Referral Program Terms & Conditions

 

1.        INTRODUCTION
a.      As a registrar to the VMNZ Referral Program (“Referral Program Contributor”) You want to submit Prospects to VMNZ or to facilitate contractual agreements concerning supplier performance management, cost saving, contract or risk management of VMNZ in New Zealand or Australia.
b.      Subject to Your eligibility as set out in clause 3 below VMNZ desires to grant you as a Referral Program Contributor (“RPC”) and as an independent undertaking the non-exclusive and non-transferable possibility to facilitate for VMNZ and VMNZ’s authorised Partners the conclusion of contracts concerning VMNZ services with third parties.
c.      Furthermore, you have the opportunity to register selected other Persons as individuals participating in the Referral Program. These Persons shall not be deemed RPC but may register leads, subject to their approval.
d.      You expressly acknowledge and agree that the general terms and conditions set forth herein shall constitute the entire Agreement between You and VMNZ. References to a "Clause" or "Section" in this general terms and conditions shall refer to the articles and sections in this general terms and conditions unless the context otherwise requires.
 
2.        DEFINITIONS
Affiliates” mean all affiliated companies to the RPC or VMNZ in the meaning of the Applicable Law.
"Agreement" shall mean this Referral Program Contributor Agreement including all Exhibits hereto.
"Customer Contracts" shall mean all agreements entered into between a Partner or VMNZ and Prospects regarding the Software.
Customer” shall mean any Prospect which entered into a Customer Contract with VMNZ or its Partner.
"Foreign Official" shall mean employees and officers of a government, a government-owned or controlled companies or enterprises, such as a state-owned oil company, and anyone acting on behalf of a government entity, such as a consultant or negotiator who is representing a state-owned national oil company.
"Government Customer" or "Government Official" shall mean any officer or employee of a government or any department, agency, or instrumentality of the government or a public international organization, such as the Red Cross or World Bank. This includes any person acting in an official capacity for or on behalf of any such government, department, agency or instrumentality or organization.
"Government Entities" shall mean any department, corporation, setup, agency, or instrumentality owned or controlled jointly or individually by any central/ state/ local government or a public international organization, including Red Cross or World Bank or Asian Development Bank. This also includes any person acting in an official capacity for or on behalf of any such government, department, set-up, agency or instrumentality or organization and any political party or their representatives.
Net Value” shall mean the sum remaining from an amount, especially of money; after all necessary deductions have been made for the purposes of calculating the Finder’s Fee Reward Commission from an Opportunity..
Opportunity” shall mean all companies and business people that has been qualified as a Prospect with high interest in entering into a Customer Contract with VMNZ or its Partners. Government Entities, RPC itself, its employees, RPC´s Affiliate’s or subsidiaries or parent or sister companies shall not qualify as Opportunities.
Partner” shall mean any partner of VMNZ who concluded with VMNZ a Partner Agreement or any other similar agreement to ‘Partner’ in some way with VMNZ.
Prospects” or “Referral” or “Lead” shall mean all companies and business people which might have interest in entering into a Customer Contract with VMNZ or its Partners for the use of the services and which are not currently registered as an active opportunity in VMNZ’s services.
VMNZ Referral” shall mean VMNZ’s Referral Program consisting percent bonus payments for genuine qualified original referrals, leads and the like.
Services” shall mean all Services that are Listed without limitation in valid VMNZ Price List, Proposal, Service Agreement, Client contract and the like.
Territory” shall mean the country which the RPC has selected and in which RPC is appointed as a VMNZ Referral Program Contributor.
VMNZ” shall mean Vendor Management NZ Limited, a registered company in New Zealand.
 
3.        ELIGIBILITY
3.1      Without limitation the following individuals or institutions are not eligible for participation in the VMNZ Referral Program:
a.        Employees of the VMNZ group of companies
b.        Foreign Officials
c.        Government Officials/Government Customers
d.        Companies, institution or individuals whose main business focuses on acquisition and sale of addresses for marketing purposes
e.        Companies, institutions or individuals whose main business focuses on generating revenues by referring prospects and/or leads to vendors (incl. but not limited to VMNZ) and which do not perform the duties under this Agreement on a secondary to their existing professional activities
f.          Individuals who are not employees of a company that has successfully registered with VMNZ and RPC
g.        VMNZ reserves the right without limitation to exclude any other legal person or persons for any reason whatsoever, which it might deem howsoever not in the best interests of VMNZ or its Group of Companies.
 
