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between
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FreightInsure Pty Limited (the Licensee)
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and
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Entity Name (Distributor)
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Parties.
THIS AGREEMENT is made on today’s date between the following parties:
FreightInsure Pty Limited ABN 56 659 137 550 of 3/8 Ponderosa Pde, Warriewood NSW 2102
(“the
Licensee”)
Contact name: Simon Schwarz
Email address: [email protected]
and
Entity Name, ABN of Address of entity (“the Distributor”)
Contact name:
Email address:
introduction.
-
The Licensee holds an Australian Financial Services Licence (No. 549662) and is authorised to provide
financial
services in accordance with the Corporations Act 2001(Cth).
-
The Licensee acts as agent on behalf of the Insurer to offer general insurance products.
-
The Licensee wishes to authorise the Distributor to provide certain financial services on its behalf limited
to
dealing in general insurance products.
Agreement.
-
Definitions
AFSL means Australian financial services licence.
ASIC means the Australian Securities & Investments Commission.
Authorities has the meaning given in clause 2.2.
Client means a person(s) or company(ies) to whom the Distributor provides financial services on
behalf
of the Licensee.
Confidential Information means information concerning the organisation, business, finances,
clients,
suppliers, employees, affairs, transactions, trade secrets, operations, processes or dealings of the Licensee which
is
not in the public domain and which is or may be received by the Distributor in connection with this agreement.
GST has the meaning given in the A New Tax System (Goods & Services Tax) Act 1999 (Cth).
Insurer means Assetinsure Pty Ltd ABN 65 066 463 803 (AFFSL 488403) and any other insurer
that
underwrites the insurance products offered by the Licensee, from time to time during the term of this agreement.
Intellectual Property means all current and future copyright and related rights, patent application
rights, patent rights, design rights, trade mark rights (whether registered or unregistered), Confidential
Information
and know-how arising out of or in any way connected with any documents or material developed or written by the
Distributor for or on behalf of the Licensee or in the provision of services on behalf of the Licensee.
Legislation means all acts, regulations, codes of practice and any relevant circular, directive,
policy
statement and the like issued by any government or industry body which apply to the provision of insurance services.
Quarter means the period:
-
beginning on the Commencement Date and ending on 30 September 2023 for the first quarter; and
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that is three months ending on 31 March, 30 June, 30 September and 31 December of each year after the first
quarter; and
-
from the day after the prior quarter until the date falling in the quarter that this agreement is terminated
in
accordance with clause 16.
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Appointment and Authorisation
-
The Licensee appoints the Distributor to provide financial services on its behalf on the terms and
conditions of this agreement as and from the date set out in Item 1 of Schedule A.
-
The Licensee confers on the Distributor the Authorities set out in Item 2 of Schedule.
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The Distributor accepts the appointment on the terms and conditions set out in this agreement.
-
The only relationship between the Licensee and the Distributor is of principal and agent for the
provision of the financial services by the Distributor.
-
The Distributor is not in any way a joint venturer, partner or employee of the Licensee and the
Licensee
is not the employer of any employees, officers, agents or subcontractors of the Distributor.
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Existing Agreements
-
Any existing agency or other agreements between the Distributor and the Licensee are hereby
cancelled
and terminated except in respect of any pre-existing debts or benefits accrued under them. For
avoidance
of doubt, this clause does not affect any existing agreements between the Distributor and
FreightWise
Services Pty Limited (trading as FreightSafe).
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Territory
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Business Names, etc
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The Licensee grants a licence to the Distributor to use the registered business names, logos or
product
names listed in Item 4 of Schedule A on the stationery, signage, websites and other advertising and
promotional content approved by the Licensee for use in connection with the financial services the
Distributor is authorised to provide under this agreement.
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Remuneration
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The Licensee will pay the Distributor the Remuneration set out in Item 5 of Schedule A within the
time
set out in Item 6 of Schedule A.
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The Licensee may deduct any amounts owed by the Distributor to the Licensee from any Remuneration
payable to the Distributor.
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All amounts payable to the Distributor under this agreement are exclusive of any GST liability which
may
arise.
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If the Licensee is obliged by law to deduct or withhold any income or other tax then the Licensee
may
deduct this amount from the amount payable to the Distributor.
