Affiliate Terms of Agreement
1. DEFINITIONS
1.1Throughout this Agreement, the following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings:
1.1.1“Agreement” means these terms and conditions\ and all annexures as may be amended by the Service Provider from time to time;
1.1.2“Affiliate” means a bona fide person (whether natural or juristic) who has signed up with the Service Provider by registering on the Website to promote the Business of the Service Provider and acquire Customers on behalf of the Service Provider, subject to this Agreement;
1.1.3“Affiliate Ongoing Revenue” means the commission that an Affiliate becomes entitled to, following the recruitment and sign up of Customers in the Territory. The commission is calculated as a percentage of the Customer Revenue, less any Bad Debt, generated by the Customers that have registered on the Website through the Affiliate, as amended from time to time by the Service Provider;
1.1.4“Bad Debt” means any debt or Customer Revenue not collected;
1.1.5“Business” means the business of the Service Provider conducted through the Parcelspot Website, which enables Customers in the Territory to obtain on-line quotations for Parcel Delivery Services, whether for Local Parcel Deliveries or International Parcel Deliveries if applicable in the Territory. The Customers are able to compare the available pricing and services of Courier Companies that are able to provide the related Parcel Delivery Service requested. The Customers can then select the Parcel Delivery Service of their choice by booking and paying. The selected Courier Company is then instructed by the Service Provider to collect and deliver the Parcel;
1.1.6“Business Day” means any day of the week other than a Saturday, Sunday or public holiday in the Territory;
1.1.7“Business Hours” means the period between 08h00 and 17h00 on Business Days;
1.1.8“Competing Third Party” means any third party that competes with the Business of the Service Provider and includes inter alia any third-party Courier Company, which provides Parcel Delivery Services similar to or substantially the same as those provided by the Service Provider or otherwise;
1.1.9“Confidential Information” means proprietary and/or confidential information and/or materials containing information that concern, without limitation, the Service Provider’s Business, plans and strategies, Customers, Affiliates, pricing, third party relationships, technology or products;
1.1.10“Conversion” means the process by which the Service Provider’s system accesses the Cookies on a Customer’s computer in order to create a link to the Affiliate’s affiliate link;
1.1.11“Cookies” means a small file or part of a file stored on a Customer’s computer, created and read by the Service Provider's server, and containing information such as a user identification code and the unique Affiliate code and is valid for a period of 60 (sixty) days for each incoming/new Customer unless the Service Provider specifies otherwise in the application interface;
1.1.12“Courier Company” means any third party utilised by the Service Provider for the purposes of the Parcel delivery Service and includes any other Competing Third Party;
1.1.13“Customer” means any bona fide person (whether natural or juristic) that resides within the Territory of the Affiliate, recruited by the Affiliate and that purchases Parcel Delivery Service(s) from the Service Provider.
1.1.14“Customer Discount” means the discounts offered by the Affiliate to the Customers, coupons or rebates provided to the Customer for Transactions in respect of Parcel Delivery Services, excluding VAT;
1.1.15“Customer Revenue” means the revenue generated through the Service Provider in relation to the Parcel Delivery Services from Customers within in the Territory, which Customer Revenue includes “Courier Fees”, excluding VAT;
1.1.16“Effective Date” means the date upon which the Affiliate has successfully registered as an Affiliate of the Service Provider on the Website;
1.1.17“Parcel Delivery Service” means any Parcel or Document delivered by the Courier Company either within the Territory itself (a “Domestic Delivery Service”), or from the Territory to a foreign destination (an “International Delivery Service”);
1.1.18“Parties” means the Affiliate and the Service Provider and “Party” shall mean either one of them as the context may require;
1.1.19“Potential Customers” means a bona fide person (whether natural or juristic) who wishes to purchase Parcel Delivery Services directly or indirectly, in accordance with the applicable terms stipulated by the Service Provider, from time to time;
1.1.20“Self Invoicing” means the invoice generated by the systems of the Service Provider, on behalf of the Affiliate to the Service Provider itself, in respect of Affiliate Ongoing Revenue due by the Service Provider to the Affiliate each month;
1.1.21“Service Provider” means Parcelspot Limited, Registration Number 648570, duly incorporated in the laws of Ireland and registered in South Africa as a branch, Registration Number 2019/452547/10;
1.1.22“Territory” means the Country in which the Affiliate is residing, subject to the Parcel Delivery Services of the Service Provider being available in that Country;
1.1.23“Trademarks” means the trade-marks, trade names, logos, symbols and marks of whatsoever nature (registered and unregistered) used or owned by, the Service Provider or licensed to the Service Provider from time to time;
1.1.24“VAT” means Value Added Tax, as applicable in the Territory;
1.1.25“Website” means www.parcelspot.com.
2. INTRODUCTION
2.1The Service Provider is in the Business of running an online courier comparison Website and Parcel Delivery Service.
2.2The Service Provider is a company duly incorporated in accordance with the company laws of Ireland and conducts the Business as, inter alia, a provider of courier services in the Territory.
2.3The Affiliate wishes to promote the Business and acquire Customers for an on behalf of the Service Provider to generate Affiliate Ongoing Revenue subject to this Agreement.
2.4The Affiliate agrees to be bound to this Agreement which shall regulate its relationship with the Service Provider for the duration of this Agreement, and upon termination thereof, with effect from the Effective Date.
3. INTERPRETATION
3.1For the purposes of interpreting this Agreement:
3.1.1the headings to the clauses in this Agreement are for the purposes of convenience only and shall not be used in their own interpretation, nor shall they serve to modify or amplify any term hereof;
3.1.2unless a contrary intention appears in this Agreement, words importing:
3.1.2.1any one gender includes both genders;
3.1.2.2the singular includes the plural and vice versa;
3.1.2.3a reference to “person” includes natural persons, created entities (corporate or unincorporated);
3.1.3when any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day does not fall on a Business Day, in which case the last day shall be the next succeeding Business Day;
3.1.4should the day for the performance of any obligation in terms of this Agreement fall on a day that is not a Business Day, then such obligation shall be performed on the next day that is a Business Day;
3.1.5where figures are referred to in numerals and in words, the words shall prevail if there is any conflict between the two;
3.1.6the rule of construction that this Agreement shall be interpreted against the Party responsible for the drafting and preparation of the Agreement (i.e. the contra proferentum rule) shall not apply in this instance;
3.1.7any reference to a document (including this Agreement) or any schedule or Annexure to this Agreement, is a reference to that document as amended, consolidated, supplemented, novated or replaced;
3.1.8the rule of construction that if general words or terms are used in association with specific words or terms which are a species of a particular genus or class, the meaning of the general words or terms shall be restricted to the same class (i.e. the eiusdem generis) shall not apply, and whenever the word “includes” or “including” is used followed by specific examples, such examples shall not be interpreted so as to limit the meaning of any word or term to the same genus or class as the examples given; and
3.1.9if any provision in the “Introduction” or a “Definition” of this Agreement is a substantive provision conferring any rights or imposing any obligations on either Party, notwithstanding that it is only in a definitions or introduction clause, effect shall be given to it as if it were a substantive provision in this Agreement.
