Use of Global Vision Media Pty Ltd’s (GVM’s) Products is subject to the following Terms and Conditions (Agreement). By using a GVM product, Client consents to this Agreement.
The Agreement shall be in place from the Commencement Date until Terminated under Clause 12
Definitions and Interpretation
1.1 Client agrees to treat this Agreement as a living document to allow for industry and technology advances and to add products and services to GVM’s offering. This document may change from time to time.
1.2 In this document words importing the singular include the plural and vice versa and words importing gender include any other gender.
1.3 Headings of Clauses are for ease of reference and shall not affect the construction of this Agreement.
1.4 In the event of any conflict between any provision contained in these terms and conditions and any provision contained in any other part of this Agreement, the provision contained in these terms and conditions shall prevail to the extent necessary to resolve the inconsistency.
The following terms have the meanings tabulated below
| “Agreement” | means this document (Ts and Cs) |
| “Client” | means any organisation or individual who makes use of a GVM Product for any purpose |
| “Commencement Date” | means the date on which client receives the Product from GVM |
| “Commercial Terms” | means the commercial terms set out in the signature section of this document (the Ts and Cs); |
| “Product” | GVM products include but are not limited to: 1. The Blueprint Learning Management System (including Blueprint Lite, Blueprint Learning, Blueprint Talent, Blueprint Ecosystem) 2. any Course or Content created and owned by GVM This includes information in a material form, data, text, files, links, software and computer code, logos, drawings, graphics, photographs, images, documents, sound recordings, musical works, films and other materials; |
| “Defect” | means a non-conformance of Product with these Ts and Cs or the Related Documentation; |
| “Fee” | means the Licence Fee, the services fees and the annual support fee, each as described in the Commercial Terms; |
| “Intellectual Property Rights” | means any patent, copyright, design (registered and unregistered), trade mark and service mark, trade and business names (including Internet domain names and e-mail address names), unregistered trade marks and service marks, database rights, know-how and unpatented inventions and any other intellectual property rights in any relevant jurisdiction; |
| “Licence Fee” | means the licence fee payable by the Client as set out in the Commercial Terms; |
| “Personal Information” | has the same meaning as in the Privacy Act 1988 (Cth); |
| “Privacy Laws” | includes the Privacy Act 1988 (Cth), the Telecommunications Act 1997 (Cth) and any other legislation or guidelines issued by the Privacy Commissioner affecting privacy, Personal Information or the collection, handling, storage, processing, use or disclosure of personal data; |
| “Proposal” | means the proposal by GVM to supply a Product or a learning solution. |
| “Related Documentation” | means other documentation detailing the functionality and performance specifications of the Product including any installation instructions and user guides supplied to the Client by GVM (whether physically or by electronic means) in conjunction with the Software; |
| “Related Entities” | means any person who carries on business in under a name which includes all or part of the Client’s name or who is otherwise a member firm or affiliate firm within the Client network of firms; |
| “Services” | means the Project Services and the Support Services; |
| “Service Levels” | means the obligations set out in Clause 19 of this Terms and Conditions Schedule; |
| “Support Services” | means the support and maintenance services described in clauses 5.1 and 19 of this Terms and Conditions Schedule; |
| “Tax Invoice” | means an invoice issued in accordance with the requirements of the GST Law, and which is addressed to the Client as “…. ”; |
| “User” | has the meaning given in the Commercial Terms; |
| “Working Day” | means a day, other than a Saturday, Sunday or recognised public holiday, on which trading banks are generally open for business in Melbourne, Victoria. |
2 Licence
2.1 GVM hereby grants to Client a non-exclusive, non-transferable licence to use GVM Product (in object code only) and the Related Documentation with effect from the Commencement Date subject to the terms and conditions of this Agreement.
2.2 Client’s license shall be limited to the period of this Agreement (clause 2.3).
2.3 This Agreement shall commence on the date on which Client first receives the Product and shall continue unless terminated in accordance with the terms of this Agreement.
2.4 The Product is licensed only for use on a single production server. The Client shall comply with any restrictions contained in the Commercial Terms regarding the identity of Users. The Client shall use reasonable endeavours to ensure that no more than the permitted number of Users set out in the Commercial Terms access the Product. If the Client wishes to increase the number of Users, it must immediately inform GVM in writing and the parties will re-negotiate the Licence Fee and make any additional payments as specified in the Commercial Terms for additional users as soon as commercially practicable.
