Terms of Use

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE ACCESSING OR USING CHILDHR’S SERVICES OR WEBSITE. BY ACCESSING OR USING CHILDHR’S SERVICES OR WEBSITE YOU AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT AGREE TO THESE TERMS OF USE THEN YOU MUST NOT ACCESS OR USE CHILDHR’S SERVICES OR WEBSITE.

1. Definitions

 

Agreement means these terms of use, any Order, CHILDHR’s Privacy Policy and any other terms and conditions, policies, procedures or guidelines appearing on the Website as amended from time to time in accordance with these terms of use.

Authorised Representative means a person as described in clause 3(e) 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.

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 a person who has registered to access or use any Services to manage its human resources responsibilities by completing an Order or who accesses or uses the Website.

Commencement Date means the date of an Order.

Compliance Statement means the CHILDHR Compliance Statement dated July 2014 to 1 June 2021, as amended from time to time.

Confidential Information means:

(a) in relation to CHILDHR:

(i) the content of its software application including, without limitation, all information, documents, files, text, logos, graphics, images, photographs, videos, material and software made available by DIFFUZE to the Client for use with any Services; and

(ii) any other information identified by CHILDHR as being confidential; and

(b) in relation to the Client:

(i) any information submitted by the Client or Users into the CHILDHR system; and

(ii) any other information identified by the Client as being confidential.

Corporations Act means the Corporations Act 2001 (Cth).

CHILDHR means Diffuze Pty Ltd (ABN 65 155 261 662).

Event of Default means:

(a) in relation to the Client, the occurrence of any one or more of the following events or circumstances:

(i) the Client fails to comply with any of its obligations under this Agreement;

(ii) an Insolvency Event occurs in relation to the Client;

(iii) a notice of deregistration of the Client is given under sections 601AA(5) or 601AB(5) of the Corporations Act;

(iv) the Client fails to pay by the due date any amount due and payable by it under this Agreement; or

(v) 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); and

(b) in the case of CHILDHR, CHILDHR fails to comply with any of its obligations under this Agreement in connection with the provision of any Services to the Client.

Fees means the fees specified in an Order as amended from time to time and payable by the Client to CHILDHR for the provision of any 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 the Client, any one or more of the following events or circumstances:

(a) being in liquidation or provisional liquidation or under administration;

(b) having a controller, administrator, liquidator, receiver, receiver and manager or analogous person appointed to it or to any of its property;

(c) being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand;

(d) being unable to pay its debts or being otherwise insolvent;

(e) becoming an insolvent under administration, as defined in section 9 of the Corporations Act;

(f) entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors; or

(g) 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 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:

(a) 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;

(b) any application or right to apply for registration of any of these rights;

(c) any registration of any of those rights or any registration of any application referred to in paragraph (b); and

(d) all renewals and extensions of these rights.

 

2. Legal agreement

 

(a) This Agreement governs the Client’s access to and use of any Services and the Website.

(b) By accessing or using any Services or the Website the Client agrees to be bound by this Agreement which constitutes a legally binding agreement between the Client and CHILDHR that applies to all matters arising out of, or in connection with, any Services and the Website.

(c) If you are acting as the representative of an organisation then:

(i) on behalf of the organisation you agree to be bound by this Agreement as the Client;

(ii) you warrant that you have full legal authority to bind the organisation to this Agreement as the Client; and

(iii) you agree to personally indemnify CHILDHR from and against any and all loss and damage (including legal fees) arising out of, or in connection with, this Agreement not being able to be enforced against the organisation by CHILDHR for any reason.

(d) If the Client does not agree to be bound by this Agreement then the Client is prohibited from accessing or using any Services or the Website.

(e) When accessing or using any Services or the Website the Client must at all times comply with this Agreement, any directions given by CHILDHR and all applicable laws.

3. Provision of Services

 

(a) The Term for the provision of any Services to the Client by CHILDHR will commence upon the Commencement Date and continue for a minimum of 12 months from the Commencement Date, and will continue thereafter unless terminated by a Party in accordance with this Agreement.

(b) The Client acknowledges that any Services are not a kind ordinarily acquired for personal, domestic or household use or consumption.

(c) CHILDHR grants to the Client the right to access and use any Services 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-transferable and subject to this Agreement.

(d) The Client acknowledges and agrees that:

(i) the Client is responsible for determining who is a User and what level of access to any Services that User has;

(ii) the Client is responsible for all Users’ access and use of any Services and must ensure that its Users do not access or use any Services in breach of this Agreement;

(iii) the Client controls each User’s level of access to any Services 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;

(iv) 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;

(v) if there is any dispute between a Client and a User regarding access to any Services, the Client will decide what access or level of access to the relevant data or Services that User shall have, if any; and

(vi) 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 access to or use of any Services or otherwise.

(e) 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 any 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.

