SUBSCRIPTION TERMS & CONDITIONS
SUBSCRIPTION TERMS & CONDITIONS
1.1 Vidaura Pty Ltd ABN 57 638 043 955 (we, us or our), have all rights in the cloud-based software, including all instructions in hard copy or electronic form and any update, modification or release of any part of that software which is accessible at www.pulsetalent.com.au, and may be available through other addresses and channels (Site).
1.2 In these Terms, you means (as applicable) (1) the person or entity registered with us as an Account holder; or (2) the individual accessing or using the Platform.
1.3 If you are using the Platform on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity’s personnel to these Terms.
1.4 These terms and conditions (Terms) set out the terms and conditions upon which we agree to grant you a right to use the Services.
1.5 These Terms are binding on you for the Term, which is the period from the date you accept these Terms (Start Date) until the date that your Account (and these Terms) are terminated.
1.6 You accept these Terms by clicking a box indicating your acceptance.
2.1 We provide a platform for businesses and recruiters to browse a curated selection of Candidate information, including Candidate videos and profiles to suit your search criteria. If you are interested in any of the Candidates on the Site, you may request contact information for the Candidate to progress to an offline interview.
2.2 You may choose to select an account suitable for businesses (Business Account) or an account suitable for recruitment agencies accessing the Services on behalf of businesses (Recruiter Account), with different features and Fees as set out on your Plan.
2.3 There are several different types of Plans that you may select (as set out on the Site). Each Plan comes with a different amount of Credits, which you may use to watch Candidate videos or request Candidate contact information. A set amount (as set out on the Site) will be deducted from your total amount of Credits per Candidate video you watch or Candidate contact information you request.
2.4 In consideration of your payment of the Fees (as set out in the Plan), we will provide the Services in accordance with these Terms, whether ourselves or through our Personnel.
3.1 You create an Account on our Site, in order for you and your Authorised Users to access and use the Services. You may have one set of Account login credentials, or we may offer you multiple Account login credentials if you qualify for an enterprise package.
3.2 When you create an Account, you may access some features of the Site and the Services without a paid Plan. To access all features, you must select and pay for a Plan.
3.3 You must ensure that any information you provide to us, or we request from you, for your Account, is complete and accurate and you are authorised to provide this information to us.
3.4 You are the Account owner and regardless of any change in any contact details, you will remain responsible for your Account, as set out in these Terms. If you wish to change the Account owner, you must provide us with a written request to transfer the ownership of the Account to the incoming party, which must also include the incoming party’s written consent to take over full responsibility for the Account, in a form acceptable to us.
3.5 It is your responsibility to keep your Account details confidential. You are responsible for all activity on your Account, including activity by Authorised Users and for ensuring that any activities on your Account comply with these Terms. At our sole discretion, we may refuse to allow any person to register or create an Account.
3.6 We are not responsible for the management or administration of your Account or your Authorised Users.
4 LICENCE AND RESTRICTIONS ON USE
4.1 Subject to the payment of any applicable Fees and your and your Authorised Users compliance with these Terms, we grant you a non-exclusive, non-transferable, non-sublicensable (except as otherwise permitted under these Terms), revocable licence to access and use the Services for the Term in accordance with any Authorised User limits, for your use and enjoyment of the Services, as contemplated by these Terms (Licence).
4.2 You must not and must ensure your Authorised Users do not access or use the Services except as permitted by the Licence. You must not (and must not permit any other person to) use the Services in any way which is in breach of any applicable Laws or which infringes any person’s rights, including Intellectual Property Rights, including to;
(a) use the Services in breach of any anti-discrimination or workplace laws;
(b) use the Services to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;
(c) use the Services and the Candidate Information (or knowingly provide the Candidate Information to a third party) for any purpose other than to discuss potential employment with the Candidate (including the promotion of any goods or services to the Candidate);
(d) use the Services in any way that damages, interferes with or interrupts the supply of the Services;
(e) introduce malicious programs into our hardware and software or Systems, including viruses, ransomware, malware, trojan horses and e-mail bombs;
(f) reveal or allow others access to your Account’s password or authentication details or allow others to use your Account or authentication details (other than Authorised Users);
(g) carry out security breaches or disruptions of a network, including accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);
(h) use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the Services;
(i) if applicable, send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages, or use the Services in breach of any person’s privacy (such as by way of identity theft or “phishing”); or
(j) circumvent user authentication or security of any of our Services, networks, accounts or hosts or those of our other users.
