Service Level Agreement
This Agreement governs the terms under which Cm3 provides the Product to the Client and upon which the Client may use the Product as Clients of Cm3. Permission to use the Product is conditional upon the Client agreeing to the terms set out below. Acceptance shall bind the Client and all employees of the Client to the terms of the licence contained in this Agreement. Unless otherwise agree in writing, these Terms will apply to the exclusion of any inconsistent terms and conditions which may appear on any other document issued by the client. These Terms will apply to any variations to the scope of the Product which may be agreed in writing by the parties and to any supplementary services which may be agreed in writing by the parties. The Client will be deemed to have accepted these Terms when the Client signs the Agreement (where indicated) or when Cm3 commences the services at the request (written or otherwise) of the Client.
1.1. ‘Client Licence’ means the licence granted by Cm3 to the Client and the contractors of the Client to access the Product pursuant to clause 2 of this Agreement.
1.2. ‘Confidential Information’ includes Client data and information that is by its nature confidential but does not include:
1.2.1. information already known to the receiving party at the time of disclosure by the other party; or
1.2.2. information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this Agreement.
1.3. ‘Consequential Loss’ means any loss of opportunity, loss or anticipated loss or revenue or profits, loss of production, loss of contract, loss arising from business interruption, loss of goodwill or indirect, consequential, special, punitive or exemplary loss or damage incurred or suffered by a party, or any other person;
1.4. ‘Client’ means a Client of Cm3, being the company, person or other entity named above.
1.5. ‘Customisation’ Means any changes to the Product functionality specifically requested by the Client for the individualised use of the contractors of the Client named above.
1.6. ‘Client Data’ means all information and data supplied by the Client or the contractors of the Client to Cm3 for use in conjunction with the Product.
1.7. ‘Documentation’ means all hard copy and web-based information included in the website relating to the Product including user manual and update information included with each Product release.
1.8. “Fee” means the licence and user charges that applicable to the Client’s use of the services subject to this Agreement including but not limited to user fees, implementation fees and development and customisation fees.
1.9. ‘Flat File’ means the format in which the Client contractor’s data will be stored and forwarded to the Client upon written request by the Client after termination of this Agreement.
1.10. ‘Intellectual Property’ means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields.
1.11. ‘Licence’ means the licence granted under clause 2.1 of this Agreement.
1.12. ‘Loss’ means any loss, damage, liability, cost or expense.
1.13. ‘Product’ means one, any, or all of the following:
1.13.1 the software known as “Cm3”; and
1.13.2 any upgrades to the software delivered to the Client
1.14. ‘Related Bodies Corporate’ has the same meaning as in the Corporations Act 2001 (Cth).
1.15. ‘Term’ means the period commencing on the date of signing this Agreement by the Client and termination of this Agreement in accordance with clause 10.
1.16. ‘Upgrade’ means software which has been produced primarily to improve or overcome defects in the Product without diminishing or compromising the functionality of the Product.
1.17. ‘Website Terms and Conditions’ means the terms and conditions displayed on the website on which the Product is accessible.
2. LICENCE AND PAYMENT
2.1. Upon payment of the Fees Cm3 grants to the Client a non-exclusive licence for the Term to access and use the Product in accordance with the terms of this Agreement and the Website Terms and Conditions.
2.2. The Client shall not use the Product until this Agreement has been signed by the Client and provided to Cm3
2.3. Cm3 shall disable or disconnect access of the Client to the services if payment of any valid tax invoice for Fees is not paid within thirty (30) days of the date of invoice (the payment terms).
2.4. Failure to pay a valid tax invoice within the payment terms is considered a terminating event for the purpose if this Agreement
2.5. Cm3 may review price on an annual basis, considering any reasonable change in costs in providing the services. Cm3 will provide the Client with 60 days’ notice of any price review which will be applied to the Agreement.
3.1. In the event of an Upgrade or Product exchange, the Client Licence hereby granted shall automatically transfer to the new version or Product Upgrade.
4.1. The Client agrees to pay for any fees associated with the Customisation of the Product, including the revision of any Client specific Product guides. Cm3 will provide a fee proposal that must be approved by the Client prior to Cm3 commencing any Customisation of the Product.
5. TERM OF THE LICENCE
5.1. The Client Licence granted under this Agreement commences on the date that Cm3 allows the Client to access the Product and continues for the Term.
