Terms & Conditions - Compass Aggregation

Agreement

1. Definitions and interpretation

1. In this Agreement:

“Confidential Information” means the confidential information of COMPASS FINANCE AUSTRALIA particularly in relation its business, including all intellectual property such as ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, design, artwork, formulae, other copyrightable works, and techniques, software, other technology, operating systems, reports, marketing techniques and contacts and general managerial, technical, statistical or accounting reports, analysis budgets,

projections and other systems, methods and procedures relating to the operation of COMPASS FINANCE AUSTRALIA and its business.

“NCCP Act” means the National Consumer Credit Protection Act 2009 and associated acts, as amended from time to time.
“NCCP Regulations” means the National Consumer Credit Protection Regulations 2010 and associated regulations, as amended from time to time.
“Lender” means the lender or funder of the appropriate Product.
“Referral Service” means the provision of business and client’s introductions by the Referrer to Compass Finance Australia.

1.2 In this Agreement:

items defined in the Schedule have the meaning given in the Schedule; and
a reference to statutes or regulations includes a reference to associated acts, statutes, and regulations, as amended from time to time.

2. Appointment and Commission

1. On and from the Commencement Date, COMPASS FINANCE AUSTRALIA authorises the Referrer, on a non-exclusive basis, to refer Applicants to COMPASS FINANCE AUSTRALIA, for the Products, on the terms and conditions set out in this Agreement.
2. For the avoidance of doubt, COMPASS FINANCE AUSTRALIA and the Referrer acknowledge and agree that COMPASS FINANCE AUSTRALIA may accept referral services from third parties and is not bound by the Agreement to exclusively accept referral services from the Referrer only.
3. Pursuant to the NCCP Act and the NCCP Regulations, COMPASS FINANCE AUSTRALIA authorises the Referrer to engage in the credit activities detailed in Item 3 of the Schedule.
4. If the Referrer refers an Applicant to COMPASS FINANCE AUSTRALIA which results in a successfully settled application by a Lender, then COMPASS FINANCE AUSTRALIA will (subject to COMPASS FINANCE AUSTRALIA first receiving the payment from the Lender in respect of the Applicant) pay to the Referrer the commission set out in Item 4 of the Schedule (“Commission”).
5. Subject to clause 2.5 and subject to the Referrer not being in breach of this Agreement, COMPASS FINANCE AUSTRALIA will:

ensure any Commission is paid to the Referrer either by direct credit to the Referrer’s nominated bank account, or by cheque for the same amount.
provide a statement of Commission advice to the Referrer with each payment; and
make each payment of Commission by the 20th day of each respective month, calculated for Commissions payable from the previous month.

1. Notwithstanding clause 2.4, COMPASS FINANCE AUSTRALIA reserves the right to deduct and offset from the Commission payable any amounts that become owing by the Referrer to COMPASS FINANCE AUSTRALIA pursuant to this Agreement or otherwise.
2. If the Referrer has been paid Commission for Products, and a Lender subsequently terminates or withdraws its corresponding commission or requires repayment of the corresponding commission (“claw back”), then at COMPASS FINANCE AUSTRALIA’s option:

the Referrer must repay to COMPASS FINANCE AUSTRALIA the amount of such Commission immediately upon COMPASS FINANCE AUSTRALIA’s demand; or
COMPASS FINANCE AUSTRALIA may deduct and offset the amount of such Commission from any further payments of Commission due to the Referrer.

1. The Referrer is only entitled to payment of Commission after all amounts owing by the Referrer to COMPASS FINANCE AUSTRALIA have been paid and COMPASS FINANCE AUSTRALIA may set off any amounts owing from the Commission of amounts the Referrer owes it.

3. Duties of the Referrer

1. During the term of this Agreement, the Referrer must:

act honestly and in good faith and comply with all statutes and regulations applicable to its business and relating to the provision of the Products.
comply with the reasonable directions of COMPASS FINANCE AUSTRALIA from time to time in connection with the promotion of COMPASS FINANCE AUSTRALIA and the Products.
keep proper and complete records in relation to its business and its referrals to COMPASS FINANCE AUSTRALIA.
not allow its interest to conflict with those of COMPASS FINANCE AUSTRALIA.
not provide credit assistance or deal in a financial product on behalf of COMPASS FINANCE AUSTRALIA.
refrain and forebear from disclosing to any person (other than a duly authorised employee of COMPASS FINANCE AUSTRALIA) the terms of this Agreement or any Confidential Information unless expressly directed so to do in writing by COMPASS FINANCE AUSTRALIA or as required for the purpose of causing or assisting in the due compliance with any statute law regulation or other requirement.

