Legal Terms & Conditions

Updated 21 July, 2020 - CCO Frameworks Pty Ltd

1. Meanings

1.1. Words used in this Agreement and the rules of interpretation that apply to this Agreement are set out in Clause 17 of these Terms and Conditions.

2. Acceptance of Terms

2.1. CCO Frameworks Pty. Ltd., (herein referred to as “CCO”) provides its service (as defined below) to the Customer through its master website at www.ccoframeworks.com and associated and subsidiary websites (the “Site”), subject to this Terms and Conditions of Service agreement (“Agreement”). By accepting this Agreement or by accessing or using the Service or Site, the Customer acknowledges that it has read, understood, and agreed to be bound by this Agreement. By entering into this Agreement, the Customer represents that it has the authority to bind such entity and its affiliates to this Agreement, in which case the term “Customer” shall refer to such entity and its affiliates.

2.2. CCO may change this Agreement from time to time without prior notice. The Customer can review the most current version of this Agreement at any time at www.ccoframeworks.com/legal/. The revised terms and conditions will become effective upon posting and if the Customer uses the Service after that date, we will treat the use as acceptance of the revised terms and conditions.

3. Description of Service

3.1. Subject to the execution of an Order Schedule and subject to the terms in the Order Schedule, CCO grants to the Customer a personal, non-transferable, non-exclusive right to use the Service in the Territory for the Term.

3.2. The Customer may:

3.2.a. access the Service using World Wide Web browser software. Access is limited to the number of Users as specified in the Order Schedule;

3.2.b. use the Service for the sole use of the Customer's business purposes.

3.3. Any additional features and functionality added to the Service are also subject to this Agreement and must be accepted by the Customer.

4. Conditions and Use of Service

4.1. The Customer must:

4.1.a. use the Service only in accordance with Section 3 and must not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, incorporate into other products, or otherwise commercially exploit or make the Service available to any third party, or other than as expressly committed in writing by CCO;

4.1.b. ensure that the Customer and the Customer’s Personnel do not modify, replicate, reverse engineer, decompile, decode, decrypt, disassemble, or derive any source code from the Software used to provide the Service;

4.1.c. be responsible for all information, Data, messages of other materials posted or otherwise transmitted via the Service.

4.1.d. require that each User Maintains the secrecy of their usernames and passwords for accessing the Service and do not disclose such usernames and passwords to any person;

4.1.e. independently obtain and pay for the necessary communication links, communications and computer hardware and software necessary for the Customer to access the Service;

4.1.f. comply with all applicable laws (including the Privacy Act as if the Act applies to it even if it does not), regulations, industry codes and CCO policies provided to the Customer (as varied from time to time) in connection with the use of the Service.

4.2. understand and acknowledge that the technical processing and transmission of the Service, including the Customer’s content, may be:

4.2.a. transmitted over various networks;

4.2.b. may be changed to conform and adapt to technical requirements of connecting networks or devices; and

4.2.c. may be transmitted to CCO’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage and related technology required to operate and maintain the service.

4.3. The Customer agrees that except for the limited right to use the Service provided under this Agreement, all other rights, title and interest in and to the Service and its components will remain the exclusive property of and vest in CCO.

4.4. CCO may suspend the Service without notice:

4.4.a. where urgent maintenance is required;

4.4.b. if the Customer breaches this Agreement;

4.4.c. to prevent damage to the Service; or

4.4.d. where CCO reasonably suspects that the Service is being used, accessed or attacked in an unauthorised or illegal manner.

5. Customer Support Services

5.1. Subject to any charges defined in the Order Schedule, CCO shall provide the Customer with the following support services:

5.1.a. telephone and electronic support during normal Business Hours to the Customer’s nominated representative (as nominated to CCO from time to time) for the reporting, discussion, identification, diagnosis and isolation of any error, defect or unexpected result produced by the Service, and

5.1.b. Internet-based support system generally available seven (7) days a week, twenty-four (24) hours a day.

5.2. The Customer must:

5.2.a. co-operate with and reasonably assist CCO’s Personnel in the diagnosis of any error or defect in the Service; and

5.2.b. provide to CCO’s Personnel during normal Business Hours access and facilities reasonably required by CCO to perform Support Services.