3.2This Agreement shall be binding on and enforceable by the estates, heirs, executors, administrators, trustees, permitted assigns or liquidators of the Parties as fully and effectually as if they had signed this Agreement in the first instance and reference to any Party shall be deemed to include such Parties’ estate, heirs, executors, administrators, trustees, permitted assigns or liquidators, as the case may be.
3.3Where any term is defined within the context of any particular clause in this Agreement, the terms so defined shall, unless it appears clearly from the clause in question that such term has limited application to the relevant clause, bear the meaning assigned to it for all purposes in terms of this Agreement, notwithstanding that such term has not been defined in clause 1.
3.4Save where indicated to the contrary, expressions defined in this Agreement shall bear the same meaning in any Annexure hereto, unless such Annexure contains an alternative definition to the expression. Expressions defined in the Annexure shall also bear the same meaning in this Agreement unless this Agreement contains an alternative definition to the expression.
3.5Unless expressly stated to the contrary, any reference in this Agreement to legislation or subordinate legislation is to such legislation or subordinate legislation as at the Effective Date as amended and/or re-enacted from time to time thereafter, as well as any applicable legislation promulgated or made effective during the term of this Agreement.
3.6Should this Agreement be signed on a date that results in the use of any tenses herein being inappropriate, the terms shall be read in the appropriate tense.
4. COMMENCEMENT AND DURATION
4.1This Agreement shall commence on the Effective Date and shall continue for a period of 1 (one) year (the “Initial Period”) unless terminated by the Service Provider in accordance with the provisions of this Agreement.
4.2Upon expiration of the Initial Period, this Agreement shall continue indefinitely unless terminated by either Party:
4.2.1for whatsoever reason, by providing 30 (thirty) days prior written notice to the other Party; or
4.2.2in accordance with the provisions of this Agreement.
5. APPOINTMENT
5.1Subject to the successful registration of the Affiliate on the Website and at all times subject to this Agreement, the Service Provider accepts the appointment of the Affiliate to promote the Business of the Service Provider and assist the Service Provider with the acquisition and sign up of Customers, in accordance with the terms and conditions set out in this Agreement.
5.2The Affiliate specifically agrees not to promote the services of a Competing Third Party and shall at all times act in good faith in soliciting Potential Customers exclusively for the Service Provider.
5.3The Affiliate accepts such appointment, with effect from the Effective Date, to:
5.3.1Market and promote the Business of the Service Provider, using its staff and business networks Affiliates within the Territory; and
5.3.2Recruit and sign up, Customers, within the Territory; and
5.3.3Target Potential Customers and sign up Customers directly or indirectly;
5.3.4Assist the Service Provider in managing Affiliate Customers, within the Territory;
5.3.5conduct any ancillary activities contemplated in this Agreement and as advised by the Service Provider from time to time;
5.3.6assist the Service provider from time to time to communicate to Customers and to disseminate information as provided by the Service provider, on social media platforms, communities and data bases.
5.4The Affiliate’s authority to represent the Service Provider as agent or in any other manner is limited to the scope expressly contained in this Agreement.
5.5The Affiliate warrants that it is duly authorised to and that nothing precludes it from being bound to this Agreement and that the execution, delivery and performance by it of its obligations provided for in this Agreement does not infringe any third-party rights.
6. UNDERTAKINGS BY THE AFFILIATE
6.1The Affiliate undertakes, for the duration of this Agreement:
6.1.1to promote the Business in the Territory in accordance with the provisions of this Agreement and, not do or omit to do anything that could reasonably be regarded as inconsistent with this obligation;
6.1.2to acquire Customers and Potential Customers;
6.1.3to ensure that it as well as its staff promote the Parcel Delivery Services at the prices and terms as recommended by the Service Provider from time to time;
6.1.4to comply with any specifications, procedures, directions and/or guidelines and requests which the Service Provider may issue from time to time in relation to the Affiliate’s obligations as contained in this Agreement and to ensure that its employees comply with Affiliate’s obligations in this regard;
6.1.5not to do anything which damages the good name and reputation of the Service Provider and to protect and enhance the good name and reputation of the Service Provider in the fulfilment of its obligations as contained herein and to ensure that employees;
6.1.6to inform the Service Provider in writing immediately if it learns that any other third party is breaching clause 6.1.6 and any it agrees to comply with its obligations in this regard;
6.1.7not to use or knowingly allow itself, its employees or other third party to use the Business and Parcel Delivery Services for improper, immoral or unlawful purposes;
6.1.8upon prior arrangement with the Service Provider, to participate and support, and ensure that its employees participate, support and where necessary, attend, any and all training programmes that the Service Provider may, from time to time, introduce, either alone or in conjunction with any third party;
6.1.9to provide a prompt and professional service to Customers and Potential Customers at all times;
6.1.10to advise the Service Provider in writing, of any complaints by Customers or Potential Customers, submitted to the Affiliate and/or other Affiliates and/or Affiliate Customers, in relation to, inter alia, the Website or the Business, as well as any matters incidental to the Parcel Delivery Services, promptly upon receipt thereof;
6.1.11to direct any Customer or such Potential Customer’s enquiries, which the Affiliate and/or its authorised employees are unable to honestly and/or truthfully and/or correctly respond to, to the Service Provider in writing;
6.1.12to notify every Customer or Potential Customer of any terms, conditions, provisions and any other additional information which the Service Provider may require the Affiliate to pass-on to such Customers or Potential Customers from time to time;
6.1.13to furnish the Service Provider with written progress reports detailing the conduct of its activities under this Agreement and/or such information concerning its activities in terms of this Agreement as the Service Provider may reasonably require, upon request by the Service Provider from time to time;
6.1.14to provide all necessary human and other resources required, subject to the Affiliate’s normal business conduct, to efficiently promote the Business and to adequately fulfil its obligations in terms of this Agreement;
6.1.15not to source or procure Parcel Delivery Services from any third party other than the Service Provider unless the Service Provider’s prior written consent has been obtained which consent shall be granted or withheld at the Service Provider’s discretion;
6.1.16not act or omit to act in any way likely to cause the quality of the Parcel Delivery Services to be impaired or interrupted in any manner whatsoever;
6.1.17to provide the Service Provider with the forecasts, in accordance with the provisions of the Service Provider’s planning process as will be communicated to the Affiliate by the Service Provider from time to time; and
6.1.18not to actively and/or intentionally induce or persuade any Customer or Potential Customer to subscribe to any service offered or products sold by a Competing Third Party.
