Growth Affect - Client Work - Terms and Conditions

Growth Affect - Client Work - Terms and Conditions

Growth Affect CRO

FPI Marketing Pty Ltd ATF the Beeson Family Trust t/a Growth Affect CRO (ABN 66 593 525 348)
of 369 Seventeen Mile Rocks Road, OXLEY 4075 QLD
Email address: martin@growthaffect.com.au 

Introduction:

1. Growth Affect CRO carries on the business of conversion rate optimisation (CRO) of websites or apps.

2. The Client has requested Growth Affect CRO to provide the Services.

3. Growth Affect CRO has agreed to provide its Services as set out in the Specifications in accordance with the terms of this Agreement.

It is agreed:

1. Term 

1. This Agreement starts on the latest of the date the last party executes it, or when Growth Affect CRO’s authorised representative accepts the final Statement of Work (if any) in writing, and continues for a period of 6 months or until the milestone as set out in the Statement of Work (as relevant), whichever is the latest, unless otherwise terminated in accordance with clause 14 (Term).

2. The Term may be extended for additional periods each of 6 months by written agreement of the parties at least 30 days before the end of the then current Term, unless otherwise agreed in writing by the parties.

2. Order of prevalence

If there is any inconsistency between the documents which make up this, then the following will prevail in descending order of precedence:

1. This Agreement; and

2. Statements of Work (if any).

3. Service delivery

1. Growth Affect CRO will use its best commercial endeavours to provide the Services materially in accordance with the Specifications, and with any Due Dates described in the Statement of Work (if any), or otherwise agreed in writing between the parties (as applicable). 

2. Growth Affect CRO does not warrant that any Third-Party Software will be free from Viruses.

4. Access to Premises

The Client must:

1. provide all necessary co-operation in relation to this Agreement;

2. ensure that Growth Affect CRO has full and safe access to the Client’s Premises (where relevant) and any necessary equipment, materials, data and information, facilities, services, software and accessories reasonably required to enable Growth Affect CRO to comply with its obligations under this Agreement; 

3. where relevant, provide on request a suitably qualified or informed Personnel to accompany Growth Affect CRO and to advise Growth Affect CRO on the Services requirements, access, security procedures and any other matter within the Client’s knowledge or control necessary for Growth Affect CRO to comply with its obligations under this Agreement. 

5. Services

Where relevant, Growth Affect CRO will use its best commercial endeavours to provide the Services materially as set out in Schedule 2.

6. Changes to the Specifications

1. The Client may request a change to the Specifications by submitting a written request to Growth Affect CRO (Change Request). 

2. Where Growth Affect CRO wishes to request a change to the Specifications, Growth Affect CRO will notify the Client and then prepare a change proposal including the details described in subclauses 6(c)(i) and 6(c)(ii), as if the Client had issued a Change Request (Change Proposal).

3. If Growth Affect CRO is willing to proceed with the Change Request, then within 5 Business Days of receiving the Change Request (unless a longer period is agreed in writing between the parties), Growth Affect CRO will advise the Client in writing of:

1. any impact on the Due Dates; and

2. any impact on the Total Fees.

4. If the parties then agree in writing to proceed with a Change Proposal, this Agreement will be automatically varied in accordance with the Change Proposal.

7. Total Monthly Fees

1. In consideration of Growth Affect CRO providing the Services, the Client must pay to Growth Affect CRO the Total Fees at the rate and in the manner described in the Statement of Work (if any) or as otherwise agreed in writing by the parties, and in accordance with this clause 7 and Schedule 1. 

2. On the last Business Day of each month during the Term, Growth Affect CRO may submit to the Client a tax invoice (Tax Invoice), setting out details of: 

1. the hours or days (as relevant) which Growth Affect CRO’s Personnel have worked (if applicable); 

2. the Services provided; and 

3. the corresponding amount of the Total Fees payable for the Services provided. 

