MEMBERSHIP IN THE OPTILIANCE PROGRAM IS AT THE SOLE DISCRETION OF OPTICAL ALLIANCE MANAGEMENT AND SHALL BE CONSIDERED PER PRACTICE LOCATION AND NOT PER MEMBER.
In this Agreement unless the context requires otherwise or the contrary intention appears:
“Agreement” means this Agreement with all annexures and appendences hereto.
“Calendar Day” means a period from midnight on a given day to midnight on the next day, i.e. a period of 24 (twenty four) hours starting from midnight.
“Confidential Information” means all and any information, including written, oral and electronic information disclosed at any time by one Party (“the Disclosing Party”) to the other Party (“the Receiving Party”), concerning the business, commercial and/or financial affairs of the Disclosing Party.
“CPA” means the Consumer Protection Act 68 of 2008.
“Member” means an independent registered Optometric Practice, duly registered as such as a Member of Optical Alliance and “Members” has a corresponding meaning.
“Promotional Marketing Program” means the Promotional Marketing Program made available to a Member, subject to the Promotional Marketing Service package selected by the Member, as the Promotional Marketing Services package as per Annexure “A” hereto, and subject to the terms and conditions applicable, as from time to time.
“Promotional Marketing Services” means the Promotional Marketing Service Offerings made available to a Member, subject to the Promotional Marketing Services package selected by the Member, as per Annexure “A” hereto, and subject to the terms and conditions applicable, as from time to time.
“Optical Alliance” means Optical Alliance (Pty) Ltd (CRN: 2013/076326/07), a private company duly registered and incorporated in terms of the Company Laws of the Republic of South Africa (also referred to as “OA”).
“Party” means a Party to this Agreement; “Parties” has a corresponding meaning.
“POPI Act” means the Protection of Personal Information Act No. 4 of 2013.
“Services” means the Promotional Marketing Services.
“Signature Date” means the date of last signature of this Agreement by the Parties;
“VAT” means Value Added Tax in terms of the Value Added Tax Act, 1991 (as amended). INITIAL
1.2.1 In this Agreement unless the context otherwise requires:
126.96.36.199 Words importing:
188.8.131.52.1 The singular includes the plural and vice versa;
184.108.40.206.2 Any gender includes the other gender;
220.127.116.11.3 If a word or phrase is defined cognate words and phrases have corresponding definitions;
18.104.22.168 A reference to:
22.214.171.124.1 A person includes a corporation and bodies politic;
126.96.36.199.2 A person includes the legal personal representative, successor and assigns of that person;
188.8.131.52.3 A statute, ordinance, code or other law includes regulations and other statuary instruments under it in consolidations, amendments, re-enactments or replacements of any of them made by any legislative authority;
184.108.40.206 Writing includes any mode of representing or reproducing words in tangible and permanently visible form, and includes email and fax transmission;
220.127.116.11 A reference to a recital, clause, schedule, annexure or appendix is to a recital, clause, schedule, annexure or appendix of or to this Agreement;
18.104.22.168 Currency is, unless otherwise stated a reference to the lawful currency of South Africa;
22.214.171.124 If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, then, notwithstanding that it is only in a definition, effect shall be given to that provision as if it were a substantive provision in the body of this Agreement;
126.96.36.199 Where any term is defined within a particular Clause, other than the interpretation Clause, that term shall bear the meaning ascribed to it in that Clause wherever it is used in this Agreement;
188.8.131.52 Where any number of days is to be calculated from a particular day, such number shall be calculated as excluding such particular day and commencing on the next day. If the last day of such number so calculated falls on a day which is not a business day, the last day shall be deemed to be the next succeeding day which is a business day;
184.108.40.206 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;
220.127.116.11 The terms of this Agreement having been negotiated, no provision herein shall be construed against or interpreted to the disadvantage of any Party by reason of such Party having or being deemed to have structured, drafted or introduced such provision or by reason of the extent to which any Party or its professional advisors participated in the preparation of this Agreement and accordingly the contra proferentem rule shall not be applied in the interpretation of this Agreement;
18.104.22.168 Headings shall be ignored in constructing this document.
This Agreement shall remain operative and binding, following signature thereof by all parties concerned, for a fixed period of 12 (twelve months), or until such time as terminated by virtue of the provisions contained herein.
