Key Terms To Note
Below is a summary of key terms that subscribers should be aware of when subscribing to Cm3’s services, but nothing in this summary limits or affects the meaning of the Terms and Conditions and subscribers should read the Terms and Conditions in detail.
- (a) Subscriptions automatically renew and renewals may be subject to varied fees and terms and conditions, but Cm3 will provide subscribers with prior notice and an opportunity not to renew prior to the expiry of the then-current subscription period. Subscriptions will not renew if payment has not been received by Cm3 in respect of the renewal subscription period by the end of the then-current subscription period.
- (b) Cm3 may make changes to the services, documentation or terms and conditions on 60 days’ prior notice to subscribers. Subscribers will have an opportunity to terminate if they are adversely affected by the changes.
- (c) Subscribers are responsible for determining the number of seats it requires for any seat-based subscription, and any unused seats expire at the end of a subscription period.
- (d) Subscribers which are clients acknowledge that Cm3 cannot control contractor participation in the network and is reliant on information submitted by its contractor subscribers.
- (e) Subscribers which are contractors must submit any applicable assessments or terminate within 90 days after payment or will forfeit the fee paid.
- (f) Fees paid in advance or in respect of unused services are not refundable if the agreement with Cm3 is terminated because a subscriber is in breach of the agreement.
- (h) Cm3 may delete subscriber data 90 days after expiry or termination of the agreement with Cm3.
- (i) Subject to law, including the Australian Consumer Law, Cm3 disclaims warranties and representations in respect of various matters, including that its system is error-free or will not experience loss or corruption of data, as to the as to the merchantability, availability or fitness for purpose of the services, any responsibility for performance of any outcome of, or any claim or loss arising from, engagements between users of Cm3’s network, or as to the information supplied to it by such users or other third parties on which Cm3 relies.
- (j) Subject to certain exclusions and except in respect of non-excludable guarantees, conditions, terms or warranties under the Australian Consumer Law, each party’s aggregate liability under the agreement between them in any year is limited to the fees paid or payable by the subscriber in that year.
- (a) The Agreement commences on the Commencement Date and continues for the Term unless terminated in accordance with these Terms and Conditions.
- (b) Each Subscription Period will renew automatically on expiry for a further equal period, subject to Cm3 providing the Subscriber with no less than 60 days’ (and no more than 90 days’) prior written notice of the expiry and upcoming renewal (together with the Fees applicable for the renewal Subscription Period and updates to these Terms and Conditions) of the then-current Subscription Period, unless:
- (i) Cm3 notifies the Subscriber no less than 60 days’ prior to expiry of the then-current Subscription Period that it does not wish to renew;
- (ii) the Subscriber notifies Cm3 prior to expiry of the then-current Subscription Period that it does not wish to renew; or
- (iii) Subscriber fails to pay the subscription Fees for the renewal Subscription Period prior to expiry of the then-current Subscription Period.
- (c) For the avoidance of doubt, any separate agreement between Cm3 and the Subscriber in respect of other of Cm3’s services will be subject to the agreement between the parties in respect of those services, including the fees applicable at the time of agreement.
- (a) Subject to the payment of applicable Fees and the Subscriber’s compliance with the terms of the Agreement, Cm3 will provide the Services to the Subscriber:
- (i) in accordance with applicable laws and regulations (including holding and maintaining all required licences, registrations, permits or approvals);
- (ii) materially in accordance with the Documentation;
- (iii) exercising reasonable skill and diligence; and
- (iv) using suitably skilled and qualified personnel,
subject to these Terms and Conditions.
- (a) Subject to the payment of applicable Fees and the Subscriber’s compliance with the terms of the Agreement, Cm3 will provide the Services to the Subscriber:
- (b) Cm3 reserves the right to:
- (i) modify the Services by changing, removing or replacing features of the System without materially reducing the functionality and use of the Services;
- (ii) update relevant Documentation; or
- (iii) update these Terms and Conditions,
from time to time subject to providing the Subscriber with no less than 60 days’ prior written notice. If the Subscriber is adversely impacted by any such modification or update, the Subscriber may terminate the Agreement by providing written notice to Cm3 within 60 days after Cm3’s applicable notice, or the implementation of the modification, whichever the later. If Cm3 does not receive notice with that period, Subscriber is deemed to have accepted the modification or update.
3. Subscriber’s Obligations
- (a) The Subscriber must ensure that all Subscriber Data uploaded to and hosted in the System is in the agreed format.
- (b) The Subscriber must comply with Cm3’s Documentation relating to the input of the Subscriber Data and security requirements. The Subscriber must not copy, interfere with or make any unauthorised use of any security device or protocol provided by Cm3 or its third-party service providers
- (c) The Subscriber warrants to the best of its knowledge that the Subscriber Data is accurate and complete.
- (d) The Subscriber must:
- (i) only use the Services and any data accessed by it through the Services for the Permitted Purpose and not for any other purpose;
- (ii) only allow access to and use of the Services by the Permitted Users;
- (iii) not copy or reproduce by any means any part of the System for distribution or supply to any third party or in any way other than as required for the Permitted Purpose;
- (iv) not tamper with, hinder the operation of or make unauthorised modifications to the System;
- (v) not reverse engineer, reverse compile, decompile, translate, adapt, vary or modify the System;
- (vi) apply appropriate Virus protection measures;
- (vii) not knowingly transmit any Virus or other disabling feature to or from the System;
- (viii) not resell any of the content made available by Cm3 through the Services or use the Services to provide any service to any third party;
- (ix) not remove, disable or modify any security, antivirus or other software on the System; and
- (x) keep all passwords, account names, tokens or log in identifications required to access the Services secure and confidential.
