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Portfolio Rating and Portfolio Certification Terms and Conditions

1. Introduction

(a) The Cleaning Accountability Framework Ltd (CAF) ABN 39 608 220 652 ACN 646 794 416 is an independent, multi-stakeholder organisation that works to promote best practice tendering and compliance approaches in Australian property services supporting quality-focused cleaning services, fair wages and decent labour standards.

(b) CAF has developed the CAF Portfolio Schemes to provide an independent mechanism to initially rate the degree of compliance with best-practice labour and other workplace standards by Owners and participants in the property services supply chain and, in a second step, ultimately certify the Portfolio as compliant with the applicable CAF Standard.

(c) These Terms apply to all applications for Portfolio Rating and Portfolio Certification, and to any Portfolio Rating or Portfolio Certification issued by CAF.

2. Definitions

Where used in these Terms, unless the context requires otherwise:

Application means an application for Portfolio Rating submitted in accordance with the Portfolio Rating User Guide, or an application for Portfolio Certification submitted in accordance with the Certification User Guide, as applicable.

Auditor means an independent registered auditor appointed by CAF to undertake any assessment/s under the CAF Portfolio Schemes.

Business Day means a day not being a Saturday, Sunday or public holiday in NSW.

CAF means Cleaning Accountability Framework Ltd ABN 39 608 220 652 ACN 646 794 416.

CAF Branding means the name ‘Cleaning Accountability Framework’ and CAF’s associated logos, image and livery including registered and unregistered trade marks as updated from time to time.

CAF Certification Panel means the independent expert panel established by the CAF Board of Directors to oversee CAF certification and prequalification activities.

CAF Core Principles means the core principles (as amended from time to time with reasonable prior written notice to You) set out on the CAF website.

CAF Fee List means the most recent list of fees provided to You by CAF in relation to Your Portfolio.

CAF Guide means either the Portfolio Rating User Guide or the Portfolio Certification User Guide, as applicable.

CAF Licensing Agreement means the agreement between CAF  and You, which governs Your use of the CAF Branding.

CAF Licensing Guidelines means CAF’s licensing guidelines (as amended from time to time, with reasonable prior written notice to You).

CAF Portfolio Scheme means each of the Portfolio Certification and Portfolio Rating schemes developed and administered by CAF, and CAF Portfolio Schemes refers to both the Portfolio Certification and Portfolio Rating schemes.

CAF Standards means the CAF Standard and/or the CAF Prequalification Criteria, as applicable, as published on the CAF website (as amended from time to time, with reasonable prior written notice to You).

CAF Worker Engagement Protocol means the process by which CAF and the Union engage with cleaners, and Your role in facilitating the engagement, as part of the CAF Portfolio Schemes.

Certification User Guide means the CAF guide relating to applications for and the provision of Portfolio Certification provided by CAF to You, as amended from time to time with reasonable prior notice to You.

Change in Control means where:
(a) the person who Controls You at the date Your Application subsequently ceases to Control You;

(b) a person who does not Control You at the date Your Application subsequently obtains Control You; or

(c) if You are Controlled by a group or consortium of persons, or if the group or consortium could Control You were they to act collectively, any material change in the composition of that group or consortium.

Control has the meaning given in the Corporations Act 2001 (Cth).

Guide means the Portfolio Rating User Guide or Certification User Guide, as applicable.

Insolvency Event means:

(a) in relation to a body corporate, a liquidation or winding up, the appointment of a controller, administrator, receiver, manager or similar insolvency administrator to a party or any substantial part of its assets or the entering into a scheme or arrangement with creditors or the occurrence of any event that has a substantially similar effect to any of these events;

(b) in relation to a trust, the making of an application or order in any court for accounts to be taken in respect of the trust or for any property of the trust to be brought into court or administered by the court under its control or the occurrence of any event that has a substantially similar effect to any of these events.

Law includes any requirement of any statute, regulation, rule, order or by-law, modern award or other industrial instrument of any Australian state, territory or local government, including, without limitation, those relating to minimum terms and conditions of employment of persons providing property services in respect of a Building.