3 Services
3.1 In consideration of the payment by the Client of the Fees for the Services (as set out in the Commercial Terms), GVM must provide to the Client the Product together with any additional Service agreed between GVM and Client in writing.
3.2 Any variations to the Services referred to in the Statement of Work in Appendix 1 (and any consequent changes to the Fees for the Services) must be agreed in writing by the parties.
3.3 Notwithstanding anything else in this Agreement to the contrary, in the event that the Client disputes any of the Fees the subject of an invoice, the Client must notify GVM of the dispute. The Client may then withhold payment of the disputed amounts and must pay the remainder of the invoice in accordance with 4 below. Any disputed amounts must be paid by the Client to GVM within 14 days of GVM proving to the Client’s reasonable satisfaction that it is entitled to receive those amounts.
3.4 GVM must provide comprehensive project management services for the Services, including:
Services as reasonably required by the Client;
3.4.1 managing the delivery of Services (including any related tasks to be performed by the Client) in accordance with any agreed timeframes for delivery;
3.4.2 managing the risks associated with the Services, including:
(a) identifying potential areas that it anticipates may cause GVM to fail to comply with the requirements of this Agreement; and
(b) formulating and implementing measures to remove or minimise those risks;
3.4.3 establishing, managing and participating in any reviews related to the
3.4.4 supervising GVM’s personnel as necessary to ensure compliance with the requirements this Agreement; and
3.4.5 coordinating the performance of the Services so that they occur with a minimum disruption to the Client’s normal operations.
4. Fees and Payment
4.1 Subject to clause 3 and GVM providing the Client with a valid Tax Invoice at least 14 days before the due date for payment, the Client shall pay the Fees to GVM in accordance with the dates specified in the Commercial Terms.
4.2 Payment of all amounts due to be paid by the Client under this Agreement shall be made in Australian Dollars by direct transfer or by such other method as agreed between the parties.
4.3 GVM shall also be entitled to charge a late processing fee and interest on any overdue amounts that remains overdue for a period of 30 days after the due date at a rate of 2% per annum above the prime lending rate of the ANZ Banking Corporation at the date of the invoice compounded daily from the expiry of 30 days after the due date until the date of payment.
4.4 Payment of all sums due to GVM must be made by the Client in full without any set-off (whether at common law or otherwise), deductions or withholding for or on account of any taxes, fees, levies, imports, duties or charges of any nature imposed by any governmental authority on any payment due hereunder, except as required by law. Where any such deduction or withholding is required, the Client shall pay GVM such additional sum as shall be required so that the sum received by GVM shall be the same as if no such deduction or withholding had been made.
5 Support
5.1 GVM shall provide to the Client maintenance and support services in relation to the Product. Such services shall include, but not be limited to, correction of defects or errors and the provision of new releases, updates and enhancements of the Product, as well as the specific services referred to in clause 19. These services are subject to payment of the annual support fee as specified in the Commercial Terms.
5.2 GVM must provide the Support Services so as to meet or exceed the
Service Levels.
6 Client’s Undertakings
6.1 The Client shall not, and shall ensure that the Users do not copy, sub- license, modify, adapt, translate, reverse engineer or disassemble the Product or Related Documentation or create any derivative work based thereon or merge or include the Product or Related Documentation with or in any other software save as expressly provided for in this Agreement. The Client may make such copies of the Product and/or Related Documentation as are reasonably necessary for operational, disaster recovery and security purposes.
6.2 The Client shall not remove the copyright notice, trade marks or service marks of GVM or the owner of the Intellectual Property Rights in the Product from any copies, in any form, including partial copies or modifications of the Product or Related Documentation, made in accordance with this Agreement.
6.3 The Client shall:
6.3.1 not provide or otherwise make available the Product or Related Documentation in whole or in part, in any form to any person other than the Users without GVM’s prior written consent;
6.3.2 notify GVM immediately if the Client becomes aware of any unauthorised use of the whole or any part of the Product or Related Documentation by any person; and
6.3.3 use the Product only in accordance with the operating instructions provided to the Client by GVM in writing as part of the Related Documentation, and in accordance with the terms of this Agreement.
