Little Sunshines

Au Pair Agency

Reseller Agent Affiliate Program Agreement

This Affiliate Partner Referrer Agreement is hereby entered into between

Little Sunshines
(LS)

AND

the Affiliate – the Entity / Person stipulated on the Reseller Agent Form upon submission thereof
(Affiliate)

 

RECITALS

  1. Little Sunshines (LS) a South African based entity which operates www.littlesunshines.co.za/training, an online education platform operating in the childcare industry.
  2. LS wishes to appoint the Affiliate as an Affiliate Partner to provide certain marketing services on behalf of LS and the Affiliate agrees to accept the appointment subject to the terms and conditions of this Agreement.
  3. The parties have agreed to enter into this Agreement to formally record the terms and conditions of the Affiliate’s appointment by LS.

OPERATIVE PART

1. Definitions and Interpretation

1.1. In the interpretation of this Agreement

  1. Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents or agreements as changed, novated or replaced, and words denoting one gender include all genders;
    Grammatical forms of defined words or phrases have corresponding meanings;
  2. Parties must perform their obligations on the dates and times fixed by reference to SAST time zone;
  3. Reference to an amount of money is a reference to the amount in ZAR (Rand);
  4. If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day;
  5. References to a party are intended to bind their executors, administrators and permitted transferees; and
  6. Obligations under this agreement affecting more than one party bind them jointly and each of them severally.

1.2. In this Agreement unless contrary intention appears:

  1. Agreement includes this ‘Agreement’ and any deed, contract, agreement, arrangement or understanding (as amended, varied or replaced from time to time) made between the parties;
  2. Business Day means any day other than a Saturday, Sunday or public holiday in South Africa;
  3. Affiliate means a legal person that partners with LS for the purposes of promoting the Little Sunshines Courses;
  4. Disclosing Party means the party providing confidential information to the Recipient;
  5. Eligible means students as permitted by the local regulatory framework;
  6. Execution Date means the date of the final signature to this agreement;
  7. A Student is someone who has enrolled for the course(s) using a unique affiliate referral link as an identifier, having agreed to the LS terms and conditions, and having been granted access to the portions of the Academy that require login using the email address and a password;
  8. Month means a calendar month;
  9. Academy means the online education platform through which Students enrol for appropriate courses, that operates behind a secure login for each student;
  10. Students means Eligible prospective students;
  11. Recipient means the party receiving confidential information from the Disclosing Party;
  12. Affiliate means the legal person referring others to the LS Academy;
  13. Fee means the amount due to the Affiliate upon final completion of a transaction by the Affiliate’s Student;
  14. Term means the period of operation of this Agreement;
  15. Week means a calendar week from Monday to Friday; and
  16. LS Affiliate Program System means the method provided by LS to digitally capture a Student signing up as a Student as having been referred by the Affiliate, including but not limited to website links, data storage, reporting systems and payment systems.

2. Term of Agreement

  1. This Agreement shall become effective as at the Execution Date and shall have no set termination date, unless terminated in accordance with this Agreement.

3. Referrer’s Services

  1. During the Term of this Agreement, the Affiliate shall undertake, where commercially reasonable, to use its best efforts to promote and refer Eligible prospective Students to the Academy.
  2. The Affiliate will actively draw a Student’s attention to the existence of the Academy and the general documentation or information in relation to the Academy as a digital education academy.
  3. The Affiliate will actively ensure that its representatives understand and comply with the terms of this Agreement and do not hold themselves out as being agents, employees or representatives of LS.
  4. The Affiliate will bear, and be responsible for, any expenses it incurs in the performance of its obligations under this Agreement.

