.png)
Terms and Agreement
- TERMS AND CONDITIONS – QUICK FACTS
Welcome!
We’re excited to be working with you. Below you will find our humanised Terms and Conditions. Further on down you’ll see that the lawyers couldn’t help themselves and have added all the words we can’t pronounce.
These Terms and Conditions will be binding on us and you on the sooner of the signing of the Order Form or acceptance of the online terms and then these Terms and Conditions together with the Order Form will form the agreement between us (Agreement).
So, just in our own words working with Benchmark 365 consists of 3 easy steps:
ONBOARDING FOR PARTNER SUCCESS
We take you through a comprehensive onboarding and setup process that takes 15 business days. During onboarding we will work with you to build upon a standard set of procedures to streamline your customer support.
The onboarding process includes:
1. Onboarding call where we’ll discuss in detail the Benchmark 365 process, understand your existing processes and agree on a standard approach
2. Collecting customer information such as company names, contacts and documentation so we can support you and your customers
3. Assigning designated contacts and technical staff from Benchmark 365 and getting to know you and your team
4. Assigning designated contacts from your team to handle critical communications and input required to make the partnership a success
Setting up the various tools we’ll collaborate on including PSA, RMM and Business Intelligence platforms6. Confirming a ‘Go Live’ Date for Pilot
PILOT
All new Partners are given a minimum of 30 days to pilot our services however most MSPs will elect a 90 day Pilot Period to comprehensively evaluate our services. It’s a great way to get to know each other and iron out the systems, processes and volume of work we’re likely to expect from you in the future.
Before the Pilot ends, we’ll meet with you to discuss how it’s going and determine a plan for your ongoing service with us.
You’ll also have a good feel for our expertise in handling your support work and if we’re all feeling good…
PARTNERSHIP
On completion of the Pilot we will be in sync with one another having gained some insight into your work volume, average ticket counts, procedures and customer expectations and we’ll have designed an ongoing plan that is scaled up and ready for action.
In our experience it takes approximately 90 days to achieve a level of “interdependence” where you and Benchmark 365 work together as one unified team.
WHAT DO WE REQUIRE FROM YOU
In order for us to provide our services we need clear guidance, instruction and directives from you. We are providing people to assist you in delivering support to your Clients. As you know, we have not designed your IT systems, nor are we involved in maintaining, improving or facilitating change to those systems. So, at times, we will send you emails, chat with you and make phone calls seeking information from you, or advising you of problems that your Clients have identified. We ask that you reply to our emails, messages or phone calls quickly (often straight away if it is a critical issue), investigate any issues of concern and take whatever steps you think necessary to address any problems.
You will be able to log into our software to keep abreast of critical incidents. It is essential that you review this frequently – ideally every day.
Obviously, you, as a business, will have all of the usual insurances in place and will have proper written agreements with your Clients for you own protection, and also to allow you to subcontract work to third parties.
WHAT ARE OUR BUSINESS HOURS?
Benchmark 365 operates 24 hours a day, 7 days a week servicing MSPs like yours right around the world saving them thousands in local staffing costs and helping our Partners scale up and grow profitably.
During the first 30 days of the engagement Benchmark 365 will intake calls and tickets 24×7 but will only provide technical support during your local business hours. This is to ensure a smooth transition and high availability of you and your team during this critical phase.
After the first 30 days we will provide service 24×7.
So, how about you finally take the night or the weekend off? You’ve earned it!
WHAT CAN BENCHMARK 365 DO?
We can do anything you would expect to find in a market leading MSP. For example we handle customer phone calls, triage and dispatch support tickets and resolve Level 1, 2 and 3 support enquiries and only limited by the Benchmark Plan you elect to work with us on.
We even have a Peer Group for MSP entrepreneurs like yourself to give you leading insights into how to grow your sales.
WHAT CAN’T BENCHMARK 365 DO?
We can’t touch our nose with our tongue but we’ll keep trying…
WHAT ARE THE LOCK IN CONTRACTS?
None.
No, really.. you can cancel the service any time with 30 days, as long as we receive written notice of your cancellation by email within that time. Your deposit will cover the 30 day cancellation period. But look over the lawyers’ jargon below for the details.
WHEN DOES THE SUBSCRIPTION COMMENCE?
When you sign up with Benchmark 365 we immediately commence provisioning of your service which includes preparing resources for our team, facilitating employee schedule changes and undertaking background work to prepare your service.
As such, your subscription fees commence the day you sign up for a Benchmark 365 Plan because the provisioning commences immediately in parallel with any onboarding services.
For example, if you sign up for Benchmark 365 on the 1st of September, your subscription will commence on that day even if you extend your onboarding period, and your credit card will be automatically charged on a monthly basis from that date.
WHAT WILL IT COST?
Benchmark 365 is committed to maximising your business profits. Our aim is to be 50% or less of equivalent staffing. We accomplish this through an efficient 24×7 team, dispatch and customer service and technical support on a fractional cost basis.
There is a one-time onboarding fee and a service Plan you determine is right for your business. You will also pay a deposit equivalent to one month of service to cover the cancellation period.
The deposit will be adjusted if you increase / decrease your plan.
WHAT OTHER FEES AND CHARGES ARE THERE?
Based on our initial discussions with you and through the onboarding and first 30 days of support we give you key insights about the work delivered, provide global best practices and analyse efficiency of each support incident.
We then work to include everything in our support service at no additional cost.
If we agree to undertake project work for you and you accept the charges, then these projects are billed at a pre-negotiated rate.
PAYMENT TERMS
Services are billed in advance prior to commencement of service including a deposit to cover the 30 day cancellation notice.
In terms of billing our three step engagement process:
1. Onboarding program. We charge a set fee for this work and it is payable upfront;
2. Pilot program. We also charge a set fee for this work and it is payable upfront;
3. Ongoing program. This will generally be billed monthly.
For example, a service that commences on November 1st must be paid in full by October 30th to avoid disruption in service to you and your customers.
