Partner terms

eGuarantee is authorised to distribute lease bonds for Agreements for Lease, Incentives Deed and Lease Security Agreements issued by Credeq Australia (ABN 39 625 083 810) as agent (Lease Bond Products) and the Partner has agreed to refer tenantsTenants to eGuarantee in accordance with terms and conditions of this agreement.

1.1 This agreement commences on the date both parties sign this agreement (Commencement Date) and will continue until it is terminated by either of the parties in accordance with its terms (Term).

1.2 Either party may terminate this agreement by providing the other party at least 90 days’ written notice.

1.3 Either party may terminate this agreement immediately by notice in writing if the other party is in breach of any term of this agreement and such breach is not remedied within 7 days after receiving notice requiring it to do so.

1.4 On and from the Commencement Date the parties each agree that:

(a) any arrangements between eGuarantee and the Partner in respect of Lease Bonds Products before the Commencement Date are terminated, such as the incentive program (Older Lease Bond Arrangements); and
(b) the terms and conditions of this agreement will apply to the Older Lease Bond Arrangements.

2.1 The Commission Rate is to be determined as:

(a) 10% of the first year distribution fee (excluding all GST received, setup fees, administration fees, and other charges); and
(b) 5% trail commission on subsequent years’ distribution fees up to the approved lease bond term determined by eGuarantee.

2.2 For the avoidance of doubt, Commission is only payable on distribution fees paid by the Tenant and excludes any setup fees, one-off charges, administrative fees, or other non-distribution fees charged to the Tenant.

2.3 Only one Commission payment is payable per Lease Bond Product. If there are more than one referral partner (including the Partner) or multiple staff members or representatives of the Partner with a valid claim to Commission in respect of the same Tenant, then eGuarantee may, in its sole discretion, determine:

(a) which party (if any) is entitled to receive the Commission; or
(b) how the Commission should be apportioned between the claimants, on the principle that eGuarantee should not pay double commission.

2.4 The Partner must ensure that only one Application per Tenant is submitted and that it will not submit duplicate or competing Applications.

3.1 eGuarantee will pay the Commission to the Partner within 30 days of the end of the month when the Tenant pays eGuarantee for the Lease Bond Product.

3.2 The Commission payable to the Partner is calculated at the Commission Rate. The Commission is exclusive of GST, which shall be payable in addition. The Partner must provide eGuarantee with a valid tax invoice (which includes the Partner’s ABN and sets out the Commission payable plus GST). Other than the Commission, no other commission, expenses, fees, remuneration, bonuses or royalties are payable to the Partner in connection with this agreement.

3.3 All payments made by a Tenant for Lease Bond Products must be made to the bank account nominated by eGuarantee. The Partner is not authorised to collect or receive any payments from the Tenant for the Lease Bond Products. If, for any reason, the Partner receives payment from the Tenant, then the Partner must, immediately remit the full amount to eGuarantee’s nominated bank account. The Partner will send a remittance advice for any such payment to: .

3.4 If, after Commission has been paid to the Partner:

(a) eGuarantee refunds, rebates, or credits any amount to the Tenant;
(b) the Tenant cancels or terminates the Lease Bond Product and receives a refund;
(c) eGuarantee determines that the Commission was paid in error or based on incorrect information; or
(d) the Lease Bond Product is cancelled within the first 12 months, then:
(e) the Partner must repay to eGuarantee the proportionate amount of Commission within 14 days of eGuarantee’s written request; or
(f) eGuarantee may, at its election, set off the amount owing against any future Commission payments to the Partner without further notice.
The Partner acknowledges and agrees that eGuarantee may exercise its right of set-off without the Partner’s consent and that no Commission is payable on refunded or rebated amounts.

3.5 If eGuarantee disputes the payment of Commission or the amount of Commission payable in respect of any Tenant or Lease Bond Product, eGuarantee must notify the Partner giving reasonable details of the dispute. eGuarantee is not obliged to pay Commission until the dispute is resolved, and the parties agree to work together in good faith to resolve the dispute within 30 days of eGuarantee informing the Partner of the dispute.

4.1 The Partner must:

(a) only refer a Tenant to eGuarantee for Lease Bonds Products by completing and submitting a referral on, or via, the eGuarantee website (Application);
(b) ensure that all information submitted with an Application is complete, current and accurate and not misleading or false in any way; and
(c) ensure that it has an actual authority from the Tenant to complete and submit an Application on, or via, the eGuarantee Platform. The Partner will promptly on written request from eGuarantee provide a written authority from the Tenant confirming that the Partner has authority to submit an Application on, or via, the eGuarantee Platform.

