1.1 Ecigus has launched its educational software under the brand name IRainbow. IRainbow Software provides a unique learning experience for children by allowing them to learn at their own pace; anywhere and anytime.
1.2 To encourage and incentivise registered users of the IRainbow Software to refer new users to subscribe for the IRainbow Software, Ecigus has introduced a commission fee program that will allow those users of the IRainbow Software who (i) signs up for the IRainbow Referral Program and (ii) successfully refer new subscribers to Ecigus, to earn a commission fee in return for each Positive Referral.
1.3 This Agreement will commence on the Signature Date and will terminate upon termination of the IRainbow Referral Program unless otherwise terminated in accordance with its terms.
1.4 The Parties wish to enter into this Agreement to record the terms and conditions governing the provisions of this clause 1.
2. PROCUREMENT OF POSITIVE REFERRALS aND EARNING OF COMMISSION
2.1 By entering into this Agreement, the Referral Partner is not obligated to procure potential subscribers, rather it is a voluntary referral exercise, and in doing so the Referral Partner may be entitled to receive Commissions should they refer Positive Referrals.
2.2 Subject to clause 2.5, in referring a potential subscriber, the Referral Partner must introduce that potential subscriber to Ecigus and the IRainbow Software by using its Promotion Code. The use of the Promotion Code will entitle (i) potential subscribers to a 10% discount on their recurring subscription fees and (ii) the Referral Partner to a 10% commission on the monthly or annual subscription fees (excluding VAT payable in respect of such subscription fees) paid by such subscribers to Ecigus in respect of their IRainbow Software subscriptions from time to time.
2.3 Should a potential subscriber (as contemplated in clause 2.2) convert to a Positive Referral, Ecigus will inform the Referral Partner, by way of an email notification, as soon as possible following the conversion, of the amount of the applicable Commission that will become due to the Referral Partner from time to time and the intervals when the applicable Commission is expected to be paid by Ecigus to the Referral Partner (being either monthly or annually depending on the subscription model elected by the Positive Referral).
2.4 Notwithstanding anything to the contrary contained in this Agreement, Ecigus shall not be obliged to effect or permit any payment of any Commission to the Referral Partner unless, at the time such Commission becomes payable by Ecigus in accordance with the terms of this Agreement:
2.4.1 the Referral Partner is an active subscriber;
2.4.2 all subscription fees due and payable by the Referral Partner to Ecigus in connection with its subscription of the IRainbow Software have been timeously paid;
2.4.3 the subscription fees due and payable by the applicable Positive Referral to Ecigus in respect of which such Commission is payable by Ecigus, has been received in Ecigus’ designated bank account; and
2.4.4 the Referral Partner complies with the IRainbow Terms.
2.5 If the Referral Partner was at any time an employee of Ecigus, it is specifically recorded that the Referral Partner shall not be entitled to any commissions or other remuneration in connection with any subscription fees payable by any registered users that subscribed for the IRainbow Software during the period in which the Referral Partner was employed by Ecigus. Only Positive Referrals converted after the termination of employment of the Referral Partner will be eligible for purposes of this Agreement.
3. PAYMENT OF COMMISSION
3.1 Ecigus will make payment of Commissions to the Referral Partner against receipt of the applicable subscription fees from Positive Referrals in respect of which such Commissions are payable, by no later than the Payment Date:
3.1.1 by way of electronic funds transfer, at Gauteng;
3.1.2 without set-off or deduction of any kind; and
3.1.3 into the Referral Partner’s bank account, the details of which are on record with Ecigus.
3.2 Commissions are paid in South African Rands and are subject to all applicable taxes as required by applicable law. The Referral Partner shall be sole responsible for any and all taxes imposed or incurred in connection with the Commissions. The Referral Partner agrees to complete and provide any and all tax documentation reasonably requested by Ecigus to comply with any tax reporting obligations.
Ecigus may terminate the IRainbow Referral Program, for any reason whatsoever, by giving the Referral Partner nighty (90) days’ notice of such intention.
