1. Definitions and Interpretation
1.1 The following words have these meanings in this agreement unless the contrary intention appears.
Business Day means a day on which trading banks are open for general banking business in New South Wales.
Client means a person or company which is or becomes a retail client of Anchor.
Control Panel means an internet web based interface which will allow the Member to submit information to Anchor, including referrals and to access reports provided by Anchor.
Date of Membership means the date that Anchor notifies the Member in writing that it has accepted the Member as a member of the Partner Program.
Dollar or $ means Australian Dollars.
GST means the Goods and Services Tax payable under the GST Act.
GST Act means the A New Tax System (Goods & Services Tax) Act 1999.
Member ID means the unique alpha/numerical identifier given by Anchor to the Member under clause 2.4.
Non-Referred Client means a Client who was not referred to Anchor by a member of the Partner Program.
Partner Program Member means a person or company which joins the Partner Program by signing a Partner Program Membership Agreement with Anchor.
Partner Program means the program under which Anchor seeks to increase the number of it clients by agreeing to pay to a Partner Program Member a commission for referring clients to Anchor.
Partner Program Membership Agreement means each written agreement which is signed between Anchor and each of its Partner Program Members.
Referred Client means a Client who was referred to Anchor by the Member.
Referred Client Revenue means all income received by Anchor from all of the Referred Clients referred to it by the Member.
1.2 In this agreement unless the contrary intention appears:
(a) a reference to a clause, schedule, annexure or appendix is a reference to a clause of or schedule, annexure or appendix to this agreement and references to this agreement include any recital, schedule, annexure or appendix;
(b) a reference to this agreement or another instrument includes any variation or replacement of either of them;
(c) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(d) the singular includes the plural and vice versa;
(e) the word person includes a firm, a body corporate, an unincorporated association or an authority;
(f) a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and assigns;
(g) an agreement, representation or warranty in favour of two or more persons is for the benefit of them jointly and severally;
(h) an agreement, representation or warranty on the part of two or more persons binds them jointly and severally;
(i) if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day; and
(j) a reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
(k) headings are inserted for convenience and do not affect the interpretation of this agreement.
2. Application to Become a Member
2.1 By completing all the details of the Member and completing the Questionnaire in the Schedule and signing this agreement and sending the signed agreement to Anchor, the Member is making an application to become a member of the Partner Program.
2.2 If Anchor decides to reject the application of the Member it may decline to sign the agreement sent to it under clause 2.1, and there will be no contractual agreement between Anchor and the person or company who applied to become a member.
2.3 If Anchor does sign and date the agreement sent to it under clause 2.1 then from the date of its signing the Member will become a Partner Program Member.
2.4 As soon as reasonably possible after accepting a member under clause 2.3 Anchor will allocate a Member ID to the Member and send to the Member their Member ID and a copy of this agreement signed by Anchor
3. Warranties and Obligations of the Member
3.1 The Member warrants to Anchor that:
(a) it is registered for GST; and
(b) that it will remain registered for GST.
3.2 The Member warrants to use all of its reasonable endeavours to refer individuals or companies to use the services of Anchor, however the Member:
(a) must not carry out any activities, marketing or otherwise, which may bring the Anchor name into disrepute; and
(b) must only use legal and reputable methods for promoting the Services of Anchor and referring clients to Anchor.
3.3 Once the Member has referred a client to Anchor who becomes a Referred Client then that Referred Client cannot later become a client of the Member under any form of arrangement such as a Reseller Program.
4. Relationships Between the Parties and the Referred Client
4.1 Nothing in this agreement shall create any partnership between Anchor and the Member.
4.2 The Member acknowledges that each Referred Client which the Member has referred to Anchor will be a retail client of Anchor and Anchor will:
(a) have the full responsibility for providing technical support and billing to the Referred Client; and
(b) market its entire range of services to the Referred Client.
4.3 The Member also acknowledges that it cannot place any orders with Anchor or give Anchor technical instructions on behalf of any Referred Client unless it provides to Anchor a written authority signed by the Referred Client authorising the Member to place orders with Anchor or give Anchor technical instructions on its behalf and stating that the Referred Client accepts Anchors Standard Terms and Conditions and its Acceptable Use Policy.
