ANNUAL PARTNERSHIP TERMS AND CONDITIONS (“TERMS”)
These Terms apply to the Annual Partnership between ALPMA and the Partner and should be read in conjunction with the Application Terms, Application Form and the Prospectus.
Unless agreed in writing by ALPMA, these Terms will apply to the exclusion of any inconsistent terms and conditions which may appear on any other document issued by the Partner.
The Partner will be deemed to have accepted these Terms when the Partner completes and submits an Application Form to ALPMA.
1. Interpretation and definitions
Unless qualified by or inconsistent with the context:
1.1 a reference to one gender includes the other genders; reference to a person includes an incorporated or unincorporated body or other association of persons or a governmental agency and vice versa; the singular includes the plural and vice versa;
1.2 references to any statutory enactment mean references to that enactment as amended, modified and re-enacted from time to time;
1.3 where a party comprises more than one person, these Terms applies to all of them together and each of them separately;
1.4 headings are for convenience of reference and will not affect the interpretation of these Terms;
1.5 these Terms are written in plain English as far as possible. Their terms are to be interpreted so as to give effect to the parties' agreement. No rule will apply to resolve a doubt as to the interpretation of a provision in these Terms against the party that prepared these Terms or that particular provision. The specific provisions will not limit the interpretation of general provisions;
1.6 a reference to costs includes legal costs on a full indemnity basis;
1.7 in these Terms, where a word or phrase is given a particular meaning, other parts of speech or grammatical forms of that word or phrase have corresponding meanings;
1.8 a reference to writing is to be construed as including a reference to any mode of representing or reproducing words, figures or symbols in a visible form;
1.9 these Terms bind the parties’ respective heirs, successors, legal personal representatives and assigns;
1.10 the approval or consent of a party means that party’s prior written approval or consent which is not to be unreasonably withheld or delayed. Similar expressions have corresponding meanings;
1.11 a reference to a clause or a Schedule is a reference to a clause of or schedule to these Terms;
1.12 wherever “include” or “for example” or any form of those words are used, they must be construed as if they were followed by “(without being limited to)”;
1.13 if the day on or by which a person must do something under these Terms is not a Business Day, the person must do it on or by the next Business Day;
1.14 any amount payable pursuant to these Terms is expressed to be inclusive of GST. The recipient of any taxable supply is not liable to pay any additional amounts to the supplier in respect of GST;
1.15 “ALPMA” means the Australasian Legal Practice Management Association ABN 30 094 240 981 of PO Box 157 Richmond, Victoria 3121;
1.16 “Annual Partnership Entitlements” means the entitlements associated with the applicable Annual Partnership Level for which the Partner has applied and as set out in the Prospectus;
1.17 “Annual Partnership Level” means one of the following partnerships as specified in the Application Form
1.17.1 Corporate Partner; or
1.17.2 Leading Your Firm Partner (major regional);
1.18 “Application Form” means the application form completed by the Partner for the Annual Partnership contained in the Prospectus or online;
1.19 “Application Terms” means the application terms and conditions contained in the Prospectus;
1.20 “Authority” means any government or governmental, semi-governmental, administrative or judicial body. Tribunal, department, commission, authority, agency, minister, statutory corporation or entity;
1.21 “Business Day” means Monday to Friday in Victoria, except a day which is a proclaimed public holiday in Victoria;
1.22 “Claim” means any claim, action, proceeding, demand, cost, damage including Consequential Damages, loss, expense, liability incurred or suffered by, or brought or made or recovered against any person and however arising (whether or not presently ascertained, immediate, future or contingent);
1.23 “Confidential Information” means any information of a party which is confidential or secret and which pertains to the dealings, transactions, finances or affairs of the party or the customers or clients of that party and which information is not in the public domain other than as a result of a breach by another party of its obligations of confidentiality under these Terms and includes the Intellectual Property;
1.24 “Consequential Damages” means any indirect, special, consequential, punitive or exemplary damages, expenses, losses or costs including loss of anticipated or actual revenue or profits, loss of or inability to use equipment, a failure to realise anticipated savings, lost data, down time costs or loss of goodwill
1.25 “End Date” means 30 June 2017.
