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TERMS AND CONDITIONS
1. Definitions.
1.1 “Products” means the Ezehire Online Services and products
listed in Appendix A hereto.
1.2 “Prospects” means those third parties (located in either the
Australia or Malaysia) who have been referred to Ezehire by the Referral
Agent and who are accepted by Ezehire for whom Ezehire may pay a referral fee
in accordance with the terms and conditions of this Agreement. Such
prospective customer shall remain a “Prospect” hereunder for a period of six
(6) months following such referral and acceptance by Ezehire, provided this
Agreement remains in effect.
1.3 "Services" means those services generally marketed by
Ezehire which are set forth in Appendix A hereto.
2.
Referral.
During the term of this Agreement, The Referral Agent may, from
time to time, refer to Ezehire prospective customers for the Products and
Services. Before a prospective customer shall be deemed a Prospect and before
The Referral Agent may become eligible to receive a referral fee for such
referral, The Referral Agent will complete and submit a registration form for
each prospective customer through Ezehire applicable web form on its web
site. Ezehire will make commercially reasonable efforts to accept or deny
such registration form within seven (7) business days after its receipt. If
the prospect is an existing client of Ezehire or has been referred by another
referral agent then Ezehire may deny such registration and will notify the
Referral Agent within 7 days. If the Referral Agent does not receive such
notification from Ezehire that a prospective customer is denied, should
assume that the registration has been accepted. A Prospect will be limited to
the particular division or buying unit and location registered by The
Referral Agent. If requested by Ezehire (either verbally or in writing), The
Referral Agent will provide the assigned Ezehire account manager with a
personal introduction to the Prospect or Prospect’s contact person. Upon
written request by The Referral Agent, Ezehire will make available to The
Referral Agent reasonable quantities of any generally available marketing and
sales literature and brochures for the Products and
Services.
3. Referral Fees.
For prospects or clients referred by The Referral Agent during
the term of this Agreement, subject to the limitation provided below, Ezehire
shall pay to The Referral Agent the applicable referral fee as set forth in
Appendix A. Such referral fees will be paid within sixty (30) days after
Ezehire collection of the payment or deposit on payments have been received
from the Prospect, provided such fees are collected by Ezehire during the
term of this Agreement or within sixty (30) days thereafter. Notwithstanding
the foregoing, referral fees shall only be paid with respect to the Products
and/or Services referred to Ezehire for such Prospect on the initial
registration form submitted by The Referral Agent and accepted by Ezehire.
The Referral Agent agrees that it shall not be entitled to any additional
referral fees with respect to any subsequent referral, with respect to that
particular Prospect, or any additional purchases made by that particular
Prospect of the Products or Services (e.g., additional purchases, ongoing
maintenance, additional licenses) which were the subject of the referral as
indicated on the initial registration form.
4.
Term and Termination.
This Agreement will be effective on the Effective Date specified
below and will remain in effect until terminated by a party. Either party may
terminate this Agreement, without cause, on fifteen (15) days prior notice.
Notwithstanding the foregoing, either party may terminate this Agreement
immediately upon notice in the event the other party breaches any material
term or condition contained in this Agreement. Sections 5, 6, 7 and 8 survive
termination or expiration of this Agreement.
5. Confidentiality.
The Referral Agent acknowledges that it may receive confidential
information relating to intellectual property, trade secrets or other types
of information from Ezehire including, without limitation, documentation,
marketing plans, marketing strategies and identities of customers and
prospective customers, operational material (the “Confidential Information”).
The Referral Agent agrees execute a confidentiality agreement to hold the
Confidential Information in confidence and agrees to return any tangible and
all Confidential Information to Ezehire upon any termination of this
Agreement or at any other time upon Ezehire request. The Referral Agent may
disclose its relationship with Ezehire to any third parties it deems
appropriate, but will not disclose the specific terms stated in this
Agreement.
