Terms & Conditions

These terms and conditions cover any and every type of communication, interaction or engagement with CustomerFusion and or any of its associates, or associated entities and parties involved in any such engagement. All interaction of any kind is governed by these terms and conditions and is subject to the required processes, protocols and requirements advised to any party and is incumbent on those requirements being adhered to at all times, to facilitate execution of any activity.

The terms & conditions are general in lieu of any specific agreement and cover any interaction or engagement and may be specifically created in writing for individual requirements or projects.

 

 

Each of CustomerFusion and any other party may hereinafter be referred to as a “Party” and collectively as the “Parties”.

                                                                                                                                                           

WHEREAS, a Party wishes to retain the services of CustomerFusion to perform - (including but not limited to services in relation to Party’s products (collectively “Services”); And as specified in any annexure, specific project scope, quotation/estimate or other formal written outline of scope of works which is signed and approved by an authorised Party representative for that project or requirements from time-to-time.

 

WHEREAS, CustomerFusion is willing to provide such Services to Party in accordance with the terms and conditions of this Agreement and future individual project proposals (“Project Proposals”) specifying the details of the Services; and 

 

NOW, THEREFORE, for good and valuable consideration contained herein, the exchange, receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows.

 

 

  1. SERVICES

 

  1. CustomerFusion will diligently perform the Services as set forth in each Project Proposal (which will be substantially in the form attached or as referred to in above in the written scope of works or such related documents referred to) and approved by the authorised Party representative in compliance with this Agreement, all applicable laws, rules and regulations currently in force and which may hereinafter be enacted during the term of this Agreement and professional industry standards and practices.

 

  1. The Parties agree to conclude a separate Project Proposal for each project to which the general conditions of this Agreement are applicable unless otherwise agreed.  In case of any conflict between this Agreement and the provisions of a Project Proposal, the former will prevail, except to the extent that the applicable Project Proposal expressly states an intent to modify the terms of the Agreement on a specific matter.  Each Project Proposal will include detailed information concerning a given project, including without limitation a description of the specific Services to be provided, (as applicable), and a budget related to the project, all of which will be signed by an authorised representative of each Party.

 

  1. It is clearly understood by the Parties that Party will not be obliged to enter into any Project Proposals with CustomerFusion as a result of this Agreement.  Furthermore, CustomerFusion has no right to compensation for Project Proposals that have not been executed by authorised representatives of both Parties. No work will be performed by CustomerFusion until both Parties have agreed or signed a Project Proposal, unless both Parties have agreed to proceed by other such confirmation such as e-mail, phone, message or any other form of accepted acknowledgement, and such services shall be subject to the terms and conditions contained herein.

 

1.4    The Parties acknowledge and agree that Affiliates of Party and Party may request Services of CustomerFusion and Affiliates of CustomerFusion pursuant to this Agreement by executing a Project Proposal or other applicable contractual document(s) in accordance with this Agreement.  For the purposes of this Agreement, “Affiliate” means any firm, person or company which controls, is controlled by or is under common control with a Party and for the purpose of this definition the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such firm, person or company, whether through the ownership of voting securities, by contract or otherwise or the ownership either directly or indirectly of such firm, person or company.

 

1.5    Customerfusion only publishes, releases material, content or other such items related to any project based on the authorised Party representative’s approval. Party is responsible for checking and final approval of all project materials and components prior to release or publishing and that client approval in whatever form is the authority to Customerfusion to publish, release those approved items as instructed by the Party representative. This approval signifies Party’s responsibility for that material’s release and use.

 

 

 

  1. PAYMENT

 

  1. For its performance of Services CustomerFusion will receive payment as set forth in the Project Proposals.  Payments will be inclusive of all applicable taxes, excluding goods and services tax (“GST”). Where applicable, GST will be charged separately at the standard rate.

 

  1. CustomerFusion will submit a Tax Invoice for 50% on approval and 50% after the completion of the Services as scheduled in the Project Proposal or as otherwise agreed by the Parties.  The invoice shall bear CustomerFusion’s ABN number.  All Tax invoices shall be payable in full within thirty (30) days from receipt of the Tax Invoice.  

