THE PARTIES AGREE as follows:
1 Referral of Borrowers
From time to time the Referrer may refer a Borrower to the Direct Writer. “Borrower” means a person who applies (or who may potentially apply) to borrow money through the Direct Writer. The Referrer has obligations under this agreement to ensure that they comply with regulations 9AB and 25(4) of the National Consumer Credit Package (NCCP) Act. The Referrer obligations are:
1.1 only engage in credit activities as a referrer incidentally to another business you are carrying on
1.2 not charge a fee to the consumer for the referral
1.3 only inform the consumer that the Direct Writer is able to arrange loans and leases but not any particular product, and not provide any recommendations or advice concerning loans or leases
1.4 inform the consumer of any commissions or other benefits you as the Referrer may receive
1.5 obtain the consent of the consumer to pass their name, contact details and a short description of the purpose for which the consumer may want the credit or lease
1.6 pass the consumer’s contact details to the Direct Writer within five business days of informing the consumer that the Direct Writer is able to arrange loans and leases but you as the Referrer cannot comment on any particular product
Subject to outsource financial receiving upfront commission and trail commission from the lender in relation to drawn down loans introduced by the Referrer to the Direct Writer, and further subject to the provisions of this clause, outsource financial will distribute the commission it receives in accordance with Item 4 of the Schedule:
2.1 The Direct Writer may be entitled to receive a commission from outsource financial pursuant to a Direct Writer Agreement that the Direct Writer has with outsource financial (‘Direct Writer Agreement’).
2.2 A commission in accordance with the percentages set out in Item 4 of the Schedule may be paid to the Direct Writer for all drawn down loans introduced by the Referrer to the Direct Writer. It shall be the Direct Writer’s responsibility to notify outsource financial and identify which Borrowers have been referred by the Referrer.
2.3 A commission in accordance with the percentages set out in Item 4 of the Schedule may be paid to the Referrer for all drawn down loans introduced by the Referrer to the Direct Writer.
2.4 In the event that the Direct Writer ceases to be a Direct Writer to outsource financial as a result of the termination of the Direct Writer Agreement (whether the termination is made by outsource financial or the Direct Writer) or otherwise, the Referrer shall, subject to clawback policies of outsource financial and the clawback policies of relevant lenders and the provisions of clause 2.5, continue to be entitled to receive commission for all drawn down loans, save that outsource financial shall only continue to pay accrued trail commission provided that the proportion of trail commission payable to the Referrer under this Agreement shall not be less than one hundred and fifty dollars ($150.00) per calendar month, in which instance the Referrer expressly acknowledges that outsource financial shall no longer be obliged under this Agreement to pay any ongoing trail commission to the Referrer.
2.5 The Direct Writer and Referrer acknowledge that they have been made aware that any and all commissions paid under this Agreement are and will be subject to the following clawback policy:
(a) Clawback shall have the meaning generally attributed to it by participants in the Australian Banking and Finance Industry, and additionally, but without limiting the generality of the foregoing “clawback” means “the right in terms of the relevant agreement that a lender may have to require that a Direct Writer to that lender of a loan reimburse to the lender part or all of the upfront fee and/or trail fee previously paid or payable by the lender to the Direct Writer”.
(b) If in its reasonable opinion outsource financial believes that a clawback is imminent outsource financial may withhold payment of any monies relating to the loan(s) in question otherwise payable to the Direct Writer and/or the Referrer for a period of twelve months from the date of the last settlement of the last loan settled through outsource financial.
(c) Any clawback by outsource financial shall be made in proportion to the commission paid between the Direct Writer and Referrer under this Agreement.
(d) The Referrer is liable to outsource financial for any loss incurred by outsource financial as a result of any clawback required to be made by outsource financial of any of the commissions paid to the Referrer under this Agreement.
(e) The Direct Writer is liable to outsource financial for any loss incurred by outsource financial as a result of any clawback required to be made by outsource financial of any of the commissions paid to the Direct Writer and the Referrer under this Agreement .
(f) In relation to a clawback of any of the commissions paid to the Referrer under this agreement, outsource financial agrees to first attempt to recover the relevant commissions from the Referrer directly, failing which outsource financial will immediately become entitled and recover the relevant commissions directly from the direct writer who at all times remains liable for any losses suffered by outsource financial resulting from any clawback of the Referrer’s commissions that were paid under this Agreement.
(g) Nothing in clauses 2.5(d), 2.5(e) and 2.5(f) shall affect, negate or limit the Direct Writers and the Referrer’s liability to outsource financial under this Agreement.
2.6 Outsource financial will pay an additional amount to the Direct Writer and Referrer on account of GST only if:
(a) the fee paid to outsource out of which outsource pays the fee to the Direct Writer and Referrer is paid under an agreement containing a provision which specifically entitles outsource to recover an additional amount on account of GST from the Lender; and
(b) outsource financial has received from the lender such additional amount.
2.7 The Referrer may assign their interest under this Agreement subject to:
(a) obtaining the prior written consent of outsource financial (which consent shall not be unreasonably withheld); and
(b) granting first option to the Direct Writer and second option to outsource financial to acquire the Referrer’s interest at a market comparable price to be agreed at the time of purchase; and
(c) paying to outsource financial a consent fee prescribed by outsource financial from time to time.