6. INTELLECTUAL PROPERTY & CONFIDENTIAL INFORMATION
6.1. The Client acknowledges and agrees that all copyright and Intellectual Property in the Product and Documentation and any enhancements or upgrades to the Product is owned by Cm3 and the Client shall not during the Term or at any time after the expiry or termination of this Agreement do, or permit to be done, any act which infringes Cm3’s copyright or Intellectual Property.
6.2. The Documentation may only be reproduced for internal use of the Product by the Client.
6.3. Each party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
6.4. A party will not be in breach of clause 6.3 in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
6.5. Each party will ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other party’s Confidential Information.
6.6. Notwithstanding any other provision of this clause, a party may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related Bodies Corporate, solicitors, auditors, insurers and accountants or otherwise required by law.
6.7. This clause will survive the termination of this Agreement.
7. CLIENT OBLIGATIONS
7.1 The Client undertakes the following obligations:
7.1.1 to use and control the use of the Product or any part of it strictly in accordance with the provisions of this Agreement;
7.1.2 to not reverse engineer, reverse compile, decompile, translate, adapt, vary or modify the Product;
7.1.3 to not copy or reproduce the Product or any part of it, except as would reasonably be expected in the ordinary course of the Client’s business and as expressly authorised by this Agreement;
7.1.4 to ensure that the Product is used only by the employees of the Client or third parties approved by Cm3 and that the Product or any part of it is not made available in any form to any other person without the prior written consent of Cm3; and
7.1.5 to ensure that the Client’s employees who have authorised access to the Product or any part of it are made aware of the terms of this Agreement.
7.2 The Client acknowledges and agrees that reproduction by any means of any part of the Product for distribution or supply to users other than the Client and its employees is a breach of this Agreement unless Cm3 has provided its written consent.
7.3 The Client must apply whatever virus protection measures it considers appropriate and acknowledges that Cm3 will not be responsible for any damage or loss caused by any virus introduced by the Client or contractors of the Client in the Product.
7.4 Subject to clause 14.1, the Client acknowledges that the Product cannot be guaranteed to be error free and further acknowledges that the existence of any such errors shall not constitute a breach of this Agreement by Cm3. However, in the unlikely event that errors in the Product occur as a result of any conduct or omission by Cm3, Cm3 will use reasonable endeavours to rectify the error as soon as practicable.
8.1. Cm3 is liable for and must indemnify the Client in respect of any Loss which the Client may suffer or incur arising out of or in connection with:
8.1.1 any breach of this Agreement by Cm3;
8.1.2 any negligent act or omission of Cm3; or
8.1.3 any breach of law by Cm3.
8.2. The Client is liable for and must indemnify Cm3 in respect of any Loss which Cm3 may suffer or incur arising out of or in connection with:
8.2.1 any breach of this Agreement by the Client;
8.2.2 any negligent act or omission of the Client, including but not limited to the misuse or negligent use of the Product; or
8.2.3 any breach of law by the Client
8.3. The liability of either party to indemnify the other party (“Indemnified Party”) will be reduced proportionately to the extent that any:
8.3.1 breach of this Agreement;
8.3.2 negligent act or omission; or
8.3.3 breach of law on the part of the Indemnified Party, their employees, agents, Personnel or any other person in connection with this Agreement contributed to the relevant Loss.
8.4. Notwithstanding any other provision of this Agreement, to the extent permitted by law, neither party is liable to the other party or to any other person in contract, tort (including but not limited to negligence), equity, product liability, under any warranty or indemnity, by operation of statute or otherwise for any kind of loss of opportunity, loss of revenue, loss of profit or anticipated profit, loss of contract, loss of goodwill, loss arising from business interruption or indirect or consequential loss or damage.
8.5. Notwithstanding any other provision of this Agreement, to the extent permitted by law, Cm3’s total aggregate liability (however such liability arises, including for breach of contract or negligence) will be limited to the value of the Fees paid by the Client under this Agreement.
8.6. Cm3 will:
8.6.1 Effect and maintain Public and Products Liability for the amount of $20 million dollars and Professional Indemnity Insurance for the amount of $10 million dollars with a reputable insurer during the Term and in respect of Professional Indemnity Insurance for a period of 6 years thereafter; and
8.6.2 Provide the Client certificates of currency for the insurance policies at any time upon written request of the Client.
9. CM3 WARRANTIES
9.1 Cm3 represents and warrants to the Client that:
9.1.1 it has and will maintain all licences, registrations, permits or approvals necessary or advisable for its performance of its obligations under this Agreement, including the supply and operation of the Product and all activities out on or via the Product in connection with this Agreement; and
9.1.2 the Client’s use, possession or receipt of the Product and any Documentation, in accordance with the terms and conditions of this Agreement will not infringe the Intellectual Property rights, or any other rights, of any third party; and
9.1.3 will perform its obligations under this Agreement with due care and skill, using suitably qualified and competent personnel.
10.1. Either party may terminate this Agreement for convenience by giving thirty (30) days’ written notice to the other party.
10.2. For the purposes of this Agreement, the following are terminating events:
10.2.1 breach by either party of any of its material obligations under this Agreement;
10.2.2 the appointment of any type of insolvency administrator in respect of either party, or any similar scheme or arrangement;
10.2.3 the permanent discontinuance of use of the software or any part of the Product by the Client; or
10.2.4 any other event described in this Agreement as a terminating event.
10.3. If a terminating event is one specified in clause 10.2, the affected party shall give to the other party written notice of the happening of that event and require the breach to be remedied or a written undertaking to be given that the breach will not occur, as the case may be. If the breach is not remedied or undertaking not given (as the case may be) within fourteen (14) days, the affected party may either;
10.3.1 agree to waive its rights under this clause if satisfied that the happening of the terminating event has not in any way prejudiced its position under this Agreement; or
10.3.2 terminate this Agreement by serving a further notice on the other party either immediately or on the date specified in the further notice in the absolute discretion of the affected party.
10.4. The termination or expiry of this Agreement will result in the automatic termination of the Client Licence.
10.5. Neither party shall be liable for the consequences of an occurrence of any event beyond its reasonable control.
10.6. Any termination of this Agreement shall not affect any accrued rights, remedies, indemnity or liabilities of either party, nor shall it affect any provision of this Agreement which is expressly or by implication intended to continue in force after such termination.
11. CLIENT’S CONTRACTOR DATA
11.1. Upon termination of this Agreement by either party, the Client may request in writing to Cm3 to be provided with the Client contractor data in Flat File format, stored in Cm3’s database.
11.2. Cm3 will use reasonable endeavours to meet the requirements of clause 11.1 in a timely manner upon written request by the Client.
11.3. Cm3 acknowledges and agrees that, the Client contractor data is and will remain the property of the Client at all times.
11.4. Except as required by law, Cm3 must:
11.4.1 not, and must ensure that its employees will not sell, commercially exploit, let for hire, or assign rights in any of the Client contractor data; and
11.4.2 not make any Client contractor data available to a third party other than an approved subcontractor and then only to the extent necessary to enable the subcontractor to perform its part of Cm3’s obligations under this Agreement.
11.4.3 subject to clause 11.4.2, the Client grants Cm3 a non-exclusive, royalty free, irrevocable licence to retain a copy and use the Client contractor data for its own purposes including but not limited to statistical data collection.
The parties agree with respect to all information made available or provided by the other Party at any time in connection with the performance of this Agreement which comprises personal information with the meaning of the Privacy Act 1988 (Cth) or any similar legislation applicable from time to time:
12.1 to comply with and ensure compliance with those provision of the Privacy Act as if it were an agency bound by that Act concerning the security, use and disclosure of information to which a Party is subject in respect of that information and which affects the Services or any similar legislation applicable from time to time;
12.2 to comply with Cm3’s privacy statement;
12.3 to implement appropriate security measures to ensure that personal information held in connection with this Agreement is protected against loss and against unauthorised access, use, modification, disclosure or other misuse;
12.4 to refrain from transmitting personal information to a jurisdiction outside Australia without the prior express consent of Cm3 (which consent to be granted or withheld at Cm3’s sole discretion)
12.5 to remain subject to the mandatory reporting requirements of the Notifiable Data Breach (NDB) scheme in Part IIIC of the Privacy Act 1988 (Cth) that requires entities to notify affected individuals and the Australian Information Commissioner if personal information is involved in an intentional or unintentional eligible data breach that is likely to result in serious harm. The NDB scheme only applies to personal information that is already subject to security requirements under the Privacy Act.
13. ACCESS RIGHTS
13.1 The Client must, upon reasonable written notice, permit Cm3’s auditors or other professional, government or statutory representative’s access to the Client’s premises, books, records, documents, reports, findings, equipment and other property relevant to the performance of this Agreement.
