General Partner Terms and Conditions
The Partner General Terms and Conditions are to be read in conjuction with the Omnyfy Partner Agreement and must be agreed to in conjunction with the Partner Agreement.
1) Promotion and Referrals
1.1 Promotion and marketing
(a) In promoting, marketing or in relation to any activity or service offered or carried in relation to the Platform and/or Platform Components, the Channel Partner must not:
(i) distribute any marketing materials, other than those provided to the Channel Partner by Omnyfy for that purpose, without Omnyfy’s prior written approval;
(ii) apply the Business Names or Trademarks to any marketing materials or the Channel Partner’s web site, without Omnyfy’s prior written approval;
(iii) express or imply a connection or affiliation between Omnyfy or the Channel Partner, or approval or endorsement of the Channel Partner or its activities by Omnyfy, other than as expressly confirmed by this agreement or otherwise confirmed in writing by Omnyfy; or
(iv) make any representations as to the price at which Omnyfy supply the Platform or any Platform Component to an End User, except in accordance with the prior written instructions of Omnyfy,
(b) The Channel Partner must not issue any press release or other public statement or announcement in relation to this agreement including but not limited to using the Omnyfy Intellectual Property, or concerning the Platform or Platform Components, without Omnyfy’s prior written approval.
This clause applies if a party to this agreement is, or becomes, liable to pay GST regarding any Supply of goods, services or anything else under this agreement.
Capitalised expressions which are not defined in this agreement, but which have a defined meaning in the GST Act have the same meaning in this clause.
2.2 GST payable in addition to consideration
If any Consideration is paid or payable or liable to be provided by a party under this agreement for any Taxable Supply by the other party (Supplier) under this agreement, then the Recipient of the Taxable Supply must pay, in addition to the Consideration, to the Supplier the GST payable on the Taxable Supply.
2.3 Tax Invoice
Tax Invoices issued pursuant to clause 9.3 of this agreement must comply with the requirements for a valid Tax Invoice under the GST Act. In the event of any Supply being made under this agreement to which clause 9.3 does not relate, the Supplier must provide to the Recipient a Tax Invoice or other documentation that complies with the requirements for a valid Tax Invoice under the GST Act within 7 days of the Supply being made.
2.4 Payment of GST
Subject to the Supplier issuing a Tax Invoice to the Recipient as required under clause 2.3, the Recipient must pay the GST on the Taxable Supply under this agreement to the Supplier at the same time as the Recipient pays the Consideration for the Supply to the Supplier.
2.5 Reimbursement or indemnity
Despite any other provision of this agreement, if the whole or part of any Consideration under this agreement is a reimbursement or an indemnity to one party of an expense, loss, outgoing or liability incurred or to be incurred by the other party, the Consideration excludes any GST included in such expense, loss, outgoing or liability incurred or to be incurred for which the other party can claim an Input Tax Credit. The other party will be assumed to be entitled to a full Input Tax Credit unless it can establish otherwise.
2.6 Adjustment Events
If an Adjustment Event occurs regarding a Supply under this agreement, the Supplier must issue to the Recipient an Adjustment Note regarding the Adjustment Event within seven days of the Supplier becoming aware of the Adjustment Event.
2.7 Additional amount
If the Adjustment Note gives effect to an Increasing Adjustment, the Recipient must pay to the Supplier the GST component of the Increasing Adjustment not later than the 28th day of the month following the month in which the Adjustment Note is issued to the Recipient.
2.8 Credit or refund
If the Adjustment Note gives effect to a Decreasing Adjustment, the Supplier must pay to the Recipient the GST component of the Decreasing Adjustment not later than the fourteenth Business Day of the month following the month in which the Adjustment Note is issued to the Recipient.