5.1 Free or Trial Account: We may offer you a free or trial Account with limited features and a limited number of free Credits designed to allow you to evaluate the Services and make sure it is right for you before signing up for a paid Plan. Any trial period or number of free Credits can change at any time without notice. We have the right to terminate any trial Account if you are found to be misusing the Services. Once the Credits in your free or trial Account have been depleted, you will be provided the option to choose and sign up for a Plan.
5.2 You agree to pay us the Fees as set out in your Plan, and any other amounts payable to us under these Terms, without set-off or delay, via credit card or any other payment method set out on the Site.
5.3 When you select a plan, you may choose a Monthly Plan, a Yearly Plan, or a Single Plan.
5.4 You will pay the Fees as follows:
(a) Where you have selected a Single Plan, you must pay the Fees in advance to access the Single Plan. Your Single Plan will not automatically renew.
(b) Where you have selected a Monthly Plan, you must pay in advance, commencing on the date you select and pay for the Monthly Plan. The Fee will be automatically charged to you monthly, on the same date that you have made the first payment (Monthly Billing Date). If the Monthly Billing Date falls on a day that is a not a business day, you will be charged the Fee on the next business day following the Monthly Billing Date.
(c) Where you have selected a Yearly Plan, you must pay in advance, commencing on the date you select and pay for the Yearly Plan. The Fee will be automatically charged to you annually, on the same date that you have made the first payment (Yearly Billing Date). If the Yearly Billing Date falls on a day that is a not a business day, you will be charged the Fee on the next business day following the Yearly Billing Date.
5.5 If you do not wish for your Monthly Plan or Yearly Plan to renew, you may contact us (either on the Site or by the email provided at the end of these Terms) at least 5 business days before your next scheduled Monthly Billing Date or Yearly Billing Date (as applicable).
5.6 You are responsible for reviewing the pricing schedule, features and limits associated with your Plan, which are available on the Site.
5.7 You must ensure your chosen payment method has sufficient funds to pay the Fees.
5.8 If any payment has not been made in accordance with these Terms, we may (at our absolute discretion) cease or suspend the provision of the Services if payment has not been made within 7 working days of the original non-payment, and recover the outstanding Fees as a debt due and immediately payable.
5.9 If you rectify such non-payment within a reasonable time after the Services have been suspended, then we may, at our discretion, recommence the provision of the Services as soon as reasonably practicable.
6.1 Any Credits set out in your Plan are valid for the period set out in your Plan (Credit Validity Period). Any unused Credits at the end of the Credit Validity Period will not roll over into the next Credit Validity Period.
6.2 Credits are not transferable to any other Account holder.
6.3 To the maximum extent permitted by law, there will be no refunds for unused Credits at the end of any Credit Validity Period.
7.1 If you have depleted your available Credits before the next Credit Validity Period, you may obtain more Credits by upgrading your Plan or purchasing a Single Plan.
7.2 You may upgrade your Plan at any time on the “Manage Subscription” page (or similar) in your Account.
7.3 Where you have a Monthly Plan, upgrading your Plan will change your Monthly Billing Date to the date that you upgrade your Plan. Your new Plan will commence immediately upon payment of the few Monthly Plan Fee. You will be charged the new Monthly Plan fee on all future Monthly Billing Dates.
7.4 Where you have a Yearly Plan, you must pay any additional Fees as set out on the Site to access the new Plan for the remainder of the then-current Subscription Period. Your new Plan Fee will be charged to you on all future Yearly Billing Dates.
8 THIRD PARTY INPUTS
8.1 You agree that the provision of the Services may be contingent on, or impacted by, Third Party Inputs.
8.2 You agree that the Services may include Third Party Inputs that may interface, or interoperate with, the Services, including third party software or services (for example, Facebook APIs).
8.3 To the extent that you choose to use such Third Party Inputs, you are responsible for:
(a) the purchase of;
(b) the requirements; and
(c) the licensing obligations,
related to the applicable Third Party Input, including third party software and services.
8.4 You agree that the benefit of the Third Party Input’s interface, or interoperation with, the Services, is subject to your compliance with clause 8.3.
9 PRIVACY AND COMMUNICATION
9.1 You are responsible for the collection, use, storage and otherwise dealing with Personal Information related to your business and all matters relating to the Customer Data.