 

4. Support Services

 

4.1 Technical Problems

 

(a) In the case of technical problems with any Services, 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 to CHILDHR at support@diffuze.com.au.

(b) CHILDHR is not required to respond within a specific period of time in the event assistance is required with any Services. 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 any Services.

(c) 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 any Services.

(d) 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 in connection with any Services.

 

4.2 Service availability

 

(a) CHILDHR may interrupt any Services from time to time to perform maintenance or otherwise. CHILDHR will attempt to give reasonable notice before, or as soon as possible after, interrupting any Services, by email or publishing details on the Website.

(b) CHILDHR may at any time and in its sole discretion suspend any Services without liability if:

(i) it reasonably believes that any Services are being used or accessed in breach of this Agreement;

(ii) the Client is in breach of its Agreement;

(iii) 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;

(iv) CHILDHR is required by law or order of a Government Agency to suspend any Services; or

(v) CHILDHR reasonably believes that the suspension of any Services is necessary to protect the Client, CHILDHR, its network or its other clients.

(c) CHILDHR will give the Client at least 48 hours’ notice of a suspension unless it determines that a suspension on shorter notice is necessary.

(d) The Client remains liable to pay the Fees for any Services while they are suspended.

 

5. Client obligations and acknowledgements

 

(a) The Client agrees to ensure that all usernames and passwords required to access any Services are kept secure and confidential. The Client must immediately notify CHILDHR of any unauthorized use of its passwords or any other breach of security in connection with any Services.

(b) If so notified in accordance with clause 5(a), 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 any Services.

(c) The Client must:

(i) not attempt to undermine the security or integrity of CHILDHR’s computing systems or networks or, where any Services are hosted by a third party, that third party’s computing systems and networks;

(ii) not access or use, or misuse, any Services in any way which may impair the functionality of any Services, or other systems used to deliver any Services or impair the ability of any other user to access or use any Services;

(iii) 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 any Services are hosted;

(iv) not transmit, or input, any:

(A) files that may damage any other person’s computing devices or software;

(B) content that may be offensive; or

(C) data in violation of any law; and

(d) not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver any Services or content delivered in the use of any Services except as is strictly necessary to use either of them for normal operation.

 

6. Fees and payment

6.1 Fees and payment

 

(a) The applicable Fees in respect of any Services will be specified in the Order and may be amended from time to time in accordance with this Agreement.

(b) CHILDHR may charge the Client the applicable Fees in respect of any Services using the payment method specified in the Order which may include payment by direct debit (provided this is available from the Client’s financial institution) or credit card.

(c) Unless otherwise expressly stated, all Fees, prices or other sums payable under or in accordance with this Agreement are exclusive of GST and CHILDHR may charge the Client the relevant amount of GST at the same time as charging the Client the applicable Fees in respect of any Services.

(d) CHILDHR will provide the Client with a valid tax invoice for any Fees charged to the Client in respect of any Services.

(e) CHILDHR may increase the Fees on 30 days’ notice to the Client.

(f) Despite any other clause in this Agreement, any payments under or in relation to this Agreement must be made in full without deduction or set-off.

(g) Where any Fees are unpaid on the due date as determined in accordance with this Agreement then CHILDHR may charge the Client a late fee per occurrence of late payment.

 

6.2 Direct Debit Service Agreement

 

(a) CHILDHR will provide the Client at least 14 days’ notice if the terms of the use of direct debit facilities are to change.

(b) CHILDHR will cancel the Client’s direct debit arrangements following termination of this Agreement upon receipt of all outstanding Fees owed to CHILDHR.

(c) The Client may change its direct debit arrangements at any time using the Services, which change will take effect at the time the Client’s next payment of any Fees is due in accordance with this Agreement unless the next payment is due less than 14 days from the date of the change in which case the change will take effect when the subsequent payment of Fees is due.

(d) 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 to the Client’s Financial Institution in connection with a claim made to an alleged incorrect or wrongful debit.

(e) The Client may use the Services to cancel its direct debit arrangements at any time and choose an alternative payment method.

(f) The Client must:

(i) ensure that it has sufficient cleared funds available in its nominated account by the date any Fees are due in accordance with this Agreement;

(ii) 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; and

(iii) ensure its bank account specified in an Order can accept direct debits through the Bulk Electronic Clearing System before submitting the Order or changing its nominated bank account.

(g) The Client should:

(i) where it considers that any payment has been incorrectly debited, contact CHILDHR immediately;

(ii) check with its financial institution if it is not sure when a payment will be processed and debited from its account; and

(iii) check its account details when completing an Order, or changing its direct debit arrangements, against a recent statement from the Client’s financial institution.

 

7. Confidentiality

7.1 Obligations of confidentiality

 

Each Party (Receiving Party) receiving, possessing or otherwise acquiring Confidential Information of the other Party (Disclosing Party) acknowledges and agrees 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:

(a) 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;

(b) only use such Confidential Information of the Disclosing Party to perform its obligations under this Agreement or otherwise in the use of any Services;

(c) take all reasonable steps to secure and keep secure all of the Disclosing Party’s Confidential Information coming into its possession or control; and

(d) 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 any Services.