4. Success Fee

  1. There is to be no retainer paid by LS to the Affiliate for the services provided under this Agreement.
  2. LS agrees to pay the Affiliate a Fee equivalent to 20% of the money received from a successful sale which came from the Affiliate’s UNIQUE Affiliate Referral Link
  3. In terms of this agreement, a Fee is only payable on the final completion of a transaction i.e. LS has received the full funds due from the Student into the bank account nominated by LS.
  4. It is agreed that the Affiliate must have used the UNIQUE Affiliate Link to register a Student under the name of the Affiliate when the Student signs up as a student, to ensure that the referral of the Student is duly credited to the Affiliate.
  5. If the Student is already a Student of the Academy prior to the referral, then the Student will not be considered as having been referred by the Affiliate, and no Fee will be due.
  6. It is recorded that each Student is identified by a unique email address which they will enter when submitting an enrolment form using the Affiliate’s UNIQUE Affiliate Link, and that the email address will be the identifier linked to the Affiliate.
  7. It is further recorded that in some Jurisdictions there are restrictions and student criteria that may lead to LS not allowing Students to enrol.
  8. The Fees will be paid by LS to the Affiliate at the end of the following month in which the Student paid.

5. Communication, Reporting and Review

  1. LS will be responsible for reporting to the Affiliate on all Fees due to the Affiliate for all enrolments paid for by the Student using the UNIQUE Affiliate’s Referral Link.
  2. The Affiliate is only able to request information about their own Students and all other Student information within LS and the Academy will remain confidential.

6. Indemnity

  1. In no event will either party be liable to the other for any indirect, special, incidental, or consequential losses or damages, including without limitation, loss of revenue, loss of customers or clients, loss of goodwill or loss of profits arising in any manner from this Agreement and the performance or non‐performance of its obligations hereunder.

7. Confidentiality

  1. A Party (Recipient) may only use confidential information of another party (Disclosing Party) for the purposes of this Agreement, and must keep the existence and the terms of this Agreement and any confidential information of the disclosing party confidential except where:
    1. The information is public knowledge (but not because of a breach of this agreement) or the Recipient has independently created the information;
    2. Disclosure is required by law or a regulatory body;
    3. Disclosure is made to a person who must know for the purposes of this agreement on the basis that the person keeps the information confidential.
  2. The parties acknowledge and agree that all information in relation to LS and the Affiliate business (including without limitation all information in relation to, customers and potential customers, marketing and promotion plans, artwork and samples) are confidential information and must be protected as such.
  3. If a Recipient is required by law or a regulatory body to disclose any confidential information of a disclosing party to a third person (including, but not limited to, government) the Recipient must, before doing so:
    1. Notify the Disclosing Party; and
    2. Give the Disclosing Party a reasonable opportunity to take any steps that the Disclosing Party considers necessary to protect the confidentiality of that information; and
    3. Notify the third person that the information is confidential information of the Disclosing Party.

8. Termination by Notice

  1. Either party may terminate this agreement by seven (7) days’ written notice to the other.
  2. Termination of this agreement under this clause will not remove the obligation of LS to pay any success fee due to the Affiliate under clause 4 for Students that have been registered by the Affiliate prior to the termination date, unless specifically authorised to cancel payment of the Fee in writing by the Affiliate.

9. Termination Without Notice

  1. LS may immediately terminate this agreement if the Affiliate:
    1. Commits any serious or persistent breach of this agreement which is in the reasonable opinion of LS incapable of rectification; or
    2. In the reasonable opinion of LS, the Affiliate is, or may be unable to, carry on promoting the LS courses.
  2. The Affiliate may immediately terminate this agreement by giving written notice to the LS if LS:
    1. Commits any serious or persistent breach of this agreement, which is in the reasonable opinion of the Affiliate incapable of rectification; or
    2. Commits any serious or persistent breach of this agreement which LS fails to remedy for one week after LS receives written notice from the Affiliate of that breach; or
    3. Fails to pay the Affiliate’s Fee by the due date.
  3. On termination of this agreement, LS is obliged to pay to the Affiliate the amount of any Fee pursuant to this Agreement, up to and including the date of termination.
  4. The termination of this Agreement will not prejudice any rights or remedies already accrued to any party under, or in respect of any breach of, this Agreement.

