Parties
- Achieve Best Practice Group, a company incorporated in Australia (the “Provider“); and
- the “Customer“.
Agreement
- Definitions
1.1 Except to the extent expressly provided otherwise, in this Agreement:
“Account” means an account enabling a person to access and use the Hosted Services, [including both administrator accounts and user accounts];
“Agreement” means this agreement including any Schedules, and any amendments to this Agreement from time to time;
“Business Day” means any weekday other than a bank or public holiday
“Business Hours” means the hours of [09:00 to 16:00 AEST] on a Business Day;
“Charges” means the following amounts:
(a) [the amounts specified in Part 3 of Schedule 1 (Hosted Services particulars);]
(b) [such amounts as may be agreed in writing by the parties from time to time; and]
(c) [amounts calculated by multiplying the Provider’s [standard time-based charging rates (as notified by the Provider to the Customer before the date of this Agreement)] by the time spent by the Provider’s personnel performing [the Support Services] (rounded [down by the Provider to the nearest quarter hour]);]
“Customer” means the person or entity identified as such in Part 1 of Schedule 1 (Hosted Services particulars);
“Customer Confidential Information” means:
(a) any information disclosed by [or on behalf of] the Customer to the Provider [during the Term / at any time before the termination of this Agreement] (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
(i) was marked as “confidential”; or
(ii) should have been reasonably understood by the Provider to be confidential;
(b) the Customer Data;
“Customer Data” means [all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer] (including compilations and derivative works of such data or information);
“Documentation” means [the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer] on any medium;
“Effective Date” means [the date of execution of this Agreement];
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including [failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars]);
“Hosted Services” means Achieve Best Practice, MyHSEQ, MyLMS, Get Safe Training, RTO Validation as specified in the Service Level Agreement (and any other subsequent hosted service affiliates which may later be introduced to this Agreement), which will be made available by the Provider to the Customer as a service via the internet in accordance with this Agreement;
“Hosted Services Defect” means a defect, error or bug in the Platform having an adverse effect / a material adverse effect on the appearance, operation, functionality, or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the Customer;
(b) any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
(c) a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or
(d) an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware, or software not specified as compatible in the Service Level Agreement
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, derivative works, service marks, passing off rights, goodwill, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs) or any other similar proprietary right arising or enforceable under applicable law;
“Maintenance Services” means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades (including modifications, improvements, enhancements, extensions, new releases, and other changes to the Services or Documentation made available by the Provider);
“Mobile App” means the mobile application known as [mobile application name] that is made available by the Provider through [the Google Play Store and the Apple App Store];
“Permitted Purpose” means Use of the software for purposes identified below:
- Creation of documents
- Maintenance of data
- Creation of course resources
- Library of Training materials
“Platform” means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system, and server software is installed;
“Provider” means the Achieve Best Practice Group
“Schedule” means any schedule attached to the main body of this Agreement;
“Service Level Agreement” means the specification for the Platform and Hosted Services set out in Part 2 of Schedule 1 (Hosted Services particulars) and in the Documentation;
“Services” means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;
“Support Services” means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;
“Supported Web Browser” means [the current release from time to time of Microsoft Internet Explorer, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that the Provider agrees in writing shall be supported];
“Term” means the term of this Agreement, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2;
“Update” means a hotfix, patch, or minor version update to any Platform software; and
“Upgrade” means a major version upgrade of any Platform software.
“Written Notice” means any notice to any party of the agreement relative to any part of the agreement made in writing and considered delivered when posted by certified or registered mail, to the said party at the last given address, or delivered in person to said party or authorised agent or delivered in any other legally accepted form. Non legal “written notice” may be transmitted by other means including electronic medium,
- Credit
2.1 This document was created using a template from SEQ Legal.
- Term
3.1 This Agreement shall come into force upon the Effective Date.
3.2 This Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 18 or any other provision of this Agreement.
- Hosted Services
4.1 The Provider shall ensure that the Platform will, on the Effective Date, automatically generate an Account for the Customer and provide to the Customer login details for that Account. on or promptly following the Effective Date.