5.3. CCO will use commercially reasonable effort, at its own expense, to determine if there is an error or defect, and to correct or remedy the error or defect within a reasonable period.

5.4. The Customer will make reasonable appropriate adjustment to mitigate adverse effects of any error or defect until CCO corrects or remedies the defect or error.

6. Excluded Support Services

6.1. Without limiting the other provisions of this Agreement, the Customer Support services specifically exclude provision of services to cover support and maintenance requirements arising from:

6.1.a. errors resulting from the use of the Service other than in accordance with the guidelines provided by CCO from time to time;

6.1.b. operating (User) errors;

6.1.c. a fault in software, telecommunications links or equipment not supplied by CCO, including the software and equipment used by the Users to access the Service.

6.2. Charges at CCO’s then current time and materials rates may be charged by CCO to the Customer when:

6.2.a. any maintenance or support is required which in CCO’s reasonable opinion results from other than the normal operation of the Service, including due to the Customer’s fault or misuse of the Service, or the Customer’s failure to provide the necessary facilities or to observe the requirements or obligations contained in this Agreement;

6.2.b. additional User training is required in the use of the Service;

6.2.c. additional services are provided at the request of the Customer; or

6.2.d. support is requested from Users other than the Customer’s nominated representatives.

6.3. Where additional services requested by the Customer involve enhancements or modifications to the Service, such services will be chargeable to the Customer at CCO’s then current rates. Such services may be provided subject to a separate Consulting Services Agreement. Such enhancements and modifications remain the property of CCO as per Section 10 of this Agreement, and may be made available to other Customers of CCO in future versions and releases of the Service.

7. Service Level Agreement

7.1. CCO will use its reasonable commercial efforts to maintain the Service availability to 98% of the time each month.

7.2. Subject to paragraph 7.1, if the Service is available:

7.2.a. less than 98% but no less than 95% of all hours in the calendar month, CCO will provide a Customer rebate of 5% of the Service fee payable for that month;

7.2.b. less than 95% of all hours in a calendar month, CCO will provide the Customer a rebate of 10% of the Service fee payable for that month.

7.3. Any rebate CCO is required to give under clause 7.2 will be credited to the Customer’s account with CCO.

7.4. A rebate will not be provided by CCO where the Service is not accessible:

7.4.a. due to routine maintenance that is notified to the Customer in advance;

7.4.b. due to an act or omission of the Customer (including any failure by the Customer to notify CCO of an issue in accordance with Section 5 of the Agreement);

7.4.c. due to an act or omission of a supplier of CCO or the Customer including Internet service providers, provided CCO uses all reasonably commercial efforts to promptly overcome or provide work-around to a problem caused by its suppliers;

7.4.d. where CCO is entitled to suspend or terminate the Customer’s access to the Service in accordance with the terms of this Agreement, or;

7.4.e. otherwise due to an event beyond the reasonable control of CCO, including Force Majeure.

7.5. The rebates referred to in 7.2 are the Customer’s sole remedy against CCO for a breach of availability of the Service.

8. Fees and Payments

8.1. The Customer must pay CCO the Fees in accordance with this Section 8 or as otherwise provided in the Order Schedule.

8.2. CCO may issue Tax Invoices for the Fees, together with any other fees or charges payable to CCO:

8.2.a. in the case of amounts payable for the provision of Service over a specified recurring period of time, immediately before the commencement of the time period to which the Fee relates;

8.2.b. otherwise where the Fees are calculated based on an hourly rate, immediately after the hours of work have been done; and

8.2.c. in any other case, before CCO provides the Customer with the relevant service.

8.3. The Customer must pay the amount stated in CCO’s Tax Invoice, within 14 days of receipt or on such later due date specified in the Tax Invoice.

8.4. Without limiting clause 8.3, if the Customer disputes an amount set-out in CCO’s Tax Invoice, it must notify CCO within 14 days of the date of receipt of the Tax Invoice and provide written reasons for the dispute. Resolution of the dispute is then subject to the Dispute Resolution section of this Agreement.

