SUB ORIGINATION AGREEMENT TERMS AND CONDITIONS (“TERMS”)
Please read these Terms and Conditions ("Terms", "Terms and Conditions") carefully before using the https://www.acumenfinance.com.au website and the Acumen Finance Lending Application (the "Service") operated by Acumen Finance Pty Ltd ACN 617 819 217 ("us", "we", or "our"). Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. By clicking “Accept” you agree to be bound by the Electronic Transactions Act 1999 (Cth) and the Electronic Transactions Act 2000 NSW. These Terms apply to all visitors, users and others who access or use the Service.
By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms then you may not access the Service.
1. Acumen Finance Pty Limited ACN 617 819 217 C/ Acumen Accounting & Advisory, Level 1 172 Mulgrave Road, Westcourt QLD 4870 (Originator)
2. As set out in the Acumen Finance Webform https://www.acumenfinance.com.au/brokers (Sub Originator)
A. The Originator is actively involved in the business of finance and mortgage broking/facilitation for various Lenders;
B. The Sub Originator wishes to introduce loans to the Originator to be funded by a Lender and the Originator agrees to pay the Commission to the Sub Originator on the non exclusive terms set out in this Agreement.
The parties covenant and agree as follows:
1. Definitions and interpretation
In this Agreement and in any instrument created pursuant to or in accordance with it, unless the context otherwise indicates or requests;
i. “Agreement” means this Agreement as varied from time to time.
ii. “Applicant” means an applicant (including joint applicants) for a Loan.
iii. “Application” means the Lender’s Loan application documents and supporting documentation completed by the Applicant to meet the Credit Criteria of the Lender.
iv. “Approval” means the Originator’s approval of a Loan to be referred to the Lender.
v. "Business Day" means any day (other than a Saturday, Sunday or public holiday) on which Originator is open for business.
vi. “Claims” means any allegation, debt, cause of action, Liability, claim, proceeding, suit or demand of any nature howsoever arising and whether present or future, fixed or unascertained, actual or contingent, whether a law, in equity, under statute or otherwise.
vii. “Commencement Date” means the date of this Agreement which will be the day on which this form is submitted .
viii. “Commission” means an commission payable in accordance with clause 5.
ix. “Credit Criteria” means the criteria set by the Originator from time to time for the acceptance of Applications as determined by the Lender.
x. “FBAA” means the Finance Sub Originators Association of Australia.
xi. “GST” means the Goods and Services Tax as imposed by the GST law together with any related interest, penalties, fines and other charges.
xii. “GST Law” has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999, or, if that Act does not exist for any reason, means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act.
xiii. “Input Tax Credit” has the meaning given to that term by the GST Law.xiv. “Lender” a person, company or other entity whose lending is not one of the top 10 Australian Trading Banks based on their market capitalization (As listed on the Australian Stock Exchange ASX) and can include, without limitation, a high net worth individual, a sophisticated or wholesale investor, or the operator of a managed investment scheme or an international fund manager or investor.
xv. “Loan” means all moneys advanced by the Lender to the Applicant.
xvi. “MFAA” means the Mortgage and Finance Association of Australia.xvii. “Other Property” means all present and after acquired legal and beneficial rights and interests in land and any other property, rights and interests which are not Personal Property.
xviii. “Payment” means any amount payable under or in connection with this Agreement including any amount payable by way of indemnity, reimbursement or otherwise (other than a GST Amount) and includes the provision of any non-monetary consideration.xix. “Personal Property” means all present and after acquired “personal property” as that term is defined in the PPSA.
xx. “PPSA” means the Personal Property Securities Act 2009 (Cth).
xxi. “PPS Law” means;
a. the PPSA;
b. any regulations made under the PPSA;
c. any provision of the PPSA or regulations referred to in paragraph (b); or
d. any amendment made to any other legislation as a consequence of a PPS Law referred to in paragraphs (a) to (c).
xxii. “Relevant Law” means all laws, regulations and legislative instruments applying to a party’s obligations under this Agreement, including:
a. The Corporations Act;
b. The Corporations Regulations 2001 (Cth);
c. Electronic Transactions Act 1999 (Cth)
d. Electronic Transactions Act 2000 (NSW)
e. The Australian Securities and Investments Commission Act 2001 (Cth);
f. The National Consumer Credit Protection Act 2009 (Cth); and
g. The Privacy Act 1988 (Cth); and
h. Any class order, regulatory guide or other published policy of the Australian Securities and Investments Commission.
