1. Partner Agreement
Tommy is prepared to grant Partners the right to promote the sale of access to the Program to End Users on the Terms and Conditions of this Partners Agreement.
The Partner makes this agreement to Tommy to promote the Program in exchange for the Partner Fees described herein. Tommy and the Partner are referred to as a Party or the Parties to this Agreement whichever the case may be.
1.1 Defined terms
Confidential Information means all information, know how, trade secret, expressions, ideas, concepts, technical and financial information and other commercially valuable or sensitive information in whatever form disclosure by a Party to the other Party, and in the case of Partner includes all information in or related to the Program, Documentation, Licensed IP, sales volumes, Partner Fees paid, except information which lawfully is or come into the public domain, which is lawfully in a Party’s possession prior to disclosure under this Agreement.
Documentation means any user operating manual, explanatory notes or memoranda that may or may not be supplied with the Program provided by Tommy as updated from time to time on Tommy’s Site or provided during training.
End User means each individual active team member within a customer’s team account that has been introduced by the Partner.
EULA means the End User License Agreement which all End Users of the Program agree to be bound by, available at https://mytommy.com/terms/
Force Majeure means an act of God, fire, lightning, explosions, flood or other natural disaster, subsidence, act of terrorism, insurrection, civil disorder or military operations, power or gas shortage, government or quasi-government restraint, expropriation, prohibition, intervention, direction or embargo, inability or delay in obtaining government or quasi-government approvals, consent, permits, licenses or authorities, strikes, lockouts or other industrial disputes of any kind and any other cause, whether similar or not to the foregoing, outside of the affected Party’s control.
Intellectual Property means statutory and other proprietary rights in respect of copyright and neighbouring rights, all rights in relation to inventions, patents, registered and unregistered designs, utility models, circuit layouts, know-how and rights to require information to be kept confidential, and all other rights arising from intellectual activity and rights to apply for the above, but does not include Moral Rights that are not transferable.
Program means Tommy’s Site and includes (a) the Site, (b) the system, tools and services provided by Tommy through the Site, and (c) all software, data, text, images, sounds, video, and content made available through the Site or Program (collectively referred to as the “Content”). Any new features added to or augmenting the Program are also subject to this definition.
Partner Fee means the amount of money to be paid to the Partner within thirty-one (31) days after the Partner requests a payment through the Partner Control Panel based on the amount of End Users introduced and the amount paid by End Users.
Partners Control Panel means a section of Tommy’s Site which is provided for use by Partners to monitor selected details in regard to the End User they have introduced and to monitor and make claims for Partner Fees.
Services mean any services which may be provided by the Partner in conjunction with the Program.
Technical Information means Confidential Information be it artwork, specifications, designs, research and development results, test results, and other technical information relating to the Program, and any material from in which the above material or information are contained or embodied, or from which they can be reproduced.
Term means the period of six (6) years.
(a) one gender includes the others;
(b) the singular includes the plural and the plural includes the singular;
(c) a person includes a body corporate;
(d) a Party includes the Party’s executors, administrators, successors and permitted assignees;
(e) an amount of money, to $, $A or dollar is a reference to the currency of Australia;
(f) a statute, regulation or provision of a statute or regulation (a Statutory Provision) includes:
(i) that Statutory Provision as amended or re-enacted from time to time; and
(ii) a statute, regulation or provision enacted in replacement of that Statutory Provision.
(iii) including and similar expressions are not words of limitation.
(g) where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
(h) headings are for convenience only and do not form part of this Agreement or affect its interpretation.
(i) a provision of this Agreement must not be construed to the disadvantage of a Party merely because that Party was responsible for the preparation of this Agreement or the inclusion of the provision in it.
2. Appointment of Partner
(a) In signing this Agreement, communicating your acceptance, or clicking the “I Accept” button, the Partner is making an offer to Tommy to promote the Program on the terms and conditions contained in this Agreement.
(b) Tommy accepts the offer contained in this Agreement by communicating its acceptance of the Partners offer to the Partner.
(c) Tommy appoints the Partner and the Partner agrees to act as a Partner of Tommy’s Program.
2.2 Grant of rights
(a) The Partner agrees to promote, and market the Program to potential End Users on the terms and conditions contained herein.
(b) The Partner acknowledges that its appointment under this Agreement is not exclusive and that Tommy may appoint other Partners to promote the Program.
(c) In exchange for receiving the Partner Fees earned because of the introduction as contained in close 12, the Partner has a limited right to:
(i) introduce End Users of the Program to Tommy; and
(ii) customise and configure the Program with the options supplied by Tommy for End Users;
2.3 Separate contract
(a) Each order for the Program made by the Partner on behalf of an End User constitutes a separate agreement between Tommy and the End User.
