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..

So, just in our own words working with Benchmark 365 consists of 3 easy steps:

1.  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
  5. Setting up the various tools we’ll collaborate on including PSA, RMM and Business Intelligence platforms

Confirming a ‘Go Live’ Date for Pilot

2.  PILOT

All new Partners are given a 30 day pilot to trial 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…

3.  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 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 30 Day Pilot engagement Benchmark 365 will intake calls and support incidents 24×7 but only provide 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.

Once the 30 Day Pilot has concluded 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 written notice by email.  Your deposit will cover the 30 day cancellation period.

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, 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 typically billed at $50 per hour and if you approve any out of scope work we also bill at $50 per hour.

PAYMENT TERMS

Services are billed in advance prior to commencement of service including a deposit to cover the 30 day cancellation notice, a one time onboarding fee and your monthly fee.

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.

We accept credit cards only in some regions and bank deposits only in other regions or a combination of both.

If a credit card is used, we may opt to pass on any credit card surcharges.

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.

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.

You may be eligible for a refund only in the following circumstances:

If you:

  1. Sign up and subsequently cancel within 48 hours of payment: You will be eligible for a full refund of your onboarding and first month’s Pilot fee and any deposit paid or;
  2. Sign up and cancel after 48 hours but prior to going live: You will be eligible for a partial refund including your first month’s fee and deposit only
  3. You will not be eligible for a refund of the onboarding fee once onboarding has commenced.

In summary, there are no refunds for services beyond the initial onboarding period and you will only be eligible for a partial refund if you cancel 48 hours after your initial payment and prior to going live.

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 nickling 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 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 and the EU’s General Data Protection Regulation. For example, we use up to date security packages and protocols and we constantly review our security practices. To minimise breach, we have also implemented the following:

  • Two factor authentication (2FA/MFA)
  • Server and workstation encryption
  • Record Segregation with Targeted Security Model
  • Data Loss Prevention via Inspection of all Data Motion
  • Employee Awareness training

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.

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 Agreement for you and Benchmark 365 and we have the outrageous bill to show for it..

Here goes..

BENCHMARK 365 AGREEMENT

Background

A         The Supplier supplies IT and software management support, consulting services and hosted services (Services).

B         The Customer wishes to use the Services.

C         This Agreement sets out the terms and conditions under which the Supplier will supply the Services to the Customer.

Agreement  1             The Service to be Supplied

(a)             Provided that the Customer is not in default of any of its obligations under this Agreement, the Supplier agrees to use commercially reasonable efforts to supply Customer with the Services subject to the terms and conditions set out in this Agreement.

(b)              The Supplier may from time to time supply the Customer with a replacement product or service. If requested by the Supplier, the Customer 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.

(c)             If the Services include supply of a third party licences product, such third party licenced product is supplied to the Customer pursuant to the terms of relevant third party licence

2              Fees

(a)             The Customer agrees to the pay the Fees for the Services.

(b)             All Fees are non-cancellable and non-refundable unless expressly stated otherwise in the Agreement.

(c)              The Fees must be paid in advance prior to commencement of the Services.

(d)             If any debit or credit card used by Customer 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 Customer and the Customer 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 Customer is current in its payment obligations to the Supplier.

(e)             In relation to the Fees payable by the Customer:

(i)                if the Customer 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 a scheduled Fee payment is not made in full for any reason, the Customer agrees that the Supplier may charge an additional Late Payment Fee or immediately terminate access to the Services; and

(iii)             if the Customer is not in breach of the Agreement, and the Supplier elects to terminate the Agreement under Clause 4, the Supplier will refund to the Customer any 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 Customer thirty (30) days’ notice of the variation (Notice Period). The Customer may terminate the Services at any time during the Notice Period. If the Customer does not terminate the Services within the Notice Period, the Customer will be deemed to have accepted the Fee variation, and on and from the expiry of the Notice Period the Customer will be liable to pay the Fees as varied by the Supplier.

(g)             All fees include GST and other taxes unless expressly stated otherwise.

(h)             The Supplier will be entitled to suspend or terminate Service if the Customer 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 Customer agrees that the Customer 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 Customer 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 Customer and the Customer’s employees only.

(b)             The Customer must ensure that the Customer and Customer’s employees use the Services:

(i)                for internal business purposes only; and

(ii)              in manner that is commercially reasonable.

(c)              Services and content shall not be used for any commercial purpose beyond that designed 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 Customer will not use the Service to take any actions that:

(i)                infringe on 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)             are defamatory, trade libellous, 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 cause 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

(vi)             constitute unauthorised entry to any machine accessible via the network.

(f)               Where the Supplier obtains services from other suppliers, the Customer will comply with the usage policies of those suppliers.

(g)             The Supplier may, in its discretion, revise these service use restrictions upon thirty (30) days prior notice to the Customer.

