CUSTOMER RETENTION MARKETING AUSTRALIA – TERMS OF SERVICE
These Terms of Service (Terms) govern the provision of services by Customer Retention Marketing Australia Pty Ltd (ACN 128 865 378) (CRMA, we, us, or our) to you, the customer (Customer or you).
By placing an order with CRMA, instructing CRMA to provide Services, or otherwise engaging CRMA to perform work on your behalf, you agree to be bound by these Terms, which form a binding contractual agreement between you and CRMA. If you do not agree to these Terms, you must not engage CRMA to provide Services.
These Terms apply to each engagement between CRMA and the Customer. Where CRMA issues a confirmation in respect of a particular Order, the terms of that Order will apply in addition to these Terms. In the event of any inconsistency between an Order and these Terms, the Order will prevail to the extent of the inconsistency.
CRMA may amend these Terms by publishing the amended version on its website and providing at least 30 days’ written notice to you. Any amendment to the Terms will not apply to an existing engagement with Us. However, if you engage us after the effective date of any amendment, the amended Terms will apply to the Services we provide and your engagement with us constitutes acceptance of the amended Terms.
CRMA’s Privacy Policy (as published on CRMA’s website from time to time) applies in addition to these Terms in respect of the handling of personal information.
Defined terms used in these Terms have the meanings set out in clause 15.1.
1. SERVICES
1.1. CRMA agrees to provide the Services to you with reasonable care and skill and in accordance with these Terms.
1.2. During our engagement with you, CRMA will maintain cyber insurance coverage which is intended to protect against the unauthorised access to, or loss of information held by CRMA in connection with the Services.
2. TERM
2.1. Each engagement between CRMA and the Customer commences on the date the relevant Order is accepted by CRMA and continues until the Services the subject of that engagement have been completed, or the engagement is otherwise terminated in accordance with these Terms.
2.2. For the avoidance of doubt, where Services under a particular Order are of an ongoing or recurring nature (for example, retainer Services for ongoing marketing), the engagement will continue until terminated by either party in accordance with these Terms or the terms of the Order.
3. PLACING ORDERS AND PERFORMANCE
3.1. You may request Services by contacting CRMA (att: Jason Fisher) via email (jfisher@crma.com.au) or mobile (0417 884 957).
3.2. CRMA may, at its discretion, accept or reject any request for Services placed by you. A request is deemed accepted when CRMA issues you with an Order confirmation, confirms acceptance in writing (including by email) of the terms of the Order, or commences provision of the relevant Services.
3.3. For each Order, CRMA may issue an Order confirmation setting out the specific details of the Order, including (as applicable):
(a) the scope of Services to be provided;
(b) the Fees and payment terms applicable to the Order;
(c) any specific timelines, milestones or Deliverables;
(d) any Customer obligations or dependencies; and
(e) any additional terms applicable to the Order.
3.4. Each accepted Order is governed by these Terms and the terms of the Order and constitutes a separate agreement between CRMA and the Customer for the relevant Services.
3.5. CRMA will use reasonable endeavours to provide the Services by any due date specified in an Order and which have been approved by CRMA (or, where no due date has been agreed, within a reasonable time).
4. INVOICING AND PAYMENT
4.1. You must pay the Fees in respect of the Services provided.
4.2. CRMA will invoice you during the course of our engagement with you in arrears at such intervals as reasonably determined by us (or as otherwise agreed with you in the terms of the Order) for Services provided.
4.3. You must pay each invoice within 30 days of the date of the invoice, unless otherwise specified in the relevant Order.
4.4. The Customer must pay all amounts due under these Terms in full without any deduction, withholding, set-off or counterclaim.
5. INTELLECTUAL PROPERTY
5.1. CRMA retains all Intellectual Property Rights in and to:
(a) its pre-existing materials, tools, methodologies, software, and platforms;
(b) any materials, templates, processes, or know-how developed by CRMA independently of the Services or that are of general application; and
(c) any Deliverables created by CRMA in the course of providing the Services,
(collectively, CRMA IP).
5.2. The Customer retains all Intellectual Property Rights in and to the Customer Materials.
5.3. Subject to payment of the applicable Fees, CRMA grants to the Customer a non-exclusive, non-transferable, royalty-free licence to use the Deliverables for the Customer's internal business purposes.
5.4. The Customer grants to CRMA a non-exclusive, royalty-free licence to use, reproduce, and modify the Customer Materials solely for the purpose of providing the Services to the Customer during the term of the relevant engagement.
5.5. Nothing in these Terms operates to transfer or assign any Intellectual Property Rights from one party to the other, except as expressly stated in this clause 5.
6. YOUR RIGHTS UNDER THE ACL
6.1. Nothing in these Terms excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by the ACL or any other applicable law that cannot be excluded, restricted or modified by agreement (Non-Excludable Right).
6.2. To the extent that CRMA is entitled to limit its liability for a breach of a Non-Excludable Right, or in relation to any other defect in the Services CRMA’s liability is limited, in aggregate, to one or more of the following at CRMA’s option:
(a) supplying the relevant Services again; or
(b) paying the cost of having the relevant Services supplied again.
6.3. Subject to clause 6.1, and except as otherwise expressly contained in these Terms, all representations, warranties, conditions or undertakings, express or implied, arising by law, equity, trade, custom, usage or otherwise, are expressly excluded to the maximum extent permitted by law.
7. INDEMNITY
7.1. Subject to clause 8, and without limiting any other indemnity obligations you have or may have under these Terms (including the indemnity given by you in clause 10.7), you indemnify and must keep CRMA (and CRMA’s employees, officers and agents) indemnified from and against any and all Loss or Claims arising out of or in connection with:
(a) any Claim by a third party arising from or in connection with CRMA's use of Customer Materials in accordance with the Customer's instructions or these Terms, including (without limitation) any Claim that CRMA's use of the Customer Materials infringes the Intellectual Property Rights of any third party; or
(b) any negligent or wilful act or omission of the Customer or its personnel.
7.2. Subject to clause 7, CRMA indemnifies and must keep you (and your employees, officers and agents) indemnified from and against any and all Loss or Claims arising out of or in connection with any negligent or wilful act or omission of CRMA or its personnel.
7.3. This clause 7 survives termination or expiration of these Terms.
8. LIMITATIONS OF LIABILITY
8.1. Nothing in these Terms limits or excludes:
(a) a party’s liability for fraud on the part of that party (or that party’s employees, officers or agents); or
(b) any Non-Excludable Right.
8.2. Subject to clause 8.1 and to the maximum extent permitted by law, CRMA’s total aggregate liability for any and all Claims arising out of or in connection with these Terms is limited, in aggregate, to the total Fees paid by you to CRMA in the 12-month period immediately preceding the event giving rise to the Claim.
8.3. Neither party shall be liable to the other party for any Consequential Loss.
8.4. If a Loss of a party (Claiming Party) is caused or contributed to in part by the other party, then the other party’s liability for that Loss will be reduced proportionally to the extent the Claiming Party caused or contributed to that Loss.
8.5. This clause 8 survives termination or expiration of these Terms.
9. TERMINATION
9.1. Either party may terminate the engagement under these Terms immediately by written notice to the other party if:
(a) the other party commits a material breach of these Terms which is capable of being remedied and does not remedy the breach within 10 Business Days of receiving written notice requiring it to do so;
(b) the other party commits a material breach of these Terms which is not capable of being remedied; or
(c) an Insolvency Event occurs in respect of the other party.
9.2. CRMA may suspend the Services or terminate the engagement under these Terms immediately by written notice to you if you fail to pay the Fees in accordance with these Terms and remain in default not less than 14 days after being notified in writing to make such payment.
9.3. Upon termination of the engagement under these Terms for any reason:
(a) the Fees for all Services rendered up to the termination date become immediately due and payable by you;
(b) each party must promptly return or destroy (at the disclosing party’s election) all Confidential Information of the other party in its possession or control, and certify in writing that it has done so.
9.4. Termination of the engagement does not affect any accrued rights or liabilities of either party, nor does it affect any provision of these Terms that is expressly or by implication intended to survive termination.
10. FORCE MAJEURE
10.1. Neither party will be liable nor deemed to be in breach of these Terms for any failure or delay in meeting any obligation under these Terms (other than an obligation to pay money) if such failure or delay is caused by a Force Majeure Event.
10.2. If a Force Majeure Event occurs, the party affected by the Force Majeure Event must:
(a) notify the other party in writing as soon as it becomes aware of the Force Majeure Event, providing reasonable details of the nature, extent and likely duration of the event; and
(b) take all reasonable steps to mitigate the effect of the Force Majeure Event on the performance of its obligations under these Terms.
10.3. The party affected by a Force Majeure Event must resume performance of its obligations as soon as practicable after such Force Majeure Event is removed or has ceased.
10.4. If a party is prevented or delayed from performing its obligations under these Terms by reason of a Force Majeure Event for a period of sixty (60) days or more, the non-affected party may terminate these Terms immediately by providing written notice to the affected party.
10.5. This clause 10 survives termination or expiration of the engagement under these Terms.
11. PRIVACY
11.1. You acknowledge and agree that in the course of providing the Services, CRMA may collect, use and disclose Personal Data relating to any Relevant Individuals (including information extracted from your dealer management systems) to third-party service providers engaged by CRMA, including for the purposes of developing, improving and delivering data-driven marketing products and solutions.
11.2. You represent and warrant to CRMA, and confirm, on each occasion that you provide Personal Data or instruct CRMA to conduct or commence the Services, that:
(a) (Consent Confirmation) – each Relevant Individual to be contacted as part of the Services has, to the extent required under Applicable Data Privacy Law, given Consent to being contacted by or on behalf of you via the applicable communication method specified for the Services, and such Consent was obtained in accordance with all requirements of Applicable Data Privacy Law (including, without limitation, any requirement that the Consent be express, informed, voluntary, and specific to the type of communication to be sent);
(b) (Withdrawal Confirmation) – as at the date on which the Personal Data is provided to CRMA (and, if later, as at the date on which the Services are to commence), no Relevant Individual has withdrawn, revoked, or otherwise varied any previously given Consent in a manner that would render the proposed communication non-compliant with Applicable Data Privacy Law, and you have implemented reasonable processes to identify and act upon any such withdrawal prior to providing Personal Data to CRMA.
11.3. The representations and warranties in clause 10.2 are:
(a) given on each occasion that you provide Personal Data or engage us to provide the Services, as if repeated on that date by reference to the then-current facts and circumstances;
(b) fundamental to CRMA's willingness to provide the Services;
(c) given for the benefit of CRMA and, to the extent that a breach causes loss to a Relevant Individual, are acknowledged to be relevant to CRMA's ability to comply with its own obligations under Applicable Data Privacy Law.
11.4. You further represent and warrant that:
(a) you hold and will maintain from the duration of our engagement with you, adequate records evidencing the Consent of each Relevant Individual (including the date, method, and scope of Consent obtained), and will provide copies of such records to CRMA within 10 Business Days of CRMA's written request;
(b) you have complied, and will continue to comply, with all notification and collection notice obligations under Applicable Data Privacy Law in connection with the Personal Data, including informing Relevant Individuals that their personal information and data may be disclosed to organisations like CRMA for marketing purposes;
(c) you will only provide us with Personal Data to the extent required in order for us to perform the Services (for example, you must not provide us with any payment methods or other financial information of a Relevant Individual); and
(d) the Personal Data provided to CRMA is accurate, complete, and up to date, and has been collected by you by lawful and fair means.
11.5. CRMA is not obliged to commence or continue any Services unless and until:
(a) CRMA is satisfied, acting reasonably, that the Consent Confirmation and the Withdrawal Confirmation can be truthfully given in accordance with clause 10.2;
(b) CRMA is satisfied, acting reasonably, that execution of the Services will not expose CRMA to a material risk of non-compliance with Applicable Data Privacy Law.
11.6. CRMA may, in its absolute discretion, decline to accept or continue a Service if it forms a reasonable belief that your confirmations under clause 10.2 are or may be inaccurate or incomplete, and such decision shall not constitute a breach of any obligation of CRMA under these Terms.
11.7. Subject to clause 8, you indemnify and must keep CRMA (and CRMA’s employees, officers and agents) indemnified from and against any and all Loss or Claims arising out of or in connection with:
(a) any Claim by a Relevant Individual, regulatory authority, or other third party that a communication made by CRMA as part of the Services was sent without valid Consent or after Consent had been withdrawn;
(b) any inaccuracy, incompleteness, or deficiency in the Personal Data provided by you;
(c) any failure by you to comply with your obligations under Applicable Data Privacy Law in connection with the collection, management, or provision of Personal Data.
12. INDEPENDENT CONTRACTOR
12.1. CRMA provides the Services as an independent contractor only. Nothing in these Terms creates a relationship of partnership, joint venture, employment or agency between the parties.
12.2. Neither party has authority to bind the other party or to incur any obligation on behalf of the other party.
12.3. CRMA may engage subcontractors to perform any part of the Services, provided that CRMA remains liable for the performance of the Services in accordance with these Terms.
13. CONFIDENTIALITY
13.1. Each party must keep confidential the terms of its engagement with the other party and all Confidential Information of the other party, and must not disclose such information to any third party without the prior written consent of the other party.
13.2. Clause 13 does not apply to the extent that disclosure is:
(a) required by law, any court of competent jurisdiction or any government or regulatory authority;
(b) made to a party's professional advisers on a confidential basis; or
(c) of information that is already in the public domain (other than through a breach of this clause 13).
13.3. This clause 13 survives termination or expiration of these Terms.
14. GST
14.1. For the purposes of this clause, expressions set out in italics bear the same meaning as those expressions in the GST Act.
14.2. To the extent that a party makes a taxable supply under or in connection with these Terms, except where express provision is made to the contrary, the consideration payable by a party under or in connection with these Terms represents the value of the taxable supply for which payment is to be made and on which GST is to be calculated.
14.3. If a party makes a taxable supply under or in connection with these Terms for a consideration, which, under clause 13.2 represents its value, then the party liable to pay for the taxable supply must also pay at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
14.4. Upon receipt of the consideration and GST payable, the recipient must give a valid Tax Invoice to the party which paid it within 7 days of payment.
15. GENERAL
15.1. Assignment. Neither party may assign, novate or otherwise transfer any of its rights or obligations under these Terms without the prior written consent of the other party.
15.2. Entire Understanding. These Terms constitute the entire understanding between CRMA and you in relation to the Services and supersede all prior discussions, representations, warranties, undertakings and agreements relating to the subject matter.
15.3. Severability. If any provision of these Terms is or becomes illegal, invalid or unenforceable in any jurisdiction, that provision is severed for that jurisdiction and the remainder of these Terms continues in full force and effect.
15.4. Waiver. A waiver of any right or remedy under these Terms or by law is only effective if given in writing. A failure or delay by a party to exercise any right or remedy provided under these Terms or by law does not constitute a waiver of that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
15.5. Governing Law. These Terms are governed by the laws of the State of Victoria, Australia. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Victoria and any courts which may hear appeals from those courts.
15.6. Remedies Cumulative. Except as otherwise expressly provided in these Terms, the rights and remedies of a party under these Terms are cumulative and are in addition to, and do not exclude or limit, any right or remedy provided by law or in equity.
15.7. Construction. No provision of these Terms will be construed adversely against a party solely because that party was responsible for the preparation of these Terms.
16. DEFINITIONS AND INTERPRETATION
16.1. In these Terms, unless the context otherwise requires:
ACL means the Australian Consumer Law, being Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Applicable Data Privacy Law means the Privacy Act 1988 (Cth), the Australian Privacy Principles, the Spam Act 2003 (Cth), the Do Not Call Register Act 2006 (Cth), and any other legislation, delegated legislation, binding code, or enforceable guideline that regulates the collection, use, disclosure, or handling of personal information, or the sending of commercial electronic messages, or the making of telemarketing calls, in any jurisdiction in which the Services are performed.
Business Day means a day on which banks are open for general banking business in Melbourne, Victoria, other than a Saturday, Sunday or public holiday.
Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, damage, loss, cost, expense or liability however arising and whether present or future, fixed or unascertained, actual or contingent and whether at law, in equity, under statute or otherwise.
Confidential Information means all information (in any form) relating to the business, customers, operations, financial affairs, processes, know-how or Intellectual Property of a party that is disclosed to or obtained by the other party in connection with these Terms, but does not include information that is in the public domain other than through a breach of an obligation of confidentiality.
Consent means consent that satisfies the requirements of all Applicable Data Privacy Law for the relevant communication method, including express consent or inferred consent where the Spam Act 2003 (Cth) or the Do Not Call Register Act 2006 (Cth) applies.
Consent Confirmation has the meaning given in clause 10.2(a).
Consequential Loss means indirect loss or damage such as loss of profits, loss of revenue, loss of expected savings, loss of production, loss or denial of opportunity and any and all other loss not in the reasonable contemplation of the parties at the time of entering into the engagement under these Terms.
Customer Materials means all data, information, and materials provided by or on behalf of the Customer to CRMA for the purposes of the Services, or which is otherwise made available by the Customer to CRMA through access to the Customer's systems (including dealer management systems).
Deliverables means any final reports, materials, campaigns, creative assets, or other outputs produced by CRMA in the course of providing the Services to the Customer.
Fees means the fees and charges payable by you to CRMA for the Services, as agreed between the parties in an Order or as otherwise agreed in writing from time to time.
Force Majeure Event means any circumstance not in a party's reasonable control including, without limitation: (a) acts of God, flood, drought, earthquake or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination, or sonic boom; (e) any law or any action taken by a government or public authority, including the imposition of an embargo, export or import restriction, quota or other restriction or prohibition; (f) collapse of buildings, fire, explosion or accident; (g) any labour or trade dispute, strikes, industrial action or lockouts; and (h) interruption or failure of utility service.
GST has the meaning given to that term in the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth.
Insolvency Event means, in respect of a party, any one or more of the following events: (a) a receiver, receiver and manager, administrator, liquidator or provisional liquidator is appointed in respect of that party or any of its assets; (b) a resolution is passed or an order is made for the winding up of that party; (c) any execution, distress or other process is levied or enforced against any asset of that party with an aggregate value in excess of $50,000; (d) that party is unable to pay its debts as and when they become due and payable; (e) that party ceases or threatens to cease carrying on all or a substantial part of its business; (f) a sequestration order is made against that party or that party enters into bankruptcy; or (g) anything analogous to the events described in paragraphs (a) to (f) occurs in relation to that party under the laws of any applicable jurisdiction.
Intellectual Property Rights means all intellectual property rights, including patents, trade marks, designs, copyright, trade secrets, know-how, rights in circuit layouts, plant breeders' rights and domain names, whether registered or unregistered, and any application or right to apply for registration of any such rights.
Loss means any and all loss or damage of any kind whatsoever arising out of or in connection with contract, tort (including negligence), under statute or any other basis at law, in equity or otherwise, but excludes Consequential Loss.
Order means an order or statement of work, or equivalent document or confirmation issued or accepted by CRMA and approved by the Customer in respect of a particular engagement, setting out (among other things) the Services to be provided, Fees, and other particulars.
Non-Excludable Right has the meaning given to it in clause 6.1.
Personal Data means the personal information provided by you to CRMA at any time, whether before or after you have agreed to these Terms, in connection with the Services, including names, contact details, and any associated contact preferences or consent records.
Relevant Individual means any individual whose personal information forms part of the Personal Data.
Services means the services to be provided by CRMA to you, as agreed with you in an Order from time to time.
Tax Invoice means a tax invoice as defined in and for the purposes of the GST Act or any document allowing the recipient to claim an input tax credit under the GST Act.
Terms means these terms, as amended from time to time.
Withdrawal Confirmation has the meaning given in clause 10.2(b).
16.2. In these Terms, unless the context otherwise requires:
(a) words importing the singular include the plural and vice versa;
(b) words importing a gender include all genders;
(c) a reference to a person includes a natural person, body corporate, partnership, joint venture, trust, association or other entity;
(d) a reference to a party includes that party's successors and permitted assigns;
(e) a reference to a statute or statutory provision includes any subordinate legislation made under it, and any modification, amendment, consolidation, re-enactment or replacement of it from time to time;
(f) the words 'include', 'including', 'for example' or 'such as' are not used as, nor are they to be interpreted as, words of limitation, and, when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind;
(g) headings are for convenience only and do not affect interpretation;
(h) a reference to 'writing' or 'written' includes email; and
(i) where a word or expression is defined, other grammatical forms of that word or expression have a corresponding meaning.