BUSINESS PARTNER AGREEMENT
With Evolvepreneur Pty Ltd and Business Partner
1 - PARTIES
1.1 Supplier - Evolve Systems Group Pty Ltd ABN 51 098 121 343 Ltd of PO Box 327, Stanhope Gardens NSW 2768 (The “Supplier”)
1.2 Business Partner -
Business Partner Trading Name:
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Contact Name:
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(The “Business Partner”)
- Business Partner
- Business Partner PRO (automatic upgrade once the achievement of criteria.
2 - BACKGROUND
2.1 The Supplier supplies software and various other associated products and services
2.2 The Business Partner has agreed to market and sell the Products on the terms and conditions of this document.
2.3 This Business Partner Agreement is subject to approval by Evolvepreneur Pty Ltd and may be made by an individual, sole trader, partnership or incorporated Australian Company or international Company.
3 - OPERATIVE PROVISIONS
3.1 DEFINITIONS AND INTERPRETATION
3.2 In this Agreement unless the context otherwise requires:
3.2.1 “Approved purpose” means (see clause 17.1.6.3)
3.2.2 “Business Day” means a day that is not a Saturday, Sunday, public holiday or bank holiday in New South Wales
3.2.3 “Business Hours” means 9 am to 5 pm (NSW Time), Monday to Friday, excluding public holidays in New South Wales.
3.2.4 “Channel structure” means an independent Business Partner authorised by the Supplier to resell the products and services or third party products. The Business Partners are divided into various levels which are determined by choice, accreditation and payment of joining and monthly fees.
3.2.5 “Commencement Date” means the date set out in Schedule 1.
3.2.6 “Confidential Information” means all information including sales and other statistics relating to products and services which are not available in the public domain and includes customer information.
3.2.7 “Business Partner Member fee” means fees as specified in Schedule 1.
3.2.8 “Business Partner Joining fee” means fees as specified in Schedule 1.
3.2.9 “Customer” means any person that has purchased, licensed or used the Products or services, or may purchase, license or use the Products or services.
3.2.10 “Customer Information” means any information relating to or about a Customer relating to sales and services including without limitation, customer lists, names, ordering data, marketing data and customer history.
3.2.11 “Delivered” will have the meaning given to that term in Clause 5.7.
3.2.12 “Delivery Date” of a Product means the date on which that Product was delivered to the Business Partner or as directed by the Business Partner to the Customer.
3.2.13 “Disclosing Party” means the party disclosing their Confidential Information to the other party.
3.2.14 “Distribution” means to distribute, market or sell.
3.2.15 “Fees” means any money due and payable to a party under this Agreement including the Price of the Products or any Interest.
3.2.16 “Force Majeure Event” includes but is not limited to acts of God, acts, resolutions or laws of any Government, war, war-like conditions, civil unrest, destruction of production, storage or delivery facilities or materials by fire, flood, earthquake or storm, labour disturbances, epidemic and failure of public utilities or common carriers.
3.2.17 “GST Law” means a Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time.
3.2.18 “Harm” means any loss, damage, costs (including reasonable legal costs), expense or liability, whether direct or indirect, including any consequential loss, damage, costs, expense or liability.
3.2.19 “Intellectual Property” means:
3.2.19.1 any intellectual, industrial or commercial information, property or rights of a proprietary nature, including without limitation:
3.2.19.2 any copyright, patent, petty patent, design, trade mark, service mark, domain name, confidential information,
3.2.19.3 trade secret, know-how, database; or
3.2.19.4 any rights protected or recognised under any laws related to the above or any similar laws; and
3.2.19.5 any thing (whether in material form or not) copied or derived from the above property or rights
3.2.19.6 Moral Rights means the rights granted to the author of a work under Part IX of the Copyright Act 1968 (Cth) or any similar rights under any similar law or legislation
3.2.20 “Performance Targets” means the targets set out in Schedule 5.
3.2.21 “Price” means the amount payable for the Products and calculated as set out in Schedule 2.
3.2.22 “Product Specifications” means the specifications set out in Schedule 4.
3.2.23 “Products” means goods or services or both deliverable under this Agreement and set out in Schedule 4.
3.2.24 “Purchase Order” means an order for the purchase of Products by the Business Partner from the Supplier.
3.2.25 “Recipient” means the party receiving the Confidential Information of the other party.
3.2.26 “Term” means the period commencing on the Commencement Date and ending on the Termination Date.
3.2.27 “Termination Date” means the day that is the earlier of:
3.2.27.1 the date set out in Item 3 of Schedule 1; and
3.2.27.2 the date that this Agreement is terminated under Clause 19.
3.2.28 “Terms and Conditions of Use” means the terms and conditions of use set out in manuals or separate license provided with each package.
3.2.29 “Territory” means the geographical region set out in Item 1 of Schedule 1.
3.2.30 “Trade Marks” means the trade marks owned by the Supplier or its ultimate supplier
3.2.31 “Accreditation and Other Fees” means the fees set out in Schedule 1 .
Validity in relation to any agreement, Agreement, right or consent, includes the validity, subsistence, enforceability, legality, recoverability, propriety, regularity and maintenance in full force and effect of that agreement, Agreement, right or consent.
4 - INTERPRETATION
4.1 In this Agreement, unless the context otherwise requires:
4.2 headings are not intended to affect the meaning of any clause and must be disregarded when interpreting the Agreement;
4.3 any reference to a person is intended to cover an individual, a company or any other recognised legal entity;
4.4 any reference to a specific gender includes any other gender;
4.5 any reference to the singular includes the plural and any reference to the plural includes the singular;
4.6 monetary amounts are expressed in the currency indicated, or, if no currency is indicated, in Australian dollars;
4.7 an agreement, representation or warranty on the part of two or more persons binds them jointly and severally; and
4.8 an agreement, representation or warranty on the part of two or more persons is for the benefit of them jointly and severally.
5 - APPOINTMENT
5.1 Non-exclusive Business Partner Status
5.1.1 The Supplier appoints the Business Partner as its non-exclusive Business Partner to carry on the reasonable marketing and sale of the Products in the Territory (as per schedule 1).
5.1.2 Upon appointment, the Business Partner is entitled to relevant benefits for the applicable level as per Schedule 1
5.1.3 The Business Partner acknowledges that the Supplier may:
5.1.3.1 appoint or permit the appointment of any other person to carry on; or
5.1.3.2 carry on itself, the marketing and support of the Products in the Territory.
6 - PERFORMANCE
6.1.1 The Business Partner agrees to perform its obligations in a proper and businesslike manner and with due regard to the interests of the Supplier.
6.1.2 The Business Partner agrees to market and sell the Products in the Territory or in places as otherwise agreed between the parties.
6.1.3 The Business Partner will not offer, promote, distribute or market any of the Products to any person otherwise than in accordance with this Agreement.
7 - TERM
This Agreement commences on the Commencement Date and continues until the Termination Date.
Under normal circumstances, this agreement auto-renews each month after payment of the membership fee.
8 - CUSTOMERS AND CUSTOMER INFORMATION
8.1 All customer information as defined in the definitions including all customer contact details and information for products installed shall be available to both the Business Partner and the supplier both of whom shall retain the right to use that information during the period of this Agreement.
8.2 The Business Partner must obtain all consents or waivers necessary to ensure the Business Partner’s compliance with the Privacy Act 1988 (Cth) in relation to the Business Partner's and Supplier's collection, use and disclosure of Customer Information collected by or from the Business Partner or the Customer directly.
8.3 The Supplier has defined controls when an end-user is allocated to a Business Partner. Once the Suppliers’ records show a Business Partner has been allocated to an end-user (exempting typing errors) the record can only be changed if either the outgoing Business Partner or the end-user approves this action in writing.
9 - TERMS AND CONDITIONS OF SALE
9.1 Business Partner obligations
9.1.1 The Business Partner must carry on the reasonable Promotion and sale of the Products upon the terms and subject to the conditions set out in this Agreement including those terms and conditions set out in Schedule 3.
9.1.2 Title
9.1.2.1 No activation codes are available for a Product to the Business Partner until the Supplier has received in immediately available funds payment in full of the Price, including any interest, costs and charges.
9.1.2.2 The purchaser is granted the rights to use the Software Products, and the Business Partners is granted rights to on-sell the Product, however, Evolvepreneur Pty Ltd shall retain ownership of the IP rights in and to the Product
9.2 Third-Party Intervention
9.2.1 In case of an attachment order or any other third party intervention in respect of the Products, the Business Partner must immediately inform the Supplier.
9.3 Ordering Products
9.3.1 The Business Partner may offer to purchase Products from the Supplier (less applicable margins as per Schedule 2) by purchasing online via the Supplier's website.
9.3.2 Upon the Supplier's acceptance of the whole or any part of an Online Order, the parties will have entered into a binding contract for the purchase and supply of the Products in accordance with the terms of the Purchase Order as accepted in whole or in part.
10 - RECURRING INCOME PROGRAMS
10.1 The Supplier provides some products on annual or monthly membership plans for it’s products to the Business Partner for resale
10.1.1 The Business Partners Recurring Income Program shall endure for as long as a valid Business Partner agreement remains in place.
10.1.2 The Business Partners Recurring Income Program contract with its customers shall contain all contact information of the customer
10.2 Recurring Income Plans can be purchased on an annual or monthly basis unless otherwise stated.
10.3 Business Partners are entitled to recurring income payments (as per Schedule 2) for monthly member plan revenues;
10.4 Recurring income payments are calculated (as per schedule 2 margins) and credited to their Business Partner account within 30 days of the receipt of funds by the Supplier (typically last day of the month). These credits can be used for future purchases or paid into a selected account (less any transfer fees) by the 15th of the following month of the credit.
10.5 Should the Supplier be liquidated or otherwise cease trading and the direct debit drawings continue the Business Partner is entitled to payment of their applicable recurring income payments until these direct debits cease.
10.6 Should a Business Partner’s status (by mutual agreement) be reduced then the recurring commission will decrease to the applicable level.
10.7 Should an end-user change to another Business Partner during a period of an applicable plan then six (6) months from the date the new Business Partner advises of the change, the supplier shall redirect recurring income to the new Business Partner (as long as the end-user has also accepted in writing such change). The previous Business Partner or the supplier if there has been no previous Business Partner will continue to receive the recurring income until that date. This provision shall only apply where an existing accredited Business Partner is involved. If the old Business Partner's status is not current or the end-user has not been assigned to a Business Partner then payment to the new Business Partner will apply from the next billing cycle.
10.8 The Supplier will only provide technical support to Business Partners.
11 - DELIVERY OF PRODUCTS
The Supplier is to deliver, and will be deemed to have delivered, the Products to the Business Partner by delivering the Products to the place of business as defined in the manner set out in Schedule 1
11.1 Inspection and acceptance
11.1.2 Once a product has been registered it cannot be returned to the Supplier.
11.1.3 The Business Partner must act in good faith in deciding whether to accept or reject a delivery under this Agreement.
12 - PAYMENT
12.1 The Business Partner will pay to the Supplier the amount due, subject to receiving a correctly rendered invoice for the Products/Services in the amount, at the times and in the manner set out in Schedule 2.
12.2 An invoice is correctly rendered if:
12.2.1 the specified Fee is correctly calculated and due for payment;
12.2.2 the invoice is set out in a manner that enables the Business Partner to ascertain the goods or services to which the invoice relates and the fee payable in respect of those goods or services;
12.2.3 the invoice is accompanied (where necessary or where reasonably requested by the Business Partner) by verifying Agreement; and
12.2.4 the invoice is addressed as specified in Item 4 of Schedule 1.
13 - BUSINESS PARTNER'S OBLIGATIONS
13.1 Active promotion - The Business Partner must actively promote the Products and Services as set out in Schedule 1 or as otherwise agreed in writing from time to time between the Supplier and the Business Partner.
13.2 Training and competency - The Business Partner must ensure that all persons involved in the installation, training, implementation and support of the Products for or on behalf of the Business Partner, are trained by the Supplier at the conditions set out in Schedule 1 Clause 6 . The Business Partner or designated staff member must undertake training and pass applicable examinations with 3 months of offering any products available for resale of they decide to become a Certified Business Partner.
13.3 The Business Partner will ensure that all Software Program implementations and support performed by it are carried out in a professional and timeous manner and in accordance with any guidelines, certified implementation and sales methodologies that the Supplier may issue from time to time;
13.4 Supplier consent to marketing
13.4.1 In order to secure the uniformity of the image of the Supplier's Products the Business Partner undertakes to consult the Supplier before making public any major advertising campaign or promotional materials relating to the products.
13.4.2 Such advertising campaigns or promotional materials will not under any circumstances be disclosed without the Supplier's prior express written consent.
13.5 Performance Targets - The Business Partner must endeavour to meet the Performance Targets as per schedule 5. If a Business Partner fails to meet Performance Targets, then the supplier will undertake to work with the Business Partner to improve performance, as part of this process the results will be reviewed every 3 months. If after Six months the Business Partner fails to meet the performance target, the Supplier may terminate the agreement with the Business Partner or lower their status.
13.6 Insurance - During the Term, and for such period after the Term during which a claim may be made against the Business Partner, the Business Partner should procure and maintain, at its own expense, insurance policies with a reputable insurer covering all risks for which it might be liable in respect of the carrying out of the marketing and sale of the Products, or the destruction of or damage to the Products for an amount that a prudent person performing the obligations and duties of the Business Partner under this Agreement would insure for, and will, if required by the Supplier, produce evidence of such insurance policies.
13.7 Additional Obligations - The Business Partner must:
13.7.1 use its best endeavours, and at its own cost, to sell the Products;
13.7.2 use its best endeavours (at its own cost), in the Promotion of the Products;
13.7.3 not alter, or make representations that are misleading or deceptive in relation to, the Products or the Product Specifications or the Terms and Conditions of Use as specified in Schedule 4 or with respect to any other information in relation to the Products supplied to the Business Partner by the Supplier, or developed by either the Supplier, the Business Partner or both for or in relation to this Agreement;
13.7.4 not modify or alter in any way any of the Products that may be supplied to the Business Partner by the Supplier from time to time for the purposes of the sale and Promotion of the Products or otherwise;
13.7.5 comply with any reasonable instructions or operational requirements, that are not inconsistent with any other clause in this agreement, provided by Supplier to the Business Partner from time to time with respect to the sale and promotion of the Products;
13.7.6 not use any logo or trademark of the Supplier otherwise than for the marketing and sale of the Products and in accordance with this Agreement and the Supplier's instructions;
13.7.7 obtain the Supplier's written consent if it wishes to use the Supplier's Intellectual Property otherwise than in accordance with this Agreement and the written instructions provided by the Supplier from time to time;
13.7.8 not engage in any misleading or deceptive conduct or otherwise contravene any law in its marketing and sale of the Products;
13.7.9 not act in a manner, and ensure that all employees and agents (such agents to be expressly approved of by the Supplier) of the Business Partner will not act in a manner that may adversely affect or bring into disrepute the reputation of the Supplier of the Products, and;
13.7.10 comply with any reasonable request made by the Supplier to enable the Supplier to comply with any legal obligations under its contracts with its customers or at law;
14 - SUPPLIER'S OBLIGATIONS
In addition to all other duties and obligations of the Supplier under this Agreement, the Supplier agrees as follows:
14.1 Training and marketing materials
14.2 The Supplier will provide the Business Partner with all training documentation and other assistance as the Business Partner reasonably requires or requests in connection with the marketing and sale of the Products, and to supply additional marketing materials at landed cost.
15 - WRITTEN NOTICE
15.1 If the Supplier is of the opinion that it will not be able to fully satisfy a Purchase Order, it must notify the Business Partner in writing, specifying the reasons for the expected delay and its duration.
15.2 Additional Supplier Obligations - The Supplier will:
15.2.1 use reasonable endeavours to assist the Business Partner with the planning and implementation of the Promotion of the Products;
15.2.2 use reasonable endeavours to supply the Business Partner with any Promotion materials the Supplier deems necessary for the Promotion of the Products by the Business Partner; and
15.2.3 use reasonable endeavours to supply the Business Partner with all Product Specifications, information and manuals in order that the Business Partner may gain and maintain an understanding of the Products in order to market and sell them.
15.2.4 Assist the Business Partner with marketing assets with approved marketing campaigns.
15.2.5 Undertake various brand awareness and general marketing of the products.
15.2.6 Endeavour to encourage all (new/additional module) product orders (noted in the Supplier’s database against the Business Partner) to be made via the Business Partner. Customer orders for support contracts and annual maintenance may be made direct to the customer by the Supplier but the Business Partner is encouraged to contact the customer prior to expiry to place these orders.
Display assigned Business Partner’s name in any direct marketing (when practical) and always advise the customer that it is the supplier’s preference that the customer order through the Business Partner.
16 - PERFORMANCE TARGETS
16.1 The Supplier shall provide such technical telephone, internet chat, and email assistance to the Business Partner and its staff as the Business Partner may reasonably request from time to time. Such assistance shall be provided during the Suppliers’ normal business hours. The Supplier acknowledges that the technical assistance to be provided hereunder shall be limited to the training and support of the Business Partner’s personnel in operation and utilisation of the programs only.
16.2 The Supplier acknowledges that the provision of quality technical support and customer service is a primary objective of this agreement and the Supplier agrees to allocate sufficient trained technical support personnel in respect of the products:
16.2.1 Business Partners are entitled to Priority Support
16.2.2 released the current version and the previous version of the product is supported by the Supplier.
The Supplier will maintain and update various online and offline technical and marketing resources for the Business Partner’s Use.
17 - CONFIDENTIALITY
17.1 The Supplier and the Business Partner may exchange confidential information as a consequence of this agreement. The Recipient of that confidential information:
17.1.1 must keep the Confidential Information confidential;
17.1.2 must ensure the Confidential Information is kept secure and follow any reasonable directions of the Disclosing Party in relation to the security of the Confidential Information;
17.1.3 must use its best efforts to notify the Disclosing Party immediately if it becomes aware of any unauthorised use or disclosure of the Confidential Information;
17.1.4 must not disclose or provide the Confidential Information to anyone, except as expressly permitted under this Agreement;
17.1.5 must co-operate in any investigation, litigation or action which the Disclosing Party may take, or be involved in, in relation to the confidentiality of the Confidential Information;
17.1.6 acknowledges that:
17.1.6.1 damages will not be an adequate remedy for the Disclosing Party for any breach by the Recipient of its obligations under this clause; and
17.1.6.2 the Disclosing Party is entitled to seek specific performance or injunctive relief as a remedy for any such breach or threatened breach, in addition to any other remedies available at law or in equity; and
17.1.6.3 must only use the information for an Approved Purpose.
17.1.7 The Recipient may only disclose the Disclosing Party's Confidential Information to:
17.1.7.1 its employees, agents, representatives or advisers who have a need to know and that the Recipient has ensured have agreed to comply with the confidentiality obligations in this Agreement;
17.1.7.2 its contractors, subcontractors, Business Partners or others who have a need to know and have signed confidentiality undertakings to comply with the confidentiality obligations in this Agreement.
17.1.7.3 this clause does not affect the Recipient's use, disclosure, copying or retention of information that
17.1.7.4 is generally available to the public;
17.1.7.4.1 the Recipient can clearly show was independently known by it (other than through a breach of this Agreement or any other obligation of confidentiality) prior to disclosure by the Disclosing Party under this Agreement; or
17.1.7.4.2 the Recipient is required by law, a stock exchange or a government body to disclose or retain.
17.1.8 If the Disclosing Party requests, the Confidential Information will be, at the Disclosing Party's sole discretion, either returned to the Disclosing Party or destroyed, as soon as practicable after such request.
The Recipient's obligations of confidentiality apply during the Term of this Agreement and continue after the Term.
18 - INTELLECTUAL PROPERTY
18.1 Title - All right, title and interest that a party has to any Intellectual Property remain with that party except as expressly stated in this Agreement.
18.2 License - The Supplier grants to the Business Partner a non-exclusive license for the Term to:
18.2.1 apply the Trade Marks to the Products and any promotional and marketing material; and
18.2.2 use any Intellectual Property owned by , or licensed to, the Supplier, solely for the purpose of carrying on the Promotion and sale of the Products under this Agreement and in accordance with any directions given by the Supplier to the Business Partner from time to time.
18.3 Intellectual Property - All the legal interests in any Intellectual Property comprised in anything (whether in a material form or not):
18.3.1 created, developed or derived from Intellectual Property provided by the Supplier or
18.3.2 created, developed, written, conceived, supplied, used or implemented by or for the Business Partner during, resulting from or for the purpose of, the performance of the Business Partner's obligations under this Agreement, at any time by any person, whether in compliance with or in default under this Agreement,
18.3.3 is and becomes vested in the sole, exclusive, absolute and entire beneficial ownership of the Supplier as applicable.
18.4 Restrictions on use of Intellectual Property
18.4.1 The Business Partner must not:
18.4.1.1 apply the Trade Marks or any one or more of them to any item or thing other than the Products nor will it use the Trade Marks in any way other than in accordance with this Agreement or as authorised in writing by the Supplier;
18.4.1.2 use any other Intellectual Property of the Supplier without the Supplier's written consent; and
18.4.1.3 apply in any way (other than as authorised in writing by the Supplier) any of the Business Partner's or any third party's Intellectual Property (including without limitation any other registered or unregistered trademarks, logos, designs or any other distinctive mark) to the Products or thing used in conjunction with the Promotion and sale of the Products.
18.5 Infringement claims and litigation
18.5.1 Both the Business Partner and the Supplier undertake to inform the other of any act of unfair competition or of any infringement of the Intellectual Property of the Supplier of which they become aware.
18.5.2 The Supplier will have the right, but not the obligation, to prosecute and defend, as the case may be, all claims of infringement against or by a third party arising from or in connection with the Business Partner's use of the Supplier's Intellectual Property.
18.5.3 The parties will unite their efforts to fight against such infringements and to the extent necessary to fight such infringements will disclose, subject to normal privilege rules, any relevant legal, technical or commercial information to each other.
18.5.4 Under no circumstances will the Business Partner bring an infringement or unfair competition action against a third party in relation to the Supplier's Intellectual Property rights without the prior written consent of the Supplier.
18.6 Warranty and indemnity
18.6.1 If any party creates, supplies or uses Intellectual Property for the purposes of this Agreement for any reason then that party warrants that:
18.6.1.1 the Intellectual Property they supply, use or
18.6.1.2 create does not infringe the Intellectual Property of any third party;
18.6.1.3 the other party's use of the Intellectual Property as contemplated in this Agreement will not infringe the Intellectual Property of any third party;
18.6.1.4 and the Intellectual Property they supply, use or create does not infringe the Moral Rights of any third party.
18.6.1.5 Each party that creates, supplies or uses Intellectual Property for any purpose under this Agreement will indemnify and hold harmless the other party from and against any
18.6.1.6 Harm arising from:
18.6.1.7 the use or existence of any Intellectual Property supplied, used or created by that party, or a breach of any warranty in sub-clause (a) of this clause.
19 - TERMINATION
19.1 Termination with cause - Without limiting any other rights it may have at law or equity or derogating from any party's obligation to perform an obligation when required under any other provision of this Agreement, a party may, subject to the rights of the Parties under Clause 18, terminate this Agreement by giving written notice to the other party if the other party :
19.1.1 fails to pay any money due and payable under this Agreement and such failure is not remedied within twenty-five (25) Business Days of receipt of such written notice;
19.1.2 breaches one or more of its obligations under this Agreement in any way and, if such breach (advised in writing at time of breach as per clause 28.4) is:
19.1.2.1 capable of remedy, fails to remedy the breach within 25 Business Days of such breach; or
19.1.2.2 not capable of being remedied, immediately on the occurrence of such breach;
19.1.2.3 is unable to pay its debts as they become due from its own money, or otherwise becomes insolvent or bankrupt;
19.1.2.4 it or any of its assets becomes subject to any form of insolvency or control, bankruptcy, liquidation, provisional liquidation, administration or any similar process or appointment
19.1.2.5 stops carrying on business; or
19.1.2.6 disposes of all or a substantial part of its assets, operations or business.
19.1.2.7 other situations where both parties agree mutually agree to terminate
19.1.2.8 breaches other clauses of this agreement including 13.7.11
19.2 Business Partner's obligations upon termination - Subject to the rights of an Administrator appointed by the supplier and provided that the termination pursuant to this Clause 12 is not due to the Supplier not being served notice under Clause 19.1.2.1,19.1.2.2, 19.1.2.3, 19.1.2.4 by the Business Partner, then upon termination of this Agreement, the Business Partner must immediately:
19.2.1 cease carrying on the marketing and sale of the Products to the Customers;
19.2.2 cease to use and immediately return any Intellectual Property supplied, owned or licensed by the Supplier including in-house software supplied under this agreement;
19.2.3 remove and discontinue the use of all Promotional materials, stationery, advertising and literature indicating that the Business Partner is a Business Partner or representative of or is otherwise associated or affiliated with the Supplier;
19.2.4 return all copies of any Confidential Information of the Supplier in its possession or control to the Supplier and cease to use such Confidential Information for any purpose;
19.2.5 immediately return all units of the Products which the Business Partner has received but for which it has not made payment;
19.2.6 make every reasonable effort to effect an orderly transition to the Supplier, or its nominee, of all aspects of the Business Partner's business connected with this Agreement;
19.2.7 immediately pay to the Supplier all amounts owing (whether or not then due otherwise than due to this clause) in relation to Products supplied and not returned under this Agreement to the Business Partner.
19.2.8 The Supplier will immediately pay any amounts (or offset against amounts in clause 19.2.7 above) owing to the Business Partner in their Recurring Income account.
Costs - The party the action of which has caused the termination of this Agreement or which has terminated it without cause will bear the cost of returning such Products.
20 - AFTER TERMINATION
20.1.1 Any accrued rights and remedies of a party will survive termination or expiry of this Agreement except where otherwise provided in this clause.
20.1.2 The assignments of any rights in any Intellectual Property survive the termination of this Agreement.
21 - WARRANTIES
21.1.1 To the full extent permitted by law, the Supplier excludes, except as set out in this Agreement, all warranties or representations of any kind, express or implied, including without limitation any warranties of merchantability or fitness for a particular purpose.
21.1.2 To the extent that any warranty must be express or implied by law the liability for such warranty is limited to, at the sole discretion of the party providing the warranty.
22 - INDEMNITY
22.1 General indemnity - Subject to Clause 16.2, each party ( Indemnifying Party ) irrevocably indemnifies the other party from and against all Harm (including any action or claim by a third party in relation to any Harm ) incurred or suffered by, or awarded against, the other party, or any third party, arising from or caused by any negligence, breach of contract, or other wrongful or unlawful conduct on the part of the Indemnifying Party.
22.2 Limitation - The Indemnifying Party is not liable to indemnify the other party to the extent that the other party's (including any employee or agent of the other party) conduct, breach, negligence or failure to mitigate any loss contributed to the Harm suffered by the other party.
23 - INDEPENDENT CONTRACTOR
23.1 The Business Partner is an independent contractor and must not, except as expressly authorised by this Agreement, in respect of or on behalf of the Supplier or any of its services or the Products:
23.2 hold itself out to be an agent, employee, partner, joint venture or otherwise associated with the Supplier;
23.3 have, or hold itself out as having, the authority to pledge the credit of the Supplier;
23.4 accept orders or otherwise contractually bind or enter into any agreement or arrangement in the name of or otherwise on account of the Supplier; or
23.5 make, in the name of the Supplier, any representation or statement, express or implied, and whether oral or in writing, in relation to the Products, which does not accord with the published information supplied by the Supplier to the Business Partner.
24 - DISPUTE RESOLUTION
24.1 Disputes - This provision applies to any dispute or difference (dispute) arising between the parties in relation to:
24.1.1 this Agreement or its interpretation;
24.1.2 any right or liability of any party under this Agreement; or
24.1.3 the performance of any action by any party under or arising out of this Agreement, whether prior or after its termination.
24.2 Dispute Negotiation
24.2.1 A party must not refer a dispute to arbitration under this Agreement, unless that party has complied with this provision.
24.2.2 A party claiming that a dispute has arisen must immediately notify the other party specifying details of the dispute.
24.2.3 Each party must within ten (10) days of notification of such dispute, use its best efforts to resolve the dispute by agreement.
24.2.4 If the dispute has not been resolved within the ten (10) business days aforesaid then the dispute shall be dealt with in accordance with clause 25.
25 - ARBITRATION
25.1 Each party must submit any dispute which remains unresolved following the negotiation process specified in this provision to arbitration under the Rules for the Conduct of Commercial Arbitration of the Institute of Arbitrators of Australia applicable at the time of submission or, if agreed between the parties, to another recognised arbitration forum.
Each party is entitled to legal representation at any arbitration.
25.2 Urgent Relief - A party may at any time apply to a court of competent jurisdiction for any equitable or another remedy for reasons of urgency, despite anything contained in this provision.
25.3 Continued Performance - Each party must continue to perform its obligations under this Agreement, despite and during any dispute negotiation or arbitration being conducted under this provision.
26 - CONFIDENTIALITY
26.1 To the full extent permitted by law, all information provided for the purposes of resolving any dispute under this clause is to remain strictly confidential and may only be used or disclosed for the purpose of resolving any dispute under this clause.
27 - GENERAL
27.1 Agreement subject to applicable laws. The provisions of this Agreement (including all rights, obligations, exclusions and limitations) apply only to the extent permitted under applicable laws.
27.2 Amendment - Any amendment to this Agreement must be in writing and signed by both parties.
27.3 Assignment and novation
27.3.1 A party must not assign or novate any of its rights, obligations or interest under this Agreement without the prior written consent of the other party.
27.3.2 The Supplier acknowledges that at some point in the future the Business Partner may wish to sell its business.
27.3.2.1 The Supplier will work with the Business Partner to allow this transition to be seamless. The purchaser will need to comply with all the provisions of this agreement and the accompanying schedules in the same manner as would apply to any other new Business Partner but the supplier’s consent to such sale shall not be unreasonably withheld.
27.3.3 Costs of preparation - Each party is responsible for its own costs in relation to the preparation and negotiation of this Agreement.
28 - ENTIRE AGREEMENT
28.1 This Agreement and accompanying Business Partner Application is the entire agreement between the parties in relation to its subject matter, and replaces all previous agreements, understandings and arrangements in relation to the same subject matter.
28.2 Further assurance - Each party must execute any Agreement and perform any action necessary to give full effect to this Agreement, whether before or after the performance of this Agreement.
28.3 Governing Law and jurisdiction - This Agreement is to be governed by, and construed in accordance with, the laws of Australia and each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales and courts of appeal of those courts.
28.4 Notices - Any notice to be given under or in connection with this Agreement must be given in writing, in English, and emailed to the intended recipient at the address or number specified in this Agreement (or any new address or number properly notified). Notices given in this way will be deemed received five (5) Business Days after being sent to the email address supplied by the addressee, does not bounce back to the sender as being un-received within one hour of being sent (if emailed)
28.5 Set off and deductions - A party may deduct (with mutual consent from the other party) from or set off against any amount it is required to pay under this Agreement to the other party any amount payable, or which it claims is payable, by that other party to it under this Agreement.
28.6 Severance - Any provision of this Agreement that is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.
28.7 Waiver - A waiver of any breach or non-performance of this Agreement will only be effective if it is written and signed by the party giving the waiver, and only to the extent specified.
28.8 GST - If any payment made by a party (First Party) to any other party (Payee) under or relating to this Agreement constitutes consideration for a taxable supply for the purposes of GST or any similar tax, the amount to be paid by the First Party for the supply will be increased so that the net amount retained by the Payee after payment of that GST is the same as if the Payee was not liable to pay GST in respect of that supply. This provision is subject to any other agreement regarding the payment of GST on specific supplies, and includes payments for supplies relating to the breach or termination of, and indemnities arising from, this Agreement.
28.9 Government Duties
28.9.1 The Business Partner must promptly within the initial applicable period prescribed by law pay any duty payable in relation to the execution, performance and registration of this Agreement, or any agreement or Agreement executed or effected under this Agreement.
28.9.2 The Business Partner must indemnify the Supplier against any Harm incurred by the Supplier in relation to any duty specified in this provision, whether through default by the Business Partner under this provision or otherwise.
28.9.3 The parties will be liable in equal shares for any Harm that arises for the non-payment of any duty specified in this provision, whether through default under this provision or otherwise.
28.10 Force majeure
28.10.1 Neither party is liable to the other party for any loss incurred by that other party as a direct result of either party failing or being prevented, hindered or delayed in the performance of its liability under this Agreement by reason of a Force Majeure Event.
28.10.2 The party affected by a Force Majeure Event must as soon as practicable notify the other party in writing of any anticipated delay due to that Force Majeure Event and use all reasonable efforts to perform its liability under this Agreement.
28.10.3 Either party may terminate this Agreement immediately on providing written notice to the other, if the delay due to the Force Majeure Event continues for a period in excess of 60 days
28.10.4 Neither party is liable for any loss incurred by the other party resulting from any Force Majeure Even
28.10.5 Continuing performance
28.10.5.1 Except to the extent otherwise provided in this Agreement:
28.10.5.1.1 the provisions of this Agreement do not merge with any action performed or Agreement executed by any party for the purposes of performance of this Agreement;
28.10.5.1.2 any representation in this Agreement survives the execution of any Agreement for the purposes of, and continues after, the performance of this Agreement;
28.10.5.1.3 any indemnity agreed by any party under this Agreement:
28.10.5.1.4 constitutes a liability of that party separate and independent from any other liability of that party under this Agreement or any other agreement; and
28.10.5.1.5 survives and continues after the performance of this Agreement.
28.10.6 Additional rights- The rights of a party under this Agreement are additional to and do not derogate from any rights under general law.
Schedule 1 - Agreement Details
1 Territory – Worldwide
2 Commencement Date: {{created_date}}
3 Completion Date:
This agreement shall endure for a minimum period of 12 (twelve) calendar months and renew automatically subject to payment of Business Partner fees.
4 Notices
4.1 Supplier:
PO Box 327, Stanhope Gardens NSW 2768
Email: info@evolvepreneur.app
4.2 Business Partner - {{company_name}}
5 Monthly Member Fees:
- US$195 per month (BP)
- AU$295 per month (BP Pro)
5.1 Annual Member Fees are subject to price change.
6 Training & Other Fees
6.1.1 Business Partner Accreditation System - The Business Partner agrees that:
6.1.1.1 At least 1 person per company location completes the relevant Business Partner Accreditation courses,.
7 Demonstration Products for in-house Use
The Business Partner will have access to their own personal Enterprise Level Platform.
Schedule 2 - Terms and Conditions
1. Margins
1.1. The following Business Partner margins apply:
- 1-9 Current Recurring customers on Basic or Enterprise Levels = 25% Recurring margins apply.
- 10+ Current Recurring customers on Basic or Enterprise Levels = 40% Recurring margins apply.
1.2. RRP pricing may vary over time with changes in exchange rate and Vendor pricing.
2. Mode of payment
2.1. Credit Card Paypal, VISA or Direct Deposit.
2.2. Credit Card Fee of 2% for VISA and Mastercard applies.
2.3. Business Partner may offset any credit balance or Recurring Income Balance unpaid (as confirmed by the Supplier) against orders placed.
3. Special Conditions
No Special conditions apply
Schedule 3 - Promotion
1. Supplier Marketing and Sales
1.1. Potential customers who enquire directly to Evolvepreneur Pty Ltd will be sent an information pack and these leads will be passed to the nearest Business Partner. Where there are a number of Business Partners in an area of high population these leads will be allocated on a rotational basis.
1.2. Evolvepreneur Pty Ltd will provide sample advertising layouts, wording, images, logos etc. to assist Business Partners in presenting a professional image of their company and association with the Supplier thus minimizing the Business Partners design costs.
1.3. Evolvepreneur Pty Ltd will run a selective advertising and PR programme to target the market. This will be designed to raise brand awareness and promote the Business Partner channel.
1.4. Additional supplies of brochures, and printed promotional material will be made available at a nominal cost as per our price list.
2. Lead Allocation
2.1. Lead Referral: Sales enquiries will be passed to the most suitably qualified Business Partner in their area. Sales enquiries will be emailed by a ‘Prospect Referral Form’ to Business Partners and must be acknowledged and followed up within 24 hours.
2.2. Sales must be periodically notified (i.e. every two weeks) of the progress of each lead to ensure further prospect referrals.
Schedule 4 - Product Specifications
1. Products - Products available include:
- Evolvepreneur STARTER
- Evolvepreneur BASIC
- Evolvepreneur ENTERPRISE
Products may be added or removed with 30 days written (email or letter) notice to the Business Partner.
Schedule 5 - Sales Performance Targets
1. Annual Sales Targets - The following sales targets ex-gst apply to each level calculated from invoiced amount to the Business Partner in accordance with clause 13.5
- Evolvepreneur Business Partner - at least 1 recurring customer after one year of membership.