(h)             The Customer must not assign any of its rights under the Agreement. Except as permitted under the Agreement, the Customer must not make any Services available for use by any third or any related parties (including, but not limited to, by way of renting, leasing or transferring the Services).

(i)               The Customer is responsible for ensuring that users comply with the applicable terms and conditions of the Agreement with respect to use of the Services and the software, including these terms.

(j)               The Customer will indemnify and hold the Supplier harmless from and against any and all loss, liability, cost, or expense arising from or relating to users or the Customer’s failure to comply with these terms.

4              Term and Termination for Cause

4.1             Term

(a)             This Agreement shall continue from the Effective Date until terminated by:

(i)                either party pursuant to clause 4.2of this Agreement; or

(ii)              agreement in writing by the parties.

4.2             Termination for Cause

Either party may terminate this 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 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.

4.4             Consequences of Termination

(a)             On termination of this Agreement by the Customer pursuant to Clause 4.2 the Customer may, in addition to any other rights it may have under this 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 Customer must pay for the Services provided in accordance with this Agreement up to the date of the termination and Customer has no other liability to the Supplier in relation to that termination.

(c)              If the Services or this Agreement expires or is terminated for any reason, then

(i)                the Services will no longer be available to the Customer and all data supplied by end users in connection with the use of the Services will be promptly returned to the Customer at no cost; and

(ii)              the Supplier will promptly return all of the Customer’s equipment used by the Supplier in the provision of the Services and any other property that belongs to the Customer or relates to the affairs of the Customer that are in the possession or control of the Supplier or its Personnel.

(d)             Termination will take immediate effect on notice being issued to the Customer, and the Customer must immediately stop using all products and services provided by the Supplier. The Customer may not be entitled to any refund.

(e)             If the Agreement expires or is terminated for any reason then the Services will no longer be available to the Customer and all data supplied by end users in connection with the use of the Services will be destroyed. However, following any such termination or expiry, the Supplier will retain ownership of all data that it has derived from data supplied by the Customer in the course of using the Services.

      5        Intellectual Property and Data Ownership

(a)             Ownership: The Supplier owns or has obtained valid licensed to provide the Services.

(b)             Except for the limited rights granted to the Customer under the Agreement, no ownership or copyright in any product or service supplied by the Supplier will pass to the Customer.

(c)              The functionality of the Services, including any and all content provided by the Supplier, is protected by copyright, trade dress, moral rights, trademark and other laws relating to the protection of intellectual property. The Supplier reserves all of its Intellectual Property Rights.

(d)             Trademarks and Trade names: The Customer 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 will remain with the Supplier or its licensor.

(f)               Nothing in the Agreement confers upon the Customer any rights to use, and or modify any of the Supplier’s trademarks or trade names, except that the Supplier grants the Customer a royalty free, non-exclusive, non-transferrable, licence to use the Supplier trademarks to the extent necessary to comply with Customer obligations under the Agreement. The Customer may not sublicense this right.

(g)             Derivative Works: The Customer is prohibited from producing Derivative Works.

(h)             Customer-supplied Data: The Customer will retain all of its rights in respect of any data transmitted by the Customer to the Supplier or its Related Bodies Corporate in connection with the Customer’s use of the Services (Customer-supplied Data). Neither the Supplier nor any of its Related Bodies Corporate will acquire any rights in Customer-supplied Data merely by virtue of the Customer transmitting that data to it. However, the Customer acknowledges that the Supplier will be fully entitled to derive its own meta-format data from Customer-supplied Data, and the Customer will have no rights whatsoever in respect of such meta-format data.

     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 Customer agrees to comply with all requirements and restrictions that Third Party Providers may impose on the Customer 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 Agreement.

(c)              The Customer 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. For the Customer’s convenience, the Supplier has set out a non-exhaustive overview of key provisions from Third Party Provider Agreements that the Customer will be required to comply with, or which otherwise affect the Customer.

(d)             The Customer further acknowledges that by entering into the Agreement, the Customer agrees to comply with the respective conditions of Third Party Provider agreements, which currently include the vendors set out below.

(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 the service levels offered to the Supplier from its Third Party Providers.

        7      Maintenance and Customer Support

(a)             Provided that the Customer is not in default of its obligations set out in this agreement, the Supplier will provide maintenance and support services

(b)             The Customer must nominate in writing and inform the Supplier a maximum of two (2) contact persons who will coordinate services delivered from the Supplier to the Customer.  

(c)              The same two (2) contact persons as set out at 7(b) should also have executive approval over all lodged Service requests, authorisation over after hours and emergency support, as well as sign off on all business critical or production affecting issues.

         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 to the extent permitted by law 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 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 provision in a contract.

