1. PRIVACY
1.1 The Consultant must:
(a) observe all privacy laws in respect of all information:
(i) disclosed to it by the Company or any Contact or Applicant; or
(ii) collected by the Consultant under this agreement or from any Contact or Applicant;
(b) only use such information for the purpose of fulfilling its obligations pursuant to this agreement or as required by any law;
(c) use its best endeavours to ensure all such information is protected against misuse, or loss or against unauthorised access, use, modification or disclosure and that only authorised personnel have access to such information; and
(d)follow any direction from the Company in respect of such information.
2. Consultant’s Provided Facilities AND Company’s Provided Facilities
2.1 Facilities
To enable the Consultant to carry out the Services:
(a) the Consultant agrees to provide to itself the Consultant’s Provided Facilities at its own expense; and
(b) the Company will make available the Company’s Provided Facilities to the Consultant, subject to clauses 2.2 and the Company will make available the Company's Provided Facilities to the Consultant, subject to clause 2.2.
2.2 Company’s Provided Facilities
(a) The Consultant will, at its own expense:
(i) only use the Company’s Provided Facilities:
(1) in accordance with the terms of this agreement and to the extent necessary to perform the Services; and
(2) in a careful and proper manner; and
(3) in compliance with:
A. all laws, rules, ordinances, statutes regarding the use and maintenance of the Company’s Provided Facilities; and
B. the Company’s directions;
(ii) keep and maintain the Company’s Provided Facilities:
(1) in clean and good working order and repair; and
(2) in respect of any Electronic Facilities (including all data contained within such facilities), secure, password protected (with regular updates), free from corruption or virus, system updated and fully subscribed. If any of the Company’s Provided Facilities is lost, damaged or compromised, the Consultant shall:
A. immediately advise the Company of the loss, damage or compromise; and
B. replace the lost, damaged or compromised facilities with the same or with property that is at least of the same quality (or pay to the Company the reasonable cost and expense of replacing or repairing such facilities).
(b) The Consultant must return all Company’s Provided Facilities immediately:
(i) on demand by the Company; or
(ii) on termination of this agreement.
2.3 Consultant’s Provided Facilities
(a) The Consultant represents and warrants that the Consultant’s Provided Facilities are, at the Commencement Date and will remain for the duration of this agreement:
(i) in clean and good working order and repair; and
(ii) in respect of any Electronic Facilities (including all data contained within such facilities), secure, password protected (with regular updates), free from corruption or virus, system updated and fully subscribed.
(b) The Consultant represents and warrants that the use of the Consultant’s Provided Facilities does not infringe any property or other right of any third party in respect of the Consultant’s Provided Facilities.
3. Fees
Upon execution of this agreement, the Consultant must pay the Company the associated fees.
4. GST
4.1 Interpretation
Except where the context suggests otherwise, words and expressions have the meanings given to them by the GST Act.
4.2 Amounts exclude GST
Unless otherwise expressly stated, all amounts stated to be payable under this agreement exclude GST.
4.3 Additional amount for GST
(a) If GST is imposed on any supply made under or in accordance with this agreement, then any party (Recipient) required to provide consideration to another party (Supplier) for that supply will pay to the Supplier an additional amount equal to the GST payable on or for the taxable supply. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with this agreement, subject to the Supplier giving a tax invoice to the Recipient.
(b) If this agreement requires a party to pay for, reimburse or contribute to any expense, loss, indemnity or outgoing (Reimbursable Expense) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party will be the sum of:
(i) the amount of the Reimbursable Expense less the input tax credits (if any) to which the other party is entitled in respect of the Reimbursable Expense; and
(ii) if the other party's recovery from the first party is a taxable supply, any GST payable in respect of that supply.
5. Relationship
5.1 Nature of relationship
The parties acknowledge and agree that their relationship is one of principal and independent contractor, not employer and employee, principal and agent, joint venturers or partners and that:
(a) no employment relationship will arise between the Consultant and the Company as a result of this agreement; and
(b) the Consultant does not have the right or authority to act on behalf of or bind the Company and will not indicate to any third party that it has that right or authority unless expressly authorised by the Company in writing.
