Fast Connect will from time to time at such intervals as it may solely determine, notify the Referrer of the Service Retailers and Products to be made available for comparison on the Web Page.
(a) On and from the date of this agreement, Fast Connect must provide the Services to the Referrer on the terms and conditions of this agreement.
(b) Fast Connect acknowledges and agrees that it is remunerated through the Sales Commissions from Service Retailers and will not be paid a services fee by the Referrer.
(c) Fast Connect will determine the manner in which:
(1) User Applications are processed; and
(2) User Applications are sent to Service Retailers.
(d) Fast Connect will supply the Connection Services in the manner in which it considers appropriate and is not subject to the Referrer’s directions.
(e) The parties acknowledge and agree that Fast Connect may also supply the Services (or services similar to the Services) to other third parties.
During the Term, the Referrer agrees to provide a link on its website to the Web Page and refer Users to the Web Page.
(a) The Referrer agrees to provide Fast Connect with the Lead Information.
(b) The Referrer must not refer Lead Information that it knows to be inaccurate or to be a duplicate of Lead Information that has previously been provided to Fast Connect by the Referrer.
Each party must, in fulfilling its respective obligations under this agreement, comply with all applicable laws including, but not limited to, the Privacy Act 2020.
The Referrer agrees that all rights in and to Fast Connect’s Materials will at all times remain owned by Fast Connect and nothing in this agreement is intended to transfer such rights to the Referrer.
During the term of this Agreement, the Referrer grants to Fast Connect a limited, non- exclusive and non-transferable right to use the Referrer’s marks, trademarks, trade name and logo design (“Referrer Marks”) in conjunction with the Services provided under this Agreement, in accordance with this Agreement.
(a) Fast Connect will pay to the Referrer a referral commission in respect of each Sale, as set out in Schedule 2 (Referral Commission).
(b) Subject to clause 4.1(c), the Referral Commissions will be paid monthly in arrears in respect of the preceding month, provided that the Referrer has received a tax invoice from Fast Connect.
(c) The Referrer acknowledges and agrees that Fast Connect is under no obligation to pay a Referral Commission in respect of a Sale, until such time as Fast Connect has received payment of the Sales Commission from the relevant Service Retailer.
(a) Within 60 Business Days of the end of each month, Fast Connect must provide a report in respect of that month (Monthly Report) to the Referrer which must contain:
(1) a list of all Sales for that month; and
(2) the amount of the Referral Commission payable by Fast Connect; and
(3) any other information reasonably requested by the Referrer.
(b) Within 10 Business Days of receipt of the Monthly Report, the Referrer must:
(1) carry out any required validation processes in relation to the calculation of the Referral Commissions; and
(2) issue a valid tax invoice to Fast Connect in respect of the Referral Commissions.
(c) Subject to clause 4.1(c), Fast Connect must pay invoices within 30 days of receipt from the Referrer.
(a) Unless expressly included, the consideration for any supply under or in connection with this agreement does not include GST.
(b) If GST is imposed on any supply (or deemed supply) made by any party under or in connection with this agreement, then the consideration for that supply is increased by an amount equal to the amount of that consideration multiplied by the rate at which GST is imposed in respect of that supply.
Except where to do so would contravene any law or cause any part of this clause to be void or unenforceable:
(a) neither party shall be liable to the other party however that liability arises for Consequential Loss; and
(b) each party limits its aggregate liability to the other for all claims under this agreement to the amount equivalent to the Referral Commissions paid or payable under this agreement in the 12 months preceding the date the cause of action arose.
This agreement may be terminated by either party giving 180 days’ notice to the other prior to the commencement of the relevant Renewal Term of its intention to cancel the automatic extension of this agreement, in accordance with clause 1.1(c) of the Referral Agreement.
Either party may terminate this agreement immediately by written notice to the other if the other party has committed a material breach of its terms and such breach has not been remedied within twenty (20) Business Days following the receipt of written notice from the party not in default.
Either party may terminate this agreement with immediate effect by giving written notice to the other party if the other party:
(a) ceases, suspends or threatens to cease of suspend the conduction of all or a substantial part of its business;
(b) 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 call of its debts;
(c) becomes or is deemed or presumed to be insolvent;
(d) has a 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 purposes of a solvent amalgamation or reconstruction, an order of application or resolution is made, proposed or passed for its winding up, dissolution, administration or liquidation;
(g) enters into liquidation whether compulsorily or voluntarily; or
(h) an analogous or comparable event takes place in any place or jurisdiction.