 

  1. Reasonable direct expenses in relation to the Services will, subject to prior written approval by Party in accordance with the Project Proposal, be reimbursed by Party upon receipt of copies of the applicable receipts and shall include but not be limited to reasonable out-of-pocket expenses such as travel, lodging and meals, and courier charges when appropriate.  An estimate of such expenses will be included in the Project Proposal.  Additional unforeseen expenses not provided for in the Project Proposal will only be incurred and reimbursed if agreed in advance and in writing by the Parties.

 

2.4    Provided that the Parties have not agreed in the relevant Project Proposal a fixed price for the performance of the Services.

 

  1. Party and CustomerFusion may at any time agree to modify the scope of the Services.  If Party decides to modify the scope of the Services as specified in the Project Proposal, Party will notify CustomerFusion in writing. CustomerFusion will generate and provide to Party a Change Order, with a cost and time estimate for performing any additional Services.  The revised cost estimate for additional Services will be based on the rates specified in the original Project Proposal.  CustomerFusion will not be expected to commence work on the additional Services until authorised representatives of both Parties have agreed and signed the Change Order.  

 

 

  1. PERSONNEL

 

  1. CustomerFusion will perform the agreed Services with appropriate personnel specialist areas of expertise required for each project, having skills and training appropriate for providing the agreed Services. 

 

  1. CustomerFusion understands and agrees that its relationship to Party will be that of an independent contractor, whose staff are not considered to be employees or agents of Party, and who will not be entitled to participate in any of the benefits and privileges available to employees of Party.  Nothing contained herein shall be construed to be inconsistent with that relationship or status.  CustomerFusion personnel will remain at all times under the conditions of employment and management of CustomerFusion, whether their activities are carried out on Party site or not.  CustomerFusion shall assume all liabilities and obligations imposed by any Applicable Laws with respect to employees of CustomerFusion in their performance of this Agreement and any Project Proposals.  This Agreement shall not constitute, create, or in any way be interpreted as, a joint venture, partnership, or business organisation of any kind.  Neither Party shall have the authority to assume or create any obligation, express or implied, on behalf of the other Party.  

 

 

  1. CONFLICTS

 

  1. CustomerFusion represents and warrants to Party that CustomerFusion is not party to any agreement which would prevent it from fulfilling its obligations under this Agreement, and by signing this Agreement CustomerFusion warrants that it is entitled to enter into the contractual relationship with Party.

 

 

 

 

  1. MATERIALS, EQUIPMENT AND INFORMATION

 

  1. Unless otherwise agreed in advance and in writing, all materials, equipment and information, including computer software, provided, purchased or developed by Party (“Service Materials and Information”) and Third Party Information (defined in Clause 8.1), which are intended to facilitate CustomerFusion in carrying out its obligations under this Agreement are and shall remain the property of Party and, as between Party and CustomerFusion, are and shall remain in the ownership of Party.

 

  1. Unless otherwise agreed in advance and in writing, nothing contained herein will grant to Party any right, title, interest or permission in relation to any materials, equipment or proprietary techniques, including computer software, purchased or developed by CustomerFusion independently of carrying out the Services under this Agreement and intended to further the general expertise of CustomerFusion in its field (“CustomerFusion Proprietary Materials and Information”).

 

  1. All materials and information and specifically create files resulting from CustomerFusion carrying out the Services under this Agreement including, without limitation, all data, records, reports, analyses, summaries, statistics and the like, whether in written, electronic, graphic or any other form (“Project Materials and Information”) shall be the exclusive property and ownership of Party.

 

  1. For the avoidance of doubt and except as may otherwise be specifically agreed in writing in any Project Proposal, CustomerFusion agrees and represents that:

 

(a)         as between the Parties hereto, Party will own and shall have the unrestricted free right to use for all purposes all Service Materials and Information and all Project Materials and Information; and

 

(b)         as between the Parties hereto, CustomerFusion shall own and have the unrestricted free right to use the CustomerFusion Proprietary Materials and Information; and 

 

(c)         CustomerFusion is entitled to deliver the Project Materials and Information, including without limitation the Created Materials (as defined in Clause 7.3), for the free and unencumbered use of Party and its Affiliates.

 

“Use” includes, without limitation, the right to copy or publish in any form, including transmitting, posting or storing electronically and issuing or distributing copies to the public and making a copy in three dimensions of a two-dimensional work and vice versa.

