1 DEFINITIONS AND INTERPRETATION
Definitions
1.1 In this Agreement, unless the context otherwise requires, the words and expressions set out below have the following meanings:
“Associate” means:
(a) a director, partner in a partnership, officer, employee, contractor, consultant, adviser, agent or an associated entity (as defined under the Corporations Act 2001) of a party to this Agreement; or
(b) any other person claiming under a party to this Agreement;
“Fees” means the fees (including bonuses and promotional payments) payable to the Referrer in relation to the Successful Referrals in the amount determined by Carbiz and notified to the Referrer from time to time;
“Confidential Information” means any information provided by a party or any of its Associates to the other party or any of its Associates, or otherwise obtained by that party or any of its Associates, whether before or after the date of this Agreement, in connection with this Agreement or business of the first party, including information, documents, material, transactions, data, processes, specifications, reports, operations, records, financial information and the Intellectual Property;
“Event of Default” has the meaning given to that term in clause 6;
“GST” means the goods and services tax imposed by the GST Law, including, where relevant, any related interest, penalties, fines or other charges;
“GST Amount” means, in relation to a payment, an amount calculated by multiplying the payment (or the relevant part of a payment if only part of a payment is the consideration for a Taxable Supply) by the appropriate rate of GST prescribed under the GST Law from time to time (being 10% when the GST Law commenced) or any lower rate notified from time to time by the person making the relevant Taxable Supply;
“GST Law” has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999, or, if that Act is not valid or does not exist for any reason, means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia, and any regulation made under that Act;
“Intellectual Property” means all industrial and intellectual property of a party, whether registrable or not, including any trading, company and business names, trademarks, patents, designs, copyright, circuit layouts, logos, trade secrets, know-how, inventions, technology, the Confidential Information, any aspect of the Software and other proprietary rights;
“Liquidation” includes insolvency, liquidation, provisional liquidation, voluntary administration, receivership, compromise, arrangement, amalgamation, administration, reconstruction, winding up, dissolution, assignment for the benefit of creditors, arrangement or compromise with creditors, bankruptcy or death;
“Marketing Material” means marketing, promotional or any other information, documents or material about the services provided by Carbiz;
“Potential Client” means any person, being a not-at-fault party in a motor vehicle collision, who is at law entitled to hire a replacement vehicle at the cost of the at-fault party in a collision or its insurer;
“Software” means any software, website, application or portal of Carbiz or any of its Associates to which Carbiz gives the Referrer access for the purposes of this Agreement;
“Successful Referral” means a referral of a Potential Client to Carbiz, provided that:
(a) the referral of that person to Carbiz comes directly from the Referrer;
(b) the hire of a vehicle to that person is approved by Carbiz (other than under a ‘grace period’ as notified by Carbiz to the Referrer);
(c) the claim number of the at-fault party to the accident was received by Carbiz;
(d) liability for the relevant collision was accepted by the at-fault party or its insurer;
(e) that person enters into a rental agreement with Carbiz; and
(f) that person commences the hire of a vehicle from Carbiz;
“Taxable Supply” has the meaning given to that term by the GST Law;
Interpretation
1.2 In this Agreement, unless the contrary intention appears or can reasonably be implied from the context:
1.2.1 headings are inserted for convenience only and do not affect the interpretation of this Agreement;
1.2.2 a reference in this Agreement to a “business day” means a day, other than a Saturday, Sunday or a public holiday, on which banks are open for business generally in New South Wales;
1.2.3 if a day on which any act matter or thing is to be undertaken under this Agreement is not a business day, then that act matter or thing must be done on the next business day;
1.2.4 a reference in this Agreement to “dollars” or “$” means Australian dollars and all amounts payable under this Agreement are payable in Australian dollars;
1.2.5 a reference in this Agreement to any law, legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision;
1.2.6 a reference in this Agreement to any document or agreement is a reference to that document or agreement as amended, novated, supplemented or replaced;
1.2.7 a reference to a clause, part, schedule or attachment is a reference to a clause, part, schedule or attachment of, or to, this Agreement;
1.2.8 an expression importing a natural person includes any company, trust, partnership, joint venture, association, body corporate, governmental agency or any other entity;
1.2.9 where a word or phrase is given a defined meaning, another part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning;
1.2.10 a word which indicates the singular indicates the plural, a word which indicates the plural indicates the singular, and a reference to any gender also indicates the other genders;
1.2.11 a reference to the word “bank” means a body corporate authorised under Part II of the Banking Act 1959 (Cth) to carry on general banking business in Australia;
1.2.12 a reference to the word “include” or “including” is to be interpreted without limitation;
1.2.13 a reference to the word “will” includes “must”;
1.2.14 a reference to the word “notice” means “notice in writing”;
1.2.15 any schedules and attachments form part of this Agreement; and
1.2.16 a reference in this Agreement to a day, month or quarter means a calendar day, calendar month or calendar quarter.
