Education Agent Agreement

Transcription

1 Education Agent Agreement Commencement Date: Termination Date: THIS AGREEMENT is made on the day of BETWEEN AND "Australian National College Pty Ltd (Referred to as ANC henceforth) The organisation or person identified in Items 1, 2 and 3 of Schedule A " Education Agent WHEREAS: A. ANC is a registered training organization located in Melbourne Australia, that provides highlevel, internationally recognised, CRICOS registered, courses to international students. B. The Education Agent has expertise and experience in identifying and referring international students to educational institutions in Australia. C. ANC wishes to appoint the above named Education Agent to procure Enrolments on the terms and conditions contained in this Agreement and the Education Agent wishes to accept such appointment. NOW IT IS AGREED as follows: 1. DEFINITIONS AND INTERPRETATIONS 1.1 Definitions In this Agreement unless inconsistent with the context or subject matter: Commencement Date The date identified in Item 4, or if no date is identified in that Item, then it means the date of this Agreement Commission The commission specified in Item 6 ecoe DIAC ESL/ELICOS Electronic confirmation of enrolment Department of Immigration and Citizenship English as a Second Language ANC 1 OF 15 V08/09

2 Group GST Item ANC Materials Paid Fees PRISMS Relevant Law Six or more Students who visit Australia on a holiday visa to study ESL; Goods and Services Tax means an item in Schedule A to this Agreement Literature issued by ANC including literature on the website ( Fees paid for Enrolment from Students Provider Registration and International Students Management System Means the; ESOS Act; ESOS Regulations; the National Code; (d) the Privacy Act 1988 (Cth); and (e) any other legislation or regulations relevant to governing the provision of education to overseas students in Australia, as amended from time to time. Term Term of this Agreement as set out in Clause 4.1 Termination Date The date specified in Item 5 Student Student Visa An individual pursing a course of study at ANC A visa which DIAC requires a students to obtain before being authorised to study in Australia on a full-time basis 1.2 Interpretation "person" and words importing persons includes bodies corporate; where a party comprises two or more persons an agreement or obligation to be performed or observed by that party binds those persons jointly and each of them severally, and a reference to that party will be deemed to include a reference to any one or more of those persons; words importing the singular include the plural and vice versa and words importing the masculine include the feminine and neuter and vice versa; ANC 2 OF 15 V08/09

3 (d) (e) (f) (g) a reference to any Act of Parliament or section thereof or schedule thereto will be read as if the words "or any statutory modification or re-enactment thereof or substitution therefore" were added to the reference; where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings; "writing" includes typewriting, printing, lithography, photography and other modes of representing or reproducing words in a visible form and "written" has a corresponding meaning; any marginal notes or headings are included for convenience and do not affect the interpretation of this Agreement. 2. APPOINTMENT AND ACCEPTANCE 2.1 Appointment Subject to the provisions of this Agreement, ANC appoints the Education Agent as its authorised representative to: promote and procure Enrolments on its behalf; and to otherwise promote ANC as required, from time to time. 2.2 Acceptance The Education Agent accepts its appointment on the terms and conditions contained in this Agreement. 3. RELATIONSHIP 4. TERM The parties acknowledge and agree that nothing in this Agreement constitutes a relationship of employment, partnership or joint venture between the ANC and the Education Agent. 4.1 Commencement and Termination Subject to Clause 4.2 and the provisions for termination contained in Clause 10 this Agreement shall commence on the Commencement Date and conclude on the Termination Date. 4.2 Renewal Discussions At the conclusion of the Term the parties will discuss the possibility of renewing this Agreement for a further period on the same terms and conditions contained herein or such other terms that may be agreed. However, neither party is under any obligation to renew this Agreement at the conclusion of the Term. ANC 3 OF 15 V08/09

