These Partner Referral Terms and Conditions are made between the authorized Value Added Reseller, Dealer and/or Channel Partner (“Referral Partner”) as identified on the Referral Form and MiX Telematics Australasia (Pty) Ltd, a subsidiary of Powerfleet Inc (“Powerfleet”).
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Recital
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The Referral Partner wish to promote, market and advertise Powerfleet’s Equipment and Services
within the geographical area(s) as specified on Powerfleet’s website at https://www.powerfleet.com/referral/partner-apac/ (“Territory”).
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The Parties agree that these terms and conditions, together with the Referral Form (“the Agreement”) will govern
the relationship between the Referral Partner and Powerfleet.
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The Effective Date of this Agreement shall be the date of acceptance by Powerfleet of the Referral Form.
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Appointment and Commencement
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Powerfleet appoints the Referral Partner to promote and/or market Powerfleet’s equipment and
subscription services (“the Equipment and Services”) and to source and refer prospective new
Customers to Powerfleet.
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Term and Termination
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This Agreement will commence on the Effective Date and endure
until terminated by the Parties as provided for herein.
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Referral
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“Customer” means any third party who, prior to being approached by the Referral Partner
does not make use of any Equipment and/or Services of Powerfleet; or has not been approached
by Powerfleet directly.
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The Referral Partner-
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will promote the Equipment and Services as specified in the product schedule attached to
the Referral Agreement and as amended by Powerfleet at its sole discretion from
time to time.
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may only promote and / or market the Equipment and Services subject to prior written
approval from Powerfleet that the Referral Partner is permitted to approach a potential
Customer, and which approval may be withheld in the sole discretion of Powerfleet;
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will promote the Equipment and Services as specified in the product schedule attached to
the Referral Agreement and as amended by Powerfleet at its sole discretion from
time to time.
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Powerfleet may, at Powerfleet’s sole discretion, refuse to enter into an agreement with
a potential Customer, without any liability to the Referral Partner.
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This is not an exclusive agreement and Powerfleet will be entitled to appoint other
referral partners and agents. Powerfleet may market the Equipment, Services and any other
related products and services directly to Customers.
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Rewards and Payment
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In the event of the successful conclusion of an agreement between Powerfleet and a Customer
or a Referral Partner and a Customer, the Referral Partner will be entitled to the reward as
specified on Powerfleet’s website at https://www.powerfleet.com/referral/partner-apac/.
The reward will become due on the date and terms as specified in the Referral Form and subject to
receipt of payment of the fees for the supply of Equipment and Services from the
Customer by Powerfleet and/or the Referral Partner.
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The provisions of clause 5.1 will not apply and Powerfleet will not be liable to pay commission
to the Referral Partner for any renewal or extended contract term of the agreement between Powerfleet
and/or the Referral Partner and a Customer.
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The Referral Partner will be liable for all taxes, duties, tariffs and/or levies arising or connected
to any amount received by the Referral Partner in connection with this agreement that may become payable
as a requirement of any governmental organizations.
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Brand Name
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“Brand Name” shall mean Powerfleet trademarks, trading styles, emblems, devices
and logos, whether registered or not, and whether now existing or which come into
existence in the future, which are owned or controlled by Powerfleet and/or the Powerfleet
group and which will be licensed to the Referral Partner as provided below.
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Powerfleet grants to the Referral Partner a non-exclusive and non-transferable right to
use the Brand Name for the duration of the Agreement, in order to promote, advertise and market
the Equipment and Services, provided that the Referral Partner complies with all instructions and
directives issued or published by Powerfleet from time to time in connection with the use thereof.
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The Referral Partner shall not use the Brand Name in such a manner as to infringe the proprietary
rights of Powerfleet therein. The Referral Partner shall not use the Brand Name for any other purpose
whatsoever except for the promotion, advertising and marketing of the Equipment and Services and for
the exercise of its rights and performance of its obligations in terms of this Agreement.
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The Referral Partner shall forthwith cease to use the Brand Name upon termination of
this Agreement for whatever reason.
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Compliance with Laws
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The Parties shall each comply with all applicable laws pertaining to their respective
obligations under this Agreement including but not limited to the Anti-Bribery Act, the
United States Foreign Corrupt Practices Act and any other similar bribery, fraud, kickback, or
other similar anti-corruption law, export control laws and regulations administered any other
relevant country. Each Party agrees to comply with its obligations under all applicable laws
relating to privacy and protection of Personal Data in respect of Personal Data obtained by
or disclosed to them pursuant to this Agreement.
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Notwithstanding clause 7.1, the Parties shall at all times remain in compliance with all
sanctions and export control laws and regulations administered by the U.S. Office of Foreign
Assets Control and/or the Bureau of Industry and Security and shall not cause any of the other parties
to be in violation of any such sanctions or export control law or regulation.
The Parties shall not engage in any business or dealings with any embargoed countries, blocked or
sanctioned persons, or individuals or entities listed as a sanctions target by the USA, the United
Kingdom, European Union or any other relevant country’s legislation (including facilitating transactions
with third parties that involve embargoed countries, blocked or sanctioned persons or entities).
