Terms & Conditions
- Defined Terms
This clause 1 defines certain terms used in this agreement. Other terms are defined elsewhere in this agreement.
- ‘Documents’ means the template documents that you may download from the Website.
- ‘Intellectual Property’ means existing and future copyright, trademarks, designs, patents or circuit layouts, whether registered or not.
- ‘Service’ means access to the Website Content via the Website.
- ‘Subscription Period’ means the period of time so specified on the Website as applying to the Service package you select.
- ‘we’ means Employee Matters Pty Ltd (ACN 154 568 297)and, where it would be appropriate in the context, includes Employee Matters Pty Ltd’s subsidiary, related or affiliated entities and all officers, employees and agents of Employee Matters Pty Ltd or those related or affiliated entities.
- ‘Website’ means a website operated by us and containing information and template documents intended to assist businesses to deal with their employment affairs.
- ‘Website Content’ means content supplied by us in the course of providing the Service, including Documents.
- ‘you’ means the entity, partnership or sole trader entering into this agreement by accepting our offer to supply the Service on the terms of this agreement. That entity, partnership or sole trader will be the party in whose name your account is held.
- Access & integrity
- Maintenance & support
- Fees & Charges
- We will charge you the subscription and transaction fees (‘Fees’) set out on the Website and corresponding to your Service package.
- The Fees payable for subscriptions will be payable at the commencement of each new Subscription Period.
- You must pay all Fees we charge you and pay them in accordance with this agreement, including any terms of payment set out on the Website.
- Without limiting clause 11.4 (variation), we may increase the Fees from time to time and, if we do so, we must use our reasonable endeavours to give you notice of the increase
Within the first 14 days of acquiring the Service, or purchasing Documents in a single transaction, we will refund you the Fees you paid in relation to the Service or Documents if, acting in good faith, you are not satisfied with the Service or Documents and notify us by telephone or email.
- Except as expressly set out in this agreement, you acknowledge that, as between you and us:
- you do not own any Intellectual Property in the Website Content;
- you do not own, nor are entitled to exercise, any other rights in the Website Content.
- We grant you a licence (‘Licence’) to use the Website Content for the purposes of managing the employment affairs of your business. In relation to Documents, this includes downloading, making electronic or hard copies of, modifying and applying your branding to, the Documents. However, this excludes dealing in Documents in return for consideration from third parties (e.g. money or other benefits).
- Subject to paragraph (c), the Licence in relation to the Website Content:
- continues in effect until this agreement is lawfully terminated;
- is non-exclusive;
- is confined to your Australian operations;
- is royalty-free (other than insofar as payment of Fees is a royalty);
- subject to your compliance with this agreement, is irrevocable; and
- is not transferrable or sub-licensable.
You must not do any act that infringes any Intellectual Property or other rights subsisting in or relating to the Website Content.
- We warrant that any of our officers, employees or sub-contractors, or any other person, who have moral rights in Website Content have waived or will waive all right, title and interest they may have in any right, action or remedy against you for infringement of any such moral rights.
- You must not apply any copyright notice to any Website Content.
- You must not modify or remove any copyright notice on any Website Content, except in relation to Document content to which you make material modifications.
- You must keep confidential any password, login or other information related to the integrity and security of the Website and the Service (‘Security Information’).
- If you become aware that any of your Security Information has been lost, compromised or misappropriated, you must notify us immediately.
- You must not:
- modify, reverse engineer, infiltrate, sabotage, impose excessive load upon or otherwise interfere with;
- engage in any form of data extraction or data mining in relation to; or
- use any robot, botnet, script, spider or other automatic device or manual process in or on, any part of the Website.
You must not use or link with the Website or Service for the purpose or with the effect of:
- offending, embarrassing, humiliating, defaming, compromising the privacy of, harassing or intimidating any person;
- Sending any electronic communication in contravention of the Spam Act 2003 (Cth) or any similar legislation;
- Engaging in disruptive or anti-social online behaviour, including flaming, trolling, flooding, invading, impersonating others, off-topic messaging, uploading unnecessary ASCII art files, uploading multiple identical or hard-to-read or nonsense messages;
- Infringing the Intellectual Property of any person;
- Engaging in misleading conduct, including by implying that we endorse your business; or engaging in any (other) unlawful activity.
- Additional warranties you give
- Additional warranties we do and do not give
- Subject to paragraph (c), we are not liable to you for:
- any special (indirect, consequential, incidental) loss or pure economic loss (including loss of revenue or profits);
- regardless of how such loss arises, including for interruption to or our ceasing to operate the Website, misrepresentation, breach of contract, breach of confidence, loss of chance or opportunity, or negligence; and
- whether suffered by you or a third party.
- in relation to the Service – supplying the Service again or paying the cost of having the Service supplied again; and
- in relation to Documents – correcting or resupplying the Documents or paying the cost of having them corrected or resupplied.
- Response To Breach
Despite any other provision of this agreement, if:
- we believe that you are infringing or are likely to infringe Intellectual Property or other rights; or
- you otherwise breach this agreement, we may do any or all of the following, with immediate effect and without notice to you:• modify, limit, disable or suspend your account pending the outcome of an investigation; and
- take any other action we deem appropriate and that is not unlawful.
Note: We may take further action pursuant to clause 10 (termination of agreement).
For so long as your account is disabled or suspended, our supply to you of the Service will cease. When our supply of the Service ceases, you will be unable to access your account.
- starts when you create an account on the Website;
- continues indefinitely (in relation to subscriptions, for successive Subscription Periods); and
- ends when terminated in accordance with clauses 10.2 or 10.3.
- You may give notice of termination of this agreement at any time by using the Website account termination facility.
- The termination will take effect from the end of the then-current Subscription Period.
