Agreement means these terms and conditions, and any schedules, recitals, attachments or annexures as amended from time to time in accordance with the terms of this Agreement.
Authorised Representative means a person as described in clause 3(c) and whose details are specified in an Order (which may be amended from time to time by the Client by notice in writing to ChildHR).
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Melbourne, Victoria.
Change of Control means that there is a change in the shareholders of the Client or a change in the composition of the board of directors of the Client which, in the reasonable opinion ChildHR has the effect of taking control of the Client away from its existing board of directors or puts the Client under the control, direct or indirectly, of persons or companies different from those in control at the latter of the date of this Agreement and the date on which ChildHR last consented in writing to the particular changes in the shareholders or board of directors of the Client.
Claim includes a claim, notice, demand, action, proceeding, litigation, prosecution arbitration, investigation, judgment, award, damage, loss, cost, expense or liability howsoever arising, whether present, unascertained, immediate, future or contingent, whether based in contract, civil, common law, tort or statute and whether involving a Party, third party or otherwise.
Client means an employer who enters into this Agreement with ChildHR to use the Service to manage its human resources responsibilities and has completed an Order
Commencement Date means the date of this Agreement
Compliance Statement means the ChildHR Compliance Statement dated July 2014, as amended from time to time.
Confidential Information means:
- in relation to ChildHR:
- the content of its software application, including the documents available for use as part of a subscription or use of the Services
- any information identified by ChildHR as being confidential
- the pricing arrangement with the Client and the Fees
- in relation to the Client:
- any information submitted by the Client or Users into the ChildHR system
- any information identified by the Client as being confidential
Corporations Act means the Corporations Act 2001 (Cth)
ChildHR means ChildHR Pty Ltd (ACN 155 261 662).
Event of Default means:
- in relation to the Client, the occurrence of any one or more of the following events or circumstances:
- the Client fails to comply with any of its obligations under this Agreement
- an Insolvency Event occurs in relation to the Client
- a Change of Control occurs in relation to the Client, other than with the consent of ChildHR
- a notice of deregistration of the Client is given under sections 601AA(5) or 601AB(5) of the Corporations Act
- the Client fails to pay by the due date any amount due and payable by it under the Agreement; or
- a material provision of this Agreement that purports to impose an obligation on the Client is or becomes void, voidable, illegal, unenforceable or of limited effect (other than because of equitable principles or laws affecting creditor’s rights generally)
- in the case of ChildHR, the occurrence of any one or more of the following events or circumstances
- ChildHR fails to comply with any of its obligations under this Agreement
- an Insolvency Event occurs in relation to the ChildHR
- a notice of deregistration of ChildHR given under sections 601AA(5) or 601AB(5) of the Corporations Act
Fees means the fees specified in the Order or otherwise amended from time to time and payable by the Client to ChildHR for provision of the Services
Government Agency means any government or any public, statutory, governmental (including a local government), semi-governmental or judicial body, entity, department or authority and includes any self-regulatory organisation established under statute in the relevant jurisdiction
Insolvency Event means, in relation to a Party, any one or more of the following events or circumstances:
- being in liquidation or provisional liquidation or under administration
- having a controller, administrator, liquidator, receiver, receiver and manager or analogous person appointed to it or to any of its property
- being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand
- being unable to pay its debts or being otherwise insolvent
- becoming an insolvent under administration, as defined in section 9 of the Corporations Act
- entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors; or
- any analogous event or circumstance under the laws of any jurisdiction
unless such event or circumstance occurs as part of a solvent reconstruction, amalgamation, compromise, arrangement, merger or consolidation and in the case of the Client is approved by ChildHR
Intellectual Property Rights means all present and future intellectual and industrial property rights conferred by statute, at common law or in equity and wherever existing, including:
- patents, designs, copyright, rights in circuit layouts, database rights, trade marks, know how, brand names, domain names, inventions, product names, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration
- any application or right to apply for registration of any of these rights
- any registration of any of those rights or any registration of any application referred to in paragraph (b); and
- all renewals and extensions of these rights
Order means the order form for the provision of Services submitted by the Client to ChildHR for acceptance
Party means ChildHR or the Client and Parties means both of them
Personal Information means any information or opinion about a natural person (whether or not true), as defined in the Privacy Act, which either Party deals with in connection with performing its obligations under the Agreement
Privacy Act means the Privacy Act 1988 (Cth)
Privacy Law means the Privacy Act (including the National Privacy Principles under the Privacy Act), and any other privacy or general legislation which binds the Parties and which relates to the protection of Personal Information
Related Entity has the meaning given to that term in the Corporations Act
Services means the software services provided by ChildHR to the Client and includes any Support Services or any other type of service specified in the Order
Special Conditions means those special conditions (if any) set out in an Order
Support Services means the maintenance and support services specified in the Order
Term means the duration of this Agreement as determined in accordance with clause 2 and
User means any employee, director, officer or agent of the Client or other person given access to the Service by the Client in connection with the Client managing its relationship with the User or some of its Users.
