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”):
Term of 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”):
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
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.
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:
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
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.