- We may terminate this agreement at any time, with immediate effect and without notice if you breach clauses (Website security),(misuse of the Service) or (additional warranties) of this agreement.
- We may terminate this agreement at any time by giving you at least 120 days written notice.
- You hereby relinquish your common law rights to terminate this agreement outside of the express terms of this agreement.
By creating an account on the Website, you accept our offer to supply the Service to you on the terms of this agreement and there by enter into this agreement.
- referred to in this document; or
- referring to this agreement in the documents embodying those other agreements, policies and rules (‘Other Agreements’), and this agreement hereby incorporates the terms of all Other Agreements.
- To the extent there is any irreconcilable inconsistency between this agreement and any Other Agreement, the terms of this agreement prevail.
- Subject to clause 11.4 (variation), this agreement:
- governs all aspects of our supply and your use of the Service;
- is the only agreement between us and you in relation to the Service; and
- as a document, embodies all the express terms of the agreement.
- Insofar as they apply to you, you must comply with the terms of all Other Agreements.
To be clear, this agreement supersedes or excludes all other agreements, arrangements, understandings and representations, written or oral, in relation to the Service.
In this agreement, unless expressly to the contrary and as appropriate in the context:
- an expression in the plural may be read in the singular, and vice versa;
- other parts of speech and grammatical forms of a word defined in this agreement have a corresponding meaning;
- headings are for convenience only and do not affect the interpretation of this agreement;
- in relation to an expression reflecting a present state of affairs, if the existence of an obligation is conditional on the existence of that state of affairs, the obligation survives only to the extent that that state of affairs exists during the term of this agreement;
- a reference to a thing or things includes a reference to any, some or all, or part or whole, of the thing or things; however, nothing in this paragraph means that partial performance of an obligation constitutes complete performance of the obligation;
- a reference to an act includes an omission and to the causing to be done of that act or omission;
- a reference to a person doing an act includes a reference to the doing of the act on behalf of the person;
- a reference to one alternative does not, of itself, exclude any other alternative;
- an expression of the exercise of right means the exercise of that right at the sole and absolute discretion of the relevant party;
- an expression prohibiting the doing of an act includes the prohibiting of:
- offering, attempting or purporting to do the act; or
- aiding, abetting, authorizing, approving, contributing to, directing or materially being involved with the doing of the act;
- an expression of ownership includes the legal or beneficial ownership;
- a list of rights is not to be read as an exhaustive list of rights;
- a reference to a ‘copy’ of a thing includes the original embodiment in material form of the thing;
- a reference to ‘loss’ includes any loss, damage, cost, expense or liability, including legal costs;
- a reference to ‘this agreement’ includes a reference to the terms and conditions of this agreement, or this document, regardless of whether the terms and conditions of this agreement, or this document, are sometimes expressly referred to in this agreement;
- a reference to an assignment or transfer of proprietary rights is a reference to the absolute and irrevocable assignment or transfer; and
- a reference to a provision, clause or paragraph is a reference to a provision, clause or paragraph of this agreement, and a reference to a paragraph is a reference to a paragraph of that same clause or provision.
- We may vary this agreement:
- at any time by amending the version of this document (i.e. this agreement) accessible by you via the Website, but only if the amendment would not materially adversely affect your rights; or
- otherwise by using reasonable endeavours to give you sufficient notice such that if you exercise your right to terminate this agreement as a result of the variation, the termination will take effect before the notice period ends.
- You cannot vary this agreement.
- We acknowledge that:
- statute law may provide that certain guarantees exist in relation to the supply of goods and services and that certain agreements may contain certain terms, conditions, warranties or liabilities (whether by implication or otherwise) or may be subject to certain laws (‘Consumer Rights’);
- by operation of law, Consumer Rights cannot or must not be excluded, modified or limited; and
- to the extent that an agreement includes provisions that exclude, modify or limit Consumer Rights (or purports to do so) or that are unfair, then by operation of law (including the Australia Consumer Law 2010 (Cth)) those provisions may be unlawful, unenforceable or void.
- Subject to clause 8(c), but otherwise despite anything else in this agreement, this agreement does not, nor purports to, exclude, modify or limit any Consumer Right.
- To the extent that any provision of this agreement would be unlawful, unenforceable or void for any reason (including by reason of the matters acknowledged in clause paragraph (a)), the other provisions of this agreement are valid and enforceable.
Subject to this agreement, no relinquishing of rights, actions or remedies is effective unless it is in writing. To be clear, the failure of any party to exercise or enforce a right, action or remedy under this agreement, or otherwise, does not mean that they have relinquished that right, action or remedy.
- We may assign our rights under this agreement.
- You acknowledge that we have given you notice in advance of any such assignment and waive any right or remedy in relation to the giving of notice in relation to the assignment
- We may novate our rights and obligations under this agreement.
- On condition that that novation will not materially adversely affect your interests, you:
- acknowledge that we have given you notice in advance of any such novation;
- consent to the novation; and
- waive any right or remedy in relation to the giving of notice or consent in relation to the novation.
- If a proposed novation will materially adversely affect your interests, then you must not unreasonably withhold or delay your consent to the novation.
- Subject to the express terms of this agreement, you cannot assign, novate or otherwise transfer any of your rights or obligations under this agreement.
If we are required to give written notice to you under this agreement, we may do so by any reasonable means, including by email or by posting a notice on your Website account that you will only see next time you log into that account.
Clauses 4, 7, 8, 11.5 and 11.9 and all accrued rights and obligations survive the termination of this agreement.
- The laws of the state of New South Wales, Australia, govern this agreement.
- You acknowledge that the courts of NSW are an appropriate forum for the settlement of disputes.
- To the extent they come before any court, all disputes will be determined in the courts of NSW.