OurMobile

Terms & Conditions

 

INDEPENDENT DISTRIBUTOR

TERMS & CONDITIONS

Mezzanine Network Solutions Pty Limited (ACN 105 868 808) of Level 5, 100 Collins Street Melbourne Australia 3000 ("Mezzanine")

AND

You ("Distributor")

Individually referred to as a "Party" and collectively referred to as "Parties"

WHEREAS

a)    Mezzanine desires to the promotion and sales of various services and products

b)    Mezzanine desires to but not limited to the promotion and sales of Lebara SIM cards ("Products");

c)    Mezzanine desires to promote the sale within Australia of Lebara credit vouchers ("Vouchers")

d)    Mezzanine shall supply the Products and Vouchers issued by Lebara Australia Limited

e)    Lebara Australia Limited will service the Products and redeem the Vouchers

f)     The Distributor will promote and distribute the Products and Vouchers.

The Parties hereby agree as follows

1.    Definitions and Interpretation

a.    The provisions regarding the definitions and interpretations contained in Schedule On to this Agreement shall have effect

 

2.    Appointment and Distributor Obligations

a.    The Distributor is appointed as a non-exclusive distributor in Australia by Mezzanine under the terms and conditions set out in this Agreement which is subject to change from time to time without notice

b.    The Distributor shall use its best endeavours to promote the distribution and sale of the Products and Vouchers during the term of this Agreement.

c.    Without prejudice to the generality of the obligation in clause 2b, the Distributor shall perform the specific obligations contained in Schedule Two

d.    The appointment of the Distributor under clause 2a. shall mean that the Distributor:

                                          i.    Accepts that Mezzanine shall not be responsible of any kind to employees of the Distributor; and

                                         ii.    Shall be responsible for all marketing expenses toward it agents

e.    The Distributor shall not:

                                          i.    Represent itself as an agent of Mezzanine for any purpose

                                         ii.    Pledge credit to Mezzanine

                                        iii.    Give any condition or warranty on the behalf of Mezzanine

                                       iv.    Make any representation on the behalf of Mezzanine

                                        v.    Commit Mezzanine to any contract; and

                                       vi.    Make any promises; warranties, guarantees or representations in relation to the Products and/or Vouchers except as advised prior in writing by Mezzanine and/or Lebara Australia Limited

3.    Obligations of Mezzanine

Subject to the performance by the Distributor as prescribed in the Distributor's obligations under this Agreement, Mezzanine shall during the term of this Agreement:

a.    Perform any applicable obligations under Schedule Three

b.    Supply the Products and Vouchers ordered following approval of the order

c.    Supply the Products in accordance with the product and service standards that would be reasonably expected of a competent supplier of such products

d.    Supply the Vouchers in accordance with the product and service standards that would be reasonably expected of a competent supplier of such products

e.    Mezzanine shall during the term of this Agreement:

                                          i.    Provide reasonable support for jointly agreed promotional and marketing campaigns;

                                         ii.    Provide the Distributor with appropriate promotional materials; and

                                        iii.    Provide the Distributor with appropriate management information

4.    Joint Responsibilities of the Parties

During the term of this Agreement, the Parties shall

a.    Appoint a single point of contact to manage the entire relationship between the Parties

b.    Meet on a regular basis to pro-actively suggest, support and implement promotion campaigns

c.    Work together to minimise fraud

d.    Use the SIM serial number as the common unique reference; and

e.    Not encourage the use of, or in any way knowingly permit or support the use of so called "GSM Gateways" or "SIM Boxes" which allow the termination of fixed telecommunications traffic and reconnection of this traffic using a mobile phone and SIM card

5.    Title and Risk

The Parties agree that during the term of this Agreement:

a.    Risk shall pass to the Distributor upon delivery

b.    Title to the Products and/or Vouchers shall pass to the Distributor upon payment to Mezzanine

c.    Un-activated and activated Vouchers have the same value; and

d.    The risk for misuse of the Products and/or Vouchers lies with the end user of the Products and/or Vouchers

 

6.    Payment for Products and/or Vouchers

The commercial provisions contained in Schedule Three shall have effect.  In particular

a.    The purchase price; and

b.    Distributor's margin for each order for Products and/or Vouchers shall be the product of the total number of units multiplied by the purchase price less the applicable Distributor margin discount per unit as set out in the document OurMobile Compensation Plan and applied as per Schedule Three.