6.4 The Client shall be responsible for maintaining the confidentiality of its passwords and for procuring that all Users keep their own passwords confidential.
7 GVM’s Undertakings
11.1 GVM must in carrying out the Services:
11.1.1 provide the Services in a professional and workmanlike manner and with all due care, skill and attention;
11.1.2 comply with any reasonable direction given by the Client from time to time which directly relates to the implementation of the Services;
11.1.3 observe the Client’s reasonable security procedures;
11.1.4 allow the Client to inspect all materials used by GVM in providing the
Services;
11.1.5 on reasonable notice, make available to the Client all test and monitoring results in relation to the implementation of the Product;
11.1.6 ensure that all personnel engaged by GVM in connection with this Agreement are appropriately qualified, competent and experienced to provide the Services in accordance with this Agreement;
11.1.7 not bind the Client in any way or hold themselves out as having any authority to do so; and
11.1.8 at all times act in a lawful manner in the performance of the Services.
7.2 GVM may refer to the Client or the Services in GVM’s websites, press announcements or other marketing materials.
8 Acceptance Testing
8.1 Where agreed in writing between GVM and Client prior to delivery of the Product, Acceptance Testing will apply to the Product. In such cases, the acceptance testing procedure set out in this clause 8 will apply separately to the Product to be provided by GVM as a result of the performance of the Services;
8.2 Following delivery of a Tested Deliverable by GVM, the Client will perform acceptance tests to determine whether the Tested Deliverable is free from Defects, and complies with the Related Documentation and this Agreement.
8.3 GVM must provide the Client with all assistance reasonably requested in relation to the performance of these acceptance tests.
8.4 If, following the completion of these acceptance tests, the Client is satisfied that the Tested Deliverable is free from Defects and complies with the Related Documentation and this Agreement, the Client must
notify GVM that it accepts the Tested Deliverable (Acceptance).
8.5 If, following the completion of these acceptance tests, the Client is not satisfied that the Tested Deliverable is free from Defects and complies with the Related Documentation and this Agreement, the Client may by notice in writing reject the Tested Deliverable in which case:
8.5.1 GVM must within seven days (or such longer period as may agreed by the Client), at GVM’s cost, rectify such failure and resubmit the Tested Deliverable to the Client for acceptance testing; and
8.6 The Client must issue a notice to GVM under Clause 8.4 or 8.5 (as the case may be) within seven days of completion of the acceptance tests.
9 Intellectual Property Rights
9.1 GVM owns the Product and all copyright and Intellectual Property Rights therein to the extent that they owned the Product at the Commencement Date and the Client shall not acquire any interest or rights of ownership therein. Client will not copy, reproduce, distribute or incorporate GVM Product in any form in whole or in part without the written authorisation of GVM. Client will not allow (whether intentionally or by omission) any other party to copy, reproduce, distribute or incorporate GVM Product in any form in whole or in part without the written authorisation of GVM.
9.2 Any Intellectual Property Rights in any developments or modifications to the Product that are made as a result of the performance of the Services for the Client will be owned jointly by GVM and the Client on the basis that either party can use such Intellectual Property Rights without the consent of the other.
9.3 The Client or its licensors will retain ownership of all right, title and interest (including all Intellectual Property Rights) in:
9.3.1 all Content provided by the Client to GVM for the purpose of this Agreement or that is otherwise accessed by GVM through their provision of the Services or any other Content which is developed by the Client (with or without GVM’s assistance), together with any revisions or amendments to that Content; and
9.3.2 all data input to the Product, (together the “Client’s Content”) and GVM shall not acquire any interest or rights of ownership therein.
9.4 GVM represents warrants and undertakes to the Client that none of the Product, the Related Documentation or any Services will infringe any Intellectual Property Rights of, or breach any obligations of confidentiality owed to, any third party. GVM further represents, warrants and undertakes it has all necessary rights to provide the licence set out in clause 2 above. GVM will indemnify and hold harmless the Client against any liability, loss, damage, cost or expense sustained or incurred by the Client which arises out of any action, claim, dispute, suit or proceeding brought by any third party alleging that any Services, Related Documentation or the Product, or their use by the Client, infringe any Intellectual Property Rights of, or breach any obligations of confidentiality owed to, any third party, provided that the Client:
9.4.1 notifies GVM in writing as soon as is reasonably possible and in any event within 60 days of becoming aware of any alleged infringement;
9.4.2 makes no admission without GVM’s prior written consent; and
9.4.3 provides all reasonable assistance (at GVM’s cost) in conducting all negotiations and litigation, if required to do so by GVM.