3. The Client must pay each Tax Invoice within 14 days of receiving it. 

4. If the Client disputes the whole or any portion of the amount claimed in a Tax Invoice submitted by Growth Affect CRO, the Client must pay the portion of the amount stated in the Tax Invoice which is not in dispute and must notify Growth Affect CRO in writing (within seven days of receipt of the invoice) of the reasons for disputing the remainder of the Tax Invoice. If it is resolved that some or all of the amount in dispute ought properly to have been paid at the time it was first invoiced, then the Client must pay the amount finally resolved together with interest on that amount in accordance with the terms of payment set out in this Agreement. 

5. The Total Monthly Fees are exclusive of taxes, duties and charges imposed or levied in Australia or overseas in connection with the Services. Without limiting the foregoing, the Client is liable for any new taxes, duties or charges imposed in respect of this Agreement.

8. Expenses 

The Client must reimburse all reasonable expenses properly and necessarily incurred by Growth Affect CRO or Growth Affect CRO’s Personnel in the course of providing the Services, subject to production of receipts or other appropriate evidence of payment, to the Client.

9. IP ownership

1. Pre-Existing Material 

1. All Intellectual Property Rights in any Pre-Existing Material remain vested in the party that owns the Intellectual Property Rights. 

2. Growth Affect CRO grants the Client an irrevocable, royalty-free, non-exclusive, worldwide, non-transferable licence to exercise all such Intellectual Property Rights in any Pre-Existing Material of Growth Affect CRO which is incorporated into a Deliverable for the purposes of using that Deliverable, in the course of the Client’s business, functions and operations. 

3. The licence to Pre-Existing Material in clause 9.1(b) does not permit the Client to manufacture, sell or otherwise commercially exploit any Pre-Existing Material of Growth Affect CRO.

2. New Material 

On creation of the relevant Deliverable that incorporates the New Material, all Intellectual Property Rights in the relevant New Material vests in or is assigned to Growth Affect CRO.

3. Survival

This clause will survive the termination of this Agreement.

10. Confidentiality

1. A party must keep all Confidential Information and, generally all exchanged information, confidential at all times unless required to disclose to a government agency, Minister, Parliament or under any law, regulation or court order or under the ASX Listing Rules after first giving notice to the disclosing party.

2. Each party must take all reasonable steps to ensure that its Personnel, do not make public or disclose the other party's Confidential Information.

3. On request, or when no longer required for the purposes of this Agreement or on termination or expiration of this Agreement (whichever occurs first), each party must immediately stop using the other party’s Confidential Information and at its cost:

1. deliver to the other party all Documents and other materials containing, recording or referring to Confidential Information; and

2. erase or destroy in another way all electronic and other intangible records containing, recording or referring to Confidential Information,

which are in the possession, power or control of the party or of any person to whom it has given access to any record.

4. Each party may retain a copy of the other party’s Confidential Information to the extent required by Law, or for the party’s reasonable internal credit, risk, insurance, legal and professional responsibilities.

5. This clause will survive the termination of this Agreement.

11. Liability

1. To the extent permitted by law, neither party, its Personnel or suppliers, is liable for Consequential Loss even if the party, its Personnel or suppliers are aware of the possibility of those Consequential Loss.

2. Subject to clause 11(c), the Client warrants that it has not relied on any representation made by Growth Affect CRO which has not been stated expressly in this Agreement, or upon any descriptions, illustrations or specifications contained in any Document produced by Growth Affect CRO.

3. The Client acknowledges that to the extent Growth Affect CRO has made any representation which is not otherwise expressly stated in this Agreement, the Client has been provided with an opportunity to independently verify the accuracy of that representation.

4. Growth Affect CRO’s Liability (other than that addressed in clause 11(a)), whether in contract, tort, statute or otherwise, to the other party or any third party concerning performance or non-performance by the party, or in any manner related to this Agreement, for all claims, is limited in the aggregate to an amount equal to the Fees paid by the Client to Growth Affect CRO over the 2 month period prior to the claim. 

5. Growth Affect CRO is not liable for any Third Party Software or equipment.

6. The exclusions and limitations of Liability in clauses 11(a) and 11(d) do not apply to Liability in relation to: 

1. personal injury, including sickness and death; 

2. loss of, or damage to, tangible property; or 

3. an infringement of Intellectual Property Rights; or

4. any fraudulent act or omission of a party or its Personnel.