If you have signed up, but change your mind within 24 hours we will give you a refund – but after that our team is hard at work putting things together for you and no refund will apply.
We will also give you a refund of the Pilot fee if you cancel during Onboarding.
We accept credit cards only in some regions and bank deposits only in other regions or a combination of both.
For our mutual convenience we will ask you to arrange for automatic monthly payments. It saves everyone time and money to have that in place. We will charge you a bit more if we have to do all the extra admin required to process one-off payments each month.
If a credit card is used, we may opt to pass on any credit card surcharges.
DO WE GIVE YOU ADVICE?
You are the expert in your and your Client’s systems. We always try to be as helpful as possible and pass on information that we think could assist you in improving your systems – but they are suggestions only and not professional advice. Always check out what we say or think with others who know more about your systems, services, Clients and operational requirements.
CHANGE OF PLAN
You can change your service plan with Benchmark 365 by providing us with 30 days written notice.
This flexibility is offered to ensure you always have a Plan with the right level of capacity to support your customers. The 30 days written notice allows Benchmark 365 sufficient time to provision more resources or to re-allocate resources.
Everything we do at Benchmark 365 is designed to underpin your company providing you with 24×7 availability and the skills needed to deliver an effective service to your business.
CANCELLATION AND REFUND POLICY
All Benchmark 365 services are subject to 30 days cancellation notice in writing. We must receive your cancellation advice in writing in order to process your cancellation.
We recruit, train, assign and manage a team for your MSP. Should you wish to cancel for any reason you will be billed for the next 30 days of service to cover the cost of redeployment of the assigned staff and administrative costs in offboarding you from Benchmark 365s systems.
If you have paid a deposit, your deposit will be applied to the cancellation period.
If for any reason your deposit is insufficient to cover the cancellation term you will be required to pay the difference for the remainder of the cancellation period.
Unless there is a problem with our product or services, you may be eligible for a refund only in the following circumstances:
If you have signed up, but change your mind within 24 hours we will give you a refund – but after that our team is hard at work putting things together for you.
We will also give you a refund of the Pilot fee if you cancel during Onboarding.
In summary, there are no refunds if you simply change your mind once you reach the Pilot program stage because we have, by then, put in a solid effort to get everything ready for you.
Please refer to the full terms and conditions below for all other references to refunds and cancellations.
FAIR USE POLICY
We are 100% focused on your growth. Your ability to scale up profitably through Benchmark 365 is what drives us.
Fair Use is designed to help your company reach maximum potential. As such, we offer a 10% “no nickeling and diming” policy to your account. If we see a small increase in calls, support incidents or services up to 10% you can be assured that we will not surprise you with an invoice.
The 10% Fair Use policy is our commitment to helping your MSP grow and is our way of supporting your business through the highs and lows without impacting cost.
Impacting Fair Use:
Here are some things that can affect the viability of our service to you. Of course, we work with you to limit these kinds of things from happening and we do this by taking you through a comprehensive onboarding program and real time critical analytics and metrics to ensure that this is a win/win partnership.
· Unreasonable expectations such as inadequate partner communication for items requiring critical input (e.g. to fill in a key piece of documentation or unavailable to handle an escalation of a critical incident)
· Adding multiple incidents or non-helpdesk support items to a single ticket
· Billing and account issues – we work on a 30 day rolling plan with all services paid upfront prior to the commencement of our service. We will hold and stop queuing and resolving incidents until your account is in good standing.
· Inaccessible customer systems or inaccessible critical MSP partner tools such as RMM or documentation platforms.
· Consistently higher volume of calls, support incidents or unsupported service types than your elected Plan.
Benchmark 365 will assist by communicating to our partners in a reasonable and timely manner about any fair usage issues.
SECURITY
Just like your IT business, we are at the forefront of IT security whilst (like you) also dealing with an ever-changing IT security landscape.
Ensuring that we have taken all reasonable precautions to protect you and your customers in a modern IT environment has always been our top priority.
We have implemented a robust and effective data protection program which complies with existing law and abides by the Australian Privacy Principles. For example, we use up to date security packages and protocols and we constantly review our security practices. In addition to complying with our own guidelines and program, as your partner, we may also work within your security guidelines to ensure that your own security practices are consistently adhered to.
However, as noted below, you are responsible for your own and your Client’s data, personal information and IT systems. That means that, unless we cause or introduce a breach to your or your Client’s systems, you are responsible for resolving all breaches (including Eligible Data Breaches) and any associated costs.
AND NOW FOR THE JARGON..
You’d think lawyers would already be happy earning 4 or 5x as much per hour than the average IT company but no.. they insisted on putting together the following and we have the outrageous bill to show for it..
Here goes.. and remember the Terms and Conditions will be binding on us and you on the sooner of you signing of the Order Form or accepting the online terms and then these Terms and Conditions together with the Order Form will form the agreement between us (i.e. the Agreement).
BENCHMARK 365 AGREEMENT
Terms & Conditions
This Agreement continues to apply whenever the Partner or a customer of the Partner (Client) logs a ticket with the Supplier, or places an order by completing an Order Form or has access to the Supplier’s helpdesk or any software that has been provided.
