PARTNER AGREEMENT

These terms and conditions are between the parties described in the Schedule, together the Parties and each a Party. These terms and conditions and the Schedule form the entire agreement under which the Parties agree to enter into a referral relationship for the Goods and Services (together, the Agreement).

1. REFERRALS
   The Referrer agrees to refer Referrals to the Referee by the process agreed in writing between the Parties, and vice versa.
2. REFERRAL FEE
   1. Promptly following:
      1. the end of each reporting period agreed in writing between the Parties; and
      2. the End Date,
      3. the Referee agrees to provide the Referrer with a sales report setting out the Referral Fee (Tax Invoice). The Referrer agrees to promptly issue the Referee with a valid tax invoice for the Referral Fee set out in the Tax Invoice.
   2. The Referee agrees to pay the Referrer the Referral Fee in respect of each Referral in accordance with the Payment Terms.
   3. The Parties agree that the Referral Fee excludes any, set up fee, fees for optional extras or other fees associated with the Goods and Services.
   4. The Parties agree to keep proper financial records in connection with this Agreement and to provide copies of relevant financial records to the other Party, if the other Party reasonable requests.
3. CONFIDENTIALITY AND PRIVACY
   1.  Subject to clause 3.23.2, each Party must (and must ensure that its personnel do) keep confidential, and not use or permit any unauthorised use of, all Confidential Information.
   2. Each Party agrees to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) (as if it were an “APP entity” as defined in the Privacy Act 1988 (Cth)).
4. INTELLECTUAL PROPERTY
   1. As between the Parties, all Intellectual Property Rights developed, adapted, modified or created by or on behalf of a Party in connection with this Agreement, will at all times vest, or remain vested, in the Intellectual Property Owner.
   2. Each Party grants the other Party a non-exclusive, revocable, non-sublicensable and non-transferable right and licence, for the duration of this Agreement, to use the Intellectual Property provided by that Party to the other Party under this Agreement, for the performance of the other Party’s obligations under this Agreement.
   3. If a Party or any of its personnel have any moral rights (as defined under the Copyright Act 1968 (Cth)) (Moral Rights) in any material provided, used or prepared in connection with this Agreement, that Party agrees to (and it agrees to ensure that its personnel) consent to the other Party’s use or infringement of those Moral Rights.
   4. Each Party will own all Intellectual Property Rights in all Intellectual Property owned, licensed or developed by or on behalf of that Party or its personnel before this Agreement and/or developed by that Party or its personnel independently of this Agreement, and nothing in this Agreement constitutes a transfer or assignment of any of either Party’s Intellectual Property Rights under this clause Error! Reference source not found..
5. WARRANTIES AND REPRESENTATIONS
   Each Party represents, warrants and agrees that:
   1. it has no legal restrictions preventing it from agreeing to this Agreement;
   2. the information it provides to the other Party is true, correct and complete;
   3. it will not infringe any third party rights in working with the other Party;
   4. it will make no false or misleading representations with respect to the other Party; 
   5.  it will have no right to enter into any contracts, instruments or commitments in the name of, or on behalf of, the other Party or to bind the other Party in any respect whatsoever; and
   6. it will comply with any relevant laws.
6. LIABILITY
   1. Despite anything to the contrary, to the maximum extent permitted by law:
      1. the Referee makes no guarantees or warranties in respect of the Services; and
      2. the Referrer makes no warranty or assurance in relation to the Referral.
   2. Despite anything to the contrary, to the maximum extent permitted by law, each Party will not be liable for, and the other Party waives and releases that Party from and against, any Liability caused by:
      1. acts or omissions of the other Party and its personnel;
      2. the other Party’s breach of this Agreement, any law or third party rights, and
      3. any event or circumstance beyond its reasonable control.
7. TERM AND TERMINATION
   1. This Agreement will commence on the Start Date, and will continue until the End Date, unless terminated earlier in accordance with its terms.
   2. This Agreement may be terminated at any time by either Party providing 30 days’ written notice to the other Party.
   3. Either Party may terminate this Agreement if the other Party breaches a material term of this Agreement, and that breach has not been remedied within 10 business days of being notified by the relevant Party.
   4. Upon expiry or termination of this Agreement:
      1. the Referrer agrees to stop promoting the Goods and Services;
      2. each Party agrees to return or give the other Party access to recover all property belonging to that Party on request (including any Intellectual Property or Confidential Information), and to give that Party or its personnel such rights of access necessary to exercise its rights under this clause; and
      3. the Referee agrees to pay the Referrer the Referral Fee due and payable to the Referrer under this Agreement up to the date of termination, as a debt immediately due and payable.
   5. The accrued rights, obligations and remedies of the Parties are not affected by termination of this Agreement.
8. GENERAL
   1. Disputes:  A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the law society of the State to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
   2. Governing law: This Agreement is governed by the laws of the State.  Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in State and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
   3. GST: If and when applicable, GST payable will be set out in an invoice. Each Party agrees to pay the GST amount at the same time as it pays any amount due and payable under this Agreement.
   4. Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
   5. Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.
   6. Survival: Clauses 2.2, 3, 4, 6, 7.4 and 8 will survive the termination or expiry of this Agreement
9. INTERPRETATION AND DEFINITIONS
   1. Any reference to “Goods and Services” may mean “Goods and/or Services”, as the case may be.
   2. In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, within these terms and conditions, and: 

Confidential Information includes information which:

(a)          is disclosed to a Party in connection with this Agreement at any time;

(b)         is prepared or produced under or in connection with this Agreement at any time;

(c)          relates to a Party’s business, assets or affairs; or

(d)         relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,

whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the relevant Party receives that information.

Intellectual Property means any copyright, registered or unregistered design, patent or trade mark rights, domain names; know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.

Intellectual Property Rights means, for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or proceeding (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.

Schedule means the schedule to which this Agreement is attached.