4 5. THE EDUCATION AGENT'S OBLIGATIONS 5.1 The Agent must at all times abide by the Relevant Legislation. 5.2 The Agent must ensure that all necessary evidence and documents which accompany each prospective Student's application form or student enrolment agreement for enrolment in a Course are true and correct; 5.3 The Education Agent will at all times during the Term at its expense: (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) work diligently to protect and promote the interests of ANC; procure the maximum number of Enrolments on behalf of ANC on such terms and conditions that are to be notified to the Education Agent from time to time; diligently promote and procure Enrolments by appropriate means including without limitation personal visits to and correspondence with prospective Students from time to time nominated by ANC; comply with all of the ANC s orders and instructions in relation to the subject matter of this Agreement and, in the absence of any such orders or instructions in relation to any particular matter, to act in such manner as the Education Agent ought reasonably to have considered to be most beneficial to ANC; refer all inquiries received from prospective Students immediately to ANC; take all necessary steps to observe and comply with all statutory and other legal requirements in force in Australia relating in any way to discharging its obligations hereunder; pay promptly without demand, deduction or set-off any sum payable by the Education Agent to ANC under the terms of this Agreement; refer all after-sale customer complaints and inquiries immediately to ANC; keep a list of actual and potential Students and to supply a copy of it to ANC on request; permit ANC or its representatives at all reasonable times to inspect and take copies of all documents and files in its possession that are material or relate to this Agreement; promptly bring to the notice of ANC any information received by it which is likely to be of interest, use or benefit to ANC in relation to the promotion of Enrolments; provide prospective Students with a copy of, and ensure that prospective Students understand, ANC s Refund Agreement; provide Students and prospective Students with information regarding, and assistance in obtaining, Student Visas; ANC 4 OF 15 V08/09

5 (n) (o) (p) (q) (r) assist Students to comply with the requirements of DIAC in respect of Student Visas including without limitation the requirements set out on DIAC s website ( ensure that prospective Students are aware of their obligations under the Relevant Law and of DIAC s requirements in respect to Student Visas; market ANC education and training services honestly; provide accurate course and relevant information to Students and prospective Students; and forward to ANC copies of any advertising (irrespective of the form of media) prior to placement, and if in a language other than English (LOTE) include an English language translation of the advertisement. Unless otherwise agreed with ANC, the Education Agent will be responsible for the costs incurred by ANC in transporting promotional material overseas to the Education Agent. 5.4 During the Term the Education Agent must not: (d) (e) (f) (g) (h) (i) (j) intentionally do any act or thing which might adversely affect the reputation of ANC or its directors; do or purport to do anything on behalf of ANC other than promoting or procuring Enrolments on behalf of ANC or as otherwise authorised in this Agreement or by ANC in writing; accept any order or make any contract binding upon ANC other than on terms and conditions first approved by ANC in writing; incur any liability on behalf of ANC or in any way pledge or purport to extend credit to Students without the prior written consent of ANC; make any representations to Students or give any warranties other than those contained in ANC s Materials; make false or misleading comparisons with any other provider or their courses (other than ANC); make any inaccurate claims of association with any other provider or organisation (other than ANC); give inaccurate/dishonest advice as to acceptance into another course; hold out the promise of permanent residence in Australia following study, or suggest fraudulent means of achieving residence in Australia such as sham marriages; suggest to Students or prospective Students that they come to Australia on a student visa with a primary purpose other than full-time study; ANC 5 OF 15 V08/09

6 (k) (l) (m) (n) (o) help applicants who intend to come to Australia on a student visa intending to breach the conditions of their visa; provide immigration advice as defined in the Migration Act 1958 (Cth) unless authorised to do so under that Act; engage in false or misleading advertising or recruitment practices; use PRISMS or other means to create ecoes for applicants who will not be bona fide students; Employ or appoint sub-agents without the prior written consent of ANC provided that the Education Agent will be responsible for the activities of any sub-agent. 6. ANC S OBLIGATIONS The College undertakes to: promptly pay to the Education Agent the Commission in accordance with Clause 7; where ANC deems necessary, provide the Education Agent (at the Education Agent s cost) with reasonable training to assist the Education Agent to more adequately promote and procure Enrolments; and from time to time furnish the Education Agent with prospectuses, promotional brochures, and other promotional material that ANC may have created and/or obtained for the purpose of promoting Enrolments. 7. COMMISSION 7.1 General ANC shall pay the Education Agent the Commission in respect of Paid Fees in accordance with this Clause ANC Enrolments The following provisions shall apply to Commission payable for Enrolments at ANC: Where the Student pays fees for the entire year in advance, the Commission shall be paid by ANC within 42 days of the later of: (i) ANC receiving: (A) (B) full payment from a Student in clear funds; and a GST tax invoice from the Education Agent; or (ii) the Student attending his/her first class in respect of the Enrolment. ANC 6 OF 15 V08/09