c.    The Distributor shall pay for the Products and/or Vouchers on each Order to Mezzanine or its nominee(s).  Mezzanine reserves the right to offset any Distributor margin or payment(s) due to Distributor against outstanding invoices for the Products and/or Vouchers

d.    In respect of Distributor margin or payments due to Distributor, the Distributor

                                          i.    Shall accept self billed invoices raised by Mezzanine on behalf of the Distributor

                                         ii.    Acknowledge that GST shown on the self billed invoices referred to in clause 6.d.i shall be the Distributor's output GST due to the Australian Taxation Office; and

                                        iii.    Shall not raise sales invoices in respect of the Distributor Margins or other payments to the Distributor

e.    Where any self billed invoice under clause 6.d.i understates the GST chargeable on a supply and the Commissioner of Taxation lawfully adjusts the value of the taxable supply for the purpose of calculating GST, clause 13.7 of this Agreement shall have effect

f.     The purchase price for each order is exclusive of all taxes, duties and tariffs

g.    The Distributor agrees that Mezzanine may obtain a credit report on the Distributor from a credit report agency for the purpose of assessing whether to accept the Distributor's order for Mezzanine or Lebara Product and/or services.  Mezzanine may disclose information about the Distributor's creditworthiness to other credit providers.

7.    Suspicion of Fraudulent Activity

a.    Should Mezzanine have reasonable grounds to suspect fraudulent activity amongst Distributor or Distributor's customers and agents then Mezzanine shall suspend any payments and or margins offered in respect of the customers suspected of such behaviour pending further investigation

b.    In the event of suspension under clause 7.a and if upon further investigation activity is found that could reasonably be seen as fraudulent activity, then:

                                          i.    Mezzanine shall not be obliged to make any payments or offer margins in relation to the affected Products and/or Vouchers;

                                         ii.    Distributor shall as a minimum repay Mezzanine all payment and/or margins offered to the Distributor in relation to any affected Products and/or Vouchers; and

                                        iii.    Any affected Products and/or Vouchers will be suspended

c.    The rights of Mezzanine under this clause 7 shall not affect any bona fide and genuine activations and connections and these shall be paid in accordance with the terms and conditions herein.

8.    Confidentiality and Public Relations

a.    the Distributor shall:

                                          i.    Preserve as confidential all information received relating to the business of Mezzanine and Lebara and any of its Related Bodies Corporate it receives as a result of this Agreement

                                         ii.    Not disclose such confidential information without the prior written consent of Mezzanine

                                        iii.    Permit access to the confidential information only to such of its professional advisers who need such access provided they inform each of them of the confidential nature of the confidential information and of the Distributor's obligations under this Agreement; and

                                       iv.    Use such confidential information only to fulfil its obligations under this Agreement

b.    Clause 8.a shall be without prejudice to the terms of any confidentiality agreement or deed signed between the Parties

c.    The Distributor shall not under any circumstances disclose any information about this relationship or the business activities of Mezzanine, including any public media without the prior written consent of Mezzanine.

d.    In the clause, Related Body Corporate has the meaning given to that term by the Corporations Act 2001.

 

9.    Intellectual Property and Trade Marks

a.    The Distributor shall market the Products and/or Vouchers under the proprietary trade names designed by Lebara and/or Mezzanine and shall only use these names, trade marks, brand names and logos in accordance with the provisions of this Agreement.

b.    The Distributor shall not copy Mezzanine and/or Lebara's trade marks, brands, logos and names nor copy any of the manuals or documentation without prior written consent.

c.    Mezzanine shall provide a personal, non transferrable and revocable licence to the Distributor for the duration of this Agreement in respect of any relevant trade marks

 

10.  Term of Agreement and Termination

a.    The term of this Agreement shall continue for three months ("the Initial Term").  After the Initial Term, the Agreement will automatically renew on a monthly basis until termination by any Party on thirty day's written notice of the date of termination

b.    Upon the occurrence of any of the following events, the non defaulting Party shall have the right to cancel and terminate immediately by written notice to the defaulting Party if the defaulting Party:

                                          i.    Commits a material breach of this Agreement and the breaching Party fails to remedy such breach within 30 days of receipt of notice of breach; if capable of remedied;

                                         ii.    Commits a breach of this Agreement which cannot be remedied'

                                        iii.    Is repeatedly in breach of this Agreement; or

                                       iv.    Is the subject of a bankruptcy order, or become insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or if it goes into voluntary (otherwise than for reconstruction or amalgamation) or compulsory liquidation or receiver or administrator or examiner is appointed over its assets.

