ListSure Referral Agreement

1. Definitions and interpretation

1.1 Definitions

In this agreement:

(1) Approved Materials means stationery, forms, documents, brochures and advertising, promotional and other material approved by or supplied by ListSure;

(2) Credit Representative has the meaning set out in the NCCP Act;

(3) Credit Service has the meaning set out in the NCCP Act;

(4) Customer Details has the meaning set out in clause 3.1(8);

(5) Disclosed Information means any part of or the whole of the information (including personal information as defined in the Privacy Act 1988 (Cth)) provided to, transmitted, communicated, transferred, disclosed or otherwise made available by the Referrer to ListSure under or in connection with this agreement;

(6) Intellectual Property means any intellectual property owned, licensed or used by ListSure from time to time or which ListSure has been granted any rights in respect of from time to time, including, without limitation:

(a) a patent, trademark or service mark, copyright, registered design, trade secret, moral right, business names or confidential information; and

(b) a licence or other right to use or to grant the use of, or to be the registered proprietor or user, of any of the rights set out in (a);

(7) Licensee has the meaning set out in clause 7.2;

(8) NCCP Act means the National Consumer Credit Protection Act 2009;

(9) Payment Gateway means the processing and management of upfront and deferred payment options for Sale Costs via a digital payment system accessed via a payment link provided by ListSure;

(10) Representatives has the meaning set out in the NCCP Act;

(11) Services means providing products and services to Vendors relating to the funding Sale Costs;

(12) Sale Costs has the meaning set out in clause A of the Contract Details; and

(13) Vendor means the registered proprietor of a property that is introduced to ListSure by the Referrer for the purposes of ListSure offering a loan to the Client for their Sale Costs.

1.2 Interpretation

(1) Reference to:

(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 assigns;

(e) a thing includes the whole and each part of it separately;

(f) a statute, regulation, code or other law or a provision of any of them includes:

(i) any amendment or replacement of it; and

(ii) another regulation or other statutory instrument made under it, or made under it as amended or replaced; and

(g) dollars means Australian dollars unless otherwise stated.

(2) “Including” and similar expressions are not words of limitation.

(3) 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.

(4) Headings and any table of contents or index are for convenience only and do not form part of this agreement or affect its interpretation.

(5) 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 the agreement or the inclusion of the provision in the agreement.

(6) If an act must be done on a specified day which is not a Business Day, it must be done instead on the next Business Day.

2. Appointment of ListSure

2.1 The Referrer agrees to refer Vendors to ListSure in order for ListSure to provide Services to those Vendors.

2.2 The Referrer:

(1) does not hold an Australian credit licence and is not a Credit Representative of ListSure; and

(2) does not intend to provide Credit Services but wishes to refer clients to ListSure only.

2.3 The Referrer appoints ListSure as its exclusive provider of Services and agrees not to refer or recommend any of their Vendors to any other provider of Services, or services similar to the Services.

2.4 ListSure will not pay the Referrer any referral fees under this agreement.

3. Referral of customers for Pay Now, Pay Later, or Pay On Success®

3.1 The Referrer must, and must ensure that each of their Representatives:

(1) use its best endeavours and work diligently to promote and refer Vendors to ListSure;

(2) do not represent itself as an agent of ListSure;

(3) do not provide Credit Services to Vendors;

(4) only engage in credit activities as a referrer incidentally to another business they are carrying on;

(5) not charge a fee to the Vendor for the referral;

(6) not provide Vendors with any material relating to the Services other than the Approved Materials;

(7) only inform the Vendor that ListSure is able to arrange loans but not specify any particular product, and not provide any recommendations or advice concerning loans;

(8) obtain the consent of the Vendor to pass their name, contact details and a short description of the purpose of the Payment Gateway (Customer Details);

(9) not provide any additional information over and above the Customer Details, including the customer’s financial information and documentation, at the same time as or as part of the referral (for the avoidance of doubt, additional information can be provided after and separate to the referral if requested by ListSure and with the consent of the Vendor);

(10) pass the Customer Details to ListSure within five business days of informing the Vendor that ListSure is able to arrange loans;

(11) not conduct a business as part of which the Referrer contacts persons face-to-face from non-standard business premises (e.g. a stall in a shopping mall); and

(12) comply with all laws, including Privacy Act 1988 and NCCP Act, including but not limited to the referrer exemption outlined in the NCCP Act.

4. Warranties and indemnities

4.1 In the course of referring Vendors to ListSure, the Referrer represents and warrants to ListSure that:

(1) the Referrer and their Representatives will present the Payment Gateway to all Vendors to process their Sale Costs;

(2) the Referrer and their Representatives have complied with all of clause 3 (Referral of customers for Pay Now, Pay Later or Pay On Success®);

(3) the Referrer and their Representatives will not engage in any misleading or deceptive conduct;

(4) the Referrer, and of their directors, Representatives or authorised referrers, are not banned from engaging in credit activities as defined under the NCCP Act, and are not on the ASIC Banned and Disqualified Register and any industry body expelled and suspended members and cancelled memberships list;

(5) without limiting clause 4.1:

(a) the Referrer and their Representatives have done no more than inform the potential borrower that ListSure is able to arrange loans but not specify any particular product, and not provide any recommendations or advice concerning loans;

(b) all referrals to ListSure are incidental to the Referrer’s core business. For the avoidance of doubt, that means principally making contact with persons for the purposes of giving their names or details to other persons is not the Referrer’s core business (e.g. a call centre); and

(c) the Referrer and their Representatives do not conduct business by contacting people face to face from non-standard business premises (e.g. a stall in a shopping mall).

4.2 The Referrer is responsible for booking and delivering all services in connection with the sale of the Property. The Referrer acknowledges that ListSure does not have any control over, and are not responsible for providing, any services in connection with the property.