(a) If either party terminates this agreement:
(1) Fast Connect must, within 20 Business Days of termination, pay to the Referrer all Referral Commissions owing under the agreement up to any including the date of termination or expiry;
(2) the Referrer will cease to provide Fast Connect with Lead Information under the agreement from the date of termination or expiry of this agreement;
(b) Termination or expiry of this agreement does not affect any accrued rights or remedies of either party.
(c) Without limiting any other provision of this agreement, the following clauses and any other clauses which should by their nature survive termination of this agreement, survive termination or expiration of this agreement for any reason:
(1) Clause 3.2 (Referral Commissions, accounting and reporting);
(2) Clause 5 (Limitation of Liability);
(3) Clause 6 (Termination);
(4) Clause 7 (Confidential Information); and
Each party must, during the term and following the agreement’s termination or expiry:
(a) maintain the secrecy of any Confidential Information;
(b) not disclose any Confidential Information other than as permitted under this agreement;
(c) refrain from using or attempting to use Confidential Information in any manner which will or may cause or be calculated to cause injury or loss to the other party or its clients;
(d) refrain from copying, transmitting, retaining or removing any Confidential Information, or attempting to do the same; and
(e) use its best endeavours to prevent the disclosure of any of the Confidential Information by or to third parties.
(a) Either party may disclose the Confidential Information of the other:
(1) to the Service Retailers to the extent necessary to enable the party to perform its obligations under this agreement;
(2) to its legal and professional advisers in connection with this agreement;
(3) as required by any applicable law or listing rules;
(4) with the consent of the other party.
(b) Before any disclosure under clause 7.2(a), the disclosing party must ensure that the recipient is aware that the information is Confidential Information and is subject to confidentiality terms similar to this clause 7.
This agreement is governed by the law in force in New Zealand. Each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in New Zealand.
The parties acknowledge that they are independent and nothing in this agreement creates any relationship of agency, partnership, joint venture or employment between the parties.
(a) Any notice, demand, consent or other communication given under this agreement must be in writing and may be delivered by hand, by post or by email to the address of that party in the Details section on page 1 or such alternate address as may be advised by the other party from time to time.
(b) Notice will be taken to given at the time of delivery to an authorised employee if delivered by hand, 3 Business Days after the date of posting if delivered by post and 2 hours after sending if send by email.
This agreement states all the express terms of the agreement between the parties in respect of its subject matter. It supersedes all prior discussions, negotiations, understandings and agreements in respect of its subject matter.
A variation of any term of this agreement must be in writing and signed by the parties.
(a) This agreement may be executed in any number of counterparts.
(b) All counterparts, taken together, constitute one instrument.
(c) A party may execute this agreement by signing any counterpart.
The meanings of the terms used in this agreement are set out below.
| Term | Meaning |
|---|---|
| Business Day | a day on which banks are open for business in Auckland, excluding a Saturday, Sunday or public holiday in that city. |
| Call Back Request | a request made by a User to be contacted by Fast Connect by telephone. |
| Cancellation |
1 cancellation of a Service Contract by a User during the initial period following lodgement of the User Application within which the User has a legal right to cancel the Service Contract.; or 2 cancellation of a Service Contract by a User during the period of 28 days following lodgement of the User Application within which the User may decide to stay with their incumbent Service Retailer; or 3 rejection of a User Application by a Service Retailer due to the User failing the Service Retailer’s standard validation, credit checking and/or verification procedures; or 4 any other reason that prevents a User from completing a transfer to a new Service Retailer. |
| Confidential Information |
Any information: 1 that forms part of the Lead Information; 2 relating to the business and affairs of a party; 3 relating to the customers, clients, employees, sub-contractors or other persons doing business with a party; 4 which is by its nature confidential; 5 which is designated as confidential by a party; 6 which a party knows or ought to know, is confidential; and 7 knowhow, financial information and other commercially valuable information of a party. |
| Connection Services | the services set out in Part C of Schedule 2. |
| Consequential Loss |
any Loss suffered by a party as a result of a breach of this agreement that cannot reasonably be considered to arise naturally from that breach including: 1 anticipated or actual profit; 2 anticipated or actual revenue; 3 loss of contracts or interest; 4 loss of access to markets; 5 loss or denial or business opportunity; 6 loss of anticipated savings; 7 damage to goodwill or reputation; or 8 punitive damages. |
| Dedicated Phone Numbers | telephone numbers which are owned by Fast Connect and point to the call centre operated by Fast Connect. |
| Fast Connect Materials |
