Fonality Australia

Referral Partner Program

Terms and Conditions

1. Definitions

a. “Benefit” means monetary consideration described at [#Insert the location of referral page] or such other benefit as may be determined by Fonality from time to time.

b. “Confidential Information” has the meaning given to that term in clause 6.3.

c. “Fonality” means Fonality Pty Ltd ABN 32 112 795 276.

d. “Fonality Reseller Portal” means the Fonality portal at [#insert].

e. “Lead” has the meaning given to that term in clause 3.2.

f. “Lead Information” means the name, address, telephone number, email address and nature of the business of a Lead.

g. “Privacy Disclosures” means the disclosure by Referral Partner to the Lead of the information in Annexure A.

h. “Referral Partner” means the individual or company with an Australian Business Number which executes this agreement.

i. “Referral Partner Program” means the referral program described more fully at http://www.fonality.com.au/referral/.

j. “Registered Lead” has the meaning given to that term in clause 3.3.

k. “Term” means the period of 12 months from the date of execution of this agreement by the parties.

2. Appointment and scope

2.1 Fonality appoints Referral Partner as its referral partner for the Term on the terms and conditions of this agreement.

2.2 The Referral Partner Program is valid only for referrals on new service activations for customers that have not been subscribers of any Fonality service within the previous 12 months. Referred customers may not have prior or existing orders, quotes or proposals in progress with Fonality, another distributor of Fonality products or services or another Fonality referral partner. The Referral Partner Program is only valid for customers located in Australia and cannot be combined with any other offers.

2.3 Referral Partner is an independent contractor and is not an employee, partner or agent of Fonality. Referral Partner has no authority to bind Fonality to any contract, representation or understanding concerning Fonality or any Fonality products or services. The appointment of Referral Partner is not exclusive, and Fonality may appoint other referral partners in respect of any products, services or territories.

3. Obtaining and registering Leads

3.1 In order to avoid marketing conflicts, at all times Referral Partner must abide by Fonality’s then-current lead registration system.

3.2 If, upon or following a meeting with a person or entity, Referral Partner finds that the person or entity ("Lead") is reasonably interested in the products or services of Fonality, Referral Partner will:

(a) obtain the Lead Information from the Lead, and no other personal information or sensitive information;

(b) obtain the consent of the Lead for Referral Partner to disclose the Lead Information to Fonality;

(c) make the Privacy Disclosures to the Lead; and

(d) enter the Lead Information into the Fonality Reseller Portal or provide the Lead Information to Fonality in such other format as Fonality may advise.

3.3 Subject to compliance by Referral Partner with clause 3.2, a Lead will become a "Registered Lead" of Referral Partner if the Lead is not already registered by another referral partner or person and is not otherwise an existing customer or lead of Fonality. Fonality may accept or reject a Registered Lead, and enter into an agreement with a Registered Lead, in its discretion.

3.4 If requested by Fonality, Referral Partner will supply any additional information requested in connection with a Registered Lead and assist Fonality in making contact with the Registered Lead by arranging an introduction, meeting, conference call or other communication suggested by Fonality.

4. Provision of a Benefit

4.1 If, within 3 months following the provision by Referral Partner of Lead Information to Fonality in accordance with clause 3.2, a Registered Lead enters into an agreement with Fonality to obtain any Fonality products or services, Fonality will provide a Benefit to Referral Partner.

4.2 A Benefit will only be provided in respect of Registered Leads with whom Referral Partner has had direct personal contact and to whom Referral Partner has directly endorsed and recommended the Fonality products or services. Fonality will not provide any Benefit if Referral Partner uses mass mailings and other forms of mass solicitations to potential customers.

4.3 If a Registered Lead is referred to Fonality by more than one referral partner or person, Fonality will provide a benefit to the referral partner or person who first provided the Registered Lead (in respect of referral partners) or Lead Information (in respect of other persons) to Fonality. Fonality may, in its discretion, determine to share a benefit between such referral partners or persons, as the case may be.

4.4 If a Benefit is payable to Referral Partner, Fonality will pay such Benefit via electronic funds transfer to an Australian bank or by issuing a cheque payable to Referral Partner. Subject to compliance with the provisions of clause 4.6, a Benefit will not be due or payable until the Registered Lead has activated its service and the earlier of the following occurs:

(a) the Registered Lead has paid all fees and charges owing for the relevant Fonality product or service for the first 2 billing periods; and

(b) the agreement between Fonality and the Registered Lead has not expired or been terminated for at least 60 days from the commencement of that agreement.

