Posted as of: 1 January 2023
Effective as of: 1 January 2023
1 Term & Termination
1.1 Our Agreement shall be effective on the date you sign our Agreement (“Commencement Date”) and will continue for six (6) months from Commencement Date (“Initial Term”) and for further terms each of one calendar month commencing on the expiry of the Initial Term (“Further Terms”), unless terminated.
1.2 Neither party may terminate this Agreement during the Initial Term.
1.3 You may terminate this Agreement during any Further Term, thirty (30) days after written notice is provided to Wrkplace (“Termination Date”).
1.4 Wrkplace may terminate this Agreement during any Further Term, ninety (90) days after written notice is provided to You (“Termination Date”).
1.5 Either party may terminate this Agreement immediately by written notice to the other party if:
a. the other party or its subcontractor(s) commits a material breach of this Agreement and that breach is not capable of remedy within ten (10) Business Days of receiving a written notice requiring it to do so;
b. the other party or its subcontractor(s):
- has had appointed an administrator, official manager, provisional liquidator, liquidator or person having a similar function under the Corporations Act or any Action is taken to appoint such a person;
- is the subject of an application or order for dissolution or winding up or a resolution is passed or any steps are taken to pass a resolution for its dissolution or winding up;
- ceases or threatens to cease conducting its business in the normal manner; or
- is charged for a serious integrity offence under the Australian Rules of Racing or Local Rules of Racing, or by ASIC or other government body.
c. a Force Majeure Event continues for a continuous period of at least fifteen(15) Business Days.
2 Variation of Fees
2.1 Either party may at any time during Further Terms of this Agreement give the other party sixty (60) days written notice that it requires a review of the Fees where that party considers that:
- the volume of work, type or nature of the Integrations or Services have materially affected the cost of delivery;
- changes to Application licensing varies the method or cost of providing the Applications, Integrations or Services.
2.2 The parties will negotiate in good faith any variation to fees for the provision of Services where either party requests a review, or any additional or alternate Application, Integration or Service is provided.
3 Invoices and Payments
3.1 On the first day of each month for the duration of this Agreement, we (or our partner Prism, if you are a Prism susbcriber) will invoice You the CRM Fixed Fees in advance on the 1st day of each month.
3.2 On the first day of each month for the duration of this Agreement, Wrkplace will invoice You any Fees for e-Sign or KYC requests in the prior month and any Additional Support Hours Fees requested in the prior month (over and above those included in the Subscription).
3.3 You will pay any valid, undisputed amount in a Fees invoice within fifteen (15) calendar days of invoice date.
3.4 If You consider that a Wrkplace (or a Prism) invoice has not been correctly rendered or disputes the amount payable:
a. You must, as soon as is reasonably practicable, notify that it disputes all or part of the invoice, including details of the dispute and any action which You reasonably considers that Wrkplace should take to rectify the invoice; and
b. until the dispute is resolved, Your payment obligations under clause 3.3 will not apply to the disputed part of the invoice.
3.5 You acknowledge and accept that should Fees not be paid within thirty (30) days of the date on which they are payable, Wrkplace reserves the right to suspend the provision of the Services without notice until any arrears have been received, and Wrkplace shall not be liable for any loss or damage, howsoever arising, You incur as a result of such exercise.
4.1 Wrkplace must, so far as is reasonably practicable, ensure it:
a. supplies Applications and Services in an efficient manner and in accordance with this Agreement;
b. acts under any reasonable and lawful directions given from time to time by You within the scope of this Agreement;
c. provides suitably qualified personnel to deliver and maintain the Applications and Integrations and carry out the Services;
d. keeps abreast of and advise You of relevant advances in technology, innovation and processes for consideration by You;
e. maintains secure infrastructure, security protocols and privacy policies for the protection of Your customers’ Personally Identifiable Information;
f. never stores Your customers’ Personally Identifiable Information on its servers, databases or drives;
g. notifies you of any data breaches that does or may include data related to You or your customers within 48 hours after becoming aware of a breach.
4.2 You must, so far as is reasonably practicable, ensure its personnel:
a. comply with Wrkplace’s reasonable requirements, as notified from time to time, regarding Application security, access and similar matters;
b. comply with the Australian Rules of Racing, Local Rules of Racing and all applicable AFS license conditions;
c. accept that it will have to comply with various technical requirements, including an active internet connection, the configuration of internet browser settings or allowing the use of “cookies” or “flash” content, and it is Your responsibility to ensure that it complies with any and all such technical requirements; and
5.1 Each party will:
a. if there is any doubt as to what constitutes disclosure of Confidential Information which is reasonably necessary for the purposes of this Agreement, obtain written consent from the other part prior to the disclosure of Confidential Information;
b. keep all Confidential Information strictly confidential except as may be reasonably necessary for the purpose of this Agreement, using the same degree of care as it uses to protect its own Confidential Information of like nature, but not less than a reasonable degree of care;
c. not disclose any such Confidential Information to any person other than its Personnel who have a need to know and procure that those Personnel observe these confidentiality requirements as though they were themselves subject to these requirements;
d. at the disclosing party’s option and expense, promptly return such Confidential Information to the disclosing party or destroy the same as soon as practicable upon request by the disclosing party at any time and on termination of this Agreement.
5.2 The receiving party may disclose Confidential Information of the disclosing party, without liability for such disclosure, to the extent that such disclosure is:
a.required to be made pursuant to Applicable Law, by any Government Agency, or by duly authorised subpoena, witness summons, or court order in which case the receiving party will provide prompt notice to the disclosing party and endeavour to give the disclosing party an opportunity to respond prior to such disclosure;
b.required to be made to a court arbitration panel, or other tribunal in connection with the enforcement of the receiving party’s rights under this Agreement; or
c.approved by the prior written consent of the disclosing party.
6 No Keap CRM or Dropbox Sign Software Warranties
6.1 The Keap CRM and Dropbox Sign Applications are provided “as is” without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of fitness for a particular purpose. Wrkplace makes use of third party solutions and cannot warrant systems that we have no control over.
7 Dispute Resolution
7.1 A party claiming that a Dispute has arisen (“Complaining Party”) must notify the other party (“Non-Complaining Party”) giving details of the Dispute (“Dispute Notice”).
7.2 Within ten (10) Business Days after a Dispute Notice, parties must hold good faith discussions in an attempt to resolve the Dispute (“First Meeting”).
7.3 If the Dispute is not resolved at this First Meeting or within ten (10) Business Days following the First Meeting, the parties must hold further good faith discussions in an attempt to resolve the Dispute (“Second Meeting”).
7.4 If the Dispute is not resolved at the Second Meeting or within ten (10) Business Days following the Second Meeting, either Party may immediately refer the Dispute to mediation. Complaining Party and the Non-Complaining Party must each pay one half of the mediation fees, irrespective of the result of the mediation. The mediation must be conducted in accordance with the mediation guidelines of the Law Institute of Victoria.
7.5 If the Dispute is not resolved within twenty (20) Business Days after commencement of mediation, either party may commence court proceedings in respect of the Dispute.
7.6 Despite the existence of a Dispute between the parties, both parties must perform their other obligations under this Agreement.