7 Where the Student does not pay fees for the entire year in advance, the Commission shall be paid in the manner agreed between the parties PROVIDED THAT no Commission shall be paid on any Paid Fees until: (i) (ii) payment has been received from the Student in clear funds; and the production of a GST invoice from the Education Agent on the Education Agent s letterhead clearly stating the Student s name, Student identification number (if any) and course being undertaken. (d) (e) (f) (g) (h) The Education Agent is at liberty to arrange for and ensure that Students pay ANC for Enrolments. If the payment to ANC by the Student is less than the full amount, for any reason, the Education Agent will receive Commission on the reduced sum. The Commission will be paid to the Education Agent by either direct debit or cheque. For the purposes of this Clause 7, ANC must advise the Education Agent when Students pay for Enrolments. Unless otherwise notified by ANC, commission for the Enrolment of Students on the ANC s Academic ESL course will be paid promptly after the Student has attended his or her first class and payment has been received from the Student in clear funds. If the fees are paid in instalments the course fee charged for the first 2 semesters will calculate the commission. That is, on the first year of any course commission will be paid only on the first year and will be divided into two payments e.g. total fees for one year ($9,000) divided by two semesters commission is then paid on these two parts. (i) Commission for Groups will be paid on the ESL tuition only. This will be at 15% payable, on presentation of an invoice, when final payment is received by ANC. (j) Notwithstanding any other provision of this Agreement, ANC reserves the right to alter the percentage or manner of payment of Commission at any time during the Term, on giving the Education Agent 7 day s written notice. 8. REFUND POLICY Where any student, for which ANC has paid a commission, has to be refunded monies due to the cancellation of enrolment from ANC, or for any other reason, the Education Agent acknowledges that it must refund to ANC the portion of the commission for the amount refunded to the student. The refund is payable to the ANC within 14 days from the date on which ANC notifies the Education Agent that the student has cancelled enrolment. Where required, ANC will provide evidence that the student is no longer enrolled at ANC. ANC 7 OF 15 V08/09

8 9. JOINT OFFERS Where a Student receives a joint offer from ANC and a second institution, ANC will not be responsible for any commissions or refunds from the second institution and these will fall under the refund policy of the second institution. ANC will only be responsible for the commissions and refunds while the student is in attendance at ANC. Should the Student withdraw from the course of the second institution after completing a course at ANC, then the Education Agent acknowledges that ANC will not be responsible or liable to the Education Agent for any refund or commission. 10. AGENT MONITORING In addition to ongoing review under ANC s Agent Selection and Monitoring Policy, ANC may conduct a formal review of the Agent's performance on or about the annual anniversary of the Agent's appointment (Review). The Agent must provide to ANC evidence and documentation covering all marketing, sales and recruitment activities undertaken as an agent of ANC at the Review. The Review will consider, amongst other things whether the Agent has been engaged in dishonest practices, facilitated the enrolment of students who do not comply with their visa requirements or has engaged in misleading practices. The evidence to be considered may include: 10.1 compliance with the Relevant Legislation and the legislation, regulations and requirements relating to visas and as referred to in clause 5.1; 10.2 the number of successful visa applications compared to the number of visa applications endorsed by the Agent; 10.3 the reasons provided by DIAC for visa rejections; 10.4 the ratio of Students to unsuccessful applications for enrolment in a Course by prospective Student's referred to ANC by the Agent; 10.5 feedback from Students recruited by the Agent regarding the Agent's services; 10.6 compliance with conditions of the student visa by Students recruited by the Agent; 10.7 written reports from reputable sources that the Agent has been: involved in dishonest practices; engaged in false or misleading advertising or recruitment practices; or any other relevant matters as determined by ANC from time to time. 11. INTELLECTUAL PROPERTY RIGHTS 11.1 The Education Agent acknowledges that ANC has been granted the right to use various trade names and marks, copyrights, patents and other industrial property rights ("Intellectual Property") used employed or embodied in ANC s Materials The Education Agent will at all times during the Term and thereafter: ANC 8 OF 15 V08/09

