Parties PartnerNET Pty Ltd (ACN 615 570 548) of PO Box 21387 World Square NSW 2002 (PartnerNET) Referral Programme Applicant (Referrer)
A. PartnerNET owns, operates and licenses access to a system (PartnerNET Platform) and a mobile application (PartnerNET Application) through which it provides an on-referral service.
B. The PartnerNET Platform and the PartnerNET Application provide a mechanism which enables advisors to upload relevant details of their Clients to the PartnerNET Platform to obtain an on-referral to a suitable Service Provider.
C. The terms of this agreement govern the services offered by PartnerNET to the Referrer located in Australia.
The parties agree, in consideration of, among other things, the mutual promises contained in this agreement as follows:
1. Definitions and interpretation clauses 1.1 Definitions In this agreement: AFS Licence means an Australian Financial Services Licence. Claim means any action, claim, proceeding or demand whatsoever, whether presently existing or arising at any time in the future and whether referable to events or circumstances which have already occurred or which may occur in the future. Clawback Fee has the meaning given in clause 5.4. Client means an individual or company whom the Referrer has introduced to PartnerNET for the purpose of obtaining the services of a Service Provider. Confidential Information has the meaning given in clause 8.1. GST has the meaning it has in the GST Act. GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth). including means including without limitation. Initial Term means the period of 36 months commencing on the date of execution of this agreement by both parties. Intellectual Property Rights any and all intellectual and industrial property rights anywhere in the world (including present and future intellectual property rights) including (but not limited to) rights in respect of or in connection with: (a) any related confidential information, trade secrets, know- how or any right to have information kept confidential; (b) copyright (including moral rights, future copyright and rights in the nature of or analogous to copyright); (c) inventions (including patents); (d) trademarks, service marks and other related marks; (e) designs; (f) business names, domain names and company names; (g) semiconductor rights, eligible layouts and circuit layouts; and (h) software, software programs and source code. whether or not existing at the date of this agreement and whether or not registered or registrable and includes any and all variations, modifications or enhancements to each of them together with any application or right to apply for registration of those rights and includes all renewals and extensions. Laws means any statute, regulation, proclamation, ordinance or by-law in Australia and any law, regulation, authorisation, ruling, judgment, order or decree of any government or governmental, semi-governmental, administrative, fiscal, or judicial body, department, commission, authority, tribunal, agency or entity. Licence means a licence, approval or permit and includes an AFS Licence. Loss means all losses, costs, expenses and damages (including legal costs and disbursements) sustained or incurred, whether directly or indirectly or consequentially or in any other way. PartnerNET Application has the meaning given in Background A, further details of which are in Schedule A. PartnerNET Platform has the meaning given in Background A, further details of which are in Schedule A. PartnerNET Service Fees means the fees that are set out in Schedule B and payable in accordance with clause 5.3. PartnerNET Services has the meaning given in clause 4.1. Personal Information has the meaning given in the Privacy Legislation. Potential Client means an individual or company seeking to locate a service provider for the provision of services through PartnerNET. Privacy Legislation means the Privacy Act 1988 (Cth) and the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth), as amended from time to time. Referral Fee means the fees that are set out in Schedule B and payable in accordance with clause 5.1. Referrer Account has the meaning given in clause 4.2. Service Provider means those engaged with PartnerNET through a Service Provider Agreement. Service Provider Agreement means the agreement between a Service Provider and a Client which has been referred by PartnerNET for the provision by a Service Provider to the Client of services in relation to any of the matters in Schedule B. Term means the term of this agreement, being the Initial Term and any extension under clause 2(b).
2. Term (a) This agreement commences on the date it is executed by both parties, and continues for the Initial Term, unless it is terminated earlier under clause 7. (b) The parties may agree to extend this agreement at the end of the Initial Term.