6.2Any reports, details, schedules, forecasts, statistics and any other information provided by the Affiliate to the Service Provider in terms of this Agreement shall be verified and signed by an authorised representative of the Affiliate (e.g. the individual itself or employee or director or Chief Financial Officer or his nominee) as true and correct in all respects.
6.3The Affiliate shall act or desist from acting in any manner in which the Service Provider may reasonably require from time to time and shall make or desist from making any representations to Customers, Potential Customers and/or any third parties, as required by the Service Provider from time to time.
7. AFFILIATES
7.1The Affiliate undertakes for the duration of this Agreement:
7.1.1to ensure that the it portray the best image of the Service Provider and, provide a conducive and pleasant experience for the Customers and Potential Customers;
7.1.2to ensure that it complies with the Service Provider’s instructions relating to any matters pertaining to the Business;
7.1.3to exercise control over, take responsibility and bear liability for its employees’ acts and/or omissions;
7.1.4to ensure that it does not act or omit to act in any way likely to cause the quality of the Parcel Delivery Services to be impaired or interrupted in any manner whatsoever;
7.1.5to promote the Business as contemplated in this Agreement, it being incumbent upon the Affiliate to satisfy the Service Provider that reasonable measures have been made and/or put in place to ensure compliance with this obligation; and
7.1.6when called upon to do so by the Service Provider, to furnish the Service Provider with such information concerning the Affiliate and Customers as may be requested by the Service Provider from time to time.
7.1.7The Service Provider shall be entitled to take whatever steps it considers reasonably necessary to verify and investigate the Affiliate’s compliance with clauses 7.1 above and this Agreement, including, but without limitation, carrying out an inspection of the Affiliate’s records, business and information systems, to the extent that they are applicable whether directly or indirectly, to the matters contemplated in clauses 7.1. The Affiliate shall provide the Service Provider with its co-operation in concluding such verification and investigation in a prompt and expeditious manner and will accordingly allow the Service Provider reasonable access to its premises in order to do so. The Service Provider shall conduct such investigation with as little disruption as possible to the Affiliate’s ordinary business and by complying with the Affiliate’s safety and security requirements as imposed on employees working on the Affiliate’s premises in question. The Affiliate shall further ensure that the Service Provider has access to any information concerning Affiliate Customers as may be reasonably required to verify and investigate the Affiliate’s compliance with clause 7.1.
7.2Notwithstanding anything contained in this Agreement to the contrary, the Affiliate undertakes to, where applicable and reasonable, ensure the compliance of the Affiliates and the Affiliate Customers with the provisions of this Agreement in the same manner as the Affiliate is itself obliged to comply therewith, notwithstanding that the clauses themselves do not expressly provide for this.
7.3In the event of the Service Provider being aware of any breaches by the Affiliates and/or the Affiliate Customers, the Service Provider shall be entitled to instruct, in writing, the Affiliate to cease any form of trade, relating to the Parcel Delivery Services. In the event that the Affiliate fails to comply with the provisions of this clause 7.2, within 30 (thirty) days of the receipt of the Service Provider’s written instruction, the Service Provider shall be entitled to terminate this Agreement with immediate effect. This clause 7.2 shall not limit, prejudice or preclude the Service Provider from exercising any of its other rights in this Agreement.
7.4For the duration of this Agreement, the Affiliate shall provide the Service Provider with a list of all the Potential Customers upon request.
7.5The Affiliate confirms that the Personal Data provided is accurate and that this is a voluntary provision of Personal Data.
7.6The following list of personal details shall be provided on registration:
7.6.1First name & surname
7.6.2Company name, Company ID, VAT No, contact person for companies
7.6.3Contact information
7.6.4Address
7.6.5E-mail address
7.6.6Telephone number
7.6.7Bank details (bank account number for payment of Commissions)
7.7The Affiliate’s Personal Data must be processed for the purpose of identifying the Contractual Parties and performance of the Agreement and for the purpose of registering the Agreement and any future exercise and defending the rights and obligations of the Parties. Such processing allows Article 6 (1) (a) | (b) and (f) Regulation (EU) No 2016/679 of the European Parliament and of the Council on the protection of individuals with regard to: the processing of personal data and the free movement of such data and repealing Directive 95/46 / EC (General Data Protection Regulation) (“GDPR”)
7.8For the purpose stated above, the preservation and processing of the Affiliate’s Personal Data will be performed for the duration of the Agreement and for a period of 10 years from the termination of the Contract, unless another legal regulation requires the preservation of contractual documentation for a longer period.
7.9The Affiliate acknowledges that they will oblige to present personal data correctly and truthfully and the Affiliate will notify the Service Provider of any changes of personal data without delay.
7.10The e-mail address may be processed for inclusion in the database for sending commercial messages. This procedure is allowed by Section 7 (3) of Act No. 480/2004 On Information Society Services, on the basis of the concluded Contract, unless the Affiliate refuses it. These communications may only apply to similar services and can be unsubscribed at any time - by sending a letter, email or clicking a link in a commercial message - For this purpose, the e-mail address will be processed by the Service Provider for the period of provision of the services and for a period of 3 years from the termination of the provision.
7.11The processing of Personal Data is performed by the Service Provider; however, the following providers of the Service Provider may process Personal Data for the Service Provider:
7.11.1Commission system providers and application support providers
7.11.2web application services and other services related to the company's activities
7.11.3Sales channel, marketing and emailing services
7.11.4feedback and questionnaire processing, for example:
7.11.5Olympic, s.r.o. (Affilbox operator), GOPAY Ltd., PayPal Inc., SendGrid, Inc., Google LLC (Google Adwords, Google Analytics, Google Drive), Amazon Web Services, Inc., tawk.to inc. and Seznam.cz, a.s., or other providers of processing software, services and applications, which are not currently used by the company.
7.12Under the conditions set out in GDPR, the Affiliate has:
7.12.1The right of access to their personal Data pursuant to Article 15 of the GDPR.
7.12.2The right to rectify Personal Data pursuant to Article 16 of the GDPR, or to limit processing according to Article 18 of the GDPR.
7.12.3the right to delete Personal Data pursuant to Article 17 of the GDPR.
7.12.4The right to object to processing under Article 21 of the GDPR.
7.12.5The right to data portability under Article 20 of the GDPR.
7.12.6The right to withdraw consent to processing in writing or electronically via email Administrator specified in Article III of these Conditions.
7.12.7In case of doubt regarding compliance with the obligations related to the processing of Personal Data, please contact us or the Office for Personal Data Protection.
7.13The Service Provider declares that it has taken all reasonable technical, administrative and physical security measures to protect the security of Personal Data.