c.    Where the Distributor (or the customer and agents of the Distributor) are suspected in the reasonable opinion of Mezzanine of involvement with fraud, or attempted fraud or acts which are of a defamatory, offensive, abusive, obscene or menacing character in connection with the use of the Products and/or Vouchers, Mezzanine shall have the right to cancel and terminate immediately by written notice to the Distributor

d.    Mezzanine may elect to suspend immediately the provision of the Products and/or Vouchers until further notice, without liability to the Distributor on notification in writing in the event that"

                                          i.    Mezzanine is obliged or required to comply with a request from a third party provider or any applicable Law the effect of which requires Mezzanine and or Lebara Australia Limited to suspend immediately the provision of the Products and/or Vouchers; or

                                         ii.    The Distributor (or the customers and agents of the Distributor) are suspected in the reasonable opinion of Mezzanine of involvement with fraud, or attempted fraud or acts which are of a defamatory, offensive, abusive, obscene or menacing character in connection with the use of the Products and/or Vouchers

e.    In any of the events in clause 10.b 10.c 10.d occur, any suspension of the supply or provision of Products and/or Vouchers shall without prejudice to Mezzanine's right to terminate this Agreement

f.     The termination of this Agreement shall be without prejudice to the rights of any Party against the other Party

g.    In this clause the term Law means any:

                                          i.    Legislation, regulation, determination, by-laws, declarations, ministerial directions and other subordinate legislation;

                                         ii.    Common law;

                                        iii.    Government agency requirement or authorisation (including any conditions of any authorisation);

                                       iv.    Mandatory codes, standards and guidelines;

                                        v.    Writ, order, injunction; or

                                       vi.    Local government legislation including regional, district and zone plans, regulations, by-laws, declarations and other subordinate legislation.

11.  Liability

a.    Except in the event of:

                                          i.    Loss or damage to stock held by the Distributor on Mezzanine's behalf

                                         ii.    A bona fide and undisputed debt owed under this Agreement by one Party to another Party;

                                        iii.    The payment of the indemnity under clause 12; or

                                       iv.    A breach by the Distributor of an obligation in clause 8 or 9

The maximum aggregate amount of any and all direct liabilities (whether for breach of contract, tort (including negligence) for any and all reasons arising pursuant to this Agreement shall be limited to a maximum of $2000.00 for any and all claims.

b.    In no event shall any Party be liable to another Party, either in contract, tort (including negligence) or otherwise for:

                                          i.    Direct or indirect loss of profits, business or anticipated savings, or

                                         ii.    Any indirect or consequential loss or damage

Whatsoever arising from the relationship or the conduct of business arising from this Agreement

c.    Mezzanine shall have no liability for:

                                          i.    The acts and omissions of the other telecommunication operators; or

                                         ii.    Any claims arising from Products or Vouchers which have been lost, stolen, fraudulently used or used for any unlawful purpose.

d.    Mezzanine provide a policy of exchange for Products purchased that has design, manufacturing or material defects for a period of one months following the earlier of delivery or transfer into storage and shall at its own cost promptly within a reasonable time replace or repair any proven defective Products returned to it during this warranty period

12.   Indemnity

The Distributor shall defend and hold harmless Mezzanine from and against any and all liabilities, costs, damages and expenses (including legal and other professional fees) resulting from Distributor's (or its employees, agents or independent contractors) breach of any provision in this Agreement, misrepresentation of Products and/or Vouchers, or unauthorised or illegal acts od Distributors, agents or independent contractors.

13.  GST

a.    In this Agreement

                                          i.    The expressions "adjustment note", "consideration", "GST", "input tax credit", "reduced input tax credit", "supply", "tax invoice", "recipient" and "taxable supply" have the meanings given to those expressions in the A New Tax System (Good and Service Tax) Act 1999; and

                                         ii.    Sums exclude GST

b.    Unless otherwise expressly stated, all prices and other sums payable or considerations to be provided under this Agreement are exclusive of GST

c.    Despite any other provisions in this Agreement, if GST is payable on any supply made under or in connection with this Agreement, the recipient must pay to the supplier an amount equal to the GST payable on the taxable supply

d.    The recipient must pay the amount referred to in clause 13 c in addition to and at the same time as payment for the taxable supply is required to be made under this Agreement

e.    If this requirement requires a party to reimburse any other party for any expense, loss or outgoing ("Reimbursable Expense") incurred by the other party, the amount required to be reimbursed by the first party will be the sum of:

                                          i.    The amount of the Reimbursable Expense net of input tax credits (if any) to which the other party is entitled in respect of the Reimibursable Expense; and

