Welcome to the Cm3 web site www.cm3.com.au (the Site) owned and operated by Greencap Pty Ltd ACN 006 318 010 (Greencap). This agreement contains the terms, conditions and provisions (Terms and Conditions) upon which you (you, or the User) may access and use the Site.
1. Terms and Conditions
By using the contractor management service offered by Cm3, you agree to be bound by all of the following Terms and Conditions. These Terms and Conditions may be modified and amended by Greencap at any time without prior notice to you. Greencap will provide notifications of any amendments and or additions on the Site or by email. You agree that, on and from the date of any modification or amendment to these Terms and Conditions, you will be bound by the modified or amended Terms and Conditions. Your use of this Site constitutes acceptance of these Terms and Conditions, which apply to the exclusion of any inconsistent terms and conditions which may appear on any other documentation or correspondence between Greencap and you. You agree not to attempt to connect to the Site, or to view any of the Site if you do not agree to the terms of these Terms and Conditions.
2. Password Policy
Your use of certain portions of this Site requires the authentication of your identity through the provision of a user ID and password. As part of your registration process you will select a User ID (‘Name’) and password (‘Password’). (The Name and Password are hereafter referred to as ‘User Codes’). The User Codes are for your personal use only. You are responsible for the confidentiality of the User Codes, and agree not to provide them to any third party. You are responsible for all statements made and acts or omissions that occur while your User Codes are being used. Greencap is not responsible for any breach of security caused by your failure to maintain the confidentiality of your User Codes nor is it under the duty to enquire as to the authority or propriety of any instructions given to it by you or under your authentication. You agree to notify Greencap immediately in the event of loss or theft of any or all of your User Codes, or if you believe the confidentiality of any or all of your User Codes has been compromised in any way, or in the event of your learning about a possible or actual unauthorised use of the Site. Greencap reserves the right to revoke your User Codes or change or alter User Codes at any time without prior notice.
3. Account Access/Account Number
You understand that your use of the Site may involve the transmission to and from you of information that may be considered personal and/or financial information. You consent to the transmission by electronic means of such information through the Site, and such consent will be effective at all times that you use the Site. You understand that your account information is current as of the date indicated and is not a definitive statement of our account. A unique account number and Cm3 prequalification number will be assigned to you by the Site. You understand and agree that upon the termination of your account for any reason the Cm3 account number and prequalification number will also be terminated by Greencap.
4. Provision of Information
When you provide information to Greencap through the Site, you agree to provide true, accurate, current and complete information about yourself and your contracted activities to Greencap and to all current and future end users of the Cm3 system. You will also agree not to impersonate any person or entity, misrepresent any affiliation with another person, entity or association, or conceal your identity from Greencap for any purpose. In connection with your use of the Site, you acknowledge and consent to the taping or any form of electronic recording of any communication, electronic or otherwise, between you and Greencap or their representatives or agents. You acknowledge and consent to the recording, retention and use by Greencap and its employees, representatives and agents) of all information and data that you input during your use of the Site, including without limitation, all selections and uses of tools included therein.
5. Updating Your Details
Greencap is entitled to rely on the email address and mail address that you last provided to us. You agree to waive all claims resulting from failure to receive communications because of any inadvertent failure by Greencap to give or disclose to you any communications or because of any changes to your email or mail address which have not been communicated via updating your details on the Site.
6. Intellectual Property Rights
Greencap (or where applicable, any other party) is the sole proprietor of all intellectual property embodied in or connected to the Site (Intellectual Property). The Site and all its related content such as photos and videos are subject to copyright. All material on the Site is protected by copyright under the laws of Australia and protected internationally under those laws.
Greencap retains all rights, title and interest in and to the Site (including all text, graphics, logos, button icons, video images, photos, writings and software) and all related content. Nothing you do on or in relation to the Site will transfer any Intellectual Property rights to you or anyone else.
Except as expressly authorised, the use of any material on the Site (including modification, reproduction, republication, distribution, display or communication of any kind) is strictly prohibited.
You must not broadcast, publish or republish, up-load to a third party, transmit, post, show or play in public, distribute or otherwise reproduce in any format, adapt or change, alter, reverse engineer, modify, translate, decompile, disassemble or create derivative works of Intellectual Property and/or content supplied by or accessible from the Site and/or the content without our prior written consent.