8.5. The Customer will nominate 1 person whom CCO will liaise with in relation to all invoices and payment matters.

8.6. The Customer must pay CCO interest on any amount due and not paid by the Customer within the time required by this Agreement at the rate which is 2% per annum above the Commonwealth Bank of Australia Corporate Overdraft Reference Rate (and if that rate ceases to be quoted, any similar rate quoted by an Australian licensed bank nominated by CCO as quoted on the date on which payment was due (or if that date is not a Business Day, the next Business Day when the rate is quoted).

8.7. To the maximum extent permitted by law, the Fees are non-refundable.

8.8. For effect at the conclusion of the Minimum Term and unless specified otherwise in this Agreement, CCO may, acting reasonably, vary the level of Fees, on no less than 30 days prior written notice.

8.9. The Customer may terminate this Agreement on no less than 30 days prior written notice if the Customer is unwilling to pay any increase in Fees notified under clause 8.8, unless CCO agrees to waive the increase within 14 days of receipt of the Customer’s notice. Any such termination will not affect the rights or obligations of either party under this Agreement to which the Fee increase does not apply.

9. Trademarks

9.1. Pali and CCO’s various logos used or displayed on the Service are trademarks (pending) of CCO and the Customer may only use these trademarks or logos for promotional purposes to identify yourself as a customer or user of the CCO Service.

9.2. The Customer shall not gain any right, title or interest with respect to CCO’s logos and trademarks by the Customer’s use thereof.

10. Intellectual Property

10.1. The customer:

10.1.a. acknowledges and agrees that all Intellectual Property owned or developed by CCO, or licensed from third parties to provide the Service, remains the sole property of CCO and its licensors (as the case may be), regardless of whether that Intellectual Property was created in accordance with this Agreement;

10.1.b. must obtain, at the request and for the benefit of CCO, a written assignment of that Intellectual Property from any of the Customer’s Personnel who may otherwise claim an interest in that Intellectual Property, together with a written consent waiving any moral rights that person may have in connection with the Intellectual Property; and

10.1.c. must, on the termination of this Agreement or at the earlier request of CCO, deliver up to CCO a copy of any Intellectual Property referred to in this clause 10.1.

10.2. Except as provided in this section 10, CCO does not grant the Customer any ownership rights in relation to any Intellectual Property under this Agreement and all Intellectual Property remains property of CCO and applicable third parties.

10.3. CCO may suspend the performance of its obligations under this Agreement and vary this Agreement, if any third party alleges that any use, reproduction, modification or adaptation referred to in Section 10 infringes the rights of that third party.

11. Termination

11.1. Without limiting CCO’s other rights, CCO may terminate this Agreement, by giving written notice to the Customer if:

11.1.a. the Customer fails to pay any undisputed amount to CCO when due;

11.1.b. the Customer breaches any other provision of this Agreement and does not remedy that breach (if capable of remedy) within 30 days after receipt of notice requiring it to do so, or;

11.1.c. with immediate effect if the Customer suffers an Insolvency Event or a Change in Control.

11.2. The Customer may terminate this agreement by giving written notice to CCO if:

11.2.a. CCO commits a material breach of this Agreement and does not remedy that material breach (if capable of remedy) or offer reasonable compensation within 30 days after receipt of notice of breach, or;

11.2.b. with 30 days’ notice after the Minimum Term.

11.3. Consequences of Termination:

11.3.a. Subject to this clause 10, upon termination of this Agreement each party must promptly return to the other party or destroy (at the other party’s election) all Confidential Information, software, Data, materials and other property of the third party, held by it, it’s employees or otherwise under its control.

11.3.b. Termination of this Agreement for any reason does not affect the rights and obligations of either party arising prior to termination. Sections: 8, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22 survive termination of this Agreement.

12. Confidentiality

12.1. The Receiving Party shall hold in confidence all Confidential Information that the Disclosing Party discloses to it under this Agreement.

