- (1)Integral Management Systems, a company duly incorporated under the Corporations Act 2001 whose registered office is at Level 11, 125 St Georges Terrace, Perth , in the State of Western Australia (‘the Service Provider’).
- (2)CUSTOMER, a company registered office is at CUSTOMER ADDRESS (‘the Company’ which expression shall include its successors and assigns); and
- (A)The Company has appointed the Service Provider to provide Support Program Services (as hereinafter defined).
- (B)The Company and the Service Provider have agreed to enter into this Agreement setting out the terms and conditions applicable to the provision of the Service Level Agreement.
IT IS AGREED 1 DEFINITION AND INTERPRETATION
- 1.1Except where the context of this Agreement otherwise requires, the following words and phrases shall have the meaning set out below:
Account means any type of service agreement either owned or operated or managed by the Company.
Associated Company means in relation to the Company, any subsidiary, subsidiary undertaking and holding company of it and any subsidiary and subsidiary undertaking of such holding company, whether registered in Australia or elsewhere;
Charges means the rates and charges payable by the Company to the Service Provider for the Services, the details of which are set out in Schedule 1 and 2.
Commencement Date means the date of this Agreement as set out above.
Complaint means any expression (whether written or spoken) of dissatisfaction with any aspect of the Services made by or on behalf of a Customer.
Confidential Information means all information (in whatever form or format) disclosed by the Company to the Service Provider under this agreement including without limitation, information or material of a technical, business, commercial, financial or personal nature that a reasonable person would determine is confidential, and in particular Customer information but does not include any information which has come into the public domain otherwise than by reason of the default of the Service Provider, its Employees or advisers.
Customer an equivalent word or phrase used in context means any type of service agreement either owned or operated or managed by the Company.
Customer Data means all data, information, text, drawings, diagrams, images or sound embodied in any electronic or tangible medium relating to a Customer or potential Customer, and which are supplied or in respect of which access is granted to the Service Provider, or which is collected or generated by the Service Provider pursuant to this Agreement.
PA means the Privacy Act 1988 (Cth).
Employee means an employee, agent or sub-contractor of the Service Provider who is engaged in providing the Services to the Company.
Force Majeure means any event affecting the ability of a party to carry out is obligations under this Agreement caused by circumstances beyond its reasonable control including, without limitation, war or civil disturbance; order of a government, ministry of department or public authority; acts of terrorism; fire, flood, natural catastrophe but excluding any strike, lock-out or other form of industrial action of a party’s employees.
Initial Term means a period of 12 calendar months from the Commencement Date.
New Service Provider means any person who, following the Termination Date provides any or all of the Services.
Personal Data means personal data as defined in the PA.
Report means a detailed activity explanation supporting performance claims or as otherwise required
Services means the services to be provided under this Agreement as set out in Schedule 1 and any subsequently agreed variances thereof.
Service Standards means the service standards, quality standards and service levels set out in Schedule 1.
Termination Date means the date on which this Agreement terminates.
Working Day means any day on which banks are open for business in Western Australia.
- 1.2The clause and schedule headings are for convenience only and shall not affect the interpretation of this Agreement.
- 1.3The schedules form part of and incorporated into this Agreement.
- 1.4To the extent that there is any inconsistency between the parts of this Agreement, the following order of precedence will apply to resolve any inconsistency:
- 1.4.1the clauses
- 1.4.2the schedules
- 1.4.3references to the singular include the plural and vice versa, and references to one gender include the other gender.
- 1.5Any phrase introduced by the expressions “includes”, “including” or “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
- 1.6Any reference to a statute, statutory provision or subordinate legislation (together “legislation”) shall (except where the context otherwise requires):
- 1.6.1be deemed to include any bye-laws, licences, statutory instruments, rules, regulations, orders, notices, directions, consents of permissions made under that legislation;
- 1.6.2be construed as referring to any legislation which replaces, re-enacts, amends or consolidates such legislation (with or without modification) at any time.