4.2 eGuarantee may, at its absolute discretion, reject or accept an Application for a Lease Bond Product.

4.3 By submitting an Application to eGuarantee, the Partner warrants and represents to eGuarantee that the Tenant has consented to the collection and use of its Personal Information for the purposes contemplated, as set out in eGuarantee’s privacy policy, and implied by the agreement, and that the Tenant has consented to receiving marketing and promotional materials from eGuarantee.

4.4 The Partner will immediately notify eGuarantee in writing on becoming aware of circumstances which may give rise to a claim under a Lease Bond Product, including, but not limited to an insolvency event, adverse legal action, or natural disaster impacting operations of the Tenant.

4.5 The Partner acknowledges that eGuarantee will contact the Tenant to distribute and facilitate management of Lease Bond Products (including, but not limited to, assisting the Tenant to complete the Application process, obtain the Tenant’s annual financial statements, with renewals, claims and cancellations with respect to eGuarantee’s Lease Bond Products) and eGuarantee may contact the Tenant for any other any promotional or marketing purposes, including informing the Tenant about goods and services that eGuarantee believes is of interest to the Tenant.

4.6 The Partner will notify the Tenant that it is a referral partner of eGuarantee and when the Partner refers to, or provides material or information in relation to, Lease Bond Products, such communications, materials or information must refer to eGuarantee and/or include a copy of eGuarantee’s trade marks.

4.7 eGuarantee grants the Partner a non-exclusive, non-transferable and royalty-free licence during the term of this agreement to include eGuarantee’s trade marks on its own promotional or marketing materials for the sole purpose of promoting Lease Bond Products in accordance with this agreement.

4.8 eGuarantee shall, at its absolute discretion, provide the Partner with reasonable quantities of marketing materials in relation to the Lease Bond Products (Marketing Materials) and the Partner will not remove or deface any eGuarantee’s trade marks on the Marketing Materials. eGuarantee may, at its sole discretion, agree to any co-branding request received from the Partner in writing, and in which case, eGuarantee shall include the Partner’s trade marks on the Marketing Materials. If the Partner requests that eGuarantee co-brand the Marketing Materials, the Partner provides eGuarantee with a non-exclusive and royalty-free licence to use and incorporate the Partner’s trade marks onto the Marketing Materials. During the Term and for a period of 12 months from the date of termination of this agreement (or, if this is held invalid, for a period of 6 months from the date of termination of the agreement), the Partner will not directly or indirectly do or say anything which may lead a Tenant referred to eGuarantee by the Partner (Referred Tenant) to terminate the Lease Bond Product or to otherwise curtail or alter their contracts, business arrangements or dealings with eGuarantee with a view to providing or procuring lease bond products (whether issued by the Partner or by a third party) for the Referred Tenant in competition with eGuarantee. The Partner acknowledges that the restraint in this clause is fair and reasonable and the parties agree that if any of the restrictions are held to be void, but would be valid if part of their wording were deleted, the restriction will apply with such deletion as may be necessary to make it valid or effective.

5.1 eGuarantee will:

(a) use its reasonable endeavours to provide Tenants with a facility to apply, receive and pay for Lease Bond Products; and [PV1.1]
(b) provide the Partner with such information and assistance as the Partner may reasonably require to comply with its obligations under this agreement.

5.2 eGuarantee will pay the Partner the Commission, provided:

(a) the Partner is appointed as Partner by the Tenant at the time the referral to eGuarantee. If a dispute arises as to whether the Partner was appointed by the Tenant, the Partner will be required to provide eGuarantee with a letter of appointment confirming the Partner / client relationship;
(b) this agreement has not been terminated by eGuarantee for breach of the agreement by the Partner at the time Commission is due to be paid to the Partner; and [PV2.1]
(c) the Partner’s compliance with the terms of the agreement. Should Commission be paid and it subsequently comes to light that the Partner was not appointed as a Partner by the Tenant at the time of issue, the Partner will refund any Commission paid plus interest at market rates to eGuarantee.

5.3 eGuarantee will give the Partner reasonable written notice of any proposed change in the prices of the Lease Bond Products, or in other terms of trade, to the nature or content of the Lease Bond Products or the eGuarantee Platform or any changes to the terms and conditions of this agreement, which eGuarantee may do so, at its discretion.

5.4 Where a Tenant referral is an existing customer of eGuarantee, eGuarantee will only pay Commission on any subsequent Lease Bond Products from the date of appointment and the payment of Commission will not apply retrospectively.

6.1 This agreement does not create any legal or fiduciary relationship between the parties.

6.2 A party, its employees, servants, or agents must not represent, convey or in any way make out to be an agent, partner, representative, employee, contractor, or affiliate of the other party.