- The term of this Agreement shall commence upon the Commencement Date and continue for a minimum of 12 months from the Commencement Date, and will continue thereafter until terminated by a party in accordance with this Agreement.
- Notwithstanding any other provision of this Agreement, this Agreement may be terminated by a Party in accordance with this Agreement.
3. Provision of Services
- The Client acknowledges that the Services are not a kind ordinarily acquired for personal, domestic or household use or consumption.
- ChildHR grants the Client the right to access and use the Service with the particular User roles available according to subscription type during the Term and subject to the payment of the Fees. This right is non-exclusive, non-transferrable, and subject to this Agreement. The Client acknowledges and agrees that:
- the Client determines who is a User and what level of access to the Service that User has
- the Client is responsible for all Users’ use of the Services and must cause Users to comply with this Agreement as if they were named as a party to this Agreement
- the Client controls each User’s level of access to the Service and within the Client’s organisation at all times and can revoke or change a User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be a User or have that different level of access, as the case may be
- the Client has read and understands the Compliance Statement, and, in particular, the Client understands that in order to receive the benefit of the compliance assurances set out in the Compliance Statement, the Client bears the responsibility to identify the correct industry and award classification applicable to its business and employees
- if there is any dispute between a Client and a User regarding access to the Service, the Client will decide what access or level of access to the relevant data or Service that user shall have, if any; and
- there is no direct, legal or contractual relationship between ChildHR and any User, and ChildHR is not required to intervene in or contribute to any dispute between a Client and its User regarding use of the Service or otherwise.
- The Client must nominate an Authorised Representative of the Client from whom ChildHR is authorised to take instructions and liaise with regarding the Client’s subscription and use of the Services. ChildHR is not required to action any instructions or respond to any query from any person in relation to the Client other than the Client’s Authorised Representative.
- The Parties must comply with the Special Conditions.
- A contract is formed for the provision of the Services under this Agreement when ChildHR confirms in writing the Client ChildHR’S acceptance of the Order.
4. Support Services
4.1 Technical Problems
- In the case of technical problems the Client must make all reasonable efforts to investigate and diagnose problems before contacting ChildHR. If the Client still requires technical help, the Client agrees to check the support provided online by ChildHR or failing that by email ChildHR at support@ChildHR.com.au.
- ChildHR is not required to respond within a specific period of time in the event assistance is required. The Client acknowledges that ChildHR cannot give legal or commercial advice on employment matters, and may only respond to matters of a technical nature regarding access to or functionality of the provision of the Service.
- The Client is responsible for keeping its computer system up to date and free of viruses and following ChildHR’s instruction regarding minimum system requirements to access and use the Service.
- ChildHR is not liable for any loss or damage associated with any system requirements, software installation, cookies, virus or spyware, Users becoming aware of information of other Users due to auto-fill or other settings, or security measures taken or not taken by the Client.
4.1 Service availability
- ChildHR may interrupt the Service from time to time to perform maintenance or otherwise. ChildHR will attempt to give reasonable notice before, or as soon as possible after, interrupting the Service, by email or publishing details on its website.