xxiii. “Security” means any security and or guarantee given to or held by the Originator, and any other Security Interest under the PPS Law (other than security interests defined in clause 12(3) of the PPSA), securing the payment of the whole or any part of moneys owed by the Sub Originator to the Originator.
xxiv. “Security Agreement” has the same meaning as defined in the PPSA.
xxv. “Security Interest” means;
a. in relation to any Personal Property, has the same meaning as defined in the PPSA; and
b. in relation to any Other Property, means any security for the payment of money or performance of obligations including a mortgage, charge, lien, pledge, trust or power.
xxvi. “Settlement” means the day the Loan is settled by the Lender.
xxvii. “Settled Loan” means a Loan that has been approved by the Lender and has been drawn down or is available for drawdown by the Applicant.
xxviii. “Sub Originator” means the Sub Originator, its principals, employees, officers and Agents.
xxix. “Taxable Supply” has the meaning given to that term by the GST law.
xxx. “Tax Invoice” has the meaning given to that term by the GST law.
xxxi. “Upfront Commission” means the commission payable by the Lender to the Originator in respect of any Settled Loan, less any costs, disbursements or other deduction deducted by the Lender, at or shortly after Settlement.
In the interpretation of the Agreement, and of any instrument created pursuant to or in accordance with it, unless the context otherwise indicates or requires;
i. any term which is defined in the descriptions of the parties, the recitals or elsewhere in this Agreement shall be read as defined in that description, recital or elsewhere;
ii. a reference to any party shall mean such party, its successors, assigns and administrators, and (except in the case of corporations) heirs and executors;
iii. every obligation, covenant, agreement and condition expressed or implied herein and entered into by two or more parties shall bind them jointly and each of them severally;
iv. a word importing and singular shall include the plural and vice versa. A word importing any gender shall include the other gender. A word importing a person shall include a firm, body corporate, association (whether incorporated or not), government or semi-government body, or government or local authority or agency;
v. a reference to an annexure is to an annexure to this Agreement. A reference to a part, clause or other subdivision is a reference to a part, clause or other subdivision of this Agreement;
vi. a reference to a statute, ordinance, code or other law includes all regulations and other instruments under it and all consolidations, amendments, re-enactments or replacements of it;
vii. where any word or phrase is defined in this Agreement, any other grammatical form of that word or phrase shall have a corresponding meaning;
viii. Currency – Reference to ‘dollars’ and ‘$” are to be the lawful currency of Australia;
ix. Time – References to “month” are to be a calendar month; references to a time are to the official time in Sydney, Australia; and
x. Related Corporation – The terms “related corporation”, “related body corporate”, “holding company”, “subsidiary” and “associate” shall each have the meanings ascribed in the Corporate Law.
This Agreement shall commence on the Commencement Date and shall continue until terminated.
3. Functions and obligation of the Sub Originator
(a) Use its best endeavours to solicit suitable Applicants and submit Applications to the Originator for Approval.
(b) Ensure that each application submitted to the Originator is accompanied by the correct supporting documents.
(c) Assist an Applicant in the completion of an appropriate Application as may be required by the relevant Lender and undertakes not to misrepresent any part of a Loan to an Applicant.
(d) Undertake identity verification of the Applicant.
(e) Promptly obtain from each Applicant and submit to the Originator such further information as may be required by the Originator and/or Lender and/or a Mortgage Insurer.
(f) Advise the Originator of the preferred Lender with whom each Application should be lodged.
(g) Interview each applicant and, where relevant, borrower, mortgagor, and guarantor either in person or by telephone and make such enquiries of each such person as would be made by a prudent lender.
(h) Ensure that each Application is within the parameters of the Lender to whom the application is to be made.
(i) Where required by a Lender, authorise the Originator through its authorised personnel to interview each Applicant and, where relevant, borrower, mortgagor and guarantor either in person or by telephone, and to make such enquiries of such persons as the Originator considers appropriate.
