Agent and AMAILA Terms

AGENT and AMAILA Terms

The Agent and AMAILA agree as follows:

Agent means the person or entity applying to become an agent via the Website

Agent Terms of Engagement means the standard terms of engagement between the Agent and a Client which apply if a Client wishes to engage an Agent to answer a Question in accordance with the AMAILA Terms which can be accessed here or otherwise via the Website

AMAILA means Australian Migration Agent and Immigration Lawyer Association Pty Ltd

AMAILA Terms means AMAILA’s Website Terms of Use which can be accessed here or otherwise via the Website  

Answer has the same meaning as it does in the AMAILA Terms

Client means a person or entity which submits a Question, requests a quote, participates in the Comparison Service or otherwise requests services to be provided to them via the Website

Client Comparison Terms of Engagement means terms of engagement agreed between an Agent and a Client relating to services to be provided by an Agent to a Client as a result of the Client utilising the Comparison Service in accordance with the AMAILA Terms

Comparison Service means promotions to clients in relation to specific visa subclass applications whereby Clients are offered promotional rates referred to in the AMAILA Terms as the comparison service

Confidential Information includes, without limitation, any information marked as confidential and any information received or developed by the Agent during the existence of this Agreement which is not publicly available and relates to a Client, AMAILA or any Related Body Corporate of the Client or AMAILA

Question has the same meaning as it does in the AMAILA Terms

Related Body Corporate has the meaning given in section 50 of the Corporations Act 2001 (Cth)

Ticket System means the “ticket” system which is accessible by clicking “contact us” via the private Agent dashboard on the Website and which permits Agents to generate “tickets” and submit communications to AMAILA using “tickets”

Website means www.ask-an-agent.com.au and includes its subdomains

1           AGENT OBLIGATIONS, ACKNOWLEDGEMENTS AND WARRANTIES

1.1       Terms: The Agent must act in good faith in all dealings with AMAILA, comply with the AMAILA Terms, all Agent Terms of Engagement and any Client Comparison Terms of Engagement.  Agents must not enter into any terms or conditions with Clients which conflict with the terms and conditions in the AMAILA Terms or the Agent Terms of Engagement.

1.2       Answers to Questions: If the Agent accepts a Question in accordance with the AMAILA Terms, the Agent must then provide an Answer and, if applicable, an Answer to a clarification question in accordance with the procedure and terms set out in the AMAILA Terms in a professional manner.

1.3       Comparison service: From time to time, AMAILA may invite the Agent in writing to participate in specific promotions that that AMAILA intends to promote to one or more Clients as part of the Comparison Service.  Such invitations or communications may require the Agent to provide certain information and/or provide certain specified documentation in order to participate in the relevant Comparison Service such as a template contract between the Agent and any Clients wishing to participate in the relevant Comparison Service (Template Comparison Service Contract).  By responding to AMAILA in the manner requested by AMAILA or otherwise continuing to participate in the relevant Comparison Service, the Agent agrees:

            (a)  to do so in accordance with the AMAILA Terms, and any terms and conditions which have been specified by AMAILA in writing which apply to the relevant Comparison Service such as fixed total professional fees to be charged by the Agent to the Client;

            (b)  that AMAILA may in its absolute discretion provide or decide not to provide any information (including contact details) or documentation supplied by the Agent to Clients for the purposes of promoting the relevant Comparison Service and/or the Agent and/or enabling the Client to contact the Agent; 

            (c)  that the Agent will not at any time amend, vary, alter, add to, delete, or otherwise change the terms and conditions contained in relevant Template Comparison Service Contract other than by inserting the relevant Client details with whom the Agent decides to engage for the relevant Comparison Service, unless such changes have been expressly and specifically authorised in writing by AMAILA; and

            (d)   that the Agent will only engage with the Client for the relevant Comparison Service on the terms and conditions contained in the Template Comparison Service Contract, and hereby agrees with AMAILA to do so in accordance with the resulting contract (which is to be in the same form as the Template Comparison Service Contract except as otherwise permitted under this agreement) between the Agent and the Client.