- ChildHR may at any time and in its sole discretion suspend any Service without liability if:
- it reasonably believes that the Services are being used or accessed in breach of this Agreement
- the Client is in breach of its Agreement
- there is an attack on the Client’s or ChildHR’s system or a system is attacked or manipulated by a third party without ChildHR’s consent
- ChildHR is required by law or order of an Government Agency to suspend the Services
- ChildHR reasonably believes that the suspension of the Service is necessary to protect the Client, ChildHR, its network or its other clients.
- ChildHR will give the Client at least 48 hours notice of a suspension unless it determines that a suspension on shorter notice is necessary.
- The Client remains liable to pay the Fees for the Service while they are suspended.
5. Client obligations and acknowledgements
- The Client agrees to ensure that all usernames and passwords required to access the Service are kept secure and confidential. The Client must immediately notify ChildHR of any unauthorized use of its passwords or any other breach of security.
- If so notified, ChildHR may reset the Client’s password, and the Client agrees to take all other actions that ChildHR reasonably deems necessary to maintain or enhance the security of ChildHR’S computing systems and networks and its access to the Services.
- The Client must:
- not attempt to undermine the security or integrity of ChildHR’s computing systems or networks or, where the Services are hosted by a third party, that third party’s computing systems and networks
- not use, or misuse, the Services in any way which may impair the functionality of the Services, or other systems used to deliver the Services or impair the ability of any other user to use the Services
- not attempt to gain unauthorised access to any materials other than those to which the Client has been given express permission to access or to the computer system on which the Services are hosted
- not transmit, or input, any
- files that may damage any other person’s computing devices or software
- content that may be offensive; or
- data in violation of any law; and
- not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or content delivered in the use of the Service except as is strictly necessary to use either of them for normal operation.
6. Fees and Payment
6.1 Fees and Payment
- The applicable Fees in respect of the Services will be specified in the Order or as otherwise agreed in writing by the Parties from time to time.
- Fees are due and payable by the Client in accordance with the Order and will be payable on the invoice date. Fees may be paid via direct debit (provided this is available from the Client’s financial institution) or credit card.
- Unless otherwise expressly stated, all prices or other sums payable or Fees to be provided under or in accordance with the Agreement are exclusive of GST. The Client must pay to ChildHR the relevant amount of GST at the same time as payment for the Service is due, provided that ChildHR provides a valid tax invoice.
- ChildHR may increase the Fees on 30 days notice to the Client.
- Despite any other clause in this Agreement, payments under or in relation to this Agreement must be made in full without deduction or set-off.
- Where Fees are unpaid on the date set out in this Agreement or as otherwise agreed between ChildHR and the Client, ChildHR will be entitled to charge a late fee of $50 per occurrence of late payment.
6.2 Direct Debit Service agreement
- ChildHR will provide the Client at least 14 days notice if the terms of the use of direct debit facilities are to change.
- ChildHR will cancel the Client’s direct debit arrangements following termination of this Agreement upon receipt of all outstanding Fees owed to ChildHR.
- The Client may change its direct debit arrangements at any time by notice in writing to ChildHR, which changes will take effect at the time the Client’s next payment of Fees is due in accordance with this Agreement, unless the next payment is due less than 14 days from the date of notification from the Client in which case the change will take effect when the subsequent payment of Fees is due.
- ChildHR will keep all information about the Client’s nominated bank account private and confidential, only to be disclosed at the Client’s request, or the Client’s Financial Institution in connection with a claim made to an alleged incorrect or wrongful debit.
- The Client may cancel its direct debit arrangements at any time by notice in writing to ChildHR, and nominating an alternative payment method acceptable to ChildHR
- The Client must:
- ensure that it has sufficient cleared funds available in its nominated account by the date Fees are due in accordance with this Agreement
- notify ChildHR immediately upon a nominated direct debit account being transferred or closed or the Client issuing instructions to its financial institution to cancel direct debit payments or facilities
- ensure its bank account specified in the Order can accept direct debits through the Bulk Electronic Clearing System before submitting an Order or changing its nominated bank account.
