partner (referral) terms and conditions


1. Introduction

1.1     These Partner Terms and Conditions (Partner Terms) and its schedules, including the Partner (Referral) Proposal, form a legally binding agreement between Style Arcade Pty Ltd (ACN 601 545 644) of 111 Flinders Street, Surry Hills, NSW 2010, Australia (Style Arcade, we or us) and the Partner as set out in Schedule 1 (Partner), collectively referred to as the parties or a party.

1.2     Any references to a 'Schedule' in these Terms means a reference to the relevant Schedule set out in the Partner (Referral) Proposal provided by Style Arcade to the Partner (Partner Proposal).  The Partner Proposal is incorporated into these Terms by reference.


2.    Definitions and interpretation


2.1.    Definitions

In these Partner Terms, unless the context requires otherwise:

Business Day means a day which is not a Saturday, Sunday or bank or public holiday in New South Wales, Australia.

Commencement Date means the date specified in Schedule 1.

Commission means the fees payable by Style Arcade to the Partner calculated in accordance with Schedule 1 on amounts paid by Customers to Style Arcade.

Confidential Information means:

(a)     the terms of these Partner Terms and its subject matter, including information submitted or disclosed by a party during negotiations, discussions and meetings relating to these Partner Terms;

(b)     any information of Style Arcade which is designated by Style Arcade as confidential;

(c)     any information of Style Arcade which is of a confidential or sensitive nature, which is marked or denoted as confidential or which a reasonable person to whom that information is disclosed or to whose knowledge the information comes would consider confidential; or

(d)     any information which is disclosed by Style Arcade to the Partner, directly or indirectly, or otherwise comes to the knowledge of that party in relation to or in connection with this agreement, whether that information is in oral, visual or written form or is recorded or embodied in any other medium.

Corporations Act means the Corporations Act 2001 (Cth).

Customer means a customer or potential customer of the Products from Style Arcade.

Expiry Date means the date specified in Schedule 1.

GST Law means the definition given to that term in the A New Tax System (Goods & Services Tax) Act 1999 (Cth).

Intellectual Property means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs and unregistered designs, rights to use, and protect the confidentiality of, confidential information (including know-how, trade secrets, and datasets), technology and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist now or in the future, anywhere in the world.

Insolvency Event means the occurrence of any one or more of the following events in relation to a party:

(a)     it is insolvent as defined by section 95A of the Corporations Act as disclosed in its accounts or otherwise, states that it is insolvent, is presumed to be insolvent under an applicable law (including under section 459C(2) or section 585 of the Corporations Act) or otherwise is, or states that it is, unable to pay all its debts as and when they become due and payable;

(b)     any step is taken to appoint, or have appointed, an administrator, controller, receiver, receiver and manager, liquidator or a provisional liquidator or other like person to it or any of its assets, operations or business;

(c)     an application is made to a court for an order, or an order is made, that it be wound up, declared bankrupt or that a provisional liquidator, receiver or receiver and manager be appointed;

(d)     it proposes a winding-up, dissolution or reorganisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors;

(e)     it ceases to carry on business or threatens to do so, other than in accordance with the terms of this agreement; or

(f)     anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the events set out in the above paragraphs of this definition.

Partner Terms means this agreement and its schedules and annexures and any subsequent variation.

Personnel means an employee, director, officer, agent, representative, contractor or sub-contractor of a party.

Privacy Policy means Style Arcade's privacy policy as set out at www.stylearcade.com/privacy-policy

Products means the products and services offered for sale by Style Arcade and which the Partner may promote to prospective Customers, including Style Arcade's software or platforms, as specified in Schedule 1.

Style Arcade Partner Terms means the Software Proposal and Terms and Conditions, and other legal documents, relating to the Products provided by Style Arcade from time to time.

Subscription Fee means the fees payable on a subscription basis by a Customer to Style Arcade to access and use the Products, as described as such in the Style Arcade Partner Terms, excluding any set up fees, fees for any additional services such as support services, Service Fees or other fees in relation to the Products and any taxes, bank fees or applicable duties.

Qualified Referral has the meaning set out in clause 7.2.

Referral means a Customer for which the Partner is directly responsible for soliciting and referring to Style Arcade in accordance with these Partner Terms.

Referral Process has the meaning set out in clause 7.1.