4.2 The Provider hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services by means of a Supported Web Browser for the internal business purposes of the Customer in accordance with the Documentation during the Term.
4.3 The licence granted by the Provider to the Customer under Clause 4.2 is subject to the following limitations:
(a) the Hosted Services may only be used by the officers, employees, agents, and subcontractors of the Customer;
(b) the Hosted Services may only be used by the named users identified in the initial application, providing that the Customer may change, add, or remove a designated named user in accordance with the procedure set out therein; and
(c) the Hosted Services must not be used at any point in time by more than the number of concurrent users specified in the original application, providing that the Customer may add or remove concurrent user licences in accordance with the procedure set out therein; and
(d) the Customer’s designated users will not disclose their secure log in details to others to use in their stead.
4.4 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Hosted Services;
(b) the Customer must not permit any unauthorised person to access or use the Hosted Services;
(c) the Customer must not use the Hosted Services to provide services to third parties;
(d) the Customer must not republish or redistribute any content or material from the Hosted Services; and
(e) the Customer must not make any alteration to the Platform
4.5 The Customer shall use reasonable endeavours, including reasonable security measures relating to Administrator Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an administrator Account.
4.6 The Provider shall use all reasonable endeavours to maintain the availability of the Hosted Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Hosted Services but does not guarantee 100% availability.
4.7 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Customer’s computer systems or networks;
(d) any breach by the Customer of this Agreement; or
(e) scheduled maintenance carried out in accordance with this Agreement.
4.8 The Customer must comply with Schedule 2 (Acceptable Use Policy) and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an Administrator Account comply with Schedule 2 (Acceptable Use Policy).
4.9 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
4.10 The Customer must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent, or harmful; or
(b) in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity.
4.11 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code, and source code) of the Platform, either during or after the Term.
4.12 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 7 days written notice following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
- Maintenance Services
5.1 The Provider shall provide the Maintenance Services to the Customer during the Term.
5.2 The Provider shall where practicable give to the Customer at least 7 Business Days prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services, without prejudice to the Provider’s other notice obligations under this main body of this Agreement.
5.3 The Provider shall give to the Customer at least 7 Business Days prior written notice of the application of an Upgrade to the Platform.
5.4 The Provider shall publicise on its website the application of any system updates.
5.5 The Provider shall provide the Maintenance Services with reasonable skill and care / in accordance with the standards of skill and care reasonably expected from a leading service provider in the Provider’s industry.
5.6 The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.
- Support Services
6.1 The Provider shall provide the Support Services to the Customer during the Term.
6.2 The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this main body of this Agreement.
6.3 The Provider shall provide the Support Services with reasonable skill and care / in accordance with the standards of skill and care reasonably expected from a leading service provider in the Provider’s industry.
6.4 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
6.5 The Provider shall respond promptly (under the facts and circumstances at the time) to all requests for Support Services made by the Customer through the helpdesk.
6.6 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
- Customer Data
7.1 The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under this Agreement, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under the Agreement.
7.2 The Customer warrants to the Provider that the Customer Data / the use of the Customer Data by the Provider in accordance with this Agreement will not:
(a) breach the provisions of any law, statute, or regulation;
(b) infringe the Intellectual Property Rights or other legal rights of any person; or
(c) give rise to any cause of action against the Provider,
in each case in any jurisdiction and under any applicable law.
7.3 The Provider shall create a back-up copy of the Customer Data at least daily, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 30 days.
- 8. MyRTO Website
8.1 The parties acknowledge and agree that the use of the MyRTO Website, the parties’ respective rights and obligations in relation to the Mobile App and any liabilities of either party arising out of the use of the Mobile App shall be subject to separate terms and conditions, and accordingly this Agreement shall not govern any such use, rights, obligations, or liabilities.
- No assignment of Intellectual Property Rights
9.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer or from the Customer to the Provider.