- 2.1In performing the services, the Service Provider shall:
- 2.1.1comply with the agreed Service Level Agreement Standards or any other requirements negotiated during the term of the Agreement, to be agreed in writing.
- 2.1.2act diligently and efficiently using all reasonable care and skill ordinarily expected from a person experienced in the provision of such Services including taking steps to ensure that each of its Employees have the proper skill, training and background to perform the Services in a professional and competent manner.
- 2.1.3comply strictly with all applicable laws, regulations, codes and guidelines including:
- 184.108.40.206all relevant State and Commonwealth legislation, bylaws, directives, and regulations of any statutory, public, local or other competent authority.
- 220.127.116.11all relevant codes of practice, standards of conduct and requirements of any organisation applicable to the Service Provider or the Services.
- 2.1.4maintain in full force and effect all registrations and licences required by law to enable it to perform all its obligations to the Company under this Agreement, including without limitation to any registrations required by Australian Securities and Investment Commission and or and or Australian Share Registry and or other State or Federal Government registration services.
- 2.1.5not engage in any activity which may be deemed to amount to harassment, or conduct which is deceptive, deceitful, oppressive or otherwise unfair or improper (whether unlawful or not).
- 2.1.6not act in any way which in the reasonable opinion of the Company is prejudicial to the Company or any Associated Company or which may reflect adversely on the integrity, goodwill or reputation of the Company or any Associated Company.
- 2.1.7keep proper records, books of account, working papers files and notes of its dealings with the Company, each Customer, each Account and amounts charged to the Company and retain all those documents in a safe and secure place (whether in paper or electronic format) in accordance with Clauses 17 and 18.
- 2.1.8The Service Provider shall ensure that it has available at all times a sufficient number of suitably qualified Employees, adequately maintained equipment, administration facilities and other systems to ensure the proper performance of the Services and the Service Provider’s obligations under this Agreement.
- 2.2Subject to Clause 19.3.4, the Company and the Service Provider agree that the actual steps to be undertaken in providing the Services or the strategy adopted in providing the Services will be at the discretion of the Service Provider but shall at all times be compliant with the Service Standards set out in Schedule 1 and as agreed with the Company.
- 2.3Notwithstanding Clause 2.2, the Service Provider shall comply with any reasonable directions given by the Company from time to time in relation to the Services.
- 2.4The Service Provider agrees that it shall not commence any legal proceedings of any type in respect of an Account unless it has obtained the prior written consent of the Company, which the Company may give or withhold at its absolute discretion. If the Company gives consent to the commencement of any proceedings, the Service Provider shall comply with any directions given or restrictions imposed by the Company in respect of the proceedings.
- 2.5Nothing in this Agreement shall be construed as conferring exclusive rights on the Service Provider to act for the Company nor shall this Agreement commit the Company to instructing the Service Provider on any Accounts or any minimum number of Accounts.
- 2.6Failure to meet any of the Service Standards shall be deemed to be a material breach of this Agreement.
- 3.1Subject to Clause 15, this Agreement shall take effect from the Commencement Date and shall continue until the end of the Initial Term, at which point the Agreement shall automatically renew unless otherwise agreed by both parties in writing.
- 3.2The Company (in its absolute discretion and without assigning any reason therefor) may terminate this Agreement at any time by giving to the Service Provider at least one (1) month’s prior written notice.
4. THE COMPANY’S OBLIGATIONS
- 4.1The Company shall perform all obligations allocated to it as specified in this Agreement.
- 4.2The Company warrants to the Service Provider that:
- 4.2.1all instructions and information provided to the Service Provider are accurate and correct and all Accounts are legally due and binding to the best of the Company’s knowledge; and
- 4.2.2it will co-operate with the Service Provider and provide the Service Provider with such information and assistance as the Service Provider may reasonably require in order to enable or facilitate the Service Provider to duly and punctually comply with its obligations under this Agreement.
