Partner Terms

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Last updated on: 17 November 2023

These Partner Terms and Conditions form part of the Partner’s Agreement with Evergen and describe Partner’s rights and responsibilities as a Partner of Evergen Services. These Terms are between Partner and Evergen. Partner means the entity or individual accepting these Terms.

If an individual is accepting these Terms on behalf of his/her employer or another entity, the individual represents and warrants that: (i) he/she has full legal authority to bind his/her employer or such entity to these Terms; (ii) he/she has read and understand these Terms; and (iii) he/she agrees to these Terms on behalf of the party that he/she represents. If he/she does not have the legal authority to bind his/her employer or the applicable entity please do not click “I agree” (or similar button or checkbox) that is presented.

Partner indicates its agreement to these Terms by clicking “I agree” (or similar button or checkbox) at the time Partner registers as an Evergen Partner.

INTERPRETATION AND DEFINITIONS
1. In this Agreement, unless the contrary intention appears:
  1. the singular includes the plural and vice versa and words importing a gender include other genders;
  2. a reference to this Agreement is a reference to this Agreement, its schedules, attachments and annexures (and any other document incorporated into such documents), and a reference to a clause is a reference to a clause of this Agreement;
  3. a reference to a document or agreement, including this Agreement, its schedules, attachments and annexures, includes a reference to that document or agreement as novated, altered, replaced or renewed from time to time;
  4. a reference to a person includes a partnership or a body whether corporate or otherwise;
  5. a reference to a person includes the person’s executors, administrators, successors, substitutes (including persons taking by novation) and permitted assigns;
  6. the words “include”, “including”, “for example” or “such as” are not to be interpreted as words of limitation, and when such words introduce an example, they do not limit the meaning of the words to which the example relates, or to examples of a similar kind; and
  7. a reference to an amount of money is a reference to the Australian dollar.
2. Headings are used for references only.
3. In this Agreement, unless the contrary intention appears: ACICA Arbitration Rules means the arbitration rules of the Australian Centre for International Commercial Arbitration as amended from time to time; Business Day means a day other than a Saturday, a Sunday or a public holiday in New South Wales. Commencement Date means the date set out in [the Commercial Details]; Commercial Details means the [welcome pack], signed by the Partner which sets out or attaches the commercial details and terms, and which together with these Partner Terms and Conditions forms the Agreement; Confidential Information means the confidential information of a party which relates to the subject matter of this Agreement and includes:
  1. confidential information, trade secrets, know-how, methodologies, templates, scientific, technical, product, market, pricing and customer information relating to the technology, design, functionality and deployment of the Evergen Services;
  2. information relating to the Personnel, policies, clientele or business strategies of a party;
  3. any pricing guides, operations manuals, codes of conduct and partner information made available to the Partner, including via any partner portal made available;
  4. information relating to the terms upon which Evergen Services are to be marketed, distributed, provisioned and sold pursuant to this Agreement, including the terms of this Agreement; and
  5. Evergen’ Intellectual Property Rights;
    “control” and “controlling” have the meanings given in the Corporations Act 2001 (Cth);
  Corporations Act means the Corporations Act 2001 (Cth);
  
  Disclosing Party means the party disclosing the Confidential Information;
  
  End Customers means an individual customer of the Partner for whom the Partner has sold and installed a home energy storage system comprising one or more interconnected solar cell(s) and/or battery(ies) supplied by Evergen and Partner has placed an Order for Evergen Services.
  
  Force Majeure means a circumstance beyond the reasonable control of the parties and which results in a party being unable to observe or perform on time an obligation under this Agreement (excluding the obligation to make payments). Such circumstances include:
  1. acts of God, lightning strikes, earthquakes, floods, droughts, storms, tempests, mud slides, washaways, explosions, fires and any natural disaster;
  2. acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution;
  3. interruptions or outages to utilities, including blackouts, brown outs, failures of or interruptions to electricity or communications networks or facilities.
    Evergen means Pacific 2022 Bidco C Pty Limited Trading as Evergen (ABN 75 662 385 346).
  Evergen Services means the Evergen’s “Intelligent Control” optimization software, Level One support for End Customers and any other Evergen products, solutions and services described in [the Commercial Details].
  