(j) Obtain from each Applicant, and promptly remit to the Originator, such amount as shall be advised by the Originator on account of valuation fees for the proposed Security Property.
(k) Where a Lender Application fee is payable in respect of an Application, ensure that such Application is accompanied by that fee.
(l) To the extent permitted by law, promptly notify the Originator of any matters of which it becomes aware whether before or after Settlement of a Loan which could reasonably be expected to cause a prudent Lender to:
(A) regard the Loan as an unacceptable investment;
(B) expect that the mortgagor is likely to make default under a mortgage; or believe that the value or marketability of a security property could be adversely affected.
(m) Provide such assistance as the Originator shall reasonably require in connection with the management and administration by the Originator of each Loan.
(n) Interview each Applicant and acknowledge to the Originator that to the best of its knowledge information and belief that the information contained in the Application is correct.
(o) Advise the Originator if to the knowledge of the Sub-Originator after enquiry of the Applicant that the Applicant has previously been refused mortgage finance by any other lender or has been rejected by a mortgage insurer.
(p) The Sub Originator must comply with all reasonable directions of the Originator in connection with its duties under the Agreement.
(q) The Sub Originator must promptly provide the Originator with any information regarding an Application or Loan required by the Originator from time to time.
(r) The Sub Originator shall not advise an Applicant that he or she has an approval to any Loan until written confirmation has been received from the Lender.
(s) The Sub Originator is responsible for their own costs unless otherwise specifically stated in this Agreement.
(t) The Sub Originator must inform themselves of and adhere to the requirements of their Australian Credit Licence if they have one.
(u) The Sub Originator is unrestricted in marketing themselves and operating as a mortgage Sub Originator in any geographical location.
(v) The Sub Originator is required to maintain necessary levels of Professional Indemnity Insurance.
(w) The Sub Originator must comply with the Relevant Law.
4. Functions and obligations of Originator
(a) The Originator undertakes to use its best endeavours to process each Application from the Sub-Originator within 2 business days of receipt by the Sub Originator of the Application.
(b) The Originator is under no obligation to give its approval to any Loan or refer to a Lender or give any reasons for refusing to give its Approval.
(c) The Originator must pay to the Sub Originator the Commission as outlined in clause 5.
(d) The Originator must issue tax invoices to the Sub Originator in the form of Annexure B.
5. Payment of Commission
(a) The Originator shall pay to the Sub Originator 0.75% of the facility limit received by the Originator for a loan submitted by the Sub Originator to the Originator and settled by the Lender unless otherwise agreed in writing.
(b) Should the Application submitted by the Sub Originator to the Originator not be in a form acceptable to the Lender, the Originator will advise the Sub Originator of the non compliance and require compliance within 2 business days of notification. Should the Application still be non compliant and the Originator is required to complete an Application before submitting to the Lender, the Originator shall reserve the right to pay the Commission to the Sub Originator 0.35% of the facility limit of the loan procured by the Originator. In the case whereby the borrower has not complied with Acumens reasonable instructions or requests for information or any other breach of Acumens terms and conditions the Sub Orginator will recieve (Zero)
(c) The Sub Originator acknowledges that in the event the Originator receives a trailing commission, the Sub Originator is not entitled to receive a percentage.
(d) The Originator will pay to the Sub Originator the Commission by Electronic Funds Transfer to the bank account detailed in Annexure A on the 14th day of the month following Settlement.
(e) The Originator will in the event of a Commission being paid and then withdrawn (e.g. clawed back) for any reason by the Lender, have the right to seek immediate reimbursement from the Sub Originator and/or withhold a Commission otherwise payable to the Sub Originator until such withdrawn commissions are repaid in full by the Sub Originator.
6. General Acknowledgments and restrictions
(a) The Sub Originator acknowledges that for the purposes of this Agreement it is not an agent or employee of the Originator.
(b) The Sub Originator and Originator agree that any Commission payable to the Sub Originator is subject to and conditional on payment of said commission by a Lender to the Originator.
(c) In the event of a Lender failing or refusing to pay all or any part of the commission due to the Originator in respect of a Loan, the Sub Originator acknowledges and agrees that the Originator shall not be liable to the Sub Originator for the amount owing pursuant to Clause 5.