9.5 If the Services, the Related Documentation or the Productor their use by the Client is found to infringe any Intellectual Property Rights of any third parties, or any finding or order is made preventing the Client from using the Product the subject of such claim, GVM must, at its own expense and at its own option:
9.5.1 procure for the Client the right to retain possession of and to continue to use the whole or the relevant part, of the Product or Related Documentation in accordance with the terms of this Agreement;
9.5.2 replace or modify the Product or Related Documentation with an equivalent non infringing item such that the quality, performance or usefulness of the Product and Related Documentation is not degraded and so that the infringement or alleged infringement ceases;
9.5.3 reperform the Services; or
9.5.4 refund all fees paid to them under this Agreement by the Client.
9.6 GVM must assign to the Client the benefit of any intellectual property warranty or indemnity it receives from a third party in relation to the Product or Related Documentation.
10 Warranties
10.1 GVM warrants that:
10.1.1 it has full power and authority to enter into this Agreement and to perform its obligations under this Agreement;
10.1.2 the Product licensed and delivered pursuant to this Agreement will comply with this Agreement, and will perform in all material respects in accordance with the Related Documentation;
10.1.3 any hardware or software recommended or otherwise specified by GVM for use by the Client in connection with the Services and the Product will be sufficient and appropriate to enable the Services or the Product to operate properly;
10.1.4 the Product as installed will be free from viruses and other harmful code;
10.1.5 except as disclosed to the Client in writing before the Commencement Date, the Product does not contain or require any third party software in order to operate in accordance with the Related Documentation;
10.1.6 the Product , Related Documentation and the hardware and software referred to in Clause 10.1.3 together constitute all of the items necessary to provide the Client with an operational system that provides the functionality referred the Proposal; and
10.1.7 GVM holds and will maintain at all times during the term of the Agreement professional liability insurance in an amount of not less than $5 million for any one loss and public liability insurance in an amount of not less than $10 million for any one loss, and will produce evidence of such insurances by way of brokers’ certificates of currency on the Client’s request.
10.2 To the extent permitted by law, GVM excludes all other representations and warranties (express or implied) regarding Product and Related Documentation, including but not limited to, representations and warranties of merchantability and fitness for a particular purpose.
11 Limitation of Liability
11.1 Nothing in this Agreement shall exclude or limit liability for death or personal injury resulting from the negligence of any of the parties or their employees while acting in the course of their employment.
11.2 GVM’s entire aggregate liability to the Client, and Client’s entire aggregate liability to GVM, for any loss or damage arising from any act or omission relating to this Agreement regardless of the form of action, whether in contract or tort (including in each case negligence), strict liability or otherwise, shall be limited to damages in an amount not to exceed the Fees paid and payable under this Agreement, provided this limitation does not apply to any breach of the warranties or to the indemnity in clause 9.5, or to any breach by GVM of clause 14.
11.3 Neither party shall under any circumstances be liable to the other party for any indirect or consequential loss, including loss of revenue, business, contracts, anticipated savings, profits, data or information, whether arising from negligence, breach of contract or howsoever.
12 Termination
12.1 This Agreement shall continue in effect unless terminated in accordance with the provisions of this Clause
12.2 Either party may (without prejudice to its other rights) terminate this Agreement by notice in writing to the other if the other party:
12.2.1 defaults in due performance or observance of any material obligation under this Agreement and, in the case of a remediable breach, fails to remedy the breach within 14 days of receipt of the terminating party’s notice so to do, and such termination shall take effect either immediately or at a date specified in the notice; or
12.2.2 becomes bankrupt or insolvent, or if the other party’s business is placed in the hands of a receiver, administrator, liquidator or trustee, whether voluntarily or otherwise, and such termination shall take effect either immediately or at a date specified in the notice.
12.3 upon provision of written notice by one party to the other party at least 30 days prior to a date of renewal of this Agreement (clause 20.2)
12.4 The termination of this Agreement for whatever cause shall not prejudice or affect the rights of either party against the other in respect of any breach of this Agreement or in respect of any monies payable by either party to the other in respect of any period prior to termination.
12.5 Notwithstanding Clause 12.4, if the Client terminates this Agreement under Clause 8.5 or 12.2 prior to Acceptance occurring for the Product to be provided by GVM as a result of the performance of the Services, GVM must immediately refund to the Client any Licence Fees already paid by the Client, and no further Licence Fees will be payable by the Client.
13 Consequences of Termination
13.1 If either GVM or the Client terminates this Agreement for any reason, or if the Agreement lapses all licence rights granted shall immediately cease and the Client shall, at GVM’s option, either return or destroy Product and Related Documentation and all copies, including any updates or modifications.
13.2 Any termination of this Agreement shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination including without limitation clauses in relation to Termination, Confidentiality & Privacy, Intellectual Property Rights, Intellectual Property indemnities, Liability and Disputes.
14 Confidentiality & Privacy
14.1 Neither Party shall discuss with or disclose to any third party the terms of this Agreement or any matter described in or related to it without the prior written consent of the other Party, unless such disclosure is reasonably required to carry out an obligation under this Agreement.
14.2 Each party (the “Receiving Party”) agrees to keep confidential and not copy, adapt, alter or divulge to any third party except as expressly provided permitted by this Agreement any and all data, information or materials supplied to or observed by its agents, employees or GVM in the course of performing this Agreement which belongs to or relates to the other party (the “Disclosing Party”) or the other party’s business, organisation, work methods, know-how, clients, programs or products, or which belongs to or relates to any member of the other party’s group (“Confidential Information”).
14.3 Either party may disclose the Confidential Information of the other party to its agents, employees and GVM to the extent necessary to perform its obligations under, or enjoy the rights granted under, this Agreement, provided that the disclosing party must ensure that those agents, employees and GVM keep such Confidential Information confidential as required by this clause 14. Each party shall immediately inform the other if it becomes aware of the possession, use or knowledge of, or attempts to gain access to, any of the Confidential Information by any person not authorised to possess, use or have knowledge of the Confidential Information and shall at the request of the other party provide such reasonable assistance as is required by such other party to deal with such event.
14.4 The provisions of this Clause shall not apply to any information:
14.4.1 which is in or enters the public domain other than by breach of this Clause; or
14.4.2 which is obtained from a third party who is lawfully authorised to disclose such information; or
14.4.3 which is independently developed without reference to the Confidential Information of the Disclosing Party and such independent development can be proved to the reasonable satisfaction of the Disclosing Party; or
14.4.4 which is authorised for release by written consent of the Disclosing Party;
or
14.4.5 to the extent that such information is required to be disclosed by order of a court of competent jurisdiction or by a governmental or regulatory body, in which case the Receiving Party will first give notice to the Disclosing Party so that the Disclosing Party may object to the request and/or seek an appropriate protection order.
14.5 In performing this Agreement, VM must:
14.5.1 use Personal Information only for the purposes of fulfilling its obligations under this Agreement;
14.5.2 not otherwise use, modify or disclose Personal Information except with the prior written consent of the Client or as required by law (subject to GVM notifying the Client immediately if it becomes aware that such disclosure may be required);
14.5.3 take all reasonable measures that any Personal Information in its possession or control or to which it has access in connection with this Agreement is protected against loss and unauthorised access, use, modification or disclosure;
14.5.4 comply with any reasonable and lawful direction, policy and guidelines of the Client which concern the security, use and disclosure of Personal Information (including any such direction, policy or guideline that the Client is entitled to make under the Privacy Act 1998 (Cth);
14.5.5 ensure that any person who is authorised to have access to any Personal Information, is made aware of, and undertakes in writing, to observe the obligations of this clause;
14.5.6 restrict access to the Personal Information to such of its employees who need to access the Personal Information to fulfill GVM’s obligations under this Agreement;
14.5.7 comply with all Privacy Laws in relation to all Personal Information;
14.5.8 not do anything or omit to do anything with the Personal Information that will cause the Client to breach its obligation under a Privacy Law; and
14.5.9 notify the Client if it becomes of any breach or alleged breach of its obligations under this clause and comply with any reasonable direction of the Client with respect to remedying that breach.
14.6 GVM acknowledges that all Personal Information collected on the Client’s behalf remains the property of the Client.
14.7 GVM acknowledges and agrees that it will ensure that its employees and personnel who have or may have access to the Confidential Information or Personal Information of the Client are aware of GVM’s obligations under this clause, and will procure for such employees and personnel to execute an undertaking to or agreement with the Client at the Client’s request.
14.8 GVM further acknowledges and agrees that it will:
14.8.1 ensure that each of its employees and personnel who participate in the Services, when on the premises of the Client or when accessing Client’s facilities, computer systems and information, comply with the Client’s information security policies and standards; and
14.8.2 co-operate with the Client in any review or audit undertaken by the Client from time to time of GVM’s compliance with such information security policies and standards.
15 Force Majeure
15.1 Neither party shall be liable to the other under this Agreement for any failure to perform its obligations hereunder other than payment obligations or for any loss or damage which may be suffered by the other party due to any circumstances beyond its reasonable control including without limitation any Act of God, failure or shortage of power supplies, flood, lightning or fire, strike or other industrial action, the act or omission of Government or other competent regulatory authority, war, military operations, or riot, provided the party will not be excused from performing its obligations where alternate sources are reasonably available or where the party could perform its obligations using a workaround.
15.2 If either party wishes to rely upon this Clause it shall send written notice to the other party explaining the relevant force majeure circumstances and the effect of the circumstances on performance of the affected party’s obligations and the anticipated period of delay.
15.3 If the force majeure circumstances continue for a period of 30 days or more, the Client may (without affecting the accrued rights and obligations of the parties at the date of termination) terminate this Agreement by giving 14 days notice to GVM.
16 General
16.1 This Agreement may not be assigned by a party to any third party in whole or in part without the prior written consent of the other party.
16.2 This Agreement shall not be varied or amended unless such variation or amendment is agreed in writing by duly authorised representatives of both parties.
16.3 If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this Agreement had been executed with the invalid, illegal or unenforceable provision eliminated. In the event of a holding of invalidity so fundamental as to prevent the accomplishment of the purpose of this Agreement, the parties shall immediately commence good faith negotiations to remedy such invalidity.
16.4 No failure or delay on the part of either of the parties to exercise any right or remedy under this Agreement shall be construed or operate as a waiver thereof nor shall any single or partial exercise of any right or remedy preclude the further exercise of such right or remedy as the case may be. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights or remedies provided by law.
16.5 The parties agree that this Agreement constitutes the entire understanding between the parties relating to the subject matter hereof unless any representation or warranty made about this Agreement was made fraudulently and, save as may be expressly referred to or referenced herein, supersedes all prior representations, writings, negotiations or understandings with respect hereto.
16.6 No party is or may represent itself as the other party’s employee, agent, partner or GVM and neither party has the right to incur any liability on the other party’s behalf.
16.7 GVM may only subcontract the performance of its obligations under this Agreement with the prior written consent of the Client. If such consent is given, GVM remains liable for the performance of the obligations and for any acts and omissions of any subcontractors and will indemnify and keep indemnified the Client against any damage, loss, cost, claim or expense suffered or incurred arising out of or in connection with any subcontractor or external provider of GVM.
16.8 If this Agreement is signed in counterparts, then each is deemed an original and together they constitute one document.
16.9 If there is any inconsistency between the signature section, this Terms and Conditions Schedule, any Appendix to this Terms and Conditions Schedule, the Proposal or any other documents referred to in this Agreement, the following order of priority will apply (with the document listed first taking precedence):
(a) the signature section;
(b) this Agreement;
(c) any Appendix to this Terms and Conditions Schedule;
(d) the Proposal; and
(e) any other documents referred to in this Agreement.
17 Notices and Communications
17.1 Any notice or other document to be given under this Agreement shall be in writing and shall be deemed to have been duly given if left at or sent by hand or by registered post, or by facsimile or such other electronic media which may from time to time be agreed by the parties to a party at the address or facsimile number set out in the Signature Section of this Agreement or such other address or facsimile number as one party may from time to time designate by written notice to the other.
