Bloomtools Pty Ltd
ABN 53 127 980 009
Referral Partner Agreement
This Agreement governs the relationship between Bloomtools Pty Ltd ABN 53 127 980 009 of Level 3, 2 Boston Court, Varsity Lakes, Queensland, 4227 (“Bloomtools”) and the Partner named in the Schedule.
1.1 This Agreement will commence on the Commencement Date, and unless terminated in accordance with this Agreement, will continue for the Term.
2 Appointment and Licence
2.1 Bloomtools grants the Partner a free, non-exclusive, non-transferable and revocable license (“License”) to market the services and software during the Term in the Territory.
2.2 The Partner must not market or promote any of the Services to any party that is outside the Territory without Bloomtools’ prior written permission.
2.3 The Partner acknowledges that Bloomtools’ ability to permit Partners to market or promote Services outside of the Territory may be governed by other agreements by which Bloomtools is bound, and that a breach by the Partner of clause 2.2 may cause Bloomtools to suffer loss, damage or liability under those other agreements.
3 Invoicing and Payment
3.1 The parties agree that for all Services (excluding Monthly Service Fees) provided for any End User or at the request or direction of the Partner or any End User and the licensing of the Software:
- Bloomtools will be entitled to invoice the Partner the Wholesale Fees, calculated at the rates specified in the Wholesale Price List; and
- the Partner may not modify the End User Fees to End Users for any Services and/or Software without written approval from Bloomtools.
- The Partner must pay Bloomtools the invoiced amounts for any Wholesale Fees due on the due date.
If Bloomtools does not receive payment of any Wholesale Fees by the due date, then without prejudice to its rights under this Agreement or generally, Bloomtools may:
- charge the Partner a $30 administration charge; and
- charge the Partner interest on the amount outstanding at 2% above Westpac’s overdraft rate (as current from time to time); and
- by written notice to the Partner, suspend the provision of any or all Services and defer any dates for delivery, until after the Partner has paid to Bloomtools the outstanding amount and interest (and if Bloomtools requires it, advance payment for those or other Services).
- Direct debit from the Partner’s nominated bank account the overdue Wholesale Fees.
3.2 Snap will invoice and collect the payments for all of the Monthly Service Fees, and pay the Wholesale Fees to Bloomtools.
4 Partner Obligations
4.1 The Partner shall throughout the Term:
- actively promote the Software and the Services in the Territory and use all reasonable endeavours to meet or exceed the Minimum Referral Targets on a monthly basis;
- allocate and apply such resources and personnel as reasonably required from time to time, to promote the Software and Services and to perform its obligations under this Agreement;
- conduct all of its business in its own name and not in the name of Bloomtools;
- act in good faith at all times to Bloomtools and provide such assistance and co-operation as Bloomtools reasonably requests;
- not engage in any conduct that is deceptive, misleading or unethical or that may be detrimental to Bloomtools or its business or Intellectual Property Rights; and
5.1 The Partner warrants and represents to Bloomtools that:
- the Partner will not misrepresent the functionality, operating environment requirements, performance or other aspects of the Software or any Services; and
- all information supplied by the Partner is, and will be, to the best of its knowledge, in all material respects, true and correct, and the Partner will promptly inform Bloomtools in writing, giving details of any changes in such information.
5.2 Except for express undertakings to indemnify and any warranties set out in this Agreement, to the extent permitted by the law, each party expressly excludes all conditions and warranties whether express or implied, statutory or otherwise.
5.3 Despite any other provision in this Agreement, in no event will Bloomtools be liable to any party including the Partner for any indirect, punitive, special, incidental or consequential damage in connection with or arising out of this Agreement (including for loss of profits, use, data, or other economic advantage), regardless of how it arises, including breaches of this Agreement or in tort, and even if Bloomtools has been previously advised of the possibility of such damage.
5.4 In no event will Bloomtools’ total aggregate liability in respect of all claims arising under or pursuant to this Agreement exceed the amount paid to Bloomtools under this Agreement in the 12 month period prior to the date the liability arose, regardless of whether those claims arise out of a single event or a number of different events.
5.5 Bloomtools’ liability arising out of or in connection with this Agreement (whether in contract, equity, negligence, tort or for breach of statute or otherwise) will be reduced by the extent, if any, to which the Partner or any other person contributed to the loss.
5.6 The Partner shall indemnify Bloomtools and keep it indemnified from and against any liability, loss, cost, damage or expense arising, whether directly or indirectly, from a breach of this Agreement by the Partner or the negligence of the Partner, its agents, employees or sub-contractors, except to the extent such action, claim or demand was caused directly by Bloomtools’ negligence and/or breach of this Agreement.
