cvmail Customer Agreement

1.

Definitions and Intepretation

1. a. the singular includes the plural and vice versa;
2. b. words denoting any gender include all genders;
3. c. where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
4. d. a reference to a party, clause, paragraph, schedule or annexure is a reference to a party, clause, paragraph, schedule or annexure to or of this document;
5. e. a reference to this document includes any schedules or annexure;
6. f. headings are for convenience and do not affect interpretation;
7. g. a reference to any document or agreement includes a reference to that document or agreement as amended, novated, supplemented, varied or replaced from time to time;
8. h. a reference to “$”, “A$” or “dollar” is a reference to Australian currency;
9. i. a reference to a time is a reference to Australian Eastern Standard Time or Australian Eastern Daylight Time, whichever is appropriate;
10. j. a reference to a party includes its executors, administrators, successors, substitutes (including persons taking by novation) and permitted assigns;
11. k. a reference to writing includes any method of representing words, figures or symbols in a permanent and visible form;
12. l. words and expressions denoting natural persons include bodies corporate, partnerships, associations, firms, governments and governmental authorities and agencies and vice versa;
13. m. a reference to any legislation or to any provision of any legislation includes:
    
1. i. any modification or re‑enactment of the legislation;
2. ii. any legislative provision substituted for, and all legislation, statutory instruments and regulations issued under, the legislation or provision; and
3. iii. where relevant, corresponding legislation in any Australian State or Territory;
14. n. no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this document or any part of it; and
15. o. the words “including”, “for example”, “such as” or other similar expressions (in any form) are not words of limitation.

2.

Applicability and Licence

3.

Term

This Agreement will remain in force for the duration of the period set out in this clause 3 (“the Term”), unless terminated earlier in accordance with clause 15.

1. a. Subject to clause 3.2(c), at the end of the Initial Licence Term, the licence granted pursuant to this Agreement will automatically renew for a further 12 months and thereafter for successive twelve month periods unless terminated in accordance with the terms of this Agreement.
2. b. Renewal of the Agreement may, at our discretion, be subject to an adjustment in the Fees in accordance with clause 6.4.
3. c. This Agreement will not automatically renew if you have not paid any amount which has fallen due for payment or you are otherwise in breach of this Agreement.

4.

Our Obligations

1. a. Upon receipt of your answers to the Q&A documentation, we will design a Job Board and (where applicable) set the parameters corresponding to your required use of the cvmail Database.
2. b. We will conduct UAT necessary to ensure that you are able to access and use the Service in accordance with the agreed specifications.
3. c. Following your UAT, we will make such adjustments as are reasonable and necessary to address any issues that you raise.

1. a. Telephone support is provided from Monday to Friday between the hours of 9am-6pm Australian Eastern Standard Time (or DST as applicable), excluding public holidays in Victoria.
2. b. Email requests must be submitted to firmsupport@cvmail.net:
3. c. Target Resolution Times

We will use commercially reasonable efforts to meet the following targets for resolution of support issues

5.

Your Obligations

1. a. You agree to complete all documentation to enable us to prepare the Job Board and set the parameters for your access to the cvmail Database in accordance with the timeline to be agreed between us.  
2. b. You agree that on receipt of materials from us for review, you will conduct all UAT and advise us of any changes required timeously and/or confirm your approval of the materials by completing the UAT checklist, so as to enable us to activate your access to the Service.
3. c. You will arrange for specified personnel to attend the Training.
4. d. You agree to notify us of the names and contact details of the personnel designated by you to manage the Implementation process and execution of the Service during the Term.
5. e. You acknowledge that any adjustments requested after completion of the UAT checklist to the Job Board and parameters used by you to access the cvmail Database which constitute customisation of the Service may attract additional charges. We will notify you of any such additional charges prior to undertaking the relevant work.
6. f. You agree that Implementation will be completed within 90 days or such other timeline as is agreed between us.   
7. g. You also agree that if we have to undertake further work to complete the Implementation solely because of your delay, we will be entitled to charge you additional fees for that work.