9 not to cause or permit anything which may damage or endanger the Intellectual Property or other Intellectual Property rights of ANC or assist or allow others to do so; not use the Intellectual Property except directly in the promotion and procurement of Enrolments; not tamper with any markings or nameplates or other indications relating to the source or origin of ANC s Materials which may be placed by ANC on its Materials The Education Agent will observe all instructions and directions which ANC may give the Education Agent with respect to the application of the Intellectual Property. 12. TERMINATION 12.1 Termination for Default ANC may terminate this Agreement immediately should any of the following events occur: (d) (e) (f) (g) (h) (i) (j) if the Education Agent is in breach of any of its obligations under this Agreement and fails to remedy such breach within fourteen (14) days of receiving notice requiring it to do so; if an Education Agent becomes bankrupt or insolvent or makes an assignment for the benefit of creditors generally (for any reason whatsoever); an order is made or a resolution is passed for the winding-up of the Education Agent; a receiver or trustee of the property of the Education Agent is appointed; an encumbrancer enters into possession of any of the property of the Education Agent; the Education Agent engages in any conduct prejudicial to the ANC s business or the promotion of Enrolments generally; or any material change occurs in the management or control of the Education Agent and in particular any change of directors or shareholders of the Education Agent save with the prior written consent of ANC. the Education Agent or his/her representative uses material to promote Enrolments without first obtaining ANC s written authorisation of the form and content of such material; the Education Agent or his/her representative is involved in any misleading or deceptive conduct; the Education Agent or his/her representative uses PRISMS or other means to create ecoe s for fictitious students. ANC 9 OF 15 V08/09

10 (k) (l) (m) the Education Agent or his/her representative is involved in dishonest conduct, including without limitation suggesting to prospective overseas Students that they use a Student visa for some ancillary purpose, such as the purpose of obtaining employment or residency in Australia. The Education Agent or his/her representative recruits overseas Students who clearly do not intend to comply with the conditions of their student visas. the Education Agent or his/her representative offers prospective Students unauthorised incentives to enrol with ANC, including without limitation offering discounts or rebates on ANC s published fees Termination at will ANC may terminate this Agreement without reason on giving the Education Agent 14 days notice, at the discretion of ANC s Marketing Manager, this may include: Requesting that all remaining advertising be returned. Refusing any students from that Education Agent, or from any associate. 13. UPON TERMINATION OF THIS AGREEMENT 13.1 Upon the termination of this Agreement the Agent will: promptly return to ANC, at the Education Agent s expense, any ANC Materials and other materials such as documents and papers whatsoever relating to ANC which the Education Agent may have in its possession or under its control; immediately remove all representations of the Intellectual Property in the possession or power or under the control of the Education Agent. 14. CONFIDENTIALITY The parties agree that neither shall, except as authorised by the other, reveal to any persons or company or make use of any of the trade secrets, secrets or confidential operations, processes or dealings or any information concerning the business, finances, transactions or affairs of the other party which may come to its or their knowledge during the Term of this Agreement and each party agrees to keep with complete secrecy all confidential information and shall not use or attempt to use any such information in any manner which may injure or cause loss either directly or indirectly to the other. 15. WARRANTIES ANC warrants that it has unfettered discretion and the right to appoint an Education Agent of the kind described in this Agreement The Education Agent warrants that it: ANC 10 OF 15 V08/09

