Terms and Conditions
Please read the following terms and conditions carefully before requesting to become a PPO PARTNER. By requesting to become a PPO PARTNER you agree to be bound by these terms and conditions.
The following expressions shall bear the meanings assigned to them below and cognate expressions bear corresponding meanings –
1.1) “AGREEMENT” – means these terms and conditions, and all annexures hereto (as set out in the completed and accepted PPO PARTNER PROGRAMME APPLICATION FORM);
1.2) “BUSINESS DAY” – means any day other than a Saturday, Sunday;
1.3) “PPO PARTNER” – means the entity that has requested to become a PPO PARTNER;
1.4) “EFFECTIVE DATE” – means the date of acceptance of this AGREEMENT;
1.5) “PPO PARTNER PROGRAMME APPLICATION FORM” – means the PPO PARTNER’S electronic application requesting to join the PPO PARTNER PROGRAMME;
1.6) “PPO SITE” – means the websites in the ppolive.com domain (e.g. www.ppolive.com), from which the SERVICE will be accessed by the LICENSEE for the purposes of utilising such SERVICE;
1.7) “PPO WEBSITE” – means the websites in the www.go2ppo.com domain (e.g. www.go2ppo.com), in which the PPO PARTNER PROGRAMME is explained;
1.8) “PPO” – means Project Portfolio Office Limited (Registration Number 08066803) and Post Vision Technology (Pty) Limited, (Registration Number 2004/019163/07);
1.9) “PPO PARTNER PROGRAMME” – means the PPO Partner Programme which is described on the PPO WEBSITE;
1.10) “SERVICE” – means the Project Portfolio Office product which is accessed through the PPO SITE;
1.11) where any number of days is to be calculated, such number shall be calculated as excluding the first day and including the last day . If the last day does not fall on a BUSINESS DAY, the last day shall be deemed to fall on the next BUSINESS DAY;
1.12) any reference to days (other than a reference to BUSINESS DAYS), months or years shall be a reference to calendar days, months or years, as the case may be.
The PPO PARTNER is hereby appointed as a non-exclusive representative of PPO in the country in which the legal entity requesting to join the PPO PARTNER PROGRAMME is legally registered, for the provision of authorised services (“Services”) as set out in this AGREEMENT in relation to PPO’s software known as Project Portfolio Office for end user customers (“Customer/s”), subject to the terms and conditions of this AGREEMENT.
3) PPO PARTNER‘S UNDERTAKINGS
The PPO PARTNER hereby undertakes that it will at all times during the continuance in force of this AGREEMENT observe and perform the terms and conditions set out in this AGREEMENT and in particular:
3.1) The PPO PARTNER shall in all matters relating to Project Portfolio Office act loyally and faithfully to PPO and will act in such manner as the PPO PARTNER reasonably considers being most beneficial to PPO’s interests. The PPO PARTNER shall use his/her/its best endeavours to uphold the values, corporate identity, reputation and professionalism of PPO in all of its business conduct;
3.2) The PPO PARTNER shall not in marketing or purporting to sell Subscriptions to Project Portfolio Office make any representations or give any warranties other than those contained on the PPO WEBSITE;
3.3) The PPO PARTNER will promptly register all Customer leads (“leads”) with PPO by furnishing PPO with all of that proposed Customer‘s information at hand to enable PPO to allocate the Customer to the PPO PARTNER;
3.4) The PPO PARTNER shall not assign, transfer, charge or in any manner make over, or purport to assign, transfer, charge or make over, this AGREEMENT or its rights under this AGREEMENT or any part thereof without obtaining the previous consent in writing of PPO;
3.5) The PPO PARTNER shall not incur any liability on behalf of PPO or in any way pledge or purport to pledge to PPO’s credit;
3.6) The PPO PARTNER hereby undertakes that it will not at any time, whether during the continuation in force of this AGREEMENT or at any time after the termination thereof, divulge any information in relation to PPO’s affairs or business or method of carrying on business;
3.7) The PPO PARTNER hereby undertakes that it will participate in surveys administered by PPO as and when required.