(d) The Sub Originator shall be responsible for keeping its own accounting records and for payment of all income and other taxes payable.
(e) The Sub Originator shall be responsible for maintaining adequate accident and illness insurance and acknowledges that it is not an employee of the Originator and is therefore not covered under any WorkCover or like insurance of the Originator.
(f) The Sub Originator acknowledges that the Originator is not liable or obligated to pay Superannuation for and behalf of the Sub Originator.
(g) Nothing in the Agreement shall be deemed to create or constitute a partnership between the parties for the purposes of any Partnership Act, Income Tax Assessment Act or any other such relevant law.
(h) The Sub Originator acknowledges that it must provide written confirmation of any change in detail of the registration form as per Annexure A of this Agreement.
(i) The Sub Originator acknowledges they are liable for any fines or penalties levied on the Originator by ASIC or any other body due to the Sub Originator’s own actions or inactions. The Sub Originator acknowledges that it is responsible for adherence to the National Consumer Credit Protection Act 2009 and the Relevant Law.
(j) The Sub Originator acknowledges that they will be audited by a third party monthly at the Sub Originator’s expense, and they must provide all requested documentation for the audit including read-only access to bank accounts controlled by the Sub Originator and or its related parties and affiliates. Further, the Sub Originator Consents to Acumen or its advisers setting up an ongoing disclosure arrangement with the various banks and solicitors that provide settlements of any loan originated. This is whereby we will collect details on the borrower, lender, and any other things needed to ensure fair use of the platform and to understand the sources and origin of the transaction.
(k) The Sub Originator acknowledges that all marketing materials, messages and media created solely or partially by the Originator remains the sole property of the Originator and can only be used with the permission of the Originator and may not be replicated without the permission of the Originator.
(a) Either the Originator or the Sub Originator may at their discretion and at any time and without reason terminate this Agreement.
(b) Either party deciding to terminate this Agreement must do so by giving 30 days’ notice in writing. If the Agreement is terminated by the Originator or the Sub Originator, except upon the conditions outlined in Clause 7 (c), then the Originator must continue to pay all Commissions payable in accordance with Clause 5 to the Sub Originator on the same terms and conditions agreed herein and dependent upon the ongoing payment of commissions from the Lender to the Originator.
(c) The Originator can terminate the Agreement and cancel the authority and entitlements of the Sub Originator to a Commission on a Loan introduced to the Originator where the Agreement is terminated by the Originator due to:
(A) fraudulent or misleading conduct by the Sub Originator (as defined by the MFAA or FBAA Code of Practice);
(B) failure of the Sub Originator to comply with the Code of Conduct outlined in Clause 15
(C) failure of the Sub Originator to comply with any part or clause of this Agreement;
(D) failing of the Sub Originator to adhere to the MFAA or FBAA membership requirements following 3 written requests;
(E) failure of the Sub Originator to adhere to the requirements of the National Consumer Credit Protection Act 2009;
(F) where a penalty is applied by ASIC or other governing body due to the actions or inactions of the Sub Originator;
(G) the Sub Originator contacting or referring a Loan to a Lender directly without the prior written consent of the Originator.
(d) Any term by its nature intended to survive termination of this Agreement survives termination of this Agreement, including clauses 6, 7, 8 and 9.
8. Non Circumvention
(a) The Sub Originator acknowledges that the Originator’s knowledge and information of and about a Lender is the Originator’s confidential information and that that confidential information and the relationships which the Originator has with a Lender is a valuable asset of the Originator’s business.
(b) In the event that the Originator discloses the identity of a Lender to the Sub Originator, whether by naming the Lender or by advising information which discloses the identity of the Lender whether in a loan offer or in any other communication with the Sub Originator, then the Originator;
(A) must only procure a loan from that Lender by using the Originator to procure that loan for the Applicant, and
(B) agrees not to:
I. seek to obtain a loan from that Lender either directly or by another finance broker or other intermediary, and
II. otherwise communicate with that Lender, either directly or indirectly.
(c) Without limiting the operation of this clause, the Sub Originator shall not (or otherwise assist an Applicant) without the consent of the Originator directly or indirectly solicit, canvass or approach the Lender for the purpose or purposes including the circumvention of the intention of this Agreement or for a service offered or promoted by the Originator without written consent from the Originator and if this clause is breached, the Originator may;
(A) elect and demand by way of compensation, the greatest of damages which ordinarily and consequentially flow to the Originator by reason or such breach and any commissions payable from the Lender to the Sub Originator; and
(B) enforce any security granted by the Sub Originator in favour of the Originator.