13.2 Such access includes, but is not limited to, access for the purposes of liaison, reporting and inspection and for verification of compliance by either party with its obligations under this Agreement and its likely capacity to continue to comply with its obligations in the future. Without limiting the foregoing, such audits, inspections or access may include, but need not be limited to:
13.2.1 administration practices and facilities;
13.2.2 quality assurance practices;
13.2.3 investigations under the rules of a statutory body; and
13.2.4 such other investigations as are necessary to determine whether a party has complied with the relevant security and privacy standards or obligations of this Agreement.
14.1 Notwithstanding clauses 7.3 and 7.4, Cm3 will ensure that the Product is free from defects in manufacture and that it will in all material respects perform in accordance with the Documentation.
14.2 Cm3 reserves the right to modify the Product from time to time by changing, removing or replacing features to the software so that the functionality and use of the Product remains virtually the same without diminishing and without further notice.
14.3 During the Term, Cm3 will provide support for use of the Product during Cm3’s usual business hours. Cm3 makes no representation or warranty that support will be available at any particular time during the Term.
15.1 The Client acknowledges that it has exercised its independent judgment in acquiring the Product and has not relied on any representation made by Cm3 which has not been stated expressly in this Agreement or upon any descriptions or illustrations or specifications contained in any document including catalogues or publicity material produced by Cm3.
15.2 In the event any statute implies terms into this Agreement which cannot be lawfully excluded, such terms will apply to this Agreement, save that the liability of Cm3 for breach of any such implied term will be limited, at the option of Cm3, to any one or more of the following:
15.2.1 the replacement of the Product to which the breach relates or the supply of equivalent Products; or
15.2.2 the repair of such Product; or
15.2.3 the payment of the cost of replacing the Product or of acquiring equivalent Product.
15.3 Except as provided in clauses 14.1 and 15.2, all express or implied conditions or warranties, statutory or otherwise, in respect of the Product are expressly negatived and excluded. In particular, but without limiting the generality of this clause 15.3, Cm3 does not warrant that the Product is fit for any purpose other than the intended use as outlined in the documentation.
15.4 To the extent that any statute provides a remedy to the Client in relation to the Client’s use of data contained on the Product, such right is expressly preserved, save that any such right shall be limited to the extent permitted by such statute.
15.5 The Client acknowledges that Cm3 relies on the information provided on Cm3 by any other party to be true, accurate, current and complete when assessing the occupational health & safety prequalification of contractors but it does not warrant that the information supplied to it by the Client’s contractors is true, accurate, current, or complete or without defect.
16.1 The benefit of this Agreement shall not be dealt with in any way by the either party (whether by assignment, sub-licensing or otherwise) without the written consent of the other party.
17.1 Failure or neglect by either party to enforce at any time any of the provisions of this Agreement shall not be construed or deemed to be a waiver of that party’s rights under this Agreement, other than as provided in clause 10.3 of this Agreement.
18. GOVERNING LAW
18.1 This Agreement shall be governed by and construed according to the laws of Victoria.
19.1 No variation of this Agreement will be effective unless in writing and signed by both parties.
20.1 Should any part of this Agreement be or become invalid, that part shall be severed from this Agreement. Such invalidity shall not affect the validity of the remaining provisions of this Agreement.
21. DISPUTE RESOLUTION
21.1 Any dispute or indifference arising in connection with this Agreement shall be submitted to arbitration in accordance with, and subject to, the Rules of Conduct of Commercial Arbitrations of the Resolution Institute. During such arbitration, both parties may be represented by a duly qualified legal practitioner. This clause 21 shall not prevent a party from seeking urgent injunctive, declaratory or interlocutory relief.
22. WEB BASED SERVICE LEVEL REQUIREMENTS
22.1 System Requirements and Registration
22.1.1 Cm3 to maintain a service to allow contractors to complete a health & safety prequalification process online via the internet. This service must be simple and intuitive for contractors to use.
22.1.2 The fee structure applied to the contractor is determined by the outcome of the Cm3 Risk Review and a copy of the fee structure categories will be supplied to the Client upon request. Contractor fee may be subject to commercially reasonable adjustments on an annual basis.
22.1.3 Secure web access for contractors to register, along with ability for contractor to save information and access at a later date to complete various processes and web page to have clear instructions to enable the Client contractors to register.
22.1.4 Contractors are required to have internet access to complete the registration and online payment process.
22.1.5 The Product will issue an automated invitation on behalf of the Client to invite contractors to register with the Product’s health & safety prequalification system.
22.1.6 Cm3 to provide contractor with step-by-step guide that explains processes and benefits to encourage contractors to register with the Product.
22.2 Audit and Verification Stage
22.2.1 Cm3 to establish health & safety criteria to achieve the Client’s Product prequalification requirements. Health & safety criteria will be adjusted from time to time to reflect changes in regulations and legislation.