 

7.2 Exceptions

 

(a) The obligations of confidentiality under clause 7.1 do not apply to any information that:

(i) is generally available to the public (other than by reason of a breach of this Agreement); or

(ii) is required to be disclosed by any applicable law or order of a Government Agency, 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.

(b) The Client acknowledges and agrees that CHILDHR may use any Services of a data hosting provider located within or outside Australia to host the data of the Client and that CHILDHR is authorised by the Client to do so.

8. Privacy

 

(a) 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.

(b) The Client acknowledges and agrees that CHILDHR:

(i) may use any Personal Information which it holds under or in connection with this Agreement to:

(A) send the Client or Users information that they request;

(B) provide Services to the Clients;

(C) send the Client or Users email alerts about server upgrades and new features of the Services; and

(D) perform market research or data analytics; and

(ii) will otherwise handle all Personal Information disclosed to CHILDHR under or in connection with this Agreement in accordance with CHILDHR’s Privacy Policy as amended from time to time.

(c) CHILDHR may request the Client to remove certain data from being stored as part of any Services 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.

(d) Without limiting clause 8(c), the Client agrees to do anything requested by CHILDHR for the purpose of CHILDHR complying with the requirements of any Privacy Law in respect of any Personal Information collected, used, stored or otherwise dealt with by CHILDHR under or in connection with this Agreement.

(e) The Client agrees to cooperate with CHILDHR in resolving any complaint that CHILDHR has breached any Privacy Law in respect of any Personal Information collected, used, stored or otherwise dealt with by CHILDHR under or in connection with this Agreement.

 

9. Intellectual Property

 

(a) The Client acknowledges and agrees 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 are connected with, any Services or any Material, are the property of and will at all times remain vested in CHILDHR.

(b) 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 Rights.

(c) 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).

(d) Subject to the Client’s ongoing compliance with this Agreement including full payment of the Fees and subject to clause 11, CHILDHR hereby grants to the Client the following:

(i) 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 any Services, solely for the Client’s internal business purposes; and

(ii) a non-exclusive, revocable licence to access and use any Services for the Term as specified in this Agreement.

10. Warranties

 

(a) 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.

(b) Nothing in this 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.

(c) If a warranty or condition is implied in this Agreement 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 relevant Services provided again (at CHILDHR’s option).

 

11. Limitation of liability

 

(a) To the extent permitted by law, and notwithstanding any other provision of this 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, this Agreement, howsoever caused.

(b) 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 any Services.

(c) The maximum aggregate liability of CHILDHR for all proven losses, damages and Claims arising out of, or in connection with, 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.

(d) The Client indemnifies CHILDHR from and against any and all loss and damage (including legal fees) arising out of, or in connection with:

(i) a breach or non-performance of this Agreement by the Client or its personnel and Users;

(ii) the data or material stored by the Client, including where the material is of an offensive, infamous or illegal nature;

(iii) all and any Claims whatsoever and howsoever arising made by any third party in connection with, or arising out of, the Client’s access or use of any Services; or

(iv) the Client amending, changing or adopting the content of any Services.

(e) CHILDHR makes no representation that any 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 the use of the internet that could result in the loss of its privacy, information and data.

(f) CHILDHR is not a legal adviser and not liable for any legal consequence that follows from the use of any Services. CHILDHR is not liable for any consequence in connection with the Client amending, changing or adopting the content of any Services.

(g) CHILDHR is not liable for any loss or damage suffered by the Client arising from data loss or system fault in providing any Services, or breach of any Intellectual Property Rights of any third party.

 

12. Termination

12.1 Termination by CHILDHR

 

(a) CHILDHR may terminate any Services or this Agreement at any time for any reason and without prejudice to any right of action or remedy which has accrued or which may accrue in favour of CHILDHR, by giving the Client at least 20 Business Days’ notice to that effect.

(b) In the event that the Client fails to pay the Fees in accordance with clause 6, CHILDHR may immediately suspend the provision of any Services or terminate this Agreement.

 

12.2 Termination by Client

 

Following the first anniversary of the Commencement Date, the Client may terminate any Services for any reason and without prejudice to any right of action or remedy which has accrued or which may accrue in favour of the Client, by giving CHILDHR at least 20 Business Days’ notice to that effect (and for the avoidance of doubt, notice to terminate any Services 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):

(a) receives a Default Notice and does not comply with the notice within the relevant period referred to in clause 12.3; or

(b) is the subject of an Insolvency Event,

then the other Party, without limiting its other rights and remedies, may terminate this Agreement by giving to the Defaulting Party notice with immediate effect.

12.5 Consequences of termination

 

(a) On the termination of this Agreement:

(i) this 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 termination;

(ii) the Client will immediately cease to have access to any Services and the licence granted under clause 9(d) will immediately terminate; and

(iii) 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.

