Terms & Conditions – Affiliate Program

1 OVERVIEW

(a) Archistar is engaged in the business of developing and commercialising property software solutions and is a world leading provider in the use of AI based generative design solutions.
(b) Referrer has agreed to assist to promote Archistar in exchange for Archistar providing a referral fee payment to Referrer.
(c) This Agreement includes these terms and the details set out in the Schedule.
(d) In the event of any express inconsistency, the provisions of the Schedule will prevail over these terms.

2 TERM

(a) This Agreement commences on the Commencement Date and continues until the expiry of the Initial Term, unless terminated earlier in accordance with clause 8.
(b) After the Initial Term, if not terminated earlier in accordance with clause 8, this Agreement will continue on a year-to-year arrangement until either party gives notice to terminate, in which case, it will terminate 90 days after such notice is given.

3 WORKING TOGETHER AND COOPERATION

(a) Each party will act in a professional and cooperative manner when dealing with the other party.
(b) The parties will always act reasonably and in good faith when dealing with each other.
(c) Senior representatives from both parties will formally meet every 6 months to monitor progress under this Agreement. These meetings may take place by electronic conferencing technology.

4 REFERRALS

(a) Where appropriate, Referrer will introduce Referrer’s clients and associates to Archistar in accordance with a process set out below or otherwise agreed between the parties.
(b) Archistar will provide Referrer with a unique code (“Code”). Referrer may provide the Code to potential customers who may be interested in using the Archistar Platform.
(c) Where an Eligible Client signs up to an annual subscription with Archistar for the Archistar Platform, and provides the Code in sign-up process, then this Eligible Client will be a Referred Client for the purposes of this Agreement. An Eligible Client may only provide one Code to Archistar.
(d) Where a Referred Client of Referrer becomes a paying client of Archistar during the Term because of a referral from the Referrer that complies with this Agreement, then Archistar will pay to Referrer a Fee equal to 10% of the gross revenue (not including GST) for the subscription to the Archistar Platform that is actually collected from the Referred Client in the first one-year period that the Referred Client is a client of Referrer.
(e) No referral fee is payable where the referred client is already a client of Archistar or has been an active client of Archistar in a two-year period prior to the referral.
(f) Referrer does not guarantee any volume of referrals or business resulting from this Agreement.
(g) Archistar will provide Referrer with training and sales collateral that Archistar considers appropriate.
(h) Referrer acknowledges that it is Archistar’s right to determine whether Archistar will enter into a client agreement with any person referred by Referrer and that it is Archistar’s decision to determine the fees charged to such persons.
(i) Archistar will handle ongoing billing and client management with the Referred Client.
(j) Archistar will report to Referrer monthly as to the amounts collected from Referred Clients in the previous month but will not identify the Referred Clients in such reports.
(k) Archistar does not guarantee any volume of Fees resulting from this Agreement.
(l) Referrer is not an agent of Archistar and has no power to bind Archistar.

5 QUALITY CONTROL

(a) When discussing Archistar with a client of Referrer, Referrer will make statements that are true and positive regarding Archistar. Referrer must not make statements about Archistar or its products and services that are untrue, misleading or deceptive.
(b) Archistar does not permit pay-per-click. This includes bidding on brand terms, variations, and misspellings. Referrer is not authorised to use Archistar’s domain name as the display URL in any paid search activity on any search engine.
(c) Referrer must not include “Archistar” or variations or misspellings thereof in Referrer’s domain name or any domain name owned or used by Referrer.
(d) Referrer must not infringe Archistar’s trademarks or brands. Without limitation, Referrer must not bid on keywords that are substantially identical or deceptively similar to any of Archistar’s trademarks.
(e) Referrer may not create or design Referrer’s website or any other website that Referrer operates, explicitly or implied in a manner that resembles Archistar’s website or platform, nor design Referrer’s website in a manner that leads customers to believe Referrer is Archistar or any other affiliated business.
(f) Referrer must comply with all relevant Laws, include privacy laws and anti-spam laws.
(g) Referrer is required to follow all applicable Laws that pertain to Referrer’s website and advertising. Archistar will not be responsible (and Referrer will be solely responsible) if Referrer uses another person’s copyrighted material or other Intellectual Property Rights in violation of any Law or any third-party rights.
(h) In addition, Referrer may not advertise in any way that effectively conceals or misrepresents Referrer’s identity, Referrer’s domain name, or Referrer’s contact details.
(i) At all times, Referrer must clearly represent Referrer and Referrer’s websites as independent from Archistar.