1.26 “GST” means goods and services tax payable under the GST Law and an expression used in these Terms in relation to GST will have the meaning used in or attributed to that expression by the GST Law from time to time;
1.27 “GST Law” has the same meaning as the definition of “GST law” in A New Tax System (Goods and Services Tax) Act 1999;
1.28 “Insolvent” in relation to a person means that the person has committed an act of bankruptcy or is made bankrupt or presumed insolvent within the meaning of section 459C(2) of the Corporations Act 2001 (Cth), is placed into liquidation, has an administrator or receiver or manager or other form of insolvency administrator appointed or a mortgagee takes possession of any substantial asset(s) of the person or if the person ceases to carry on its business;
1.29 “Intellectual Property” includes all know how, business methods, systems, procedures, databases, drawings, plans, processes, formulae, artwork, designs, logos, technology and records and all patents, copyright, designs, trade marks (whether or not registered), business and company names, domain names, Confidential Information and trade secrets;
1.30 “Intellectual Property Rights” means all rights in relation to the Intellectual Property;
1.31 “Laws” means acts, ordinances, regulations, rules, codes and by-laws of the Commonwealth of Australia or any state or territory;
1.32 “notice” means written notice and “notify” means notification in writing;
1.33 “Partner” means the entity who has completed the Application Form and applied for an Annual Partnership;
1.34 “Partnership Fee” means the amount set out in the Tax Invoice provided by ALPMA to the Partner;
1.35 “Prospectus” means the ALPMA Annual Partnership Prospectus for the relevant financial year period commencing 1 July each year and concluding on 30 June the following year.
1.36 “Seminar(s)” means the practice management seminar(s) to be held by ALPMA and sponsored by the Partner as part of the Annual Partnership Entitlements applicable to the Partner; and
1.37 “Tax Invoice” means an invoice for the Partnership Fee which is issued by ALMPA to the Partner in accordance with these Terms and has the respective meaning ascribed to it in the GST Law.
2. Annual Partnership
2.1 By completing an Application Form to enter into an Annual Partnership with ALPMA, the Partner agrees to partner with ALPMA in accordance with these Terms.
2.2 The Partner acknowledges and agrees that it has read these Terms, the Prospectus, the Application Form and Application Terms and acknowledges that the documents create a legally binding relationship between the parties once ALPMA notifies the Partner that its application to partner with ALPMA has been accepted.
2.3 Notwithstanding clause 2.2 but subject to clauses 4.2 and 10, these Terms remain binding on the Partner from the date that the Partner submits the Application Form to ALPMA until the End Date (if the Partner’s application is successful) or until the date that ALPMA notifies the Partner that the Partner’s application has not been successful (if the Partners application is not successful).
3. Intellectual Property
3.1 The Partner agrees to provide ALPMA with a high resolution jpeg of the Partner’s logo for inclusion in marketing collateral for the purposes of Partner fulfilling its obligations in conjunction with the Annual Partnership Level.
3.2 ALPMA must not use or permit the use of the Partner’s logo in a manner which may be misleading or deceptive or bring the Partner into disrepute.
3.3 ALPMA will not use any Intellectual Property of the Partner for any purpose not set out in the Prospectus or these Terms without the consent of the Partner. ALPMA will comply with any conditions which the Partner may impose in relation to such Intellectual Property Rights.
3.4 The Partner will retain all Intellectual Property Rights in relation to its Intellectual Property and any materials which are provided to ALPMA by the Partner.
3.5 The Partner grants to ALPMA a non exclusive licence to reproduce and publish the Partner’s Intellectual Property for the purpose of carrying out its obligations under these Terms.
3.6 The Partner will not use any Intellectual Property of ALPMA for any purpose without consent of ALPMA and the Partner will comply with any conditions which ALPMA may impose in relation to such Intellectual Property Rights.
3.7 The Partner will provide immediate written notice to ALPMA if the Partner becomes aware of any actual or threatened infringement of any Intellectual Property Rights of the ALPMA.
3.8 Each party agrees acknowledges that a party’s Intellectual Property remains the property of that party and that nothing in this clause transfers or assigns any rights in that Intellectual Property to another party.
