- (a) Cm3 has developed and owns, and has the right to licence and provide access to, the System.
- (b) The Customer wishes to access, and obtain a licence to use, the System. Cm3 agrees to provide such access to and use of the System and the Services to the Customer on the terms and conditions set out in this Agreement.
This Agreement commences on the Customer’s acceptance of these Terms and Conditions continues until termination in accordance with clause 15, or the expiration or cancellation of the Customer’s access to the System in accordance with these Terms and Conditions.
Subject to the payment of applicable Fees and the Customer’s compliance with the terms of this Agreement, Cm3
- (a) will provide the Services to the Customer during the Term;
- (b) grants the Customer a non-transferable, terminable, non-sublicensable, non-exclusive and limited licence to access and use the Services subject to these Terms and Conditions.
for the Term.
4 Customer’s obligations
- (a) The Customer must ensure that all Customer Data uploaded to and hosted in the System is in the agreed format.
- (b) The Customer must comply with Cm3’s reasonable instructions and guidelines relating to the input of the Customer Data and security requirements. The Customer 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 Customer:
- (i) warrants that the Customer Data is accurate and complete and that Cm3 is entitled to rely on the accuracy and completeness of the Customer Data;
- (ii) warrants that the Customer has the right to grant the licence granted in clause 10.1(a);
- (iii) indemnifies Cm3 and holds the Cm3 harmless from and against any Claim arising from or in connection with a breach of the warranties in this clause 4(c).
- (d) The Customer must:
- (i) only use the System and any data accessed by it through the System for the Permitted Purpose and not for any other purpose;
- (ii) not tamper with, hinder the operation of or make unauthorised modifications to the System;
- (iii) not knowingly transmit any Virus or other disabling feature to or from the System;
- (iv) not remove, disable or modify any security, antiVirus or other software on the System; and
- (v) keep all passwords, account names, tokens or log in identifications required to access the System secure and confidential.
5 Permitted Users
- (a) The Customer may at any time during the Term appoint Permitted Users up to the maximum permitted by Cm3 from time to time, provided that such persons:
- (i) are employees or contractors of the Customer;
- (ii) comply with these Terms and Conditions; and
- (iii) accept and agree to comply with the End User Access Terms prior to accessing and using the System.
- (b) Cm3 agrees to provide access to the System to each of the Permitted Users in accordance with the End User Access Terms (including those set out in clause 5(c)).
- (c) The Permitted Users must not do any act in relation to the use of the System that Cm3 reasonably determines to be inappropriate, or that is unlawful or is prohibited by any laws applicable to Cm3, including but not limited to:
- (i) 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:
- (ii) uploading files that contain viruses, or in any other way introduce or permit the introduction of any virus, that may cause damage to our property or the property of other individuals;
- (iii) attempting 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;
- (iv) using, or misusing, the System 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 the System;
- (v) attempting to gain unauthorised access to any materials other than those to which the User has been given express permission to access or to the information technology system on which the System is hosted;
- (vi) transmitting, or inputting 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 do not have the right to use);
- (vii) reselling any of the content, the System or the Services made available by Cm3 through the System;
- (viii) 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 System;
- (ix) unauthorised extraction of 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;
- (x) allowing other people to access the user’s account or disclosing the user’s password and login details to any third party
- (d) Without limiting any other provision of these Terms and Conditions, the Customer must only use the System for its own lawful internal business purposes, in accordance with these Terms and Conditions.
Cm3 will provide prior reasonable notice to the Customer in respect of any downtime as a result of scheduled maintenance of the System.
7 Fees and Payment
- (a) The Customer must pay the Fees to Cm3.
- (b) The Customer must pre-pay the initial subscription fee to enable access to the System.
- (c) If the Customer requires additional access to the System or wishes to use additional content, features, services or functionality in the System then additional fees may apply and must be pre-paid to enable access to the content, features, services or functionality.