3 Other Taxes
Notwithstanding any other provision of this Agreement, if Omnyfy is required by any Law, whether Australian or international, to pay, deduct or withhold any Other Taxes or part thereof from any amounts due and payable by Omnyfy (or which have been paid by Omnyfy) or part thereof to the Channel Partner under this Agreement, or otherwise has any obligations in relation to any Other Taxes, then:
(a) such amounts payable to the Channel Partner are inclusive of such Other Taxes;
(b) Omnyfy may deduct, withhold, claim back or set off such Other Taxes or part thereof against any amounts due and payable or paid to the Channel Partner; and
(c) upon Omnyfy or a Government Agency’s request, the Channel Partner will promptly prepare and provide a relevant tax or other invoice or any other documentation or otherwise in relation to any Other Taxes and promptly comply with any requirements or directions (including by Omnyfy or a Government Agency) in relation to the Other Taxes.
Both parties must at all times maintain in full force and effect liability insurance as set out at Item 11 in Schedule 1 – Partner Agreement of this agreement during the Initial Term and any Renewal Term and for a period of 7 years after the termination or expiry of this agreement.
(a) Both parties must, on an annual basis, provide to each other a certificate confirming the currency of such coverage.
(b) Both parties must give to each other notification in writing of any other changes to the policies.
(c) The insurance premiums and all excess payments applicable to the insurances shall at all times be the responsibility of the party taking out the insurance policy.
(d) The effecting of insurance as required by this clause 16 shall not in any way limit the responsibilities, obligations or liabilities of the parties under other terms of this agreement.
5.1 Authority and capacity
Each party warrants and represents to the other party that:
(a) the execution and delivery of this agreement has been properly authorised by all necessary corporate action; and
(b) it has full corporate power and lawful authority and the legal power to execute and deliver this agreement and to perform or cause to be performed it obligations under this agreement.
5.2 Promotional activities
Both parties represent and warrant to each other that in promoting the Platform Components, it will comply with all applicable Laws (including, without limitation, the Competition and Consumer Act 2010 (Cth); the Privacy Act 1988 (Cth); the Spam Act 2003 (Cth); the Do Not Call Register Act 2006 (Cth); and GDPR).
6.1 Limitation of Liability
Subject to clauses 19.1 and 20.1(a), the Channel Partner acknowledges and agrees that:
(a) Omnyfy has not made any warranties regarding, or in connection with the Platform and/or Platform Components;
(b) all warranties conditions, representations, indemnities and guarantees with respect to the Platform and Platform Components, whether express or implied, arising by law, custom, prior oral or written statements or otherwise (including, but not limited to any warranty of merchantability, satisfactory quality, fitness for particular purpose and non-infringement) are hereby overridden, excluded and disclaimed;
(c) each party will have no liability in connection with this agreement for any incidental, special, indirect, consequential or punitive damages of any character, including without limitation, damages for loss of business or goodwill, work stoppage, loss of information or data, loss of revenue or profit, or computer failure, or other financial loss, regardless of the legal theory asserted, whether based on breach of contract, breach of warranty, tort (including negligence), software liability, or otherwise, and even if a party has been advised of the possibility of such damages, and even if a remedy set forth in this agreement is found to have failed of its essential purpose;
(d) neither party will have any liability (including as excluded at clause 20.1(c))in connection with any services, customisations, implementations, good, Improvements, licenses or otherwise by Omnyfy, the Channel Partner or any Third Party including to or for an End User or any Third Party; otherwise, notwithstanding anything to the contrary in this agreement, the total Liability of either party for matters related to, connected with or arising out of this agreement regardless of the cause of action, whether in contract, tort (including negligence) or breach of any Law or any other legal or equitable obligation is limited to the aggregate of all Commissions paid or payable to the Channel Partner during the 6 months prior to the date on which the Liability arose.
6.2 Statutory guarantees
Where any Law implies in this agreement any term or imposes any guarantee, and that Law avoids or prohibits provisions in a contract excluding, limiting or modifying the application of, or the exercise of, or liability under such term, such terms or guarantees as are not excludable will be deemed to be included in this agreement or operative. However, if the Law provides that the liability of Omnyfy may for any breach of such term be limited, such liability will be limited, at the option of Omnyfy, to any one or more of the following:
(a) if the breach related to goods, the replacement of the goods or the supply of equivalent goods; the repair of such goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and
(b) if the breach relates to services, the supplying of the services again; or the payment of the cost of having the services supplied again.