  Initial Period means the 2-year period starting on the Commencement Date;
  
  Insolvency Event in relation to a person means:
  1. it is (or states that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act);
  2. it has had a Controller appointed, or is in liquidation, in provisional liquidation, under administration or wound up or has had a Receiver appointed to any part of its property;
  3. it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other party);
  4. an application or order has been made, resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of (a), (b) or (c) above;
  5. it is taken (under section 459(F)(1) of the Corporations Act) to have failed to comply with a statutory demand;
  6. it is the subject of an event described in section 459(C)(2)(b) or section 585 of the Corporations Act (or it makes a statement from which a party reasonably deduces it is so subject);
  7. it is otherwise unable to pay its debts when they fall due; or
  8. something having a substantially similar effect to any or all of (a) to (g) happens in connection with that person under the Law of any jurisdiction;
  Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, trade marks, trade secrets, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967 including any modifications, improvements, adaptations or enhancements and Intellectual Property has a corresponding meaning;
  
  Law means laws, acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements and directions of any relevant Commonwealth, State or Local Government Departments, Government Agencies, bodies and public authorities, in force from time to time;
  
  Order means a request by Partner to Evergen in writing (or using the Evergen system for which access may be provided to Partner from time to time) for the supply and provision of the Evergen Services to End Customers;
  
  Personnel means in relation to a body corporate, that body corporate’s directors, officers, employees, agents, contractors and subcontractors and employees of its agents, contractors and subcontractors;
  
  Receiver includes a receiver or receiver and manager;
  
  Receiving Party means a party that receives Confidential Information from a Disclosing Party under this Agreement;
  
  Related Body Corporate has the meaning given in the Corporations Act;
  
  Partner means the party named as “Partner” in [the Commercial Details].
  
  Sales Targets means the sales targets and other KPIs set out in [the Commercial Details];
  
