PEER & COMPETITOR BENCHMARKING PROGRAM — TERMS & CONDITIONS
These Terms & Conditions become binding when you place your order. By completing and submitting the ACXPA Online Form, you (You) enter into a legally binding agreement (Agreement) with Australian Customer Experience Professionals Association (ACXPA) (ABN 58 817 433 774) of Suite 591, 585 Little Collins Street, Melbourne VIC 3000, on the terms set out below. If you do not agree to these terms, you must not place an order for or use the Services.
BACKGROUND
A. ACXPA provides independent, external contact centre and customer experience benchmarking services, assessed against the ACXPA Contact Centre CX Standards and the ACXPA Accessibility (ACCESS) Standards, which ACXPA has developed and refined over several decades.
B. You wish to engage ACXPA to provide those services, and ACXPA agrees to provide them, 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 form You completed on the ACXPA website to order the Services, which sets out the details of Your order (including the program duration, call volumes, nominated competitors and any optional workshops You selected).
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), workshops and other materials ACXPA provides to You under this Agreement.
Effective Date means the date You place Your order.
Fees means the fees payable by You for the Services, as set out in Your ACXPA Online Form and ACXPA's 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 from time to time as part of its public Call Centre Rankings and related materials, excluding any individual employee or agent details and any call recording.
Services means the Peer & Competitor Benchmarking Program services described in clause 3 and as selected by You in the ACXPA Online Form.
Term means the program duration You selected in the ACXPA Online Form.
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. TERM
2.1 This Agreement commences on the Effective Date and continues for the Term, unless terminated earlier under clause 14.
2.1A The Services start on the 1st day of the calendar month after Your first payment is received, if it is received on or before the 15th day of a month, or otherwise on the 1st day of the calendar month after that (the Start Date). Each quarter begins on the 1st day of a month, and the minimum Term runs from the Start Date. ACXPA will use reasonable endeavours to meet an earlier start You request, but does not guarantee it.
2.2 The Term is a minimum committed term. The parties may extend it by written agreement.
2.3 After the minimum Term, this Agreement continues for successive periods of three months (each a Renewal Period) on the same Fees until either party ends it by written notice, which You can give at any time by email or through Your order page. Each Renewal Period is paid on the 15th day of the month before it begins (its Payment Day). Notice that reaches ACXPA before the next Payment Day takes effect at the end of the period You have already paid for; notice received on or after it takes effect at the end of the following Renewal Period. In either case, notice does not take effect before the end of the minimum Term. The date by which notice must reach ACXPA is shown on Your order page and in ACXPA's emails to You.
3. THE SERVICES
3.1 ACXPA will provide the Services You selected in the ACXPA Online Form. The Services include:
(a) each calendar month, mystery shopping calls to Your contact centre, and to each of Your nominated competitors, at the call volumes You selected in the ACXPA Online Form, made at random times and days;
(b) an assessment of every call against ACXPA's standards, producing an Agent Mastery score (the quality of the interaction with the live agent), an Accessibility score (how easily a customer can reach and navigate to a live agent) and a Contact Centre CX Score;
(c) monthly data, scores and call recordings for each call made to Your contact centre (including the employee's name where the employee provided it, assessment notes and the recording, for Your internal use), normally provided within 14 days after the end of each month;
(d) a quarterly report of insights, trends and actionable recommendations; and
(e) if You selected it in the ACXPA Online Form, an optional live quarterly Insights workshop (via Zoom).
3.2 The following details of the Services 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 reports.
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. Nothing in this Agreement prevents ACXPA from providing the same or similar services to any other person.
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 for ACXPA to perform the Services, and are responsible for the accuracy and completeness of the details and Materials You provide (including in the ACXPA Online Form).
4.2 Where You have selected the ACXPA member rate, that rate is conditional on You holding a current ACXPA Business Membership for the duration of the Term (see clause 6.2).
4.3 You warrant that any Materials You provide do not infringe any applicable law or the rights (including Intellectual Property 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, assessment criteria and know-how, are and remain the sole property of ACXPA. ACXPA does not assign, and cannot assign, ownership of the Intellectual Property Rights in its methodology to You.
5.2 ACXPA grants You a non-exclusive, royalty-free, worldwide, irrevocable licence to use the Deliverables, and the Intellectual Property Rights in them, for Your internal business purposes — that is, to receive and benefit from the Services, including internal reporting, analysis and service-improvement activities.
5.3 You must not: (a) on-sell, commercialise or publicly distribute the Deliverables; (b) sub-licence the Deliverables, except to Your personnel and professional 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.
5.5 ACXPA indemnifies You against direct loss arising from any third-party claim that Your use of the Deliverables, as supplied by ACXPA, infringes that third party's Intellectual Property Rights in Australia. This indemnity is subject to clause 10 (including the liability cap) and to clause 10.5.
6. FEES AND PAYMENT
6.1 You will pay ACXPA the Fees for the Services as set out in Your ACXPA Online Form and ACXPA's invoice.
6.2 Where the Fees reflect the ACXPA member rate, they are conditional on You holding a current ACXPA Business Membership. If that membership lapses or is not maintained, ACXPA may, on written notice, adjust the Fees to its applicable non-member rate for the remainder of the Term.
6.3 All Fees are exclusive of GST. You will pay any GST payable on a taxable supply under this Agreement on receipt of a valid tax invoice.
6.4 Fees are payable quarterly in advance: the first quarter when You place Your order, and each later quarter on its Payment Day (the 15th day of the month before it begins). If You pay by invoice, ACXPA will issue Your first GST invoice when You place Your order, payable within 30 days of its date, and the Start Date depends on when it is paid (clause 2.1A); each later invoice is issued on its Payment Day and is payable before the quarter it covers begins. If You pay by card, Your card is charged when You place Your order and on each Payment Day, and ACXPA emails You a GST tax invoice for each payment.
6.5 If an undisputed invoice remains unpaid after its due date, ACXPA may, on giving You not less than 10 Business Days' written notice and a further opportunity to pay, suspend the Services until payment is received. Where the Services are suspended for non-payment, the Term and the Fees are not reduced.
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 disputed portion 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 reports, articles, social media and other materials. ACXPA does this independently of this Agreement, and its right to do so is not granted by, and does not depend on, this Agreement.
7.2 ACXPA will not publicly publish any individual employee or agent name or details, or any call recording, obtained in connection with the Services.
7.3 You may, by written notice to ACXPA, elect to be excluded from ACXPA's Published Results. ACXPA will give effect to that election within a reasonable period.
7.4 This clause 7 survives termination of this Agreement.
8. CONFIDENTIALITY AND PRIVACY
8.1 Each party will keep the other party's Confidential Information confidential and use it only for the purposes of this Agreement, except where disclosure is required by law, the information is public (other than through breach of this Agreement), or disclosure is to a party's 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 in connection with this Agreement. 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 of this Agreement.
9. WARRANTIES
9.1 ACXPA warrants that it has the authority to enter into and perform this Agreement, and will perform the Services with due professional skill and care.
9.2 You warrant that You have the authority to enter into and perform this Agreement, and that the information and Materials You provide are accurate and do not infringe any third-party rights.
9.3 To the extent the Australian Consumer Law (ACL) applies to the supply of the Services, nothing in this Agreement excludes, restricts or modifies any consumer guarantee, right or remedy that cannot lawfully be excluded, restricted or modified.
10. LIABILITY AND INDEMNITY
10.1 Nothing in this Agreement limits or excludes a party's liability: (a) for death or personal injury caused by its negligence or that of its personnel; (b) for fraud or fraudulent misrepresentation; or (c) to the extent liability cannot be limited or excluded by law (including non-excludable guarantees under the ACL).
10.2 Subject to clause 10.1, neither party is liable to the other for any indirect or consequential loss, or for any loss of profit, revenue, business, anticipated savings, goodwill, reputation, or loss of or corruption of data, whether arising in contract, tort (including negligence), under an indemnity, or otherwise.
10.3 Subject to clause 10.1, ACXPA's total aggregate liability arising out of or in connection with this Agreement, whether in contract, tort (including negligence), under an indemnity or otherwise, will not exceed the total Fees paid by You under this Agreement.
10.4 Each party's liability (including under any indemnity) is reduced proportionately to the extent that any negligent or unlawful act or omission of the other party, that party's breach of this Agreement, or its failure to mitigate its loss, contributed to the loss or liability.
