Upollo Partner Referral Agreement

Terms and Conditions

This Agreement is entered into between Upollo Pty Ltd (ACN 649 311 124) (we, us or our) and you, the individual or entity accepting this Agreement in accordance with clause 1 (you or your), together the Parties and each a Party.

1. Acceptance 
   
   1. You accept this Agreement by the earlier of confirming that you accept this Agreement via the platforms or applications through which we provide this Agreement to you, including our website. 
   2. To refer Referrals to us, you must sign up to be a referral partner with us on our website. We will respond to your request to be a partner within 3 Business Days. Once you become a partner, you will receive an email with details on how to submit and monitor the status of your Referrals.
2. Referral Process
   
   1. You will provide Referrals to us by email, or by any other process that we notify you of in writing.
   2. You agree to provide the requested information about the Referral, as detailed in your welcome email. You agree to provide sufficient and accurate information about the Referral, including: 
      
      1. the Referral’s contact information, including name, email, company details, title and address; 
      2. any information about your connection with the Referral, including where you sourced the Referral’s information; and 
      3. a short description of how our services can help them. 
   3. Once you have provided a Referral to us, we may ask you to provide a warm introduction between us and the Referral, to facilitate our connection with them. You agree to carry this out promptly, in accordance with this Agreement and all applicable Laws. 
3. Referrals
   
   1. During the Term, you agree to (and to the extent applicable, ensure that your Personnel agree to):
      
      1. use your best efforts to introduce Referrals to us in accordance with the Referral Process;
      2. comply with this Agreement, all applicable Laws, and our reasonable requests; and
      3. conduct business in a manner that reflects favourably on us, including by not making any false or misleading representations about our business.
   2. We may reject any Referral in our sole discretion, acting reasonably. Examples of why we may reject a Referral includes but is not limited to if the Referral already has an existing contractual relationship with us, has been sourced elsewhere in our sales pipeline or does not fit our customer profile as provided to you by us. The accepted or denied status of a Referral will be noted in a column on a shared lead register (Lead Register). The Lead Register will be updated within a reasonable time frame from when you refer the Referral.
   3. Referrals must make a purchase of our services within 180 days of your introduction to be considered a valid and successful Referral. 
   4. If you become aware of any actual or potential conflict of interest between this Agreement and any other work you are undertaking, you agree to inform us in writing and take reasonable steps to resolve the conflict.
   5. You have no authority or right to enter into any contracts, instruments or commitments in our name, or on our behalf, or to bind us to any legal arrangement with a Referral.
   6. Nothing in this Agreement creates an exclusive relationship between the Parties, and either Party may during the Term enter into a referral arrangement with any other third party.
4. Payments and Reporting
   
   1. For successful Referrals, we agree to pay you the full amount received by us from a Referral for the pilot period (Pilot Amount) and for the first 3 months of the Referral’s engagement with us, less the Pilot Amount (Referral Fee). 
   2. The Pilot Amount will be payable first, as an initial recognition of the receipt of the Referral. However, you acknowledge and agree that the full Referral Fee will only be payable to you if the Referral continues to use and pay for our services for the full 3 months following your introduction and the initial pilot. 
   3. Promptly following, as applicable:
      
      1. the receipt of payment for the pilot; 
      2. the receipt of payment for the third month of service; and
      3. the last day of the Term,
         
         we agree to provide you with a written statement setting out the details of all Referrals accepted by us and not rejected under this Agreement (for example, under clause 3.2), and any applicable Pilot Amounts and/or Referral Fees payable by us to you, for the immediately preceding period (Sales Report).

4. Following receipt of our Sales Report, you must invoice us for the applicable Pilot Amount and Referral Fees. We will only make payment (in accordance with the Payment Terms) on invoices that:
   
   1. if you are an Australian business, are valid tax invoices for the purposes of the A New Tax System (Goods and Services Tax) Act 1999 (Cth); or
   2. if you are not an Australian business, contain your details and an itemised description of the Referrals provided and the amounts to be paid.
5. Where we receive a properly issued invoice in accordance with clause 4.4, we agree to make payment to you for any applicable amounts within 90 days of our receipt of the invoice. 
6. You agree that we may set-off or deduct from any monies payable to you under this Agreement, any amounts which are payable by you to us under this Agreement.

5. Trade Marks 
   
   1. During the term of this Agreement, you may use our trade mark provided you have written permission from us and you follow the usage requirements in this clause 5.  
   2. You must: 

1. only use the images of our trade mark that we make available to you, without altering them in any way; 
2. only use our trade marks in connection with this Agreement; and 
3. immediately comply if we request that you discontinue use.  

3. You must not: 

1. use our trade mark in a misleading or disparaging way; 
2. use our trade mark in a way that implies we endorse, sponsor or approve of your services or products; or 
3. use our trade mark in violation of applicable Law or in connection with an obscene, indecent, or unlawful topic or material.

6. Intellectual Property 
   
   1. As between the Parties: 

1. we own all Intellectual Property Rights in Our Materials; 
2. you own all Intellectual Property Rights in Your Materials; and
3. nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.