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Confidential Information
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The Referral Partner must treat and hold as confidential all information which it may
receive from Powerfleet or which becomes known to it during the currency of this
Agreement (the “Confidential Information”).
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The Confidential Information of Powerfleet
will, without limitation, include:
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all documents and papers relating to the business or work of Powerfleet and
prepared by the Referral Partner or received by the Referral Partner in connection
with, or by virtue of, the Referral Partner’s performance of the work, and all copies
and summaries of such documents and papers; and
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all information relating to Powerfleet’s past, present and future research and
development, Powerfleet's business activities, products, services, customers and
suppliers, as well as Company’s Know-How, technical knowledge, source code, data and
trade secrets; and the terms and conditions of this Agreement.
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all documents and papers relating to the business or work of Powerfleet and
prepared by the Referral Partner or received by the Referral Partner in connection
with, or by virtue of, the Referral Partner’s performance of the work, and all copies
and summaries of such documents and papers; and
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The Referral Partner agrees that in order to protect the proprietary
interests of Powerfleet in the Confidential Information:
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the Referral Partner must only make the Confidential Information available
to those of the Referral Partner’s Staff who are actively involved in the
execution of the Referral Partner’s obligations under this Agreement and
then only on a “need to know” basis;
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The Referral Partner must initiate security procedures reasonably acceptable to
Powerfleet to prevent unauthorised disclosure of the Confidential Information;
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the Referral Partner must take all reasonable steps to impress upon those staff
who need to be given access to Confidential Information, the secret and confidential
nature thereof, and to ensure their compliance with this clause 8;
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subject to the right to make the Confidential Information available to its Staff
under clause 8.3.1 above, the Referral Partner will not at any time, whether during
this Agreement or thereafter, either use any Confidential Information, or directly or
indirectly disclose any Confidential Information to third parties;
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all instructions, drawings, notes, memoranda, records and other information in
whatever format and of whatever nature relating to the Confidential Information which
have or will come into the possession of the Referral Partner and its staff, will be
and will at all times remain the sole and absolute property of Powerfleet and must
promptly be handed over to Powerfleet or be destroyed when no longer required for
the purposes of this Agreement.
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the Referral Partner must only make the Confidential Information available
to those of the Referral Partner’s Staff who are actively involved in the
execution of the Referral Partner’s obligations under this Agreement and
then only on a “need to know” basis;
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Upon termination or expiry of this Agreement, the Referral Partner must deliver
to Powerfleet or, at Powerfleet’ option, destroy all originals and copies of Confidential
Information in its possession, including electronic copies of same.
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The aforegoing obligations will not apply to any information which:
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is lawfully in the public domain at the time of disclosure;
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subsequently and lawfully becomes part of the public domain by publication or otherwise;
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subsequently becomes available to the Referral Partner from a source other
than Powerfleet, which source is lawfully entitled without any restriction on
disclosure to disclose such Confidential Information; or
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is disclosed pursuant to a requirement or request by operation of law, regulation or court order.
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is lawfully in the public domain at the time of disclosure;
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The Referral Partner must immediately inform Powerfleet if it becomes aware of the
possession, use or knowledge of any Confidential Information by any person not authorised
to possess, use or have knowledge of the Confidential Information and will at the request
of Powerfleet, and at its own cost, provide all such assistance and cooperation as may
reasonably be required.
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The Referral Partner will be liable for and hereby indemnifies Powerfleet against any
loss or damage which Powerfleet may suffer as a result of a breach of this clause by the
Referral Partner or the Referral Partner’s Staff.
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This clause is severable from the remainder of the Agreement and will remain valid
and binding upon the Parties indefinitely.
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Data
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The Referral Partner acknowledges and agrees that in providing the referral
services to Powerfleet, the Referral Partner is likely to processes personal
information of Customers and that such data must be processed fairly and lawfully
in accordance with applicable Laws.
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The Referral Partner must inform the relevant person:-
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of the proposed collection and processing of their data, the
nature of the data to be collected and the purposes for which
the data is to be used including any consequences for the person
arising from the contemplated use of the data;
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of the name and address (as set out in this agreement)
of Powerfleet as the processor of the data;
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of the details of any other persons who may have access
to the data including resellers and group companies of Powerfleet;
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that they have the right, by contacting Powerfleet, to
access the data held and to correct any errors in respect of t
he data; and
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obtain the specific and informed consent of the person to the
processing of their data and otherwise ensure that without Powerfleet
being responsible for obtaining any consent Powerfleet is lawfully entitled
to process such data under any applicable laws or regulations.
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of the proposed collection and processing of their data, the
nature of the data to be collected and the purposes for which
the data is to be used including any consequences for the person
arising from the contemplated use of the data;
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The Referral Partner agrees promptly and without any charge to Powerfleet to take all
such steps as Powerfleet may from time to time require before and after the processing
of any data in order to enable Powerfleet to comply with those rights of the person whose
data is processed and to enable or facilitate the lawful and fair processing of the data
by Powerfleet.