12. Force majeure

1. Neither party is in breach of this Agreement or is liable to the other party for any loss incurred by that other party as a direct result of a party (Affected Party) failing or being prevented, hindered or delayed in the performance of its obligations under this Agreement where such prevention, hindrance or delay results from events, circumstances or causes beyond the Affected Party's control (Force Majeure Event).

2. If a Force Majeure Event occurs, the Affected Party must notify the other party (Non-affected Party) in writing as soon as practicable of the particulars of the Force Majeure Event and the anticipated delay.

3. On providing the notice in clause 12(b), the Affected Party will have the time for performance of the affected obligations extended for a period equivalent to the period during which performance has been delayed, hindered or prevented, however, the Affected Party must continue to use all reasonable endeavours to perform those obligations.

4. The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.

5. If the delay due to the Force Majeure Event continues for 30 days, the Non-affected Party may terminate this Agreement immediately on providing notice to the Affected Party.

13. Disputes 

1. Resolution of disputes 

1. Neither party may commence court proceedings or action against the other party under or in connection with this Agreement (Dispute) (other than where urgent interlocutory relief is required) unless it has first attempted to resolve the Dispute under this clause 13. 

2. Compliance with this clause is a condition precedent to the right of any party to commence litigation or arbitration arising from, or in connection with, the Dispute.

2. Dispute notice 

1. Either party may give the other a notice in writing (dispute notice) setting out the details of the Dispute. 

2. Within 5 Business Days after the date on which a party gives the other party a dispute notice (dispute notice date), representatives of the parties must meet and use reasonable endeavours to resolve the Dispute. 

3. Senior management representatives 

If the dispute is not resolved under clause 13.2, one or more senior management representatives of each of the parties must, within 10 Business Days after the dispute notice date, meet and use reasonable endeavours to resolve the Dispute.

4. Expert Determination 

1. This clause 13.4 applies if the Dispute is a Technical Dispute. 

2. If the Dispute is a Technical Dispute and is not resolved under clause 13.3 within 30 Business Days after the dispute notice date (or such other time as agreed between the parties), the Technical Dispute must be referred to expert determination according to this clause 13.4. 

3. The expert determination will be conducted in Brisbane in accordance with the Resolution Institute’s Expert Determination Rules operating at the time the Dispute is referred to the Resolution Institute and the terms of those rules are incorporated in this Agreement. 

4. The expert determination will be conducted by an independent expert agreed by the parties or, failing agreement, by the Queensland Chapter of the Resolution Institute. 

5. An expert determination conducted under this clause 13.4 is not an arbitration and the expert is not an arbitrator. The expert may reach a decision from his or her own knowledge and expertise. 

6. The expert determination is, in the absence of manifest error, final and binding on the parties. 

7. The expert’s fees are to be born equally by the parties.

5. Continued performance 

Notwithstanding the existence of a Dispute, each party will continue to perform its obligations under this Agreement to the extent practicable having regard to the nature of the Dispute, unless the parties agree otherwise in writing.

14. Termination for breach

1. Without limiting the remainder of this Agreement each party may terminate this Agreement immediately by notice in writing to the other party if the other party commits a material breach of this Agreement that is not capable of remedy or, where the breach is capable of remedy, the breach is not remedied within 30 days of notification by the terminating party. 

2. If notice is given to the Client pursuant to clause 14(a), Growth Affect CRO may, in addition to terminating this Agreement:

1. retain any moneys paid;

2. charge a reasonable sum for work performed in respect of which work no sum has been previously charged;

3. be regarded as discharged from any further obligations under this Agreement; and

4. pursue any additional or alternative remedies provided by law.

15. Service of Notices

1. Any notice, demand, consent, approval, request or other communication to be given under this Agreement (Notice) must be in writing and, unless this Agreement provides otherwise, in English.

2. A Notice must be given at the recipient’s Address for Service by being hand delivered, sent by email, sent by prepaid mail within Australia, or sent by prepaid Express Post International (or overseas equivalent) airmail if the sender and the recipient are in different countries.