A Member who signs up for the Optiliance Program:
3.1. Will be required to offer the OA promotions and market them instore. This will be communicated to the Member 30 (thirty) calendar days in advance giving a Member sufficient time to prepare for the promotion; and
3.2. Will be required to display any OA promotional material sent to the store by OA head office; and
3.3. Will be required to display signage inside and outside the Member’s store as per the direction given by OA. OA will assist the member with necessary artwork in digital form to size.
3.4. Will be required to be fully aware of the mechanics of the promotion that will be disseminated by OA ensure that they are fully aware of the promotional mechanics which will also be sent to the Member via email and webinars where applicable.
3.5. Will be required to integrate their current practice social media pages onto the Members Go High Level account to ensure that OA is able to post and maintain these pages on the members behalf.
3.6. Will be obliged to advise OA within 3 (three) days if it is placed in business rescue, is made or declared insolvent, is wound up, is made the subject of an official management, arranges with its creditors, or if any other event occurs which might jeopardise or restrict OA or its Preferred Suppliers in the performance of its / their obligations under this Agreement towards the Member.
3.7. Shall not use Registered trademarks or trademarks pending registration of OA for any purpose other than those referred to in this Agreement. Prior written authorisation is to be obtained from OA before utilising such Trademarks, whether registered or pending registration. A Member shall obtain prior written authorisation to utilise any other markings of OA.
4.1. The monthly fees payable by the Member to OA are payable monthly in advance without deduction, set-off and free of exchange in respect of the selected Promotional Marketing Package are set out in Annexure “A” hereto.
4.2. OA shall provide the Member with a monthly invoice by no later than the last day of each month in respect of Promotional Marketing Services rendered to the Member by OA during the course of that month.
4.3. The Member will make payment of the invoice submitted by OA to the Member strictly by way of EFT for the initial set up fee and by Subscription on the OA Secure Payment portal thereafter only, on the 1st (first) day of every consecutive month during the entire duration of this Agreement.
OA will, subject to the specific Promotional Marketing Package selected, as per Annexure “A” hereto, and subject to the specific terms and conditions applicable to the selected Promotional Marketing Package:
5.1. Provide the Member with a free webpage directory listing, irrespective of the Promotional Marketing Package, selected by the Member; and
5.2. Provide the Member with professional content for not less than 3 (three) promotions per year in respect of the Boost & Maxx packages as per Annexure “A” hereto; and
5.3. Ensure that the Member’s Optometric Practice is visibly marketed online on the following platforms in their geographical area:
a. Meta (Facebook, Instagram)
b. Optical Alliance website directory listing
c. Google (Google adverts, YouTube, etc)
(These may change at any time based on the evolution of online marketing over time.)
5.4. Assist the Member to set up all the webpage platforms if the Member does not have current webpage platforms, however, this will exclude the creation of individual websites; and
(This service is available at an additional cost.)
5.5. Supply the Member with a personal landing webpage for the Member’s Optometric Practice; and
5.6. Send out newsletters to customers of the Member that are relevant and/or promotional, to the Member’s customer databases on their behalf.
5.7. Determine the Geographical Radius around a Members Optometric Practice, which will assess and determine on an individual basis depending on the area/location of the Member’s store (metropolitan, urban or rural).
6.1. The Member will indemnify OA from and against all losses, expenses or costs, from whatsoever cause arising, whether direct or indirect, which might be suffered or incurred by OA as a result of the Member concluding the Agreement with OA ; and
6.2. The Member hereby furthermore indemnifies and holds OA harmless against any and all Liabilities of whatsoever nature (including indirect or consequential loss, as permitted under applicable Laws) and howsoever arising out of:
a. the dissemination of any information pertaining to any Data Subject as per POPIA to any third party; and
b. the performance, non-performance or breach of any representation, warranty, undertaking or obligation under or provision of this Agreement by OA; and
c. the negligence or wilful misconduct of OA or its personnel or its contractors; and
d. any act or omission by OA or its personnel arising out of the performance or non-performance of this Agreement; and
e. any infringement or alleged infringement of any Intellectual Property of any third party as a result of the performance of the Promotional marketing services by OA.
