crm TERMS AND CONDITIONS
These Terms & Conditions and the Proposal collectively form a Services Agreement (“Agreement”) between the Company and the Client.
In this Agreement;
The “Client” means the Client named in the Proposal, and includes any of its employees, contractors and agents.
The “Company” means Mapeton Pty Ltd, ABN 20 634 494 321 trading as Trust the Process and includes any of its employees, contractors, agents, successors and assigns.
“Confidential Information” means any information in respect of the business or affairs of the Client that is not in the public domain including, but not limited to, customer lists, pricing/costing mechanisms and structures, strategy and planning materials, trade secrets, and anything marked as confidential; but does not include anything in the public domain and or already known to the Company prior to the date of this Agreement.
“Intellectual Property Rights” means intellectual property rights at any time protected by statute or common law, including copyright, trademarks, patents and registered designs.
The “Platform” means the third party software platform referred to in the Proposal.
The “Services” means the services provided by the Company to the Client pursuant to this Agreement, which may include designing and implementing a CRM sales flow for the Client’s business.
Scope of Services
The Client acknowledges that the Services to be provided by the Company shall be limited to those set out in the Proposal as the scope of services (the “Scope”).
The Client acknowledges and agrees that;
If it becomes apparent during the course of providing the Services that additional work will be required outside of the Scope, then the Company shall provide an estimate of the additional fees applying and any change to the estimated timing of the Services, which estimate may be accepted or declined by the Client.
In the event that the Client requests any additional work outside of the Scope, the Company shall provide an estimate of the additional fees applying and any change to the estimated timing of the Services, which estimate may be accepted or declined by the Client.
The parties agree that this Agreement does not create an agency, employment or partnership relationship between the Client and the Company.
The Client acknowledges that;
By making payment of the Fees and/or requesting the Company to provide the Services after receiving this Agreement, the Client will be taken to have read and understood the Agreement, and to have agreed to become bound by its terms.
Whilst the Company will provide the Services in a professional manner, the Company will not be deemed to have breached this Agreement, will not have any liability for loss or damage incurred by the Client, and will be entitled to all Fees for Services provided notwithstanding the fact that a particular outcome (including but not limited to a certain level of leads generated or new work acquired) has not been achieved.
The Client acknowledges and agrees that;
The results of the Services will be dependent on numerous external factors, including the actions of competitors and general market conditions, which are beyond the control of the Company;
The Company does not guarantee or warrant an increase in leads or sales arising out of or in connection with the Services;
Activities, such as website changes and other marketing activities, undertaken by the Client may negatively affect or conflict with the Services, and the Client agrees to notify the Company of any such activities being undertaken which may affect the performance of the Services.
The Client acknowledges and agrees that;
The Client must be available to communicate with the Company and participate in any meetings requested by the Company (including but not limited to meetings with representatives of the Platform) in order for the Services to be carried out. In the event that the Client fails to be available and this affects the provision of the Services, this may result in additional services being required outside of the original Scope and will be dealt with in accordance with clause 2.2.
The Client may be consulted at various stages during the provision of the Services, to confirm whether they approve of particular aspects of the Services. The Client agrees that the Company will rely on such approvals in continuing to carry out the Services and should the Client raise a concern or request changes at a later stage, this may result in additional services being required outside of the original Scope and will be dealt with in accordance with clause 2.2.
The Client will provide all such information, details and other assistance as may reasonably be required by the Company in order to provide the Services.
Invoicing and Payment
The Company will charge Fees as set out in the Proposal.
Goods and Services Tax and any other taxes and duties that may be applicable shall be charged in addition, except where expressly stated to be included in the Fees.
The Fees shall be paid by the Client in accordance with the payment terms set out in the Proposal, in the currency in which they are invoiced in cleared funds, without any set-off, withholding or deduction.
The Client agrees that if it fails to make any payment due in accordance with this Agreement, the Company is entitled to;
Suspend the provision of Services until all money due is fully paid; and if any money remains outstanding for more than 14 days, then the Company may terminate the Agreement;
Charge interest on all payments outstanding at the rate of 10% per annum, calculated on a daily basis; and
Recover all costs and expenses incurred in trying to obtain payment of amounts outstanding, including legal costs on an indemnity basis.