                                         ii.    If the other party's recovery from the first party is a taxable supply, any GST payable in respect of that supply

f.     If a supply is made under this Agreement in respect of which GST is payable or is varied, the supplier must provide the recipient of the supply a valid tax invoice or adjustment note as the case may be at or before the time of payment or variation.

g.    If the amount of GST payable by the supplier on any supply made under this Agreement differs from the amount paid by the recipient pursuant to clause 13 c of this Agreement where the Commissioner of Taxation lawfully adjusts the value of the taxable supply for the purpose of calculating GST, then the amount of GST paid by the recipient will be adjusted accordingly by a further payment by the recipient to the supplier or the supplier to the recipient as the case requires

14.  Force Majeure

No Party shall be held responsible for any delay or failure in performance of any part of this Agreement to the extent such delay or failure is caused by fire; flood; lightning; explosion; war; strike; embargo; act of God or nature; inability to secure materials or transportation facilities; act or omission of carriers or suppliers' acts or failures of any government authority provided, however, that the Distributor by reason of such cause shall not be relieved of its obligations to make any required payment due to Mezzanine.

15.  Disputes and Law

a.    This Agreement and its provisions shall be governed by and construed in accordance with the laws of Victoria and the Parties hereby agree to submit to the exclusive jurisdiction of the courts exercising jurisdiction in that State.

b.    This Agreement together with the Schedules and attachments hereto constitutes the entire agreement between the Parties with regard to the subject matter hereof and excluding any confidentiality agreements, supercedes all prior communications, agreements and understandings whether written or oral relating to the subject matter hereof.

c.    The Parties shall attempt in good faith to negotiate a settlement to any claim, any disagreement or dispute which may arise between them arising out of  or in connection with this Agreement.  In the event objections to invoices or any other dispute cannot be dealt with within a period of 14 days at account level, the matter shall be referred to a director of any Party.  If the dispute cannot be resolved after a further period of 14 days then the matter shall be referred to an independent mediation with the mediator being named jointly by the Parties.  In the event the Parties cannot agree on a mediator, the President of the Law Society of Victoria or the President's nominee shall elect the mediator and determine the mediator's remuneration.  Melbourne, Australia shall be the venue of the mediation proceedings

d.    Clause 15 c shall not apply in respect of any application for interim injunctive relief

16.  Notice

a.    Any notice by any Party shall be in writing

b.    In the event that there is any dispute as to whether notice has been given, a notice is deemed to have been duly given only if sent by registered mail and registered to the other Party at its registered office or at such other office as such other Party may specify

17.  Privacy

a.    The provisions of this clause apply despite anything else in this agreement

b.    Distributor must comply with and ensure that it complies with all Privacy Laws in relation to the Personal Information, whether or not the Distributor is an organisation bound by the Privacy Act

                                          i.    If Distributor is a small business operator under the Privacy Act, then the Distributor agrees to choose to be treated as an organisation bound by the Privacy Act in accordance with Section 6EA of the Privacy Act during the term of this agreement

18.  General and Miscellaneous Provisions

a.    The Distributor may not assign or transfer any of its rights or obligations under this Agreement, without the written consent of Mezzanine, Mezzanine may assign or transfer its rights or obligations (or both) without consent

b.    This Agreement may only amended or varied by agreement of the Parties in writing

c.    Nothing in this Agreement is either intended or will be deemed to create any relationship of partnership, joint venture or agency between the Parties

d.    The Parties represent and warrant that each has the full authority to perform its obligations unbder this Agreement and that the person executing this Agreement has the authority to bind it

Schedule One

Definitions and Interpretation

1.         The definitions and rules of interpretation in this Schedule One apply to this Agreement.

2.         Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.

3.         The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement.  Any reference to this Agreement includes the Schedules.

4.         Words in the singular shall include the plural and vice versa.

5.         A reference to any party shall include that party's personal representatives, successors or permitted assigns.

6.         Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

 

Schedule Two

Specific Distributor Obligations

Part A

The Distributor undertakes to (and shall procure the same for all of its Related Bodies Corporate) not sell or distribute the Products/Vouchers of the entities listed or described in Schedule Four unless otherwise agreed in writing with Mezzanine. 

For the purposes of this Schedule Two:

Related Bodies Corporate has the meaning given to that term by the Corporations Act 2001.

