Referral Agreement Terms and Conditions
These Referral Agreement Terms and Conditions form part of the Referral Agreement between Big Datr and You (the Referrer), which sets out the terms on which You may refer customers to Big Datr for Subscriptions, and become entitled to the payment of referral fees for each Accepted Referral.
1. Definitions and Interpretation
In this Agreement, unless the context otherwise requires:
Accepted Referral has the meaning given to that term in clause 5.3 of this Agreement;
Agreement means the Referral Agreement between Big Datr and You, comprising:
Part 1: Key Agreement Details;
Part 2: these Referral Agreement Terms and Conditions; and
Part 3: Signing Section,
and including any schedule, annexure, attachment or exhibit to those documents
Applicable Laws means all laws, including legislation and any principle or rule of common law or equity, relevant to the activities that the Referrer may perform in connection with this Agreement;
Conversion Period has the meaning given to that term in the Schedule.
Customer means a customer that is referred by the Referrer to Big Datr in accordance with this Agreement;
Effective Date means the Effective Date set out in the Key Agreement Details;
Fees means the fees payable by Big Datr to the Referrer for an Accepted Referral in accordance with clause 6 of this Agreement;
GST means the same as in the GST Law, and any other goods and services tax or any tax, levy, charge or impost which applies in a similar way;
GST Law has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and words defined in the GST Law (including 'supply' and 'taxable supply') have the same meaning in this Agreement unless the context makes it clear that a different meaning is intended;
Intermediary means any person who introduces Customers to the Referrer, either directly or through another intermediary irrespective of the nature of the relationship between the Referrer and that person;
Key Agreement Details means the Key Agreement Details set out in Part 1 of this Agreement;
Parties means the parties to this Agreement, namely Big Datr and the Referrer;
Referral has the meaning given to that term in clause 3.1;
Referrer means the Party whose details are set out in Part 1 of this Agreement; You and Your have a corresponding meaning; and
Subscriptions has means the subscriptions offered by Big Datr to an enterprise analytics operating platform, applications and their associated functionalities, modules, feature sets, software, materials and documentation that is owned, licenced and maintained by Big Datr and its Affiliates.
In this Agreement unless the context otherwise requires:
(a) clause and subclause headings are for reference purposes only;
(b) the singular includes the plural and vice versa;
(c) words denoting any gender include all genders;
(d) reference to a person includes any other entity recognised by law and vice versa;
(e) where a word or phrase is defined its other grammatical forms have a corresponding meaning;
(f) any reference to a Party to this Agreement includes its successors and permitted assigns;
(g) any reference to any agreement or agreement includes that agreement or agreement as amended at any time;
(h) the use of the word includes or including is not to be taken as limiting the meaning of the words preceding it;
(i) the expression at any time includes reference to past, present and future time and the performance of any action from time to time;
(j) an agreement, representation or warranty on the part of two or more persons binds them jointly and severally;
(k) reference to an exhibit, annexure, attachment or schedule is a reference to the corresponding exhibit, annexure, attachment or schedule in this Agreement;
(l) reference to a provision described, prefaced or qualified by the name, heading or caption of a clause, subclause, paragraph, schedule, item, annexure, exhibit or attachment in this Agreement means a cross reference to that clause, subclause, paragraph, schedule, item, annexure, exhibit or attachment; and
(m) reference to a statute includes all regulations and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated.
2. Duration and termination
2.1 This Agreement commences from the Effective Date and shall continue until terminated in accordance with its terms.
2.2 Big Datr may terminate this Agreement at any time and at its own discretion.
2.3 The Referrer acknowledges that Big Datr has not represented that these arrangements with the Referrer will continue for any period of time, and the Referrer’s ability to refer Customers is at the absolute option of Big Datr.
2.4 The Referrer may terminate this Agreement immediately on the occurrence of any of the following events:
(a) a breach by Big Datr of its obligations under this Agreement; or
(b) the insolvency, the liquidation, the receivership, or the external administration of Big Datr.
3.1 The Referrer is authorised, on a non-exclusive basis to refer Customers to Big Datr after having made those Customers aware of the general nature of Big Datr’s business and the Subscriptions they offer, (Referral). Either Party to this Agreement shall be permitted to enter into referral arrangements identical to or comparable with this Agreement with any other person or entity.
3.2 Big Datr may amend, suspend or change in any way the nature of the Subscriptions it offers to Customers from time to time.
3.3 The Referrer is an independent contractor, and is not an agent or employee of Big Datr.
3.4 The Referrer must, in making a referral and in performing (or purportedly performing) its obligations under this Agreement, comply with all Applicable Laws, and not do anything that may damage the character, integrity or reputation of Big Datr.
4. Duties of the Referrer
4.1 The Referrer must use its best endeavours to ensure that information provided in relation to Customers is accurate.
4.2 Upon request by Big Datr, the Referrer must provide any reasonable information requested by Big Datr regarding all the circumstances which relate to the introduction of a Customer including advertising, meetings, diary notes, agreements, and the personnel involved.
4.3 The Referrer warrants that it will not offer or provide any product reasonably similar to or substantially the same as the Subscriptions to any Customers (or potential Customers) without obtaining Big Datr’s prior written consent (which may be granted or withheld in Big Datr’s absolute discretion).
4.4 The Referrer must not make any warranty or representation in relation to any Subscriptions provided by Big Datr.
4.5 The Referrer is solely responsible for the conduct and remuneration of any Intermediaries, and will be liable for any breach by any Intermediary.
5. Customer management
5.1 The provisions of this Agreement will not apply where:
(a) Big Datr or any of its associated entities already have an existing substantive relationship with the Customer; or
(b) where the Referrer refers any potential Customer to Big Datr and that referral does not yield any sales to Big Datr from that potential Customer within the Conversion Period.
5.2 The Referrer must use its reasonable efforts to establish contact between the Customer and Big Datr. Once contact has been established, Big Datr will communicate directly with the Customer in relation to the Subscription to be provided.
5.3 Big Datr shall have the right, but not the obligation to accept or decline any referral. If Big Datr determines to accept a referral and is able to sell a Subscription to that referred Customer, then Big Datr shall inform the Referrer in writing of its decision (each an Accepted Referral) by confirming the Accepted Referral.
5.4 The Customer will remain a Customer of the Referrer at all times but may also become a Customer of Big Datr.
5.5 Big Datr reserves the right to decline any Customer. If it chooses to do so, it will notify the Referrer.
6.1 Big Datr must pay to the Referrer the Fees for each Accepted Referral.
6.2 The Fees will be determined and paid in accordance with the Schedule.
6.3 If an Accepted Referral is charged less than Big Datr’s Fees as agreed for that Accepted Referral, Big Datr may reduce the Fees accordingly.
6.4 If any fees or other form of remuneration paid to Big Datr by a Customer are clawed back, Big Datr reserves the right to recover the Fee paid to the Referrer in relation to that Accepted Referral.
6.5 The Referrer must disclose to each Customer any Fees or benefits which the Referrer and any associate of the Referrer may receive under this Agreement.
7. Tax invoices
7.1 Subject to clause 7.2, any fees payable under this Agreement are inclusive of all Australian stated, federal, sales, excise, personal property, and other taxes, stamp duty, customs and other duties or levis.
7.2 Each Party warrants to the other that it is registered for GST purposes, and that its Australian Business Number (ABN) is the number set out in this Agreement.
7.3 A recipient created tax invoice must be issued to the Referrer by Big Datr within 28 days of Big Datr determining the value of the taxable supply. The Referrer must not issue a tax invoice in relation to taxable supplies made to Big Datr by the Referrer under this Agreement.
8.1 All confidential information relating to the other Party's business including, but not limited to, any financial information, operations, know-how, business plans, business activities or any other information of the other Party acquired by any Party under this Agreement must be treated as confidential and must not be disclosed, divulged, or otherwise placed at the disposal of any third party not being a Party to this Agreement or a related corporation to a Party to this Agreement, unless the other Party has given its written consent to the disclosure or the disclosure is required by law.
8.2 The obligation to maintain confidentiality in accordance with clause 8.1 is a continuing obligation of the Parties and this clause 8.2 shall survive termination of this Agreement.
9.1 The Referrer indemnifies Big Datr against all or any loss or damage suffered by Big Datr as a consequence of the Referrer or any Intermediary failing to observe the provisions of this Agreement, or any Applicable Laws.
9.2 Big Datr acting reasonably may determine an amount due to Big Datr under this indemnity or under any other clause of this Agreement, and may deduct that amount from any amount due to the Referrer and (to the extent not deducted) require the Referrer to pay that amount to Big Datr.
10. General provisions
10.1 Each Party must pay its own costs in relation to the negotiation, preparation, execution and performance of this Agreement.
10.2 The Referrer must not transfer any right or liability under this Agreement without the prior written consent of Big Datr, which consent may be granted or withheld in Big Datr’s absolute discretion.
10.3 In the event of any conflict between the Key Agreement Details and these Referral Agreement Terms and Conditions, the Key Agreement Details will prevail to the extent of that conflict only.
10.4 This Agreement is governed by and construed under the laws of the State of Victoria. The Parties submit to the exclusive jurisdiction of the Courts of the State of Victoria and the Courts entitled to hear appeals from those Courts.
10.5 This Agreement expresses and incorporates the entire agreement between the Parties in relation to its subject matter, and supersedes and excludes any prior or collateral negotiation, understanding, communication or agreement by or between the Parties in relation to that subject‑matter.
10.6 Any notice to or by a Party under this Agreement:
(a) may be served by delivery in person, by post or by email to the address or email address of the recipient specified in this provision or most recently notified by the recipient to the sender;
(b) must be in writing and signed by either:
(i) the sender or, if a corporate Party, an authorised officer of the sender; or
(ii) the Party’s solicitor;
(c) is effective for the purposes of this Agreement upon delivery to the recipient or production to the sender of a email transmittal confirmation receipt before 4.00 pm local time on a day in the place in or to which the written notice is delivered or sent, or otherwise at 9.00 am on the next day following delivery or receipt; and
(d) must use the addresses for service for notices of the Parties as specified in the Key Agreement Details.
10.7 Any amendment to this Agreement has no force or effect, unless effected by an agreement executed by the Parties.
10.8 Any failure by any Party to exercise any right under this Agreement does not operate as a waiver and the single or partial exercise of any right by that Party does not preclude any other or further exercise of that or any other right by that Party.
10.9 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.