REFERRAL AND RESELLER AGREEMENT

1. Overview
   1. HSI APAC PTY LTD Trading as Donesafe ACN 165 144 767 (We, Us) has developed and made available for purchase on a subscription basis the Donesafe occupational health and safety compliance and management solution for use by employers and their staff (Donesafe).
   2. Partner (you) wishes to promote, market and advertise Donesafe to potential Donesafe customers (Users) through its website(s) and other marketing channels, in accordance with the terms of this Agreement.
   3. You may either
      1. refer a potential End User of Donesafe to Donesafe who shall enter into an agreement directly with us and agree to be bound by the terms of use located at https://donesafe.com/terms-of-use/ and you will be a Referrer; or
      2. You may resell Donesafe and you must enter into an agreement with the End User – with such terms being identical to the terms of use located at https://donesafe.com/terms-of-use/ and you will be a Reseller
   4. If you are agreeing to the Referral and Reseller Agreement not as an individual but on behalf of your company, organisation, firm, partnership or other corporate entity, then you agree and acknowledge that you are binding such entity to this Agreement, and that you are fully authorised to do so.
   5. We may update or modify the Referral and Reseller Agreement from time to time in our sole discretion. All updates and modifications to the Referral and Reseller Agreement will be published on our website, and notice of relevant material updates and modifications to this Agreement will be communicated to you via email, at the email address on record.  
   6. This Agreement does not have to be signed in order to be binding. You indicate your assent to the terms by clicking on the “I agree” (or similar button) that is presented to you at the time of your order

THE PARTIES AGREE AS FOLLOWS:

Clauses 1 and 2 applies to both Referrers and Resellers

Clause 3 applies Resellers only

Clause 4 applies Referrers only

Clauses 5- 15 applies to both Referrers and Resellers

1. 1. Licence
      1. We hereby grant to you a non-exclusive, non-transferable and revocable licence (Licence) to market and distribute Donesafe to potential End Users, and to use our trademarks, logos and URLs (Licensed Marks) as may be amended from time to time), and associated materials, language or code for the sole purpose of promoting Donesafe (collectively, “Marketing Materials”).
   2. Term
      1. This Agreement shall become effective as of the Effective Date and shall continue for twelve (12) months (“Initial Term”), unless we reject your terminated earlier in accordance with its terms
      2. Following expiration of the Initial Term, this Agreement will be automatically renewed for additional consecutive terms of twelve (12) months (each, “Renewal Term”), unless a Party gives written notice of termination to the other Party at least thirty (30) days’ prior to the end of the Initial Term or any Renewal Term.