- Charges
10.1 The Customer shall pay the Charges to the Provider in accordance with this Agreement.
10.2 If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer’s written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 10.2.
10.3 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated inclusive of any applicable value added taxes / exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.
10.4 The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days written notice of the variation expiring on any anniversary of the date of execution of this Agreement, providing that no such variation shall result in an aggregate percentage increase in the relevant element of the Charges during the Term that exceeds 10% over the percentage increase, during the same period unless increase in user charges is due to request by the Customer for additional services
- Payments
11.1 The Provider shall issue invoices for the Charges to the Customer in advance of the period to which they relate / from time to time during the Term / on or after the invoicing dates set out in Part 3 of Schedule 1 (Hosted Services particulars).
11.2 The Customer must pay the Charges to the Provider by credit card, direct debit, or EFT in advance.
11.3 The Customer must pay the Charges by the on-line payment gateway unless otherwise agreed.
11.4 If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may:
charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank base rate from time to time which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month;
- Provider’s confidentiality obligations
12.1 The Provider must:
(a) keep the Customer Confidential Information strictly confidential;
(b) not disclose the Customer Confidential Information to any person without the Customer’s prior written consent, and then only under conditions of confidentiality approved in writing by the Customer / no less onerous than those contained in this Agreement;
(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider’s own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Customer Confidential Information; and
(e) not use any of the Customer Confidential Information for any purpose other than the Permitted Purpose.
12.2 Notwithstanding Clause 12.1, the Provider may disclose the Customer Confidential Information to the Provider’s officers, employees, professional advisers, insurers, agents, and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
12.3 This Clause 12 imposes no obligations upon the Provider with respect to Customer Confidential Information that:
(a) is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the Provider; or
(c) is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.
12.4 The restrictions in this Clause 12 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, by other legislative requirements, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.
12.5 The provisions of this Clause 12 shall continue in force following the termination of this Agreement, at the end of which period they will cease to have effect.
- Data protection
13.1 The Customer warrants to the Provider that it has the legal right and any required consent to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement, and that the processing of that Personal Data by the Provider for the Permitted Purpose under or in accordance with this Agreement will not breach any applicable data protection or data privacy laws.
13.2 To the extent that the Provider processes Personal Data disclosed by the Customer, the Provider warrants that:
(a) it will act only on instructions from the Customer in relation to the processing of that Personal Data;
(b) it has in place appropriate security measures (both technical and Customeral) against unlawful or unauthorised processing of that Personal Data and against loss or corruption of that Personal Data; and
(c) The Provider shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
- Warranties
14.1 The Provider warrants to the Customer that:
(a) the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
(b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider’s rights and the fulfilment of the Provider’s obligations under this Agreement; and
(c) the Provider has or has access to all necessary know-how, expertise, and experience to perform its obligations under this Agreement.
14.2 The Provider warrants to the Customer that:
(a) the Platform and Hosted Services will conform in all material respects with the Service Level Agreement;
(b) “during the Subscription Period, at no additional cost to Customer and as Customer’s sole and exclusive remedy to Hosted Services Defects, the Supplier will use reasonable efforts to provide a Correction to any material fault in the Supplier software used to provide the Services in accordance with the Support guidelines, provided that Customer promptly notifies the Provider in writing upon discovery of any such Defect and the Provider’s investigation discloses that such Defect exists
(c) the application of Updates and Upgrades to the Platform by the Provider will not introduce any Hosted Services Defects into the Hosted Services (given due consideration to 14.2 (b));
(d) the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware, and other malicious software programs; and
(e) the Platform will incorporate security features reflecting the requirements of good industry practice.
14.3 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not breach any laws, statutes, or regulations applicable under Australian law.
14.4 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
14.5 If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with this Agreement infringes any person’s Intellectual Property Rights, the Provider may at its own cost and expense:
(a) modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
(b) procure for the Customer the right to use the Hosted Services in accordance with this Agreement.
