Provider Terms and Conditions

1. Definitions and Interpretation

1.1 Definitions

In these Provider Terms and Conditions, unless otherwise defined in the Commercial Terms or End User TCs:

1.2 Interpretation

In these Provider Terms and Conditions:

• any word not defined in these Provider Terms and Conditions will be given its meaning set out in other components of this Agreement or, if not otherwise define, its ordinary and natural meaning;
• in the event of inconsistency the following order of priority applies to the Agreement:
  • Special Conditions; then
  • Commercial Terms; then
  • Provider Terms and Conditions; then
  • End User TCs.
• The End User TCs shall apply to the Provider to the fullest extent as if the Provider assumed the role of a User (or ‘You’, as that term is defined in the End User TCs).

2. General

1. Allied agrees to supply the Services to the Provider on the terms of this Agreement for the Term.
2. Allied CRM will provide the Services in a professional manner, with due care, skill and diligence and in compliance with applicable laws, including the Privacy Act 1988 (Cth).
3. The parties agree and acknowledge that, notwithstanding anything stated to the contrary herein, Allied CRM will not (and will not be obliged to) supply the Excluded Services.
4. Any delivery time or milestone Allied CRM gives the Provider is only an estimate. Allied CRM is not liable to the Provider for any Loss or Claim arising from late or delayed performance of the Services.

3. Term

This Agreement will commence on the Commencement Date and, subject to the Commercial Terms, will continue for the duration of the Term. The Agreement will be automatically renewed for further Renewal Terms or monthly subscriptions (as applicable), unless either party notifies the other party no less than thirty (30) days prior to the expiration of the then-current Term of its intention not to renew the Agreement.

4. Service Fee and Costs

1. Allied CRM will invoice the Provider for Services supplied in accordance with the Payment Terms, or at such intervals as determined by Allied CRM if the Commercial Terms do not specify.
2. In the case of the first month of provision of the Services, Service Fees shall be payable within the first two (2) weeks of the grant of access and, thereafter, within a further two (2) weeks in order to reconcile same with the Payment Terms.
3. The price of the Services will be the Service Price and is exclusive of GST, or any other tax or charge imposed by any governmental entity upon the sale, use or receipt of the Services. In addition to the Service Price payable by the Provider, where required by law, the Provider must pay to Allied CRM, in accordance with a valid tax invoice issued by Allied CRM, the GST payable in respect of the supply of the Services.
4. Subject to the Commercial Terms, the Provider acknowledges and agrees Service Price may be subject to the number of children enrolled at any given time in the Provider’s centre, location or business. Subject to any applicable laws, the Provider acknowledges and agrees that Allied CRM shall be permitted to review and/or conduct audits on the enrolment and/or attendance records of the Provider (at any one of its premises or centres) for the purposes of ensuring its compliance with this Agreement.
5. Where the Provider has requested an ‘Enterprise’ Licence, it acknowledges and agrees that the Service Price will be provided and detailed separately pursuant to a Quote supplied by Allied CRM to the Provider.
6. Unless the parties agree otherwise in writing, Allied CRM is entitled to be reimbursed for any Disbursements reasonably incurred in connection with the performance of Services under this Agreement and may do so pursuant to the Payment Terms.
7. Subject to the Payment Terms, Allied CRM will debit the payable Service Fees and any Disbursements via direct debit as and when sums fall due and payable.
8. If the debit at clause 4.7 is not successful, Allied CRM will attempt a further debit of the invoiced amount.
9. If the further debit at clause 4.8 is not successful, the Provider’s access to the Platform and Services may (without prejudice to any other rights available to Allied CRM) be suspended until all sums have been paid.
10. The Provider must pay all amounts due to Allied CRM (whether under this Agreement or otherwise):
    • pursuant to the Payment Terms;
    • without set-off, deductions, counter-claims or conditions; and
    • in available cleared funds.
11. If the Provider owes any amount to Allied CRM (whether under this Agreement or otherwise), Allied CRM may, in its sole discretion and without prejudice to any of its other rights, do one or more of the following:
    • withhold all future supplies of Services until that amount has been paid in full;
    • set-off that amount against any amount owing by Allied CRM to the Provider; and/or
    • immediately demand all amounts due and payable under this Agreement from the Provider.
12. If an amount due under this Agreement is paid after the due date, the Provider must pay Allied CRM, in addition to the overdue amount:
    • interest at the Default Rate calculated based on a 365 day year from the date of the default until the date the amount (together with all accrued interest) is paid in full; and
    • all costs and expenses incurred by Allied CRM in collecting the overdue amount (including legal costs).
13. The Provider’s obligation to pay an amount owing applies notwithstanding any delay in the performance of the Services.
14. The parties agree and acknowledge that upon at least ninety (90) days written notice before the anniversary of the Commencement Date, Allied CRM may increase the Service Price for the then-current Renewal Term.
15. If Allied CRM suspends work due to the Provider’s failure to provide Provider Data or any information or instructions reasonably required for Allied CRM to provide the Services, Allied CRM may increase the Service Fee to cover any extra expense or cost incurred (including a proportional adjustment for fixed costs and profit).