3. Referrer's Appointment 3.1 Appointment non-exclusive (a) Pursuant to the terms of this agreement, PartnerNET appoints the Referrer, and the Referrer accepts the appointment, as a non-exclusive referrer of Clients to PartnerNET for on-referral to Service Providers. (b) Nothing in this agreement restricts PartnerNET from obtaining referrals from any third party or appointing any third party as a referrer to PartnerNET. 3.2 Promotion The Referrer agrees to: (a) provide Potential Clients from its network of contacts with information about PartnerNET from time to time; (b) recommend the PartnerNET Service to Potential Clients, provided that: (i) it ensures that all information provided or statements made by the Referrer about PartnerNET or the PartnerNET Services is limited to information provided by PartnerNET and is accurate in all respects; and (ii) it makes no representations that it has any authority to enter into agreements on behalf PartnerNET with any Potential Clients or that it is a related entity of PartnerNET; and (c) introduce Potential Clients to PartnerNET through the PartnerNET Services. 3.3 Limited role (a) The Referrer acknowledges and agrees that its role is limited to the promotional and referral activities covered by this agreement, and that each Potential Client will be required to enter into a contractual arrangement with PartnerNET or Service Providers directly. (b) The Referrer acknowledges and agrees that PartnerNET may in its sole discretion refuse to accept any Potential Client for any reason. 3.4 Performance (a) The Referrer must at all times act diligently and honestly towards PartnerNET, perform its obligations to the best of its ability and comply with all relevant Laws. (b) The Referrer represents and warrants that it will: (i) provide accurate information to Potential Clients about PartnerNET and the PartnerNET Services; (ii) not make any promises, representations, warranties or guarantees with reference to the subject matter of this agreement except as expressly provided for pursuant to this agreement or as otherwise directed by PartnerNET; (iii) not make any promises, representations, warranties or guarantees that it acts on behalf of PartnerNET or has authority to enter into any agreements on behalf of PartnerNET; (iv) disclose to PartnerNET any conflicts of interest; and (v) comply with all relevant Laws including State and Federal laws and local government laws and regulations (including without limitation all privacy laws). (c) The Referrer undertakes not to promote, sell or refer any Potential Clients or Clients to any product or service that is the same or similar to the PartnerNET Services without the prior written consent of PartnerNET. (d) The Referrer must: (i) obtain written authorisation from each Client to upload their details, requirements and any other relevant information to the PartnerNET Platform; and (ii) provide such written authorisation to PartnerNET upon request.
5. Fees and Payment 5.1 Referral Fee PartnerNET will pay a Referral Fee to the Referrer in respect of any Potential Client that: (a) the Referrer can demonstrate was introduced to PartnerNET for the first time by the Referrer; (b) enters into a contractual agreement with a Service Provider described in Schedule C for the first time whilst this agreement is on foot; and (c) provides payment to the Service Provider under the contractual agreement in clause (b). 5.2 Reporting and invoicing (a) Within 30 days of the end of each month during the Term, PartnerNET will: (i) provide the Referrer with information regarding the Referrer's performance under this agreement, including the applicable Referral Fee payable for the relevant month (Monthly Report); and (ii) issue to the Referrer a recipient created tax invoice, or instruct the Referrer to deliver an invoice to PartnerNET (in the manner and form reasonably requested by PartnerNET), for the Referral Fee applicable for the previous month based on the information contained in the Monthly Report. Referrer Agreement Page 8 Doc ID 583910543/v1v4 (b) For the avoidance of doubt, PartnerNET need not provide a Monthly Report in respect of any month where no Referral Fees will be payable to the Referrer. 5.3 PartnerNET Service Fees In exchange for the grant of the licence to access and use the PartnerNET Platform and the PartnerNET Application, and the supply of the PartnerNET Services, the Referrer agrees to pay the PartnerNET Service Fees invoiced by PartnerNET. 5.4 Clawback Fee Where: (a) a Service Provider does not complete the payment of a commission to PartnerNET; (b) the Referrer breaches a provision of this agreement or engages in any misconduct in relation to the PartnerNET Services; or (c) a circumstance otherwise affects the provision of services to the Client, then within a reasonable period after receipt of notice of the above from PartnerNET, the Referrer must reimburse the Referral Fee received from PartnerNET for the relevant Client, in full, to PartnerNET (Clawback Fee). 5.5 Payment Subject to receipt of an invoice in accordance with this clause 5, each party will pay all correctly rendered invoices within 30 days after receipt. Any amount Referrer owes PartnerNET can be deducted from any money PartnerNET owes Referrer. Any amount Referrer owes PartnerNET may include any payment PartnerNET make on the behalf of Referrer for any service. 5.6 GST (a) The Referrer warrants to PartnerNET that the Referrer is registered for the purposes of the GST Act and will remain so for the Term. (b) To the extent that a party makes a Taxable Supply under or in connection with this agreement, except where express provision is made to the contrary, the Consideration payable by a party under or in connection with this agreement represents the Value of the Taxable Supply for which payment is to be made and on which GST is to be calculated. (c) If a party makes a Taxable Supply under or in connection with this agreement for a Consideration, which under clause 5.6(a) represents its Value, then the party liable to pay for the Taxable Supply must also pay to the party making the Taxable Supply at the same time any GST payable in respect of the Taxable Supply. (d) A party is not required to make a payment of GST unless it has received a Tax Invoice from the other party. (e) Terms used in this clause 5.6 have the meaning given in the GST Act.