5. The Referral System
5.1 Anchor will provide on its web site a Control Panel for the Member to access.
5.2 The Member may register individuals or companies as people it is referring to use the services of Anchor.
5.3 Anchor will note in its reports to the Member if a referred person or company becomes a client of Anchor, thereby becoming a Referred Client of the Member.
5.4 Anchor will ensure that at all times the Member can obtain via the Control Panel, a report of all persons or companies which it has registered with Anchor as referrals and which of those have become Referred Clients of the Member.
6. Commission to the Member
6.1 Anchor will pay to the Member a commission calculated on invoices, net of GST, paid by Referred Clients which have been registered with Anchor by the Member using the Control Panel.
6.2 If a Referred Client registered to the Member later becomes a Partner Program Member then Anchor shall also pay the Member a commission on the income received by Anchor from that members registered Referred Clients, net of GST.
6.3 Tier 1 – 5% commission up to $5,000 per month (ex GST) combined spend trailing commissions will be paid for the life of the customer account you must refer a minimum of five new clients (for web/app hosting) in the previous 12 month period to remain on the program.
6.4 Tier 2 – 10% commission more than $5,000 per month (ex GST) combined spend trailing commissions will be paid for the life of the customer account you must refer a minimum of ten new clients (for web/app hosting) in the previous 12 month period to remain a Tier 2 partner.
7. Disputes and Conflicts
7.1 The Member shall not be entitled to any commission on any person or company which it registered as an existing client of Anchor prior to the registration of that referral.
7.2 If more than one Partner Program Member refers the same person or company to Anchor, and that person or company then becomes a retail client of Anchor, then the records of Anchor will be used to determine which Member first referred that person or company to Anchor; however Anchor shall have the right to contact the person or company to ask them which of the members did actually refer them to Anchor, and the decision of Anchor as to which member it registers the Referred Client shall be final.
7.3 Once a Referred Client is registered to a Partner Program Member then they cannot be transferred to a different member unless the Member they are registered to agrees; or unless Anchor makes a determination under clause 7.2.
8. Calculations and Payment of Commissions
8.1 The commission payable by Anchor to the Member under clause 6.1 is set out in the schedule (received when registered).
8.2 The commission payable by Anchor to the Member under clause 6.2 is set out in the schedule (received when registered).
8.3 Anchor shall calculate all commission due to the member within 10 business days of the end of each financial quarter and it shall include those calculations in its report to the Member via the Control Panel.
8.4 Anchor shall pay the commission to the Member within 15 business days of the end of each financial quarter.
8.5 Anchor will only pay commission to the Member by electronic funds transfer (EFT) and the Member must provide Anchor with details of a bank account into which its commission should be paid. The bank account must be with an Australian financial institution, Anchor will not pay commission into foreign bank accounts.
8.6 It is the responsibility of the Member to inform Anchor of any changes to the bank account provided under clause 8.5 and if payment is returned to Anchor due to closure of the nominated account or for any other reason, then Anchor may retain the Members commission until the Member provides Anchor with new bank account details.
8.7 If the Member has used the services of Anchor and they have any amount owed to Anchor at the time a commission is due to be paid to the Member, then Anchor reserves the right to pay or part pay the amount the Member owed to Anchor, before it pays the commission or the balance of it to the Member.
9. Term and Termination of Agreement
9.1 This agreement shall be for an initial term of 12 months, commencing from the Date of Membership unless it is terminated under any of the following sub-clauses.
9.2 Either party may terminate this agreement on giving 90 days written notice to the other.
9.3 If the Member is in breach of this agreement then Anchor may terminate this agreement after 14 days have expired from the date Anchor gives the Member written notice to rectify the breach and the breach has not be rectified in that time.
10. Payments of Commission after Termination
10.1 If this agreement is terminated by Anchor under clause 9.2 then Anchor will only be required to pay commission to the Member for the period up to the end of the then current financial quarter.
10.2 If this agreement is terminated by the Member under clause 9.2 or by Anchor under clause 9.3 then no commissions are payable to the Member after the date of termination.
11. Confidentiality, Privacy & Intellectual Property
11.1 Each party agrees to keep confidential any and all information it receives about the business of the other party, including all financial matters.
11.2 Each party shall ensure that each of them complies with the Privacy Act.
11.3 All intellectual property developed for use under this agreement, including all software and all webpage designs shall be owned by Anchor.
12.1 All revenue amounts received by Anchor referred to in this agreement shall be net/exclusive of the GST component.
12.2 All commission amounts payable by Anchor to the Member under this agreement shall be inclusive of GST.
13.1 A notice, approval, consent or other communication in connection with this agreement:
(a) must be in writing;
(b) must be left at the address of the addressee, or sent by prepaid ordinary post (airmail if posted to or from a place outside Australia) to the address of the addressee or sent by facsimile to the facsimile number of the addressee which is specified in this clause or if the addressee notifies another address or facsimile number then to that address or facsimile number.
The facsimile number of each party is:
Anchor Systems Pty Limited
Fax: (02) 8296 5199
Attention: Tom Haeusler
As set out in the Schedule (received upon registration).
13.2 Service of a notice may be made on the solicitor for a party.
13.3 A notice given or document signed or served on behalf of any party by that partys solicitor shall be deemed to have been given, signed or served by that party personally.
13.4 A notice, approval, consent or other communication takes effect from the time it is received unless a later time is specified in it.
13.5 A facsimile is taken to be received on production of a transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to the facsimile number of the recipient.
14.1 Anchor may assign its rights and obligations under this agreement.
14.2 The Member may not assign its rights or obligations under this agreement.
15.1 A party must not disclose the terms of this agreement or anything connected with or related to it or make press or other announcements or releases relating to this agreement and the transactions the subject of this agreement unless:
(a) the disclosure is to the financial or legal advisors of a party;
(b) the disclosure is required to be made by a court order, by law or by a stock exchange;
(c) the other party has agreed in writing to the form and manner of the announcement or release.
16.1 Exercise of Rights: A party may exercise a right, power or remedy at its discretion, and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party does not prevent a further exercise of that or of any other right, power or remedy. Failure by a party to exercise a delay in exercising a right, power or remedy does not prevent its exercise.
16.2 Waiver and Variation: A provision of or a right created under this agreement may not be:
(a) waived except in writing signed by the party granting the waiver; or
(b) varied except in writing signed by the parties.
16.3 Approvals and Consent: A party may give conditionally or unconditionally or withhold its approval or consent in its absolute discretion unless this agreement expressly provides otherwise.
16.4 Remedies Cumulative: The rights, powers and remedies provided in this agreement are cumulative with and not exclusive of the rights, powers and remedies provided by law independently of this agreement.
16.5 No Merger: Any liability for a breach of any warranty contained in this agreement does not merge on completion.
16.6 Survival of Indemnities: Each indemnity in this agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of this agreement.
16.7 Enforcement of Indemnities: It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity conferred by this agreement.
16.8 Further Assurances: Each party agrees, at its own expense, on the request of the other party, to do everything reasonably necessary to give effect to this agreement and the transactions contemplated by it (including the execution of documents) and to use all reasonable endeavours to cause relevant third parties to do likewise.
16.9 Entire Agreement: This agreement constitutes the entire agreement of the parties about its subject matter and any previous agreements, undertakings and negotiations on that subject matter cease to have any effect.
16.10 Severability: If the whole or any part of a provision of this agreement is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of this agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of this agreement or is contrary to public policy.
17. Governing Law, Jurisdiction and Service of Process
17.1 This agreement and the transactions contemplated by this agreement are governed by the law in force in New South Wales.
17.2 Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales and courts of appeal from them for determining any dispute concerning this agreement or the transactions contemplated by this agreement. Each party waives any right it has to object to an action being brought in those courts, to claim that the action has been brought in an inconvenient form, or to claim that those courts do not have jurisdiction.
17.3 Without preventing any other mode of service, any document in an action (including, but not limited to, any writ of summons or other originating process or any writ of summons or other originating process or any third or other party notice) may be served on any party by being delivered to or left for that party at its address for service of notices under this Agreement.