This electronic agreement shall replace and supersede, as of the Effective Date, all prior agreements and understandings, whether oral or written, between the Company and the Licensee.
Background
A. The Company operates multiple software platforms for the promotion and management of commercial deals (listings) and wishes to grant limited, Licenses to Business Listing Consultants and Referral Partners to promote the products defined in clause 4.2 within the defined territories specified in the Schedule, as well as non-exclusive Referrer rights in connection with the Software Subscription Products defined in clause 4.4 and the attached schedules.
B. This agreement is issued in its entirety as a single document and refers to the Licensee in the same statement as a Business Listing Consultant and Referral Partner.
C. This Agreement includes and incorporates the schedules attached as well as warranty disclaimers, liability limitations, and use limitations.
D. For the purposes of this agreement, each state or territory may have a maximum of five licensees.
E. The Licensee is an appropriately qualified business professional who understands the Licensee's role and wishes to work independently as a Business Listing Consultant or Referral Partner
promoting the Company's services.
F. The Referrer acknowledges that the grant of this licence constitutes the grant of a valuable property right and that the Company has granted the licence subject to the Referrer meeting certain minimum annual sales quotas or minimum monthly subscription to cover software, support, and back office costs where no sales were made, among other conditions set forth in the schedules of this Agreement.
Location: Australia
License Type: Business Listing Consultant and Referral Partner
Defined Terms and Interpretation:
In this agreement, unless otherwise indicated by the context:
Business Listing Consultant means the licensee who provides listing and or deal preparation services as part of this agreement and is interchangeable with the terms, "Deal Consultant," "Readiness Consultant," and "Referral Partner".
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in New South Wales.
Business Listing means the process of promoting and advertising a client's deal on the Company's digital platforms following the Deal Readiness preparation process. A deal is any commercial asset transaction, including, but not limited to business sales, asset sales, and capital raising.
Business Consulting and Deal Readiness means the process of preparing a business (deal) or commercial asset for market, finance, promotion, or any other commercial event in which a Customer engages the Company or a Referrer to assist in the preparation of a business or deal for any commercial purpose, regardless of whether the business or deal is listed on the Company's Software or utilises the Company's processes.
The terms “Deal Readiness” and “Business Readiness” are used interchangeably in this agreement. Consultant and/or Referrer Agreement.
Buyback Agreement means the right but not obligation of the Company to purchase the Licensee's subscription income stream as per schedule 2.
Breach means any breach that materially and significantly impairs the performance or delivery of the services under this agreement, in whole or in part, and that has not been rectified or cannot be rectified within the agreed 14-day period following notification of the breach by the Company to the Referrer.
Client or Customer means subscribers to the Software Services provided by the Company to which the Referrer will market and procure the provision of the Client Services for their use and benefit by the Company.
Client Subscriptions means agreements between the Company and the Clients in relation to the provision of Software Services.
Confidential Information means the information, forms, specifications, processes, statements, source or object code, patents, systems, trademarks, design, methodologies, processes, content, know-how, authorship, applications code, formulae, trade secrets, drawings and data (and copies of that information) concerning but not limited to:
a) the organisation, finance, customers, markets, suppliers, intellectual property or know-how of the Company or of a related corporation of the Company;
b) those operations and transactions of the Company or of a related corporation of the Company concerning the Business or shareholding in the Company, which is not in the public domain, except by the failure of a party to perform and observe its covenants and obligations under this agreement;
c) the Company’s trade secrets;
d) the Service Software; and
e) the Client Services.
Cross-selling means when one business division submits listings that are normally reserved for another business division. For example, business deals may submit a mergers and acquisitions deal, whereas M&A may submit a small cafe listing.
Gross Sales means all revenue generated by the Referrer in conjunction with the Company from the Referrer's services and products.
GST means any form of goods and services tax payable under the GST Law.
GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property means all intellectual property rights, including, without limitation:
a) registered or proposed trademarks, labels, designs, copyright, patents or other indicia of ownership or product identities imitating or resembling those of the Company and/or its parent and related or affiliate companies which are used on or associated with the Client Services and the Service Software or those owned or used by the Company and/or its parent and related or affiliate companies in connection with the sale and distribution of the client Services or in the promotion of the Company’s business and the Client Services.
b) any application or right to apply for registration of any of those rights.
License refers to the terms of this agreement that are granted to the Referrer.
Conditions of the License Agreement.
Partner or Referrer Partner means the close working relationship between the Company and the Referrer and in no way implies any legal relationship, including a partnership.
Referrer means the licensee who, as part of this agreement, promotes and sells software as a service to clients. The terms "Business Listing Consultant", "Referrer" and “Referral Partner” are interchangeable.
Restricted Territory means any geographical business areas that are not part of the Referrer's specific licensed territory under this agreement and in which the Referrer may conduct business with existing clients and business referrals but is not permitted to actively market their services.
Service Software or Subscription means the services described in the Schedule and associated content, operated and maintained by the Company, and made accessible via a web site designated by the Company from time to time, or ancillary online or offline products and services provided to the Referrer (and its Users).
