Affiliate Agency Agreement Terms of Services
- The “Trustee for Visual Magic Trust T/A Tactical Arbitrage” (Principal) sells the Services in Australia and globally.
- The Principal wishes the “affiliate agents” (Agent) to undertake the Activities as agent for the Principal in the Country.
- Use of this Website or Services constitutes Agreement and acceptance of these Terms and Conditions.
The following definitions apply in this deed.
Act of Insolvency means, in relation to a company, any or all of the following:
- the appointment of a voluntary administrator, deed administrator or liquidator; or
- an application or an order being made, proceedings commenced, a resolution passed or proposed in a notice of meeting or other steps taken for:
- its winding up, dissolution, or administration; or
- its entering into an arrangement, compromise or composition with or assignment for the benefit of its creditors or a class of them; or
- the company:
- being (or taken to be under applicable legislation) unable to pay its debts, other than as the result of a failure to pay a debt or claim the subject of a good faith dispute;
- stopping or suspending, or threatening to stop or suspend, payment of all or a class of its debts; or
- being insolvent; or
- the appointment of a controller, receiver, receiver and manager, administrator receiver or similar officer to any of its assets and undertakings.
Activities means any or all of the following activities on behalf of, and as directed by, the Principal:
- the GST Activities;
- liaising and coordinating with customers, brokers and freight forwarders to effect the delivery of the Services;
- receiving, reviewing and responding as appropriate to all documents issued by the Principal relating to the Services;
- receiving, remitting, recording and otherwise dealing with the funds received by way of payment for the sale of the Services and accounting for those funds to the Principal;
- controlling, managing and otherwise dealing with Services on consignment; and
- such other activities as may be agreed in writing between the Principal and the Agent.
Business Day means a day that is not a Saturday, Sunday or public holiday in any state or territory of Australia.
Commencement Date means the date of the signing of this Agreement by both Parties.
Commission means the following percentages of the payments received by the Principal in consideration for the sale of the Services in during the Term:
- for each sale of Services on consignment, three percent (3%); and
- for each sale of Services by an auctioneer, one percent (1%).
Country means the country the Agent is domiciled.
Expiry Date means the date which is:
- after the first anniversary of the Commencement Date; and
- twenty (20) Business Days after the day on which a party to this Agreement gives the other party written notice of its intention to terminate the Agreement.
GST has the same meaning as under the GST Law.
GST Activities means fulfilling all GST reporting and payment obligations under Australian law in respect of the sale and supply of the Services.
GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any other law which imposes or otherwise deals with the imposition or administration of goods and services tax in Australia.
Payment Dates means:
- for payments by the Agent to the Principal under this Agreement, within fourteen (14) days after the day on which the Agent receives the relevant payment on behalf of the Principal; and
- for payments by the Principal to the Agent under this Agreement, within fourteen (14) days after:
- for the payment of a Commission in respect of the GST Activities, the day on which GST is paid by the Principal; and
- for all other payments, the day on which the Principal receives the payment from either the Agent or a third party.
Services means the online service owned by the Principal that allow for the exploiting of price mismatching of products that are purchased by users who then resell those purchased products to or on a third party platform for a higher price.
Term means the period starting on the Commencement Date and ending on the Expiry Date.
Rules for interpreting this document
Headings are for convenience only, and do not affect interpretation. The following rules also apply in interpreting this deed, except where the context makes it clear that a rule is not intended to apply.
- A reference to:
- legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
- a document or agreement, or a provision of a document or agreement, is to that document, agreement or provision as amended, supplemented, replaced or novated;
- a party to this document or to any other document or agreement includes a permitted substitute or a permitted assign of that party;
- a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person; and
- anything (including a right, obligation or concept) includes each part of it.
- A singular word includes the plural, and vice versa.
- A word which suggests one gender includes the other genders.
- If a word is defined, another part of speech has a corresponding meaning.
If the day on or by which a person must do something under this document is not a Business Day:
- if the act involves a payment that is due on demand, the person must do it on or by the next Business Day; and
- in any other case, the person must do it on or by the previous Business Day.
GRANT AND RESERVATIONS
The Principal, as beneficial owner of the Services, grants to the Agent the non–exclusive right to carry out the Activities:
- for the Term; and
- in the Country.
The Principal reserves the right in its absolute discretion to:
- undertake the Activities itself; and
- appoint another person or persons to carry out some or all of the Activities.
OBLIGATIONS OF PARTIES
Obligations of Principal
The Principal agrees with the Agent throughout the Term:
- (Payment) to pay promptly without demand, deduction or set-off:
- the Commission on the Payment Dates; and
- any other sum payable by the Principal to the Agent under this Agreement when due.
- (Indemnity) to indemnify and keep indemnified the Agent from and against any and all loss, damage or liability whether criminal (to the extent permitted by law) or civil suffered by the Agent in the course of conducting business resulting from any act, neglect or default of the Principal or its agents, employees, licensees or customers, provided that the loss, damage or liability was not incurred by the Agent through any default by the Agent in carrying out the terms of this Agreement.
- (No assignment) not assign the benefit of this Agreement without the prior written consent of the Agent.
Obligations of Agent
The Agent agrees with the Principal throughout the Term:
- (Payment) to pay promptly without demand, deduction or set-off:
- all sums due to the Principal for the supply of the Services by the Principal to the customers of the Principal;
- any other sum payable by the Agent to the Principal under the terms of this Agreement.