3. A Notice is given if:

1. hand delivered, on the date of delivery;

2. sent by email and the sending party’s electronic equipment reports that the email has been sent:

1. before 5 pm on a Business Day, on that day;

2. after 5 pm on a Business Day, on the next Business Day after it is sent; or

3. on a day that it is not a Business Day, on the next Business Day after it is sent,

and the sender does not receive a delivery failure notice;

3. sent by prepaid mail within Australia, on the date that is two Business Days after the date of posting; or

4. sent by prepaid Express Post International (or overseas equivalent) airmail between countries, on the date that is 10 Business Days after the date of posting.

16. GST 

1. Words used in this clause that are defined in the GST Law have the meaning given in that legislation.

2. Unless otherwise specified, all amounts payable under this Agreement are exclusive of GST and must be calculated without regard to GST.

3. If a supply made under this Agreement is a taxable supply, the recipient of that taxable supply (Recipient) must, in addition to any other consideration, pay to the party making the taxable supply (Supplier) the amount of GST in respect of the supply.

4. The Recipient will only be required to pay an amount of GST to Growth Affect CRO if and when Growth Affect CRO provides a valid tax invoice to the Recipient in respect of the taxable supply.

5. If there is an adjustment to a taxable supply made under this Agreement, then Growth Affect CRO must provide an adjustment note to the Recipient.

6. The amount of a party’s entitlement under this Agreement to recovery or compensation for any of its costs, expenses or liabilities is reduced by the input tax credits to which that party is entitled in respect of those costs, expenses or liabilities.

17. General

1. Variation

This Agreement must not be varied except by a later written document executed by all parties.

2. Waiver

A right created by this Agreement cannot be waived except in writing signed by the party entitled to that right.  Delay by a party in exercising a right does not constitute a waiver of that right, nor will a waiver (either wholly or in part) by a party of a right operate as a subsequent waiver of the same right or of any other right of that party.

3. Assignment and subcontracting

1. The Client will not transfer or assign its rights under this Agreement without Growth Affect CRO’s prior written consent.

2. Growth Affect CRO may, without the consent of the Client, subcontract or assign any part of its obligations under this Agreement, including (without limitation) by engaging individuals on a sub-contract or consultancy basis, whether or not operating under a corporate structure, to assist in the provision of services pursuant to this Agreement.

4. Further assurances

Each party must promptly execute all documents and do every thing necessary or desirable to give full effect to the arrangements contained in this Agreement.

5. Benefit of the Services

The Services Growth Affect CRO provides to the Client is for the Client’s benefit only. The Services may not be relied on by another person.

6. Time for doing acts

1. If the time for doing any act or thing required to be done, or a notice period specified in this Agreement, expires on a day other than a Business Day, the time for doing that act or thing or the expiration of that notice period is extended until the following Business Day.

2. If any act or thing required to be done is done after 5 pm on the specified day, it is taken to have been done on the following Business Day.

7. Governing law and jurisdiction

The laws applicable in Queensland, Australia govern this Agreement. The parties submit to the non-exclusive jurisdiction of the courts of Queensland and any courts competent to hear appeals from those courts. 

8. Entire agreement

This Agreement constitutes the entire agreement between the parties regarding the matters set out in it and supersedes any prior representations, understandings or arrangements made between the parties, whether orally or in writing.

9. Relationship of parties

Unless otherwise stated, nothing in this Agreement creates a joint-venture, partnership, or the relationship of principal and agent, or employee and employer between the parties, and no party has the authority to bind any other party by any representation, declaration or admission, or to make any contract or commitment on behalf of any other party or to pledge any other party’s credit.

10. Non-exclusivity

Growth Affect CRO is free to enter into similar agreements with other persons.

11. Counterparts

This Agreement may be executed in any number of counterparts.  All counterparts taken together constitute one instrument. Delivery of this Agreement by email constitutes an effective mode of delivery. Signature of counterparts by way of electronic signature or DocuSign constitutes an effective acceptance of this Agreement.

12. Severance

If any clause or part of any clause is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal.  If this is not possible, the clause (or where possible, the offending part) is to be severed from this Agreement without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.

13. Preservation of existing rights

The expiration or termination of this Agreement does not affect any right that has accrued to a party before the expiration or termination date.

14. No merger

Any right or obligation of any party that is expressed to operate or have effect on or after the completion, expiration or termination of this Agreement for any reason, will not merge on the occurrence of that event but will remain in full force and effect.