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The parties will issue recipient created tax invoices for taxable supplies relating to Remuneration
in
accordance with Schedule E.
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The parties each warrant that at the date of this agreement and at any time during the term when a
taxable supply is made they are or will be registered for GST. A party must produce written
evidence of
registration on request from another party. The Distributor must provide a tax invoice to the
Licensee
within 28 days after the date of a taxable supply. Any tax invoice rendered in connection with a
taxable
supply under this Agreement must comply with the requirements of the GST laws.
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Obligations
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Non-exclusivity
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Warranty
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The Distributor warrants at the date of this agreement and at all times during the currency of this
agreement that the Distributor has not and none of the employees, officers, agents and
subcontractors
appointed under this agreement have:
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Held a financial services authority that was subsequently suspended or revoked other than
for
commercial reasons;
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Been the subject of a banning order or a disqualification order under the
Corporations
Act 2001(Cth);
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Ever been found guilty of or had a criminal conviction recorded for theft or fraud;
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Ever been convicted of an indictable offence;
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Ever been declared insolvent or ever been declared bankrupt; or
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Been the subject of any investigation by any regulatory authority in respect of any of the
above.
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The Distributor warrants that:
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It has the capacity, power and authority to enter into this agreement and fully perform all
of
the duties and obligations referred to in this agreement;
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It will not engage in any conduct that is likely to detrimentally affect the AFSL held by
the
Licensee and will procure the cooperation to its employees, officers, agents and
subcontractors
appointed under this agreement to do the same; and
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It has fully disclosed and will continue to disclose to the Licensee all material and
relevant
information known to it that would be likely to affect the appointment of the Distributor
and/or
any employee, officer, agent or subcontractor of the Distributor as a representative
including
any information relevant to good, fame or character as determined under the
Corporations
Act 2001(Cth) or would otherwise affect the Licensee’s AFSL.
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Indemnity
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The Distributor will indemnify the Licensee for any loss or damage sustained by the Licensee as a
result
of any act or omission by the Distributor or its employees, officers, agents or subcontractors,
whether
that act or omission constitutes a breach of this agreement or not.
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Notwithstanding clause 1, the liability of the Distributor will be reduced proportionately to
represent
the share of responsibility that the Distributor has for the loss, damage, liability or expense
according to the extent to which the Distributor (or its employees, agents or subcontractors) breach
of
any provision of the agreement or its negligent or wrongful acts or omissions caused or contributed
to
the loss, damage, liability or expense.
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Any indemnity given under this agreement in favour of a person or entity that is not a party to the
agreement, is held on trust by the Licensee for the benefit of the party so entitled.
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This clause 10 will survive the expiry or termination of this agreement.
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Professional Indemnity Insurance
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Confidential Information and Intellectual Property
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The Distributor must not divulge, allow to be divulged or make use of any Confidential Information
other
than for the purposes of this agreement.
-
The Distributor acknowledges that the Licensee is the owner of the Intellectual Property and all
current
and future goodwill associated with it and will not challenge or dispute the Licensee’s ownership.
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This clause 12will survive the expiry or termination of this agreement.
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Guidelines
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The Distributor acknowledges that the Licensee will notify and provide to the
Distributor,guidelines,
procedures, directions and requirements (Guidelines) or will agree
Guidelines
with the Distributor from time to time in relation to the provision of the financial services by the
Distributor or the Distributor’s obligations under this agreement.
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The Distributor must act in accordance with the Guidelines current at the time of providing
financial
services or performing its obligations under this agreement.
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The Licensee may vary the Guidelines by providing written notice to the Distributor not less than 10
business days (or such shorter period as may be agreed between the parties) before the variation is
to
take effect.
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Access to FreightInsure System
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The parties agree that any financial services performed pursuant to this agreement will be
transacted
via full electronic connectivity between the Distributor’s information technology system(s) and the
Licensee’s information technology systems (FreightInsure System), unless
otherwise agreed between the parties.
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The Distributor is liable to the Licensee for the accuracy and completeness of all data and
information
transmitted via the FreightInsure System by the Distributor.