6. Indemnity The Referrer agrees to release and hold harmless, indemnify and defend PartnerNET against any claim or liability (whether actual or prospective), loss, damage, cost or expense of any description, including legal fees on a solicitor and own client basis, from or in connection with: (a) any negligence, unauthorised acts, fraud, wilful default or dishonesty of the Referrer; (b) any failure by the Referrer to comply with this agreement; (c) misuse of any Confidential Information by the Referrer; and (d) any breach of law or infringement of any third party rights by the Referrer.
7. Termination (a) PartnerNET may terminate this agreement immediately if PartnerNET, acting reasonably, forms the view that the Referrer or its activities or conduct are or could be damaging to, or are likely to reflect unfavourably on, PartnerNET in any way (including if the Referrer makes misleading statements or representations about PartnerNET, damages the reputation of PartnerNET, or otherwise makes any disparaging comments about PartnerNET). (b) Either party may terminate this agreement by written notice to the other party immediately if: (i) the other party has committed a breach not capable of remedy; or (ii) the other party has committed a breach capable of remedy and has failed to remedy that breach within 14 days' of the date of a written notice issued by the other party specifying the breach and requiring it to be remedied. (c) Either party may terminate this agreement for no cause at any time by providing the other party with at least 30 day’s notice. (d) If this agreement ends for any reason, then: (i) each party must immediately return Confidential Information belonging to the other party, to that other party; or (ii) in the case of PartnerNET, if it is not reasonably practicable to return any Confidential Information held in the PartnerNET Platform, PartnerNET must delete that information from the PartnerNET Platform.
8. Information and Intellectual Property 8.1 If either party receives any information from the other which is identified as confidential or is, by its nature, confidential (Confidential Information), each party must only use the other’s Confidential Information in a limited way to perform its respective obligations or exercise its respective rights under this agreement. 8.2 Each party must keep the other’s Confidential Information secret and safe, treat it as its own confidential information and return it to the other party within a reasonable time after the termination or expiry of this agreement. 8.3 The PartnerNET Services, the PartnerNET Application, the PartnerNET Platform and all materials that PartnerNET provides to the Referrer remain the Intellectual Property Rights of PartnerNET and all rights not expressly granted under this agreement are expressly reserved to PartnerNET. 8.4 Each party must comply with the Privacy Legislation in the collection, holding, use and disclosure of Personal Information, as if that party were bound by the Privacy Legislation. 8.5 Without limiting clause 8.4, the Referrer must make all disclosures, and obtain all consents, required under the Privacy Legislation before uploading any Personal Information to the PartnerNET Platform or the PartnerNET Application, or otherwise providing any Personal Information to PartnerNET.