- Where a payment of Fees is due on a day that is not a Business Day, ChildHR will debit the Fees due on the next Business Day.
- The Client should:
- where it considers that a payment has been incorrectly debited, contact ChildHR immediately
- check with its financial institution if it is not sure when a payment will be processed and debited from its account
- check its account details when completing the Order, or changing its direct debit arrangements, against a recent statement from the Client’s financial institution.
7.1 Obligations of confidentiality
Each Party (Receiving Party) receiving, possessing or otherwise acquiring Confidential Information of any other Party (Disclosing Party) acknowledges that the Disclosing Party’s Confidential Information is the property of and confidential to or a trade secret of the Disclosing Party. Subject to clause 7.2, the Receiving Party must:
- keep the Disclosing Party’s Confidential Information confidential and not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the prior written approval of the Disclosing Party
- only use such Confidential Information of the Disclosing Party for the purpose of performing its obligations under this Agreement or otherwise in the use of the Services
- take all reasonable steps to secure and keep secure all Disclosing Party’s Confidential Information coming into its possession or control; and
- not memorise, use, modify, reverse engineer or make copies, notes or records of the Disclosing Party’s Confidential Information for any purpose other than in connection with the performance by the Receiving Party of its obligations under this Agreement or otherwise in the use of the Services.
- The obligations of confidentiality under clause 7.1 do not apply to any information that:
- is generally available to the public (other than by reason of a breach of this Agreement); or
- is required to be disclosed by any applicable law or order of a Government Authority, in which case the Party required to disclose Confidential Information of the other must only disclose the minimum amount required to comply with the relevant law or order, and must notify the Party to whom the Confidential Information belongs of the requirement to disclose and the information being disclosed.
- The Client acknowledges that ChildHR may use the Services of a data hosting provider to host the data of ChildHR and the Client, and that ChildHR is authorised by the Client to do so.
- The Parties acknowledge and agree that where they are responsible for the collection, use, storage and otherwise dealing with Personal Information, they will comply and ensure that all of their personnel comply, with the requirements of any Privacy Law in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with this Agreement.
- ChildHR may request the Client to remove certain data from being stored as part of the Service on the basis that ChildHR has formed the opinion the data is of an offensive, infamous or illegal nature or the Client is in breach of this Agreement. If the Client does not comply within a reasonable time, ChildHR Reserves the right to remove such data.
9. Intellectual Property
- The Client acknowledges that all materials, software, methods, processes, reports, documentation or other information or material (whether in electronic or material form) which is created by or on behalf of ChildHR (Material) and all existing and future Intellectual Property Rights which are derived or arise from, or is connected with, the Services or any Material, are the property of and will at all times remain vested in ChildHR.
- To the extent that any Intellectual Property Rights referred to in clause 9(a) do not automatically vest in ChildHR, the Client immediately assigns to ChildHR absolutely and beneficially the whole of its rights, title and interest in and to those Intellectual Property Rights, whether presently existing or which arise at a date after the date of this Agreement, with effect from the date of creation of the Intellectual Property Right(s).
- The Client agrees to do all things necessary or desirable, and ensure its personnel and Users do all things necessary or desirable, to effect the assignment referred to in clause 9(b).
- Subject to the Client’s ongoing compliance with this Agreement including full payment of the Fees and subject to clause 11, ChildHR hereby grants the Client the following:
- a non-exclusive, non-transferable, revocable, royalty-free licence in Australia to use, modify, communicate, adapt or reproduce the Material provided as deliverables pursuant to the Services, solely for the Client’s internal business purposes; and
- a non-exclusive, revocable licence to access and use the Services for the Term as specified in this Agreement.
- Any representation, warranty, condition or undertaking that would be implied in this Agreement by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by law.
- Nothing in the Agreement excludes, restricts or modifies any condition, warranty, right or remedy conferred on the Parties by the Competition and Consumer Act 2010 (Cth) or any other applicable law that cannot be excluded, restricted or modified by agreement. If a warranty or condition is implied by the Competition and Consumer Act 2010 (Cth) or other law which may not be excluded, then ChildHR’s liability for any breach of such an implied warranty is limited solely to the resupply of the relevant Services or the payment of the cost of having the Services provided again (at ChildHR’s option).