- (e) Without limiting any other provision of these Terms and Conditions, the Subscriber must only use the Services for its own lawful internal business purposes, in accordance with the Agreement.
4. Permitted Users
- (a) The Subscriber may at any time during the term of the Agreement appoint Permitted Users up to the maximum specified in the Contract Document or as otherwise permitted by Cm3 from time to time, provided that such persons:
- (i) are Personnel of the Subscriber;
- (ii) comply with the Agreement to the extent applicable to them; and
- (iii) prior to accessing and using the System, accept and agree to comply with the terms set out in clause 4(c).
- (b) Cm3 agrees to provide access to the System to each of the Permitted Users in accordance with the Agreement.
- (c) The Permitted Users must not, in using the Services:
- (i) do any act that is unlawful or prohibited by any applicable laws;
- (ii) do any act that would constitute a breach of either the privacy (including uploading private or personal information without an individual’s consent) or any other of the legal rights of individuals;
- (iii) upload files that contain Viruses, or in any other way introduce or permit the introduction of any Virus, that may cause damage to Cm3’s property or the property of other individuals;
- (iv) undermine or attempt to undermine the security or integrity of Cm3’s computing systems or networks or, where the System is hosted by a third party, that third party’s computing systems and networks;
- (v) use, or misuse, the Services in any way which may impair the functionality of System, or other systems used to deliver the System or impair the ability of any other user to use Cm3’s services;
- (vi) gain or attempt to gain unauthorised access to any materials or content other than those to which the Permitted User has been given express permission to access or to the information technology system on which the System is hosted;
- (vii) transmit, upload or input into the System, any files that may damage any other person’s computing devices or software, any content that may be offensive, or material or data in violation of any law (including data or other material protected by copyright or trade secrets which the user does not have the right to use);
- (viii) resell any of the content made available by Cm3 through the Services;
- (ix) use any device or process to copy, adapt, disassemble, decompile, reverse engineer or in any way reproduce, modify or circumvent the navigational structure, security or presentation of Cm3 or any computer programs used to deliver the Services;
- (x) extract without authority any imagery including through inspection of browser history files, web page elements, screen shots, or any other download not provided through an explicitly identified download/report function in the application;
- (xi) allow other people to access the Permitted User’s account or disclosing the Permitted User’s password and login details to any third party.
The Subscriber, if it is a Client, acknowledges and agrees that:
- (a) it has made an independent judgment in selecting the Services;
- (b) Cm3 is reliant on the information submitted by Contractors;
- (c) Cm3 collects a set range of information in respect of Contractors, which may not be comprehensive to the Subscriber’s circumstances, and the Subscriber is responsible for assessing whether any additional information is required;
- (d) Cm3 does not control Contractor subscription to its services and there is no guarantee that:
- (i) Contractors invited by the Subscriber will respond to the invitation or subscribe to the services; or
- (ii) there will be Contractors available through the Services that meet the Subscriber’s specific requirements at any particular time during the Term;
- (e) terminology used by the Services aligns with Cm3’s internal standards and guidelines and are not necessarily consistent with any specific legal or industry definitions or external standards;
- (f) the Subscriber is responsible for reviewing Contractor information, assessments and surveys unless expressly specified in the Agreement or otherwise agreed in writing with Cm3;
- (g) Cm3 will provide the Subscriber with visibility regarding the outcome of an assessment but may not disclose all aspects of the communication between Cm3 and Contractors during the assessment process;
- (h) where Cm3 reviews information, assessments or surveys submitted by Contractors, it does so against defined criteria, which may not comprehensively reflect the Subscriber’s circumstances or changes in law or regulation;
- (i) Cm3 is not responsible for any failure by a Contractor to submit information or complete an assessment or survey; and
- (j) in respect of any prospective Contractors identified by the Subscriber:
- (i) the Subscriber may use the Services to extend an invitation to the prospective Contractor;
- (ii) the Subscriber is responsible for confirming the contact details for the prospective Contractor that it submits to the Services and obtaining the consent of the Contractor to Cm3’s use of those contact details to extend an invitation to it via the Services (including by email); and
- (iii) the Services will use the contact details provided by the Subscriber to extend an invitation to Cm3’s services to the prospective Contractor for the period indicated in the Product Schedule, after which Cm3 reserves the right to cease further contact attempts.