1.4       Acknowledgements: The Agent acknowledges that all information supplied by AMAILA is provided by Clients, and not AMAILA.  AMAILA does not review any such information, and does not warrant that the information is true, accurate, complete or genuine.  It is the Agent’s sole responsibility to carefully assess each offer by a Client before deciding to accept it.  AMAILA does not warrant that any Client is who they say they are, and each Agent’s use of the Website is at their own risk.  It is the Agent’s responsibility to correctly and properly identify each and every Client that they engage with.

1.5       Compliance: Agents must ensure that they are in compliance with all applicable laws, rules and regulations relating to the provision of their services including, without limitation, ensuring that they are appropriately licensed to provide their advice at all times.  By accepting a Question, providing a quote, participating in the Comparison Service, or providing any other services to Clients, Agents are confirming and warranting to AMAILA that they are legally entitled and capable of providing such services to the relevant Client.

1.6       Agent Profiles: Agents must maintain fair and accurate profiles on the Website which are not misleading or deceptive at all times, and notify AMAILA of any changes to their profile details.

1.7       Warranties: The Agent warrants that it will use reasonable care and skill in performing its obligations under this Agreement, it has the right to work and perform its obligations under this Agreement, it has the qualifications that it purports to have, and will continue to hold those qualifications throughout the existence of this Agreement.

1.8       Cap on questions: AMAILA may limit the number of Questions that the Agent may accept under the AMAILA Terms without notice.

1.9       Notices: Agents must only use the Ticket System to communicate with and send notices to AMAILA.  AMAILA is not responsible and is not required to respond to any communications or notices which are sent otherwise than via the Ticket System.

1.10     Non compete: During the period commencing on the date on which the Agent views a Question or request for quotation from a Client or participates in a Comparison Service with a Client, and ending 6 months after termination of this agreement, the Agent must not provide any alternative contact details to a Client which a Client could use to contact the Agent otherwise than via AMAILA, and must not directly or indirectly engage in the provision of any services for that Client or conduct any business with that Client without the prior written consent of AMAILA, unless the Agent is permitted to do so under this agreement.

2           AMAILA OBLIGATIONS

2.1       Pay fees: AMAILA will perform its obligations as set out in the AMAILA Terms and will pay the Agent the fees payable to an Agent in accordance with the AMAILA Terms after deducting an administrative fee of up to 25% of the Agent’s fee in relation to Questions, and up to 30% of the Agent’s total fee in relation to any other services such as Comparison Services.

2.2       Refunds: Notwithstanding anything contained in the AMAILA Terms, AMAILA may refuse to pay fees to an Agent and refund such fees to a Client if in its absolute discretion the Agent has provided negligent advice, or is in material breach of this Agreement, the AMAILA Terms or the Agent Terms of Engagement.

3           NO EMPLOYMENT / AGENCY ETC RELATIONSHIP

The parties agree that AMAILA has no liability in connection with any interactions, discussions, communications between the Agent and Clients.  This Agreement shall not constitute or imply any employment, partnership, joint venture, agency, fiduciary relationship or other relationship between the parties.  The Agent must not hold itself out as having any authority to make any commitments on AMAILA’s behalf.

4           CONFIDENTIALITY

4.1        The Agent must keep all Confidential Information confidential and not deal with it is any way that might prejudice its confidentiality.

4.2        Upon the termination of this Agreement, the Agent must erase and destroy any Confidential Information in the Agent’s possession or under the Agent’s control or that may have been loaded onto a computer possessed by the Agent or under its control.

4.3        The Agent agrees to indemnify AMAILA fully against all liabilities, costs and expenses which AMAILA may incur as a result of any breach of this clause by the Agent.

4.4        The Agent acknowledges that damages may be an inadequate remedy for breach of this clause 4 and that AMAILA may obtain injunctive relief against the Agent for any breach of this clause 4.  The obligations under this clause 4 survive termination of this Agreement.

5           INTELLECTUAL PROPERTY

The Agent irrevocably assigns to AMAILA absolutely all intellectual property rights in any content uploaded or communicated via the Website to AMAILA and waives all moral or other similar rights that it may be entitled to under the laws of any and all jurisdictions throughout the world in perpetuity.  To the extent that such assignment is not enforceable in any jurisdiction, the Agent grants to AMAILA a worldwide royalty free licence to use and reproduce any content uploaded or communicated via the Website for promotional purposes or any purposes connected with the business of AMAILA.