The Channel Partner hereby indemnifies, defends and holds harmless Omnyfy and its Personnel against all Losses and whether incurred by or awarded against Omnyfy and/or its personnel that Omnyfy and/or its personnel may sustain or incur as a result, whether directly or indirectly, of:
(a) any breach of this agreement by the Channel Partner including, but not limited to, a breach in respect of which Omnyfy exercises an express right to terminate this agreement; or
(b) any death, personal injury or damage to tangible property arising due to the Channel Partner’s acts or omissions;
(c) any breach of the Channel Partner’s obligations with respect to the Confidential Information and/or Intellectual Property Rights of Omnyfy, whether or not such obligations arise under this agreement;
(d) any negligent act or omission or wilful misconduct of the Channel Partner or its personnel; or
(e) any fraud or misleading or deceptive conduct of the Channel Partner or its personnel.
7.2 Benefit of indemnity
Omnyfy holds the benefit of any indemnities given under this agreement on trust for its personnel.
8 Assignment and Change of Control
8.1 Assignment Event
Neither party may assign its rights or delegate its duties under the Agreement either in whole or in part without the other party’s prior written consent, which shall not be unreasonably withheld, except that either party may assign the Agreement as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Any attempted assignment without consent will be void. The Agreement will bind and inure to the benefit of each party’s successors or assigns.
9 Dispute Resolution
9.1 Agreement to participate
Prior to commencing any legal proceedings (subject to clause 24.8), the parties agree to comply with the dispute resolution provisions of this clause 24 in respect to any dispute which arises between the parties in connection with this agreement.
9.2 Dispute notice
If there is a dispute between the parties, then any party may give a notice to the other parties involved in the dispute succinctly setting out the details of the dispute and stating that it is a dispute notice given under this clause 24.2 (Dispute Notice).
9.3 Notice in response
Within 7 days after the delivery of a Dispute Notice, a party receiving the Dispute Notice must deliver to the party issuing the Dispute Notice a notice in response:
(a) acknowledging the party’s receipt of the Dispute Notice;
(b) stating that it is a notice given under this clause 23.3; and
(c) succinctly setting out any information it believes is directly relevant to the dispute.
9.4 Resolving issues in good faith
Both parties will endeavour to resolve any issues in good-faith and with an aim to arrive at a mutually beneficial solution without prejudice. Both Parties will aim to meet either in person or via teleconference to discuss and resolve the issue that forms part of the Notice.
9.5 Failure to resolve
(a) If the dispute is not resolved within a further 14 days of the meeting held pursuant to clause 24.4 then then either party may refer the matter for Expert determination pursuant to clause 24.6.
9.6 Expert determination
(a) If either party refers a dispute to expert determination in accordance with clause 24.6, then that party may request that the President for the time being (or his or her nominee) of the Institute of Chartered Accountants in Australia (ABN 50 084 642 571) or a similar institute if dissolved or otherwise no longer in existence, appoint an expert to determine the dispute.
(b) The role of the expert appointed under clause 23.6(a) (Expert) is to determine the amount (if any) of Commissions or Channel Partner Program Fees (as applicable) properly payable by one party to the other in respect of the period the subject of the dispute.
(c) The Expert will act as expert and not as arbitrator and his or her determination pursuant to clause 23.6(b) will be final and binding. The parties must provide reasonable assistance (including by providing access to relevant business records), to the Expert in connection with the Expert’s investigation and consideration of matters the subject of the dispute.
(d) The Expert’s fees and expenses will be paid by:
(i) (if the Expert substantially agrees with the arguments and requested outcome sought by one party) the other party; or
(ii) otherwise, the parties in equal proportions.
