BACKGROUND
A Keep You Driving provides the Services.
B The Referrer has agreed to refer the Potential Clients to Keep You Driving and Keep You Driving has agreed to provide the Services to the Potential Clients referred by the Referrer on the terms and conditions set out in this Agreement.
OPERATIVE PROVISIONS
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 payable by Keep You Driving to the Referrer for referral of Potential Clients, which are determined and payable in accordance with Schedule 1 or any updated schedule that Keep You Driving and Referrer may agree to from time to time;
“Confidential Information” means any information provided by Keep You Driving or any of its Associates to the Referrer or any of its Associates, or otherwise obtained by the Referrer or any of its Associates, whether before or after the date of this Agreement, in connection with this Agreement or Keep You Driving, 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 7;
“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 Keep You Driving, 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;
“Potential Client” means a panel beater, tow truck, motor dealer, insurer and other business that Keep You Driving considers to be its potential client;
“Prescribed Offence” means an offence which may reflect on the honesty, trustworthiness or integrity of the person charged with the offence, including a criminal offence, fraud, dishonesty, misleading or deception conduct or misrepresentation;
“Restraint Area” means the whole of Australia;
“Restraint Period” means the period commencing on the date of this Agreement and expiring on the date which is 1 year after termination of this Agreement;
“Services” means provision of hire motor vehicles, motor vehicle accident management services and other services provided by Keep You Driving;
“Software” means any software, website, application or the like of Keep You Driving or any of its Associates;
“Tax Invoice” has the meaning given to that term by the GST Law;
“Taxable Supply” has the meaning given to that term by the GST Law;
"Term" means the period commencing on the date of this Agreement and continuing until this Agreement is terminated in accordance with clause 8;
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 or governmental agency;
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 any schedules and attachments form part of this Agreement; and
1.2.14 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 must use its best endeavours to source and generate referral of the Potential Clients to Keep You Driving.
General obligations
2.2 The Referrer must:
2.2.1 not make any representations or give any warranties to the Potential Clients, other than those contained in the documents provided by Keep You Driving from time to time;
2.2.2 not alter any property, information, documents or material of Keep You Driving in any way;
2.2.3 not send to anyone any unsolicited correspondence or other information in connection with Keep You Driving without Keep You Driving’s prior written consent;
2.2.4 not use any Confidential Information or the Intellectual Property of Keep You Driving for marketing or other purposes without Keep You Driving’s prior written consent;
2.2.5 comply with all procedures, policies, practices, codes, requirements and directions that are imposed by law and Keep You Driving as notified by Keep You Driving from time to time and on request provide Keep You Driving with evidence of such compliance;
2.2.6 perform its obligations under this Agreement with due diligence and integrity and in an honest, ethical, proper and professional manner;
2.2.7 be at all times independent of Keep You Driving and not hold itself out to be Keep You Driving’s Associate or the person otherwise associated with Keep You Driving, other than in its capacity as the Referrer on the terms and conditions of this Agreement;
2.2.8 not do anything which could give rise to a claim, demand, proceeding or suit against Keep You Driving by any person for any loss, damages, cost, expense or liability, including by:
(a) binding Keep You Driving to any agreement or arrangement without its prior written consent;
(b) committing or being involved in a Prescribed Offence;
(c) making fraudulent, misleading, deceptive or false statements; or
(d) acting unconscionably or unfairly;
Obligations regarding Associates
2.3 The Referrer is liable and responsible for the conduct of its Associates.
2.4 The Referrer must:
2.4.1 ensure that its Associates comply with all of its obligations under this Agreement;
2.4.2 ensure that its Associates are adequately and properly managed, trained, directed and controlled;
2.4.3 not permit a referral to be provided, or anything else to be undertaken under this Agreement, by any of its Associates if the Referrer is aware or reasonably suspects that the relevant Associate has committed or been involved in a Prescribed Offence;
2.4.4 immediately notify Keep You Driving if it becomes aware or reasonably suspects that any of its Associates has committed or is involved in a Prescribed Offence and must immediately terminate or suspend that Associate’s involvement in any matter in connection with this Agreement; and
2.4.5 immediately notify Keep You Driving if it becomes aware or reasonably suspects that any of its Associates has breaches any of the terms and conditions of this Agreement.