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The Distributor acknowledges that the Licensee is liable to the Insurer for the accuracy and
completeness of all data and information transmitted to the Insurer via the FreightInsure System and
for
any inaccurate or incomplete information that may cause loss, damage or expense to the Licensee for
which the Distributor will be liable.
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To the extent permitted by law and subject to clause 10, the Licensee is not liable to the
Distributor
in respect of any loss or damage including any indirect or consequential damages, loss of business,
loss
of profits, or loss of goodwill, however caused, which may be suffered or incurred or which may
arise by
the use of the FreightInsure System.
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Dispute Resolution
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A party to this agreement claiming that a dispute has arisen under or in relation to this agreement
must
give written notice to the other party to this agreement specifying the nature of the dispute.
-
On receipt of that notice, the parties must attempt in good faith to resolve any dispute between
them in
connection with this agreement by negotiation.
-
If any dispute cannot be resolved by negotiation between the parties within 10 business days or such
further period as the parties agree is appropriate, then within the following 10 business days the
parties must seek to agree on the procedural rules and a timetable for resolving the dispute through
mediation by a mediator agreed upon by the parties, or if the parties cannot agree, a mediator
appointed
by the Australian Disputes Centre or any body which replaces it.
-
At the conclusion of the mediation, the parties to the dispute are not precluded from commencing
legal
proceedings or pursuing any other legal rights they may have in respect of the dispute.
-
A party may not commence court proceedings or arbitration (other than an urgent interlocutory
application) relating to any dispute arising from this agreement unless that party has complied with
clauses 1and 15.3.
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Suspension of Authorities and Termination of Agreement
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This agreement shall continue until suspended or terminated in accordance with the following
clauses.
-
The Licensee may suspend the Authorities conferred on the Distributor by this agreement immediately
if:
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the Distributor breaches any Legislation;
-
for any reason, the Insurer of the insurance products or the Licensee suspends the
Authorities;
-
the Distributor commits any serious or persistent breach of any of the provisions of this
agreement or any guideline, direction, requirement, policy or procedure with which the
Licensee
from time to time requires the Distributor to comply.
The suspension may operate until the breaches are remedied.
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Rights and Obligations On Termination
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Notices and Change of Address
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Any notice given under this agreement must be in writing and, if sent to the last known address of
the
other party, is deemed to be received:
-
if posted, 3 business days after the date of posting; or
-
if hand-delivered, when it is left at the relevant address; or
-
if sent by email, as soon as the sender’s information system sends the email to the
recipient’s
email box provided that the sender does not receive a message sent by the recipient’s
information system advising the sender that the recipient has not received the email.
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If a notice is received on a day that is not a business day or, if on a business day, after 5pm on
that
day in the place of the party to whom it is sent, it is to be treated as having been given or made
at
the beginning of the next business day.
-
Each of the parties will give notice to the other of any change of address, telephone numbers, email
address and the like as soon as practicable.
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Variation of Agreement
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The Licensee may vary this agreement at any time by giving 7 days’ prior written notice to the
Distributor where such variation is to the terms of the agreement (including the Schedules)
describing:
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the financial services authorisation; or
-
those obligations to be performed by the Distributor or its employees, officers, agents and
subcontractors in the circumstances where it is reasonably necessary for the Licensee to
comply
with the Legislation.
-
Otherwise, a variation to this agreement must be agreed in writing by all parties from the later of
the
date specified in the notice and 28 days after the date the notice is received.
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No variation of this agreement may affect any right already accrued at the date of the variation.
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Assignment
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Unless otherwise permitted under the terms of this agreement, the Distributor may not assign, charge
or
otherwise deal with its rights and obligations under this agreement in any way without the prior
written
consent of the Licensee.
-
The Licensee may assign, charge or otherwise deal with its rights and obligations under this
agreement
without the Distributor’s consent.
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Several Obligations
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Miscellaneous
-
Any waiver by the Licensee of any one breach or default by the Distributor will not constitute a
waiver
of any other breach or default.
-
If any provision of this agreement is found to be void, voidable, illegal or otherwise
unenforceable,
the parties will amend that provision in a manner which reasonably achieves the intention of the
parties
or, at the discretion of the Licensee, that provision may be severed from this agreement and the
remaining provisions of the agreement will remain in full force and effect.
