READ THESE PARTNER TERMS AND CONDITIONS CAREFULLY BEFORE AGREEING TO PARTNER WITH WAMLY. ACCEPTANCE OF THE PARTNER TERMS AND CONDITIONS INDICATES THAT YOU HAVE BOTH READ AND ACCEPTED THESE PARTNER TERMS AND CONDITIONS. YOU CAN NOT PARTNER WITH WAMLY IF YOU DO NOT ACCEPT THE PARTNER TERMS AND CONDITIONS. ALL SECTIONS OF THE PARTNER TERMS AND CONDITIONS ARE APPLICABLE TO A PARTNER.
1.1. Wamly is a video interview product, technology and consulting firm that has created and developed certain Products and Services.
1.2. The Partner desires to be engaged by Wamly as an independent contractor to integrate Wamly Products and Services into its business and to use, market, sell and advertise Wamly Products under and subject to these Partner Terms and Conditions.
1.3. Wamly has catered for two variations of the Partner Program as set out in the Registration Form. A Partner shall select either one of the two Partner Programs offered by Wamly.
1.4. Wamly looks forward to having the Partner on the Partner Program.
1.5. The Parties acknowledge and agree that they will use reasonable efforts to achieve the purpose of these Partner Terms and Conditions, and act in accordance with these Partner Terms and Conditions.
1.6. Wamly and the Partner have reached agreement on the manner in which the Products and Services will be regulated, which are recorded in these Partner Terms and Conditions read together with the Registration Form. The Partner agrees to be bound by these Partner Terms and Conditions read together with the Registration Form.
1.7. By agreeing to these Partner Terms and Conditions, the Partner acknowledges that it has read through, understands, and as such, agrees to be bound by:
1.7.1. Wamly’s Standard Terms and Conditions, in so far as they relate to a Browser, located here: https://wamly.io/terms-and-conditions/; and
2. HIERARCHY OF DOCUMENTS
2.1. These Partner Terms and Conditions and the Standard Terms and Conditions (South Africa) as shown on Wamly’s Website (www.wamly.io), under the heading “Terms of Service” and as amended from time to time, form the entire Terms and Conditions between Wamly and Partner. A copy of the current Standard Terms and Conditions are shown on Wamly’s Website (www.wamly.io). Should there be any points of conflict between the Standard Terms and Conditions and these Partner Terms and Conditions, these Partner Terms and Conditions shall override the other standard Terms and Conditions to the extent of such inconsistency should the subject matter specifically pertain to a matter herein.
3. INTERPRETING THE PARTNER TERMS AND CONDITIONS
3.1. These Partner Terms and Conditions contain a number of words and phrases which have specific meanings denoted by such words being capitalised.
3.2. In these Partner Terms and Conditions, headings are for convenience only and are not intended to be used to interpret these Partner Terms and Conditions.
3.3. If these Partner Terms and Conditions refer to a party who is liquidated or sequestrated (or has been through a comparable process under a different legal system), then these Partner Terms and Conditions will also be applicable to, and binding on, that party’s liquidator or trustee, as the case may be.
3.4. Unless these Partner Terms and Conditions indicate to the contrary, any references to any gender includes the other gender, a natural person includes an artificial person and vice versa, the singular includes the plural and vice versa.
3.5. The contra proferentem rule, or rule of construction that these Partner Terms and Conditions shall be interpreted against the Party responsible for the drafting or preparation of these Partner Terms and Conditions, shall not apply.
3.6. Where in these Partner Terms and Conditions, provision is made for the Parties (or either of them) to agree on or grant approval in respect of any matter, such agreement or approval shall only be valid and binding on the Parties thereto if reduced to writing and signed by the duly authorised representative of such Parties.
3.7. The use of the word “including” followed by a specific example shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example.
3.8. Where these Partner Terms and Conditions specify any number of days, the number of days excludes the first day and includes the last day, unless the last day falls on a Saturday, Sunday or gazetted public holiday in the Republic of South Africa, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or gazetted public holiday in the Republic of South Africa. Generally speaking, references to a “day” are references to typical business days.