6.3. These provisions will remain operative and binding between the parties, irrespective of the termination of this Agreement.
7.1. The Parties agree that OA will be making available to the Member proprietary information. All such information is deemed, by definition, to be confidential and the requirements of non-disclosure shall apply.
7.2. The parties agree that OA will only collect sales information consistent with the purpose for which it is required, which will be apparent from the context in which information is requested. In providing the sales and / or personal information to OA, the Member acknowledges that the information has been collected directly from them and the Member has consented to its processing by OA. Where the Member is providing another person’s or business’ personal information, the Member acknowledges that it has obtained such person’s / business’ consent to processing of their personal information for purposes of OA providing the relevant services as agreed upon in terms hereof. OA will take such steps as may be required to ensure that it complies with any South African Law, inclusive of the POPI Act, but not limited thereto, in respect of processing, transfer, storage, security and use of the Member’s personal information and / or sales information. For purposes as set out in terms hereof, a Member consents thereto that any OA Preferred Supplier may provide OA with the Member’s sales information and in doing so, indemnifies the Preferred Supplier and OA from any costs, fines, claims and / or expenses howsoever arising.
7.3. Save for the provisions as set out in Clause 7.2 above, the Member and OA will not, during the continuance of this Agreement or at any time after its termination, disclose to any person, firm or company (third Party) any confidential information relating to the other Party, its Members and customers, products, business or trade secrets, including Member lists, mailing lists, pricing structures or other information that is not public knowledge.
7.4. Should it be proven that in fact such confidential information has been disclosed or utilised, OA and / or its Preferred Supplier shall have the right to institute whatever legal process is necessary to prevent or protect such information being published in the public domain, inclusive of but not specifically limited to the launching of a claim for damages.
OA may terminate this Agreement at any time, upon providing 24 (twenty-four) hours’ written notice to the Member if:
8.1. The Member fails to duly perform any obligation, or breaches any of the terms of this Agreement, and fails to remedy such breach pursuant to receipt of notice from OA of such breach, and subsequent failure within the stipulated time to remedy the breach;
8.2. The Member ceases to carry on the business it carried on at the commencement of this Agreement;
8.3. Any financial obligations of the Member under this Agreement are not met when due;
8.4. The Member is declared insolvent, or undertakes a business rescue as envisioned by the Companies Act;
8.5. A resolution is passed for the winding up or dissolution of the Member, or a winding up petition is presented in respect of the Member;
8.6. A receiver, manager and / or a provisional liquidator is appointed to the whole or any part of the assets of the Member;
8.7. The Member has directly or indirectly engaged in or has been involved in conduct or practices in its business dealings, which in the exclusive opinion of OA are improper or unethical;
8.8. The Member directly or indirectly becomes involved in the purchase, ownership or management of an enterprise, directly competing with OA or any of OA Preferred Suppliers; or
8.9. The Member’s performance fails to reach an acceptable level based on negotiation and discussions and information in the proposal, provided by the Member.
8.10. Any behaviour that will compromise the reputation or wellbeing of OA.
8.11. The Member becomes directly or indirectly involved in any business undertaking, in whatsoever form, which is in direct competition with OA and the services offered by OA.
8.12. OA reserves the exclusive right to terminate this Agreement should OA at any time resolve that it is no longer economically viable to proceed with the Promotional Marketing Program and, if so, shall not be held liable in any way whatsoever and from any cause whatsoever arising in the event that OA terminates the Program as envisaged aforesaid.
8.13. If the Member terminates membership with OA, in which event membership to this Promotional Marketing Program shall be terminated with immediate effect, OA reserves the right to retain the Customer Relationship Program.
A Member wishing to terminate this Agreement with OA, will be required to:
9.1. Give OA no less than 1 (one) clear calendar month’s written notice of termination as this is a fixed 12 (twelve) month agreement and notice must be given within 1 (one) clear calendar month prior to termination of the 12 (twelve) month fixed period of this agreement; and
9.2. Written notice of termination must be given on or before the last day of the preceding calendar month; and
9.3. Failure to give notice on the last day of the preceding calendar month, will result in the Member remaining liable for a full month’s subscription charge for that month, and in addition be held liable for a full calendar months charge for the notice period month.