IF YOU ARE RESELLING THE SUBSCRIPTIONS THE FOLLOWING CLAUSE 3 WILL APPLY

1. 1. Reselling
      1. Terms
         You are responsible for ensuring that each End User enters into the Donesafe Terms of Use, in a manner that is legally binding upon the End User. This may require you to (i) notify each End User that use of Donesafe is subject to the Donesafe Terms of Use,  and that by placing an order with you the End User agrees to the Donesafe Terms of Use, (ii) include either a copy of or link to the Donesafe Terms of Use, in each quotation and order form you issue to the end user, and (ii) obtain from each end user written confirmation of acceptance of the Donesafe Terms of Use, prior to the earlier to occur of acceptance of the order by you or delivery of the Product. You must provide evidence of such acceptance by the End User to us upon request.
      2. Order
         You may order Products for resale by following the directions on our website (https://donesafe.com/) You must provide all of the requested information including, without limitation, the identity of the end user, the end user’s business and email addresses, and the subscription plan Products to be resold (“Reseller Order“). All such information must be accurate and complete and must reflect bona fide orders you have received from end users.
      3. Delivery
         Upon receipt of order, we will deliver the applicable software login information, or other information necessary for End Users to use or access the applicable Products directly to the delivery contact specified in the Reseller Order. If we deliver the logins to you, you agree that you will, in turn, deliver them directly to the end user specified in the Reseller Order, and not to use or access the Software, Hosted Services, or other Products in any way. You must either delete all login information promptly thereafter or maintain them in confidence.
      4. Reseller Fees.
         You must pay us the Fees for purchase of each End-User licence of the Product for resale by You with the terms of the order form
      5. End User Pricing and Payment; Refunds.
         You will independently set your own pricing for the sale or licensing of the subscription to each end user. You bear all risk of non-payment by end users, and you are solely responsible for all of your costs and expenses.
      6. No Use Rights; Reserved Rights.
         1. Only the end user customer of the Products (and its authorized users) may use the Products. Notwithstanding anything to the contrary contained in this Agreement,
         2. Donesafe and its suppliers have and will retain all rights, title and interest (including without limitation all patent, copyright, trademark, trade secret and other intellectual property rights) in and to all Products, service descriptions, documentation, and underlying technology (“Donesafe Technology”), and all copies, modifications and derivative works thereof.
         3. You acknowledge that you are obtaining only a limited right to resell the Products and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise.
      7. Reseller Obligations and Liability.
         You agree not to represent yourself as an agent or employee of ours and agree that we will have primary control over any end user communication regarding the subscriptions once you submit an Order. You will not make any representations regarding us on our behalf, or about any subscriptions.
      8. You agree not to engage in any deceptive, misleading, illegal, or unethical practices that may be detrimental to us or the subscriptions and agree to comply with all applicable federal, state and local laws and regulations while operating under this Agreement.
      9. You are fully responsible for all liabilities and expenses of any type whatsoever that may arise on account of your resale of Products. You will indemnify, hold harmless and (at our option) defend us from and against any claim, loss, cost, liability or damage, including legal fees, for which we become liable arising from or relating to:
         1. any breach or alleged by you of any term of this Agreement,
         2. the issuance by you of any warranty or representation regarding us or our products or services not specified in the Donesafe terms of use, or
         3. any of your other acts or omissions in connection with the marketing or resale of the Products under this Agreement.
      10. All use of Donesafe by end users is subject to the Donesafe Terms of Use, and you may not purport to impose any other terms pertaining to their use of the Products.
      11. You agree to immediately notify us of any known or suspected breach of the Donesafe Terms of Use, or other unauthorized use of the Products and to assist us in the enforcement of the Donesafe Terms of Use.
      12. In addition, you must:
          1. ensure that no supply of the Products or permission to access or use the Technology is made or given by you unless and until a contract has been entered into by the End User with you
          2. Perform your obligations under this Agreement in a proper, efficient, courteous and professional manner, so as not to bring any discredit upon us, or the Product and in accordance with any guidelines and procedures which may be provided by us from time to time;
          3. to the best of its abilities train End Users in the proper use of the Product in accordance with guidelines and instructions given by us from time to time;
          4. assist End Users with the installation and configuration of the Product so as to provide prompt, local first level support, and refer all apparent bugs or errors in the Product or the Software, or other difficulties of a serious nature which you cannot resolve, to us for our attention, in accordance with our support policies and guidelines from time to time;
          5. ensure that its personnel engaged in the marketing and distribution of the Product, and those engaged in support of End Users, are competent and fully trained in accordance with guidelines and directions provided by us;
          6. monitor the use of the Product by End Users, to the extent reasonably practical to do so;
          7. assist us in any reasonable way in respect of any breach by any End User under or incidental to any licence to access and to use the Product;
          8. provide to us such advice and recommendations as you may consider desirable, whether in relation to the development and/or distribution of the Product, the presentation of the Product, or otherwise.
      13. If you fail to comply with your ongoing obligations as specified in clause 3.12, in particular clause 3.12 (d), we may, in our sole discretion notify you of a breach and give you five (5) days to remedy such breach. If the breach is not remedied, or if in the course of any 12 month period there are two or more breach notices issued to you, Donesafe may directly step in to the relationship you have with the End User and assign the End User agreement to itself or to a related entity.
      14. Should we exercise our rights pursuant to clause 3.13:
          1. the End User shall have no further obligation to pay you for their use of Donesafe, and you will have no obligation to pay us any fees; and
          2. you will be regarded as a Referrer, in accordance with these terms and conditions, and our obligations to you shall be limited to the payment of referral fees in accordance with the terms of clause 4.2.
      15. Rebates.
          1. You will be entitled to a rebate of between 10% and 30% of the fees paid by you to us in accordance with the terms of clause 3.4 and the Order Form (the “Rebates”) as specified in our Partner Commission and Rebates Policy available at https://www.donesafe.com
          2. We will pay the Rebates to you within 30 days of the end of each calendar quarter in respect of fees by paid in the applicable calendar quarter.

