Terms & Conditions

1. BACKGROUND

a) The Client (you) are of the opinion that the Contractor (Smoothlink) has the necessary qualifications, experience and abilities to provide the services to the Client.

b) The Contractor is agreeable to providing such services to the Client on the terms and conditions set out in this Agreement.

IN CONSIDERATION OF the background information and the mutual benefits and obligations within this Agreement, the receipt and sufficiency of which consideration is hereby acknowledged, the Client and the Contractor (individually the “Party” and collectively the “Parties” to this Agreement) agree as follows:

2. SERVICES PROVIDED
The Client hereby agrees to engage the Contractor to provide the Client with the following products and services (the “Services”):

• • Procore & Xero Integration (also referred as Smoothlink Integration); and
  • Xero Plus; and
  • Procore & MYOB Integration; and
  • Procore & QBO Integration (also referred as Procore & QuickBooks Online Integration); and
  • Procore & Zoho Integration (also referred as Procore & Zoho Books Integration); and
  • Smoothlink Support; and
  • Prokit Plus (also referred to as Prokit Cost Plus); and
  • ProScan Plus (also referred to as Scan Plus); and
  • Prokit Plus Support

3. RIGHT OF SUBSTITUTION

a) Except as otherwise provided in this Agreement, the Contractor may, at the Contractor’s absolute discretion, engage a third-party sub-contractor to perform some or all of the obligations of the Contractor under this Agreement and the Client will not hire or engage any third parties to assist with the provision of the Services.

b) In the event that the Contractor hires a sub-contractor:

i. the Contractor will pay the sub-contractor for its services and the Compensation will remain payable by the Client to the Contractor.

ii. for the purposes of the indemnification clause of this Agreement, the sub-contractor is an agent of the Contractor.

4. INDEPENDENT CONTRACTOR

a) In providing the Services under this Agreement it is expressly agreed that the Contractor is acting as an independent contractor and not as an employee.

b) The Contractor and the Client acknowledge this Agreement does not create a partnership or joint venture between the Parties and is exclusively a contract for service.

5. NO EXCLUSIVITY
The Parties acknowledge that this Agreement is non-exclusive and that either Party will be free, during and after the Term, to engage or contract with third parties for the provision of services similar to the Services.

6. TERM OF AGREEMENT
The term of this Agreement (the “Term”) will begin on the date this Agreement is executed by the Client and will remain in full force and effect, indefinitely, until terminated in accordance with this Agreement.

7. EXECUTION

a) This Agreement is validly executed by the Client including its name and relevant identification information within the Smoothlink Intake Form presented to the Client and accessible via the Smoothlink website (https://www.smoothlink.net/crazy-sale/xero/, https://www.smoothlink.net/crazy-sale/myob/, https://www.smoothlink.net/crazy-sale/qbo/) and/or via the Prokit Plus website (https://www.prokitplus.com/xero-plus/intake-form/, https://www.prokitplus.com/cost-plus/intake-form/, https://www.prokitplus.com/scan-plus/intake-form/) and/or via the Hubspot website (https://share.hsforms.com/1c_vUaTOvS1CFZlDa2aqSPA5alsn, https://share.hsforms.com/1UtG_53tDQ4mgBOFZ_7I3uA5alsn) within which this entire Agreement is presented to the Client for review and acceptance; and

b) For the avoidance of any doubt, the Client executes this agreement and expressly agrees to the terms and conditions of this Agreement by completing the Smoothlink Intake Form and selecting the check box to confirm the Client has read, understands and agrees to the terms and conditions of this Agreement without exception.

8. PERFORMANCE
The Parties agree to do everything reasonably necessary to ensure the terms of this Agreement take effect.

9. AUTONOMY

a) Except as otherwise provided in this Agreement, the Contractor has full and complete control over working time, methods, and decision making in relation to provision of the Services in accordance with this Agreement.

b) The Contractor will work autonomously and not at the direction of the Client. However, the Contractor will be responsive to the reasonable needs and concerns of the Client.

10. EQUIPMENT
Except as otherwise provided in this Agreement, the Contractor will provide, at the Contractor’s own expense, any and all supplies, and any other items or parts the Contractor determines are necessary to deliver the Services in accordance with this Agreement.

1. PAYMENT

a) The Contractor will charge the Client for the Services at the rate as listed in the current Smoothlink Price List (the “Payment”) at the time of this Agreement.

b) The Client will be invoiced either monthly over a minimum of a 12-month period, or annually.

c) Invoices submitted by the Contractor to the Client are due within 7 days of receipt.

d) The Payment as stated in this Agreement does not include sales tax, or other applicable duties as may be required by law. Any sales tax and duties required by law will be charged to the Client in addition to the Payment.

2. CURRENCY
Except as otherwise provided in this Agreement, all monetary amounts referred to in this Agreement are in AUD and converted to the Client’s currency of origin at the current exchange rates available to the Contractor.

3. REIMBURSEMENT OF EXPENSES

a) The Client agrees to reimburse the Contractor or reasonable and necessary expenses incurred by the Contractor in connection with providing the Services; and

b) All expenses must be pre-approved by the Client.