9.7 Agreement remains in force
The parties must each continue to perform their respective obligations under this agreement pending resolution of the dispute.
9.8 Urgent or injunctive relief
Nothing in this clause 24 prevents any of the parties from seeking urgent or injunctive relief where damages may be an inadequate or inappropriate remedy.
9.9 Breach of this clause
If a party breaches this clause 24, the other party does not have to comply with this clause in respect of that dispute.
10 Force Majeure
10.1 Events of Force Majeure
If an event of Force Majeure arises, the affected party (Affected Party) must give written notice to the other party as soon as reasonably practical of:
(a) the nature of the event of Force Majeure; and
(b) each obligation the Affected Party:
(i) is prevented or is likely to be prevented from performing; or
(ii) will be delayed in performing and the anticipated duration of the delay,
and each party shall make all reasonable efforts to minimise the effects of the event of Force Majeure.
10.2 No liability
Neither party is responsible or bears any Liability for any omission or delay under this agreement as a result of an event of Force Majeure.
10.3 Termination as a result of Force Majeure event
In the event the Force Majeure continues for the continuous period of 90 days either party may terminate this agreement if the Force Majeure prevents the performance of this agreement as a whole.
11.1 Service of notices
A notice, consent, approval or other communication under this agreement (Notice) must be:
(a) in writing and signed by the sender or its duly authorised representative, addressed to the recipient and sent to the recipient’s address specified in of Schedule 2; and
(b) delivered by personal service, sent by pre-paid mail or transmitted or email, or any other lawful means.
11.2 Effect of receipt
(a) A Notice given in accordance with this clause 26 is treated as having been given and received:
(i) if personally delivered, on Delivery;
(ii) if sent by pre-paid mail, on the fifth clear Business Day after the date of posting (or the seventh Business Day after the date of posting if sent to or from an address outside Australia); and
(iii) if sent by email, at the time of transmission by the sender, unless the sender receives an automated notice generated by the sender’s or the recipient’s email server that the email was not delivered,
except that, if the Delivery, receipt or transmission is after 5.00pm in the place of receipt or on a day which is not a Business Day, it is taken to have been received at 9.00am on the next Business Day.
(b) The particulars for Delivery of Notices for each party are initially those set out in Schedule 2.
(c) A party may change its address for the Delivery of Notices by notifying that change to each other party in writing. The notification is effective on the later of the date specified in the Notice or five Business Days after the Notice is given.
12.1 Legal costs
Except as expressly stated otherwise in this agreement, each party must pay its own legal and other costs and expenses of negotiating, preparing, executing and performing its obligations under this agreement.
12.2 Governing law and jurisdiction
(a) This Agreement is governed by and is to be construed in accordance with the laws applicable in Victoria, Australia.
(b) Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria, Australia and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.
(a) Subject to clause 12.3(b), if a provision of this agreement is illegal or unenforceable in any relevant jurisdiction, it may be severed for the purposes of that jurisdiction without affecting the enforceability of the other provisions of this agreement.
(b) Clause 12.3(a) does not apply if severing the provision:
(i) materially alters the:
(A) scope and nature of this agreement; or
(B) the relative commercial or financial positions of the parties; or
(ii) would be contrary to public policy.
12.4 Further steps
Each party must promptly do whatever any other party reasonably requires of it to give effect to this agreement and to perform its obligations under it.
Except as expressly stated otherwise in this agreement, a party may conditionally or unconditionally give or withhold consent to be given under this agreement and is not obliged to give reasons for doing so.
Each indemnity in this agreement is a continuing obligation, separate and independent from other obligations in this agreement and survives termination of this agreement.
12.7 Rights cumulative
Except as expressly stated otherwise in this agreement, the rights of a party under this agreement are cumulative and are in addition to any other rights of that party.
12.8 Waiver and exercise of rights
(a) A single or partial exercise or waiver by a party of a right relating to this agreement does not prevent any other exercise of that right or the exercise of any other right.