4.        APPOINTMENT OF RPC
4.1      The RPC is by no means, however, authorised to negotiate or conclude contracts on behalf of VMNZ or its Partners nor to otherwise represent or oblige VMNZ or its Partners in legal transactions.
4.2      The RPC shall, however, neither assert nor create the impression vis-à-vis third parties that it is entitled to transact business for VMNZ or its Partners.
4.3      The RPC may not assign or transfer to a third party any rights and/or obligations under the Agreement without VMNZ's prior written consent.
4.4      The RPC shall be not be entitled to use the VMNZ logo without VMNZ's prior written consent.. VMNZ's trademarks, tradenames, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of VMNZ. Except as otherwise provided in this Agreement
4.5      The RPC may not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of VMNZ.
4.6      The RPC shall not obtain on VMNZ´s behalf or provide to VMNZ any information which is not legally available in the applicable Territory, or which is procurement-sensitive, proprietary, or classified where there is reason to believe that possession of such information is unauthorised, illegal, or unethical.
4.7      The RPC is not permitted to delegate the performance of the RPC’s duties to any third-party, without the prior written approval of VMNZ.
 
5.        FURTHER OBLIGATIONS OF THE RPC
5.1      The RPC shall inform VMNZ immediately about any opportunity which is likely to lead to the conclusion of a contract between a Partner or VMNZ and a Prospect.
5.2      The RPC must ensure that VMNZ is entitled to use any data or information about the Prospect provided by RPC to a) realize the opportunity (either itself or through its Partners) and b) for its internal business or any marketing purposes, provided the confidentiality of the RPC’s and/or Prospect’s trade secrets is maintained and c) to fulfil VMNZ obligations under this Agreement. Use of such data or information may include but shall not be limited to any marketing efforts (electronic communication or otherwise including email, phone, mail contact) required to pursue the opportunity. RPC shall obtain the approval of the Prospect and employees of the Prospect and of its own employees in accordance with the applicable data protection law prior to VMNZ’s aforementioned usage of any data or information provided to VMNZ. Furthermore, where the consent of a third party or an individual is required, RPC shall ensure that such consent is given.
5.3      The RPC must ensure that VMNZ is entitled to use any data or information about potential RPC provided by RPC for its internal business or any marketing purposes, provided the confidentiality of the RPC’s and/or potential RPC’s trade secrets is maintained. Use of such data or information may include but shall not be limited to any marketing efforts (electronic communication including email, phone, mail contact) required to acquire a potential RPC. The RPC shall obtain the approval of the potential RPC and employees of the potential RPC and of its own employees in accordance with the applicable data protection law prior VMNZ’s aforementioned usage of any data or information provided to VMNZ. Furthermore, where the consent of a third party or an individual is required, RPC shall ensure that such consent is given.
5.4      Only the authorised people of the RPC are permitted to submit for registration with VMNZ Referral Program, subject to acceptance of terms and conditions as prescribed in the VMNZ Referral Program.
5.5      The RPC acknowledges the rights of VMNZ, and of companies affiliated with VMNZ in the trademarks, business names and corporate signs used by them. The RPC shall refrain from any acts which might damage the reputation of these marks of VMNZ or of companies affiliated with VMNZ. The RPC shall refrain from acts aimed at registering or having registered such marks – or marks sufficiently similar to the same so as to pose a risk of confusion with these – in its own name, nor shall it claim and postulate rights in such marks.
5.6      The RPC agrees that at all times it will comply with applicable laws, rules and regulations, including but not limited to New Zealand and local anti-bribery laws. Only
5.7      payments that are allowable under applicable law, regulation or administrative requirement shall be due and payable by VMNZ under this Agreement. When dealing with others, including other VMNZ business associates, RPC will exercise reasonable due diligence to uncover and respond to potential warning signals that may indicate potential issues in respect of this clause 5 and will notify VMNZ of such incidents.
5.8      The RPC shall not pay or tender directly or indirectly any commission or finder´s or referral reward to any firm or person in connection with its activities for VMNZ.
5.9      The RPC represents and warrants that neither RPC nor any person or entity acting on RPC’s behalf has paid, offered or promised to pay, or authorised the payment of any monies or anything of value to any Foreign Official, employees of Government Entities, political party official or candidate, or officer or employee of any public international organisation or an immediate family member of such persons (such parties, Prohibited Parties) for the purpose of influencing any act or decision of such official or of the government in order to secure or retain business or favourable treatment on behalf of VMNZ (such payments, Prohibited Payments). Furthermore, RPC shall ensure that no such Prohibited Payments are paid, offered or promised, or authorised to Prohibited Parties in the future by RPC or any person or entity acting on RPC’s behalf.
5.10   The RPC guarantees that it has not been convicted of or pleaded guilty to an offence involving fraud, corruption or moral turpitude and that it is not now listed by any government agency as debarred, suspended, and proposed for suspension or debarment or otherwise ineligible procurement programs.
5.11   The RPC shall inform VMNZ without delay if RPC, after having been admitted to the VMNZ Referral Program, does not any longer fulfil the eligibility criteria set out in clause 3 above.
 