5. LIMITATION OF LIABILITY
To the extent permitted by applicable law, Ecigus shall not be liable to the Referral Partner for any direct damages howsoever arising and neither Party shall be liable to the other for any special, indirect, incidental, consequential or punitive damages arising out of or relating to this Agreement or the IRainbow Referral Program, whether resulting from negligence, breach or any other cause. To the extent that a competent court or tribunal finally determines, notwithstanding the limitation contained in this clause 5, that Ecigus is liable to the Referral Partner for any damages, Ecigus’ liability to the Referral Partner for any damages howsoever arising shall be limited to the subscription fees actually paid by the Referral Partner in connection with its subscription for the IRainbow Software during the immediately preceding 6 (six) month period.
6. ADDRESS FOR SERVICE
6.1 The Parties choose the addresses recorded on the cover page of this Agreement as their address for service for all purposes under this Agreement. Any Party may by notice to any other Party, change the physical address chosen as its address for service or its postal address or its e-mail address, provided that the change shall become effective on the 7th (seventh) Business Day from the receipt of the notice by the addressee.
6.2 Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing, which shall include giving notice by email. Regardless of anything to the contrary set out in this clause, a written notice or communication actually received by a Party shall be an adequate written notice or communication to it even though it was not sent to or delivered at its chosen address.
6.3 Any notice to a Party:
6.3.1 sent by prepaid registered post shall be deemed to have been received on the 7th (seventh) Business Day after posting (unless the contrary is proved);
6.3.2 delivered by hand to a responsible person during ordinary business hours at the chosen physical address shall be deemed to have been received on the day of delivery; or
6.3.3 sent by email to its chosen e-mail address shall be deemed to have been received on the date of sending (unless the contrary is proved).
The Parties agree that neither Party is a partner or agent of the other Party, nor will either Party have any right, power, or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. The Parties further agree that this Agreement will not be interpreted or construed to create an association, joint venture, or partnership between them or to impose any liability attributable to such a relationship upon either Party.
If any Party breaches any material provision or term of this Agreement (other than those which contain their own remedies or limit the remedies in the event of a breach thereof) and fails to remedy such breach within 14 (fourteen) days of receipt of written notice requiring it to do so, then the aggrieved Party shall be entitled without notice, in addition to any other remedy available to it at law (including cancellation or termination) or under this Agreement, including obtaining an interdict, to claim specific performance of any obligation whether or not the due date for performance has arrived, without prejudice to the aggrieved Party’s right to claim damages or to terminate this Agreement with immediate effect.
9.1 Should any dispute, disagreement or claim which arises in regard to this Agreement or out of or pursuant to this Agreement (other than where an interdict is sought or urgent relief may be obtained from a court of competent jurisdiction) (“dispute“) arise between the Parties, the Parties shall use their respective best endeavours to resolve such dispute by way of negotiation between themselves. The Party alleging the dispute will be required to invite the other Party, in writing, to a mutually agreeable meeting venue and time and the Parties must attempt to resolve the dispute within 7 (seven) days from the date of that written notice.
9.2 If the Parties are unable to resolve the dispute by way of negotiation within the stipulated timeframe in clause 7.1, the dispute shall be submitted to mediation by one or both of the Parties. The mediation and the appointment of the mediator will be governed by and in accordance with the Arbitration Foundation of South Africa’s (“AFSA“) Mediation Rules.
9.3 If the Parties are still unable to resolve the dispute by way of mediation and other than in respect of those provisions of the Agreement which provide for their own remedies which would be incompatible with arbitration, the dispute (if arbitral by law) must be submitted to and decided by arbitration (other than where an interdict is sought or urgent relief may be obtained from a court of competent jurisdiction) and shall be subject to AFSA’s Commercial Rules or such other arbitration legislation for the time being in force in South Africa.
9.4 It is the intention that the arbitration shall be held in Johannesburg with only the Parties and their representatives present and, where possible, be held and concluded in 21 (twenty one) Business Days after it has been demanded. The Parties shall use their best endeavours to procure the expeditious completion of the arbitration.