5.2 Consultant acknowledgements
The Consultant acknowledges and agrees that it is not entitled to any Entitlements from the Company
6. Assignment
6.1 Company Assignment
The Company may assign the benefit of this agreement, immediately effective upon notice to the Consultant.
6.2 Consultant Assignment
The Consultant may not assign the benefit of this agreement.
7. RELEASE AND INDEMNITY
The Consultant is liable for, and releases, indemnifies and holds harmless the Company from any Loss incurred or suffered by the Company or any Related Entity caused by:
(a) the acts, negligence, errors or omissions of the Consultant, including a breach of this agreement or that may arise by way of vicarious liability; and
(b) the Company treating the relationship between it and the Consultant as one of independent contractor in respect of which:
(i) PAYG tax need not be deducted;
(ii) superannuation, fringe benefits tax and pay-roll tax need not be paid;
(iii) workers’ compensation insurance need not be maintained; and
(iv) legislative and industrial instrument provisions dealing with employment are not applicable.
8. Confidential Information
8.1 Obligations of confidence
(a) Subject to clause 8.2, the Consultant must not at any time use, copy or disclose any Confidential Information, unless it is strictly necessary for the Consultant to provide the Services or with the prior written consent of the Company (and must not use, copy of disclose any Confidential Information at any time after termination of this agreement).
(b) The Consultant must not, and must not permit anybody else to:
(i) seek to obtain Confidential Information to which the Consultant has not been granted access;
(ii) remove any Confidential Information from the Company’s premises or those of any Related Entity; or
(iii) make any copies of Confidential Information unless it is strictly necessary for the Consultant to provide the Services (or at all at any time after termination of this agreement).
8.2 Exclusions
The obligations of confidence in clause 8.1 do not apply to Confidential Information:
(a) that is required to be disclosed by applicable law, or under compulsion of law by a court or government agency, so long as the Consultant:
(i) discloses the minimum amount of Confidential Information required to satisfy the law or rules; and
(ii) before disclosing any information, gives reasonable written notice to the Company and takes all available steps (whether required by the Company or not) to maintain such Confidential Information in confidence; or
(b) that is in the public domain otherwise than as a result of a breach of this agreement or other obligation of confidence.
8.3 Uncertainty
If there is any uncertainty as to whether particular information is Confidential Information, or whether the use or disclosure of particular information is permitted under the terms of this agreement, the Consultant must firstly treat the information as confidential and thereafter, seek clarification from the Company.
8.4 Security
The Consultant must observe all directions, rules or policies of the Company in relation to security of all Confidential Information.
8.5 Injunctive relief
The Consultant acknowledges that:
(a) the Company or a Related Entity may suffer financial and other loss and damage if any unauthorised act occurs in relation to Confidential Information of the Company or a Related Entity, and that monetary damages would be an insufficient remedy; and
(b) in addition to any other remedy available at law or in equity, the Company is entitled to injunctive relief to prevent a breach of, and to compel specific performance of this clause 8.
9. Intellectual property
9.1 Company’s Material
(a) The Company (or Related Entity as the case may be) owns the Company’s Material and all Intellectual Property Rights in the Company’s Material.
(b) The Company grants to the Consultant a non-exclusive licence to use the Company’s Material subject to the terms and conditions of this agreement.
(c) The Consultant:
(i) must use the Company’s Material only in accordance with any directions given by the Company and only to the extent necessary to provide the Services;
(ii) is responsible for the security, safe keeping and maintenance of any Company’s Material and Intellectual Rights in the Company’s Material; and
(iii) acknowledges and agrees that:
(1) the Company retains all Intellectual Property Rights in the Company’s Material; and
(2) nothing in this agreement is intended to grant the Consultant any Intellectual Property Rights or other rights in connection with the Company’s Material.
9.2 Use of IP
(a) The Consultant assigns all right, title and interest in the Contract IP to the Company.
(b) The Consultant grants to the Company and all Related Entities a perpetual, non-exclusive, royalty free, transferable right to use the Consultant IP to the extent necessary to fully and effectively use the Contract IP.