3.9. All amendments to these Partner Terms and Conditions form an integral part of these Partner Terms and Conditions and, therefore, Wamly’s agreement with the Partner.
3.10. The words and phrases in the definitions sections, below, bear the meanings assigned to them and related expressions bear corresponding meanings.
4.1. “Associated Company” shall mean any company that is a holding company or a subsidiary of Wamly;
4.2. “Browser” shall mean any person who visits any page of the Website, whether by landing at the home page or any other page through use of a hyperlink of another website or by direct access to the Website and who has no intention of using, or has not used the Services offered by us;
4.3. “Candidate” shall mean a person who may be interviewed by a Subscriber using Wamly’s software application;
4.4. “Certified Staff Member” shall mean the Partner, and/or employee of the Partner who successfully completes the online Wamly assessment (according to the assigned minimum in place at the time of completing the assessment);
4.5. “Champion” shall mean the Partner, and/or employee(s) of the Partner who is/are nominated to complete the online Wamly assessment;
4.6. “Client” shall mean the clients of the Partner to which the Products are resold;
4.7. “Commencement Date” shall mean the date upon which these Partner Terms and Conditions shall come into effect as recorded in in the Registration Form;
4.8. “End User Subscription” shall mean any Wamly subscription offering as made available on Wamly.io;
4.9. “Interruption Event” shall mean an act of God, or public enemy, fire, explosion, earthquake, flood, storm or other adverse weather conditions, war declared or undeclared, civil war, revolution, civil commotion or other civil strike, riot strikes, blockade, embargo, sanctions, epidemic, pandemic, act of government or other authority, compliance with government orders, demands or regulations or any circumstances of like or different nature beyond the reasonable control of the Party so failing (force majeure), will not be deemed to be a breach of these Partner Terms and Conditions, nor will it subject either Party to any liability to the other;
4.10. “Net Sales” shall include any amount paid by either the Partner or their Client, and received by Wamly, in respect of the End User Subscription, and is excluding any related VAT, credit notes and/or discounts;
4.11. “Net New Sales” shall include in respect of Wamly End User Subscriptions, any amount paid by either the Partner or their Client, and received by Wamly, in respect of new Clients who have not been an active Client of Wamly during the preceding 12 (twelve) months, and is excluding any related VAT, credit notes and/or discounts;
4.12. “Parties” shall mean Wamly and the Partner and “Party” shall mean either one of them as the context infers;
4.13. “Partner” shall mean a Browser who successfully completes the Registration Process in the Registration Form to join the Partner Program, and portions of the General Terms and Conditions which apply to Browsers shall apply to the Partner;
4.14. “Partner Program” shall mean the partner program as selected by a Partner through the Registration Process in the Registration Form;
4.15. “Partner Terms and Conditions” shall mean these Partner Terms and Conditions as well as any amendments to these Partner Terms and Conditions from time to time together with the agreements as recorded in clause 2.1 above;
4.16. “Product(s)” shall mean any and all product(s) as sold by Wamly from time to time;
4.17. “Registration Form” shall mean the document situate on the Website, which shall be completed by the Partner and which document records certain details relating to the Partner together with information pertinent to these Partner Terms and Conditions insofar as each Partner is concerned, and shall govern the Partner’s relationship with Wamly;
4.18. “Registration Process” shall mean the process to be followed by a Partner in completing the Registration Form, in order to make use of the Partner Program, which shall enable it to make use of the Products and Services and thus make the transition from a Browser to a Partner;
4.19. “Service(s)” shall mean the services provided by Wamly in respect of or relating to any of the Products;
4.20. “Standard Terms and Conditions” means the terms and conditions as shown on Wamly’s Website (www.wamly.io), under the heading “Terms of Service” and as amended from time to time;
4.21. “Subscriber” shall mean a Browser on the Website who has signed up as a client for the Services as recorded in the Registration Form;
4.22. “Wamly” shall mean Wamly (Pty) Ltd , a private company, duly registered in accordance with the company laws of the Republic of South Africa, with Registration Number: 2019/233155/07, and carrying on business at 356 Rivonia Boulevard, Edenburg, Sandton, Gauteng, 2128 , firstname.lastname@example.org;
4.23. “Website” shall mean the website as owned by Wamly on which the Services are offered;
4.24. “Year 1” shall mean, for the purpose of the Partner Program, the period from the Commencement Date to the first occurrence of the 28th February thereafter; and
4.25. “Year 2” shall mean, for the purpose of the Partner Program, a 12 (twelve) month period commencing on 1st March following on from 28th February as referred to in paragraph 4.21 above.