11 will provide the services in a proper, efficient, skilful, careful and diligent manner; is suitably qualified to provide the services described in this Agreement; has the power and authority to enter into this Agreement. 16. INDEMNITY The Education Agent agrees to indemnify and keep indemnified ANC from and against any and all loss, damage or liability (whether criminal or civil) suffered and legal fees and costs incurred by ANC resulting from a breach of this Agreement, the Relevant Law by the Education Agent including an act, neglect or default of the Education Agent's subsidiaries, employees or licensees 17. GROUP BOOKINGS In reference to group bookings (such as study tours etc), ANC reserves the right to request a 30% non-refundable deposit, within 6 weeks of the group s commencement date. If the deposit is not supplied, ANC reserves the right to refuse the group booking. 18. SEVERANCE In the event that any provision in this Agreement or its application to any person or circumstance is or is found to be invalid or unenforceable, that invalidity or unenforceability will not affect the validity or enforceability of the other provisions of this Agreement or the application of such provisions to any person or circumstance and the said remaining provisions will remain valid, enforceable and will be given in full force and effect. 19. WAIVER No waiver by a party of any default in the strict and literal compliance with any provision, condition or requirement will be deemed to be a waiver of strict and literal compliance with any other provision, condition or requirement of this Agreement nor be a waiver of or in any manner release the other party from strict compliance with any provision, condition or requirement in the future nor will any delay or omission of a party to exercise any right of this Agreement in any manner impair the exercise of any such right accruing to it or of any other right. 20. NOTICES 20.1 Any notice given under this Agreement must be in writing and must be signed by the party giving the notice or any authorised officer of that party Unless and until a party provides notice of a different address or facsimile number to the other parties to this Agreement, its address for service of notices shall be: ANC 11 OF 15 V08/09

12 If it is ANC Level 11, 55 Swanston Street, Melbourne, Vic 3000 Ph: COLLEGE/ Fax: (03) Attention: Campus Officer If it is the Education Agent, 20.3 Unless a later time is specified in a notice, the notice takes effect from the time it is received A notice is taken to be received: in the case of a notice delivered by hand, when so delivered; in the case of a notice sent by pre-paid registered post, on the second clear Business Day after the date of posting; in the case of a notice sent by facsimile, upon the receipt by the sender of a transmission report from the despatching facsimile machine which confirms that all of the pages comprised in the notice have been successfully sent to the receiving party's facsimile number. 21. GENERAL 21.1 Costs and Stamp Duty The Purchaser will be responsible for the payment of all stamp duties, registration fees and any other charges as a consequence of this Agreement or any documents or acts required and incidental to the transaction contemplated by this Agreement. Each party will be responsible for its own legal audit and other costs and expenses associated with and incidental to the preparation of this Agreement and effecting the Completion on the Completion Date Continuing Obligations Any and all of the provisions of this Agreement remaining to be performed or capable of having effect after Completion will remain in full force and effect notwithstanding completion of the sale and transfer under this Agreement. ANC 12 OF 15 V08/09

13 21.3 Further Assurances Each of the parties will procure each of their respective servants and/or agents to sign, execute and deliver all such documents or instruments and will do and procure to be done all such other acts and things as may be necessary or desirable to give full effect to this Agreement Variation No variation or modification of any provision of this Agreement shall be binding upon any of the parties unless such variation or modification is made in writing and duly executed by all the parties Entire Agreement This Agreement contains the entire understanding of the parties with reference to the subject matter and there is no other understanding agreement warranty or representation whether express or implied in any way extending defining or otherwise relating to the provisions of this Agreement or binding on the parties with respect to the fitness, quality or merchantability of the Assets, the sale of the Assets or any of the matters to which this Agreement relates Payments All payments to be made pursuant to this Agreement will be made by bank cheque, company cheque, international bank draft, international electronic transfer or credit card Governing Law This Agreement is governed by and will be construed in accordance with the laws of the State of Victoria in Australia and the parties irrevocably submit to the exclusive jurisdiction of the courts of that State. ANC 13 OF 15 V08/09

14 EXECUTED as an Agreement: EXECUTED by in accordance with section 127 of the Corporations Act 2001: ) ) ) ) CEO/AUTHORIZED REPRESENTATIVE Director / Secretary Sign Here Print Name Print Name *SIGNED SEALED AND DELIVERED by [name of Education Agent] in the presence of: ) ) ) * Witness sign here Sign Here Print Name ANC 14 OF 15 V08/09

15 SCHEDULE A 1. Name of Education Agent: 2. Education Agent s Code: 3. Education Agent s Address: 4. Commencement Date: 5. Termination Date: (A date 12 months after the Commencement Date) 6. The College Commission: Per student per a semester: Agent Agreement commissions authorised by Campus Officer Signature: Date: / / ANC CEO/AUTHORIZED REPRESENTATIVE Authorisation: Approved Declined Signature: Date: / / 7. * Education Agent s details: ANC 15 OF 15 V08/09