(b) Where any amounts remain outstanding from the Client after the termination of the Services, CHILDHR retains a right of lien over the data and any documents or Confidential Information of the Client which 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.

(c) Without limiting clause 12.5(d), after the termination of the Services where the Client requests either:

(i) a digital archive of the Client’s information held by CHILDHR then CHILDHR may charge the Client a retrieval fee; or

(ii) access to the Client’s information held by CHILDHR then CHILDHR may charge the Client a reconnection and access fee.

(d) CHILDHR retains the right to delete all information held by it in relation to a Client 60 days after the termination of the Services.

 

13. General

13.1 Notices

 

(a) 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.

(b) 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 the Website. CHILDHR will give Notices to the Client to the contact address set out in any Order or by publishing the Notices on the Website.

(c) Notices will be deemed to be received, if:

(i) sent by hand delivery, upon delivery to the receiving party or by leaving the Notice at the receiving party’s address;

(ii) sent by registered mail within Australia, 5 Business Days after the registration of the notice of posting;

(iii) sent 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;

(iv) sent 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; and

(v) published by CHILDHR on the Website, upon such publication.

13.2 Nature of obligations

 

(a) Any provision in this Agreement which binds more than one person binds all of those persons jointly and each of them severally.

(b) 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) 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.

(b) 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.

(c) A waiver of a breach does not operate as a waiver of any other breach.

 

13.5 Severability

 

Any provision of this Agreement which is invalid in any jurisdiction must, in relation to that jurisdiction:

(a) be read down to the minimum extent necessary to achieve its validity, if applicable;

(b) be severed from this Agreement in any other case; and

(c) without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.

 

13.6 Assignment

 

(a) The Client cannot assign or otherwise transfer the benefit of this Agreement without the prior written consent of CHILDHR.

(b) CHILDHR may at any time by giving notice to the Client:

(i) assign or otherwise transfer CHILDHR’s rights and obligations under this Agreement to a related body corporate within the meaning of the Corporations Act or a purchaser of all or part of CHILDHR’s business or assets; and

(ii) provide to that related body corporate or purchaser respectively all information, data or other material which the Client has made available to CHILDHR under or in connection with the Services or this Agreement including, without limitation, all Personal Information.

 

13.7 Relationship

 

This Agreement does not create a relationship of employment, agency, partnership or joint venture between the Parties.

13.8 Governing law and jurisdiction

 

(a) This Agreement is governed by and must be construed in accordance with the laws in force in Victoria.

(b) 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.

 

13.9 Force Majeure

 

CHILDHR will not be liable to the Client for any delays or errors in its performance, or for non-performance, of any of its obligations under this Agreement due to any circumstances beyond its reasonable control including (without limitation) natural events, fire, lightning, earthquake, flood, storm, epidemic, public health emergency, acts or orders of government, industrial dispute, strikes, riots, insurrection, protests, explosion, acts of terrorism, acts of war, virus or other harmful code, denial of service or other cyber-attack, third party supplier failure, service interruption and failure of utilities including communications, satellite, internet or electricity.

13.10 Order of precedence

 

Wherever there is any inconsistency between the provisions of these terms of use, an Order or any other terms and conditions, policies, procedures or guidelines appearing on the Website, the order of precedence of the interpretation will be as follows:

(a) the Order;

(b) these terms of use; and

(c) any other terms and conditions, policies, procedures or guidelines appearing on the Website,

and the document higher in the order will take precedence to the extent of any inconsistency.

13.11 Survival of Obligations

 

This clause 13 together with clauses 1, 2, 6, 7, 8, 9, 10, 11 and 12, and any other provision which is capable of having effect after the termination of this Agreement will survive and remain in full force and effect following the termination of this Agreement.

13.12 Disputes

 

(a) No Party may take action against the other for any dispute between them without first seeking to resolve the dispute in good faith.

(b) The Party claiming there is a dispute (Disputant) must contact the other Party providing details of the dispute.

(c) The Parties must use their reasonable endeavours to seek to resolve the dispute within 10 Business Days of details of the dispute being provided under clause 13.12(b).

(d) If no resolution is reached within the time under clause 13.12(c), each Party must within 10 Business Days refer the matter to the person with the highest authority within their organisation to resolve the dispute. Those persons must use their reasonable endeavours to resolve the dispute within a further 10 Business Days.

(e) If the dispute remains unresolved following attempted resolution under clause 13.12(d), the Parties may take action as they deem appropriate.

(f) Each Party must bear its own costs in complying with this clause 13.12.

13.13 Variation

 

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 after notice from CHILDHR notifying the Client of the amendment or providing the new terms of this Agreement unless the Client gives CHILDHR notice terminating this Agreement prior to such amendment taking effect.