7. Compliance with Applicable Laws
Users access to this Site is governed by all applicable State and Commonwealth laws.
7.1 Code of Conduct
You agree not to do any of the following:
- Breach or wilfully attempt to breach any of the Terms and Conditions.
- Restrict or inhibit any other authorised user from using and enjoying the Site. This includes without limitations: (a) using, or attempting to use, any account without the owners permission, or (b) obtaining or soliciting another persons password or other personnel information under false pretences.
- Interfere (or attempt to interfere) with the operation of the Site. This includes, without limitation, interfering with, defeating, or circumventing any security function of the Site, or attempting to do so.
- Post, store, or transmit any knowingly inaccurate or misleading personal or financial information.
- Post, store or transmit any unlawful, threatening, defamatory, obscene, inflammatory, pornographic, profane or otherwise objectionable (as determined by Greencap) information or material.
- Post, store or transmit any information or material that could constitute or encourage conduct that would be considered a criminal offence, gives rise to civil liability or otherwise violate any law.
- Use the Site to post, store or transmit any information or software that contains a virus, worm, Trojan horse, or other harmful or disruptive component.
- Use the Site to post, store, or transmit materials in violation of another parties copyright or other intellectual property rights. You are solely responsible for determining whether any material you post, store or transmit is subject to a third parties rights.
- Use of the Site for any unlawful purpose.
- Modify, adapt, sublicense, translate, resell, retransmit, reverse engineer, decompile, or disassemble any portion of the Site.
7.2 Assumption of Risk
Use of the Internet and this Site is solely at your own risk and is subject to all applicable State, Commonwealth, International laws and regulations. While Greencap endeavours to provide a secure and reliable Site, please be advised that the confidentiality of any communication or material transmitted to/from this Site over the Internet cannot be guaranteed. Accordingly, Greencap and its employees, agents, directors, officers, proprietors, partners, representatives, shareholders, servants, attorneys, predecessors, successors and assigns (Greencap Group) are not responsible nor are they liable for any damages, costs or any other loss that you may incur (directly or indirectly) as a result of the security (or lack thereof) of the information transmitted via the internet. The User assumes sole and complete risk for using the Site and must make his or her own determination as to these matters.
Greencap will use reasonable precautions to maintain the confidentiality of the information you have provided to Greencap and information you have created, input or developed in connection with your use of the Site, but because such information can be accessed through the Internet, you hereby acknowledge and agree that there can be no assurance that any information provided by you through the Site, or any communication through E-mail will remain secure.
To the extent that any information you provide, or that is collected by Greencap, is personal information for the purposes of the Privacy Act 1988 (Cth) (as amended from time to time) and the Australian Privacy Principles, you agree and consent that your personal information can be collected, held, disclosed or otherwise used for any purpose, or in any other manner, permitted under the Privacy Act 1988 (Cth) and/or Australian Privacy Principles.
a) Assessment of your capability in relation to Health and Safety requirements.
b) For any purpose related to the conduct of Greencap’s business or to the offering, providing or maintaining of the Site and confirming that your health and safety capability has been assessed by Greencap. order to give information to any government agency or official requesting such information.
Further, you acknowledge that your personal information (and other relevant information) will be disclosed to organisations who may seek to use your services (and who may contact you in this regard), and to Greencap’s employees, representatives, officers, agents, and affiliates.
To the maximum extent permitted by law, you release and Indemnify Greencap Group from and against any improper use or disclosure, of the information so submitted to such organisations.
7.3 Law Enforcement
Greencap reserves the right to view, monitor and record activity on the Site without notice or permission from you. Any information obtained by monitoring, reviewing or recording is subject to review by law enforcement organisations in connection with investigation or prosecution of possible criminal activity on the Site. Greencap will also comply with all court orders and all compellable requests from regulatory or statutory bodies with respect to requests for such information.