9. Warranties 9.1 Referrer warranties The Referrer warrants that at all times: (a) it holds and will continue to hold during the Term a current AFS Licence. PartnerNET is not required to hold an AFS Licence; (b) it holds any other current and valid Licence it is required by law to hold for the provision of its services in referring a Client under this agreement. PartnerNET is not required to hold any such licence; and (c) it holds explicit authorisation from each relevant Client to upload the Client’s details to the PartnerNET Application and the PartnerNET Platform under this agreement. 9.2 PartnerNET warranties PartnerNET warrants that at all times: (a) it has all necessary right and title to grant the license set out in clause 4.1; and (b) it is the sole and beneficial owner of all intellectual property contained in the PartnerNET Services, the PartnerNET Application and the PartnerNET Platform. 9.3 Mutual warranties Each party warrants to the other that: (a) it has capacity unconditionally to execute and deliver and comply with its obligations under this agreement; (b) it has taken all necessary action to authorise the unconditional execution and delivery of, and the compliance with its obligations under, this agreement; (c) this agreement constitutes its valid and legally binding obligations and is enforceable against it by any other party in accordance with its terms; and (d) its unconditional execution and delivery of, and compliance with its obligations under, this agreement, do not contravene: (i) any law to which it or any of its property is subject or any order or directive from a government body binding on it or any of its property; or (ii) its constituent documents, any agreement or instrument to which it is a party or any obligation to any other person.
10. Liability 10.1 PartnerNET's liability for any breach of any condition, warranty or guarantee, implied under this agreement, is excluded to the extent permitted by law. If PartnerNET breaches any condition, warranty or guarantee that is implied by law and which is not capable of being excluded, PartnerNET's liability will be limited to, at PartnerNET's discretion: (a) resupply of the relevant non-conforming services; (b) paying the cost of such resupply; or (c) refunding to you the PartnerNET Service Fees paid for the relevant non- conforming services. 10.2 Subject to clause 10.1, to the extent permitted by law, it is agreed that: (a) the total aggregate liability of each party to the other for any Claims arising out of or related to this agreement, regardless of the form of the action, will be limited to, in respect of all Claims, the amount of the PartnerNET Service Fees and any Clawback Fee paid or payable by the Referrer; and (b) neither party will under any circumstances be liable to the other for any indirect, consequential or punitive damages or any loss of profit, revenue, data, or goodwill or business interruption. Nothing in this clause precludes the recovery Referrer Agreement Page 12 Doc ID 583910543/v1v4 of loss or damage which may fairly and reasonably be considered to arise naturally, in the usual course of things, from the breach or other act or omission giving rise to the relevant liability, up to the liability cap referred to in clause 10.2(b).
11. General 11.1 This agreement is governed by the laws of New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction there. 11.2 If any provision of this agreement is held to be invalid, illegal or unenforceable, this agreement will continue otherwise in full force and effect apart from such provision which will be taken to be deleted. 11.3 No party may assign any right under this agreement without the prior written consent of the other party. 11.4 PartnerNET may send notices and other communications regarding the Referrer Account or other matters to the Referrer via email. 11.5 Each party acknowledges and agrees that: (a) it is not the other's agent, partner, employee or joint venturer; and (b) it is an independent contractor. 11.6 Neither party may: (a) directly or indirectly hold itself out or permit itself to be held out to anyone (whether by act or omission) as the other party's agent, partner, employee or joint venturer; or (b) except as expressly provided for in this agreement, make any promise or representation on the other party's behalf without the prior consent of the other party.
Schedule A Scope and Features The scope and features of the PartnerNET Services are as follows: (a) PartnerNET Platform Access to the PartnerNET Platform. The PartnerNET Platform allows you to enter the details of your Client into the PartnerNET Platform for on-referral to Service Providers and retrieve information from PartnerNET. (b) PartnerNET Application: Access to the PartnerNET Application, running on supported iOS devices, owned by you. The PartnerNET Application allows you to enter the details of your Client into the PartnerNET Platform for on-referral to Service Providers and retrieve information from PartnerNET. (c) Access to the PartnerNET Web Admin Portal (part of the PartnerNET Platform) that allows for: user management, device management and reporting; and[Symbol] Access to the latest release of the PartnerNET Platform or the PartnerNET Application from time to time.
Schedule B Fees Mortgage & Lending: Referral Fee of 25% (plus GST) of upfront incentives received by PartnerNET; PartnerNET Service Fee - $400 p.a.(plus GST) of PartnerNET Software Fee (will only be deducted on first successful settlement)
Schedule C Service Provider Cbls&Vow (ABN: 22 160 712 774) Mortgage Services Referral Fees payable to partnerNET 0.5% (plus GST) of loan amount settled