9.2 You must, and must ensure that your Personnel and your Authorised Users, comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any privacy or anti-spam Laws applicable to you in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with these Terms, including any Candidate information.
9.3 If you have a Recruiter Account, you may share Candidate Information and videos to other businesses that you believe are suitable for the Candidate on the terms as set out in this Agreement. If you have a Business Account, you may not share any Candidate information outside of your organisation.
9.4 Where we notify you that a Candidate has deleted their profile or Candidate Information from the Services, you will cease all use of the Candidate Information in your possession and will not disclose the Candidate Information to any third parties.
9.5 We may contact you via the platform for the Services, using in-Account notifications or via-off platform communication channels, such as text messages or email with functional notifications.
9.6 We may also send marketing and promotional material which may be of interest to you, using your contact details. You may opt out of receiving direct marketing messages at any time. Where you opt-out we will continue to send you functional communications relevant to your use of the Services.
10 CONFIDENTIAL INFORMATION
10.1 Each Receiving Party agrees:
(a) not to disclose the Confidential Information of the Disclosing Party to any third party;
(b) to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and
(c) to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.
10.2 The obligations in clause 10.1 do not apply to Confidential Information that:
(a) is required to be disclosed in order for the Parties to comply with their obligations under these Terms;
(b) is authorised to be disclosed by the Disclosing Party;
(c) is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms; or
(d) must be disclosed by Law or by a regulatory authority, including under subpoena.
10.3 Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 10. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 10.
10.4 This clause 10 will survive the termination of these Terms.
11 INTELLECTUAL PROPERTY RIGHTS
11.1 You agree that all Intellectual Property Rights:
(a) in the Services;
(b) in the Intellectual Property developed, adapted, modified or created by us, or our Personnel (including in connection with these Terms, the Services, and any machine learning algorithms output from the Services); and
together Our Materials, will at all times vest, or remain vested, in us (or, if applicable, our third party service providers). You agree that all Intellectual Property Rights in the Business Videos will at all times vest, or remain vested, in us. To the extent that ownership of the Intellectual Property Rights in Our Materials and the Business Videos do not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.
11.2 We grant you a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, for the duration of the Term, to use Our Materials that we provide to you, solely for the purposes for which they were developed and for your use and enjoyment of the Services, as contemplated by these Terms.
11.3 We grant you a non-exclusive, irrevocable, worldwide, sublicensable and transferable right and licence, to use the Business Videos, subject to the following conditions;
(a) you may not edit or alter the Business Videos in any way, including to remove or cut our branding from the beginning and/or end of the Business Video; and
(b) you acknowledge and agree that nothing in this license and these Terms provides you with the right to use our branding or trademarks in any manner, other than as contained in a Business Video.
11.4 You agree that we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any Feedback.
11.5 You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Your Materials (including Your Videos)as contemplated by these Terms.
11.6 You acknowledge and agree that;
(a) we may use Your Videos as part of the Services, as well as on any associated websites or platform for marketing and promotional purposes; and
(b) we may alter Your Videos, but only to the extent necessary in order to add our branding and logos to Your Videos.
11.7 You must not whether directly or indirectly, without our prior written consent, and other than as contemplated by this clause 11:
(a) copy or use, in whole or in part, any of our Intellectual Property;
(b) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our Intellectual Property to any third party;
(c) reverse assemble, reverse engineer, reverse compile or enhance the Services;
(d) attempt to discover the source code or object code or underlying structures, ideas, know how or algorithms in relation to the Services, the data or documentation;
(e) breach any Intellectual Property Rights connected with the Services, including altering or modifying any of our Intellectual Property;
(f) cause any of our Intellectual Property to be framed or embedded in another website; or create derivative works from any of our Intellectual Property;
(g) resell, assign, lease, hire, sub-license, transfer, distribute or make available the Services to third parties;
(h) “frame”, “mirror” or serve any of the Services on any web server or other computer server over the Internet or any other network; and
(i) alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the Services.
11.8 This clause 11 will survive the termination or expiry of these Terms.
12.1 Despite anything to the contrary, we may monitor, analyse and compile statistical information, performance information and surveys based on and/or related to your use of the Services, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it:
(a) does not contain identifying information; and
(b) is not compiled using a sample size small enough to make the underlying Customer Data identifiable.