6 FEES, PAYMENT AND TAXES

6.1 Fees and Payment

(a) All Fees must be invoiced and paid in Australian dollars.
(b) Once the Fee is calculated as per clause 4(d) above, then GST is added to the Fee.
(c) Within 21 days of the end of each calendar month, Archistar must provide Referrer with a RCTI for the Fees payable in respect of that calendar month, in accordance with the RCTI requirements set out below. Archistar must pay such invoice by the end of the calendar month in which the RCTI is issued.
(d) Each RCTI issued by Archistar must be dated the last day of the calendar month to which it relates and must be delivered promptly after the end of that calendar month and no later than 21 days after the end of each calendar month.
(e) When issuing an RCTI, Archistar will ensure that the RCTI complies with any specifications in the GST Act.
(f) Subject to Archistar meeting its obligations under this clause, Referrer will not issue a tax invoice or adjustment note in respect of the applicable Fees.
(g) Both parties represent to the other that at the time of entering into this agreement to provide a RCTI, they are each registered for GST.
(h) Each party will notify the other party if it ceases to be registered for GST or it ceases to comply with any of the requirements of any taxation ruling issued by an authority relating to the creation of RCTIs.
(i) Either party may set off any amount that is or may become due to it from the other party against any amount that is or may become due from it to the other party under this Agreement. This right of set-off shall be in addition to any other right of set-off that may be available at law or in equity.
(j) A party, acting reasonably and in good faith, may dispute an invoice. If so, that party may withhold payment of the amount in dispute until the dispute is resolved but must pay the undisputed amount on time.
(k) If an invoice is disputed, the parties will work together to resolve such dispute in good faith and where applicable, the party issuing the disputed invoice will submit a revised invoice to the other party.

6.2 GST

(a) If GST is payable on a supply made under or in connection with this Agreement, the party providing the consideration for that supply must pay as additional consideration an amount equal to the amount of GST payable on that supply.
(b) Unless otherwise stated, all amounts referred to in this Agreement, including the Fees, are stated on a GST exclusive basis.
(c) If an adjustment event occurs in relation to a supply made under or in connection with this Agreement, the GST payable on that supply will be recalculated to reflect that adjustment and an appropriate payment will be made between the parties.
(d) In providing an invoice, a party shall provide proper tax invoices if GST is applicable to the Fees.
(e) Terms which have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (“the GST Act”) shall have that meaning in this Agreement.

7 PRIVACY

(a) Each party must comply with all relevant Privacy Laws in respect of information that:
(i) one party discloses to or collects for the other party; or
(ii) comes into the possession or control of that party arising out of or in relation to the performance of this Agreement.
(b) A party must not do anything that puts the other party in breach of any Privacy Law.
(c) It is the intention of the parties that no Personal Information be provided by one party to the other party.
(d) However, is personal information is provided, then each party must, throughout the Term, obtain all necessary consents, and provide all necessary collection notices, including those required by the Privacy Laws, in relation to the collection, use, disclosure and storage of Personal Information of any individual whose Personal Information may be provided to the other party, directly or indirectly, as contemplated by this Agreement.

8 TERMINATION

(a) Either party may terminate this Agreement with immediate effect by giving written notice to the other party at any time if:
(i) the other party experiences an Insolvency Event; or
(ii) the other party breaches any material provision of this Agreement which is incapable of being remedied, or where the breach is capable of being remedied, fails to remedy the breach within 7 days after receiving written notice from the terminating party requiring it to do so; or
(iii) the other party assigns this Agreement contrary to the provisions of this Agreement or to a competitor of the party.
(b) Archistar may terminate this Agreement immediately if Archistar reasonably believes that Referrer’s conduct or actions could result in liability for or damage to Archistar or otherwise harm Archistar or its end users.