- (d) Without limiting the foregoing, the System is made available to the Customer for a defined period of time on a subscription payment basis. Unless otherwise determined by Cm3, subscriptions are term-based subscriptions and, upon expiration of the relevant term, a further subscription Fee will be payable by the Customer for continued access to the System for a further term at the then prevailing rates determined by Cm3. Cm3 will use reasonable efforts to inform the Customer ahead of the expiration of the Customer’s then-current subscription period of the subscription Fees applicable to the Customer following the expiration of the period. If the Customer does not pay the subscription Fees for the further term then, unless otherwise determined by Cm3, this Agreement will expire in accordance with clause 15(b).
- (e) You must pay for the relevant Content or functionality, features or services prior to us making the Content, functionality, features or services available to You, or must pay for it in accordance with the payment terms notified to You.
- (f) Customer must:
- (i) pay any non-disputed amounts in accordance with this 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 this 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 this 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 8(b) in addition to and at the same time that the consideration for the supply is to be provided under this 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 8(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 this Agreement, the amount payable by the recipient under clause 8(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 this 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.
9 Intellectual Property Rights
9.1 Cm3 IPR
The Customer acknowledges and agrees that, as between the parties, Cm3 owns and retains all right, title and interest, including all Intellectual Property Rights, in and to the System (including the Software) and the Services.
9.2 Grant of licence
In consideration of the Fees, Cm3 grants to the Customer a non-exclusive, non-transferable, royalty-free and revocable licence to access and use the System for the Permitted Purpose during the Term in accordance with the terms of this Agreement.
9.3 Cm3 indemnity
Subject to the limitations and exclusions of liability in clause 14, Cm3 indemnifies and holds the Customer harmless from and against any Claim by a third party that the System, or its use by the Customer in accordance with this Agreement, or the provision of the Services, infringes the Intellectual Property Rights of that third party, and against Loss the Customer suffers or incurs or is liable for as a result of that Claim.
10 Customer Data
10.1 Ownership and licence
- (a) The Customer grants to Cm3 a non-exclusive, royalty-free licence to the Customer Data to:
- (i) collect, process, host, copy, transmit, display and store in accordance with this Agreement;
- (ii) disclose, and provide access, to each Permitted User and to other customers of Cm3 that Cm3 licences to use the System;
- (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 Customer warrants that:
- (i) it is entitled to disclose the Customer Data to Cm3 and has obtained all necessary consents (if any) to the disclosure of that Customer Data to Cm3 and to the disclosure of Customer Data in accordance with clause 11(b)(ii);
- (c) The Customer must ensure that it uses, discloses, stores and handles Personal Information collected by it through the System in accordance with the Privacy Act 1988 (Cth).
- (d) If Cm3 becomes aware of any loss of, unauthorised access to, or unauthorised disclosure of Customer Data in the care, custody or control of Cm3, Cm3 must:
- (i) promptly notify Customer of the matter by email, and promptly provide the Customer with details; and
- (ii) promptly take any necessary steps to contain and rectify the matter and its consequences.
- (e) If the Customer 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 Customer, the Customer must:
- (i) promptly notify Cm3 of the matter by email, and promptly provide the Cm3 with details; and
- (ii) promptly take any necessary steps to contain and rectify the matter and its consequences.
12 Data extraction
- (a) Cm3 must, at Customer’s request, provide all assistance required by Customer to enable Customer to extract and use Customer Data stored or processed on any system of Cm3 or Cm3’s subcontractors.
- (b) Any Customer Data extract must be provided in such format as may be required by Customer, including SQL output, XML and CSV format.
- (c) Cm3 may charge Customer reasonable additional fees for providing assistance under this clause 12 (Data extraction).
13 No Warranty
The Customer agrees that it uses the System and the Services at its own risk.