Part B

The Distributor shall:

1.         not misrepresent the Products and/or Vouchers in any way;

2.         always represent the Products, Vouchers and Mezzanine in a professional and businesslike manner;

3.         manage and co-ordinate the cascading Commission payments (based on user top-up behaviour) through the multiple levels of the distribution chain;

4.         provide to Mezzanine agreed management information relating to sales, sales by channel and statistics through the distribution chain, on a regular basis (no less frequently than monthly).  Those customers whose sales represent in excess of 3% (three per cent) of the aggregate sales on a per SIM card or credit voucher basis by the Distributor of Products and Vouchers over the previous 120 elapsed days shall be defined as "Reserved Customers";

5.         manage and co-ordinate merchandising opportunities to allow Mezzanine or Lebara merchandisers to operate at the point of wholesale sale in appropriate situations;

6.         always include the Products in multi-SIM point of sale promotions and the Distributor shall always treat the Lebara network as an equivalent to the main networks (including Telstra, Optus, Vodafone, Virgin, Hutchison 3) (and the pricing for the promotions referred to in this clause shall always be agreed in writing by the Parties at least two weeks prior to the commencement of such promotions);

7.         only pair handsets with the Products for sale through established Distributor channels with Mezzanine written permission for each deal; 

8.         identify any customers within 48 hours (2 working days) upon receipt of SIM Serial Number (SSN) information from Lebara where Lebara and/or the Distributor suspects fraudulent activity (including by way of reference same number dialling, gold number searching, dialling premium/barred numbers while outside Australia and similar) that may require investigation (and should it be apparent that fraudulent activity has taken place Distributor will supply a list of those customer details to Lebara immediately upon request);

9.         only use any promotional material in the performance of its obligations under this Agreement that has been approved by Mezzanine and/or Lebara;

10.       submit orders in writing to Mezzanine stating the number of units and the purchase price payable in accordance with Schedule Three. Such orders shall not be legally binding on Mezzanine until accepted. Mezzanine, in its sole discretion, may decline to accept an order;

11.       comply with all applicable laws, regulations and current industry guidelines and codes of conduct relating to its activities in connection with the Products and/or Vouchers;

12.       adhere to Lebara's guidelines relating to the Vouchers as advised by Mezzanine from time to time;

13.       not store the MS-ISDN (telephone number) of the SIM cards [without Mezzanine and/or Lebara's written consent]; and

14.       procure each customer or retailer which is not a party to a Retailer Agreement with Mezzanine  to:

(a)        give Mezzanine the original copy of each each Identification Form (Annexure A to this Agreement) completed in respect of the sale of a Product as soon as practicable after completing each sale and ensure that the retailer keeps a copy of all such Identification Forms provided to Mezzanine, and all other forms and records required by Mezzanine from time to time and upon request must give Mezzanine access to them and copies of them if asked; and

 

(b)        ensure that the customer's proof of identification meets the minimum standards specified by Lebara from time to time and record these minimum standards of identification in such manner as is required by Lebara.  Where the retailer does not meet the minimum standard of identification, Lebara may in respect of each Product sold for which insufficient customer idenfitication has been obtained, request that the Distributor repay any amount Lebara has paid the Distributor in respect of that Product

 

To the extent that retailer is required to obtain proof of identification retailer must be satisfied that the customer's proof of identification and other details are genuine, and in order to justify retailer's claim for the payment amount provided in respect of each Product, retailer must be able to produce evidence of that genuineness.

Schedule Three

Commercial Provisions

 

1.         Distributor Pricing

1.1       The Products shall comprise:

(a)        SIM cards with $10 credit that are to be topped up with call credit ("$10 Credit SIM Cards"); and

(b)        SIM cards with $ 30 credit ("$30 Credit SIM Cards")

1.2       The prices which the Distributor will pay Mezzanine for the Products shall be as follows:

(a)        $10 credit SIM Cards (The SIM is free and contains call credit of $10 charged at $10) less the applicable Distributor volume product margin as prescribed in the document, OurMobile Compensation Plan; and

(b)        $30 credit SIM Cards (The SIM is free and contains call credit of $30 charged at $30) less the applicable Distributor volume product margin as prescribed in the document, OurMobile Compensation Plan

1.3       The prices which the Distributor shall pay Mezzanine for Vouchers shall be at the advertised retail value less a Distributor margin of 2%, and if eligible shall receive additional Distributor margin for Voucher sales within the Distributor's group as prescribed in the document, OurMobile Compensation Plan, subject to

a)    personally sponsoring four additional Distributors within your nominated  community; and

b)    have a complete team consisting of yourself with four other Distributors reporting directly to you ("POD"); and

c)    have paid for any services or fees applicable to an OurMobile Distributor

 

 

 

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