7.14The Service Provider declares that only the persons authorized by the Service Provider have access to the Personal Data. Employees, suppliers, and customer care agents who have access to the Personal Data are required to keep this information confidential and may not use it for any purpose other than those listed above or deal with requests that the Affiliate.
8. UNDERTAKINGS BY THE SERVICE PROVIDER
8.1In return for the Affiliate’s fulfilment of its obligations in terms of this Agreement, the Service Provider undertakes to pay the Affiliate Ongoing Revenue.
8.2The Affiliate could also receive any other incentive and/or amounts which may be agreed to be paid to the Affiliate from time to time.
9. UNDERTAKINGS BY THE SERVICE PROVIDER
9.1The Affiliate can undertake a number of Marketing activities, provided it does not infringe any laws and enhances the good reputation of the Service Provider at all times and provided the Affiliate does so in accordance with the marketing guidelines of the Service Provider, as amended from time to time;
9.2Methods of promotion includes:
9.2.1Placement of advertising content (in particular banners) on the Affiliate’s website;
9.2.2Providing references to the Service Provider's goods or services through blogs, discussion. forums or articles (provided that the rules of the blogs or forums allow this activity);
9.2.3Sending e-mails with information on the Service Provider's goods or services to persons who have given their proper consent to this form of marketing in accordance with the legal regulations;
9.2.4Direct face to face sign ups using administration capability of the Service Provider system;
9.2.5The use of social media to promote and create awareness of the Parcel Delivery Services.
9.3The Affiliate will receive for the purposes of promoting the Parcel Delivery Services, a unique link assigned to the Affiliate through the Service Provider’s system and/or if the Affiliate registers their own domains or apps used by the Affiliate with the Service Provider, then any traffic originating from these domains and/or apps will be used in the place of the unique link provided;
9.4The Affiliate becomes eligible for Affiliate Ongoing Revenue only if its unique link was used to create an approved Conversion. The Affiliate accepts that the Service Provider cannot be held responsible if a Customer disables the use of Cookies in their web browser which will make it impossible to create the link between the Affiliate and the Customer;
9.5The Service Provider may, in its sole and absolute discretion, from time to time, advertise in the Territory (in a form, quantity and manner reasonably determined by the Service Provider) the brand and services (“Parcelspot”) for the purposes of acquiring Customers and other Affiliates.
9.6The Affiliate undertakes, for the duration of this Agreement:
9.6.1to ensure that any promotional or advertising material as may be provided by the Service Provider from time to time, is utilised by the Affiliate at all times (including its employees and agents) in accordance with the directions and requirements of the Service Provider;
9.6.2to (and to ensure that its employees and its agents) act in strict accordance with the instructions and directions provided and standards set by the Service Provider, from time to time, regarding advertising, and publicity in relation to the subject matter of this Agreement as well as the use of any of the Parcelspot Trademarks and logos;
9.6.3to (and to ensure that its employees and its agents) comply with all instructions issued by the Service Provider regarding any particular promotion and special offers offered by the Service Provider, from time to time;
9.6.4to ensure that any promotional or advertising material or collateral relating to Parcelspot which the Affiliate (on its own account and/or through its employees and agents) wishes to design and/or produce and/or use, shall be approved of by the Service Provider in writing prior to publication and circulation;
9.6.5to actively participate in, and promote all special offers and packages offered by the Service Provider for sale in the Territory from time to time, in the manner and upon terms stipulated by the Service Provider;
9.6.6when implementing campaigns, especially when sending e-mail messages, the partner undertakes to comply with the legal regulations of the Territory;
9.6.7when the Affiliate advertises through the Pay Per Click advertising system (for example, Google AdWords, Facebook Ads etc.) the Affiliate shall not target on keywords containing "parcelspot" or "parcelspot.com";
9.6.8the Affiliate nor any family member of the Affiliate are not permitted to order Parcel Delivery Services provided by the Service Provider via their link. The Parcel Delivery Service will not be approved by the Service Provider. In case of repeated attempts, the Service Provider may block the Affiliate's account; and
9.6.9the link on the Affiliate’s website must bear the mark “nofollow”, unless otherwise agreed to by the Service Provider in writing.
9.7The ownership in any promotional material, marketing aids, training aids and documentation which the Service Provider may provide to the Affiliate from time to time, shall at all times remain with the Service Provider and the Service Provider shall be entitled to require the return of such promotional material, marketing aids and/or training aids upon 48 (forty eight) hours’ notice to the Affiliate if:
9.7.1in the Service Provider’s opinion such promotional material, marketing aids and/or training aids are being displayed and/or are used by the Affiliate and/or its employees and agents in any manner contrary to the Service Provider’s instructions; and/or
9.7.2in the Service Provider’s opinion, such promotional material, marketing aids and/or training aids are not maintained in good condition by the Affiliate and/or employees and agents for any reason whatsoever.
10. INTELLECTUAL PROPERTY
10INTELLECTUAL PROPERTY
10.1For the duration of this Agreement, the Service Provider shall allow the Affiliate to utilise those Trademarks identified by it, from time to time, for the purposes of marketing, promoting and selling the Parcel Delivery Services. Any use of such Trademarks shall be in strict accordance with the guidelines determined by the Service Provider and advised to the Affiliate, from time to time.
10.2Any use of such Trademarks by Affiliates shall be subject to the Service Providers prior written consent, which consent shall be granted or withheld at the Service Provider’s discretion. Should the aforementioned consent be granted, the use of such Trademarks shall be in strict accordance with the guidelines determined by the Service Provider.
10.3In the event of the Affiliate or Affiliates utilising the Trademarks, it shall accurately reproduce the colour, design and appearance, as instructed by the Service Provider, in writing, from time to time.
10.4Notwithstanding the provisions of this Agreement, neither Party shall acquire any right, title nor interest in or to the other Party’s Trademarks, except the right of use as granted in terms of this Agreement.
10.5Either Party (the “Responsible Party”) shall reasonably assist the other (the “Innocent Party”) in protecting the Innocent Party’s intellectual property rights in and to the Trademarks and the Responsible Party shall not do or permit the doing of or omit to do anything which may endanger such rights or the Innocent Party’s title thereto. Without prejudice to the generality of the aforegoing, the Responsible Party undertakes, to the Innocent Party:
10.5.1to notify the Innocent Party of any suspected infringement of the Innocent Party’s intellectual property, but to take no steps or action whatsoever in relation to such suspected infringement unless requested to do so by the Innocent Party in writing;
10.5.2to actively assist the Innocent Party at the Innocent Party’s cost with any anti-infringement action including, inter alia, attesting to affidavits and giving oral evidence, if necessary, provided that such assistance does not unreasonably damage the commercial interests of the Responsible Party;
10.5.3not to apply for the registration of the Innocent Party’s Trademarks (or any part thereof) as a trade mark for any goods or services or use the Innocent Party’s Trademarks otherwise than as specifically permitted in terms of this Agreement; and
10.5.4not to interfere with or attempt to prohibit, in any manner whatsoever, the use or registration of the Innocent Party’s Trademarks by the Innocent Party.