(d) The Sub Originator acknowledges and agrees that the damages payable pursuant to Clause 8(d) is a genuine pre-estimate of the loss and damage that the Originator will suffer as a result of a breach by the Sub Originator of Clauses 8(b) and 8(d).
(e) The Sub Originator must not convert any existing or proposed commercial activity disclosed to the Sub Originator by the Originator for its own business or personal advantage which would otherwise circumvent any clause, obligation or spirit of this Agreement or otherwise exploit directly or indirectly for its own personal advantage any confidential information of intellectual property obtained from the Originator without the consent from the Originator.
(f) At the request of the Originator, the Sub Originator will require an Applicant to execute an agreement containing non circumvention provisions similar to this clause.
(g) The Sub Originator acknowledges and agrees that this clause 8 shall apply both during the term of this Agreement and for a period of 7 years after the termination of this Agreement and irrespective of whether the Originator was successful or not in procuring a loan offer from the respective Lender whose identity the Originator disclosed to the Sub Originator.
(a) The Sub Originator agrees to keep confidential all information, documents, dealings, transactions, client lists, data, processes, technology, know-how, accounts, or other documents and things, of whatever type or nature relating to business obtained by the Sub Originator or may be available to the Sub Originator or of which the Sub Originator may become aware as a result of or during the period of this Agreement.
(b) The Originator agrees to keep confidential all details of the Sub Originator’s Applicants.
(a) As security for the Sub Originator’s obligations in this Agreement (including but not limited to any obligation to repay a Commission or damages incurred by the Originator as a result of the Sub Originator breaching terms of this Agreement), the Sub Originator as beneficial owner charges in favour of the Originator all Other Property which the Sub Originator now has or during the currency of this Agreement may acquire and grants to the Originator a Security Interest in all of the Sub Originator’s Personal Property. The Sub Originator agrees the Originator may:
(A) register a caveat or, by way if its appointment as attorney of the Sub Originator, create and register a mortgage of land over any real property owned by the Sub Originator; and
(B) by way of its appointment as attorney of the Sub Originator, register a Security Interest in all of the Sub Originator’s present and after acquired Personal Property. The Sub Originator acknowledges the Originator may enforce and realise upon any such charge or Security Interest by appointing a receiver or manager.
(b) The parties agree and acknowledge that this Agreement is a continuing Security Agreement for the purposes of the PPSA and that the Originator has a registrable Security Interest.
(c) The Originator will not release its Security Interest until 7 years after the termination of this Agreement.
(d) The Sub Originator waives its right to receive any notice under the PPSA (including notice of a verification statement after registration of a Security Interest under this Agreement or variation of registration) unless a requirement for notice cannot be excluded under the PPSA.
(e) If Chapter 4 of the PPSA would otherwise apply to the enforcement of the Originator’s Security Interest under this Agreement, the Client agrees that the following provisions of the PPSA will not apply:
(A) section 95 (notice of removal of accession), to the extent that it requires the Originator to give notice to the Sub Originator;
(B) section 120 (enforcement of liquid assets);
(C) section 121(4) (enforcement of liquid assets – notice to the Sub Originator);
(D) section 125 (obligation to dispose of or retain collateral);
(E) section 128 (secured party may dispose of collateral);
(F) section 129 (disposal by purchase);
(G) section 130 (notice of disposal) to the extent that it requires the Originator to give notice to the Sub Originator;
(H) sections 132(3)(d) and (4) (contents of statement of account after disposal) and (statement of account if no disposal);
(I) section 135 (notice of retention);
(J) section 142 (redemption of collateral); and
(K) section 143 (reinstatement of security agreement).