9.3 Warranties
The Consultant represents and warrants, and it is a condition of this agreement, that:
(a) the Consultant has the right and authority to provide the Company with the rights described in clause 9.2;
(b) use of the Consultant’s Material will not infringe the Intellectual Property Rights or other rights of any third party; and
(c) the exercise of the Consultant IP will not infringe the Intellectual Property Rights or other rights of any third party.
9.4 Moral Rights
(a) The Consultant must ensure that each Individual Author of Consultant’s Material genuinely and irrevocably consents to any acts or omissions of any person, including the Company, in connection with the Consultant’s Material, whether occurring before, on or after the date of this agreement, which might otherwise infringe the Moral Rights of the Individual Author.
(b) Without limiting clause 9.4(a), the Consultant must ensure that each Individual Author of Consultant’s Material irrevocably and genuinely consent to any use of that Consultant’s Material without identification of the Individual Author as the author or creator of the Consultant’s Material.
(c) The Consultant represents and warrants that the Consultant did not rely upon any statement or representation made by the Company before granting the consent contemplated by clause 9.4(a).
(d) Without limiting clause 9.4(a), if requested by the Company in a particular case, the Consultant agrees to ensure that each Individual Author of the Consultant’s Material consent to any specific act or omission nominated by the Company that may otherwise infringe the Moral Rights of the authors.
9.5 Further assurances
If requested by the Company, the Consultant must bring into existence, sign, execute or otherwise deal with any document or take any action which may be necessary to enable the vesting of the Intellectual Property Rights contemplated by clause 9.2 in the Company.
9.6 Unrelated Intellectual Property Rights
Nothing in this agreement affects the ownership of any Intellectual Property Rights of the Consultant other than the Consultant’s IP.
10. Termination
10.1 Termination with notice
Either party may, acting reasonably, terminate this agreement at any time by giving the other party seven (7) days’ notice in writing.
10.2 Termination without notice
The Company may terminate this agreement without notice (and without payment in lieu) if:
(a) in the Company’s reasonable opinion, the Consultant has been negligent or in breach of this agreement or in the provision of the Services or the performance of any work necessary to provide those Services;
(b) the Consultant becomes the subject of bankruptcy, liquidation or winding up proceedings or other insolvency event described in any law;
(c) the Consultant breaches any legislation, rule or regulation in the provision, or attempted provision of the Services or which, as a result of the breach, will limit the Consultant’s ability to lawfully provide the Services to any extent;
(d) the Consultant breaches a material term, or fails to remedy a breach of any other term of this agreement, within five (5) Business Days of being asked to do so by the Company; or
(e) in the Company’s opinion the conduct of the Consultant damages or is likely to damage:
(i) the Company’s or a Related Entity’s relationship with a Client, Contact, financier or any other person; or
(ii) the reputation of the Company or a Related Entity.
10.3 Consultant obligations on termination
Immediately on the termination of this agreement, or upon request at any time by the Company, the Consultant must:
(a) report to the Company promptly and fully with the information that it requires relating to the Services and the engagement of the Consultant pursuant to this agreement, including providing:
(i) reports as to the Consultant’s progress in relation to the Services;
(ii) setting out the names and contact details of persons and entities with whom the Consultant has been dealing in relation to the Services; and
(iii) all necessary and usual updates in any database;
(b) deliver to the Company all Confidential Information and Company’s Material in the Consultant’s possession, power or control;
(c) deliver to the Company all documents or property in respect of which Intellectual Property Rights are held by the Company in the Consultant’s possession, power or control (including all those transferred pursuant to this agreement);
(d) permanently erase all Confidential Information and Company’s Material from the Consultant’s electronic storage devices;
(e) deliver to the Company all property belonging to the Company, including documents, keys and access cards issued to the Consultant by or on behalf of the Company; and
(f) must, unless expressly required or permitted by the terms of this agreement or with the Company’s prior consent, immediately cease and desist from:
(i) any communication with any Contact or Applicant; and
(ii) from providing any Services to the Company or any Contact or Applicant.