Sub Referrer means an officer, employee, representative, consultant, contractor or agent of the Referrer:
a) for whom a Licence has been provided by the Company to the Referrer pursuant to this agreement.
b) who are authorised by the Referrer to use a Service Software; and
c) who have been supplied Sub Referrers identifications and passwords by the Referrer (or by The Company at the Referrer’s request).
Territory means any state, county, or municipality as defined in the agreement's schedule in which a Referrer may promote their services actively.
Interpretations mean
a) In this agreement, unless otherwise indicated by the context:
1. words importing the singular include the plural and vice versa;
2. headings are for convenience only and do not affect interpretation of this agreement;
3. a reference to a clause, paragraph, annexure or schedule is a reference to a clause, paragraph, annexure or schedule of this agreement;
4. where any word or phrase is given definite meaning in this agreement, any part of speech or other grammatical form of that word or phrase has a corresponding meaning;
5. an expression importing a natural person includes a body corporate, partnership, joint venture, association or other legal entity;
6. a reference to a statute, statutory provision or regulation includes all amendments, consolidations or replacements thereof;
7. a reference to a party to a document includes that party’s legal personal representatives, successors and permitted assigns;
8. a covenant or agreement on the part of or for the benefit of two or more persons binds or benefits them jointly and severally; and a reference to a body, whether statutory or not; which ceases to exist; or whose powers or functions are transferred to another body; is a reference to the body which replaces
It or which substantially succeeds to its powers or functions; It is further expressly understood and agreed that no usage of trade or other regular practice or method of dealing either within the computer Software industry, or any other technology-related industry, will be used to modify, interpret, supplement or alter in any manner the express terms of this agreement.
License Agreement
1. APPOINTMENT
1.1 Appointment
The Company appoints the Consultant and Referrer, and the Referrer accepts appointment as an independent Referrer to market, sell, the Company Software Service(s) ("Products") within the Territory stated in the Schedule to Customers.
1.2 Software Service(s) Covered
Company Software Service(s) means the Software Service(s) agreed to between the parties from time to time with any exclusions, additions or discounts Company may make.
1.3 Sub-Referrers
The Consultant and Referrer is permitted to appoint sub-Referrers on the condition that those sub-Referrers agree to be bound by the terms of this agreement and the Consultant and/ or Referrer agrees to manage, support, and maintain those sub-Referrers.
1.4 Sales Outside Territory
The Consultant and/or Referrer shall in no way actively market, the Company Software Service(s) outside the Territory without Company's prior written approval.
1.5 Company Sales Activities
The Company reserves the right to make direct sales for Non-Exclusive Products into the Territory, and Referrer shall not be entitled to any compensation on any such sales.
2. OBLIGATIONS OF THE CONSULTANT & Referrer
2.1. Marketing and Software Service Support
The Consultant and/or Referrer shall use all reasonable efforts to market and sell the Company Software Service(s) in the Territory and shall comply with the policies, programs, and requirements regarding marketing and Software Service support as may be communicated by the Company to the Referrer from time to time.
2.2. Advertising
The Consultant and/or Referrer shall adhere to the Referrer advertising policies and programs as may be communicated by Company to Referrer from time to time.
2.3. Customer Support and Service the Consultant and/or Referrer Shall:
a) Manage customer relationships using the Company’s Software provided to the Consultant and/or Referrer;
b) Notify customers of any updates or notices in relation to the Company Software Service(s);
2.4. Observance of Company Policies
The Company will keep the Consultant and/or Referrer informed of the Company's customer support policies and procedures, and the Referrer agrees to follow such policies and procedures to resolve any customer support issues.
2.5. Minimum Sales Commitment
Concurrent with the execution of this Agreement, the Consultant and/or Referrer agrees to the attached quarterly minimum sales targets in subscriptions to maintain the exclusive product/s terms specified in this Agreement (the "Minimum Sales Commitment").
2.6. The Referrer must not
Transmit unsolicited bulk or duplicative messages in violation of applicable regulations; send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy rights; or send or store material that contains Software viruses, worms, trojan horses, or other harmful computer code, files, scripts, agents, or programmes; or modify, interfere with, or disrupt the integrity or performance of the
Service Software (including the data contained therein); or attempt to gain or permit unauthorised access to the Service Software or its related systems or networks.
3. OBLIGATIONS OF COMPANY
3.1. Supply of Company Software Service
a) The Company will use reasonable efforts to provide the Software Services to the Referrer and Customers on a timely basis, will provide the Service Software in accordance with
generally applicable industry standards, and warrants that the Service Software will perform substantially in accordance with the documentation available on the Company's website and updated from time to time.
b) The Company will provide client support seven days a week for onboarding, setup, and any problems or Software defects.
c) Should outages occur, the Company shall not be liable to the Referrer for any failure to supply the Company Software Service agreed upon with Referrer.
3.2. Marketing, Training and Business Assistance
The Company will provide ongoing marketing support and training to the Referrer, which will include training and weekly support as requested by the Referrer.
4. AUTHORISED SOFTWARE SERVICE(S)
4.1. Subscriptions
This Agreement, together with its terms and conditions and those set forth in the Company's Terms and Conditions of Supply (as published on the Company website), applies to all subscriptions to the Software Service(s) sold by the Referrer on behalf of the Company during the term of this Agreement.