1 The Service to be Supplied
a) A separate Order Form will be executed by Partner and Supplier in relation to each acquisition of the Services under these Terms and Conditions which, once executed, will form a separate Agreement in respect of those Services.
b) Provided that the Partner is not in default of any of its obligations under the Agreement, the Supplier agrees to use commercially reasonable efforts to supply the Partner and/or Client with the Services subject to the terms and conditions of this Agreement. The Supplier will typically provide the Services, from the Effective Date, in response to a request from the Partner or a Client made by way of telephone, email, chat or via the Supplier’s designated ticket software platform.
c) The Supplier may from time to time supply the Partner with a replacement product or services. If requested by the Supplier, the Partner will stop using any product or service previously supplied by the Supplier and use the replacement product or service from date of its delivery by the Supplier.
d) If the Services include supply of a third party licensed product(s), such third party licensed products are supplied to the Partner pursuant to the terms of relevant third party licence.
e) The Partner agrees and acknowledges that the Supplier has not established the IT systems of the Partner or Client, and the Supplier will not create, implement, improve or modify any aspect of the Partner’s or Client’s systems, unless administrative level access is granted by the Partner and express instructions have been provided by the Partner or Client. The Supplier does not give any advice on those systems. Decisions on the use of hardware, software, cyber protection, system security, backup processes, disaster recovery and functionality are entirely the responsibility of the Partner and Client – whether that applies to their own data and systems, or the data and systems of their Clients. The Supplier provides assistance in relation to the system ‘as is’. Without limiting any other provision of this Agreement, if the Partner grants the Supplier administrative access to its IT system, the Supplier is not liable to the Partner or Client in respect of any system, environment or other issue arising from the Supplier’s exercise of such access.
f) The Agreement will consist of, and where any conflict occurs between the documents of the Agreement, where possible, the documents are to be read down to resolve such conflict in the following order of precedence:
i. the Order Form; and
ii. the terms of this Agreement.
g) The Supplier does not give professional advice. If comments or suggestions are made at any time arising from helpdesk experience, they cannot be relied upon by the Partner as advice. Independent advice should be obtained.
2 Fees
a) The Partner agrees to pay the Fees for the Services as set out in the Order Form.
b) All Fees are non-cancellable and non-refundable unless expressly stated otherwise in the Agreement. If fees are refunded, the Supplier may withhold any credit card fees charged by the merchant for processing the Partner’s payment.
c) The Fees must be paid in advance prior to commencement of the Services and within fourteen (14) days of the Supplier invoice or as otherwise agreed in writing between the parties.
d) If any debit or credit card used by Partner to make payments to the Supplier under the Agreement expires, or if any payment to the Supplier cannot be processed using such debit or credit card, the Supplier will notify the Partner and the Partner will have seven (7) days in which to make any overdue payment and provide the Supplier with the details of a valid debit or credit card. During that seven (7) day period, the Services may be suspended by the Supplier until such time as the Partner is current in its payment obligations to the Supplier.
e) In relation to the Fees payable by the Partner:
i. if the Partner is paying Fees by nominated debit or credit card, the Supplier will debit such card on a monthly or other basis, as agreed using such payment processing system as the Supplier may from time to time elect to use;
ii. if the Partner is not paying by automatic monthly credit card or direct debit, or if such a payment is dishonored, the Supplier may draw on the deposit if a scheduled Fee is not paid in full on the required date. If the Supplier draws on a deposit, the Partner must reinstate the full amount of the deposit within two (2) business days.
iii. if a scheduled Fees payment is not made in full for any reason, the Partner agrees that the Supplier may charge an additional late payment fee and/or immediately terminate access to the Services; and
iv. if the Partner is not in breach of the Agreement, and the Supplier elects to terminate the Agreement under Clause 4, the Supplier will refund to the Partner all pre-paid fees (if any) relating to the portion of Term remaining as at the effective date of Termination by the Supplier.
f) The Supplier may vary the Fees by giving the Partner thirty (30) days’ notice of the variation (Notice Period). The Partner may terminate the Services at any time during the Notice Period. If the Partner does not terminate the Services within the Notice Period, the Partner will be deemed to have accepted the Fee variation, and on and from the expiry of the Notice Period the Partner will be liable to pay the Fees as varied by the Supplier.
g) All fees are quoted exclusive of GST and other taxes unless expressly stated otherwise.
h) The Supplier will be entitled to suspend or terminate Service if the Partner does not pay any Fees due by it.
i) If the Services are not available from the Supplier for a period of ten (10) sequential days, the Partner agrees that the Partner’s sole remedy will be a pro-rata extension of the Term applicable to the period for which the Services was not available. This Clause 2(e) is not intended to modify or exclude any provision of any applicable legislation (including any requirement for the Supplier to compensate the Partner for loss or damage), if the Supplier is prohibited by law from modifying or excluding that provision in a contract.
3 Restrictions on Use of Services
a) The Services may be used by the Partner, its employees and Clients only.
b) The Partner must ensure that the Partner and Client’s employees use the Services:
i. for internal business purposes only;
ii. in accordance with the terms of the Agreement; and
iii. in manner that is commercially reasonable.
c) Services and content shall not be used for any commercial purpose beyond that designated by the Supplier.
d) Email forwarding web services shall not be used for bulk transfers of mail from any source; as the service is intended for individual users only.
e) The Partner must not, and must ensure that its Clients and staff do not:
i. infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
ii. violate any applicable law, statute, ordinance or regulation (including those regarding export control);
iii. do anything defamatory, trade libelous , threatening, harassing, or obscene;
iv. defame the Supplier or bring the Supplier’s business into disrepute;
v. interfere with or disrupt network users, services or equipment with the intent to, or having the effect of, causing an excessive or disproportionate load on the Supplier or its suppliers’ infrastructure by means of (but not limited to) distribution of unsolicited bulk emails or chain letters, viruses, Trojan horses, worms, or other similar harmful or deleterious programming routines or unsolicited telephone or electronic contacts; or
vi. do anything that would constitute unauthorised entry to any machine accessible via the network.
f) Where the Supplier obtains services from other suppliers, the Partner will comply with the usage policies of those suppliers.
g) The Supplier may, in its discretion, revise these Services use restrictions on thirty (30) days prior notice to the Partner.
h) The Partner may not assign any of its rights under the Agreement. Except as permitted under the Agreement, the Partner must not make any Services available for use by any third party or any related parties (including, but not limited to, by way of renting, leasing or transferring the Services).
i) The Partner is responsible for ensuring that all of its users comply with the applicable terms and conditions of the relevant Agreement with respect to use of the Services and any software and/or products.
j) The Partner will indemnify and hold the Supplier harmless from and against any and all loss, liability, cost, or expense arising from or relating to its Partner’s or any Client’s failure to comply with the terms of the Agreement.