12.2. A Receiving Party may only use the Confidential Information in accordance with the terms of this Agreement.

13. Data Protection

13.1. CCO shall maintain an information security program, including physical, technical, administrative and organisational safeguards, designed to:

13.1.a. ensure the security and confidentiality of the Customer’s Data;

13.1.b. protect against any anticipated threats or hazards to the security or the integrity of the Customer’s Data;

13.1.c. protect against unauthorised disclosure, access to, or use of the Customer’s Data;

13.1.d. maintain the integrity of Data through back-ups; and,

13.1.e. ensure that all employees, agents, and subcontractors of CCO, if any, comply with all the foregoing.

14. Exclusion of Warranty

14.1. The Service, including the Site and content, and all server and network components are provided on an “as is” and “as available” basis without any warranties of any kind, to the fullest extent permitted by law and CCO disclaims any and all warranties, whether express or implied.

14.2. The Customer acknowledges that CCO does not warrant that the service will be uninterrupted, timely, error-free or virus free and no information or advice obtained by the Customer from CCO or through the Service shall create any warranty not expressly stated in this Agreement.

15. Limitation of Liability

15.1. In no event shall either party be liable for any Loss or Consequential Loss that the other party may incur by reason of having entered into or relied upon this Agreement, regardless of the form of action in which such Loss or damages are asserted, whether in contract or otherwise.

15.2. A party’s liability for the Loss or damage directly caused by the other party under or in relation to this Agreement shall be limited to all Fees paid by the Customer in accordance with this Agreement in the three (3) months preceding the date in which the event or last event in a series of connected events given rise to liability occurred. In the event that the Loss or damage occurs during the first three month period of the Agreement the limit defined above shall be the Fees paid by the Customer up to the event of last event in a series of connected events given rise to liability.

15.3. The remedy listed in this section will be the sole remedy for a breach according to Sections 14 and 15.

15.4. CCO makes no express warranties and excludes all liability for any damages whatsoever to the services provided to the Customer by third parties.

16. Indemnification

16.1. The Customer shall indemnify CCO and its Personnel, and keep them indemnified, from and against all Loss expenses arising out of any proceeding:

16.1.a. brought by either a third party or CCO; and

16.1.b. that arises out of any breach from the Customer’s use of the Service, breach of this Agreement, violation of any law, infringement of another’s rights or otherwise arising out of material made available through the Customer’s and any User’s use of the Service.

16.2. Each party (as an “Indemnifying Party”) shall indemnify the other (as an “Indemnified Party”) against all losses arising out of any proceeding:

16.2.a. brought by either a third party or an Indemnified Party; and

16.2.b. that arises out of the Indemnifying Party’s wilful misconduct or gross negligence.

17. Dispute Resolution

17.1. Dispute Procedures

17.1.a. if a Dispute under this agreement arises the party claiming that a Dispute has arisen must give notice to the other party indicating the nature of the Dispute (Dispute Notice) and the parties must negotiate in good faith to resolve the Dispute within 10 Business Days after the issue of a Dispute Notice or any longer period agreed in writing by the parties.

17.1.b. if the parties have been unable to resolve the Dispute in accordance with clause 17.1 (a) then the parties must, within 5 Business Days of expiry of the period referred to in clause 17.1 (a) submit the Dispute to mediation administered by the Australian Commercial Disputes Centre (ACDC) in accordance with the ACDC Guidelines for Commercial Mediation, which Rules are taken to be incorporated into this agreement. Any mediation must commence within 5 Business Days of the submission of the Dispute to the ACDC.

17.1.c. despite any of the Rules of the ACDC, the parties agree if they have been unable to resolve the Dispute within 5 Business Days of the first mediation meeting, they must, within 2 Business Days of expiry of such 5 Business Day period, terminate the mediation process and appoint an Independent Expert to determine the Dispute.

17.2. Continued Performance of this Agreement

17.2.a. Despite the existence of a Dispute, the parties must continue to perform their respective obligations under the Agreement.

18. Privacy

18.1. CCO will collect, use and process Data in accordance with CCO’s Privacy Policy published on CCO’s website www.ccoframeworks.com/privacy/.