10.6The Parties acknowledge that any use of the other Party’s Trademarks other than in accordance with the provisions of this Agreement and/or without any prior written approval given by the other Party, shall be a breach of this Agreement. Breach of the provisions of this clause shall entitle the aggrieved Party (the “Aggrieved Party”) to demand, by notice in writing to the other Party (the “Defaulting Party”), the immediate withdrawal of the offending material at the Defaulting Party’s cost, failing which the Aggrieved Party may terminate this Agreement with immediate effect without prejudice to any remedies available to it in law, upon written notice to the Defaulting Party.
10.7Neither Party shall oppose any application for the extension of the registration of any Trademarks filed in the other Party’s name during the term of this Agreement or at any time thereafter. The Parties undertake to ensure that all their divisions and/or subsidiaries are bound to and adhere to the provisions of this clause.
10.8The Affiliate agrees that it will not for the duration of this Agreement:
10.8.1put in issue the validity of any of the Service Provider Trademarks or itself claim any rights in the Service Provider Trademarks; or
10.8.2do anything which, in the Service Provider’s reasonable opinion, might tend to disparage the Service Provider Trademarks or damage the reputation thereto or harm the Service Provider’s rights therein.
10.9Accordingly, the Affiliate shall ensure that the Affiliates comply with provisions of clause 10.8.
11. AFFILIATE ONGOING REVENUE
11.1The Affiliate Ongoing Revenue, shall accrue on Parcel Delivery Services to the Affiliate and become payable for the duration of this Agreement in respect of Customers that it has acquired.
11.2The Affiliate Ongoing Revenue shall be calculated monthly as follows:
11.2.110% on Domestic Delivery Services Customer Revenue; plus
11.2.210% on International Delivery Services Customer Revenue.
11.3The Affiliate may offer at its discretion to the Customers that it acquires, Customer Discount, which Customer Discount percentage may not be greater than the Affiliate Ongoing Revenue percentage.
11.3.1Any Bad Debt of Customers introduced into the program through the Affiliate will be deducted before any Affiliate Ongoing Revenue Commissions become payable.
11.4The Nett Ongoing Revenue, that becomes payable is the difference between the Affiliate Ongoing Revenue and the Customer Discount, less any Customer Bad Debt and shall be paid to the Affiliate by no later than 30 (thirty) days from the end of each calendar month.
11.5Should the Customer Revenue applicable to the Affiliate be declining for 3 (three) consecutive Quarters, this Agreement shall automatically lapse and the Affiliate shall cease to receive any benefit hereto and no further Ongoing Revenue is payable to the Affiliate.
11.6The Parties wish to record that the Affiliate shall be entitled, at its own cost, to acquire Customers on behalf of the Service Provider for the purpose of earning Affiliate Ongoing Revenue and Growth Incentive.
11.7By registering on the website, the Affiliate expresses its consent to the sending of e-mail messages that will be used for sending news and information related to the campaigns or other subject matters of the Service Provider's business. This consent may be withdrawn at any time by the Affiliate deregistering itself on the Website.
11.8The Provider has the right to unilaterally change or replace the Conditions and the Commission Scheme at any time and for any reason whatsoever, including due to changes in legislation, changes in market conditions, the need to treat contractual risks or innovation of provided services. The partner shall be informed of any changes by notification within the user account and by e-mail at the latest 30 (thirty) days before such change takes effect. If the partner does not agree with the proposed change, the Partner has the right to withdraw from the Contract at the latest until such change becomes effective. In the event that the Partner does not exercise the right to withdraw from the Contract, it is deemed to accept the change.
12. AFFILIATE ONGOING REVENUE AUDIT
12.1In the event of a dispute arising between the Parties as to the Affiliate Ongoing Revenue and/or other amounts payable by the Service Provider to the Affiliate, if any, pursuant to this Agreement, then an audit certificate from the Service Provider’s auditors, which audit certificate shall be procured by the Service Provider, shall be conclusive and final proof of the commissions, incentives, discounts and/or other amounts owing by the Service Provider to the Affiliate and the Parties agree to be bound thereby.
12.2The cost of obtaining such an audit certificate shall:
12.2.1where the audit certificate reflects an amount of commissions, incentives, discounts and/or other amounts payable to the Affiliate, which is equal to or less than the amount tendered by the Service Provider, be paid by the Affiliate; and
12.2.2where the audit certificate reflects an amount greater than that tendered by the Service Provider, be paid by the Service Provider.
12.3The Service Provider shall be entitled to take whatever steps it considers reasonably necessary to verify or investigate any matter arising out of this Agreement or incidental thereto, including, but without limitation, carrying out an inspection of the Affiliate’s records, business and information systems, to the extent that they are applicable whether directly or indirectly, to the matters contemplated in this Agreement. The Affiliate shall provide the Service Provider with its co-operation in concluding such verification and investigation in a prompt and expeditious manner and will accordingly allow the Service Provider reasonable access to its premises in order to do so. The Service Provider shall conduct such investigation with as little disruption as possible to the Affiliate’s ordinary business and by complying with the Affiliate’s safety and security requirements as imposed on employees working on the Affiliate’s premises in question.
12.4In the event of an investigation as anticipated above, should the Service Provider establish that the Affiliate (including the Affiliates employees and/or agents) was involved in any form of irregularity, the costs of an incidental investigation shall be for the Affiliate’s account. This right shall be without prejudice to any other of the Service Provider’s rights in terms of this Agreement or law.
12.5The provisions of this clause 12 shall survive the termination of this Agreement for any reason.
13. COMPLIANCE WITH ALL LAWS
13.1The Affiliate shall for the duration of this Agreement:
13.2comply with all relevant legislation (including but not limited to legislation pertaining to privacy and/or the protection of personal information) and comply with any directions made by any competent regulatory authority in the Territory concerning the fulfilment of its obligations in terms of the matters contemplated in this Agreement;
13.2.1comply, at its own cost and expense, with the Licence conditions and, with any directions made by any legislative body or government, provincial, regional or local authority relating to any of the matters contemplated in this Agreement:
13.2.1.1as notified to the Affiliate by the Service Provider from time to time; and/or
13.2.1.2which are in the public domain, and which can reasonably be expected to be within the Affiliate’s knowledge; and
13.2.1.3in the manner reasonably required by the Service Provider and particularly, in a manner which enables the Service Provider to ensure compliance on its part should that be necessary; and
13.2.2indemnify the Service Provider against any loss or damage suffered by them as a result of the Affiliate’s failure to comply with any or all laws, licence conditions and the requirements of any legislative body or government, provincial, regional or local authorities in the Territory.