9.5 The arbitrator shall be an impartial admitted attorney, whether practising or non-practising, of not less than 10 (ten) years’ standing appointed by the Parties or, failing agreement by the Parties within 14 (fourteen) days after the arbitration has been demanded, at the request of any of the Parties shall be nominated by the Chairperson for the time being of the Gauteng Provincial Council (or such other Provincial Council as may be appropriate) established under the Legal Practice Council following which the Parties shall immediately appoint such person as the arbitrator. If that person fails or refuses to make the nomination, any Party may approach the High Court of South Africa to make such an appointment. To the extent necessary, the court is expressly empowered to do so.
9.6 The Parties shall keep the evidence in the arbitration proceedings and any order made by any arbitrator confidential.
9.7 The arbitrator’s award shall be final and binding on the Parties and he shall be obliged to give his award in writing fully supported by reasons. The arbitrator shall also have the power to give default judgment if any Party fails to make submissions on the due date and/or fails to appear at the arbitration.
9.8 The provisions of this clause 7 are severable from the rest of this Agreement and shall remain in effect even if this Agreement is terminated for any reason.
9.9 The costs of and ancillary to the hearing (including the arbitrator’s remuneration) shall be borne by the Parties in equal shares and shall be recoverable, as costs in the cause under the provisions of any award.
10.1 Whole Agreement. This Agreement constitutes the whole agreement between the Parties relating to the subject matter of this Agreement and supersedes any other discussions, agreements and/or understandings regarding the subject matter of this Agreement.
10.2 No Amendments. No amendment or consensual cancellation of this Agreement and no settlement of any disputes arising under this Agreement and no extension of time, waiver or relaxation or suspension of or agreement not to enforce or to suspend or postpone the enforcement of any of the provisions or terms of this Agreement shall be binding unless recorded in a written document signed by the Parties (or in the case of an extension of time, waiver or relaxation or suspension, signed by the Parties granting such extension, waiver or relaxation).
10.3 Governing Law and Jurisdiction. This Agreement and any matter arising from this Agreement shall be governed by and interpreted in accordance with the laws of the Republic of South Africa. The Parties hereby consent and submit to the exclusive jurisdiction of the High Court of South Africa (South Gauteng division) in respect of any litigation arising in terms of this Agreement, subject to the provisions of clause 7.
10.4 Assignment. The Referral Partner shall not be permitted to cede any of its rights nor delegate any of its obligations in terms of this Agreement without the prior written consent of Ecigus.
10.5 Good Faith. The Parties shall in their dealings with each other display good faith.
10.6 Successors in Title. This Agreement shall be binding on the administrators, executors, heirs, judicial managers and other successors-in-title of the Parties, who shall not be entitled to terminate this Agreement merely by reason of the death of a Party. Each Party indemnifies the other against any loss or damage of any nature whatsoever which the other may sustain if this Agreement is not binding for any reason on the former’s administrators, executors, heirs, judicial managers and/or other successors-in-title.
10.7 Severability. Any provision in this Agreement which is or may become illegal, invalid or unenforceable shall be ineffective to the extent of such prohibition or unenforceability and shall be severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement.
10.8 Confidentiality. Neither Party shall disclose any confidential information to any third party without the prior written approval of the other Party, unless required by law.
10.9 Electronic messages and communication. By concluding this Agreement and joining the IRainbow Referral Program, the Referral Partner acknowledges that Ecigus may use its personal contact information provided by the Referral Partner for communicating with the Referral Partner via electronic messages and communication in terms of applicable data protection laws, including the Protection of Personal Information Act, 4 of 2013 and the General Data Protection Regulation ((EU) 2016/679). This includes Ecigus sending the Referral Partner direct marketing communications. the Referral Partner can opt-out from receiving further direct marketing messages at any point in time.
10.10 Counterparts. This Agreement may be executed in several counterparts, each of which shall together constitute one and the same instrument.
10.11 Stipulation. No part of this Agreement shall constitute a stipulation in favour of any person who is not a party to the Agreement unless the provision in question expressly provides that it does constitute such a stipulation.
