DEFINITIONS & INTERPRETATION
Terms capitalised throughout this Agreement have the meanings set out in Clause 21 of this Agreement.
This Agreement will be interpreted in accordance with the provisions of Clause 21 of this Agreement.
PROVISION OF SERVICES
In consideration of the payment by the Client of the Charges, ILISYS will provide the Services to the Client.
The Client acknowledges that it has independently determined that the Services to be supplied by ILISYS will meet the Client's requirements.
CHARGES AND PAYMENT
The Client will pay the Charges for the provision of the Services at the rate and in the manner specified on the CRM Online Web Site or as otherwise agreed between the parties in writing.
The Charges will be based on prices specified in the price list located on the CRM Online Web Site and current from time to time.
In the event that:
- CRM Online is required to perform the Services in circumstances other than those expressly or reasonably anticipated; or
- there is a change in the timing or complexity of the Services; and such circumstances are not the result of a breach of this Agreement by CRM Online, then CRM Online will notify the Client of any additional fees payable by the Client as a result of such changes.
CRM Online reserves the right to charge the Client interest on any outstanding amounts under this Agreement.
SUSPENSION OF SERVICES
CRM Online may suspend access to the Services:
- to preserve data and integrity;
- if there is a security breach; or
- if there is a malfunction in the Services.
CRM Online reserves the right to terminate or suspend the Services to the Client indefinitely and without refund or compensation in the event that:
- the Services are used, or appear to CRM Online to be intended to be used, by a Client or a customer of the Client in a manner deemed inappropriate by CRM Online;
- the provision of the Services is likely to expose CRM Online to any liability as a result of a breach of any law or any third party rights; or
- the Client otherwise breaches this Agreement.
Suspension of Services by CRM Online will continue until the problem or breach is rectified or until otherwise agreed.
CRM Online will not be liable to the Client, its employees, contractors, customers or agents as a result of taking the action referred to in this Clause 7 where such action is taken on a view which is formed on a reasonable basis by CRM Online.
LOSS OF DATA
CRM Online will take all reasonable steps to safeguard the CRM Online Servers and the data contained therein, however CRM Online will not be responsible for any loss of Client data stored or intended to be stored on the CRM Online Servers or back-up devices and the Client will not be entitled to any form of compensation from CRM Online in the event of loss of data.
INTERRUPTION TO SERVICE
CRM Online takes no responsibility for any delay, malfunction, non performance, or other degradation of performance of any of the Services caused by or resulting from any alteration, modifications or amendments due to changes and specifications requested or implemented by the Client whether or not beyond the Services already supplied.
In the event of total systems failure resulting in the disruption of service to the Internet from CRM Online Servers, CRM Online will endeavour to repair and reinstate the service within 24 hours of detection depending on the severity of the failure.
If failure is caused by the Client or any agent or customer of the Client to whom access to CRM Online Servers was given, the Client shall pay all costs to reinstate and/or repair the Client server.
The minimum contractual period for the provision of the Services by CRM Online is 12 months from the first day that the Services are made available to the Client ('Initial Term').
Subject to the Clause below, following the expiry of the Initial Term, this Agreement will continue until terminated by either party pursuant to Clause 16 of this Agreement.
The Client may elect to terminate this Agreement after the Initial Term by providing CRM Online with written notice to that effect one month prior to the expiry of the Initial Term.
Either party may terminate this Agreement with immediate effect by giving notice to the other party if:
the other party breaches any of its obligations under this Agreement and fails to remedy that breach within 14 days after receiving notice requiring it to do so; or
any event referred to in Clause 16.2 occurs.
Each party will notify the other immediately if:
it ceases to carry on business;
it disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business;
any step is taken to enter into any arrangement between that party and its creditors;
any step is taken by a mortgagee to enter into possession or dispose of the whole or any part of its assets or business; or
any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator or other like person of the whole or any part of its assets or business.
Termination of this Agreement will not affect the accrued rights or remedies of either party.
Neither party will be in default under this Agreement by reason of its delay in performance of or failure to perform any of its obligations, if such delay or failure is caused by declaration of war, strikes, Acts of God or the public enemy, riots, interference by civil or military authorities, compliance with Governmental laws, rules and regulations, delays in transit or delivery, inability to secure necessary governmental priorities or any fault beyond its control and without its fault or negligence.