Related Company means a related body corporate as defined in the Corporations Act 2001 (Cth).

Term has the meaning set out in clause 3.


2.2.    Interpretation 

In these Partner Terms, unless the context requires otherwise:

(a)     words in the singular include the plural and vice versa;

(b)     headings (including those in brackets at the beginning of paragraphs) are for convenience only and do not affect the interpretation of these Partner Terms;

(c)     any reference to gender includes the other gender;

(d)     a reference to a clause, paragraph, schedule or annexure is a reference to a clause, paragraph, schedule or annexure, as the case may be, of these Partner Terms;

(e)     if any act which must be done under these Partner Terms is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;

(f)     a reference to any legislation includes subordinate legislation and all amendments, consolidations or replacements from time to time;

(g)    a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity;

(h)     the words "includes" and "including" or words of similar effect are not words of limitation;

(I)     no clause of these Partner Terms shall be interpreted to the disadvantage of a party merely because that party drafted the clause or would otherwise benefit from it;

(j)     a reference to a party includes the party’s successors, assigns and persons substituted by innovation;

(k)     a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;

(l)     a reference to time and date is to local time and dates in New South Wales, Australia; and

(k)     unless specified otherwise, a reference to “$” or “dollars” refers to Australian dollars.


3.    Term

3.1     These Partner Terms commence on the Commencement Date and ends on the Expiry Date (Initial Term), unless terminated earlier or extended in accordance with these Partner Terms (Term).

3.2     On the Expiry Date, the term of the agreement will be automatically extended for a period of one (1) year (Extended Term) at the end of the Initial Term and at the end of each Extended Term, unless either party provides 30 days' written notice to the other to terminate.


4.    Referral Relationship

4.1     The parties agree that the Partner may obtain Referrals for Style Arcade and the Products as set out in Schedule 1, in accordance with the terms of these Partner Terms.

4.2     The Partner acknowledges and agrees that it does not have the authority to enter into binding arrangements on behalf of Style Arcade and that all such arrangements must be sent to Style Arcade for written acceptance before any arrangement will be considered binding on Style Arcade.

4.3     The Partner agrees not to, except to the extent expressly permitted by these Partner Terms or authorised in writing by Style Arcade:

(a)     do any acts on behalf of Style Arcade;

(b)     hold out that the Partner is authorised to act on behalf of Style Arcade;

(c)     enter into any contract binding, or purporting to bind, Style Arcade or exposing Style Arcade to any liability on any basis;

(d)     vary or waive any term of any Style Arcade Partner Terms; or

(e)     misappropriate Customer and prospective customer lists or details or use such lists or details for any purpose other than for the performance of its obligations under these Partner Terms.

4.4     Despite anything else stated or implied in these Partner Terms, Style Arcade reserves the right to:

(a)     accept or reject any order for the Products;

(b)     continue to sell and supply the Products to Customers and prospective Customers in any area;

(c)     vary any of its pricing for the Products;

(d)     engage any other parties to act as its agent for the marketing, sale and dissemination of the Products; and

(e)     vary any of the Products that it offers for sale including adding or removing Products.


5.    Special Conditions


5.1     The parties agree that the Special Conditions set out in Schedule 1, applies to these Partner Terms.  In the event of any inconsistency between the Special Conditions and the other provisions of these Partner Terms, the Special Conditions will prevail to the extent of the inconsistency.


6.    Partner's Obligations

6.1     Obtaining referrals

The Partner agrees that it will:

(a)     use its best endeavours to obtain Qualified Referrals for Style Arcade, in accordance with clause 7;

(b)     actively procure new business opportunities and Customers for the Products;

(c)     use its best endeavours to promote and extend the sales of the Products to potential Customers;

(d)     use its best endeavours to distribute marketing materials in relation to the Products, to Customers;

(e)     bear all costs associated with, or necessary to, market and procure Qualified Referrals to Style Arcade;

(f)      not in marketing and promoting or the Products or Style Arcade, make any representations or give any warranties other than those provided by Style Arcade in writing or make any misleading or deceptive representations in relation to the Products;

(g)     use any Style Arcade IP in accordance with any guidelines or instructions provided by Style Arcade in writing from time to time; and

(h)     in marketing or promoting Style Arcade and/or the Products, acknowledge and inform Customers that Style Arcade is the owner of the Product and the Style Arcade IP and will not represent itself, including by omission, as the owner of the Products.