1. a. You agree that for the duration of the Term you will comply with the Minimum System Requirements.
2. b. You acknowledge that we are in no way responsible for any deficiencies in the hardware or software provide by you to access the Service.

You acknowledge and agree that you will not and you will procure that each User will not:

1. a. use the Service other than as provided in this Agreement;
2. b. use the Service in relation to any entities, locations or purposes other than those specified in the Order Form or this Agreement;
3. c. access or attempt to access the source code of the Software;
4. d. copy (other than in the normal operation of the Software), reverse engineer, adapt, decompile, vary or modify the Software or attempt to do so;
5. e. supply, provide, sub-license, rent or otherwise make the Service available in whole or in part, in any form, to a person who is not a User;
6. f. enter any data into the cvmail Database or make available to us or any User any such data unless that data has been collected in a manner that complies with all applicable laws;
7. g. use the Service in any unlawful manner, to contravene any statute, or other law, infringe the rights of any person or in any way likely expose us to liability;
8. h. access the Service using access methods other than those authorised by us;
9. i. knowingly transmit any virus or other disabling feature or use another person’s name, access codes or other confidential information;
10. j. disclose the Login Information to any unauthorised third party; or
11. k. attempt any of the above acts or permit another person to do any of the above acts.

6.

Payment

1. a. additional work undertaken by us because of delay on your part;
2. b. any query from you that does not relate to the basic functionality of the Service;
3. c. any services required to better utilise, customise or modify, adapt, develop or expand the Service or change its functionality;
4. d. on-site attendance at your premises at your request;
5. e. issues that are already covered in the Documentation;
6. f. issues that reveal that the Minimum System Requirements are not satisfied;
7. g. issues requiring a response due to the relevant User not having undertaken Training;
8. h. requests for additional Training; and
9. i. services that we are requested to provide outside of the Business Day.

7.

Taxes

1. a. pay to us an increased price, where the increase in price is equal to the amount of Tax you would be required to pay; and
2. b. indemnify us against any loss that we may suffer or cost that we may incur if you do not pay an increased price in accordance with clause 7.1(a).

8.0

Intellectual Property

1. a. we (or an Associate Company of cvmail) own or are licensed to use all cvmail Intellectual Property; and
2. b. you must not, during or after the Term, whether directly or indirectly, dispute our ownership of such Intellectual Property.

1. a. you own all Intellectual Property Rights in relation to the Customer Data and Customer Materials and that you are authorised to licence the use of the Customer Data and Customer Materials to us in accordance with the terms of this Agreement; and
2. b. our use of the Customer Data and Customer Materials will not infringe any third party Intellectual Property Rights.

9.0

Representations and warranties

Each party represents and warrants to the other party as at the Commencement Date that:

1. a. it is duly incorporated and the execution, delivery and performance of this Agreement does not violate its constitution;
2. b. it has the power and has taken all corporate and other action required to enter into this Agreement and to authorise the execution and delivery of this Agreement and the performance of its obligations;
3. c. this Agreement constitutes a valid and legally binding obligation that is enforceable against it; and
4. d. the execution, delivery and performance of this Agreement does not violate any existing law or any document or agreement to which it is a party or which is binding on it or any of its assets.

We warrant that:

1. a. as at the Commencement Date:
1. i. we are entitled to grant a licence to you in accordance with the terms of this Agreement; and
2. ii. to the best of our knowledge, the use of the Service by you in accordance with the terms and conditions of this Agreement will not infringe the copyright of any third party; and
2. b. when providing support, we shall at all times:
1. i. employ appropriate techniques and standards;
2. ii. engage personnel of suitable training and experience; and
3. iii. exercise due care, skill and attention.

We do not warrant that:

1. a. the operation of the Service will be uninterrupted, virus free or error free or conform to any reliability or performance standards beyond those specified in the Documentation;
2. b. the Service will operate and function effectively and accurately if you do not employ the Minimum System Requirements;
3. c. the Service is fit for any purpose other than the purposes specified in this Agreement; or
4. d. the Service can be integrated with any other software or any network or server.

10.