11. Limitation of liability
- To the extent permitted by law, and notwithstanding any other provisions of the Agreement, in no event will either Party be liable for loss of profits, downtime costs, loss of revenue, loss of reputation, loss of data, loss of use, loss of goodwill, failure to realise anticipated savings, anticipated profit or revenue or any indirect or consequential loss arising out of or in connection with the Agreement, howsoever caused.
- ChildHR is not liable for any loss or damage howsoever caused to any property or person of the Client or any third party as a result of any defect in the Services.
- The maximum aggregate liability of ChildHR for all proven losses, damages and Claims arising out of this Agreement, including liability for breach, in negligence or in tort or for any other common law or statutory action, is limited to the sum of the amounts paid by the Client to ChildHR in the 3 month period immediately before the notice of the then current Claim.
- The Client indemnifies ChildHR for any and all loss and damage (including legal fees) arising out of or in connection with:
- a breach or non-performance of this Agreement by the Client or its personnel and Users
- the data or material stored by the Client, including where the material is of an offensive, infamous or illegal nature;
- all and any Claims whatsoever and howsoever arising made by any third party in connection with or arising out of the Client’s use of the Services;
- the Client amending, changing or adopting the content of the Service.
- The Company makes no representation that the Services will be uninterrupted, error-free, or completely secure, nor that the Customer’s information and data will remain completely secure. The Customer acknowledges that there are risks inherent in use of the internet that could result in the loss of its privacy, information and data.
- ChildHR is not a legal adviser and not liable for any legal consequence that follows from use of the Service. ChildHR is not liable for any consequence in connection with the Client amending, changing or adopting the content of the Service.
- ChildHR is not liable for any loss or damage suffered by the Client arising from data loss or system fault in providing the Services, or breach of any Intellectual Property Rights of any third party.
12.1 Termination by ChildHR
- ChildHR may terminate this Agreement at any time for any reason and without prejudice to any right or action or remedy which has accrued or which may accrue in favour of ChildHR, by giving the Client 20 Business Days’ notice to that effect.
- In the event that the Client fails to pay the Fees in accordance with clause 6, ChildHR may immediately suspend the provision of the Services and/or terminate the Agreement.
12.2 Termination by Client
Following the first anniversary of the Commencement Date, the Client may terminate this Agreement for any reason and without prejudice to any right or action or remedy which has accrued or which may accrue in favour of the Client, by giving ChildHR 20 Business Days’ notice to that effect (and for the avoidance of doubt, notice to terminate may only be given following the first anniversary of the Commencement Date).
12.3 Default notice
If an Event of Default, occurs in relation to a Party (Relevant Party), the other Party may give a notice (Default Notice) to the Relevant Party specifying the Event of Default and requiring the Relevant Party to remedy the default within 10 Business Days after the Default Notice is given to the Relevant Party.
12.4 Termination notice
If a Party (Defaulting Party):
- receives a Default Notice and does not comply with the notice within the relevant period referred to in clause 12.2; or
- is the subject of an Insolvency Event
then the other Party, without limiting its other rights and remedies, may terminate the Agreement by giving to the Defaulting Party notice with immediate effect.
12.5 Consequences of expiry or termination
- On the expiry or termination of this Agreement:
- the Agreement is at an end as to its future operation except for the enforcement of any right or claim in relation to this Agreement that arises on, or has arisen before, the expiry or termination
- the Client will immediately cease to have access to the Services and the licence granted under clause 9(d) will immediately terminate; and
- the Client must immediately pay ChildHR all outstanding Fees which will become immediately due and payable and any invoice provided for Services provided but not invoiced before termination.
- Where any amounts remain outstanding from the Client, ChildHR retains a right of lien over the data and any documents or Confidential Information of the Client’s it holds, and reserves the right to retain this and not take any action to return it to the Client until payment is received in full.
- ChildHR reserve the right to charge a fee for the creation of a digital archive of the Client’s information and to deliver this to the Client. The Client must request such an archive in writing.