  Territory means the territory described in [the Commercial Details].
APPOINTMENT AS PARTNER
1. Effective as of the Commencement Date, Evergen appoints, and Partner accepts the appointment, on a non-exclusive basis, to:
  1. advertise, market and resell the Evergen Services; and
  2. if agreed by Evergen, provide implementation services for the Evergen Services (in accordance with clause 6), solely to End Customers [in the Territory] in accordance this Agreement.
2. In consideration of the promises made and the obligations assumed by the Partner under this Agreement, Evergen may choose from time to time to pay the Partner or extend to the Partner the benefits (as applicable) listed in your agreement (Partner Volume Rewards).
3. Without affecting the Partner’s accrued rights or entitlements, Evergen reserves the right to change or withdraw the Partner Volume Rewards at any time in its sole discretion.
4. Partners must meet or exceed the Sales Targets and any other key performance indicators (KPIs) as notified to Partner by Evergen and as may be updated by Evergen for each subsequent performance period.
5. The Partner acknowledges and agrees that it has certain legal, licensing and regulatory requirements specific to its role within the energy sector, and it will maintain compliance with those requirements at all times under this Agreement. Evergen is in no way responsible for verifying and ensuring that the Partner is compliant with those requirements, and the Partner indemnifies Evergen for any loss or damage caused or contributed to by Partner’s failure to maintain compliance.
6. Controls in relation to (i) anti-bribery and anti-corruption, (ii) anti-money laundering, (iii) trade sanctions/controls, and (iv) modern slavery. The Partner indemnifies Evergen for any loss or regulatory action resulting from the Partner’s failure to maintain sufficient policies and controls in those respects, and understands that Evergen may terminate the Agreement for any possible or actual breach of this clause.
7. The Partner acknowledges that it, via the Control Agreement or other legally binding arrangements with its Clients, shall obtain all legally required consents from each End Customer in written form to allow Evergen to meet its obligations under the Control Agreement between Evergen and such End Customer, including without limitation the express consent from those End Customer for Evergen to commission each Device and obtain data from the End Customer’s Device and process the data for the provision of services to the End Customer under the Control Agreement.
END CUSTOMER AGREEMENTS Evergen Services will be licensed (by rights of access being granted to the Evergen Platform) to End Customers terms found here (EULA).
1. Engagements for services provided to End Customers outside of the Evergen Services will be provided under individual contracts with those End Customers.
  Partner must comply with, and must ensure each End Customer (and each end user of the Evergen Services) complies with, Evergen’s required subscription terms of use, EULA, policies – including EULA, Privacy Policy (as set out here) and all Laws applicable to the use of the Evergen Services.
END CUSTOMER ORDERS
1. This Agreement will apply to all Orders placed after the Commencement Date.
  The Partner will comply with the ordering process as specified in the website located here.
2. Where an End Customer wishes to place an Order for Evergen Services with Partner, Partner will place an Order via the website located here or a partner portal.
3. Partner will act as a partner of those Services and:
  1. Partner will order and pay Evergen for the Evergen Services at the price listed on Evergen’ Pricing Guide provided to Partner and as updated from time to time by Evergen.
  2. Partner will resell the Evergen Services to the End Customer at a price determined by Partner in its sole discretion.
  3. Evergen may recommend a suggested retail price for Evergen Services, however, Partner is solely responsible for determining the price at which it resells to End Customers.
  4. As between Evergen and Partner, Partner will bear the risk of non-payment by the End Customer
IMPLEMENTATION AND PROFESSIONAL SERVICES
1. Where Evergen’s professional services are required for implementation of Evergen Services for an End Customer, Evergen may provide those services directly or Partner will act as the provider and will pay Evergen the relevant fees as set out in the applicable statement of work, at the rates set out in the Pricing Guide or as otherwise agreed in writing for the specific engagement.
2. Where professional services are provided for resale, they will be on the terms of Evergen’s statement of work for each engagement.
PAYMENT TERMS
1. Unless otherwise specified in relevant invoice:
  1. Evergen will issue an itemised invoice relating to all confirmed Orders in a consolidated format on a monthly basis, on the 1st day of each month or such other date as Evergen determines from time to time.
  2. All invoices will be paid in full and without set off or deduction within 30 days of the date of receipt of the applicable invoice.
PRICING GUIDES
1. Evergen will provide its current pricing in its Pricing Guide (including recommended resale prices for End Customers) and provide at least 30 days prior notice of changes to the Pricing Guide.
2. Evergen’ Pricing Guide will be its standard Australian partner Pricing Guide (being the pricing made available generally to Evergen’ partner network in Australia).
BUSINESS PLAN, SALES STRATEGY AND FORECASTING
1. The Partner will:
  1. at the Commencement Date, and each quarter during the Agreement, execute and then revise a Business Plan, Sales Strategy & Forecast as required by Evergen;
  2. keep Evergen informed of all tangible opportunities for Evergen Services in the Territory (Opportunity). For each Opportunity which is considered suitably promising, the parties will determine an approach which is aimed at maximising the opportunity for both parties including:
    1. which party will lead the Opportunity or whether the parties will team together, and the plan for sales activities
    2. the plan for sales activities for the Opportunity, which will be outlined and agreed to an appropriate level of detail (Opportunity Plan).
  3. update and adjust the Opportunity Plan to meet circumstances as they develop.
2. Partner will comply with the “Partner Code of Conduct” (as it becomes available and is provided by Evergen, which may include via a partner portal).
MARKETING
1. Partner will use all reasonable efforts to market Evergen Services [in the Territory] and will engage sufficient Personnel to satisfy its obligations under this Agreement.
2. Each party will act in a manner aimed at supporting and enhancing the good will and reputation of the other.
3. At its discretion, Evergen may provide relevant promotional and marketing materials to Partner for use for the purposes of the Agreement.
4. At its discretion, Evergen may make Personnel available to support Partner’s on-site (or remote) sales visits and demonstrations to potential End Customers, at Partner’s cost or as otherwise agreed between the parties in a statement of work or Order.
5. Partner will regularly report to Evergen (at least each month and as otherwise required by Evergen) on its marketing and sales of Evergen Services under the Agreement and its performance against KPIs.
6. Partner agrees that Evergen may publicly announce the Partnership between Evergen and Partner, and grants Evergen a limited, revocable, non-assignable and non-sublicensable licence to use Partner’s trade marks, logos and related branding and materials in connection with the announcement.
7. Partner must not may make any representation, warranty or claim to End Customers concerning the Services or services of the other party, except as expressly permitted by Evergen.
RESELLING EVERGEN BRANDED SERVICES
1. Evergen will provide a limited, revocable, non-assignable and non-sublicensable licence to Partner to use Evergen’ “Evergen” trade marks, logos and related branding and materials only as approved by Evergen (including as set out in this clause 10).
2. Partner will only use the trade marks and branding in accordance with Evergen’ guidelines (which will be notified to Partner and may be included in a partner portal and/or operations manual) and in accordance with its obligations in this Agreement.
3. Partner must not use any Evergen trade marks, logos or branding (including any business or company or brand names, “Evergen” or “Evergen”) or anything the same or similar, in any URLs or domain names, or in any business, company or trading names.
PARTNER USE OF EVERGEN SERVICES
1. For the term of the Agreement, Evergen will grant a free-of-charge, non-exclusive, non-assignable and non-sublicensable, royalty-free licence to use the Evergen Services, and associated documentation and e-Learning tools, for the following limited purposes:
  1. to exercise Partner’s licensed rights under the Agreement;
  2. to receive and provide training for Partner Personnel;
  3. to perform demonstrations for End Customers;
  4. if agreed by Evergen for an individual case, to offer potential End Customers trial licences to evaluate the Evergen Services;
  5. for the purpose of end user support and/or any preliminary trouble shooting, and
  6. to copy and distribute Evergen documentation and to incorporate the documentation (or parts of it) into or with Partner’s documentation (in the manner and form approved by Evergen).
2. The licence does not include any use of Evergen Services for live production use by Partner for its internal business (as if an End Customer) and any such use will be subject to separate terms and conditions.
3. Partner must not (and must not authorise any third party) to:
  1. modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Evergen Services (except to the extent enforcement of these restrictions is prohibited by applicable law);
  2. circumvent any user limits or other timing, use or functionality restrictions built into the Evergen Services;
  3. remove any proprietary notices, labels, marks or branding from the Evergen Services;
  4. frame or mirror any content forming part of the Evergen Services; or
  5. access the Evergen Services in order to: (i) build a competitive product or service; or (ii) copy any ideas, features, functions or graphics of the Evergen Services.
4. During the Term, Partner must not:
  1. Directly or indirectly market, promote, or solicit customers or subscriptions for, supply, sell or re-sell any product or service in conjunction with the Evergen Services (unless with the prior written approval of Evergen);
  2. Have any controlling interest in any entity that markets, promotes, sells or provides any product or service in competition with the Evergen Services;
  3. Enter into any agreements with any provider to resell, redistribute, sub-license or otherwise commercialise any product or service that competes with the Evergen Services; or
  4. Display on its website or elsewhere any advertising or marketing materials or any provider or any product or service that competes with the Evergen Services.
5. Partner is responsible for compliance with all Laws applicable to its and the End Customers use of the Evergen Services in the Territory.