Liability of cvmail

Where any term or condition imposing liability is implied through the operation of any law, and that term or condition cannot be excluded, our liability for a breach of such a term or warranty will be limited, at our option, to any one or more of the following:

1. a. if the breach relates to goods:
1. i. the replacement of the goods or the supply of equivalent goods;
2. ii. the repair of such goods;
3. iii.the payment of the cost of replacing the goods or of acquiring equivalent goods; or
4. iv. the payment of the cost of having the goods repaired; and
2. b. if the breach relates to services:
1. i. the supplying of the services again; or
2. ii. the payment of the cost of having the services supplied again.

1. a. indirect, special, incidental, or consequential loss or damage which may arise in respect of this Agreement or use of the Service or other equipment or property;
2. b. loss of profit, business, revenue, goodwill or anticipated savings;
3. c. any Claim made against you by any third party arising from your use of the Service, including without limitation, any recruitment agency engaged by you in relation to your recruitment process; and
4. d. the outcomes of any use of the Service.

11

Suspension or Modification of the Service

1. a. To periodically maintain or improve the Service and related systems;
2. b. To comply with any order, instruction or request of any government, or competent judicial, administrative or regulatory authority;
3. c. If we believe that the Services or the data may be used in such a way as may constitute a breach of this Agreement; or
4. d. If you fail to pay all or any part of the Fees by the due date.

12

Force majeure

13

Confidentiality

1. a. is or becomes generally available to the public other than as a result of a breach of this clause;
2. b. is known to either party prior to entering into discussions regarding the provision of the Service; or
3. c. either party acquires on a non-confidential basis from a third party entitled to disclose it.

1. a. to a Related Body Corporate in relation to the provision of the Service;
2. b. to our insurers or legal advisors provided that the Confidential Information remains confidential;
3. c. if required to do so by law, rule or regulation applicable to us; or
4. d. if required for the proper performance of our obligations under this Agreement.

14

Privacy and Customer Data

1. a. If you are an individual or a group of individuals, you acknowledge that personal information concerning you collected or held by us may be used for a variety of purposes including:
1. i. to supply goods and services that you have ordered;
2. ii. to administer your account and to enforce this Agreement; and
3. iii. for marketing purposes which may include disclosure of your information to other members of the global Thomson Reuters group of companies, to which we belong.
2. b. If you do not want us to use your personal information for marketing purposes, please advise us in writing.
3. c. If you fail to provide any information requested by us, we may be unable to supply the Services to you.
4. d. In most circumstances, you have a right to access any personal information which we collect and hold about you and to have it corrected if it is wrong.  Please contact our Privacy Officer (contact details at http://www.cvmail.net ) to ask for access to your information or if you have a complaint concerning your information privacy.  We may deny your request for access in some circumstances but if we do this we will tell you why.
5. e. You consent to us sharing your personal information with other Thomson Reuters group companies including those overseas and with our service providers who are located overseas.
6. f. If you apply to us for credit terms we may give certain information about you including identity particulars to a credit reporting agency and we will tell you separately about other uses and disclosures of your personal information relevant to your application for, or our provision of, credit.

1. a. The Services are provided by us on the basis that:
1. i. you will only disclose Personal Information about an individual to us if necessary for the purposes of this Agreement;
2. ii. you will ensure that the individual is aware that you have supplied their personal information to us, the reason for the disclosure and of the details in this clause 14 that apply to information we collect about them;
3. iii. you, and Users, will comply with our Privacy Policy, which can be viewed online at http://www.cvmail.net; and
4. iv. the provision of Personal Information by you is not in breach of the Privacy Act.
2. b. You are responsible for ensuring that if a third party is required to disclose to us Personal Information for the purposes of this Agreement, on your behalf or at your request, such disclosure by the third party complies with the Privacy Act.
3. c. If we are required to retain any Personal Information by Law, you have taken all steps to ensure that we are permitted to do so.

15

Termination

1. a. if you commit a breach of a material provision of this Agreement which:
1. i. if capable of being remedied, is not remedied within 14 Business Days of notice specifying the breach and requiring it to be remedied; or
2. ii. is not capable of remedy;
2. b. if we are required to do so to comply with any law, order, instruction or direction issued to us by any governmental, legal, judicial, regulatory or other like body;
3. c. at the end of the Initial Licence Term or at the end of any subsequent Renewal Period; or
4. d. at any time during the Term, if we have given you 60 days prior written notice that we can no longer (for whatever reason) support or maintain the Service.