(b) A party is not liable for any loss, cost or expense of any other party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right.
This agreement may consist of a number of counterparts and, if so, the counterparts taken together constitute one agreement.
The relationship between the parties established by this agreement is that of independent contractors. Nothing contained in this agreement shall be construed to constitute the parties as partners, joint venturers, co-owners, employer and employee or otherwise as participants in a joint venture or common undertaking. Neither party is entitled or authorised to assume or create any obligation on behalf of the other party.
12.11 Conflict of terms
(a) To the extent the terms of this agreement conflict with any order, invoice or other document, the terms of this agreement shall prevail to the extent of the inconsistency.
(b) Unless otherwise stated the terms of this agreement shall prevail to the extent of any inconsistency with the terms and conditions of the Schedule or Annexure to this agreement.
12.12 Entire understanding
(a) This agreement contains the entire understanding between the parties as to the subject matter of this agreement.
(b) All previous negotiations, understandings, representations, warranties, memoranda or commitments concerning the subject matter of this agreement are merged in and superseded by this agreement and are of no effect. No party is liable to any other party in respect of those matters.
(c) No oral explanation or information provided by any party to another:
(i) affects the meaning or interpretation of this agreement; or
(ii) constitutes any collateral agreement, warranty or understanding between any of the parties.
13.1 Each party will be responsible for its respective legal and other costs incurred in relation to the preparation of this agreement.
14 Variation to the Agreement
14.1 Omnyfy may, as part of its ongoing business operations, require a change to be made to this term of agreement or replace the terms of agreement with reasonable notice to the Channel Partner. Omnyfy will notify the Channel Partner of the changes 30 days prior to the implementation of the change. The Channel Partner must accept the change or notify Omnyfy in writing of its preference, which may be taken into consideration at the sole discretion of Omnyfy. If the change is not agreed to by the Channel Partner, both parties may agree to terminate this agreement by giving 30 days’ notice under this specific clause 29
14.2 A purported replacement or variation of this agreement in a manner other than that which is referred to in clause 29.1 has no effect between the parties, or any of them.
15 Definitions and interpretations
In this agreement:
Affiliates means any person, entity, directly or indirectly, controlling, controlled by, or under common control with a party. For the purposes of this definition, “control” (including its cognates “controlling”, “controlled by”, and “under common control”) shall mean:
(a) ownership of at least fifty percent (50%) of the equity capital or other ownership interest in or of an organisation or entity;
(b) the power to control or otherwise direct the affairs of an organisation or entity; or
(c) such other relationship as, in fact, results in the actual control over the management, business, and affairs of an organisation or entity;
Affected Party has the meaning set out in clause 25.1 of this agreement;
Annualised Recurring Revenue or ARR means, for a given month, Received Revenue in respect of all Referred End Users during that month, multiplied by 12;
Application Programming Interface and API means the RESTful Web Services or similar or equivalent provided by Omnyfy or a Third Party from time to time in relation to routines, protocols and tools for building and modifying any software applications, integrations, modules or otherwise associated with the Platform and/or Platform Components;
Business Names means the business names specified at Item 8 in Schedule 1 – Partner Agreement and variations of such;
Channel Partner’s Modules means the Channel Partner’s application module(s) that extends the features and/or capabilities of the Platform, is connected with the Platform via the API or built directly to communicate with the Platform using the Developer Tools;
Channel Partner Program Fee has the meaning given in clause 7.1(a) of this agreement;
Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, damage, Loss, cost, expense or Liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a Third Party or a party to this agreement;
Commencement Date means the date of Commencement of the Term of this agreement as specified at Item 3 of Schedule 1 – Partner Agreement;
Commission has the meaning given in clause 6.1(a) of this agreement;
Confidential Information means any know-how or other information in any form (including written, verbal and electronic) which the disclosing party designate as ‘confidential’ at the time it is disclosed or which, by its nature or on the application of ordinary business principles should be considered confidential, and in the case of Omnyfy, includes the:
(d) information relating to the affairs, accounts, marketing plans, marketing data and offer and sales plans and strategies;
(e) institutional information, research and management documents;
(f) inventions, designs or processes;
(g) computer databases and computer software;
(h) information provided by any Government Agency;
(i) information provided by any suppliers or contractors;
(j) designs or licences of computer software, research, development, distribution and marketing or programs for software and hardware; and
(k) marketing and operational methodology, information and data;
