Terms of Service

These Platform Terms and Conditions apply to access and use of the Nooma Platform and related services made available by OPTIMISE-HR PTY LTD ABN 70 683 097 850 (the Provider).

By clicking to accept these Terms, creating an account, starting a free trial, purchasing a Subscription Plan, or accessing or using the Platform, the person doing so agrees to these Terms for themselves and, if acting on behalf of an organisation, for that organisation (the Client).

If the person accepting these Terms does so on behalf of an organisation, that person warrants that they have authority to bind that organisation to these Terms.

PLATFORM TERMS AND CONDITIONS

1. HOW TO READ THIS AGREEMENT
1. 1.1 MEANING OF CAPITALISED WORDS AND PHRASES

Capitalised words and phrases used in these Terms and Conditions have the meaning given in the definitions in clause 19 of this agreement or by the words immediately preceding them where they appear in bold and brackets.

1.2 ORDER OF PRECEDENCE
1. (a) These Terms apply to the exclusion of any terms submitted, proposed or sought to be imposed by the Client, except to the extent expressly agreed by the Provider in writing.
2. (b) These Terms may be supplemented by any additional terms presented to the Client on the Platform in relation to a particular feature, trial, Subscription Plan or add-on, and those additional terms apply to the extent of any inconsistency only for that feature, trial, Subscription Plan or add-on.

2. TERM OF THIS AGREEMENT
1. 2.1 TERM GENERALLY
  1. (a) This agreement commences on the Commencement Date and will continue for the Initial Term, and any Renewal Term applicable per clause 2(b), unless terminated earlier in accordance with clause 14 (Term).
  2. (b) Subject to clause 2(c), upon expiration of the Initial Term, this agreement will automatically and indefinitely renew on an ongoing basis for a period equal to the Initial Term (Renewal Term).
  3. (c) This agreement will not automatically renew on expiry of the Initial Term or a Renewal Term (Renewal Date), if the Client cancels a paid Subscription Plan (in which case the cancellation takes effect at the end of the then-current billing period unless these Terms expressly provide otherwise) or if the Provider terminates in accordance with these Terms.
  4. (d) For clarity, if the Client has prepaid Subscription Fees for a billing period (for example, a month or year), any termination or non-renewal under this clause 2 does not entitle the Client to a refund of prepaid Subscription Fees and the Client will continue to have access to the Solution until the end of the then-current paid period, unless terminated earlier in accordance with clause 14.
2. 2.2 FREE TRIAL
  1. (a) The Provider may offer a free trial of the Solution for a limited period, as described on the website or Platform and where the Client is accessing the Solution through a Free Trial, these Terms will apply for the duration of that Free Trial.
  2. (b) The scope, features and duration of any free trial are as stated at the point of sign-up and may be changed or withdrawn by the Provider at any time before the Client signs up.
  3. (c) During a free trial, the Solution is provided “as is” and without any commitment to continued availability, support or feature set, and the Provider may suspend or end a free trial at any time on reasonable notice.