4) DUTIES OF PPO
PPO hereby undertakes the following during the continuance of this AGREEMENT:
4.1) to supply the PPO PARTNER with such training, samples, instruction books, technical pamphlets, catalogues, advertising material, updates, marketing materials, presentation materials, access to demonstration software, price schedules, and agreements to prepare for sales, as PPO considers reasonably sufficient with a view to promoting sales of Subscriptions within the Territory;
4.2) provide and enter into the relevant agreements with the Customer;
4.3) support Project Portfolio Office post implementation;
4.4) and correction of critical errors or assistance to overcome specific Software problems. PPO may, in its sole discretion, correct errors by “hotfix”, “patch” or by “version upgrade”.
5) RESERVED RIGHTS OF PPO
PPO reserves to itself the following rights notwithstanding anything to the contrary herein contained:
5.1) TO CONTINUE SALES; PPO reserves the right to continue to sell Subscriptions and supply access to Project Portfolio Office to Customers in the Territory and to appoint other partners and / or agents.
5.2) TO MAINTAIN SUBSCRIPTIONS; PPO reserves the right to survey PPO PARTNERS and CUSTOMERS and appoint other partners and / or agents to administer surveys.
5.3) TO WITHDRAW PROJECT PORTFOLIO OFFICE, CEASE DEVELOPMENT OR ADD NEW FUNCTIONALITY OF SOFTWARE PPO reserves the right to withdraw or vary PPO by:
5.3.1) the withdrawal of Project Portfolio Office from the market;
5.3.2) the withdrawal of certain functionality of Project Portfolio Office in the event of PPO ceasing to develop or supply that functionality;
5.3.3) or the addition of other functionality to Project Portfolio Office.
5.4) TO ASSIGN RIGHTS AND OBLIGATIONS; In the event of PPO’s business or any part thereof (being a part concerned in the sale, development or maintenance of PPO and to which this AGREEMENT relates) being transferred to any other party, PPO reserves the right to assign its rights and obligations under this AGREEMENT to that other party after giving one month’s notice of such assignment to the PPO PARTNER.
6) DATA PROTECTION
6.1) PPO acknowledges that in providing the Subscriptions to Customers, PPO may be exposed to confidential data (“the Data”) of the PPO PARTNER and the Customers.
6.2) The Parties specifically record that all Data provided to PPO, or to which PPO may be exposed, shall constitute confidential information and where applicable, intellectual property belonging to the PPO PARTNER or the Customer.
6.3) Each Party hereby warrants and undertakes that it shall not at any time, without the express prior written consent of the PPO PARTNER or, where relevant, the Customer, copy, compile, collect, collate, process, mine, store, transfer, alter, delete, interfere with or in any other manner use Data for any purpose other than, to the extent necessary to provide the Subscriptions to the PPO PARTNER and/or the Customer.
6.4) Each Party further warrants that it shall ensure that all its systems and operations which it uses to provide the Subscriptions, including all systems on which Data is copied, compiled, collated, processed, transmitted, stored, collected, mined, altered or deleted or otherwise used as part of providing the Subscriptions, shall at all times be of a standard no less than the standards which are in compliance with the international best practices for the protection, control and use of Data.
7.1) Subject to the payment of the certification fees together with any renewal fees that are set out in the PPO WEBSITE from time to time, suitable staff of the PPO PARTNER, who will be involved in sales, and / or implementation in respect of Project Portfolio Office will be required to undergo the training courses that are stipulated on the PPO WEBSITE from time to time on a day and time to be determined, in order to be suitably accredited and certified to attend to such sales or implementation (“Certified Staff”).
7.2) If the PPO PARTNER is a legal entity, it will be accredited in such a way that such accreditation corresponds with and is dependant at all times on the accreditation and employment by the PPO PARTNER of the Certified Staff.
7.3) Certified Staff will, on the completion of the required training, and at the discretion of PPO, be accredited as follows:
7.3.1) Marketing & Sales; and
7.4) When new versions of Project Portfolio Office or any additional modules (whether major or minor) are released, the Certified Staff may be required to attend an update session that covers the new functionality and changes introduced by the release on a day and time to be determined.
7.5) Certified Staff shall be accredited for 12 months from such accreditation and may apply for renewal of the accreditation in accordance with the PPO PARTNER PROGRAMME terms and conditions set out on the PPO WEBSITE from time to time.
7.6) The PPO PARTNER undertakes that only Certified Staff that are in possession of valid PPO Software accreditation certificates shall provide services in relation to Project Portfolio Office, and such staff shall only provide the services within the ambit of their accreditation.