Loss means any loss, liability, cost, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and includes direct loss and consequential loss.

Owner is the entity that has an enforceable claim or title to all the assets or properties in the Portfolio being nominated, and is recognised as such by law.

Personnel means officers, employees, secondees, agents and subcontractors (who are individuals), including employees and contractors (who are individuals) of subcontractors.

Portfolio means any building or group of buildings nominated by the Owner of the buildings in accordance with eligibility criteria set out in the Portfolio Rating User Guide or CAF Certification User Guide, and agreed to by CAF to be assessed for Portfolio Rating or Portfolio Certification.

Property Services Contract means any contract, understanding or arrangement under which any person provides or arranges any property services (e.g. cleaning and security) in respect of a building in Your Portfolio.

Portfolio Certification means Certification that Your Portfolio is compliant with the CAF Standard and Portfolio Certified has a corresponding meaning.

Portfolio Rating means the rating awarded by CAF based on the degree to which a Portfolio complies with the CAF Standard.

Portfolio Rating User Guide means the CAF guide relating to applications for and the provision of a Portfolio Rating.

Portfolio Term means 12 months from the date on which Portfolio Certification or Portfolio Rating, as applicable, is initially awarded or confirmed to remain in place pursuant to clause 4(b).

Related Bodies Corporate has the meaning given in the Corporations Act 2001 (Cth).

Terms means these Portfolio Rating and Portfolio Certification Terms and Conditions.

Union means United Workers Union.

You or Your means the person identified in an Application.

3. Applications for Portfolio Rating or Portfolio Certification

  • In applying for a Portfolio Rating or Portfolio Certification, You must, and must take steps to ensure that Your Personnel and the suppliers engaged in the provision of cleaning services in a Portfolio:
    • act in good faith in all dealings with CAF and its Personnel;
    • comply with:
      • these Terms insofar as they apply to the Portfolio Rating or Portfolio Certification process;
      • the CAF Guide relevant to Your Application including, without limitation, the CAF Core Principles;
      • CAF’s reasonable directions given in relation to the Application process; and
      • all applicable Laws; and
    • cooperate reasonably with CAF, the Auditor, the Union and any other person involved in the Portfolio Rating or Portfolio Certification process as notified by CAF.
  • You represent and warrant to CAF that the contents of Your Application and all material that accompanies it is true, complete and accurate.
  • CAF will process Your Application in accordance with either or both of the Portfolio Rating User Guide or the Portfolio Certification User Guide, as applicable.
  • CAF does not guarantee that any Application will be accepted or processed and CAF reserves the right to decline to accept or process any Application at its sole discretion and without the need to provide reasons.
  • If Your Application is accepted by CAF, subject to these Terms, CAF will arrange for Your Portfolio to be assessed for compliance with the relevant CAF Standard in accordance with the relevant CAF Guide.
  • The acceptance by CAF of an Application will give rise to a contract between CAF and You, incorporating these Terms and the other documents applicable to Your Application referred to in these Terms.
  • CAF does not promise that an Application which is accepted will be successful and CAF may refuse to grant Portfolio Certification or refuse to provide a Portfolio Rating if You do not satisfy the relevant CAF Standard. CAF accepts no liability for or in connection with any costs, losses or damages however arising in connection with an unsuccessful Application.
  • To the maximum extent permitted by Law, CAF will not pay or reimburse any costs or expenses incurred by You in connection with Your Application or Your participation the CAF Portfolio Scheme.
  • Clause 13 applies in relation to any disputes arising in connection with an Application.

4. Portfolio Rating or Portfolio Certification Term

  • If Portfolio Certification or Portfolio Rating is granted in accordance with these Terms, the Portfolio Certification or Portfolio Rating will continue during the Portfolio Term, subject to these Terms.
  • Once per 12 month period, commencing on the date on which CAF awarded You Portfolio Certification or Portfolio Rating, CAF will reassess whether Your Portfolio remains eligible for Portfolio Certification or Portfolio Rating in accordance with these Terms. CAF will provide you written notice at least 30 days prior to this assessment occurring.