5. Provider Obligations

1. To enable Allied CRM to perform and provide the Services, the Provider must, at the Provider’s cost, promptly:
   • provide Allied CRM with all Provider Data which is to be used in the performance or provision of the Services;
   • provide Allied CRM with all required enrolment and/or attendance information, as reasonably required or requested by Allied CRM in order to calculate the applicable Service Price;
   • provide Allied CRM with all other information and/or Provider Data as is reasonably required for the Provider to use the Platform, as requested by Allied CRM from time to time;
   • provide Allied CRM with all other information, materials and/or data as is reasonably required for Allied CRM to comply with its obligations pursuant to any applicable laws;
   • provide Allied CRM with access to all and relevant information regarding the Services, the Provider and the Provider’s business processes and networks which is to be implemented, included or reflected in the provision of the Services;
   • provide Allied CRM with reasonable access to the Provider’s personnel as Allied CRM may reasonably require from time to time.
2. The Provider shall satisfy all of its obligations under this Agreement. Any failure by the Provider to perform its obligations shall relieve Allied CRM of its obligations under this Agreement to the extent that the Provider’s failure prevented Allied CRM from performing its obligations.
3. The Provider shall be responsible for conducting preliminary diagnostic steps or providing additional information prior to requesting any support from Allied CRM.
4. The Provider shall be responsible for providing the required hardware, software and any other materials in order to enable itself to the benefit of receiving the Services.
5. The Provider shall be responsible for the application, operation, maintenance and support of its systems, hardware and software and all components thereof including, but not limited to, the implementation of appropriate procedures, training and safeguards and routine backups.
6. The Provider must procure and ensure that any of its employees, servants and/or contractors who are permitted to use the Platform and/or receive the Services under this Agreement, comply with the terms of this Agreement at all times. In the event that the rights of those employees, servants and/or contractors to use the Platform or Services are withdrawn or terminated for any reason (including cessation of employment or engagement), the Provider must ensure that it informs Allied CRM of the same within two (2) Business Days of the occurrence.
7. To the extent that Allied CRM specifies or recommends any preventative maintenance, including updates with respect to the Services, the Provider shall be responsible for such maintenance and updates.
8. The Provider warrants to Allied CRM that it:
   • has full right, power and authority to enter into this Agreement;
   • will comply with all laws in connection with the Services;
   • has all necessary approvals in connection with the Services; and
   • no Provider Data infringes any third party Intellectual Property Rights or the Privacy Act.

6. Hosting, Maintenance and Support

1. Allied CRM shall use all reasonable endeavours to maintain the Platform in substantial conformity with this Agreement.
2. Any ongoing assistance or support provided by Allied CRM shall only be subject to the terms of this Agreement or otherwise as required in its sole discretion.
3. You agree to and acknowledge the following:
   • the Platform is not error-free and agree that the existence of such errors in the Platform shall not constitute a breach of this Agreement;
   • the Platform is provided on an ‘as is’ and ‘as available’ basis and, unless otherwise stated to contrary herein, Allied CRM provides no representations or warranties as to its up-time or performance;
   • if any third party makes any updates to its own software or platform, such that this causes an issue or disruption in respect of the Platform, then you accept that this is not an issue with the Platform itself, nor a breach by Allied CRM of any of its obligations under this Agreement. However, Allied CRM may at its sole discretion, choose to provide any updates to the Platform to address any issues caused by any third party changes;
   • any changes or updates to the Platform made by Allied CRM pursuant or in response to a request by the Provider is not an admission of any liability by Allied CRM;
   • the Provider shall have in place daily back-up and disaster recovery measures in respect of its systems and data with which the Platform and Services are used, and effective firewall together with virus protection measures, with all associated costs to be borne by the Provider. As between the Provider and Allied CRM, in the event of any dispute as to the accuracy of any stored data (including Provider Data and/or Allied CRM Content), the data held and stored by Allied CRM will be preferred.
4. The Provider will host the Platform in an environment which complies with Allied CRM’s minimum specification requirements, as such requirements may be notified from time to time by Allied CRM (acting reasonably).
5. For the duration of the Term, the Provider will be responsible for and put in place measures in ensuring its infrastructure, hardware and/or software is and remains compliant with Allied CRM’s minimum specification requirements in line with clause 6.4.

7. Change and Cancellation

7.1 Cancellation

Subject to clauses 4.11 and 8 of this Agreement and Clause 14 of the End User TCs, neither party may suspend or cancel performance of this Agreement without the consent of the other party.

