Referboard Terms & Conditions
This Retailer User Agreement (Agreement) is entered into between you (Retailer) and Referboard Pty Ltd
(ACN 149 939 855) (Referboard).
PART A - Referboard Software Licence
1.Pre-conditions and grant of licence
- 1.1. Pre-conditions
This Agreement will have no effect and will not be binding on the parties unless and until the Retailer complies
with the condition set out in clause 11.4.
1.2.Grant of licence
Referboard grants the Retailer a personal, non-exclusive, non-transferable, not-for resale or sub licence,
restricted right to install and use the Software on the Licensed System for the Permitted Purpose.
- 2.1Initial Term
Subject to clause 1.1, by clicking "I accept the terms of this Referboard Retailer User Agreement" (or similar
wording) or using a similar mechanism indicating acceptance, by signing a document in which the Retailer expressly
agrees to be bound by this Agreement, or by otherwise installing the Software on the Licensed System, the Retailer
will be deemed to have accepted and will be bound by the terms and conditions of this Agreement and the Licence Term
will commence and will continue for a period of 12 months, unless this Agreement is terminated earlier pursuant to
- 2.2Renewal Term
The Licence Term will, on the expiry of the Initial Term or each Renewal Term (as applicable), automatically renew
for successive periods of 12 months (each a Renewal Term), subject to:
- (a)The Retailer paying Referboard the Licence Fee in respect of the Renewal
Term (as determined by
Referboard in its
sole discretion), no less than seven days prior to the expiry of the Licence Term or Renewal Term (as
any termination of this Agreement pursuant to clause 19.
The Retailer must pay Referboard the Licence Fees in accordance with the payment terms specified by Referboard from
time to time.
4.Restrictions on Licence
The Licence granted to the Retailer under this Agreement authorises the Retailer to use the Software solely for the
Permitted Purpose and the Retailer must not use the Software for any other purpose. Without limiting the above, the
Retailer must not:
- (a)make any copies of the Software (except as permitted under clause 7);
- (b)modify, adapt, translate, reverse engineer, de-compile, disassemble or
copy all or any part of the Software; or
- (c)distribute any part of the Software for commercial purposes or otherwise
sub-licence or resell the Software.
- (a)The Retailer will be responsible for installing the Software and otherwise integrating the Software with the Retailer's software and systems and Referboard will have no installation or integration obligations.
- (a) Prior to installing the Software, the Retailer must install adequate firewalls and other security measures
reasonably required by Referboard from time to time to prevent unauthorised access to the Software.
The Retailer acknowledges that:
- (a) Referboard owns or licences the Intellectual Property in the Software; and
- (b)it will not have any ownership of or other rights in respect of the Intellectual Property in the Software.
- 6.2Third party licences
The Retailer acknowledges that the Software may include third party software licensed to Referboard which is
embedded in or provided with the Software. If Referboard loses its right to exploit any third party software,
Referboard may immediately terminate the Licence pursuant to clause 19.1(d).
7. Back-up copies
The Retailer may make one copy of the Software solely for purposes of having a backup copy of the Software.
- 8.1 No support
Referboard does not have any obligations to provide any services to the Retailer in respect of the Software
including (without limitation) Maintenance Services.
- 8.2 Updates and upgrades
Notwithstanding clause 8.1, Referboard may in its discretion update or upgrade the Software at any time. Any updates
or upgrades provided to the Retailer will be governed by this Agreement.
PART B - Referboard System
9.Retailer's general obligations
The Retailer agrees to use all reasonable endeavours to promote the Referboard System to Website Visitors and to
encourage Website Visitors to register as a Network Affiliate and participate in the Referboard System.
10. Referboard Button
The Retailer must use the Software to ensure that the Referboard Button is prominently displayed next to all
products on all pages of the Website and complies with the Placement Guidelines or any other direction from
Referboard within 3 days of such direction being notified to the Retailer.
- 11.1 Calculation of commission
The Retailer must pay Referboard a commission of 10% of the Gross Sale Price of all Referred Sales.
- 11.2 Payment of commission
At or around 5.00pm each day, Referboard will direct debit the Retailer’s account for all commissions payable to
Referboard in respect of Referred Sales generated as a result of Referral sent by a Network Affiliate within the
preceding 24 hour period, via the payment method designated pursuant to clause 11.3.