IF YOU ARE A REFERRER OF THE SUBSCRIPTION THE FOLLOWING CLAUSE 4 WILL APPLY

1. 1. Referrals
      1. Terms
         1. Subject to the terms and conditions of this Agreement, you may from time to time refer potential customers (“Potential Customers”) to Us.
         2. You must give Us written notice of Potential Customers by email or via our order form.
         3. In our sole discretion, we will have the option to enter into, or decline to enter into, an agreement with any Potential Customer. In the event we decline, we will have no obligation to you under this Agreement or otherwise with respect to such Potential Customer.
         4. If such Potential Customer has
            1. not previously entered into an agreement with Us;
            2. not previously been referred or introduced to Us in writing by any other person; and
            3. not previously been documented as a Customer (as defined below); and
         5. We enter into an agreement with any such Potential Customer, in accordance with our terms of use (located at https://donesafe.com/terms-of-use/) within sixty (60) days of such Potential Customer being referred to Us by you, such Potential Customer shall be considered a “Customer” for purposes of this Agreement and we will collect all fees from Customers for their use of the Products and pay a fee to you in accordance with the terms of clause 5.2.
         6. Donesafe shall be responsible for the sales process to all Potential Customers, subject to the Parties’ continued good-faith cooperation in promoting the sales process to the Potential Customer.
      2. Commissions
         1. You will be entitled to commission of between 5% and 10% of the first 12 months of fees actually paid by referred Customer to Us pursuant to the agreement entered into with such Customer (the “Referral Commissions”) as specified in our Partner Commission Policy available at https://www.donesafe.com
         2. We will pay the Commission to you within 30 days of the end of each calendar quarter in which payment is received by us from a customer.