4.2. New Business Listing Subscriptions as part of the Business or Deal Readiness Program.
The Company grants the Referrer the ability to directly enter Subscriptions into the Company's
system. The Subscription shall be deemed accepted by the Company when it is entered into the Company's system.
Business Listing Subscriptions
a) Subscriptions for Business Listings should be created in accordance with the Company's listing and deal-preparation processes. At all times, the Referrer will have an adequate
number of technically qualified and skilled employees to prepare, promote, and procure business listings, as well as to ensure that the Listings accurately reflect the Customer Listing
without misleading either the Customer or any potential buyer or investor regarding the business listing information. The preparedness program's purpose is to prepare and provide
accurate information in a transparent and truthful manner that appropriately reflects the business listing and does not mislead either party in the transaction.
b) In preparation for due diligence, all documents should be collected and securely stored in the Company's document management system and linked to the listing.
c) Financial account preparation and normalisation must be coordinated with the Customer's authorised accounting expert and approved by the Customer prior to going live.
d) The Company is not obligated to accept a Referrer's Subscription if the Referrer's Business Listing does not meet the Company's minimum standards. The Referrer may resubmit the
subscription at any time to ensure that it remains compliant with such standards.
e) Once submitted to the Company, the business Listing will be promoted and managed by the Company until it is sold or withdrawn.
4.3. Non-Compliant Listings
a) Unless expressly accepted or approved in writing, no terms of any Customer Subscription shall be binding on the Company or the Referrer if they conflict with any of the terms or
conditions of this Agreement or the website listing terms.
b) If the Company determines that the Customer's business listing is not in compliance with
applicable law or is otherwise inappropriate, the Company may request that the Listing be
updated to meet any such minimum compliance.
4.4. Software Subscriptions
a) In conjunction with the Business or Deal Readiness program, the Consultant and/or Referrer is authorised to promote and resell the Company's Software products.
b) The Company reserves the right to make changes and modifications in specifications, construction, or design of the Software Service(s), or any of them, at any time, and any
Software Service(s) so modified shall be accepted by Referrer as standard construction in fulfillment of existing Subscriptions.
c) Company reserves the right to discontinue any Software Service(s) but will only do so in consultation with the Consultant and/or Referrer.
5. PRICES AND PAYMENTS
5.1. Customer Pricing Structure
At any time, the Company reserves the right to modify the pricing for its Software Service(s). Any such proposal will be in writing, and the Referrer will have at least 30 days to accept or propose a different pricing structure. The parties agree to continue negotiating such changes for an additional 14 days, at which point the price modification will be considered agreed.
5.2. Customer Payments
a) All Customer subscriptions and payments should be directed to the online subscriptions according to the schedule.
b) Where either party collects any direct payment, 50% of any such direct payment will be paid to the other party within 7 days.
c) All amounts payable under this Agreement are expressed exclusive of GST.
6. CREDITS AND REFUNDS FOR DOWNTIME
The Referrer will not be required to refund fees under any circumstances.
If during any full calendar month of the term of the Agreement, the Percentage Uptime is lower than 99%, and Customer notifies the Referrer or the Company in writing about such failure within ten (10) days of the end of the applicable calendar month, the Company shall provide the Customer with a service credit in accordance with the applicable Service Credit % set forth below.
The service credit shall be calculated against monthly fees for the Subscription Service and shall be used to offset future Subscription Service fees. If no monthly fee is stated, then the "Monthly Fee" is determined by dividing the annual fees by the number of months in the applicable annual period.
Percentage of actual uptime: Service Credit %: ≥ 95% but < 99% 5% of Monthly Fees ≥ 90% but < 95% 10% of Monthly Fees < 90.0% 15% of Monthly Fees
Any credits provided pursuant to this Agreement will constitute the Company's sole liability and Client's sole and exclusive remedy for any failure to achieve a Percentage Uptime of greater than 99% provided that if the Percentage Uptime for any month is less than 90% then Customer shall also have the right to terminate the Agreement and receive a refund of any prepaid, unused fees paid thereunder for the balance of the unexpired term.
7. INTELLECTUAL PROPERTY RIGHTS, TRADEMARKS, TRADE NAMES
The Company hereby grants the Referrer a licence to use any intellectual property in connection with the sale of Software service(s) to the extent required to allow the Referrer to exercise its rights under this agreement.
The Referrer must:
a) Use the Intellectual Property only in accordance with the terms and conditions of this agreement.
b) Use the intellectual property in any associated advertising or promotional material as directed by the Company
c) Notify the Company promptly of any actual or suspected infringement of the Intellectual
Property and all relevant information;
d) Take reasonable action, as directed by the Company, at the Company's expense, in the event of intellectual property infringement;
e) Not use the intellectual property for any other purpose other than as permitted under this agreement.