17.2 Any such notice or other document shall be deemed to have been received by the addressee three Working Days following the date of dispatch if the notice or other document is sent by registered post, or simultaneously with the delivery or transmission if sent by hand or if given by facsimile or other electronic means.
18 Governing Law and Disputes
18.1 This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of Victoria.
18.2 Unless a party has complied with this clause 18, that party may not commence court proceedings or any other proceedings relating to a dispute arising from this Agreement except where that party seeks urgent interlocutory release. Any disputes or differences between the parties arising out of or in connection with this Agreement shall be referred to the contact persons identified in the Signature Section of this Agreement. They shall immediately refer such disputes to the relevant person within the company for resolution and notify the other party of the identity of the responsible person (the “Representatives”). The Representatives shall confer with one another whenever reasonably called upon to do so by the other and attempt to resolve the dispute or difference amicably.
18.3 If the dispute cannot be resolved by the Representatives within a maximum of 14 days after it has been referred to them, then the parties must submit the Dispute to a mediator for consideration in accordance
with the Mediation and Conciliation Rules of the Institute of Arbitrators and Mediators Australia, which Rules are taken to be incorporated into this Agreement.
18.4 The performance of any obligations under this Agreement shall not cease or be delayed by this dispute resolution procedure.
18.5 Subject to the above, the courts of Victoria shall have the non-exclusive jurisdiction to hear and determine all disputes or differences arising out of or in connection with this Agreement and the parties submit thereto.
19 Service Levels
19.1 Provided the Client has paid the applicable support fee in full, GVM shall provide technical support as stated below. GVM may provide other extended technical support services to the Client upon additional terms and charges to be agreed.
19.2 Maintenance: Maintenance for Product used to provide the Services is included as part of the Support Services. Maintenance includes Product upgrades, bug-fixes, patches, error corrections and enhancements, together with instructions for installing such upgrades, bug-fixes, patches, error corrections and enhancements. These are provided at no additional charge when any of the foregoing are developed and made available, without customisation, to GVM’s clients generally. These must be provided no later than when they are made available to GVM’s other clients generally. All of the foregoing shall become part of the Product or Related Documentation (as the case may be) licensed under this Agreement.
19.3 General
The parties may by agreement in writing agree to amend the Service Levels.
19.4 Client Support
19.4.1 First level support is provided by Client, reading FAQs and Product information to be provided by GVM. All requests for Support Services by the Client must be made by telephone to one of GVM’s nominated support personnel. GVM must provide the Client with a list of those nominated support personnel within 7 days of the Commencement Date, and must promptly advise the Client of any subsequent changes to those nominated support personnel. GVM must have a minimum of four such support personnel nominated at any one time. Support will be provided by GVM between 9am – 5pm on Working Days.
19.4.2 Follow-up by GVM will be made in the most appropriate manner to deal quickly and efficiently with the request of the User and in accordance with the initial response times set out in Clause 19.4.3.
19.4.3 GVM will prioritise Product support to the Client requests for Defect resolution into four levels:
| PRIORITY | DESCRIPTION | INITIAL RESPONSE TIME | PROBLEM FIX TURNAROUND TIME |
| 1. | Critical Defect. Product is down. | 4 hours | 2 Working Days |
| 2. | Major Defect. Product is functioning but operation is severely affected. Priority 2 problems may be resolved with a fix or a workaround. If a workaround is provided, the priority level will be downgraded to priority 3. | 8 hours | 5 Working Days |
| 3. | Minor Defect. Product is functioning and workaround is available. Priority 3 problems should be resolved with a fix or a workaround. | Next Working Day | To be mutually agreed between the parties. |
| 4. | “How to” or administrative request. Client requests advice on how to use an existing function of the Product, or requests an administrative operation such as courseware uploading. This does not refer to such requests from end-users. | 2 Working Days | N/A |
19.4.4 The priority of each Defect will be determined by GVM after consulting the client.
19.4.5 “Initial Response Time” refers to the response time by which GVM will communicate with the Client in respect of the reported Defect. It does not refer to the time in which the reported problem shall be resolved by GVM.