12.2 We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.
13 CUSTOMER DATA
13.1 You grant us a limited licence to copy, transmit, store and back-up or otherwise access the Customer Data during the Term and for a reasonable period after the Term to:
(a) supply the Services (including for back-ups) to you (including to enable you, your Authorised Users and your Personnel to benefit from the Services);
(b) diagnose problems with the Services;
(c) develop other services, provided we de-identify the Customer Data;
(d) enhance and otherwise modify the Services, and
(e) as reasonably required to perform our obligations under these Terms.
13.2 You must, at all times, ensure the integrity of the Customer Data and that your provision of, and use of the Customer Data is compliant with all Laws.
13.3 You represent and warrant that:
(a) you have obtained all necessary rights, releases and permissions to provide all your Customer Data to us and to grant the rights granted to us in these Terms;
(b) the Customer Data is accurate and complete;
(c) the Customer Data (and its transfer to and use by us as authorised by you) under these Terms does not violate any Laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and
(d) any use, collection and disclosure authorised in these Terms is not inconsistent with the terms of any applicable privacy policies.
13.4 We assume no responsibility or Liability for the Customer Data. You are solely responsible for the Customer Data and the consequences of using, disclosing, storing or transmitting it. It is your responsibility to back up the Customer Data.
13.5 You acknowledge and agree that the operation of the Services is reliant on the accuracy of the Customer Data, and the provision of inaccurate or incomplete Customer Data by you may affect the use, output and operation of the Services.
14.1 You warrant and agree that:
(a) you are a legitimate business with an Australian Business Number or Australian Company Number;
(b) there are no legal restrictions preventing you from entering into these Terms;
(c) you are not and have not been the subject of an Insolvency Event;
(d) you will assess the suitability of any Candidate for a particular role within your business (including performing any reference checks). We make no endorsement as to the skills, quality or suitability of any Candidate featured on our Platform;
(e) you will cooperate with us and provide us with all assistance, resources, data, people, information, facilities, access and documentation that is reasonably necessary to enable us to perform the Services and as otherwise requested by us, from time to time, and in a timely manner;
(f) all information and documentation that you provide to us in connection with these Terms is true, correct and complete and that we will rely on such information and documentation in order to provide the Services;
(g) you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms;
(h) you will inform us if you have reasonable concerns relating to our provision of the Services under these Terms, with the aim that the Parties will use all reasonable efforts to resolve your concerns;
(i) you are responsible for obtaining, and providing to us in a timely manner, any consents, licences, authorities and permissions from third parties necessary for the Services to be provided in accordance with these Terms, at your cost;
(j) the Services are provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties without prior written consent;
(k) you will be responsible for the use of any part of the Services, and you must ensure that no person uses any part of the Services to break any Law or infringe any person’s rights (including Intellectual Property Rights) or in any way that damages, interferes with or interrupts the supply of the Services;
(m) you have the authority to act on behalf of any person or entity for whom you are using the Services and you are deemed to have agreed to these Terms on behalf of any entity for whom you use the Services.
15 AUSTRALIAN CONSUMER LAW
15.1 Certain legislation, including the ACL, and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of our services which cannot be excluded, restricted or modified (Statutory Rights).
15.2 If the ACL applies to you as a consumer, nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.
15.3 Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or any other basis.
15.4 This clause 15 will survive termination or expiry of these Terms.
16.1 Except to the extent that the Liability arose from our negligent acts or omissions or any of our Personnel, you indemnify us and our Personnel against all Liability that we or any of our Personnel may sustain or incur as a result, whether directly or indirectly, of:
(a) your or your Personnel’s breach of these Terms;
(b) you or your Personnel using the Candidate Information for any purpose other than to discuss potential employment with the Candidate;
(c) you or your Personnel’s breach of any rights or laws in respect of a Candidate (including any privacy laws, spam laws, employment laws, and anti discrimination laws) ; and
(d) your or your Personnel’s negligent, unlawful or wilful acts or omissions in connection with these Terms.
17 LIMITATIONS AND LIABILITY
17.1 Despite anything to the contrary (except for clause 16) and to the maximum extent permitted by law:
(a) we will not be liable for any Consequential Loss;
(b) our liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of you (or any of your Personnel); and
(c) our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying the Services to you or, in our sole discretion, to us repaying you the amount of the Fees paid by you to us in respect of the supply of the relevant Services to which the Liability relates.