6. Nothing in this Agreement prohibits or restricts Evergen from marketing or selling any Evergen products or services to any End Customer.
TRAINING
1. At its discretion, Evergen may provide a reasonable degree of initial training for Partner Personnel.
2. Evergen may provide training on-site or remotely (via its nominated communications platform) and will advise the Partneraccordingly.
3. Ongoing training will be as per the Evergen’s discretion and notifications, which include as notified as part of a partner enablement program (to be made available to Partner) for ongoing training and accreditation, as it becomes available.
SUPPORT SERVICES
1. Unless Evergen notifies Partner otherwise, Evergen will provide Level One support for End Customers.
2. All support services, either End Customer direct or via Partner, must be provided on the technical support application chosen by Evergen.
3. Partner must provide prompt on-site and second tier and above support to End Customers, including all support in respect of solar cells, batteries and any related hardware. Partner will undertake any requisite repairs within 7 business days and replacement within 14 business days, in either case from any notification by Evergen.
4. If Partner fails to provide adequate on-site and second tier and above support to End Customers as directed by Evergen, Evergen may notify Partner to cease providing that support and Partner will comply with any directions of Evergen relating to the provision and transition of support services.
TERM AND TERMINATION
1. Subject to clause 14.2, the Agreement will be for the Initial Period, unless earlier terminated in accordance with its terms.
2. Partner will be entitled to succeeding one-year renewals after the Initial Period and each subsequent year of the Agreement if Partner has met or exceeded its KPIs and has otherwise complied with and is not in breach of this Agreement.
3. Either party will be entitled to terminate the Agreement on written notice upon:
  1. any material breach which has not been remedied for 30 days after written notice to the breaching party;
  2. an Insolvency Event occurs to or in relation to the other party;
  3. material reputational harm caused by the other party or its activities, or
  4. infringement of that party’s Intellectual Property Rights.
4. Evergen may terminate this Agreement immediately on written notice if Partner :
  1. Is subject to a change in control without the prior written consent of Evergen;
  2. Breaches clauses 14.3 or 14.4; or
  3. Infringes any Evergen Intellectual Property Rights.
CONSEQUENCES OF TERMINATION
1. Upon expiration or termination of the Agreement and except to the extent reasonably required as set out in the remainder of this section below:
  1. all licences and rights granted to the other party under the Agreement will immediately terminate;
  2. each party will, at the other party’s option, destroy or deliver to the other party all of that other party’s proprietary information and Confidential Information; and
  3. all payment, Intellectual Property and confidentiality provisions will continue to apply, together with all provisions reasonably intended to survive termination or expiration of the Agreement.
2. Except where the Agreement has been terminated for breach by Partner, the terms and conditions of the Agreement will continue to apply to:
  1. services and support for then-current End Customers
  2. any Orders accepted by Evergen prior to the termination date;
  3. provided that, to avoid doubt, the Partner will not be entitled to place new Orders following expiration or termination.
3. Where the Agreement has been terminated for breach by the Partner , the Partner must
  1. provide all other assistance required by Evergen to transition the performance of the activities performed by the Partner under this Agreement to Evergen or any third party nominated by Evergen (which may include assigning, novating or otherwise transferring any End Customer agreements or other relevant contracts, as directed by Evergen); and
  2. Partner must immediately pay to Evergen any and all amounts due and payable to Evergen.
CONFIDENTIALITY
1. The parties must keep the Confidential Information of a party confidential and must not use the Confidential Information of the other party except for the purpose of performing its obligations or exercising its rights under this Agreement and must not disclose that Confidential Information except to those of its Personnel (and the Personnel of its subcontractors) who:
  1. have a need to receive it (and only to the extent that such person has a need to receive it); and
  2. have been made aware of its confidential nature and agreed to maintain its strict confidence.
2. The obligations of confidentiality under this clause 19 do not apply to the extent that information is (whether before or after the Commencement Date):
  1. rightfully known to, or in the possession or control of the Receiving Party and there is no obligation of confidentiality on the Receiving Party;
  2. generally, and publicly available otherwise than as a result of a breach by the Receiving Party of this Agreement;
  3. required to be disclosed by Law;
  4. developed independently by the Receiving Party; or
  5. obtained by the Receiving Party from a third party without the obligation of confidentiality.
INTELLECTUAL PROPERTY RIGHTS
1. Ownership of Intellectual Property Rights
  1. Evergen will own all Intellectual Property Rights in and in relation to Evergen Services, including all modifications, developments, changes of any nature and any new Intellectual Property Rights that may arise from any services provided in relation to the Evergen Services.
