M2M One Referral Agreement

1.                  Commencement and term

1.1                This agreement comes into force on the Commencement Date.

1.2                The initial term of this agreement is two years from the Commencement Date (Initial Term).

1.3                The term of this agreement will be automatically extended by a further period of 1 year (Further Term) at the end of the Initial Term and each Further Term.

1.4                This agreement may be terminated before the expiry of the Initial Term or any Further Term in accordance with clause 11.

2.                  Appointment

2.1                We appoint you to:

2.1.1            promote our Product and Services to Potential Customers; and

2.1.2            refer Potential Customers to us,

during the term of this agreement.

2.2                When promoting our Products and Services, you must:

2.2.1            only use marketing Material provided by us;

2.2.2            comply with any directions which we may give your regarding the promotion of our Products and Services;

2.2.3            not make any misleading or deceptive statements about us or our Products or Services;

2.2.4            not engage in conduct that is unconscionable or that may damage our reputation.

2.3                You must notify Potential Customers who you refer to us that you may receive Commission Payments if they enter a contract with us for the supply of Products or Services.

2.4                You:

2.4.1            are not for any purpose, and are not to be taken to be for any purpose, because of this agreement, our partner or agent;

2.4.2            do not, because of this agreement, have any power or authority to bind or represent us; and

2.4.3            must not represent yourself as being our agent or as otherwise able to bind or represent us.

 

 

 

 

3.                  Review of referrals

3.1                If you refer a Potential Customer to us, we will determine whether you are eligible to receive Commission Payments if we enter into a contract with the Potential Customer to supply the Potential Customer with Products or Services.

3.2                We may determine that you are not eligible to receive Commission in respect of a Potential Customer you refer to us because:

3.2.1            the Potential Customer has already been referred to us by another person;

3.2.2            we already have a relationship with the Potential Customer or have identified the Potential Customer as a person to whom we wish to offer Products or Services;

3.2.3            we consider that the Potential Customer is an unacceptable credit risk;

3.2.4            the Potential Customer notifies us that it does not wish to be affiliated with you or objects to you receiving Commission Payments;

3.2.5            of any other matter or circumstance.

3.3                We are not obliged to enter into a contract for the supply of Products or Services with a Potential Customer who you have referred to us.

3.4                If you a refer a Potential Customer to us, we will notify you, within 5 Business Days of receiving the referral, of our determination whether or not you are entitled to receive Commission Payments in respect of that Potential Customer.

3.5                If we enter into a contract with an Approved Potential Customer, we will notify you of that fact within 5 Business Days.

4.                  Incentives, marketing and sales support

4.1                We may, at our discretion, offer incentives, such as discounts or rebates, to attract Potential Customers which you may communicate to Potential Customers. We will tell you what these incentives are.

4.2                We may agree to conduct joint marketing initiatives with you.

4.3                If you refer a Potential Customer to us, you must provide us with such assistance and support as we may reasonably require to convert the Potential Customer into a customer of ours and to manage our ongoing relationship with that Potential Customer.

 

5.                  Intellectual Property

5.1                We grant you a non-exclusive, royalty free, non-assignable licence to use Our Marketing IP for the purpose of promoting our Products and Services during the Term.

5.2                You must not promote our Products or Services using any trademark, business name or logo other than our trademarks, business name and logos.

5.3                You must promptly notify us if you become aware of any unauthorized use of Our IP.

5.4                You acknowledge and agree that you do not own or acquire any rights in Our IP.

5.5                You must not contest our title to Our IP or take any action that may have a detrimental effect on our title to Our IP.

6.                  Commission Payments and invoices

6.1                If we enter into a contract for the supply of Products or Services with an Approved Potential Customer within 6 months after you referred the Approved Potential Customer to us, we will pay you Commission Payments in accordance with this clause 6.

6.2                The Commission Payments will be calculated at a percentage of 5% of the monthly Revenue received by us from Contracted Referred Customers.

6.3                You are only entitled to Commission Payments on the Revenue received by us from a Contracted Referred Customer in the period of 2 years commencing on the date on which the Contracted Referred Customer entered a contract with us for the supply of Products or Services.