any materials, belonging to or created by or on behalf of Fast Connect in accordance with the terms of this agreement including: 1 the Web Page; 2 any materials which are based on or contain Lead Information which have been created independently from the Referrer by Fast Connect; 3 the CC Content; and the names, marks and the logos of Fast Connect. |
| Initial Term | has the meaning given in clause 1.1(b) of the Referral Agreement. |
| Intellectual Property Rights | all present and future rights to intellectual property including any inventions and improvements, trade marks (whether registered or common law trade marks), patents, designs, copyright, any corresponding property rights under the laws of any jurisdiction and any rights in respect of any invention, discovery, trade secret, secret process, know-how, concept, idea, information, process, data or formula. |
| Lead | a person who has indicated that they consent to have their residential utilities or home services set up, transferred and / or connected for and on their behalf. |
| Lead Information | any information, including the personal information (name, address, phone number and email address) of Users provided by the Referrer to Fast Connect under this agreement. |
| Loss | all liabilities, losses, damages, reasonable costs and expenses, including legal costs and disbursements, whether incurred or awarded against a party (including reasonable costs of litigation, settlement and compliance with judgments) and interest, fines and penalties suffered or incurred by a person, whether arising in contract or by tort or under any statute. |
| Monthly Report | has the meaning given in clause 4.2(a). |
| Products | the product or services offered by a Service Retailer from time to time in relation to the connection and supply of a residential utility or home service. |
| FC Content | regulatory information and other material compiled or developed by Fast Connect or licensed to Fast Connect including that relating to Products, the Service Retailers and the Service Contracts. |
| Referral Commission | has the meaning given in clause 4.1 . |
| Renewal Term | 36 months. |
| Sale | each occurrence of a residential utility or home service being set up, connected or the billing responsibility being transferred for and on behalf of a User, as a result of Fast Connect pursuing Lead Information or a User contacting a Dedicated Phone Number. A ‘sale’ will be deemed to have occurred once a Service Contract has been entered into and is not subject to Cancellation. |
| Sales Commission | any amount actually received by Fast Connect from a Service Retailer in respect of a Sale, less any processing fees deducted by the Service Retailer or their agents. |
| Service Contract | means a supply agreement between a Service Retailer and a User that results from the User contacting Fast Connect. |
| Service Retailer | any licenced retailer of a utility product or home service with which Fast Connect has a commercial agreement or arrangement. |
| Services | the services detailed in Schedule 1. |
| User | a person who visits or otherwise uses the Web Page or calls a Dedicated Phone Number or makes a Call Back Request and has indicated that they wish to have their residential utilities or home services set up, transferred and / or connected. |
| User Application | a submission by a User to Fast Connect of an application to enter into a Service Contract with a Service Retailer, by connection or transfer. |
| Web Page | the Web Page owned and operated by Fast Connect and published at |
In this agreement:
(a) Headings and bold type are for convenience only and do not affect the interpretation of this agreement.
(b) The singular includes the plural and the plural includes the singular.
(c) Other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning.
(d) An expression importing a person includes any company, partnership, joint venture, association, corporation or other body corporate as well as an individual.
(e) A reference to a clause, party, schedule, attachment or exhibit is a reference to a clause of, and a party, schedule, attachment or exhibit to, this agreement.
(f) No provision of this agreement will be construed adversely to a party because that party was responsible for the preparation of this agreement or that provision.
(g) Specifying anything in this agreement after the words ‘include’ or ‘for example’ or similar expressions does not limit what else is included.
(h) Where the day on or by which any thing is to be done is not a Business Day, that thing must be done on or by the next Business Day.
(a) Provide and host the Web Page with the FC Content.
(b) Ensure the FC Content is based on independent, impartial and unbiased analysis of User needs.
Management of the call centre operation to answer calls to the Dedicated Phone Numbers.
Contact each Lead using the relevant Lead Information provided by the Referrer and:
(a) inform each Lead that Fast Connect is able to set up, connect or transfer the Lead’s residential utilities and home services for and on the Lead’s behalf;
(b) offer to set up connect or transfer the Lead’s residential utilities and home services for and on the Lead’s behalf.
(a) Manage all User complaints or other grievances which arise as a result of the Services.
(b) Promptly report to the Referrer in writing any complaints or other grievances received from Users.
(c) Use reasonable endeavours to assist the Referrer in dealing with and investigating any User complaint or other grievance, including providing the Referrer with all relevant information related to the complaint or other grievance.
(a) Appoint a dedicated account manager to manage the provision of the Services and assist with requests made by the Referrer pursuant to the terms of this agreement.
(b) Accurately track and report to the Referrer on all User enquiries, User Applications, Cancellations and Sales.
(c) Provider the Monthly Report to the Referrer.