(l) financial data, information and conditions; and
(m) all such other information of a confidential nature provided by Omnyfy and/or their Affiliates to the Channel Partner and/or its Affiliates in connection with this agreement;
Consequential Loss means any consequential or indirect loss or damage of any form including, without limitation, loss of production, loss of use, loss of sales, loss of opportunity, loss of revenue, loss of opportunity, loss of reputation, loss of profit or loss of expected profit, whether or not foreseeable;
Consideration has the same meaning as is given to it in the GST Act;
Content means any data or consent accessed or accessible via the Developer Tools;
Converted Leads has the meaning given in clause 3.3 of this agreement;
Customer Data means any data of an End User or Third Party;
Developer Terms means any terms relating to the use or otherwise of the Application Programming Interface that may be published or provided by a relevant Third Party and/or Omnyfy and updated from to time to time;
Developer Tools means the Application Programming Interface and development tools, associated software in relation to the Platform and/or any Platform Components;
Domains means the domains specified at Item 9 in Schedule 1 – Partner Agreement;
End User means an entity or person that acquires the Platform or one or more Platform Components for its own use;
EULA means any licence agreement that applies to the use, by End Users, of the Platform and/or the Platform Components, including but not limited to the Marketplace Platform Contract, as amended from time to time at Omnyfy’s absolute discretion and in accordance with such agreements;
Force Majeure means an extraordinary and unforeseeable event beyond the reasonable expectation of this agreement or control of any party to this agreement including, but not limited to:
(a) act of God, earthquake, cyclone, fire, explosion, flood, landslide, lightning, storm, tempest, drought or meteor;
(b) war (declared or undeclared), invasion, act of a foreign enemy, hostilities between nations, civil insurrection or militarily usurped power;
(c) act of public enemy, sabotage, malicious damage, terrorism or civil unrest;
(d) confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government or government authority;
(e) any failure of a computer system due to cyber-attack;
(f) a Government Agency adversely amending, withdrawing or suspending any approvals or authorisations in relation to the Platform or Platform Components; and
(g) strikes, blockades, lock out or other industrial disputes;
GDPR means the European Union General Data Protection Regulation 2016/679, as amended, replaced or superseded from time to time;
Government Agency means any government, governmental, semi-governmental, administrative, fiscal or judicial body department, commission, authority, tribunal, agency, Regulatory Authority or entity whether federal, state, territorial, local or international;
GST means goods and services tax, or similar value added tax levied or imposed in Australia under the GST Law or otherwise on a supply;
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
GST Law has the same meaning as in the GST Act;
Improvements means improvements, modifications, enhancements, adaptations, variations and developments;
Information Privacy Act means the Information Privacy Act 2009 (Qld);
Insolvency Event means the occurrence of any one or more of the following events regarding any party to this agreement:
(a) a meeting has been convened, resolution proposed, petition presented, or order made for the winding up of that party;
(b) a receiver, receiver and manager, provisional liquidator, liquidator, or other officer of the Court, or other person of similar function has been appointed regarding all or any material asset of the party;
(c) a security holder, mortgagee or chargee has taken attempted or indicated an intention to exercise its rights under any security of which the party is the security provider, mortgagor or chargor; or
(d) an event has taken place with respect to the party which would make, or deem it to be, insolvent under any law applicable to it;
Intellectual Property Rights means:
(a) all rights conferred by statute, common law or in equity and subsisting anywhere in the world in relation to:
(i) databases and lists;
(ii) Know-how and trade secrets;
(v) inventions (including patents, innovation patents and utility models);
(vi) plant breeder’s rights;
(vii) the right to have information kept confidential, trade secrets, technical data and Know-how;
(ix) trademarks; and
(x) circuit layout designs and rights in databases,
whether any of these is registered, registrable or patentable;
(b) any other rights resulting from intellectual activity in the industrial, commercial, scientific, literary or artistic fields which subsist or may hereafter subsist;
(c) any licence or other similar right from a Third Party to use any of the above; and
(d) any goodwill associated with the forgoing under this definition,
but excluding any Moral Rights and similar personal rights which by law are non-assignable;
Initial Term has the meaning given at Item 4 in Schedule 1 – Partner Agreement;
Know-how includes but is not limited to any know-how which may be made available by Omnyfy to the Channel Partner, whether directly or indirectly or intentionally or unintentionally, to (or that could) assist Omnyfy or the Channel Partner in carrying out any activities in relation to this agreement including, without limitation, material or equipment, demonstration rooms and other facilities, marketing information, financial information, management systems, technical data and any other information.