(b) Tommy may choose at its sole discretion not to accept an End User introduced by a Partner for any reason.
(c) An End User introduced by the Partner must accept the EULA.
3. Financial arrangements
(a) The Partner acknowledges that the Program price available at https://mytommy.com/plans/ is determined by Tommy and does not include the Partner’s right to charge End Users fees associated with:
(i) consulting on the use of the Program;
(ii) installing, configuring and customising the Program for an End User;
(iii) any element related to promoting, consulting, and the right to install and configure the End User.
(b) The Partner may contract separately with End Users to provide these services.
3.2 Goods and Services Tax
3.3 Recipient created tax invoices
(a) If the Partner is registered for GST:
(i) Tommy agrees to issue tax invoices to the Partner and the Partner has agreed to accept those invoices in respect of Partner Fees in satisfaction of the taxation requirements for recipient created tax invoices.
(ii) the Partner acknowledges its registration status for GST is current on the day that the Partner accepts this agreement and that the Partner will notify Tommy if it ceases to be registered for GST.
(b) If the Partner is not registered for GST then the recipient created tax invoices will not include GST.
3.4 Expiration of Partner Fees
3.5 Minimum payment
3.6 Timing and method of payment
The payment for the End Users introduced to Tommy by the Partner will occur thirty-one (31) days after the Partner requests a payment through the Partner Control Panel. The amount payable will be determined in accordance with the amount of End Users introduced in accordance with clause 12 and is subject to a minimum payment threshold.
4. Partner’s obligations
4.1 Care and skill
The Partner must market and promote the Program and solicit and obtain End Users for the Program with all due care and skill and in a competent and prudent manner and in compliance with all guides and documents provided by Tommy and any applicable legislation related to the sale of digital services within both the country/region of the Partner and the End User.
4.2 Duty of diligence
(a) make it’s best endeavours to introduce potential End Users to the Program whilst this Agreement in force;
(b) diligently, faithfully and conscientiously carry out its obligations under this Agreement;
(c) at all times preserve and enhance Tommy’s good reputation;
(d) use its best endeavours to sell, promote, market and support the Program; and
(e) not do anything that may interfere with the sale, promotion, marketing and support of the Program.
4.3 Use of Tommy’s name, logos and trademarks
(a) The names and logos used by Tommy and any logo or characteristic decoration used in relation to them may not be used as part of the business or corporate name or trading style of the Partner but may be used by the Partner only in connection with the performance of the Partner’s obligations under this Agreement.
(b) The Partner must not disseminate in any manner whatsoever to any person any promotional or marketing documentation (whether in paper or electronic form) which bears any of:
(i) the name or logos of Tommy
(ii) the name of Tommy; or
unless Tommy has first been provided with a copy of such proposed promotional or marketing material and has provided it’s written consent to its dissemination, which will not be unreasonably withheld.
4.4 Promotional assistance
(a) To assist the Partner in the performance of its obligations under this Agreement, Tommy may:
(i) provide the Partner with sales literature and other sales aids that Tommy considers necessary; and
(ii) list the Partners of its Program on its website and in other promotional literature including the names and contact details of the Partner.
4.5 No sub-agents
(a) The Partner must not:
(i) make any representation or claim or give any warranty or guarantee regarding the Program which has not been authorised by Tommy in writing or which is inconsistent with any Documentation or information provided by or on behalf of Tommy, including all warranties and disclaimers contained in such documentation or information;
(ii) without the prior express approval of Tommy commit Tommy in any way to the performance of any contract whatever nor incur any liabilities on behalf of Tommy nor pledge the credit of Tommy nor make any representations nor give any warranty on behalf of Tommy, nor will it hold itself out, or permit any person to hold itself out as being authorised to bind Tommy in any way.
4.7 Partner training
(a) The Partner must submit to a quality and accreditation process administered by Tommy to ensure that they have achieved competence using and customising the Program for End Users.
(b) At any time during the Term of this Agreement Tommy may require any of the Partners staff to pass any form of reasonable test to establish that they possess sufficient skills to comply with the obligations contained in this Agreement.
4.8 Invoicing options
For any End Users introduced by the Partner, the Partner may elect to:
(a) have Tommy invoice the End User directly, with the Partner Fees accruing in the Partner’s Control Panel; or
(b) at Tommy’s sole discretion, the Partner may invoice End Users directly, with Partner Fees deducted from the software licence fee.
(c) if the Partner invoices End User directly, End Users must contract directly with Tommy and the Partner is not the agent of Tommy.
5. Tommy’s obligations
5.1 Promotional assistance
(a) Tommy will provide to the Partner such information and documentation regarding the nature, characteristics, operation and use of the Program as Tommy considers necessary to enable the Partner to promote and market the Program.