6.        NO COMPETITION
6.1      During the term of the Agreement, RPC shall not be prohibited from manufacturing, providing, selling or marketing products or services which compete directly or indirectly with products or services offered by VMNZ.
 
7.        Obligations of VMNZ
7.1      VMNZ shall make available to the RPC on request and at no charge as maybe appropriate and within a reasonable timeframe selected standard sales documents and product descriptions relating to its Services.
7.2      The RPC shall not be entitled to use such documents and descriptions for any other purposes than referring leads to VMNZ.
7.3      Subject to clause 3 of this Agreement, VMNZ shall be obliged to pay out a ‘finder’s fee’ reward commission on genuine qualified original referrals, which shall be based on 20% of the Net Value of the initial Service invoice and which shall become payable to you once VMNZ has received in full the cleared payment from the new client.
7.4      Unless otherwise agreed all ‘finder’s fee’ reward commissions shall be payable in New Zealand dollars.
 
8.        PROVISION OF OPPORTUNITIES
8.1      VMNZ reserves the right at its sole discretion to decide on the acceptance or refusal of an opportunity.
8.2      In case of a rejection of an opportunity, the RPC shall not be entitled to any reward. VMNZ shall inform RPC about acceptance or rejection of an opportunity as it may be reasonable appropriate to do so.
 