5. SERVICE PROVIDER WARRANTIES
- 5.1The Service Provider warrants and represents that:
- 5.1.1it is duly incorporated and validly existing under the laws of its jurisdiction of incorporation.
- 5.1.2it has full capacity and authority and all necessary consents (including where its procedures so require, the consent of its ERP software providing parent company) to enter into and perform its obligations under the Agreement and that the Agreement is executed by a duly authorised representative of the Service Provider;
- 5.1.3in entering the Agreement it has not committed any fraud;
- 5.1.4no claim is being asserted and no litigation, arbitration or administrative proceeding is presently in progress or, to the best of the Service Provider’s knowledge and belief, pending or threatened against it or any of its assets which will or might have a material adverse effect on its ability to perform its obligations under the Agreement;
- 5.1.5it is not subject to any contractual obligation, compliance with which is likely to have a material adverse effect on its ability to perform its obligations under the Agreement;
6. REPORTS AND INFORMATION
- 6.1The Service Provider shall:
- 6.1.1provide each Report at such frequency as agreed between the parties in any format reasonably requested by the Company in writing from time to time;
- 6.1.2provide any other information reasonably requested by the Company in connection with this Agreement within any time limits reasonably imposed by the Company;
- 6.1.3inform the Company of any developments which may impact on the Service Provider’s ability to meet any of its obligations under this Agreement; and
- 6.1.4notify the Company of facts, opinions, feedback or other information made known to the Service Provider which should, for the better performance of the Services, be notified to the Company.
- 6.2Without limitation to Clause 6.1, the Service Provider shall keep accurate and up-to-date records of all activity in connection with the Services including but not limited to any money collected on Accounts and all costs or other fees charged to or collected from any Account. The records must be itemised by Account. Upon termination and at the request of the Company, all records shall be transferred to the Company within 7 days of such request.
7. THE SERVICE PROVIDER’S EMPLOYEES
- 7.1The Company has the right under this Agreement to refuse to allow any Employee who in the opinion of the Company is undesirable, to provide the Services. If, acting reasonably, the Company considers that there may be a significant impact on the Services or the Company’s reputation by such Employee continuing to provide the Services, the Service Provider will:
- 7.1.1take immediate steps to ensure that the Employee no longer provides any Services; and
- 7.1.2provide a replacement as soon as practicable.
- 7.2The Company shall have the right to observe and monitor Employees from time to time to ensure compliance with the terms of this Agreement.
8. USE OF THE COMPANY NAME AND TRADE MARKS BY THE SERVICE PROVIDER
The Company authorises the Service Provider to use the Company name for the sole purpose of performing the Services under this Agreement. This authorisation does not convey any ownership of IP rights to the Service Provider. The Service Provider will not, without the Company’s prior written consent, use the Company’s name in any communication/marketing or promotion material.
9. COMPLAINT HANDLING
- 9.1The Service Provider will maintain a full and accurate record of all Complaints, and will report monthly on all Complaints received, resolved and outstanding. Any complaint referred to an official body (including without limitation the Department of Commerce or the Financial Services Ombudsman) will be reported immediately to the Company. The Company reserves the right to request control of a complaint and recall an account from the Service Provider if such complaint relates to the Company’s conduct.
- 9.2Any Complaints received by one party with regards to the other will be passed to the other party within one working day.
- 9.3The Service Provider has no authority to offer ex-gratia payment or any other rights of redress or compensation. Any requests for ex-gratia payments from a Customer must be fully detailed by the Service Provider and referred to the Company by email or facsimile within 1 working day from the receipt of the Complaint.
- 9.4In the event of a Complaint giving rise to arbitration, legal proceedings, alternative dispute resolution or a referral to any official body, the Service Provider shall make no statement, representation or settlement offer in response to any such legal proceedings, arbitration, or alternative dispute resolution without obtaining the prior written consent of the Company.
10. PAYMENTS DUE TO THE SERVICE PROVIDER
- 10.1The Company shall pay all sums due to the Service Provider within 14 days of the valid invoice date submitted in accordance with the Company’s reasonable instructions.
- 10.2The Service Provider shall ensure that each invoice contains all appropriate references and a detailed breakdown of the Services supplied and is supported by any other documentation reasonably required by the Company to substantiate the invoice.
- 10.3The Service Provider’s invoices will be calculated in accordance with the Charges set out in Schedule 2. Any significant changes to the type of Account placed by the Company will be subject to the negotiation of new Charges.
- 10.4The Company shall not be liable to pay any charges, costs or expenses other than those set out in Schedule 2 unless the Service Provider has obtained the Company’s prior written approval.
- 10.5The Company may make payments to the Service Provider by electronic funds transfer payment into a bank account nominated in writing by the Service Provider.
- 11.1The Service Provider shall indemnify and keep indemnified the Company and its affiliates officers, directors, employees, agents and representatives against all costs in respect of any claims arising out of or in connection with this Agreement whether in contract, tort (including negligence) or for breach of statutory duty or howsoever caused. The provisions of this Clause shall apply to any claims by a third party.
- 11.2The Company will have no liability under or in connection with this Agreement for:
- 11.2.1indirect, special or consequential losses;
- 11.2.2administration charges, wasted or lost management time (including time of other employees); and/or
- 11.2.3loss of profits, loss of opportunity, loss of contracts, loss of goodwill, loss of earnings, loss of business or loss of anticipated savings.
- 11.3The above Clause 11.2 will apply even if the Company had notice of the possibility of the Service Provider incurring such losses.
- 11.4For the avoidance of doubt, nothing in this Agreement is intended to limit the liability of the Company for:
- 11.4.1death or personal injury caused by the negligence of the Company, its agents or sub-contractors.
- 11.4.2fraud or fraudulent misrepresentation.
- 11.5This Clause 11 will survive termination of this Agreement.
- 12.1The Service Provider will not sub-contract any of its obligations under this Agreement without the prior written consent of the Company.
- 12.2The Service Provider shall at all times remain liable to the Company for all acts and omissions of the Service Provider’s agents and/or subcontractors as if they were the acts and/or omissions of the Service Provider.
- 13.1Without prejudice to its obligations under this Agreement, the Service Provider shall effect and maintain with Australian insurers such policy or policies of insurance as may be necessary to cover the Service Provider’s obligations and liabilities under this Agreement (a minimum of AUD $1,000,000 coverage to be secured).
- 13.2Upon Company’s request, the Service Provider shall provide the Company with evidence as is necessary to prove the Service Provider’s continuing compliance with its obligations to insure under Clause 13.1.
14. FORCE MAJEURE
- 14.1Neither party shall be liable for any delay in performing its obligations if such delay is caused by an event of Force Majeure.
- 14.2If any delay or failure in performance of any part of this Agreement by a party is attributable to an event of Force Majeure which continues for more than 60 days the other party shall be entitled to terminate this Agreement with immediate effect by giving the non performing party prior written notice.
- 14.3Notwithstanding anything to the contrary in this Agreement, neither party shall be liable for any such delay or failure in performance of any part of this Agreement to the extent that such delay or failure is attributable to an event of Force Majeure.
- 15.1A party may terminate this Agreement at any time by written notice to the other party (the “Defaulting Party”) if any of the following apply:
- 15.1.1the Defaulting Party fails to carry out any material provision of this Agreement, the failure is capable of remedy and the Defaulting Party does not remedy that failure within 7 days after written notice to the Defaulting Party requiring it to be remedied;
- 15.1.2the Defaulting Party fails to carry out any material provision of this Agreement and the failure is not capable of remedy.
- 15.1.3without prejudice to Clauses 15.1.1 and 15.1.2 the Defaulting Party has committed persistent breaches of its obligations and continues (after requests not to do so and notification of intention to terminate if persistent breaches do not cease) to commit persistent breaches; or
- 15.1.4the Defaulting Party passes a resolution, or the Court makes an order that the defaulting Party or its Associated Company be wound up otherwise than for purpose of a bona fide reconstruction or amalgamation, or a receiver, manager or administrator on behalf of a creditor is appointed in respect of the business or any part thereof of the Defaulting Party or its Associated Company, or circumstances arise which entitle the Court or a creditor to appoint a receiver, manager or administrator or which entitle the Court otherwise than for the purpose of a bona fide reconstruction or amalgamation to make a winding-up order.
- 15.2The Company may terminate this agreement if there occurs a material change in the ownership or control of the Service Provider from that subsisting at the Commencement Date.
16. CONSEQUENCES OF TERMINATION
- 16.1On termination of the Agreement unless the Company requests otherwise the Service Provider shall continue to administer all existing Accounts in accordance with this Agreement including without limitation, processing any collections and bank account receipts from Customers until all Accounts are settled and for the avoidance of doubt, the Service Provider shall continue to perform all obligations hereunder with respect of such accounts unless otherwise notified by the Company. Notwithstanding this, on termination the Company may either instruct the Service Provider to return all Accounts or the Company can discontinue passing new instructions but leave the historic portfolio under the management and control of the Service Provider.
- 16.2For the avoidance of doubt, during any notice period the Service Provider shall continue to provide the Services in accordance with this Agreement.
- 16.3After the giving of notice by either party under this Agreement and on termination, the Service Provider will render reasonable assistance to the Company to effect an orderly hand-over of the Services to the Company or its nominee, such that the Services can be carried on with the minimum of interruption and inconvenience to the Company and Customers. The Service Provider may make a reasonable charge for this.
- 16.4The termination of this Agreement will be without prejudice to any rights or remedies of either party under this Agreement or at law and shall not affect any accrued right or liabilities of either party nor the continuance of any provision of this Agreement which is expressed, or by implication to continue in force on or after termination including, without limitation, Clauses 10A, 11, 17, 18 and 19.
- 17.1The Service Provider acknowledges that the Confidential Information is confidential to the Company and undertakes to keep confidential all the Confidential Information at all times.
- 17.2Without limitation to Clause 17.1, the Service Provider agrees that it will not disclose the Confidential Information to any other person unless it has obtained the prior written approval of the Company which approval the Company may give or withhold in its absolute discretion.
- 17.3The Service Provider undertakes to use the Confidential Information for the sole purpose of providing the Services to the Company under this Agreement.
- 17.4Notwithstanding Clauses 17.1 and 17.2, the Service Provider may:
- 17.4.1disclose the Confidential Information to its Employees who are engaged in providing the Services to the Company. The Service Provider shall ensure that any Employee who has access to the Confidential Information complies with confidentiality obligations that are no less onerous than the obligations set out in this Clause 17. If required by the Company, the Service Provider will procure that each of its Employees will sign a confidentiality undertaking in favour of the Company in a form reasonably requested by the Company; or
- 17.4.2disclose the Confidential Information if required to do so by any order of any court of competent jurisdiction or any order, rules or regulations of any competent judicial, governmental or regulatory body in which case the Service Provider shall give the Company prior notice of the proposed disclosure and, if requested by the Company and at the Company’s expense, assist the Company to resist the disclosure.
- 17.5The Service Provider warrants and undertakes that it will put in place and maintain at all times during the term of this Agreement appropriate technical and organisational measures to ensure that the Confidential Information is kept secure.
- 17.6The Service Provider acknowledges and agrees that this Clause 17 does not transfer the ownership of any of the Confidential Information to the Service Provider.
- 17.7On expiry or termination of the Agreement or at any time on request by the Company, the Service Provider shall at the option of the Company:
- 17.7.1return to the Company all of the Confidential Information or deliver the Confidential Information to a person nominated by the Company and certify in writing that such delivery has taken place; or
- 17.7.2destroy the Confidential Information and certify in writing that it has destroyed the Confidential Information.
- 17.8The Service Provider expressly agrees that in the event of a breach of this Clause 17 damages might not be a sufficient remedy for such breach and that as a result injunctive or other equitable relief may be obtained by the Company in respect of any breach or anticipated breach of this Clause 17 by the Service Provider.
- 17.9The Service Provider confirms that neither it nor its Employees, without the Company’s prior written consent, will directly or indirectly:
- 17.9.1employ or engage any member of staff of the Company; or
- 17.9.2engage in any form of contract with any of the Company’s clients or customers having used Confidential Information.
- 17.10This Clause 17 will survive termination of this Agreement.
18. PROTECTION OF PERSONAL DATA
- 18.1The Service Provider shall in performing its obligations under the Agreement be required to process Personal Data on the Company’s behalf. The Service Provider warrants that it is currently in compliance with and will continue to comply with its obligations under the PA in so far as they relate to or are connected with the Company’s engagement of the Service Provider to provide the Services. In particular, the Service Provider warrants that:
- 18.1.1it shall only process Personal Data in accordance with its obligations under the PA;
- 18.1.2it shall only process Personal Data in accordance with the Company’s specific and lawful instructions; and
- 18.1.3it has appropriate technical and organisational measures in place to protect Personal Data against unauthorised or unlawful processing and against accidental loss, destruction or damage;
- 18.2In addition, the Service Provider warrants that it shall promptly notify the Client of:
- 18.2.1any legally binding request for disclosure of Personal Data by a law enforcement authority or regulatory body;
- 18.2.2any accidental or unauthorised processing of or access to Personal Data; and
- 18.2.3any request for access to Personal Data received directly from a Customer, without responding to that request, unless it has been otherwise authorised to do so.
- 18.3Without prejudice to the generality of the foregoing, the Service Provider will provide:
- 18.3.1physical security by means of locked and access-restricted storage facilities of its database and paper files;
- 18.3.2connectivity security by means of firewalls for both hardware and software preventing unauthorised connection to the system; and
- 18.3.3database security by means of encrypted login names and passwords preventing unauthorised connection to the system; and
- 18.3.4such co-operation as the Company reasonably considers necessary to allow the Company to ensure the Service Provider’s compliance with this Clause 18 from time to time. Such co-operation may include helping the Company to carry out risk assessments of the Service Provider’s data processing operations, in particular providing information about, and permitting the Company to inspect those operations.
- 18.4The Service Provider shall implement any change to its data processing operations that is reasonably identified by the Company as being necessary for the Service Provider to comply with its obligations under this Clause 18.
- 18.5The Service Provider shall ensure that:
- 18.5.1only such of its Employees and advisers who may be required to assist it in meeting its obligations under this Agreement shall have access to Personal Data; and
- 18.5.2all Employees that provide the Services have undergone training in the law of data protection and in the care and handling of Personal Data.
- 18.6All Customer Data collected and processed by the Service Provider will belong to the Company. The Service Provider acknowledges that Customer Data and all rights of whatever nature in and/or in relation to it shall at all times be and remain the sole property of the Company. During the term of this Agreement and following termination of the Agreement, the Service Provider may use the Customer Data solely for the purpose of providing the Services. In particular, the Service Provider may not:
- 18.6.1copy any Customer Data (or any part of it), except as may be necessary for the exercise of its rights or performance of its duties under this Agreement; or
- 18.6.2extract information from the Customer Data for any reason, unless expressly set out in this Agreement. In particular, the Service Provider may not use the Customer Data for personal private use or marketing or selling any products or services by the Service Provider or any third party whatsoever.
- 19.1The Company (and its authorised agents, who shall not be a competitor of the Service Provider) shall conduct audits in accordance with this Clause at such time and frequency as the Company shall reasonably determine and other than in exceptional circumstances will give at least 7 days notice of an audit.
- 19.2The Service Provider will without charge to the Company provide reasonable access:
- 19.2.1to any information relating to the provision of the Services, including (but not limited to):
- 18.104.22.168books, records and call recordings;
- 22.214.171.124the security applied to Customer Data and Confidential Information; and
- 126.96.36.199any additional information reasonably requested by the Company;
- 19.2.2to Employees; and
- 19.2.3to any of the Service Provider’s facilities or locations from which Services are being performed.
- 19.3The audits will be for the purpose of verifying:
- 19.3.1the accuracy of the Service Provider’s invoices to the Company;
- 19.3.2that the Services are being provided in accordance with the Service Standards;
- 19.3.3that the Service Provider is complying with all of its obligations under the Agreement, and
- 19.3.4that the strategies adopted by the Service Provider are appropriate and acceptable to the Company;
- 19.4Such audit will be carried out at the cost of the Company unless the audit discloses a material breach of this Agreement or the fact that the Company has been overcharged substantially in which case the cost of such audit will be borne by the Service Provider.
- 19.5If any Audit shows:
- 19.5.1the Company has been overcharged, the Service Provider will promptly refund to the Company the amount of such overcharge; or
- 19.5.2that the Service Provider has been or is in breach of any term of this Agreement, then without affecting any other right that the Company may have, the Service Provider will immediately use all reasonable endeavours to rectify all such breaches.
- 19.6The Service Provider will co-operate in any review, audit or investigation carried out by any official body in connection with this Agreement, including without limitation the Department of Commerce or the Financial Services Ombudsman, by providing access to the applicable official body.
- 20.1The parties will hold review meetings at intervals that the Company may reasonably determine to be necessary. Such meetings will be held to discuss the performance of the Service Provider’s obligations under this Agreement with a view to determining any changes or improvements to the Services or the Service Standards that may be agreed from time to time.
- 20.2The review meetings will be held alternately at either the premises of the Company or the Service Provider as agreed from time to time.
21. ACCOUNT MANAGER
- 21.1The Service Provider shall allocate an account manager to the Company who will be responsible for the Service Provider’s relationship with the Company. The account manager will act as the main point of escalation and continuously act to resolve any problems that arise to full and satisfactory conclusions. It will also be the account manager’s role to put forward suggestions for improvement as part of the continuous improvement aims of both organisations.
- 21.2Each party shall maintain a chart showing the contact names, telephone numbers and email addresses for its organisation which also specifies clearly the points of escalation within the organisation. Each party may amend the chart by giving the other party written notice in accordance with Clause 30.1.
- 23.1The Service Provider shall not be entitled to assign, transfer or otherwise deal with this Agreement or any rights under this Agreement without the prior written consent of the Company.
- 23.2The Company may assign, transfer and otherwise deal with this Agreement or any rights under this Agreement without the prior consent of the Service Provider.
- 23.3Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors or assigns.
24. ENTIRE AGREEMENT
This Agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement and supersedes any prior agreement or understanding on anything connected with that subject matter.
Failure or neglect by either party at any time to enforce any of the provisions of this Agreement shall neither be construed as a waiver of any rights or remedies under or in respect of this Agreement nor in any way affect the validity of this Agreement or any part of it. No waiver shall be effective unless given in writing and no waiver of a breach of this Agreement shall constitute a waiver of any antecedent or subsequent breach.
This Agreement shall not be varied or amended unless such variation or amendment is agreed in writing by or on behalf of each party hereto (which shall, in the case of the Company, only be binding if signed by an authorised signatory) except that the Company may amend any documents that it has given to the Service Provider for the purposes of this Agreement by delivery from time to time in writing of such amended documentation to the Service Provider.
In the event that a court or arbitral tribunal of competent jurisdiction determines that any part or provision of this Agreement is invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of this Agreement.
25. PARTNERSHIP OR AGENCY
Nothing contained in this Agreement shall constitute or be deemed to constitute a partnership and neither of the parties shall be, or be construed to be, the agent of the other party for any purpose or to have any authority to bind or incur any liability on behalf of the other party, save as otherwise expressly provided in this Agreement.
25. THIRD PARTY RIGHTS
No term of this Agreement is intended to confer a benefit on, or to be enforceable by, any person who is not a party to this Agreement.