- 11.3 Payment methods
Referboard will direct debit all amounts payable by the Retailer using the payment method nominated by the
Retailer from time to time (subject to the approval of Referboard), which may include credit card, debit card,
bank account, PayPal or any other payment method approved by Referboard.
- 11.4 Direct debit authority
This Agreement is conditional upon the Retailer signing any documents necessary to allow Referboard to process
the direct debits contemplated under clause 11.3, including but not limited to a written direct debit authority.
If at any time the direct debit authority is terminated by the Retailer, Referboard may, at its option,
immediately terminate this Agreement in accordance with clause 19.1(b).
- 11.5 Refunds to End Customers
The Retailer must pay the commissions to Referboard in respect of all Referred Sales generated through a
Referral sent by a Network Affiliate. If the Retailer subsequently refunds any amount to the End Customer in
respect of a Referred Sale. Referboard will not be required to refund any amounts paid by the Retailer to
Referboard if the Retailer subsequently refunds any amounts to the End Customer.
12.Tracking Referred Sales
- 12.1 Referboard to use Referral Tracker
Referboard will use the Referral Tracker to ascertain when an End Customer makes a purchase from the Website
subsequent to receiving a Referral from a Network Affiliate.
- 12.2 Referral Tracker is binding
The statistics generated by the Referral Tracker are binding and final on the parties, subject to clauses 13 and
- 12.3 No interference
The Retailer must not do anything that is likely to affect the accuracy of the results generated by the Referral
Tracker or otherwise prevent the Software from accurately tracking Referred Sales.
13. Disputes regarding Referred Sales
- 13.1 Notice of dispute
If either party disputes the statistics generated by the Referral Tracker, the party claiming the dispute must
notify the other party in writing of the nature of the dispute and provide evidence to corroborate the claim.
- 13.2 Negotiation period
Following notification under clause 13.1, the parties must participate in good faith in any negotiations or
discussions regarding the dispute for a period of seven days (Negotiation Period).
- 13.3 Referral to mediation
If the dispute has not been resolved by the expiry of the Negotiation Period, Referboard may require that the
dispute be submitted to mediation in accordance with, and subject to, the Institute of Arbitrators & Mediators
Australia Mediation and Conciliation Rules. The parties will each bear the costs of such mediation equally.
- 13.4 No litigation
Neither party may commence any court proceedings or other similar actions relating to a dispute unless it has
complied with the dispute resolution procedure set out in this clause 13.
14. Audit right
- 14.1 Provision of audit log
Within seven days of a request by Referboard, the Retailer must generate an accurate audit log file and send it
to Referboard. The audit log file must contain all such information reasonably required by Referboard, including
but not limited to a sales report showing the IP address of each respective purchaser.
- 14.2 Results of audit
If Referboard finds as a result of any audit under this clause 14 that the Retailer owes Referboard additional
amounts that were not previously known to Referboard, the Retailer must pay such amounts within seven days of
receiving a notice of the amount payable from Referboard.
PART C - General Terms and Conditions
15. Taxes and GST
- 15.1 Taxes
All amounts payable by the Retailer to Referboard under this Agreement, including but not limited to the Licence
Fees, exclude all applicable sales, export or import fees or tariffs, GST, use and other taxes, and the Retailer
will be responsible for payment of all such taxes (except those based on Referboard’s income), fees, duties and
charges arising from the payment of the amounts to Referboard, including the Licence Fees.
- 15.2 GST
If all or any part of what is licensed, sold or conveyed under this Agreement is subject to GST and the
Referboard invoice does not specifically state it is inclusive of GST, the Retailer must pay Referboard an
additional amount equal to the GST, upon receipt, subject to receiving a tax invoice from Referboard.