10.5 A party relying on an indemnity must promptly notify the other in writing of the claim, make no admission or settlement without the indemnifier's prior written consent, provide reasonable assistance, and allow the indemnifier to control the defence and settlement of the claim.
10.6 If and to the extent You are a "consumer" to which the ACL applies: (a) the Services come with guarantees that cannot be excluded under the ACL; (b) for a major failure, You may cancel this Agreement and obtain a refund for the unused portion, or compensation for its reduced value, and compensation for any other reasonably foreseeable loss; and (c) for a failure that is not major, You are entitled to have the problem rectified within a reasonable time, and if that is not done, to cancel and obtain a refund for the unused portion.
11. SUBCONTRACTING
11.1 ACXPA may subcontract any part of the Services (including the conduct of mystery shopping calls) without Your consent, and remains responsible for its subcontractors' acts and omissions in connection with the Services as if they were ACXPA's own.
12. TERMINATION
12.1 Either party may terminate this Agreement by written notice if the other commits a material breach and fails to remedy it within 20 Business Days of written notice requiring it to do so.
12.2 Either party may terminate this Agreement immediately by written notice if the other becomes insolvent, has a controller or administrator appointed, or is unable to pay its debts as they fall due.
12.3 If You terminate this Agreement before the end of the minimum Term other than for ACXPA's uncured material breach or insolvency, You remain liable for the Fees for the full Term, and Fees paid in advance are not refundable.
12.4 If You terminate this Agreement as a result of ACXPA's uncured material breach (clause 12.1) or insolvency (clause 12.2), ACXPA will refund a pro-rata portion of any Fees paid in advance for Services not yet performed, and no further amount is payable by You.
12.5 Termination does not affect any rights or obligations accrued before termination. Clauses that by their nature are intended to survive (including clauses 5, 7, 8, 10 and this clause 12) survive termination.
13. FORCE MAJEURE
13.1 Neither party is liable for any delay or failure to perform its obligations (other than an obligation to pay money) to the extent caused by an event beyond its reasonable control. The affected party will notify the other promptly and use reasonable endeavours to mitigate the effect. If such an event continues for more than 60 days, either party may terminate this Agreement on written notice.
14. GENERAL
14.1 Disputes: If a dispute arises in connection with this Agreement, the parties will first try in good faith to resolve it by discussion between senior representatives before commencing court proceedings. Nothing in this clause prevents a party from seeking urgent interlocutory relief.
14.2 Notices: A notice under this Agreement must be in writing and sent to the other party at the email address it has provided (for You, the email in Your ACXPA Online Form). A notice sent by email is taken to be received at the time of sending, provided no failure notification is received, but if that time is not on a Business Day or is after 5.00pm, on the next Business Day.
14.3 Assignment: Neither party may assign or novate this Agreement without the other's prior written consent (not to be unreasonably withheld), except that ACXPA may assign or novate to an entity it controls or that acquires its business, on written notice to You.
14.4 Variation: A variation of this Agreement must be in writing and agreed by both parties.
14.5 Entire agreement: This Agreement, together with Your ACXPA Online Form, records the entire agreement between the parties about its subject matter and supersedes all prior discussions and proposals.
14.6 Relationship: ACXPA is an independent contractor. Nothing in this Agreement creates a partnership, joint venture, agency or employment relationship.
14.7 Severance: If any provision is invalid or unenforceable, it is to be read down or severed to the extent necessary, without affecting the remaining provisions.
14.8 Governing law: This Agreement is governed by the laws of Victoria, and each party submits to the non-exclusive jurisdiction of the courts of Victoria.
ACXPA Peer & Competitor Benchmarking Trial — Terms & Conditions
These Terms & Conditions govern Your ACXPA Peer & Competitor Benchmarking Trial. They become binding when You place Your order, whether You pay by card at checkout or by ACXPA's invoice. By completing and submitting the ACXPA Online Form, You (You) enter into a legally binding agreement (Agreement) with 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 place an order for or use the Services.
Background
A. ACXPA provides independent, external contact centre and customer experience benchmarking services, assessed against the ACXPA Contact Centre CX 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 place Your order.
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 one calendar month from the Start Date (see clause 6.4), 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 a Contact Centre 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, normally provided within 14 days after the end of the month of calls; 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 30 days of its date. ACXPA will start the Trial once the invoice is paid. The Trial starts on the 1st day of the calendar month after payment is received, if it is received on or before the 15th day of a month, or otherwise on the 1st day of the calendar month after that (the Start Date). ACXPA will use reasonable endeavours to meet an earlier start You request, but does not guarantee it.
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.
CALL CENTRE ACCESS BENCHMARKING — TERMS & CONDITIONS
These Terms & Conditions become binding when you place your order. By completing and submitting the ACXPA Online Form, you (You) enter into a legally binding agreement (Agreement) with Australian Customer Experience Professionals Association (ACXPA) (ABN 58 817 433 774) of Suite 591, 585 Little Collins Street, Melbourne VIC 3000, on the terms set out below. If you do not agree to these terms, you must not place an order for or use the Services.
BACKGROUND
A. ACXPA provides independent, external contact centre and customer experience benchmarking services, assessed against the ACXPA Contact Centre CX Standards and the ACXPA Accessibility (ACCESS) Standards, which ACXPA has developed and refined over several decades.
B. You wish to engage ACXPA to provide those services, and ACXPA agrees to provide them, 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 form You completed on the ACXPA website to order the Services, which sets out the details of Your order (including whether Your order is one-off or for a term, the number of organisations, the calls to each, the wait limit and any nominated organisations).
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 and other materials ACXPA provides to You under this Agreement.
Effective Date means the date You place Your order.
Fees means the fees payable by You for the Services, as set out in Your ACXPA Online Form and ACXPA's 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 from time to time as part of its public Call Centre Rankings and related materials, excluding any individual employee or agent details and any call recording.
Services means the Call Centre Access Benchmarking services described in clause 3 and as selected by You in the ACXPA Online Form.
Term means the contract duration You selected in the ACXPA Online Form (3, 6 or 12 months). A one-off order has no Term. The Monthly Plan means the monthly, cancel-any-time option in the ACXPA Online Form.
Wait Limit means the longest time, in minutes, You selected for ACXPA to wait on each call for a person to answer.
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. TERM
2.1 This Agreement commences on the Effective Date. A one-off order ends once ACXPA has delivered the Services for it. An order with a Term continues for the Term, unless terminated earlier under clause 12.
2.2 Where You selected a Term, the Term is a minimum committed term. The parties may extend it by written agreement.
2.2A Where You selected the Monthly Plan, this Agreement continues from month to month until either party ends it by written notice. Each month is paid on the 15th day of the month before it begins (its Payment Day). Notice that reaches ACXPA before a Payment Day takes effect at the end of the month You have already paid for, and no further payment is taken; notice received on or after a Payment Day takes effect at the end of the following month. The date by which notice must reach ACXPA is shown on Your order page and in ACXPA's emails to You.
2.3 After the minimum Term, this Agreement continues for successive periods of three months (each a Renewal Period) on the same Fees until either party ends it by written notice, which You can give at any time by email or through Your order page. Each Renewal Period is paid on the 15th day of the month before it begins (its Payment Day). Notice that reaches ACXPA before the next Payment Day takes effect at the end of the period You have already paid for; notice received on or after it takes effect at the end of the following Renewal Period. In either case, notice does not take effect before the end of the minimum Term. The date by which notice must reach ACXPA is shown on Your order page and in ACXPA's emails to You.
3. THE SERVICES
3.1 ACXPA will provide the Services You selected in the ACXPA Online Form. The Services include:
(a) calls made personally by ACXPA's trained assessors (people, not automated or AI callers) to the service line (the line used by existing customers) of Your organisation and of each other organisation in Your order, at the call volumes You selected in the ACXPA Online Form (for a one-off order, once; for an order with a Term or on the Monthly Plan, each calendar month), made at different times and days within opening hours;
(b) on each call, the assessor navigates the interactive voice response (IVR) system and waits in the queue, and ends the call politely as soon as a person answers or the Wait Limit is reached, whichever is first. A call that reaches the Wait Limit is recorded as not answered within the Wait Limit;
(c) an assessment of every call against ACXPA's Accessibility (ACCESS) Standards, using the same Accessibility metrics as ACXPA's other benchmarking services and covering, among other things, the IVR, recorded and forced messages, any wait-time and queue information given, any callback offered, and the time taken to reach a person; and
(d) a report comparing the organisations in Your order: for a one-off order, once the calls are complete; for an order with a Term or on the Monthly Plan, each month, so You can track Your progress. Reports are normally provided within 14 days after the end of the month (or of the calls) they cover.