6.4                We will send you a statement and an RCTI (Invoice) within [14] days after the end of each Billing Period setting out:

6.4.1            the amount of Revenue received by us from Contracted Referred Customers in each month of that Billing Period; and

6.4.2            the amount of the Commission Payments we owe you for that Billing Period.

6.5                We may issue Invoices by email.

6.6                We will pay you amount of the Commission Payments set out in an Invoice by direct credit to your nominated bank account on the same day we send the Invoice to you.

6.7                Any claim by you that that an Invoice is incorrect must be made within 90 days of the date of the Invoice.

6.8                If you owe us any money under this or any other agreement, we may set-off against the amount you owe us any Commission Payments that we owe you.

6.9                If you are in breach of any term of a contract between us, we are not obliged to pay you any Commission Payments for so long as that breach has not been remedied to our satisfaction.

7.                  GST

7.1                Words defined in the GST Law have the same meaning in this clause 7, unless the context makes it clear that a different meaning is intended.

7.2                Unless indicated otherwise, the Commission Payments and all other amounts referred to in this agreement are stated exclusive of GST. If GST is or will be imposed on a supply made under or in connection with this agreement, to the extent that the consideration otherwise provided for that supply under this agreement is not stated to include an amount in respect of GST on the supply:

7.2.1            the consideration otherwise provided for that supply is increased by the amount of that GST; and

7.2.2            the recipient must make payment of the increase at the same time as the consideration is provided subject to receipt of a tax invoice.

7.3                For the purpose of satisfying the requirements of the GST Law and any additional requirements as determined by the Commissioner of Taxation from time to time, the parties agree that:

7.3.1            we can issue an RCTI in respect of any supplies by you under this agreement;

7.3.2            you must not issue a tax invoice in respect of any supply by you under this agreement unless we notify you that we will not be issuing an RCTI for that supply;

7.3.3            we are registered for GST purposes.  We will notify you if we cease to be registered for GST purposes or cease to satisfy the requirements for issuing RCTIs as set out in the GST Law or as determined by the Commissioner of Taxation from time to time; and

7.3.4            you are registered for GST purposes and have notified us of your ABN.  You must notify us if you cease to be registered for GST purposes or if you intend to sell your business.

8.                  Audit

8.1                You may, at your cost, appoint an independent certified accountant to audit our records, not more frequently than once every 12 months, for the purpose of determining the extent to which we have complied with our obligation to make Commission Payments to you.

8.2                If you request an audit, we will cooperate with the auditor and provide the auditor with access to our relevant records during our normal business hours.

8.3                You must ensure that any auditor appointed complies with clause 9 as if the auditor was a party to this agreement.

8.4                If your auditor establishes that we have underpaid Commission Payments, we must immediately pay you the shortfall.

8.5                If your auditor establishes that we have overpaid Commission Payments, you must immediately repay us the amount overpaid.

9.                  Confidentiality

9.1                You must not disclose Our Confidential Information or use it except for the purposes of this agreement.

9.2                Clause 9.1 does not prevent you from disclosing information:

9.2.1            to your auditors or professional advisers, so long as the auditor or professional adviser concerned is under a duty not to disclose or use the information except for the purpose of performing its audit or advisory obligations;

9.2.2            to a Government Agency, but you must take reasonable steps to ensure that any information so disclosed is not further disclosed except for the purposes for which it was disclosed to the Government Agency.

9.3                Your obligations under this clause 9.1 are not breached merely because Our Confidential Information:

9.3.1            is in the public domain otherwise than as a result of a breach of an obligation of confidentiality; or

9.3.2            is disclosed as required by law – so long as you:

(a)         notify us of the matter, including the identity of the person to whom the information is to be or has been disclosed, before or (if that is not possible) as soon as practicable after the disclosure is made;

(b)         only disclose Our Confidential Information to the extent legally required;

(c)          use your best endeavours to ensure that the Confidential Information is not further disclosed and is not used; and

(d)         follow any reasonable direction given by us concerning the disclosure.

 

 

10.                Limits on our liability

10.1              Neither party is entitled to recover damages from the other party for any Default or otherwise under this agreement for indirect or consequential loss, including loss of use, loss of profits, loss of opportunity, damage to reputation or special, exemplary or punitive damages.

10.2              [Subject to clause 10.3, each party’s maximum liability to the other party for Default or otherwise under this agreement is an amount equal to the Commission Payments paid by us to you under this agreement.

10.3              Clause 10.2 does not limit a party’s obligation to make any payment that must be made under this agreement.

11.                How this agreement may be terminated

11.1              If:

11.1.1          (being a corporation) you are or become insolvent or any order is made or resolution passed for your winding up or a controller is appointed over all or any part of your assets;

11.1.2          (being a natural person) you are or become insolvent or commit an act of bankruptcy or make an assignment for the benefit of your creditors;

11.1.3          you breach any terms of this agreement;

11.1.4          you breach any terms of any other contract between you and us,

we may, by written notice to you, terminate this agreement immediately or with effect from a date specified in the notice.

11.2              Either party may, by written notice to the other party, terminate this agreement for convenience with effect from a date specified in the notice (being a date not less than 60 days after the date of the notice).

11.3              Your rights to receive Commission Payments in respect of Revenue received by us from Contracted Referred Customers after termination of this agreement in accordance with clause 11.2 are not affected by the termination.

12.                How this agreement may be varied

12.1              This agreement may not be varied other than by a written agreement between the parties.

13.                Communications

13.1              You may communicate with us by:

13.1.1          calling us on the number specified on Our Website;

13.1.2          emailing us at the email address specified on our Website;

13.1.3          delivering a written communication to our physical address specified on Our Website.

13.2              Our record of any request, instruction or other communication you give us will be sufficient proof of your request, instruction or other communication unless you can show it is incorrect.

13.3              We may communicate with you by:

13.3.1          calling you on the number specified in your Application or on another number you give us;

13.3.2          emailing you at the email address specified on your Application or another email address you give us;

13.3.3          delivering a written communication to your physical address specified on your Application or another address you give us.

13.4              We may rely and act on any request, instruction or other communication received by us from any person who we, acting in good faith, believe to be your representative, whether or not that person has actual or apparent authority to make or give that request, instruction or other communication.

14.                Interpretation

14.1              The following provisions apply to this agreement.

14.2              A reference to:

14.2.1          a legislative provision or legislation (including subordinate legislation) is a reference to that provision or legislation as amended, re-enacted or replaced, and includes a reference to any subordinate legislation issued under it;

14.2.2          a document or agreement (including this agreement), or a provision of a document or agreement (including this agreement), is a reference to that document, agreement or provision as amended, supplemented, replaced or novated;

14.2.3          a specified standard, code, guideline, or other similar document is a reference to the version or edition of the standard, code, guideline, or document as in force for the time being;

14.2.4          a party to this agreement or to any other document or agreement includes a successor in title, permitted substitute or a permitted assign of that party;

14.2.5          a person includes a reference to any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person; and

14.2.6          anything (including a right, obligation or concept) includes a reference to each part of it.

14.3              A singular word includes the plural, and vice versa.

14.4              A word that suggests one gender also suggests the other genders.

14.5              If a word or phrase is defined, another part of speech of that word or another grammatical form of that phrase has a corresponding meaning.

14.6              If an example is given of anything (for example, a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of the thing.

14.7              A reference to information is a reference to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology and trade secrets.

14.8              A reference to a breach by a party to an agreement or other document:

14.8.1          of the agreement or document; or

14.8.2          of an obligation in an agreement or other document;

includes a reference to a representation made by the party in or in connection with the agreement or document being inaccurate or misleading, including by omission.

14.9              Headings in this agreement are not provisions of this agreement and do not affect the interpretation of this agreement.

14.10            A reference in this agreement to a numbered or otherwise identified provision is a reference to the provision so numbered or identified in these Terms and Conditions.

14.11            If the day on or by which a person must do something under this agreement is not a Business Day, the person must do it on or by the next Business Day.

15.                Other terms

15.1              The parties agree that, except as may be required by law, the express provisions of this agreement are intended to constitute the exhaustive statement of their rights and obligations in relation to the matters to which it relates.

15.2              You must not, without our written consent, assign your rights under this agreement.

15.3              A right under or in relation to this agreement may only be waived in writing and:

15.3.1          no other conduct of a party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right;

15.3.2          a waiver of a right on one or more occasions does not operate as a waiver of that right or as an estoppel precluding enforcement of the right if it arises again; and

15.3.3          the exercise of a right does not prevent any further exercise of that right or of any other right.

15.4              Any provision of this agreement that is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this agreement enforceable, unless this would materially change the intended effect of this agreement.

15.5              The following provisions of this agreement survive the expiry or termination of this agreement:

15.5.1          any provision expressed to survive the expiry or termination of this agreement;

15.5.2          any provision which by implication from its nature is intended to survive the termination or expiration of the agreement including provisions relating to confidential information, a right to recover money and privacy.

15.6              This agreement is governed by the laws in force in Victoria. Each party:

15.6.1          submits to the jurisdiction of the courts of Victoria and of any court that may hear appeals from any of those courts, for any proceedings in connection with this agreement; and

15.6.2          irrevocably waives any objection to the venue of any proceedings brought in those courts in connection with this agreement on the ground that they have been brought in an inconvenient forum.

16.                Glossary

In this document, unless a contrary intention appears:

[Application means the online application form on Our Website by means of which a person can apply to be a referrer.] [Note: To be reviewed once the online application process has been finalised.]

Approved Potential Customer means a Potential Customer that:

  • you have referred to us; and
  • we have determined is a person in respect of whom you are entitled to receive Commission Payment.

Billing Period means each calendar quarter.

Business Day means a day other than a day that is a Saturday, Sunday or national public holiday.

Commencement Date means the date on which we accept your application to be a referrer using the online application form on Our Website.

Commission Payments means commission payments payable to you in accordance with clause 6.

Contracted Referred Customer means an Approved Potential Customer that has entered into a contract with us for the supply of Products or Services within 6 months after you referred the Approved Potential Customer to us.

Corporations Act means the Corporations Act 2001 (Cth).

Data Plan means a plan that we provide that allows a customer to use a fixed monthly amount of data for a fixed price and includes an excess usage charge if the customer exceeds the allowance.

Default means an act or omission that:

  • is a contravention of a written law; or
  • amounts to negligence or a breach of a duty (including a duty arising under an agreement) or a breach of an agreement or other document.

Government Agency means a person or body performing governmental functions, including any of the following:

  • a body politic;
  • a government or government department or other similar body;
  • a governmental, semi-governmental or judicial person;
  • a person (whether autonomous or not) charged with the administration of a law.

GST Act means the A New Tax System (Products and Services Tax) Act 1999 (Cth).

GST Law has the meaning given to that term in the GST Act.

IP or Intellectual Property means all copyright and all rights in relation to inventions (including patent rights), registered and unregistered trademarks (including service marks), registered and unregistered designs, and circuit layouts, and any other rights resulting from intellectual activity in the industrial, scientific, literary and artistic fields recognised in domestic law anywhere in the world.

Material includes documents, goods, equipment, reports, software, specifications, reports, information and data.

Our Confidential Information means information relating to us or any of our Related Bodies Corporate that:

  • is by its nature confidential;
  • is designated by us as confidential;
  • you know or ought to know is confidential,

but not information that:

  • is or becomes public knowledge otherwise than by a breach of this agreement or another confidentiality obligation; or
  • you establish has been independently developed or acquired by you.

Our IP means all IP in any Material provided to you by us or on our behalf under or in connection with this agreement.

Our Marketing IP means Our IP that we use for marketing our Products and Services, including our trademarks, business name and logo.

Our Website means our website at m2mone.com.au.

Potential Customer means a person who may become a customer of ours.

Product means a SIM Card or other good we supply to our customers.

RCTI means a recipient created tax invoice.

Related Body Corporate has the meanging given to that term in the Corporations Act.

Revenue means fees and charges paid to us by Contracted Referred Customers as consideration for the supply of Products and Services (excluding GST). To avoid doubt, Revenue does not include fees and charges due to us but not paid.

Service means a service that we supply to our customers, including Data Plans.

SIM Card means a subscriber identity module card that may be fitted to or removed from a device by hand.

We, our or us means M2M One Pty Ltd ABN 39 130 158 888.

you means the referrer.

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