- 16.1 Duty of confidentiality
The Retailer must maintain strict confidentiality and secrecy regarding the Confidential Information. Without
limiting the above, the Retailer must:
- (a) not, without the prior written consent of Referboard or as expressly permitted in this Agreement, copy, write
down or otherwise record any part of the Confidential Information;
- (b)subject to clause 16.1(c), not disclose the Confidential Information (or any part of it) to any other person;
- (c) only disclose the Confidential Information to its officers or employees where:
- (i)that person has a need to know for the Permitted Purpose;
- (ii) the Retailer has made that person fully aware of the confidential nature of the Confidential Information; and
- (iii) that person has undertaken to be bound by the terms and conditions of this clause 16 as if he or she were the
- (d) use the Confidential Information solely for the Permitted Purpose and not for any other purpose including
(without limitation) use for its own advantage or use to the disadvantage of Referboard; and
- (e) immediately upon request by Referboard, return to Referboard or destroy (at the election of Referboard) all
documents and other material containing the Confidential Information which are in the possession or control of
- 16.2 Exceptions
The obligations of confidentiality contained in clause 16.1 will not apply to the extent that it can be
established by the Retailer to Referboard’s reasonable satisfaction that the relevant information:
- (a) was already known to the Retailer, other than under an obligation of confidentiality, at the time of disclosure
- (b) was generally available to the public or otherwise part of the public domain at the time of its disclosure to
- (c) became generally available to the public or otherwise part of the public domain after its disclosure and other
than through any act or omission of the Retailer in breach of this Agreement;
- (d) was disclosed to the Retailer, other than under an obligation of confidentiality, by a third party who had no
obligation not to disclose such information to others; or
- (e) was developed independently by the Retailer without reference to or use of the Confidential Information.
- 16.3 No public announcement
The Retailer must not make any public announcement or communication regarding the existence or terms of this
Agreement, unless it obtains the prior written consent of Referboard.
17. Consumer guarantees, exclusion and limitation of liability
- 17.1 PDH Goods or Services - no exclusion of Consumer Guarantees
If the Retailer is a Consumer and Referboard supplies PDH Goods or Services to the Retailer, then Referboard
acknowledges that the Retailer may have certain rights under the Australian Consumer Law in respect of the
Consumer Guarantees as they apply to the PDH Goods or Services supplied by Referboard and nothing in this clause
17 should be interpreted as attempting to exclude, restrict or modify the application of any such rights.
- 17.2 Non PDH Goods or Services - limitation of liability
If the Retailer is a Consumer and any goods or services supplied by Referboard to the Retailer are non PDH Goods
or Services then Referboard’s liability to the Retailer in connection with any breach of the Consumer Guarantees
in respect of those non PDH Goods or Services is limited (at Referboard’s discretion) to the cost of Referboard
resupplying those non PDH Goods or Services or payment of the cost of having those non PDH Goods or Services
- 17.3 Where Australian Consumer Law does not apply - exclusion of liability
- (a) If:
then Referboard expressly excludes all liability in respect of the goods or services supplied by Referboard to
- (i) the Retailer is not a Consumer; or
- (ii) the Australian Consumer Law does not apply,
- (b) If the Retailer makes a claim against Referboard which includes a cause of action other than for a breach of the
Consumer Guarantees provisions of the Australian Consumer Law, then, to the extent the claim, or part of the
claim, does not relate to the Consumer Guarantees, Referboard expressly excludes all liability in respect of the
goods or services supplied by Referboard to the Retailer.
- 17.4 Exclusion of liability for Consequential Loss
Subject to clause 17.1, Referboard expressly excludes all liability to the Retailer for Consequential Loss
arising out of or in connection with this Agreement.
By entering into this Agreement, the Retailer consents to Referboard collecting, storing, using or disclosing
- 19.1 Termination for cause
Referboard may terminate this Agreement and the Licence effective immediately upon providing written notice of
termination to the Retailer if:
- (a)the Retailer breaches a term or condition of this Agreement and fails to remedy such breach within 30 days after
being provided with written notice of the breach by Referboard;
- (b) the Retailer terminates its direct debit authority to Referboard;
- (c)the Retailer breaches a term or condition of this Agreement which cannot be remedied; or
- (d) Referboard loses its right to exploit any third party software.
- 19.2 Post termination obligations
Within two days of the termination or expiry of this Agreement or the expiry of the Licence Term, the Retailer
Upon 24 hours' notice from Referboard, the Retailer must provide Referboard or any nominee of Referboard with
access to the premises and computer systems of the Retailer for the purpose of Referboard verifying that the
Retailer has complied with its obligations under this clause 19.2.
- (a) cease all use of the Software;
- (b)permanently delete all copies of the Software in the possession, custody or control of the Retailer; and
- (c)remove any component of the Software from the Website.
- 19.3 Survival of certain terms
The party’s obligations under clauses 6, 14, 16, 17, 18, 19 and 21 will survive notwithstanding any termination
or expiry of this Agreement or the expiry of the Licence Term.