 

Release: 1 February 2021

Terms of Use

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE ACCESSING OR USING CHILDHR’S SERVICES OR WEBSITE. BY ACCESSING OR USING CHILDHR’S SERVICES OR WEBSITE YOU AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT AGREE TO THESE TERMS OF USE THEN YOU MUST NOT ACCESS OR USE CHILDHR’S SERVICES OR WEBSITE.

 

1. Definitions

 

Agreement means these terms of use, any Order, CHILDHR’s Privacy Policy and any other terms and conditions, policies, procedures or guidelines appearing on the Website as amended from time to time in accordance with these terms of use.

Authorised Representative means a person as described in clause 3(e) 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.

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 a person who has registered to access or use any Services to manage its human resources responsibilities by completing an Order or who accesses or uses the Website.

Commencement Date means the date of an Order.

Compliance Statement means the CHILDHR Compliance Statement dated July 2014 to 1 June 2021, as amended from time to time.

Confidential Information means:

(a) in relation to CHILDHR:

(i) the content of its software application including, without limitation, all information, documents, files, text, logos, graphics, images, photographs, videos, material and software made available by DIFFIZE to the Client for use with any Services; and

(ii) any other information identified by CHILDHR as being confidential; and

(b) in relation to the Client:

(i) any information submitted by the Client or Users into the CHILDHR system; and

(ii) any other information identified by the Client as being confidential.

Corporations Act means the Corporations Act 2001 (Cth).

CHILDHR means Diffuze Pty Ltd (ABN 65 155 261 662).

Event of Default means:

(a) in relation to the Client, the occurrence of any one or more of the following events or circumstances:

(i) the Client fails to comply with any of its obligations under this Agreement;

(ii) an Insolvency Event occurs in relation to the Client;

(iii) a notice of deregistration of the Client is given under sections 601AA(5) or 601AB(5) of the Corporations Act;

(iv) the Client fails to pay by the due date any amount due and payable by it under this Agreement; or

(v) 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); and

(b) in the case of CHILDHR, CHILDHR fails to comply with any of its obligations under this Agreement in connection with the provision of any Services to the Client.

Fees means the fees specified in an Order as amended from time to time and payable by the Client to CHILDHR for the provision of any 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 the Client, any one or more of the following events or circumstances:

(a) being in liquidation or provisional liquidation or under administration;

(b) having a controller, administrator, liquidator, receiver, receiver and manager or analogous person appointed to it or to any of its property;

(c) being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand;

(d) being unable to pay its debts or being otherwise insolvent;

(e) becoming an insolvent under administration, as defined in section 9 of the Corporations Act;

(f) entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors; or

(g) 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 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:

(a) 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;

(b) any application or right to apply for registration of any of these rights;

(c) any registration of any of those rights or any registration of any application referred to in paragraph (b); and

(d) all renewals and extensions of these rights.

 

2. Legal agreement

 

(a) This Agreement governs the Client’s access to and use of any Services and the Website.

(b) By accessing or using any Services or the Website the Client agrees to be bound by this Agreement which constitutes a legally binding agreement between the Client and CHILDHR that applies to all matters arising out of, or in connection with, any Services and the Website.

(c) If you are acting as the representative of an organisation then:

(i) on behalf of the organisation you agree to be bound by this Agreement as the Client;

(ii) you warrant that you have full legal authority to bind the organisation to this Agreement as the Client; and

(iii) you agree to personally indemnify CHILDHR from and against any and all loss and damage (including legal fees) arising out of, or in connection with, this Agreement not being able to be enforced against the organisation by CHILDHR for any reason.

(d) If the Client does not agree to be bound by this Agreement then the Client is prohibited from accessing or using any Services or the Website.

(e) When accessing or using any Services or the Website the Client must at all times comply with this Agreement, any directions given by CHILDHR and all applicable laws.

 

3. Provision of Services

 

(a) The Term for the provision of any Services to the Client by CHILDHR will commence upon the Commencement Date and continue for a minimum of 12 months from the Commencement Date, and will continue thereafter unless terminated by a Party in accordance with this Agreement.

(b) The Client acknowledges that any Services are not a kind ordinarily acquired for personal, domestic or household use or consumption.

(c) CHILDHR grants to the Client the right to access and use any Services 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-transferable and subject to this Agreement.

(d) The Client acknowledges and agrees that:

(i) the Client is responsible for determining who is a User and what level of access to any Services that User has;

(ii) the Client is responsible for all Users’ access and use of any Services and must ensure that its Users do not access or use any Services in breach of this Agreement;

(iii) the Client controls each User’s level of access to any Services 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;

(iv) 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;

(v) if there is any dispute between a Client and a User regarding access to any Services, the Client will decide what access or level of access to the relevant data or Services that User shall have, if any; and

(vi) 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 access to or use of any Services or otherwise.

(e) 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 any 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.

 

4. Support Services

 

4.1 Technical Problems

 

(a) In the case of technical problems with any Services, 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 to CHILDHR at support@diffuze.com.au.

