Service Provider Agreement
Parties PartnerNET Pty Ltd (ACN 615 570 548) of PO Box 21387 World Square NSW 2002 (PartnerNET) Service Provider Applicant (Service Provider)
A. PartnerNET owns, operates and licenses access to a system (PartnerNET Platform) and a mobile application (PartnerNET Application) through which it provides a referral service.
B. The PartnerNET Platform and the PartnerNET Application provide a mechanism which enables advisors to identify potential clients.
C. The terms of this agreement govern the services offered by PartnerNET to the Service Provider 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 In this agreement: Active Client has the meaning given in clause 6.1.AFS Licence means an Australian Financial Services Licence. Client means an individual or company whom a 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). 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. PartnerNET Application has the meaning given in Background A, further details of which are in Schedule 1. PartnerNET Platform has the meaning given in Background A, further details of which are in Schedule 1. PartnerNET Services means the services described in clause 3.1(a) and in clause 4.1. PartnerNET Service Fees means the fee payable by the Service Provider5 under clause 6.3 that are set out in Schedule 2 . 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. Referrer means those engaged with PartnerNET through a Referral Agreement. Referral Agreement means the agreement between a Referrer and PartnerNET for the provision of PartnerNET's on-referral service to Clients of a Referrer. Referral Fee means the fee in clause 6.1 for the PartnerNET Services set out in Schedule 2. Service Provider Account has the meaning given in clause 4.2 Service Provider Agreement means the agreement between the Service Provider and a Client which has been referred by PartnerNET for the provision of the Service Provider's services to the Active and Potential Client. Service Provider Services means the services offered by the Service Provider to Potential Clients or performed by the Service Provider for Potential Clients, as set out in Schedule 3. 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.Referral Services (c) During the Term, PartnerNET may identify and display to the Service Provider, on the PartnerNET Application and the PartnerNET Platform: (i) the names of Potential Clients; and (ii) such information that PartnerNET deems appropriate concerning Potential Clients. (d) For the avoidance of doubt: (i) the PartnerNET Services do not include PartnerNET providing any financial services, accounting services or other professional services itself to the Potential Client; (ii) the PartnerNET Services do not include PartnerNET negotiating or procuring the Service Provider Services on behalf of the Service Provider or Potential Clients; and (iii) the Service Provider acknowledges that PartnerNET does not hold an Australian Financial Services Licence or any other Licence. (e) The Service Provider acknowledges and agrees that: (i) PartnerNET provides the PartnerNET Services to other service providers than the Service Provider (collectively, Other Service Providers) who may compete with the Service Provider; (ii) Potential Clients may seek the services of Other Service Providers over the Service Provider; and (iii) PartnerNET shall have sole and ultimate discretion as to selection of Potential Clients, and whether or not to refer Potential Clients to the Service Provider or Other Service Providers.
4.Licence 4.1 Subject to the terms of this agreement, PartnerNET grants to the Service Provider a non-exclusive, non-transferable licence for the Term to access and use the PartnerNET Application and the PartnerNET Platform for the purpose of receiving referrals of Potential Clients as contemplated in clause 3(a). 4.2 To obtain the PartnerNET Services, the Service Provider must follow the steps on the PartnerNET Application or the PartnerNET Platform to create a new user account (Service Provider Account). After the creation of the Service Provider Account, the Service Provider: (a) may use the Service Provider Account to access and manage the PartnerNET Services; (b)must keep confidential log in details and password of the Service Provider Account; and (c) is solely responsible for all activities that occur under the Service Provider Account.
4.3 The Service Provider must not: (a) assign, transfer or grant sub-licences of any of its rights under this agreement;
(b) permit a third party to use the PartnerNET Application or the PartnerNET Platform or provide it to a third party directly or indirectly; (c) copy, modify, enhance or adapt the PartnerNET Application or the PartnerNET Platform; (d) create or attempt to create the source code or any part of it from the PartnerNET Application or the PartnerNET Platform or from any other information, except to the extent expressly permitted by law; (e) use or permit the use of the PartnerNET Application or the PartnerNET Platform to provide any form of bureau service or for similar purposes or activities; (f) attempt to disrupt the normal operation of the PartnerNET Application or the PartnerNET Platform, or any infrastructure operated by, or other business activities of, PartnerNET; (g) attempt to gain unauthorised access to any aspects of the PartnerNET Application or the PartnerNET Platform; (h) make any automated use of the PartnerNET Application or the PartnerNET Platform, without the prior written consent of PartnerNET; (i) impersonate any other person in using the PartnerNET Application or the PartnerNET Platform; (j) reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the PartnerNET Application or the PartnerNET Platform except to the extent permitted by the Copyright Act 1968 (Cth) which may not be excluded by agreement; or (k)use the PartnerNET Application and the PartnerNET Platform in connection with the actual or attempted contravention of any Laws. 4.4 The Service Provider must:
5. Obligations of Service Provider 5.1 Provision of Information (a) Upon execution of this agreement and from time to time thereafter, the Service Provider must provide such information as required by PartnerNET (the Information) so that PartnerNET may effectively provide the PartnerNET Services. (b) If any change is made to the Information, the Service Provider must immediately notify PartnerNET to that effect, failing which PartnerNET may deem that no change has been made to the Information. (c) PartnerNET is not liable to the Service Provider in connection with any incorrect Information. 5.2 Reporting
(a) If PartnerNET refers any Client to the Service Provider and any of the following events occurs, the Service Provider must immediately report the matters prescribed in the relevant item immediately to PartnerNET: (i) If any meeting with the Client is set: the date, location and agenda of the meeting; (ii) If the Service Provider has a meeting with the Client: the details and result of the meeting; (iii) If any Service Provider Agreement is entered between the Service Provider and the Client: the details of the Service Provider Agreement (and if such Service Provider Agreement is entered in writing, a copy of the written contract shall be provided to PartnerNET;) (iv) If any dispute or any other trouble arises between the Service Provider and the Client: the details of the dispute or trouble; (v) If the Service Provider receives any Service Fee (excluding the Service Fee that has already been reported to PartnerNET) from the Client within 3 years from the Service Provider Agreement with the Client: the details of the Service Fee; (vi)If any Service Provider Agreement is terminated: the date of termination; (vii) If any change or amendment is made to the Service Provider Agreement: the details of the change or amendment; and (viii) If, after termination of a Service Provider Agreement, another Service Provider Agreement is entered between the Service Provider and the Client: the details of such another Service Provider Agreement. (b) The Service Provider must promptly, upon request by PartnerNET:
(i) provide to PartnerNET a copy of the written contract for the Service Provider Agreement or any other documents pertaining to the Service Provider Agreement; and (ii) permit PartnerNET to review the original of such contract or document. 5.3 Client consent If the Service Provider discloses any information to PartnerNET about a Client under this clause 5, the Service Provider must ensure that the Client has consented to making such disclosure and to PartnerNET using that information for its business purposes.