8. Limitation of Liability
a) Greencap Group accepts no responsibility or liability in relation to the information or documents uploaded by you or your representatives on the Site including information or documents created by third parties. You represent and warrant to Greencap that you have the requisite authority and permission to upload such information and documents onto the Site and that you are not in breach of any intellectual property rights or confidentiality obligations in respect of the information and documents uploaded onto the Site. You indemnify Greencap Group in respect of any claim by third parties in respect of the information or documents uploaded by you onto the Site including but not limited to any claims for breach of intellectual property or breach of confidentiality.
b) The accuracy, completeness, sequence or timeliness of the information cannot be guaranteed. Greencap Group and organisations to whom the information may be submitted will not, to the maximum extent permitted by law, have any responsibility or liability (whether in contract, tort (including but not limited to negligence), in equity, product liability or under statute) for direct, indirect, consequential, special, or other damages you incur for any reliance by you on information or for the reliability, accuracy, completeness, sequence or timeliness thereof, or for any delays or errors in the transmission or delivery of any part of the information or Site.
c) Except as expressly set forth in these Terms and Conditions and to the maximum extent permitted by law, Greencap Group hereby expressly disclaims all express and implied warranties in relation to the Site. To the extent permitted by law, Greencap Group does not warrant, guarantee or make any representations or warranties whatsoever, express or implied, or assume any liability to you regarding (i) the use or the results of the use of the Site, including without limitation any securing of contracts from organisations to whom the information is submitted, results based on use of the Site or information or any delay or loss of use of the Site, or (ii) system performance and effects on or damages to software and hardware in connection with any use of the Site.
d) In addition to and without limiting the foregoing, Greencap Group will not be liable for any harm caused by the transmission, through the Site, of a computer virus, or other computer code or programming device that might be used to access, modify, delete, damage, corrupt, deactivate, disable, disrupt, or otherwise impede in any manner the operation of the services or any of your software, hardware, data or property.
e) In addition to and without limiting the foregoing, Greencap Group makes no representation and assumes no liability regarding the quality, safety, accuracy, or suitability of any information or software found on any other site not under Greencap’s control.
f) To the extent permitted by law, Greencap Group will have no liability for losses caused by the negligence, actions or failure to act of any third party.
g)To the maximum extent permitted by law:
(i) Greencap Group will not be liable (whether in contract, tort (including, but not limited to negligence), in equity, under statute or any other basis in law) for any loss of profit, loss of revenue, loss of contract, business interruption, loss of data, loss of production or any indirect, special, incidental or consequential damages (regardless of whether such damages are reasonably foreseeable) in each case, however caused, or for any loss that results from a cause over which Greencap Group or any other such entity does not have control, including but not limited to failure of electronic or mechanical equipment, unauthorised access, provision by you of incorrect or misleading information, strikes, failures of common carrier or utility systems, severe weather, or other causes commonly known as ‘Acts of God’; and
(ii) Greencap Groups maximum cumulative liability in each calendar year for any loss or damage whatsoever which arises under or in connection with these Terms and Conditions or the use of the Site, (whether in contract, tort (including, but not limited to negligence), in equity, under statute or any other basis in law), is limited to the value of the Fees paid by you to Greencap in connection with your access to the Site in the corresponding calendar year.
h) The Competition and Consumer Act 2010 (Cth) guarantees certain conditions, warranties and undertakings, and give you other legal rights, in relation to the quality and fitness for purpose of consumer goods or services sold in Australia. These guarantees cannot be modified nor excluded by any contract. Nothing in these Terms and Conditions purports to modify or exclude the conditions, warranties, guarantees and undertakings, and other legal rights, under the Competition and Consumer Act 2010 (Cth) and other laws which cannot be modified or excluded. Except as expressly set out in this Agreement and the Competition and Consumer Act 2010 (Cth), Greencap Group makes no warranties or other representations under these Terms and Conditions. Greencap Groups liability in respect of these warranties, representations, undertakings and guarantees is limited to the fullest extent permitted by law.
i) Without limiting paragraph (h), where you are purchasing access to the Site as a Consumer (as defined in the Competition and Consumer Act 2010 (Cth)), then the Competition and Consumer Act 2010 (Cth) provides certain guarantees in relation to those goods/services. Your rights buying goods/services as a Consumer include those set out in paragraph (j) below.
j) Our goods/services come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods/services repaired or replaced if the goods/services fail to be of acceptable quality and the failure does not amount to a major failure.
k) To the extent permitted by statute, the liability, if any, of Greencap Group arising from the breach of any implied conditions or warranties, or failure to comply with a statutory guarantee under the Australian Consumer Law, in relation to the supply of goods or services other than goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption, shall at Greencap’s option be limited to: (i) the re-supply or re-performance of the goods or services, or refund of the fees paid in respect of those goods or services.