14.6 The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under the Agreement.
14.7 All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into the Agreement or any related contract.
- Acknowledgements and warranty limitations
15.1 The Customer acknowledges that complex software is never wholly free from defects, errors, and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors, and bugs.
15.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
15.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Service Level Agreement; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
15.4 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
- Limitations and exclusions of liability
16.1 Nothing in this Agreement will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
16.2 The limitations and exclusions of liability set out in this Clause 16 and elsewhere in this Agreement:
(a) are subject to Clause 16.1; and
(b) govern all liabilities arising under the Agreement or relating to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in the Agreement.
16.3 The Provider shall not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.
16.4 The Provider shall not be liable to the Customer in respect of any loss of profits or anticipated savings.
16.5 The Provider shall not be liable to the Customer in respect of any loss of revenue or income.
16.6 The Provider shall not be liable to the Customer in respect of any loss of use or production.
16.7 The Provider shall not be liable to the Customer in respect of any loss of business, contracts, or opportunities.
16.8 The Provider shall not be liable to the Customer in respect of any loss or corruption of any data, database, or software; providing that this Clause 16.8 shall not protect the Provider unless the Provider has fully complied with its obligations under Clause 7.3 and Clause 7.4.
16.9 The Provider shall not be liable to the Customer in respect of any special, indirect, or consequential loss or damage.
16.10 The liability of the Customer to the Provider under this Agreement in respect of any event or series of related events shall not exceedf:
(a) The fees due for use of the software for a period of 10 years
16.11 The aggregate liability of the Provider to the Customer under this Agreement shall not exceed:
(a) the total amount paid and payable by the Customer to the Provider under the Agreement since the time of dispute
- Force Majeure Event
17.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement other than any obligation to make a payment, that obligation will be suspended for the duration of the Force Majeure Event.
17.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
17.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
17.4 A Force Majeure event does not excuse a party for any breach following the event under any circumstances.
17.5 An event of Force Majeure does not relieve a party from liability for an obligation which arose before the occurrence of that event.
- Termination
18.1 Either party may terminate this Agreement by giving to the other party at least 60 days written notice of termination. Being mindful there is a minimum of 12 month’s service commitment.
18.2 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement.
18.3 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company organisation where the resulting entity will assume all the obligations of the other party under the Agreement)];
- Effects of termination
19.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 4.11, 8, 11.2, 11.4, 12, 16, 19, 22 and 23.
19.2 The termination of this Agreement shall not affect the accrued rights of either party.
19.3 Within 7 days following the termination of this Agreement for any reason:
(a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement; and
(b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Agreement,
without prejudice to the parties’ other legal rights.
- Notices
20.1 Any notice having legal bearing from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out in Clause 20.2 and Part 4 of Schedule 1 (Hosted Services particulars)):
(a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery;
(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting; or
(c) providing that if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
20.2 The Provider’s contact details for notices under this Clause 20 are as follows:
- Phone 1800803162
- email: use Contact us on the website.
- fax 0731029111
20.3 The addressee and contact details set out in Clause 20.2 and Part 4 of Schedule 1 (Hosted Services particulars) may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 20.
- Subcontracting
21.1 The Provider may subcontract any of its obligations under this Agreement, providing that the Provider must give to the Customer, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question.
21.2 The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.
21.3 Notwithstanding any other provision of this Agreement, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.
- General
22.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
22.2 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
22.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
22.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
22.5 This Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation, or settlement under or relating to this Agreement are not subject to the consent of any third party.
22.6 Subject to Clause 16.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements, and understandings between the parties in respect of that subject matter.
22.7 This Agreement shall be governed by and construed in accordance with Australian law.
22.8 The courts of Australia shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
- Interpretation
23.1 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
23.2 The Clause headings do not affect the interpretation of this Agreement.
23.3 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
Execution
The parties have indicated their acceptance of this Agreement by use of the services after provision of user name and password.
