a. We engage you to introduce our products to your existing and potential customers and refer customers to us in accordance with these Terms (the “Services”). In return, we will pay you commission in accordance with these Terms (“Commission”).
b. We may decide in our sole discretion to:
(i) cease offering some or all of our products; or
(ii) modify our product specifications and add or remove features and pricing.
c. We are under no obligation to you to continue offering any of our products and may cease offering products completely should we decide to do so in our absolute discretion.
d. We bear the risk of any engagement with customers, including risks relating to customer default and there is no recourse to you in relation to such risk, except where any loss, claim or damage is caused by or contributed to by your actions.
2.1 Payment of Commission
In consideration of your provision of the Services to our satisfaction which results in a Commission Event in respect of a customer for whom you are deemed to be the referring party, we will pay you the Commission.
2.2 Commission Rates and Commission Events
a. Unless otherwise arranged by your Broker Group, your Commission Rates and Commission Events will be as previously agreed with you.
b. The Commission Rates and Commission Events may be amended at our sole discretion from time to time. Any such changes will take effect no less than 10 days after such change is notified to you.
c. Commission is payable at the Commission Rate applicable to the relevant product and customer type on the occurrence of any applicable Commission Event in respect of a Card Facility for which you are deemed to be the referring party.
d. Commission will be paid within 15 business days of the end of the month in which a customer first transacts with one of our products.
e. If a customer entity credit limit is increased within the first three months of ordering a Cape card, you will be remunerated by reference to such Increased Limit.
f. In determining the applicable Commission Rate for a Card Facility we will have regard to the product type and whether the Card Facility is made to a new or existing customer. Any such determination by us is final.
2.3 Accreditation requirement
a. If you are not Accredited at the time of the relevant Commission Event, any Commission to which you may otherwise be entitled under these Terms will be held by us pending you becoming Accredited.
b. If you do not become Accredited within thirty (30) days of the relevant Commission Event occurring your right to receive Commission on that Card Facility will lapse.
2.4 Tax invoice
Payment of Commission is subject to an accurate and complete tax invoice being issued to us. In lieu of you providing a tax invoice to us, you authorise us to issue a recipient created tax invoice for Commission to you.
3.1 Correct and complete information
a. You undertake to ensure that all information provided to us in connection with the provision of the Services is true, accurate and complete.
b. You undertake to provide us with written notice of any changes to your business including, but not limited to:
(i) Contact details;
(ii) Business status; and
(iii) Licensing and authorisations held.
c. If you operate under a Broker Group, you must inform us if you cease affiliation with that Broker Group.
d. In order to receive Commission, you must provide us with the following details to complete the Accreditation process (in respect of yourself or, if applicable, your Broker Group):
(i) a valid Australian Business Number (ABN); and
(ii) if applicable, a valid Australian Company Number (ACN).
3.2 Bank Account Details
a. You (or, if applicable, your Broker Group) must nominate a bank account for payments by providing the following account details to us in writing:
(i) Financial institution;
(ii) Account name;
(iii) BSB; and
(iv) Account number.
b. The account name must match the entity that is accredited by us.
c. If we are instructed by your Broker Group to make Commission payments directly to them in respect of Card Facilities for which you are deemed to be the referring party, you agree that payment by us to the Broker Group constitutes full discharge of our obligations to make such payment of Commission. It is your responsibility to seek any payment of such amounts from your Broker Group.
d. Any payment that may be due to you under these Terms will be made to the bank account notified by you (or your Broker Group) as reflected in our records at the relevant time. It is your responsibility to ensure that we are provided with accurate and current bank account details at all times.
e. We accept no responsibility for any payments that are not received by you (or, if applicable, your Broker Group) as a result of incorrect account details being provided by you or your failure to update your details. We are under no obligation to make any further payments in respect of any Commission that is not received by you by virtue of incorrect account details being provided by you or your failure to update your details.
We and you acknowledge that in providing the Services you act as a referrer and not as an employee, partner or agent of us and you shall have no authority to act for or to bind us in any manner whatsoever other than as expressly stated by these Terms.
Unless otherwise terminated in accordance with this clause 5, these Terms apply for so long as you remain a Registered or Accredited Partner.
5.2 Termination for breach
a. We may terminate your engagement by immediate notice if:
(i) you fail to meet any of the obligations set out in clause 6 and, if remediable, such failure has not been remedied within ten (10) business days of notice by us;
(ii) you are in default for a period of thirty (30) days or more under the terms of a Card Facility provided to you by us; and
(iii) you publish disparaging or offensive material in relation to us or otherwise criticize or discourage the use of our Card Facilities whether publicly or to your customers.
b. If these Terms are terminated by us under paragraph 5.2(a), we are released from all obligations under these Terms other than in relation to ongoing obligations that are stated to survive termination. For the avoidance of doubt, you will not be entitled to any Commission following termination under paragraph 5.2(a) whether as a result of further Commission Events in relation to Card Facilities to any existing customers or any new referrals which you may initiate after this time.
