Cm3 Affiliate Partner Program Terms and Conditions

Date: February 2015

Greencap Pty Ltd (ACN 006 318 010) (Greencap, we, us, our) operates a commission based program for the promotion of certain Greencap products and services by third parties to their end-customers or in the marketplace generally (Affiliate Program).

These terms and conditions apply to your enrolment and participation in our Affiliate Program. In participating in the Affiliate Program, you agree you have read, understood and are bound by these terms and conditions (Agreement).

Any reference to AffiliateAffiliate Partneryou or your in this Agreement refers to the individual or entity who enrolled in the Affiliate Program. Where an authorised individual enrolled on behalf of an entity, you or your refers to that entity.

Certain words used in this Agreement have a special meaning which is set out in clause 10 (Definitions).

1. Term, Appointment and Method of Sales

1.1 Term and Appointment

This Agreement commences on the signed by you and terminates on the day notified by either party in accordance with the terms of this Agreement. Until terminated pursuant to clause 7, this Agreement authorises you to participate in our Affiliate Program.

1.2 Purchasing of Services

In order to fall under this Affiliate Program, Services must be purchased:

1. by a Customer directly (and not for your own use); and

2. as a result of your referral, recommendation or advice (such referral, recommendation or advice must be notified to us at the time such Services are purchased).

The Affiliate Program will not apply to Services purchased by a Customer through any other means (including through a website belonging to us).

1.3 Demonstration access to Services

Where applicable a demonstration access to the Services may be provided for your use alone and for the purpose of showcasing capabilities and functionality to prospective Customers, and not for use by any Customer or other third party. You must keep all login details secure and confidential at all times, and you must immediately notify us and indemnify us in respect of any breach of security or unauthorised, use or access of the login details. 

2. Commissions, Payment and Targets

2.1 Commissions

For each Service purchased by a Customer in accordance with clause 1.2, you are entitled to a Commission (calculated as a percentage of the price payable in respect of that Service by the Customer), subject to any Commission Target(s) first being achieved (if applicable). The commission payable may vary with each Service type. A list of Services and the applicable commission rate will be provided. 

Commissions are based on the price actually payable by the relevant Customer in respect of the applicable Service, after the application of any discount, special or promotional pricing offered to that Customer or to the market at large. 

The percentage payable by us as Commission for the sale of a Service is determined by us, in our sole discretion. You may confirm the Commission payable for any particular Service by contacting the Affiliate Manager.

2.2 Payment of Commissions

Your eligibility for a Commission accrues 30 days after the Customer sale is processed in respect of each Service acquired.  Payment for all Commissions accrued each month will be made once a month. Where a Service is purchased and paid for annually, the generated Commission will be for that annualised period (and will be paid annually). In the event that a Service is purchased and paid for monthly, Commission will be paid on a per-month basis by reference to the price paid in the relevant month. For Services that comprise consulting or a defined work statement, Commission will be paid in accordance with the payments received from the Customer. 

Where a Customer fails to pay any portion of applicable fee for the Service, no Commission will be generated for that unpaid portion (until paid by the Customer).

Commissions will only be payable:

1. on the first year of introduction of a Customer to the service by an Affiliate and will not be paid on an ongoing basis, for instance, for the ongoing annual renewal of that service; and

2. in respect of the first Service provided to the Customer by an Affiliate, and will not be paid on all subsequent Services procured by the Customer.

2.3 Commission Target(s)

From time to time, we may introduce Commission Target(s) on certain new products which you must satisfy prior to any payment of any Commission. We reserve the right to make satisfaction of the Commission Target(s) a prerequisite for the payment of either (a) any Commission in respect of any Services acquired; or (b) Commission in respect of a defined category of Services acquired.  

3. Reporting, Taxes and Recipient Created Tax Invoices

3.1 Reporting

In paying any Commission, upon request, we will provide a monthly report to you detailing the number and type of Services obtained by Customers pursuant to your involvement with the Affiliate Program during the relevant month, and Commission Target performance (if applicable).

3.2 Taxes

1. In this clause 3.2 and the rest of this Agreement, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that Act.

2. Subject to clause 3.3 below, any Commission paid to you by us (exclusive of any goods and services tax (GST) and other taxes or charges that may apply to the Commission by any relevant law) is inclusive of any GST payable. You are solely responsible for meeting the liability for any applicable tax, charge or levy.