Third Party Platform
The Client acknowledges and agrees that in order for the Company to provide the Services, the Client will need to obtain a subscription to the Platform, and to maintain such subscription throughout the term of this Agreement, at the Client’s own cost.
The Company will, if requested by the Client, use its best endeavours to negotiate competitive pricing for the Platform. However the Client acknowledges and agrees that the subscription will be a separate contract between the Client and the Platform, subject to the Platform’s own terms and conditions of service, and the Client will be solely responsible for the payment of all fees owing to the Platform. The Company shall not have any liability in relation to such contract between the Client and the Platform.
The Client acknowledges and agrees they have carried out their own assessment of the suitability of the Platform and the Services to be provided by the Company, and are satisfied that the Platform and the Services will meet the Client’s needs.
Term and Termination
This Agreement will commence on the Commencement Date set out in the Proposal, and continue thereafter on an ongoing basis until the Services are completed or this Agreement is terminated.
Should the Client’s subscription to the Platform be suspended or cancelled for any reason whatsoever, the Company shall be entitled to terminate this Agreement effective immediately.
Either party may terminate this Agreement without cause by giving 30 days notice in writing to the other.
Upon termination the Client must immediately pay all Fees and other monies owing to the Company in accordance with this Agreement. If this Agreement is terminated part-way through a payment period, then the Client shall be obliged to pay the Company an appropriate pro-rata payment as determined by the Company in its reasonable opinion.
Termination of this Agreement shall not release either party from any liability or right of action which at the time of expiry or termination has already accrued to either party or which may thereafter accrue in respect of any act or omission prior to such expiry or termination. Such rights shall include but not be limited to the recovery of any monies due under this Agreement
The Client acknowledges that the Company may require access to its Confidential Information for the purpose of providing Services to the Client, and the Company will take all reasonable steps to ensure that any records of Confidential Information held by the Company are secure from any unauthorised use, misuse or disclosure however cannot guarantee that Confidential Information cannot be accessed by an unauthorised person or that unauthorised disclosure will not occur.
The Client hereby acknowledges and agrees that the Company shall not be liable to the Client or any third party for any loss or damage whatsoever sustained or incurred as a result of any unauthorised access to or disclosure of Confidential Information.
The Client shall fully and completely indemnify the Company in respect of all claims, actions, demands, suits, loss and/or damage sustained by any person or party whatsoever caused by or in connection with or arising out of any unauthorised access to or disclosure of Confidential Information, and in respect of all costs and charges in connection therewith whether arising under statute or common law.
The Company acknowledges that all Intellectual Property Rights belonging to the Client shall remain the property of the Client. The Client grants to the Company a limited license in respect of such Intellectual Property to the extent necessary for the Company to provide Services to the Client pursuant to this Agreement.
The Client acknowledges that all Intellectual Property Rights belonging to the Company shall remain the property of the Company. The Company grants to the Client a limited license in respect of such Intellectual Property to the extent necessary for the Client to obtain the benefit of Services provided pursuant to this Agreement.
The Intellectual Property Rights in any materials created or developed by the Company for the Client in the course of providing Services to the Client, shall pass to the Client upon full payment of all Fees owing pursuant to this Agreement to the Company.
The Company shall have the right to reference its relationship with the Client, including all authorised testimonials, on its website, social media and in public outreach efforts.
Performance of Services
The Client acknowledges and agrees that in the course of providing the Services, the Company may utilise the services, equipment and/or facilities of third parties, including subcontractors, in its absolute discretion, without prior notice to or permission from the Client.
All warranties and conditions relating to the provision of the Services by the Company to the Client which may by law be excluded, are expressly excluded. Where such warranties or conditions cannot be excluded, modified or restricted, the Company’s liability will be limited, at its option, to;
Resupplying the Services; or
Payment of the reasonable cost of resupplying the Services.