4.5 The consideration payable for any supply under this agreement is exclusive of any goods and services tax (GST). If GST is payable on any supply under this agreement, the consideration payable for any such supply will be increased by an amount equal to the GST payable by the party making the supply in respect of that supply. Terms used in this clause 4.5 which are not defined in this agreement have the meanings given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

4.6 No amount is payable by Fonality to Referral Partner under this agreement until such time as Referral Partner provides to Fonality:

(a) an Australian Business Number; and

(b) a valid tax invoice in respect of the supply.

4.7 Fonality may change any Benefit at any time in its discretion.

5. Promotion and marketing

5.1 Referral Partner may only promote and market the Fonality products and services using the promotional material, collateral and marketing brochures provided by Fonality. If Referral Partner would like to:

(a) alter any Fonality promotional material, collateral or marketing brochures; or

(b) promote the Fonality products and services using its own promotional materials, collateral or marketing brochures,

it must provide a copy of the proposed alterations, materials, collateral or brochures to Fonality and obtain Fonality's prior written consent. Fonality may withhold its consent for any reason.

5.2 Except in respect of any materials, collateral or brochures which Fonality has consented to in accordance with clause 5.1, Referral Partner must not use any name, brand, logo, trade marks or other intellectual property of Fonality without the prior written consent of Fonality. Fonality retains all intellectual property rights in Fonality promotional materials, collateral and marketing brochures.

5.3 If a potential customer or Lead seeks information from Referral Partner in respect of any Fonality products or services, Referral Partner will direct the potential customer to the relevant section on the websites www.fonality.com and www.fonality.com.au. Referral Partner must not provide any warranties in respect of any Fonality products or services.

5.4 Fonality will not be liable to Referral Partner or any potential customer or Lead in respect of any representations or warranties made by a Referral Partner.

5.5 Referral Partner must:

(a) perform its obligations under this agreement in accordance with the directions and instructions of Fonality;

(b) conduct all promotions and marketing in a professional manner with due care, skill and attention;

(c) bear all costs and expenses which it incurs in relation to marketing and promoting the products and services of Fonality;

(d) not engage in any false, misleading or deceptive conduct or do or omit to do any act or thing which is prejudicial to the interests of Fonality;

(e) not take any action or engage in any behaviour which would, or would be likely to, adversely affect the brand, reputation or goodwill of Fonality;

(f) comply with all applicable laws, regulations and codes, including the Privacy Act 1988 (Cth) and the National Privacy Principles;

(g) not incur any liability, provide any warranty, enter into any contract, pledge the credit of, accept any order or assume any obligation on behalf of, or otherwise bind, Fonality; and

(h) inform all potential customers and Leads that Referral Partner is a business that is independent from Fonality.

5.6. Fonality may provide Referral Partner with access to Fonality products and services for the purposes of this agreement. Misuse or abuse of Fonality products or services by Referral Partner may result in the disconnection of the Fonality product or service and/or the forfeiture by Referral Partner of any payments that may be due under this agreement.

6. Confidential Information

6.1 The Confidential Information shall remain the exclusive property of Fonality during and after the Term.

6..2 Referral Partner must not use, disseminate or in any way disclose, or permit any of its employees, agents or representatives to disclose, any Confidential Information to any person, firm or business, except for any purpose Fonality may authorize in writing. Referral Partner must treat all Confidential Information with the same degree of care as Referral Partner accords its own confidential information, but in no case less than reasonable care. Referral Partner may only disclose the Confidential Information to those of Referral Partner’s employees who need to know such information in order to perform the obligations under this agreement, and Referral Partner certifies that Referral Partner’s employees have previously agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to these terms and conditions.