The Subscriber, if it is a Contractor:
- (a) where a Contractor assessment is applicable to the Services, must submit its Contractor assessment in respect of each Subscription Period within 90 days after the date on which the Fees for that Subscription Period are paid in respect of the relevant Services and:
- (i) Cm3 will provide reminders to the Subscriber to submit the assessment;
- (ii) the Subscriber may terminate the Agreement by notice to Cm3 before the end of the 90 day period and will be eligible for a refund in accordance with clause 20(b) subject to Cm3 retaining an amount in respect of administration costs of up to 10% of the Fee in respect of the relevant Services; and
- (iii) if the assessment is not submitted within the 90 day period, the Fee in respect of the relevant Services will be forfeited and the Agreement terminated;
- (b) must complete tasks assigned to it in the System in accordance with the Product Schedule;
- (c) must submit accurate, valid and complete information to the System;
- (d) must update the Subscriber Data promptly following any change;
- (e) must ensure that the Subscriber Data is relevant to the needs of all Clients with which it has a current or prospective relationship at the relevant time;
- (f) acknowledges that, where assessments or other vetting processes undertaken by Cm3 are applicable to the Services:
- (i) Cm3 undertakes assessments and vetting processes independently and the Subscriber may fail or receive a poor result on any assessment or vetting process undertaken by Cm3, and if the Subscriber is dissatisfied with the result of any assessment or vetting process it may refer the dispute for resolution under clause 22; and
- (ii) the Services provide an opportunity to be engaged by Clients but Clients are under no obligation to engage the Subscriber, and there is no guarantee that the Subscriber will be engaged by any Client through or as a result of the Services;
- (g) acknowledges that Fees are calculated based on tiers which vary according to weighting factors including:
- (i) number of risks selected in business risk profile; and
- (ii) additional modules required based on selected risks and other Client requirements; and
- (h) may request details of tier pricing by contacting Cm3.
7. Network Users
- (a) The parties acknowledge that all Network Users of Cm3’s services (whether Clients or Contractors) are customers of Cm3 and that no Network User is a contractor or agent of Cm3 in its capacity as a subscriber to, or customer of Cm3 in respect of, Cm3’s services.
- (b) All engagements between Network Users are contracts between the relevant Network Users only and must be separately documented by appropriate written agreement, and Cm3 is not a party to any such contract merely by reason of provision of the Services.
8. Specific Product Terms
8.1 Cm3 Induct
- (a) Contractor subscriptions for Cm3 Induct may be based on a number of Seats and in that case, this clause 8.1 applies.
- (b) A Seat is an individual Permitted User nominated by the Subscriber to use Cm3 Induct.
- (c) Seats are non-transferable between Permitted Users, unless agreed otherwise by the parties. The Subscriber must ensure that only the nominated Permitted Users use Cm3 Induct.
- (d) It is the Subscriber’s responsibility to determine the number of Seats required. Seats (whether used or not) expire at the end of each Subscription Period.
8.2 Cm3 OnSite
- (a) No fees are charged to Contractors for access to or use of Cm3 OnSite.
- (b) The Subscriber, if a Contractor, must ensure that each Permitted User of Cm3 OnSite agrees to receive SMS communications (Broadcast Messages and Mobile Authorisation Codes) from Cm3 through the Services.
- (c) The Subscriber, if a Client, acknowledges and agrees that the induction information provided by Cm3 in respect of Cm3 OnSite is provided as a sample only and the Subscriber is responsible for:
- (i) configuring and managing its sites, Permitted Users and materials in Cm3 OnSite;
- (ii) customizing and adapting the sample induction information to align with the Subscriber’s specific compliance needs and circumstances; and
- (iii) regularly updating its induction information in Cm3 OnSite for changes in circumstance, law and regulation.
8.3 Customisations and other professional services
- (a) Cm3 may provide Services to develop and implement Customisations subject to specific agreement by the parties, including in respect of fees. In respect of such Customisations, except as otherwise agreed between the parties:
- (i) the Subscriber must perform user acceptance testing (UAT) in respect to each deliverable released to it by Cm3, and must, within 30 days of the release of the relevant deliverable by Cm3 for UAT (UAT Period), notify the Company in writing whether the relevant deliverable passed or failed UAT;
- (ii) the relevant deliverable will pass UAT if it meets the acceptance criteria set out in the Contract Document, or if no acceptance criteria is set out in the Contract Document, if the relevant deliverable meets any specifications set out in the relevant Documentation;
- (iii) on and from the date on which the relevant deliverable passed UAT or the UAT Period ends but the Subscriber fails to notify the Company of the result of UAT, the relevant deliverable will be deemed accepted;
- (iv) if the relevant deliverable failed UAT, Cm3 will use reasonable efforts to remedy (which may include providing suitable workarounds) the relevant deliverable and resubmit it to the Subscriber for UAT in accordance with this clause 8.3(a); and
- (v) Customisations will form part of the Services on and from acceptance of all final deliverables comprising the Customisation.
- (b) The Subscriber must make available to Cm3 all information and Personnel as reasonably necessary for Cm3 to carry out the Services. The Subscriber acknowledges and agrees that Cm3 may not be able to provide some or all of the relevant Services if the Subscriber fails to provide such information or Personnel in a timely manner.
9. Support and Maintenance
- (a) Cm3 will use reasonable endeavours to:
- (i) rectify errors in the Services; and
- (ii) provide support for the Services during Cm3’s usual business hours.
- (b) If the Subscriber acquires the Services as a Consumer:
Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
– to cancel your service contract with us; and
– to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods.
If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion.
You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
- (c) The Subscriber acknowledges that the Services may be unavailable in whole or part for periods of System maintenance.
- (d) Cm3 will provide reasonable notice to the Subscriber in respect of any downtime as a result of maintenance of the System, where possible.
- (e) The Subscriber acknowledges that prior notice may not be possible in the case of emergency maintenance of the System.