3.1A Calls are made in calendar months. The Services start on the 1st day of the calendar month after Your first payment is received, if it is received on or before the 15th day of a month, or otherwise on the 1st day of the calendar month after that (the Start Date). A one-off order covers one calendar month of calls from the Start Date. On the Monthly Plan each month, and with a Term each quarter, begins on the 1st day of a month, and any minimum Term runs from the Start Date. ACXPA will use reasonable endeavours to meet an earlier start or a different timeframe You request, but does not guarantee it.
3.2 ACXPA's assessors never use or invent customer details. Where an IVR asks for an account number, customer number or other identification, the assessor takes the route that does not require it. Where no such route exists, the call is recorded as "no access without identification", which is reported as a result. Because calls end when a person answers, the Services do not assess the conversation with a person.
3.2A The following details of the Services are as You entered them in the ACXPA Online Form: Your service line number; Your operating hours; the organisations to be called (or that ACXPA is to recommend them) and Your industry; and the individuals who will receive the reports.
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. Nothing in this Agreement prevents ACXPA from providing the same or similar services to any other person.
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 for ACXPA to perform the Services, and are responsible for the accuracy and completeness of the details and Materials You provide (including in the ACXPA Online Form).
4.2 Where You have selected the ACXPA member rate, that rate is conditional on You holding a current ACXPA Business Membership for the duration of the Term (see clause 6.2).
4.3 You warrant that any Materials You provide do not infringe any applicable law or the rights (including Intellectual Property 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, assessment criteria and know-how, are and remain the sole property of ACXPA. ACXPA does not assign, and cannot assign, ownership of the Intellectual Property Rights in its methodology to You.
5.2 ACXPA grants You a non-exclusive, royalty-free, worldwide, irrevocable licence to use the Deliverables, and the Intellectual Property Rights in them, for Your internal business purposes — that is, to receive and benefit from the Services, including internal reporting, analysis and service-improvement activities.
5.3 You must not: (a) on-sell, commercialise or publicly distribute the Deliverables; (b) sub-licence the Deliverables, except to Your personnel and professional 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.
5.5 ACXPA indemnifies You against direct loss arising from any third-party claim that Your use of the Deliverables, as supplied by ACXPA, infringes that third party's Intellectual Property Rights in Australia. This indemnity is subject to clause 10 (including the liability cap) and to clause 10.5.
6. FEES AND PAYMENT
6.1 You will pay ACXPA the Fees for the Services as set out in Your ACXPA Online Form and ACXPA's invoice.
6.2 Where the Fees reflect the ACXPA member rate, they are conditional on You holding a current ACXPA Business Membership. If that membership lapses or is not maintained, ACXPA may, on written notice, adjust the Fees to its applicable non-member rate for the remainder of the Term.
6.3 All Fees are exclusive of GST. You will pay any GST payable on a taxable supply under this Agreement on receipt of a valid tax invoice.
6.4 The Fees are a fixed price per call, set by the Wait Limit and the Term (or Monthly Plan or one-off order) You selected, and do not change with the actual time taken for a person to answer. A one-off setup fee is payable with Your first payment, except that it is waived for an order with a Term. For a one-off order, the Fees are payable in full in advance. With a Term the Fees are payable quarterly in advance, and on the Monthly Plan monthly in advance: the first quarter or month when You place Your order, and each later one on its Payment Day (clauses 2.2A and 2.3). If You pay by invoice, ACXPA will issue Your first GST invoice when You place Your order, payable within 30 days of its date, and the Start Date depends on when it is paid (clause 3.1A); each later invoice is issued on its Payment Day and is payable before the period it covers begins. If You pay by card, Your card is charged when You place Your order and, where You have a Term or the Monthly Plan, on each Payment Day, and ACXPA emails You a GST tax invoice for each payment.
6.4A Fees are non-refundable once paid, including where You cancel before or during the Services, except as required by law (including any non-excludable rights under the Australian Consumer Law, see clause 10.6) or as set out in clause 12.4.
6.5 If an undisputed invoice remains unpaid after its due date, ACXPA may, on giving You not less than 10 Business Days' written notice and a further opportunity to pay, suspend the Services until payment is received. Where the Services are suspended for non-payment, the Term and the Fees are not reduced.
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 disputed portion in good faith.
7. PUBLICATION OF RESULTS
7.1 ACXPA may, at its discretion, publish access benchmarking results (including results identified by organisation) as part of its Call Centre Rankings and related reports, articles, social media and other materials.
7.2 Despite clause 7.1, ACXPA will only publish results that identify You if You gave consent in the ACXPA Online Form or later give it in writing. You may withdraw Your consent at any time by written notice, and ACXPA will stop using Your identified results in new materials within a reasonable period.
7.3 ACXPA will not publicly publish any individual employee or agent name or details obtained in connection with the Services.
7.4 This clause 7 survives termination of this Agreement.
8. CONFIDENTIALITY AND PRIVACY
8.1 Each party will keep the other party's Confidential Information confidential and use it only for the purposes of this Agreement, except where disclosure is required by law, the information is public (other than through breach of this Agreement), or disclosure is to a party's 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 in connection with this Agreement. Call recordings are not part of the Services and are not provided to You. ACXPA will conduct all mystery shopping calls lawfully.
8.3 This clause 8 survives termination of this Agreement.
9. WARRANTIES
9.1 ACXPA warrants that it has the authority to enter into and perform this Agreement, and will perform the Services with due professional skill and care.
9.2 You warrant that You have the authority to enter into and perform this Agreement, and that the information and Materials You provide are accurate and do not infringe any third-party rights.
9.3 To the extent the Australian Consumer Law (ACL) applies to the supply of the Services, nothing in this Agreement excludes, restricts or modifies any consumer guarantee, right or remedy that cannot lawfully be excluded, restricted or modified.
10. LIABILITY AND INDEMNITY
10.1 Nothing in this Agreement limits or excludes a party's liability: (a) for death or personal injury caused by its negligence or that of its personnel; (b) for fraud or fraudulent misrepresentation; or (c) to the extent liability cannot be limited or excluded by law (including non-excludable guarantees under the ACL).
10.2 Subject to clause 10.1, neither party is liable to the other for any indirect or consequential loss, or for any loss of profit, revenue, business, anticipated savings, goodwill, reputation, or loss of or corruption of data, whether arising in contract, tort (including negligence), under an indemnity, or otherwise.
10.3 Subject to clause 10.1, ACXPA's total aggregate liability arising out of or in connection with this Agreement, whether in contract, tort (including negligence), under an indemnity or otherwise, will not exceed the total Fees paid by You under this Agreement.
10.4 Each party's liability (including under any indemnity) is reduced proportionately to the extent that any negligent or unlawful act or omission of the other party, that party's breach of this Agreement, or its failure to mitigate its loss, contributed to the loss or liability.
10.5 A party relying on an indemnity must promptly notify the other in writing of the claim, make no admission or settlement without the indemnifier's prior written consent, provide reasonable assistance, and allow the indemnifier to control the defence and settlement of the claim.
10.6 If and to the extent You are a "consumer" to which the ACL applies: (a) the Services come with guarantees that cannot be excluded under the ACL; (b) for a major failure, You may cancel this Agreement and obtain a refund for the unused portion, or compensation for its reduced value, and compensation for any other reasonably foreseeable loss; and (c) for a failure that is not major, You are entitled to have the problem rectified within a reasonable time, and if that is not done, to cancel and obtain a refund for the unused portion.
11. SUBCONTRACTING
11.1 ACXPA may subcontract any part of the Services (including the conduct of mystery shopping calls) without Your consent, and remains responsible for its subcontractors' acts and omissions in connection with the Services as if they were ACXPA's own.
12. TERMINATION
12.1 Either party may terminate this Agreement by written notice if the other commits a material breach and fails to remedy it within 20 Business Days of written notice requiring it to do so.
12.2 Either party may terminate this Agreement immediately by written notice if the other becomes insolvent, has a controller or administrator appointed, or is unable to pay its debts as they fall due.