-
References to a business day in this agreement means a business day in the state or territory listed
in
Item 8 of Schedule A.
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This agreement is governed by the law of state or territory listed in Item 8 of Schedule A. The
parties
submit to the non-exclusive jurisdiction of the courts of state or territory listed in Item 8 of
Schedule A and any courts which may hear appeals from those courts in respect of any proceedings in
connection with this agreement.
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Presumptions and Interpretation
Signatures.
EXECUTED as an Agreement
Dated: Today’s Date
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Executed by FreightInsure Pty Limited ABN 56 659 137 550 in accordance
with
section 127(1) of the Corporations Act 2001 (Cth)
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)
)
)
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Signature of Director
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Signature of Director/Secretary *
*delete whichever does not apply
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Simon Schwarz
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Jonathan Bass
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Full Name
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Full Name
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Executed by Entity Name ABN in accordance with section 127(1) of the
Corporations Act 2001 (Cth):
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)
)
)
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Signature of Authorised Party
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Full Name
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Schedule A.
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Item
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Description
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Item 1
Commencement Date
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The date of this agreement.
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Item 2
Authorities
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The Distributor is authorised to arrange for the issue, variation and disposal of the
following general insurance products acting as an agent and general insurance distributor of the
Licensee, and strictly on a no-advice basis.
Name of Insurance Policies:
· Goods-in-transit policies issued by the Licensee as agent of the Insurer
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Item 3
Territory
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Anywhere in Australia
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Item 4
Business Names
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FreightInsure
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Item 5
Remuneration
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10% of gross written premiums for the business arranged by the Distributor
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Item 6 Payment of Remuneration
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Within 45 days after the end of the Quarter in which the commission was received and
banked
by the Licensee.
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Item 7
Professional Indemnity Insurance
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During the term of this agreement and for 7 years following termination, the Licensee
must:
· maintain a contract of professional indemnity insurance for the benefit of the Distributor and the
Licensee;
· pay all costs and premiums in respect of that contract of insurance; and
· provide the Distributor with a Certificate of Currency of such insurance on written request by the
Distributor.
The Distributor must:
· immediately notify the Licensee in writing of any claim or circumstances which might give rise to
a
claim against the Licensee, the Distributor or the Insurer;
· on request, provide the Licensee with all information required by the Licensee’s professional
indemnity insurer in order to enable the Licensee to obtain the contract of professional indemnity
insurance; and
· indemnify the Licensee for any claim not actually indemnified by the insurer, and for any excess
or
deductible payable in respect of any claim made under the professional indemnity policy arranged by
the
Licensee, where the claim arose from the act or omission of the Distributor.
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Item 8
State or Territory laws to apply
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NSW
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Schedule B.
DISTRIBUTOR’S OBLIGATIONS
The Distributor must do and ensure that its employees, agents and subcontractors authorised to provide financial
services under this agreement do the following:
General
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Provide the financial services strictly on a no-advice basis, limited to factual
descriptions only of the relevant financial products.
-
Disclose to Clients that the Distributor is providing the financial services on behalf of the Licensee and
the
Licensee and is being remunerated for such by the Licensee.
-
Let Clients know about the availability of the Licensee and the Insurer’s complaints process that covers
complaints by the Client in relation to the financial services and how that process may be accessed by the
Client.
Marketing
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Only enter into contractual arrangements with Clients on behalf of the Licensee on the terms and conditions
stipulated by the Licensee in this agreement or notified by the Licensee to the Distributor from time to
time;
-
Obtain the Licensee’s written sign-off before publishing any promotional materials, stationery or other
materials which identify the Licensee;
Transacting Business
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Transact all financial services provided on behalf of the Licensee through and in the name of the Licensee;
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Provide the Client with all other information and notices required by the Legislation, including for retail
Clients, Product Disclosure Statements and Confirmation of Transactions;
Money Management
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Accept payment from Clients for financial services only in the following manner:
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By credit card in favour of the Licensee; or
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By collection on account from Clients, in which case the Licensee will invoice the Distributor at
the
end of each calendar month, payable within 7 days, for all premiums of all policies sold in that
month.
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Obtain the Licensee’s prior written consent before:
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Pay all the expenses of and incidental to the management and development of the Client portfolio of policies
incurred by the Distributor.