19. Force Majeure

19.1. If an event of Force Majeure occurs:

19.1.a. Each obligation of a party under this Agreement will be suspended during the time and to the extent that the party is wholly or partially prevented from or delayed in complying with that obligation by Force Majeure; and

19.1.b. a party affected by Force Majeure, as soon as reasonably practical, shall notify the other party of the full particulars of the Force Majeure and the manner in which its performance is prevented from complying with its obligation; and

19.1.c. promptly make commercially reasonable endeavours to enable it to continue to perform the obligations which is prevented or delayed by Force Majeure.

19.2. If a party is relieved from performing an obligation under clause 19.1, for a period of at least 60 days, either party may terminate this Agreement with immediate effect and without penalty by written notice to the other.

20. Notices

20.1. All notices and other communications between the parties must be in writing.

20.2. All notices must be given by:

20.2.a. personal delivery, or

20.2.b. a Nationally recognised, next day courier service, or

20.2.c. registered or certified mail, postage prepaid, or

20.2.d. electronic mail

to the party’s address specified in the Agreement, or to the address that a party has notified to be that party’s address for the purposes of this section.

20.3. A notice given in accordance with this Agreement will be effective upon receipt by the party to which it is given or, if mailed, upon the earlier of receipt and the fifth Business Day following mailing.

21. General

21.1. Entire Agreement

21.1.a. This Agreement including its Order Schedule contains all the terms agreed to by the parties relating to this subject matter. It replaces all previous discussions, understandings and agreements; and

21.1.b. this Agreement including its Order Schedule can be amended only by a written instrument signed on behalf of both parties.

21.2. Assignment

21.2.a. CCO may assign or sub-contract it’s right and obligations under this Agreement to a third party that CCO reasonably believes is in a position to fulfill the obligations of CCO under this Agreement or otherwise; and

21.2.b. The Customer must not assign or sub-contract its rights or obligations under this Agreement without the prior written consent of CCO.

21.3. Governing Law

21.3.a. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Victoria.

21.4. Severability

21.4.a. If any part of this Agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.

21.5. Each party must execute any agreement and perform any action necessary to give full effect to this Agreement, whether before or after performance of this Agreement.

21.6. The provisions of this Agreement do not merge with any action performed or agreement executed by any party for the purposes of performance of this Agreement.

21.7. Each party must pay its own costs in relation to:

21.7.a. the negotiation, preparation, execution, performance, amendment or registration of, or any consent given or made; and

21.7.b. the performance of any action by that party in compliance with any obligation or liability arising,

21.8. Except in accordance with this Agreement, either party must not contract, employ or otherwise engage the services of any Personnel of the other party, either directly or indirectly, during the term or for a period of twelve months after the expiry of the termination of this Agreement.

21.9. Publicity

21.9.a. The parties shall cooperate to draft all appropriate press releases and other public announcements relating to the subject matter of this Agreement and the relationship between the parties.

21.9.b. Neither party may issue any press release or public announcement without the other party’s written consent, unless required by Law.

21.9.c. The parties will not unreasonably withhold or delay their consent to press releases, case studies or public announcements.

21.10.Any failure by any party to exercise any right under this Agreement does not operate as a waiver and the single or partial exercise of any right by that party does not preclude any other or further exercise of that or any other right by that party.

22. Definitions and Interpretations

In this Agreement, unless the context otherwise requires:

Agreement  means collectively, these Terms and Conditions, together with each Order Schedule and all attachments, exhibits, policies and any other document executed by the parties which incorporates these Terms and Conditions;

Business Day  means any day on which banks are open and conduct normal trading operations in Victoria other than a Saturday or Sunday;

Business Hours  means the hours between 9:00am and 5:00pm on a Business Day;

Change in Control  means:

a) where any third party gains direct or indirect control over the majority of the shares, or beneficial interest in the shares, of the Customer;

b) where any third party gains direct or indirect control over the composition of the Customer’s Board of Directors;

c) where any third party gains direct or indirect control over the casting of the majority of votes for the Customer’s voting shares;

d) where any third party gains direct or indirect control over the management of the Customer as applicable;

e) where there is a material change in ownership or control of the Customer as applicable within in the reasonable opinion of the other party adversely affects the other party’s rights under this Agreement or is otherwise contrary to the other party’s interests.