12.3 If You terminate this Agreement before the end of the minimum Term other than for ACXPA's uncured material breach or insolvency, You remain liable for the Fees for the full Term, and Fees paid in advance are not refundable.
12.4 If You terminate this Agreement as a result of ACXPA's uncured material breach (clause 12.1) or insolvency (clause 12.2), ACXPA will refund a pro-rata portion of any Fees paid in advance for Services not yet performed, and no further amount is payable by You.
12.5 Termination does not affect any rights or obligations accrued before termination. Clauses that by their nature are intended to survive (including clauses 5, 7, 8, 10 and this clause 12) survive termination.
13. FORCE MAJEURE
13.1 Neither party is liable for any delay or failure to perform its obligations (other than an obligation to pay money) to the extent caused by an event beyond its reasonable control. The affected party will notify the other promptly and use reasonable endeavours to mitigate the effect. If such an event continues for more than 60 days, either party may terminate this Agreement on written notice.
14. GENERAL
14.1 Disputes: If a dispute arises in connection with this Agreement, the parties will first try in good faith to resolve it by discussion between senior representatives before commencing court proceedings. Nothing in this clause prevents a party from seeking urgent interlocutory relief.
14.2 Notices: A notice under this Agreement must be in writing and sent to the other party at the email address it has provided (for You, the email in Your ACXPA Online Form). A notice sent by email is taken to be received at the time of sending, provided no failure notification is received, but if that time is not on a Business Day or is after 5.00pm, on the next Business Day.
14.3 Assignment: Neither party may assign or novate this Agreement without the other's prior written consent (not to be unreasonably withheld), except that ACXPA may assign or novate to an entity it controls or that acquires its business, on written notice to You.
14.4 Variation: A variation of this Agreement must be in writing and agreed by both parties.
14.5 Entire agreement: This Agreement, together with Your ACXPA Online Form, records the entire agreement between the parties about its subject matter and supersedes all prior discussions and proposals.
14.6 Relationship: ACXPA is an independent contractor. Nothing in this Agreement creates a partnership, joint venture, agency or employment relationship.
14.7 Severance: If any provision is invalid or unenforceable, it is to be read down or severed to the extent necessary, without affecting the remaining provisions.
14.8 Governing law: This Agreement is governed by the laws of Victoria, and each party submits to the non-exclusive jurisdiction of the courts of Victoria.
CALL CENTRE MONTHLY SNAPSHOT — TERMS & CONDITIONS
These Terms & Conditions become binding when you place your order. By completing and submitting the ACXPA Online Form, you (You) enter into a legally binding agreement (Agreement) with Australian Customer Experience Professionals Association (ACXPA) (ABN 58 817 433 774) of Suite 591, 585 Little Collins Street, Melbourne VIC 3000, on the terms set out below. If you do not agree to these terms, you must not place an order for or use the Services.
BACKGROUND
A. ACXPA provides independent, external contact centre and customer experience benchmarking services, assessed against the ACXPA Contact Centre CX Standards, which ACXPA has developed and refined over several decades, and publishes the Australian Call Centre Rankings.
B. The Call Centre Monthly Snapshot is available only to ACXPA Business Members, in industry sectors that ACXPA already benchmarks in the Call Centre Rankings.
C. You wish to engage ACXPA to provide the Monthly Snapshot, and ACXPA agrees to provide it, 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 form You completed on the ACXPA website to order the Services, which sets out the details of Your order (including Your industry sector, contact centre number and operating hours).
Business Day means a day that is not a Saturday, Sunday or public holiday in Melbourne, Victoria.
Business Membership means a current ACXPA Business Membership held by You (including as a member of a Business Membership group).
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 monthly reports, scores and other materials ACXPA provides to You under this Agreement.
Effective Date means the date You place Your order.
Fees means the monthly fee payable by You for the Services, as set out in Your ACXPA Online Form and ACXPA's 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.
Payment Day means the 15th day of the month before each month of the Services begins.
Published Results means benchmarking results, scores and rankings identified by organisation (including You) that ACXPA publishes from time to time as part of its public Call Centre Rankings and related materials, excluding any individual employee or agent details and any call recording.
Services means the Call Centre Monthly Snapshot services described in clause 3.
Start Date has the meaning given in clause 3.3.
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. TERM AND CANCELLATION
2.1 This Agreement commences on the Effective Date and continues from month to month until either party ends it by written notice. There is no minimum term.
2.2 You can give notice at any time by email or through Your order page. Each month is paid on its Payment Day. Notice that reaches ACXPA before a Payment Day takes effect at the end of the month You have already paid for, and no further payment is taken. Notice received on or after a Payment Day takes effect at the end of the following month, which remains payable. The date by which notice must reach ACXPA is shown on Your order page and in ACXPA's emails to You.
2.3 After the last month of the Services, ACXPA will provide the report for that month in accordance with clause 3.1(d).
3. THE SERVICES
3.1 Each calendar month of the Services, ACXPA will provide:
(a) six (6) mystery shopping calls made by ACXPA's trained evaluators to the contact centre number You entered in the ACXPA Online Form, placed as an ordinary customer enquiry at random times and days within Your operating hours (including weekends only if You selected them);
(b) an assessment of every call against the 23 Monthly Snapshot metrics drawn from the ACXPA Contact Centre CX Standards, across Accessibility and Agent Mastery, rolled up into an Contact Centre CX Score;
(c) a comparison of Your results with the average for Your industry sector, and Your inclusion in the Australian Call Centre Rankings; and
(d) a monthly report of Your results against the sector average. Reports are normally provided within 14 days after the end of the month they cover.
3.2 The Services are a standardised summary. They do not include individual call scores, call recordings, the full CX Standards metric set, custom scenarios or KPIs, or comparisons with named organisations, which are available through ACXPA's other benchmarking services.
3.3 Calls are made in calendar months. The Services start on the 1st day of the calendar month after Your first payment is received, if it is received on or before the 15th day of a month, or otherwise on the 1st day of the calendar month after that (the Start Date). Each later month begins on the 1st day of a month. ACXPA will use reasonable endeavours to meet an earlier start You request, but does not guarantee it.
3.4 The following details of the Services are as You entered them in the ACXPA Online Form: Your industry sector; Your contact centre number; Your operating hours; whether You operate nationally or in particular states; and the individuals who will receive the reports.
3.5 ACXPA will perform the Services with the professional skill, care and diligence reasonably expected of a competent provider of similar services.
3.6 ACXPA's engagement is non-exclusive. Nothing in this Agreement prevents ACXPA from providing the same or similar services to any other person.
3.7 Any variation to the scope of the Services must be agreed in writing by both parties.
4. ELIGIBILITY AND YOUR OBLIGATIONS
4.1 The Services are available only while You hold a Business Membership, and only for an industry sector that ACXPA benchmarks in the Call Centre Rankings. If Your Business Membership ends, or ACXPA stops benchmarking Your sector, ACXPA may end this Agreement by written notice at the end of the month You have already paid for, and no further Fees are payable.
4.2 The Fees for the Services are separate from, and in addition to, the fees for Your Business Membership.
4.3 You will provide ACXPA with the information, access and cooperation reasonably required for ACXPA to perform the Services, and are responsible for the accuracy and completeness of the details and Materials You provide (including in the ACXPA Online Form). You will tell ACXPA promptly if Your contact centre number or operating hours change.
4.4 You warrant that any Materials You provide do not infringe any applicable law or the rights (including Intellectual Property Rights) of any third party.
4.5 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, assessment criteria and know-how, are and remain the sole property of ACXPA. ACXPA does not assign, and cannot assign, ownership of the Intellectual Property Rights in its methodology to You.
5.2 ACXPA grants You a non-exclusive, royalty-free, worldwide, irrevocable licence to use the Deliverables, and the Intellectual Property Rights in them, for Your internal business purposes — that is, to receive and benefit from the Services, including internal reporting, analysis and service-improvement activities.
5.3 You must not: (a) on-sell, commercialise or publicly distribute the Deliverables; (b) sub-licence the Deliverables, except to Your personnel and professional 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.
5.5 ACXPA indemnifies You against direct loss arising from any third-party claim that Your use of the Deliverables, as supplied by ACXPA, infringes that third party's Intellectual Property Rights in Australia. This indemnity is subject to clause 10 (including the liability cap) and to clause 10.5.