6.3 In this clause 6, Confidential Information means all documents, data files, information and other materials made available to Referral Partner or generated by Referral Partner in connection with the Referral Partner Program, including, all information regarding Fonality products or services, Fonality customers (including those customers and potential customers referred to Fonality by Referral Partner), marketing data, business plans, technical information and information relating to Fonality’s business. Confidential Information will not include information that:

(a) is already known by Referral Partner prior to execution of this agreement;

(b) becomes publicly available through no breach of this agreement by Referral Partner;

(c) is received from a third party without similar restrictions; or

(d) is required to be disclosed by law, governmental regulation or court order, as long as Referral Partner provides Fonality with prior written notice of such requirement.

7. Termination

7.1 Fonality may terminate this agreement immediately upon notice in writing to Referral Partner if Referral Partner:

(a) breaches a provision of this agreement which cannot be remedied (which shall be deemed to include any breach of clauses 5.1, 5.2, 5.3, 5.5(d), 5.5(e), 5.5(f), 5.5(g) and 5.6);

(b) breaches a provision of this agreement which is capable of remedy and does not remedy that breach within 7 days notice in writing; or

(c) is unable to pay its debts as and when they become due and payable or becomes subject to any form of insolvency, administration, receivership or liquidation.

If Fonality terminates this agreement pursuant to this clause 7.1, no further Benefits will be due or payable to Referral Partner.

7.2 Fonality may terminate this agreement without cause upon 30 days notice in writing to Referral Partner. If Fonality terminates this agreement pursuant to this clause 7.2, Fonality will continue to be bound by clause 4.4 in respect of any Registered Leads provided to Fonality prior to the date of termination.

8. Miscellaneous

8.1 To the extent permitted by law, Fonality excludes all implied warranties and conditions and otherwise limits its liability arising under or in connection with this agreement at Fonality's option to:

(a) in the case of goods:

(i) the replacement of the goods or the supply of equivalent goods;

(ii) the repair of the goods;

(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(iv) the payment of the cost of having the goods repaired; and

(b) in the case of services:

(i) the supply of the services again; or

(ii) the payment of the cost of having the services supplied again.

8.2 Fonality will not be liable to Referral Partner or any third party for any special, consequential, incidental or indirect loss or damages, damages resulting from the use or inability to use Fonality products or services, delay of delivery and implementation or loss of profits, data, business or goodwill. Fonality makes no representation that the operation of Fonality’s website, Fonality services or products will be uninterrupted or error-free.

8.3 Fonality’s liability for all claims of any kind arising out of or relating to this agreement shall be limited solely to money damages and shall not exceed the amount of any Benefit provided to Referral Partner.

8.4 Referral Partner agrees to indemnify, defend, save and hold Fonality harmless from and against all liabilities, damages, judgments, claims, costs and expenses, including, reasonable attorneys’ fees incurred by Fonality, as a result of or arising out of any negligence, breach of obligation, warranty or representation in connection with this agreement by Referral Partner.

8.5 In the event that any provision of this agreement shall be invalid, illegal or unenforceable in any respect, such provision shall be considered separate and severable from the remaining provisions of this agreement, and the validity, legality or enforceability of any of the remaining provisions of this agreement shall not be affected or impaired by such provision in any way.

8.6 This agreement shall not be assigned by Referral Partner, in whole or in part, without the prior written consent of Fonality. This agreement may be assigned by Fonality without the consent of Referral Partner.

8.7 Referral Partner must not appoint a sub-contractor or sub-licensee in respect of its appointment or obligations under this agreement.

8.8 This agreement shall be governed by the laws of New South Wales, without regard to provisions on the conflicts of laws. The parties submit to the jurisdiction of the courts of New South Wales. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this agreement.

EXECUTED BY:

REFERRAL PARTNER

BY: _____________________________________________

NAME: ___________________________________________

ADDRESS: ________________________________________

________________________________________

PHONE #: ________________________________________

EMAIL: __________________________________________

DATE: ___________________________________________

FONALITY

BY: _____________________________________________

NAME: ___________________________________________

DATE: ___________________________________________

Annexure A

Privacy Disclosures

The Privacy Disclosures comprise the following:

(a) the identity of Referral Partner and how to contact it;

(b) the fact that the Lead is able to gain access to the Lead Information;

(c) that the Lead Information is being collected for the purpose of disclosure to Fonality so that Fonality may contact the Lead by telephone, email or post to market Fonality products or services to the Lead; and

(d) that a failure of the Lead to provide the Lead Information means that Fonality will not be able to market its products or services to the Lead..