13.3Each of the Parties undertakes to provide the other of them with such information and co-operation as may reasonably be required by the other of them so as to facilitate compliance with any regulatory conditions which may be applicable to the subject matter of this Agreement.
13.4The Affiliate undertakes to comply with any directions issued by the Service Provider insofar as they are necessary for compliance with the provision of any applicable regulatory conditions.
14. CONFIDENTIALITY AND DISCLOSURE
14.1All business, customers, commercial, scientific or technical information as well as the contents of this Agreement, or any proposal or Price List, whether current or not, received by or made available to either Party under this Agreement, or during negotiations prior to the conclusion of this Agreement (the “Confidential Information”), shall be treated by the Parties as confidential and shall not be disclosed to third parties, or used for any purpose other than that for which it was disclosed, without the disclosing Party’s prior written consent.
14.2Notwithstanding the provisions of clause 14.1, the recipient Party shall be entitled to disclose the Confidential Information if and to the extent only that the disclosure is bona fide and necessary for the purposes of carrying out its duties in terms of this Agreement.
14.3The obligation of confidentiality placed on the Parties in terms of this clause 14 shall cease to apply to the recipient Party in respect of any information which:
14.3.1is or becomes generally available to the public other than by the negligence or default of the recipient Party or by the breach of this Agreement by the recipient Party;
14.3.2the disclosing Party confirms in writing that information is disclosed on a non-confidential basis;
14.3.3has lawfully become known by or come into the possession of the recipient Party on a non-confidential basis from a source other than the disclosing Party having the legal right to disclose same, provided that such knowledge or possession is evidenced by the written records of the recipient Party existing at the Effective Date; or
14.3.4is disclosed pursuant to a requirement or request by operation of law, regulation or court order, to the extent of compliance with such requirement or request only and not for any other purpose,
provided that:
14.3.5the onus shall at all times rest on the recipient Party to establish that information falls within the exclusions set out in clauses 14.3.1 to 14.3.4
14.3.6the information will not be deemed to be within the foregoing exclusions merely because such information is embraced by more general information in the public domain or in the recipient Party's possession; and
14.3.7any combination of features will not be deemed to be within the foregoing exclusions merely because individual features are in the public domain or in the recipient Party's possession, but only if the combination itself and its principle of operation are in the public domain or in the recipient Party's possession.
14.4In the event that the Recipient Party is required to disclose confidential information of the disclosing Party as contemplated in clause 14.3.4, the recipient Party will:
14.4.1advise the disclosing Party thereof in writing prior to disclosure, if possible;
14.4.2take such steps to limit the disclosure to the minimum extent required to satisfy such requirement and to the extent that it lawfully and reasonably can;
14.4.3afford the disclosing Party a reasonable opportunity, if possible, to intervene in the proceedings;
14.4.4comply with the disclosing Party's reasonable requests as to the manner and terms of any such disclosure; and
14.4.5notify the disclosing Party of the recipient of, and the form and extent of, any such disclosure or announcement immediately after it is made.
14.5The Affiliate shall not, directly or indirectly, communicate any information regarding or relating to a Customer or Potential Customers, otherwise than in the normal course or conduct of the business of the Affiliate to any third party.
14.6The Affiliate shall adhere to and ensure that all its employees, agents and its sub-contractors, if any, adhere to the terms of this confidentiality and non-disclosure clause.
14.7The Service Provider reserves the right to have the auditors and information security and/or technology experts conduct an audit and investigate the Affiliate to provide assurance to the Service Provider that its confidentiality requirements are being adhered to.
14.8The Affiliate shall ensure that the necessary measures to ensure that the Customer and/or Potential Customer data is protected from any unauthorised disclosure, or use by any third party, as required by any legislation, regulations and/or bylaws and in accordance with this Agreement.
14.9The Affiliate agrees that the terms of this clause 14 shall survive the termination of this Agreement.
15. COMPETING THIRD PARTY
15.1Notwithstanding anything contained in this Agreement to the contrary, the Service Provider reserves the right to immediately terminate this Agreement on written notice in the event that the Affiliate and/or any of its subsidiaries or divisions are or becomes, and/or launches a Competing Third Party (whether directly or indirectly). For the avoidance of doubt, this clause does not limit the Affiliate from trading with or selling or distributing products or service of non-Competing Third Parties.
15.2The Affiliate warrants that it shall not, under any circumstances, persuade or entice any Customer to cease to utilise the Service Provider’s services and procure services from a Competing Third Party.
15.3Notwithstanding anything contained in this Agreement to the contrary, in the event that the Affiliate and/or any of its trading divisions becomes a Competing Third Party Supplier, the Service Provider reserves a right to terminate this Agreement in accordance with the provisions of clause 15.1.
15.4Notwithstanding anything contained in this Agreement to the contrary, in the event that any related Party to the Affiliate:
15.4.1becomes a Competing Third Party:
15.4.2becomes, and/or launches a Competing Third-Party activity (whether directly or indirectly), the Service Provider shall be entitled to instruct, in writing, the Affiliate to cease any form of trade, relating to Parcel Delivery Service or relating to the Business in question. In the event that the Affiliate (including any of its trading divisions or related Parties) fails to comply with the provisions of this clause 15.4 within 30 (thirty) days of receipt of the Service Providers written instruction, the Service Provider reserves a right to terminate this Agreement in accordance with the provisions of clause 15.1.
16. TERMINATION AND BREACH
16.1Without derogation from the provisions contained in this Agreement, the Service Provider shall be entitled to terminate this Agreement with immediate effect upon written notice to the Affiliate in the event that:
16.1.1the Affiliate itself, or any of its Affiliates commits a breach of any of the terms and conditions of this Agreement and fails to remedy such breach to the satisfaction of the Service Provider within 14 (fourteen) days, or such other period as provided in this Agreement, of receipt of a written notice from the Service Provider specifying the nature of the breach and requiring its remedy; or
16.1.2the Affiliate itself, or any of the Affiliates commits a second or subsequent breach of this Agreement during the preceding 12 (twelve) months duration of this Agreement; or
16.1.3the Business is terminated for any reason whatsoever irrespective of whether such cancellation occurs by virtue of the fault of the Service Provider or not; or
16.1.4there is a change in management or ownership, in whole or in part, of the Affiliate or in any person, body or entity who has stood as surety for the obligations of the Affiliate to the Service Provider or if the Affiliate or any of its shareholders such person, body or entity is placed under provisional or final liquidation or under provisional or final receivership or judicial management, or business rescue, or if that party becomes insolvent or compromises or attempts to compromise with its creditors, or as a result of the death of any such person, body or entity; or
16.1.5the Affiliate, after the Effective Date, disposes of its business in whole or in part to any third party without the prior written consent of the Service Provider, which consent shall not be unreasonably withheld or delayed; or
16.1.610% (ten percent) of any of the Affiliates and/or Affiliate Customers fail to comply with any of the provisions of this Agreement at any one time.
