Terms and Conditions - Police Checks Dashboard

1.1. These Terms and Conditions govern the Business Customer’s access to and use of the Dashboard and the provision of Police Checks. By accessing or using the Dashboard, the Business Customer agrees to be bound by these Terms and Conditions.

a. ACIC means the Australian Criminal Intelligence Commission

b. Administrative Access means any usernames, passwords or other security mechanisms issued to the Business Customer by CTW in order for Administrators to access and use the Dashboard.

c. Administrators means those Personnel of the Business Customer who are authorised (provided with Administrative Access) by the Business Customer to access the Dashboard.

d. AFP means the Australian Federal Police

e. Authorisation means any consent, authorisation, registration, filing, lodgement, permit, licence, agreement, notarisation, certificate, permission, direction, declaration, authority or exemption issued by any Authority, or any other party under law which has a right to impose a requirement or whose consent is required with respect to these Terms or otherwise.

f. Authority means any national, state, provincial, regional, territorial, local or municipal government, ministry, governmental department, commission, board, bureau, agency, instrumentality, executive, legislative, judicial or administrative body, in each case with jurisdiction.

g. Business Customer means the company or entity entering into this agreement with CTW.

h. Business Customer Data means all documents, files and information: uploaded to, entered or stored in the Dashboard; or otherwise supplied or made available to CTW, by the Business Customer or on the Business Customer’s behalf or any actual or potential Administrator, but excludes Applicant Data.

i. Business Day means a day, not being a Saturday, Sunday or public holiday, on which banks are generally open for business in Queensland, Australia.

j. Applicant means a person who undertakes a Police Check application via, or in connection with, the Dashboard.

k. Applicant Data means the data pertaining to an Applicant, made available on the Dashboard (if consented to by the Applicant) being:

i. Applicant first name and last name;

ii. Applicant email address;

iii. Check type Applicant requires;

iv. Check progress status, i.e., ‘not yet started’, ‘in progress’, and ‘completed’;

v. Check Completion Documentation, as applicable.

l. Claim means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, Liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent.

m. Confidential Information means any information in any form whatsoever disclosed by CTW to the Business Customer; that is designated by CTW as confidential; that the Business Customer knows or reasonably ought to know is confidential (including any client or Applicant information); or that is by its nature confidential (and in the case of CTW, includes all information relating to the Dashboard and any associated Source Code or other components and parts of the Dashboard).

n. Consequential Loss means: (i) loss of revenue, profits, opportunity to make profits, reputation or goodwill, business, business opportunity, use or amenity or loss of anticipated savings; (ii) special, exemplary or punitive damages; and (iii) any loss or Liability which does not directly and naturally flow in the normal course of events from the occurrence of the event giving rise to the liability for such loss, whether or not such loss was in the contemplation of the parties at the time of these Terms, including any of the above types of loss arising from an interruption to a business or activity.

o. Dashboard means the platform used by the Business Customer to procure and manage Police Checks for Applicant.

p. Data Privacy Laws means all applicable laws now or in the future relating to data protection, privacy and information security, including all applicable international, regional, federal or national data protection laws, regulations and regulatory guidance.

q. Documentation means the documentation made available to the Business Customer in any format, including online or such other web address notified by CTW to the Business Customer from time to time which sets out the user instructions for the Dashboard.

r. Direct Competitor means any of the following:

i. a provider of any software system or platform which provides any of the functions of the Dashboard;

ii. any other person that:

A. owns, operates or is otherwise involved in a business or operation similar to or competitive with CTW’s business or the Dashboard;

B. is involved in the sale, distribution or promotion of any goods or services which are similar to or competitive with CTW’s goods or services.

s. Effective Date means the date the Business Customer accepts these Terms and Conditions.

t. Fees means the fees payable by the Business Customer to CTW in accordance with these Terms and Conditions, including any Subscription Fee, and (as applicable) Police Check Fees that are nominated to be paid by the Business Customer.

u. Force Majeure Event means an event beyond the reasonable control of the parties which results in a party being unable to observe or perform on time an obligation in accordance with these Terms. Such circumstances include: (adverse changes in government regulations; any disaster or act of God, lightning strikes, atmospheric disturbances, earthquakes, floods, storms, explosions, fires and any natural disaster; acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution, cyber-attacks, viruses or malware, data loss as a result of the actions of a third party; strikes or industrial disputes; materials or labour shortage; and acts or omissions of any third party network providers (such as internet, telephone or power provider).

v. GST means: the same as in the GST Law; any other goods and services tax, or any tax applying to this transaction in a similar way; and any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.

w. GST Law has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

x. Indemnified Parties means CTW and its Related Entities (and their respective officers, shareholders, employees and agents).

y. Intellectual Property Rights means any patent, trademark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.

z. Liabilities means all liabilities (whether actual, contingent, or prospective), losses, damages, costs and expenses of whatsoever description.

aa. NCCHC means Nationally Controlled Criminal History Check

bb. NPCS means the National Police Checking Service

cc. New IP means any and all Intellectual Property Rights (including in relation to Source Code) created on and from the date of first access of the Dashboard and the provision of Police Checks, in the course of, or connection with, these Terms, the Dashboard, or the provision of Police Checks, but in all instances excluding Business Customer Data.

dd. Obligation means any express or implied legal, equitable, contractual, statutory or other Obligation, agreement, covenant, commitment, duty, undertaking or liability.

ee. Offer means the offer (in writing) to the Business Customer, by CTW of Police Checks, Dashboard and related Services.

ff. Personal Information means any information, whether recorded in a material form or not, relating to an identified or identifiable natural person (“data subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

gg. