TECHNOLOGY PARTNER TERMS AND CONDITIONS OF USE
1.1 ezyCollect Pty Ltd (ACN 53 156 330 371) (ezyCollect) is the legal and beneficial owner of the Application and Products, and appoints the Technology Partner as a non-exclusive sales and support agent in the Territory and Market during the Term, and pursuant to the signed agreement with ezyCollect (the Agreement Details) and these terms and conditions (Terms and Conditions).
1. Definitions and Interpretation
In this Agreement (including the recitals) unless the context otherwise requires:
Agreement means the Agreement Details, these Terms and Conditions, the agreement (including the recitals and the Schedules), as amended or supplemented by the Parties in writing;
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth);
Consumer Guarantees means Part 3-2, Division 1 of the Australian Consumer Law;
Application means the Intellectual Property Rights developed and owned by ezyCollect as at the date of this Agreement and includes but is not limited to any and all improvements, developments, modifications, derivatives and variations of the Intellectual Property Rights from time to time and any and all associated Products;
Business Day means any day except a public holiday or a Saturday or Sunday in New South Wales;
Channel Manager means a channel manager appointed by ezyCollect from time to time to manage sales workflow with respect to the promotion of the Application;
Confidential Information means information of a confidential nature which ezyCollect gives to the Technology Partner or the Technology Partner gives to ezyCollect under this Agreement whether given verbally or in writing, personal or otherwise, and includes documents, plans, marketing strategies, trade secrets, technical information, know-how, the Intellectual Property, and any intellectual property or other information or materials advised to be of a confidential nature where such information is not already in the public domain;
Commission means the commission specified in the Agreement Details;
Commencement Date means the date on which both Parties execute this Agreement;
Costs means any cost, charge, expense, outgoing, payment or other expenditure of any nature and where appropriate includes fees and disbursements payable to contractors, consultants and lawyers and includes legal costs on a solicitor and own client or full indemnity basis (whichever is greater);
Client Data means data collected by the Technology Partner relating to clients of the Application including the name, address and any other information collected by the Technology Partner from time to time;
Close means a Referral to ezyCollect from the Technology Partner of a non-exisiting client that results in a Subscription Product sale via the signing of an agreement by ezyCollect and the Referral, and the Referral completes a payment to ezyCollect or has its bank account debited pursuant with direct debit agreement completed by the Referral.
Financial Year means the year commencing on 1 July and ending on the following 30 June;
Force Majeure means any act or cause beyond a party’s reasonable control including but not limited to earthquake, acts of government, industrial disputes, accident, fire, explosions, floods, interruptions in transport provided the other party has taken all proper precautions, due care and reasonable alternative measures with the object of avoiding the delay or failure to comply with the obligations under this Agreement;
GST means the goods and services tax as provided for by the GST Law. “GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended or replaced from time to time;
GST Law means the GST Act and any associated legislation including without limitation delegated legislation;
Intellectual Property means:
(a) the Application and its associated Products and Services;
(b) all Confidential Information and know-how which relates to the Business now existing or that may be subsequently designed, developed or owned by ezyCollect, whether in a tangible form or intangible form;
(c) the Image;
(d) all technical, marketing and other information supplied by ezyCollect to the Technology Partner;
(e) the Trade Marks;
(f) all Client Data collected by the Technology Partner in the course of promoting, selling, advertising and/or marketing the Application; and
(g) the Copyright in all of the above.
Image means the distinctive image, reputation and presentation of the Technology Partner using the Intellectual Property;
Licence means the grant of a licence of the Application;
Marketing Materials means the manuals, ezyCollect’s websites and landing pages and the content therein, handbooks, texts, documents, audio, video, PowerPoint, computer files, training activities provided, produced or supplied to the Technology Partner by ezyCollect, as amended by ezyCollect in its absolute discretion, which set out any part of the Intellectual Property or the Image;
Marketing Plan means the Marketing Plan agreed to in the Agreement.
Minimum Referral Requirement means the minimum referral requirement specified in the Agreement Details;
Misleading Representations means offences relating to unfair practices defined in Part 4-1, Division 1 of the Australian Consumer Law;
Monthly Subscription Price means the price ezyCollect requires for a Licence, Product or Service;
Products means any products sold by or made available for purchase from ezyCollect, including using the Intellectual Property of ezyCollect or any third party;
Personnel means a director, officer, employee, agent, contractor and/or servant;
Referral means a prospective client referred to ezyCollect from Technology Partner, that is a client of the Technology Partner in the sole discretion of the prospective client, and is not already associated with another channel partner;
Related Party means a person who is a director or related body corporate or a director of a related body corporate of ezyCollect;
Relevant Legislation means any Act, Regulation or by-law of the Commonwealth or of any state of Australia affecting or governing any aspect of the Technology Partner’s business;
Renewal Term means the period specified in the Agreement Details, subject to the Technology Partner complying with the terms and condition of this Agreement;
Services mean services sold by ezyCollect, including a License as specified by ezyCollect from time to time;
Subscription Product means a reoccurring subscription for any ezyCollect owned Product excluding any offerings listed in the Agreement Details and, as may be nominated from time to time by ezyCollect and the details of which will be provided to the Technology Partner;
Subscription Revenue means the total of all money, revenue, income and remuneration received by ezyCollect through the Technology Partner in the Territory and Market selling the use of the Subscription Products, but will be less
(a) set-up and installation fees;
(b) GST and any other taxes which are separately stated and which ezyCollect may be required to and does collect from clients for payment to any federal, state or local taxing authority levied upon the sale of goods or services;
(c) bona fide promotional items, price discounts, and allowances offered to the public; and
(d) commissions or rebates paid in regards to the Subscription Products by ezyCollect, and
excludes, commissions or rebates received by ezyCollect.
Schedule means a schedule to this Agreement;
Technology Partner means a channel partner appointed by ezyCollect from time to time in accordance with the terms and conditions of this Agreement.
Term means the period specified in the Agreement Details in accordance with this Agreement;
Territory and Market means the territory and market specified in the Agreement Details;
Trade Marks means the logo, trade names and other trade marks of which ezyCollect has the exclusive license rights and, if they are granted, any registered trademarks owned by ezyCollect, together with any other distinctive names, signs, designs, business marks, commercial symbols and colours of ezyCollect together with any variations or modifications of same;
1.2 In this Agreement unless the context otherwise requires:
(a) headings are for convenience only and do not affect its interpretation or construction;
(b) the singular includes the plural and vice versa;
(c) references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of or to this Agreement;
(d) words importing a gender include other genders;
(e) the word “person” means a natural person and any association, body or entity whether incorporated or not;
(f) where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;
(g) a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;
(h) “includes” is not a word of limitation;
(i) no rule of construction applies to the disadvantage of a Party because this Agreement is prepared by (or on behalf of) that Party;
(j) a reference to any thing is a reference to the whole and each part of it;
(k) a reference to a group of persons is a reference to all of them collectively and to each of them individually; and
(l) a reference to a document includes all amendments or supplements to, or replacements or novation of, that document.
2.1 As a Technology Partner, the Technology Partner is granted the right to promote the Application, Services, and Products in the Territory and Market during the Term of the Agreement.
2.2 The Agreement commences on the Commencement Date and terminates on the completion of the Term of (or the Renewal Term as the case may be) the Agreement. The Agreement may be terminated in accordance with these terms and conditions of the Agreement.
2.3 ezyCollect shall be solely responsible for setting prices and the Minimum Referral Requirements.
2.4 The Technology Partner acknowledges that it has no claim against ezyCollect for any commission, fee or other payment relating to the sale of the Application and Products except as expressly set out in the Agreement.
2.5 Minimum Referral Requirements
(a) The Technology Partner shall:
(1) use its best endeavours to satisfy the Minimum Referral Requirements set out in the Agreement Details or as amended by agreement in writing between the parties from time to time; and
(2) provide to ezyCollect any Product purchase projection reports reasonably requested by ezyCollect from time to time.
3 Technology Partner’s Obligations
3.1 The Technology Partner must:
(a) market and promote the Products and Services pursuant to the Marketing Plan;
(b) use its best efforts to assist ezyCollect in sale of the Application, products and Services in the Territory and Market, and maintain active ongoing after-sale contact with clients;
(c) ensure that all marketing and promotional activities are not in any way misleading or deceptive; in contravention of Australian Consumer Laws; or could be perceived as making Misleading Representations;
(d) comply with the Relevant Legislation in the Territory and Market and refrain from all acts, omissions and conduct which is, or is likely to be, an act of corruption such as bribery, extortion or embezzlement and includes, but is not limited to, directly or indirectly giving or offering anything of value to a government official or an employee of a commercial enterprise for the purpose of obtaining or retaining business, to win a business advantage, or to influence a decision;
(e) fully cooperate with ezyCollect in connection with, and participate in all of, ezyCollect’s market research programs;
(f) if the Technology Partner receives or ezyCollect aware of any complaint or criticism from a client, immediately notify and provide ezyCollect with complete details of the complaint or criticism and fully cooperate with ezyCollect in taking whatever steps ezyCollect considers necessary to resolve the complaint or address the criticism;
(g) use ezyCollect’s Marketing Material;
(h) not give any warranty or representation in relation to the Application, Services, or Products other than those which have been authorised in writing by ezyCollect;
(i) comply with ezyCollect’s policies and procedures which are implemented from time to time, including those defined in these terms and conditions and the Agreement.
(j) disclose to ezyCollect anything that has or will constitute a material breach of a Technology Partner’s Warranty or cause a Technology Partner’s Warranty to be untrue or inaccurate, as soon as practicable after the Technology Partner becomes aware of it during the Term.
4 ezyCollect’s Obligations
4.2 ezyCollect must pay the Technology Partner the Commission according to the timetable set out in the Agreement Details.
4.3 ezyCollect will:
(a) grant the Technology Partner non-exclusive rights to market the Application pursuant to these terms and conditions of the Agreement in the Territory and Market during the Term (or the Renewal Term as the case may be); and
(b) use reasonable endeavours to continue to develop new Intellectual Property;
4.4 ezyCollect must provide information, training and advice to the Technology Partner as ezyCollect reasonably considers appropriate to assist the Technology Partner to properly sell and promote the Application in the Territory and Market.
4.5 Without limiting ezyCollect’s obligations under this Clause 4, ezyCollect must:
(a) provide reasonable ongoing advice, assistance and support to the Technology Partner from time to time including reasonable technical and operational advice and assistance when requested; and
(b) provide the Marketing Materials to the Technology Partner in reasonable quantities at ezyCollect’s costs when reasonably requested by the Technology Partner.
4.6 ezyCollect willl promote, market, extend and develop the Intellectual Property with respect to the Application, Products and Services in such manner as ezyCollect, in its absolute discretion, considers fit.
4.7 ezyCollect will provide a quarterly report of all Subscription Revenue collected from Referrals.
4.8 ezyCollect shall comply with other procedures set out in the Agreement and these terms and conditions.
5 Use of the Trade marks and Intellectual Property
5.1 The Technology Partner must not use the Trade Marks, Intellectual Property, signs, advertising or use any other logos, marks, symbols, names, posters or colours of ezyCollect unless authorisation is provided to the respective party in writing by ezyCollect, or pursuant to brand guidelines published by ezyCollect.
5.2 The Technology Partner acknowledges that:
(a) under no circumstances will the Technology Partner acquire any interest in the Intellectual Property other than a right to promote the Application in the manner specified by ezyCollect. It is further acknowledged that the use or duplication of the Intellectual Property in any other business by the Technology Partner would constitute a breach of confidence and would be a fundamental breach of these terms and conditions, and the Agreement;
(b) ezyCollect is entitled to continue to use the Intellectual Property and that the Copyright in the Intellectual Property remains the property of ezyCollect;
(c) ezyCollect has exclusive ownership or the exclusive right to the use of the Trade Marks and the Intellectual Property. The Technology Partner must not directly or indirectly contest or aid in contesting the validity or ownership of the Trade Marks or the Intellectual Property or take any action which might affect or prejudice ezyCollect’s rights in any Trade Mark or Intellectual Property during and after the Term of the Agreement; and
(d) it must not be a party (directly or indirectly) to the doing of any act, matter, omission or thing which may endanger, jeopardise or prejudicially affect the goodwill of the Image, ezyCollect or the Intellectual Property.
6 Confidentiality and Non-Disclosure
6.1 All obligations of confidence set out in these terms and conditions continue in full force and effect during the Term and after the termination of the Agreement.
6.2 The Technology Partner must not disclose any Confidential Information to any third party without the prior consent of ezyCollect.
6.3 If the Technology Partner discloses any Confidential Information to a third party without prior consent of ezyCollect, the Technology Partner will notify ezyCollect as soon as practicable.
6.4 Notwithstanding Clause 6.3, if the Technology Partner discloses any Confidential Information to a third party without the prior written consent of ezyCollect, the Technology Partner is liable for any direct or indirect loss or damage (including indemnity legal costs) suffered by ezyCollect and/or any of its clients or users of the Application, as a consequence of the disclosure.
6.5 Each party must keep confidential the terms of the Agreement. If a party becomes aware of a breach of this obligation, that party will immediately notify the other party.
6.6 The Agreement prohibits the disclosure of Confidential Information by the Technology Partner with exception to the following circumstances:
(a) the disclosure is to a professional adviser to provide legal or accounting advice in relation to matters arising under or in connection with the Agreement and ezyCollect has consented to the disclosure of such information to the professional adviser;
(b) the disclosure is required by applicable law or regulation; or
(c) if the Confidential Information is already in the public domain at no fault of the Technology Partner.
6.7 For the purposes of this Clause 6, Confidential Information means any information that is:
(a) information, ideas forms, specifications, processes, statements, formulae, trade secrets, drawings and data (and copies and extracts made of or from that information and data) that is not in public domain and is considered confidential information, which includes but is not limited to, any content published, uploaded, modified or adapted by a user of the Application or ezyCollect; and
(b) confidential by nature, stipulated as confidential or any other information that would be reasonably considered to be confidential due to the value of the information.
7.1 Non-Solicitation of Personnel
7.1.1. During the course of the Agreement, the Technology Partner may have access to commercially sensitive information and material. The Technology Partner will not during or after the Agreement during the Restraint Period, either directly or indirectly, without written consent from ezyCollect:
(a) employ, canvas, solicit, entice or engage any of ezyCollect’s employees, servants, contractors, and/or agents (“Personnel”), to terminate their employment or engagement with ezyCollect; and
(b) employ, engage, retain or source any of ezyCollect’s Personnel for any services that are of a competitive nature to ezyCollect’s business.
7.1.2 For the purposes of this clause 7.1, the Restraint Period means 18 months, nonetheless:
(a) if the Courts determine that 18 months is unreasonable, the restraint will last for a period of 12 months; or
(b) if the Courts determine that 12 months is unreasonable, the restraint will last for a period of 9 months; or
(c) if the Courts determine that 9 months is unreasonable, the restraint will last for a period of 6 months.
7.1.3 The Technology Partner agrees that the restraints contained in this clause are reasonably necessary to protect ezyCollect’s business interests and the Technology Partner acknowledges that this clause is fair and reasonable under the circumstances.
7.2 Non-Solicitation of Clients
7.2.2 During the course of the Agreement, the Technology Partner will have contact with, and access to, clients, prospective clients, client records and details of ezyCollect’s marketing efforts, strategies and plans that includes commercially sensitive information and material. The Technology Partner will not during or after the Agreement, either directly or indirectly, without written consent from ezyCollect:
(a) canvas, solicit, entice or engage any of ezyCollect’s clients, or prospective clients who ezyCollect have or attempted to retain or in the process of engaging for any services which are of a competitive nature to ezyCollect’s business (the “Clients”); and
(b) directly or indirectly interfere with or engage, procure, endeavour to entice away, aid, abet or counsel any of the Clients for any services which are of a competitive nature to ezyCollect’s business.
7.2.3 For the purposes of this clause 7.2 the Restraint Period means 18 months, nonetheless:
(a) if the Courts determine that 18 months is unreasonable, the restraint will last for a period of 12 months; or
(b) if the Courts determine that 12 months is unreasonable, the restraint will last for a period of 9 months; or
(c) if the Courts determine that 9 months is unreasonable, the restraint will last for a period of 6 months.
7.2.4 The Technology Partner agrees that the restraints contained in this clause are reasonably necessary to protect ezyCollect business interests and the Technology Partner acknowledges that this clause is fair and reasonable under the circumstances.
7.3 Restrictions against Competition
7.3.1. The Technology Partner acknowledges and agrees that:
(a) ezyCollect has considerable and recognised goodwill in the Product and Services;
(b) ezyCollect is entitled to protect that goodwill for its own benefit by restricting the Technology Partner’s ability to damage that goodwill by competing with ezyCollect; and
(c) each of the restraints imposed upon the Technology Partner under this clause 7.3 is fair and reasonable and is no greater than is reasonably necessary to protect this goodwill.
7.3.2 The Technology Partner agrees with ezyCollect that neither the Technology Partner nor any of its agents, servants, contractors, employees, representatives, directors or officers (“Personnel”) will, during the Term or after the Term during the Restraint Period and within the Territory and Market, directly or indirectly engage or be concerned or interested in any Competing Business.
7.3.3 The covenants by the Technology Partner in clause 7.3.5 and 7.3.6 apply to any of them acting:
(a) either alone or in partnership or association with another person;
(b) as principal, representative, officer or employees
(c) Reseller, seller, or Technology Partner;
(d) as financier, member, shareholder or holder of any other security; or
(e) as a consultant or adviser to any person.
7.3.4 For the purposes of this clause, “Competing Business” means any business which is engaged in activities substantially identical or similar to ezyCollect or which is engaged in operating a business similar to ezyCollect or which provide services similar to the Services and/or the Products.
7.3.5 For the purposes of this clause 7.3 the Restraint Period means 36 months, nonetheless:
(a) If the Courts determine that 36 months is unreasonable, the restraint will last for a period of 30 months; or
(b) If the Courts determine that 30 months is unreasonable, the restraint will last for a period of 24 months; or
(c) If the Courts determine that 24 months is unreasonable, the restraint will last for a period of 18 months; or
(d) If the Courts determine that 18 months is unreasonable, the restraint will last for a period of 12 months; or
(e) If the Courts determine that 12 months is unreasonable, the restraint will last for a period of 6 months; or
(f) If the Courts determine that 6 months is unreasonable, the restraint will last for a period of 3 months.
8 Enforcement of Rights
8.1 The failure by any party to enforce any terms, provisions of the Agreement, any of the rights of that party, or to exercise any election provided in the Agreement will in no way be considered to be a waiver of such provisions, rights or elections or in any way affect the validity of the Agreement.
8.2 The exercise by a party of any of its rights or any of its elections under these terms and conditions and the Agreement will not preclude that party from exercising the same or any other right it may have under these terms and conditions and the Agreement, regardless of any previous action or proceedings taken by that party.
9 Warranties, Relationship and Insurance Liabilities
9.1 Technology Partner’s Acknowledgment
The Technology Partner warrants that each of the Technology Partner’s Warranties set out below are true and accurate at the date of the Agreement:
(a) The Technology Partner warrants that it must conduct its business as an independent proprietor to ezyCollect;
(b) The Technology Partner warrants that under no circumstances is there, or will there be, a relationship of partnership, agency or employment which exists or is intended or is to be implied between the parties to the Agreement;
(c) The Technology Partner warrants that it agrees to indemnify and keep indemnified ezyCollect and its related bodies corporate against any claim whatsoever and howsoever arising out of or in relation to the law or any determination including a claim for wages, salary, bonuses, leave, accrued leave, allowances, superannuation payments, expenses, loadings and any loss, damage or liability arising thereof out of or in relation to a claim thereof alleging breach of contract, breach of equitable duty, breach of statutory duty, negligence or unfair contract in relation to a director, employee, agent, servant or subcontractor employed, engaged or contracted by the Technology Partner;
(d) The Technology Partner warrants that it has, or will have, within seven (7) days from the date of the Agreement:
(1) public liability insurance to the value of Ten Million Dollars ($10,000,000.00) for any one claim;
(2) all insurances that may be required under the relevant workers’ compensation law in relation to the persons involved in performing the Technology Partner’s obligations set out in the Agreement; and
(3) will provide ezyCollect, when requested, a certificate of currency referenced in Clause 9.1(d)(i) within seven (7) days of request.
10.1 The Agreement will automatically renew for the Renewal Term unless written notice is provided by either Party at least 30 days before the end of the Term or Renewal Term, as the case may be.
10.2 For the avoidance of doubt, if:
Term = 1 year
Renewal Term = 1 year
Number of Renewals = Unlimited, then
The total duration of the Agreement, if all of the Renewal options are exercised, is unlimited years, being the initial Term of 1 year, a further 1 year (being the Renewal Term) by way of exercising the first Renewal options and further exercising unlimited Renewal options.
11 Goods and Services Tax
11.1 Any consideration specified as payable by one party (the “payer”) to the other party (the “payee”) under the Agreement is expressed as a GST exclusive amount.
11.2 In addition to any consideration payable by the payer to the payee under the Agreement, the payer must pay to the payee a sum equivalent to the GST payable, if any, by the payee in respect of that consideration, at the same time and in the same manner as the consideration is payable.
11.3 The payee’s right to payment under this clause is subject to a tax invoice being delivered to the payer.
12.1 The Technology Partner indemnifies ezyCollect in respect of any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment suffered or incurred by ezyCollect or its Personnel (including, but not limited to, economic loss and all Costs and disbursements on a full indemnity basis) caused by the Technology Partner for wilful, illegal or negligent act or omission or any breach of the Australian Consumer Laws and the Misleading Representations.
12.2 ezyCollect indemnifies the Technology Partner in respect of any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment suffered or incurred by the Technology Partner or its Personnel (including, but not limited to, economic loss and all Costs and disbursements on a full indemnity basis) caused by ezyCollect for wilful, illegal or negligent act or omission or any breach of the Australian Consumer Laws and the Misleading Representations.
13 Limitation of Liability
13.1 The Technology Partner acknowledges that the Application is inherently complex and may not be completely free of errors.
13.2 The Technology Partner expressly understands and agrees that ezyCollect and its Personnel shall not be liable to the Technology Partner for any direct, indirect, incidental, special, consequential, tort, or economic damages whatsoever (including, without limitation damages for loss of business, profits (whether incurred directly or indirectly), savings, goodwill, business interruption, loss of business information, or any other pecuniary loss or exemplary damages) which may be incurred by the Technology Partner arising out of the use of, or inability to use, the Application (whether or not due to any defects therein), however caused and under any theory of liability. For the avoidance of any doubt, according to the terms and conditions of the Agreement, ezyCollect limits its liability to the furthest extent permissible at law. Where legal liability cannot be excluded due to the applicable law, ezyCollect’s liability and that of its Personnel are limited in accordance with this clause 13.
13.3 If for whatever reason ezyCollect or its Personnel are liable to the Technology Partner or its Personnel, the total liability of ezyCollect and its Personnel to the Technology Partner or its Personnel for damage, loss or reliance shall be limited to the total amount paid by ezyCollect to the Technology Partner during the current Term of the Agreement.
14 General Disclaimer
14.1 Everything provided to the Technology Partner by ezyCollect is “as is” and “as available” without warranty or condition of any kind, subject to any liability which cannot be excluded by law. None of ezyCollect’s Personnel or ezyCollect make any express or implied representation or warranty about, or shall be liable, in contract, tort (including negligence) or otherwise for any direct, indirect, special or consequential loss, damages or reliance in connection with the Application and all other associated products or services provided by ezyCollect. This includes (but is not restricted to) loss or damage the Technology Partner might suffer as a result of any of the following:
14.2 failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or any other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records; or
14.3 the accuracy, suitability or currency of any information provided in connection with the Application.
14.4 The Technology Partner acknowledges that the Application is a new product and/or service in the marketplace without any proven sales revenues or otherwise. ezyCollect makes no warranty or representation with respect to future projections, forecasts, sales, or revenues that the Technology Partner may obtain by entering into this Agreement and the Technology Partner understands that the transactions contemplated by these terms and conditions and the Agreement contain an unknown degree of risk. The Technology Partner warrants that it has conducted its own due diligence regarding the Application, which includes but is not limited to, obtaining independent legal advice, business advice and/or accounting advice as it sees fit
15 Termination by ezyCollect
15.1 ezyCollect may terminate the Agreement by giving seven (7) days’ notice in writing to the Technology Partner if:
(a) the Technology Partner, being a natural person, becomes bankrupt, has committed an act of bankruptcy or a receiver or manager has been appointed in respect of any of his or her assets or affairs or makes any arrangement or assignment with or for the benefit of creditors;
(b) the Technology Partner, being a corporation, goes into liquidation or voluntary administration or is wound up otherwise than for the purpose of reconstruction or any meeting is called with a view to considering the appointment of a liquidator or voluntary administrator;
(c) a receiver or a receiver and manager is appointed over any of the Technology Partner’s property;
(d) the Technology Partner, in ezyCollect’s reasonable opinion, is fraudulent in connection with the operation of the Agreement;
(e) the Technology Partner agrees to termination of this Agreement; or
(f) the Technology Partner has not achieved the Minimum Referral Requirement pursuant to the Agreement Details.
15.2 ezyCollect may immediately terminate this Agreement if:
(a) the Technology Partner breaches any of its obligations under the Agreement; and
(b) ezyCollect gives the Technology Partner written notice of the breach together with 30 days’ notice of its intention to terminate this Agreement unless the Technology Partner takes the action specified in the notice to remedy the breach (if possible); and
(c) on the expiration of thirty (30) days from giving such notice, the Technology Partner has failed to remedy the breach.
15.3 Subject to clause 15.2, ezyCollect may terminate the Agreement by giving to the Technology Partner thirty (30) days’ written notice of the proposed termination, and reasons for it, if:
(a) there is any purported or deemed assignment, transfer or novation of the Agreement otherwise than in accordance with the Agreement; or
(b) the Technology Partner being a partnership, such partnership is terminated or dissolved or if one of the partners commits an act of bankruptcy (if an individual) or goes into liquidation or voluntary administration (if a company).
16 Termination by Technology Partner
16.1 If the Technology Partner is in substantial compliance with the Agreement, and ezyCollect breaches a material clause of these terms and conditions or the Agreement and has failed to remedy the breach within fourteen (14) days of the receipt of the notice in writing from the Technology Partner requiring it to do so, the Technology Partner may terminate the Agreement effective thirty (30) days after delivery to ezyCollect of a written notice of termination.
16.2 Any purported termination of the Agreement by the Technology Partner other than in accordance with this clause is deemed to be a termination without proper cause and a breach of the Agreement by the Technology Partner.
16.3 The termination of the Agreement by the Technology Partner under this clause does not affect:
(a) any rights and obligations conferred or imposed by the Agreement in respect of any period after termination; and
(b) the rights of either party against the other in respect of any breach of this Agreement occurring before the date of termination.
17 Consequences of Termination or Expiry of Term
17.1 Upon the termination of the Agreement for any reason, the Technology Partner must immediately:
(a) cease marketing and selling the Application to clients and prospective clients;
(b) cease to operating under the Agreement;
(c) cease hold itself as having a relationship with ezyCollect;
(d) pay to ezyCollect all amounts payable under the Agreement;
(e) deliver to ezyCollect all Client Data; and
(f) cease to use by tangible or intangible means or methods by advertising or otherwise, directly or indirectly, all Client Data, all Trade Marks and all other Intellectual Property.
17.2 By terminating the Agreement, the Technology Partner must not impair or do anything calculated or likely to impair or damage ezyCollect’s goodwill or reputation or Intellectual Property. The Technology Partner consents to any injunction being granted against the Technology Partner to enable ezyCollect to enforce and obtain the full benefit of this clause 17. It is declared and agreed that each of the restraints and restrictions provided in this clause and the Agreement generally operate as a separate and independent obligation on the Technology Partner and will not be affected by any one or more of the other restraints or restrictions contained in this Agreement.
17.3 The Technology Partner must not after the end of the Agreement purport to be a representative or agent of ezyCollect or to be otherwise associated with ezyCollect.
17.4 ezyCollect will not have a duty pay to the Technology Partner any Commission set out in the Agreement Details where:
(a) ezyCollect terminates pursuant to Clause 15; or
(b) the Technology Partner terminates other than pursuant to Clause 16.
17.5 If the Agreement is terminated for any other reason not particularised in Clause 17.4 of these terms and conditions, then ezyCollect must only pay the Commission accrued up to the date of the termination of the Agreement. For the avoidance of doubt, ezyCollect will have no continuing obligation to pay the Technology Partner any Commission which may have otherwise continued to accrue past the date of the termination of the Agreement.
18 Dispute Resolution & Mediation
18.1 If a dispute arises out of or relates to the Agreement, either party may not commence any legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
18.2 A party to the Agreement claiming a dispute (the “Dispute”) has arisen under the Agreement, must give written notice to the other party detailing the nature of the Dispute, the desired outcome and the action required to settle the Dispute (the “Notice”).
18.3 On receipt of the Notice by the other party, the parties to this Contract (the “Parties”) must within seven (7) days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.
18.4 If for any reason whatsoever, twenty-one (21) days after the date of the Notice, the Dispute has not been resolved the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Law Institute of New South Wales or his or her nominee and attend a mediation.
18.5 It is agreed that mediation will be held in Sydney, New South Wales, Australia.
18.6 The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing, undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.
18.7 All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the fullest extent possible, must be treated as “without prejudice” negotiations.
18.8 If thirty (30) days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either party may ask the mediator to terminate the mediation and the mediator must do so.
18.9 In the event that the Dispute is not resolved at the conclusion of the mediation, either party may institute legal proceedings concerning the subject matter of the Dispute thereafter.
18.10 Any information or documents disclosed by a Party under this clause:
(a) must be kept confidential; and
(b) may not be used except to attempt to resolve the Dispute.
18.11 Each Party must bear its own costs of complying with this clause and the Parties must bear equally the costs of any mediator engaged.
19 Force Majeure & Uncontrollable Actions
19.1 Nothing in these terms and conditions or the Agreement shall constitute an express or implied warranty by ezyCollect that the Application will be uninterrupted or error free as the Application may be attacked by external intruders, corruption, errors or damaging actions by third parties. Furthermore, ezyCollect and its Personnel are not liable for any failure, delay, interruption, corruption, errors or faults which are a consequence of any Force Majeure, or the inability of ezyCollect’s normal suppliers to supply necessary materials or services, interruption or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or hardware or inability to obtain energy which is needed for the provision of the any services or products or any other matter beyond ezyCollect’s control.
19.2 The Technology Partner is not liable for any failure, delay, interruption, corruption, errors or faults which are a consequence of any Force Majeure, interruption or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or hardware or inability to obtain energy which is needed for the provision of the any services or products or any other matter beyond the Technology Partner’s control.
20 Governing Law, Jurisdiction and Venue
20.1 The Agreement is governed by the laws of New South Wales. The parties submit to the exclusive jurisdiction of its courts and the Federal Court of Australia. The parties will not object to the exercise of jurisdiction by those courts, unless the parties’ have not complied with clause 18. The parties agree the venue for any dispute is Sydney, New South Wales.
21.1 All duty on or in respect of the Agreement or in respect of any instrument or transaction contemplated by the Agreement must be paid by the Technology Partner.
22.1 Subject to clause 22.2, any notice (which includes, without limitation, a demand, request, consent, approval and any other communication made, required or authorised under these terms and conditions or the Agreement must be:
(a) in writing;
(b) directed to the recipient’s email address specified in the Agreement Details, as varied by any notice; and
(c) hand delivered or sent by prepaid post to that address.
22.2 A notice given in accordance with clause 22.1 is taken to be received by the recipient:
(a) if hand delivered, on delivery;
(b) if sent by prepaid post, within Australia to an Australian address, five (5) Business Days after the date of posting;
(c) if sent by email correspondence, when the email correspondence is sent by the sender and does not receive a transmission failure notice within one Business Day after that transmission.
22.3 In all cases, a notice received after 5.00pm in the place of receipt or on a day that is not a Business Day is taken to be received by the recipient at 9.00am on the next Business Day.
22.4 A notice given under this Agreement is sufficiently signed if:
(a) it is signed by a director, secretary or other officer of, or a legal practitioner acting for, ezyCollect; or
(b) in the case of an individual, it is signed by the individual.
22.5 The provisions of this Clause 22 are in addition to any other mode of service permitted by law.
23.1 A failure of a party at any time to require performance of any obligation under these terms and conditions or the Agreement is not a waiver of that party’s right:
(a) to claim damages for breach of that obligation; or
(b) at any time to require performance of that or any other obligation under this Agreement, unless written notice to that effect is given.
23.2 Waiver of any provision of or right under these terms and conditions or the Agreement:
(a) must be in writing, signed by the party entitled to the benefit of that provision or right; and
(b) is effective only to the extent set out in the written waiver.
24.1 The parties agree that a construction of these terms and conditions and/ or the Agreement that results in all provisions being enforceable is to be preferred to any other construction.
24.2 If, despite the application of Clause 24.1, a provision of these terms and conditions is illegal or unenforceable:
(a) where possible, the provision is amended by omitting a word or words which make the provision illegal or unenforceable; and
(b) in any other case, the whole provision is omitted, and the remainder of the terms and conditions continue in force.
25.1 These terms and conditions and the Agreement:
(a) constitutes the whole agreement between the parties; and
(b) supersedes all prior representations, warranties, arrangements, understandings and agreements between the parties, relating to the subject matter of these terms and conditions and the Agreement.
25.2 The Technology Partner must not assign any right under the Agreement without the prior written consent of ezyCollect, for which ezyCollect will not unreasonably withhold the said consent.
25.3 ezyCollect may assign any right under the Agreement without prior consent from the Technology Partner.
25.4 The Agreement may be executed in any number of counterparts and all the counterparts together constitute one and the same instrument.
25.5 The Agreement may only be altered in writing signed by the parties.
25.6 Each party must, without further consideration, sign, execute and deliver any document and perform any other act that is necessary or desirable to give full effect to the Agreement.
25.7 No rule or contract interpretation must be applied in the interpretation of these terms and conditions to the disadvantage of one party on the basis that it prepared or put forward these terms and conditions or any document comprising part of the Agreement.