  2. Any new Intellectual Property Rights created by or on behalf of one party in or in relation to Evergen’ Products are automatically assigned upon creation to Evergen and Partner must (and must procure that the party responsible for creation of those new Intellectual Property Rights will, and will ensure that its relevant Personnel), execute all documentation reasonably required to effect the assignment and perfect ownership of such Intellectual Property Rights by Evergen.
2. Intellectual Property Rights Indemnity
  1. Each party will indemnify the other from and against all claims, demands, proceedings, liabilities, losses and reasonable costs and expenses (Claims) that are awarded by a court of competent jurisdiction or arbitration panel directly arising from or in connection with any Claims that the provision of a party of its services (the Indemnifying Party) infringes any Intellectual Property Rights or breach of any obligation of confidentiality owed to the other party (the Indemnified Party).
  2. The Indemnified Party must:
    1. Promptly notify the Indemnifying Party in writing of the Claim (and any threat of a Claim) and any subsequent updates;
    2. Cooperate with the Indemnifying Party in the defence of the Claim (including any statements to third parties regarding the Claim) and grants the Indemnifying Party full and exclusive control of the defence and settlement of the Claim and any subsequent appeal.
  3. If the Indemnified Party fails to notify the Indemnifying Party of the Claim, and that failure prejudices the Indemnifying Party’s ability to defend, settle or respond to the Claim, then the Indemnifying Party’s obligation to defend or indemnify the Indemnified Party with respect to that Claim will be reduced to the extent prejudiced. In addition, such failure to provide notification will relieve the Indemnifying Party of any obligation to reimburse for legal fees incurred prior to notification.
  4. If a Claim is made or appears likely, the Indemnified Party agrees to take all reasonable steps to mitigate any loss suffered or incurred and agrees to permit the Indemnifying Party to procure (or endeavour to procure) the right to continuing using the product the subject of the Claim or to replace of modify the product with one that is at least functionally equivalent.
  5. Where Evergen is the Indemnifying Party, it will have no obligation or liability for any Claim based on:
    1. Compliance with any designs, specifications or requirements or instructions provided by the Indemnified Party or on their behalf;
    2. Modification of the Indemnifying Party’s services (including the Evergen Services) by the Indemnified Party or a third party;
    3. The amount or duration of use or the Evergen Services, revenue earned by the Indemnified Party, or services offered by the Indemnifying Party to external or internal customers; or
    4. Combination, operation or use of the Evergen Services with other services, software or business processes.
  6. This clause states the Indemnifying Party’s entire obligation and liability and the Indemnified Party’s exclusive and sole remedies regarding any claim for Intellectual Property Rights infringement.
WARRANTIES AND LIABILITY
1. Warranties
  1. Each party warrants that:
    1. it has the right and authority to enter the Agreement;
    2. it has the right and authority to grant the licences and rights under the Agreement to the other party;
    3. it is compliant (and will maintain compliance) with all respective legal, licensing and regulatory requirements applicable to their role within the energy sector, and
    4. any services provided under the Agreement will be provided with due care, skill and in a workmanlike manner in accordance with generally accepted standards of professional care and skill applicable to the type of work performed.
2. Liability
  1. Nothing in this Agreement limits or excludes the liability of one party to the other for:
    1. Bodily injury or death resulting from the negligence of the other party;
    2. Fraud or fraudulent misrepresentation;
    3. A breach of clause 16 (Confidential Information) or under clause 17.2 (Intellectual Property Rights Indemnity); or
    4. Any liability that cannot be limited or excluded under applicable Law.
  2. Subject to clauses 18.2(a) and 18.2(c), Evergen’s total aggregate liability to Partner is limited to the sum of money paid to Evergen under this Agreement during the twelve (12) month period prior to the event of circumstance that first gave right to such liability.
  3. Notwithstanding anything else in this Agreement to the contrary, Evergen will not be liable for any:
    1. installation, maintenance, repair and replacement or any other issues relating to of solar cells, batteries or any related hardware;
    2. Special, indirect or consequential loss or damages;
    3. Loss of any of the following: profits, revenue, business, anticipated savings, use of any product or service, opportunity, goodwill or reputation;
    4. Lost or damaged data; or
    5. Wasted expenditure (other than expenditure necessarily incurred to discharge the innocent party’s duty or to mitigate losses).
  4. References in this clause 18.2 to: (i) a “party” includes a party’s affiliates, officers, directors, employees, agents and suppliers; and (ii) “liability” includes liability arising from contract, tort (including negligence), under any indemnity, strict liability or otherwise, in each case even if a party has been informed of the possibility of that liability. In sub-clause (c), references to “loss” refers to any and all kinds or loss or damage including any damages, fines, costs, charges, fees or other liability.