3. THE SOLUTION
1. 3.1 SCOPE OF SOLUTION
  1. (a) The Solution includes the Platform, the Documentation and any related services, support, features, modules, add-ons, advisory services or trial access that the Provider makes available to the Client under the Client’s selected Subscription Plan or otherwise via the Platform (Solution).
  2. (b) Any support, implementation assistance, advisory services or ER Advice Line services are only included to the extent expressly stated on the Platform or in the Client’s selected Subscription Plan.
  3. (c) The Client acknowledges and agrees that, unless expressly stated otherwise in the Key Details, the Solution and any Advisory Services are not legal services or legal advice and are not a substitute for the Client’s own employment, compliance or legal obligations.
2. 3.2 LICENCE
  1. (a) During the Term, the Provider grants to the Client a non-exclusive, non-transferable, revocable licence to use the Solution for its internal business purposes in accordance with these Terms and the usage limits of the selected Subscription Plan.
3. 3.3 ADVISORY SERVICES
  1. (a) Where the Solution includes any advisory, consulting or fractional chief people officer services (Advisory Services), those Advisory Services will be as described on the Platform and may be delivered by the Provider’s employees or subcontractors at the Provider’s discretion.
  2. (b) The Client acknowledges and agrees that there is no guarantee that any particular individual will perform the Advisory Services for the duration of this agreement, and the Provider may substitute appropriately qualified personnel from time to time.
  3. (c) The Advisory Services are limited to up to one business day (approximately 8 hours) per month, unless otherwise stated in the Key Details. Time is tracked in 15-minute increments. Any unused hours in a month lapse at the end of that month and do not roll over.
  4. (d) Where the Provider is unable to complete Advisory Services as described in a particular subscription period, the parties will work in good faith to determine a credit of unused hours.
4. 3.4 ER ADVICE LINE SERVICES
  1. (a) Any ER Advice Line included in the Subscription Plan or outlined on the Platform (ER Advice Services) provides general employment relations guidance from appropriately qualified personnel for genuine ER queries.
  2. (b) It does not provide legal advice, legal representation, or advice that can be relied upon in any proceeding.
  3. (c) The Client must not treat guidance as a substitute for independent legal advice in matters involving litigation, regulatory investigation or Fair Work Commission proceedings.
  4. (d) The service is delivered by the Provider’s appointed partner firm, which the Provider may change on reasonable notice.
  5. (e) Access to the ER Advice Line is subject to a monthly usage allocation (as set out in the Key Details or on the Provider’s website) and unused allocation does not roll over.
5. 3.5 CHANGES TO THE SOLUTION
  1. (a) The Provider may update, enhance, modify, replace or discontinue features of the Solution from time to time, provided this does not materially reduce the core functionality of the Client’s then-current paid Subscription Plan during the applicable prepaid billing period.
  2. (b) The Provider may from time to time in its absolute discretion install enhancements to the Solution, where enhancements mean any upgraded, improved, modified or new versions of the Solution (including any customisations made at the Client’s request).
  3. (c) If additional users are required in addition to the Number of Licensed Users set out in the Key Details, the following process will apply:
    1. (i) the Client must notify the Provider of the number of additional users required; and
    2. (ii) the Provider will invoice the Client the Additional Licensed User Fee for each additional user for the then-current month/year and the remaining months of that year.
6. 3.6 HOSTED SERVICES

3.8 SUBCONTRACTINGThe Provider may subcontract any aspect of providing the Solution and the Client hereby consents to such subcontracting.

4. CLIENT OBLIGATIONS
1. 4.1 GENERAL
  1. (a) The Client:
    1. (i) must provide the Provider with all documentation, information and assistance reasonably required by the Provider to provide the Solution;
    2. (ii) must provide the Provider with access to the Client’s Personnel, to the extent required to perform the Support; and
    3. (iii) agrees that it will not, by receiving or requesting the Solution:
      1. (A) breach any applicable laws, rules or regulations (including any applicable privacy laws); or
      2. (B) infringe the Intellectual Property Rights or other rights of any third party or breach any duty of confidentiality.
2. 4.2 HUMAN ACCOUNTABILITY AND AUDIT TRAIL
  1. (a) The Client acknowledges that the Platform is a decision-support tool only and does not make decisions for or on behalf of the Client.
  2. (b) All employment and workplace decisions made using, or informed by, the Solution remain the sole responsibility of the Client.
  3. (c) The Platform may record an audit trail of actions, documents and other activity together with timestamps to support governance and record-keeping, however the Provider does not warrant that such records will be admissible as evidence in any proceeding.
3. 4.3 USERS
  1. (a) The Client must, and must ensure that all Users:
    1. (i) comply with this agreement at all times; and
    2. (ii) notify the Provider without delay whenever it becomes aware of any case of a breach of this clause 4 or otherwise any illegal or unauthorised use of the Solution.
  2. (b) The Client acknowledges and agrees that the Provider will have no liability for any act of a User or for damage, loss or expense suffered by a User in connection with the use of the Solution and the Client indemnifies the Provider for any such damage, loss or expense.
4. 4.4 USE OF SOLUTION

The Client must not, and must not encourage or permit any User or any third party to, without the Provider’s prior written approval:

(a) upload any Client Data without ensuring it has all necessary documentation to do so, as well as sound legal basis as required under any applicable laws;
(b) upload any harmful, discriminatory, defamatory, maliciously false, offensive, explicit, inappropriate, illicit, illegal, pornographic, sexist, homophobic or racist material to the Platform;
(c) upload any material that is owned or copyrighted by a third party;
(d) make copies of the Documentation or the Solution;
(e) adapt, modify or tamper in any way with the Solution;
(f) remove or alter any copyright, trade mark or other notice on or forming part of the Solution or Documentation;
(g) create derivative works from, translate or reproduce the Solution or Documentation;
(h) publish or otherwise communicate the Solution or Documentation to the public, including by making it available online or sharing it with third parties;
(i) sell, loan, transfer, sub-licence, hire or otherwise dispose of the Solution or Documentation to any third party, other than sub-licensing to a Licensed User for the Number of Licensed Users;
(j) decompile or reverse engineer the Solution or any part of it, or otherwise attempt to derive its source code;
(k) attempt to circumvent any technological protection mechanism or other security feature of the Solution;
(l) intimidate, harass, impersonate, stalk, threaten, bully or endanger any other user of the Solution or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment in connection with the Solution;
(m) permit any person other than a Licensed User to use or access the Solution or Documentation or share its Platform account information with any other person. Each licence is issued to a named individual and may not be shared. Sharing credentials is a material breach of this agreement and the Provider may suspend access to the Solution immediately without refund if credential sharing is detected;
(n) use the Solution for any purpose other than that for which it was designed, including any illegal or fraudulent purpose or to facilitate illegal or fraudulent activity; or
(o) act in any way that may harm the Provider’s reputation or that of associated or interested parties or do anything at all contrary to the interests of the Provider or the Solution.

(i) the Client is authorised to provide the Client Data;

The Provider will store Client Data using a third-party hosting service selected by the Provider (Hosting Service), subject to the following terms:

(a) Client acknowledges and agrees that the Provider may host the Platform via cloud-based services which use storage servers located in Australia. The Provider will not transfer Client Data outside Australia in the ordinary course of providing the Solution, except where required by law, at the Client’s express written instruction, or via sub-processors disclosed in the Provider’s privacy documentation.
(b) While the Provider will use its best endeavours to select an appropriate hosting provider, the Provider does not guarantee that the Hosting Service will be free from errors or defects or that Client Data will be accessible or available at all times.
(c) The Provider will implement and maintain reasonable technical and organisational measures designed to protect Client Data against unauthorised access, use, modification or disclosure. However, the Client acknowledges that no method of electronic transmission or storage is completely secure and the Provider does not guarantee that the Hosting Service will be free from security incidents. The Client is responsible for the security of its own devices, systems and networks used to access the Platform.
(d) In the event that Client Data is lost due to a system failure (for example, a database or webserver crash), the Provider will take reasonable steps to restore data from available backups. The Provider does not guarantee that any backup will be available or that restored data will be free from errors or defects.

3.7 SUPPORT SERVICES

(a) Where the Client’s Subscription Plan includes Support, the Provider will provide the Support to the Client during the Term in accordance with this clause.
(b) The Client acknowledges and agrees:
1. (i) the Provider will take reasonable steps to provide Support where necessary during the Term;
2. (ii) the Client must first endeavour to resolve any issues with the Platform internally and the Provider will not assist with issues that are beyond its reasonable control; and
3. (iii) the Client is responsible for all internal administration and managing access, including storing back-up passwords and assisting its Personnel to access and use the Platform.
(c) The Provider will use its best endeavours to respond to requests for Support and the Client acknowledges that the Provider may not be available at all times or respond in a particular timeframe.

4.5 CLIENT DATA

(a) By providing or posting Client Data, the Client represents and warrants, and must ensure that all Users make equivalent representations and warranties, that:
1. (ii) the Client Data is accurate and true at the time it is provided;
2. (iii) the Client Data is free from any harmful, discriminatory, defamatory or maliciously false implications and does not contain any offensive or explicit material;
3. (iv) the Client Data does not infringe any Intellectual Property Rights, including copyright, trademarks, business names, patents, Confidential Information or any other similar proprietary rights, whether registered or unregistered, anywhere in the world;
4. (v) the Client Data does not contain any viruses or other harmful code, or otherwise compromise the security or integrity of the Solution or any network or system; and
5. (vi) the Client Data does not breach or infringe any applicable laws.

4.6 CONNECTED ACCOUNTS

(a) Where the Solution allows the Client to invite other users whose subscriptions are billed through the Client’s account (Connected Users):
1. (i) the Client is the contracting party and is responsible for all Fees relating to Connected Users on its account;
2. (ii) each Connected User must accept this agreement in their own right and the Client’s acceptance does not constitute acceptance on their behalf;
3. (iii) each Connected User must use their own credentials and centralised billing does not permit credential sharing; and
4. (iv) if the Client’s subscription is cancelled, expires or is suspended, the Provider may suspend access for all Connected Users linked to that account.
(b) The Client may remove a Connected User from centralised billing at any time, in which case that user’s future Fees are no longer the Client’s responsibility.