9. Links to Other Sites
The Site may contain links to other websites of third parties (external sites). Greencap is not required to maintain or update the links. If you decide to access any external sites, you do so at your own risk. Links to external sites should not be construed as any endorsement, approval, recommendation or preference by Greencap of the owners or operators of external sites. Greencap Group has no control over and will accept no responsibility or liability in respect of the material (including, but not limited to any express or implied representations, imputations or other content) on any external sites.
Greencap may terminate your account with or without cause at any time. Grounds for termination include, but are not limited to, failure to pay the fees, lack of use, or any violation of these Terms of Conditions. Greencap may, but is not bound to, provide reasons for terminating your account. Once your account is terminated, your right to use the Site ceases. Greencap will have no obligation to maintain any content in your account or to forward any unread or unsent messages to you or any third party.
You agree to pay all fees for your use of the Site. All fees will be inclusive of GST where applicable, or as required by law. Greencap reserves the right to change the fees at any time upon not less the thirty (30) days notice to Users. Greencap will provide notifications of any changes on the Site or by email.
Payment of the account balance is due at the time of Site registration and annually on the anniversary date of registration. Payment is due within 30 days of the applicable anniversary date. In the event the payment is not received within 30 days, your Cm3 registration will be cancelled.
The User has 45 days from the date of registration to complete the initial Cm3 Risk Review. If the User is unsuccessful with achieving Cm3 Prequalification with its initial Cm3 Risk Review, the User will be allocated an additional 45 days to achieve Cm3 Prequalification. In the event the User does not complete the Cm3 Risk Review and achieve Cm3 Prequalification within the first 90 days of payment, the User will be automatically be deemed not prequalified and will need to pay an additional Cm3 annual fee to achieve Cm3 prequalification.
The annual fee is completely non-refundable. (For the avoidance of doubt, this will include the case where a User’s account is terminated under these Terms and Conditions). The payment method is by credit card. Your credit card issuers agreement governs the use of your designated card and you must refer to such agreement (not these Terms and Conditions) with respect to your rights and liabilities as a cardholder.
Greencap reserves the right to suspend or terminate your Site account without notice for non-payment by you or upon the rejection of any credit card charges or if your card issuer (or its agent or affiliate) seeks return of payments previously made to the Site.
You represent and warrant that you have the requisite capacity and are legally entitled to use the credit card (being the credit card which is used to make payment) to make payment under this clause. You agree and acknowledge that, to the maximum extent permitted by law, Greencap is not bound nor does it have any duty to enquire as to your capacity or legal entitlement or ability with respect to using the credit card to make payment under this clause.
13. Cm3 Prequalification
In order for the User to receive Cm3 prequalification, the information the User provides in The Business Risk Profile and Cm3 Risk Review will be reviewed by a Cm3 Assessor. You warrant all information supplied by you will be true and accurate and not subject to any limitation whatsoever. Cm3 prequalification will only be for the risks the User has identified as part of their Business Risk Profile. The User will be allocated two attempts (an initial submission and one additional submission) to achieve Cm3 prequalification. The Cm3 Assessor will provide feedback in response to evidence provided. If after the second attempt the User is still unsuccessful in achieving Cm3 prequalification, the Cm3 Assessor will provide examples of means to assist in achieving prequalification, such as seeking an WHS specialist. If the User has not responded within 45 days, the User will be automatically deemed not prequalified. It is the User’s responsibility to seek its own means of achieving Cm3 prequalification.
Cm3 prequalification does not remove your statutory responsibilities under occupational health and safety legislation and does not mean you are necessarily in compliance with all relevant laws. If in doubt, you should obtain independent advice with respect to your compliance obligations and responsibilities under occupational health and safety laws.
By seeking and/or obtaining Cm3 prequalification, the User irrevocably consents to:
(i) all documents, information and materials provided for upload to the Site (User Information) being disclosed to any organisations using the Cm3 system, whether presently or in the future (End Users); and
(ii) all User Information continuing to be made available to, or retained by, End Users in perpetuity (including after you cease using the Site or otherwise ceasing to be prequalified in the Cm3 system).
