ACXPA Peer & Competitor Benchmarking Trial — Terms & Conditions

These Terms & Conditions govern Your ACXPA Peer & Competitor Benchmarking Trial. They become binding when You pay for the Trial — whether by card at checkout or by paying ACXPA's invoice. By completing the ACXPA Online Form and paying for the Services, You (You) enter into a legally binding agreement (Agreement) with Justin Tippett trading as Australian Customer Experience Professionals Association (ACXPA) (ABN 58 817 433 774) of Suite 591, 585 Little Collins Street, Melbourne VIC 3000. If You do not agree to these terms, You must not pay for or use the Services.

Background

A. ACXPA provides independent, external contact centre and customer experience benchmarking services, assessed against the Australian Call Centre Quality Standards and the ACXPA Accessibility (ACCESS) Standards, which ACXPA has developed and refined over several decades.

B. You wish to trial those services, and ACXPA agrees to provide a one-off benchmarking Trial, on the terms of this Agreement.

1. Definitions and interpretation

1.1 In this Agreement, unless the context requires otherwise:

ACXPA Online Form means the online trial order form You completed on the ACXPA website, which sets out the details of Your order (including Your contact centre, Your nominated competitors, and Your contact and billing details).

Business Day means a day that is not a Saturday, Sunday or public holiday in Melbourne, Victoria.

Confidential Information means information of or relating to a party that is by its nature confidential or is designated as confidential, but does not include Published Results or information that is or becomes public other than through breach of this Agreement.

Deliverables means the reports, data, assessments, recordings (of Your own contact centre), workshop and other materials ACXPA provides to You.

Effective Date means the date You make payment to ACXPA for the Services.

Fees means the one-off trial fee payable by You, as set out in Your ACXPA Online Form and ACXPA's checkout or invoice. GST has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Intellectual Property Rights means all intellectual property rights throughout the world, including copyright, trade marks, designs, patents, know-how, methodologies, scoring models, trade secrets and confidential information, whether registered or unregistered.

Materials means any data, materials, information or documents You provide to ACXPA for the purposes of the Services.

Published Results means benchmarking results, scores and rankings identified by organisation (including You) that ACXPA publishes as part of its public Call Centre Rankings and related materials, excluding any individual employee or agent details and any call recording.

Trial means the one-off Peer & Competitor Benchmarking Trial described in clause 3.

1.2 Interpretation: headings are for convenience only; the singular includes the plural and vice versa; "includes" and "including" are not words of limitation; a reference to a statute includes amendments to it; and if a payment or act falls due on a day that is not a Business Day, it is taken to be due on the next Business Day.

2. The Trial

2.1 This Agreement commences on the Effective Date and continues until ACXPA has completed the Trial, unless terminated earlier under clause 12.

2.2 The Trial is a one-off engagement. The parties may agree in writing to extend or convert it into ACXPA's full Peer & Competitor Benchmarking Program on the terms then applicable.

3. The Services

3.1 ACXPA will provide the Peer & Competitor Benchmarking Trial You ordered in the ACXPA Online Form. The Services include: (a) over a period of approximately one month, mystery shopping calls to Your contact centre and to each of Your nominated competitors (up to five), made at random times and on random days; (b) an assessment of every call against ACXPA's standards, producing an Agent Mastery score, an Accessibility score, and an overall CX score; (c) the data, scores and call recordings for each call made to Your own contact centre (including the employee's name where provided, assessment notes and the recording, for Your internal use); (d) a trial report of insights, trends and actionable recommendations; and (e) a live one-on-one Insights workshop (via Zoom) to unpack Your results.

3.2 The following details are as You entered them in the ACXPA Online Form: Your contact centre phone number; Your operating hours; Your nominated competitors and industry; Your preferred mystery caller scenario (if any); and the individuals who will receive the report.

3.3 ACXPA will perform the Services with the professional skill, care and diligence reasonably expected of a competent provider of similar services.

3.4 ACXPA's engagement is non-exclusive.

3.5 Any variation to the scope of the Services must be agreed in writing by both parties.

4. Your obligations

4.1 You will provide ACXPA with the information, access and cooperation reasonably required to perform the Services, and are responsible for the accuracy and completeness of the details and Materials You provide.

4.2 Where You have selected the ACXPA member rate, that rate is conditional on You holding a current ACXPA Business Membership at the time You order the Trial.

4.3 You warrant that any Materials You provide do not infringe any law or the rights of any third party.

4.4 You will pay the Fees in accordance with clause 6.

5. Intellectual property

5.1 All Intellectual Property Rights in the Services and the Deliverables (excluding Your Materials), including ACXPA's standards, scoring models, methodologies and know-how, are and remain the sole property of ACXPA.

5.2 ACXPA grants You a non-exclusive, royalty-free, worldwide, irrevocable licence to use the Deliverables for Your internal business purposes.

5.3 You must not: (a) on-sell, commercialise or publicly distribute the Deliverables; (b) sub-licence them except to Your personnel and advisers on a need-to-know basis; or (c) reverse-engineer, publish or disclose ACXPA's scoring methodology or assessment criteria.