1. The Referrer warrants to COMPASS FINANCE AUSTRALIA as at the Commencement Date and on a continuing basis that:

it will at all times conduct its business and its referrals to COMPASS FINANCE AUSTRALIA in accordance with all applicable legislation, including but not limited to the NCCP Act, the NCCP Regulations, the Financial Services Reform Act 2001, the Trade Practices Act 1974, the Australian Securities and Investment Commission Act 2001 and the Privacy Act 1988; and
the Referrer is exempt from requiring a licence under the NCCP Act and NCCP Regulations according to the exemption specified in Item 5 of the Schedule.

1. The Referrer must:

not require the Applicant to pay a fee to anyone in relation to making the referral to COMPASS FINANCE AUSTRALIA; and
disclose to the Applicant any other commissions or financial or other benefits which the Referrer may receive as a result of referring the Applicant to COMPASS FINANCE AUSTRALIA.
not engage in any misleading or deceptive conduct or make any representation to an Applicant and COMPASS FINANCE AUSTRALIA with respect to the prospect of success of any Products and/or any other transaction between COMPASS FINANCE AUSTRALIA and the Applicant.

1. The Referrer is not permitted in any circumstances to share any Commission in any way with any Applicant.

4. Rights of COMPASS FINANCE AUSTRALIA

1. During the term of this Agreement, COMPASS FINANCE AUSTRALIA may:

add, amend, or withdraw its services at its absolute discretion.
change the price or specification of any of its services.
in its absolute discretion, refuse or reject a Product, where COMPASS FINANCE AUSTRALIA has reasonable grounds to believe that the entering into any business transaction with the Applicant referred by the Referrer is not in its best interest.

5. Termination

1. This Agreement may be immediately terminated by either party at their sole and absolute discretion at any time by giving written notice to the other party.
2. If this Agreement is terminated under clause 4.1, and at the time of termination, if the Referrer is not in breach of this Agreement, then COMPASS FINANCE AUSTRALIA will pay to the Referrer any outstanding Commission which the Referrer is entitled to receive pursuant to Clause 2. The Referrer is not entitled to any further payments from COMPASS FINANCE AUSTRALIA.
3. Upon termination of this Agreement, the Referrer’s non-exclusive authorisation by COMPASS FINANCE AUSTRALIA to refer Applicants to COMPASS FINANCE AUSTRALIA also immediately ceases.

6. Consequences of Termination

1. Forthwith upon termination of this Agreement pursuant to clause 5:
  1. The Referrer shall hand over any and all Confidential Information of COMPASS FINANCE AUSTRALIA which are in the possession or custody of the Referrer and, if directed by COMPASS FINANCE AUSTRALIA, the Referrer shall duly and punctually destroy to the satisfaction of COMPASS FINANCE AUSTRALIA all evidence of such charts, records, inventories, documents, programs or other materials.
  2. The obligations of each party to the other shall cease but without prejudice to any other right or remedy for breach or alleged breach claimed by either party against the other before the date of the effective termination of this Agreement.
  3. Clauses [Confidential Information], [Restrictive Covenants] and [Indemnity] do not merge upon termination of this Agreement.

7. Agreement for creation of recipient created tax invoices

1. COMPASS FINANCE AUSTRALIA can issue recipient created tax invoices in respect of supplies made by the Referrer under or in accordance with this Agreement.
2. The Referrer will not issue tax invoices in respect of the same supplies.
3. Each party acknowledges to the other that it is registered for GST (as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (“GST Act”)) when entering into this Agreement and that each party will notify the other party if it ceases to be so registered.
4. COMPASS FINANCE AUSTRALIA must not issue a document that would otherwise be a recipient created tax invoice on or after the date when the Referrer or COMPASS FINANCE AUSTRALIA has failed to comply with any of the requirements to issue recipient created tax invoices under the GST Act.

8. Indemnity

1. The Referrer indemnifies COMPASS FINANCE AUSTRALIA from and against any and all losses, costs, damages or expenses suffered or incurred by COMPASS FINANCE AUSTRALIA as a result of:

the Referrer’s and its employees’ and agents’ acts or omissions.
the unlawful or dishonest acts of omissions of any Applicant.
the Referrer breaching any of its warranties or obligations under this Agreement, or
the Referrer failing to comply with the provisions of any applicable legislation, including but not limited to the legislation and regulations specified in this Agreement.