5.7 This clause survives the termination of this Agreement for any reason.
6 Client Transfers
6.1 Should the Partner enter into a Premium or Standard Reseller Agreement with Bloomtools;
- any End User that has been referred to Bloomtools under this agreement will be transferred into the Partners Administration System once one year has elapsed from the date the Client entered into the End User Agreement,
- any Transferred Clients will adopt the wholesale pricing of the selected Reseller Agreement.
- this Agreement will be terminated in accordance with the clause 10.
7 Partner Acknowledgements
7.1 The Partner acknowledges that:
- the Software and the provision of the Services will not be uninterrupted or error free;
- Bloomtools reserves the right to perform scheduled and unscheduled maintenance on the Software and its servers at any time; and
8 Intellectual Property Rights
8.1 Without prejudice to clause 8.2, all Intellectual Property Rights in the Software and the Documentation remain with Bloomtools.
8.2 Any Intellectual Property Rights in material created by the Bloomtools or the Partner pursuant to this Agreement, including modifications to Software, vest in and remain with Bloomtools.
8.3 The Partner shall, on Bloomtools’ request, do all things reasonably necessary at Bloomtools’ reasonable expense, including the execution of any documentation, to give effect to and provide for ownership of the Intellectual Property Rights as specified in this clause 8.
8.4 This clause 8 survives the termination of this Agreement for any reason.
9.1 A party shall not, without the prior written approval of the other party, disclose the other party’s Confidential Information, or use the other party’s Confidential Information (other than for the purposes of performing this Agreement).
9.2 A party shall not be in breach of clause 9.1 in circumstances where:
- the Confidential Information is or becomes public knowledge other than by breach any obligation of confidentiality;
- the Confidential Information has been independently acquired by the party without a confidentiality obligation;
- the party is legally compelled to disclose the other party’s Confidential Information; or
the disclosure is only to those of its employees, subcontractors or agents who:
- have a need to know (and only to the extent that each has a need to know); and
- have been directed to keep confidential that Confidential Information.
9.3 Each party shall take all reasonable steps to ensure that its employees, subcontractors and agents do not make public or disclose the other party’s Confidential Information, or use that Confidential Information for any purpose other than to perform this Agreement.
9.4 Each party acknowledges that damages may not be a sufficient remedy for breach of this clause and that the other party has the right to seek injunctive relief to restrain a breach or an anticipated breach by the other.
9.5 This clause survives the termination of this Agreement for any reason.
10.1 Either party may terminate this Agreement by written notice if the other party:
- breaches a material term of this Agreement that is not capable of remedy;
- breaches a material term of this Agreement that is capable of remedy, and does not remedy that breach within 30 days of the terminating party giving notice to the other party to rectify the breach;
- becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration and/or is unable to pay its debts as and when they fall due; or
- ceases or threatens to cease conducting its business in the normal manner (which may include, in the case of the Partner, ceasing to be a franchisee of Snap).
10.2 Bloomtools may terminate this Agreement at any time by written notice to the Partner if:
- the Partner fails to meet the Minimum Referral Targets;
- the Partner fails to pay any outstanding invoices within 30 days of the due date.
- Bloomtools gives the Partner a written notice specifying the failure; and
- the Partner fails to remedy the failure within two (2) months after the notice is given.
10.3 On termination of this Agreement for any reason:
- all licences granted under this Agreement automatically cease;
- Bloomtools is entitled to invoice the Partner for services provided (including to any End User) but not yet invoiced;
- all licences granted to End Users will automatically end (except to the extent that the Partner has paid to Bloomtools any prepaid sub-licence fees and fees for Support Services and Services from End Users); and
- each party must promptly return to the other (or at the other party’s direction destroy or erase) all copies of the other party’s Confidential Information as well as the other party’s intellectual property licensed under this Agreement.
- The Partner shall not be entitled to receive any Referral Fees or any other payments under this Agreement other than payments earned or accrued prior to termination of this Agreement
11 General Provisions
11.1 Force Majeure
The obligations of Bloomtools, the Bloomtools Franchisee or the Partner to perform in accordance with this agreement will be suspended for the duration of any delay arising for circumstance outside it control, including but not limited to war, accident, fire, storm, flood, earthquake,
labour dispute, site interruption or internet downtime..