Schedule 1 (Hosted Services particulars)
- Customer details
The Customer is identified in the application.
- Specification of Hosted Services
As requested in the original application and subsequent requests to amend services.
- Financial provisions
Fees are calculated by the “cost calculator” published on the web-site.
- Intellectual property
Any document created using this system remains the Intellectual property of the Achieve Best Practice Group. After cancellation of services or subscription to services the Customer shall stop using and/or accessing the Products and destroy all documentation and provide a “Statutory declaration”, otherwise fees and charges will continue to accrue regardless of whether the Customer actively uses the software package.
Schedule 2 (Acceptable Use Policy)
- Introduction
1.1 This acceptable use policy (the “Policy“) sets out the rules governing:
(a) the use of the website, any successor website, and the services available on that website or any successor website (the “Services“); and
(b) the transmission, storage, and processing of content by you, or by any person on your behalf, using the Services (“Content“).
1.2 References in this Policy to “you” are to any customer for the Services and any individual user of the Services (and “your” should be construed accordingly); and references in this Policy to “us” are to Achieve Best Practice Group (and “we” and “our” should be construed accordingly).
1.3 By using the Services, you agree to the rules set out in this Policy.
1.4 We will ask for your express agreement to the terms of this Policy before you upload or submit any Content or otherwise use the Services.
1.5 Should a definitive case arise for a person under the age of 18 to use the Services, case information must be provided to, and written agreement obtained from the Provider. Regardless, the under 18 person will have restricted access.
- General usage rules
2.1 You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
2.2 You must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent, or harmful; or
(b) in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity.
2.3 You must ensure that all Content complies with the provisions of this Policy.
- Unlawful Content
3.1 Content must not be illegal or unlawful, must not infringe any person’s legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
3.2 Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:
(a) be libellous or maliciously false;
(b) be obscene, defamatory, invasive of privacy, indecent or otherwise objectionable;
(c) infringe any copyright, moral right, database right, trademark right, design right, right in passing off, or other intellectual property right;
(d) infringe any right of confidence, right of privacy or right under data protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
(g) be in contempt of any court, or in breach of any court order;
(h) constitute a breach of racial or religious hatred or discrimination legislation;
(i) be blasphemous;
(j) constitute a breach of official secrets legislation; or
(k) constitute a breach of any contractual obligation owed to any person.
3.3 You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.
- Graphic material
4.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question, and in particular for children over 12 years of age (also refer Schedule 2, 1.5)
4.2 Content must not depict violence in an explicit, graphic, or gratuitous manner.
4.3 Content must not be pornographic or sexually explicit.
- Factual accuracy
5.1 Content supplied by the Customer must not be untrue, false, inaccurate, or misleading.
5.2 Statements of fact contained in Content and relating to persons (legal or natural) and evidentiary information and data supplied by the Customer must be true.
- Negligent advice
Content supplied by the Customer must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage
- Etiquette
7.1 Content must be appropriate, civil, and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.
7.2 Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory, or inflammatory.
7.3 Content must not be liable to cause annoyance, inconvenience, or needless anxiety.
7.4 You must not use the Services to send any hostile communication, or any communication intended to insult, including such communications directed at a particular person or group of people.
7.5 You must not use the Services for the purpose of deliberately upsetting or offending others.
7.6 You must not unnecessarily flood the Services with material relating to a particular subject or subject area, whether alone or in conjunction with others.
7.7 You must at all times be courteous and polite to other users of the Services.
- Marketing and spam
8.1 You must not without our written permission use the Services for any purpose relating to the marketing, advertising, promotion, sale or supply of any product, service, or commercial offering.
8.2 Content must not constitute or contain spam, and you must not use the Services to store or transmit spam – which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
8.3 You must not send any spam or other marketing communications to any person using any email address or other contact details made available through the Services or that you find using the Services.
8.4 You must not use the Services in any way which is liable to result in adverse attention to or banning / blacklisting of any of our IP addresses.