1. If as a result of the Referrer’s acts, omissions, error or negligence, COMPASS FINANCE AUSTRALIA is required to make any of the following payments:

Claw back payments.
any refund payments.
any statutory penalty imposed on COMPASS FINANCE AUSTRALIA by any authority or body,

then the Referrer must reimburse COMPASS FINANCE AUSTRALIA on demand for any payment made by COMPASS FINANCE AUSTRALIA along with all costs incurred by COMPASS FINANCE AUSTRALIA.

9. Restrictive Covenants

1. The Referrer acknowledges:

1. that in the course of performing the Referral Services the Referrer will inter alia have access to and acquire knowledge of the names and addresses of customers with whom COMPASS FINANCE AUSTRALIA the Licensee has and will conduct business (other than the Clients).
2. that in addition, the Referrer will have access to COMPASS FINANCE AUSTRALIA’s Confidential Information.
3. that if COMPASS FINANCE AUSTRALIA’s Confidential Information is made available to its competitors, the goodwill attaching to its business will be seriously diminished.

the necessity of protecting the expertise, trade secrets and other Confidential Information and goodwill attributable to COMPASS FINANCE AUSTRALIA’s business from competition by the Referrer in the future.
that the giving of this restraint was a material factor inducing COMPASS FINANCE AUSTRALIA to enter into this Agreement.

1. Having regard to the facts and acknowledgments recorded in clause [9.1], the Referrer covenants, agrees and undertakes that the Referrer shall not without the prior written consent of COMPASS FINANCE AUSTRALIA at any time during the currency of this Agreement and for a period of one (1) year following termination of this Agreement for any reason approach directly or indirectly any past or then current client or supplier of COMPASS FINANCE AUSTRALIA with a view to or effecting the result that the Applicant terminates or reduces its business relationship with the COMPASS FINANCE AUSTRALIA.
2. The Referrer further undertakes that after the termination of this Agreement for whatever reason the Referrer will not induce or attempt to induce any of the employees of COMPASS FINANCE AUSTRALIA to terminate their agreements or contracts with COMPASS FINANCE AUSTRALIA.
3. The Referrer acknowledges that the restraints contained in this clause 9 are:

fair and reasonable in regard to the subject matter area and duration.
reasonably required by COMPASS FINANCE AUSTRALIA to protect its business, financial and proprietary interest.
given without any coercion or pressure.

1. The restraints set out in this clause 9 are made in favour of COMPASS FINANCE AUSTRALIA who may enforce the same by injunction proceedings without prejudice to any other rights or remedies which it may have.

10. General and Miscellaneous Provisions

1. 1. The Referrer is an independent contractor and is not the agent or employee of COMPASS FINANCE AUSTRALIA. The Referrer is solely responsible to pay all business expenses incurred by it as a result of its business relationship with COMPASS FINANCE AUSTRALIA.10.2 The Referrer is solely responsible to pay to all persons employed by it, their entitlements in respect of salary or wages, sick pay, annual leave and other leave entitlements, superannuation contributions, Work Cover insurance premiums, PAYG instalments, payroll tax and like expenses relating to such employment.
  2. The Referrer must maintain at its expense, during and after the term of this Agreement, professional indemnity insurance. The contract of professional indemnity insurance maintained by the Referrer must indemnify the Referrer and COMPASS FINANCE AUSTRALIA against any liability arising out of or in connection with the performance of the Referrer’s obligations under this agreement.
  3. The Referrer indemnifies COMPASS FINANCE AUSTRALIA from and against in consideration of the referrer’s responsibility to all relevant cost of any premiums, costs, penalties, and other charges that may be claimed or demanded from COMPASS FINANCE AUSTRALIA by any government authority or regulator with respect to any income tax liabilities, superannuation guarantee charges, payroll taxes, Work Cover premiums, costs, payments, and expenses.
  4. Both parties to this Agreement agree to keep confidential all information, of whatever type or nature relating to the mutual business interests of the parties or which the parties become aware of as a result of or during the term of this Agreement.
  5. The authorisation of the Referrer by COMPASS FINANCE AUSTRALIA is personal to the Referrer. The Referrer must not assign this Agreement, or any of its rights, benefits, or obligations under this Agreement, without first obtaining COMPASS FINANCE AUSTRALIA’s prior written consent.
  6. Subject to any express provisions to the contrary, the provisions of this Agreement shall for so long as necessary or desirable survive termination of this Agreement.