15. General warranties

Each party warrants to each other party that:

1. this Agreement creates legal, valid and binding obligations, enforceable against the relevant party in accordance with its terms; and

2. unless otherwise stated, it has not entered into this Agreement in the capacity of trustee of any trust.

16. Power of attorney

If an attorney executes this Agreement on behalf of any party, the attorney declares that it has no notice of the revocation of that power of attorney.

17. Legal expenses

Each party must pay its own legal costs and disbursements in connection with the negotiation, preparation, execution and carrying into effect of this Agreement.

18. Definitions

In this Agreement:

Additional Hours means any number of additional hours performed by Growth Affect CRO beyond the Monthly Hours.

1. Additional Hours Hourly Rate means the Hourly Rate described in Schedule 1 at paragraph (a) applicable to any Additional Hours.

2. Address for Service means the address of each party appearing in the parties’ details or any new address notified by any party to all other parties as its new Address for Service.

3. Affected Party has the meaning given to that term in clause 12(a).

4. Agreement means this Agreement and its introduction, all clauses, schedules and Statements of Work (if any), as varied from time to time.

5. Business Day means a day that is not a Saturday, Sunday, public holiday or a bank holiday in Brisbane, Queensland.

6. Business Hours means between 9am and 5pm on a Business Day.

7. Change Request has the meaning given to it in clause 6(a).

8. Change Proposal has the meaning given to it in clause 6(b).

9. Confidential Information means:

1. all information (other than Excluded Information) provided by or on behalf of a party or any of its Representatives to the other party or any of its Representatives which relates to the management, business, assets, prospects or affairs of the disclosing party (including all past, current and prospective financial, accounting, legal, trading, marketing, technical and other information), is by its nature confidential, or the other party knows, or ought to know, is confidential; 

2. all other information of a confidential or proprietary nature directly or indirectly disclosed by or on behalf of a party or any of its Representatives to the other party or any of its Representatives including in connection with this Agreement; and 

3. any note, calculation, conclusion, summary, record or other material based on or derived or produced partly or wholly from, or incorporating any of, the information referred to in paragraphs (a) and (b),

regardless of the form of disclosure and whether or not in material form, but excluding Project Confidential Information; 

4. Information that may have been made available or obtained directly or indirectly, and before, on or after the date of this Agreement and includes:

1. information concerning the existence and terms of this Agreement, or any other agreement entered into in connection with this Agreement; and

2. information which is derived or produced wholly or partly from Confidential Information by or on behalf of the other party or any person to whom it has given access to Confidential Information.

10. Consequential Loss means: 

1. indirect or consequential loss not arising as a natural consequence of a breach or other event giving rise to Liability of a party; 

2. any loss of profits, loss of revenue, loss of any contract value, loss of anticipated profit or damages for lost opportunity; or 

3. loss of data. 

11. Deliverable means any deliverables to be supplied by Growth Affect CRO under this Agreement, as specified in the Statement of Work (if any) or as otherwise agreed in writing between the parties, as the case may be.

12. Dispute has the meaning given to it in clause 13.1.

13. Document includes:

1. any paper or other material on which there is writing;

2. any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;

3. any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device; 

4. a piece of text or text and graphics stored electronically as a file for manipulation by document processing software; and

5. electronic records.

14. Due Date means a target date for delivery of a Deliverable, as set out in the Statement of Work (if any) or as otherwise agreed in writing between the parties, as the case may be.

15. Excluded Information, in relation to potential Confidential Information of a party, means information that the other party can establish:

1. is in or enters the public domain through no fault of the other party or any of its Representatives; 

2. is or was made available to the other party by a person (other than the party) who is not or was not then under an obligation of confidence to the party in relation to that information; or

3. is or was developed by the other party without the recipient relying on, referring to or incorporating any of the Confidential Information. 