11. INTERPRETATION AND PRELIMINARY
The headings of the clauses in this Agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of, nor modify nor amplify the terms of this Agreement, nor any clause of this Agreement. Unless a contrary intention clearly appears:
11.1 words importing any gender include all others; the singular include the plural and vice versa; and natural persons include created entities (corporate or unincorporate) and the state and vice versa;
11.2 the following terms have the meanings assigned to them in this clause and related expressions shall have corresponding meanings, namely:
11.2.1 “Agreement” means this agreement and all annexures and schedules to this agreement;
11.2.2 “Business Day” means any day excluding Saturday, Sunday and a public holiday in the Republic of South Africa;
11.2.3 “Commission” means, in respect of each Positive Referral, an amount equivalent to 10% (ten percent) of the value of such Positive Referral’s subscription fees (excluding VAT payable in respect of such subscription fees) actually paid into Ecigus’ designated bank account from time to time in connection with such Positive Referral’s subscription for the IRainbow Software;
11.2.4 “Ecigus” means Ecigus Proprietary Limited, whose further details are recorded on the cover page of this Agreement;
11.2.5 “IRainbow Referral Program” means the commission fee program offered to registered users of the IRainbow Software by Ecigus that will allow the Referral Partner to earn the Commissions;
11.2.6 “IRainbow Software” means the educational software developed and owned by Ecigus and has been launched under the brand name IRainbow;
11.2.7 “IRainbow Terms” means the general commercial terms and conditions of Ecigus that regulate a registered user of the IRainbow Software and the services provided by Ecigus in connection with the IRainbow Software, as may be amended from time to time, a copy of which is available on
11.2.8 “Parties” means the parties to this Agreement;
11.2.9 “Payment Date” means the date on which payment of Commission is made by Ecigus to the Referral Partner, such date being within 30 (thirty) days of receipt by Ecigus of the applicable subscription fees from a Positive Referral in respect of which such Commission becomes payable in terms of this Agreement;
11.2.10 “Positive Referral” means a potential subscriber who is introduced to Ecigus by the Referral Partner (in the manner described in clause 2.2), who actively subscribes for the IRainbow Software and becomes a registered user of the IRainbow Software in accordance with the IRainbow Terms;
11.2.11 “Promotional Code” means the unique personal promotional code that will (i) be allocated to the Referral Partner upon joining the IRainbow Referral Program and (ii) entitle the Referral Party to Commissions when used by potential subscribers to subscribe for the IRainbow Software;
11.2.12 “Referral Partner” means registered user who (i) signs up for the IRainbow Referral Program and (ii) procures Positive Referrals, whose further details are recorded on the cover page of this Agreement; and
11.2.13 “Signature Date” means the date on which the Party that is last to sign this Agreement, does so;
11.2.14 “VAT” means value added tax leviable in terms of the Value Added Tax Act, 1991 (Act No. 89 of 1991);
11.3 reference to any legislation is to that legislation as at the Signature Date and as amended or re-enacted from time to time and includes any subordinate legislation made from time to time under such legislation;
11.4 if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of this Agreement;
11.5 when any number of days is prescribed in this Agreement, whether the period is to be calculated forwards or backwards, the ordinary civilian method shall apply to the calculation as follows: include the first day and exclude the last day (FILO), unless the last day falls on a day that is not a Business Day, in which case the last day shall be the next succeeding Business Day;
11.6 if any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that the term has not been defined in this clause 9;
11.7 provisions of this Agreement may survive the expiration or termination of this Agreement if that is expressly provided for or if such survival is necessary to achieve the Parties’ express intention;
11.8 the rule of construction that a contract shall be interpreted against the Party responsible for the drafting or preparation of the contract, shall not apply;
11.9 any reference in this Agreement to a Party shall include a reference to that Party’s assigns expressly permitted under this Agreement and, if such Party is liquidated or sequestrated, be applicable also to and binding upon that Party’s liquidator or trustee, as the case may be;
11.10 the words “include”, “including” and “in particular” shall be construed as being by way of example or emphasis only and shall not be construed, nor shall they take effect, as limiting the generality of any preceding word(s); and
11.11 any reference in this Agreement to any other agreement or document shall be construed as a reference to such other agreement or document as same may have been, or may from time to time be, amended, varied, novated or supplemented.