To the extent that the same term has been defined with a different meaning in another applicable agreement as set out in clause 2.1 above, the defined term shall carry the meaning in that agreement only.
5.1. It is expressly agreed that nothing in these Partner Terms and Conditions shall be construed as creating a joint venture, employer / employee relationship, partnership, or agency. The Partner is not an employee of Wamly and any termination of these Partner Terms and Conditions for whatsoever reason, shall not constitute unfair dismissal nor shall the Partner be entitled to payment of any redundancy or other compensatory payment on the occurrence of same.
5.2. It is expressly agreed that the relationship between Wamly and the Partner shall be that of independent contractors.
5.3. Neither Party shall have the power to bind or obligate the other except to the extent described in these Partner Terms and Conditions or mutually agreed and authorised in writing.
5.4. The Partner will not hold itself out to third parties as a joint venture, employee, or Associate Company of Wamly except as may be specifically described in these Partner Terms and Conditions.
5.5. The Parties acknowledge that although the Parties both enter into these Partner Terms and Conditions as independent Parties, Wamly may be required by law to deduct tax and other government levies from rebates due to the Partner, but this shall in no way alter the relationship between the Parties.
5.6. These Partner Terms and Conditions do not constitute either of the Parties an agent or legal representative of the other for any purposes whatsoever and neither of the Parties shall be entitled to act on behalf of, or to represent the other unless duly authorised in writing.
6. GRANT AND NATURE OF PARTNER STATUS
6.1. Wamly shall assess the Partner against the qualification criteria set out on https://wamly.io/partners/ and will then award the Partner, in Wamly’s sole and absolute discretion, the status of either a Business Partner or a HR Partner.
6.2. All Partners will be awarded an entry status of Gold Partner on acceptance of these Partner Terms and Conditions.
6.3. Wamly shall have the sole and unfettered right to amend and/or change the status of the Partner in the event that the Partner fails to comply with the terms and conditions of these Partner Terms and Conditions or any accreditation standards set by Wamly.
6.4. Wamly shall have the right, at its sole instance, to change the qualification criteria from time to time, and at any time, on 90 (ninety) days written notice to the Partner.
7. COMMENCEMENT AND DURATION
7.1. These Partner Terms and Conditions shall commence on the Commencement Date and endure until terminated under the provisions of clause 8 below.
8.1. Once the applicable program entry criteria as set out in clause 10 below have been met, these Partner Terms and Conditions will remain in force until superseded or terminated by either Party.
8.2. Wamly shall have the right to terminate these Partner Terms and Conditions with immediate effect and without prejudice to any other rights and remedies which it may have, upon the occurrence of any one or more of the following events:
8.2.1. if the Partner defaults in the performance of any of its obligations provided for in these Partner Terms and Conditions; and
8.2.2. if the Partner fails to make any payment due to Wamly on or before the due date or within 7 (seven) days thereafter.
8.3. Notwithstanding the aforegoing, either Party may terminate these Partner Terms and Conditions, for any reason or no reason, on 30 (thirty) days’ notice to the other Party.
8.4. Notice of termination by either Party should be given in writing to the other Party.
9. INTERRUPTION EVENT
9.1. Should either Party be prevented from carrying out its contractual obligations by an Interruption Event lasting continuously for a period of 15 (fifteen) days, the Parties will consult with each other regarding the future implementation of these Partner Terms and Conditions. If no mutually acceptable arrangement is arrived at within a period of 15 (fifteen) days thereafter, either Party will be entitled to terminate these Partner Terms and Conditions forthwith on written notice.