5.3 Termination by election
a. We and you may terminate these Terms by providing the other party with thirty (30) days’ written notice.
b. If terminated pursuant to this clause 5.3, we and you are released from all obligations under these Terms other than in relation to ongoing obligations that are stated to survive termination.
c. If we terminate these terms pursuant to this clause 5.3, we undertake to continue to pay you Commissions for a period of 30 days (or such other longer period as may be set out in the notice of termination) on the occurrence of any further Commission Events which may occur in respect of existing customers for whom you would otherwise have been entitled to Commission.
You agree to:
a. comply with the reasonable instructions and directions as may be given by us from time to time in relation to the sale and marketing of our Card Facilities to customers;
b. offer and promote our Card Facilities with all due care, skill, expertise and the level of professional knowledge that would reasonably be expected in the circumstances;
c. market and promote our Card Facilities using only current marketing tools, materials and information provided by us to you or as otherwise approved by us in accordance with clause 11(a). You acknowledge and agree that it is your responsibility to ensure that all marketing tools, materials and information you are using in promotion of our Card Facilities are current by regularly checking with the Cape team or with your Broker Group (if applicable);
d. comply at all times with any legislation, regulations or codes that may apply to you;
e. maintain and comply with any licensing, authorisation or regulatory requirements which may apply to you from time to time and to promptly notify us if you cease to hold or become aware of a breach of any such license, authorisation or regulatory approval;
f. act in accordance with the spirit and intent of all legislation, regulation and codes that may apply to you from time to time and ensure all provision of Services is undertaken in an ethical manner having regard to the needs of all parties, including the customer;
g. offer our Card Facilities only to businesses and only for use in business related purposes;
h. act honestly and in good faith in relation to the submission of customer information to us for the purpose of us assessing the customer's credit application and suitability;
i. undertake a reasonable level of care and diligence in relation to the identity, financial information and documentation of any customer who you refer to us and ensure you will only refer customer (i) who you reasonably believe to be legitimate and genuine; and (ii) whose documentation you reasonably believe to be complete and genuine; and
a. We will use best endeavours to contact customers referred to us by you in a timely and professional manner.
b. We will pay you the applicable Commission on the occurrence of each Commission Event for a Card Facility made by us to any customer who was referred by you, where you are deemed to be the referring party of that customer in accordance with our Lead Management Policy.
c. In determining whether you are the referring party for a customer we will have regard to:
(i) how and through what avenue a customer was referred to us;
(ii) any claims from other parties that they are the referring party; and
(iii) where applicable, the customer’s previous relationship with us.
a. If any supply under or in respect of these Terms becomes subject to GST, and if the recipient of the consideration is liable to pay GST in relation to any supply under these Terms, you and we agree that the amount payable for any supply under or in respect of these terms shall be adjusted by the amount of the GST and be considered GST inclusive.
b. Each party agrees to do all things, including providing invoices or other documentation in such form and detail that may be necessary to enable or assist the other party to claim or verify any input tax credit, set off, rebate or refund in relation to any GST payable under these Terms or in respect of any supply under these Terms.
c. You warrant that the information provided to us relating to taxation is correct. In the event that the information provided by you is incorrect, you indemnify us from any loss, liability or expense incurred from this incorrect information.
For the purposes of this clause 9 the following expressions have the following meanings:
a. GST means any tax imposed on the supply of goods or services which is imposed or assessed under GST Law.
b. GST Law means
(i) A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time,
and all related ancillary legislation in the relevant jurisdiction which provides for a broad- based consumption tax on the supply of goods and services.
a. Both parties agree to keep confidential, and ensure its employees, agents and contractors keep confidential and will not directly or indirectly disclose, reproduce or transfer to any third party, any Confidential Information, without the prior written approval of the other party.
b. Each party acknowledges that any breach of these Terms could cause serious harm to the other party and agrees that in the event of such a breach, the other party shall be entitled to seek and obtain a restraining order, injunction and other equitable relief in any court of competent jurisdiction in addition to all other legal remedies available.
c. On termination of these Terms or whenever requested by a party:
(i) each party must immediately return to the other party all Confidential Information in its possession, or under its care and control, belonging to the other party;
(ii) each party will destroy and confirm in writing to the other party the destruction of all duplicate copies created of the other party's Confidential Information, whether electronic, magnetic, printed or otherwise.
a. You may promote our Card Facilities to your existing and potential customer base provided your marketing materials have received our prior written approval.
b. You will be liable for any loss incurred by us from any misleading materials produced by you and relating to us and our Card Facilities that did not have our prior written approval.
c. We may, at our sole discretion, request that you cease advertising or promoting our Card Facilities in any particular way, and you must take reasonable steps to ensure that the marketing activities cease within five (5) days following such request.