- (Exclusive agency and territory): not to have a financial or commercial interest, either directly or indirectly, in the supply of any goods in the Country which are similar to or competitive with the Services without the prior written consent of the Principal.
- (Compliance) to:
- act in accordance with all reasonable directions by the Principal given in regard to the Services or the Activities;
- to conduct the Activities in a prudent but businesslike manner; and
- in all aspects of the Activities, to comply with all applicable legislation.
- (Disclosure): on entering into this Agreement or any other agreement or transaction with the Principal during the Term or any continuation of the Term, to make full disclosure of all material circumstances and of everything known to it regarding the relevant contract or transaction which would be likely to influence the conduct of the Principal, including the particulars of any other agency in which the Agent is interested directly or indirectly.
- (Confidentiality) not at any time during or after the Term to divulge or allow to be divulged to any person any confidential information relating to the Services, the Activities or the Principal other than as necessary to carry out the Activities.
- (Accounts) to keep accurate and separate records and accounts for the conduct of the Activities:
- which comply with generally accepted Australian accounting standards current from time to time; and
- copies of which are submitted to the Principal within 90 days of the end of the end of the Agent’s financial year.
- (Inspection of books) to permit the Principal or its representatives at all reasonable times to inspect and take copies of all things material to the Activities and for this purpose to enter any premises used in connection with the Activities.
- not to employ or appoint sub-agents without the prior written consent of the Principal;
- to be responsible for the activities of any sub-agent to whose appointment the Principal may consent; and
- to indemnify the Principal for all acts or omissions of any sub-agent in respect of which the Principal has granted its consent.
- (Assignment) not to assign, charge or otherwise deal with this Agreement in any way without the prior written consent of the Principal, such consent not to be unreasonably withheld.
- (Bank account) to maintain a separate bank account for money received by the Agent in the course of carrying out the Activities and to deliver copies of statements of this account to the Principal on demand.
- (Indemnity) to indemnify and keep indemnified the Principal from and against any and all loss, damage or liability (whether criminal (to the extent permitted by law) or civil) suffered by the Principal resulting from a breach of this Agreement by the Agent, including but not limited to:
- any act, omission or default of the Agent’s agents, employees, licensees or customers;
- the conduct of the Activities in Australia.
- (Misdescription) not to describe itself as agent or representative of the Principal except as authorised under this Agreement.
- (Expenses) to pay all expenses of and incidental to the carrying on of the Activities.
- (Warranties) not to make any representations to customers or to give any warranties.
This Agreement will automatically terminate on the Expiry Date.
The Parties may renew this Agreement and the renewing Party must notify the other Party of its intention to renew this Agreement and notice of this renewal must be no later than one month from the Expiry Date.
Termination by the Principal
The Principal has the right to terminate the Agreement if one or both of the following occur:
- a material breach by the Agent of an essential term of this Agreement; or
- the Agent suffers an Act of Insolvency.
Conduct upon Expiry or termination
Upon the Expiry Date or such other date of termination of this Agreement:
- the Agent will dispose of all Services still in its custody in accordance with the reasonable directions of the Principal; and
- the Agent will immediately cease to carry out the Activities; and
- no later than seven (7) days before the Expiry Date or on such later date as agreed between the parties, the Agent must provide to the Principal a complete and accurate up-to-date account of all transactions subsequent to those shown in the most recent accounts submitted to the Principal; and
- no later than thirty (30) days after the date of provision of the account in clause 4.3(d), the Agent must pay to the Principal all amounts due and outstanding under this Agreement.
The expiry or termination of this Agreement will be without prejudice to any rights which have already accrued to either of the parties under this Agreement.
Governing Law and Jurisdiction
This Agreement is governed by the law in force in Queensland. The parties submit to the non-exclusive jurisdiction of the courts of Queensland and the Commonwealth of Australia and any courts, which may hear appeals from those courts in respect of any proceedings in connection with this Agreement.
Power and authority
Each of the parties warrants that it has the power and has obtained all necessary approvals to enter into this Agreement.
Liability for expenses
Each party must pay its own expenses incurred in negotiating and executing this Agreement.
This Agreement may only be amended or supplemented by an agreement in writing signed by the parties.
The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of any power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
Inconsistency with other documents
If this document is inconsistent with any other document or agreement between the parties, this document prevails to the extent of the inconsistency.
Any provision in this Agreement which is invalid or unenforceable in any jurisdiction is to be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable, and is otherwise capable of being severed to the extent of the invalidity or unenforceability, without affecting the validity or enforceability of that provision in any other jurisdiction.
Each party must do, sign, execute and deliver and must procure that each of its employees and agents does, signs, executes and delivers, all deeds, documents, instruments and acts reasonably required of it or them by notice from the other party effectively to carry out and give full effect to this Agreement and the rights and obligations of the parties under it.
This Agreement may be executed in any number of counterparts and all of those counterparts taken together constitute one and the same instrument.
An electronic copy of this Agreement signed by the Parties will constitute an original Agreement and this Agreement may be transmitted electronically.
Each person who executes this document on behalf of a party under a power of attorney declares that he or she is not aware of any fact or circumstance that might affect his or her authority to do so under that power of attorney.