6.2     General obligations

The Partner agrees that it will:

(a)     exercise reasonable care and skill in performing its obligations under these Partner Terms;

(b)     will in all matters act loyally and faithfully to Style Arcade and comply with its instructions and in the absence of any instructions for any particular matter will act in a manner they reasonably consider to be most beneficial to Style Arcade's interests;

(c)     will promptly bring to the notice of the company any information received by them which is likely to be of use or benefit to the company in marketing the goods;

(d)     will immediately notify Style Arcade of any actual or potential disputes arising with a prospective Customer and resolve any such disputes to the satisfaction of Style Arcade; and

(e)     will not, at any time, do anything (including making statements in any form) that may cause loss or damage to Style Arcade or its related companies or bring the name of Style Arcade or its Related Companies or Products into disrepute.


7.    Referrals

 

7.1     The Partner agrees to refer Customers to Style Arcade for the provision of Products by providing an email or phone introduction of the Customer to Style Arcade (Referral).

7.2     A Referral is a Qualified Referral if the following conditions are satisfied:

(a)     the Customer has not previously been engaged with Style Arcade and/or is not already a customer of Style Arcade, by way of having entered Style Arcade Documents;

(b)     Style Arcade accepts the referral of the Customer by agreement in writing;

(c)     the Customer validly executes the Style Arcade Documents and makes its first payment under the Style Arcade Documents within six (6) months of the Referral; and

(d)     the Customer does not fall under any of the Exclusions set out in Schedule 1.

 

7.3     The parties acknowledge and agree that Style Arcade may, in its sole discretion, reject any Customer or any claim for Commission which do not satisfy the conditions set out in clause 7.2.


8.    Commission and Payment

8.1     Style Arcade agrees to pay the Commission, in relation to Qualified Referrals, to the Partner, as set out in Schedule 1, subject to:

(a)     the Customer being deemed by Style Arcade, to be a Qualified Referral; and

(b)     the Customer paying Style Arcade all fees payable under the Style Arcade Documents; and

(c)     the Partner issuing Style Arcade with an Invoice in accordance with this clause 8.

8.2     Once a Qualified Referral is onboarded by Style Arcade, Style Arcade will notify the Partner in writing, confirming the amount of the Commission and for the period in which the Commission is payable.  The Partner must confirm in writing to Style Arcade that the Commission is accepted (Confirmation).  If the Partner does not provide Confirmation that such Commission is accepted, in writing, within five (5) Business Days' of receiving the notification, the parties agree that no Commission is payable to the Partner. 

8.3     By providing Confirmation to Style Arcade, the Partner authorises Style Arcade to prepare invoices on behalf of the Partner to Style Arcade, for the amount of the Commission, for each month that it is entitled to the Commission (Invoice) and the Partner is deemed to accept such Invoices and is deemed to have issued such Invoices to Style Arcade on the date that Style Arcade provides such Invoice to the Partner.

8.4     The Partner acknowledges and agrees that it is not entitled to issue any separate or other invoice to Style Arcade in respect of the Commission or otherwise in relation to this Agreement.

8.5     By accepting the Invoice, the Partner warrants and represents to Style Arcade that the information and details provided in the Invoice are up to date, correct and accurate and the Partner indemnifies Style Arcade for any actions, claims, losses, expenses or any other liabilities arising out of or in connection with the Invoice.

8.6     Within thirty (30) days of the issue of an Invoice by the Partner to Style arcade, Style Arcade will pay the Commission to the Partner as set out in the Invoice.

8.7     Where applicable (for example, if the Commission is a percentage amount), the Commission is only calculated on amounts actually paid by the Customer to Style Arcade in that period. The parties agree that Style Arcade is not liable to pay any Commission on any amounts not paid by a Customer.

8.8     If the Customer fails to pay the applicable Subscription Fee or if such fee is reimbursed, refunded, suspended, terminated, or otherwise not paid to Style Arcade until the Customer resumes payment, Style Arcade may immediately cease paying the Commission.

8.9     If a Customer has terminated the purchase of Products, or is refunded or reimbursed Subscription Fees in which the Partner had received a Commission, Style Arcade may invoice the Partner for the amount of such Commission and the Partner must pay such invoice within the time frame set out in the invoice.