7.7) Failure to do adhere to the provisions of the above clause will result in:
7.7.1) PPO, at its sole and absolute discretion, withdrawing any or all of the PPO PARTNER’S accreditation under this
7.7.2) The suspension of the obligations of PPO under this AGREEMENT.
7.8) In the event that the PPO PARTNER:
7.8.1) is not certified to provide particular Services;
7.8.2) or fails to render the necessary Services to a Customer;
PPO will intervene to provide such services to the Customer.
8) PARTNER GRADING AND AUTHORISED SERVICES
8.1) The PPO PARTNER will be graded at PPO’s sole and absolute discretion as Platinum, Gold, Silver, Bronze or Non-Graded according to the PPO PARTNER’s sales volumes, reference sites, training completed and skills available. Grading may be changed by PPO (either up or down) on an annual basis or from time to time as circumstances may demand. For All Partners, PPO will contract directly with Customers for Subscriptions and all Customers shall pay PPO directly for such Subscriptions.
8.2) Where the PPO PARTNER sells a Subscription, and provides relationship management and consulting services, PPO will pay the below commission to the PPO PARTNER based on the discounted value of the Subscription sold and commissions will be payable for the duration of this agreement, or for the duration of time that the PPO PARTNER is the customer relationship manager and provides consulting services to the relevant Customer whichever period is shorter.
Bronze Partner 15%
Silver Partner 20%
Gold Partner 25%
Platinum Partner 30%
8.3) Provided that the required accreditation has been achieved, the PPO PARTNER is authorised to provide the following Services:
8.3.1) Perform presentations and demonstrations to the Customer;
8.3.2) Prepare and present proposals to the Customer;
8.3.3) Implement the Subscription; and
8.3.4) Develop and maintain the client relationship as it relates to Project Portfolio Office and customer support.
9) SUBSCRIPTION FEES AND COMMISSION
9.1) Where a Customer subscribes to Project Portfolio Office, the PPO PARTNER that concluded the implementation will be entitled to payment in lieu of commission.
9.1.1) PPO will pay the commission in respect of such orders to the PPO PARTNER each quarter of monies being received or the PPO PARTNER’S invoice being received (whichever is the later) by PPO.
9.2) The PPO PARTNER shall be responsible for the PPO PARTNER’S own “cost of sales” (that is, all costs incurred by the PPO PARTNER in connection with its services provided in terms of this AGREEMENT) unless otherwise agreed in writing.
9.3) The standard legal and taxation requirements will be applied where a proper Tax Invoice is produced or the standard implications of taxation on commissions will be applied and deducted from the commission before remittance to the PPO PARTNER.
9.4) In the event of any disagreement between PPO and the PPO PARTNER regarding commission or fees owing to the PPO PARTNER:
9.4.1) then in such event any certificate issued under the hand of any manager of PPO certifying the amount due to the PPO PARTNER, shall be prima facie proof of such amount due; and
9.4.2) The PPO PARTNER accepts the onus of disproving the amount so certified.
10) DURATION AND TERMINATION OF AGREEMENT
10.1) This AGREEMENT shall terminate on 28 February in the year following the acceptance of this AGREEMENT, or earlier as set out in the clauses of this AGREEMENT,
10.2) At least 60 days before the termination date, the PPO PARTNER may apply to PPO for the right to continue to be a PPO PARTNER, and, if in PPO’S sole discretion, the PPO PARTNER is approved the PPO PARTNER will remain a PPO PARTNER, based on the standard terms and conditions at that time.
10.3) TERMINATION BY PPO
10.3.1) If the PPO PARTNER commits a breach of any of the terms or conditions of this AGREEMENT
10.3.2) If the PPO PARTNER enters into liquidation whether compulsory or voluntary (otherwise than for the purposes of amalgamation or reconstruction), or compounds with its creditors, or takes or suffers any similar action in consequence of debt.
10.3.3) If the PPO PARTNER purports to assign, alienate, pledge, mortgage, transfer or make over the burden or benefits of this AGREEMENT without the written consent of PPO.
Without prejudice to any other remedies that PPO may have against the PPO PARTNER, PPO shall have the right at any time to terminate this AGREEMENT forthwith on the occurrence of any of the following events:
10.4) TERMINATION BY NOTICE OF EITHER PARTY
Either party may terminate this Agreement at any time by giving to the other party 60 (sixty) day’s notice in writing.