10. PARTNER PROGRAM TERMS
10.1.1. For either Partner Program, the Partner agrees to the following Partner Program qualification criteria:
10.1.1.1. assign a Champion within his/her business, who, within 90 (ninety) days of accepting these Partner Terms and Conditions, will successfully complete the online Wamly Partner assessment (by achieving a minimum mark of 75% (seventy five percent)); and
10.1.1.2. use its best endeavours to preserve and promote Wamly’s goodwill and reputation.
10.1.1.3. avoid any activity detrimental to Wamly’s interests, reputation, and goodwill.
10.1.2. The Partner agrees to the following Partner Program re-qualification criteria:
10.1.2.1. maintain an active Wamly account;
10.1.2.2. have at least one Wamly Certified Staff Member employed;
10.1.2.3. actively promote Wamly products to their Clients;
10.1.2.4. offer Clients value added services that feature and include Wamly products;
10.1.2.5. use best endeavours to preserve and promote Wamly’s goodwill and reputation;
10.1.2.6. avoid any activity detrimental to Wamly’s interests, reputation, and goodwill; and
10.1.2.7. achieve a Partner Program status of at least Referral from Year 2 on the Partner Program onwards.
10.1.3. If the Partner selects to be an HR Partner through the Registration Process in the Registration Form, then the Partner also agrees to the following Partner Program qualification criteria:
10.1.3.1. that the Partner is an organisation practicing organisational HR and management consultancy, employee selection and development, and/or coaching and consultation to facilitate individual or organisational effectiveness.
10.2. On qualification and re-qualification Wamly agrees that:
10.2.1. The Partner will be provided access to the Wamly software application in accordance with the https://wamly.io/partners/ and subject to the Service Level Terms and Conditions.
10.2.2. The Partner will receive Wamly Partner status.
10.2.3. The Partner will qualify to earn rebates on net sales from “linked” Clients (where applicable) as per their Partner status set out on https://wamly.io/partners/.
11. REBATE STRUCTURE AND PARTNER PROGRAM STATUS
11.1. As a Partner of the Partner Program, a Partner shall be eligible to receive rebates on sales from “linked Clients” as defined in clause 12 below.
12. LINKED CLIENTS
12.1. A Client is considered a “linked Client” only when the Client registers for a Wamly account by using the Partner’s unique partner code (which will be given to the Partner by Wamly).
12.2. For the purposes of this Partner Program:
12.2.1. the onus is on the Partner to ensure that both the Partner and its Clients engage in the correct and accurate use of the unique partner code. Wamly will not be held responsible for administrative errors arising from the incorrect use of the partner code which originates on the Partner or his/her Client’s side, nor will Wamly be obligated to correct such errors in the instance that they occur.
12.2.2. No rebates will be payable by Wamly in the event that the Client is not linked in accordance with the processes outlined in this clause 12.
13. REBATES PERCENTAGES
13.1. Rebates will be paid as follows:
|Partner Program status||Net New Sales targets p.a. (ZAR)||Rebate %|
|Platinum||> 600 000||25%|
|Gold||300 001 – 600 00 0||20%|
|Silver||150 001 – 300 00 0||15%|
|Referral||1 – 150 000||5%|
14. PARTNER PROGRAM STATUS
14.1. Partner Program status is assessed bi-annually, on 28 February and 31 August. The assessment is based on net new sales for the preceding calendar year, or part thereof. If the Partner attains the annual net new sales requirement as at 28 February, based on the net sales for the preceding calendar year, the Partner will be awarded the relevant status. As at 31 August, the Partner’s status will be re-assessed based on the net sales for the preceding calendar year, and the relevant status change will apply.
14.2. In the instance where the assessed period is a part year, the annualised net new sales value for that period will be considered for the purposes of determining Partner Program status (for the purposes of annualising the part year net new sales value, net new sales amounts attributable to annual subscriptions are already considered annualised).