5. Your responsibilities

  • During the Portfolio Term, You must, and must take reasonable steps to ensure that Your Personnel and the Personnel engaged in the provision of cleaning services in the buildings in Your Portfolio:
    • act in good faith in all dealings with CAF and its Personnel;
    • comply with:
      • these Terms;
      • the relevant CAF Guide including without limitation the CAF Core Principles and the CAF Worker Engagement Protocol;
      • the CAF Licensing Guidelines;
      • CAF’s policies and procedures notified to You at the date of Portfolio Certification or Portfolio Rating and any reasonable directions given by CAF; and
      • all applicable Laws; and
    • cooperate reasonably with CAF, the Auditor, the Union and any other person notified by CAF involved in administering the CAF Portfolio Schemes.
  • Without limiting clause 5(a), You must:
    • submit all required information to CAF at times required by CAF (acting reasonably);
    • participate in and organise meetings scheduled by CAF;
    • respond to and facilitate requests by CAF for information relating to, and access to, the buildings in Your Portfolio or Personnel including any person supplying property services in respect of Your Portfolio in a timely manner;
    • report any actual or potential compliance breaches of these Terms by You or Your Personnel to CAF as soon as possible; and
    • actively monitor Your compliance with the CAF Portfolio Scheme(s) and compliance of all Personnel involved in providing property services in respect of Your Portfolio;
    • not do anything that does or is reasonably likely to bring CAF or any CAF Personnel into public disrepute or ridicule; and
    • notify us if a Change in Control is proposed to occur.
  • You agree to provide CAF with such information and assistance as CAF reasonably requests from time to time in connection with the further development of the CAF Portfolio Scheme(s) or other CAF audit or certification scheme, for instance, by participating in feedback sessions and interviews.
  • Without limiting any right or remedy of CAF, if at any time during the Portfolio Term You become aware of any actual or potential breach of these Terms, including any non-compliance with the relevant CAF Standard, the CAF Core Principles or any Law by You or any of Your Personnel, You must notify CAF as soon as possible and provide CAF such information as it reasonably requires in relation to the event giving rise to the breach and steps taken or proposed to be taken to mitigate its consequences.
  • You must by notice in writing immediately advise CAF if at any time during the Portfolio Term:
    • any existing Property Services Contract at any of the buildings in Your Portfolio is or is likely to be terminated, renewed or varied;
    • any new Property Services Contract at any of the buildings in Your Portfolio is or is likely to be entered into;
    • any tender or other process is proposed to be conducted in relation to the future supply of property services in respect of any of the buildings in Your Portfolio;
    • a material change occurs in relation to the property services supply chain of any of the buildings in Your Portfolio; and/or
    • any of the buildings in Your Portfolio, or any part of them is leased, sold or offered for lease or sale or proposed to be substantially refurbished or demolished.

6. Your rights

  • If a Portfolio Rating or Portfolio Certification is awarded in accordance with these Terms, during the Portfolio Term:
    • CAF may from time to time take steps to promote the fact that Your Portfolio has received a Portfolio Rating or Portfolio Certification including through its online platform and social media accounts, unless You direct us in writing that You do not wish us to do so; and
    • subject to these Terms, You may publicly represent your Portfolio Rating or Portfolio Certification in accordance with the CAF Licensing Agreement and CAF Licensing Guidelines.