(c)              In no event will the aggregate liability of the Supplier or third party suppliers exceed any Fees paid by the Customer to the Supplier in the prior twelve (12) months prior to the alleged breach.

(d)             The Customer agrees that the Supplier shall not be liable to it under this Agreement or under a Statement of Work 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 Customer 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)               The Supplier will use due care and skill to supply the Services. 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 files that the Supplier provides Customer will be free of contamination or destructive properties. The Supplier suggests that the Customer installs and uses 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 once the Supplier has reviewed those systems and infrastructures and deemed them to be at a warrantable standard. The Supplier will work with the customer to improve and/or change systems or infrastructure in line with a warrantable data and disaster recovery plan.

(i)               No guarantee is provided as to resolution of any problem. However, the Customer shall be liable for full payment in respect of Fees and Charges and all time and equipment utilised by the Supplier in the course of this Engagement, regardless of outcome.

            9  Dispute Resolution

(a)             The Supplier can in its sole discretion suspend some or all Services where any Customer payment is due and outstanding.

(b)             For the avoidance of doubt the parties acknowledge and agree that:

(i)                an Undisputed Amount cannot be withheld for any reason (including without limitation when that amount is on an invoice with a Disputed Amount);

(ii)              only Billing Disputes can trigger the Billing Disputes Procedure (and the potential right to withhold payment of Disputed Amounts from the Supplier); and

(iii)             Billing Enquiries and Complaints are not Billing Disputes and do not trigger the Billing Disputes Procedure.

(c)              Billing Disputes Procedure:

(i)                Process: In the event that the Customer reasonably believes that it is not liable to pay a Charge in an Invoice, the Customer may lodge a Billing Dispute Notice up to ten (10) business days from the date of the relevant Invoice.

(ii)              Withholding Payment: If the Customer delivers the Billing Dispute Notice at least five (5) Business Days prior to the Due Date of the Invoice, the Customer may withhold payment of the Disputed Amount; otherwise the Customer 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 from the date of the relevant Invoice;

(B)             the Billing Dispute Notice does not contain the minimum information set out in Billing Dispute Notice clause of this Procedure;

(C)             the Customer has not made timely payment for all invoiced Services and does not have a right to withhold payment in accordance with Withhold Payment clause;

(D)             the Supplier has confirmation from the Customer 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 Agreement, all Services used are pre authorised by a Customer nominated contact person; the Customer therefore cannot dispute a Charge on the basis that they did not authorise the particular use of the Services by another member of Customer’s staff or duly appointed officers; or

(F)             the Supplier reasonably believes that Customer does not have a bona fide dispute in relation to the Charges.

(G)             Billing Dispute Notice:

(i)                The Billing Dispute Notice must include a minimum of the following information:

(ii)             invoice number and date;

(iii)             the amount in dispute (Disputed Amount);

(iv)             the amount not in dispute (Undisputed Amount); and

(v)             details of the dispute: and

(vi)             dispute category and details (e.g. missing details, terminated services, wrong account details and wrong addresses, incorrect charges).

(vii)             Responding to a Billing Dispute Notice:

(viii)                the Supplier will, within ten (10) Business Days of receipt, respond to the Billing Dispute Notice or notify the Customer of a date upon which the Supplier will respond:

(A)             in the event of a dispute between the parties which remains unresolved for thirty (30) days, a mediator shall be appointed to facilitate resolution;

(B)             the parties will bear the costs of the mediation equally and provide all assistance reasonably requested by the mediator; or

(C)             if a suitable mediator cannot be agreed, or if mediation fails, parties can then proceed with formal legal action.

          10 Confidential Information

10.1         Confidential Information

(a)             The Supplier must, and must ensure that its Personnel:

(i)                use and reproduce the Customer’s Confidential Information only to the extent required to provide the Services and Deliverables; and

(ii)              not disclose or otherwise make available the Customer’s Confidential Information other than to its Personnel who have a need to know the information to enable the Supplier to provide the Services and Deliverables.

(b)             The Customer 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 Supplier or any of its Personnel of this Clause 10 without the need on the part of the Customer to prove any special damage.

(c)              The Supplier must, if requested in writing by the Customer, require any person to whom the Customer’s Confidential Information will be disclosed, to execute a deed of confidentiality in a form specified by the Customer. Such deeds of confidentiality must be made available by the Supplier at the request of the Customer.

(d)             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 by the Supplier or its Personnel in breach of this Agreement or of any other undertaking of confidentiality addressed to the Customer (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)             The Customer’s Confidential Information remains the property of the Customer at all times.

(b)             The Supplier must return to the Customer immediately on demand, or on completion or termination of this Agreement, all materials (whether in written or electronic form) that contain or encapsulate any of the Data or the Customer’s Confidential Information in its possession, power or control, including any material created or generated by the Customer.

(c)              The Supplier must not retain copies of any of the Customer’s Confidential Information in any form after completion or termination of this Agreement.

          11 Privacy Policy

(a)             The Supplier is committed to protecting user privacy. The Supplier’s Privacy Policy is available at www.benchmark365.com/privacy_policy. Please refer to it for information on how the Supplier collects, uses and disclose personal information.

The Supplier confirms that the Supplier will use any data supplied by the Customer in accordance with Supplier’s Privacy Policy and Customer expressly consents to:

(A)             the use and disclosure of personal information supplied to the Supplier by the  Customer as set out in Supplier’s Privacy Policy; and

(B)             receiving by email direct marketing communications from the Supplier and any service partners it may have; and

(ii)              acknowledges that any personal information provided by the Customer in the course of accessing the Services may be disclosed to and held by one or more of the Supplier’s third party suppliers and service partners (including, without limitation, providers of payment processing services), and used by those third parties in connection with the supply of the Services.

(b)             While the Supplier will take reasonable steps to protect personal information held by the Supplier from misuse, loss and unauthorised access, modification or disclosure, the Supplier will have no liability whatsoever with respect to any personal information held by a third party in connection with the supply of any product or service provided by the Supplier.

(c)              The Customer will comply in full with all laws, regulations, codes and other instruments concerning the protection of privacy and personal information applying to it in connection with its use of the Services (including but not limited to the Privacy Act 1988 (Cth) and the Australian Privacy Principles).

        12  Data Security Policy

The Supplier is committed to providing a secure environment for all transactions. The Supplier will take all reasonable steps to ensure the security of data provided to the Supplier, but the Supplier will retain all rights to disclose such data as permitted under the Agreement and at law.

        13  Non Solicitation

(a)             The Customer 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 Customer officers to influence them to cease employment with the Customer or otherwise entice them away from the Customer, during the term of, or within six (6) months after then.

          14  Miscellaneous

(a)             Performance of Services by Related Bodies Corporate: The Customer 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 Customer will have the same rights in respect of the Customer (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 Customer agrees that the Supplier may identify the Customer as a Supplier customer or Supplier user in Supplier business materials.

(c)              Nothing in this Agreement creates any employer/employee, principal/agent or partnership arrangement between the Customer 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.

15          Definitions

Adverse Event means, in relation to a party, any of the following:

a)  anything that reasonably indicates that there is a significant risk that that party is or will become unable to pay its debts as they fall due and payable;

b) a step being taken to have a receiver , receiver and manager, liquidator or provisional liquidator appointed to that party or any of its assets; and

c) that party ceasing, or indicating that it is about to cease, carrying on business.

Agreement means this Agreement including its schedules and any Order Form(s).
Availability of Services has the meaning set out in the Schedules to this Agreement.
Effective Date means the date which is the later of:

(a)          the date on which Supplier accepts Customer’s Order Form, and

(b)          the date on which Supplier receives payment in full of any Fees payable in advance in accordance with the Plan Customer has selected.

Consulting Services means Services set out in the relevant Schedule 1 detailed in the Order Form.
Derivative Work means any new copyright work created by or for Customer or other product supplied by Supplier or embeds all or part of the Services.
Early Termination Costs Means those costs to be paid by Customer which are set out in the Order Form if Customer elects to terminate the agreement prior to end of Initial Term.
Expiration Date means the date set out in the Order Form.
Fees means the Fees detailed in the Order Form.
Facility means the IT environment and analysis and preparation in order to deliver the products and Services detailed in the relevant Schedule’s and the Order Form.
Intellectual Property Rights includes all industrial and intellectual property rights throughout the world including copyright, moral rights, trade marks, patents, rights to protect confidential information and any similar rights.
Initial Term Has the meaning set out in the Order Form, the Initial term many in some cases be the same period as the Term.
Late Payment Fee means a fee, as notified by the Supplier to the Customer, corresponding to the costs incurred by the Supplier (including, without limitation, administrative costs) in recovering any payment not made by the Customer on the due or scheduled date for payment.
Maintenance and Support Services means the services set out in the Order Form.
Order Form means the Supplier approved application form or as otherwise advised by Supplier to Customer that is  submitted by Customer to Supplier (whether in online, electronic or paper form) describing the Services to be supplied, the particular terms of the supply of the Services to Customer and fees to be paid by Customer.
Organization means any incorporated body, partnership, unincorporated association, trust, statutory or government body, council, local, state or federal government, or any other entity whatsoever (but, for clarity, excludes individuals).
Related Body Corporate has the meaning given to that term in section 50 of the Corporations Act 2001 (Cth) (or any section amending, substituting or replacing that section).
Services means the services set out in the Order Form. Services may also include other IT products and Services if required by context.
Term means the period set out in the Order Form.
Third Party Provider has the meaning set out in Clause 6 of this Agreement