 

 

  1. RETENTION OF DATA AND RECORDS AND PHYSICAL PROPERTY

 

  1. During the Term of this Agreement CustomerFusion will maintain all Information (defined in Clause 8.1), including all computerised records and files, in a secure manner reasonably protected from fire, theft and destruction.  

 

  1. If required by Party, then at the expiration or termination of this Agreement and/or any Project Proposal and upon written instruction from Party, all Information (or part thereof), including without limitation all notes or summaries thereof will, at Party’s election,be:

 

(a)      delivered to Party at its offices, or to such other reasonable location within Australia which Party may indicate in writing to CustomerFusion, in such form as is then currently in the possession of CustomerFusion, which may include receipted electronic delivery to Party by prior agreement of Party;  or

 

(b)      disposed of, at the direction and written request of Party, unless such Information (or part thereof) is otherwise required to be stored or maintained by CustomerFusion as a matter of Applicable Laws.

 

  1. Party shall be responsible for the costs of shipping the Information (or part thereof) requested pursuant to Clause 6.2(a). The Parties shall agree transit and carrier instructions (“Agreed Transit Instructions”), following which Party shall have no claim against CustomerFusion for damage to or loss of such Information following delivery provided that the Information has been delivered in accordance with the Agreed Transit Instructions. 

 

  1. In no event will CustomerFusion dispose of any Information without first giving Party sixty (60) days’ prior written notice of its intent to do so. 

 

  1. Notwithstanding the foregoing, CustomerFusion may retain the minimum number of copies of any part of the Information as it deems reasonably necessary for regulatory or insurance purposes or to demonstrate the performance of its obligations hereunder, subject to its ongoing obligation to maintain the confidentiality of such Information under Clause 8 hereof.

 

 

  1. INTELLECTUAL PROPERTY RIGHTS

 

  1. Neither anything contained herein nor shall the delivery of any Service Materials and Information or any other Party proprietary information to CustomerFusion be deemed to grant CustomerFusion any right or licence under any intellectual property rights (including without limitation patents, patent applications, trademarks, copyrights design rights, know-how, technology, or inventions) of Party (“Intellectual Property Rights”).  Party shall retain full ownership rights in all its pre-existing Intellectual Property Rights, Service Materials and Information and any other Party proprietary information.

 

  1. Mutually anything contained herein nor shall the delivery of any Service Materials and Information or any other CustomerFusion proprietary information to Party be deemed to grant Party any right or licence under any intellectual property rights (including without limitation patents, patent applications, trademarks, copyrights design rights, know-how, technology, or inventions) of CustomerFusion (“Intellectual Property Rights”).  CustomerFusion shall retain full ownership rights in all its pre-existing Intellectual Property Rights, Service Materials and Information and any other CustomerFusion proprietary information.

 

 

  1. Neither anything contained herein nor shall the carrying out of the Services by CustomerFusion be deemed to grant to CustomerFusion any right, title, interest or permission in relation to any Project Materials and Information or under any Intellectual Property Rights arising in relation thereto.

 

  1. CustomerFusion agrees that, upon full payment of all amounts due and properly owing to it under any Project Proposal and this Agreement, it shall assign to Party or its Affiliates, at Party’s request and expense, all right, title and interest, free of all encumbrances, in relation to all Project Materials and Information which are protected or protectable by Intellectual Property Rights (“Created Materials”).  

 

  1. CustomerFusion shall clearly identify any author’s rights, moral rights or other similar rights in the Project Materials and Information, including without limitation the Created Materials, and to the extent reasonably practical shall obtain a waiver of author's rights, moral rights or other similar rights with respect to the foregoing, including without limitation rights to be identified and moral rights and the right of integrity (including the right to add, delete from or otherwise alter or adapt the Created Material) with respect thereto. 

 

  1. CustomerFusion shall fully co-operate, at Party’s expense, in the preparation, execution, delivery, and filing of all papers and instruments necessary or appropriate to assist Party in establishing and maintaining its rights in the Created Materials. 