9 WARRANTIES

(a) Each party warrants to the other party that it:
(i) has the authority to enter into and perform its obligations under this Agreement and that this Agreement has been duly executed and is a legal, valid and binding Agreement;
(ii) has all applicable licenses, permits and government authorisations required to perform its obligations in accordance with this Agreement;
(iii) will not infringe any third-party Intellectual Property Rights when performing its obligations in accordance with this Agreement;
(iv) will comply with applicable Laws; and
(v) will not do anything or make any statement that could be reasonably expected to harm the reputation of the other party.
(b) Each party enters into this Agreement in reliance upon these warranties.

10 INDEMNIFICATION, DISCLAIMER AND LIMITATIONS ON LIABILITY

(a) Each party shall indemnify and defend the other party and its Personnel (“Indemnified Party”) against Losses reasonably sustained or incurred by the Indemnified Party as a result of any third-party claim for a cause of action, liability, claim, proceeding, suit or demand arising out of or in connection with any unlawful conduct, wilful misconduct or fraudulent act or omission of the party, or arising out of or in connect with any infringement of third party Intellectual Property Rights by the party.
(b) In respect of this indemnity, the Indemnified Party must notify the other party of a claim as soon as practical, keep the other informed of all material aspects of the claim of which the Indemnified Party is aware, and follow all reasonable directions of the other party relating to the claim. The Indemnified Party must not settle or compromise the claim or take any steps in relation to the claim that may prejudice the other party in any way without prior consent. The Indemnified Party must, at the other party’s cost, provide all cooperation and assistance reasonably requested by the other party in defending or otherwise addressing any claim. If the other party requests, other party will conduct the defence of the claim at its expense.
(c) Except to the extent prohibited by Law, neither party will be liable to the other party for any Consequential Loss suffered or incurred by the other party whether in contract, tort (including negligence) or otherwise in connection with the Agreement, even if a party has been advised of or is aware of the possibility of such damage.
(d) A party who suffers loss or damage must use reasonable steps to mitigate its loss. The other party will not be responsible for any loss, damage or expenses to the extent that the injured party could have avoided or reduced the amount of the loss, damage or expense, by taking reasonable steps to mitigate its loss.
(e) A party’s liability under this Agreement will be reduced proportionally to the extent to which any loss was caused or contributed to by any negligence or wilful misconduct of the other party.

11 ASSIGNMENT, SUBCONTRACTING AND NON-SOLICITATION

(a) Subject to (b), a party must not assign or novate, directly or indirectly, any of its rights or obligations under this Agreement without the prior written consent of the other party.
(b) A party may assign this Agreement in conjunction with the sale of all or substantially all of the assets of its business. The party assigning must give the other party prompt notice of the assignment.
(c) A party must not subcontract or delegate any of its obligations under this Agreement unless explicitly allowed in Schedule 1. For the purposes of this sub-clause (c), using a cloud service provider such as AWS or Microsoft Azure is not subcontracting or delegating.
(d) Each party will be fully responsible to the other party for any Loss suffered arising from or in connection with the acts or omissions of its sub-contractors, contractors, delegates, Personnel and assigns, as if they were the acts and omissions of the relevant party.

12 REPRESENTATIVES

(a) Schedule 1 set out the representatives of each party for the purposes of this Agreement. These representatives will be the first point of contact between the parties in relation to any matter relevant to the Agreement.
(b) The contact details of each representative may be updated from time to time by the party that appointed the relevant representative by notice in writing to the other party.