4. INTEREST APPLIED TO LATE PAYMENT
Interest payable on any overdue amounts under this Agreement is at a rate of 5.00% per annum or at the maximum rate enforceable under applicable legislation, whichever is lower.

5. INTELLECTUAL PROPERTY

a) All New IP will be owned by, vest in, and to the extent required, be assigned to the Contractor upon creation.

b) The Contractor grants to the Client a limited, non-exclusive, non-transferable, revocable licence for the Term of this Agreement and provides the Client a limited use license of the Contractor’s New IP and Background IP solely as necessary for the Contractor to perform its obligations under and for the term of this Agreement.

c) All title and intellectual property rights of the New and Background Intellectual Property remain exclusively with the Contractor.

6. CONFIDENTIALITY

a) Confidential information (the “Confidential Information”) refers to any data or information relating to the business of the Client which would reasonably be considered to be proprietary to the Client including, but not limited to, accounting records, business processes, and client records and that is not generally known in the industry of the Client and where the release of that Confidential Information could reasonably be expected to cause harm to the Client.

b) The Contractor agrees that they will not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which the Contractor has obtained, except as authorised by the Client or as required by law. The obligations of confidentiality will apply during the Term and will survive indefinitely upon termination of this Agreement.

c) All written and oral information and material disclosed or provided by the Client to the Contractor under this Agreement is Confidential Information regardless of whether it was provided before or after the date of this Agreement or how it was provided to the Contractor.

7. TERMINATION OF AGREEMENT

a) This Agreement may be terminated at any time by mutual agreement of the Parties.

b) Either party may terminate the Agreement immediately by written notice upon the occurrence of one of the following events:

i. if the other party is in breach of the Agreement and that other party has failed to remedy that breach within 10 days of a written notice to it from the first-mentioned party, specifying the breach and requiring it to be remedied and the Dispute Resolution set out within this Agreement process has been exhausted; or

ii. an Insolvency Event occurs in respect of the other party; or

iii. the other party is in breach of the Agreement and that breach is not capable of remedy; or

iv. an event of Exceptional Circumstances continues for 60 days from the date on which it commenced.

c) In the event that either Party wishes to terminate this Agreement for convenience, that Party must provide 30 days’ written notice to the other Party prior to the end of the relevant 12 Month Cycle;

d) In the event the Client terminates this Agreement for convenience in accordance with clause 7(c) and the date of termination exceeds the first 30 days of this Agreement, the Client will not be entitled to any refund;

e) In the event the Client terminates this Agreement for convenience in accordance with clause 7(c) and the date of termination is within the first 30 days of this Agreement, and the Client has issued a written request for a refund to the Contractor within that time period to [email protected], the Contractor will provide a refund to the Client for the Payment fee less setup fees.

f) In the event the Client is eligible for a refund in accordance with this Agreement, and the Client has elected to make monthly payments on a 12-month subscription (12 Month Cycle), the Contractor will provide a refund to the Client for the Payment fee, less setup fees and the fee for the first month of the Client’s subscription.

g) Except as otherwise provided in this Agreement, the obligations of the Contractor will end immediately upon the termination of this Agreement.

8. RETURN OF PROPERTY
Upon the expiry or termination of this Agreement, the Contractor will return to the Client any property, documentation, records, or Confidential Information which is the property of the Client.

9. DISPUTE RESOLUTION PROCESS

a) Subject to this clause, either Party claiming that a dispute or disagreement has arisen out of, or in connection with the Agreement (“the Dispute”) will, within five (5) Business Days of the Dispute arising, give written notice to the other party providing particulars of the Dispute (“Notice of Dispute”) and designating which of its authorised officers has authority to settle the Dispute.

b) The Parties must, at such location as agreed between the Parties in writing within five (5) Business Days of receipt of the Notice of Dispute in accordance with clause 9 (a), seek to resolve the dispute amicably.

c) If the Dispute has not been resolved within ten (10) Business Days (or such other time as mutually agreed between the parties) of receipt of the Notice of Dispute in accordance with clause 9(a), the Parties agree to refer the dispute to mediation administrated by a mediator recommended and accredited by the Resolution Institute in accordance with Resolution Institute’s professional mediation rules.

d) If the Dispute has not been resolved within twenty (20) Business Days of receipt of the Notice of Dispute in accordance with clause 19(a) then (on the basis that the exhaustion of the dispute resolution process set out in this clause 19(a) is a condition precedent to the right of either party to commence court proceedings in relation to the Dispute) the party who first served the Notice of Dispute may commence litigation.

e) Any mediation discussions and proceedings undertaken in accordance with clause 9(a) constitute Confidential Information on a without prejudice basis and must take place in Queensland Australia, Australia (or such other location as the Parties may agree between themselves in writing).

10. URGENT RELIEF
Despite the condition precedent referred to in subclause 14.9(a), nothing in this Agreement shall prevent either party seeking injunctive or urgent declaratory relief for any matter (including to protect Confidential Information) arising out of, or in connection with this Agreement.