9.        OPPORTUNITY CLOSING REWARD
9.1      The RPC's may claim for the rewards for closing the opportunity under the conditions and at the amount set forth in this Agreement, provided that all payment for Service from such opportunity is received in full by VMNZ. If RPC has entered into a Partner agreement with VMNZ regarding re-sale of Services, The RPC shall only receive the rewards set out in this clause 9 and in accordance with clause 7.3 of this agreement for opportunities realised by VMNZ or another Partner.
9.2      Payment of Finder’s Fee Reward is always subject to a valid VMNZ Referral Program Contributor membership. RPC shall not have any claim towards VMNZ regarding Finder’s Fee Reward for leads accepted or deals closed after termination of the VMNZ Referral Program Contributor membership by RPC in accordance with clause 14.1. The RPC’s claims remain unaffected in case VMNZ terminates the Agreement regularly in accordance with clause 14. In this case the RPC may still claim rewards towards VMNZ for those opportunities closed within 12 months as of acceptance, provided Service fees and full payment is received by VMNZ from such opportunity.
9.3      It is further clarified that Reward under this VMNZ Referral and Program is payable to RPC only upon closing of opportunity and receipt of the Service fees by VMNZ. Refer also clause 7.3 of this agreement.
9.4      Leads registered during a previous participation in VMNZ Referral Program shall not be revived upon reapplication/re-acceptance of RPC in the Referral Contributor Program after termination as outlined above.
9.5      For the avoidance of doubt, the RPC acknowledges that there will be no reward for opportunities that were not closed successfully within a 12 months period as of acceptance of such opportunity by VMNZ.
9.6      Subject to such collaboration duties of the RPC, as may be required from time to time the following rewards may be granted in accordance - Closing Reward
9.7      The RPC receives a Closing Reward in case a Customer Contract is concluded as a direct result of the RPC’s Opportunity provided to VMNZ and a Service deal from such opportunity is booked within VMNZ’s system and all Service fees are received by VMNZ.
9.8      The RPC acknowledges expressly, that, RPC´s claim towards the Finder’s Fee Reward shall be forfeit where the RPC does not fulfil its collaboration duties in the timeframe set out as may be communicated by VMNZ from time to time.
9.9      The RPC shall, however, not receive a Closing Reward or reimburse a Closing Reward already received
a.        Insofar as it has been determined that Customer does not pay for the Services although it has been delivered in accordance with the respective Customer Contract.
b.        Insofar as it has been determined that Customer does not pay because the Customer Contract will not, partially not, or not in the manner agreed upon be performed due to reasons beyond the control of VMNZ.
9.10   The Finders Fee Rewards are exclusive of the applicable statutory value-added tax and shall be the sole payments to the RPC by VMNZ under this Agreement. VMNZ shall not be obliged to reimburse the RPC for any expenses incurred in connection with RPC´s performance of its obligations under this Agreement.
9.11   VMNZ shall not be responsible for payment of any income or other tax in connection to Finder’s Fee Reward paid to the RPC.
9.12   The RPC accepts without limitation its obligation to declare to the relevant authority receipt of the Finder’s Fee Reward Commission.
9.13   VMNZ shall make available to RPC a statement of the RPC's respective reward owed by VMNZ. Such statement shall include details about RPC´s rewards owed by VMNZ, provided insofar as the Opportunity has been accepted and closed and VMNZ must have received Service fees payment from such opportunity.
9.14   Finder’s Fee Rewards shall be due within ten days of said statement and shall be paid by VMNZ within 90days after due date by transfer of reward, subject to valid invoice from the RPC.
9.15   In the event VMNZ has reason to believe that a breach of the Agreement above has occurred or may occur, VMNZ may withhold further payments until such time as it has received confirmation to its satisfaction that no such breach has occurred or will occur. VMNZ shall not be liable to the RPC for any claims, losses or damages whatsoever related to its decision to withhold payments under this provision.
9.16   With payment of the Finder’s Fee Reward by VMNZ, VMNZ and the RPC agrees that the RPC shall have no further claim against VMNZ arising out of the provision of lead and of conclusion of Customer Contracts from the same project- including without limitation subsequent contracts from the same Customer project concluded by VMNZ or Partners of VMNZ; in particular regarding coverage of claims based on subsequent Customer Contracts from the same project.
 
10.      INDEMNITY
10.1   The RPC shall defend, indemnify and hold harmless VMNZ, its Affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the "VMNZ Indemnities"), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys' fees) which any of VMNZ Indemnities may suffer, incur or sustain resulting from or arising out of (i) RPC's breach of any representation, warranty, or covenant contained in this Agreement, and (ii) claims or actions of third parties alleging unfair or deceptive trade practices or false advertising in connection with statements or claims made by RPC pertaining to VMNZ's products and/or services.
 
11.      DISCLAIMER AND LIMITATION OF LIABILITY
The site and content of this agreement and VMNZ referral program guide is provided "as is." and VMNZ and its officers, directors, employees and agents, make no express or implied representations or warranties regarding the usability, suitability, condition, operation or accuracy thereof. VMNZ do not warrant that access to or use of the site will be uninterrupted or error-free, and further disclaim all other warranties and conditions (express, implied or statutory), including without limitation, all warranties and conditions of merchantability, title, fitness for a particular purpose, non-infringement, compatibility, security or accuracy and all other obligations or liabilities on the part of VMNZ. The RPC'S use of the site and content is at its own risk. The RPC assumes full responsibility and risk of loss resulting from downloading and/or use of files or content obtained from the site, the RPC agrees that VMNZ and its officers, directors, employees and agents will not be liable for any damages whatsoever (including direct, indirect,
consequential and special damages) resulting from loss of use, data or profits arising out of or in connection with RPC'S use of the site or content, and the RPC hereby releases VMNZ and its officers, directors, employees and agents from any obligations, liabilities and claims with respect thereto, whether based on contractual, tort or other grounds, even if VMNZ have been advised of the possibility of damages. Further, VMNZ's aggregate liability arising under or with respect to this agreement and shall in no event exceed the total fees due and payable by VMNZ to the RPC under this agreement and VMNZ referral program.
 