(b) Tommy will provide reasonable technical support for the Program to the Partner and/or to the End User.
5.2 Tommy’s exclusions
(a) Tommy excludes all liability to the Partner in respect of the suitability of the Program, the quality or performance or the claims of third Parties arising from the commercialisation of the Program.
(b) Without limiting the generality of the foregoing, Tommy is to have no liability to the Partner, however arising and under any cause of action or theory of liability, in respect of special, indirect or consequential damages, loss of profit or loss of business opportunity, unless this Agreement expressly provides otherwise.
5.3 Non-competition by Tommy
Tommy agrees to not approach End Users to offer competitive services of the Partner to any End Users introduced by the Partner whilst this agreement is in force.
6. Warranties and representations
6.1 Mutual warranties
(a) Each Party warrants that as at the Commencement Date:
(i) it has the power and authority to enter into and perform its obligations under this Agreement and that the execution of this Agreement by it has been duly and validly authorised by all necessary corporate action; and
(ii) its obligations under this Agreement are valid and binding and enforceable against it in accordance with their terms.
6.2 Tommy warranties
(a) Tommy warrants that, to the best of its knowledge and belief as at the Commencement Date, it is entitled to grant the right to promote its Program to the Partner in accordance with the terms of this Agreement.
(b) Tommy has permission to use all registered or common law trade marks and product names as specified throughout this Agreement and any End User Licence Agreement.
6.3 Partner warranties
The Partner warrants that to the best of its knowledge and belief that:
(a) it has the resources, skills, knowledge and abilities necessary to perform its obligations under this Agreement; and
(b) it will at all times comply with all applicable laws and regulations and hold all necessary approvals in performing its obligations under this Agreement and in any of its dealings with respect to the Program.
7. Restraint and non-competition
7.1 Definitions for this clause
7.2 Prohibited activities
(a) The Partner undertakes to Tommy that it will not:
(b) engage in a business or an activity that is:
(i) the same or similar to the Business or any material part of the Business; and
(ii) in competition with the Business or any material part of the Business;
(iii) solicit, canvass, approach or accept an approach from a person who was at any time whilst this Agreement is in force ending on the date when the Partner stops being a Partner, a customer of Tommy with a view to obtaining their custom in a business that is the same or similar to the Business and is in competition with the Business;
(iv) interfere with the relationship between Tommy and its End Users, employees or suppliers;
(v) apply for or maintain any copyright, trademark or Intellectual Property registrations held in the Partner’s name in relation to the Program.
(vi) induce or help to induce an employee or officer of other Partners of Tommy to cease involvement with Tommy.
7.3 Duration of restraint
(a) The Partner agrees that they will not in any capacity, either directly or indirectly whist this Agreement is in force, and for the period of eighteen (18) months after termination, be involved in any of the prohibited activities as specified in clause 7.2.
Clauses 7.2 and 7.3 have effect together as if they consisted of separate provisions, each being severable from the other. Each separate provision results from combining each undertaking in clause 7.2, with each period in clause 7.3 If any of those separate provisions is invalid or unenforceable for any reason, the invalidity or unenforceability does not affect the validity or enforceability of any of the other separate provisions or other combinations of the separate provisions of clauses 7.2 and 7.3.
(a) This clause 7 does not restrict a Partner from:
(i) holding 5% or less of the Shares of a competitor that is listed on a Stock Exchange;
(ii) holding Shares in Tommy; or
(iii) recruiting a person through a recruitment agency (except if the agency targets employees of Tommy) or in a response to a public employment advertisement.
(a) The Partner acknowledges that:
(i) the prohibitions and restrictions in this clause 7 are reasonable in the circumstances and necessary to protect the goodwill of Tommy;
(ii) damages are not an adequate remedy if the Partner breaches this clause 7; and
(iii) Tommy or another Partner may apply for injunctive relief if:
(iv) the Partner breaches or threatens to breach this clause 7; or
(v) Tommy or the other Partner believes the Partner is likely to breach this clause 7.
8.1 Termination by End User
(a) If at any time, the End User is dissatisfied with the service provided by the Partner, because the Partner’s conduct is deemed to be offensive or unprofessional for any reason (as solely determined by the End User), then by providing notice to Tommy, the End User may elect to continue using the Program without the assistance of the Partner.
(b) Tommy will provide a notice on its website to allow End Users to report Partners that are not representing Tommy in a professional manner, the completion of which gives effect to this clause.
(c) If the End User terminates with the Partner according to this clause, then:
(i) the End User will continue directly with Tommy; and
(ii) the Partner’s administrative access to the Program for the terminated End User will be revoked;
(d) the Partner Fee for the terminated End User will cease immediately.
8.2 Termination by Tommy
(a) Tommy may terminate this Agreement with immediate effect by giving written notice to the Partner at any time if Tommy loses its rights to provide the Program.