10.4 Payment on termination
On termination of this agreement, the Consultant is only entitled to payment of Commissions and Revenue Share for Services that are:
(a) fully performed by the Consultant, to the standard required by the Company and this agreement; and
(b) not excluded or expressly stated in this agreement as not payable.
10.5 Rights and obligations on termination generally
For the avoidance of doubt, and without limiting any other provision of this agreement, the Consultant acknowledges and agrees that upon demand or termination of this agreement:
(a) the Company may restrict, interrupt, prohibit or end the use of or access to the Company’s Provided Facilities, Company’s Material or Confidential Information (and may re-call or data transfer information held by the Consultant on behalf of the Company or pursuant to this agreement); and
(b) the Consultant is entitled to any payment of Commissions or Revenue Share following the date of termination unless expressly provided for in this agreement; and
(c) the Company is not liable for (and the Consultant releases and indemnifies the Company from) any Loss arising from any interruption to use of or access to the Company’s Provided Facilities, Company’s Material or Confidential Information or for non-payment of Commissions or Revenue Share.
10.6 Liability
Termination of the agreement or does not affect or limit the Company’s rights to recover or claim a debt, damages or other compensation from the Consultant for any breach of this agreement.
11. General
11.1 Governing law and jurisdiction
This agreement is governed by the laws of Queensland. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland.
11.2 No Representation
Each party acknowledges and declares that no party or person has made any representation concerning the present or future viability or profitability of the Company and that the Consultant has entered into this agreement after making all enquiries and inspections it deemed warranted and has relied entirely on its own judgment in connection with these matters.
11.3 Waiver
(a) No failure by the parties to enforce any of its rights in respect of any breach of this agreement will amount to a waiver of the rights of the parties in respect of that breach or any other breach, nor will the non-enforcement amount to a variation of the rights of the parties.
(b) The right to require strict performance of this agreement will not be affected by any indulgence, waiver or course of dealing, and no waiver will be deemed to be a continuing waiver.
11.4 Variation
A variation of any term of this agreement must be in writing and signed by the parties or their representatives duly authorised in writing.
11.5 Severability
(a) Part or all of any clause of this agreement that is void, voidable or illegal or unenforceable shall be severed from this agreement and shall not affect the continued operation of the remaining provisions of this agreement.
(b) If any provision is or becomes illegal, unenforceable or invalid in any jurisdiction, it is to be treated as being severed from this agreement in the relevant jurisdiction, but the rest of this agreement will not be affected.
11.6 Further assurances
Each party must do all things and execute all further documents necessary to give full effect to this agreement.
11.7 Entire agreement
This agreement supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the parties.
11.8 Counterparts and Electronic Exchange
This agreement may be exchanged electronically (including, without limitation by email and facsimile) and executed in a number of counterparts, all of which taken together constitute one and the same document.
11.9 Notices
(a) Unless otherwise stated in this agreement, a notice or other communication connected with this agreement (Notice) has no legal effect unless it is in writing.
(b) In addition to any other method of service provided by law, the Notice may be:
(i) sent by prepaid post to:
(ii) delivered at; or
(iii) sent by electronic means (facsimile or email) to;
the address of the addressee set out in Item 7 of the Schedule or subsequently notified.
(c) If the Notice is sent or delivered in a manner provided by this clause, it must be treated as given to and received by the party to which it is addressed:
(i) if sent by post, on the 3rd Business Day (at the address to which it is posted) after posting; or
(ii) if sent by electronic means, immediately upon receipt of a successful facsimile transmission receipt or after the email was sent, unless the party sending the transmission or email knows or reasonably ought to suspect that the transmission or email and the attached communication were not delivered to the addressee’s fax number or domain specified it the email address; or
(iii) if otherwise delivered before 5:00pm on a Business Day at the place of delivery, upon delivery, and otherwise on the next Business Day at the place of delivery.
12. Special Conditions
Any additional provisions will be set out in your individual Loans Only Broker/Loan Originator Agreement. Item 8 of the Schedule.