8.10     The Partner acknowledges and agrees that:

(a)     it will not accept any payment directly from Customers; and

(b)     if any Customers make payment to the Partner then it will immediately advise Style Arcade and remit those funds to Style Arcade as directed by Style Arcade.


9.    Marketing and promotions

 

9.1     The Partner agrees that all proposed promotion and marketing relating to the Products or the branding of Style Arcade are required to be submitted in writing to the Style Arcade for prior approval in writing (Marketing Proposal).

9.2     The Partner agrees that it will, at its cost, carry out the marketing activities set out in the Marketing Proposal as approved by Style Arcade.

9.3     The Partner agrees that it will not make any public or media announcement in relation to Style Arcade without the prior written consent of Style Arcade and that it will not engage in any conduct or act that may disparage, defame or in the opinion of Style Arcade, may otherwise negatively impact Style Arcade’s reputation, Style Arcade or the Products.

10     Insurance

10.1     The Partner shall effect and at all times maintain all the following insurance:

(a)     insurance required to be effected by law including worker's compensation insurance as prescribed by law for the Partner's Personnel;

(b)     public liability insurance for a minimum of an amount of $20 million for each occurrence; and

(c)     any other insurances as reasonably required by Style Arcade from time to time.

10.2     At the request of Style Arcade, the Partner shall supply a copy of the insurance policies and certificates of currency to Style Arcade and ensure that Style Arcade shall be entitled to the benefit of such insurances. If the Partner fails to provide such evidence, Style Arcade may withhold payment of any Commissions until the evidence is provided.

11     Warranties

11.1     The Partner warrants and represents to Style Arcade that:

(a)     it has legal capacity, power and authority to enter into and be bound by these Partner Terms;

(b)     entering into and complying with these Partner Terms will not breach any other obligations it has under any other Partner Terms;

(c)     it will comply with any reasonable directions given to it by Style Arcade time to time;

(d)     it will comply with Style Arcade's Privacy Policy and the Privacy Act 1988 (Cth) in relation to Customer details and information; and

(e)     it will act lawfully and in performing is obligations under these Partner Terms, will comply with any applicable licenses, laws, regulations, industry standards or codes of conduct, health and safety requirements.

12     Intellectual Property

12.1     The parties acknowledge and agree that Style Arcade holds the right, title, licence and/or ownership of the Intellectual Property in Style Arcade and the Products, including any software, logos, trade marks (registered or unregistered), designs, patents (Style Arcade IP) and that such ownership shall never pass to the Partner under these Partner Terms.

12.2     For clarification, the parties acknowledge and agree that all concepts, sketches, designs, software, plugins and Products developed in connection with these Partner Terms or the Products, whether or not undertaken by the Partner, whether or not modified, accepted or rejected by Style Arcade constitute Style Arcade IP for the purposes of this clause 12.

 

12.3     Subject to the Partner complying with its obligations under these Partner Terms, Style Arcade grants to the Partner a royalty free, revocable, non-exclusive, licence to use the Style Arcade IP for the sole purpose of performing its obligations under these Partner Terms.

 

12.4    The Partner agrees that it will:

(a)     not challenge Style Arcade’s licence, right, title and ownership of the Style Arcade IP;

(b)     not either on its own or through any other party, reverse-engineer, develop, use, sell or otherwise make available any goods, services or Intellectual Property which infringes the Intellectual Property rights of Style Arcade in the Style Arcade IP;

(c)     not either on its own or through any other party, reverse-engineer, develop, use, sell or otherwise make available any goods, services or Intellectual Property which is similar to the Products and Style Arcade IP, or contains similar functionality or purposes to the Products and Style Arcade IP;

(d)     notify Style Arcade immediately of any actual or suspected breach of the intellectual property rights in the Style Arcade IP; and

(e)     assist Style Arcade to defend and protect the Intellectual Property rights in the Style Arcade IP.

12.5     If any third party claims that the Partner or a Customer is in breach of the Intellectual Property rights of any third party in respect of the Products, the Partner agrees to:

(a)     inform Style Arcade of that claim as soon as the Partner becomes aware of such claim;

(b)     immediately cease using the Product if requested by Style Arcade;

(c)     provide Style Arcade with reasonable assistance in conducting the defence of the claim; and

(d)     comply with a reasonable direction of Style Arcade, including where such Products must be modified or substituted (at Style Arcade’s expense) to avoid continuing infringement.