(b) The Parties agree that should Tommy lose its right to provide the Program then the terms and conditions contained in this Agreement are terminated and each Party will have no recourse to the other.
(c) Tommy, may at its sole discretion terminate this Agreement for cause, if:
(i) it has received complaint from at least 10% of introduced End Users in accordance with the clause 8.1;
(ii) the Partner fails to provide a reasonable level of support of the Program to the End User, after first being provided with notice that its level of support is insufficient;
(iii) the Partner fails to achieve a reasonable standard of skill in using the System after having received training;
(iv) the Partner harasses or otherwise interferes with the contract between Tommy and the End User;
(v) the Partner encourages at least 10% of End Users to move to another System; and
(vi) the Partner engages in any conduct which casts Tommy’s good name into disrepute.
(vii) the Partner is unable to be contacted or appears to have abandoned its business after Tommy has made reasonable attempts to contact the Partner;
(viii) the Partner is the subject of an insolvency event or becomes personally bankrupt.
8.3 Termination by the Partner
The Partner may terminate this Agreement by providing ninety (90) days’ notice to Tommy.
8.4 Termination notice period
8.5 Force Majeure
(a) If the performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by reason of Force Majeure, the affected Party, upon giving prompt notice to the other Party, is excused from such performance to the extent of such prevention, restriction, or interference.
(b) The affected Party must use its best efforts to avoid or remove the Force Majeure or to limit the impact of the event on its performance and must continue performance with the utmost dispatch when the Force Majeure is removed.
(c) If an event of Force Majeure has the effect of substantially preventing performance of this Agreement by a Party for a period of more than ninety (90) days, the unaffected Party may give notice to the other Party to terminate this Agreement.
8.6 Effect of termination
(a) Upon termination or expiry of this Agreement for any reason, the Partner must:
(i) immediately cease offering Tommy’s Program to End Users;
(ii) immediately discontinue the display or use any of Tommy’s name or logos;
(iii) or any name, logo or decoration bearing any resemblance to them which may be likely to cause confusion or to mislead any person.
(b) The Partner acknowledges that its Partner Fees will cease after ninety (90) days if for any reason this Agreement is terminated.
9. Confidential Information
9.1 Permitted use
The Partner may use the Confidential Information in or relating to the Program solely for the purpose of marketing and promoting the Program and soliciting and obtaining sales in accordance with this Agreement.
9.2 Use of Confidential Information
10. Injunctive relief
(a) In the event that any of the terms contained in this Agreement are breached by the Partner, the Parties acknowledge that irreparable damage will result to the Company, and to its business and that damages may not be an adequate remedy.
(b) The Parties agree that the Company will be entitled to injunctive relief should the Partner breach any of the terms and conditions of a clause which references this clause 10, which include provisions relating to Confidential Information and property of the Company.
(c) This equitable remedy shall be in addition to (and will not supersede) any action for damages the Company may have for breach of any part of this Agreement.
(d) Should Tommy be the prevailing Party in any action, at law or equity, to enforce the terms of this Agreement, it will be entitled to legal fees and costs incurred enforcing its rights on an indemnity basis.
11. General provisions
Tommy may assign its rights and obligations contained in this Agreement to a third party at any time without notice or permission of the Partner. The rights of the Partner cannot be assigned without the permission of Tommy.
This Agreement may only be amended by agreement of the Parties evidenced in writing.
11.3 Entire Agreement
This Agreement contains the entire Agreement of the Parties with respect to its subject matter.
11.4 Further assurances
Each Party agrees, at its own expense, on the request of another Party, to do everything reasonably necessary to give effect to this Agreement and the transactions contemplated by it, including, but not limited to, the execution of documents.
11.5 Form of notice
A notice, approval, consent or other communication in connection with this Agreement must be in writing sent to the address of the receiving Party appearing in this Agreement or such other address as may be communicated by the receiving Party, marked for the attention of any person nominated for that purpose by the receiving Party (and who in the absence of any such nomination is the signatory to this Agreement on behalf of the Party), and may be sent by prepaid post (air mail if international), courier, facsimile transmission or electronic mail.
11.6 Governing law
12. Partner Fee structure
12.1 Fees payable to the Partner
Number of End Users (Total active team members introduced & supported by the partner)
Partner Fee Amount (net of GST where applicable)
Partner Fees exclude excess usage fees for overages beyond the limits of the subscription selected by the End User. These include but are not limited to excessive: storage, bandwidth, additional mini programs, themes, and SMS sends.
13. Problems or questions
If we become aware of any ongoing concerns or problems with our service, we will take these issues
seriously and work to address these concerns. If you have any further queries relating to our Partner
Agreement, or you have a problem or complaint, please contact us.