4 Term and Termination for Cause
4.1 Term
a) The Agreement shall continue from the Effective Date for five (5) years (Initial Term) unless terminated by:
i. either party pursuant to clause 4.2 of this Agreement; or
ii. the agreement in writing of the parties.
4.2 Termination for Cause
Either party may terminate the Agreement (in whole or in part) immediately by notice in writing to the other party:
i. if an Adverse Event occurs in respect of the other party; or
ii. if the other party is in breach of a fundamental term of this Agreement and:
A. the breach is not capable of remedy; or
B. the breach is capable of remedy but the other party fails to reasonably remedy the breach or propose a commercially reasonable workaround within thirty (30) days of receiving notice from the non-breaching party of the breach.
4.3 Termination for Convenience
a) Regardless of anything else in the Agreement, either party may in their sole discretion terminate the Agreement at any time, provided that terminating party provides thirty (30) day written notice to the other party. In the absence of any Early Termination Costs being set out in the relevant Order Form the Supplier may invoice the Partner and the Partner will pay the Supplier’s reasonable costs incurred in relation to the Services under the Agreement to that date less any Fees already paid for those Services.
4.4 Consequences of Termination
a) On termination of this Agreement by the Partner pursuant to Clause 4.2 the Partner may, in addition to any other rights it may have under that Agreement or otherwise:
i. recover any sums paid to the Supplier on any account for Services that have not been provided;
ii. be regarded as discharged from any further obligations under this Agreement; and
iii. pursue any additional or alternative remedies provided by law.
b) If the Supplier terminates this Agreement under Clause 4.2 the Partner must pay for the Services provided in accordance with this Agreement up to the date of the termination and Partner has no other liability to the Supplier in relation to that termination.
c) On the expiry or termination of the Agreement for any reason:
i. the Services under the Agreement will no longer be available to the Partner and all data supplied by end users in connection with the use of the Services will be promptly returned to the Partner or, where return is unreasonable or manifestly impractical for the Supplier, destroyed by the Supplier at no cost to the Partner. However, following any such termination or expiry, the Supplier will retain ownership of all data that it has derived from data supplied by the Partner or Client in the course of using the Services; and
ii. the Supplier will promptly return all of the Partner’s equipment used by the Supplier in the provision of the Services under the relevant Agreement and any other property that belongs to the Partner or relates to the affairs of the Partner that are in the possession or control of the Supplier or its staff and used in relation to the relevant Services.
d) Termination will take immediate effect on the date specified in the notice issued to or by the Partner (as relevant), and the Partner must immediately stop using all products and Services provided by the Supplier under that terminated or expired Agreement. The Partner may not be entitled to any refund.
5 Intellectual Property and Data Ownership
a) Ownership: The Supplier owns or has obtained valid licenses to provide the Services.
b) Except for the limited rights granted to the Partner or the Client under the Agreement, no ownership or copyright in any product or services supplied by the Supplier will pass to the Partner.
c) The functionality of the Services, including any and all content and intellectual property provided by the Supplier, is protected by Intellectual Property Rights and related laws. The Supplier reserves all of its Intellectual Property Rights.
d) Trademarks and Trade names: The Partner must not remove any trademarks, trade names, logos, watermarks or any other attributions from the Services, products or any material generated by the Supplier (including but not limited to any automated email) in relation to the Services.
e) All rights, title and interest in all Supplier trademarks and all of the Supplier’s Intellectual Property Rights will remain with the Supplier or its licensor.
f) Nothing in the Agreement confers upon the Partner any rights to use, and or modify any of the Supplier’s intellectual property, trademarks or trade names.
g) Derivative Works: The Partner is prohibited from producing derivative works.
h) Partner Data: The Partner will retain all of its rights and remain liable and responsible in respect of any data (including personal information other than Supplier Personal Information) accessed by the Supplier in providing the Services, as necessary for the Supplier to provide the Services or otherwise provided by the Partner in connection with the Partner’s use of the Services (Partner Data). The Supplier will not acquire any rights or responsibility or liability for the Partner Data (other than as expressly noted in clause 12 as regards Eligible Data Breaches) merely by virtue of the Partner using the Services or the Supplier accessing the Partner Data in order to undertake the Services. However, the Partner acknowledges that the Supplier will be fully entitled to derive its own meta-format data from Partner Data, and the Partner will have no rights whatsoever or liability or responsibility in respect of such meta-format data.
i) Client Data: To the extent that the Partner and relevant Client have not agreed otherwise or entered into an agreement that is contrary to the following, the relevant Client will retain all of its rights and remain liable and responsible in respect of any data (including personal information other than Supplier Personal Information) access by the Supplier in order to perform the Services or otherwise provided by the Client in connection with the Client’s use of the Services (Client Data). The Supplier will not acquire any rights or responsibility or liability for the Client Data (other than as expressly noted in clause 12 as regards Eligible Data Breaches) merely by virtue of the performance of the Services or accessing Client Data to undertake the Services. However, the Supplier will be fully entitled to derive its own meta-format data from Client Data, and the Client will have no rights whatsoever or liability or responsibility in respect of such meta-format data.
j) Supplier Personal Information: The Supplier will retain all of its rights and remain liable and responsible in respect of the limited personal information its collects from or about the Partner and/or Client and their users or staff to provide the Services including but not limited to operating accounts and systems connected to the Services and retaining necessary Partner and user contact details (Supplier Personal Information) and will only do so in compliance with the Privacy Law. For the avoidance of doubt, Supplier Personal Information will not consist of any Partner Data or Client Data and the Partner and/or Client will have no rights whatsoever or liability in respect of Supplier Personal Information.