17.2 This clause 17 will survive termination or expiry of these Terms.
18 EXCLUSIONS TO LIABILITY
18.1 Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability, caused or contributed to by, arising from or connected with:
(a) loss of, or damage to, any property or any injury to or loss to any person;
(b) any loss or damage arising from the actions of any Candidate (including any Candidate that you engage as an employee or contractor);
(c) your or your Personnel’s acts or omissions;
(d) any use or application of the Services by a person or entity other than you or your Authorised Users, or other than as reasonably contemplated by these Terms;
(e) any work, services, goods, materials or items which do not form part of the Services (as expressed in these Terms), or which have not been provided by us;
(f) any Third Party Inputs;
(g) the Services being unavailable, or any delay in us providing the Services to you, for whatever reason; and/or
(h) any event outside of our reasonable control.
18.2 You acknowledge and agree that:
(a) we do not endorse any particular Candidate or undertake to review any Candidate content, and you are solely responsible for determining the suitability of a Candidate for your needs;
(b) you are responsible for all users using the Services, including your Personnel and your Authorised Users;
(c) you use the Services and any associated programs and files at your own risk;
(d) the technical processing and transmission of the Services, including Customer Data, may be transferred unencrypted and involves:
(1) transmissions over various networks; and
(2) changes to conform and adapt to technical requirements of connecting networks or devices;
(e) we may use third party service providers to integrate with the Services or to host the SaaS Services. If the providers of third party applications or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features without Liability or entitling you to any refund, credit, or other compensation;
(f) the Services may use third party products, facilities or services. We do not make any warranty or representation in respect of the third party products, facilities or services;
(g) we do not guarantee that any file or program available for download and/or execution from or via the Services is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used;
(h) we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you, and your Authorised Users or your Personnel; and
(i) we may pursue any available equitable or other remedy against you if you breach any provision of these Terms.
18.3 This clause 18 will survive termination or expiry of these Terms.
19.1 You agree that we may terminate this Agreement, amend this Agreement, the Services or the Fees at any time, by providing written notice to you. We will also notify you if, in our reasonable opinion, we amend the terms of this Agreement or the Fee in a manner which will, or is likely, to be materially detrimental to you. If the changes to this Agreement, the Fee or the Services are materially detrimental to you, you may, within 30 days of the change being effected, terminate this Agreement with immediate effect by notifying us accordingly.
19.2 These Terms will terminate immediately upon written notice by:
(a) us, if:
(1) we become aware that you are not a legitimate Australian business;
(2) we, at our sole discretion, determine that you are acting in an inappropriate manner towards any Candidates;
(3) we become aware that you are using Candidate Information for a purpose other than to discuss employment opportunities with the Candidate;
(4) you (or any of your Personnel) breach any provision of these Terms and that breach has not been remedied within 5 Business Days of being notified by us;
(5) for any other reason outside our control which has the effect of compromising our ability to provide the Services; or
(6) you are unable to pay your debts as they fall due; and
(b) you, if we:
(1) are in breach of a material term of these Terms, and that breach has not been remedied within 10 Business Days of being notified by you; or
(2) are unable to pay our debts as they fall due.
19.3 Upon expiry or termination of these Terms:
(a) we will immediately cease providing the Services;
(b) we will be entitled to permanently delete all Customer Data within 1 month from expiry or termination of these Terms;
(c) you agree that any payments made are not refundable to you. This clause 18.3(c) does not apply in respect of termination made by you under clause 19.1;
(d) you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under these Terms;
(e) pursuant to clauses 19.2(a)(1),(2),(3), or (5), you also agree to pay us additional costs arising from, or in connection with, such termination; and
19.4 Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.
19.5 This clause 19 will survive the termination or expiry of these Terms.
20.1 If GST is payable on any supply made under these Terms, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under these Terms and must be paid in addition to the consideration expressed elsewhere in these Terms, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
20.2 If an adjustment event arises in respect of any supply made under these Terms, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued (if required), and any payments to give effect to the adjustment must be made.
20.3 If the recipient is required under these Terms to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
20.4 The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
21.1 Amendment: We may update these Terms at any time. Where we update these Terms we will notify you via an in-Account notification or via email. If you do not agree with any amendment you may terminate these Terms in accordance with clause 19.1.
21.2 Assignment: A Party must not assign or deal with the whole or any of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
21.3 Dispute: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
21.4 Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. You release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
21.5 Entire agreement: These Terms contain the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
21.6 Exclusivity: The Services will be provided to you on a non-exclusive basis.
21.7 Further assurance: You agree to promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and your obligations under it.