12.      AUDIT
In the event VMNZ has reason to believe that a breach of any provision of the Agreement has occurred or may occur, VMNZ shall have the right to audit the activities and records of the RPC or any of its Affiliates and/or subcontractors or in order to satisfy itself that no such breach has occurred. Upon the RPC’s written request, VMNZ shall select an independent third party to conduct such audit. The RPC shall, and shall cause its employees and Affiliates to, fully cooperate in any audit conducted by or on behalf of VMNZ.
 
13.      CHANGES TO TERMS
13.1   VMNZ reserves the right to change this Agreement, the VMNZ Referral Program, and its related documents to which the aforementioned are referring to.
13.2   Any of the above changes shall become effective one month after explicit notice by VMNZ to the RPC.
13.3   If the justified interests of the RPC are negatively affected by any of the above changes, the RPC is entitled to terminate the Agreement with immediate effect within this one month period. If the RPC does not terminate within the said period, the changes shall be deemed to be accepted by the RPC.
 
14.      TERM
14.1   The Agreement enters into force on the day on which the registration with the VMNZ Referral Program is completed and shall remain in force indefinitely until terminated in accordance with clause 15.
14.2   Upon termination of this Agreement, the RPC must cease all activities in the context of the Agreement and RPC shall promptly destroy or deliver to VMNZ, at VMNZ’s option,
(a) all materials furnished to RPC by VMNZ, and all copies  hereof; and (b) all documents and tangible objects, and all copies thereof, containing or representing confidential information of VMNZ.
 
15.      TERMINATION
15.1   The Agreement may be terminated by either Party at any time with immediate effect by providing the other party with an appropriate termination in writing.
15.2   The right to termination for good cause shall not be affected thereby.
15.3   Such good cause exists in particular but not limited to if:
a.        A party becomes insolvent, an application to initiate insolvency proceedings or composition proceedings against a party has been rejected for lack of assets, executions against a party have been fruitless, or execution measures against a party have been initiated and not cancelled within one month (e.g. cancellation of an attachment); or
b.        A party has breached material provisions of the Agreement; material provisions are in particular the obligations under clauses 1, 4, 5, 12 and 18; or
c.        A party fails to comply with a contractual obligation under the Agreement in any other way and, if any remedy or cessation of this violation of obligation is possible, does not refrain from such violation within 10 days after being requested to do so by the other party; or
d.        The proprietors or shareholders of the RPC’s company change materially so that the business interests of VMNZ are materially affected (for example, if a competitor of VMNZ becomes a direct or indirect share-holder); or
e.        The RPC does not respect the terms and conditions set forth in the Referral Program.
 