6 Third Party Providers
a) The Supplier engages third party product or service providers in order to provide the Services (Third Party Providers).
b) The Partner and Client agree to comply with all requirements and restrictions that Third Party Providers may impose on the Partner or Client directly, or indirectly through imposition on the Supplier, in relation to their respective products and/or services, at the time of, or subsequent to, the formation of an Agreement.
c) The Partner acknowledges that provision of the Services is subject to, and dependent upon, adequate delivery of the Third Party Providers’ products and services. In accordance with Clause 8 below, the Supplier’s liability is reduced to the extent that loss or damage of any kind is caused, or contributed to, by Third Party Providers.
d) The Partner further acknowledges that by entering into an Agreement, the Partner agrees and will ensure the Client also acknowledges and agrees to comply with the respective conditions of Third Party Provider agreements.
e) The Supplier’s Third Party Providers and their terms of supply may change from time to time during the term of the Agreement. The Supplier will extend to the Partner the service levels offered to the Supplier by its Third Party Providers.
7 Maintenance and Partner or Client Support
a) Provided that the Partner is not in default of its obligations set out in the relevant Agreement, the Supplier will provide Maintenance and Support Services at its then usual fees and charges on written request by the Partner and as specified by the Supplier in writing. For completeness, the Supplier will only provide Maintenance and Support Services on receiving a written request relating to such from the Supplier and at the Supplier’s then standard fees and charges for such.
b) The Partner must nominate in writing and inform the Supplier a maximum of two (2) contact persons who will coordinate Maintenance and Support Services delivered from the Supplier to the Partner.
c) The same two (2) contact persons as referred to in Clause 7(b) must also have executive approval over all lodged Service requests,
8 Warranty and Liability
a) To the extent allowed by applicable legislation, the Services, and all products supplied by the Supplier are provided “AS IS” and Supplier and Third Party Providers disclaim any implied warranties including those of fitness for a particular purpose. Where the Supplier is not permitted at law to exclude or modify the application of, or Supplier’s liability under, an implied condition or warranty, that condition or warranty will be deemed included but the Supplier’s liability will be limited to, at the Supplier’s option:
i. replacing, repairing or supplying goods equivalent to, the relevant goods, or paying the cost of replacing or repairing the goods or acquiring equivalent goods (where a breach relates to goods); or
ii. re-supplying, or paying the cost of re-supplying, services (where a breach relates to services).
b) Nothing in Clause 8(a) is intended to modify or exclude mandatory provisions of any consumer law applying to the Agreement (including any requirement that Supplier refund fees paid to it), where the Supplier is prohibited by law from modifying or excluding that mandatory provision in a contract.
c) In no event will the aggregate liability of the Supplier under the Agreement or of any Third Party Provider Agreements exceed the amount of all Fees paid by the Partner to the Supplier under the Agreement in the twelve (12) months prior to the alleged breach. Any limitations of the amount of liability in the relevant Third Party Provider Agreements related to Third Party Provider products and/or Services will, subject only to mandatory legal requirements, be binding on the Partner and, where relevant, the Client. In the absence of any limitation being specified in a Third Party Provider Agreement, the Third Party Provider’s aggregate liability under that agreement will not exceed the amount of all Fees paid by the Partner to the Supplier under the relevant Agreement in the twelve (12) months prior to the alleged breach.
d) The Partner agrees and will ensure that the Client acknowledges and/or agrees that the Supplier (and any Third Party Provider) shall not be liable to it or Client under the Agreement for any type of consequential or indirect loss or damage including but not limited to loss of profit, loss of opportunities, damage to goodwill or reputation, loss of access to markets, loss of anticipated savings, business interruption, damage to credit rating, payment of liquidated sums or damages under any other agreement.
e) The Partner acknowledges that the Supplier relies on the Services of Third Party Providers to supply portions of the Services and any products supplied with the Services. For the avoidance of doubt, to the fullest extent permitted by applicable law, the Supplier will not be liable for any loss, damage or cost of any kind which is caused or contributed to by a Third Party Provider.
f) In the event of unexpected faults the Supplier will use reasonable endeavours to ensure the relevant product or service is restored as soon as possible. However, the Supplier does not promise that the Services will be error free or uninterrupted.
g) The Supplier will try to ensure that the Services are free from viruses and harmful code but the Supplier cannot guarantee that any files the Supplier provides the Partner and/or the Client will be free of contamination or destructive properties and the Partner must ensure that the Client will install and use anti-virus and anti-spyware at all times.
h) Services are provided by the Supplier on a commercially reasonable basis only, and no guarantees or warranties are provided in respect of data and disaster recovery, or emergency repairs, for systems and infrastructure installed or commissioned prior to the date of this Agreement unless otherwise expressly provided in the Order Form once the Supplier has reviewed those systems and infrastructures and deemed them in writing to be at a warrantable standard. The Supplier will work with the Partner and/or the Client to improve and/or change systems or infrastructure in line with a warrantable data and disaster recovery plan.
i) The Supplier will use due care and skill to supply the Services. The Supplier provides no guarantee or warranty as to resolution of any particular problem or issue identified or experienced by a Partner or Client.
j) The Partner and will ensure the Client:
i. releases the Supplier from all claims, of any nature that the Partner or Client may have against the Supplier; and
ii. indemnifies the Supplier in relation to any claim made by any third party against the Supplier
where the loss alleged is caused or contributed to by
iii. any the act or omission of the Partner,
iv. negligence of the Partner,
v. failure of the Partner to backup Partner Data or the Client to backup Client Data or otherwise protect Partner Data and/or Client Data;
vi. failing in the IT systems of the Partner or Client; or
vii. use or misuse of the Partners IT systems of the Partner or Client.
k) The express warranty set forth in clause 8(i) above constitutes the only warranty given by the Supplier in respect of the Services. The Supplier does not offer or enter into any other representation warranty, condition or other term of any kind, whether express or implied (either or by custom, course of dealing or by operation of law), with respect to the Services.
l) Professional advice is expressly excluded from the Services and the Supplier does not provide professional advice under any circumstances.
m) The Partner warrants and represents to the Supplier as regards the use of the Partner Data and the Client Data in accordance with the Agreement for, with and in relation to the Services and any access to such by the Supplier that it will:
i. where relevant, provide the Partner Data and/or Client to the Supplier in a suitable format to enable the Supplier to provide the Services; and
ii. not infringe any Intellectual Property Rights and the access to and use of by the Supplier for the Services is in compliance with the Privacy Law.