6. FEES AND PAYMENT
6.1 You will pay ACXPA the Fees for the Services as set out in Your ACXPA Online Form and ACXPA's invoice. The Fees are a fixed monthly amount.
6.2 All Fees are exclusive of GST. You will pay any GST payable on a taxable supply under this Agreement on receipt of a valid tax invoice.
6.3 The Fees are payable monthly in advance: the first month when You place Your order, and each later month on its Payment Day (clause 2.2). If You pay by invoice, ACXPA will issue Your first GST invoice when You place Your order, payable within 30 days of its date, and the Start Date depends on when it is paid (clause 3.3); each later invoice is issued on its Payment Day and is payable before the month it covers begins. If You pay by card, Your card is charged when You place Your order and on each Payment Day, and ACXPA emails You a GST tax invoice for each payment.
6.4 Fees are non-refundable once paid, including where You cancel during a month, except as required by law (including any non-excludable rights under the Australian Consumer Law, see clause 10.6) or as set out in clause 12.3.
6.5 If an undisputed invoice remains unpaid after its due date, or a card payment fails and is not made good, ACXPA may, on giving You not less than 10 Business Days' written notice and a further opportunity to pay, suspend 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 disputed portion in good faith.
6.7 ACXPA may change the Fees by giving You at least 30 days' written notice before the Payment Day on which the change applies. If You do not accept the change, You may end this Agreement under clause 2.2 before that Payment Day.
7. CALL CENTRE RANKINGS AND PUBLICATION OF RESULTS
7.1 Your results form part of, and are published in, ACXPA's Australian Call Centre Rankings. By ordering the Services, You agree that ACXPA may publish Your results (including results identified by organisation) in the Call Centre Rankings and in related reports, articles, social media and other materials, during and after this Agreement.
7.2 ACXPA will not publicly publish any individual employee or agent name or details obtained in connection with the Services, or any call recording.
7.3 This clause 7 survives termination of this Agreement.
8. CONFIDENTIALITY AND PRIVACY
8.1 Each party will keep the other party's Confidential Information confidential and use it only for the purposes of this Agreement, except where disclosure is required by law, the information is public (other than through breach of this Agreement), or disclosure is to a party's 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 in connection with this Agreement. Call recordings are not part of the Services and are not provided to You. ACXPA will conduct all mystery shopping calls lawfully.
8.3 This clause 8 survives termination of this Agreement.
9. WARRANTIES
9.1 ACXPA warrants that it has the authority to enter into and perform this Agreement, and will perform the Services with due professional skill and care.
9.2 You warrant that You have the authority to enter into and perform this Agreement, and that the information and Materials You provide are accurate and do not infringe any third-party rights.
9.3 To the extent the Australian Consumer Law (ACL) applies to the supply of the Services, nothing in this Agreement excludes, restricts or modifies any consumer guarantee, right or remedy that cannot lawfully be excluded, restricted or modified.
10. LIABILITY AND INDEMNITY
10.1 Nothing in this Agreement limits or excludes a party's liability: (a) for death or personal injury caused by its negligence or that of its personnel; (b) for fraud or fraudulent misrepresentation; or (c) to the extent liability cannot be limited or excluded by law (including non-excludable guarantees under the ACL).
10.2 Subject to clause 10.1, neither party is liable to the other for any indirect or consequential loss, or for any loss of profit, revenue, business, anticipated savings, goodwill, reputation, or loss of or corruption of data, whether arising in contract, tort (including negligence), under an indemnity, or otherwise.
10.3 Subject to clause 10.1, ACXPA's total aggregate liability arising out of or in connection with this Agreement, whether in contract, tort (including negligence), under an indemnity or otherwise, will not exceed the total Fees paid by You under this Agreement in the 12 months before the event giving rise to the liability.
10.4 Each party's liability (including under any indemnity) is reduced proportionately to the extent that any negligent or unlawful act or omission of the other party, that party's breach of this Agreement, or its failure to mitigate its loss, contributed to the loss or liability.
10.5 A party relying on an indemnity must promptly notify the other in writing of the claim, make no admission or settlement without the indemnifier's prior written consent, provide reasonable assistance, and allow the indemnifier to control the defence and settlement of the claim.
10.6 If and to the extent You are a "consumer" to which the ACL applies: (a) the Services come with guarantees that cannot be excluded under the ACL; (b) for a major failure, You may cancel this Agreement and obtain a refund for the unused portion, or compensation for its reduced value, and compensation for any other reasonably foreseeable loss; and (c) for a failure that is not major, You are entitled to have the problem rectified within a reasonable time, and if that is not done, to cancel and obtain a refund for the unused portion.
11. SUBCONTRACTING
11.1 ACXPA may subcontract any part of the Services (including the conduct of mystery shopping calls) without Your consent, and remains responsible for its subcontractors' acts and omissions in connection with the Services as if they were ACXPA's own.
12. TERMINATION
12.1 Either party may terminate this Agreement by written notice if the other commits a material breach and fails to remedy it within 20 Business Days of written notice requiring it to do so.
12.2 Either party may terminate this Agreement immediately by written notice if the other becomes insolvent, has a controller or administrator appointed, or is unable to pay its debts as they fall due.
12.3 If You terminate this Agreement as a result of ACXPA's uncured material breach (clause 12.1) or insolvency (clause 12.2), ACXPA will refund a pro-rata portion of any Fees paid in advance for Services not yet performed, and no further amount is payable by You.
12.4 Termination does not affect any rights or obligations accrued before termination. Clauses that by their nature are intended to survive (including clauses 5, 7, 8, 10 and this clause 12) survive termination.
13. FORCE MAJEURE
13.1 Neither party is liable for any delay or failure to perform its obligations (other than an obligation to pay money) to the extent caused by an event beyond its reasonable control. The affected party will notify the other promptly and use reasonable endeavours to mitigate the effect. If such an event continues for more than 60 days, either party may terminate this Agreement on written notice.
14. GENERAL
14.1 Disputes: If a dispute arises in connection with this Agreement, the parties will first try in good faith to resolve it by discussion between senior representatives before commencing court proceedings. Nothing in this clause prevents a party from seeking urgent interlocutory relief.
14.2 Notices: A notice under this Agreement must be in writing and sent to the other party at the email address it has provided (for You, the email in Your ACXPA Online Form). A notice sent by email is taken to be received at the time of sending, provided no failure notification is received, but if that time is not on a Business Day or is after 5.00pm, on the next Business Day.
14.3 Assignment: Neither party may assign or novate this Agreement without the other's prior written consent (not to be unreasonably withheld), except that ACXPA may assign or novate to an entity it controls or that acquires its business, on written notice to You.
14.4 Variation: Except as set out in clause 6.7, a variation of this Agreement must be in writing and agreed by both parties.
14.5 Entire agreement: This Agreement, together with Your ACXPA Online Form, records the entire agreement between the parties about its subject matter and supersedes all prior discussions and proposals.
14.6 Relationship: ACXPA is an independent contractor. Nothing in this Agreement creates a partnership, joint venture, agency or employment relationship.
14.7 Severance: If any provision is invalid or unenforceable, it is to be read down or severed to the extent necessary, without affecting the remaining provisions.
14.8 Governing law: This Agreement is governed by the laws of Victoria, and each party submits to the non-exclusive jurisdiction of the courts of Victoria.
PRIVATE CALL CENTRE BENCHMARKING — TERMS & CONDITIONS
These Terms & Conditions become binding when you place your order. By completing and submitting the ACXPA Online Form, you (You) enter into a legally binding agreement (Agreement) with Australian Customer Experience Professionals Association (ACXPA) (ABN 58 817 433 774) of Suite 591, 585 Little Collins Street, Melbourne VIC 3000, on the terms set out below. If you do not agree to these terms, you must not place an order for or use the Services.
BACKGROUND
A. ACXPA provides independent, external contact centre and customer experience benchmarking services, assessed against the ACXPA Contact Centre CX Standards and the ACXPA Accessibility (ACCESS) Standards, which ACXPA has developed and refined over several decades.
B. You wish to engage ACXPA to provide those services, and ACXPA agrees to provide them, 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 form You completed on the ACXPA website to order the Services, which sets out the details of Your order (including the package or custom plan, the program duration, the calls a month, the average call length, any compliance checks and any optional workshops You selected).
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), workshops and other materials ACXPA provides to You under this Agreement.
Effective Date means the date You place Your order.
