Advocate Rewards - Terms And Conditions

ADVOCATE REWARDS AGREEMENT

  SCHEDULE

TERMS AND CONDITIONS

This Agreement is entered into between us and you, together the Parties and each a Party.

1.               Acceptance

1.1            This Agreement forms our contract with you and sets out our obligations to you and your obligations as our referral partner. You cannot refer Referrals to us or be entitled to the Referral Fee unless you agree to this Agreement. 

1.2            This Agreement applies (meaning you accept the terms set out in this Agreement) from the date in which when you register on our Website and are verified in accordance with the Referral Process, until the date on which this Agreement is terminated.

2.               Referrals

2.1            During the Term, you agree to (and to the extent applicable, ensure that your Personnel agree to):

(a)            use your best efforts to introduce Referrals to us in accordance with the Referral Process;

(b)            comply with this Agreement, all applicable Laws, and our reasonable requests; and

(c)             conduct business in a manner that reflects favourably on us, including by not making any false or misleading representations about our business.

2.2            We may reject any Referral that:

(a)            already has an existing contractual relationship with us; and

(b)            does not (in our absolute discretion) meet our required criteria to enter into a Legal Engagement with us (including but not limited to their claim not being a Qualifying Claim). 

2.3            You acknowledge and agree that:

(a)            we are not covered under any State Based Personal Injury Claims; and

(b)            the Referral Fee will not be payable to you for Referrals referred to us for personal injury claims (PI Referrals). We may, however, refer PI Referrals to an appropriate referral partner.

2.4            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.

2.5            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.

2.6            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.

3.               Payments and Reporting

3.1            Promptly following:

(a)            the end of each calendar month during the Term; and

(b)            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 clause 2.2, and any applicable Referral Fees payable by us to you, for the immediately preceding period (Referral Fee Report).

3.2            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.

3.3            You acknowledge and agree you are responsible for providing us with accurate bank account details in order for us to pay you the Referral Fee. We are not responsible for any failed payment to you as a result of you providing us with incorrect bank account details or not informing us of your preferred payment method.

4.               Intellectual Property

4.1            As between the Parties:

(a)         we own all Intellectual Property Rights in Our Materials;

(b)         you own all Intellectual Property Rights in Your Materials; and

(c)         nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.

4.2            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, solely for your use to refer Referrals to us, as contemplated by this Agreement.

4.3            This clause 4 will survive termination or expiry of this Agreement. 

5.               Confidential Information

5.1            Each Receiving Party agrees:

(a)         not to disclose the Confidential Information of the Disclosing Party to any third party (subject to subclause 5.1(c)); 

(b)         to protect the Confidential Information of the Disclosing Party from any loss, damage or unauthorised disclosure;

(c)         to only disclose the Confidential Information to those of its Personnel who need to know the Confidential Information in connection with this Agreement, provided those Personnel keep the Confidential Information confidential in accordance with this clause 5; and

(d)         to only use the Confidential Information of the Disclosing Party for the purpose of performing obligations, or exercising rights or remedies, under this Agreement. 

5.2            The obligations in clause 5.1 do not apply to Confidential Information that: 

(a)         is required to be disclosed for the Parties to comply with their obligations under this Agreement; 

(b)         is authorised in writing to be disclosed by the Disclosing Party; 

(c)         is in the public domain or is no longer confidential, except as a result of a breach of this Agreement or other duty of confidence; or 

(d)         must be disclosed by Law or by a regulatory authority, including under subpoena, provided that (to the extent permitted by Law) the Receiving Party has given the Disclosing Party notice prior to disclosure. 

5.3            Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 5.  A Party is entitled to seek an injunction, or any other remedy available at Law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 5.

5.4            This clause 5 will survive the termination of this Agreement.

6.               Liability

6.1            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.

6.2            This clause 6 will survive the termination or expiry of this Agreement.

7.               Term and Termination

7.1            This Agreement will operate for the Term.

7.2            Either Party may terminate this Agreement at any time by giving 30 days’ notice in writing to the other Party. 

