These Referral Partner Terms and Conditions govern the respective rights and obligations of Utopia Limited (“Utopia”) and the partner taking part in the referral scheme (“You” or “Partner”). This Agreement applies to Your participation in Utopia’s Referral Scheme whereby You may refer potential customers to Utopia.
These terms are supplemental to Utopia’s General Terms and Conditions and You will be bound to all of these (collectively referred to as the “Agreement”). If there is any conflict within the Agreement, these Terms and Conditions for Utopia’s Referral Scheme will prevail.
These additional terms may be amended by Utopia at any time and without notice to You. Any changes will be published on the website and will be deemed to have been accepted 7 days after publication.
You acknowledge that You have read and agree to be bound by the following terms and conditions:
1. Referral Process
1.1 A Referral for the purposes of this Agreement means the direct recommendation of Utopia and our Services to a Referred Customer by You, subject to the terms of this Agreement.
1.2 You are appointed and permitted by Utopia to communicate with third parties and offer Referrals by direct introduction or recommendation to third parties through any medium on a one-to-one basis. Recommendation made by mass mailings or similar forms of communications are not Referrals and will not be eligible for Commission.
1.3 A successful Referral of a Referred Customer (“Successful Referral”) is one which satisfies all the following criteria:
1.3.1 You provide us with details of the Referred Customer as Utopia requests for each Referral you make. In order to be eligible for any Commission, the Referred Customer details must be supplied prior to the Referred Customer ordering a Service or being contacted by Utopia. You also acknowledge that it is Your responsibility to ensure that Utopia actually receives this information – Utopia will not be held liable for any errors affecting receipt of the information, whether any errors or other contributing factors are within Utopia’s reasonable control or not;
1.3.2 The Referred Customer orders an eligible Service, either before or after the Referred Customer is contacted by Utopia;
1.5 Utopia may, in its sole discretion, refuse any Referred Customer that You refer.
2. Qualifying as a Referred Customer
2.1 A Referred Customer is a third party (whether an individual or a corporate entity) to whom You recommend Utopia and/or the Services. This includes a parent company, subsidiaries and/or entities directly or indirectly controlled by the Referred Customers.
2.2 A third party will not qualify as a Referred Customer (thus making any Referral unsuccessful immediately) if that party:
2.2.1 is already a Utopia customer;
2.2.2 was a previous Utopia customer in breach of their agreement or Utopia’s terms and conditions;
2.2.3 another partner has already referred the Referred Customer within six (6) months of Your Referral; or
2.2.4 has already been contacted by Utopia’s Sales team within the 3 months prior to Your Referral.
2.3 If the multiple Partners submit Referrals for the same Referred Customer, the Partner that first submits their Referral to Utopia (in accordance with Clause 1.3 above) will be the only Partner eligible to receive Commission in relation to that particular Referred Customer. Determining the Partner eligible in such a situation will be left to Utopia’s sole discretion and Utopia’s position will be final – no correspondence will be entered into disputing the decision.
3. Commission Payments
3.1 Utopia will pay Referrer a Commission for each Successful Referral as described above on the terms set out in this Clause.
3.2 Commissions will be calculated on the basis detailed in Clause 3.3 below. The amounts shown are exclusive of GST.
3.3 Basic Website - $70 commission
Wordpress template website - $170 commission
Premium website - $290 commission
Premium ecommerce website - $390 commission
Bespoke development – lesser of $1000 or 10%
App development - lesser of $1000 or 10%
3.4 Utopia shall pay You Commissions due under this Agreement within seven days following the Successful Referral having accepted the supplied quote and paid the deposit.
3.5 Utopia agrees to supply, at Your request, financial statements relating to successful Referrals in order to answer any queries, to resolve any dispute that may arise or for any other billing related issues.
3.7 Commissions will not be paid in relation to services used by You (or Your affiliates or subsidiaries) or one off setup fees.
4. Term and Termination
4.1 This Agreement commences on the date You confirm your acceptance of the same and will remain in effect until terminated by either of the parties in accordance with the terms hereunder.
4.2 Utopia may terminate the Agreement at any time by providing 30 days prior written notice to You, without justification.
4.3 If either of the parties materially breaches the terms of this Agreement, that party shall have fourteen (14) days to remedy that breach following notice of that breach from the other party. Failure to remedy a breach after this process will entitle the non-breaching party to terminate the Agreement immediately on written notice.
4.4 If either party becomes bankrupt, insolvent, dissolves, or ceases trading, the Agreement will terminate immediately.
5. Confidential Information
5.1 Each party undertakes that it shall not disclose to any person the terms of this agreement or the contents of the discussions and negotiations which have led up to this agreement (Confidential Information), except as permitted by Clause 5.2.
5.2 Each party may disclose the other party's Confidential Information:
5.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party's obligations under this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's Confidential Information comply with this Clause 5; and
5.2.2 as may be required by law, court order or any governmental or regulatory authority.
5.3 No party shall use any other party's Confidential Information for any purpose other than to perform its obligations under this Agreement.
6. Representations, Indemnities & Limitations
6.1 You hereby represent and warrant to Utopia that:
6.1.1 the information submitted to Utopia by You is completely accurate and truthful;
6.1.2 You will not make any representations on behalf of Utopia or supply or publish materials concerning the Services except those that have been approved or published by Utopia;
6.1.3 any information You provide to Referred Customers or any other third party about Utopia will be accurate;
6.1.4 You will not take any form of action nor make any statement that could reasonably be expected to reflect poorly on Utopia generally or could have a negative impact on the reputation of Utopia, its services or otherwise; and
6.1.5 You obtain any and all approvals and permissions from Referred Customers that are necessary for You to submit each Referred Customer’s information to Utopia.
