Preview of our top selling Dealer Agreement
Telstra / Axicorp - Dealer Agreement
Solution Plus
Dealer Agreement
Fixed Network
Mallesons Stephen Jaques
S 0 L I C I T 0 R S
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What is this agreement about?
The Agreement Details and the Agreement Terms set out the basis on which We appoint You as one of Our Solution Plus Dealers in fixed network services. Words that appear like this have the meanings given in the Agreement Details or the Agreement Terms.
Structure of this agreement
This agreement is made up by:
. the agreement details - information about the parties, the term of the
agreement and the dealership details; and
. the basic agreement terms - the basic contractual terms of the
dealership; and
. schedule 1 - the duties - details of Your obligations as a dealer;
. schedule 2 - the commission structure - the basis of calculating and
paying You commission, including commission terms; and
. schedule 3 - the key performance indicators - Your minimum performance
requirements; and
. schedule 4 - the trade marks schedule - the trade marks which You must
use; and
. schedule 5 - the advertising procedures - the procedures You must follow
when using the trade marks in advertisements; and
. schedule 6 - the ballot guidelines - the guidelines You must observe
during preselection ballots; and
. schedule 7 - Your Former Customers - the names of Your Former Customers.
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Agreement Details
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Date of Agreement 8 January 1996
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Agreement term This agreement starts on 8 January 1996 and
it lasts for two years, unless first cancelled
under clause 4.
Details about the parties
Telstra: Telstra Corporation Limited ACN 051 775 556 ("We,
Us, Our and Ourselves")
Address: 242 Exhibition Street Melbourne Victoria
Telstra National Sue Wiggins
Dealer Manager:
Address & fax: 9/580 George Street Sydney NSW 2000
(02)267 2507
Dealer: Ultimate Communications (Australia) Pty. Ltd.
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("You, Your and Yourself")
Address & fax: 4/468 St. Kilda Road, Melbourne 3004
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Fax: 98663878
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Dealer Campbell Burns
Representative:
Status of Dealer: [X] Company (ACN 072 365 747)
(tick whichever box
applies) [ ] Partnership
[ ] Sole Trader
[ ] Other (please specify)
Resale Connect Cut Off
Date (see schedules 1 & 2) 20 January 1996
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- -------------------------------------------------------------------------------- Resale Supply Cut Off Date (see schedules 1 & 2) 5:00pm 31 July 1996
Flexi-Plan Start Date (see clause 7.31 and schedules 1 1 February 1996 & 2)
Commission Prepayment Date (see 1 February 1996 schedule 2)
Amount of Bank Guarantee (see schedule 2)
Not Applicable Dealership details
To be completed
Services:
(tick whichever [/] Flexi-Plan - Business Saver Plus
----
boxes apply, a cross
in a box has no [/] Flexi-Plan - Corporate Centre Long
effect) Distance
[/] Flexi-Plan - Smart Saver
[/] Flexi-Plan - Long Distance 4 (only
for Former Customers)
[/] Easycall
[/] MessageBank
[/] FaxStream
[/] Freecall 1800
[/] Business Links
[_] Centel
[/] Centel Plus
[/] Win-back
[/] Telstra Carrier Selection
[/] Line Hunt - --------------------------------------------------------------------------------
Basic Agreement Terms
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1 YOUR APPOINTMENT AND WHAT IT MEANS
1.1 We appoint You as Our Dealer to promote the sale of the Services and to
extend the demand for the Services. You accept the appointment on the
terms of this agreement.
1.2 Your appointment is non-exclusive. This means We may promote the Services
Ourselves or by appointing other persons.
1.3 As Our dealer, You may identify Yourself as a "Telstra Approved Dealer -
Solution Plus".
2 DUTIES
2.1 What are your duties?
Your duties are in schedule 1.
What are our duties?
2.2 We must pay You commission as calculated in schedule 2.
2.3 We will keep records of the commission We pay You. If there is a dispute
about Your commission. We will, as far as permitted by law and by Our
privacy policies, allow You to inspect those records. Our records are
confidential and Your obligations in clauses 3.6 to 3.9 extend to them.
2.4 We may:
(a) provide You with advertising assistance (financial or otherwise);
(b) give You free Merchandising Material; and
(c) give You free management sales and administration advice; and
(d) send You regular dealer newsletters and interim information updates.
3 INTELLECTUAL PROPERTY
3.1 Intellectual Property (present or future) is owned by the person who
creates the Intellectual Property. However:
(a) any future Intellectual Property which incorporates the
Trade Marks is owned by Us; and
(b) modifications and changes to Intellectual Property are owned
by the person who owns the source Intellectual Property.