3. If you have specified that you are an Australian resident for taxation purposes, you agree to supply us with your valid Australian Business Number (ABN), and any Commissions we pay to you will be: 

1. paid inclusive of any GST but exclusive of any other tax or charge which may apply to the commission under any relevant law and, for which you are solely responsible; and

2. supported by a recipient created tax invoice issued to you by us in accordance with the requirements of the GST legislation then in force.

3.3 Recipient Created Tax Invoices

The parties agree that:

1. we can issue tax invoices in respect of a Commission;

2. you agree not to issue tax invoices in respect of a Commission;

3. you acknowledge that you are registered for GST as at the date the Agreement commenced (see clause 1.1) and you agree to notify us immediately if you cease being registered for GST at any time during this Agreement;

4. you agree to provide us with your valid ABN within fourteen (14) calendar days of the date the Agreement commenced;

5. we acknowledge we are registered for GST as at the date the Agreement commenced and we will notify you if we cease being registered for GST at any time during this Agreement; and

6. if you fail to provide your valid ABN or otherwise notify us that you are not (or are no longer) registered for GST at any time during this Agreement, then any Commission payable will be reduced to an amount equal to the GST inclusive amount divided by an amount equal to 1 plus the then prevailing rate of GST.

4. Your Obligations, Marketing and Consents

4.1 Your Obligations

You agree:

1. to conduct business in a manner that reflects favourably on us, our Services and the Affiliate Program, and will not engage in or endorse any activity which may directly or indirectly be detrimental to us or our reputation;

2. not to hold yourself out as being accredited or endorsed by us (unless you have achieved such accreditation), or refer to yourself as part of our organisation, or as a reseller, representative or agent of our organisation. You may, however, refer to your status under this Agreement as an ‘Affiliate Program Member'; and you may display on your website and other marketing material an approved logo supplied by us; 

3. to act in good faith when dealing with us and utilising our systems and/or Services, and to promptly do, or arrange for others to do, all things reasonably required to give full effect to the provisions of this Agreement (and the transactions contemplated by it); 

4. not to invoice the Customer for any other services or assistance with respect to services; nor serve the Customer with any terms or conditions or agreement terms relating to the Services; and

5. to comply with all applicable laws relating to your performance under this Agreement.

4.2 Marketing Activities

You must ensure any promotional, advertising or other material(s) you distribute to your Customers (in any format) which refer to us, our Services or the Affiliate Program:

1. do not contain any misrepresentations or warranties relating to us or our Services;

2. comply at all times with all relevant advertising standards and applicable laws (including without limitation, spam and consumer protection laws); 

3. are the most up to date versions of these materials available; and

4. do not contain any offensive, misleading, derogatory, harmful, infringing or unacceptable content.

4.3 Our Communications and Opting-Out

You consent to our use of any information you supply to us, for the purposes of providing notifications, offers, marketing or promotions concerning or related to:

1. the Affiliate Program; and/or

2. any Services (including new or upcoming product developments and associated services) which we consider may be of interest to you or your Customers (whether relating to the Affiliate Program or otherwise).

If you no longer consent to our above use of information, you may opt-out of receiving these communications by providing written notice to: Greencap Pty Ltd, Level 1 / 677 High Street, Kew East,  Melbourne 3102 Victoria, Australia, or emailing us at cm3@greencap.com.au and requesting to opt-out. Please allow up to five (5) business days for your request to be actioned, once received by us.

5. Our Obligations and Warranties

5.1 We agree to provide you with a mechanism by which you can refer Customers to take up our Services, such that you are able to identify that it has been referred by you..]

5.2 We warrant we will make reasonable efforts to process Commissions in accordance with clause 2.2, however, we make no representation, guarantee or warranty that:

1. Commissions payments will always be processed every month;

2. any particular Service will continue to be offered or supported by us, or will continue to be available under the Affiliate Program; or

3. processes, timelines or percentages in the Affiliate Program will not change or be updated by us from time to time.

6. Intellectual Property Rights and Marks

6.1 Intellectual Property Rights

Nothing in this Agreement constitutes, or shall result it, a transfer of any Intellectual Property Rights belonging to us to you. We retain all right, title and interest in the Services, and the Affiliate Program. You agree that nothing in this Agreement (nor any act you undertake or perform) will result in any right, title or interest in any Intellectual Property Rights in connection with the Affiliate Program or any Services vesting in you.