- (f) Cm3 will use reasonable efforts to provide scheduled maintenance of the System:
- (i) outside of standard Australian business hours; and
- (ii) subject to no less than 3 days’ prior notice.
- (g) Cm3 may suspend the Services on becoming aware of any potential or actual threat to the security of Cm3’s systems, software or any Subscriber Data or Network User Data for such time as it considers necessary (acting reasonably) to ensure that the Services can be restarted securely. The Subscriber not required to pay for any Services not provided or performed by Cm3 as a result of such a suspension, except to the extent the Subscriber or its Permitted Users or Personnel caused or contributed to the security threat.
10. Fees and Payment
- (a) The Subscriber must pay the Fees to Cm3.
- (b) Unless otherwise agreed by the parties, the payment method for all Fees is by credit card.
- (c) Fees must be paid in advance in respect of each Subscription Period or otherwise prior to provision of the Services, unless otherwise specified in the Contract Document or agreed by the parties.
- (d) Without limiting the foregoing and except as otherwise agreed by the parties, the Services are made available to the Subscriber for a defined period of time on a subscription payment basis. Subscriptions are term-based subscriptions and, prior to renewal of the relevant Subscription Period, a further subscription Fee will be payable by the Subscriber for continued access to the Services for a further Subscription Period at the then prevailing rates as notified by Cm3. If the Subscriber does not pay the subscription Fees for the renewal Subscription Period then, unless otherwise agreed by the parties, the Term will expire at the end of the then-current Subscription Period.
- (e) Subscriber must:
- (i) pay any non-disputed amounts in accordance with the Agreement; and
- (ii) promptly pay any disputed amounts that are subsequently found to be correctly payable.
- (a) Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under the Agreement are exclusive of GST.
- (b) If GST is payable on any supply made by a party (or any entity through which that party acts) (supplier) under or in connection with the Agreement, the recipient will pay to the supplier an amount equal to the GST payable on the supply. The recipient will pay the amount referred to in this clause 11(b) in addition to and at the same time that the consideration for the supply is to be provided under the Agreement.
- (c) The supplier must deliver a tax invoice or an adjustment note to the recipient before the supplier is entitled to payment of an amount under clause 11(b). The recipient can withhold payment of the amount until the supplier provides a tax invoice or an adjustment note, as appropriate.
- (d) If an adjustment event arises in respect of a taxable supply made by a supplier under the Agreement, the amount payable by the recipient under clause 11(b) will be recalculated to reflect the adjustment event and a payment will be made by the recipient to the supplier or by the supplier to the recipient as the case requires.
- (e) Where a party is required under the Agreement to pay or reimburse an expense or outgoing of another party, the amount to be paid or reimbursed by the first party will be the sum of:
- (i) the amount of the expense or outgoing less any input tax credits in respect of the expense or outgoing to which the other party is entitled; and
- (ii) if the payment or reimbursement is subject to GST, an amount equal to that GST.
12. Intellectual Property Rights
12.1 Cm3 IPR
The Subscriber acknowledges and agrees that, as between the parties, Cm3 owns and retains all current and future right, title and interest, including all Intellectual Property Rights, in and to the System (including the Software and the Documentation), the Services and any Customisations.
12.2 Grant of licence
- (a) In consideration of the Fees, Cm3 grants to the Subscriber a non-exclusive, limited, non-transferable, non-sublicensable, royalty-free and revocable licence to use the Documentation and any APIs forming part of the Services for the Permitted Purpose during the term, and in accordance with the terms, of the Agreement.
- (b) Without limiting clause 13(c), the Subscriber grants to Cm3 a non-exclusive, royalty-free and fee-free licence (with the right to sublicence to Cm3’s Personnel) to use the Subscriber’s Intellectual Property Rights to the extent required to provide the Services.
If the Subscriber provides Cm3 with ideas, comments or suggestions relating to the Services or the System (together Feedback) Cm3 may retain and use that Feedback internally and for the purpose of product and service improvements provided that in all cases any Feedback used is anonymised, does not utilise the Subscriber’s trademarks or brand or otherwise identify or potentially identify the Subscriber. All Intellectual Property Rights in the Feedback and anything created as a result of the Feedback vest solely in Cm3 on and from creation.
13. Subscriber Data
- (a) Cm3 acknowledges and agrees that the Subscriber Data is and will remain the property of the Subscriber at all times.
- (b) Cm3 will not:
- (i) sell, commercially exploit, let for hire, or assign rights in any of the Subscriber Data; or
- (ii) make any Subscriber Data available to a third party other than in accordance with the licence granted under clause 13(c).
- (c) The Subscriber grants to Cm3 a non-exclusive, royalty-free licence (with the right to sub-licence) to the Subscriber Data to:
- (i) collect, process, host, copy, transmit, display and store the Subscriber Data in accordance with the Agreement;
- (ii) disclose, and provide access to, the Subscriber Data to each Permitted User;
- (iii) disclose, and provide access to, the Subscriber Data to other Network Users for the purposes of Cm3 providing services;
- (d) The Subscriber warrants that the Subscriber has the right to grant the licence granted in clause 13(c).
- (e) The Subscriber acknowledges that Network User Data remains the property of Network Users and the Subscriber must not use any Network User Data other than in connection with the Services and for the Permitted Purpose, and must not disclose any Network User Data outside of the Services.
