Each Party shall bear its own costs relating to the negotiation, drafting and settling of the Partner Agreements.