10. Relationship of the Parties

  1. LS appoints the Affiliate as an independent contractor.
  2. Nothing in this Agreement constitutes the Affiliate and LS as partners, joint venturers or as creating the relationship of employer and employee, master and servant or principal and agent between the parties.
  3. Neither LS nor the Affiliate has (nor may it represent that it has) any power, right or authority to bind the other, or to assume or create any obligation or responsibility, express or implied, on behalf of the other or in the other’s name.
  4. Subject to the terms of this Agreement, the parties acknowledge that the Affiliate is solely responsible for controlling the manner in which the Affiliate provides the services.
  5. The relationship between the parties is non-exclusive and LS may accept as many contracts from other Affiliates as LS sees fit.

11. Tax

  1. Unless otherwise expressly stated, any fees and other payments required to be made under this Agreement are deemed to be exclusive of Tax.
  2. The parties agree that each party shall be solely liable for their respective Tax liabilities.

12. Dispute Resolution

  1. General
    1. If a dispute arises out of or relates to this agreement, including any dispute as to breach or termination of the agreement or as to any claim in tort, in equity or pursuant to any statute, neither party may commence any court or arbitration proceedings relating to the dispute unless they have complied with this clause.
  2. Notice specifying the nature of the dispute
    1. The party to this agreement claiming that a dispute has arisen under or in relation to this agreement must give written notice to the other party to this agreement specifying the nature of the dispute.
    2. On receipt of the notice referred to in this clause by that party, both parties must endeavour to resolve the dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation, determination or similar techniques agreed by them.
  3. Mediation
    1. If the Affiliate and LS do not agree within seven (7) days of receipt of the notice, or such further period as agreed in writing by them, as to:
      1. The dispute resolution technique and procedures to be adopted;
      2. The timetable for all steps in those procedures; and
      3. The selection and compensation of the independent person required for such technique,then they must mediate the dispute in accordance with the mediation rules of the recognised professional association for attorneys in South Africa.
    2. The president of this professional association or the president’s nominee will select the mediator and determine the mediator’s remuneration.
  4. Proceedings
    1. If the mediation referred to above is not completed within four (4) weeks of reference to a mediator, then either party may commence any court or arbitration proceedings relating to the dispute as they see fit.
  5. Associated costs
    1. The costs of the mediation will be borne equally by the parties.

13. Entire Agreement

  1. This Agreement contains all the contractual arrangements of the parties with respect to the items to which it relates and supersedes all earlier conduct (including any agreements in relation thereto) by the parties with respect to those items.

14. Governing Law

  1. This Agreement is governed by the laws of South Africa. The parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction there.

15. Counterparts

  1. This Agreement may be executed in any number of counterparts. All counterparts taken together shall be taken to constitute one agreement.
  2. The parties agree that a facsimile copy of a counterpart received from a party shall be regarded as, and deemed to be, an original copy of that counterpart received from that party.

16. Survival

  1. Any indemnity or any obligation of confidence under this Agreement is independent and survives termination of this Agreement.
  2. Any other term by its nature intended to survive termination of this Agreement survives termination of this Agreement.

17. Waivers

  1. A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy.
  2. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy.
  3. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.

18. Email Form

  1. Both parties acknowledge that the original of this Agreement may be in email form and agree to accept the email as an original which is binding on the parties.

19. Electronic Transactions

  1. The parties acknowledge that their representatives may communicate utilising electronic communication.
  2. The parties acknowledge the method of determining the time and place of dispatch and receipt shall be determined pursuant to standard law in South Africa.

20. Notices

  1. Method of giving notices;
    1. A notice, consent, approval or other communication (each a ‘notice’) under this Agreement must be transmitted by email to that person’s address.
  2. Address of parties
    1. LS – training@littlesunshines.co.za (unless otherwise updated to another email address during the course of the Agreement and/or thereafter which is expressly detailed in writing to the other party).
    2. The Affiliate – the email address stipulated on their Reseller Agent Form (unless otherwise updated to another email address during the course of the Agreement and/or thereafter which is expressly detailed in writing to the other party).

21. General

  1. Once the Affiliate engages in the Affiliate services of LS, and commences referring Students, the Affiliate will automatically be bound to this Agreement and the terms stipulated therein, regardless of whether actual signature of the document has occurred.
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