6.3 Neither party shall have any right, authority or permission to legally bind the other party to any contract, arrangement or obligation.

7.1 Notwithstanding any other provision in this agreement:

(a) eGuarantee is not liable to the Partner for, and the Partner releases eGuarantee from, any Loss or Claim arising in connection with a Tenant or Lease Bond Product (except for the obligation to pay Commission) including without limitation any performance or non-performance of eGuarantee;
(b) eGuarantee shall not be liable to the Partner for any direct, indirect, incidental, special, consequential, or exemplary Loss; and
(c) eGuarantee’s total liability to the Partner, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the total Commission paid or payable by eGuarantee to the Partner under this agreement during the 12 months immediately preceding the date on which the claim arose.

8.1 Each party acknowledges that in the course of this agreement, it may receive Confidential Information from the other party.

8.2 Any party receiving Confidential Information shall use the Confidential Information only for the purposes of this agreement and shall not disclose it to any third party without the prior written consent of the disclosing party, or as required by law.

9.1 eGuarantee owns all Intellectual Property Rights in and to:

(a) the eGuarantee Platform, website, and all related technology;
(b) all eGuarantee trade marks, logos, branding, and Marketing Materials;
(c) the Lease Bond Products and all associated documentation; and
(d) any improvements, modifications, enhancements, derivatives, or developments of the foregoing, whether created before or during the term of this agreement (Intellectual Property). The Partner acknowledges that it acquires no ownership rights, title, or interest in any of eGuarantee’s Intellectual Property.

9.2 eGuarantee grants the Partner a non-exclusive, non-transferable, royalty-free, and revocable licence during the Term to use eGuarantee’s trademarks, Marketing Materials and other Intellectual Property solely for the purpose of referring Tenants to eGuarantee in accordance with this agreement. This licence terminates automatically upon termination of this agreement.

9.3 The Partner must not:

(a) copy, modify, adapt, or create derivative works from eGuarantee’s Intellectual Property;
(b) reverse engineer, decompile, or disassemble any of eGuarantee’s technology or systems;
(c) remove, alter, or obscure any proprietary notices on eGuarantee’s Intellectual Property; or
(d) use eGuarantee’s Intellectual Property for any purpose other than as expressly permitted by this agreement.

9.4 The Partner acknowledges that this clause 9 will remain in full force and effect notwithstanding termination of this agreement for any reason.

10.1 (Notices) all notices must be in writing. The parties agree to accept notices by email. Email Notices are taken to be read on the day they are received, unless they are received after 5 PM or not on a Business day, in which case they are deemed to be received on the next Business day.

10.2 (Further assurance) Each party must promptly at its own cost do all things (including executing all documents) necessary or desirable to give full effect to this agreement.

10.3 (Execution and Counterparts) This agreement may be executed electronically and the parties consent to the use of electronic signatures in accordance with applicable electronic transactions legislation. This agreement may be executed in any number of counterparts, each of which when executed is an original, and all of which together constitute one and the same instrument.

10.4 (Entire understanding)

(a) This agreement:

(i) is the entire agreement and understanding between the parties on everything connected with the subject matter of this agreement; and
(ii) supersedes any prior agreement or understanding on anything connected with that subject matter.

(b) Each party has entered into this agreement without relying on any representation by any other party or any person purporting to represent that party.

10.5 (Relationship) Nothing in this agreement will or is intended to establish a relationship of partnership, agency or employment between the Partner and eGuarantee, or the Partner and a Tenant, and it is the intention of the parties that any such relationship is expressly denied.

10.6 (Variation) An amendment or variation to this agreement is not effective unless it is in writing and executed by the parties.

10.7 (Assignment) The rights and obligations of each party under this agreement are personal. No party may assign, encumber or otherwise deal with such rights and obligations without the prior written consent of all other parties.

10.8 (Waiver):

(a) A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
(b) The exercise of a power or right does not preclude its exercise in the future or the exercise of any other power or right.
(c) A waiver is not effective unless it is in writing.
(d) Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.

10.9 (Governing law and jurisdiction) The law of the State governs this agreement and the parties submit to the exclusive jurisdiction of the courts of the State and the Commonwealth of Australia and agree that any lawsuit must be heard in those courts.

10.10 (Legal advice) The parties warrant that they have had a reasonable opportunity to obtain legal advice regarding the terms contained in this agreement.

10.11 (Severability):

(a) If anything in this agreement is unenforceable, illegal or void then it is severed and the rest of this agreement remains in force.
(b) If anything in this agreement is unenforceable, illegal or void in one jurisdiction but not in another jurisdiction, it is severed only in respect of the operation of this agreement in the jurisdiction where it is unenforceable, illegal or void.