Compliance
-
Comply with all Legislation relating to the provision of financial services and its conduct as a Distributor
of
the Licensee.
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Comply with all the Licensee’s codes of practice, systems, policies and procedures as notified from time to
time.
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Comply with any lawful direction of the Licensee regarding the operation and management of the Client
portfolio
of policies.
-
Take all reasonable steps to ensure that no act or omission of the Distributor causes or contributes to or
may
result in the Licensee or the Distributor failing to comply with the Legislation.
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On request (and not less than 24 hours’ notice), provide the Licensee or its nominee with all information
reasonably available and on request (and not less than 24 hours’ notice), provide the Licensee or its
nominee
with all information and access to records reasonably available that they reasonably require to ensure that
the
Distributor is complying with the terms of this agreement, the Legislation and any other reasonable business
purpose determined by the Licensee;
-
Supply, free of charge, to any person who requests it, a copy of the AFSL Certificate of Authority to the
Distributor (in the form set out in Schedule D) as soon as practicable after receiving the request and in
any
event within 10 business days after the day on which it received the request and after that authorisation
ceases, then supply, free of charge, to any person who requests it, a copy of the authorisation provided by
the
Licensee.
Cyber security requirements
-
Have appropriate information security controls in place (including but not limited to periodic penetration
testing and vulnerability assessments) to protect client information in its possession and under its control
from unauthorised access;
-
Ensure that the information security controls referred to above are tested every 12 months or when there is
a
material change to information assets or the business environment;
-
Notify the Licensee as soon as possible and, in any case, no later than 5 business days, after it becomes
aware
of a material information security control weakness which the Distributor expects it will not be able to
remediate in a timely manner.
Information security requirements: Compliance with Privacy Law
-
Comply with the Privacy Act (Cth) 1988 and any relatedlegislation, regulations, rulings or
guidelines
of the Privacy Commissioner as amended from time to time (Privacy Law) that apply to
it
in connection with the performance of its obligations this agreement and in connection with the Authorities;
-
Establish and maintain procedures and systems reasonably necessary to ensure it complies with the standards
and
obligations of the Privacy Law, including safeguards against destruction, unauthorised disclosure, loss or
alternation of the records;
-
Promptly implement measures to restore the security of any compromised personal information (as defined by
the
Privacy Law) and provide all such assistance and information as the Licensee may reasonably require in
connection with any required notifications to relevant regulators and affected individuals and in connection
with any investigation by a regulator;
-
Use all reasonable efforts to assist the Licensee to comply with the applicable Privacy Law in relation to
correction, deletion or restriction of access to personal information;
-
Maintain a record of all requests for access to personal information in connection with the activities
performed
under this agreement and, if requested, produce these records within a reasonable period and in any event
within
three (3) business days of a request by the Licensee; and
-
As soon reasonably practicable notify the Licensee in writing of any suspected or actual breach of any of
these
information security requirements.
Information security requirements: Data Breach
-
Notify the Licensee within 48 hours after becoming aware of any unauthorised access, use, disclosure or loss
of
personal information (a Data Breach) that has a material impact, or has a potential
material impact (including financial or non-financial impact) the Licensee and/or the Clients;
-
Provide all reasonable assistance to the Licensee (including access to personnel, documents, systems and
premises) and ensure its personnel provide all reasonable assistance, to allow the Licensee (or its nominee)
to
investigate the Data Breach;
-
Where a Data Breach is found to be attributable to any act or omission of the Distributor, bear the costs
incurred by the Licensee in complying with its legal obligations and in respect of remediating the Data
Breach,
but the parties will agree a notification and remediation plan to be executed by them in relation to
notifying
the relevant regulator and the affected individuals and paying for any remediation costs associated with the
Data Breach; and
-
Not disclose to any third party, the existence or circumstances surrounding any Data Breach without
obtaining
the other party’s prior written consent, to the extent permitted by the Legislation.
Access to systems
-
Only use the Licensee’s system(s) for the authorised and lawful purposes to conduct business that relates to
the
Authorities;
-
Not alter or modify the whole or any part of the FreightInsure System nor embed any part of any of
FreightInsure
System with any other computer software programs nor, save to the extent expressly permitted by the
Legislation,
decompile, disassemble, translate or reverse engineer the object code of any of the FreightInsure System nor
attempt to do any of these things.