(b) CHILDHR is not required to respond within a specific period of time in the event assistance is required with any Services. 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 any Services.

(c) 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 any Services.

(d) 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 in connection with any Services.

 

4.2 Service availability

 

(a) CHILDHR may interrupt any Services from time to time to perform maintenance or otherwise. CHILDHR will attempt to give reasonable notice before, or as soon as possible after, interrupting any Services, by email or publishing details on the Website.

(b) CHILDHR may at any time and in its sole discretion suspend any Services without liability if:

(i) it reasonably believes that any Services are being used or accessed in breach of this Agreement;

(ii) the Client is in breach of its Agreement;

(iii) 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;

(iv) CHILDHR is required by law or order of a Government Agency to suspend any Services; or

(v) CHILDHR reasonably believes that the suspension of any Services is necessary to protect the Client, CHILDHR, its network or its other clients.

(c) CHILDHR will give the Client at least 48 hours’ notice of a suspension unless it determines that a suspension on shorter notice is necessary.

(d) The Client remains liable to pay the Fees for any Services while they are suspended.

 

5. Client obligations and acknowledgements

 

(a) The Client agrees to ensure that all usernames and passwords required to access any Services are kept secure and confidential. The Client must immediately notify CHILDHR of any unauthorized use of its passwords or any other breach of security in connection with any Services.

(b) If so notified in accordance with clause 5(a), 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 any Services.

(c) The Client must:

(i) not attempt to undermine the security or integrity of CHILDHR’s computing systems or networks or, where any Services are hosted by a third party, that third party’s computing systems and networks;

(ii) not access or use, or misuse, any Services in any way which may impair the functionality of any Services, or other systems used to deliver any Services or impair the ability of any other user to access or use any Services;

(iii) 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 any Services are hosted;

(iv) not transmit, or input, any:

(A) files that may damage any other person’s computing devices or software;

(B) content that may be offensive; or

(C) data in violation of any law; and

(d) not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver any Services or content delivered in the use of any Services except as is strictly necessary to use either of them for normal operation.

 

6. Fees and payment

 

6.1 Fees and payment

 

(a) The applicable Fees in respect of any Services will be specified in the Order and may be amended from time to time in accordance with this Agreement.

(b) CHILDHR may charge the Client the applicable Fees in respect of any Services using the payment method specified in the Order which may include payment by direct debit (provided this is available from the Client’s financial institution) or credit card.

(c) Unless otherwise expressly stated, all Fees, prices or other sums payable under or in accordance with this Agreement are exclusive of GST and CHILDHR may charge the Client the relevant amount of GST at the same time as charging the Client the applicable Fees in respect of any Services.

(d) CHILDHR will provide the Client with a valid tax invoice for any Fees charged to the Client in respect of any Services.

(e) CHILDHR may increase the Fees on 30 days’ notice to the Client.

(f) Despite any other clause in this Agreement, any payments under or in relation to this Agreement must be made in full without deduction or set-off.

(g) Where any Fees are unpaid on the due date as determined in accordance with this Agreement then CHILDHR may charge the Client a late fee per occurrence of late payment.

 

6.2 Direct Debit Service Agreement

 

(a) CHILDHR will provide the Client at least 14 days’ notice if the terms of the use of direct debit facilities are to change.

(b) CHILDHR will cancel the Client’s direct debit arrangements following termination of this Agreement upon receipt of all outstanding Fees owed to CHILDHR.

(c) The Client may change its direct debit arrangements at any time using the Services, which change will take effect at the time the Client’s next payment of any Fees is due in accordance with this Agreement unless the next payment is due less than 14 days from the date of the change in which case the change will take effect when the subsequent payment of Fees is due.

(d) 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 to the Client’s Financial Institution in connection with a claim made to an alleged incorrect or wrongful debit.

(e) The Client may use the Services to cancel its direct debit arrangements at any time and choose an alternative payment method.

(f) The Client must:

(i) ensure that it has sufficient cleared funds available in its nominated account by the date any Fees are due in accordance with this Agreement;

(ii) 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; and

(iii) ensure its bank account specified in an Order can accept direct debits through the Bulk Electronic Clearing System before submitting the Order or changing its nominated bank account.

(g) The Client should:

(i) where it considers that any payment has been incorrectly debited, contact CHILDHR immediately;

(ii) check with its financial institution if it is not sure when a payment will be processed and debited from its account; and

(iii) check its account details when completing an Order, or changing its direct debit arrangements, against a recent statement from the Client’s financial institution.

 

7. Confidentiality

 

7.1 Obligations of confidentiality

 

Each Party (Receiving Party) receiving, possessing or otherwise acquiring Confidential Information of the other Party (Disclosing Party) acknowledges and agrees 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:

(a) 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;

(b) only use such Confidential Information of the Disclosing Party to perform its obligations under this Agreement or otherwise in the use of any Services;

(c) take all reasonable steps to secure and keep secure all of the Disclosing Party’s Confidential Information coming into its possession or control; and

(d) 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 any Services.