4.7 OVERSIGHT

(a) For certain Subscription Plans or as added by the Client, the Solution may provide oversight functionality that allows designated users (such as executives or leaders) to view selected activity, work product, documents and satisfaction scores of users in their team or reporting line within the Platform.
(b) The Client must ensure that all affected users are informed that their work within the Platform may be visible to such oversight users.
(c) Oversight functionality is limited to work conducted within the Platform and must only be used for legitimate HR governance and team management purposes.

5. THIRD PARTY SOFTWARE AND TERMS
1. 5.1 GENERAL
  1. (a) The Client acknowledges and agrees that third party terms and conditions (Third Party Terms) may apply to use of the Solution.
  2. (b) The Client agrees to any Third Party Terms applicable to any third party goods and services that are used in providing the Solution and the Provider will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
  3. (c) The Provider will endeavour to notify the Client of Third Party Terms that apply to the Solution, in which case:
    1. (i) the Client must immediately notify the Provider if it does not agree to such Third Party Terms; and
    2. (ii) if the Provider does not receive a notice in accordance with clause 5.1(c)(i), the Client will be taken to have accepted those Third Party Terms, and the Provider will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
  4. (d) The Client acknowledges and agrees that if it does not agree to any Third Party Terms, this may affect the Provider’s ability to meet any agreed schedules for delivering the Solution.
2. 5.2 THIRD PARTY SOFTWARE
  1. (a) The Client acknowledges and agrees that issues can arise when data is uploaded to software, when data is transferred between different software programs, and when different software programs are integrated together. The Provider cannot guarantee that integration processes between the Platform and other software programs or IT systems will be free from errors, defects or delay.
  2. (b) The Client agrees that the Provider will not be liable for the functionality of any third party goods or services, including any third party software, or for the functionality of the Platform if the Client integrates it with third party software, or changes or augments the Platform, including by making additions or changes to the Platform code or by incorporating APIs into the Platform.
  3. (c) If the Client adds third party software or software code to the Platform, integrates the Platform with third party software, or makes any other changes to the Platform, including the Platform code (Client Solution Changes), then:
    1. (i) the Client acknowledges and agrees that Client Solution Changes can have adverse effects on the Solution, including the Platform;
    2. (ii) the Client indemnifies the Provider in relation to any loss or damage that arises in connection with the Client Solution Changes;
    3. (iii) the Provider will not be liable for any failure in the Solution, to the extent such failure is caused or contributed to by a Client Solution Change;
    4. (iv) the Provider may require the Client to change or remove Client Solution Changes, at the Provider’s discretion, and if the Provider does so, the Client must act promptly;
    5. (v) the Provider may suspend the Client’s access to the Solution until the Client has changed or removed Client Solution Changes; and/or
    6. (vi) the Provider may change or remove any Client Solution Changes, in its absolute discretion. The Provider will not be liable for loss of data or any other loss or damage the Client may suffer in relation to the Provider’s amendment to, or removal of, any Client Solution Change.

6. PAYMENT
1. 6.1 FEES
  1. (a) The Client must pay to the Provider the fees for the Subscription Plan, add-ons and any other paid services selected by the Client, at the rates displayed on the Platform, pricing page or checkout flow at the time of purchase (the Fees).
  2. (b) All Fees are paid in advance and non-refundable for change of mind.
2. 6.2 PAYMENT METHOD
  1. (a) By providing a payment method, the Client authorises the Provider and its payment processors to automatically charge the applicable Fees, taxes and any disclosed card surcharges to that payment method at the start of each billing period and at the time any add-on or upgrade is purchased.
  2. (b) The Provider may change its Fees from time to time by updating the Platform or pricing page and, for existing paid subscriptions, by giving at least 30 days’ prior notice by email or through the Platform.
  3. (c) If the Client does not agree to a fee change, the Client may cancel its Subscription Plan before the new Fees take effect. Continued use of the Solution after the new Fees take effect constitutes acceptance of the new Fees.
3. 6.3 FAILURE TO PAY
  1. (a) Unless otherwise agreed, the Provider may, in its absolute discretion:
    1. (i) not provide any part of the Solution until the Client has paid any fees or deposit payable in respect of such Services; and
    2. (ii) withhold delivery of any part of or all of the Solution until the Client has paid the invoice in respect of the Solution.
4. 6.4 TRIAL TO PAID SUBSCRIPTION
  1. (a) If the Client provides payment details when starting a free trial, the Client authorises the Provider and its payment processor to automatically begin charging the applicable Subscription Fees at the end of the trial period, unless the Client cancels through the Platform before the trial ends.
  2. (b) The first billing period starts immediately after the trial period ends, and the Subscription Fees are charged in advance for that billing period.
  3. (c) The Client can change or cancel its Subscription Plan at any time in accordance with these Terms.
5. 6.5 GST
  1. (a) Unless otherwise indicated, the Fees do not include GST. In relation to any GST payable for a taxable supply by the Provider, the Client must pay the GST subject to the Provider providing a tax invoice.

7. INTELLECTUAL PROPERTY
1. 7.1 CLIENT DATA
  1. (a) The Client grants to the Provider (and its Personnel) a non-exclusive, royalty free, non-transferable, worldwide licence to use the Client Data to the extent reasonably required to provide the Solution, perform this agreement, comply with the law and maintain reasonable business records and backups.
  2. (b) Subject to any longer retention period required by law or agreed in writing between the parties, the licence outlined in the above clause 7.1(a) will end after the retention period outlined in clause 14.4 following termination or expiry of this agreement.
  3. (c) The Client:
    1. (i) warrants that the Provider’s use of Client Data as contemplated by this agreement will not infringe any third-party Intellectual Property Rights; and
    2. (ii) indemnifies the Provider from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
2. 7.2 PROVIDER IP
  1. (a) Unless otherwise expressly agreed in the Key Details, the Client will not under this agreement acquire Intellectual Property Rights in any Provider IP or Developed IP.
  2. (b) Any Developed IP will be solely and exclusively owned by the Provider and vest in the Provider immediately upon creation.
  3. (c) The Provider grants to the Client a non-exclusive, royalty free, non-transferable, worldwide and revocable licence to use the Provider IP and any Developed IP to the extent required for the Client to use, enjoy the benefit of or exploit the Solution.
3. 7.3 CLIENT BRANDING AND USAGE
  1. (a) The Client grants the Provider and its related entities a non-exclusive, royalty-free, non-transferable, worldwide, limited licence to use the Client’s logo, trademarks and branding for the purposes of promoting its services and for portfolio use, unless otherwise agreed in writing.
4. 7.4 DEFINITIONS
  1. (a) For the purposes of this clause 7:
    1. (i) “Developed IP” means any materials produced by the Provider in the course of providing the Solution including documentation, reports, data, designs, concepts, know-how, information, advice, opinions, emails, notes whether in draft or final form, in writing, provided orally, either alone or in conjunction with the Client or others, and any Intellectual Property Rights attaching to those materials.
    2. (ii) “Provider IP” means all materials owned or licensed by the Provider that is not Developed IP and any Intellectual Property Rights attaching to those materials.

8. CONFIDENTIALITY AND RESTRAINT
1. 8.1 CONFIDENTIALITY
  1. (a) Except as contemplated by this agreement, a party must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any Confidential Information disclosed to it by the other party without its prior written consent.
  2. (b) This clause does not apply to:
    1. (i) information which is generally available to the public (other than as a result of a breach of these Terms or another obligation of confidence);
    2. (ii) information required to be disclosed by any law; or
    3. (iii) information disclosed by a party to its subcontractors, employees or agents for the purposes of fulfilling its obligations under this agreement (Additional Disclosees).
2. 8.2 RESTRAINT
  1. (a) For the duration of the Term and 12 months thereafter, the Client must not employ or engage (or be knowingly involved in another employing or engaging) any officers or employees of the Provider with which the Client had contact during the course of this agreement.
3. 8.3 BREACH

If either party becomes aware of a suspected or actual breach of this clause 8 by that party or an Additional Disclosee, that party will immediately notify the other party and take reasonable steps required to prevent, stop or mitigate the suspected or actual breach.

9. PRIVACY
1. 9.1 The Client agrees to the Provider collecting, using and disclosing personal information in accordance with its Privacy Policy, located <https://o-hr-website.webflow.io/privacy-policy>, which is incorporated into this agreement by reference.
2. 9.2 The Client is responsible for ensuring that it has provided all notices and obtained all consents, authorities or other lawful basis required under the Privacy Act 1988 (Cth) and any other applicable privacy laws before disclosing to the Provider, or uploading to the Platform, any personal information (including any sensitive information) about its employees, contractors, applicants or other third parties.
3. 9.3 The Client must not use the Solution to collect, store or process personal information in a way that would cause either party to breach the Privacy Act 1988 (Cth) or the Australian Privacy Principles.

10. DATA PROTECTION AND PRIVACY
1. 10.1 The Provider will:
  1. (a) establish, maintain, enforce and continuously improve safety and security procedures and safeguards against the unauthorised use, destruction, loss or alteration of Client Data;
  2. (b) not make any undocumented, unreported or unauthorised configuration changes to the Provider’s systems or to the information security controls that secure Client Data, if those changes would materially decrease the protections afforded to Client Data; and
  3. (c) notify and keep the Client notified of changes to the Provider’s safety and security procedures and safeguards relating to Client Data that are made from time to time.
2. 10.2 The Provider will notify the Client promptly after the Provider learns of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Confidential Information or other compromise of the security, confidentiality, or integrity of Confidential Information (collectively, Security Breaches).
3. 10.3 The Provider will promptly investigate each potential, actual or suspected Security Breach and assist the Client and its Personnel in connection with any investigation that the Client may desire to conduct with respect to the Security Breach.
4. 10.4 The Provider will take all steps requested by the Client to limit, stop or otherwise remedy any potential, actual or suspected Security Breach.

11. WARRANTIES
1. 11.1 SERVICE LIMITATIONS

While the Provider will use its best endeavours to ensure the Solution is working for its intended purpose, the Client acknowledges and agrees that from time to time, the Client may encounter the following issues:

(a) the Solution may have errors or defects;
(b) the Solution may not be accessible at times;
(c) messages sent through the Solution may not be delivered promptly, or delivered at all;
(d) information the Client receives or supplies through the Solution may not be secure or confidential; or
(e) any information provided through the Solution may not be accurate or true.

11.2 CORRECTION OF DEFECTS

(a) The Provider will correct any errors, bugs or defects in the Solution which arise during the Term, and which are notified to the Provider by the Client unless the errors, bugs or defects:
1. (i) result from the interaction of the Solution with any other solution or any computer hardware or services not approved in writing by the Provider;
2. (ii) result from any misuse of the Solution; or
3. (iii) result from the use of the Solution by the Client other than in accordance with this agreement or the Documentation.
(b) The Client agrees to provide the Provider and its Personnel reasonable access to its premises, Personnel and IT systems to assist the Provider in correcting any defects in the Solution.

11.3 EXCLUSION OF OTHER WARRANTIES

(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this agreement are excluded.
(b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.

11.4 AI-GENERATED OUTPUTS

(a) The Client acknowledges and agrees that any content, templates, suggestions or outputs generated by or through the Platform may be produced using artificial intelligence and are provided as a starting point only. The Provider does not warrant that such outputs are complete, accurate, legally current or suitable for the Client’s particular circumstances. The Client is responsible for reviewing all outputs before use and obtaining independent professional advice where appropriate.

11.5 AUDIT AND ASSESSMENT RESULTS

(a) Where the Solution includes any audit, assessment or maturity scoring tools, the Client acknowledges that results are indicative only and based on inputs provided by the Client or its users. Such results do not constitute legal advice or a comprehensive HR or compliance review, and the Provider is not liable for any loss, penalty or claim arising from reliance on those results, subject to the Client’s non-excludable rights under the Australian Consumer Law.

12. LIABILITY
1. 12.1 LIMITATION OF LIABILITY
  1. (a) To the maximum extent permitted by law and subject to clause 12.1(b), the total liability of each party in respect of loss or damage sustained by the other party in connection with these Terms or the Solution is limited to the total Fees paid by the Client to the Provider in the 12 months preceding the date of the event giving rise to the liability.
  2. (b) Clause 12.1(a) does not apply to the Client’s liability in respect of loss or damage sustained by us arising from:
    1. (i) the Client’s breach of clauses 4.4, 7, 8;
    2. (ii) the Client’s breach of third party intellectual property rights;
    3. (iii) the Client’s decision(s) made in connection with its employment, HR or compliance matters, whether or not made using or informed by the Solution;
    4. (iv) any outcome arising from guidance provided through any ER Advice Services or similar service; or
    5. (v) any interruption, delay or failure of any third party service provider used in connection with the Solution.
2. 12.2 CONSEQUENTIAL LOSS

To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with these Terms, except:

(a) in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or
(b) to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).