5.4 You retain all Intellectual Property Rights in Your Materials, and grant ACXPA a non-exclusive licence to use them to the extent necessary to provide the Services.

6. Fees and payment

6.1 You will pay ACXPA the one-off trial Fee as set out in Your ACXPA Online Form and ACXPA's checkout or invoice.

6.2 Where the Fee reflects the ACXPA member rate, it is conditional on You holding a current ACXPA Business Membership at the time of ordering.

6.3 All Fees are exclusive of GST.

6.4 If You pay by card at checkout, payment is taken when You place Your order. If You request an invoice, ACXPA will issue a GST invoice and You will pay it within 14 days of its date.

6.5 If an undisputed invoice remains unpaid after its due date, ACXPA may, on not less than 10 Business Days' written notice, suspend or decline to commence the Services until payment is received.

6.6 If You dispute part of an invoice in good faith, You will pay the undisputed portion by the due date and the parties will resolve the balance in good faith.

7. Publication of results

7.1 ACXPA publishes Published Results, identified by organisation (including You), as part of its public Call Centre Rankings and related materials, independently of this Agreement.

7.2 ACXPA will not publicly publish any individual employee or agent details, or any call recording, obtained in connection with the Services.

7.3 You may, by written notice, elect to be excluded from ACXPA's Published Results, and ACXPA will give effect to that within a reasonable period.

7.4 This clause 7 survives termination.

8. Confidentiality and privacy

8.1 Each party will keep the other's Confidential Information confidential and use it only for this Agreement, except where disclosure is required by law, the information is public, or disclosure is to personnel or advisers on a need-to-know basis. Nothing in this clause limits ACXPA's rights under clause 7.

8.2 Each party will comply with the Privacy Act 1988 (Cth) and the Australian Privacy Principles. Call recordings of Your own contact centre form part of the Deliverables provided to You. ACXPA will conduct all mystery shopping calls lawfully.

8.3 This clause 8 survives termination.

9. Warranties

9.1 ACXPA warrants it has authority to enter into and perform this Agreement, and will perform the Services with due professional skill and care.

9.2 You warrant You have authority to enter into this Agreement and that Your information and Materials are accurate and do not infringe third-party rights.

9.3 To the extent the Australian Consumer Law (ACL) applies, nothing in this Agreement excludes any consumer guarantee or remedy that cannot lawfully be excluded.

10. Liability and indemnity

10.1 Nothing limits liability for: (a) death or personal injury caused by negligence; (b) fraud; or (c) anything that cannot be limited by law (including non-excludable ACL guarantees).

10.2 Subject to 10.1, neither party is liable for indirect or consequential loss, or loss of profit, revenue, business, savings, goodwill, reputation or data.

10.3 Subject to 10.1, ACXPA's total aggregate liability under this Agreement will not exceed the total Fees paid by You.

10.4 Each party's liability is reduced proportionately to the extent the other party's negligence, breach or failure to mitigate contributed to the loss.

10.5 If You are a "consumer" under the ACL: for a major failure You may cancel and obtain a refund for the unused portion or compensation; for a non-major failure You are entitled to have it rectified within a reasonable time.

11. Subcontracting

11.1 ACXPA may subcontract any part of the Services (including mystery shopping calls) without Your consent, and remains responsible for its subcontractors' acts and omissions as if its own.

12. Termination

12.1 Either party may terminate by written notice if the other commits a material breach and fails to remedy it within 20 Business Days of notice.

12.2 Either party may terminate immediately if the other becomes insolvent or is unable to pay its debts.

12.3 As the Trial is a one-off paid engagement, if You cancel after paying, Fees already paid are not refundable except as required by law or under clause 12.4.

12.4 If You terminate for ACXPA's uncured material breach or insolvency before the Services are complete, ACXPA will refund a fair portion of the Fees for Services not yet performed.

12.5 Termination does not affect accrued rights. Clauses 5, 7, 8, 10 and 12 survive.

13. Force majeure

13.1 Neither party is liable for delay or failure to perform (other than to pay money) caused by an event beyond its reasonable control, provided it notifies the other promptly and mitigates. If the event continues for more than 60 days, either party may terminate on written notice.

14. General

14.1 Disputes: the parties will first try in good faith to resolve any dispute between senior representatives before commencing proceedings (this does not prevent urgent interlocutory relief).

14.2 Notices must be in writing to the email the other party has provided (for You, the email in Your ACXPA Online Form).

14.3 Neither party may assign this Agreement without the other's prior written consent (not unreasonably withheld), except ACXPA may assign to an entity it controls or that acquires its business.

14.4 A variation must be in writing and agreed by both parties.

14.5 This Agreement, with Your ACXPA Online Form, is the entire agreement and supersedes prior discussions.

14.6 ACXPA is an independent contractor; nothing creates a partnership, joint venture, agency or employment.

14.7 If any provision is invalid, it is read down or severed to the necessary extent.

14.8 This Agreement is governed by the laws of Victoria, with the non-exclusive jurisdiction of its courts.