4. Partnership Fee
4.1 The Partner will pay to ALPMA the Partnership Fee. The Partnership Fee will be paid to ALPMA no later than 30 days of a Tax Invoice being issued by ALPMA to the Partner unless otherwise agreed.
4.2 In the event that the Partnership Fee is not paid in accordance with clause 4.1, any amounts paid will be forfeited by the Partner and this Agreement will automatically terminate. Upon termination of this Agreement, ALMPA will have the ability to re-offer the relevant Annual Partnership Level to a third party, in which case the Partner will have no Claim in relation to the termination of this Agreement.
4.3 If any party under these Terms is or becomes subject to GST, the party to whom the supply is made (“the Recipient”) must pay to the party making the supply (“the Supplier”), as consideration in addition to any consideration payable or to be provided elsewhere in these Terms, subject to issuing a valid Tax Invoice, an additional amount on account of GST, such amount to be calculated by multiplying the consideration by the applicable rate of GST.
4.4 If any party is required to reimburse or indemnify the other party for a cost, expense or liability (“Cost”) incurred by the other party, the amount for that Cost for the purpose of these Terms is the amount of the Cost incurred less the amount of any credit or refund of GST to which the party incurring the Cost is entitled to claim in respect of the cost.
4.5 The Partner will be responsible for all GST in New Zealand (if applicable).
5. ALPMA Obligations
5.1 The parties acknowledge and agree that:
5.1.1 the Partner is a sponsor only and has no responsibility for the management, conduct and promotion of the Seminar(s);
5.1.2 except to the extent of the obligations set out in these Terms, the Partner is under no obligation to any parties to these Terms, to
sponsor any further seminars or pay any other Partnership Fee on any continuing basis;
5.1.3 ALPMA has the sole responsibility for the management, finances, conduct and promotion of the Seminar(s);
5.1.4 ALPMA will seek and secure all relevant permissions and approvals, including rights and licences from any third parties required to
manage, conduct and/or promote the Seminar(s); and
5.1.5 ALPMA will provide the Partner with updates regarding the progress of the planning for each Seminar from time to time or as
requested by the Partner; and
5.1.6 ALPMA must use reasonable endeavours to ensure that the Seminar(s) are staged to high professional, technical, commercial and,
where applicable, artistic standards.
5.2 ALPMA agrees to use reasonable endeavours to provide the Partner with the Annual Partnership Entitlements as detailed in the Prospectus for the applicable Annual Partnership Level.
5.3 Cancellation of Seminar
5.3.1 ALPMA reserves the right to cancel or postpone any Seminar. ALPMA will not be liable to the Partner for any loss or inconvenience
caused by such postponement or cancellation.
6. Obligations of Partner
6.1 The Partner will, at the Partner’s own cost:
6.1.1 perform its obligations under these Terms with due care and skill and in a diligent, professional, competent and timely manner;
6.1.2 ensure that it does not act in a position where the Partner’s interests are in conflict with ALPMA’s interests; and
6.1.3 ensure that it does not do any act or thing which may injure, impair or reduce the goodwill or reputation of ALPMA.
6.2 Representatives of the Partner organisations are limited to attending events which are specific to their Annual Partnership Level unless directly invited by the Association’s executive committee to attend other events as guests. Such invitation does not confer any rights or benefits on the guests in relation to the Summit or affect he rights or benefits that accrue to the actual event partner/s.
7.1 The Partner warrants that:
7.1.1 it owns all the rights in relation to the Partner’s Intellectual Property;
7.1.2 it has the right, power, authority and entitlement to execute these Terms and perform its obligations under these Terms; and
7.1.3 any information provided by the Partner to ALPMA prior to the execution of these Terms was, and remains at the date of the entry
into these Terms, true and correct.
7.2 The Partner will provide immediate written notice to ALPMA if the Partner becomes aware that a representation or warranty given by the Partner under this clause 7 has become untrue or misleading.
7.3 The Partner acknowledges that ALPMA has engaged the Partner in reliance on the representations and warranties set out in this clause 7.