Fees means the fees payable by You for the Services, as set out in Your ACXPA Online Form and ACXPA's 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 from time to time as part of its public Call Centre Rankings and related materials, excluding any individual employee or agent details and any call recording.
Services means the Private Call Centre Benchmarking services described in clause 3 and as selected by You in the ACXPA Online Form.
Term means the program duration You selected in the ACXPA Online Form.
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. TERM
2.1 This Agreement commences on the Effective Date and continues for the Term, unless terminated earlier under clause 14.
2.1A The Services start on the 1st day of the calendar month after Your first payment is received, if it is received on or before the 15th day of a month, or otherwise on the 1st day of the calendar month after that (the Start Date). Each quarter begins on the 1st day of a month, and the minimum Term runs from the Start Date. ACXPA will use reasonable endeavours to meet an earlier start You request, but does not guarantee it.
2.2 The Term is a minimum committed term. The parties may extend it by written agreement.
2.3 After the minimum Term, this Agreement continues for successive periods of three months (each a Renewal Period) on the same Fees until either party ends it by written notice, which You can give at any time by email or through Your order page. Each Renewal Period is paid on the 15th day of the month before it begins (its Payment Day). Notice that reaches ACXPA before the next Payment Day takes effect at the end of the period You have already paid for; notice received on or after it takes effect at the end of the following Renewal Period. In either case, notice does not take effect before the end of the minimum Term. The date by which notice must reach ACXPA is shown on Your order page and in ACXPA's emails to You.
3. THE SERVICES
3.1 ACXPA will provide the Services You selected in the ACXPA Online Form. The Services include:
(a) each calendar month, mystery shopping calls to Your contact centre at the call volume You selected in the ACXPA Online Form, made at random times and days within Your operating hours, using sales, service or hybrid scenarios agreed with You;
(b) an assessment of every call against the ACXPA Contact Centre CX Standards (or criteria agreed with You), producing an Agent Mastery score (the quality of the interaction with the live agent), an Accessibility score (how easily a customer can reach and navigate to a live agent) and a Contact Centre CX Score, and against any compliance checks You selected;
(c) monthly data, scores and call recordings for each call made to Your contact centre (including the employee's name where the employee provided it, assessment notes and the recording, for Your internal use), normally provided within 14 days after the end of each month;
(d) a monthly performance report, with trends and insights over time and commentary to guide next steps; and
(e) if You selected it in the ACXPA Online Form, an optional live results workshop each quarter (via Zoom).
3.2 The following details of the Services are as You entered them in the ACXPA Online Form: Your contact centre phone number; Your operating hours; Your industry; the scenarios You would like tested (if any); and the individuals who will receive the reports. ACXPA will confirm the scenarios with You before the first call.
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. Nothing in this Agreement prevents ACXPA from providing the same or similar services to any other person.
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 for ACXPA to perform the Services, and are responsible for the accuracy and completeness of the details and Materials You provide (including in the ACXPA Online Form).
4.2 Where You have selected the ACXPA member rate, that rate is conditional on You holding a current ACXPA Business Membership for the duration of the Term (see clause 6.2).
4.3 You warrant that any Materials You provide do not infringe any applicable law or the rights (including Intellectual Property 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, assessment criteria and know-how, are and remain the sole property of ACXPA. ACXPA does not assign, and cannot assign, ownership of the Intellectual Property Rights in its methodology to You.
5.2 ACXPA grants You a non-exclusive, royalty-free, worldwide, irrevocable licence to use the Deliverables, and the Intellectual Property Rights in them, for Your internal business purposes — that is, to receive and benefit from the Services, including internal reporting, analysis and service-improvement activities.
5.3 You must not: (a) on-sell, commercialise or publicly distribute the Deliverables; (b) sub-licence the Deliverables, except to Your personnel and professional 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.
5.5 ACXPA indemnifies You against direct loss arising from any third-party claim that Your use of the Deliverables, as supplied by ACXPA, infringes that third party's Intellectual Property Rights in Australia. This indemnity is subject to clause 10 (including the liability cap) and to clause 10.5.
6. FEES AND PAYMENT
6.1 You will pay ACXPA the Fees for the Services as set out in Your ACXPA Online Form and ACXPA's invoice.
6.2 Where the Fees reflect the ACXPA member rate, they are conditional on You holding a current ACXPA Business Membership. If that membership lapses or is not maintained, ACXPA may, on written notice, adjust the Fees to its applicable non-member rate for the remainder of the Term.
6.3 All Fees are exclusive of GST. You will pay any GST payable on a taxable supply under this Agreement on receipt of a valid tax invoice.
6.4 A one-off setup fee, covering scenario design and reporting setup, is payable with Your first payment. The other Fees are payable quarterly in advance: the first quarter when You place Your order, and each later quarter on its Payment Day (the 15th day of the month before it begins). If You pay by invoice, ACXPA will issue Your first GST invoice when You place Your order, payable within 30 days of its date, and the Start Date depends on when it is paid (clause 2.1A); each later invoice is issued on its Payment Day and is payable before the quarter it covers begins. If You pay by card, Your card is charged when You place Your order and on each Payment Day, and ACXPA emails You a GST tax invoice for each payment.
6.5 If an undisputed invoice remains unpaid after its due date, ACXPA may, on giving You not less than 10 Business Days' written notice and a further opportunity to pay, suspend the Services until payment is received. Where the Services are suspended for non-payment, the Term and the Fees are not reduced.
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 disputed portion in good faith.
7. PUBLICATION OF RESULTS
7.1 The results of the Services are private to You. ACXPA will not publish results of the Services that identify You without Your prior written consent.
7.2 ACXPA will not publicly publish any individual employee or agent name or details, or any call recording, obtained in connection with the Services.
7.3 This clause 7 survives termination of this Agreement.
8. CONFIDENTIALITY AND PRIVACY
8.1 Each party will keep the other party's Confidential Information confidential and use it only for the purposes of this Agreement, except where disclosure is required by law, the information is public (other than through breach of this Agreement), or disclosure is to a party's 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 in connection with this Agreement. 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 of this Agreement.
9. WARRANTIES
9.1 ACXPA warrants that it has the authority to enter into and perform this Agreement, and will perform the Services with due professional skill and care.
9.2 You warrant that You have the authority to enter into and perform this Agreement, and that the information and Materials You provide are accurate and do not infringe any third-party rights.
9.3 To the extent the Australian Consumer Law (ACL) applies to the supply of the Services, nothing in this Agreement excludes, restricts or modifies any consumer guarantee, right or remedy that cannot lawfully be excluded, restricted or modified.
10. LIABILITY AND INDEMNITY
10.1 Nothing in this Agreement limits or excludes a party's liability: (a) for death or personal injury caused by its negligence or that of its personnel; (b) for fraud or fraudulent misrepresentation; or (c) to the extent liability cannot be limited or excluded by law (including non-excludable guarantees under the ACL).
10.2 Subject to clause 10.1, neither party is liable to the other for any indirect or consequential loss, or for any loss of profit, revenue, business, anticipated savings, goodwill, reputation, or loss of or corruption of data, whether arising in contract, tort (including negligence), under an indemnity, or otherwise.
10.3 Subject to clause 10.1, ACXPA's total aggregate liability arising out of or in connection with this Agreement, whether in contract, tort (including negligence), under an indemnity or otherwise, will not exceed the total Fees paid by You under this Agreement.
10.4 Each party's liability (including under any indemnity) is reduced proportionately to the extent that any negligent or unlawful act or omission of the other party, that party's breach of this Agreement, or its failure to mitigate its loss, contributed to the loss or liability.
10.5 A party relying on an indemnity must promptly notify the other in writing of the claim, make no admission or settlement without the indemnifier's prior written consent, provide reasonable assistance, and allow the indemnifier to control the defence and settlement of the claim.
10.6 If and to the extent You are a "consumer" to which the ACL applies: (a) the Services come with guarantees that cannot be excluded under the ACL; (b) for a major failure, You may cancel this Agreement and obtain a refund for the unused portion, or compensation for its reduced value, and compensation for any other reasonably foreseeable loss; and (c) for a failure that is not major, You are entitled to have the problem rectified within a reasonable time, and if that is not done, to cancel and obtain a refund for the unused portion.
11. SUBCONTRACTING
11.1 ACXPA may subcontract any part of the Services (including the conduct of mystery shopping calls) without Your consent, and remains responsible for its subcontractors' acts and omissions in connection with the Services as if they were ACXPA's own.
12. TERMINATION
12.1 Either party may terminate this Agreement by written notice if the other commits a material breach and fails to remedy it within 20 Business Days of written notice requiring it to do so.
12.2 Either party may terminate this Agreement immediately by written notice if the other becomes insolvent, has a controller or administrator appointed, or is unable to pay its debts as they fall due.
12.3 If You terminate this Agreement before the end of the minimum Term other than for ACXPA's uncured material breach or insolvency, You remain liable for the Fees for the full Term, and Fees paid in advance are not refundable.
12.4 If You terminate this Agreement as a result of ACXPA's uncured material breach (clause 12.1) or insolvency (clause 12.2), ACXPA will refund a pro-rata portion of any Fees paid in advance for Services not yet performed, and no further amount is payable by You.
12.5 Termination does not affect any rights or obligations accrued before termination. Clauses that by their nature are intended to survive (including clauses 5, 7, 8, 10 and this clause 12) survive termination.
13. FORCE MAJEURE
13.1 Neither party is liable for any delay or failure to perform its obligations (other than an obligation to pay money) to the extent caused by an event beyond its reasonable control. The affected party will notify the other promptly and use reasonable endeavours to mitigate the effect. If such an event continues for more than 60 days, either party may terminate this Agreement on written notice.
14. GENERAL
14.1 Disputes: If a dispute arises in connection with this Agreement, the parties will first try in good faith to resolve it by discussion between senior representatives before commencing court proceedings. Nothing in this clause prevents a party from seeking urgent interlocutory relief.
14.2 Notices: A notice under this Agreement must be in writing and sent to the other party at the email address it has provided (for You, the email in Your ACXPA Online Form). A notice sent by email is taken to be received at the time of sending, provided no failure notification is received, but if that time is not on a Business Day or is after 5.00pm, on the next Business Day.
14.3 Assignment: Neither party may assign or novate this Agreement without the other's prior written consent (not to be unreasonably withheld), except that ACXPA may assign or novate to an entity it controls or that acquires its business, on written notice to You.
14.4 Variation: A variation of this Agreement must be in writing and agreed by both parties.
14.5 Entire agreement: This Agreement, together with Your ACXPA Online Form, records the entire agreement between the parties about its subject matter and supersedes all prior discussions and proposals.
14.6 Relationship: ACXPA is an independent contractor. Nothing in this Agreement creates a partnership, joint venture, agency or employment relationship.
14.7 Severance: If any provision is invalid or unenforceable, it is to be read down or severed to the extent necessary, without affecting the remaining provisions.
14.8 Governing law: This Agreement is governed by the laws of Victoria, and each party submits to the non-exclusive jurisdiction of the courts of Victoria.
CALL QUALITY ASSESSMENT — TERMS & CONDITIONS
These Terms & Conditions become binding when you place your order. By completing and submitting the ACXPA Online Form, you (You) enter into a legally binding agreement (Agreement) with Australian Customer Experience Professionals Association (ACXPA) (ABN 58 817 433 774) of Suite 591, 585 Little Collins Street, Melbourne VIC 3000, on the terms set out below. If you do not agree to these terms, you must not place an order for or use the Services.
BACKGROUND
A. ACXPA provides independent, external contact centre and customer experience benchmarking services, assessed against the ACXPA Contact Centre CX Standards and the ACXPA Accessibility (ACCESS) Standards, which ACXPA has developed and refined over several decades.
B. You wish to engage ACXPA to provide those services, and ACXPA agrees to provide them, 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 form You completed on the ACXPA website to order the Services, which sets out the details of Your order (including whether Your order is one-off, on the Monthly Plan or for a Term, the package or custom plan, the calls to be assessed, the call length, any compliance checks and any optional workshops).
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 and other materials ACXPA provides to You under this Agreement.
Effective Date means the date You place Your order.
Fees means the fees payable by You for the Services, as set out in Your ACXPA Online Form and ACXPA's 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 from time to time as part of its public Call Centre Rankings and related materials, excluding any individual employee or agent details and any call recording.
Services means the Call Quality Assessment services described in clause 3 and as selected by You in the ACXPA Online Form.
Term means the contract duration You selected in the ACXPA Online Form (3, 6, 9 or 12 months). A one-off order has no Term. The Monthly Plan means the monthly, cancel-any-time option in the ACXPA Online Form.
Recordings means the recordings of Your customer calls that You provide to ACXPA for assessment. Recordings are Materials.
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. TERM
2.1 This Agreement commences on the Effective Date. A one-off order ends once ACXPA has delivered the Services for it. An order with a Term continues for the Term, unless terminated earlier under clause 12.
2.2 Where You selected a Term, the Term is a minimum committed term. The parties may extend it by written agreement.
2.2A Where You selected the Monthly Plan, this Agreement continues from month to month until either party ends it by written notice. Each month is paid on the 15th day of the month before it begins (its Payment Day). Notice that reaches ACXPA before a Payment Day takes effect at the end of the month You have already paid for, and no further payment is taken; notice received on or after a Payment Day takes effect at the end of the following month. The date by which notice must reach ACXPA is shown on Your order page and in ACXPA's emails to You.
2.3 After the minimum Term, this Agreement continues for successive periods of three months (each a Renewal Period) on the same Fees until either party ends it by written notice, which You can give at any time by email or through Your order page. Each Renewal Period is paid on the 15th day of the month before it begins (its Payment Day). Notice that reaches ACXPA before the next Payment Day takes effect at the end of the period You have already paid for; notice received on or after it takes effect at the end of the following Renewal Period. In either case, notice does not take effect before the end of the minimum Term. The date by which notice must reach ACXPA is shown on Your order page and in ACXPA's emails to You.
3. THE SERVICES
3.1 ACXPA will provide the Services You selected in the ACXPA Online Form. The Services include:
(a) expert assessment, by ACXPA's trained assessors (people, not only automated tools), of the Recordings You provide, at the volume You selected in the ACXPA Online Form (for a one-off order, once; for an order with a Term or on the Monthly Plan, each calendar month);
(b) scoring of every assessed call against ACXPA's quality behaviours and against any compliance checks You selected, with evaluator comments on every call;
(c) results delivered in Excel or Google Sheets, ready for coaching; and
(d) a report: for a one-off order, once the assessments are complete; for an order with a Term or on the Monthly Plan, each month. Reports are normally provided within 14 days after the end of the month they cover, provided the Recordings reach ACXPA in time. If You selected it in the ACXPA Online Form, ACXPA also runs a live results workshop each quarter (via Zoom).
3.1A Assessments are made in calendar months. The Services start on the 1st day of the calendar month after Your first payment is received, if it is received on or before the 15th day of a month, or otherwise on the 1st day of the calendar month after that (the Start Date). A one-off order covers one calendar month of calls from the Start Date. On the Monthly Plan each month, and with a Term each quarter, begins on the 1st day of a month, and any minimum Term runs from the Start Date. ACXPA will use reasonable endeavours to meet an earlier start or a different timeframe You request, but does not guarantee it.
3.2 You are responsible for ensuring that You may lawfully provide the Recordings to ACXPA for assessment, including giving any notices and obtaining any consents required by privacy and surveillance laws. ACXPA will use the Recordings only to provide the Services.
3.2A The following details of the Services are as You entered them in the ACXPA Online Form: how You will share the Recordings; the types of calls to be assessed; any compliance checks; and the individuals who will receive the reports. ACXPA will confirm the scorecard and any compliance checks with You before the first assessment.
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. Nothing in this Agreement prevents ACXPA from providing the same or similar services to any other person.
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 for ACXPA to perform the Services, and are responsible for the accuracy and completeness of the details and Materials You provide (including in the ACXPA Online Form).
4.2 Where You have selected the ACXPA member rate, that rate is conditional on You holding a current ACXPA Business Membership for the duration of the Term (see clause 6.2).
4.3 You warrant that any Materials You provide do not infringe any applicable law or the rights (including Intellectual Property 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, assessment criteria and know-how, are and remain the sole property of ACXPA. ACXPA does not assign, and cannot assign, ownership of the Intellectual Property Rights in its methodology to You.
5.2 ACXPA grants You a non-exclusive, royalty-free, worldwide, irrevocable licence to use the Deliverables, and the Intellectual Property Rights in them, for Your internal business purposes — that is, to receive and benefit from the Services, including internal reporting, analysis and service-improvement activities.
5.3 You must not: (a) on-sell, commercialise or publicly distribute the Deliverables; (b) sub-licence the Deliverables, except to Your personnel and professional 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.
5.5 ACXPA indemnifies You against direct loss arising from any third-party claim that Your use of the Deliverables, as supplied by ACXPA, infringes that third party's Intellectual Property Rights in Australia. This indemnity is subject to clause 10 (including the liability cap) and to clause 10.5.
6. FEES AND PAYMENT
6.1 You will pay ACXPA the Fees for the Services as set out in Your ACXPA Online Form and ACXPA's invoice.
6.2 Where the Fees reflect the ACXPA member rate, they are conditional on You holding a current ACXPA Business Membership. If that membership lapses or is not maintained, ACXPA may, on written notice, adjust the Fees to its applicable non-member rate for the remainder of the Term.
6.3 All Fees are exclusive of GST. You will pay any GST payable on a taxable supply under this Agreement on receipt of a valid tax invoice.
6.4 The Fees are set by the package or custom plan and the Term (or Monthly Plan or one-off order) You selected. A one-off setup fee is payable with Your first payment. For a one-off order, the Fees are payable in full in advance. With a Term the Fees are payable quarterly in advance, and on the Monthly Plan monthly in advance: the first quarter or month when You place Your order, and each later one on its Payment Day (clauses 2.2A and 2.3). If You pay by invoice, ACXPA will issue Your first GST invoice when You place Your order, payable within 30 days of its date, and the Start Date depends on when it is paid (clause 3.1A); each later invoice is issued on its Payment Day and is payable before the period it covers begins. If You pay by card, Your card is charged when You place Your order and, where You have a Term or the Monthly Plan, on each Payment Day, and ACXPA emails You a GST tax invoice for each payment.
6.5 If an undisputed invoice remains unpaid after its due date, ACXPA may, on giving You not less than 10 Business Days' written notice and a further opportunity to pay, suspend the Services until payment is received. Where the Services are suspended for non-payment, the Term and the Fees are not reduced.
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 disputed portion in good faith.
7. PUBLICATION OF RESULTS
7.1 The results of the Services are confidential to You. ACXPA will not publish any results of the Services, any Recording, or any personal information in a Recording.
7.2 This clause 7 survives termination of this Agreement.
8. CONFIDENTIALITY AND PRIVACY
8.1 Each party will keep the other party's Confidential Information confidential and use it only for the purposes of this Agreement, except where disclosure is required by law, the information is public (other than through breach of this Agreement), or disclosure is to a party's 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 in connection with this Agreement. ACXPA will keep the Recordings and any personal information in them secure, use them only to provide the Services, and delete them once the Services are complete or earlier at Your request, unless the law requires otherwise.
8.3 This clause 8 survives termination of this Agreement.
9. WARRANTIES
9.1 ACXPA warrants that it has the authority to enter into and perform this Agreement, and will perform the Services with due professional skill and care.
9.2 You warrant that You have the authority to enter into and perform this Agreement, and that the information and Materials You provide are accurate and do not infringe any third-party rights.
9.3 To the extent the Australian Consumer Law (ACL) applies to the supply of the Services, nothing in this Agreement excludes, restricts or modifies any consumer guarantee, right or remedy that cannot lawfully be excluded, restricted or modified.
10. LIABILITY AND INDEMNITY
10.1 Nothing in this Agreement limits or excludes a party's liability: (a) for death or personal injury caused by its negligence or that of its personnel; (b) for fraud or fraudulent misrepresentation; or (c) to the extent liability cannot be limited or excluded by law (including non-excludable guarantees under the ACL).
10.2 Subject to clause 10.1, neither party is liable to the other for any indirect or consequential loss, or for any loss of profit, revenue, business, anticipated savings, goodwill, reputation, or loss of or corruption of data, whether arising in contract, tort (including negligence), under an indemnity, or otherwise.
10.3 Subject to clause 10.1, ACXPA's total aggregate liability arising out of or in connection with this Agreement, whether in contract, tort (including negligence), under an indemnity or otherwise, will not exceed the total Fees paid by You under this Agreement.
10.4 Each party's liability (including under any indemnity) is reduced proportionately to the extent that any negligent or unlawful act or omission of the other party, that party's breach of this Agreement, or its failure to mitigate its loss, contributed to the loss or liability.
10.5 A party relying on an indemnity must promptly notify the other in writing of the claim, make no admission or settlement without the indemnifier's prior written consent, provide reasonable assistance, and allow the indemnifier to control the defence and settlement of the claim.
10.6 If and to the extent You are a "consumer" to which the ACL applies: (a) the Services come with guarantees that cannot be excluded under the ACL; (b) for a major failure, You may cancel this Agreement and obtain a refund for the unused portion, or compensation for its reduced value, and compensation for any other reasonably foreseeable loss; and (c) for a failure that is not major, You are entitled to have the problem rectified within a reasonable time, and if that is not done, to cancel and obtain a refund for the unused portion.
11. SUBCONTRACTING
11.1 ACXPA may subcontract any part of the Services (including assessments) without Your consent, and remains responsible for its subcontractors' acts and omissions in connection with the Services as if they were ACXPA's own.
12. TERMINATION
12.1 Either party may terminate this Agreement by written notice if the other commits a material breach and fails to remedy it within 20 Business Days of written notice requiring it to do so.
12.2 Either party may terminate this Agreement immediately by written notice if the other becomes insolvent, has a controller or administrator appointed, or is unable to pay its debts as they fall due.
12.3 If You terminate this Agreement before the end of the minimum Term other than for ACXPA's uncured material breach or insolvency, You remain liable for the Fees for the full Term, and Fees paid in advance are not refundable.
12.4 If You terminate this Agreement as a result of ACXPA's uncured material breach (clause 12.1) or insolvency (clause 12.2), ACXPA will refund a pro-rata portion of any Fees paid in advance for Services not yet performed, and no further amount is payable by You.
12.5 Termination does not affect any rights or obligations accrued before termination. Clauses that by their nature are intended to survive (including clauses 5, 7, 8, 10 and this clause 12) survive termination.
13. FORCE MAJEURE
13.1 Neither party is liable for any delay or failure to perform its obligations (other than an obligation to pay money) to the extent caused by an event beyond its reasonable control. The affected party will notify the other promptly and use reasonable endeavours to mitigate the effect. If such an event continues for more than 60 days, either party may terminate this Agreement on written notice.
14. GENERAL
14.1 Disputes: If a dispute arises in connection with this Agreement, the parties will first try in good faith to resolve it by discussion between senior representatives before commencing court proceedings. Nothing in this clause prevents a party from seeking urgent interlocutory relief.
14.2 Notices: A notice under this Agreement must be in writing and sent to the other party at the email address it has provided (for You, the email in Your ACXPA Online Form). A notice sent by email is taken to be received at the time of sending, provided no failure notification is received, but if that time is not on a Business Day or is after 5.00pm, on the next Business Day.
14.3 Assignment: Neither party may assign or novate this Agreement without the other's prior written consent (not to be unreasonably withheld), except that ACXPA may assign or novate to an entity it controls or that acquires its business, on written notice to You.
14.4 Variation: A variation of this Agreement must be in writing and agreed by both parties.
14.5 Entire agreement: This Agreement, together with Your ACXPA Online Form, records the entire agreement between the parties about its subject matter and supersedes all prior discussions and proposals.
14.6 Relationship: ACXPA is an independent contractor. Nothing in this Agreement creates a partnership, joint venture, agency or employment relationship.
14.7 Severance: If any provision is invalid or unenforceable, it is to be read down or severed to the extent necessary, without affecting the remaining provisions.
14.8 Governing law: This Agreement is governed by the laws of Victoria, and each party submits to the non-exclusive jurisdiction of the courts of Victoria.
Thanks for Visiting,
This benchmarking trial is only available to contact centres being independently assessed through our Contact Centre CX Standards framework.
As a valued ACXPA Vendor Member, you’re not eligible to participate in the benchmarking trial itself — but we’d love to chat if you’re interested in supporting industry-wide benchmarking or collaborating on future research and insights.
Feel free to reach out directly at benchmarking@acxpa.com.au or call 03 9492 2871.
And as always, thank you for supporting the growth and professionalism of the CX and contact centre industry.