Law means any applicable international, national, federal, provincial, regional and local laws, including any rule of common law, principle of equity, statute, regulation, proclamation, ordinance, by-law, rule, regulatory principle and requirement, governmental, administrative or judicial pronouncement or decree having the effect of law, code of conduct, mandatory standard, writ, order, injunction and judgment and applicable veterinary regulator guidance, laws or directives;
Liability means any liability or obligation (whether actual, contingent or prospective) including any Loss, irrespective of when the acts, events or things giving rise to the liability or obligation occurred;
Loss includes any loss, damage, cost, charge liability (including Tax liability) or expense (including legal costs and expenses);
Moral Right means as defined in the Copyright Act 1968 (Cth) as updated from time to time;
New Versions has the meaning set out in clause 11.1(a) in this agreement;
Notice has the meaning given to it in clause 11.1;
Obligation means any legal, equitable, contractual, statutory or other obligation, commitment, duty, undertaking or liability;
Omnyfy Intellectual Property means:
(a) any Intellectual Property Rights owned by or licensed to Omnyfy or its Affiliates;
(b) all Intellectual Property Rights owned by or licensed to Omnyfy or its Affiliates in the Platform and Platform Components;
(c) any Intellectual Property Rights owned by or licensed to Omnyfy or its Affiliates in relation to:
(i) software and software code;
(ii) database, API, domain and application architecture; and
(iii) front-end template packages in relation to the Platform;
(d) Business Names;
(e) Domains; and
Other Taxes means all forms of taxes, duties, imposts, charges, withholdings, rates, levies or other impositions of whatever nature that are assessed, levied, collected or imposed by any Law or by a Government Agency, together with any related interest penalty, fine or other charge that is incidental or related, but does not include a tax imposed by a jurisdiction on, or calculated by reference to, the net income of Omnyfy in a jurisdiction because Omnyfy has a connection with that jurisdiction, or GST which is dealt with under clause 15 of this agreement;
Platform has the meaning given at Item 1 in Schedule 1 – Partner Agreement;
Platform Component(s) means a licence, product or service offered or provided by Omnyfy or the Channel Partner that the Channel Partner is appointed to promote under this agreement, as specified in Item 2 in Schedule 1 – Partner Agreement;
Platform Terms means any terms relating to the use, access or otherwise of the Platform or Platform Components that may be published or provided by Omnyfy and updated from to time to time;
Partner Level Table means the table set out in Schedule 2 – Partner Agreement
Partner Levels means the levels described in clause 5.1, of the Partner Agreement and Partner Level means one of them;
Regulatory Approval means any regulatory approvals and authorisations required in order to offer the Platform and any Platform Components;
Regulatory Authority means any competent authority responsible for granting approval, accreditation or authorisation or prescribing any standards or requirements;
Renewal Term has the meaning given at Item 5 in Schedule 1 – Partner Agreement;
RESTful Web Services means services based on representational state transfer technology namely an architectural style or design model for networked hypermedia applications which allows development of scalable and performant services using a set of simple web-friendly interfaces and protocols and portability of service components;
Right to Information Act means the Right to Information Act 2009 (Qld);
Relevant Date has the meaning set out in clause 7.1(a) of this agreement;
Substantial Development means:
(a) work performed by Omnyfy, its Affiliates, personnel or contractors to customise or enhance the Platform and/or one or more Platform Components, which work, in Omnyfy’s reasonable opinion, diverts Omnyfy’s developers or other personnel from planned development or other priorities; and
(b) any other development work by Omnyfy that is deemed to constitute Substantial Development, as set out in clause 4(c)4(c);