 

 

 

  1. CONFIDENTIALITY

 

  1. Subject to the provisions of Clauses 8.2 and 8.3 hereof, CustomerFusion agrees to treat as the confidential and exclusive property of Party any information obtained from Party, including, without limitation, commercial, scientific, medical and technical information and data relating to Party and its Affiliates.  Further, CustomerFusion understands that Party’s and its Affiliates’ relationships with its licensors, contractual parties, prospective licensors and prospective contractual parties, officers and employees is one of confidence and that during the Term of this Agreement CustomerFusion may receive, or may have already received, knowledge of, or access to, information which relates to the business, operations, products, or plans of Party, its Affiliates or any other of the foregoing. Moreover, Party may supply to CustomerFusion data and information owned by or licensed by third parties for the purpose of performing Services pursuant to this Agreement (collectively, “Third Party Information”), which CustomerFusion understands and agrees to keep in confidence.   All such data and information referred to herein together with any information derived therefrom, including without limitation the Service Materials and Information, the Project Materials and Information and the Third Party Information, shall be referred to collectively as the “Information”.

 

  1. CustomerFusion agrees that it will use the Information only to provide the Services and for no other purpose without the prior written consent of Party.  CustomerFusion agrees not to disclose any of the Information to any third party without first obtaining the written consent of Party.  CustomerFusion further agrees to take all reasonable steps to ensure that the Information will not be used by its directors, officers, employees, agents, representatives and advisors, except on the same terms of confidentiality as apply hereunder.

 

  1. The above provisions of confidentiality will not apply to any part of the Information that CustomerFusion is able to demonstrate by documentary evidence:

 

(a)      was fully in possession of CustomerFusion prior to receipt from Party; or

 

(b)      was in the public domain at the time of receipt from Party, or becomes part of the public domain through no fault of CustomerFusion, its directors, officers, employees, agents, representatives or advisors; or

 

(c)      is lawfully received by CustomerFusion from a third party having a right of further disclosure; or

 

(d)      is developed by CustomerFusion without use of any kind of the Information; or

 

(e)      is required by Applicable Laws to be disclosed, provided that CustomerFusion provides prior written notice thereof to Party and limits disclosure the minimum required by Applicable Laws.

 

  1. CustomerFusion acknowledges that disclosure or distribution of the Information or use of the Information contrary to the terms of this Agreement may cause irreparable harm for which damages at law may not be an adequate remedy, and agrees that the provisions of this Agreement prohibiting disclosure or distribution of the Information or use contrary to the provisions hereof may be specifically enforced by a court competent jurisdiction in addition to any and all other remedies available at law or in equity.

 

 

 

  1. NON-INFRINGEMENT OF THIRD PARTY RIGHTS

 

10.1 CustomerFusion warrants to the best of its knowledge that either (a) the Project Materials and Information (including without limitation the Created Materials) do not infringe any third party’s Intellectual Property Rights (including without limitation copyrights, author’s rights and moral rights); or (b) CustomerFusion is duly licensed to use any third party Intellectual Property Rights therein.

 

 

 

  1. INDEMNIFICATION

 

 

  1. Party will defend indemnify and hold harmless CustomerFusion, its directors, officers and employees against and from any and all damages, costs, penalties, expenses and other liabilities, including without limitation reasonable attorneys and professional fees and court costs, incurred in connection with any third party Claims i) as determined by a court of competent jurisdiction, or ii) as agreed in settlement of such Claims, provided such settlement has the prior consent of Party, such consent not to be unreasonably withheld or delayed, to the extent such Claims arise from the negligence, breach of obligations under this Agreement or any Project Proposal, breach of statutory duty or intentional misconduct of Party, its Affiliates or any of its or their directors, officers, employees, agents or representatives, provided however, that Party will have no obligation hereunder with respect to any Claims to the extent determined by a court of competent jurisdiction to have arisen from the negligence or intentional misconduct on the part of CustomerFusion or any of its directors, officers, employees, agents or representatives or breach by CustomerFusion of any of its obligations under this Agreement or any Project Proposal or CustomerFusion’s failure to comply with Party’s reasonable instructions.

 

  1. The indemnified Party will reasonably cooperate in the investigation and defence of any Claim for which indemnification is sought hereunder and will provide prompt notice of any such claim or reasonably expected claim to the indemnifying Party.

 

  1. In any event Party will have the right, but not the obligation at its own cost, to control the defence of any and all such actions and lawsuits and will have the right to select and engage counsel of its own choice.