9 Dispute Resolution
a) Billing Disputes Procedure:
i. Process: In the event that the Partner reasonably believes that it is not liable to pay any Fees in an Invoice, the Partner may lodge a Billing Dispute Notice up to ten (10) business days after the date of the relevant Invoice.
ii. Withholding Payment: If the Partner delivers the Billing Dispute Notice at least five (5) Business Days prior to the Due Date of the Invoice, the Partner may withhold payment of the Disputed Amount; otherwise the Partner must pay the Disputed Amount and the Undisputed Amount by the Invoice Due Date and in accordance with the terms of the Billing Disputes Procedure.
iii. Rejecting a Billing Dispute Notice:
The Supplier has the right to reject a Billing Dispute Notice and will have no further obligations in relation to that Billing Dispute Notice if:
a. the Billing Dispute Notice is not received by the Supplier within ten (10) business days after the date of the relevant Invoice;
b. the Billing Dispute Notice does not contain the minimum information set out in clause 9(b);
c. the Partner has not made timely payment for all previously invoiced Services and does not have a right to withhold payment in accordance with Withhold Payment clause;
d. the Supplier has confirmation from the Partner that the dispute or the subject of the Billing Dispute Notice has been resolved;
e. for the avoidance of doubt and in accordance with the relevant Agreement, all Services used are pre-authorised by a Partner nominated contact person; the Partner therefore cannot dispute any Fees on the basis that they did not authorise the particular use of the Services by another member of Partner’s staff or duly appointed officers; or
f. the Supplier reasonably believes that Partner does not have a bona fide dispute in relation to the Fees.
iv. Billing Dispute Notice:
The Billing Dispute Notice must include a minimum of the following information:
a. invoice number and date;
b. the amount in dispute;
c. the amount not in dispute; and
d. details of the dispute: and
e. dispute category and details (e.g. missing details, terminated services, wrong account details and wrong addresses, incorrect charges).
v. Responding to a Billing Dispute Notice:
a. the Supplier will, within ten (10) business days of receipt, respond to the Billing Dispute Notice or notify the Partner of a date upon which the Supplier will respond:
i. in the event of a dispute between the parties which remains unresolved for thirty (30) days, a mediator shall be appointed to facilitate resolution;
ii. the parties will bear the costs of the mediation equally and provide all assistance reasonably requested by the mediator; or
iii. if a suitable mediator cannot be agreed, or if mediation fails, parties can then proceed with formal legal action.
b. No chargeback, refund, credit, or adjustment to the Fee payable will be permitted unless there is express written agreement or the parties have undertaken the Billing Dispute Process above. The Partner agrees that a copy of this Agreement will be provided to any credit card company to whom a chargeback has been requested to affirm that no chargeback is payable if the Partner has, during the term in dispute, continued to have access to any software that the Supplier has supplied, or the Supplier has continued to offer the helpdesk service, whether or not the Partner or its Clients have chosen to access those services. In addition, a failure of the Partner’s IT systems, or a failure of the Partner to comply with their obligations under this Agreement or failure of the Supplier to resolve one or more issues via their software or helpdesk do not constitution valid grounds for a chargeback.
10 Confidential Information
10.1 Confidential Information
a) The Partner and Supplier must, and must ensure that their staff:
i. use and reproduce the other’s Confidential Information only to the extent required to provide the Services and Deliverables; and
ii. not disclose or otherwise make available the other’s Confidential Information other than to staff who have a need to know the information to enable the Supplier to provide the Services and Deliverables.
b) The Partner and Supplier must not disclose the Confidential Information to any third party without first obtaining the other party’s written consent to the disclosure.
c) Each party must only use the other party’s Confidential Information for the purpose of exercising a right or performing an obligation under this Agreement only.
d) Either party will be entitled (in addition to any other remedy it may have) to seek an injunction or other equitable relief with respect to any actual or threatened breach by the other party of this Clause 10 without the need to prove any special damage.
e) Either party must, if requested in writing by the other party, require any person to whom Confidential Information will be disclosed, to execute a deed of confidentiality.
f) The confidentiality obligations in this Clause 10 shall not apply to Confidential Information that:
i. is or becomes generally available to the public other than as a result of its disclosure in breach of this Agreement or of any other undertaking of confidentiality (except that any compilation of otherwise public information in a form not publicly known shall nevertheless be treated as Confidential Information); or
ii. the parties agree in writing is not confidential or may be disclosed.
10.2 Return of Confidential Information
a) Each party retains ownership of their Confidential Information at all times.
b) On completion or termination of this Agreement, each party must on demand return the other party’s Confidential Information.
c) Neither party is permitted to retain copies of any of the other party’s Confidential Information in any form after completion or termination of this Agreement.
11 Privacy and Data Protection
(a) The Supplier is committed to protecting privacy. The Supplier’s Privacy Policy is available at www.benchmark365.com/privacy-policyPlease refer to it for information on how the Supplier collects, uses and discloses the Supplier Personal Information and ensure that all Partner and Client users are notified of and informed that the Supplier will collect, use and disclose their personal information in accordance with it prior to the Supplier’s collection of any of their personal information.
(b) The Partner is responsible for complying with the Privacy Law for all Partner Data and Client Data used with, in or for the Services (whether or not accessed by or provided to the Supplier) and any other relevant personal information the Partner collects, uses and discloses and for its use with, by or for Services as contemplated by the Agreement.
(c) The Supplier confirms that the Supplier will only use Supplier Personal Information with and for the provision and management of the Services in accordance with Supplier’s Privacy Policy.