16.2In the event that the Affiliate (including its trading divisions or subsidiaries) becomes a Competing Third Party or an entity with similar characteristics that directly or indirectly competes with the Service Provider and/or any entity within the Service Provider’s group of companies by, inter alia, providing similar or substantially the same products and/or services offered by the Service Provider and/or any entity within the Service Provider’s group of companies, the Service Provider reserves the right upon written notice to the Affiliate to terminate this Agreement with immediate effect.
16.3The Service Provider shall be entitled to terminate this Agreement on 30 (thirty) days written notice to the Affiliate, in the event that the Affiliate, or any of its subsidiaries, or trading divisions:
16.3.1changes its shareholding with the consequence that a third party (including but not limited to a Competing Third Party acquires more than an effective 15% (fifteen percent) shareholding or voting right in the Affiliate or any of its trading divisions or subsidiaries (directly or indirectly);
16.3.2change the majority or controlling shareholding or membership of the Affiliate without the prior written consent of the Service Provider which consent shall not be unreasonably withheld.
16.3.3dispose of its business (in whole or in part) without the Service Provider’s prior written consent which consent shall not be unreasonably withheld.
16.4The agreement shall automatically lapse should the Affiliate be in a negative Quarterly growth for four consecutive Quarters as provided for in clause 11.5.
17. CONSEQUENCES OF TERMINATION
17.1Termination of this Agreement for any reason whatsoever, shall be without prejudice to any other claims or remedies accrued by either Party prior to the date of termination.
17.2Upon termination of this Agreement for any reason whatsoever:
17.2.1the Affiliate shall immediately discontinue all promotion of the Business;
17.2.2all amounts owing by one Party to the other, by virtue of the provisions of this Agreement, shall become immediately due and payable;
17.2.3the Affiliate shall immediately cease to use or display any Trademarks and its Affiliates also immediately cease to do so if requested to do so by the Service Provider;
17.2.4the Affiliate shall forthwith hand over to the Service Provider or destroy at the Service Provider’s election and to the Service Provider’s satisfaction, all documentation of any nature whatsoever which is proprietary to the Service Provider and in the Affiliate’s possession pertaining to the subject matter of this Agreement, at the Affiliate’s own cost and if required to do so by the Service Provider, the Affiliate shall ensure that its Employees and Agents shall also immediately make such returns (if applicable);
17.2.5the Affiliate shall not actively target the Customers of the Service Provider, in whole or in part, by way of, inter alia, Customer offers, direct marketing or Customer campaigns, for a period of 12 (twelve) Months from the date of termination; and
17.2.6subject to the provisions of clause 17.3 below, the Affiliate shall cease forthwith to qualify for any Affiliate Ongoing Revenue, Quarterly Incentives and any other amounts to which it would otherwise have been entitled.
17.3The termination of this Agreement shall not affect those provisions which will survive after such termination or which, of necessity, must continue to have effect after such termination, notwithstanding that the clauses themselves do not expressly provide for this. This shall include any performance or observance by any Party which, was contemplated to survive any termination or expiration of this Agreement.
17.4The provisions of this clause 17 shall survive the termination of this Agreement.
18. DISPUTE RESOLUTION
18.1Save as is otherwise expressly provided in this Agreement, should any dispute arise between the Parties regarding the subject matter of this Agreement, the Parties and their legal representative shall promptly meet to consider whether they can resolve the dispute without referring it to arbitration.
18.2In the event that the Parties fail to resolve the dispute, the Parties shall refer the dispute to arbitration in the manner set out in this clause 18.
18.3The arbitrator shall be appointed by the Parties, and failing agreement, shall be nominated in accordance with Irish law requirements.
18.4The arbitration shall be held in Dublin (Ireland).
18.5The arbitration shall be held in accordance with Irish Law
18.6The arbitrator shall be entitled to:
18.6.1investigate or cause to be investigated any manner, fact or thing which he considers necessary or desirable in connection with any matter referred to him for decision;
18.6.2decide the matters submitted to him according to what he considers just and equitable in all the circumstances, having regard to the purpose of this Agreement; and
18.6.3make such award, including an award for specific performance, an interdict, damages or a penalty or the costs of arbitration or otherwise as he, in his discretion may deem fit and appropriate.
18.7The arbitration shall be held as quickly as possible after it is demanded, with a view to it being completed within 30 (thirty) days after it has been so demanded.
18.8This clause 18 is severable from the rest of this Agreement and shall therefore remain in effect even if this Agreement is terminated.
18.9This clause 18 shall not preclude any Party from obtaining an interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.
18.10The Parties hereby consent to the non-exclusive jurisdiction of the High Court of Ireland and the aforementioned court shall have jurisdiction to enforce an award made by an arbitrator in respect of the proceedings in this clause 18.
19. FORCE MAJEURE
19.1If any Party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement by reason of strike, lockout, fire, explosion, floods, riot, war, accident, acts of God, embargo, legislation, shortage of or a breakdown in transportation facilities, civil commotion, unrest or disturbances, cessation of labour, government interference, regulation or control, or any other cause or contingency beyond the control of that Party, such event shall be referred to as force majeure (“Force Majeure Event”)
19.2The Party so effected by the Force Majeure Event shall be relieved of its obligations hereunder during the period that such Force Majeure Event and its consequences continue but only to the extent so prevented and shall not be liable for any delay or failure on the performance of any obligations hereunder or loss or damages, either general, special or consequential which the other Party may suffer due to or resulting from such delay or failure, provided always that written notice shall forthwith be given of any such inability to perform by the effected Party.
19.3Any Party invoking force majeure shall, upon termination of such Force Majeure Event, giving rise thereto, forthwith give written notice thereof to the other Party. Should such Force Majeure Event continue for a period of more than 45 (forty five) days, then the effected Party shall be entitled forthwith to terminate this Agreement in respect of any obligations performed in terms of this Agreement, and will not be liable for any loss suffered by the other Party arising out of any delay in or prevention of performance of such Party’s obligations due to any cause, the adverse effects of which the Party could not and cannot reasonably and practicably avoid in the ordinary conduct of such Party’s business.
20. LIABILITY AND INDEMNITY
20.1The Service Provider shall not be liable for any loss, claim, action, expense, damage or injury suffered or sustained by the Affiliate whatsoever and howsoever arising pursuant to or as a result of Transactions (and ancillary services) referred to in this Agreement, whether direct or indirect, consequential or contingent and whether foreseeable or not. In particular, the Service Provider will not be liable for any loss of business, profit, savings, revenue, or goodwill suffered or sustained by the Affiliate howsoever arising.