Trade Marks
3.2 You acknowledge:
(a) Our ownership of the Trade Marks and Our right to control the use of
them; and
(b) Our exclusive right to use the Trade Marks in connection with the
Services and Our business.
3.3 We give You a non-exclusive licence to use the Trade Marks in connection
with your sale of the Services. The licence lasts for the term of this
agreement and it is subject to clauses 3.2 and 3.4.
3.4 Your Trade Marks duties are in paragraph 2 of schedule 1.
3.5 The procedures You must follow when using the Trade Marks in
advertisements are set out in schedule 5.
Confidential Information
3.6 You must keep secret and do everything You can to protect and preserve the
confidential nature and secrecy of all Confidential Information.
3.7 Subject to clauses 3.6 and 3.8. You may disclose Confidential Information
to Your employees, officers, agents, contractors and subcontractors in the
course of their employment or service on a need to know basis or to Your
advisors for advice concerning Your rights under this agreement.
3.8 Your Confidential Information duties are in paragraph 3 of schedule 1.
3.9 Your obligations under clauses 3.6 and 3.8 last after the end of this
agreement, for a period of three (3) years.
4 WHEN CAN THIS AGREEMENT BE CANCELLED?
4.1 We may cancel this agreement immediately by notice to You, if:
(a) You become Insolvent; or
(b) Our name, equipment, services or personnel through Our association
with You is brought into disrepute (Our decision on this point must
be reasonable but is final); or
(c) You stop or threaten to stop carrying on business; or
(d) You do not pay any money owing to Us within 14 days of it becoming
due; or
(e) where You are a company, a person or group of persons, not currently
shareholders in You, tries to acquire a Relevant Interest in 50% or
more of Your shares in breach of clause 6; or
(f) You try to transfer Your rights under this agreement in breach of
clause 6; or
(g) You breach Your duty in paragraph 1.5 of schedule 1; or
(h) We reasonably determine or have reasonable grounds to believe, that
this agreement contravenes the Act or the Trade Practices Act
1974(Cth); or
(i) You fail to meet Your KPI's in a Quarter; or
(j) You fail to meet the Conversion Rate; or
(k) You breach Your clause 3.6, 3.7 or 3.8 obligations.
4.2 If You breach this agreement (other than a clause 4.1 breach) and:
(a) the breach is one which We reasonably believe cannot be remedied, We
may cancel this agreement immediately by notice to You; or
(b) the breach is one which We reasonably believe can be remedied, We
may cancel this agreement immediately by notice to You if:
(i) We first gave You a written notice which specified the breach
and asked for it to be remedied within a reasonable time; and
(ii) You did not remedy the breach to Our reasonable satisfaction
within that time.
4.3 We may cancel this agreement immediately by notice to You if We have given
You valid notices under clause 4.2(b) more than three times in a three
month period (irrespective of whether the notice is later remedied).
4.4 We may elect to treat a clause 4.1(i) and (j) breach as a clause 4.2(b)
breach. If We make this election, then that does not stop Us from
treating the next breach as a clause 4.1 breach.
4.5 Without prejudice to Our rights under clauses 4.1 to 4.4, We may, despite
any other clause, suspend You as a "Telstra Approved Dealer - Solution
Plus" (by which We mean suspend Your rights under this agreement including
Your right to commission) during any period in which:
(a) amounts owing Us by You under this agreement are unpaid; or
(b) you fail to comply with Our reasonable procedures or instructions.
4.6 You will not be in breach of Your duty under paragraph 1.5(a) of schedule
1 and We will not cancel this agreement under clause 4.1(g) if You act as
a Service Provider as long as You comply with the following requirements:
(a) You and the Service Provider must be separate companies with
different names (the names must not be similar); and
(b) You must not actively promote that You are in any way connected,
related to, affiliated with or sponsored by the Service Provider and
the Service Provider must not do the same; and
(c) You must not be an Associated Body Corporate of the Service Provider
and the Service Provider must not be an Associated Body Corporate of
You; and
(d) the Service Provider must carry on its business as a Switched
Service Provider or intend to become a Switched Service Provider and
not as either or both of an Aggregator or a Rebiller.