20. Contractors or Consultants
Referboard acknowledges and agrees that the Retailer may:
The Retailer is responsible and shall be liable to Referboard for any acts or omissions by such Contractors or
Consultants which, if done or made by the Retailer, would amount to a breach of this Agreement.
- (a) engage a third party hosting company to host the Software for the Retailer; or
- (b) use other Contractors or Consultants to assist the Retailer in relation to the Permitted Purpose.
21. Consequences of non-payment or insolvency
Without limiting Referboard's rights of termination under clause 19, if the Retailer does not pay any amounts
payable to Referboard under this Agreement, or the Retailer is subject to an Insolvency Event, Referboard may
(regardless of whether it exercises any cancellation right):
- (a) charge the Retailer interest on all overdue amounts at the Interest Rate, calculated daily from the due date for
payment until paid in full;
- (b) require that the Retailer pay all costs incurred by Referboard in recovering or attempting to recover the
outstanding amount including (without limitation) legal or debt collection costs; and
- (c) suspend the Retailer’s right to use the Software (without prejudice to its right to terminate this Agreement)
until such time as all outstanding amounts are paid in full.
- 22.1 Assignment of rights by Referboard
The Retailer agrees that Referboard may sell, transfer or assign its rights in the Software at any time to any
party without the Retailer's consent. Referboard (or the third party purchaser) may either serve notice on the
Retailer that this Agreement is assigned to the purchaser or that the Retailer is required to enter a new
agreement directly with the purchaser.
- 22.2 Assignment of rights by Retailer
The Retailer must not transfer or assign its rights and obligations under this Agreement directly or indirectly,
without the prior written consent of Referboard, which may be withheld in its sole discretion.
The parties agree that:
- (a) The relationship of Referboard and the Retailer established by this Agreement is that of independent
- (b) This Agreement will be governed by and construed exclusively under the laws of the State of Victoria, Australia
and the parties submit to the non-exclusive jurisdiction of the courts of the State of Victoria and the Federal
Court of Australia.
- (c) The United Nations Convention on the International Sale of Goods (the Vienna Convention) will not apply to this
Agreement or the subject matter hereof.
- (d) The Retailer must comply with all laws, including the provisions of any statute, rule, regulation, proclamation,
ordinance or by-law, present or future, whether state, federal or otherwise and comply with the requirements of
- (e) This Agreement sets forth the entire agreement of the parties relating to the subject matter of this Agreement.
Additional or inconsistent terms of any purchase order or any other end user licence agreement entered in
respect of the Software are expressly excluded.
- (f)No clause of this Agreement attempts to exclude or limit, or have the effect of excluding or limiting, the
operation of sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth) or any rights arising under
the Australian Consumer Law. Any clause of this Agreement which is inconsistent with these provisions will be
read down or otherwise varied to the extent necessary to preserve the operation of the relevant clause.
- (g) If any provision of this Agreement is void, voidable by a party, unenforceable, invalid or illegal and would not
be so if a word or words were omitted, then that word or those words are to be severed and if this cannot be
done, the entire provision is to be severed from this Agreement without affecting the validity or enforceability
of the remaining provisions of this Agreement.
In this Agreement:
- (a) Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent State
or Territory legislation.
- (b) Claim means a claim, action, proceeding, judgment or demand made or brought by or against a party, however
arising and whether present, unascertained, future or contingent.
Confidential Information means all information (regardless of form) disclosed to or acquired by the Retailer
- (i) Referboard or Referboard’s business affairs;
- (ii) the Software including (without limitation) information regarding the source code, object code and other code
for the Software; or
- (iii) the terms of this Agreement or any other agreements between the Retailer and Referboard.
- (d) Consequential Loss means (without limitation), indirect Loss, Loss of revenue, Loss of reputation, Loss of
profits, Loss of actual or anticipated savings, Loss of bargain, lost opportunities, including opportunities to
enter into arrangements with third parties.
- (e) Consumer Guarantee means a guarantee provided under Division 1 of Part 3-2 of the Australian Consumer Law.
- (f) Contractors or Consultants means any and all persons who perform services for the Retailer under an express or
implied agreement with the Retailer.
- (g) Documentation means any user guides, manuals or other similar documentation for the Software provided to the
Retailer by Referboard from time to time.
- (h) End Customer means any person that receives a Referral from a Network Affiliate.