22.2.2 Cm3 to ensure assessors are appropriately qualified and experienced to undertake the contractor Cm3 Risk Review assessment process.
22.2.3 Product to request contractor insurance certificates of currency for a minimum of $20 million public and product liability, workers compensation as required by law and a minimum $10 million professional indemnity (subject to the type of work performed).
22.2.4 Product assessors will verify contractor’s health & safety documentation as being suitable for prequalification requirements.
22.2.5 Product to issue contractor identification number and certificate once health & safety prequalification is achieved. The achievement of prequalification is based on the contractor meeting the requirements of the Cm3 Risk Review and the provision of current insurance documentation.
22.2.6 The contractor’s completion of the Product’s business risk profile will determine the health & safety criteria to evaluate contractor’s health & safety capabilities.
22.2.7 Client’s staff are authorised and have full password protected access to all documents provided by the contractor for prequalification.
22.2.8 Cm3 to provide support during business hours for contractors using the Product.
22.2.9 Cm3 to complete first round of prequalification process within 10 working days after completion and submission of all required documentation for each required Risk review as supplied by contractor.
22.2.10 Contractor to complete the Cm3 Risk Review based on the feedback provided by Cm3 to achieve prequalification certification within 30 days of the Cm3 Risk Review being referred to contractor.
22.2.11 Contractor will be sent reminder to complete Cm3 Risk Review feedback after 30 days, with a further 14 days extension granted to contractor to complete.
22.2.12 Contractor’s failure to complete Cm3 Risk Review after 45 days will be deemed an automatic health & safety prequalification not achieved as outlined in this Agreement.
22.3 Tracking and Reporting Stage
22.3.1 The Product tracks expiry of insurance certificates of currency for public and products liability, workers compensation and professional indemnity policies. The Product sends automatic reminders to the contractor on nominated reminder dates of 30 days and 7 days prior to expiry and 7 days after expiry of each insurance certificate. The Product will generate automatic emails to contractors based on the email address provided in their registration details. Contractors are able to upload their current information via the web interface and the Product maintains a database of information on contractors including secure daily offsite backups.
22.3.2 The Product provides prequalification status and information reports, available in XML, CSV or PDF format, for each Client contractor that highlights:
(i) prequalified status;
(ii) non-prequalified status and details why prequalification was not achieved;
(iii) registration awaiting assessment;
(iv) trade category;
(v) ABN; and
(vi) state location.
22.3.3 Authorised Client staff have individual secure password protected web access to check current contractor prequalification status.
22.3.4 The Product stores copies of contractor’s uploaded documentation and enables the Client secure access to view and print from the web interface.
22.3.5 Cm3 to undertake document verification and assessment of the Cm3 Risk Review prequalification process in accordance with this Agreement. All document verification and Cm3 Risk Review processes are limited to the quality and extent of information provided by the contractor.
22.3.6 Insurance documentation verification will be conducted by relevant assessors by reviewing the certificate details provided against information entered into the Product; including but not limited to contractor’s insurer details, commencement and expiry dates, policy numbers and value of insurance coverage.
22.3.7 The Client is required to track the uptake of contractors registering on the Product and will:
(i) provide a list of contractors’ details including company name, email address and ABN to enable the system to send automated reminder emails to contractors; and
(ii) determine internal management of the process of monitoring and following uptake of contractor to the system.
22.3.8 Cm3 is required to track the uptake of contractors registering and will:
(i) ensure the Product sends weekly automated reminder email to contractors who have not registered on the Product. This is dependent upon the provision of a contractor list by the Client which contains current email addresses of contractors, and only records with a valid and current email address will be included in this email reminder alert;
(ii) cease email notifications to contractors who have selected the “opt-out” function at time of registration and set up. The Client is to determine the internal management process of contractors who “opt out” of email reminders; and
(iii) ensure weekly emails are sent to contractors who have registered on the system for:
1. those who have registered on the system but have not continued the process beyond this stage;
2. those who have completed web registration and notified the Client but have not continued the process beyond this stage;
3. those who have registered, notified the Client and completed the business risk profile but have not continued the process beyond this stage;
4. those who have registered, notified the Client, completed the business risk profile and have started the Cm3 Risk Review but have not continued the process beyond this stage; and
5. those who have completed all steps including the Cm3 Risk Review but have not responded to Risk Review feedback.
22.4 Client Training
22.4.1 As per the Proposal.