5 WHAT HAPPENS ON CANCELLATION OR EXPIRY?
5.1 On cancellation or expiry of this agreement:
(a) You must at Your own expense:
(i) pay to Us all money owing to Us within seven days of
cancellation or expiry; and
(ii) immediately stop identifying Yourself as a " Telstra Approved
Dealer" or holding Yourself out to the public as being an
approved dealer in the Services or as being sponsored or
approved by or affiliated with Us to promote the sale of, or
extend the demand for, the Services; and
(iii) immediately stop using the Trade Marks and not use, either
directly or indirectly, as trade marks or otherwise the Trade
Marks or any trade mark similar to or so nearly resembling a
Trade Mark as to be likely to deceive or cause confusion; and
(iv) remove from Your premises and, if We ask, return all signs
which are owned by Us and remove and obliterate from Your
premises all other signs and signwriting which contain a
reference to or indicate a connection with Us or the Services
or on which any Trade Mark appears; and
(v) deliver to Us, or at Our option destroy, all Merchandising
Material, Our documents and stationery and all other printed
material which contains a Trade Mark or a reference to or
indicates a connection with the Services in Your power,
possession or control and, within seven days from that date,
by statutory declaration, certify that this has been done;
(vi) deliver all Confidential Information to Us; and
(vii) not use or disclose Our Confidential Information; and
(b) You and any Person Associated With You, must not, in any capacity:
(i) compete against Us (whether directly or indirectly); or
(ii) become a Service Provider or an agent, dealer or other
representative of a Service Provider, except to the extent
allowed under clause 4.6; or
(iii) become an agent, dealer or other representative of a Carrier
other than Us; or
(iv) disclose or sell to another person the details (including
names, addresses, phone and fax numbers and business names)
of Your former customers whose names are in Schedule 7, for
period of 12 months following the cancellation or expiry of
this agreement in Australia.
Rider 1
5.2 In clause 5.1(b), "in any capacity" includes direct or indirect
involvement (whether alone or jointly with or for any other person) as a
principal, agent, independent contractor, partner, employee, shareholder,
unitholder, director, trustee, beneficiary, manager, consultant, adviser
or financier.
5.3 If clause 5.1(b) is found to be void or unenforceable at law or under any
statute, then it is replaced with the following new clause 5.1(b):
"(b) You and any Person Associated With You, must not, in any capacity:
(i) compete against Us (whether directly or indirectly); or
(ii) become a Service Provider or an agent, dealer or other
representative of a Service Provider, except to the extent
allowed under clause 4.6; or
(iii) become an agent, dealer or other representative of a Carrier
other than Us; or
(iv) disclose or sell to another person details (including names,
addresses, phone and fax numbers and business names) of Your
former customers whose names are in Schedule 7.
for a period of six months following the cancellation or expiry of this
agreement in Australia."
Rider 2
5.4 If clause 5.1(b) and the new clause 5.1(b) (set out in clause 5.3) are
found to be void or unenforceable at law or under any statute, then they
are replaced with the following new clause 5.1(b):
"(b) You and any Person Associated With You, must not, in any capacity:
(i) compete against Us (whether directly or indirectly); or
(ii) become a Service Provider or an agent, dealer or other
representative of a Service Provider, except to the extent
allowed under clause 4.6; or
(iii) become an agent, dealer or other representative of a Carrier
other than Us; or
(iv) disclose or sell to another person the details (including
names, addresses, phone and fax numbers and business names)
of Your former customers whose names are in Schedule 7,
for a period of three months following the cancellation or expiry of this
agreement in Australia." RIDER 3.
5.5 If We cancel this agreement:
(a) We may:
(i) retain any money paid to Us; and
(ii) exercise Our right of set off under clause 7.12; and
(iii) pursue any other remedies provided by law or equity; and
(b) We will be released from any further obligations or liabilities
under this agreement to You, other than the obligation to pay monies
validly owing to you by Us.
5.6 You authorize Us and Our employees and agents to enter Your premises where
any Confidential Information, Trade Marks, signs or signwriting may be and
to remove or obliterate the Confidential Information or the marks and
carry out any works reasonably necessary for such removal or obliteration
at Your expense, should You fail to comply with Your obligations under
clause 5.1, within the required reasonable period.
5.7 Schedule 2 sets out the what happens to Your entitlement to commission on
cancellation or expiry.
6 TRANSFERRING YOUR RIGHTS
6.1 You acknowledge that We have personal confidence in You, and those who
have a Relevant Interest in You, to carry out Your duties.