14.3. Any changes to Partner Program status as at 28 February will be effective as from 1 April and Partner Program status as at 31 August will be effective from 1 October.
14.4. The Partner’s status at the time of assessment is used to determine rebates for the forthcoming 6 (six) month period. Rebates due to the Partner are determined by applying the rebate percentage aligned to the Partner’s assessed Partner Program status to the Net Sales value attributable to the Partner over this forthcoming 6 (six) month period.
14.5. The Partner is first assessed for re-qualification on this Partner Program at the end of Year 1 (one) on this Partner Program. At any point of the Partner Program status assessment, re qualification is determined with reference to the preceding calendar year, or part thereof, at the time of assessment.
14.6. In the event that, subsequent to meeting the entry criteria in these Partner Terms and Conditions, the Partner fails to meet any or all of the re-qualification criteria agreed to by the Partner in these Partner Terms and Conditions, then these Partner Terms and Conditions may be terminated at the sole discretion of Wamly.
15. PAYMENT OF REBATES
15.1. Rebates to be paid to the Partner shall be calculated as set out in clause 13.1 above.
15.2. 30 (thirty) days after receiving the payment from linked Clients as calculated above, rebates will be credited to the Partner’s account. Should payment not be received from a linked Client, then no rebate shall be credited to the Partner’s account therefor.
15.3. Any credits will be offset by amounts owing by the Partner to Wamly, at Wamly’s reasonable discretion;
15.4. The balance of the rebates will be paid to the Partner upon request, and via EFT into the Partner’s bank account as stated on the Partner’s invoice.
16. MARKETING AND SUPPORT
16.1. Wamly shall, in good faith and to the best of its ability, support the Partner in the sale, promotion, marketing and delivery (including second level support) of Products appropriate for the needs of the Partner and its Clients.
16.2. Where applicable, and at Wamly’s discretion, Wamly will provide the Partner with marketing materials and/or, at its discretion, accompany the Partner to the Client to introduce or sell Products and/or Services.
16.3. All advertising and promotional literature shall be consistent with Wamly branding and product descriptions.
16.4. The Partner shall observe all directions and instructions given by Wamly for promotion and advertisement of the products and not make any written statement as to the quality or suitability of Wamly without prior approval of Wamly.
16.5. The Partner shall ensure that any website that it uses for the promotion of Wamly products complies with the quality standards and criteria set by Wamly from time to time.
16.6. The Partner should recognise the proprietary rights of Wamly and should not describe any of the Products of Wamly as the Partner’s products.
17.1. Neither Party will, during these Partner Terms and Conditions and for a period of 1 (one) year immediately following termination of these Partner Terms and Conditions, either directly or indirectly, recruit any of the other party’s employees, agents, suppliers, contracts or staff for the purpose of any outside business.
18. CONFIDENTIAL INFORMATION, COPYRIGHT, DESIGN AND PATENTS
18.1. The Parties mutually agree not to disclose or communicate, in any manner, either during or after these Partner Terms and Conditions, information about either organisations, its operations, clients or any other information, that relates to the business including, but not limited to, the names of its clients, its marketing strategies, operations, or any other information of any kind which would be deemed confidential, a trade secret, a client list, or other form of proprietary information of the organisation. The parties acknowledge that the above information is material and confidential and that it affects the profitability of both Parties.
18.2. This clause will remain in effect even after the termination of these Partner Terms and Conditions.
18.3. After the termination of these Partner Terms and Conditions, the Partner will not use the name of either Wamly or any Associated Company in connection with their own or other name, calculated to suggest that the Partner is connected with Wamly or any Associated Company.
18.4. All Intellectual Property Rights belonging to a Party prior to the execution of these Partner Terms and Conditions shall remain vested in that Party.
18.5. None of the Intellectual Property Rights in Wamly or Partner trademarks and brands shall be used by either Party for any purpose otherwise than in terms of these Partner Terms and Conditions without the prior written consent of the other.
18.6. Where there are modifications to pre-existing material that are inseparable from the pre-existing material, then the Party that owns the pre-existing material will own the modifications.