The Referrer acknowledges that the Company and/or its parent are the sole and exclusive owners of the name "Company" and any abbreviations or variations thereof, and of any and all of Company's trademarks and trade names, service marks, trade logos, and trade dress (collectively "Trademarks") as the Company may unilaterally amend periodically (registered or not). The Referrer agrees not to register or use any marks that are similar enough to be mistaken for Company trademarks. The Referrer acquires no rights to the Trademarks, and Referrer hereby assigns and transfers to the Company all rights that it may acquire in and to the Trademarks, whether by operation of law or otherwise.
The Referrer will not directly or indirectly do anything that would or might invalidate or put into dispute the Company's title in the Licensed Software.
If any person makes any claim alleging that any of the Licensed Software (or use of any of the Licensed Software) infringes any Intellectual Property Rights or Moral Rights of any person, the Licensee must:
a) promptly notify the Company in writing;
b) not make any admissions or take any action in relation to the claim without the Company’s written consent;
c) permit the Company control over any and all investigations, negotiations, settlement and dispute resolution proceedings relating to the claim; and
d) cooperate with, assist and act at all times in accordance with the reasonable instructions of the Company in relation to the claim and any consequent investigations, negotiations,
settlement and dispute resolution proceedings.
This clause shall apply even if this Agreement is terminated or expires.
8. SOFTWARE
The Company Software Service(s) may include as components some Software programs (collectively "Programs") that are either proprietary to the Company or licenced from third-party suppliers and may be updated and substituted on a periodic basis. The Company holds all rights necessary for marketing and distribution of the Programs as components of Company Software Service(s), as well as the right and power to enter into this Agreement and grant rights thereunder with respect to the Programs.
The Company and/or their licensors retain ownership of the Programs, and Referrer has no rights to transfer them except as specified below.
In consideration for the Referrer's payment of the Licence Fee, the Company hereby grants the Referrer a Licence to use the Service Software for the term of this agreement.
The Referrer agrees that the Licencing of the Service Software is not conditional on the delivery of any future functionality or features or on any oral or written public statements made by the Company regarding future functionality or features, and the Referrer acknowledges that it does not enter into this agreement or procure any Licences in reliance on any of the foregoing.
The Referrer agrees and undertakes to immediately notify the Company of any unauthorised use of any password or account, or any other known or suspected breach of security;
a) to immediately report to the Company and use reasonable efforts to halt any use, copying, or distribution of the Service Software that is known or suspected by the Referrer or the Sub Referrers to be in violation of the terms of this agreement;
b) not to impersonate another Client or provide false information;
c) supervising and controlling the use of the Service Software in accordance with the terms of this agreement; ensuring that its employees, subcontractors, and other agents who have authorised access to the Service Software are aware of the terms of this agreement;
d) and not providing or otherwise making available the Service Software in any form without the Company's written consent.
This clause shall apply even if this Agreement is terminated or expires.
9. TERM
The term of this Agreement ("Term") shall commence on the Effective Date and shall continue for 60 months, automatically renewing for additional 12 month periods up to a maximum term of 10 years. Automatic renewal is granted if neither party is in breach of this agreement at the time of renewal.
10. TERMINATION
10.1 Termination for cause
This Agreement may be terminated for cause upon written notice:
a) By either party upon 30 days' written notice if the other commits a material breach of the Agreement and fails to remedy it within the 14 days;
b) By the Company immediately if the Consultant and/or Referrer files for or has instituted against it any proceedings as to its bankruptcy, insolvency, reorganization, liquidation, receivership, or dissolution or there is an assignment for the benefit of creditors;
c) By the Company upon 30 days' written notice (i) if Referrer is unable to continue reselling the Company's Service(s) or Product(s); (ii) if Referrer assigns this Agreement without the Company's prior written consent; or (iii) upon a material change in Referrer's ownership that the Company has not agreed to, which would not be withheld unnecessarily.
10.2 Termination by either party
a) The Licensee may terminate this Agreement for any reason by providing at least ninety (90) days' prior written notice to the Company. Such notice must include the current date and the effective termination date ninety (90) days in the future.
b) In accordance with Schedule 1, "Licensees' Minimum Sales Commitment and Payout Schedule," the company may terminate this agreement for non-payment of the monthly minimum subscription or for failure to submit the equivalent of one listing per calendar month. Such notice will be provided to the licensee and must include the current date and the effective termination date ninety (90) days in the future.
10.3 Effect of Termination
a) the parties are immediately released from their obligations under the Agreement except those obligations in clauses 7, 8, 11, and any other obligations that, by their nature, survive
termination.
b) Upon termination, the Consultant and/or Referrer shall immediately stop all marketing, promotion, advertising or reference to Company Software Service(s) and shall have no
further rights to use Company's marketing, promotion or advertising materials or other resources
c) Termination will discharge and release the Company from all obligations and liability under this Agreement, except as it expressly accepts for any continuing Subscriptions payments to the Referrer.
11. NON-DISCLOUSRE, NON-COMPETE AND CONFIDENTIALITY
11.1. Confidential Information
Prior to and during the Term hereof, the Company may convey to the Referrer proprietary and confidential information about Company Software Service(s), services, strategy and analysis.