10.5) TERMINATION ON PPO CEASING TO CARRY ON BUSINESS
If at any time PPO shall cease to carry on business (or shall cease to develop or deal in PPO) this AGREEMENT shall forthwith terminate unless the rights and obligations of PPO hereunder are assigned in accordance with this AGREEMENT.
11) RETURN OF PPO PROPERTY
Upon the termination of this AGREEMENT for any cause, or at any time prior to such termination at the request of PPO, the PPO PARTNER shall dispose of all samples, instruction books, technical pamphlets, catalogues, advertising material, specifications and any other materials, documents and papers (in whatsoever medium) whatsoever sent to the PPO PARTNER and relating to the business of PPO (other than correspondence between PPO and the PPO PARTNER) which the PPO PARTNER may have in its possession or under its control.
12.1) The PPO PARTNER acknowledges that all material and information which has or will come into its possession or knowledge in connection with this AGREEMENT, or the performance hereof, consists of confidential and proprietary data, whose disclosure to or use by third parties will be damaging to PPO.
12.2) The PPO PARTNER, therefore, agrees to hold such material and information in strictest confidence, not to make use thereof other than for the performance of this AGREEMENT, to release it only to employees reasonably requiring such information, and not to release or disclose it to any other party, unless so required by law.
12.3) Confidential and proprietary information is not meant to include any information which, at the time of disclosure, is generally known by the public and any competitors of either party.
12.4) The PPO PARTNER’S obligations of confidentiality under this AGREEMENT shall survive the termination of this AGREEMENT for any reason whatsoever.
13) INTELLECTUAL PROPERTY RIGHTS
13.1) All know-how, patent, copyright, design, trade mark or other industrial or intellectual property rights, whether registered or not (“Intellectual Property”) in Project Portfolio Office, including any and all enhancements to PPO, shall at all times remain vested in PPO or its nominee, and the PPO PARTNER acknowledges that neither it nor any Customer shall obtain any right, title or interest in or to PPO, other than as granted to it in terms of this AGREEMENT.
13.2) Notwithstanding the provisions above, processes or methodologies that do not from part of Project Portfolio Office, and that are implemented into Project Portfolio Office by the PPO PARTNER or a Customer in terms of its license to use PPO, will remain the property of such PPO PARTNER or Customer.
13.3) The PPO PARTNER agrees that all training and procedural materials pertaining to Project Portfolio Office, provided to the PPO PARTNER by PPO, shall remain the property of PPO.
13.4) The PPO PARTNER shall comply with all directions imposed by PPO with regard to the use of the Intellectual Property, which obligation is without limitation to any of the specific duties or obligations assumed by the PPO PARTNER in terms of any of the other provisions of this AGREEMENT.
13.5) PROHIBTED ACTS:
PPO PARTNER shall not, directly or indirectly:
13.5.1) claim ownership of any of the Intellectual Property;
13.5.2) permit the use of the Intellectual Property or any part thereof in such a way as to give the impression that it, or any part of it is the property of the PPO PARTNER;
13.5.3) use any trade mark forming part of the Intellectual Property or any confusingly similar trade mark to any of the trade marks forming part of the Intellectual Property (“the Trade Marks”), in any matter not expressly authorised by PPO;
13.5.4) engage in any activity that may contest, dispute, dilute or otherwise impair the right, title, interest or goodwill in any of the Trade Marks, including, without limitation, any action to prevent or cancel any registration of any of the Trade Marks;
13.5.5) use the Intellectual Property in any manner that is not necessary or beneficial for the use of Project Portfolio Office;
13.5.6) use any Intellectual Property other than the Intellectual Property in connection with the promotion and distribution of Project Portfolio Office or associate the Intellectual Property with any other name, trade mark, service mark, character or personality, unless expressly permitted by the PPO in writing;
13.5.7) use any of the Trade Marks or any mark or name confusingly similar to one of the Trade Marks as part of the PPO PARTNER’s corporate or commercial name, or part of the corporate or commercial name of any entity affiliated to the PPO PARTNER’s, unless expressly permitted by the PPO in writing;
13.5.8) contest the fact that its rights under this AGREEMENT are solely those of a licensee, sales representative or distributor as the case may be and ceased upon termination or expiration of this AGREEMENT;
13.5.9) de-compile, reverse compile, disassemble or print the source code materials nor derive, nor attempt to derive the source code of Project Portfolio Office; or attempt to modify, enhance or alter Project Portfolio Office or any part thereof, or permit others to do.
13.6) The PPO PARTNER shall not use any trade mark, other than the trade marks PPO, PPOLive, PROJECT PORTFOLIO OFFICE, and PROJECT PORTFOLIO OFFICE LIVE in relation to Project Portfolio Office in the PPO PARTNER’s publicity releases, and other advertising.
13.7) The PPO PARTNER consents to the use by PPO of the PPO PARTNER’s trading name/s, whether registered or not, for advertising purposes in any medium of PPO’s customer and/or partner lists.
13.8) The PPO PARTNER does not object to the use of Customer names for advertising purposes in PPO’s customer and/or partner lists, and will facilitate the acquisition of any consent that may be required.
13.9) The provisions of this clause shall survive termination of this Agreement for any reason whatsoever.
14) APPLICABLE LAW AND JURISDICTION
14.1) Save as otherwise provided herein, the parties hereby consent and submit to the non-exclusive jurisdiction of the courts as defined in 14.3 for the purpose of all or any legal proceedings arising from or concerning this AGREEMENT.
14.2) This AGREEMENT (including its validity, existence and implementation, the interpretation and application of its provisions, the respective rights and obligations of the parties in terms of and arising out of the conclusion, breach and termination of the provisions of this AGREEMENT) shall be interpreted and governed in all respects by the laws of the country as defined in 14.3.
14.3) The applicable contracting party, law and jurisdiction of this AGREEMENT is dependent on where the PPO PARTNER is domiciled.
If you are domiciled in: You are contracting with: Governing law is: The courts having exclusive jurisdiction are:
Any Non- South African Country Project Portfolio Office Ltd England and Wales England and Wales
South Africa Post Vision Technology (Pty) Ltd Republic of South Africa North Gauteng Division of the High Court of the Republic of South Africa
14.4) This AGREEMENT constitutes the sole record of the agreement between the parties in regard to the subject matter thereof, and supersedes all previous agreements, understandings and arrangements between the parties, whether written or oral.
14.5) Neither party shall be bound by any representation, express or implied term, warranty, promise or the like not recorded herein.
14.6) No indulgence which either party may grant to the other shall constitute a waiver of any of the rights of the grantor.
Any dispute, difference or question which may arise at any time hereafter between PPO and the PPO PARTNER touching the true construction of this AGREEMENT or the rights and liabilities of the parties hereto shall, unless otherwise herein expressly provided, be referred to the decision of a single arbitrator to be agreed upon between the parties. Notwithstanding the aforesaid, the party bringing the dispute may elect to proceed in a court of law if such party so chooses.
The waiver by either party of any breach of any term of this AGREEMENT shall not prevent the subsequent enforcement of that term and shall not be deemed to be a waiver of any subsequent breach.
17) LIMITATION OF LIABILITY
Save for any infringement by the PPO PARTNER of any of the intellectual property rights of PPO as defined in these terms and conditions, neither Party shall be liable to the other for any indirect or consequential damages, or amounts for loss of income, profits, or savings arising out of or relating to its performance or failure to perform under this AGREEMENT.
The waiver by either party of any breach of any term of this AGREEMENT shall not prevent the subsequent enforcement of that term and shall not be deemed to be a waiver of any subsequent breach.
18) FORCE MAJEURE
18.1) If either party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this AGREEMENT by reason of any event constituting force majeure, then the other party shall be relieved of its obligations hereunder during the period that such event continues, and shall not be liable for any delay and/or failure in the performance of its obligations under this AGREEMENT during such period.
18.2) An “event of force majeure” shall mean any event or circumstance whatsoever which is not within the reasonable control of that party including vis major, casus fortuitous, any act of God, strike, theft, fire, explosion, riot, insurrection or other civil disorder, war (whether declared or not) or military operations, international restrictions, any requirement of any international authority, any requirement of any government or other competent local authority, any court order, export control and shortage of transport facilities, the downtime of any external line.
18.3) Should the force majeure continue for a period of longer than (30) thirty days, either party may cancel this AGREEMENT.
19) DOMICILIUM AND NOTICES
19.1) PPO may give notice by means of electronic mail to the PPO PARTNER’S e-mail address on record and displayed on the PPO WEBSITE. Such notice shall be deemed to have been given upon the expiration of 12 hours after sending.
19.2) The PPO PARTNER may give notice to PPO at any time by electronic mail to email@example.com. Such notice shall be deemed to have been given upon the expiration of 12 hours after sending.