 

  1.  Subject to any other conditions or terms associated with any component or part of any project.

 

 

 

  1. FORCE MAJEURE

 

  1. In the event either Party is delayed or hindered in or prevented from the performance of any act required hereunder by reasons of strike, lockouts, labour troubles (except those within the control of such Party and strikes or disputes between such Party and its employees, contractors and suppliers), restrictive government or judicial orders or decrees, riots, insurrection, war, Acts of God, inclement weather or other similar reason or cause beyond such Party’s control (a “Force Majeure Event”), then performance of such act will be excused for the period of such delay, provided however, that such Party shall exert its reasonable efforts to eliminate or cure or overcome such Force Majeure Event and to resume performance of its obligations in a timely manner.  Notice of the start and stop of such Force Majeure Event will be provided by such Party to the other Party.  Any timeline or milestone obligations of such Party affected by the Force Majeure Event will be extended for a period of time equal to the number of days of the delay, provided however, that in the event that such Party is unable to overcome such Force Majeure Event within thirty (30) days, the other Party may terminate this Agreement and any Project Proposals under which Services are being provided by written notice effective in accordance with Clause 17.8.  In such circumstances, Party shall pay CustomerFusion for all Services performed in accordance with this Agreement and any Project Proposal as well as any non-cancellable pass-through expenses incurred in accordance with this Agreement up to the effective date of termination.

 

 

  1. DELAYS

 

  1. If the Parties agree in writing that the actual start or progress of the Service is delayed for unavoidable justified reasons, Party and CustomerFusion will consult in good faith and agree upon a revised schedule for the Services and CustomerFusion will complete its duties and obligations as described in the Project Proposal in accordance with the revised schedule.

 

  1. Additional reasonable unavoidable costs and expenses incurred by CustomerFusion resulting from such delay will be reimbursed by Party following good faith discussion by the Parties and prior written agreement.

 

  1. CustomerFusion will not be held responsible for errors, delays or other consequences to the extent that such errors, delays or consequences arise solely or in substantial part from the failure of Party to provide necessary documents, materials, records or cooperation as agreed in advance and in writing.  CustomerFusion shall advise Party promptly in writing in the event it is being hindered in the performance or completion of Services by the failure of Party to provide required documents, materials, records or cooperation.  

 

 

  1. TERM AND TERMINATION

 

  1. This Agreement will become effective on the Effective Date and will remain in effect unless terminated in accordance with the provisions of Clauses, 12.1, 14.2 or 15.1, for any period agreed from time to time or on a rolling monthly basis (the “Initial Period”) and shall automatically renew for successive periods thereafter (together with the Initial Period, the “Term”) until either Party provides the other with notice of its intention not to renew or continue with the Agreement, provided such notice is given not less than ninety (30) days prior. 

 

  1. This Agreement and/or any Project Proposal may be terminated by either Party upon the occurrence of any material default in performance by the other Party, provided that any defaulting Party shall be given thirty (30) days’ prior written notice of default.

 

  1. Termination of this Agreement shall not affect the accrued rights or remedies of either Party arising under or out of this Agreement and the Project Proposals, which are expressed to or by implication survive this Agreement and shall remain in full force and effect.

 

 

  1. PREMATURE TERMINATION

 

  1. Notwithstanding anything to the contrary stated herein, this Agreement and/or any Project Proposal can be terminated in accordance with the following provisions:

 

  1.     immediately by either Party if the other Party becomes insolvent or if all or a substantial part of its business or assets shall be placed in the hands of an insolvency practitioner, bankruptcy trustee or analogous officer, is dissolved or liquidated, makes a general assignment for the benefit of its creditors, or files or has filed against it a petition for bankruptcy or has a receiver appointed over a substantial part of its assets; or 

 

  1.     immediately by Party if CustomerFusion enters into any arrangement which may reasonably be deemed by Party to potentially adversely impact a Project Proposal; or

 

  1.     immediately by Party if CustomerFusion merges with, acquires or is acquired by another entity, and CustomerFusion cannot demonstrate to Party’s reasonable satisfaction that such transaction will not hinder or delay or otherwise adversely affect the performance of Services hereunder; or

 

  1.     with respect to any Project Proposal, by Party or CustomerFusion at any time with or without cause by giving at least thirty (30) days’ prior written notice, unless any other term is stated and agreed in a specific projects scope of work.

 

  1. In the event that Party decides to terminate an ongoing Project Proposal for whatever reason, Party will immediately inform CustomerFusion, and CustomerFusion will stop all activities under the Project Proposal other than those which are required to fulfil legal and/or ethical obligations or obligations to third parties or which are specifically requested in writing by Party to be continued.