6.2 You may only:
(a) transfer Your rights under this agreement; or
(b) transfer Your business in connection with this agreement,
if before the transfer;
(c) You give Us reasonable advance notice and get the written consent
of Our National Dealer Manager; and
(d) You satisfy Us within reason that the proposed new dealer is
respectable with experience and a good reputation for conducting
business; and
(e) You give Us a copy of any contract relating to the transfer; and
(f) You, and the proposed new dealer sign a deed (in a form reasonably
required by Us) in which:
(i) the new dealer agrees to be bound by this agreement as if it
were You; and
(ii) the new dealer acknowledges it must comply with Your
obligations under this agreement whether or not the
obligations relate to a period before the proposed transfer
takes effect; and
(iii) You acknowledge that You continue to be bound by this
agreement; and
(g) any default by You has been remedied or waived by Us; and
(h) You and the proposed new dealer comply with all Our reasonable
6.3 If You permit a person or group of persons, not currently shareholders in
You, to acquire a Relevant Interest in 50% or more of Your shares, then
that will be a breach of this agreement, unless You first got Our written
consent to the change.
7 GENERAL
The ballot process
7.1 Your specific duties concerning the Ballot process are set out in
paragraph 4 of schedule 1.
7.2 The guidelines You must follow during the Ballot process am set out in
schedule 6.
Changing the agreement
7.3 The schedules may be changed by mut
ual agreement between Us and You. We will give You and You will give Us reasonable advance notice in writing of any changes that may be required. Changes to the schedules will be taken to have been accepted when written confirmation of that acceptance is
exchanged between you and Us.
7.4 If We change schedule 2 (the Commission Structure), the commission We pay
You for a Connection will be determined by the schedule 2 applicable at
the Connection Date.
7.5 Otherwise this agreement may not be varied except in writing signed by the
Limitation of liability
7.6 Unless expressly provided for under this agreement and to the extent
permitted by law:
(a) all terms, conditions, warranties and representations about the
Services; and
(b) any liability of Ours, Our employees or agents in negligence or
otherwise relating directly or indirectly to the Services
are excluded and You release Us from any liability.
7.7 You agree to indemnify Us (this is like compensating Us for), and keep Us
indemnified, from and against all liability, loss, damage, penalty and
costs of any kind whatsoever (including indirect, special or consequential
loss or damage) caused directly or indirectly from:
(a) a breach of this agreement by You; or
(b) any claim or action against Us arising directly or indirectly out of
negligence or any wilful act committed by You;
or any of Your servants, officers, agents, contractors or subcontractors.
Your relationship with Us
7.8 You are an independent contractor and are not Our agent, joint venturer,
partner or employee and We will not be bound by any agreements
representations or warranties made by You to any person. Both parties
acknowledge that neither party has the power or authority, directly or
indirectly, or through its servants or agents, to bind the other party
with a third person, or otherwise to negotiate or enter into a binding
relationship for or on behalf of the other party.
7.9 A provision of or a right under this agreement may not be waived except in
writing signed by the party creating the waiver.
Unforeseen Events
7.10 An obligation of a party under this agreement is suspended during the time
and to the extent that the party is prevented from or delayed in complying
with an obligation because of an Unforeseen Event.
7.11 A party affected by an Unforeseen Event must give to the other party
particulars of the event and take reasonable steps to remove or mitigate
the relevant event except that the parry will not be obliged to settle a
strike, lock-out, boycott or other industrial dispute.
Set-off
7.12 We have the unqualified right to set-off by giving You notice, any moneys
owed to You by Us, whether that money is owed to You under the terms of
this agreement or otherwise, against any money owed to Us by You.
Remedies cumulative
7.13 The rights, powers and remedies provided in this agreement are cumulative
with and not exclusive of the rights, powers or remedies provided by law
or equity independently of this agreement.
Survival of rights
7.14 Despite expiry of this agreement, any term of this agreement that is
capable of taking effect after expiry will remain in force.
7.15 If the whole or any part of a provision of this agreement is void,
unenforceable or illegal in a jurisdiction it is severed for that
jurisdiction. The remainder of this agreement has full force and effect
and the validity or enforceability of that provision in any other
jurisdiction is not affected. This clause has no effect if the severance
alters the basic nature of this agreement or is contrary to public policy.
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Operation of indemnities
7.16 Each indemnity in this agreement is a continuing obligation, separate and
independent from other obligations of the parties and survives
cancellation of this agreement.
7.17 It is not necessary for a party to incur expense or make payment before
enforcing a right of indemnity conferred by this agreement.
Approvals and consents
7.18 We may give conditionally or unconditionally or withhold Our approval or
consent but must act reasonably at all times unless this agreement
expressly provides otherwise. This clause also applies to Our National
Dealer Manager.