(d) The Supplier:
(i) may require intermittent and occasional access to the Partner’s or Client’s information systems and/or network, including by way of remote access. In such instances the Supplier will make best efforts to not collect or store any Partner or Client Data accessed, viewed or handled and the Partner (or Client where relevant) will have the sole responsibility for the legality, reliability, integrity, accuracy and quality of the Partner Data and/or Client and ensuring the protection of such data from potential harms;
(ii) must, on request by the Partner, destroy or return to the Partner all copies of the Partner Data and Client Data unless doing so is prohibited by law or court order; and
(iii) must make best efforts to comply with any reasonable security requirements set out in the relevant Agreement or as otherwise agreed with the Partner in writing from time to time.
(iv) will have no liability whatsoever with respect to any Partner Data or Client Data used or held by the Partner, Client or Third Party Provider in connection with the supply of any Services unless the Supplier materially breaches its data protection and privacy obligations set out under clause 11 and 12 of this MSA or as expressly noted in clause 12 as regards an Eligible Data Breach; and
(v) must provide assistance in relation to any Eligible Data Breaches in accordance with clause 12.
(e) The Partner will comply in full with all laws, regulations, codes and other instruments (including but not limited to the Privacy Law) concerning the collection, use, disclosure and protection of privacy and personal information applying to it in connection with its use of the Services including in the Partner Data and Client Data. To further comply with privacy obligations, the Partner:
(i) acknowledges and consents to the Supplier’s temporary access to and use of the Partner Data and Client Data for the Services;
(ii) is entirely responsible and liable protection, security and ensuring the integrity of Partner Data and Client Data and for ensuring its and the Client’s systems and/or network are suitable, up-to-date and otherwise compatible with the Supplier’s provision of Services;
(iii) must make best efforts to comply with any reasonable security requirements set out in the relevant Agreement or as otherwise agreed with the Supplier in writing from time to time;
(iv) must ensure staff comply with any privacy and/or security requirements of the Supplier which are communicated to the Partner from time to time relating to access or use of information systems or facilities provided by the Supplier to assist the Supplier’s provision of the Services;
(v) must ensure staff are trained in respect of the privacy obligations under this MSA and to detect, assess and respond to an Eligible Data Breach in accordance with clause12; and
(vi) must respond to all Eligible Data Breaches in accordance with clause 12 and Privacy Law.
12 Eligible Data Breaches
a) The Supplier and Partner acknowledge and accept that liability and responsibility of the parties in respect to an Eligible Data Breach will be determined under this clause 12.
b) The Supplier and Partner agree that:
(i) The Supplier, on detecting a potential Eligible Data Breach, will notify the Partner in accordance with clause 12(c)(ii);
(ii) will assist the Partner in assessing any Eligible Data Breach of it or the Client, subject to clause 12(d)(i)(B), at the Partner’s cost;
(iii) the Supplier will be responsible and liable for any Eligible Data Breach of Supplier Personal Information in accordance with clause 12(d); and
(iv) while the Supplier may provide assistance to the Partner or Client in respect of an Eligible Data breach, the Supplier will only have liability for such Eligible Data Breaches in accordance with clause 12(b)(iii) and 12(d)(i)(B) in instances where it can be shown, without doubt, that the Supplier caused the Eligible Data Breach or the Eligible Data Breach resulted from a breach of the security of any of the Supplier’s IT systems or is an Eligible Data Breach of the Supplier’s Personal Information.
c) Prior to notifying an Eligible Data Breach to any other entity or regulator:
(i) the Partner agrees and will ensure that Client’s agree to notify the Supplier without undue delay (and within 48 hours) on becoming aware of a suspected Eligible Data Breach that impacts Partner Data and/or Client Data; and
(ii) the Supplier agrees to notify the Partner without undue delay (and within 48 hours) on becoming aware of a suspected Eligible Data Breach that impacts Partner Data, Client Data or Supplier Personal Information.
d) In circumstances where there are reasonable grounds to suspect that an Eligible Data Breach has occurred:
(i) where such an Eligible Data Breach impacts Partner Data or Client Data:
A. if the Eligible Data Breach is assessed to have arisen due to the fault of the Partner or Client or has occurred in relation to or by access through the Partner’s or Client’s IT systems or is otherwise not clearly due to the fault of the Supplier or arose due to a breach of the security of the Supplier’s IT systems, the Supplier (at the Partner’s cost) will comply with all reasonable directions issued by the Partner to assist the Partner or Client meet its assessment and notification obligations under the Privacy Law at the Supplier’s standard charge-out rate or as otherwise agreed in writing between the Partner and Supplier. However, the Partner or Client will be responsible and liable for complying with relevant assessment and notification obligations and any requirements or determinations issued by the OAIC; or
B. if the Eligible Data Breach is assessed to, without any doubt, have arisen due to any fault of the Supplier or has occurred in relation to or by access through the Supplier’s IT systems, the Supplier will comply with reasonable directions issued by the Partner to assist the Partner or Client meet its notification obligations under the Privacy Law at no additional cost to the Partner. However, the Partner (or Client) will be responsible for complying with relevant assessment and notification obligations (including submitting relevant documents) and any requirements or determinations issued by the OAIC; or
(ii) where such an Eligible Data Breach impacts Supplier Personal Information:
A. the Supplier will be responsible and liable for complying with relevant Eligible Data Breach assessment and notification obligations under the Privacy Law; and
B. the Partner and/or Client will have no responsibility, liability or obligations arising from the Eligible Data Breach except that, if such arose due to fault of the Partner or Client or occurred in relation to or access through the Partner’s or Client’s IT systems, the Partner will provide all reasonable assistance to the Supplier to comply with the Eligible Data Breach assessment and notification obligations.
13 Non Solicitation
a) The Partner warrants that it will not approach, directly or indirectly any of the Supplier officers to influence them to cease employment with the Supplier or otherwise entice them away from the Supplier, during the term of, or within six (6) months after the termination of, this Agreement.
b) The Supplier warrants that it will not approach, directly or indirectly any of the Partner officers to influence them to cease employment with the Partner or otherwise entice them away from the Partner, during the term of, or within six (6) months after then.