10.1. Upon termination of this Agreement a Member agrees that OA may grant another replacement Member with membership to the OA Promotional Marketing Program falling in the geographical area of the store of the terminating Member, and the terminating Member waives all his/her/its rights and/or claims in relation thereto from whatsoever cause arising.
10.2. The Member agrees and understands that the exclusivity of the OA Promotional Marketing Program is only applicable for subscribed and paying Members who comply with all the terms & conditions contained in this Agreement.
10.3. The member may have the option of joining again at a lower or higher package if there is no other OA member on that package in the same area.
11.1. The Member shall not, without the prior written consent supplied by OA, assign, transfer or in any manner make-over this Agreement to any person, firm or company whomsoever or whatsoever.
11.2. OA reserves the right to decline the transfer or assignment of the Agreement at its sole discretion.
11.3. OA may cede or assign the whole or any part of its rights or obligations under this Agreement to any other Party without requiring prior consent from the Member.
This agreement contains the entire agreement between the parties hereto and no conditions, warranties or representation made by or on behalf of any Party shall be of any force and effect, unless herein contained, and no officer, agent or representative shall have any authority to make representations, statements, warranties or agreements that are not herein expressed unless the same are made in writing and signed by a duly authorised representative of such Party. No waiver by any Party of any of the terms hereof or of a breach of any of the provisions hereof shall be deemed to be a waiver thereafter of any such term or of any succeeding breach. This agreement cannot be altered, enlarged, supplemented or abridged unless signed by a duly authorised director and / or representative of each Party, and specified therein to be an amendment hereof and attached hereto. Any such variation desired by either Party to this agreement may be sought on the provision that the Party requiring an amendment provides the other Party 30 (thirty) calendar days’ written notice of the required amendment.
13.1. “Force Majeure Event" means an event beyond the control of the affected Party which was not reasonably foreseeable by the affected Party and which was not caused by and could not have been reasonably planned for, or avoided by the exercise of reasonable foresight and/or reasonable care and diligence on the part of the affected Party, including acts of God, strikes, lockouts and other industrial disputes (except in relation to that Party's own Personnel), war, riot or civil unrest / commotion but only where and to the extent that:
13.1.1. the non-affected Party agrees (such agreement not to be unreasonably withheld, delayed or conditioned) that the event asserted has prevented the affected Party from performing any or all of its obligations under this Agreement; and
13.1.2. the event was not caused by the act or omission of the sub-contractor of the affected Party.
13.2. The Member and OA shall have no right of action or claim against each other for delays or breaches of this Agreement caused by Acts of God, War, Civil Commotion, Government Order, Strikes, Lockouts, Fires, Accidents or other Force Majeure beyond the control of either Party.
14.1. Each Party gives the other Party the following warranties on the Signature Date:
14.1.1. a Party has and will have the power and capacity to enter into and perform his / its obligations in terms of this Agreement;
14.1.2. as at the Termination Date, it / he has and will have all consents and approvals that are required in relation to the conclusion and/or performance of its / his obligations under this Agreement;
14.1.3. the conclusion of this Agreement does not contravene any agreement to which such Party is bound.
14.2. Save for the express warranties and representations provided in this Agreement, including those set out in clause 6.1 above, neither of the Parties provide the other Party with any other warranties.
OA waives any lien or right of retention it may have and warrants that no subcontractor or other third party shall have any claim, lien, special notarial bond, pledge, charge or any other encumbrance whatsoever against any of the material and equipment used in the performance of the Promotional Marketing services, and/or any other property supplied by the Member to OA for the purposes of this Agreement.