Special Conditions are those terms which the parties agree will apply as specified at Item 12 in Schedule 1 – Partner Agreement, if any;
Tax means all forms of taxes, duties, imposts, charges, withholdings, rates, levies or other governmental impositions of whatever nature and by whatever authority imposed, assessed or charged together with all costs, charges, interest, penalties, fines, expenses and other additional statutory charges, incidental or related to the imposition;
Tax Invoice has the same meanings as are given to those terms in the GST Act;
Taxable Supply has the same meanings as are given to those terms in the GST Act;
Technical Support Request means a request in relation to a technical issue of the Platform or Platform Component submitted through the Partner Support Portal;
Term means the term of this agreement, including the Initial Term and any Renewal Term, commencing on the Commencement Date and continuing until it expires or is terminated in accordance with clause 22;
Territory means the territory specified at Item 6 in Schedule 1 – Partner Agreement;
Third Party means a person, company or other entity other than Omnyfy or the Channel Partner to this agreement; and
Trade Marks means all trademarks, logos or other words or symbols identifying any part of the Platform, Platform Components or Omnyfy’s business (registered or unregistered), as may be amended by Omnyfy from time to time at Omnyfy’s discretion and includes but is not limited to as set out at Item 10 in Schedule 1 – Partner Agreement and any variations of same.
In this agreement, unless the context otherwise requires:
(a) a reference to:
(i) one gender includes the others;
(ii) the singular includes the plural and the plural includes the singular;
(iii) a recital, clause, schedule or annexure is a reference to a clause of or recital, schedule or annexure to this agreement and references to this agreement include any recital, schedule or annexure;
(iv) any contract (including this agreement) or other instrument includes any variation or replacement of it and as it may be assigned or novated;
(v) a statute, ordinance, code or other law includes subordinate legislation (including regulations) and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(vi) a person or entity includes an individual, a firm, a body corporate, a trust, an unincorporated association or an authority;
(vii) a person includes their legal personal representatives (including executors), administrators, successors, substitutes (including by way of novation) and permitted assigns;
(viii) a group of persons is a reference to any two or more of them taken together and to each of them individually;
(ix) an entity which has been reconstituted or merged means the body as reconstituted or merged, and to an entity which has ceased to exist where its functions have been substantially taken over by another body, means that other body;
(x) time is a reference to legal time in Melbourne, Victoria;
(xi) a reference to a day or a month means a calendar day or calendar month;
(xii) money (including ‘$’, ‘AUD’ or ‘dollars’) is to Australian currency;
(b) unless expressly stated, no party enters into this agreement as agent for any other person (or otherwise on their behalf or for their benefit);
(c) the meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’, ‘for example’ or similar words are not words of limitation;
(d) the words ‘costs’ and ‘expenses’ include reasonable charges, expenses and legal costs on a full indemnity basis;
(e) headings and the table of contents are for convenience only and do not form part of this agreement or affect its interpretation;
(f) if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;
(g) the time between two days, acts or events includes the day of occurrence or performance of the second but not the first day act or event;
(h) if the last day for doing an act is not a Business Day, the act must be done instead on the next Business Day;
(i) where there are two or more persons in a party each are bound jointly and severally; and
(j) a provision of this agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of this agreement or the inclusion of the provision in this agreement.