1. Any notice to or by a party under this Agreement must be in English and in writing and signed by the sender or, if a corporate party, an authorised officer of the sender.

1. Any notice may be served by delivery in person, or by post, email or fax to the last known address, email address or fax number of the recipient.

1. This Agreement is governed by and construed in accordance with the laws of Victoria, Australia in force from time to time and the parties agree to submit to the non-exclusive jurisdiction of those courts.

1. The parties must comply with the Special Conditions (if any) specified in Item 6 of the Schedule. If there is any inconsistency between the Special Conditions and the terms of this Agreement, the Special Conditions will prevail to the extent of any inconsistency.

11. Intellectual Property

1. The Referrer acknowledges and agrees that all Intellectual Property which is created, developed, expanded, added to, or modified in any manner or to any extent by the Referrer during the term is the absolute property of COMPASS FINANCE AUSTRALIA.
2. The Referrer agrees that all Intellectual Property contemplated by subclause 11.1 will be disclosed by the Referrer to COMPASS FINANCE AUSTRALIA immediately following it being so created, developed, expanded, added to, or modified and that it will be the absolute property of COMPASS FINANCE AUSTRALIA.
3. The Referrer consents to the use (including reproduction in any form) and modification of the Works by, and on behalf of, COMPASS FINANCE AUSTRALIA, its clients/customers and their licensees and any other persons authorised by any of them, as follows:

Use of the Works and any part of them in any manner COMPASS FINANCE AUSTRALIA considers to be appropriate in the course of advertising, promoting, and selling goods or services (or both) provided at any time now or in the future by COMPASS FINANCE AUSTRALIA, its clients / customers and their licensees, or any of them.
modifying the Works from time to time, including additions to and deletions from the Works, in any manner COMPASS FINANCE AUSTRALIA considers appropriate to reflect any changes in one or more of:

I. the goods or services (or both) offered by COMPASS FINANCE AUSTRALIA, its clients / customers, and their licensees.

II. the image and corporate identity of COMPASS FINANCE AUSTRALIA, its clients/customers, and their licensees.

III. use of the Works, and any modifications to the Works, in any context and in relation to any goods, services and businesses which COMPASS FINANCE AUSTRALIA considers to be appropriate.

1. The Referrer consents to the Licensee, its clients / customers, and their licensees, and each of them, not identifying the Referrer as the author of any Works created by the Referrer during the Term.
2. In this clause:

“Intellectual Property” includes any industrial or intellectual property and any real, personal, tangible, or intangible property; and

“Works” means Intellectual Property created, developed, expanded, added to, or modified in any way and to any extent by the Referrer during the term of this Agreement.

12. Dispute Resolution

1. Mediation

If a dispute arises out of or relates to this Agreement, or the breach, validity, or subject matter thereof, or as to any claim in tort, in equity or pursuant to any domestic or international statute or law, the parties to this Agreement will seek to settle the dispute by mediation administered by the Australian Disputes Centre (ADC) before having recourse to litigation, as follows:

1. a Party claiming that a dispute has arisen, must give written notice to the other Party to the dispute specifying the nature of the dispute.

on receipt of the notice specified in sub-clause a., the Parties to the dispute must within 14 days of receipt of the notice seek to resolve the dispute.
if the dispute is not resolved within 14 days (or such other period as agreed between the Parties) then the dispute may be referred by either Party to AND.
the mediation shall be conducted in accordance with ADC Guidelines which set out the procedures to be adopted, the process of selection of the mediator and the costs involved and which terms are hereby deemed incorporated;]
in the event that the dispute, controversy or claim has not been resolved within 28 days (or such other period as agreed between the Parties) after the selection of a mediator, either Party may institute legal proceedings.
this Clause shall not merge upon completion.

1. Continued Performance

Except where clearly prevented by the area in dispute, both parties agree to continue performing their respective obligations under this Agreement while the dispute is being resolved unless and until such obligations are terminated or expire in accordance with the provisions of this Agreement.

1. Equitable Relief

Nothing in this Agreement prevents either party at any time seeking injunctive or other equitable relief in order to protect its rights.