(f) The Originator and the Sub Originator agree that neither party will disclose to an “interested person” (as defined in section 275(9) of the PPSA) or any other person, any information of the kind described in section 275(1) of the PPSA save that the Originator may disclose that information to its professional advisors, to any receiver and manager appointed by it or to any person to whom it proposed to assign its interest under this Agreement. The Sub Originator will not authorise the disclosure of any information of the kind described in section 275(1) of the PPSA.
(g) The Sub Originator will whenever so requested by the Originator:
(A) deliver or cause to be executed and delivered such deeds, instruments, mortgages and other documents and cause to be done all such other acts and things as the Originator may consider necessary or desirable, the Other Property charged and/or the Originator’s Security Interest created under this Agreement in such form as is necessary in order to obtain any necessary or desirable registration of such documents;
(B) carry out any requests given to it by the Originator to secure any Security Interest in favour of the Originator under the PPSA including but not limited to providing any necessary information for or execution to give effect to any Financing Statement, Financing Change Statement, Amendment Demand and/or ensure any Security Interest granted in favour of the Originator is Continuously Perfected.
11. Consent to recording of communications
The Sub Originator acknowledges that the Originator may record all telephone communications between the Sub Originator and Originator and consents to these recordings.
(a) All payments have been calculated without regard to GST.
(b) Each party will comply with its obligations under the Trade Practices Act 1974 when calculating the amount of any Payment and the amount of any relevant Payments will be adjusted accordingly.
(c) If the whole or any part of any Payment is the consideration for a taxable supply by the Sub-Originator to the Originator, the Originator must pay to the Sub- Originator an additional amount equal to the GST Amount calculated with reference to that part of the Payment, either concurrently with that Payment or as otherwise agreed in writing.
(d) Any reference to a cost or expense in this Agreement excludes any amount in respect of GST forming part of the relevant cost or expense for which (when incurred by that party) the relevant party can claim an input tax credit.
(e) The Sub-Originator will provide to the Originator a “tax invoice”, in accordance with the GST law. The Sub-Originator will be liable for any losses incurred by the Originator if the tax invoice issued does not meet legislative requirements.
(f) If the Sub-Originator does not provide to the Originator a “tax invoice”, in accordance with the GST law, the Originator may withhold any Payment under this Agreement until the Originator receives the appropriate “tax invoice”.
(g) The parties may elect to treat the invoicing of any Payments under this Agreement, for the purposes of the GST law, on a recipient created tax invoicing basis. The Originator may only do so if it is allowed to do so under the GST law. If the Originator does so, the Sub-Originator must enter into any document with the Originator that is necessary to affect this.
13. Proper law and jurisdiction
This Agreement shall be governed by, and interpreted in accordance with, the laws of the State of NSW and the parties submit to the jurisdiction of the courts of Sydney.
The Sub Originator indemnifies the Originator against all Claims suffered or incurred by the Originator as a result of any act or omission or failure to comply with the Relevant Law by the Sub Originator, its principals, employees or agents or any other person who is in any way directly or indirectly concerned with the introduction of a Loan through the Sub Originator to the Originator.
15. Code of conduct
The Sub Originator agree to the following Code of Conduct, which include minimum ethical standards to be maintained:
15.1 To act with honesty and integrity at all times
This will extend to representations made in advertising, commissions received, all communications, advice provided and all Applications. This will ensure that the best interests of both the Applicant and a Lender are always upheld.
15.2 To comply with all Laws and Regulations relating to the Mortgage Industry
To maintain a current understanding of and adherence to all laws and regulations as they pertain to the finance industry.
15.3 Conflicts of Interest
In each professional assignment undertaken, a Sub Originator must both be and be seen to be free of any interest, which is incompatible with the best interests of the Applicant. This will extend to both product advice and commissions received.
15.4 To maintain Confidentiality in all dealings
Through adherence to the above, professional conduct will be maintained at all times.
15.5 To maintain Integrity with the Lender
The Sub Originator agrees not to provide to another Sub Originator or sub-Sub Originator and contact details of a Lender.
(a) The Originator may assign, novate or otherwise deal with its rights and obligations under this agreement without the consent of the Sub Originator.
(b) The Sub Originator may not assign, novate or otherwise deal with any of its rights and obligations under the Agreement without the prior written consent of the Originator.