Without limiting the provisions of clause 14, to the maximum extent permitted by law, including the Australian Consumer Law the parties acknowledge that:
- (a) Cm3 (including its directors, affiliates, officers, employees, agents, contractors, successors and assigns) makes no warranties about the accuracy, reliability or completeness of the System or the Services or any information contained in or produced by Cm3 or the System or Services;
- (b) Cm3 does not represent or warrant that the System or Services are free from errors or omissions, or that they are exhaustive;
- (c) Cm3 disclaims all warranties and representations, express or implied, with regard to Services and the System, including warranties of merchantability and fitness for purpose;
14 Limitation of liability
- (a) To the maximum extent permitted by applicable Law, the aggregate liability of Cm3 arising under or in connection with this Agreement or the System or the Services in any Year (whether in contract, tort (including negligence), statute, equity or otherwise) is limited to the Fees paid or payable by the Customer to Cm3 in that Year.
- (b) Neither party is liable for any Indirect Loss whether foreseeable or unforeseeable suffered in connection with this Agreement (including the performance or non-performance of this Agreement) or the provision or non-provision of the Services, whether arising under contract, tort (including negligence), statute, equity or otherwise.
- (c) If a guarantee, condition, term or warranty is implied in these Terms and Conditions by law (including without limitation the Competition and Consumer Act 2010 (Cth)) and the law prohibits provisions which exclude or modify the application of the guarantee, condition, term or warranty then, if Cm3 is liable to you 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 you for any liability, loss, cost, expense or damage suffered by you 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
- (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:
- (a) Either party may terminate this Agreement at any time by giving 60 days’ prior written notice to the other party.
- (b) Unless otherwise determined by Cm3, this Agreement will automatically expire (and Customer access to the System will end) upon the expiration of the subscription term unless the Customer pays the Fees for the next subscription term prior to the end of the subscription term first-mentioned in this clause. Cm3 may, in its complete discretion, permit the Customer to have restricted access to the System following expiration of the subscription term (with such access being on these terms and conditions).
- (c) Cm3 may terminate this Agreement by giving 14 days prior written notice to the Customer for the failure to pay Fees in accordance with the terms of this Agreement.
- (d) Without limiting Cm3’s rights under clause15(c), a party may terminate this Agreement immediately by notice in writing to the other party if the other party:
- (i) commits any material breach and does not remedy the same (if capable of remedy) within 30 calendar days of being notified of such breach; or
- (ii) an Insolvency Event occurs in relation to the other party.
- (e) Subject to clause 15(f), on termination or expiry, the Customer must pay any outstanding invoices issued in relation to the payments specified in clause 6 within 20 Business Days.
- (f) If the Customer terminates the Agreement under clause 15(d), or Cm3 terminates this Agreement pursuant to clause 15(a), then Cm3 must refund (on a pro-rated basis) the pre-paid subscription Fee for the period following termination for which the subscription Fee relates, and will refund to the Customer any other pre-paid Fees (in addition to the subscription Fee) for functionality, features, services or content as relates to the period following termination to the extent that that functionality, feature, service or content has not been utilised by the Customer.
- (g) Clauses 5(b), 7, 9, 10, 11, 14, 15, 16.1, and 18 survive termination or expiry of this Agreement.
16 Force Majeure
16.1 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 this Agreement to the extent that the party is able to demonstrate that such delay or failure has been caused by a Force Majeure Event.
16.2 Obligations on party claiming force majeure
A party prevented from performing any of its obligations under this 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 this Agreement;
- (b) continue to perform all unaffected obligations in accordance with this Agreement;
- (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.
16.3 No relief for Cm3 from performance
Customer is not required to pay for any Services not provided or performed as a result of a Force Majeure Event.
- (a) This 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) The Customer may not assign any of its rights or obligations under this Agreement without the prior written consent of Cm3.
- (c) The parties are independent contractors and nothing in this Agreement gives rise to any relationship of agency, partnership, employment or otherwise.
- (d) In the event that any part of these terms and conditions 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 this Agreement is effective unless it is in writing and signed by the party granting it.
- (f) No variation of this Agreement is effective unless made in writing and signed by each party.
- (g) All notices given under this Agreement must be given by a party to the other party’s address for notice 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.
18 Governing law
This Agreement is governed by the laws in force in Victoria and each party submits to the exclusive jurisdiction of the courts of Victoria.
In this Agreement, capitalised terms have the meaning given to them in the Cover Page and as follows:
Agreement means these Terms and Conditions, the Product Schedule and any Schedule or document referred to in these Terms and Conditions.
Business Day means a day which is not a Saturday, Sunday or bank or public holiday in Sydney, New South Wales.
Claim means any claim, action, proceeding or investigation of any nature or kind and includes the allegation of a claim.
Cm3 means ACN 655 875 620 Pty Ltd.
Commencement Date means the date on which this Agreement is executed by the last party.
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.
Contract Details means the webform schedule setting out details of the System, the Customer and other information relevant to these Terms and Conditions and the Agreement.
Customer means the legal entity entering into the Agreement with Cm3 as referred to in the Contract Details.
Customer Data means all data and information that is uploaded to or entered into the System by the Customer in connection with this Agreement.
End User Access Terms means the terms and conditions set out in clause 5(c) and any other additional terms and conditions notified by Cm3 to the Customer that govern each Permitted User’s access to and use of the System for the Permitted Purpose during the Term, as notified by Cm3 to the Customer in writing.
Fees the applicable subscription fee (as amended from time to time), together with any additional fees and charges for the Services from time to time including those set out in the Contract Details or a Product Schedule.
Force Majeure Event means any circumstance or event that has, or is likely to have, a material adverse effect on the availability of the System, or 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).
Indirect Loss means:
- (a) any Loss not arising naturally and not arising according to the usual course of things, from the relevant breach or acts or omissions, whether or not such loss may reasonably be supposed to have been in the contemplation of both parties at the time they made the Agreement as the probable result of the relevant breach or act or omission; or
- (b) any loss of profits, revenue, business or data.
Intellectual Property Rights means any and all intellectual property rights throughout the world, including:
- (a) any patent, copyright (including future copyright), 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.
Insolvency Event means the occurrence of any event of insolvency, including a winding up application being made and not withdrawn within 21 days, a failure to comply with a statutory demand, the appointment of a provisional liquidator or administrator, the entering into of an arrangement with creditors, a voluntary winding up other than for the purpose of a bona fide corporate reconstruction, any inability to pay debts as and when they fall due, any admission of insolvency, any court order relating to any of the above or anything which occurs which has a similar effect to any of the foregoing.
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 all legal and other professional costs on a full indemnity basis) of any nature or kind.
Permitted Purpose means the Customer’s internal business purposes or as otherwise confirmed by Cm3.
Permitted Users means those persons nominated by the Customer to access and use the System in accordance with the terms of this 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 individuals, however engaged, by a party or its subcontractors, and includes employees, secondees, agents, contractors and subcontractors (who are individuals).
Product Schedule means the Schedule setting out details of the Software and/or System.
Services means the provision of access to the System by Cm3, as further described in Contract Details or the Product Schedule.
Software means the software incorporated in the System by Cm3.
System means the electronic platform, the Software, graphical user interfaces and API and related databases, tools, materials, data storage and hosting services referred to in the Contract Details or the Product Schedule.
Term means the period starting on the Customer agreeing to these Terms and Conditions and ending on the termination or expiration of this Agreement.
Terms and Conditions means the terms and conditions set out or referenced above and below as amended or replaced from time to time.
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.
Year means each 12 month period during the Term commencing on:
- (a) the date that the Customer agreeing to these Terms and Conditions;
- (b) the anniversary of date that the Customer agreeing to these Terms and Conditions.
Unless expressed to the contrary, in this Agreement:
- (a) words in the singular include the plural and vice versa;
- (b) if a word or phrase is defined its other grammatical forms have corresponding meanings;
- (c) ‘includes’ means includes without limitation;
- (d) 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
- (e) a reference to:
- (i) a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority;
- (ii) a person includes the person’s legal personal representatives, successors, assigns and persons substituted by novation;
- (iii) any legislation includes subordinate legislation under it and includes that legislation and subordinate legislation as modified or replaced; and
- (iv) 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.
Headings do not affect the interpretation of this Agreement.