6. Representations by The Referral Agent.
The Referral Agent represents that, as of the Effective Date for
the purposes of and throughout the term of this Agreement, it is
either
(1) A Corporation in the business of offering and providing
referrals to Ezehire for equipment hire, financial services, sales,
outsourcing and other services, opportunities or products offered by Ezehire
or has an established sales force to do so.
(2) An individual, an association, a trade group, non-profit
organisation, that has endorsed Ezehire Products or Services and has
recommended such Products or Services to its contacts, associates, clients,
customers or members.
(3) A customer, Associated business or client of Ezehire taking
up a Referral Agency.
The Referral Agent agrees to make no representations or
warranties regarding the Product or Services except those contained in
Ezehire published materials. The Referral Agent shall use Ezehire trade name,
trademarks and service marks solely in connection with its registration of
Prospects hereunder, and in strict conformance with Ezehire instructions and
guidelines. The Referral Agent agrees to comply with all applicable local
laws and requirements for participating in this Referral Agent Program
including, without limitation, any privacy or data protection requirements
such as obtaining the Prospect's consent (in a manner approved by local law)
to forward the Prospect's personal data to Ezehire for the purpose of Ezehire
(or a Ezehire reseller) soliciting and marketing to the
Prospect.
7. Limitation of Liability.
Ezehire and its affiliated companies shall have no liability
whatsoever, under any circumstances, for special, indirect, consequential,
incidental or exemplary damages or for lost profits, or for claims against
the referral agent by third parties, whether based on tort or breach of
contract claims or on any other basis, even if it has been advised of the
possibility of such damages. The maximum liability of Ezehire and its
affiliated companies shall be limited in all events to the amounts payable by
Ezehire to the referral agent with respect to the specific product(s) or
service(s) upon which the claim of liability is made, and in no event shall
the aggregate exceed the sum of ten thousand Australian dollars
(AUD$10,000.00). The parties acknowledge that they have bargained for and
agree to the foregoing limitations of liability and that they are an integral
part of the consideration for this agreement.
8. Miscellaneous.
8.1 The relationship between The Referral Agent and Ezehire
established by this Agreement is that of Referral Agent only. The Referral Agent
and Ezehire will each conduct its respective business at its own initiative,
responsibility and neither party will have any authority to incur any expense or
obligations on behalf of the other.
8.2 All notices required or permitted under this Agreement will
be made in writing and will be deemed to have been duly given if delivered
personally or sent by registered or certified mail, to the other party at its
notice address set forth herein or such other notice address as specified in
writing by a party. In addition, Ezehire may provide notice to The Referral Agent
(including, without limitation, notice to terminate the Agreement) via email or by
facsimile. The Referral Agent’s notice address, email, and facsimile are set forth
below. Ezehire notice address is GPO Box 111 Brisbane Qld 4001.
8.3 This Agreement will be governed by, construed, and
interpreted in accordance with the laws of the State of Queensland,
Australia.
8.4 The section headings throughout this Agreement are for
reference purposes only, and the words contained therein will in no way be held to
explain or aid in the interpretation, construction, or meaning of the provisions of
this Agreement.
8.5 Neither party will have any liability for damages or
non-performance under this Agreement due to any causes beyond that party's
reasonable control.
8.6 The Referral Agent may assign this Agreement with the prior
consent of Ezehire which shall not be unreasonably withheld.
8.7 No waiver of any breach of any provision of this Agreement
will constitute a waiver of any prior, concurrent, or subsequent breach of the same
or any other provisions hereof, and no waiver will be effective unless made in
writing and signed by an authorized representative of the party making such waiver.
If any provision in this Agreement is found by a competent judicial body to be
unenforceable, such provision will be deemed severed from this Agreement, while the
balance of this Agreement will remain in full force and effect.
8.8 This Agreement, including Appendix A and the Ezehire Privacy
Policy, contains the entire agreement between the parties and supersedes all
previous agreements and proposals, oral or written, and all negotiations,
conversations, or discussions between the parties related to the subject matter of
this Agreement.
8.9 The parties have required that this Agreement and all
documents relating thereto be drawn up in the English language.
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