- (i) Gross Sales Price means the total price of all sales in a transaction between the Retailer and an End Customer,
including any GST or other taxes.
- (j) Initial Term means a period of 12 months commencing on the Commencement Date.
- (k) Insolvency Event means, in relation to a body corporate, a liquidation or winding up or the appointment of a
voluntary administrator, receiver, manager or similar insolvency administrator to a party or any substantial
part of its assets, or, in relation to an individual, becoming bankrupt or entering into a scheme or arrangement
with creditors or, in relation to an individual or any entity, the occurrence of any event that has a
substantially similar effect to any of the above events.
- (l) Intellectual Property means all trade marks, copyright, patents, patentable inventions and designs, whether
existing now or in the future and whether or not registered or registrable, and includes any rights subsisting
in or relating to trade secrets, know how, inventions, discoveries, semiconductor and circuit layouts and
further includes the right to apply for the registration or grant of any such intellectual property.
- (m) Interest Rate means the rate per annum which is 2% greater than the current rate fixed under section 2 of the
Penalty Interest Rates Act 1983 (Vic).
- (n) Licence means the licence granted to the Retailer under clause 1.
- (o) Licensed System means one personal computer or server which is owned, leased or otherwise controlled by the
- (p) Licence Fees means the fees specified by Referboard at the time the Retailer downloads the Software or as
notified by Referboard to the Retailer upon renewal of the Agreement in accordance with clause 2.2(a).
- (q) Licence Term means the applicable licence term specified in clause 2.
- (r) Loss means any damage, loss, cost, expense or liability of any kind incurred by the person concerned, however it
arises and whether it is direct or indirect, present or future, fixed or unascertained, actual or contingent
including (without limitation) indirect or Consequential Loss.
- (s) Maintenance Services means development or customisation services, technical support, training or maintenance
services in respect of the Software.
- (t) Network Affiliate means a person who registers to participate in the Referboard System and downloads the
Software with the purpose of sending Referrals to End Customers.
- (u) PDH Goods or Services means any goods or services which, for the purposes of sections 3 (1) or 3 (3) of the
Australian Consumer Law, are goods or services of a kind ordinarily acquired for personal, domestic or household
use or consumption.
- (v) Permitted Purpose means incorporating the Software into the Website for the purpose of participating in the
Referboard System and procuring customers and Network Affiliates through the Referboard Website
- (w) Placement Guidelines means any guidelines in respect of the placement of the Referboard Button specified by
Referboard from time to time on the website operated by Referboard, to which prospective Network Affiliates are
directed to register for the Referboard System and download the Software.
- (x) Referboard Software means the software owned by Referboard, known as Referboard.
- (y) Referboard System means the system developed by Referboard whereby website owners, such as the Retailer, invite
Website Visitors to register as a Network Affiliate via the Referboard Website. The Retailer incorporates
Referboard Buttons on the Website using the Referboard Software. When a Network Affiliate clicks on a Referboard
Button, a Referral is sent to End Customers via the Network Affiliate’s social media platforms. The Retailer
pays commissions to Referboard when an End Customer makes a purchase from the Website within 30 days of a cookie
being generated as a result of a Referral from a Network Affiliate, of which Referboard pays a percentage to the
- (z) Referboard Button means a button or clickable image on the Website, which allows Website Visitors to navigate to
the Referboard Website to register as Network Affiliates.
- (aa) Referboard Website means the site developed to host the Network Affiliate Referrals and for users to register to
become Network Affiliates.
- (bb) Referral means a communication made by a Network Affiliate to an End Customer recommending that the End Customer
visit the Website.
- (cc) Referred Sales means all sales made by the Retailer to an End Customer within 30 days of a cookie being
generated as a result of the End Customer clicking on a Referral sent to them by the Network Affiliate.
- (dd) Referral Tracker means the technology used by Referboard to ascertain when an End Customer makes a purchase from
the Website subsequent to receiving a Referral from a Network Affiliate.
- (ee) Renewal Term has the meaning given in clause 2.2.
- (ff)Software means the object code for the software known as Referboard.
- (gg) Website means the website owned, operated or controlled by the Retailer in respect of which the Software will be
used, as nominated by the Retailer at the time of entering this Agreement or as otherwise agreed between the
parties from time to time.
- (hh) Website Visitors means any person that views the Website.