6. Fees 6.1 Referral Fee (a) The Service Provider must pay the Referral Fee to PartnerNET in respect of any Client that: (i)was introduced to the Service Provider by PartnerNET; and (ii) enters into an arrangement with the Service Provider for the provision of services by the Service Provider, (an Active Client). (b) If a Service Provider Agreement that is entered into between an Active Client and the Service Provider is later amended, rescinded, terminated or cancelled, the Referral Fee pertaining to the Service Provider Agreement shall not be affected. (c) If an Active Client fails to pay any fees to the Service Provider under any Service Provider Agreement, the Referral Fee pertaining to the Service Provider Agreement shall not be affected. (d) This clause 6.1 applies to all upfront, one-off and on-going fees within the defined period in clause 5.2(a)(v). 6.2 Reporting and invoicing (a) Within 30 days of the end of each month during the Term, the Service Provider must provide PartnerNET with information regarding the Potential Clients which become Active Clients during that month, including the applicable Referral Fee payable for the relevant month (Monthly Report). (b) On receipt of each Monthly Report pursuant to clause 6.2(a), PartnerNET will deliver an invoice to the Service Provider for the Referral Fee applicable for the previous month based on the information contained in the Monthly Report. 6.3 PartnerNET Service Fees In exchange for the grant of the licence to access and use the PartnerNET Platform and the PartnerNET Application, and the referral of Potential Clients, the Service Provider agrees to pay the PartnerNET Service Fees invoiced by PartnerNET. 6.4 Payment The Service Provider must pay all correctly rendered invoices within 30 days after receipt. 6.5 GST (a) Service Provider warrants to PartnerNET that the Service Provider is registered for the purposes of the GST Act and will remain so for the Term. PartnerNET will issue Recipient Created Tax Invoices in respect of the supplies by the Service Provider under this agreement. (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 except in circumstances where a Recipient Created Tax Invoice is agreed between the parties. (e) Terms used in this clause 6.5 have the meaning given in the GST Act.
7. Termination (a) PartnerNET may terminate this agreement immediately if PartnerNET, acting reasonably, forms the view that the Service Provider 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 Service Provider 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 days notice after the Initial Term has ended. (d) If this agreement ends for any reason, then each party must immediately return Confidential Information belonging to the other party, to that other party. 8.Information and Intellectual Property 8.1If 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 Service Provider 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 Service Provider 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 Service Provider warranties The Service Provider 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; and (b) it holds any other current and valid License it is required by law to hold for the offering and provision of its services to a Potential Client or a Client under this agreement. PartnerNET is not required to hold any such Licence. 9.2PartnerNET 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 All warranties, implied or expressed under this agreement, are excluded to the extent permitted by law. If PartnerNET breaches any warranty or guarantee that is stated in this agreement or 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 the Service Provider the PartnerNET Service Fees paid for the relevant non-conforming services. 10.2Subject 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 paid or payable by the Service Provider; 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 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 Service Provider Account or other matters to the Service Provider 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 1 Scope and Features 1.1 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: (i) enter information about the Service Provider Services including information regarding the: service status;Client details; and incentives received, in relation to the Service Provider Services; (ii)view the names of Potential Clients; and (iii) view such information that PartnerNET deems appropriate concerning Potential Clients. (b) PartnerNET Application: Access to the PartnerNET Application, running on supported iOS devices, owned by you. The PartnerNET Application allows you to: (i) enter information about the Service Provider Services including information regarding the: service status;Client details; and incentives received, in relation to the Service Provider Services; (ii)view the names of Potential Clients; and (iii) view such information that PartnerNET deems appropriate concerning Potential Clients. Access to the PartnerNET Web Admin Portal (part of the PartnerNET Platform) that allows for user management, device management and reporting. 1.2 The scope and features identified in paragraph 1.1 of this Schedule 1 are subject to change by PartnerNET from time to time.
Schedule 2 Fees Schedule To be discussed upon registration.
Schedule 3 Service Provider Services to be determined according to Service Provider’s registered licence.