Master Terms & Conditions Agreement

This Master Terms and Conditions Agreement (“Terms and Conditions Agreement”), hereinafter (“Agreement”) are by and between SmartSpeak Solutions Pty Ltd (“SmartSpeak”), and Customer, hereinafter (“Customer”). This Agreement should be read together with each Invoice or Statement of Work provided by SmartSpeak to Customer. Parts of this Agreement may not apply to a particular Customer.

1. PAYMENT TERMS

Payments shall be due net thirty (30) days from invoice date. Without limiting its rights or remedies, SmartSpeak shall have the right to halt or terminate entirely any services until payment is received on past due invoices.

2. EXPIRATION

The pricing presented in this document shall remain valid for a period of fourteen (14) days until signed or otherwise noted.

3. THIRD PARTIES

SmartSpeak may utilise third party resources to complete some or all of the work or service delivery associated with an Invoice or Statement of Work, at SmartSpeak’s cost.

4. ENGAGEMENT

An Invoice or Statement of Work may be sent to Customer by SmartSpeak using electronic mail, an electronic bulletin board, or paper. Commencement by SmartSpeak Solutions of any work or delivery of any service pursuant to an Invoice or Statement of Work shall constitute SmartSpeak Solutions acceptance of all the terms of the invoice or statement of work as applied to such work or service delivery. Subject to the terms of this Agreement, upon both parties signing of a Statement of Work or Invoice, SmartSpeak will perform the services (“Services”) and disclose and deliver the deliverables, if applicable (“Deliverables”) SmartSpeak has created prior to termination or expiration of this Agreement, as set forth in the Statement of Work or Invoice (such Services and Deliverables comprising a “Project”).

5. PERFORMANCE

SmartSpeak will perform the Project, if applicable in a timely and professional manner consistent with industry standards and time will be “of the essence”. In the event of any conflict between the terms of this Agreement and any other Agreement between SmartSpeak and Customer, the express terms of the other Agreement shall prevail. SmartSpeak will have the sole discretion and control to determine the method, details, manner and means to complete the Project. In completing the Project, SmartSpeak agrees to provide its own equipment, tools and other materials at its own expense and to perform the Project at a place and time which SmartSpeak deems appropriate.

6.OWNERSHIP

6.1 Ownership of Work Product

The Deliverables, all embodiments thereof, and all other developments and discoveries relating thereto, and improvements thereon that are created, developed or conceived by either party in the course of performance under this Agreement, and all Intellectual Property Rights (as defined below) therein and relating thereto (collectively, the “Work Product”), will be the sole and exclusive property of Customer, except for any Pre-Existing Technology (defined below) and Other Materials (as defined below) that are incorporated or used in the Work Product. SmartSpeak irrevocably and unconditionally waives all moral rights relating to the Work Product.

6.2 Ownership of Pre-Existing Technology

SmartSpeak will own all Intellectual Property Rights that SmartSpeak has made, conceived or reduced to practice: (a) prior to the Effective Date of this Agreement; or (b) after the Effective Date of this Agreement to the extent not related to or in the course of performing the Services or Project(s) under this Agreement, provided that such Intellectual Property Rights do not include, and are not based in any way on or derivative in any way of, the Intellectual Property Rights of Customer (the “Pre-Existing Technology”).

6.3 Other Materials

Other Materials shall include (i) materials that are in the public domain, (ii) open source code, (iii) materials that are owned by any third party, and (iv) materials owned or licensed by and provided by Customer (together, “Other Materials”). Other materials may only be included in Work Product with the prior written authorisation of Customer. In any such case, SmartSpeak will include in the Work Product an appropriate copyright notice at the top of a source file in the case of code, and in a file named “COPYRIGHT” in the same directory, in the case of images or binary files.

6.4 Assignment of Work Product

Including SmartSpeaks’s rights in the Pre-Existing Technology, Work Product shall be considered property of SmartSpeak under Australian copyright law. Customer retains no rights to use the Work Product in the event that Customer should discontinue its Retail Voice Survey program. For registration and protection of Intellectual Property Rights. “Intellectual Property Rights” will mean all trade secret, patent, copyright, trademark, trade name, service mark and other intellectual property rights throughout the world.

7. CONFIDENTIALITY

7.1 Confidential Information

“Confidential Information” will mean any and all confidential and/or proprietary knowledge, data and other information of any kind that relates to Customer that is disclosed to SmartSpeak by Customer, or obtained by SmartSpeak under this Agreement, in any form. By way of illustration, but not by limitation, “Confidential Information” includes all Work Product, and any other trade secret, know how, computer software (including all source and object code), data, programs, instructions, technical information, business information and procedures of Customer. Confidential Information will not include information: (a) that has been published or is otherwise readily available to the public, other than by a breach of an obligation of confidentiality by SmartSpeak; (b) that is rightfully received by SmartSpeak from a third party without confidential limitations after disclosure by Customer; (c) that was known to SmartSpeak prior to this agreement with Customer, or (d) was independently developed by or for SmartSpeak without use of the Confidential Information and by persons who had no access to the Confidential Information. SmartSpeak may disclose the Confidential Information solely to the extent necessary to comply with an order or requirement of a judicial or administrative process, provided that, SmartSpeak promptly notifies Customer and, to the extent permitted by applicable law, allows Customer a reasonable time to oppose such disclosure.

8. GENERAL PROVISIONS

8.1 Independent Contractor Relationship

SmartSpeak’s relationship with Customer will be that of an independent contractor. Nothing in this Agreement will be construed to create a partnership, joint venture or employer-employee relationship. SmartSpeak is not the agent of Customer and is not authorised to make any representation, contract or commitment on behalf of Customer. SmartSpeak may not hold itself out as an employee or agent of Customer and may not use Customer’s name or logo on its letterhead, business cards, or similar publications. SmartSpeak is free to provide services or work for third parties. Customer has no obligation to provide, and will not provide, disability or unemployment compensation insurance, workers compensation insurance or benefits, or any other employment benefit.

8.2 Governing Law

This Agreement is entered under and shall be governed by and construed in accordance with the laws of Queensland, Australia without regard to the conflicts of laws provisions thereof.

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