-
Adhere to any Guidelines, including security procedures provided by the Licensee from time to time,
including:
Representatives
Schedule C.
the licensee’s OBLIGATIONS
The Licensee must:
-
Provide the Distributor with reasonable information and details relating to FreightInsure Systems and the
Guidelines and notify the Distributor of any changes in a timely fashion;
-
Provide the Distributor with up to date details of its payment arrangements including credit card facility
and
nominated bank account for the purpose of direct deposits.
-
Provide the Distributor with a quarterly statement of all amounts owed to and/or payable by the Distributor.
Schedule D.
GENERAL INSURANCE DISTRIBUTOR
CERTIFICATE OF AUTHORITY
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Full Name:
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Entity Name
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Date:
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Today’s Date
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Address:
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Entity Address
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Authority
FreightInsure Pty Ltd ABN 56 659 137 550 is an Australian Financial Services Licence holder (AFSL 549662)
(“Licensee”) and is duly authorised to appoint eligible persons (including individuals) as General
Insurance Distributors of the Licensee under ASIC Corporations (Basic Deposit and General Insurance Product
Distribution) Instrument 2015/682.
From the date of this Certificate, the above-named person (“Distributor”) is appointed to
act as
a General Insurance Distributor of the Licensee, under ASIC Corporations (Basic Deposit and General Insurance
Product
Distribution) Instrument 2015/682, with authority to deal in general insurance products on a no advice
basis
by offering insurance to customers in relation to the Goods-in-transit policies issued by the
Licensee
as agent of the insurer.
This authority is subject to the following conditions.
Conditions
-
This authority automatically expires if:
-
the Distributor’s authority to act on behalf of the Licensee is terminated by the Licensee; or
-
the Licenseeceases to be an Australian Financial Services Licence holder.
-
The Licensee may revoke this authority at any time by giving the Distributor written notice, and such
revocation
takes effect immediately.
-
The Distributor is only authorised to deal in a general insurance risk product on a no advice
basis
and is not authorised to give any general advice nor personal advice to any person.
………………………………………………………………….…………
Signature
Simon Schwarz – Chief Executive Officer ….…………
Full Name and Title (Print)
Today’s Date ………………………………….…………
Date
Schedule E.
Recipient Created Tax Invoices Agreement
This agreement is required under RCTI 2000/10 (as Amended), A New Tax System (Goods and Services Tax) Act 1999
Classes of Recipient Created Tax Invoice Determination (No. 1A) 2000.
The purpose of this agreement is to evidence that the Distributor has authorised the Licensee to raise recipient
created
tax invoices in respect of Fees for Service and Commission payable by Clients to the Licensee.
Terms and Conditions
“Supplies” or “Supply” means the provision of services for which Fees for Service and Commission
are
payable;
“RCTI” means recipient created tax invoice;
“RCAN” means recipient created adjustment note;
“Recipient” means the Licensee;
“Supplier” means the Distributor.
Any terms in this agreement not defined above have the same meaning as set out in the Distributor Agreement between
the
Recipient and the Supplier dated on or about the date of this agreement.
The Recipient and Supplier agree:
(a) The Recipient can issue RCTIs and RCANs in respect of the Supplies;
(b) The Supplier will not issue tax invoices in respect of the Supplies;
(c) The Supplier warrants that it is registered for GST when it enters into this agreement and that it will
notify
the Recipient if it ceases to be registered;
(d) The Recipient warrants that it is registered for GST when it enters into this agreement and that it will
notify
the Supplier if it ceases to be registered;
(e) The Recipient agrees to indemnify the Supplier for any liability for GST and associated penalties that may
arise
from an understatement of the GST payable on any of the Supplies specified on a RCTI or RCAN the Recipient
issues;
(f) The above terms may be modified in accordance with current GST Law and tax rulings as required for the
issuance
of a RCTI and RCAN from time to time; and
(g) This agreement will automatically terminate without the need for notice on the date which is sixty (60)
Business
Days after the date of termination of the
Distributor Agreement to
which it relates.