21.8 Force Majeure: We will not be liable for any delay or failure to perform our obligations under this Agreement if such delay is beyond our reasonable control.
21.9 Governing law: These Terms are governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
21.10 Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 3 Business Days in the case of post, or at the time of transmission in the case of transmission by email.
21.11 Publicity: You agree that we may advertise or publicise the broad nature of our provision of the Services to you, including on our website or in our promotional material.
21.12 Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
21.13 Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions.
In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in these Terms, and:
Account means an account accessible to you and your Authorised Users to use the Services, including, the SaaS Services;
ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time;
Authorised User, if applicable, means a user permitted to access and use the Services under your Account, as further particularised in your Plan;
Business Account is defined in clause 2.2;
Business Day means a day on which banks are open for general bank business in NSW, excluding Saturdays, Sundays and public holidays;
Business Video means a video that we produce for you, that is used as part of the Services to display your business and/or available positions to Candidates,
Candidate means a person who uses the Site to find employment opportunities by uploading videos or providing information about themselves;
Candidate Information means any information about a Candidate that you obtain from your use of the Services;
Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems;
Confidential Information includes information which:
(a) is disclosed to the Receiving Party in connection with these Terms at any time;
(B) is prepared or produced under or in connection with these Terms at any time;
(c) relates to the Disclosing Party’s business, assets or affairs; or
(d) relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information;
Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise;
Credits means the number of credit units provided to you in your Plan every Billing Date, which you may use to view Candidate information or videos;
Credit Validity Period is defined in clause 6.1;
Customer Data means the information, materials, logos, documents, qualifications and other Intellectual Property or data inputted by you, your Personnel or your Authorised Users into the Services or stored by the Services or generated by the Services as a result of your use of the Services;
Disclosing Party means the party disclosing Confidential Information to the Receiving Party;
Fee or Fees means those fees due and payable by you for the Services, as set out in your chosen Plan;
Feedback means any idea, suggestion, recommendation or request by you or any of your Personnel, or your Authorised Users, whether made verbally, in writing, directly or indirectly, in connection with the Services;
Insolvency Event means any of the following events or any analogous event:
(a) a Party disposes of the whole or any part of the Party’s assets, operations or business other than in the ordinary course of business;
(b) a Party ceases, or threatens to cease, carrying on business;
(c) a Party is unable to pay the Party’s debts as the debts fall due;
(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Party’s assets, operations or business;
(e) any step is taken for a party to enter into any arrangement or compromise with, or assignment for the benefit of, a Party’s creditors or any class of a Party’s creditors; or
(f) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of a Party’s assets, operations or business;
Intellectual Property means any copyright, registered and unregistered trade marks, designs (whether or not registered or registrable), domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing;
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property;
Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with these Terms or the provision of the Services, and includes the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth);
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise;
Licence is defined in 4.1;
Monthly Billing Date is defined in 5.4(a);
Monthly Plan means a Plan that provides you with access to the Services on a rolling monthly basis;
Personal Information is defined in the Privacy Act 1988 (Cth) and also includes any similar term as defined in any other privacy law applicable to you;
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents;
Plan means the plan you choose, including the Fees, billing cycle, features and number of Authorised Users, as set out on the Site and post purchase, as set out within your Account;
Recruiter Account is defined in clause 2.2;
Receiving Party means the party receiving Confidential Information from the Disclosing Party;
Services means our software as a service as described in your Plan and on the Site;
Single Plan means a Plan that is not a subscription and does not automatically renew.
Subscription Period means the period of time that your subscription is valid, being the time between each Monthly or Annual Billing Date (as applicable).
System means all hardware, software, networks and other IT systems used by a Party from time to time, including a network;
Third Party Inputs means third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by;
Yearly Billing Date is defined in 5.4(b);
Yearly Plan means a Plan that provides you with access to the Services on a rolling yearly basis; and
Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of you or your Personnel before the Start Date and/or developed by or on behalf of you or your Personnel independently of these Terms.
Your Videos means the videos that you upload to the Services, that are not produced by us.
In these Terms, unless the context otherwise requires:
(a) a reference to these Terms or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
(b) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
(c) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
(d) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
(e) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;’
(f) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
(g) a reference to time is to local time in New South Wales; and
(h) a reference to $ or dollars refers to the currency of Australia from time to time.
For any questions and notices, please contact us at:
Vidaura Pty Ltd (ABN 57 638 043 955)
Email: [email protected]
Last update: 11 December 2020