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Powerfleet may transfer data to, or process it in, countries outside of the country in which
the Referral Partner and / or the Customer is situated, and that have equivalent data protection
legislation to that country, or where such legislation is not adequate, then Powerfleet shall ensure
that sufficient safeguards are implemented.
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The Referral Partner will indemnify and keep indemnified Powerfleet against all claims, damages,
losses, fines, penalties, costs (including legal costs) and expenses of whatever nature and however
arising in relation to any failure by the Referral Partner to comply with any of the obligations set
out in clauses 9.1 to 9.5 (inclusive).
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Limitation of Liability and Indemnity
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To the extent permitted by the law, neither Party will be liable to the
other Party or any third party for any indirect or consequential damages.
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The total amount of Powerfleet’ liability to the Referral Partner or any
third party for direct damages will not exceed the aggregate of the actual
amount paid by Powerfleet to Referral Partner under this Agreement over the 12
(twelve) month period immediately preceding the date on which the cause of
action arose.
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Neither Party will be liable to the other for any delay or non-performance
of its obligations under this Agreement arising from any cause beyond its r
easonable control.
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In the event of either Party being so delayed or prevented
from performing its obligations, such Party must:
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give notice in writing of such delay or prevention to the other Party as
soon as reasonably possible, stating the commencement date and extent of such
delay or prevention, the cause thereof and its estimated duration;
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use all reasonable endeavours to mitigate the effects of such delay or
prevention on the performance of its obligations under this Agreement; and
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resume performance of its obligations as soon as reasonably
possible after the removal of the cause of the delay or prevention.
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In the event that such delay or prevention continues for more than 3 (three) months, the
Party whose performance is not delayed or prevented may terminate this Agreement on 30 (thirty)
days’ written notice to the other Party, in which case the provisions of clause will apply.
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give notice in writing of such delay or prevention to the other Party as
soon as reasonably possible, stating the commencement date and extent of such
delay or prevention, the cause thereof and its estimated duration;
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Breach and Termination
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Either Party may terminate the Agreement if the other Party:
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fails to comply with any of its obligations or commits a breach of this
Agreement and fails to remedy the default or breach within 10 (ten) Business D
ays after having received a written notice to do so;
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is placed in provisional or final liquidation or sequestration, or
judicial management;
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enters into any compromise arrangements with its creditors;
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falls under the controlling interest or ownership of a competitor of the other
Party (for the purpose of this clause, the Party who makes this allegation will
carry the burden to prove it).
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fails to comply with any of its obligations or commits a breach of this
Agreement and fails to remedy the default or breach within 10 (ten) Business D
ays after having received a written notice to do so;
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Either Party may terminate the Agreement at any time during the
term, upon 2 (two) months’ prior written notice to the other Party.
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Governing Law
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This Agreement will be governed and construed according to the laws of Western Australia, without
regard to its rules relating to conflicts of laws. Each Party to this Agreement hereby submits to the
exclusive jurisdiction and exclusive venue of the courts of Perth, Western Australia for the purposes of
all legal proceedings arising out of or relating to this Agreement
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Each Party hereby irrevocably waives any objection it may now or hereafter have as
to the exclusive jurisdiction and exclusive venue of any such suit, action or proceeding
brought in Perth, Western Australia, or that such court is an inconvenient forum.
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General
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Each Party will be responsible for its own legal and other costs relating
to the negotiation of this Agreement.
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The Parties warrant that they have not been induced to enter into this Agreement
by any prior representations, warranties or guarantees, whether oral or in
writing, except as expressly contained in this Agreement.
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No variation, addition to or cancellation of this Agreement and no waiver of any
right under this Agreement will be of any force or effect unless reduced to writing
and signed by or on behalf of the Parties. Such variation may be undertaken using a
data message(s), but must take a similar form to this document, and may not take the
form of correspondence, whether using e-mail, SMS, instant message or the like, though
the variation may be attached to such correspondence. Notwithstanding the foregoing
Referral Partner acknowledges and agrees that Powerfleet has the right, in Powerfleet’s
sole discretion, to modify this Agreement from time to time, and that modified terms
become effective upon posting.
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This Referral Agreement does not give rise to a relationship of principal
and agent, a partnership or a joint venture between the Parties. Neither Party
will be entitled to conclude any agreement on behalf of the other, nor to sign
any document on behalf of the other, and may not represent to any third party
that it is empowered to do so, unless so specifically authorised in writing
by the other.
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The signatories hereto acting in representative capacities warrant that they are authorized to
act in such capacities, and accept personal liability under this Agreement should they prove
not to be so authorised.
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The failure by any Party to enforce any provision of this Agreement will not affect in any way that
Party's right to require performance of the provision at any time in the future, nor will the waiver
of any subsequent breach nullify the effectiveness of the provision. No waiver will be effective unless
it is expressly stated in writing and signed by the Party giving it.
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