 

  1. Party will at its sole discretion specify which other Services under the terminated Project Proposal must be completed by CustomerFusion. The effective date of termination of the Project Proposal will be extended to the extent that completion of such Services extends beyond the expiration of the requisite termination notice period, and only with respect to those Services specified by Party until they are completed.

 

  1. As soon as possible following receipt of written notice to terminate the Project Proposal, CustomerFusionwill cooperate with Party to provide for an orderly cessation of the Services provided by CustomerFusion.  In particular, but without prejudice to the foregoing generally, Party will subject to Clauses 6 and 7 be entitled to immediate possession of all Project Materials and Information, including documents generated in the course of providing the Services, or to good quality copies where regulatory constraints prevent transfer of the original.  This right will not be subordinated to any similar right granted to creditors.

 

  1. In the event of premature termination by Party without cause, subject to CustomerFusion’s obligation to mitigate such costs and expenses, Party will pay all reasonable, actual, irrevocable, non-reallocable, non-cancellable, unavoidable fees and costs and expenses already incurred (subject to the terms of this Agreement) and due until the effective date of termination and pertaining to the obligation and performance of CustomerFusion pursuant to the Project Proposals including termination and all non-cancellable costs  (including costs under permitted sub contracts entered into prior to receipt of notice of termination and subject in any event to the provisions of Clause 18) which CustomerFusion incurs as a result of the premature termination of the Agreement by Party.  CustomerFusion will provide an amount detailing the fees and costs and expenses involved.

 

 

 

 

 

 

 

 

  1. MISCELLANEOUS  

 

 

 

  1. Any Agreement and any non-contractual obligations arising from or in connection with it shall in all respects be governed by and interpreted in accordance with Australian & New Zealand law. The Parties also irrevocably agree that the Courts of Australia are to have non-exclusive jurisdiction over any dispute (i) arising from or in connection with the Agreement or (ii) relating to any non-contractual obligations arising from or in connection with the Agreement, and hereby submit to such jurisdiction.

 

  1. If any term of this Agreement is declared invalid or unenforceable by a court or other body of competent jurisdiction, the remaining terms of this Agreement shall continue in full force and effect.

 

  1. Any Agreement may be executed in one or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument.

 

  1. The terms of Clauses 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13.2, 17.3, 17.4 and 19 and the Parties’ obligations thereunder, shall survive termination or expiration of this Agreement and completion of CustomerFusion’s Services hereunder.

 

  1. The Parties agree to execute, acknowledge and deliver such further instruments and to undertake all such other incidental acts as may be reasonably necessary or appropriate to carry out the purpose and intent of this Agreement.

 

  1. Notices provided for in this Agreement shall be in writing and sent by Express prepaid postage, or delivered personally, or by overnight delivery service or by facsimile, with confirmation of receipt, addressed to the following persons:

 

 

                                                                                                

Notices shall be deemed effective three (2) working days after the date of posting in the case of Express prepaid postage and if delivered by hand on the date of delivery, one (1) working day following delivery in the case of overnight delivery, and immediately following delivery by facsimile with confirmation of receipt.

 

 

 

 

17.0 DIGITAL SERVICES PROVISION

 

  1. GENERAL

    1. Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.

    2. No person other than you and us has any right to a benefit under, or to enforce, these Terms.

    3. For us to waive a right under these Terms, that waiver must be in writing and signed by us.

    4. Subject to clause 6, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.

    5. If we need to contact you, we may do so by email or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications. You may give notice to us under or in connection with these Terms by emailing info@customerfusion.com.au.

    6. These Terms, and any dispute relating to these Terms or the Service, are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with these Terms or the Service.

    7. Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 6.8, 8, 9, 11 continue in force.

    8. If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.

    9. Subject to other clauses any variation to these Terms must be in writing and signed by both parties.

    10. These Terms set out everything agreed by the parties relating to the Service, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the Service that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date. 

    11. You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.

 

  1. INTELLECTUAL PROPERTY

  1. Subject to clause 8.2, title to, and all Intellectual Property Rights in, the Service, the Website, and all Underlying Systems is and remains our property (and our licensors’ property). You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.

  2. Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains your property. Subject to the Data Processing Addendum attached to these Terms (if applicable), you grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms.