17.1 Further assurances
Each party must do everything reasonably required by the other to give effect to any of the transactions contemplated by this Agreement.
Nothing in this Agreement constitutes one party the employee, partner, agent, representative, trustee or joint venturer of the other unless expressly stated otherwise.
17.3 Entire agreement
This Agreement sets out the entire agreement between the parties and supersedes any prior agreements or discussions.
This Agreement may be executed in any number of counterparts (including facsimile counterparts). Each counterpart is deemed an original and all the counterparts together constitute one instrument, which is deemed to be dated on the date the last party signs.
Any variation to this Agreement must be in writing and signed by all parties to be effective.
17.6 No waiver
None of the following constitute a waiver or variation of a party's right to demand exact compliance by other party with that party's obligations under this Agreement:
(a) failure or delay by a party to exercise any of that party's rights under this Agreement
(b) failure or delay by a party to insist on exact compliance by other party with that other Party's obligations under this Agreement;
(c) any practice of the parties at variance with this Agreement, and a waiver by a party of a particular breach does not affect that party's rights in respect of any preceding, subsequent or other breach.
17.7 Remedies cumulative
A party's rights and remedies under this Agreement are cumulative with and not exclusive of that party's rights and remedies at law.
Any provision of this Agreement which is illegal, void or unenforceable in a jurisdiction will, as to that jurisdiction, be ineffective to the extent of the illegality, voidability or unenforcability, but without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in another jurisdiction.
17.9 Time of the essence
Time is essential under this Agreement.
17.10 No merger
The parties' rights and obligations will not merge on completion of any transaction under this Agreement.
Where this Agreement is executed by a party's attorney, that attorney by their execution confirms that they have no notice of revocation of the power of attorney under which their authority was granted.
Where a party executes this Agreement in their capacity as trustee, this Agreement is binding on that person both personally and in their capacity as trustee.
ANNEXURE A – SUB ORIGINATOR REGISTRATION DETAILS
Trading as (business name):
ANNEXURE B – RCTI AGREEMENT
Acumen Finance Pty Limited ACN 617 819 217 C/ Acumen Accounting & Advisory, Lvl 1, 17 Spence Street, Cairns City QLD 4870 (Originator)
As set out in the Acumen Finance Webform https://www.acumenfinance.com.au/brokers (Sub Originator)
The purpose of this Agreement is:
A. for the Sub-Originator to provide to The Originator the Sub-Originator’s Australian Business Number (“ABN”) and to confirm that the ABN provided is correct: and
B. to regulate the generation of Recipient Created Tax Invoices (“RCTI” – for the purpose of the Federal Government’s Goods and Services Tax (“GST”).The Originator and the Sub-Originator hereby agree as follows:
1. This agreement relates to the supply by the Sub-Originator to the Originator of the service of submitting mortgage finance applications.
2. The Sub Originator hereby warrants that its ABN is and acknowledges that the Originator relies on such as being true and correct.
3. The Sub-Originator and the Originator hereby agree that:
a) The Originator can issue tax invoices in respect of the supplies made by the Sub- Originator to the Originator (“Supplies”):
b) The Sub-Originator will not issue tax invoices in respect of the Supplies;
c) The Originator indemnifies the Sub-Originator for any liability for GST and penalty that may arise from an understatement of the GST payable on any supply for which it issues a RCTI.
4. The Sub-Originator acknowledges that it is registered with the ATO for GST when it enters into this agreement and that it will notify the Originator if it ceases to be so registered.
5. The Originator acknowledges that it is registered for GST when it enters into this Agreement and that it will notify the Sub-Originator if it ceases to be registered or it ceases to satisfy any of the requirements of Draft Goods and Services Tax Ruling 2000/10 in relation to RCTI, or any replacement thereof.
6. The Sub-Originator acknowledges that it has had the opportunity to seek its own legal and tax advice prior to signing this Agreement and has retained a copy of this Agreement.
7. The Sub-Originator and the Originator acknowledge the current Sub Origination Agreement between the Originator and the Sub-Originator. The Originator will from the date of this agreement perform all obligations owed to the Sub-Originator, and the Sub-Originator will provide his/her or its services, under the Sub Origination Agreement.