16. Force Majeure Event has the meaning given to that term in clause 12(a). 

17. GST means any form of goods and services tax payable under the GST Law. 

18. GST Law means has the same meaning as “GST Law” in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

19. Hourly Rate means the relevant hourly rate excluding GST described in Item 3 of Schedule 1.

20. Intellectual Property Rights means all intellectual property rights and Moral Rights, whether now existing or created on or before the date of this Agreement, including copyright and neighbouring rights, registered and unregistered trade and service marks, all rights in relation to inventions (including patents and patent applications), designs, confidential information, trade secrets, know how, research data, formulae, discoveries and any other intangible proprietary rights whether registered or not.

21. Level 1 Service means CRO agency work researching, prioritising, planning, designing, running AB tests, reporting

22. Level 2 Service means software engineer development work outside of scope e.g. pushing tests into a live production environment on the website or app or fixing issues identified.

23. Level 3 Service means consultancy.

24. Liability includes all liabilities or obligations (whether actual, contingent or prospective), losses, damages, costs, charges and expenses of whatever description irrespective of when the acts, events or things giving rise to the liability occurred.

25. Monthly Fee Estimate means the fee payable by the Client to Growth Affect CRO on a monthly basis as described in Schedule 1 paragraph Item 2.

26. Monthly Hours means the number of hours described in Schedule 1 paragraph Item 2.

27. Moral Rights means the rights conferred by Part IX of the Copyright Act 1968 (Cth) and including any similar rights existing or that may come to exist anywhere in the world.

28. New Material means all material that is created, written, developed or otherwise brought into existence by or on behalf of Growth Affect CRO for the Client in the course of Growth Affect CRO performing its obligations under this Agreement. New Material does not include Pre-Existing Material, nor any adaptation, translation or derivative of Pre-Existing Material. 

29. Non-affected Party has the meaning given to it in clause 12(b).

30. any services or products not described in the Services.

31. Out-of-Scope Services means any services or products not described in the Services, agreed to in writing by the parties, and charged at the Out-of-Scope Hourly Rate.

32. Out-of-Scope Services Hourly Rate means the Hourly Rate described in Item 3(b) of  Schedule 1 applicable to any Out-of-Scope Services. 

33. Personnel means officers, directors, employees, contractors, agents and other personnel within the relevant party’s employ and control.

34. Pre-Existing Material means all material and Intellectual Property Rights in existence as at the date of this Agreement or which is developed independently of this Agreement.

35. Premises means the Client’s site and/or premises (where relevant) as described in the Statement of Work (if any) or otherwise agreed in writing by the parties, as the case may be.

36. Representative means, in relation to a party, its Personnel, financial, corporate, legal, technical or other adviser or consultant who provides advisory services to that party; 

37. Services means the services described in Schedule 2 (if any) to be provided under this Agreement, including any Service Levels, and/or any services described in the Statement of Work (if any), as the case may be.

38. Service Levels means the aggregate of Level 1 Services, Level 2 Services, Level 1 Services, and Level 4 Services (if any).

39. Specifications means the requirements for the Services, comprising:

1. the requirements set out in Schedule 2 (if applicable) and the Statement of Work (if any) provided by Growth Affect CRO to the Client; and

2. any additional specifications (if any), once agreed in writing by the parties,

and to the extent of any inconsistency, an item later in the above list prevails over an earlier item.

40. Statement of Work means the statement of work (if any) provided by Growth Affect CRO to the Client governed by the terms of this Agreement.

41. Tax Invoice has the meaning given to it in clause 7(b).

42. Technical Dispute means a dispute involving issues of a technical nature which is capable of determination by reference to the Specifications, information or communications technology or scientific knowledge or practice.

43. Term has the meaning given to that term in clause 1(a).

44. Third-Party Software means any software as a service (including VWO) subscribed to by the Client, or used by Growth Affect CRO to provide the Services (including Microsoft Clarity and Google Analytics).

45. Total Monthly Fee means the total fee payable monthly by the Client to Growth Affect CRO as set out in Schedule 1 and the Statement of Work (if any), or otherwise agreed in writing by the parties), and calculated in accordance with Schedule 1 Item 1.

46. Virus means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise), or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.