RECORDS AND AUDIT
1. Partner must keep full and proper books of accounts and records showing clearly all transactions to which this agreement relates for a period of 7 years, or longer if required by Law.
2. Evergen has the right to audit and inspect, and appoint one or more Auditors to audit and inspect any premises, systems, documents, records, practices, data and matters as it requests.
3. Partner must permit the audits and inspections referred to in clause 19.2.
4. Auditors are any auditors which Evergen nominates in writing from time to time.
5. If requested by Evergen or any Auditor, Partner must answer any questions relating to the audit or inspection in writing.
6. Partner must provide all reasonable assistance required by Evergen or any Auditor.
7. If an audit or inspection reveals any breach of this agreement by Partner , then Partner r must take remedial action including complying with any reasonable directions or instructions from Evergen.
8. Subject to clause 19.9, each party will bear its own costs associated with audits and inspections.
9. If an audit or inspection reveals that Partner has underpaid Evergen or that Partner has breached this agreement, Partner will be responsible for Evergen’s audit and inspection costs and must immediately pay any amounts underpaid to Evergen as a debt due and payable and must reimburse Evergen for all audit and collection costs following any request by Evergen to do so.
DISPUTES
1. The parties must in good faith attempt to resolve between themselves any dispute, controversy or claim arising out of, relating to or in connection with this Agreement, including any question regarding its existence, validity or termination (Dispute).
2. If a Dispute arises, a party (Referring Party) must give notice (Dispute Notice) to the other party. The Dispute Notice must:
  1. be in writing;
  2. state that it is given pursuant to this clause 20;
  3. include or be accompanied by reasonable particulars of the Dispute; and
  4. be given within ten days of the Referring Party first becoming aware of the circumstances giving rise to the Dispute.
3. The parties must negotiate in good faith with a view to resolving the Dispute within ten (10) days after the receipt of the Dispute Notice (or such other period as may be agreed by the parties in writing).
4. If a Dispute is not settled in accordance with clause 23.3, then either party may refer the Dispute to arbitration in accordance with the ACICA Arbitration Rules. The seat of arbitration shall be Sydney, Australia. The language of the arbitration shall be English. The arbitration award shall be final and binding on the parties.
5. A party must not commence court proceedings relating to a Dispute, except where that party seeks urgent interlocutory relief.
GENERAL
1. Independent contractors
  The parties are and shall remain independent contractors, and nothing in the Agreement will be construed to create a partnership, agency or joint venture between them. No fiduciary obligations exist between the parties.
2. Taxes
  Partner will pay any taxes and duties levied by any authority on or in connection with this Agreement (other than income taxes payable by Evergen). This includes the amount of any GST or other value added tax according to the following principles: where Evergen is liable (whether directly or via a GST group of which Evergen is a member) to pay GST on any amount received from Partner relating to this Agreement, Partner will, following receipt of a tax invoice from Evergen, at the same time reimburse Evergen the amount of the GST. Terms used in this clause have the meanings defined in the GST Law as that term is defined in the A New Tax System (Good and Services Tax Act) 1999 or any legislation substituting, varying or replacing that Act or any other similar or applicable tax law.
3. Non-solicitation
  Subject to applicable law, during the term of the Agreement and for a period of three months after its expiration or termination, neither party will actively solicit any officer or employee of the other party.
4. Assignment
  Partner may not assign or transfer any of the rights or responsibilities in the Agreement without the express written consent of Evergen. Evergen may assign this Agreement or novate it to any third party (acting reasonably) and Partner consents to such action and will execute any documentation reasonably required to give effect to that action.
5. Press release
  Partner will not issue publish (whether on its website or otherwise) or issue any press release regarding the relationship established by the Agreement without the prior written consent of Evergen.
6. Force Majeure
  No party is liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure. If a delay or failure of a party to perform its obligations is caused by Force Majeure, the performance of that party’s obligations will be suspended. If a delay or failure by a party to perform its obligations due to Force Majeure exceeds ninety (90) days, either party may terminate the Agreement on providing notice in writing of one (1) month to the other party.
7. Law and jurisdiction
  The validity, performance, construction and effect of the Agreement will be governed by the laws of the State of New South Wales, Australia, and the parties submit to the jurisdiction of the courts of that State
8. Counterparts
  This Agreement may be signed electronically in two counterparts.

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