7.2 Change

1. Either party may request a change to any matter related to the Services, including the performance of any additional services to be supplied by Allied CRM.
2. Any change request must be in writing and must give such details, including the price, as will enable the other party to fully consider its impact, if accepted, on the parties’ rights and obligations under this Agreement.
3. Neither party will be obliged to accept any change request made by the other party.
4. If a change request is accepted, any matter identified in the relevant change request as being affected by that change request (e.g. the scope of the Services) shall be deemed to be immediately amended in the manner specified in the change request.
5. If a change request is not accepted and negotiations concerning it ensue between the parties which result in an agreed change, the matter identified in the relevant change request as being affected by that change request shall be deemed to be immediately amended, as so agreed, with effect from the date of the written agreement to the change.
6. Until any change has been effected as specified in clauses 7.2(a) to 7.2(e) inclusive, both parties will continue to fully perform this Agreement as if the requested change had not been made. After a change has been effected as specified in this clause 7, both parties shall continue to fully perform this Agreement as varied only in accordance with that change.

8. Termination

8.1 Events of Default

Each of the following events is an ‘Event of Default’, namely:

• if the Provider fails to pay any amount due and payable under this Agreement on the due date for payment and such failure continues for more than five (5) Business Days;
• either party fails to perform or observe any of the covenants or provisions of this Agreement and (if capable of remedy) such default continues for more than ten (10) Business Days after notice from the non-defaulting party requiring remedy of the breach;
• the Provider sells or closes its business without written notice to Allied CRM;
• either party suffers an Insolvency Event;
• where the Provider is a partnership and is dissolved, threatens or resolves to dissolve or is in jeopardy of dissolving; or
• the Provider being a natural person dies.

8.2 Termination Rights

If an Event of Default occurs the non-defaulting party may at its option:

• by proceeding by appropriate court action, either at law or in equity, enforce performance of the applicable terms and provisions of this Agreement or recover damages for the breach concerned; and/or
• terminate this Agreement.

8.3 Termination at Will

In addition to clause 14 of the End User TCs, Allied CRM may terminate this Agreement, with or without cause, upon thirty (30) days’ written notice.

9. Force Majeure

Except for the Provider’s obligations pursuant to clause 4, no party will be liable for any delay or failure to perform its obligations or any condition pursuant to this Agreement (other than an obligation to pay monies) if such delay is due to Force Majeure Event. If a delay or failure of a party to perform its obligations or any condition is caused or anticipated due to a Force Majeure Event, the performance of that party’s obligations will be suspended until such time as the party can reasonably comply with its obligations.

10. Miscellaneous

1. This Agreement constitutes the entire understanding between the parties and supersedes all prior agreements, understandings and communications, whether written or oral.
2. The parties acknowledge and agree that the Special Conditions (if any) shall apply to this Agreement and each party must comply with its respective obligations regarding those Special Conditions.
3. The Commercial Terms and these Provider Terms and Conditions may only be varied in writing and signed by the parties.
4. This Agreement operates as a ‘standing agreement’ and each Licence issued shall constitute a separate contract for supply of Services between the parties and Allied CRM may enforce its rights under this Agreement against any Commercial Terms, the End User TCs, or the Agreement as a whole.
5. This Agreement will govern the future supply of Services by Allied CRM to the Provider, unless this Agreement is amended or varied pursuant to clause 10(c), the End User TCs or a new agreement is entered into between the parties.
6. Except as required by law, the parties must not disclose to any person without Allied CRM prior written consent the existence of, or details in, this Agreement or any other Provider Data or Allied CRM Content which is confidential and not otherwise in the public domain.
7. The Provider may not, without the prior written consent of Allied CRM, assign, transfer or grant any security interest over, its right, title and interest in or to the Agreement to any person (or agree or purport to do so).
8. Allied CRM may, without the prior written consent of the Provider, assign, transfer or grant any security interest over, its right, title and interest in or to the Agreement to any person (or agree or purport to do so).
9. If any provision of the Agreement is illegal or unenforceable in any relevant jurisdiction, it must be enforced to the maximum extent possible, and if unenforceable may be severed for the purposes of that jurisdiction, without affecting its enforceability in any other jurisdiction or the enforceability of any other part of these terms and conditions.
10. All waivers must be in writing. A single or partial exercise or waiver by a party of a right relating to these terms and conditions does not prevent any other exercise of that right or the exercise of any other right.
11. Clauses 1, 4, 5, 10 of this Agreement and clauses 1, 3, 8, 12, 17 of the End User TCs and any indemnities survive termination or expiration of this Agreement.
12. The Agreement is governed by and is to be construed in accordance with the laws applicable in New South Wales, Australia.
13. Any notice or other communication given or served under this Agreement by either party must be:
    • in writing;
    • if sent by prepaid ordinary post, addressed and sent to the receiver’s contact details (as noted in the Commercial Terms);
    • taken to be received:
      • if delivered personally, on the date of delivery;
      • if sent by prepaid ordinary post within Australia, upon the expiration of three (3) Business Days from the date it is posted; or
      • if transmitted electronically, upon receipt by the sender of an acknowledgment that the communication has been properly transmitted to the recipient.
14. This Agreement shall not create, nor shall be represented by either party hereto to create, a partnership, joint venture, employer- employee, master-servant, principal-agent, trust, or other whatsoever between the parties hereto.