- (f) Unless otherwise agreed by the parties, the Subscriber acknowledges and agrees that Cm3 may:
- (i) use data and information about the Subscriber’s (including Permitted Users’) use of the Services to generate anonymised raw and aggregated statistical and analytical data (Analytical Data);
- (ii) use Analytical Data for Cm3’s internal research and product development and improvement purposes and to conduct statistical analysis and identify trends and insights; and
- (iii) supply Analytical Data to third parties.
- (g) Title to, and all Intellectual Property Rights in, Analytical Data vests in and remains Cm3’s property.
- (a) Cm3 must ensure that any Personal Information is collected, used, stored, disclosed or handled by Cm3 in accordance with the Privacy Act 1988 (Cth).
- (b) The Subscriber warrants that it is entitled to disclose the Subscriber Data to Cm3 and has obtained all necessary consents (if any) to the disclosure of that Subscriber Data to Cm3 and to the disclosure of Subscriber Data in accordance with the licence granted under clause 13(c).
- (d) Each party must implement appropriate security measures to ensure that Personal Information held in connection with the Agreement is protected against loss and against unauthorised access, use, modification, disclosure or other misuse.
- (e) If Cm3 becomes aware of any loss of, unauthorised access to, or unauthorised disclosure of Subscriber Data in the care, custody or control of Cm3, Cm3 must:
- (i) promptly notify the Subscriber of the matter by email, and promptly provide the Subscriber with details; and
- (ii) promptly take any necessary steps to contain and rectify the matter and its consequences.
- (f) If the Subscriber becomes aware of any loss of, unauthorised access to, or unauthorised disclosure of Personal Information collected by it through the System in the care, custody or control of the Subscriber, the Subscriber must:
- (i) promptly notify Cm3 of the matter by email, and promptly provide Cm3 with details; and
- (ii) promptly take any necessary steps to contain and rectify the matter and its consequences.
- (g) Each party will cooperate as reasonably requested by the other party to facilitate the other party’s compliance with any data breach notification requirements under law arising in relation to any Personal Information collected, stored, accessed, used or otherwise handled or processed by or through the System.
- (a) A party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information other than for the purpose of fulfilling its obligations under the Agreement.
- (b) A party will not be in breach of clause 15 in circumstances where it is legally compelled to disclose the other party’s Confidential Information or if the disclosure is to its legal advisors, accountants or auditors for the purposes of seeking professional services.
- (c) Each party will ensure that its Personnel do not make public or disclose the other party’s Confidential Information other than as permitted under the Agreement.
- (d) Each party must return (or at the other party’s request, destroy or delete) any of the other party’s Confidential Information promptly following the written request of the other party subject to any requirements to retain information under Law or for compliance with that party’s document retention policies.
16. Data Extraction
- (a) Cm3 must, at Subscriber’s request during the term of the Agreement and for a period of 90 days following expiry or termination of the Agreement, provide an extract of Subscriber Data stored or processed on any system of Cm3 or Cm3’s subcontractors in SQL output, XML or CSV format as specified by Subscriber.
- (b) Cm3 will provide additional assistance in respect of access or extraction of Subscriber Data, including alternative extraction formats, by agreement with the Subscriber
- (c) The Subscriber acknowledges that Cm3 may, but is under no obligation to, retain a copy of Subscriber Data, and Cm3 may delete all Subscriber Data, after the end of a period of 90 days following expiry or termination of the Agreement.
- (d) Cm3 may delete Subscriber Data that was submitted or uploaded into the System more than 7 years prior to the date of deletion.
- (e) Subscriber Data will not be actively shared with Network Users following expiry or termination of the Agreement, however the Subscriber acknowledges that other Network Users may retain a copy of certain Subscriber Data (for example, Clients retaining a copy of Subscriber Data in respect of former Contractors).
- (f) It is the Subscriber’s responsibility to maintain backups of Subscriber Data during the term of the Agreement.
- (a) Cm3 warrants that:
- (i) the System will function materially in accordance with the Documentation;
- (ii) it has the rights necessary to provide the Services in accordance with the Agreement;
- (iii) it will comply with applicable Law in providing the Services; and
- (iv) it will provide the Services with due care and skill.
- (b) To the maximum extent permitted by Law, and subject to the Australian Consumer Law and any express provision of the Agreement (including clause 17(a)), Cm3:
- (i) does not represent or warrant that the System is free from errors or omissions, is Virus-free or will not experience any loss or corruption of data;
- (ii) disclaims all warranties and representations as to the merchantability, availability or fitness for purpose of the Services;
- (iii) requires the Subscriber to enter into a separate arrangement with other Network Users in respect of any engagement between them, and is not responsible for the performance or any outcome of, or any Claim or Loss arising from, such engagements; and
- (iv) is reliant on the information uploaded or otherwise provided by Network Users or others, including in the occupational health and safety prequalification of Contractors, and makes no warranty that the information supplied to it by Network Users or other third parties is true, accurate, current, or complete or without defect.