11.1 In this agreement, unless the context indicates a contrary intention:

Affiliate means, in relation to a person (Principal):

(a) a person that ultimately Controls, is Controlled by, or is under common Control with, the Principal;
(b) a related body corporate of the Principal; or
(c) the spouse or family members of the Principal or the person who Controls the Principal;
(d) the trustees or beneficiaries of the Principal;
(e) any shareholder or director of the Principal; or
(f) a person who is ultimately Controlled by a person qualifying under any of the previous paragraphs of this definition.

Application has the meaning given in clause 4.1.

Business Day means a day on which banks are open for general banking business in the State, excluding Saturdays and Sundays.

Claim means a claim, action, proceeding or demand made against the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.

Commencement Date is defined in clause 1.1.

Commission means the fee payable by eGuarantee to the Partner for each Tenant who purchases Lease Bond Products and who was referred to eGuarantee by the Partner.

Confidential Information means any data or information, oral or written, treated as confidential that relates to either party’s (or, if either party is bound to protect the confidentiality of any other party, then such other party’s) business activities, technology, developments, technical processes, financial affairs, list of customers, suppliers, employees, and any knowledge gained through examination or observation of or access to the premises, samples, products, equipment, documents, data, or services, and is not generally known to the public at the time of disclosure or becomes generally known through no wrongful act of the receiving party, breach of this agreement, or breach of confidentiality by third parties.

Control means the possession, direct or indirect, of the power to direct, influence or cause the direction of the decisions, management and policies of a person or entity, whether through the ownership of voting securities, by contract or otherwise, and the terms Controls, Controlled by, and under common Control with will be construed accordingly.

Intellectual Property is defined in clause 9.

Intellectual Property Rights means:
(i) all rights conferred by statute, common law or in equity and subsisting anywhere in the world in relation to:
(ii) registered and unregistered copyright;
(iii) inventions (including patents, innovation patents and utility models);
(iv) confidential information (including the right to enforce an obligation to keep the information confidential), trade secrets, technical data and know-how;
(v) registered and unregistered designs; and
(vi) registered and unregistered trademarks;
(vii) any other rights resulting from intellectual activity in the industrial, commercial, scientific, literary or artistic fields which subsist or may hereafter subsist;
(viii) any licence or other similar right from a third party to use any of the above;
(ix) any applications and the right to apply for registration of any of the above; and
(x) any rights of action against any third party in connection with the rights included in paragraphs (i) to (ix) above, including any right to claim (and retain) any damages and other remedies (including an account of profits) for infringement,
but excluding moral rights and similar personal rights which by law are non-assignable.

Lease Bond Products is defined in paragraph A of the Background section.

Loss means a damage, loss, cost, expense or liability incurred by the person concerned however arising, including penalties, fines, and interest and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable but does not include special, indirect or consequential loss.

Marketing Materials is defined in clause 4.8.

Older Lease Bond Arrangements is defined in clause 1.4(a).

Personal Information has the same meaning as in the Privacy Laws.

Privacy Laws mean the Privacy Act 1988 (Cth).

Referred Tenant is defined in clause 4.8.

State means New South Wales, Australia.

Tenant or Tenants means a person (including a body corporate, partnership, or other legal entity) who:

(a) is referred by the Partner to eGuarantee for Lease Bond Products; and
(b) submits an Application for, or purchases, a Lease Bond Product from eGuarantee.

Term is defined in clause 1.1.

11.2 In this agreement, unless the context indicates a contrary intention:

(a) (headings) clause headings are inserted for convenience only and do not affect the interpretation of this agreement.
(b) (party) a reference to a party to a document includes that party’s personal representatives, executors, administrators, successors, substitutes (including persons taking by novation) and permitted assigns.
(c) (including) including and includes (and any other similar expressions) are not words of limitation, and a list of examples is not limited to those items or to items of a similar kind.
(d) (corresponding meanings) a word that is derived from a defined word has a corresponding meaning.
(e) (rules of construction) neither this agreement nor any part of it is to be construed against a party on the basis that the party or its lawyers were responsible for its drafting.
(f) (legislation) a reference to any legislation or provision of legislation includes all amendments, consolidations or replacements and all regulations or instruments issued under it.
(g) (time and date) a reference to a time or date in connection with the performance of an obligation by a party is a reference to the time and date in Sydney, Australia, even if the obligation is to be performed elsewhere.
(h) (writing) a reference to a notice, consent, request, approval or other communication under this agreement or an agreement between the parties means a written notice, request, consent, approval or agreement.
(i) (Australian currency) a reference to dollars or $ is to Australian currency.