14 Partner’s additional obligations
a) At all times the Partner must have in place an industry standard and fully operational backup and disaster recovery solution for themselves and their Clients and will make best efforts to ensure, where appropriate, that such backup and/or disaster recovery solution is securely stored off-site from the Partner and/or Client and is not otherwise connected or linked to the systems managed by the Supplier. The Supplier is not responsible or liable for any backup of data or disaster recovery or any damage, cost or other liability in respect of data lost by the Partner or a Client in connection with the provision of the Services.
b) In order to provide the Services, the Supplier relies on the Partner to be responsive and available at their designated contact points (phone/email/chat etc). The Partner agrees to and must:
i. respond to critical correspondence from the Supplier within 1 business day;
ii. frequently log in to the Supplier’s program to stay abreast of critical notifications; and
iii. provide clear instructions in a timely and responsive manner.
c) The Partner warrants that:
i. it has in place (and will have in place for the duration of the Term) appropriate insurance coverage with respect to cyber and professional liability; and
ii. it has a legally binding agreement with its Client which authorizes the Supplier to provide the Services.
d) The Partner must not, and must ensure that its staff do not, disparage the Supplier or its staff, including that it must not make any disparaging comments about the Supplier or the Services on any social media forum.
e) The Partner must retain all required consents and authorities in relation to Partner Data and privacy to enable the Supplier to supply the Services.
f) The Partner must not sell, lease, share, transfer, distribute or otherwise provide access to any account or log in credentials provided by the Supplier in accordance with the Services to any other person or entity. Your account and/or log in credentials are specific to you and the Supplier reserves all legal rights and available remedies, including implementing technological barriers, to prevent unauthorised access.
15 Quality control
a) The Supplier may (but is not obliged to) record telephone calls between the Supplier’s staff or Third Party Providers and the Partner or a Client (Calls). Calls are recorded for quality, training and service improvement.
b) The Supplier is not obliged to provide Call recordings to the Partner or any Client. If the Supplier does provide the Partner with a Call recording, the Partner acknowledges that such recording is the Supplier’s Confidential Information and must not be disclosed to any third party.
c) The Partner warrants that it is lawful for the Supplier to record Calls and maintain a copy of such recordings in each jurisdiction in which the Partner and/or Client is located (as the case may be), subject to any written disclosure by the Partner that such actions are not lawful. To the extent permitted by law, the Partner indemnifies the Supplier against any loss, cost or damage incurred by the Supplier in connection with a breach of the warranty given by the Partner in this clause.
d) The Partner must not (and must procure that its Clients do not) record Calls or capture any remote access made by the Supplier, without first obtaining the Supplier’s written consent (which may be given or withheld at the Supplier’s discretion). The Partner must not (and must procure that its Clients do not) disclose any such recording to a third party.
16 Personal guarantee
e) If the Partner is a corporation or partnership, in consideration of the Supplier agreeing to supply the Services to the Partner, each director or partner (as the case may be) of the Partner (the Guarantors) jointly and severally covenant with the Supplier:
iii. to pay all amounts which at any time for any reason are payable by the Partner to the Supplier, on any account or in connection with this Agreement or any transaction contemplated by it, whether at law, in equity, under statute or otherwise;
iv. to unconditionally and irrevocably guarantee to the Supplier the due and punctual performance and observance by the Partner of its obligations under this Agreement;
v. As a separate undertaking, to unconditionally and irrevocably indemnify the Supplier against all liability or loss arising from, and any costs, charges or expenses incurred in connection with, a breach by the Client of this Agreement, including a breach of the obligation to pay money.
b) The liabilities of the Guarantors are not affected by:
i. the Supplier granting extra time to, or compounding or comprising with or releasing the Partner from any liability;
ii. any mistakes acquiescence, or delay, by the Supplier;
iii. change in ownership of the Partner;
iv. the bankruptcy or insolvency of the Partner;
v. the Supplier not giving the Guarantors notice of the Partner’s default; or
anything the Supplier does or does not do whereby the whole or part of the liability of the Guarantors to the Supplier would, but for this provision have been affected or discharged.
c) This Guarantee and Indemnity is a principal obligation and will not be treated as ancillary or collateral to any other obligation, however created or arising.
d) The Guarantors covenant that they will not:
i. prove in the bankruptcy or insolvency of the Partner ahead of the Supplier;
ii. seek to recover monies or goods from the Partner until the Supplier has been paid all monies owing to it;
iii. Where one or more of the Guarantors is a trustee of a trust (“Trust”), whether or not this is disclosed to the Supplier, those Guarantors acknowledges that this Deed is binding on them personally and in their capacity as trustee of the Trust and that the Supplier’s right of recourse extends to both the assets of the Guarantor personally and the assets of the Trust.
17 Miscellaneous
a) Performance of Services by Related Bodies Corporate: The Partner agrees that the Supplier may subcontract the performance of any Service to any of its Related Bodies Corporate, and each such Related Body Corporate performing Services for the Partner will have the same rights in respect of the Partner (including, without limitation, in relation to warranty disclaimers, liability limitations and use restrictions) as if it were named as the “Supplier” in the Agreement.
b) The Partner agrees that the Supplier may identify the Partner as a Supplier customer or Supplier user in Supplier business materials.
c) This is a service agreement only. Notwithstanding the use of any defined terms (which are for ease of reading only), nothing in this Agreement creates any employer/employee, principal/agent or partnership arrangement between the Partner and Supplier.
d) Any waiver of any terms of the Agreement will be effective only if in writing and signed by the Supplier. Any rights not expressly granted herein are reserved.
e) Severability: If one or more of the terms of the Agreement are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining terms will not be affected.
f) Governing Law: The Agreement is governed by the laws of New South Wales, Australia, and each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia.
g) The Partner agrees that the existence of this Agreement and the Supplier’s supply of the Services to the Partner may be publicised by the Supplier at its Supplier’s discretion. The Partner further consents to participate in any testimonials or case studies requested by the Supplier.
Definitions