3. Keep You Driving’S OBLIGATIONS
Obligations in connection with Services
3.1 Keep You Driving must provide the Referrer with such information, documents and material as it considers necessary for the purposes of the Referrer performing its obligations under this Agreement.
Fees
3.2 In relation to any Potential Clients introduced by the Referrer to Keep You Driving, Keep You Driving must pay the Fees to the Referrer in accordance with the terms and conditions of this Agreement. To be eligible to receive the Fees, referrals to Keep You Driving from any particular client must come through the Referrer.
4. Keep You Driving’S RIGHTS
General rights
4.1 Notwithstanding any other term or provision of this Agreement, at any time during the Term Keep You Driving has an irrevocable right to:
4.1.1 send Marketing Material to Potential Clients with the Referrer’s prior written consent; and
4.1.2 send Marketing Material to the Referrer.
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 Keep You Driving or its Associate on behalf of Keep You Driving (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.
GST registration
5.3 On or before the date of this Agreement the Referrer must notify Keep You Driving in writing whether it is registered for GST or not.
5.4 The Referrer must notify Keep You Driving in writing of the change in its GST registration status promptly after such change takes place.
5.5 The Referrer acknowledges that Keep You Driving is registered for GST and it will notify the Referrer if it ceases to be registered for GST.
5.6 Keep You Driving and its Associates must not issue a document that would otherwise be a recipient created Tax Invoice on or after the date on which Keep You Driving or the Referrer fails to comply with any of the requirements of the GSTR 2000/10 or any replacement ruling issued by the Australian Taxation Office.
6. WARRANTIES AND INDEMNITIES
Referrer’s warranties
6.1 The Referrer represents and warrants that:
6.1.1 it has the power and authority to enter into, and perform its obligations under, this Agreement; and
6.1.2 all information, documents and material provided by the Referrer and its Associates are true, correct, complete and up to date, and the Referrer acknowledges that Keep You Driving has relied on this information, documents and material in its decision to enter into this Agreement and provide, or continue to provide, the Services to the Referrer.
7. DEFAULT
Events of default
7.1 Each of the following events is an Event of Default by the Referrer:
7.1.1 the Referrer breaches any of its obligations under this Agreement (other than those referred to in clause 7.1.2) and fails to remedy such breach to Keep You Driving’s satisfaction within 14 days after Keep You Driving’s notice in writing setting out the details of the breach; and
7.1.2 the Referrer undertakes any act or omission which, in the opinion of Keep You Driving, is materially prejudicial to the interest of Keep You Driving or any Credit Provider, including:
(a) if the Referrer or any of its Associates commits or is involved in a Prescribed Offence;
(b) if the Referrer or any of its Associates contravenes any laws, regulations, industry practices or rules of professional conduct in relation to the operation of its business; and
(c) the Liquidation of the Referrer.
8. TERMINATION
Termination of Agreement
8.1 This Agreement will terminate on the earlier of the following:
8.1.1 either party giving the other party 90 days’ written notice; and
8.1.2 the occurrence of an Event of Default.
Consequences of termination
8.2 In the event of the termination of this Agreement, the Referrer:
8.2.1 will not be entitled to receive any Fees after 12 months from the date of the termination;
8.2.2 must return to Keep You Driving all information, documents and material (including all training manuals, publications, brochures, books, Software, data, pamphlets, catalogues or advertising material) in the Referrer’s possession or under its control, which are in any way related to this Agreement or Keep You Driving; and
8.2.3 will have no further rights or powers under this Agreement.
9. SOFTWARE
Software licence
9.1 The Keep You Driving grants a non-exclusive licence to the Referrer to use the Software during the Term.
Termination of Software licence
9.2 The Referrer’s licence will terminate immediately on termination of this Agreement.
Restriction on use of Software
9.3 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.
10. INTELLECTUAL PROPERTY
No interest in Intellectual Property
10.1 The Referrer has no proprietary right or interest in the Intellectual Property.
10.2 At any time during the Term or after termination of this Agreement the Referrer must not licence, sub-licence, use, deal with or take advantage of the Intellectual Property without Keep You Driving’s express written consent.
10.3 The Referrer must not register or record, or attempt to register or record, anywhere in the world any Intellectual Property or anything that is derived from, or similar to, the Intellectual Property or assist any other party to do.
10.4 The Referrer must not at any time create, sell or copy any information, documents, material or Products provided by Keep You Driving or any of its Associates that uses or takes advantages of the Intellectual Property nor assist any other party to do so.
10.5 Any improvement to, modification of, or derivation from, the information comprised in the Intellectual Property, whether attributable in whole or part to the Referrer, will become and remain the property of Keep You Driving.
Return of Intellectual Property
10.6 Immediately on request from Keep You Driving, the Referrer party must return or destroy all Intellectual Property in its possession or under its control.
10.7 After a request from Keep You Driving, the Referrer must not use, retain, record, store, document or computerise any Intellectual Property.
11. CONFIDENTIALITY
Obligation of confidence
11.1 The Referrer and its Associates must not use, copy, disclose, reproduce or make public the Confidential Information.
11.2 If the Referrer becomes aware of a breach of this obligation, it will immediately notify Keep You Driving.
Further permitted use and disclosure
11.3 This Agreement does not prohibit the disclosure of the Confidential Information by the Referrer to the extent that:
11.3.1 Keep You Driving has consented to the disclosure of the relevant Confidential Information;
11.3.2 the disclosure is specifically contemplated and permitted by this Agreement;
11.3.3 the disclosure of the Confidential Information is to an Associate of the Referrer which needs to know it for the purposes contemplated by this Agreement and the Referrer ensures that the relevant Associate complies with the terms of clause 11;
11.3.4 the disclosure is required by a court or the relevant governmental or administrative authority; and
11.3.5 the disclosure is required by any applicable law or regulation.
Obligations to continue after termination of Agreement
11.4 All obligations of confidence set out in this Agreement continue in full force and effect after the termination of this Agreement.
12. PROTECTIVE COVENANTS
12.1 In consideration of Keep You Driving entering into this Agreement, the Referrer covenants with Keep You Driving that neither the Referrer nor any of its Associates will do any of the following during the Restraint Period anywhere in the Restraint Area:
12.1.1 solicit, canvass, approach or accept any custom from any Potential Clients or any other client of Keep You Driving or any of its Associates with a view to offering or providing any services to that person or entity similar to those offered by Keep You Driving or any of its Associates;
12.1.2 send any unsolicited correspondence or information to any Potential Client or any other client of Keep You Driving or any of its Associates on behalf of Keep You Driving or any of its Associates;
12.1.3 induce or assist in the inducement of any Potential Client or any other client of Keep You Driving or any of its Associates to end their agreement or arrangement with Keep You Driving or any of its Associates; or
12.1.4 interfere with the relationships between Keep You Driving or any of its Associates with any Potential Clients or any other client of Keep You Driving or any of its Associates.
Independence of covenants
12.2 Each of the covenants imposed by clause 12.1 is a separate and independent obligation from other obligations.
Acknowledgments
12.3 The Referrer acknowledges and agrees, in its own right and on behalf of any of its Associates, that:
12.3.1 all of the covenants contained in clause 12.1 are reasonable in the circumstances and are necessary for the protection of the interests of Keep You Driving and its Associates;
12.3.2 damages are not an adequate remedy if the Referrer or any if its Associates breaches clause 12.1;
12.3.3 Keep You Driving may apply for injunctive relief if:
(a) if the Referrer or any of its Associates breaches or threatens to breach clause 12.1; or
(b) it believes that the Referrer or any of its Associates is likely to breach clause 12.1.
13. DISPUTE RESOLUTION
Confidential information
13.1 Unless a party has complied with clause 13, that party may not commence litigation or arbitration in connection with a dispute, except where that party seeks an urgent interlocutory relief, in which case that party is not obliged to comply with clause 13 before seeking such relief.
13.2 In the event that any dispute arises between the parties in connection with this Agreement, the parties must use their best endeavours to resolve that dispute without delay.
13.3 If the parties cannot resolve the dispute within 30 days of it arising, either party may require, by a written notice, the dispute to be referred to mediation.
13.4 The parties must jointly appoint a mediator, or if they fail to agree on the mediator within 14 days after of the service of the notice referred to in clause 13.3, either party may request the President of the Law Society of New South Wales to appoint a mediator.
13.5 The mediation must take place in New South Wales within 20 days after the appointment of the mediator or as otherwise agreed between the parties.
13.6 The cost of mediation will be borne equally by the parties.
13.7 If the dispute is resolved, the parties must sign the terms of the agreement, which will be binding on the parties.
13.8 If the dispute is not resolved at the completion of the mediation, then either party is entitled to commence litigation or arbitration.