Liability and Indemnity
To the maximum extent permitted by law, the Company shall not be liable to the Client or any third party under any circumstances for any loss or damage, loss of profit, interruption to business, or for any indirect, incidental or consequential loss and damage sustained or incurred by the Client, whether such liability arises directly or indirectly as a result of or in connection with the provision of Services by the Company to the Client.
The Client agrees to release, indemnify, defend and hold harmless the Company and any related bodies corporate against all losses, damages, expenses, liabilities and costs of whatever nature (including legal costs on an indemnity basis) which it or they incur or suffer as a result, whether directly or indirectly, of any breach of this Agreement by the Client.
Neither party may assign their rights and/or obligations under this Agreement without the consent of the other party.
The Company may vary this Agreement by providing the Client 14 days notice in writing.
Except as otherwise stated in this Agreement, any notice or communication required or permitted to be given under this Agreement must be in writing and shall be deemed given by the sending party and received by the receiving party when such notice or communication is delivered.
For the purposes of Sections 9 and 10 of the Electronic Transactions Act 1999 (Cth) and Sections 8 and 9 of the Electronic Transactions Act 2000 (NSW), the parties consent and agree that any notice or communication required or permitted to be given in writing under this Agreement can be given electronically, provided that it complies with that legislation as applicable.
Severance and Waiver
If any part of this Agreement is found to be void, unlawful or unenforceable then that part will be deemed to be severed from the Agreement and the severed part will not affect the validity and enforceability of any remaining provisions.
Any failure by a party to enforce any of the provisions of this Agreement shall not be construed as a waiver of such provision or any other provision hereof unless expressly in writing and signed by an authorised representative of that party.
This Agreement supersedes all prior agreements, arrangements or understandings (whether written or verbal) between the parties with respect to the subject matter of this Agreement.
This Agreement shall be deemed to have been made in New South Wales and shall be interpreted in accordance with the laws of New South Wales, Australia. The parties irrevocably submit to the exclusive jurisdiction of the Courts of New South Wales, Australia with regard to any suit, action or proceeding arising out of or relating to this Agreement and the provision of the Services.
The language in all parts of this Agreement will be construed, in all cases, according to its fair meaning, and not for or against either party. The parties acknowledge that each party has had an opportunity to review and negotiate on the terms of this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement.
If a dispute (“Dispute”) arises out of or relates to this Agreement (including any dispute as to breach or termination of the Agreement or as to any claim in tort, in equity, or pursuant to any statute), a party may not commence any court, arbitration proceedings or alternative dispute procedure other than as provided for herein relating to the Dispute unless it has complied with the following paragraphs of this clause except where the party seeks urgent interlocutory relief.
A party claiming that a Dispute has arisen under or in relation to this Agreement must give written notice (“Notice”) to the other party specifying the nature of the Dispute.
On receipt of that notice by that other party, the parties must endeavour in good faith to resolve the Dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation, or similar techniques agreed by them.
If the parties do not agree within 7 days of receipt of the Notice (or such further period as agreed in writing by them) as to the dispute resolution technique and procedures to be adopted; the timetable for all steps in those procedures; and the selection and compensation of the independent person required for such technique; then the parties must mediate the Dispute in accordance with the Mediation Rules of the Law Society of New South Wales, and the President of the Law Society of New South Wales, or the President’s nominee, will select the mediator and determine the mediator’s hourly remuneration.
For the purpose of this Agreement “force majeure” means circumstances or occurrences beyond the Company’s reasonable control, whether or not foreseeable at the time of signing this Agreement, in consequence of which the Company cannot reasonably be required to complete the Services or otherwise perform its obligations under this Agreement. Such circumstances or occurrences include, but are not limited to: acts of God, war, civil war, insurrection, fires, floods, labor disputes, epidemics and pandemics, governmental regulations and/or similar acts, embargoes, and non-availability of any permits, licenses and/or authorizations required by governmental authority.
In the event of force majeure, the Company may terminate this Agreement without liability to Client, provided the Company refunds all amounts which Client has already paid to the Company for Services not fully performed.