For the Term of this Agreement (including renewals) and for three years thereafter, Referrer shall not disclose to any third party any such information marked CONFIDENTIAL, PROPRIETARY, STRICTLY PRIVATE, or INTERNAL DATA, or which, though not so marked, could reasonably be construed as confidential or sensitive, such as the terms of this Agreement (all collectively "Confidential Information"), nor shall it use any such Confidential Information for its own benefit, except as provided herein. Any reliance on such Confidential Information is at Referrer's own risk.
Nothing in this Section grants or implies any rights by license, estoppel, or otherwise. Confidential Information does not include information;
a) in the public domain at the time of disclosure or which enters the public domain after such disclosure through no fault of Referrer,
b) generally disclosed to third parties by Company without restriction,
c) communicated to Referrer by a third party with the unrestricted right to do so, or
d) approved for release by Company in writing.
11.2. Presentations and Planning
The Company's oral and visual presentations describing Company Software Service(s) and plans, business and Software Service(s) plans, and any inspections thereof by Referrer or its personnel shall all be deemed Confidential Information under this Agreement whether so marked or not.
This clause shall apply even if this Agreement is terminated or expires.
11.3. Scope
For the purposes of this clause
a) the expression competitive with the Business includes, but is not limited to, competition in a small part of the business of the Company or competition in ancillary products or lines of business; and
b) the expression on any account and in any capacity in relation to doing something includes, but is not limited to, doing something alone, in partnership, joint venture or any other
relationship with anyone else (whether legally recognised and enforceable or not) or otherwise be concerned with or interested in (whether as principal, trustee, beneficiary, agent, distributor, Referrer, shareholder, unit holder or in any other capacity).
11.4. Non-Compete
The Referrer must not, and must ensure that its Related Bodies Corporate or Associates do not, do any of the following except if it first obtains the written consent of the Company;
a) directly or indirectly carry on or be engaged in, on any account and in any capacity, any business similar to or competitive with the Business (including the promotion or sale of any
service which competes with the Client Services):
i. while and for 1 year after this agreement is terminated;
b) directly or indirectly, on any account and in any capacity, induce, solicit or persuade (or attempt to induce, solicit or persuade) any person or corporation which is distributor, client or customer of The Company, to cease doing business with The Company or reduce the amount of business which the distributor, client, supplier, manufacturer or customer would
normally do with the Company;
ii. while and for 3 years after this agreement is terminated; and
c) directly or indirectly, on any account and in any capacity, accept from a client or customer referred to in this clause any business of the kind ordinarily forming part of the Business, or which is competitive with the Business:
iii. while and for 1 year after this agreement is terminated.
11.5. Construction of Restrictions
The Referrer acknowledges and agrees that in respect of the undertakings in this clause:
a) each is to be read, construed and is to be enforceable independently of each other undertaking; and;
b) if any undertaking or part of an undertaking is unenforceable, it may be severed without affecting the remaining enforceability of that or the other undertakings.
11.6. Necessity of Restriction
The Referrer acknowledges and agrees that any failure to comply with this clause would diminish the value of the business of the Company and each of the restrictive undertakings in this clause is reasonable
as to period, geographic extent and nature and is necessary for the protection of the value of the business of The Company and must be given full effect.
11.7. Legal Advice
The Referrer acknowledges that in relation to this agreement generally and in particular this clause, it has received or has had the opportunity of obtaining, legal advice.
11.8. Injunction Relief
The Referrer acknowledges that an award of monetary damages alone would not be adequate compensation to the Company for a breach of this clause and that, in addition to any other remedies available at law or in equity, the Company is entitled to seek an injunction from a Court of competent jurisdiction.
12. TERRITORY AND COUNTRY CONTROLS
12.1. Compliance with Laws
The Consultant and/or Referrer shall comply with all applicable regulations of the country in which the Software will be principally accessed.
12.2. Territory
The Consultant and/or Referrer may sell the Company Software Service(s) to end customers only within their local Territory and shall not actively market the Company Software Service(s) outside of that Territory without the Company's prior written agreement. Nothing in this agreement precludes the Referrer from selling to an existing Customer or connection outside their territory.
13. LIMITATION OF LIABILITY AND REMEDIES; INDEMNITY
13.1. Limitation of Liability and Sole Remedy
Any liability of the Company under this Agreement is expressly limited to the price paid by the Referrer for the Company Software Service(s) involved. The Consultant and/or Referrer's sole remedy against the Company in any dispute concerning this Agreement shall be to seek recovery of that amount, upon payment of which the Company shall be released from all further obligations and liability to the Referrer.
13.2. Indemnity
Except as otherwise stated herein, the Referrer shall indemnify and hold harmless Company and its directors, officers, employees and agents, against any and all claims, legal actions, losses, damages, liabilities, costs and expenses asserted against, imposed upon or incurred by the Company arising out of or relating to;
a) any misrepresentation or breach of warranty or covenant by Referrer under this Agreement;
b) any actual or alleged act or omission of Referrer in the course of its performance hereunder;
c) death or injury to any person or damage to any property resulting from any Software
Service(s) or part, not supplied by Company, supplied by Company but changed, modified, adapted or refitted without Company's written authorisation, not in Company's standard inventory but purchased by Company at Referrer's direction, or manufactured to Referrer's design, as well as any claim of infringement arising from the use of any Software Service(s) with any other Software Service(s) as a combination not furnished by Company.