2 REFERRER’S OBLIGATIONS
Obligations in connection with referrals
2.1 The Referrer will use its best endeavours to source and generate referral of the Potential Clients to Carbiz.
General obligations
2.2 The Referrer must, and must use its reasonable endeavours to ensure that its Associates do:
2.2.1 not make any representations or give any warranties to the Potential Clients, other than those contained in the documents provided by Carbiz from time to time;
2.2.2 not send to anyone any unsolicited correspondence or other information in connection with Carbiz without Carbiz’s prior written consent;
2.2.3 not use any Confidential Information or the Intellectual Property of Carbiz for marketing or other purposes without Carbiz’s prior written consent;
2.2.4 be at all times independent of Carbiz and not hold itself out to be Carbiz’s Associate or the person otherwise associated with Carbiz, other than in its capacity as the Referrer on the terms and conditions of this Agreement;
2.2.5 not give advice (including by providing information orally or in writing) to the Potential Clients that is in any way intended or likely to induce or influence their decision to acquire any products or services from Carbiz or enter into any contract with Carbiz; and
2.2.6 provide necessary disclosures to the Potential Clients regarding receiving the Fees under this Agreement as required under all applicable laws, and Carbiz relies on the Referrer to make such disclosures.
3 CARBIZ’S OBLIGATIONS
Information and documents
3.1 Carbiz will provide the Referrer with such information, documents and material, as well as access to portals, as it considers necessary for the purposes of the Referrer performing its obligations under this Agreement.
Fees
3.2 Carbiz will cause the Fees to be paid to the Referrer weekly in arrears.
3.3 The Referrer acknowledges that:
3.3.1 Carbiz may appoint an agent for processing payments of the Fees to the Referrer; and
3.3.2 payment of the Fees may be made by that agent on behalf of Carbiz.
4 CARBIZ’S RIGHTS
General rights
4.1 Carbiz has a right to send Marketing Material to the Referrer and the Potential Clients.
4.2 If and when a motor vehicle provided by Carbiz is not returned to Carbiz by the return date specified in the relevant rental agreement or as otherwise required by Carbiz (acting reasonably), Carbiz may:
4.2.1 report that vehicle as having been stolen to the police; and
4.2.2 without notice, enter into any premises where Carbiz suspects that such vehicle is located and remove it without committing a trespass.
5 GST
Payment of GST
5.1 The parties agree that:
5.1.1 all payments referred to in this Agreement have been set or determined without regard to the impact of GST;
5.1.2 if the whole or any part of a payment under this Agreement is the consideration for a Taxable Supply for which the payee is liable to GST, then the GST Amount in respect of that payment must be paid to the payee as an additional amount concurrently with the payment or as the parties may otherwise agree in writing.
Issue of tax invoices
5.2 The parties agree that:
5.2.1 Carbiz or its agent on behalf of Carbiz (as the case may be) will issue recipient-created tax invoices to the Referrer in respect of any taxable supplies made under this Agreement; and
5.2.2 the Referrer will not issue tax invoices to Carbiz.
GST registration
5.3 On or before the date of this Agreement, the Referrer must notify Carbiz in writing whether it is registered for GST.
5.4 The Referrer must notify Carbiz in writing of the change in its GST registration status promptly after such change takes place.
5.5 The Referrer acknowledges that Carbiz is registered for GST and it will notify the Referrer if it ceases to be registered for GST.
6 DEFAULT
Events of default
6.1 Each of the following events is an Event of Default by a party:
6.1.1 that party breaching any of its obligations under this Agreement (other than those referred to in clause 6.1.2) and failing to remedy such breach within 14 days after the other party’s notice setting out the details of the breach; or
6.1.2 the Liquidation of that party.
7 TERMINATION
Termination of Agreement
7.1 If a party commits an Event of Default, the other party may terminate this Agreement by notice to the party in default.
8 SOFTWARE
Software licence
8.1 Carbiz grants a non-exclusive licence to the Referrer to use the Software during the Term for the purposes of this Agreement.
Termination of Software licence
8.2 The Referrer’s licence will terminate immediately on termination of this Agreement.
Restriction on use of Software
8.3 Neither the Referrer nor any Associate of the Referrer may modify, copy, reproduce, disassemble, decompile, reverse assemble, reverse compile, reverse engineer or otherwise interfere with any part of the Software or allow anyone else to do any of these things.