13. UPGRADES AND DOWNGRADES
1. 13.1 The Client may notify the Provider that it would like to upgrade or downgrade its Subscription Plan at any time, and the Client must do so if the number of Licensed Users changes such that the Client’s use of the Solution falls into a new Subscription Plan.
2. 13.2 If the Client provides a notice under clause 13(a), or the Provider otherwise becomes aware that the Client’s use of the Solution has changed such that it falls into a new Subscription Plan, the Provider will:
  1. (a) take reasonable steps to promptly provide the Client with access to the new Subscription Plan; and
  2. (b) in the monthly billing cycle immediately following the month in which the Client’s access to the new Subscription Plan was provided (First Access Month):
    1. (i) charge the Client the new, relevant Subscription Fee for that subsequent month (Second Access Month), and each subsequent month (subject to another notice or change under this clause 13); and
    2. (ii) if the Subscription Fee for the Second Access Month is higher than in the First Access Month, then the Provider will charge the Client the new, relevant Subscription Fee for the proportion of the First Access Month that the Client had access to the new Subscription Plan, on a pro rata basis.
3. 13.3 For the avoidance of doubt, if the Client chooses to downgrade its Subscription Plan, the new Subscription Fees will take effect at the start of the next billing cycle, unless the Provider notifies the Client otherwise. The Provider generally does not pro-rate downgrades in between billing cycles, however the Provider reserves the right to from time to time.
4. 13.4 These Terms will be taken to be amended in accordance with any changes agreed in accordance with this clause 13.

14. CANCELLATION
1. 14.1 CANCELLATION AT ANY TIME
  1. (a) Either party may cancel or terminate the Subscription Plan for convenience at any time by providing notice to the other party. Cancellation will take effect at the end of the then-current billing cycle, and the Client will continue to have access to the Solution until that date. As Subscription Fees are paid in advance, no refund or credit will be provided for any unused portion of the current billing cycle.
2. 14.2 CANCELLATION FOR BREACH
  1. (a) If there has been a Breach of these Terms, the Notifying Party may cancel the Subscription Plan immediately by written notice.
  2. (b) A “Breach” of these Terms means:
    1. (i) a party (Notifying Party) considers the other party (or any of its Personnel or Users) is in breach of these Terms and notifies the other party;
    2. (ii) the other party is given 10 Business Days to rectify the breach; and
    3. (iii) the breach has not been rectified within 10 Business Days or another period agreed between the parties in writing.
3. 14.3 EFFECT OF TERMINATION

Upon termination of this agreement:

(a) the Client will no longer have access to the Solution.
(b) unless agreed in writing, any Fees that would otherwise have been payable after termination for the remainder of the relevant Renewal Period will remain payable and, to the maximum extent permitted by law, no Fees already paid will be refundable; and
(c) each party must comply with all obligations that are by their nature intended to survive the end of this agreement.

14.4 DATA BACKUP

(a) Upon cancellation or expiry of this agreement, the Provider will retain Client Data for a period of 90 days (or such other period notified by the Provider in writing) after the end of the Term (Retention Period) to allow the Client to export or retrieve its data.
(b) During the Retention Period, the Client may request a copy of its Client Data in a standard export format, and the Provider will make that data reasonably available, subject to payment of any reasonable administrative fees notified to the Client.
(c) After the Retention Period, the Provider may delete or de-identify Client Data in accordance with its data retention policies and any applicable laws, and may be unable to recover Client Data after that point.
(d) The Client is responsible for maintaining its own backups of any Client Data it wishes to retain beyond the Retention Period, and the Provider is not liable for any loss of data arising from the Client’s failure to do so, subject to the Client’s non-excludable rights under the Australian Consumer Law.

15. IF THE PARTIES HAVE A DISPUTE
1. 15.1 If an issue between the parties arises under this agreement that cannot be resolved day-to-day, the parties will make genuine efforts in good faith to participate cooperatively in mediation, at equal shared expense of the parties.
2. 15.2 The parties will conduct mediation through the Australian Disputes Centre (ADC) and in accordance with the ADC’s Guidelines for Commercial Mediation (as current at the time of the dispute).
3. 15.3 The parties will follow the mediator’s recommendations on the extent of mediation required, and when to stop mediation if the issue cannot be resolved.
4. 15.4 If mediation does not resolve the issue, the parties must:
  1. (a) if they haven’t already done so, engage independent legal representation at their own expense to understand the strength of their arguments; and
  2. (b) based on that advice, if settlement is not achieved, participate in arbitration (or other dispute resolution mechanism agreed in mediation) through the ADC at equal shared expense.
5. 15.5 The parties will follow the binding outcome of arbitration (or other agreed mechanism).
6. 15.6 Either party may at any time during this process make an offer for settlement. The parties acknowledge and agree it is in their best interests to properly consider all genuine settlement offers. The parties will use best endeavours to avoid litigation and reach a prompt settlement.
7. 15.7 The process in this clause does not apply where a party requires an urgent injunction.