6.2 Licence of Marks

Subject to your ongoing compliance with the terms of this Agreement (including without limitation the licence terms contained in clause 6.3) we grant you a non-exclusive, non-transferable, royalty-free, limited license to use certain approved trademarks, logos or service marks (whether registered or not) belonging to us and as identified to you by us (if any) (the Marks) for the sole purpose of promoting your participation in the Affiliate Program (Licence). Such Marks will be supplied to you by us.  

6.3 Licence Terms

The Licence granted in clause 6.2 is subject to the following terms:

1. the Marks may only be used in the format provided by us to you, and may not be altered or adjusted without our prior written consent;

2. we have the right to review the manner in which you use the Marks, and may require modifications to any use, as we consider necessary. You agree to make such modifications as soon as practicable but in any event within seven (7) calendar days from the date of our notice; and

3. upon termination of this Agreement, the Licence will automatically terminate and you must immediately cease all use of our Marks.

7. Termination and Suspension

7.1 Termination for Convenience

Either party may terminate this Agreement for convenience upon ten (10) business days' prior written notice to the other party.

7.2 Termination for Breach

Either party may terminate this Agreement immediately upon written notice to the other party if:

1. that other party is in breach of any obligation under this Agreement, and has failed to remedy that breach (where the breach is capable of being remedied) within ten (10) calendar days' time from receipt of written notice of the breach from the non-breaching party; or

2. an Insolvency Event occurs with respect to that other party.

7.3 Effect of Termination

Upon termination of this Agreement:

1. you will cease to be a participant in the Affiliate Program, and system access where granted will be cancelled;

2. the Licence granted in clause 6.2 will terminate, and any use of Marks by you must immediately cease;

3. Commissions accrued prior to the date of such termination being effective will cease to be payable.

7.4 Suspension

If we believe you are in breach of any term of this Agreement, or that our systems may be exposed to potential damage or misuse, we may elect to suspend your access to, and participation in, the Affiliate Program without notice. For clarity, this right does not affect or limit any other rights we have under this Agreement.

8. Liability and Indemnity

8.1 Your Indemnity

You agree to indemnify, keep indemnified and hold us harmless from and against any and all actions, claims, proceedings, losses, damages, costs and expenses (including legal fees and expenses on a solicitor/client basis) and other liabilities of whatever nature, whether foreseeable or not, and whether direct or indirect, incurred by us in respect of any claim (i) by a third party arising in connection with this Agreement (except to the extent such a third party claim arises as a direct result of our breach of this Agreement), (ii) arising in connection with your breach of this Agreement, or (iii) arising in connection with your unlawful conduct in referring a Customer to us.

8.2 Our Liability

8.2.1 To the maximum extent permitted by law, all other conditions, warranties and guarantees expressed or implied by any legislation, the common law, equity, trade, usage or otherwise in relation to the supply of services under this Agreement or otherwise in connection with this Agreement, are expressly excluded.

8.2.2 To the maximum extent permitted by law, you agree we have no liability to you, any Customer or any third party for loss or corruption of data, loss of revenue, loss of profits, failure to realise expected profits or savings, loss of contract, loss of reputation or any indirect or consequential loss or damage of any kind, in contract, tort (including negligence), product liability, in equity or via any warranty or indemnity, under any statute or otherwise arising from or relating in any way to this Agreement. 

8.2.3 Certain provisions of the Competition and Consumer Act 2010 (Cth) and other statutes, rules and regulations in Australia may imply certain non-excludable warranties or conditions or mandate certain statutory guarantees in relation to this Agreement. To the extent that we supply you with any goods or services in connection with this Agreement, and the supply of such goods or services is of a type that such implied conditions, warranties or guarantees applies to,  our liability for breach of such implied conditions, warranties or guarantees and your sole and exclusive remedy in relation to such breaches shall be limited to:

1. in the case of goods supplied under this Agreement, at our option: 

1. replacing or repairing those goods, or supplying of equivalent goods; or

2. paying the cost of replacing or repairing goods or of acquiring equivalent goods; and

2. in the case of services supplied under this Agreement, at our option: 

1. supplying the services again; or

2. paying the cost of having the services supplied again.

9. General Provisions

9.1 Entire Agreement

This Agreement contains the entire agreement between the parties with respect to its subject matter and supersedes all other representations, negotiations, arrangements, understandings or agreements and other communications.