8.1 The Partner indemnifies ALPMA on a full and continuing indemnity basis from and against any and all Claims arising directly or indirectly in relation to any:
8.1.1 breach of these Terms;
8.1.2 breach of any Laws;
8.1.3 actual or alleged infringement of any Intellectual Property Rights; or
8.1.4 disclosure of any Confidential Information,
by the Partner.
8.2 ALPMA is not responsible for any loss or damage to or arising from any Intellectual Property of the Partner being used during the Term.
Except as otherwise expressly provided in these Terms:
9.1 the existence of these Terms and their terms are confidential to the parties;
9.2 all Confidential Information received by a party from another party must be kept confidential and may only be used by the receiving party for the purpose of performing its obligations under these Terms;
9.3 neither party may make any announcement to any person other than the officers and employees of the party concerning these Terms without the approval of the other party;
9.4 despite the proceeding provisions of this clause 9, a party may disclose Confidential Information:
9.5 to its professional advisor(s) for the purpose of obtaining advice; or
9.6 if required by Law, but unless prevented by Law, that party will notify the other party of the disclosure prior to such disclosure or if prior notice is not possible, then as soon as reasonably practicable after that disclosure.
10.1 If the Partner is in breach of these Terms (other than a breach of its payment obligations pursuant to clause 4) ALPMA may provide a written notice to the Partner specifying the breach and requiring the Partner to remedy the breach within 14 days and, if the Partner does not remedy the breach within 14 days after receiving such notice, ALPMA may provide written notice to the Partner to immediately terminate these Terms
10.2 ALPMA may immediately terminate these Terms, if the Partner:
10.2.1 commits a serious or repetitious breach of its obligations under these Terms;
10.2.2 commits an act of dishonesty, fraud, wilful disobedience, misbehaviour or wilful neglect in the provision of its obligations under
10.2.3 becomes Insolvent; or
10.2.4 engages in any activities or conduct (whether in the performance of its obligations under these Terms or otherwise) which ALPMA
reasonably considers could damage the reputation or standing of ALPMA.
10.3 In the event that these Terms are terminated by ALPMA in accordance with this clause 10, ALPMA is entitled to retain and the Partner forfeits the Partnership Fee or any portion of the Partnership Fee paid by the Partner under these Terms as at the date of termination.
11. Events following termination
On expiry or termination of these Terms, the parties will:
11.1 immediately provide the other party with all hard copies of the Confidential Information, and all other items of the other party’s property, in the possession or control of the other party (and will, notwithstanding the provision of such items, continue to be bound by the confidentiality obligations of these Terms);
11.2 immediately provide to the other party all copies of the Confidential Information, and then erase and destroy all remaining soft copies of the Confidential Information in the control or possession of the other party (and will, notwithstanding the provision of such items, continue to be bound by the confidentiality obligations of these Terms);
11.3 take such action as reasonably directed by the Partner for the protection and preservation of the Confidential Information, the Intellectual Property Rights of the parties; and
11.4 not do any act or thing which may injure, impair or reduce the goodwill or reputation of the other party.
11.5 The provisions of this clause 11 will survive the expiry or termination of these Terms.
12. Relationship and Reputation
Each party must, at all times during the Term:
12.1 conduct itself and all activates associated with these Terms in such a manner so as to maintain or enhance the goodwill and good reputation of the other party;
12.2 not conduct itself or any activities associated with it in a manner that, in the other party’s reasonable opinion, may:
12.2.1 damage or harm the goodwill and good reputation of the other party;
12.2.2 offend the general public;
12.2.3 detract from the value or advantage that the other party seeks to obtain from these Terms;
12.2.4 ensure its employees and agents (as applicable) comply with the obligations in this clause 12; and
12.2.5 comply with all applicable Laws.
13. Dispute Resolution
13.1 A party seeking to resolve a dispute under these Terms (“Dispute”) must notify the other party of the existence and nature of the Dispute. Upon the other party receiving the notice, the parties must exercise good faith in seeking to resolve the Dispute by negotiation between themselves through their nominated representatives.