- Monitoring
9.1 You acknowledge that we may actively monitor the Content and the use of the Services.
- Data mining
10.1 You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.
- Harmful software
11.1 The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications, or technologies.
11.2 The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any software, programs, routines, applications, or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.
Schedule 3 (Service Level Agreement)
This SLA is intended to provide details of the provision of system and support services by Achieve Best Practice Group.
This SLA will evolve over time, with additional knowledge of client requirements, as well as the introduction of new devices and services into the support portfolio provided by Achieve Best Practice Group. Updates will be posted on our website. Continued use of the systems after such posting is deemed to be acceptance of those changes. Notifications will be posted on our website of any substantial changes.
Services and Requests Covered Under This Agreement
The following services are provided by the “Provider” to the Customer:
- NAME AND DESCRIPTION OF PRIMARY SERVICE
MyHSEQ is the flagship system of ACHIEVE BEST PRACTICE GROUP, combining industry expertise and modern technologies. MyHSEQ is an online, fully integrated, risk management system for WH&S, Environmental and Quality Assurance compliance, including the management of human resources records such as training, health management and performance. MyHSEQ combines one or more of the products listed in this brochure to provide what can be paperless management solutions for your business.
- Products within the service Portfolio
- MyHSEQ
- Safe-T Induct
- MyVOC
- MyInduction
- RTO Validation
- Manage My RTO
- PQC Management Systems
- Get Safe Training
- Safe-T Shop
- Asbestos Management Plan
- STATEMENT OF “PROVIDER” RESPONSE TIME
The guaranteed response time following any help call registered via the “Help & Support” button on the product screen shall be forty eight (48) business hours or less, normal business hours (AEST 9 a.m. – 4:00 p.m., Monday – Friday). The response time begins when the request is logged with the Provider’s issue-ticketing system and is stopped when the technician logs the details of assistance offered.
- STATEMENT OF SERVICE AVAILABILITY
The guaranteed response time following any service call is forty eight (48) business hours or less. If the “Provider” is unable to respond[1] to any service call within forty eight (48) hours from the time the call was placed the “Provider” shall provide at no charge, time equivalent to that lost in the form of future credit, that falls below 95% uptime for any twenty (20) working day period.
- If uptime for the system falls within the 94-90% range during any twenty (20) working day period, the monthly credit to the Customer shall be granted on a case by case basis. Being mindful that credit will only be granted if the error is Provider side and falls outside the root causes written into clause 4.7.
- STATEMENT REGARDING AFTER HOURS SUPPORT
All requests for support for non-business hours shall be deemed to be After-Hours Support. After-Hours Support will be provided at hourly rate if the “Provider” has an available technician.
- WHO RECEIVES / PROVIDES TRAINING
Initial on-line training shall be provided for the system to one operator. Additional training is available from your reseller or ACHIEVE BEST PRACTICE GROUP at hourly rate at a rate to be determined from time to time. At all times there is available “Help & Tuition” training within the system.
- MANAGEMENT OF CHANGES
New or changed processes, practices, or policies that affect the Customer support team and that have an impact on the system shall be presented to the Customer to understand, learn, and follow. All changes shall be notified to the Customer through the system “Alert” function.
[1] If the call can be satisfactorily resolved via telephone support or email response, it shall be deemed an acceptable vendor response.
[2] Total Time = Available time for 8:00 a.m. – 4:0 p.m. for 20 days (8 hours x 20 days = 160)
[3] Lost Time = Lost time in hours. The total elapsed time, within an eight (8) hour per day, between the limits of 8:00 a.m. – 4:00 p.m., Monday – Friday, excluding public holidays that the system is unavailable or other primary functions in accordance with the specification for reasons attributable to equipment failure or withdrawal of Lost Time shall commence upon notification by the Customer to the Vendor’s specified service dispatch of a fault condition which prevents full utilisation of the system and shall end when the system is powered up and ready to execute Customer’s work, and the fault call has been logged as complete by the technician.