7. Fees

  • You must pay the application fee as quoted by CAF at the time Your Application is accepted by CAF for processing.
  • During the course of an assessment, if CAF becomes aware of or reasonably suspects that one or more of the buildings or other assessable component in Your Portfolio does not comply with the applicable CAF Standard and therefore Your Portfolio is not eligible for Portfolio Rating or Portfolio Certification, additional fees or charges may be payable by You to reflect the additional costs in re-assessing non-compliant buildings or other assessable components in Your Portfolio, such as, for instance, the cost of a second assessment of non-compliant buildings or other assessable components in Your Portfolio. You will be given prior written notice of these additional fees and you may withdraw Your Application if You do not wish to pay them.
  • If You are awarded Portfolio Rating or Portfolio Certification and you wish to retain Your Portfolio Rating or Portfolio Certification for an additional Portfolio Term at the end of Your initial Portfolio Term, You will be required to pay an additional fee as notified by CAF. CAF will provide 30 days’ written notice prior to this fee being due and payable.
  • At times, there may be a need for follow up which requires the engagement of an Auditor or an additional assessment by CAF. This will be subject to additional fees which will be communicated in advance and subject to Your approval.
  • CAF may vary the fees at any time by giving You at least 60 days’ written notice. Upon receiving notice of any alteration in fees or charges, You may terminate any contract of which these Terms form part of in accordance with clause 12.
  • All fees are exclusive of GST which will be additionally charged by CAF. CAF will issue a valid tax invoice. All fees paid are non-refundable.

8. Licencing and use of marks

  • Subject to clauses 8(b), (c) and (d), CAF grants You a non-exclusive, revocable, non-transferable, and non-sublicensable (except to Your Related Bodies Corporate) licence to use the CAF Branding.
  • You must only use the CAF Branding:
    • for the purpose of promoting Your Portfolio Rating or Portfolio Certification;
    • in association with Your Portfolio, by displaying the CAF Branding at buildings in Your Portfolio to the extent permitted under these Terms; and
    • in accordance with the CAF Licensing Guidelines and any other reasonable directions of CAF.
  • You must not:
    • use the CAF Branding in a manner which, in CAF’s reasonable opinion, may be prejudicial to CAF or the CAF Branding; or
    • apply to register any trade mark, business name, company name or domain name which includes any CAF Branding, or which is substantially identical or misleadingly or deceptively similar to any CAF Branding.
  • The licence granted in clause 8(a) will commence on the date that You are granted Portfolio Certification or Portfolio Rating and will automatically terminate or expire on the earlier of the date that:
    • Your Portfolio Term expires;
    • Your Portfolio Certification or Portfolio Rating is withdrawn in accordance with clause 11 of these Terms; or
    • any contract with You which incorporates these Terms is terminated in accordance with clause 12 of these Terms.
  • CAF will notify You in writing if Your licence has been revoked in accordance with clause 8(d). In the event of revocation, references by You to CAF either in part or whole including any CAF Branding must be removed by You from all buildings in Your Portfolio within seven Business Days of notification.
  • You agree that section 26 of the Trade Marks Act 1995 (Cth) does not apply as between You and CAF.
  • You agree to immediately notify CAF of:
    • any infringement or threatened infringement of any intellectual property rights that subsist in the CAF Branding; or
    • any complaint that Your use of the CAF Branding infringes the intellectual property rights of a third party.
  • On and from the date You receive Portfolio Certification or Portfolio Rating You grant CAF a non-exclusive, non-transferable licence to use and display Your name, logo and associated branding on the CAF website and in CAF publications for the Portfolio Term. You acknowledge and agree that CAF may, at its sole discretion, remove Your name, logo and associated branding from the CAF website and publications if you breach these Terms or cease to hold a Portfolio Certification or Portfolio Rating.

9. Disclaimer and Liability

  • You acknowledge that CAF does not, and does not purport to, whether in connection with the CAF Portfolio Scheme(s) or otherwise, provide any advice, guarantee or assurance in relation to Your or any other person’s compliance with any Law. The CAF Portfolio Scheme(s) operates as a guide to best practice only and is informed by input CAF receives from its partners. You are responsible for obtaining Your own independent advice in relation to Your compliance with the Law and for any failure to comply with the Law.
  • Subject to clause 9(c) and to the maximum extent permitted by law, CAF on its own behalf and on behalf of its members, affiliates, directors, officers, partners, and Personnel, excludes and disclaims any and all liability, for any expenses, losses, damages or costs whatsoever incurred by You however arising (whether in contract, tort (including negligence) or otherwise) suffered or incurred by You in connection with Your participation in the CAF Portfolio Scheme including any expenses, losses, damages or costs arising from:
    • the process by which Your Application is considered; or
    • the administration of the CAF Portfolio Scheme(s).
  • Nothing in these Terms excludes CAF’s liability for loss or damaged suffered by You arising from CAF’s gross negligence, fraud or wilful misconduct.