9 INTELLECTUAL PROPERTY
No interest in Intellectual Property
9.1 A party has no proprietary right or interest in the Intellectual Property of the other party.
9.2 At any time during the Term or after termination of this Agreement, a party must not licence, sub-licence, use, deal with or take advantage of the Intellectual Property of the other party without the other party’s express written consent.
9.3 A party must not register or record, or attempt to register or record, anywhere in the world any Intellectual Property of the other party or anything that is derived from, or similar to, that Intellectual Property or assist any other party in doing so.
9.4 A party must not at any time create, sell or copy any information, documents, material or portal provided by the other party or any of its Associates that uses or takes advantages of the Intellectual Property of that party nor assist any other party in doing so.
Return of Intellectual Property
9.5 Immediately on request from a party, the other party must return or destroy all Intellectual Property in its possession or under its control.
9.6 After a request from a party, the other party must not use, retain, record, store, document or computerise any Intellectual Property.
10 CONFIDENTIALITY
Obligation of confidence
10.1 A party and its Associates must not use, copy, disclose, reproduce or make public the Confidential Information of the other party.
10.2 If a party becomes aware of a breach of this obligation, it will immediately notify the other party.
Further permitted use and disclosure
10.3 This Agreement does not prohibit the disclosure of the Confidential Information by a party to the extent that:
10.3.1 the other party has consented to the disclosure of the relevant Confidential Information;
10.3.2 the disclosure is specifically contemplated and permitted by this Agreement;
10.3.3 the disclosure of the Confidential Information is to an Associate of the first party which needs to know it for the purposes contemplated by this Agreement and the first party ensures that the relevant Associate complies with the terms of clause 10;
10.3.4 the disclosure is required by a court or the relevant governmental or administrative authority; and
10.3.5 the disclosure is required by any applicable law or regulation.
10.4 All obligations of confidence set out in this Agreement continue in full force and effect after the termination of this Agreement.
11 NOTICES
Form
11.1 Any notice given under this Agreement must be in writing.
Receipt
11.1.1 Notices will be deemed to have been given to the recipient if they are:
11.1.2 handed to the relevant recipient personally;
11.1.3 sent to the relevant recipient by pre-paid post to the address referred to in this Agreement or the last known address of the relevant recipient; or
11.1.4 emailed to the relevant recipient to the last known email address of the relevant recipient.
12 GENERAL
Governing law
12.1 This Agreement is governed by the laws of New South Wales, and the parties agree to submit to the non-exclusive jurisdiction of the New South Wales courts.
Entire agreement
12.2 This Agreement contains the entire understanding and agreement between the parties as to the subject matter of this Agreement.
12.3 All previous negotiations, understandings, representations or warranties (other than the warranties set out in this Agreement) are superseded by this Agreement and are of no force or effect and no party will be liable to any other party in respect of such matters.
12.4 No oral explanation or information provided by any party to another will affect the meaning or interpretation of this Agreement or constitute collateral agreement, warranty or understanding between the parties.
Non-merger
12.5 None of the terms or conditions of this Agreement, nor any act, matter or thing done in connection with this Agreement will operate as a merger of any of the rights and remedies of Carbiz under this Agreement or otherwise. All such rights and remedies of Carbiz will continue in full force and effect.
Assignments and other dealings
12.6 The Referrer must not, without Carbiz's prior written consent (which must not be unreasonably withheld):
12.6.1 assign or transfer this Agreement or any of its rights, interest and obligations under this Agreement; or
12.6.2 otherwise deal with its rights, interest and obligations under this Agreement.
12.7 Carbiz may at any time assign, transfer, charge or otherwise deal with any of its rights, interest and obligations under this Agreement, whether as a whole or in part.
12.8 This Agreement continues for the benefit of, and binds, each party and its successors in title, including a third party to whom a party's rights and obligations are assigned or transferred in accordance with this Agreement.
Severability and survival of covenants
12.9 If any term or provision of this Agreement is, or at any time becomes, prohibited by, or unlawful under, any applicable law, regulation or other condition actually applied or otherwise becomes void or unenforceable, it will be severed from this Agreement and rendered ineffective so far as is possible without modifying the remaining provisions of this Agreement. The remaining provisions will, to the extent permitted by the relevant law, regulation or other condition, continue in full force and effect.
Prohibition on oral amendments
12.10 Neither this Agreement nor any provision of this Agreement may be amended, modified, waived, discharged or terminated orally.