16.      CONFIDENTIALITY
16.1   The RPC may use the trade and business secrets it obtained knowledge of from VMNZ only for the performance of the Agreement and notably must not make these accessible to any third parties. Trade and business secrets notably comprise all information and that which can reasonably be expected to be considered a trade and business secret which the RPC obtained knowledge of in connection with the intended conclusion and performance of the Agreement and which has been marked as confidential or secret, or for which confidentiality or the need to keep secret is apparent from the circumstances or the content of the information.
16.2   Employees of the RPC who are obliged to know such trade and business secrets for the proper performance of the Agreement and where RPC ensures that they have been informed of the confidentiality undertaking contained herein and who are obliged to adhere to such obligation shall not be deemed third parties within the meaning of clause 16.1.
16.3   The confidentiality undertaking shall not apply if the RPC can furnish proof that the trade and business secrets concerned
a.        Were already known to it prior to obtaining these from VMNZ, or
b.        Are or become generally known through no fault of RPC, or
c.        Were disclosed to it by another person without the latter violating contractual or statutory obligations by obtaining or conveying such information, or
d.        Were independently developed by the RPC, or
e.        Have to be disclosed under statutory regulations, or
f.          Have to be disclosed due to a court order or an obligation under administrative law, or
g.        Maybe disclosed by the RPC as a result of VMNZ releasing it from its confidentiality undertaking. In case the RPC is required to disclose the confidential information under above section 16.3 (e) or (f), RPC shall provide VMNZ sufficient prior written notice of such requirement in order to contest or to seek an order protecting the information from public disclosure in connection with the requirement by law.
16.4   The RPC shall use all economically feasible efforts to keep confidential the documents and information made available to it by VMNZ, and notably treats them with the same care as its own documents and information of similar importance.
16.5   The duties set out in clauses 16.1 to 16.4 shall continue to apply even after termination of the Agreement until the business and trade secrets become publicly known.
16.6   Clauses 14.1 to 14.5 shall apply analogously vis-à-vis VMNZ for trade and business secrets of the RPC/Prospect subject to the provisions laid down in the Agreement.
16.7   Any feedback, data, answers, questions, comments, suggestions, ideas or the like which the RPC sends to VMNZ relating to the Agreement and VMNZ Referral Program will be treated as being non-confidential and non-proprietary. VMNZ may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever.
 
17.      DATA PROTECTION
17.1   Both parties use information technology to store and process data concerning their business relationships. They must observe any applicable data protection laws including but not limited to national implementations of the Electronic Transaction Act 2000.
17.2   Both parties are responsible for permitting the personal data to be processed and for protecting the rights of the data owner.
 
18.      TRANSFERABILITY AND SUB-CONTRACTING
18.1   VMNZ is free to transfer the Agreement to any Affiliate of VMNZ. VMNZ may notify such transfer or intention to transfer without undue delay. Upon such transfer being effective, VMNZ shall no longer be party to the Agreement, but only the transferee.
18.2   VMNZ is free to use third parties as sub-contractors for fulfilling its obligations under the Agreement. VMNZ shall continue to be liable for such obligations.
18.3   The RPC shall not be entitled to transfer the Agreement to any third party without VMNZ’s prior consent. The RPC shall also not be entitled to assign the Agreement in connection with a merger, acquisition or other combination involving the RPC.
 
19.      NOTICES AND CONTACTS
17.1   Notices are only effective if given in written form. Notices shall be sent to the contacts indicated in the Referral Program Contributor referral ‘Agreement’. Notices can also be sent by email.
17.2   Any contact shall be an existing person currently working for the RPC with valid contact data and valid physical address and valid e-mail address.
 
20.      GOVERNING LAW / PLACE OF JURISDICTION
20.1   The validity and effect of this Agreement and VMNZ Referral Program shall be governed by and construed and enforced in accordance with the laws of New Zealand, without regard to its conflicts of laws principles (“Applicable Law”). The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
20.2   VMNZ's registered office shall be the exclusive place of jurisdiction for all disputes arising out of or in connection with the Agreement. VMNZ shall, however, be entitled to bring claims against RPC at RPC's place of business.
 
21.      MISCELLANEOUS
21.1   The Agreement represents the entire provisions relating to the subject matter of the Agreement and replaces all previous provisions agreed between the Parties in respect of the subject matter of the Agreement. The VMNZ Referral Program forms part of this Agreement. No oral side agreements have been made.
21.2   Any changes and amendments to the Agreement and any cancellation of the Agreement require written form. This also applies to the cancellation of this written form requirement. Any changes and amendments can also be sent by email and will be deemed received by 5:00pm on the next business day following dispatch. Email; shall only require that the most recent address be held on file.
21.3   The RPC must comply with all laws and regulations which are applicable to activities pursuant to this Agreement.
21.4   If one or several provisions of the Agreement are or become invalid this shall not affect the validity and enforceability of the remaining provisions. The parties agree to replace an invalid or unenforceable provision by a valid and enforceable provision, which (from an economic point of view) comes closest to such provision.
21.5   No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement and VMNZ Referral Program shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
 
Version 1.0, 1 March 2010.