Further assurances
Each party agrees, at its own expense, at the request of the other party
to do everything reasonably necessary to give effect to this agreement and
the transactions contemplated by it, including, but not limited to, the
signing of documents.
7.20 You agree, at Our expense, to do everything necessary to enable Us to
comply with any of Our obligations under any legislation, law or
government or quasi-government direction, including under the Act, the
Radiocommunications Act 1991 (Cth) and any class licence issued by AUSTEL.
Entire agreement
7.21 This agreement comprises the entire understanding between the parties.
Duties and taxes
7.22 You must pay all duties, taxes, levies, charges or imposts on or in
connection with this agreement, any document contemplated by this
agreement or anything provided under this agreement (including stamp
duty).
7.23 Notices and communications must be in writing and given according to the
Agreement Details. Notice details may be changed by giving written notice
to the other.
Governing law
7.24 This agreement is governed by the laws of Victoria.
7.25 The terms and conditions of this agreement are confidential and will not
be revealed to any third party without the consent of both parties (except
as required by law or to obtain legal advice).
Telecommunications Legislation
7.26 This agreement is subject to and is to be read according to the Act and
the Telstra Corporation Act 1991 (Cth).
Costs and Stamp Duty
7.27 You must pay Your own costs in connection with this agreement and so must
We. However, You must pay any stamp duty assessed (including penalties) on
this agreement.
Renewal of term
7.28 This agreement will automatically be renewed for a further term of
two years, unless We give You a notice to the contrary at least one
month before the end of the term. The renewed agreement will be on
the same terms as this agreement except this clause 7.28 will be
Damages not a sufficient remedy
7.29 You understand that damages are not a sufficient remedy for a breach of
Your obligations under this agreement. We will be entitled to injunctive
relief and any other remedy that is available at law, in equity, or under
this agreement.
AUSTEL approval
7.30 This agreement is subject to AUSTEL approving:
(a) the terms of Smart Saver; and
(b) certain changes to:
(i) Business Saver Plus; and
(ii) Corporate Centre Long Distance
all on terms satisfactory to Us.
7.31 If this does not happen by the Flexi-Plan Start Date, then We may:
(a) cancel this agreement by notice to You (clause 5, except clauses
5.1(b), 5.2, 5.3 and 5.4. applies on a cancellation); or
(b) by notice to You (on or before the Flexi-Plan Start Date) extend
this date to another date, if We believe there are prospects of
getting the approvals. The extended date may not be after 30 June
1996. If We do this then the Commission Prepayment Date and the
Resale Supply Cut Off Date are similarly extended by the same time.
8 MEANING OF WORDS
8.1 The following words have these meanings in this agreement unless the
contrary intention appears.
Act means the Telecommunications Act 1991 (Cth).
Aggregator means a class of Service Provider who:
(a) relies on a Carrier to bill its customers for the provision of
telecommunication services; and
(b) is the legal lessee of the underlying telecommunication lines.
Associated Body Corporate, in relation to a corporation, means:
(a) a Related Body Corporate; or
(b) a body corporate whose board is the same as or controlled by the
same directors as the board of the corporation; or
(c) a body corporate in which the same shareholders hold or control a
majority shareholding as the corporation.
AUSTEL means the Australian Telecommunications Authority.
Ballot means the balloting of telephone subscribers within particular
areas to enable each subscriber to preselect their preferred provider of
STD and IDD calls.
Basic Carriage Service Tariffs means the tariffs and general conditions
concerning basic carriage services, filed by Us with AUSTEL, as amended
from time to time.
Business Day means a day on which banks are open for general banking
business in Melbourne.
Business Links means the exchange based service described under that name
in Our Basic Carriage Service Tariffs.
Business Saver Plus means the Flexi-Plan described under that name in Our
Basic Carriage Service Tariffs.
Calling Line Identification means the facility in an exchange used for
billing and surveillance purposes which identifies the number of the
calling party.
Carrier means the holder of a general telecommunications licence under the
Centel means the network service described under that name in Our Basic
Carriage Service Tariffs.
Centel Plus means the upgraded version of Centel described under that name
in Our Basic Carriage Service Tariffs.
Commission Prepayment Date is the date specified in the Agreement Details,
as extended under clause 7.31.
Confidential Information means all Information about or developed in
connection with or in support of Our business of a confidential nature
(including any matter concerning or arising out of this agreement, the
Services or customers who have contracted to use the Services, including
Customer names and details about Customers) disclosed or otherwise
provided by Us to You or otherwise obtained by You which:
(a) is not, by reason of general publication or the like, readily
available in the public domain; or
(b) if part of the public d...
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