2. As between the Parties, ownership of all Intellectual Property Rights in any New Materials will at all times vest, or remain vested, in us upon creation. To the extent that ownership of such Intellectual Property Rights in any New Materials does not automatically vest in us, you hereby assign all such Intellectual Property Rights to us and agree to do all other things necessary to assure our title in such rights. 
3. We grant you a non-exclusive, revocable, royalty-free, worldwide, non-sublicensable and non-transferable right and licence, for the Term, to use Our Materials that we provide to you and the New Materials, solely for your use to refer Referrals to us, as contemplated by this Agreement.
4. If you (if you are an individual) or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, you agree to (and will procure that your Personnel) consent to our use or infringement of those Moral Rights.
5. This clause 5 will survive termination or expiry of this Agreement. 

7. Confidential Information
   
   1. Subject to clause 7.2, each Party must (and must ensure that its Personnel do) keep confidential, and not use or permit any unauthorised use of, confidential information provided by the other Party.
   2. Clause 7.1 does not apply where the disclosure is required by Law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the disclosing Party ensures the adviser complies with the terms of clause 7.1.
   3. This clause 7 will survive the termination of this Agreement.
8. Liability
   
   1. A Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss.
   2. This clause 8 will survive the termination or expiry of this Agreement.
9. Term and Termination
   
   1. This Agreement will operate for the Term.
   2. Either Party may terminate this Agreement at any time by giving 30 days’ notice in writing to the other Party. 
   3. This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:

1. the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
2. the Defaulting Party goes bankrupt, insolvent or is otherwise unable to pay its debts as they fall due.

4. Upon expiry or termination of this Agreement:

1. you will immediately cease providing Referrals to us;
2. subject to clause 4.5, we will pay you any outstanding Referral Fees;
3. by either Party pursuant to clause 9.2, for a period of 6 months, we will continue to pay you the Referral Fee for all Referrals made during the Term, in accordance with the Payment Terms;
4. by us pursuant to clause 9.3, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees); and
5. each Party may retain a single copy of the other Party’s information only to the extent required by Law, provided that each Party handles the other Party’s information in accordance with clause 7.

5. Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.  
6. This clause 9 will survive the termination or expiry of this Agreement.

10. General 
    
    1. Amendment: This Agreement may only be amended by written instrument executed by the Parties.
    2. Assignment: A Party must not assign, novate or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld). 
    3. Disputes:  A Party may not commence court proceedings relating to any dispute arising from, or in connection with, this Agreement (Dispute) without first meeting a representative of the other Party within 10 Business Days of notifying that other Party of the Dispute. If the Parties cannot resolve the Dispute at that meeting, either Party may refer the Dispute to mediation administered by the Australian Disputes Centre. 
    4. Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:
       
       1. as soon as reasonably practical, notifies the other Party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and
       2. uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event. 
          
          Where the Force Majeure Event prevents a Party from performing a material obligation under this Agreement for a period in excess of 60 days, then the other Party may by notice terminate this Agreement, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement. 

5. Governing Law: This Agreement is governed by the laws of New South Wales.  Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.  
6. Notices: Any notice given under this Agreement must be in writing addressed to the addresses set out in this Agreement, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
7. Privacy: Each Party agrees to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) (as if it were an “APP entity” as defined in the Privacy Act 1988 (Cth)), and any other applicable Law relating to the privacy of information. Each Party further agrees to only use information about Referrals it obtains from the other Party solely for the purpose for which it was disclosed, and to keep such information secure and protect it from unauthorised use or disclosure.
8. Publicity: Despite clause 7, each Party may advertise or publicise the existence and broad nature of the referral relationship between the Parties. However, a Party must not reveal the amount of Referral Fees generated under this Agreement unless required by Law.
9. Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
10. Subcontracting: You may not subcontract any part of the Referral Process without our prior written consent.  You agree that any approval to subcontract given by us does not discharge you from any liability under this Agreement and that you are liable for the acts and omissions of your subcontractor.

11. Definitions 

In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, and:

Agreement means these terms and conditions and any documents attached to, or referred to in, each of them.

Business Day means a day on which banks are open for general banking business in Sydney, New South Wales, excluding Saturdays, Sundays and public holidays.

Commencement Date means the date this Agreement is signed by the last of the Parties.

Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.

Intellectual Property Rights or Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable. 

Law means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.

Moral Rights has the meaning given in the Copyright Act 1968 (Cth) and includes any similar rights in any jurisdiction in the world.

New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel in connection with this Agreement or the purpose of referring Referrals to us, whether before or after the date of this Agreement and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials and Your Materials.

Our Materials means all Intellectual Property which is owned by or licensed to us and any improvements, modifications or enhancements of such Intellectual Property, but excludes Your Materials.

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but does not include the other Party.

Referral means a person referred by you to us for the purpose of that person entering into a commercial transaction with us.

Schedule means the schedule to this Agreement.  

Your Materials means all Intellectual Property owned or licensed by you or your Personnel before the Commencement Date (which is not connected to this Agreement) and/or developed by or on behalf of you or your Personnel independently of this Agreement and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials.