The Terms and Conditions are only binding on the payment of your first invoice.

1. BENCHMARKING SERVICES AGREEMENT
1.1 By paying for our services described in Part 1 and Part 2 below (Services), you enter into a legally binding contract with Australian Customer Experience Professionals Association (ACXPA) ABN 58 817 433 774 of Suite 591/585 Little Collins St, Melbourne VIC 3000, Australia and will be bound by the terms and conditions set out below (Agreement).
1.2 If you do not agree to the terms of this Agreement, you must not pay for nor use the Services.

BACKGROUND

Further to the ACXPA Online Form that you completed, You and ACXPA (referred to as the parties) have now agreed that ACXPA will provide You with the Services and related services on the terms and conditions set out in this Agreement, comprising of the Details in Part 1, the Services in Part 2, the General Terms in Part 3, and any other terms expressly referred to in the Details.

Part 1 – DETAILS:

Item # Detail Description
A. You The company details you have inserted into the ACXPA Online Form.
B. Effective Date The date You make Your first payment to ACXPA for the Services
C. ACXPA Online Form ACXPA Online Form You completed on the ACXPA website.
D. Services means the contact centre benchmarking services detailed in Part 2 and as chosen by You in the ACXPA Online Form.
E. Materials means all of the materials You provide to ACXPA to provide the Services.
F. Charges You will pay for the Services as per the invoice details issued by ACXPA for the Services.

Part 2 - SERVICES:
The Services include (depending on the package selected in the ACXPA Online Form):
• At least six (6) calls made to Your business’ contact centre each calendar month at random times and days.
• At least five (5) calls made to each of your nominated competitors at random times and days.
• A comprehensive assessment for all calls, which includes:
– A Quality Insights Score (QIS) – the experience measuring the experience of interactions with a contact centre agent using five core competencies and 18 call-handling behaviours.
– A Contact Centre Accessibility Score (CCAS) – measuring the experience of connecting to a live contact centre agent, including IVR navigation times, wait times and IVR performance.
– The overall performance score – ACXPA Contact Centre Insights score (ACCIS)
– Additional insights into the calls made to your contact centre, including: the employee’s name (where provided), assessment notes and the call recording.
• Monthly data to track your progress and the call recordings and scores for each call made to your business.
• A quarterly report containing insights and trends that are easy to understand and actionable recommendations to help improve your performance; and
• If you have selected this in Your ACXPA Online Form, an optional Quarterly Insights workshop (conducted live via Zoom) that can provide additional insights and guidance.

The following details of the Services will be as per the details You entered into the ACXPA Online Form including, but not limited to:
• Your contact centre phone number;
• Your operating hours;
• Your competitors and industry;
• Your preferred mystery caller scenario (if any); and
• The individuals who will receive the quarterly report will be as per the details you have entered into the ACXPA Online Form.

Part 3 – GENERAL TERMS:
2. DEFINITIONS AND INTERPRETATION
2.1 Capitalised terms or expressions used in this Agreement have the meanings set out in this clause or in the Details section above:
ACXPA: means the business registered as Australian Customer Experience Professionals Association of Suite 591/585 Little Collins St, Melbourne VIC 3000
ACXPA Online Form: means the online form You completed on the ACXPA website immediately prior to accepting the terms and conditions in this Agreement.
Business Day is a day on which banks are open for business in Melbourne, other than a Saturday, Sunday or public holiday in that city.
Charges: the charges regarding the Services set out in the invoice as issued by ACXPA.
Effective Date: the date described as such in the Details.
Force Majeure Event: has the meaning given in 13.
Government Agency: any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.
GST: goods and services tax chargeable under A New Tax System (Goods & Services Tax) Act 1999 (Cth).
GST Law: has the same meaning as “GST Law” in the A New Tax System (Goods & Services Tax) Act 1999 (Cth).
Intellectual Property Rights: all intellectual property rights of any kind, in any jurisdiction, subsisting now or in the future (including, without limitation, business, company or trade names, domain names, patents, inventions, copyright, design rights, know-how, trade marks, the right to sue for passing off and rights to use, and protect the confidentiality of, confidential information), whether registered or unregistered, and including the rights to apply for or renew the registration of any such rights and any rights the subject of any lapsed application or registration.
Materials: the content provided to ACXPA by You from time to time for incorporation in the calls made to your contact centre.
Personal Information: has the meaning given in the Privacy Act 1988 (Cth).
Related Body Corporate: has the meaning given in section 9 of the Corporations Act 2001 (Cth).
Services: ACXPA will make calls to your contact centre to be provided pursuant to this Agreement as set out in the Details and in Part 2.
You: means the details you have inserted into the ACXPA Online Form.
2.2 In this Agreement, the following rules of interpretation apply unless the contrary intention appears or context otherwise requires:
(a) headings and subheadings are for convenience only and do not affect the interpretation of this Agreement;
(b) references to a party to any agreement or document include that party’s permitted assignees and successors, including executors, administrators and legal representatives;
(c) words denoting the singular include the plural, and words meaning the plural include the singular;
(d) the word “person” includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency;
(e) a reference to any agreement or document (including this Agreement) includes any amendments to or replacements of that document;
(f) a reference to a law includes:
(i) legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them;
(ii) any constitutional provision, treaty or decree;
(iii) any judgment;
(iv) any rule or principle of common law or equity,
(v) and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts;
(g) no provision of this Agreement will be construed adversely to a party because that party was responsible for the preparation of that provision or this Agreement;
(h) if a period begins on a given day or the day of an act or event, it is to be calculated exclusive of that day:
(i) a reference to a number of dollars, Australian
dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia unless the amount is specifically denominated in another currency;
(j) specifying anything in this Agreement after the terms “include”, “including”, “includes”, “for example”’, “such as”, or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary;
(k) where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings; and
(l) if there is any conflict between Part 1 (Details), Part 2 (Services) of this Agreement and Part 3 (General Terms) of this Agreement, the General Terms of this Agreement will prevail unless the Details are stated as specifically and expressly overriding a specific General Term of this Agreement (in which case those Details prevail).
3. ACXPA OBLIGATIONS
3.1 ACXPA agrees to provide the Services in accordance with this Agreement.
4. CUSTOMER RESPONSIBILITIES
4.1 You acknowledge that ACXPA’s ability to provide the Services is dependent on the full and timely cooperation of You (which You agree to provide), as well as the accuracy and completeness of the details you enter into the ACXPA Online Form and any information and data You provide to ACXPA. Accordingly, You agree to promptly provide ACXPA with access to, and use of, all information, data and documents reasonably required by ACXPA for the performance by ACXPA of the Services.
4.2 You are responsible for the accuracy and completeness of the Materials You enter into the ACXPA Online Form or provided through other means.
5. CHARGES AND PAYMENT
5.1 ACXPA will issue a GST invoice in respect of the Charges, each month and You agree to pay to ACXPA the Charges set out in ACXPA’s invoice and in any event by no later than 14 days after the date of the invoice.
5.2 All Charges are exclusive of GST unless otherwise noted in the invoice.
6. WARRANTIES
6.1 Each party warrants to the other that it has full power and authority to enter into and perform this Agreement.
6.2 ACXPA agrees to perform the Services with reasonable care and skill.
6.3 This Agreement sets out the full extent of ACXPA’s obligations and liabilities regarding the supply of the Services. All conditions, warranties or other terms concerning the Services that might otherwise be implied into this Agreement or any collateral contract (whether by statute or otherwise) are, to the extent permitted by applicable laws, hereby expressly excluded.
7. LIMITATION OF REMEDIES AND LIABILITY
7.1 Nothing in this Agreement limits or excludes ACXPA’s liability:
(a) for death or personal injury caused by its negligence or wilful misconduct or that of its employees, as applicable;
(b) for fraud or fraudulent misrepresentation by it or its employees, as applicable; or
(c) where liability cannot be limited or excluded by applicable law (in respect of which clause 7.5 below may apply).
7.2 Subject to clause 7.1, ACXPA excludes any liability to You, whether in contract (including under an indemnity), tort (including negligence) or otherwise, special, indirect or consequential loss arising under or in connection with this Agreement, and for any of the following (whether direct or indirect loss):
(a) loss of profits;
(b) loss of sales or business;
(c) loss of production;
(d) loss of agreements or contracts;
(e) loss of business opportunity;
(f) loss of anticipated savings;
(g) loss of or damage to goodwill;
(h) loss of reputation; or
(i) loss of use or corruption of software, data or information.
7.3 Subject to clause 7.1, ACXPA’s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with this Agreement or any collateral contract, whether in contract (including under an indemnity) or tort (including negligence) or otherwise, will in no circumstances exceed the total Charges paid by You to ACXPA under this Agreement in that calendar year.
7.4 ACXPA’s liability to You (including under any indemnity) will be reduced proportionately to the extent that any negligent or unlawful act or omission of You, Your breach of this Agreement, or Your failure to mitigate Your losses, contributes to the loss or liability.
7.5 This clause 7.5 applies only if or to the extent that You are a ‘consumer’ to which the Australian Consumer Law applies, in which case:
(a) ACXPA’s Services come with guarantees that cannot be excluded under the Australian Consumer Law;
(b) for major failures with the Services, You are entitled:
(i) to cancel this Agreement with ACXPA; and
(ii) to a refund for the unused portion, or to compensation for its reduced value,
and You are also entitled to be compensated for any other reasonably foreseeable loss or damage; and
(c) if the failure does not amount to a major failure, You are entitled to have problems with the Services rectified in a reasonable time, and if this is not done, to cancel this Agreement and obtain a refund for the unused portion of the Agreement.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 All Intellectual Property Rights in the Services, but excluding the Materials, arising in connection with this Agreement will be the property of ACXPA, and ACXPA hereby grants You a non-exclusive licence of such Intellectual Property Rights for the purpose of benefiting from the Services.
8.2 You license ACXPA to use the Materials as required for ACXPA to deliver the Services to You. You indemnify ACXPA against all damages, losses and expenses arising as a result of any action or claim that the Materials infringe the Intellectual Property Rights of a third party.
8.3 ACXPA indemnifies You against all damages, losses and expenses arising as a result of any action or claim that the Services as provided to you infringe any Intellectual Property Rights of a third party in Australia, other than infringements referred to in clause 8.2.
8.4 The indemnities in clause 8.2, clause 8.3 and clause 9.2 are subject to the following conditions:
(a) the indemnified party promptly notifies the indemnifier in writing of the claim;
(b) the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent;
(c) the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and
(d) the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.
8.5 The indemnities in clause 8.2, clause 8.3 and clause 9.2 may not be invoked to the extent that the action or claim arises out of the indemnifier’s compliance with any designs, specifications or instructions of the indemnified party.
9. MATERIALS
9.1 You must ensure that the Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).
9.2 You indemnify ACXPA against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content.
10. DATA PROTECTION
10.1 ACXPA warrants that, to the extent it handles any Personal Information on behalf of You:
(a) it will handle all Personal Information in accordance with the Privacy Act 1988 (Cth);
(b) it must act only on instructions from You; and
(c) it has in place appropriate technical and organisational security measures against:
(i) unauthorised or unlawful access, modification, disclosure or processing of Personal Information; and
(ii) accidental interference, loss or destruction of, or damage to, Personal Information.
11. TERM AND TERMINATION
11.1 This Agreement starts on the Effective Date and will (subject to earlier termination under this clause 11) terminate automatically on completion of the Services and payment of all outstanding sums unless the parties agree in writing to extend the term of this Agreement.
11.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment;
(b) the other party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the other party:
(i) is insolvent as defined by section 95A of the Corporations Act 2001 (Cth) as disclosed in its accounts or otherwise;
(ii) states that it is insolvent;
(iii) is presumed to be insolvent under applicable law (including under section 459C(2) or section 585 of the Corporations Act 2001 (Cth)); or
(iv) otherwise is, or states that it is, unable to pay all its debts as and when they become due and payable;
(d) a liquidator or provisional liquidator is appointed to the other party;
(e) an administrator is appointed to the other party under section 436A, section 436B or section 436C of the Corporations Act 2001 (Cth);
(f) a controller (as defined in section 9 of the Corporations Act 2001 (Cth)) is appointed to the other party or any of its assets;
(g) a receiver is appointed to the other party or any of its assets;
(h) an application is made to a court for an order, or an order is made, that the other party may be wound up, declared bankrupt or that a provisional liquidator, receiver or receiver and manager be appointed to that other party, and that application is not withdrawn, struck out or dismissed within 20 days of it being made;
(i) the other party enters into an arrangement or composition with one or more of its creditors, or an assignment for the benefit of one or more of its creditors, in each case other than to carry out a reconstruction or amalgamation while solvent;
(j) the other party proposes a winding-up, dissolution or reorganisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors;
(k) the other party it is taken to have failed to comply with a statutory demand under section 459F(1) of the Corporations Act 2001 (Cth);
(l) a notice is issued to the other party under section 601AA or section 601AB of the Corporations Act 2001 (Cth);
(m) the other party ceases to carry on business or threatens to do so other than in accordance with the terms of this Agreement;
(n) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.2(c) (inclusive);
(o) any warranty given by the other party in clause 6 of this Agreement is found to be untrue or misleading; or
(p) the person who has the power to directly or indirectly control: the management or policies of You or the board of directors of You ceases to have such power
11.3 On termination of this Agreement by ACXPA under clause 11.2, all licences granted by ACXPA under this Agreement will terminate immediately.
11.4 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement will remain in full force and effect.
11.5 Termination or expiry of this Agreement will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
12. FORCE MAJEURE
12.1 Neither party is in breach of this Agreement or is liable to the other party for any loss incurred by that other party as a direct result of a party (Affected Party) failing or being prevented, hindered or delayed in the performance of its obligations under this Agreement where such prevention, hindrance or delay results from events, circumstances or causes beyond the Affected Party’s control (Force Majeure Event).
12.2 If a Force Majeure Event occurs, the Affected Party must notify the other party (Non-affected Party) in writing as soon as practicable, and that notice must state the particulars of the Force Majeure Event and the anticipated delay.
12.3 On providing the notice in clause 13.2, the Affected Party will have the time for performance of the affected obligations extended for a period equivalent to the period during which performance has been delayed, hindered or prevented, however, the Affected Party must continue to use all reasonable endeavours to perform those obligations.
12.4 The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.
12.5 If the delay due to the Force Majeure Event continues for 90 days, the Non-affected Party may terminate this Agreement immediately on providing notice to the Affected Party.
13. CONFIDENTIALITY
13.1 Each party (Recipient) must keep secret and confidential and not disclose any information relating to another party or its business (which is or has been disclosed to the Recipient by the other party, its representatives or advisers) or the terms of this Agreement, except:
(a) where the information is in the public domain as at the date of this agreement (or subsequently becomes in the public domain other than by breach of any obligation of confidentiality binding on the Recipient);
(b) if the Recipient is required to disclose the information by applicable law or the rules of any recognised securities exchange, provided that the Recipient has, to the extent practicable having regard to those obligations and the required timing of the disclosure, consulted with the provider of the information as to the form and content of the disclosure;
(c) where the disclosure is expressly permitted under this Agreement;
(d) if disclosure is made to its officers, employees and professional advisers to the extent necessary to enable the Recipient to properly perform its obligations under this agreement, in which case the Recipient must ensure that such persons keep the information secret and confidential and do not disclose the information to any other person;
(e) where the disclosure is required for use in legal proceedings regarding this Agreement; or
(f) if the party to whom the information relates has consented in writing before the disclosure.
13.2 Each Recipient must ensure that its directors, officers, employees, agents, representatives and Related Bodies Corporate comply in all respects with the Recipient’s obligations under this clause 13.
13.3 This clause 13 survives for a period of five years following termination or expiry of this Agreement.
13.4 The confidentiality obligations in this clause 13 are not affected by the expiry or termination of this Agreement.
13.5 This clause 13 supersedes the terms of any prior confidentiality agreement or non-disclosure agreement as may have been entered between ACXPA and You.
14. NOTICES
A notice under this Agreement must be in writing and delivered on a Business Day, sent by prepaid mail (airmail if overseas) or by email or facsimile to the address or facsimile number of the recipient party set out in the Details or to such other address or facsimile number as that party may from time to time notify the other party for the purposes of this Agreement and will be deemed to be duly given:
(a) in the case of hand delivery, on the day of delivery;
(b) three (3) days after the date of posting by pre-paid registered post from within Australia and fifteen (15) days after the date of posting by pre-paid registered post from outside Australia;
(c) if sent by facsimile, when the sender’s facsimile system generates a message confirming successful transmission of the total number of pages of the notice unless, within eight business hours after that transmission, the recipient informs the sender that it has not received the entire notice provided that if the message confirming successful transmission is received on a day that is not a Business Day, that transmission will be deemed confirmed on the next Business Day; or
(d) if sent by email, five (5) hours after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, or that its intended recipient is not actively monitoring the recipient’s email address (such as by way of ‘out of office’ notification).
15. PUBLICITY
15.1 ACXPA will publish data about the Services as it deems fit, only publishing aggregated data. ACXPA will not disclose call recordings, or agents details.
15.2 Subject to clause 15.1, all media releases, public announcements and disclosures by either party relating to this Agreement or its subject matter, including promotional or marketing material, must be coordinated with the other party and approved jointly by the parties before release.
16. ASSIGNMENT, NOVATION AND OTHER DEALINGS
16.1 No party may assign, novate, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this Agreement without the prior written consent of the other parties, whose consent must not be unreasonably withheld.
16.2 A breach of clause 16.1 by a party entitles the other parties to terminate this Agreement.
16.3 Clause 16.2 does not affect the construction of any other part of this Agreement.
17. ENTIRE AGREEMENT
This Agreement states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.
18. VARIATION
An amendment or variation of any term of this Agreement must be in writing and signed by each party.
19. NO WAIVER
19.1 No party may rely on the words or conduct of any other party as a waiver of any right, power or remedy arising under or in connection with this Agreement unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
19.2 Words or conduct referred to in clause 19.1 include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
20. SEVERABILITY
20.1 If the whole or any part of a provision of this Agreement is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
20.2 Clause 20.1 does not apply if the severance of a provision of this Agreement in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under this Agreement.
21. GOVERNING LAW AND JURISDICTION;
21.1 This Agreement is governed by the law in force in Victoria, Australia.
21.2 Each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in Victoria, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement.
21.3 Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 21.2 on the basis that:
(a) any proceeding arising out of or in connection with this Agreement has been brought in an inconvenient forum; or
(b) the courts described in clause 21.2 do not have jurisdiction.