In the event of any dispute between the parties arising out of or in connection with this Agreement ('Dispute'), the parties will use their best endeavours to settle such dispute amicably by negotiation after issuing a 'Dispute Notice' indicating that there is a serious dispute to be resolved.
If the Dispute cannot be settled within 21 days of issuance of the Dispute Notice, the parties will attempt to settle the Dispute by mediation in Perth, Western Australia to be conducted by a mediator independent of the parties or, failing agreement, by a person appointed by the Chair of LEADR or his or her nominee.
If the Dispute is not settled pursuant to Clause 18.2, then any party involved in the Dispute may, within 28 days of the Dispute Notice, give notice ('Arbitration Notice') to the other party requiring that the Dispute be dealt with pursuant to Clause 18.4.
If the Dispute is not resolved through the procedures set out above, it will be referred to a single arbitrator if the parties agree upon one, or otherwise to two arbitrators to be appointed by the parties in accordance with the provisions of the Commercial Arbitration Act 1985 (WA) or any statute replacing, extending or modifying the same.
An award of the arbitrator will be binding on the parties and may be entered in any Court having competent jurisdiction.
If any part of this Agreement is deemed unenforceable then:
if the provision would not be illegal or unenforceable if a word or words were omitted, that word or those words are severed; or
in any other case the provision is severed,
then the rest of this Agreement will continue to be legal and enforceable.
The failure of a party at any time to insist on performance of any obligation under this Agreement of the other party is not a waiver of its right:
to insist on performance of, or claim damages for breach of, that obligation unless that party acknowledges in writing that the failure is a waiver; and
at any other time to insist on performance of that or any other obligation of the other party under this Agreement.
Each party notifying or giving notice under this Agreement will do so:
addressed to the address of the recipient; and
hand delivered or sent by prepaid post to that address or sent by e-mail or facsimile transmission to the other party's e-mail address or facsimile number.
A notice given in accordance with Clause 19.3(a) is deemed received:
if hand delivered, on the date of delivery;
if sent by prepaid post, 4 days after the date of posting within Australia and 7 days after the date of posting outside Australia; and
if sent by facsimile transmission, on the day the transmission is sent (but only if the sender has a confirmation report specifying a facsimile number of the recipient, the number of pages sent and the date of transmission).
CRM Online may sub-contract the performance of any of the Services but will remain primarily responsible for the performance of its obligations under this Agreement.
This Agreement forms the entire agreement between the parties in respect of the subject matter of this Agreement.
This Agreement is governed by the laws of the State of Western Australia.
DEFINITIONS AND INTERPRETATIONS
In this Agreement, the following terms will have the following meanings:
'Acceptable Use Policy' means the policy governing acceptable use of the CRM Online Services annexed this Agreement as updated from time to time and posted on the CRM Online Web Site;
'Agreement' means this agreement, including the Acceptable Use Policy, governing the provision of the Services by CRM Online to the Client as may be varied from time to time by the parties in writing;
'Charges' means the amount payable for provision of the Services as prior agreed between the parties in writing;
'Client' means the party who has entered into this Agreement for Services with CRM Online;
'Client Deliverables' means all information and materials to be provided by the Client to CRM Online under the terms and conditions of this Agreement as agreed between the parties or as otherwise provided by the Client to CRM Online from time to time;
'Confidential Information' of a party means all information disclosed by a party to the other party and nominated as confidential (including, but not limited to, confidential information in machine readable form) but does not include information which is already in the public domain;
'GST' means any goods or services tax, charge, impost or duty payable in respect of this Agreement or the supply of any goods or services made under or in respect of this Agreement;
'CRM Online' means CRM Online Australia Pty Ltd trading as CRM Online
'Intellectual Property Rights' means all intellectual property rights including, but not limited to:
(a) patents, copyright, circuit layout rights, designs, trade marks ; and
(b) any application or right to apply for any of the rights referred to in paragraph (a);
'Internet' means the world wide connection of computer networks providing for the transmittal of electronic mail, on-line information, information retrieval and file transfer protocol;
'Services' means those Services which the Client and CRM Online agree are to be provided to the Client by CRM Online in accordance with the package descriptions and payment details set out on the CRM Online Web Site;
In this Agreement:
(a) clause headings have been inserted for convenience only and will not be taken into account in interpreting the Agreement;
(b) words importing the singular will include the plural and vice versa;
(c) words importing natural persons will include firms and corporate bodies or other legal persons and vice versa;
(d) reference to a party to this Agreement includes reference to that party's successors and assigns.