 

7.2 Exceptions

 

(a) The obligations of confidentiality under clause 7.1 do not apply to any information that:

(i) is generally available to the public (other than by reason of a breach of this Agreement); or

(ii) is required to be disclosed by any applicable law or order of a Government Agency, 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.

(b) The Client acknowledges and agrees that CHILDHR may use any Services of a data hosting provider located within or outside Australia to host the data of the Client and that CHILDHR is authorised by the Client to do so.

 

8. Privacy

 

(a) 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.

(b) The Client acknowledges and agrees that CHILDHR:

(i) may use any Personal Information which it holds under or in connection with this Agreement to:

(A) send the Client or Users information that they request;

(B) provide Services to the Clients;

(C) send the Client or Users email alerts about server upgrades and new features of the Services; and

(D) perform market research or data analytics; and

(ii) will otherwise handle all Personal Information disclosed to CHILDHR under or in connection with this Agreement in accordance with CHILDHR’s Privacy Policy as amended from time to time.

(c) CHILDHR may request the Client to remove certain data from being stored as part of any Services 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.

(d) Without limiting clause 8(c), the Client agrees to do anything requested by CHILDHR for the purpose of CHILDHR complying with the requirements of any Privacy Law in respect of any Personal Information collected, used, stored or otherwise dealt with by CHILDHR under or in connection with this Agreement.

(e) The Client agrees to cooperate with CHILDHR in resolving any complaint that CHILDHR has breached any Privacy Law in respect of any Personal Information collected, used, stored or otherwise dealt with by CHILDHR under or in connection with this Agreement.

 

9. Intellectual Property

 

(a) The Client acknowledges and agrees 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 are connected with, any Services or any Material, are the property of and will at all times remain vested in CHILDHR.

(b) 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 Rights.

(c) 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).

(d) Subject to the Client’s ongoing compliance with this Agreement including full payment of the Fees and subject to clause 11, CHILDHR hereby grants to the Client the following:

(i) 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 any Services, solely for the Client’s internal business purposes; and

(ii) a non-exclusive, revocable licence to access and use any Services for the Term as specified in this Agreement.

 

10. Warranties

 

(a) 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.

(b) Nothing in this 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.

(c) If a warranty or condition is implied in this Agreement 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 relevant Services provided again (at CHILDHR’s option).

 

11. Limitation of liability

 

(a) To the extent permitted by law, and notwithstanding any other provision of this 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, this Agreement, howsoever caused.

(b) 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 any Services.

(c) The maximum aggregate liability of CHILDHR for all proven losses, damages and Claims arising out of, or in connection with, 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.

(d) The Client indemnifies CHILDHR from and against any and all loss and damage (including legal fees) arising out of, or in connection with:

(i) a breach or non-performance of this Agreement by the Client or its personnel and Users;

(ii) the data or material stored by the Client, including where the material is of an offensive, infamous or illegal nature;

(iii) all and any Claims whatsoever and howsoever arising made by any third party in connection with, or arising out of, the Client’s access or use of any Services; or

(iv) the Client amending, changing or adopting the content of any Services.

(e) CHILDHR makes no representation that any 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 the use of the internet that could result in the loss of its privacy, information and data.

(f) CHILDHR is not a legal adviser and not liable for any legal consequence that follows from the use of any Services. CHILDHR is not liable for any consequence in connection with the Client amending, changing or adopting the content of any Services.

(g) CHILDHR is not liable for any loss or damage suffered by the Client arising from data loss or system fault in providing any Services, or breach of any Intellectual Property Rights of any third party.

 

12. Termination

 

12.1 Termination by CHILDHR

 

(a) CHILDHR may terminate any Services or this Agreement at any time for any reason and without prejudice to any right of action or remedy which has accrued or which may accrue in favour of CHILDHR, by giving the Client at least 20 Business Days’ notice to that effect.

(b) In the event that the Client fails to pay the Fees in accordance with clause 6, CHILDHR may immediately suspend the provision of any Services or terminate this Agreement.

 

12.2 Termination by Client

 

Following the first anniversary of the Commencement Date, the Client may terminate any Services for any reason and without prejudice to any right of action or remedy which has accrued or which may accrue in favour of the Client, by giving CHILDHR at least 20 Business Days’ notice to that effect (and for the avoidance of doubt, notice to terminate any Services 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):

(a) receives a Default Notice and does not comply with the notice within the relevant period referred to in clause 12.3; or

(b) is the subject of an Insolvency Event,

then the other Party, without limiting its other rights and remedies, may terminate this Agreement by giving to the Defaulting Party notice with immediate effect.

 

12.5 Consequences of termination

 

(a) On the termination of this Agreement:

(i) this 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 termination;

(ii) the Client will immediately cease to have access to any Services and the licence granted under clause 9(d) will immediately terminate; and

(iii) 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.