The Company warrants and represents that the Software Service(s) shall be delivered with good title free if any rightful third-party claim of infringement of any patent, copyright, trademark, trade secret or other intellectual property right recognized or registered within Australia and its possessions.
The Company shall defend The Referrer from all claims, suits, damages, costs, expenses or liabilities actually incurred by The Referrer as a result of any such claim. If a Software Service or part thereof is held to constitute an infringement and its intended use is enjoined, The Company shall at its option procure for Referrer the right to continue using the Software Service(s) or part, replace it with a noninfringing Software Service(s) or part, modify it to become non-infringing, or remove it and refund its purchase price (less depreciation and amortisation).
This Section does not apply to
a) any Software Service(s) or part not supplied by the Company;
b) any Software Service(s) or part supplied by the Company which is changed, modified, adapted or refitted without the Company’s express written approval;
c) any claim of infringement arising from the use of any Software Service(s) in combination with any other Software Service(s) not furnished by Company.
THIS INDEMNITY IS COMPANY'S SOLE LIABILITY AND Referrer'S SOLE REMEDY FOR INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT.
d) The Company shall defend the Consultant and/or Referrer from any and all claims, suits, damages, costs, expenses or liabilities, including, without limitation, reasonable fees and
expenses of attorneys and other professionals, actually incurred by the Referrer arising out of he death or injury to any person or damage to tangible property which results from the
Company's negligence.
14. WARRANTIES AND REPRESENTATIONS
The Software Service(s) are covered by the limited warranties in place at the time the Software Service(s) are subscribed to or delivered and are incorporated herein by reference to the normal terms and conditions supplied with each Software Service. If the Referrer resells Software Service(s) to a third party other than an end user (Client) and the Software Service(s) are subsequently resold, the final end user (client) may not receive any Company warranty or technical assistance.
15. BUSINESS STANDARDS; SOFTWARE SERVICE PROVISION
15.1. Conflicts of Interest
The Referrer confirms that it has revealed all information pertaining to possible conflicts of interest created by sale of competing Software services or arising from other positions or contracts held by the Referrer and represents that no conflict of interest exists. Referrer shall disclose to Company any future circumstances which could create possible conflicts of interest as soon as they become known by Referrer. Without limiting the generality of the foregoing, the Referrer shall inform the Company of any business relationship, circumstance, or situation which could prejudice in any way the conduct of the Company marketing activities according to the highest ethical and business standards or place the
Referrer or the Company in any kind of disreputable or embarrassing situation.
15.2. Ethical Standards
Directors, officers, or employees of the Referrer shall not offer, promise, or make any other improper payments to any individual, corporation, government official or agency, or other organisation for the purpose of increasing Company Software Service(s) sales. No gift, benefit, or contribution to political or public officials, candidates for public office, or political groups shall be made in connection with the Company or the sale of Company Software Service(s), regardless of whether such contributions are permissible by local law. Referrer shall generally adhere to all Company policies and standards relating to conflicts of interest and ethics that the company may adopt or convey to Referrer from time to time, such policies and standards being incorporated herein by reference.
15.3. Authorised Business or Deal Readiness Service Provider Program
Where the Referrer is Authorised to provide Business or Deal Readiness services and has been approved by the Company as an Authorised Business or Deal Readiness Service Provider for the Company Software Service(s), the Referrer shall at all times adhere to the Business or Deal Readiness Standards, conditions, rules, and policies of the Company Authorised Business or Deal Readiness Provider Program as may be issued from time to time and shall be solely responsible for all its acts (s).The Referrer should carry professional liability insurance with a minimum aggregate limit of two million dollars on behalf of the Company participating into this agreement.
16. FORCE MAJEURE
Neither party will be liable for its failure to perform due to any contingency beyond its reasonable control, including acts of God, fires, floods, wars, sabotage, strikes or governmental laws, ordinances, rules, or regulations, or failure of third party to deliver without negligence on either party’s part.
17. GENERAL PROVISIONS
17.1. Parties' Relationship
The Company and the Consultant and/or Referrer's relationship is solely that of independent seller and buyer with the right to resell Business or Deal Readiness programs. Nothing contained in this agreement will be construed as creating a joint venture, partnership, or employment relationship between the Company and the Referrer. The Referrer is authorised to promote the Company Software Service(s) (and, if applicable, to act as an Authorised Service Provider of the Business or Deal Readiness Program).
The Referrer has no express or implied authority to assume or create any obligation on Company's behalf and shall disclaim any such authority whenever necessary to avoid confusion.
In no case shall Referrer or any of its sub-Referrers, if any, be deemed Company's agents or representatives, nor shall Referrer or any of its sub-Referrers, if any, have the right to conclude any contract or commitment in Company's name, or to make any representation, guarantee, or warranty on behalf of Company or any of its directors to any third party, including end-users.
17.2. No Merger
A party does not waive a right, power, or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise by a party of a right, power or remedy does not prevent another or further exercise of that or another right, power, or remedy.