  3. To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Services.

  4. If you provide us with ideas, comments or suggestions relating to the Service or Underlying Systems (together feedback):

    1. all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and

    2. we may use or disclose the feedback for any purpose.

  5. You acknowledge that the Service may link to third party websites or feeds that are connected or relevant to the Service. Any link from the Service does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.

LIABILITY

  1. No liability: To the maximum extent permitted by law:

    1. the Client accesses and uses the Service at its own risk; and

    2. the Supplier is not liable or responsible to the Client or any other person for any claim, damage, loss, liability, and cost under or in connection with the Agreement, the Service, or the Client’s access and use of (or inability to access o] use) the Service. This exclusion applies regardless of whether the Supplier’s liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.

  2. Maximum liability: To the maximum extent permitted by law and only to the extent clause 11.1 does not apply, the maximum aggregate liability of the Supplier under or in connection with the Agreement or relating to the Software or the Support Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the Fees paid by the Client under the Agreement in the previous Year (which in the first Year is deemed to be the total Fees paid by the Client from the Start Date to the date of the first event giving rise to liability).

  3. Neither party is liable to the other under or in connection with these Terms or the Service for any:

    1. loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or

    2. consequential, indirect, incidental or special damage or loss of any kind.

  4. Clauses 11.1 and 11.3 do not apply to limit our liability under or in connection with these Terms for:

    1. personal injury or death;

    2. fraud or wilful misconduct; or

    3. a breach of clause 9.

  5. Clause 11.3 does not apply to limit your liability:

    1. to pay the Fees;

    2. under the indemnity in clause 6.8; or

    3. for those matters stated in clause 11.4a to 11.4c.

  6. Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.

  7. Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms or the Services.

 

SUBPROCESSESORS

Customerfusion - Kademi uses a single data centre in the location agreed with the client. Data is not generally transferred between locations, and only with the client’s written consent.

  • Amazon Web Services, Cloud Service Provider, United States

  • Amazon Web Services, Cloud Service Provider, European Union

  • Amazon Web Services, Cloud Service Provider, Australia

    1. You acknowledge and agree that we may engage third party Sub-Processors in connection with the provision of the Service.

    2. We have entered into (and will, for any new Sub-Processor, enter into) written agreements with each Sub-Processor containing data protection obligations which offer at least the same level of protection for Personal Data as set out in this Addendum and that meet the requirements of Article 28(3) of the GDPR, as applicable to the nature of the services provided by that Sub-Processor.

    3. You may request copies of our written agreements with Sub-Processors (which may be redacted to remove confidential information not relevant to this Addendum).

    4. We may engage Sub-Processors as needed to serve as an Emergency Replacement to maintain and support the Services. Emergency Replacement means a sudden replacement of a Sub-Processor where a change is outside our reasonable control. In this case, we will inform you of the replacement Sub-Processor as soon as reasonably practicable.

    5. If you object to any new Sub-Processor, you may, despite anything to the contrary in the Terms, terminate these Terms and your right to access and use the Service without penalty on written notice, provided (in the case of a new Sub-Processor notified under clause 6.4) your notice of termination is received by us before the effective date of our notice under clause 6.4 or (in the case of a new Sub-Processor notified under clause 6.5) your notice of termination is received by us within 30 days of our notice of the new Sub-Processor. If you do not terminate these Terms and your right to access and use the Service in accordance with this clause, you are deemed to have agreed to the new Sub-Processor.

    6. We are liable for the acts and omissions of our Sub-Processors to the same extent we would be liable if performing the services of each Sub-Processor directly under the terms of this Addendum, except as otherwise set out in this Addendum.

 

  1. SECURITY

We will maintain technical and organisational measures to protect the confidentiality, integrity and security of Personal Data (including protection against unauthorised or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorised disclosure of, or access to, Personal Data), and to manage data security incidents affecting Personal Data.

  1. SECURITY BREACH MANAGEMENT

We will comply with all applicable laws requiring notification to you of any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data Processed by us or our Sub-Processors of which we become aware (Breach Incident).

  1. We will make reasonable efforts to identify the cause of that Breach Incident, notify you within a timely manner to allow you to meet your obligations to report a Breach Incident, and take steps we consider necessary and reasonable to remediate the cause of the Breach Incident, to the extent remediation is within our reasonable control.