(b) Where any amounts remain outstanding from the Client after the termination of the Services, CHILDHR retains a right of lien over the data and any documents or Confidential Information of the Client which 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.

(c) Without limiting clause 12.5(d), after the termination of the Services where the Client requests either:

(i) a digital archive of the Client’s information held by CHILDHR then CHILDHR may charge the Client a retrieval fee; or

(ii) access to the Client’s information held by CHILDHR then CHILDHR may charge the Client a reconnection and access fee.

(d) CHILDHR retains the right to delete all information held by it in relation to a Client 60 days after the termination of the Services.

 

13. General

 

13.1 Notices

 

(a) 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.

(b) 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 the Website. CHILDHR will give Notices to the Client to the contact address set out in any Order or by publishing the Notices on the Website.

(c) Notices will be deemed to be received, if:

(i) sent by hand delivery, upon delivery to the receiving party or by leaving the Notice at the receiving party’s address;

(ii) sent by registered mail within Australia, 5 Business Days after the registration of the notice of posting;

(iii) sent 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;

(iv) sent 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; and

(v) published by CHILDHR on the Website, upon such publication.

 

13.2 Nature of obligations

 

(a) Any provision in this Agreement which binds more than one person binds all of those persons jointly and each of them severally.

(b) 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) 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.

(b) 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.

(c) A waiver of a breach does not operate as a waiver of any other breach.

 

13.5 Severability

 

Any provision of this Agreement which is invalid in any jurisdiction must, in relation to that jurisdiction:

(a) be read down to the minimum extent necessary to achieve its validity, if applicable;

(b) be severed from this Agreement in any other case; and

(c) without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.

 

13.6 Assignment

 

(a) The Client cannot assign or otherwise transfer the benefit of this Agreement without the prior written consent of CHILDHR.

(b) CHILDHR may at any time by giving notice to the Client:

(i) assign or otherwise transfer CHILDHR’s rights and obligations under this Agreement to a related body corporate within the meaning of the Corporations Act or a purchaser of all or part of CHILDHR’s business or assets; and

(ii) provide to that related body corporate or purchaser respectively all information, data or other material which the Client has made available to CHILDHR under or in connection with the Services or this Agreement including, without limitation, all Personal Information.

 

13.7 Relationship

 

This Agreement does not create a relationship of employment, agency, partnership or joint venture between the Parties.

 

13.8 Governing law and jurisdiction

 

(a) This Agreement is governed by and must be construed in accordance with the laws in force in Victoria.

(b) 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.

 

13.9 Force Majeure

 

CHILDHR will not be liable to the Client for any delays or errors in its performance, or for non-performance, of any of its obligations under this Agreement due to any circumstances beyond its reasonable control including (without limitation) natural events, fire, lightning, earthquake, flood, storm, epidemic, public health emergency, acts or orders of government, industrial dispute, strikes, riots, insurrection, protests, explosion, acts of terrorism, acts of war, virus or other harmful code, denial of service or other cyber-attack, third party supplier failure, service interruption and failure of utilities including communications, satellite, internet or electricity.

 

13.10 Order of precedence

 

Wherever there is any inconsistency between the provisions of these terms of use, an Order or any other terms and conditions, policies, procedures or guidelines appearing on the Website, the order of precedence of the interpretation will be as follows:

(a) the Order;

(b) these terms of use; and

(c) any other terms and conditions, policies, procedures or guidelines appearing on the Website,

and the document higher in the order will take precedence to the extent of any inconsistency.

 

13.11 Survival of Obligations

 

This clause 13 together with clauses 1, 2, 6, 7, 8, 9, 10, 11 and 12, and any other provision which is capable of having effect after the termination of this Agreement will survive and remain in full force and effect following the termination of this Agreement.

 

13.12 Disputes

 

(a) No Party may take action against the other for any dispute between them without first seeking to resolve the dispute in good faith.

(b) The Party claiming there is a dispute (Disputant) must contact the other Party providing details of the dispute.

(c) The Parties must use their reasonable endeavours to seek to resolve the dispute within 10 Business Days of details of the dispute being provided under clause 13.12(b).

(d) If no resolution is reached within the time under clause 13.12(c), each Party must within 10 Business Days refer the matter to the person with the highest authority within their organisation to resolve the dispute. Those persons must use their reasonable endeavours to resolve the dispute within a further 10 Business Days.

(e) If the dispute remains unresolved following attempted resolution under clause 13.12(d), the Parties may take action as they deem appropriate.

(f) Each Party must bear its own costs in complying with this clause 13.12.

 

13.13 Variation

 

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 after notice from CHILDHR notifying the Client of the amendment or providing the new terms of this Agreement unless the Client gives CHILDHR notice terminating this Agreement prior to such amendment taking effect.

 

Release: 1 February 2021