17.3. Governing Law
This agreement will be governed by the laws of New South Wales, and the parties agree that they will submit to the non-exclusive jurisdiction of the courts of that State, and courts entitled to hear appeals from those courts.
17.4. Severability
If any part of this agreement is invalid or unenforceable, this agreement does not include it. The remainder of this agreement continues in full force.
17.5. Legal Fees
Each party will bear its own legal professional fees in relation to the preparation of, interpretation, and compliance with this agreement or any document prepared pursuant to this agreement.
17.6. Notices
Unless expressly stated otherwise in this agreement, any notice, demand, consent, or other communication given or made under this document must be:
a) in writing and clearly readable;
b) signed by the party giving or making it (or signed on that party's behalf by its Officer); and
c) left at the address of the recipient or sent by prepaid ordinary post to that address, or sent by email to the email address of the recipient, as specified in each case in the Details section of this agreement.
d) Change of address A party may change its address or email address for the purpose of service of notices, demands, consents, or other communications given or made under this agreement by giving notice of that change to the other party in accordance with the provisions of this agreement. Receipt
a) Proof of posting or delivery of a letter or of dispatch of an email is proof of receipt:
b) in the case of a document sent by prepaid ordinary post: on the second Business Day after the date of posting;
c) in the case of a document left at the address: on the day and at the time at which delivery was made;
d) in the case of an email on the day and at the time at which the transmitting computer indicates that the email was sent to the email address of the recipient unless a delivery failure
report is received by the sender in relation to that email;
e) occurs on a day other than a Business Day or later than 4pm (local time of the recipient) on a Business Day, it is deemed to have been received at the commencement of the next
Business Day after the day on which it would otherwise have been deemed received under
this clause.
EITHER PARTY MAY CHANGE THE ADDRESS TO WHICH NOTICE MUST BE SENT BY GIVING WRITTEN NOTICE OF SUCH CHANGE TO THE OTHER PARTY IN THE MANNER PROVIDED HEREIN.
17.7. Assignability and Sale of License
Providing the Referrer is not in breach of this agreement and the proposed assignee agrees to the terms of this agreement, or to new terms determined by the Company, the Referrer is permitted resell this license agreement in its entirety or in part.
Process of Assignment or Sale;
a) Any such transaction is conditional on the incoming Referrer agreeing to all of the Company’s current or new terms and conditions in its entirety;
b) The Consultant and/or Referrer shall not assign or transfer this Agreement without first obtaining the Company's written consent, which shall bind and benefit the assignee;
c) The Company will not unnecessarily withhold consent to assignment of this agreement; and
d) There is no fee associated with transferring this licence; however, the Referrer is responsible for the Company's legal costs associated with enacting any assignment of this agreement.
17.8. Dispute Resolution
All material disputes between the parties arising from this Agreement shall be resolved by mediation using the following procedures or as mutually agreed between the parties;
a) A letter shall be sent from the party raising the dispute to the other party in accordance with the notice provisions, identifying with particularity the nature of the dispute, the proposed resolution of the dispute ("Proposed Resolution"), and the executives from the party raising the dispute who are authorised to resolve the dispute ("Demand Letter"). The Demand Letter shall include the facts supporting such party's position on the dispute and include copies of any written materials.
b) The party receiving the Demand Letter shall have 14 Business Days to send a written response ("Response Letter"). The Response Letter must accept the Proposed Resolution in the Demand Letter or offer some other resolution.
c) If the Response Letter accepts the proposed resolution in the Demand Letter or no Response Letter has been received within 7 Business Days, then the Proposed Resolution shall be
promptly implemented by the parties and shall, where applicable, be considered an amendment of this Agreement.
d) If the Response Letter offers some other resolution, it shall include all facts supporting the responding party's position on the dispute, include copies of any written materials, and identify the executives of the responding party who are authorised to resolve the dispute. The executives identified in the Demand Letter and Response Letter shall meet one or more times
and exchange such additional written materials and proposals as needed to reach a resolution of the matter or for one of them to declare an impasse.
e) The party declaring an impasse shall obtain a list of no less than three accredited mediators from the https://www.lawsociety.com.au/ of NSW Mediation Service acceptable to that party and send such list to the other party. Within 30 Business Days, the other party shall select
one of the three mediators. If the other party fails to select a mediator within 30 Business
Days, then the party declaring the impasse shall appoint a mediator.
f) The mediator shall immediately arrange a conference call with the mediator and the executives identified in the Demand Letter and Response Letter. In the initial conference, the
mediator shall set a place and a time where the executives and mediator will resolve the dispute ("Mediation"). The Mediation must take place within 14 Business Days of the initial
conference call. The parties shall each pay one half of the costs of the mediator unless directed otherwise by the mediator.
g) At least 72 hours prior to the Mediation, each party shall submit to the mediator the Demand Letter and Response Letter, any additional written materials exchanged prior to the declaration of an impasse, and the party's final proposal to resolve the dispute ("Final Proposal"). No other written materials may be submitted to the mediator or used in the
Mediation.