18. Limitation of Liability
- (a) Where the Subscriber acquires Services under the Agreement as a Consumer, then the Australian Consumer Law may provide certain rights and statutory guarantees in relation to those services. These guarantees cannot be modified nor excluded by any contract. Nothing in the Agreement purports to modify or exclude the conditions, warranties, guarantees and undertakings, and other legal rights, under the Australian Consumer Law and other laws which cannot be modified or excluded. The Agreement, including clause 17 and this clause 18, are subject to any such rights the Subscriber may have.
- (b) Subject to clause 18(e) and to the maximum extent permitted by applicable Law, the aggregate liability of a party to the other party arising under or in connection with the Agreement in any Year (whether in contract, tort (including negligence), statute, equity or otherwise) is limited to the Fees paid or payable by the Subscriber to Cm3 in that Year.
- (c) To the extent permitted by Law, and notwithstanding any other provision of the Agreement (other than clauses 18(a) and 18(d)), neither party is liable for any loss of profits or anticipated profits, contract, opportunity, goodwill, revenue, production or business or loss arising from business interruption or any indirect or consequential loss or damage suffered in connection with the Agreement or the provision or non-provision of the Services, whether arising under contract, tort (including negligence), statute, equity, under any indemnity or otherwise even if the Loss may have been in the reasonable contemplation of the parties at the Commencement Date.
- (d) If a guarantee, condition, term or warranty is implied in the Agreement by law (including without limitation the Australian Consumer Law) and the law prohibits provisions which exclude or modify the application of the guarantee, condition, term or warranty then, if Cm3 is liable to the Subscriber arising out of or in connection with a breach of such a warranty, guarantee, term or condition, where it is fair and reasonable to do so, Cm3’s liability to the Subscriber for any Loss or Claim suffered by the Subscriber arising out of or in connection with such breach is, to the extent permitted by Law, limited (at Cm3’s discretion):
- (i) where the breach relates to goods supplied by or for Cm3, to Cm3:
- (A) replacing the goods or supplying equivalent goods;
- (B) repairing the goods;
- (C) paying the cost of replacing the goods or of acquiring equivalent goods; or
- (D) paying the cost of having the goods repaired; or
- (ii) where the breach relates to services provided by or for Cm3, to Cm3:
- (A) resupplying the services;
- (B) having the services resupplied; or
- (C) paying the cost of having the services resupplied.
- (i) where the breach relates to goods supplied by or for Cm3, to Cm3:
- (e) Clause 18(b) does not limit a party’s liability for any Claim or Loss incurred by the other party arising from any:
- (i) fraud or wilful misconduct;
- (ii) personal injury or property damage; or
- (iii) infringement of Intellectual Property Rights,
caused by the first party or its Personnel in performing or receiving the Services.
- (f) A party’s liability in connection with the Agreement shall be reduced proportionately to the extent that any act or omission of the other party, its Personnel or any third party caused or contributed to any Loss or Claim.
If the Subscriber is a Client, Cm3 undertakes that it will:
- (a) effect and maintain:
- (i) Public and Products Liability Insurance in the amount of $20 million dollars;
- (ii) Professional Indemnity Insurance in the amount of $10 million dollars; and
- (iii) workers compensation insurance as required by law,
with a reputable insurer during the term of the Agreement and in respect of Professional Indemnity Insurance for a period of 6 years after the expiry or termination of the Agreement (Insurance Period); and
- (b) provide copies of certificates of currency for the insurance policies at any time during the Insurance Period upon written request of the Subscriber.
- (a) A party may terminate the Agreement immediately by notice in writing to the other party if the other party commits any material breach and that breach is not capable of remedy or the other party does not remedy the breach within 30 calendar days of being notified of the breach.
- (b) If the Agreement is validly terminated by a party prior to the expiry of the Term (other than for Subscriber breach or under clause 6(a)(iii)), Cm3 will refund to the Subscriber:
- (i) (on a pro-rated basis) the pre-paid subscription Fee for the period following termination to which the subscription Fee relates; and
- (ii) any other pre-paid Fees (in addition to the subscription Fee) for other Services as relates to the period following termination to the extent that that functionality, feature, service or content has not been utilised by the Subscriber.
- (c) Cm3 may, in its discretion, permit the Subscriber to have restricted access to the System for a period of up to 60 days following termination or expiration of the Agreement (with such access being subject to these Terms and Conditions).
- (d) Subject to clause 20(c), on termination or expiry of the Agreement, the Subscriber must:
- (i) as soon as practicable cease, and ensure its Permitted Users cease, to access and use the System and the Services; and
- (ii) return to Cm3 (or at Cm3’s request, destroy or delete) any Documentation, copies of APIs or other materials in which Cm3 has Intellectual Property Rights which are in the Subscriber’s or any Permitted Users’ possession or control.
- (e) Clauses 10(e)(ii), 12, 13, 14, 15, 16, 18, 19, 20, 24(d) and 24(i) survive termination or expiry of the Agreement. Termination or expiry of the Agreement does not affect any rights, remedies or liabilities of the parties accrued as at the date of termination or expiry.
21. Force Majeure
21.1 No liability for breach during Force Majeure Event
A party will not be liable for any delay in or for any failure to perform its obligations under the Agreement to the extent that the party is able to demonstrate that such delay or failure has been caused by a Force Majeure Event.