11. OBLIGATIONS CONTINUE
Despite the existence of a Dispute, each party will at all times continue to fulfil all obligations under the Agreement, including in respect of confidentiality.

12. WAIVER
The waiver by either Party of a breach, default, delay or omission of any of the provisions of this Agreement by the other Party will not be construed as a waiver of any subsequent breach of the same or other provisions.

13. LIABILITY LIMITED

a) The Client’s access to and use of the Services are at the Client’s own risk.

b) The Client agrees that the Services provided by the Contractor are provided on an “AS IS” and “AS AVAILABLE” basis.

c) The Contractor, its parents, affiliates, related companies, officers, directors, employees, agents, representatives, partners, and licensors exclude and disclaim all representations and warranties, express or implied, related to The Services. Without limiting the foregoing, to the maximum extent permitted under applicable law, the Contractor disclaims all warranties and conditions, whether express or implied, of merchantability, fitness for a particular purpose, or non-infringement.

d) The Contractor does note makes or offer any warranty or representation whatsoever and disclaims all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security or reliability of The Services or any content; (ii) any harm to the Client’s (or any other party’s) computer system, loss of data, or other harm that results from the Client’s access to, or use of the Services or any content; (iii) the deletion of, or the failure to store or to transmit, any content and other communications maintained by The Services; and (iv) whether the Services will meet the Client’s requirements or be available on an uninterrupted, secure, or error-free basis.

e) No advice or information, whether oral or written, obtained from the Contractor or through The Services, creates, or is intended to create, any warranty or representation whatsoever not expressly set out within this Agreement.

14. CONSEQUENTIAL LOSS
To the extent permitted by Law, in no event, will a Party be Liable to the other Party for Consequential Loss, even if that Party has been made aware of the possibility of such Consequential Loss prior to entering into or during this Agreement.

15. FORCE MAJEURE

a) If the Contractor is prevented from, or delayed in, performance of an obligation under this agreement by an event of Exceptional Circumstance; and

b) The Contractor, as soon as possible after the event of Exceptional Circumstance notifies the Client providing particulars of:

i. The event of Exceptional Circumstance

ii. The anticipated delay; and

ii. The anticipated delay; and

iii. The action, if any action is reasonably possible by the Contractor, the Contractor intends to take to mitigate the effect of the delay.

iv. Then those obligations of the Contractor are suspended for the duration of the event of Exceptional Circumstance.

GENERAL

16. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of Electronic Transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

17. NOTICE
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 at the following email address: [email protected] or to such other email address as either Party may from time to time notify the other.

18. AMENDMENT OF AGREEMENT
Any amendment or modification of this Agreement or additional obligation assumed by either Party in connection with this Agreement will only be binding if evidenced in writing signed by each Party or an authorised representative of each Party.

19. ASSIGNMENT
The Contractor may assign or otherwise transfer its obligations under this Agreement in circumstances where the Client consents (consent is not to be unreasonably withheld).

20. ENUREMENT
This Agreement will enure to the benefit of and be binding on the Parties and their respective heirs, executors, administrators and permitted successors and assigns.

21. TIME OF THE ESSENCE
Time is of the essence in this Agreement. No extension or variation of this Agreement will operate as a waiver of this provision.

22. GOVERNING LAW
This Agreement will be governed by and construed in accordance with the laws of the State of Queensland.

INTERPRETATION

23. TITLES/HEADINGS
Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement.

24. GENDER
Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa.

25. DEFINITIONS
Consequential Loss means any of the following: loss of revenue; loss of profits; loss of opportunity to make profits; loss of business; loss of business opportunity; loss of use or amenity, or loss of anticipated savings; special, exemplary or punitive damages; and any loss which does not directly and naturally flow in the normal course of events from the occurrence of the event giving rise to the liability for such loss, whether or not such loss was in the contemplation of the parties at the time of entry into this agreement, including any of the above types of loss arising from an interruption to a business or activity.
Exceptional Circumstance means a circumstance beyond the reasonable control of the parties which results in a party being unable to observe or perform on time an obligation under the Agreement. Such circumstances include:

a) adverse changes in government regulations;

b) any disaster or act of God, lightning strikes, atmospheric disturbances, earthquakes, floods, storms, explosions, fires and any natural disaster;

c) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution, cyber-attacks, viruses or malware, data loss as a result of the actions of a third party;

d) strikes or industrial disputes;

e) materials or labour shortage; and

f) acts or omissions of any third-party network providers (such as internet, telephony or power provider).

12 Month Cycle means the 12-month period of time from the date this Agreement is executed.
AS IS means the product or services that comprise The Services are provided to the Client in the form and in the condition of The Services immediately prior to the Client executing this Agreement, without modification and without any express or implied warranties.
AS AVAILABLE means the basis on which any product or service that comprise The Services is, or are available to the Contractor to enable the Contractor to satisfy its obligations under this Agreement.

Last updated: May 07, 2022