d. You will comply with the obligations set out in clause 6(c) in relation to any marketing of our Card Facilities.
e. You agree that we may send marketing materials to any customers introduced by you at a time we deem appropriate to do so for the purpose of repeat transactions.
f. You acknowledge that we will conduct our own marketing activities in all the territories in which we operate and that this may at times cross-over with your marketing activities.
a. indemnify us against all claims, demands, charges or expenses made against or incurred by us as a result of any breach of these Terms, fraudulent activity or negligent or wilful misconduct, act or omission by you or your employees with respect to these Terms except to the extent to which such claims, demands, charges or expenses are caused by or contributed to by us (to the extent of that contribution);
b. must ensure that your employees and affiliates take all actions necessary to comply with these Terms; and
c. agree that we will not be held liable for any loss incurred by you or any third party that is a result of any act or omission by you.
a. Each party will retain its Pre-Existing IPR and nothing in these Terms assigns or transfers the Pre-Existing IPR of one party to the other.
b. For any IPR created by you for the purpose of these Terms or any Pre-Existing IPR which is incorporated into any materials used in the course of performing the Services, you agree to grant us a non-exclusive, worldwide, royalty free, irrevocable and perpetual license to use such IPR and Pre-Existing IPR for purposes related to performance of these Terms.
c. You warrant that any materials used or created for the purposes of these Terms do not infringe third party intellectual property rights.
a. Any notice to be given under these Terms by any party to the other may be given in writing via mail or email.
b. A notice given in accordance with this clause is treated as having been given and received:
(i) If delivered to a person’s address, on the day of delivery if a business day, otherwise on the next business day;
(ii) If sent by pre-paid mail, when it would be received by the party in the normal course of post or no later than four (4) business days after posting;
(iii) If sent by email, when the sender receives either a computer-generated receipt notification of the delivery or if no read-receipt is requested, delivery is assumed on the same business day unless a notification is received that the email was not delivered.
14.1 Governing Law
These Terms are governed in accordance with the laws of New South Wales and the parties submit to the exclusive jurisdiction of the courts of New South Wales.
You must not assign or transfer all or any of your rights or obligations under these Terms without our prior written consent.
You cannot appoint or sub-contract any third party to perform any of your duties set out in these Terms without our prior written approval.
Any illegal, invalid or unenforceable provision of these Terms will be severable, and all other provisions will remain in full force and effect.
Clauses 10 (Confidentiality), 12 (Indemnification) and 13 (Ownership and Intellectual Property) survive termination of these Terms.
The fact that a party fails to do, or delays in doing, something the party is entitled to do under these Terms, does not amount to a waiver of any obligation of, or breach of obligation by, another party.
A waiver by a party is only effective in relation to the particular obligation or breach in respect of which it is given and is not to be taken as an implied waiver of any other obligations or breach or as an implied wavier of that obligation or breach in relation to any other occasion.
a. Accredited means a Partner that has provided:
(i) all legal business information as outlined in clause 3.1(d) (as applicable); and
(ii) bank account details; and
any such information has been processed and verified to our satisfaction such that the Partner is registered on our systems as “accredited” and the relevant Partner has been notified accordingly.
b. Broker Group means a company, firm or aggregator to which a Partner is affiliated in the provision of the Services.
c. Cape means Cape Pty Ltd A.C.N. 654 770 199 Pty Ltd.
d. Card Facility means any loan, form of finance or credit facility offered by us.
e. Commission Event means an event upon which Commission is payable to you.
f. Commission Rates means the rates applicable for each of our Card Facilities for the purposes of calculating the Commission.
g. Confidential Information means any material, whether it is received, accessed or viewed by recipient in writing, visually, electronically or orally, that is (a) expressly marked as confidential; or (b) provided by one party to the other for the purpose of these Terms, including but not limited to proprietary information, technical information, customer details, trade secrets, intellectual property rights, documents, marketing and business plans, models, specifications, computer software, forecasts and all related information but excluding any information:
(i) in the public domain, other than by a breach of duty by the receiving party;
(ii) independently developed by the receiving party; or
(iii) already known to the receiving party at the time of receipt.
h. Increased Limit means in the case of a Cape customer’s Card Facility limit being reviewed, the increased limit on that customer’s Cape card.
i. IPR means all industrial and intellectual property rights of any kind including copyright, patents, trademarks, design, moral rights and other proprietary rights.
j. Partner means any third-party entity that provides referral services to, and/or introduces prospective customers to us.
k. Pre-Existing IPR means a person’s IPR existing prior to the commencement of these Terms or subsequently brought into existence other than in the course of performing these Terms (including any improvements, modifications or developments of such IPR).
l. Privacy Act means
(i) the Privacy Act 1998 (Cth) as amended from time to time,
and "personal information" has the definition provided in the relevant Act.
m. Registered means any third party who is registered on our system as a referral Partner but is not Accredited.