THE BALANCE OF THE DOCUMENT APPLIES TO BOTH REFERRERS AND RESELLERS

1. GST
   1. All fees and payments specified in this Agreement are exclusive of GST. If any GST is imposed on any supply made under this Agreement, then the party making the supply will collect the GST from the recipient in addition to the Fees. The GST is calculated by multiplying the amount or value of the consideration for the supply by the GST tax rate prevailing as at the date the supply is made.
   2. The recipient will pay the increased amount in the same manner and at the same time as the consideration, which may be due under this Agreement.
   3. The supplier of a taxable supply made in connection with this agreement must issue a tax invoice for the supply in accordance with GST Law to the recipient of the supply
   4. Each party agrees to do all things, including providing invoices or other documentation in such form and detail that may be necessary to enable or assist the other party/ies to claim or verify any input tax credit, set off, rebate or refund in relation to any GST payable under this Agreement or in respect of any supply under this Agreement.
2. INDEMNITY
   You indemnify us against: all claims, costs, damage and loss arising from Your breach of any of these Terms or any obligation You may have to Us, including (but not limited to) any costs relating to the recovery of any Fees that are due but have not been paid by You.
3. CONFIDENTIALITY AND PRIVACY
   1. Confidentiality
      Unless the relevant party has the prior written consent of the other or unless required to do so by law:
      1. Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with this Agreement. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by this Agreement.
      2. Each party’s obligations under this clause will survive termination of the Agreement.
      3. The provisions of this clause 8.1 shall not apply to any information which:
         1. is or becomes public knowledge other than by a breach of this clause;
         2. is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
         3. is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
         4. is independently developed without access to the Confidential Information.
4. INTELLECTUAL PROPERTY
   1. Title to, and all Intellectual Property Rights in the Services, the Platform and any documentation relating to the Services remain the property of Us (or Our licensors).
   2. We grant You a royalty free, perpetual, licence to use, and otherwise exercise all Intellectual Property Rights in the Software which is required to enable You to fulfill your obligations in accordance with this Agreement.
5. WARRANTIES AND ACKNOWLEDGEMENTS
   1. For the avoidance of doubt, any and all commitments, indemnities and other terms and conditions offered by us with respect to use of the Products are made directly by us to the end user in accordance with the Donesafe terms of trade and do not extend to you.
   2. We make NO WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, TO you INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE AND NON-INFRINGEMENT.
6. LIMITATION OF LIABILITY
   1. To the maximum extent permitted by law, We exclude all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any direct or indirect loss howsoever caused (including loss of information, data, profits and savings) or damage resulting, directly or indirectly, howsoever arising
   2. If You suffer loss or damage as a result of Our negligence or failure to comply with these Terms, any claim by You against Us arising from Our negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Fees paid by You in the previous twelve (12) months.
   3. If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with this Agreement.
7. TERMINATION
   1. Termination
      1. We may terminate this Agreement immediately upon notice to you if (i) we cease to offer the current Reseller or Referral program or (ii) we reasonably believe that continuing the relationship with you could result in business or legal liability for us or otherwise harm us or the end users
      2. We have the right to terminate this Agreement at any time for any or no reason by giving ten (10) days prior written notice to you
      3. Either Party may terminate this Agreement at any time, effective immediately upon written notice to the other Party who has materially breached this Agreement, provided that prior to terminating this Agreement the terminating Party shall provide written notice of such material breach and thirty (30) days opportunity for the breaching Party to cure such breach.
      4. We may terminate this Agreement if you or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction.
   2. Effect of Termination.
      1. From and following the date of termination if terminated under clause 11.1 (a)(ii) or 11(c) of this Agreement your rights under this Agreement shall terminate, and you will not be entitled to receive any Referral Fees or any other payments under this Agreement other than commissions or payments earned or accrued prior to termination of this Agreement.
      2. Upon termination of this Agreement if terminated under clause 11.1 (a) (i), 11.1 (b) or 11.1(d)  we will continue to pay all referral fees (as applicable) payable under each of the then subsisting End-User agreements from the date of termination until the end of an End User Agreement.
8. DISPUTE RESOLUTION
   1. Mediation
      1. If a dispute arises out of or relates to this Agreement, or the breach, termination, validity or subject matter thereof, the parties expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation.
      2. The mediation shall be conducted in accordance with the ACDC Guidelines for Commercial Mediation which are operating at the time the matter is referred to ACDC.
      3. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved.
      4. The terms of the Guidelines are hereby deemed incorporated into this agreement.
      5. This clause shall survive termination of this Agreement.
      6. This clause may be pleaded as a plea in bar in any proceeding commenced without the terms of the clause being complied with.
9. GENERAL
   1. Entire agreement:  This Agreement, together with any Special Conditions, our Privacy Policy and the terms of any other notices or instructions given to You under these Terms of Use, supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between You and Us relating to the Services and the other matters dealt with in these Terms.
   2. No Partnership: Nothing in this Agreement shall be construed to create a joint venture, partnership or agency relationship between you and us and neither party shall have the right or authority to incur any Liability debt or cost or enter into any contracts or other arrangements in the name of or on behalf of the other.
   3. Waiver: If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
   4. Delays: Neither party will be liable for any delay or failure in performance of its obligations under this Agreement if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
   5. No Assignment: You may not assign or transfer any rights to any other person without Our prior written consent.
   6. Governing law and jurisdiction: These Term are governed by and construed in accordance with the law of New South Wales and both parties hereby submit to the exclusive jurisdiction of the courts of New South Wales.
   7. Severability:  If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
   8. Notices: Unless otherwise stated within this Agreement, notices to be given to either party shall be in writing and shall be delivered by electronic mail at the email address you supplied to us or to us at our registered office.
   9. Survival: The provisions of clauses that either are expressed to survive its expiry or termination or from their nature or context it is contemplated that they are to survive such.
   10. Electronic Records and Signature It is agreed by the Parties that, notwithstanding the use herein of the words “writing,” “execution,” “signed,” “signature,” or other similar words, the Parties intend that the use of an Electronic Signatures and the keeping of records in electronic form be granted the same legal effect, validity or enforceability as a signature affixed by hand or the use of a paper-based record keeping system (as the case might be) to the extent and as provided for in any applicable law including Electronic Transactions Act 2000 (NSW), or any other similar laws.
10. Definitions
    • Agreement means these Terms of Use, and any other documents that these Terms of Use refer to, including the Individual Conditions.
    • Business Day means any day other than a Saturday, Sunday, bank holiday or public holiday in New South Wales, Australia.
    • Confidential Information includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
    • Data means any information and data provided, inputted or uploaded by You or with Your authority into the Platform.
    • Donesafe We, Our, Us or the Company means DONESAFE PTY LTD ACN 165 144 767 and its representatives, subsidiaries, affiliates, related parties, officers, directors, employees, agents, partners and independent contractors.
    • Electronic signature means data in electronic form in, affixed to or logically associated with, a data message, which may be used to identify the signatory in relation to the data message and to indicate the signatory’s approval of the information contained in the data message;
    • End User means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service
    • Fee means the monthly fee (excluding any taxes and duties) payable by a User  in accordance with the fee schedule set out in the Order Form (which We may change from time to time on notice to You).
    • GST means any tax imposed on the supply of goods or services which is imposed or assessed under GST Law.
    • GST Law means A New Tax System (Goods and Services Tax) Act 1999 (as amended) and all related ancillary legislation which provides for a broad based consumption tax on the supply of Goods and Services.
    • Intellectual Property Rights means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
    • Platform means the Donesafe platform as accessed by the Website or mobile application by Users.
    • Service means the provision of HR services available (as may be changed or updated from time to time by Us) via the Website.
    • Subscriber means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
    • Term means the period that the Agreement remains in effect as set out in the Order Form or Special Conditions, or until terminated in accordance with this Agreement.
    • Website means the Internet site www.donesafe.com or any other site operated by Us, and any associated mobile applications
    • User means the Subscriber as specified on the Order Form,
11. Interpretation
    1. Headings are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
    2. Words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include every gender and references to persons shall include an individual, company, corporation, firm or partnership.
    3. Words denoting persons includes natural persons, partnerships, limited Liability partnerships, bodies corporate and unincorporated associations of persons.
    4. References to includes or including or like words or expressions shall mean without limitation.