6           WARRANTIES, LIABILITY AND INDEMNITIES

6.1        The Agent’s use of the Website is at its own risk.  The Agent agrees that AMAILA has no liability whatsoever in connection with any discussions or communications between the Agent and a Client, any information provided by a Client, or any other interactions between an Agent and a Client (whether or not facilitated by AMAILA).  AMAILA and its officers, employees, agents, and contractors make no warranties, either express or implied, in connection with the Agent’s use of the Website or its features.

6.2        Except for any liability which cannot be excluded, restricted or modified by law, AMAILA, its officers, employees, agents, and contractors exclude, to the fullest extent permitted by law, all liability whether arising in tort (including, without limitation, negligence), contract or otherwise for any injury, loss, liability, or damage of any kind (including, without limitation, any direct, indirect, special or consequential loss) arising in any way from the Agent’s access or use of the Website or its engagement by a Client.

6.3        To the extent that the liability in clause 6.2 cannot be excluded, restricted or modified by law, AMAILA its officers, employees, agents, and contractors limit liability to the AMAILA’s administrative fee payable in accordance with the AMAILA Terms, or the cost of resupplying AMAILA’s services in respect of which the breach occurred, at the option of AMAILA.

6.4        The Agent hereby releases, and agrees to indemnify and hold AMAILA, its officers, employees, agents, and contractors harmless from any and all liabilities, damages, injury to any person or property, losses, claims and expenses of any kind (including reasonable lawyer fees) which AMAILA may incur as a result of the Agent’s misuse of the Website, or breach of these Terms.

6.5       Agents agree that AMAILA is not under any obligation to make any payments or release any amounts pursuant to these terms which have not cleared into its bank account or which are not credited to its bank account by the relevant Client.  In the event that the Client or the Client’s bank deducts any fees payable to an Agent or AMAILA under these terms from AMAILA’s bank account for any reason (whether before or after such fees have been released to an Agent or as a result of alleged fraud), Agents must pursue payment of the relevant fees from the Client directly, and immediately refund any payments made by AMAILA to the relevant Agent relating to such fees or any payments which have been released by AMAILA to the relevant Agent relating to such fees.

6.6    Where the Agent has incurred any liability to AMAILA, whether under this agreement or otherwise and whether such liability is liquidated or unliquidated, AMAILA may set-off the amount of such liability against any sum that would otherwise be due to the Agent (as the case may be).

7           TERMINATION

Either party may terminate this Agreement by notice in writing at any time, subject to the AMAILA Terms without prejudice to any accrued rights.  Notwithstanding anything to the contrary in this Agreement or the AMAILA Terms, AMAILA may terminate this Agreement at any time by notice in writing to the Agent if the Agent is guilty of any dishonesty, serious misconduct, or serious neglect of duty in or in connection with the performance of its obligations under this Agreement.

8           MISCELLANEOUS

8.1        GST: All amounts are inclusive of legally applicable tax in applicable jurisdictions. 

8.2        Severance: If any provision of these Terms is prohibited by law or judged by a court to be unlawful, unenforceable, or void, the provision shall to the extent required be severed from these Terms and rendered ineffective as far as possible without modifying the remaining provisions of these Terms, and shall not in any way affect any other circumstances of or the validity or enforcement of these Terms. 

8.3        Dispute resolution: Any claim, dispute, controversy or difference whatsoever arising out of or relating to this agreement or arising in connection with the performance, interpretation, application or enforcement of this contract, including but not limited to breach thereof, shall be referred to mediation administered by the Australian Disputes Centre (ADC) before, and as a condition precedent to, the initiation of any adjudicative action or proceeding, including arbitration. The mediation shall be conducted in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred to ADC (Guidelines).  The terms of the Guidelines are hereby deemed to be incorporated into this agreement.  This clause shall survive termination of this agreement.

8.4        Jurisdiction: The same laws of the jurisdiction which govern the AMAILA Terms governs this agreement and the Agent agrees to the courts of that jurisdiction having jurisdiction in any matter under this agreement.

8.5        Amendments: This Agreement may be amended by AMAILA from time to time without notice.  Any amendments this Agreement will be published on the Website.  Any use of the Website constitutes an acceptance of the current terms.

Effective from: 1 November 2016