19. Interpretation

In this Agreement, unless the context clearly indicates otherwise:

1. no rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it; 

2. a reference to this Agreement or another document means this Agreement or that other document and any document which varies, supplements, replaces, assigns or novates this Agreement or that other document;

3. a reference to legislation or a legislative provision includes any statutory modification, or substitution of that legislation or legislative provision and any subordinate legislation issued under that legislation or legislative provision;

4. a reference to the introduction, a clause, a schedule, Statements of Work or annexure is a reference to the introduction, a clause, a schedule, Statements of Work or an annexure to or of this Agreement;

5. this Agreement includes all schedules, Statements of Work and annexures to it;

6. clause headings and the table of contents are inserted for convenience only and do not form part of this Agreement;

7. a reference to a person includes a natural person, corporation, statutory corporation, partnership, the Crown or any other organisation or legal entity (including their personal representatives (natural person), successors and permitted assigns);

8. an obligation or warranty on the part of 2 or more persons binds them jointly and severally and an obligation or warranty in favour of 2 or more persons benefits them jointly and severally;

9. a requirement to do any thing includes a requirement to cause that thing to be done and a requirement not to do any thing includes a requirement to prevent that thing being done;

10. including and includes are not words of limitation;

11. a reference to a time is to that time in Queensland;

12. a word that is derived from a defined word has a corresponding meaning; and

13. a reference to a thing includes each part of that thing.

20. Construction

Neither this Agreement nor any part of it is to be construed against a party on the basis that the party or its lawyers were responsible for its drafting.

1. – Fee 

1. Total Fee

The Total Fee payable monthly by the Client to Growth Affect CRO amounts to :

1. The Quoted Fee Estimate; plus

2. any number of Additional Hours (if any); plus

3. the fee applicable to any Out-of-Scope Services.

2. Hourly Rates 

1. Additional Hours 

The cost for any Additional Hours performed beyond the Hours of Service will be charged at the Additional Hours Hourly Rate below plus GST. 

On each anniversary of the date of the execution of this Agreement, the hourly rate above will increase by 3%. 

2. Out-of-Scope Services 

If the Client asks Growth Affect CRO to complete Out-of-Scope Services beyond the Services described in Schedule 2, Growth Affect CRO will charge for the extra time spent at the charge out rates set out below (the ‘Out-of-Scope Hourly Rate’) unless otherwise agreed by the parties in writing.

On each anniversary of the date of the execution of this Agreement, the hourly rate above will increase by 3%. 

4. Factors affecting the Total Fee

The major factors that will affect the time spent performing the Services and the Total Fee are:

1. the number of meetings (in person or via online) and phone calls we have with the Client and others to progress the Client’s Services;

2. the emails Growth Affect CRO prepares for the Client and others in relation to the Services;

3. the number and complexity of the issues arising following consideration of the Client’s instructions; and

4. the Client’s instructions and the Services Growth Affect CRO is required to complete to carry out those instructions (including Research activities, Analysis, Strategic Planning, Design, Development, AB testing, Reporting.

 

2. – Services

During the Term, Growth Affect CRO will provide the Services described in this Schedule.

1. Services tiering

The parties’ general responsibilities for Service tiers are as follows:

1. CRO agency work 

1. Researching

1. Conducting and running quantitative and qualitative research and analysis.

2. Prioritising

1. Creating a prioritised roadmap for AB testing.

3. Planning, 

1. Managing the team and other supplier to enable execution of the testing roadmap.

4. Designing

1. Low-fi designs to enable the approximate visualisation of each test

2. Hi-fi designs of each test (as necessary) with development ready designs.  

5. Development

1. Coding/developing designs into the correct format to enable them to run on an AB testing platform. 

2. Testing and UAT to ensure the performance of the code prior to pushing live in to the testing environment

6. Running AB tests

1. Pre-live checks

2. Setting up reporting

3. Pushing live in to AB testing environment

4. Monitoring the test and adjusting traffic and variations

5. Stopping a test at the appropriate time based on the reported metrics

7. Reporting

1. On conclusion of AB testing, reporting on the agreed metrics

2. Recommending implementation or not.

3. Re-prioritising next tests based on results 

3. Excluded services

Services do not include:

1. Software engineer development work outside of AB testing scope e.g. pushing tests into a live production environment on the website or app or fixing issues identified.

2. Copywriting beyond minor copy updates such as button labels or banners. Client will need to supply copy when and if needed.