4.3 ListSure is not responsible for any actions, omission, negligence, or breach of contract or law by the Referrer, or by any third party providers engaged to undertake services in connection with the sale of the property, or any loss that the Vendor may suffer, or any claim that the Vendor may have or bring against the Referrer or any third party provider engaged to undertake the services.

4.4 The Referrer indemnifies (and will keep indemnified) ListSure against any damage, losses, costs, claims and expenses (including legal fees on a full indemnity basis) which ListSure incurs or suffers as a consequence of any breach of any warranty or any other breach of this agreement or as a result of negligence, unauthorised or unlawful act, default or omission of the part of the Referrer or its employees.

4.5 Where the Referrer is liable to indemnify ListSure in respect of any costs, fees or expenses, ListSure may deduct any monies owing by the Referrer from any monies ListSure owes the Referrer pursuant to this agreement.

5. Payments from ListSure

5.1 Where the Vendor elects to pay their Sale Costs upfront, the total amount will be initially held by ListSure for the benefit of the Vendor and subsequently transferred to the Referrer to pay any amounts due by the Vendor in respect of the Sale Costs.

5.2 ListSure will:

(1) reconcile all amounts received from Vendors via the Payment Gateway in relation to the Sale Costs;

(2) provide the Referrer with a funding status via an online dashboard; and

(3) transfer to the Referrer all Sale Costs processed through the Payment Gateway on a weekly basis.

5.3 The Referrer must use all funds received to pay for Sale Costs in accordance with their agreement with the Vendor, and for no other purpose.

6. Payments to ListSure

6.1 The Referrer may hold funds that will be payable to a Vendor on completion of a property sale.

6.2 The Referrer will comply with any lawful direction made by either the Vendor or ListSure relating to the payment of some or all of those funds owing by the Vendor to ListSure.

6.3 The Referrer agrees to provide all reasonable assistance to facilitate the collection of amounts owing by Vendors to ListSure.

7. Information provided to ListSure

7.1 The Referrer will provide ListSure with any information relating to the Sale Costs that is reasonably requested by either ListSure or the Vendor.

7.2 Subject to clause 7.3, the Referrer hereby grants ListSure and its officers, assignees and licensees (Licensees) a perpetual, irrevocable, worldwide, transferable, sub-licensable, non-exclusive licence and right to use the Disclosed Information for any purpose.

7.3 Any Disclosed Information that is personal information as defined in the Privacy Act 1988 (Cth) will be used in accordance with the privacy policy of ListSure which can be accessed at www.listsure.com.au.

7.4 The Referrer warrants that:

(1) it has all rights and has procured all necessary permissions, authorisations, licenses and consents (including moral rights consents) in relation to the Disclosed Information and licence granted under clause 7.2; and

(2) any Licensee's use of the Disclosed Information will not infringe:

(a) the rights of any third party (including any right of privacy and intellectual property rights); or

(b) any laws.

8. Referrer responsibilities

8.1 The Referrer is responsible for management of Vendors that have either not started or not yet completed their application via the Payment Gateway.

8.2 The Referrer indemnifies ListSure in the event that one of their Vendors fails to pay an amount owing to ListSure where the Referrer (or their Representative) have materially contributed to the Vendors refusal to pay an amount owing.

9. Intellectual Property

9.1 The Referrer acknowledges and agrees that ListSure owns all the intellectual property rights in the Intellectual Property.

9.2 ListSure hereby authorises the Referrer to use such of the Intellectual Property as is necessary for the Referrer to comply with its obligations in this agreement.

9.3 The Referrer must use the Intellectual Property only in the manner prescribed by ListSure from time to time.

9.4 The Referrer must not alter the Intellectual Property without the prior written approval of ListSure and the Referrer must not interfere with, or attempt to prohibit the use or registration by ListSure of, any of ListSure Intellectual Property.

9.5 The Referrer’s right to use any of the Intellectual Property under this agreement will cease immediately upon termination of this agreement.

10. Term and termination

10.1 This agreement commences on the date of execution and continues until either the Referrer or ListSure terminate this agreement at any time on no less than 120 days notice.

11. Confidentiality

11.1 Neither party may disclose to any other person:

(1) the existence of or terms of this agreement; or

(2) any information provided by one party to the other not already in public domain prior to this agreement being signed;

except:

(3) as required by law or the rules of any stock exchange; or

(4) to its professional advisers for the purpose of obtaining advice on the matters in relation to this agreement.

12. General

12.1 Each party bears its own legal and other costs in connection with this agreement, and the documents contemplated by this agreement.

12.2 Termination of this agreement does not relieve any party from that party’s obligations under clauses

(1) clause 6 (Payments to ListSure);

(2) clause 7 (Information provided to ListSure);

(3) clause 8 (Referrer’s responsibilities); and

(4) clause 11 (Confidentiality).

12.3 An amendment or variation to this agreement is not effective unless it is in writing and signed by the parties.

12.4 This agreement forms the entire agreement between the parties on everything connected with the subject matter of this agreement. It supersedes any previous oral or written agreements, arrangements, understandings or other communications between the parties connected with that subject matter.

12.5 This agreement may consist of a number of counterparts and the counterparts taken together constitution one and the same agreement.

12.6 Each party confirms their intention to enter into a binding legal agreement and agrees that:

(1) the electronic signature of a party to this agreement is intended to authenticate this agreement and have the same force and effect as a handwritten signature; and

(2) consents to any reasonable method used to identify the signatories to this agreement.

12.7 The law of New South Wales governs this agreement. The parties irrevocably submit to the non exclusive jurisdiction of the courts of New South Wales and of the Commonwealth of Australia.