10. Indemnity

You indemnify CAF, its members, affiliates, directors, officers, partners, and Personnel (each an Indemnified Party) and hold each Indemnified Party harmless from and against all Losses (including all legal costs, and any other associated fees and costs) which an Indemnified Party suffers or incurs in connection with:

  • (b) any infringement or alleged infringement of CAF’s intellectual property rights including in relation to the CAF Branding; and
  • any gross negligence, fraud or wilful misconduct by You,

relating in any way to Your involvement with CAF by You, Your Personnel or any person for whom You are responsible.

11. Withdrawal of Rating or Certification

  • Without limiting any of its other rights or remedies, CAF may at any time immediately withdraw any Portfolio Rating or Certification if:
    • You fail to comply with any provision of these Terms and do not remedy the breach (if capable of remedy) within a reasonable period of time after being provided notice of the breach by CAF;
    • or if any of the events listed in clause 5(d) or (e) occur.
  • If Your Portfolio Rating or Certification is withdrawn, You must:
    • remove all references to Your Portfolio Rating or Portfolio Certification from Your Portfolio and/or the buildings within Your Portfolio within seven Business Days;
    • within seven Business Days, notify all Personnel directly or indirectly involved in providing property services in respect of the buildings in Your Portfolio that You no longer hold a rating or certification ;
    • take all reasonable steps to ensure that all Personnel in Your property services supply chain cease to make any reference to CAF or the CAF Portfolio Scheme(s); and
    • upon request, certify in writing to CAF that You have complied with this clause 11(b).

12. Termination

  • Without limiting any of CAF’s other rights whether under these Terms or otherwise, CAF may terminate any contract with You which incorporates these Terms with immediate effect by written notice to You if:
    • You fail to make any payment under these Terms by the due date for that payment and the amount remains unpaid for more than 10 Business Days after CAF provides You with notice in writing of Your obligation to make such payment;
    • You obtain Portfolio Rating or Portfolio Certification as a result of any misrepresentation, fraud or misconduct;
    • You or any of Your Personnel or any other person for whom You are responsible fails to cooperate with any investigation by CAF in connection with Your Portfolio;
    • You misrepresent Your participation in the CAF Portfolio Scheme(s) in any way;
    • You engage in any conduct that brings or is reasonably likely to bring CAF or any of its members into disrepute;
    • a Change of Control occurs and CAF considers (acting reasonably) that the Change in Control adversely affects (or is likely to adversely affect) Your Portfolio Rating or Portfolio Certification;
    • You are the subject of an Insolvency Event; or
    • You breach any material provision of these Terms which is not capable of remedy, or if it is capable of remedy, You do not remedy the breach within 10 Business Days of receiving written notice of the breach.
  • You may terminate any contract with CAF that incorporates these Terms with immediate effect by written notice to CAF if:
    • CAF is the subject of an Insolvency Event; or
    • CAF breaches any material provision of these Terms which is not capable of remedy, or if it is capable of remedy, CAF does not remedy the breach within 10 Business Days of receiving written notice of the breach.
  • Either party may terminate any contract of which these Terms form part for convenience and without the need to provide reasons by providing 20 Business Days’ notice to the other party.
  • On termination or expiry of any contract of which these Terms form part:
    • all money owed by You to CAF will become immediately due and payable;
    • to the maximum extent permitted by Law, You will not be entitled to any fees, costs, damages or other compensation from CAF for amounts you paid to CAF prior to termination or expiry of these Terms;
    • Your access to CAF’s tools, resources, information and advice will be immediately withdrawn; and
    • any and all rights under the CAF Licensing Agreement to use the CAF Branding and marketing material will cease immediately. You must immediately remove and discontinue any use of these.