1. a. immediately by written notice if we commit a breach of a material provision of this Agreement which:
1. i. if capable of remedy has not been remedied within 28 days of notice from you specifying the breach and requiring it to be remedied; or
2. ii. is not capable of remedy
2. b. after the Initial Licence Term has expired, within 30 days of the date of a Renewal Invoice or failing that, within 30 days of the date of any subsequent Renewal Invoice.

1. a. if the other party is subject to bankruptcy or insolvency proceedings or, becomes insolvent, makes any composition or arrangement with or assignment for the benefit of its creditors, or goes into either voluntary (otherwise than for reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over its assets, or anything analogous to the foregoing occurs in respect of that party; or
2. b. if either party is unable to perform for a period of 60 days or more due to the occurrence of a Force Majeure Event.

16

Consequences of termination

1. a. Immediately pay to us the amount of all Fees due for payment;
2. b. cease, on and from the time of such termination, to have any right to use the Service; and
3. c. not subsequently use the Service

1. a. may charge a reasonable sum for work performed which has been authorised by you in respect of which no sum has been previously charged;
2. b. will be regarded as discharged from any further obligations under this Agreement; and
3. c. may pursue any additional or alternative remedies provided by law.

17

Electronic mail

1. a. any error, omission or loss of confidentiality arising from an electronic communication;
2. b. any unauthorised copying, recording or interference with a document;
3. c. any delay or non delivery of a document; or
4. d. any damage caused to your system or files by such electronic transmission (including by any computer virus).

18

Notices

All notices, requests, demands, consents, approvals, offers, agreements or other communications (“Notices”) given by a party under or in connection with this Agreement must be:

1. a. in writing;
2. b. signed by a person duly authorised by the sender or, where transmitted by e‑mail, sent by a person duly authorised by the sender;
3. c. directed to the intended recipient's address; and
4. d. hand delivered, sent by prepaid post or transmitted by e‑mail or facsimile to that address.

A Notice given in accordance with this clause is taken as having been given and received:

1. a. if hand delivered, on delivery;
2. b. if sent by prepaid post:
1. i. within the Australia, on the second Business Day after the date of posting;
2. ii. to or from a place outside the Australia, on the seventh Business Day after the date of posting;
3. b. if transmitted by e‑mail, on transmission; or
4. c. if transmitted by facsimile, at the time recorded on the transmission report indicating successful transmission of the entire notice,

but if the delivery or transmission is not on a Business Day or is after 5.00pm (recipient’s time) on a Business Day, the Notice is taken to be received at 9.00am (recipient’s time) on the next Business Day.

19

General

This Agreement constitutes the entire agreement between the parties in relation to the Service.  All prior discussions, undertakings, agreements, representations, warranties and indemnities are replaced by this Agreement and have no further effect (except for the purposes specified in clause 13).

If this Agreement conflicts with any other document, agreement or arrangement, this document prevails to the extent of the inconsistency.

Each person who executes this Agreement on behalf of a party under a power of attorney warrants that he or she has no notice of the revocation of that power or of any fact or circumstance that might affect his or her authority to execute this document under that power.

If any part or all of any provision of this Agreement is, or becomes, illegal or unenforceable it will be severed from this Agreement and will not affect the continued operation of the remaining provisions of this Agreement.

Subject to the terms of this Agreement, where survival of any term or condition of this Agreement is not inconsistent with the termination of this Agreement, the obligations of each party in relation to that term or condition survive termination.

Waiver of any power or right under this Agreement:

1. a. must be in writing signed by the party entitled to the benefit of that power or right; and
2. b. is effective only to the extent set out in that written waiver

Any rights and remedies that a person may have under this document are in addition to and do not replace or limit any other rights or remedies that the person may have.

This Agreement will be governed by and construed in accordance with the laws in force in the State of New South Wales and each party submits to the exclusive jurisdiction of the courts of that State.

May 2009