2.8 The Direct Writer may assign their interest under this Agreement subject to:
(a) obtaining the prior written consent of outsource financial (which consent shall not be unreasonably withheld); and
(b) granting first option to the Referrer and second option to outsource financial to acquire the Direct Writers’s interest at a market comparable price to be agreed at the time of purchase; and
2.9 For the purposes of this Agreement it is agreed that outsource financial can issue Recipient Created Tax Invoices in respect of supplies made by the parties under this Agreement, and
(a) the Direct Writer or Referrer will not issue Tax Invoices in respect of supplies made by under this Agreement; and
(b) outsource financial acknowledges that it is registered for GST at the date of this Agreement and will notify the parties if it ceases to be registered;
(c) the Direct Writer acknowledges that it is registered for GST at the date of this Agreement and will notify outsource financial if it ceases to be registered; and
(d) the Referrer acknowledges that it is registered for GST at the date of this Agreement and will notify outsource financial if it ceases to be registered
and the parties agree to enter into a Recipient Created Tax Invoice Agreement.
3.1 This Agreement may be terminated:
(a) immediately by outsource financial giving written notice to the Direct Writer and Referrer if a Default Event occurs. “Default Event” means the occurrence of any one of the following:
(i) if the Direct Writer or Referrer enters into a scheme of arrangement with its creditors;
(ii) if an order is made or a resolution is passed for the winding up of the Direct Writer or Referrer;
(iii) a liquidator, receiver or official manager is appointed in respect of the Direct Writer or Referrer or if the Direct Writer or Referrer otherwise is insolvent or commits any act of insolvency;
(iv) the Direct Writer or Referrer is struck from the roll of any professional body of which they are a member;
(b) immediately by outsource financial by written notice to the Direct Writer and Referrer where the Direct Writer or Referrer commits a Material Breach. A Material Breach includes any of the following:
(i) any act of dishonesty or fraud or misrepresentation by the Direct Writer or by the Referrer or both in relation to any matter under this Agreement;
(ii) any act or omission by the Direct Writer or by the Referrer or both whereby any application for a loan is or becomes void or voidable by a customer.
(c) by any party giving 21 days written notice to the other.
3.2 Upon termination of this Agreement under clause 3.1 (a) or clause 3.1 (b) outsource financial may withhold payment of any moneys payable by outsource financial to the Direct Writer or to the Referrer as a result of a Default Event.
3.3 Upon termination of this Agreement under clause 3.1 (c), each party must pay to the other party all monies owing.
4 Dispute Resolution
4.1 Outsource financial, the Direct Writer and the Referrer agree to comply with the following dispute resolution procedure:
(a) Where a party has a dispute with another party, the complainant may start the procedure set out in this clause by telling the respondent in writing the nature of the dispute, what outcome the complainant wants, and what action the complainant thinks will settle the dispute.
(b) The parties must make every effort to resolve the dispute by mutual negotiation.
(c) If the parties are unable to resolve the dispute within 21 business days of service on the respondent of the notice referred to in paragraph (a), either party may refer the matter to a mutually agreed mediator.
(d) If no agreement can be reached on an appropriate mediator, either party may ask the chief executive officer for the time being of the Mortgage & Finance Association of Australia/Finance Brokers Association of Australia to appoint a mediator.
(e) The mediator may decide the time and place for mediation and the parties must attend the mediation and try to resolve the dispute.
(f) The parties must bear the costs of mediation on an equal basis unless they agree otherwise.
(g) The parties must pay for their own costs of attending the mediation.
(h) If a dispute arises between the Direct Writer and the Referrer which is not resolved between them, outsource financial acting as an expert mediator or adjudicator as it reasonably thinks appropriate to the matter may determine the matter and its decision shall be binding on the parties.
5 General Provisions
5.1 Each party agrees to bear its own legal and other costs and expenses of and incidental to the preparation, execution of this Agreement and related documentation on this Agreement.
5.2 This Agreement is governed by and construed in accordance with the laws of New South Wales and the parties agree to submit to the non-exclusive jurisdiction of that State.
5.3 Nothing in this Agreement is to be treated as creating a partnership between the parties, and none of the parties shall, for any purpose, be deemed to be an agent of the other party.
5.4 References to the singular include the plural, references to one gender include all genders and references to the word "person" includes a firm, body corporate, unincorporated association, corporation or government authority or body.
5.5 References to a person also include reference to the person's executors, administrators and successors.
5.6 Headings do not affect interpretation in any way.
5.7 Any notice to be given to a party to this Agreement must be given in writing.
6 Definitions and Interpretation
“ASIC” Australian Securities & Investment Commission - ASIC is the consumer protection regulator for financial services.
“Australian Credit Licence” is required and is part of a national licensing regime to require providers of consumer credit and credit-related brokering services and advice to obtain a licence from ASIC.
“Commission” means trail commission and upfront commission.
“Finance Brokers Association of Australia” means the professional body covering the mortgage industry or any organisation or body that approximates it.
“Mortgage & Finance Association of Australia” means the professional body covering the mortgage industry or any organisation or body that approximates it.
“NCCP” means the National Consumer Credit Protection Reform Package comprising the National Consumer Credit Protection Act 2009, the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009, all other related Acts and ASIC guidance.
Referrer” means a referral is made as part of a business or incidental to a business, of which the referrer may be acting as an intermediary
“trail commission” means ongoing fees payable to outsource in connection with settled loans by the relevant lender.
“upfront commission” means the once only fee paid by the Lender to outsource financial following settlement of a loan.