19.4.6 GVM shall use its best endeavours to resolve all Defects identified in the support requests within the “Problem Fix Turnaround Time”. However, due to the unpredictable nature of enquiries, GVM gives no warranty that such timescales shall be met and shall not be liable for failure to do so except as stated in Clause 19.4.8.
19.4.7 The time periods referred to above shall commence when the request for support is made by the Client by telephone.
19.4.8 GVM must implement appropriate measurement and monitoring tools and procedures to measure their performance against the Service Levels, and provide a report to the Client monthly on its performance against the Service Levels.
19.4.9 The Service Level Agreement (This Clause 19) details the resolution times for support requests and indicates that GVM will make commercially reasonable efforts to adhere to them. For purposes of the SLA, “commercially reasonable efforts” will not be deemed to require GVM to undertake extraordinary or unreasonable measures or incur costs that are disproportionate to the impact of the issue on the users of the system. Furthermore, “commercially reasonable efforts” will not require GVM to adhere to the contracted resolution times in circumstances where delays arise that are beyond its control.
19.5 Excluded Support Services
19.5.1 GVM is not responsible for causes external to the Product or Documentation, including but not limited to: fault or negligence of Client; failure of Client to incorporate Updates and Upgrades provided by GVM; operation of the Product with other media not meeting or not maintained in accordance with the Documentation, or causes other than ordinary use; modifications, alteration or additions by parties other than GVM; viruses; third party software or equipment; telephone carriers or utilities. Any software maintenance or services required, as determined by GVM, will be billed to the Client on a time-and- materials basis according to GVM’s then current rates.
21.5.2 Where an issue is escalated to GVMby the Client’s nominated First Level Support representative according to the process outlined it will be deemed to be covered by the cost of the annual support agreement unless:
21.5.2 (a) the issue is found to have arisen in whole or in part from client error, OR
21.5.2(b) the issue is found to have arisen in whole or in part due to operation of the system other than in accordance with the system manuals and the Training provided to the Client by GVM, OR
21.5.2(c) the issue relates to any matter other than the operation of the Product itself, OR
21.5.2(d) the issue relates to item(s) of content, other than where that content was exclusively created by GVM, OR
21.5.2(e) The issue is a request for information that was covered in the training sessions provided to the Client
19.5.3 Where support is required that is not covered by Section 1 (above) it will be chargeable under the Additional Support Clause (19.6).
19.6 Additional Support
19.6.1 GVM will make its best endeavours to identify a request that will fall into the Additional Support category from the outset and provide a fixed quotation for addressing the issue. Notwithstanding this, GVM may at its sole discretion determine that any issue falls outside the provisions of Included Support should evidence to support that conclusion arise during resolution of the issue. Under such circumstances, charges will be applied retrospectively for work done to that point and GVM will suspend work on the issue and await confirmation from the Client before proceeding further.
19.7 New Releases and Updates
19.7.1 Products hosted on GVM infrastructure (servers): Where an update or new release is made available and where it is recommended that it be applied to all installations, GVM will make arrangements with the Client to install it at no cost to the Client. In addition, in circumstances where GVM determines that an update is required to address a specific Client issue, GVM will arrange to undertake the installation at no cost to the Client.
19.7.2 Products hosted on Client’s infrastructure where an update or new release is made available GVM will provide sufficient information to the Client in order to be installed by Client at Client expense. In addition, GVM can provide these Services of upgrade installation for agreed fee.
19.8 Access to Server (for Client hosted installations)
The Client will provide GVM with access to the Product on a case-by-case basis to allow them to carry out their support obligations, subject to GVM complying with the Client’s security measures. This will include:
19.8.1 remote access to the server’s desktop local windows administrator access
19.8.2 login access with sufficient privilege to carry out support obligations
19.8.3 upon request, remote SQL Enterprise Manager access to the database
20 Agreement Term and Renewal
20.1 Unless otherwise agreed in writing between the parties, the Initial term shall be 3 years.
20.2 This Agreement shall commence on the Commencement Date and shall continue for a period equal to the Initial Term unless terminated under clause 12.2.
20.2 After the Initial Term, this Agreement shall automatically renew for a period of one year at each subsequent anniversary of the Agreement until terminated in accordance with Clause 12 above.