- ChildHR retains the right to delete all information held by it in relation to a Client after 60 days following expiry or termination of this Agreement.
- A notice, approval, consent or other communication under this Agreement (Notice) must be in legible writing, signed by the person sending it, or by an authorised officer if the person sending it is a corporation and in English.
- Notices delivered by hand, by pre-paid mail, facsimile or email must be delivered to ChildHR’s address, fax number or email advised by ChildHR from time to time or otherwise as published on ChildHR’s website. ChildHR will send Notices to the Client to the contact address set out in the Order.
- Notices will be deemed to be received, if sent by the sender:
- by hand delivery, upon delivery to the receiving party or by leaving the Notice at the receiving party’s address
- by registered mail within Australia, 2 Business Days after the registration of the notice of posting
- by facsimile, upon the successful completion of the relevant transmission by the sender’s facsimile machine if by 5:00pm on a Business Day, otherwise on the next Business Day
- by email, provided no answer back is received by the sender notifying it the email could not be delivered, at the time of sending if by 5:00pm on a Business Day, otherwise on the next Business Day.
13.2 Nature of obligations
- Any provision in this Agreement which binds more than one person binds all of those persons jointly and each of them severally.
- Each obligation imposed on a Party by this Agreement in favour of another is a separate obligation.
13.3 Entire understanding
This Agreement contains the entire understanding between the Parties concerning the subject matter of this Agreement and supersedes all prior communications, agreements, proposals, work orders or correspondence between the Parties.
13.4 No waiver
- A failure, delay, relaxation or indulgence by a Party in exercising any power or right conferred on the Party by this Agreement does not operate as a waiver of that power or right.
- A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under this Agreement.
- A waiver of a breach does not operate as a waiver of any other breach.
Any provision of this Agreement which is invalid in any jurisdiction must, in relation to that jurisdiction:
- be read down to the minimum extent necessary to achieve its validity, if applicable; and
- be severed from this Agreement in any other case
without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.
13.6 No assignment
The Client cannot assign or otherwise transfer the benefit of this Agreement without the prior written consent of ChildHR.
13.7 Governing law and jurisdiction
- This Agreement is governed by and must be construed in accordance with the laws in force in Victoria.
- The Parties submit to the exclusive jurisdiction of the courts of Victoria and the Commonwealth of Australia in respect of all matters arising out of or relating to this Agreement, its performance or subject matter.
13.8 Force Majeure
ChildHR will not be liable to the other party for any delays or errors in its performance, or for non-performance, due to any circumstances beyond its reasonable control including (without limitation) natural events, fire, lightning, earthquake, flood, storm, explosion, industrial dispute, acts of terrorism, failure of utilities including telephone, satellite, Internet or electricity.
13.9 Order of precedence
Wherever there is any inconsistency between the provisions of this Agreement or an Order and any other agreement or documentation, the order of precedence of the interpretation will be as follows:
- Special Conditions
- this Agreement; and
- the Order
and the document higher in the order will take precedence to the extent of any inconsistency.
13.10 Survival of Obligations
This clause 13.10 together with clauses 6.1, 7, 8, 9, 10, 11, and 13 survive termination or expiration of this Agreement.
- No party may take action against the other for any dispute between them without first seeking to resolve the dispute in good faith.
- The party claiming there is a dispute (Disputant) must contact the other party providing details of the dispute.
- The parties must use their reasonable endeavours to seek to resolve the dispute within 10 Business Days of the notice under clause 13.11(b).
- If no resolution is reached within the time under clause 13.11, each party must refer the matter to the person with the highest authority within the organization to resolve matters within 10 Business Days. Those persons must use their reasonable endeavours to resolve the dispute within a further 10 Business Days.
- If the dispute remains unresolved following this, the parties may take action as they deem appropriate.
- Each party must bear their own costs in complying with this clause 13.11.
The terms of this Agreement may be amended from time to time by ChildHR, with any such amendment to take effect on 20 Business Days written notice from ChildHR notifying the Client of the amendment or providing the new terms of this Agreement.
Release: February 2016