19. NOTICES AND DOMICILIUM
19.1. The Parties choose as their respective domicilium citandi et executandi for the purpose of legal proceedings and for the purpose of giving or sending any notice provided for or necessary of these Partner Terms and Conditions, the following:
19.1.1. Wamly: As per clause 4.18 above; and
19.1.2. the Partner: As set out through the Registration Process in the Registration Form.
19.2. Any Party hereto shall be entitled to change its domicilium from time to time, provided that any new domicilium selected by it shall be an address other than a box number, and shall be in the Republic of South Africa, and any such change shall only be effective upon receipt of notice in writing by the other Party of such change.
19.3. All notices, demands, communications or payments intended for any Party shall be made or given at such Party’s domicilium for the time being.
19.4. A notice sent by one Party to another Party shall be deemed to be received:
19.4.1. on the same day, if delivered by hand;
19.4.2. one day after transmission if sent by email; and
19.4.3. on the third day after despatch, if sent by prepaid courier.
19.5. If any notice is sent by email, the provisions of the Electronic Communications and Transactions Act 25 of 2002 governing receipt of data messages, shall apply.
19.6. Notwithstanding 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 not sent to or delivered at its chosen domicilium citandi et executandi.
20. DISPUTE RESOLUTION
20.1. In the event of any dispute or difference arising between the Parties relating to or arising out of these Partner Terms and Conditions, including the implementation, execution, interpretation, rectification, termination or cancellation of these Partner Terms and Conditions, shall require the chief executive officers of the Parties or any of their designated officials to use their best endeavours to resolve the dispute informally within 7 (seven) days of the dispute having been raised in writing.
20.2. If either Party provides written notification to the other that such attempt has failed then each Party shall attempt to agree upon the appointment of a suitably qualified mediator, within 7 (seven) days of such dispute being referred.
20.3. If agreement is not reached as to the appointment of such mediator within 7 (seven) days after either Party has in writing called for the appointment of a mediator, or where an appointment has been agreed upon and such mediator is not able to mediate a resolution of such dispute within 30 (thirty) days after such appointment then any Party may give written notice to the other Parties referring the dispute to arbitration in accordance with the provisions of this clause 20 (“Arbitration Notice”).
20.4. If the dispute cannot be resolved in accordance with the aforegoing, the dispute shall be finally resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa (AFSA) by an arbitrator or arbitrators appointed by the Foundation.
20.5. Either Party may demand that a dispute be referred to arbitration by giving written notice to that effect to the other Party. This clause shall not preclude either Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.
20.6. The arbitration referred to in clause 20.5 above shall be held:
20.6.1. within the jurisdiction set out in the Registration Form or other venue agreed by the Parties in writing;
20.6.2. in English; and
20.6.3. immediately and with a view to its being completed within 21 (twenty one) days after it is demanded.
20.7. The Parties irrevocably agree that the decision in any arbitration proceedings:
20.7.1. will be binding on all of them;
20.7.2. will forthwith be carried into effect;
20.7.3. may be made an order of any court of competent jurisdiction.
20.8. Nothing herein contained shall be deemed to prevent or prohibit either Party from applying to the appropriate court for urgent relief.
20.9. The provisions of this clause will continue to be binding on the Parties notwithstanding any termination or cancellation of these Partner Terms and Conditions.
21.1. These Partner Terms and Conditions and all disputes arising out of or in connection with these Partner Terms and Conditions are subject to South African Law and the jurisdiction of the courts of the Republic of South Africa.
21.2. These Partner Terms and Conditions and the obligations arising thereof cannot be transferred to third parties without the prior written consent of the other Party.
21.3. Any amendment, alteration, or modification of these Partner Terms and Conditions must be in writing.
21.4. If any provision or any part of any provision of these Partner Terms and Conditions is held to be invalid or unenforceable, then this shall not affect the remainder of that provision or of these Partner Terms and Conditions.
21.5. Unless otherwise indicated, all amounts or fees referred to in these Partner Terms and Conditions are expressed and payable in South African Rand (ZAR).