14. Disclosure of Information
The User must notify Greencap immediately or no later than 10 days after becoming aware of any additional information that may have bearing on the application or Cm3 prequalification, including:
- Details of enforcement action, including statutory notices, and or prosecutions.
- Common Law action associated with health and safety.
- Major OHS accidents.
- Changes to insurance policies such as withdrawal or cancellations.
- Any other information that may affect your application or Cm3 prequalification. Greencap reserves the right to modify, adjust or cancel Cm3 prequalification upon the receipt of additional information from whatever source. You acknowledge, agree and consent that Greencap may disclose the reasons for cancellation to its clients.
You represent and warrant that you are at least 18 years of age and that you possess legal right and ability to enter into these Terms and Conditions. You represent and warrant that all of the information provided by you during the registration process is true and accurate and correct. These Terms and Conditions take effect from the date when you click the continue button during the registration process. The Terms and Conditions will remain operative until either you or Greencap terminate your use of the Site.
You hereby indemnify and hold harmless Greencap Group, and any third party provider from and against any and all claims, losses, liabilities, damages, costs and expenses (including legal fees and costs on a solicitor own client basis ) arising out of or related to your breach of these Terms and Conditions, representations and warranties contained in these Terms and Conditions or your use of the Site (i) in violation of these Terms and Conditions, (ii) in violation of rights of Greencap, and any third party information provider, including copyright, patent, trade secret, trademark, or other Intellectual Property rights and publicity and privacy rights, or (iii) in violation of any applicable law, rule or regulation, or (iv) your failure to maintain the security of your User Codes as applicable in accordance with these Terms and Conditions (iv) your failure to provide true and correct and accurate information upon which any assessment and representation is made by Greencap to organisations that you have satisfactorily complied with Greencap’s assessment as to your suitability as a contractor in having met all processes to safely conduct your work.
You hereby indemnity and hold harmless Greencap Group in respect of all claims, losses, damages, costs and expenses (including legal fees and costs on a solicitor own client basis) or liabilities whatsoever suffered and howsoever incurred by you as a direct or indirect consequence of any wilful, illegal or negligent act or omission committed by you or by another person at your request or your accessing or using on the Site or your use of or reliance on the content available or accessible from the Site. This indemnification will be binding upon you and your executors, heirs, successors and assigns.
a) These Terms and Conditions represent the complete and exclusive statement of the agreement and understanding between you and Greencap regarding your rights to access and use the Site and information on the Site, and supersedes all prior and contemporaneous agreements and representations regarding such subject matter. Except as herein provided, no waiver, modification or amendment of any provision of These Terms and Conditions will be effective against Greencap unless the same is in writing and signed by an authorised official of Greencap. Should any term or provision of these Terms and Conditions be deemed or held to be invalid or unenforceable, the remaining terms and provisions will continue in full force and effect
b) Greencap’s failure to insist at any time upon strict compliance with any term of these Terms and Conditions, or any delay or failure on Greencap’s part to exercise any power or right given to Greencap in these Terms and Conditions, or a continued course of such conduct on Greencap’s part will at no time operate as a waiver of such power or right, nor will any single or partial exercise preclude any other future exercise. All rights and remedies given to Greencap in these Terms and Conditions are cumulative and not exclusive of any other rights or remedies which Greencap otherwise has at law or equity.
c) These Terms and Conditions are governed by the laws in force in the State of Victoria (other than the conflict of laws rules) and the parties submit to the non- exclusive jurisdiction of the courts of the State of Victoria, Australia in respect of any action that arises under these Terms and Conditions.
These Terms and Conditions and your rights and obligations hereunder may not be assigned by you without the written permission of Greencap and will transfer to the benefit of Greencap’s successors and assigns whether by merger, consolidation or otherwise. Greencap may assign these Terms and Conditions or any of its rights or obligations under these Terms and Conditions to a company affiliated with, or a successor to or assignee of, Greencap, or to any other third party.
These Terms and Conditions may be modified and amended by Greencap at any time without prior notice to you. Greencap will provide notifications of any amendments and or additions on the Site or by email. You agree that, on and from the date of any modification or amendment to these Terms and Conditions, you will be bound by the modified or amended Terms and Conditions.