h) The Mediation shall be attended only by the mediator and the executives identified in the Demand Letter and Response Letter. The Mediation shall take no more than one day. Each
side shall have counsel available by telephone to draft any documents necessary to implement any resolution of the Mediation. If at the end of the Mediation the parties have not
reached a mutual resolution, the mediator shall within 48 hours adopt one of the party's Final Proposals or set forth in writing a resolution of the matter that is between the parties' Final Proposals ("Mediator's Resolution").
i) The Mediator's Resolution shall be immediately implemented by the parties. The Mediator's Resolution shall be binding upon the parties and not subject to any further review except in the following limited circumstances:
j) The Mediator's Resolution requires either party to pay the other or incur expenses in excess of $1000.
k) The difference between the aggregate amount demanded in a party's Final Proposal exceeds $1000.
l) The Mediator's Resolution is less favorable to a party than the other party's Final Proposal.
m) Any party dissatisfied with the Mediator's Resolution meeting the criteria above must initiate a proceeding within 30 days of receipt of the Mediator's Resolution ("Proceeding"). The Proceeding shall make a review of the parties' dispute, except the Mediator's Resolution shall be admissible. The parties shall each pay one half of the costs.
17.9. No Waiver
Any failure of either party to enforce at any time, or for any period of time, any provision of this
Agreement, shall not constitute a waiver of such provision or in any way affect the validity of this Agreement.
17.10 Complete Agreement
This Agreement constitutes the entire agreement between the parties and supersedes all prior communications, representations, or agreements, oral or written, concerning its subject matter. Neither party shall be bound by any addition to or modification to this agreement unless it is reduced to writing and duly executed by the parties or is subject to clause 17.8 of this agreement.
17.11 Business Divisions and Cross Selling
The licensee will be assigned a business vertical, and the company will promote the licensee in charge of that market sector for marketing and promotional purposes. The licensee is not limited to that market segment and may submit any deal type in any location, but should focus their marketing efforts on their assigned market.
Cross-selling is permitted under the terms of this agreement, provided the Referrer maintains a singular focus on their business division and is not actively marketing their services to another business division.
17.12 Schedules
All Schedules attached hereto are incorporated herein by this reference.
Schedules may be updated periodically if they do not have a material adverse effect on the Licensee or where the Company is required to do so to fulfill its own obligations to the Licensee. Any update must be communicated to the Licensee with 30 days written notice. If the Licensee does not accept the updated schedules, the licensee may terminate their license without penalty on the basis that the Licensee agrees to the continuing obligations for a period of sixty months or the duration of the agreement, whichever is shorter.
This Agreement has been executed by the parties' authorised representatives on the date agreed by electronic agreement.
Schedule 1.
MINIMUM SALES COMMITMENT AND PAYOUT SCHEDULE
In order to operate efficiently under a limited license agreement, the company requires each licensee to subscribe to one of the paid or free digital subscriptions included here https://www.allbizdealroom.com.au/partner-information.
The subscription ensures the partner is included in the equity pool and determines the payout level.
HOW FEES AND SUBSCRIPTIONS ARE COLLECTED
Fees and subscriptions collected by the Licensee:
• Platinum + Listing Fee: $9950
• Platinum Listing Fee: $5950
• Premium Listing Fee: $2,950
The Licensee receives 100% of these fees, which are either retained by the Licensee or distributed according to the partner plan 80 or 100.
Fees and subscriptions collected by the Company:
• Affiliate partners: $99/pm.
• Merpio subscriptions $99/pm.
Monthly Reconciliation
On the last day of each month, the Licensee provides the company with a reconciliation of listings and pays the minimum subscription plus or minus any listing fees generated. Any amount owed by either party must be paid within seven days of the end of the month.
Partner Roadmap
Join the team as a partner 50 or 80 and work your way up to our premium partner 100 (100% payout) once you have three or more listings consistently each month.
Our partners' goal is to consistently submit three or more deals per month, and you can switch with 30 days notice at any quarter.
Schedule 2.
SOFTWARE RESELLERS LICENSE
As at January 2023.
Software Pricing
- Basic $29 pm
- Merpio standard $99 pm
- Enterprise $199 pm
Payout Schedule for Software
Licensees receive a 50% commission on software subscriptions, or offset to meet the Minimum Sales Commitment.
Buyback Option
In the event of a sale, merger, amalgamation, acquisition, or other similar transaction, the company reserves the right to buy back any digital subscriptions at 3 x times the annual recurring revenue calculated from the preceding twelve months' gross sales, or for such a shorter period as an office in the Territory was in operation
Example
Schedule 3.
FULL LICENSEE PARTNER EQUITY - PARTNER 100 PLANS
Licensees will be offered equity subject to the following terms:
- paid the initial license fee, also referred to as the "initial buy-in," and
- is a current active Partner Licensee who meets the Minimum Sales Commitments or has an active, paid subscription to the Partner 50, 80, or Partner 100 plan, and
- has a vested interest in the company's success with no competing interests, and
- accepts the final terms and conditions of the "in license share agreement" that will be issued when the number of active licensees reaches 25, and
- agrees that the shares allocated are for the benefit of the current or active license holder and, as such, cannot be transferred without the sale or transfer of the license itself.