13     Termination

13.1     Termination for convenience

Either party may terminate these Partner Terms by giving not less than 30 days' written notice to the other.

 

13.2     Termination for breach

Without affecting any other right or remedy available to it, Style Arcade may terminate this agreement with immediate effect by giving written notice to the Partner if:

(a)     the Partner commits a breach of any term of these Partner Terms and either:

(i)     the breach is irremediable; or

(ii)    the breach is remediable and the Partner fails to remedy that breach within a period of two (2) Business Days' after the Partner has, or is deemed to have, received written notice requesting it to do so.

(b)     an Insolvency Event occurs in relation to either party (and the Corporations Act does not prevent the non-defaulting party from terminating these Partner Terms because of that Insolvency Event);

(c)     any warranty given by the Partner in clause 11.1 of these Partner Terms is found to be untrue or misleading; or

(d)     the Partner breaches clause 6 (Partners obligations), 15 (Confidentiality) or any Special Condition set out in Schedule 1.

14     Effect of termination

14.1     The termination of these Partner Terms will not release either party from any obligation or liability to the other party, including any payment and delivery obligation that:

(a)     has accrued under this agreement before termination;

(b)     comes into effect because of the termination of this agreement; or

(c)     otherwise survives the termination of this agreement.

 

14.2     Within two (2) Business Days' after termination of these Partner Terms, the Partner must:

(a)     cease to provide and use the Products;

(b)     cease representing itself as the agent of Style Arcade;

(c)     provide all documentation, details and a list of Customers and potential customers that were being either targeted or marketed to by the Partner during the term of these Partner Terms, including their contact details, to Style Arcade;

(d)     if requested by Style Arcade, provide all reasonable assistance to Style Arcade to inform Customers a, in a manner approved by Style Arcade, that it will no longer be managing their Products, introduce any Customers and potential Customers to Style Arcade and inform these parties that Style Arcade will be managing the Products and provide for a smooth transition for Customers from the Partner to Style Arcade;

(e)     to the extent that return is possible, return to Style Arcade, Style Arcade's Confidential Information and all copies of it; or

(f)     to the extent that return is not possible, destroy all copies of Style Arcade's Confidential Information; and

(g)     deliver to the other party all property belonging to Style Arcade that is in its possession or control.

15     Confidentiality

15.1     Both parties agree to keep the Confidential Information of the other party confidential and to use such information only for the purposes of performance of their respective obligations under these Partner Terms.

15.2     A party must:

(a)     not disclose any Confidential Information of the other party to anyone else except as permitted under these Partner Terms;

(b)     limit the disclosure of the Confidential Information within its own organisation only to those of its officers and employees to whom such disclosure is strictly necessary for the purposes of these Partner Terms and who have been made aware of its confidential nature and have agreed to keep the information confidential in accordance with the terms of this clause; and

(c)     not use the name of the other party in publicity releases, advertising or promotion of the party unless the other party has given its prior written consent (which shall not be unreasonably withheld).

15.3    The obligations of confidentiality in clause 15.2 will not apply to information which:

(a)     is generally available in the public domain except where such availability is as a result of a breach of these Partner Terms;

(b)    was known prior to the disclosure of the information by the other party; or

(c)is required to be disclosed by an applicable law or court order.

16     Limitation of Liability and indemnity

16.1     The Partner agrees that except in relation to personal injury or death, Style Arcade is not liable to the Partner, or any party claiming through the Partner, for any loss (whether direct, indirect or consequential loss or damage or otherwise) suffered or liability incurred by that party caused by or resulting from anything a party does or does not do, or delays in doing, whether or not it is contemplated or authorised by these Partner Terms.  This exclusion applies however liability arises or might arise (whether through tort or contract) if it were not for this clause 16, irrespective of damages or liability claimed, including:

(a)    loss of profits or business;

(b)    loss, destruction or corruption of data; or

(c)     expenses incurred for reconstructing or re-entering data.

