THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF FIREHAWKCRM SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
IF CUSTOMER REGISTERS FOR A FREE TRIAL OF FIREHAWKCRM SERVICES OR FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES.
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING FIREHAWKCRM SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” AND “USER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
FIREHAWKCRM’s direct competitors are prohibited from accessing the Services, except with FIREHAWK’s prior written consent. In addition, the Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on 6th March 2019. It is effective between Customer and FIREHAWKCRM as of the date of Customer’s accepting this Agreement.
FireHawk Systems Pty Ltd trading as FireHawkCRM 79 620 266 962 of 2/100 Victoria Street, Taree NSW 2430 (the System Provider).
Your Funeral Home and employees thereunder (the System User)
The System Provider (hereon in known as “Provider”) is agreeable to providing such services to the System User on the terms and conditions set out in this Agreement.
The System User (hereon in known as “User”) is of the opinion that the Provider has the necessary qualifications, experience and abilities to provide the FireHawkCRM System (hereon in known as the “System”) and support to the User.
The User wishes to use the System on the terms provided within this Agreement for use within the User’s Funeral Home.
The System is used not sold and remains the property of the Provider.
In Consideration of the matters described above and of the mutual benefits and obligations set forth in this Agreement, the receipt and sufficiency of which consideration is herby acknowledged, the Provider and the User (individually the “Party” and collectively the “Parties” to this Agreement) agree as follows:
Provider – means FireHawk Systems Pty Ltd trading as FireHawkCRM ACN 620 266 962;
User – means the person or organisation to whom the use of the System is provided hereunder;
System – means any product of or relating to the FireHawk Client Relationship Management Platform also known as FireHawkCRM which is the subject of this Agreement, including without limitation (unless the context otherwise requires) any upgrade from time to time applied to the System.
Services – supply and maintain the System or repair work to the System.
Agreement – means a negotiated and binding arrangement between two parties.
Term – means a fixed or limited period.
Payment – an amount paid or payable for services or goods rendered.
Confidential Information – means the information must be identifiable, have some form of originality and not import public knowledge.
Intellectual Property – means proprietary knowledge or creative ideas.
Funeral Credit – a credit will allow you to convert an Enquiry to an ‘At Need’, ‘Pre Need’ or ‘Transfer’. All credits including any credits or bundles purchased in advance are non-refundable upon purchase.
The User hereby engages the Provider to provide the following Services (the “Services”):
- To provide access to the System and all of its capabilities for use within the User’s funeral home;
- Also support services associated with above mentioned System where communication and, queries or concerns are delivered via Slack App Technologies.
- The services may also include any other digital, marketing or graphic tasks which the Parties may agree on separately. The Provider agrees to provide such Services to the User.
Term of Agreement
- The term of the Agreement (the “Term”) will begin on the date of this agreement and will remain in full force and effect indefinitely until terminated as provided in this Agreement.
- In the event that either Party wishes to terminate this Agreement, that party will be required to provide thirty (30) days’ written notice to the other Party.
- This agreement may be terminated at any time by mutual agreement of the Parties.
- Except as otherwise provided in this Agreement, the obligations of the Provider will end upon the termination of this Agreement.
The Parties agree to do everything necessary to ensure that the terms of this Agreement take effect.
Except as otherwise provided in this Agreement, all monetary amounts referred to in the Agreement are in AUD (Australian Dollars).
The Provider will charge the User for Funeral or Transfer Credits to be utilised within the System as follows (the “Payment”):
- All Enquiry additions to the System are free of charge and will only convert to a chargeable credit when converted to an ‘At Need’, ‘Pre Need’ or ‘Transfer’ within the System.
- Funeral Credits will be charged at twenty dollars ($20.00 AUD) per credit use. This amount will increase by 3% per year rounded up or down to the nearest dollar. Discounted Credit bundles are available. All credits including any credits or bundles purchased in advance are non-refundable upon purchase.
- Transfer, Cremation and Burial Credits will be charged at five dollars ($5.00 AUD) per credit use. This amount will increase by 3% per year rounded up or down to the nearest dollar. All credits including any credits or bundles purchased in advance are non-refundable upon purchase.
- Credits have to be purchased in advance by the User and credits will be not be added to the System until the payment has been receipted into the Providers bank account.
- Payments can be made to the Provider via Direct Deposit or Credit Card facilities on the System. Credits purchased via Credit Card will be instant approval, Credits purchased via Direct Deposit will be subject to clearing time.
- Confidential information (the “Confidential Information”) refers to any data or information relating to the business of the User which would reasonable be considered to be proprietary to the User including, but not limited to, accounting records, business processes, and client records and that is not generally known in the User’s Industry and where the release of that Confidential Information could reasonably be expected to cause harm to the User.
- The Provider agrees that they will not disclose, divulge, reveal, report or use, for any purpose, and Confidential Information which the User has obtained, except as authorised by the User or as required by law. The obligations of confidentiality will apply during the term of this Agreement and will survive indefinitely upon termination of this Agreement.
- All written and oral information and material disclosed or provided by the client to the Provider under this Agreement is Confidential Information regardless of whether it was provided before or after the date of the Agreement or how it was provided to the Provider.
- If a Party breaches any of its obligations with respect to confidentiality and unauthorised use of Confidential Information hereunder, the non-breaching party shall be entitled to equitable relief to protect its interest therein, including but not limited to injunctive relief, as well as money damages notwithstanding anything to the contrary contained herein.
- The provisions of this clause shall survive termination of this Agreement.
Ownership and Proprietary Rights of Intellectual Property
All Intellectual Property and related material (the “Intellectual Property”) that is developed or produced under this agreement, will be the property of the Provider. The User is granted non-exclusive limited-use of this intellectual property. Any Intellectual Property produced during the course of this Agreement may not be modified, reverse-engineered or de-compiled in any manner through current or future available technologies.
Title, copyright, Intellectual Property rights and distribution of the Intellectual Property remain exclusively with the Provider. Intellectual property rights include the look and feel of any System produced.
System User Obligations
- The User shall maintain a system of controls that will:
- protect the integrity of the System;
- control access to the System by third parties;
- prevent unauthorised usage of the System; and
- ensure that the amount of usage of the System is accurately recorded.
- The User also recognises that the System is the proprietary and confidential property of the Provider. Accordingly, the User shall not, during the term of this Agreement, disclose or reveal to any third party or utilise for its own benefit other than pursuant to this Agreement, any such technology provided by the Provider concerning the System.
- The User further agrees to take all reasonable precautions to preserve the confidentiality of the System and shall assume responsibility that its employees, and assignees will similarly preserve this information against third Parties.
- Any use of the System not expressly authorised in this Agreement is strictly prohibited.
- The provisions of this clause shall survive termination of this Agreement.
- The User shall maintain a system of controls that will:
System Provider Obligations
The Provider will supply the User with the System as described. The Provider reserves the right to withhold updates of the System in the event that the User should be in material default of this Agreement. We agree to 95% service uptime in a 31 day period
The Provider shall rectify all reproducible faults in the System for which the Provider is responsible when reported by the User within a reasonable period.
- The User shall report the fault to the Provider in writing via the Slack Application (preferred method) or Email without undue delay.
- The User shall describe the defect in as much detail as possible.
- The Provider can opt to rectify the problem by debugging, providing new System build or showing how to avoid the effects of the fault.
- The User shall accept a new System build unless this causes them unreasonable modification and switching problems.
Return of Property
Upon the expiry or termination of this Agreement, the Provider will return any property, documentation, records, or Confidential Information which is the property of the User.
The following termination rights are in addition to the termination rights which may be provided elsewhere in the Agreement:
- Right to Terminate Upon Notice – Either Party may terminate this Agreement on thirty (30) days’ written notice to the other party in the event of a breach of any provision of this Agreement by the other Party, provided that, during the 30-day period, the breaching Party fails to cure such breach.
- The User Right to Terminate – The User shall have the right to terminate this Agreement at any time upon one months’ written notice to the Provider for any reason in which case its unused credits become non-refundable.
- The termination must be in writing and signed by the User or a person duly authorised by the User.
- Any materials must be delivered to the intended recipient by post, by hand or by email
All notices, requests, demands or other communications required or permitted by the terms of this Agreement will be given in writing and delivered to the Parties by hand, post or via email.
Warranties and Obligations
- The Provider warrants and represents that it has the necessary power and authority to enter into and perform its obligations under this Agreement and to grant the User ability to use the System; and that the Provider has no actual knowledge that the System infringes upon any copyright, patent, trademark or proprietary right (collectively “Intellectual Property Rights”) of any third party.
- Except for those warranties previously set forth above, the System is provided on an “AS IS” basis without guarantee, and the Provider does not guarantee that the System will meet the User’s requirements; that it will operate in the combinations, or in the equipment, selected by the User; or that its operation will be error-free or without interruption.
- The User warrants and represents that it has the necessary power and authority to enter into and perform its obligations under this Agreement; and that the User has no actual knowledge that its Service and associated trademarks infringe upon any Intellectual Property Rights of any third party.
Except to the extent paid in settlement from any applicable insurance policies, and to the extent permitted by applicable law, each Party agrees to indemnify and hold harmless the other Party, and its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from or arise out of any act or omission of the indemnifying party, its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns that occurs in connection with this Agreement. This indemnification will survive the termination of this Agreement.
Relationship of parties
This Agreement does not create a joint venture or partnership between the Provider and the User, and each will act independently of the other. Neither party is empowered to bind or commit the other to any contract or other obligation.
This Agreement contains the entire agreement between the Parties as at the date of this Agreement with respect to its subject matter and supersedes all prior agreements and understandings between the Parties in connection with it.
This Agreement may be amended only by another agreement executed by both Parties.
Neither Party may assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of the other Party which shall not be unreasonably withheld.
A failure to exercise or a delay in exercising any right, power or remedy under this Agreement does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting that waiver unless made in writing.
Titles and Headings
Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement.
Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include feminine and vice versa.
Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimise the impact of the event.
The rights, powers and remedies provided to a Party in this Agreement are in addition to, and do not exclude or limit, any right, power or remedy provided by law or equity or any agreement.
Governing law and compliance
This Agreement is governed by the laws of New South Wales and each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of courts exercising jurisdiction there.
In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Agreement.
Costs and duty
Each party must bear its own costs arising out of the negotiation, preparation and execution of this Agreement.
This Agreement may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.
All Parties agree to enter into mediation before the outset of any legal proceedings.