14. NOTICES
Form
12.1 Any notice given under this Agreement must be in writing.
Receipt
14.1 Notices will be deemed to have been given to the recipient if they are:
14.1.1 handed to the relevant recipient personally;
14.1.2 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;
14.1.3 faxed to the relevant recipient to the last known facsimile number of the relevant recipient; or
14.1.4 emailed to the relevant recipient to the last known email address relevant recipient.
15. GENERAL
Governing law
15.1 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
15.2 This Agreement contains the entire understanding and agreement between the parties as to the subject matter of this Agreement.
15.3 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.
15.4 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
15.5 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 Keep You Driving under this Agreement or otherwise. All such rights and remedies of Keep You Driving will continue in full force and effect.
Assignments and other dealings
15.6 The Referrer must not, without Keep You Driving's prior written consent (which must not be unreasonably withheld):
15.6.1 assign or transfer this Agreement or any of its rights, interest and obligations under this Agreement;
15.6.2 sub-grant the rights to any other person;
15.6.3 engage in sub-aggregation of the Services to other persons; or
15.6.4 otherwise deal with its rights, interest and obligations under this Agreement.
15.7 Keep You Driving 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.
15.8 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.
Force majeure
15.9 Each party releases the other party from any claim, liability or responsibility pursuant to this Agreement concerning the other party's failure to perform any obligation, where such failure is due to strike, lockout, riot, industrial action, fire, storm, tempest, act of God, government law or regulation or any other cause beyond the control of the other party and no such failure will entitle a party to terminate this Agreement or render the other party liable in damages.
Joint and several liability
15.10 Any covenant, agreement, representation or warranty under this Agreement by two or more persons comprising the Referrer binds them jointly and each of them individually. Any benefit in favour of two or more persons comprising the Referrer is for the benefit of them jointly and each of them individually.
15.11 Any covenant, agreement, representation or warranty under this Agreement by two or more persons comprising Keep You Driving binds each of them individually and not jointly with any other person comprising Keep You Driving. A person comprising Keep You Driving is liable only for its proportionate share of the covenants, agreements, representations or warranties under this Agreement. Any benefit in favour of two or more persons comprising Keep You Driving is for the benefit of them jointly and each of them individually.
Severability and survival of covenants
15.12 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
15.13 Neither this Agreement nor any provision of this Agreement may be amended, modified, waived, discharged or terminated orally.
No waiver
15.14 Time is of the essence of this Agreement. However, no failure or delay by the party to exercise any power, right or remedy under this Agreement will operate as a waiver of that power, right or remedy. Nor will any single or partial exercise of any power, right or remedy under this Agreement preclude any other or further exercise of that power, right or remedy.
Counterparts
15.15 This Agreement may be executed in any number of counterparts all of which, when taken together, will constitute one and the same instrument.
Execution by authorised person
15.16 This Agreement may be executed on behalf of any party by a person authorised to execute it under power of attorney or another authority. If this Agreement is executed in this manner, then that person, by his or her execution of this Agreement, states that at the time of such execution he or she had no notice of the revocation of that power of attorney or authority.
Valid execution
15.17 Each of the following constitutes a valid and effective execution and delivery of this Agreement:
15.17.1 the exchange of executed copies of this Agreement by facsimile transmission (whether directly from one facsimile device to another by means of a dial-up connection or mediated by the worldwide web);
15.17.2 the exchange of executed copies of this Agreement by electronic mail in “portable document format” (“.pdf” format);
15.17.3 execution of this Agreement by the parties providing their digital signatures to the Agreement;
15.17.4 the parties typing their name and clicking on a button indicating that they have read, understood and agree to be bound by the terms and conditions of this Agreement;
15.17.5 by any other electronic means intended to preserve the content of this Agreement, or
15.17.6 by a combination of the above means.
15.18 The parties agree that:
15.18.1 this Agreement as executed in accordance with clause 15.17 may be used in lieu of an original document for all purposes; and
15.18.2 any means of execution of this Agreement referred to in clause 15.17 will be deemed to be the parties' original signatures for all purposes.
15.19 The parties agree that all documents ancillary to this Agreement or any dealing between the parties may be executed by any means of execution referred to in clause 15.17.