21.2 Obligations on party claiming force majeure
A party prevented from performing any of its obligations under the Agreement by a Force Majeure Event must:
- (a) notify the other party’s representative as soon as practicable, describing in a reasonable level of detail the nature of the Force Majeure Event and its likely effect on that non-performing party’s obligations under the Agreement;
- (b) continue to perform all unaffected obligations in accordance with the Agreement (however Subscriber is not required to pay for any Services not provided or performed by Cm3 as a result of a Force Majeure Event);
- (c) use its best endeavours to continue to perform the affected obligations, whether by way of a work-around or other methods agreed with the other party;
- (d) use its best endeavours to overcome the effects of the Force Majeure Event as soon as possible; and
- (e) notify the other party as soon as it is no longer affected by the Force Majeure Event.
- (a) Except for interim or urgent interlocutory relief which may be sought at any time, the parties must endeavour to settle any dispute arising out of or in connection with the Agreement in accordance with this clause 22 before court or arbitration proceedings are commenced.
- (b) A party claiming that a dispute has arisen must give notice in writing to the other party setting out the nature of the dispute (Dispute Notice).
- (c) Within seven (7) days of receipt of the Dispute Notice (or such other period as agreed by the parties), the dispute must be referred to the senior executives nominated by each of the parties, who must meet and use their best endeavours to resolve the dispute.
- (d) If the dispute is not resolved within 30 days after receipt of the Dispute Notice (or such other period agreed by the parties to the dispute), either party may refer the dispute to mediation. The parties will share the mediator’s costs equally.
- (e) If the dispute has not resolved within 90 days of receipt of the Dispute Notice, either party may commence court or arbitration proceedings.
- (f) Pending resolution of any dispute, the parties must continue to perform their obligations under the Agreement without prejudice to their respective rights and remedies (except where such obligations are the subject of the dispute).
23.1 Modern slavery
- (a) In this clause 23.1, Modern Slavery has the meaning given to that term in the Modern Slavery Act 2018 (Cth).
- (b) CM3 commits to the Subscriber, if the Subscriber is a Client, that Cm3 will:
- (i) comply with all Modern Slavery reporting requirements applicable to it;
- (ii) have and maintain throughout the term of the Agreement its own policies and procedures that are intended to ensure compliance with Modern Slavery laws;
- (iii) at the reasonable written request of the Subscriber promptly provide all information required to enable the Subscriber to comply with its reporting obligations with respect to Modern Slavery; and
- (iv) notify the Subscriber if:
- (A) it has breached any applicable Modern Slavery laws; or
- (B) if any compliance action (including the issue of penalty or infringement notices, compliance notices, enforceable undertakings, proactive compliance deeds or court orders) is issued by any relevant authority against it for non-compliance with Modern Slavery laws,
in connection with its performance of the Agreement.
23.2 Anti-bribery and corruption
The parties warrant and represent that:
- (a) the conduct in connection with the negotiation of and entry into the Agreement does not infringe any applicable law relating to bribery, corruption or prohibited business practices; and
- (b) in performing its obligations under the Agreement, each party will comply and ensure their personnel comply with any applicable law in force from time to time in the countries in which it operates relating to bribery, corruption and prohibited business practices (including the Criminal Code Act 1995 (Cth) and equivalent relevant State or Territory legislation).
- (a) Subject to the Australian Consumer Law, the Agreement constitutes the entire agreement between the parties in connection with the subject matter and supersedes all previous agreements or understandings between the parties in connection with the subject matter.
- (b) In the event there is any inconsistency between the terms of parts of the Agreement, the provisions of the part listed higher below will take precedence over provisions of the part listed lower:
- (i) the Contract Document;
- (ii) these Terms and Conditions;
- (iii) the Product Schedule;
- (iv) any other document incorporated by reference into the Agreement.
- (c) The parties are independent contractors and nothing in the Agreement gives rise to any relationship of agency, partnership, employment or otherwise.
- (d) In the event that any part of the Agreement is void, voidable, illegal or otherwise unenforceable it may be severed and the remaining provisions of these Terms and Conditions shall remain in full force and effect.
- (e) No waiver of a right or remedy under the Agreement is effective unless it is in writing and signed by the party granting it.
- (f) No variation of the Agreement is effective unless made in writing and signed by each party.
- (g) All notices given under the Agreement must be given by a party to the other party’s address specified in the Contract Document or otherwise as notified to it by the other party from time to time.
- (h) This document may consist of a number of counterparts and, if so, the counterparts taken together constitute one document.
- (i) The Agreement is governed by the laws in force in Victoria and each party submits to the non-exclusive jurisdiction of the courts of Victoria.
In these Terms and Conditions, capitalised terms have the following meaning:
Agreement means the Contract Document, these Terms and Conditions, the Product Schedule and any other document referred to in these Terms and Conditions.
Analytical Data has the meaning given to that term in clause 13(f)(i).
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of State Fair Trading legislation.
Claim means any claim, action, proceeding or investigation of any nature or kind and includes the allegation of a claim.
Client means a Network User of Cm3 which subscribes to Cm3’s services in its capacity as an actual or prospective recipient of goods and/or services from one or more Contractors.
Cm3 means Cm3 Contractor Management Pty Ltd ABN 39 655 875 620.
Commencement Date means the date on which the Subscriber accepts the Contract Document offered by Cm3.
