Preamble
These Terms for Sales Agents (“Terms”) apply when you (“Sales Agent”) enter into a collaboration with BonApp Group SA, Route de la Claie aux Moines 24, 1090 Lutry La Croix Switzerland (“BonApp”). Sales Agent and BonApp are each referred to individually as a “Party”, and together referred to as “Parties”.
These Terms, together with all other referenced documents, form a legally binding agreement (“Agreement”) between BonApp and the Sales Agent. BonApp provides a software solution, including a web platform available on https://www.bonapp.app/ (together, the “Services”), which supports restaurants and other entities (“Partners”) to run and manage the internal organizational tasks as well as simplifies the ordering and payment process for Partner’s end-customers.
The Sales Agent wishes to refer to BonApp Partners that may be interested in BonApp’s products and services, and BonApp wishes to compensate for such referrals with a Referral Fee. If the Sales Agent does not agree to these Terms, the Sales Agent may not enter into a collaboration with BonApp and get compensated by Referral Fees.
Sales Agent’s terms and conditions are excluded.
1 Definitions
For the avoidance of doubt, the following terms written in capital letters throughout the Terms are defined as follows:
“Qualifying Partner” is any new Partner of BonApp, excluding the Sales Agent, who joins based on the Sales Agent’s introduction to BonApp and engages with the platform within 3 months of the referral. The Sales Agent is not eligible to be considered a Qualifying Partner for their own restaurant or any other entity.
“Referral Fee” is 1% of Qualifying Revenue generated by BonApp with Services within the first year after the engagement of BonApp by such Qualifying Partner.
“Qualifying Revenue” is 25% of the total revenue actually received by BonApp from Qualifying Partners who have engaged with BonApp.
2 Referral
2.1 General terms
The Sales Agent is under no obligation to refer potential new Partners to BonApp.
If Sales Agent refers a Qualifying Partner, Sales Agent is solely responsible to ensure that Qualifying Partner mentions the Sales Agent as the basis for contacting BonApp. If the Qualifying Partner fails to do so, or if there is any other ambiguity regarding the status of the Sales Agent as such for a specific Qualifying Partner, it is in BonApp’s sole discretion to decide whether or not the Sales Agent qualifies as a Sales Agent for this Qualifying Partner.
BonApp decides, at its own discretion and without providing reasons, whether or not to enter into an engagement with any Qualifying Partner.
2.2 Parties’ status
The relationship between the Parties shall at all times be that of independent contractors. No employment, partnership or joint venture relationship is formed by this Agreement and at no time may the Sales Agent position itself as affiliated to BonApp, except as an independent Sales Agent.
Within the contractual limits set by BonApp, the Sales Agent is entitled to enter into agreements with Qualifying Partners on behalf of BonApp (“Qualifying Agreements”). The Sales Agent shall make no warranty either expressed or implied on behalf of BonApp, and shall not incur any expenses on behalf of BonApp.
Upon successfully concluding a Qualifying Agreement with a Qualifying Partner, the Sales Agent shall upload a copy of the signed contract to the BonApp’s designated system as specified during the mandatory training session, within 10 days of the Qualifying Agreement’s signature. BonApp will issue the invoice, collect the payment and transfer the Referral Fee to the Sales Agent in case of Qualifying Agreements.
2.3 Mandatory training
The Sales Agent shall, as a condition precedent to commencing the collaboration according to this Agreement, complete a mandatory training session provided by BonApp at the Sales Agent’s own expense. The cost of this training session shall be 50 CHF. The training session is designed to provide the Sales Agent with essential information, materials, and resources, including but not limited to posters, pitching sessions, and other relevant materials, necessary for effective participation in the referral program, encompassing an introduction to BonApp’s values and a comprehensive understanding of all the Services provided.
2.4 Referral Fee & Information
BonApp shall pay the Sales Agent the Referral Fee specified in Section A for all Qualifying Partner on a monthly basis. Payment of the Referral Fee is due 14 days after the end of the month, for the preceding month.
The Sales Agent is not entitled to any Referral Fee if:
- BonApp decides not to provide services to a Qualifying Partner,
- The Qualifying Partner does not pay any services fee according to the Terms for Points of Sales available, or
- The Qualifying Partner stops using the Services.