16.2     To the maximum extent permitted by law, Style Arcade's total aggregate liability to the Partner under or in any way connected with these Partner Terms, or the performance or non-performance of these Partner Terms, whether under the law of contract, tort or otherwise, is limited to the lower of:

(a)     $1,000.00; or

(b)     an amount equal to the amounts paid by Style Arcade to the Partner under these Partner Terms in the 12 month period immediately preceding the date on which the relevant claim arose.

16.3     To the maximum extent permitted by law, the Partner will not be entitled to commence any action or claim whatsoever against Style Arcade in respect of these Partner Terms, or the performance or non-performance of these Partner Terms, whether under the law of contract, tort or otherwise, on the expiration of three (3) years after Expiry Date.

16.4     To the maximum extent permitted by law, Style Arcade expressly excludes any conditions, warranties, guarantees, representations, undertakings, rights, remedies, liabilities or other terms, under the general law or by statute in favour of the Partner under these Partner Terms, including in relation to the Products, except as expressly set out in these Partner Terms.

 

16.5     Style Arcade makes no warranty that the Products are error-free or free from defects or interruption.

 

16.6     The Partner indemnifies Style Arcade and its Personnel, and will keep all of them indemnified, against all actions, claims, charges, costs (including legal costs on a full indemnity basis), expenses, losses, damages and other liability that they may sustain or incur, directly or indirectly, as a result or as a consequence of:

(a)     an actual breach, or a suspected breach (in the opinion of Style Arcade), of these Partner Terms by the Partner (including a breach of any warranty);

(b)     any negligent, unlawful, wilful or fraudulent act or omission of the Partner or its Personnel, in connection with these Partner Terms;

(c)     any loss of or damage to any property or injury to or death of any person caused by any negligent or fraudulent act or omission or wilful misconduct of the Partner or any of its Personnel; and

(d)     any claim that Style Arcade infringes the intellectual property rights or other rights of any person.

17     Dispute Resolution

17.1     If a dispute arises out of or relates to these Partner Terms, a party must not commence any court or other proceedings relating to the dispute unless it has first complied with the following procedure:

(a)     the party claiming that a dispute has arisen must give written notice to the other party specifying the nature of the dispute;

(b)     on receipt of that notice by that other party, the parties must endeavour in good faith to resolve the dispute using informal dispute resolution techniques such as mediation, expert evaluation, arbitration or similar methods agreed by them;

(c)     if the parties do not agree within 10 days of receipt of the notice (or such further period as the parties agree in writing) as to:

(i)     the dispute resolution method and procedures to be adopted;

(ii)    the timetable for all steps in those procedures; and

(iii)   the selection and compensation of the independent person required for such method,

the parties must mediate the dispute in accordance with the Mediation Rules of the Law Society of New South Wales.

 

17.2     Nothing in these Partner Terms will prejudice the right of a party to seek injunctive or declaratory relief in respect of a dispute or any matter arising under these Partner Terms.

18     GST

18.1     Words used in this clause 18 that have a defined meaning in the GST Law have the same meaning as in the GST Law unless the context indicates otherwise.

18.2     Unless expressly stated otherwise, the consideration for any supply under or in connection with these Partner Terms is exclusive of GST.

 

18.3     To the extent that any supply made under or in connection with this agreement is a taxable supply (other than any supply made under another agreement that contains a specific provision dealing with GST), the amount payable by the recipient is the consideration provided under this agreement for that supply (unless it expressly includes GST) plus an amount (additional amount) equal to the amount of that consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply.

18.4     The recipient must pay the additional amount at the same time as the consideration to which it is referable, and upon the issue of an invoice relating to the supply.

18.5     Whenever an adjustment event occurs in relation to any taxable supply to which clause 18.3 applies:

(a)     the supplier must determine the amount of the GST component of the consideration payable; and

(b)     if the GST component of that consideration differs from the amount previously paid, the amount of the difference must be paid by, refunded to or credited to the recipient, as applicable.

18.6     If either party is entitled under this agreement to be reimbursed or indemnified by the other party for a cost or expense incurred in connection with this agreement, the reimbursement or indemnity payment must not include any GST component of the cost or expense to the extent that the cost or expense is the consideration for a creditable acquisition made by the party being reimbursed or indemnified, or by its representative member.

19     Notices

19.1     In these Partner Terms, Notices include any approvals, consents, instructions, orders, directions, statements, requests and certificates or other communications that may be given, or are required to be given, under these Partner Terms.