9.2 Change of Terms and Conditions

a) We may update the terms of this Agreement by giving you notice of the change or posting new versions online. The period of notice required to be given depends on the nature of the change. If: 

1. the change will benefit you or have a neutral impact on you, we may make the change effective immediately and without advance notice by posting a general notice on our website as outlined above;

2. the change is required to comply with any law or requirement of any regulatory body, we will provide a reasonable period of notice (such period to be as reasonably practicable);

3. the change is required to preserve or safeguard the security or integrity of any network or system we use to provide Services to our customers or to maintain any accreditation we are required to have, we will make the change effective immediately and will provide notice through one or more of the methods outlined above; and

4. for all other changes, we will give you at least thirty (30) days' notice.

b) If you continue to participate in the Affiliate Program after the relevant notice period, you will be taken to have agreed to the change. For clarity, our rights to change, add or reduce the number of Services which the Affiliate Program applies to, or to introduce any Commission Target, are not subject to the notice periods in clause 9.2(a). 

9.3 Severability

Any provision of this Agreement which is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.

9.4 Assignment

Neither party may assign its rights or obligations under this Agreement without the written consent of the other party which consent will not be unreasonably withheld; provided, however, that we may assign this Agreement to (a) a successor in connection with any merger, acquisition, or sale of all or substantially all of our business or assets to which this Agreement relates, or (b) any related body corporate (as that term is defined in the Corporations Act 2001 (Cth)) of Greencap. Any attempted assignment in violation of the preceding sentence shall be void and without effect.

9.5 Relationship

The relationship of the parties is that of independent contracting parties. Nothing in this Agreement may be considered or interpreted as constituting the relationship of the parties as that of partners, channel partners, joint ventures or principal and agent. Each party must not at any time make any statement or representations which is inconsistent with this relationship.

9.6 Waiver

No failure to exercise and no delay in exercising any right, power or remedy under this Agreement will operate as a waiver.

9.7 Survival

Clauses 8 and 9.8 shall survive any termination of this Agreement.

9.8 Governing Law

This Agreement is governed by, and construed in accordance with, the laws of the State of Victoria, Australia, and the parties submit to the exclusive jurisdiction of the courts of that State.

10. Definitions

Commission means those commission amounts payable by us in respect of applicable Services purchased by a Customer in accordance with clause 1.2.

Commission Target means any benchmark target (to be calculated by reference to volume or aggregate value, in our discretion) we notify you of regarding a particular Service or Services purchased in accordance with clause 1.2.

Customer means your end-customer or any other third party who purchases any Service(s) from us and, at the time of purchasing, either quotes, identifies or otherwise refers to you (in respect of your participation in our Affiliates Program).

Insolvency Event means any of the following events occurring to a party:

1. insolvency or otherwise unable to pay its debts as and when they fall due;

2. insolvency, receivership or bankruptcy proceedings instituted with respect to the party (either by the party or a third party), for settlement of the party's debts;

3. general assignment by the party for the benefit of creditors; or

4. ceasing to conduct business.

Intellectual Property Rights means all intellectual or industrial property protect able by statute, at common law or in equity and includes all know how, inventions, patents, copyright, designs (whether or not registrable), trade secrets, circuit layout designs, circuit layout rights registered and unregistered logos, trade names, logos and get-up (and any copyright in such logos, trade names, logos and get-up) and confidential information and all other rights and interests of a like nature.

Mark has the meaning given in clause 6.2.

Service means products and services provided by Greencap or its related bodies corporate from time to time, including online annual subscription service such as Cm3 WHS Contractor Management service, as may be added, removed, or updated from time to time by us.

Schedule 1 – Cm3 Affiliate Partner Commission Rates

Service Additional Eligibility Criteria (inc. Commission Target) Commission Rate (%)
Cm3 As per table below As per table below

Cm3 Affiliate Referral Program Commission Schedule

  Commission Rate (Paid Monthly) on Customers* - Year 1 Only
Volume Target Levels**
Gold (15+ successful referrals)
Silver (>10 successful referrals)
Bronze (baseline no. of referrals)
 
12%
10%
8%

* For the purposes of commissions paid for Cm3 referrals under the Affiliate program, Customers mean paying contractors invited onto Cm3 by a Client referred by the Affiliate. Commissions are payable only on the contractors first year of Cm3 fees, not renewals. Commissions are not payable for individual contractors referred to Cm3 by the Affiliate.

** Upon achieving the volume target levels for successful referrals (e.g. Bronze-Silver-Gold), specified above, the Affiliate will be paid the higher level of commission specified from that point onward on annual fees collected from contractors invited onto Cm3 by any new Client invited by the Affiliate.

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