13. Dispute resolution procedure

  • By accepting these Terms, You agree to act in good faith and cooperate reasonably with CAF in relation to the resolution of any disputes or disagreements that arise in connection with Your participation in the CAF Portfolio Scheme(s). For the avoidance of doubt, nothing in this clause operates in relation to any matter or dispute involving the application or interpretation of any Law, including but not limited to the Fair Work Act 2009 (Cth) or the Cleaning Services Award 2020.
  • Neither party will commence court proceedings or action against the other party under or in connection with these Terms (other than where urgent interlocutory relief is sought) unless it has first attempted to resolve the dispute using the following process:
    • a party may invoke the dispute resolution process by providing the other party with written notice of the dispute including the nature of the dispute, together with relevant supporting documents and any steps taken to resolve the dispute; and
    • following notice from either party invoking the process, senior representatives of the parties must meet (in-person or virtually) within seven (7) days or such other time as agreed by the parties to discuss and attempt to resolve the dispute in good faith.

14. Entire Agreement

  • These Terms and any documents, guidelines, standards or other agreements referenced within them constitute the entire agreement between You and CAF with respect to Your Portfolio Rating or Portfolio Certification. They set out the only conduct, representations, warranties, covenants, conditions, agreements or understanding (collectively Conduct) relied on by You and CAF and supersede all earlier Conduct by or between You and CAF in connection with their subject matter. Nothing in this clause limits a party’s liability for prior misleading or deceptive conduct.

15. Miscellaneous

  • In these Terms:
    • the singular includes the plural and vice versa;
    • the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’, ‘such as’ or similar expressions;
    • a reference to a document or instrument, including these Terms, includes all of its clauses, paragraphs, recitals, parts, schedules and annexures and includes the document or instrument as amended, varied, supplemented or replaced from time to time;
    • unless otherwise stated, a reference to a statute, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; and
    • if the day on or by which something must be done is not a Business Day, that thing must be done on the next Business Day.
  • No provision of these Terms will be construed to the disadvantage of CAF merely because CAF is responsible for the preparation of the Terms or the inclusion of the provision in these Terms.
  • These Terms may be amended by CAF at any time. Any such amendment will be published on CAF’s website. CAF will provide You with reasonable written notice of any amendment of the Terms that is likely to have a material impact on Your rights or obligations under these Terms. If You disagree with these amendments You may terminate any contract of which these Terms form part of in accordance with clause 12.
  • Your rights, interests and obligations under these Terms are personal and You must not assign or otherwise deal with them without the prior written consent of CAF which may be given or withheld at CAF’s reasonable discretion.
  • The termination or expiry of Your Portfolio Rating or Portfolio Certification any associated rights under these Terms does not operate to terminate any rights or obligations under these Terms that by their nature are intended to survive termination or expiration and those rights or obligations remain in full force and binding on the party concerned.
  • These Terms do not create a relationship of employment, agency, partnership or joint venture between the CAF and You.
  • If any provision of these Terms is void, voidable by a party, unenforceable, invalid or illegal and would not be so if a word or words were omitted, then that word or those words are to be severed and if this cannot be done, the entire provision is to be severed from these Terms without affecting the validity or enforceability of the remaining provisions of these Terms.
  • No failure to exercise or delay by CAF in exercising any right given by or under these Terms constitutes a waiver and CAF may still exercise that right in the future. No single or partial exercise of any right precludes any other or further exercise of that or any other right.
  • If there is any inconsistency between any provision in these Terms and any provision in any other document forming part of the agreement between You and CAF, the relevant provision listed higher in the list below will prevail to the extent of the inconsistency:
    • these Terms;
    • the Portfolio Rating User Guide or Certification User Guide;
    • the CAF Licensing Agreement; and
    • the CAF Licensing Guidelines.

 

Cleaning Accountability Framework Ltd.