7.3            This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:

(a)         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

(b)         (to the extent permitted under the Corporations Act 2001 (Cth)) any step is taken to enter into any arrangement between the Defaulting Party and its creditors, any step is taken to appoint a receiver, a receiver and manager, a liquidator, a provisional liquidator or like person of the whole or any part of the Defaulting Party’s assets or business, the Defaulting Party is bankrupt, or the Defaulting Party is unable to pay its debts as they fall due.

7.4            Upon expiry or termination of this Agreement:

(a)         you will immediately cease providing Referrals to us;

(b)         subject to clause 3.2, we will pay you any outstanding Referral Fees;

(c)         by us pursuant to clause 7.3, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees); and

(d)         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 5.

7.5            Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it. 

7.6            This clause 7 will survive the termination or expiry of this Agreement.

8.               General 

8.1            Amendment: This Agreement may only be amended by written instrument executed by the Parties.

8.2            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).

8.3            Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument. 

8.4            Disputes:  A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first complying with this clause 8.4. A Party claiming that a Dispute has arisen must give written notice to the other Party specifying the nature of the Dispute (Dispute Notice). The Parties must meet (whether in person, by telephone or video conference) within 10 Business Days of service of the Dispute Notice to seek (in good faith) to resolve the Dispute.

If the Parties do not resolve the Dispute within 20 Business Days of the date the Dispute Notice was served (or such further period as agreed in writing by the Parties), either Party may:

(a)            where you are resident or incorporated in Australia, refer the matter to mediation, administered by the Australian Disputes Centre, to be conducted in Sydney, New South Wales, in accordance with the Australian Disputes Centre Guidelines for Commercial Mediation.

(b)            where you are not resident or incorporated in Australia, refer the matter to arbitration administered by the Australian Centre for International Commercial Arbitration, with such arbitration to be conducted in Sydney, New South Wales, before one arbitrator, in English and in accordance with the ACICA Arbitration Rules.

Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

8.5            Entire Agreement: This Agreement contains the entire understanding between the Parties and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in this Agreement, and this Agreement supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.

8.6            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:

(a)            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

(b)            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.

8.7            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. 

8.8            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.

8.9            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. In respect of you, you acknowledge and agree to procure all necessary consent in relation to disclosing any personal information of the Referral to us.

8.10         Publicity: Despite clause 5, 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.

8.11         Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

8.12         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.

9.               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 accepted in accordance with clause 1.2.

Confidential Information means information which:

(a)         is disclosed to the Receiving Party in connection with this Agreement at any time;

(b)         relates to the Disclosing Party’s business, assets or affairs; or

(c)         relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,

whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.

Disclosing Party means the Party disclosing Confidential Information to the Receiving Party.

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.

Legal Engagement means the finalised arrangement between us and a Referral before we lodge their claim.

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.

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.

Qualifying Claim includes:

(a)         total and permanent disability claim;

(b)         income protection claim;

(c)         death benefits claim;

(d)         disputed claims;

(e)         terminal illness claim; and

(f)          trauma claim,

but expressly excludes personal injury claims.

Receiving Party means the Party receiving Confidential Information from or on behalf of the Disclosing Party.

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

Schedule means the schedule to this Agreement. 

State Based Personal Injury Claims includes the following New South Wales laws:

(a)         Workers Compensation Act 1987;

(b)         Workplace Injury Management and Workers Compensation Act 1998;

(c)         Workers Compensation Regulation 2016;

(d)         Motor Accidents Compensation Act 1999;

(e)         Motor Accident Injuries Act 2017;

(f)          Motor Accidents Compensation Regulation 2020;

(g)         Motor Accident Injuries Regulation 2017;

(h)         Motor Accident and Workers Compensation Amendment Act 2022; and

(i)          Motor Accident Injuries Amendment Act 2022.

Website means https://claimsplus.com.au/rewards or https://advocates.claims.au.

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.