- Subject to clause 11.2
- a party must not transfer or encumber any right or liability under this Agreement without the prior consent of each other party which must not be unreasonably withheld, except where this Agreement provides otherwise.
- Bloomtools may assign its rights under this Agreement to a Related Entity, and may subcontract its operations to meet operational requirements.
11.3 Governing Law and Jurisdiction
This agreement shall be governed by the laws of the Commonwealth of Australia, without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in Queensland, Australia..
Any amendment to this Agreement has no force or effect, unless effected by a document executed by the parties.
11.5 Continuing performance
- The provisions of this Agreement do not merge with any action performed or document executed by any party for the purposes of performance of this Agreement.
- Any representation in this Agreement survives the execution of any document for the purposes of, and continues after, performance of this Agreement.
Any indemnity agreed by any party under this Agreement:
- constitutes a liability of that party separate and independent from any other liability of that party under this Agreement or any other agreement; and
- survives and continues after performance of this Agreement.
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.
The rights of a party under this Agreement are cumulative and not exclusive of any rights provided by law.
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.
11.9 Party as Trustee
If a party enters into this Agreement as trustee of a trust, the party and its successors as trustee of the trust will be liable under this Agreement both in their personal capacity and as trustee of the trust. Nothing releases the party from any liability in its personal capacity.
11.10 Multiple Parties
An agreement, representation or warranty on the part of two or more persons binds them jointly and severally.
12.1 In this Agreement unless the context otherwise requires:
Administration System means the online software tool, access to which is provided to the Partner by Bloomtools, for the purpose of the Partner managing customers, invoices, project management, quoting and sales;
Commencement Date means the date specified in the Schedule;
Confidential Information means the information of or relating to either of the parties or to its licensors (whether or not in a material form and whether or not disclosed or learned prior to the date of this Agreement) that by its nature is confidential, is designated as confidential and/or which the receiving party knows or reasonably ought to know is confidential and includes:
- the design, specifications and content of the Software and the Administration System;
- information relating to the suppliers, licensors, personnel, policies, or business strategies of the party;
- information relating to the terms upon which the Software is to be resold, marketed, hosted, supported and used, and Services provided, pursuant to this Agreement;
Documentation means the manuals and other materials that describe the specifications, features, operating characteristics, operation and use of the as updated by Bloomtools from time to time;
End User means a customer of the Partner that enters into an End User Agreement in accordance with this Agreement;
End User Agreement means a written agreement between the Snap and the End User for the provision of Software or Services (or a combination thereof) that is entered into;
End User Fees means the Fees payable by an End User for the Services provided to that End User under an End User Agreement;
End User Invoices are invoices issued by the Partner to End Users for End User Fees, using the Administration System;
Error means a defect in the Software causing the Software not to operate in accordance with the Documentation;
Force Majeure means a circumstance beyond the reasonable control of a party and which results in the party being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited to acts of God, lightning strikes, earthquakes, floods, droughts, storms, tempests, mud slides, washaways, explosions, fires and any natural disaster; or acts of war, acts of public enemies, terrorism, rights, civil commotion, malicious damage, sabotage and revolution;
GST means any tax, levy, charge or impost implemented under the A New Tax System (Goods and Services Tax) Act (GST Act) or an Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Act;
Hosting Services means services relating to the hosting a website for an End User on a server managed or controlled by or on behalf of Bloomtools pursuant to an End User Agreement;
Intellectual Property Rights includes copyright, trade mark, design, patent, semiconductor or circuit layout rights;
Minimum Referral Targets means the monthly target specified in the Schedule;
Partner means the member of the Snap Network referred to in the Schedule;
Related Entity means a related entity as defined by the Corporations Act 2001 (Cth);
Monthly Service Fees – means the Services in Annexure A under “Monthly Service Fees”.
Services means Hosting Services, Support Services and other services specified in Annexure A, and such further or other services as Bloomtools may notify to the Partner in writing from time to time;
Snap means the Partner’s franchisor, being Snap Franchising Limited ACN 009 016 013;
Software means the software specified in Annexure A, and any other software licensed by Bloomtools from time to time pursuant to this Agreement;
Partner Agreement means this Agreement including any schedule or annexure to it;
Term means the term specified in the Schedule;
Territory means the territory specified in the Schedule;
Transferred Clients – Any End Users that have been migrated from the Bloomtools Administration System into an Administration System supplied to the Partner.
Wholesale Fees means the fees and charges which Bloomtools may charge the Partner for Software and Services calculated in accordance with the Wholesale Price List; and
Wholesale Price List means the price list as set out in Annexure A.