2.5 Reporting & Auditing
The Sales Agent acknowledges and agrees that BonApp is bound by strict confidentiality obligations and cannot inform the Sales Agent about any specific engagement with Qualifying Partners. The quarterly information and fee payment shall solely include the total amount of the Referral Fee across all Qualifying Partners and not any individual break-down of fees earned. The Parties may, at the Sales Agent cost and expense, hire an independent auditor to verify the correct calculation of the Referral Fee.
3 Duration & Termination
This Agreement enters into force on the date of Sales Agent’s acceptance of the Terms (“Start Date”) and remains in effect until the termination by one of the Parties OR for one year (“Duration”). It may be terminated in writing by either Party at any time with immediate effect, if:
- the other Party is in material breach of this Agreement (incl. payment default) and such breach is not curable nor cured within 14 days of notice; or
- the other Party becomes insolvent or is the subject of bankruptcy or other insolvency proceedings.
In all other cases, the Agreement may be terminated by either Party with a one month written notice.
Upon termination of this Agreement, the Sales Agent’s entitlement to the Referral Fee shall continue with respect to the Qualifying Customers engaged during the term and 90 days after termination, provided, however, that the agreement was not terminated for cause by BonApp.
4 Confidentiality
The Sales Agent and BonApp are free to inform the Qualifying Partners about this Agreement and the
Referral Fee.
Unless otherwise stated in this Agreement, the Sales Agent shall respect the confidentiality of any information that may come to the Sales Agent’s knowledge in the course of the Sales Agent’s relations with BonApp. This obligation extends to all information relating both to BonApp’s internal organisation and to its relations with third Parties.
The Sales Agent shall also remain bound by this duty of confidentiality following termination of the Sales Agent’s contract with BonApp.
5 Limitation of Liability
Each Party is fully liable to the other Party for losses and damages caused with intent or gross negligence. In the case of unintentional or negligent acts and omissions, the Parties’ liability shall be excluded to the extent permitted by Swiss law.
Neither Party shall be liable for any failure to perform its obligations under this Agreement (other than payment obligations) caused by circumstances beyond the Parties’ reasonable control (force majeure).
6 No exclusivity & Non-compete
This Agreement is not exclusive. BonApp is free to engage other Sales Agents. The Sales Agent is free to conduct the same activity for others, including competing services upon BonApp’s notice. A competing service is any service that is (i) the same as or substantially the same as BonApp’s services; (ii) any service that provides the same or similar functionality to or otherwise competes with BonApp’s services; or (iii) any service that is generally considered to fall in the same service category as or to be a part of the same service range with BonApp’s services.
7 Non-solicitation
During the term of this Agreement and for a period of six months after termination for any reason, the Sales Agent will not, directly or indirectly, (i) induce or attempt to induce any employee of BonApp to leave the employ or interfere in any way with the relationships between BonApp and any such employee; (ii) employ or otherwise engage as an employee, independent freelancer or otherwise any such employee of BonApp; or (iii) induce, attempt to induce, or in any other way interfere with the relationship between BonApp and any company, customer, supplier, licensee or other person or entity that has done business with BonApp during the term of this Agreement to stop doing business with BonApp.
8 Data Protection
In the performance of this Agreement, the Parties agree to comply with the applicable provisions of data protection laws. The Parties are aware that the conclusion and performance of this Agreement may result in the processing of personal data of the Parties’ or the Parties’ affiliates, shareholders, members, officers, and employees. Where required by the respective legal regulations, the Parties agree to conclude a data processing agreement to further define their duties regarding data protection.
9 Miscellaneous
Entire Agreement: This Agreement constitutes the entire agreement, and supersedes all prior agreements, between the Parties relating to the subject matter hereof.
Amendments: All amendments and supplements to this agreement must be made in writing (incl. electronic text).
Notices: Notices hereunder shall be given in writing to the last communicated or available address. ‘In writing’ shall, unless explicitly indicated otherwise, include e-mail.
No assignment: Neither Party may assign any of its rights, obligations or claims under this agreement.
Severability: If any provision of this agreement (in whole or part) is held to be illegal, invalid or otherwise unenforceable, the other provisions will remain mutatis mutandis in full force and effect.
Governing Law & Jurisdiction: This Agreement is governed by Swiss law, with the exclusion of conflicts-of-laws provisions of the Swiss Code of International Private Law and the UN Convention on Contracts for the International Sale of Goods (CISG). The exclusive jurisdiction for all disputes arising from or in connection with this Agreement have the ordinary courts at the seat of BonApp.