6.2 Utopia may supply you with information about the Services to allow You to liaise with third parties in obtaining Referrals. The representations in Clause 6.1 shall apply to this information and Your use of the same.
6.3 Any warranty in a contract with a Referred Customer who has been referred by You under the terms of this Agreement will be for the sole benefit of the Referred Customer. Utopia makes no representations or warranties whatsoever to You regarding the Services and, to the extent permitted by law, Utopia disclaims any and all express or implied warranties or conditions not expressly stated herein. This includes, without limitation, any warranties of merchantability, fitness for a particular purpose, and non-infringement.
6.4 You shall indemnify and hold harmless Utopia, its affiliates and their respective present, former and future officers, directors, employees and agents (now and in the future) and their respective legal representatives, successors and assigns from and against any and all losses, damages, costs, liabilities and expenses which any of the aforementioned may incur or sustain resulting from or arising out of the following:
6.4.1 Your breach of any representation, warranty, or covenant contained in this Agreement;
6.4.2 Services provided by the You to any Utopia customer; and
6.4.3 Any claims or actions of third parties alleging, without out limitation, unfair trade practices or false advertising in connection with statements or claims made by You in relation to Utopia or its Services.
6.5 In no event shall Utopia be liable for any loss of profits, loss of business, or any indirect, special, exemplary, punitive, incidental or consequential damages as the result of any such action or inaction without regard to the likelihood of any such damages.
7.1 During the term of this Agreement and for 12 months thereafter, You agree not to, either directly or indirectly, approach, solicit or enter into agreement with any Referred Customer who is deemed a Successful Referral to transfer the Services away from Utopia or any of its associated brands.
8. Intellectual Property
8.1 Utopia’s trademarks, trading names, service marks, logos, other names and marks, and related product and service names, design marks and slogans (Intellectual Property) are the sole and exclusive property of Utopia. Except as otherwise provided in this Agreement, Referrer may not use any of the foregoing without the prior consent of Company.
8.2 Utopia grants you a restricted licence to use the Intellectual Property for the sole purpose of facilitating Referrals and communicating with third parties. Nothing in this Agreement grants any form of right, title or ownership by You of Utopia’s Intellectual Property.
8.3 Any feedback, data, answers, questions, comments, suggestions, ideas or the like which Referrer sends to Company relating to any service provided by Company will be treated as being non-confidential and non-proprietary. Company may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever.
9.1 The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.
9.2 Nothing in this Agreement shall require You to refer prospects to Utopia or to engage in any activities on behalf of or for the benefit of Utopia. No exclusivity for either party is expressed or implied in this Agreement.
9.3 Force Majeure means an event or sequence of events beyond a party's reasonable control preventing or delaying it from performing its obligations under the Agreement. Inability to pay is not Force Majeure. A party will not be liable if delayed in or prevented from performing its obligations hereunder due to Force Majeure, provided that it:
9.3.1 promptly notifies the other of the Force Majeure event and its expected duration, and
9.3.2 uses reasonable endeavours to minimise the effects of that event.
9.4 If, due to Force Majeure, a party:
9.4.1 is or is likely to be unable to perform a material obligation, or
9.4.2 is or is likely to be delayed in or prevented from performing its obligations for a continuous period of more than 60 days total in any twelve months of operation of this Agreement, the other party may, within 30 days, terminate this Agreement on notice.
9.5 The terms of this Agreement may be amended by Utopia at any time and without notice to You. Any changes will be published on the website and will be deemed to have been accepted 7 days after publication.
9.6 The unenforceability of any term of this Agreement will not affect the enforceability of any other part.
9.7 Failure by Utopia to enforce at any time or for any period any one or more of the terms or conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement.
9.8 Each party shall comply with applicable Bribery Laws, including ensuring that it has in place adequate procedures to ensure compliance with the Bribery Laws and use all reasonable endeavours to ensure that it complies with any Customer Policies relating to prevention of bribery and corruption (as updated from time to time), and each shall use all reasonable endeavours to ensure that:
9.8.1 all of that party’s personnel
9.8.2 all others associated with that party, and
9.8.3 all of that party’s subcontractors, involved in performing the Services or with this Agreement so comply.
9.9 Without limitation to the above sub-clause, neither party shall make or receive any improper payment, or allow any such to be made or received on its behalf, either in New Zealand or elsewhere, and will implement and maintain adequate procedures to ensure that such bribes or payments are not made or received on its behalf.
9.10 The headings used throughout this Agreement are for convenience only and do not form part of the Agreement itself.
9.13 Utopia shall be free to assign or subcontract any or all of its obligations under this Agreement, and will provide You with notice of the same.
9.14 You may not, without Utopia’s prior written consent, assign or subcontract any right or obligation under this Agreement, in whole or in part.
9.14 Any notice referred to in this Agreement sent by Utopia shall be in writing (whether by email or letter) to the contact details held on Your account. It is Your responsibility to ensure these are accurate
9.15 Any terms in this Agreement that, by their nature and meaning, are applicable to circumstances arising because of and following the expiry or termination of this Agreement shall remain if full force and effect. The expiry or termination of this Agreement shall not discharge the liability of either party arising out of a breach of this Agreement during the term of the same.
9.16 Provided that You remain in compliance with the surviving terms of these Terms and Conditions, Utopia’s obligations to pay Commission to You under this Agreement will continue.
Governing Law & Jurisdiction
9.17 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with the law of New Zealand.
9.18 The parties irrevocably agree that the courts of New Zealand shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter.
9.19 This Agreement contains the whole agreement between the parties relating to its subject matter and supersedes and replaces any prior written or oral agreements, representations or understandings between them unless expressly incorporated by reference in this Agreement. Each party acknowledges that it places no reliance on, and shall have no remedy in respect of, any representation (whether innocent or negligent) made but not expressly incorporated into this Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.