13 GENERAL

(a) This Agreement contains the entire agreement between the parties with respect to its subject matter.
(b) This Agreement may only be amended only by another written agreement executed by both parties.
(c) Nothing herein shall be construed as creating a minimum commitment for business on the part of either party.
(d) This Agreement does not create a relationship of employment, agency, partnership or trust between the parties. Unless explicitly stated in a written agreement, a party has no authority to bind the other party to any legal obligations.
(e) Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
(f) Any claim for breach of contract or breach of warranty must be notified to the other party within 90 days of the breach occurring, and any lawsuit relating to such breach must be filed within 1 year of the breach occurring.
(g) Each party must bear its own costs arising out of the negotiation, preparation and execution of this Agreement.
(h) This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.
(i) This Agreement and, to the extent permitted by law, all related matters including non-contractual matters, is governed by the laws of the State of New South Wales, Australia. In relation to such matters each party irrevocably accepts the non-exclusive jurisdiction of the Federal and State courts within the State of New South Wales and waives any right to object to the venue on any grounds.
(j) This Agreement may be executed in any number of counterparts. All counterparts will be taken to constitute one agreement.

14 DEFINITIONS AND INTERPRETATION

14.1 DEFINITIONS

The following definitions apply unless the context requires otherwise.

Commencement Date is defined in Schedule 1.

Consequential Loss means any indirect or consequential loss, and includes any loss of income, loss of actual or anticipated profits, loss of business, loss of anticipated savings, loss or damage to or corruption of data, loss of goodwill, loss of reputation, whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, indemnity or otherwise.

Eligible Client means a client or associate of Referrer who is not an existing client of Archistar and who has not been an active client of Archistar in a two-year period prior to the referral from the Referrer.

Fees means the fees, charges, commissions, referral fees and expenses set out in this Agreement.

Initial Term means the initial term set out in Schedule 1.

An Insolvency Event occurs in respect of a person where:
(a) a party ceases, suspends or threatens to cease or suspend the conduct of all or a substantial part of its business or disposes of or threatens to dispose of a substantial part of its assets;
(b) a party becomes unable to pay its debts when they fall due, or stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
(c) a party becomes or is (including under legislation) deemed or presumed to be insolvent;
(d) a party has a trustee, receiver, manager, administrator, administrative receiver or similar officer appointed in respect of it or the whole or any part of its assets or business;
(e) any composition or arrangement is made with any one or more classes of its creditors;
(f) except for the purpose of solvent amalgamation or reconstruction, an order, application or resolution is made, proposed or passed for its winding up, dissolution, administration or liquidation;
(g) a party enters into liquidation whether compulsorily or voluntarily; or
(h) any analogous or comparable event takes place in any jurisdiction.

Intellectual Property Rights means all industrial and intellectual property rights of any kind including but not limited to copyrights (including rights in computer software), trade marks, service marks, designs, patents, trade secrets, semi-conductor or circuit layout rights, trade, business, domain or company names, rights in Confidential Information, know how and other proprietary rights (whether or not any of these are registered and including any application, or right to apply, for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these, which may subsist anywhere in the world, but excludes moral rights, and similar personal rights, which by law are non-assignable.

Law means all applicable laws including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by laws, rules, regulatory principles, requirements and determinations, mandatory codes of conduct and standards, writs, orders, injunctions and judgments, and includes any Privacy Laws.

Loss means any claim, loss, damage, liability, cost, charge or expense (including legal expenses on a full indemnity basis), however arising, and whether present or future, fixed or unascertained, actual or contingent.

Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth), and includes information that can be used to distinguish or trace an individual’s identity, either alone or when combined with other information that is linked or linkable to a specific individual.

Personnel means, in respect of a person, any officer, employee, contractor, servant, agent, or other person under the person’s direct or indirect control and includes any subcontractors.

Privacy Laws means all legislation, principles, industry codes and policies, as amended or replaced from time to time, which relate to the collection, use, disclosure, storage or granting of access rights to Personal Information, and includes the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth).

Related Body Corporate has the meaning given to that term in section 9 of the Corporations Act.

Term means the period from the Commencement Date until the end of the Initial Term and any extension periods in accordance with clause 2(b).