16. NOTICES
1. 16.1 The Provider may give notices to the Client by email to the email address associated with the Client’s account, or by in-product notification through the Platform.
2. 16.2 The Client may give notices to the Provider by email to the contact email address specified on the Platform or website, or by any other contact method expressly made available by the Provider for legal notices.
3. 16.3 A notice is taken to be received when sent, unless the sender receives an automated failure message or is otherwise aware that delivery has failed and, for in-product notices, when the notice is first displayed to the Client within the Platform.
4. 16.4 The Client is responsible for keeping its account contact details current.

17. FORCE MAJEURE
1. 17.1 A ‘Force Majeure Event’ means any occurrence beyond the control of the Affected Party which prevents the Affected Party from performing an obligation under this agreement (other than an obligation to pay money), including any:
  1. (a) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
  2. (b) strike or other industrial action;
  3. (c) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
  4. (d) decision of a government authority in relation to COVID-19, or other epidemic or pandemic, to the extent the occurrence affects the Affected Party’s ability to perform the obligation.
2. 17.2 If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
  1. (a) reasonable details of the Force Majeure Event; and
  2. (b) so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
3. 17.3 Subject to compliance with clause 17(b), the relevant obligation will be suspended during the Force Majeure Event to the extent that the obligation is affected by the Force Majeure Event.
4. 17.4 The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible and resume performing the relevant obligation.

18. GENERAL
1. 18.1 GOVERNING LAW AND JURISDICTION
  1. (a) This agreement is governed by the law applying in Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
2. 18.2 AMENDMENTS
  1. (a) This agreement may only be amended in accordance with a written agreement between the parties.
3. 18.3 WAIVER
  1. (a) No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
4. 18.4 SEVERANCE
  1. (a) Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
5. 18.5 JOINT AND SEVERAL LIABILITY
  1. (a) An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
6. 18.6 ASSIGNMENT
  1. (a) A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
7. 18.7 COUNTERPARTS
  1. (a) This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
8. 18.8 COSTS
  1. (a) Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.
9. 18.9 ENTIRE AGREEMENT
  1. (a) This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
10. 18.10 INTERPRETATION

In this agreement:

(a) (singular and plural) words in the singular include the plural (and vice versa);
(b) (gender) words indicating a gender include the corresponding words of any other gender;
(c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(d) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(e) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(f) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(g) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(h) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(i) (includes) the word “includes” and similar words in any form are not words of limitation;
(j) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision; and
(k) (currency) a reference to $, or “dollar”, is to Australian currency, unless otherwise agreed in writing.

19. DEFINITIONS

In this agreement, capitalised terms have the meaning given to them in the Key Details, and the following phrases have the meaning set out below.
(a) Client Data means files, data, information or any other materials, which is uploaded or inserted to the Platform, or otherwise provided to the Provider, by the Client or its Licensed Users, and includes any Intellectual Property Rights attaching to such materials.‍
(b) means the date that the Client accepts these Terms or first accesses or uses the Platform, whichever occurs first.
(c) Confidential Information means information of or provided by a party that is by its nature confidential information, is designated by that party as confidential, or that the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge.
(d) Documentation means all manuals, help files, template documents, research findings, blog posts and other documents supplied by the Provider to the Client relating to the Solution, whether in electronic or hardcopy form.
(e) Fees has the meaning given in clause 6.1(a).
(f) Initial Term means the first applicable billing period for the Client’s selected Subscription Plan.
(g) Intellectual Property Rights means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement.
(h) Key Details means these Terms, the Platform, the selected Subscription Plan or the Provider’s website or pricing page as applicable.
(i) Licensed User means a user of the Solution who has been validly granted access to the Platform and Documentation by the Client in accordance with clause 3.2.
(j) Personnel means, in respect of a party, its officers, employees, contractors (including subcontractors) and agents.
(k) Platform means the web-app made available by the Provider to the Client under the relevant Subscription Plan.
(l) Renewal Term means any additional billing periods for the Client’s selected Subscription Plan.
(m) Solution has the meaning given in clause 3.1(a).
(n) Special Conditions means any additional terms expressly presented and accepted online for a feature, add-on or promotion.
(o) Support means the support included in the selected Subscription Plan.
(p) User means the Client’s Licensed Users, its Personnel, and any other third party who are granted access to the Platform or Documentation by the Client, its Licensed Users or its Personnel.

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Terms of Service

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