Confidential Information  means the terms of this Agreement and any material or information of a confidential nature, whether received before or after the date of this Agreement, including details of suppliers, customers, business practices and plans and Intellectual Property provided by or emanating from a party (the Disclosing Party) to the other party (the Receiving Party) in connection with this Agreement, including material incorporating or derived from any such material or information, but excludes material or information which:

a) is at the time of disclosure, or subsequently becomes, material or information in the public domain otherwise than by a breach of the Receiving Party of this Agreement;

b) was or becomes known by a party independently of the other party, otherwise than by a breach of a confidentiality obligation owed by a third party to the disclosing party;

c) is obtained from a third party who, to the Receiving Party’s knowledge, is lawfully able to disclose it;

d) is assigned by the Disclosing Party to the Receiving Party in accordance with the terms of this or any other agreement;

Consequential Loss  means any indirect, incidental, special, economic or consequential loss, cost or damage, loss of business profits, revenue or opportunities, business interruption, loss of business information (including computer Data), loss of business, loss of anticipated savings, loss of goodwill or loss due to delay;

Customer  means the person or entity identified as such in an Order Schedule;

Customer Support Services  means the services specified in Clause 5;

Data means electronic information and documentation provided by the Customer, the Permitted Users (as the case may be) or by any third-party vendor or service provider to the Customer or the Permitted Users and loaded onto or downloaded by the equipment to be used in conjunction with the Software to supply the Service;

Establishment Period means the term specified in an Order Schedule;

Fees means the amounts payable to CCO by the Customer, as set out in an Order Schedule and this Agreement;

Force Majeure means anything outside the reasonable control of a party and includes, but not limited to, fire, storm, flood, earthquake, explosion, accident, act of public enemy, war, terrorism, sabotage, epidemic, labour dispute, labour shortage, act of God, direct government action or regulation that renders impossible a party’s ability to perform its obligations under this Agreement;

GST Law means any tax, levy, charge or impost implemented under the GST Law or an Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST law;

Insolvency Event means the occurrence of any of the following events in relation to a party:

a) a liquidator, provisional liquidator, official manager, company administrator, administrator, receiver, manager, trustee in bankruptcy or receiver and manager or other form of insolvency or bankruptcy administrator is appointed to or over the whole or any part of its undertaking, property or assets or any step is validly taken for the appointment of such a person;

b) the party entering into, or resolving to enter into, a scheme of arrangement or composition with or assignment for the benefit of, or proposing a reorganisation, moratorium or other administration, involving its creditors or a class of its creditors;

c) the party entering into bankruptcy or a deed of company arrangement;

d) the party being ordered by a court, or otherwise resolving, to wind itself up or otherwise dissolve itself or enter into bankruptcy, or giving notice of an intention to so resolve, except by way of bona fide solvent reconstruction or amalgamation on terms approved by the other party;

e) the party suspending payments of its debts generally, or;

f) the party becoming unable to pay its debts when they fall due or becoming unable to pay its debts within the meaning of the Corporations Act or being presumed to be insolvent under the Corporations Act;

Intellectual Property means:

a) any commercial information, industrial or intellectual property (whether in material form or not) or rights of a proprietary nature, including without limitation:

  1. any copyright, invention, patent, design, trade mark, service mark, domain name, Software program, idea, Confidential Information, trade secret, know-how, database; or
  2. any rights protected or recognised under any laws anywhere in the world related to the above or any similar laws; and

b) anything (whether in material form or not) copied or derived from the above property or rights;

Loss means claims, losses, costs, expenses and damages sustained or incurred whether directly or indirectly or consequentially or in any other way;

Minimum Term means the term specified in an Order Schedule;

Permitted Users means users that are authorised by the Customer to access the Service;

Personnel means officers, employees, contractors and agents;

Quarter means a period of a quarter of Calendar year, i.e. 3 months;

Service means the hosted service accessible through a website;

Services means the Service and Customer Support Services;

Software means the software contained within the Service;

Tax Invoice has the meaning given by the GST Law;

Term means the Minimum Term and any preceding Establishment Periods and subsequent Quarters until termination;

Territory means the Commonwealth of Australia or otherwise specified in an Order Schedule;

User means the Customer’s Personnel and their Permitted Users who use the Service on behalf of the Customer.