20.2Save to the extent expressly provided in this Agreement, the Service Provider makes no warranties or representations whatsoever in respect of the Parcel Delivery Service and the Business in terms of this Agreement. All other statutory, express, implied or tacit terms and conditions or warranties are excluded (to the extent allowed by law).
20.3In case of breach by the Affiliate of legal regulations during the implementation of the campaigns, the Affiliate is solely responsible for such breach. If the Service Provider is required to provide monetary performance in connection with such unlawful activity of the Affiliate, the Service Provider shall be entitled to retain the Affiliate Ongoing Revenue and deduct any such monies, including the costs of legal representation.
20.4The Affiliate hereby indemnifies, holds harmless and absolves the Service Provider against any losses, claims, actions, expenses, damages or injuries suffered by the Service Provider (whether direct or indirect) of any nature whatsoever and howsoever arising.
20.5The Affiliate undertakes not to incur any liability on behalf of the Service Provider or to pledge or purport to pledge the Service Provider’s credit or to accept any order on behalf of the Service Provider or bind the Service Provider in any way, to give or make or purport to give or make any warranty or representation on behalf of the Service Provider, save to the extent expressly provided for in terms of this Agreement, or otherwise subject to the prior written authority of the Service Provider. The Affiliate shall further ensure that its Affiliates and/or the Affiliate Customers adhere to the provisions of this clause 20.4.
20.6The provisions of this clause 20 shall survive any termination of this Agreement for any reason.
21. MISCELLANEOUS MATTERS
21.1The Parties choose as their domicilia citandi et executandi for all purposes under this Agreement, whether in respect of court process, notices or other documents o communications of whatsoever nature (including the exercise of any option), their respective addresses set forth below:
21.1.1
in the case of the Service Provider to:
69 Esker Wood Drive
Lucan Co. Dublin
K78PX45
and shall be marked for the attention of the General Manager: Commercial Legal
21.1.2
in the case of the Affiliate to:
ADDRESS REGISTERED BY THE AFFILATE IN THE WEBSITE
Telephone: as per website registration
Email: as per website registration
and shall be marked for the attention of the Chief Executive Officer.
21.2Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing, but it shall be competent to give notice by e-mail.
21.3The Service Provider may by notice to the Affiliate change the physical address chosen as its domicilium citandi et executandi vis-à-vis to another physical address or its postal address of its fax number or e-mail address, provided that the change shall become effective vis-à-vis that addressee on the 7th (seventh) Business Day from the receipt of the notice by the addressee and in the case of the Affiliate upon it changing its details on the website
21.4Any notice to a Party –
21.4.1Sent by express courier services in a correctly addressed envelope to it at an address chosen as its domicilium citandi et executandi to which post is delivered shall be deemed to have been received on the 14th (fourteenth) Business Day after posting (unless the contrary is proved);
21.4.2Delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its domicilium citandi et executandi shall be deemed to have been received on the day of delivery; or
21.4.3Sent by e-mail to its chosen e-mail address or facsimile number stipulated above, shall be deemed to have been received on the date of despatch (unless the contrary is proved).
21.5Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was sent to or delivered at its chosen domicilium citandi et executandi.
21.6Non-Waiver
Any relaxation of any of the terms of the Agreement or any indulgence shown by any Party to the other shall in no way prejudice the rights of such Party and shall not be construed as a waiver or novation thereof.
21.7Severability of Contract
In the event of any provision of this Agreement being invalid, such provision shall be regarded as severable from the remainder of the Agreement, which remainder shall remain of full force and effect.
The Parties declare that it is their intention that this Agreement would be executed without such invalid, unenforceable or unlawful provision if they were aware of such invalidity, unenforceability or unlawfulness at the time of execution of this Agreement.
21.8Applicable Laws
Notwithstanding any express or implied provisions herein to the contrary, this Agreement shall in all respects be governed, interpreted and implemented according to the laws of Ireland.
21.9Cession and Assignment
The Affiliate shall not cede any of its rights nor delegate any of its obligations flowing from this Agreement without the prior written consent of the Service Provider, which consent shall be granted or withheld at the Service Provider’s discretion.
21.10The Service Provider shall be entitled to cede its rights or delegate its obligations flowing from this Agreement without the prior written consent of the Affiliate.
21.11Survival of Rights, Duties and Obligations
Termination of this Agreement for any cause shall not release a Party from any liability which at the time of termination has already accrued to such Party or which thereafter may accrue in respect of any act or omission prior to such termination.
21.12Jurisdiction
The Parties consent to the non-exclusive jurisdiction of Dublin Court, Ireland.
21.13Costs
21.13.1Each Party shall bear that Party’s own costs of and incidental to the negotiation, preparation, settling, signing and implementation of this Agreement.
21.13.2Any costs incurred by a Party arising out of the breach by another Party of any of the provisions of this Agreement shall be borne by the Party in breach on an attorney and own client scale.
21.14Remedies
No remedy conferred by this Agreement is intended to be exclusive of any other remedy which is otherwise available at law, by statute or otherwise. Each remedy shall be cumulative and in addition to every other remedy given hereunder or now or hereafter existing at law, by statute or otherwise. The election of any one or more remedy by any of the Parties shall not constitute a waiver by such Party of the right to pursue any other remedy.
21.15Relationship
21.15.1The relationship between the Parties shall be governed by the provisions of this Agreement and nothing contained in this Agreement shall be deemed to constitute an affiliateship or joint venture between them for any purpose. Neither Party is authorised to bind the other in any way or make or purport to make or give any undertaking or warranty on behalf of the other unless specifically provided for herein.
21.15.2The Parties shall not, by reason of the actions of the other Party, incur personal liability as a co-affiliate to any third party and no Party shall be entitled to authorise, represent or hold itself to any third party, that the relationship between the Parties is that of an affiliateship, joint venture or the like.
21.16Whole Agreement
This Agreement as read with the other documents referred to in this Agreement constitutes the entire agreement between the Parties.
21.17Non-Variation
Save as otherwise expressly provided for in this Agreement, no agreement to amend, add to or otherwise vary or waive any of the provisions of this Agreement or to cancel or terminate it shall be effective unless made in writing and duly signed by the Parties or on their behalf by their duly authorised agents.
21.18Counterparts
Notwithstanding anything to the contrary, this Agreement shall be capable of being executed in one or more counterparts, each of which will be deemed as original and all of which together will constitute one and the same document and in establishing proof of the signature thereof, it shall not be necessary to produce more than one signed original counterpart together with photocopies of the remaining signed counterparts.
21.19Supersession
Notwithstanding anything contained in this Agreement to contrary, with effect from the Effective Date, this Agreement shall supersede any prior agreements, whether oral or written entered into between the Parties. Without derogating from the generality of the aforegoing, all transactions, procedures, rights and obligations of the Parties in relation to, and shall henceforth be governed by the terms and conditions of this Agreement.