- 30.1Any notice required or authorised by this Agreement shall be in writing sent by prepaid registered (and for the avoidance of doubt may not be sent by any electronic or other form of transmission) and shall be deemed to have been received 48 hours after such posting or transmission. Any such notices shall be addressed as follows:
To the Company:
To the Service Provider:
INTEGRAL MANAGEMENT SYSTEMS
LEVEL 11, 125 ST GEROGEC TCE PERTH WESTERN AUSTRALIA, POST CODE: 6000
- 30.2Either party may amend its details specified in Clause 30.1 by notice to the other party.
- 31.1Neither of the parties to this Agreement (nor any person on their behalf) shall make any public announcement relating in any way to this Agreement or the obligations to be performed under it without the prior written consent of the other party.
- 31.2The restrictions contained in this Clause shall not apply to announcements which are required by law or by any applicable regulatory authority. In these circumstances, the party wishing to make the announcement shall use its best endeavours to consult with the other party before any announcement is made and give effect to any reasonable requirements, which the other party may have.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together will constitute one and the same instrument.
33. GOVERNING LAW
This Agreement is governed by the law applicable within Australia and the parties hereto irrevocably and unconditionally submit to the exclusive jurisdiction of the Australian Judicial Courts.
REFUND & RETURN POLICY
1. Refunds & Returns
The Service Provider’s refund policies/terms and conditions comply with the legal requirements outlined in the Competition and Consumer Act 2010 and other applicable Australian consumer protection laws and regulations.
2. ‘Change of Mind’ Refunds
The Company should take time to choose their Support Services Program carefully as the Service Provider does not provide “Change of Mind” refunds. To ensure that the Company have the best opportunity to choose the correct ERP product or service for their needs, the Service Provider provides several ways to evaluate its products and services prior to the agreement.
Trial versions are available free to clients to evaluate the Service Provider’s products.
Introductory periods for VIP Support Services Program are included with a product purchase to evaluate the Service Provider’s services.
Telephone advice by contacting P: 08 9332 9148
In person advice via the service manager, account consultant and ERP administrative officers.
Refunds for Cancellations will only be accepted under the following circumstances:
-Stock purchase cancellations provided that the stock has not been shipped.
-Support Services Program purchase cancellations within 5 working days of purchase.
Fees will be refunded by the Service Provider where the company:
-Pays duplicate fees for the Support Services Program.
-Makes an overpayment.
-Pay for a support program other than the one they wish to apply for.
-If the application is deemed ineligible for VIP Support Services Program.
-If the Service Provider was unable to complete the priority processing application within the stated service standards of 10 business days from the date of confirming eligibility.
The original assessment decision will only be overturned following a review based solely on the evidence provided in the original application.
Refund payments will be made to the person or organization whom initially paid the fee and will be made via the same method as the initial payment. Refunds will be processed within 4 weeks of receiving a written request, once all relevant documentation has been reviewed.
5. Payment Variations
When a payment is received that differs to a quoted amount for VIP Support Services Program, the Service Provider may adjust the period of VIP Support Services Program, proportionally.
6. Credit Notes
If a credit note is issued to the company, the credit note will remain valid for 3 months from its date of issue.
7. Discretionary refunds
The Service Provider may, at its discretion, refund a fee for reasons other than those described above.
The Service Provider will advise the applicant to apply for a refund should this occur.
8. Refund process
Requests for refund must be received in writing. You can write to the Service Provider as follows:
Mail to: Refund Requests
Level 11, 125 St Georges Terrace
Perth, Western Australia 6000
9. Payment of approved refunds
The Service Provider will notify the company of the outcome of the refund request within 10 working days of receiving the refund request. The Service Provider will arrange for the refund to be processed if the refund request is approved.
A refund will be processed within 4 weeks of receipt of request.
Processing times can be longer depending on the banking institution.
Refund of credit card payments will be made to the card initially used. All other refunds will be paid via bank transfer.