13.2 If the Dispute cannot be resolved by negotiation under clause 13.1 within 14 days of the notice, the parties must jointly request the appointment of a mediator. If the parties fail to agree on the appointment of a mediator within seven days of a notice of appointment of a mediator, either party may apply to the Chief Executive Office of the Law Institute Victoria or the nominee of the Chief Executive Officer to appoint a mediator.
13.3 Once the mediator has accepted the appointment, the parties must comply with the instructions of the mediator.
13.4 In the event that the Dispute is not resolved within 14 days of the appointment of a mediator, or any other period which is agreed between the parties in writing, the mediation ceases.
13.5 In the event that the mediation ceases pursuant to clause 13.4, either party may submit the Dispute to arbitration in accordance with the Rules of the Conduct of Commercial Arbitration for the time being of the Institute of Arbitrators and Mediators Australia (ACN 008 520 045) (Vic Division). The parties may be legally represented during such arbitration. The decision of the arbitrator appointed pursuant to this clause 13.5 will be final and binding on both parties except in the case of manifest error on the part of the arbitrator.
13.6 The parties agree that the costs of the mediator and the arbitrator appointed pursuant to this clause 13 are to be paid equally by the parties.
14. Code of Conduct
The Partner agrees to comply with the ALMPA Partners Code of Conduct as amended from time to time which are located on the ALPMA website at www.alpma.com.au.
The failure by one party to insist upon strict performance by the other party of any terms of these Terms will not be deemed a waiver of any term or a breach by the other party of any term of these Terms.
16. Further assurances
The parties will promptly do everything necessary or desirable, even if not expressly stated in these Terms, to ensure that these Terms are fully carried into effect.
Any amendment to these Terms must be made in writing executed by the parties or duly authorised officers on behalf of the parties.
Every provision of these Terms will be deemed severable as far as possible from the other provisions of these Terms. If any provision is found to be void, illegal or unenforceable for any reason, it will be deemed to be severed and omitted from these Terms. These Terms, with the offending provision severed and omitted and with any consequential amendment if necessary, will otherwise remain in full force.
Any notice to be given by one party to any other must be signed by the party giving the notice or by one of its officers or its duly authorised lawyer or agent and must be hand delivered or sent by prepaid post or sent by facsimile or electronic mail to the address, facsimile number or electronic mail address (as the case may be) shown at the commencement of these Terms (or any other address, facsimile number or electronic mail address that a party may notify to the others) and will be deemed sufficiently given:
19.1 in the case of hand delivery, on the date of delivery;
19.2 in the case of prepaid post, two Business Days after being sent by prepaid post;
19.3 in the case of facsimile, on receipt by the sender of a successful transmission answerback; or
19.4 in the case of electronic mail, on the day of transmission provided that the sender can give evidence of transmission and the intended recipient does not give evidence of non-receipt.
20. Governing law
These Terms are to be construed according to Victorian laws and the parties submit themselves to the non-exclusive jurisdiction of the Courts of Victoria and any competent appellate courts.
21. Entire agreement
These Terms contain the entire agreement between the parties in respect of the subject matter of these Terms. These Terms supersede any prior agreement or understanding (if any) between the parties and there is no collateral or other form of agreement between the parties in relation to the subject matter of these Terms.
22.1 ALPMA will be entitled to (but subject to the Partner’s rights under these Terms) assign either absolutely or in part or by way of security its rights and obligations under these Terms.
22.2 The Partner must not, except with ALPMA’s consent, assign its rights or obligations under these Terms.
22.3 Any change in the ownership structure of the Partner which as the effect of changing the person or persons in effective management or control of the Partner will be deemed an assignment by the Partner for the purposes of these Terms.
23.1 The parties will pay their own costs in respect of the negotiation, preparation and execution of these Terms.
23.2 A party that breaches these Terms will pay all Claims incurred by the other party in consequence of that breach but without limit to any other rights or remedies which the other party not in breach may have as a result of that breach.
24. Relationship of parties
The parties agree that there is no partnership, joint venture or employment relationship between them and amongst other things, neither party may without the consent of the other, incur obligations or liabilities on behalf of the other nor represent to any person that it has authority to do so.
25. Time of essence
Where, pursuant to these Terms, ALPMA is required to perform any obligation with or by reference to any period of time, that period of time shall be of the essence.