19.2     Unless expressly stated otherwise in this agreement, all Notices:

(a)     must be:

(i)     in writing;

(ii)    signed -- if the party is a company, then the Notice must be signed by the company's directors or solicitors; and

(iii)  left at the address, sent by prepaid ordinary post, sent by fax, or given in any other way permitted by law.

(b)    take effect from the time they are received unless a later time is specified.

30      General 

20.1     Assignment: The Partner must not assign, transfer, novate or deal with the whole or any part of its rights or obligations under these Partner Terms (including sub-contracting or sub-licensing) without the prior written consent of Style Arcade.  Any purported dealing in breach of this clause is of no effect.  A change in control (as defined in the Corporations Act) of the Partner constitutes a deemed assignment.

20.2     Costs: Each party must pay its costs of entering into and negotiation of these Partner Terms.

20.3     Counterparts: These Partner Terms may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of these Partner Terms, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each party has executed at least one counterpart. The parties agree that an executed electronic copy of a digital scan (including in portable document format), of these Partner Terms (where such email address has been notified by a party to another party for these purposes) will serve as a legal and binding agreement with the same force and effect as the original.

 

20.4     Entire agreement: These Partner Terms is the entire agreement between the parties and supersedes all and any communications, negotiations, arrangements and agreements, whether oral or written, between the parties in respect of the matters that are the subject of these Partner Terms.

 

20.5     Force majeure: If by reason of any fact, circumstance, matter or thing beyond the reasonable control of Style Arcade either is unable to perform in whole or in part any obligation under these Partner Terms then:

(a)     Style Arcade is relieved of that obligation under these Partner Terms to the extent and for the period that it is unable to perform such obligation; and

(b)     Style Arcade will not be liable to the Partner for failure to perform such obligation to the extent and for the period of non-performance contemplated by this clause.

20.6     Further assurance: Each party must from time to time and in a timely manner do all things reasonably required of it by the other party to give effect to these Partner Terms.

20.7     No representations or warranties: The parties hereby acknowledge that no representations or warranties have been made other than those expressly recorded in these Partner Terms and that, in respect of these Partner Terms or any part of it including the transactions contemplated pursuant to these Partner Terms, no party has relied or will rely upon any representations or information, whether oral or written, previously provided to or discovered by it.

 

20.8      Relationship: Except as expressly stated in these Partner Terms, nothing in these Partner Terms is intended to create a relationship of partnership, joint venture, agency or employer-employee between the parties. Neither party has authority to create, assume or otherwise enter into any agreement that imposes rights or obligations on the part of the other party.

 

20.9     Powers, rights and remedies:  Unless otherwise stated in these Partner Terms, the powers, rights and/or remedies of a party under these Partner Terms are cumulative and are in addition to any other powers, rights and remedies of that party. Nothing in these Partner Terms merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right, or remedy that a party may have at any time against the other party to these Partner Terms or any other person.

 

20.10    Set off: Style Arcade is authorised to deduct any amount due and payable by the Partner from amounts otherwise due and payable to the Partner under or in connection with these Partner Terms.  Any exercise by a party of its rights under this clause does not limit or affect any other rights or remedies available to it under these Partner Terms or otherwise.

 

20.11    Severance: If any provision of these Partner Terms is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from these Partner Terms and rendered ineffective as far as possible without modifying the remaining provisions of these Partner Terms, and shall not in any way affect any other circumstances of or the validity or enforcement of these Partner Terms.

 

20.12    Survival: The following clauses are continuing obligations and will continue after termination or expiry of these Partner Terms: 1 (Definitions and interpretation), 11 (Warranties), 14 (Effect of termination), 15 (Confidentiality), 16 (Limitation of liability and indemnity), 17 (Dispute Resolution) and 20 (General).

 

20.13    Third parties: These Partner Terms does not, and is not intended to, confer any rights or remedies upon any person other than the parties.

 

20.14    Waiver: A failure by either party to take action to enforce its rights does not constitute a waiver of any right or remedy under these Partner Terms unless it is in writing signed by the party granting the waiver.

 

20.15    Jurisdiction: The parties irrevocably submit to the exclusive jurisdiction of the courts of the state of New South Wales, Australia.

 

20.16    Governing law: These Partner Terms will be governed by and construed and interpreted in accordance with the laws of New South Wales, Australia.

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