Confidential Information, in relation to a party, means information of a confidential nature including information about its business, operations, strategy, administration, technology, affairs, clients, customers, employees, contractors or suppliers, but does not include any information which is in the public domain other than through a breach of confidence, independently developed by the recipient, or already known, or rightfully received by the recipient other than through a breach of confidence. For the avoidance of doubt, Confidential Information includes the contents of any communication or document which is the subject of legal professional privilege.
Consumer means a consumer as defined in the Australian Consumer Law.
Contract Document means the online order form, proposal or other order document accepted by the Subscriber setting out details of the Services, the parties and other information relevant to the Agreement.
Contractor means a Network User which subscribes to Cm3’s services in its capacity as an actual or prospective contractor, supplier or provider of goods and/or services to one or more Clients.
Customisation means any changes to the System functionality specifically requested by the Subscriber for the individualised use of the Subscriber and its Permitted Users and Contractors it engages with through the Services.
Documentation means all information made available by Cm3 through the Website relating to the System or Services including user manuals, guides and Software release or update information.
Fees the applicable subscription fee (as amended in accordance with the Agreement), together with any applicable fees and charges for other Services from time to time as set out in the Contract Document or Product Schedule.
Force Majeure Event means any circumstance or event which by the exercise of reasonable effort the affected party is unable to control, including:
- (a) an act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
- (b) acts or inaction on the part of any governmental authority or person purporting to act therefor or under such authority;
- (c) strikes or other industrial action, other than strikes or other industrial action of some or all of a party’s employees; and
- (d) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, pandemic or epidemic.
GST means a goods and services tax, or a similar value added tax, levied or imposed under the GST Law.
GST Law has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property Rights means any and all intellectual property rights throughout the world, including:
- (a) any patent, copyright (including future copyright but excluding moral rights), trade mark (whether registered or unregistered), software, design, circuit layout right, trade, business or company name or other proprietary right, or any right to register such rights; and
- (b) all present and future rights in an invention, discovery, trade secret, know-how, concept, idea, data or formula and rights in information, including any serendipitous discoveries, granted by law or equity from time to time under the law of any jurisdiction.
Law means all applicable laws, including rules of common law and equity, statutes, regulations, determinations, by-laws, ministerial directions, subordinate legislation, ordinances, mandatory codes, standards and guidelines, writs, orders, injunctions and judgements and any government or regulatory agency or authority requirement or authorisation (including conditions in respect of any authorisation).
Loss includes loss, damage, liability, charge, expense, outgoing or cost (including reasonable legal costs) of any nature or kind.
Network User means a subscriber to or user of Cm3’s services or system.
Network User Data means all data and information that is uploaded to or entered into the Cm3’s system by Network Users other than the Subscriber.
Permitted Purpose means the Subscriber’s internal business purposes or as otherwise agreed with Cm3.
Permitted User means an individual nominated by the Subscriber and approved by Cm3 to access and use the Services in accordance with the terms of the Agreement.
Personal Information means information or an opinion whether true or not, and whether recorded in material form or not, about an identified individual or an individual who is reasonably identifiable.
Personnel means a party’s employees, secondees, agents, contractors and subcontractors.
Product means a specific packaged Service offered by Cm3.
Product Schedule means the document of that name, available on the Website, setting out certain details of Cm3’s services and system.
Services means the provision of access to the System, or the provision of professional services relating to the System, by Cm3, as specified in the Contract Document, including as further described in the Product Schedule.
Software means the software incorporated in the System by Cm3.
Subscriber means the legal entity entering into the Agreement with Cm3 as referred to in the Contract Document.
Subscriber Data means all data and information that is uploaded to or entered into the System by the Subscriber in connection with the Agreement.
Subscription Period means the period of access to and use of the System specified in the Contract Document, if applicable.
System means the electronic platform, the software, graphical user interfaces and API and related databases, tools, materials, documentation, data storage and hosting services specified in the Contract Document, including as further described in the Product Schedule.
Term means the term of the Agreement being the period starting on the Commencement Date and ending on the termination or expiry of the Subscription Period or other period specified in the Contract Document as renewed in accordance with these Terms and Conditions.
Terms and Conditions means the terms and conditions set out or referenced above and available on the Website as amended in accordance with the Agreement.
UAT has the meaning given to that term in clause 8.3(a)(i).
UAT Period has the meaning given to that term in clause 8.3(a)(i).
Virus means any files, program or program code designed to affix themselves to, bury themselves within or send instructions to, other files, computers, or other programmes or programme code in order to cause malfunctions, errors or destruction or corruption of data.
Website means the Cm3 website through which the System is accessible.
Year means each 12 month period during the term of the Agreement commencing on the Commencement Date and each anniversary of that date.
- (a) Unless expressed to the contrary, in the Agreement:
- (i) words in the singular include the plural and vice versa;
- (ii) if a word or phrase is defined its other grammatical forms have corresponding meanings;
- (iii) ‘includes’ means includes without limitation;
- (iv) 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; and
- (v) a reference to:
- (A) a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority;
- (B) a person includes the person’s legal personal representatives, successors, assigns and persons substituted by novation;
- (C) any legislation includes subordinate legislation under it and includes that legislation and subordinate legislation as modified or replaced; and
- (D) an obligation includes a warranty or representation and a reference to a failure to comply with an obligation includes a breach of warranty or representation.
- (b) Headings do not affect the interpretation of the Agreement.