Should any Party (“the Defaulting Party”) commit a breach of any of the provisions hereof, then any one of the other Parties (“the Aggrieved Party”) shall be entitled to require the Defaulting Party to remedy the breach upon 7 (seven) days written notice to do so. If the Defaulting Party fails to remedy the breach within the period specified in such notice the Aggrieved Party shall be entitled to claim immediate payment and / or performance by the Defaulting Party of all of the Defaulting Party’s obligations whether or not the due date for payment and / or performance shall have arrived, in either event, without prejudice to the Aggrieved Party’s right to claim damages. The aforegoing is without prejudice to such other rights as the Aggrieved Party may have at law; provided always that, notwithstanding anything to the contrary contained in this Agreement, the Aggrieved Party shall not be entitled to cancel this Agreement for any breach by the Defaulting Party unless such breach is a material breach going to the root of this Agreement and is incapable of being remedied by a payment of money or, if it is capable of being remedied by a payment of money, the Defaulting Party fails to pay the amount concerned within 20 (twenty) Business Days after such amount has been determined.
17.1. The security of your information is important to us. When you enter sensitive information, such as a credit card number, we utilise a 3D-secure portal with Standard Bank which includes a vault that securely keeps credit card details, and which is encrypted by using secure socket layer (SSL) technology.
17.2. We follow generally accepted standards to protect the information submitted to us, both during transmission and once we receive it. No method of electronic transmission and storage is 100% secure and we cannot guarantee its absolute security as we are reliant on third party banking institutions and their systems deployed in relation to which OA undertakes to strictly adhere, however, cannot be held liable for any and all losses, expenses or costs from whatsoever cause arising with reference to payments and transactions on the Member’s credit card.
17.3. The Member specifically and unconditionally undertakes to indemnify OA against any liability, loss, banking costs and/or damages from whatsoever cause arising.
18.1. Any notice given by either Party shall be hand delivered or sent by prepaid registered post, faxed or emailed to the other’s domicilium citandi et executandi (i.e. address where notices and / or legal process may be served) and shall be deemed to have been delivered 5 (five) working days after it has been sent by prepared registered post to the Party’s domicilium citandi et executandi, unless the contrary is proved.
18.2. 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 his / her / its chosen domicilium citandi et executandi.
18.3. Optical Alliance chooses the following address at its domicilium citandi et executandi: 9 VAN SCHALKWYK STREET, NEWCASTLE, KZN, 2940.
If any clause or part of this Agreement be declared illegal or unenforceable by any Court, or recognisable authority, it shall not affect the remaining clauses or part of the Agreement, which shall remain in effect unless specifically consented to otherwise in writing.
20.1. The Parties agree that the terms and conditions of this Agreement are the result of negotiations between them, and that this Agreement shall not be construed in favour of or against any Party by reason of the extent to which any Party or its professional advisors participated in the preparation of this Agreement.
20.2. This document contains the entire agreement between the Parties in regard to the subject matter hereof.
20.3. No Party shall be bound by or have any claim or right of action arising from any express or implied term, undertaking, representation, warranty, promise or the like not included or recorded in this document whether it induced the contract and/or whether it was negligent or not.
20.4. No extension of time or waiver or relaxation of any of the provisions or terms of this Agreement or any agreement, or other document issued or executed pursuant to or in terms of this Agreement, shall operate as an estoppel against any Party in respect of its rights under this Agreement.
20.5. No failure by a Party to enforce any provision of this Agreement shall constitute a waiver of such provision or affect in any way a Party’s right to require the performance of such provision at any time in the future, nor shall a waiver of a subsequent breach nullify the effectiveness of the provision itself.
20.6. The Parties undertake at all times to do all such things, to perform all such acts and to take all such steps and to procure the doing of all such things, the performance of all such actions and the taking of all such steps as may be open to them and necessary for or incidental to the putting into effect or maintenance of the terms, conditions and import of this Agreement.
20.7. The CPA shall not apply to a Member / Applicant which is a juristic person or whose asset value or annual turnover, at the time of signature of this agreement, equals or exceeds the threshold value determined by the Minister.
20.8. Each provision herein contained is severable, the one from the other, and if at any time any provision is or becomes or is found to be illegal, invalid, defective or unenforceable for any reason by any competent Court, the remaining provisions shall be of full force and effect and shall continue to be of full force and effect.
The provisions of this Agreement shall be binding upon the successors-in-title and assigns of the Parties.
The Agreement shall be governed by and construed in accordance with the Laws of the Republic of South Africa.
This Agreement shall be capable of execution in two or more counterparts, each of which shall be deemed to be an original, but which together shall constitute one document.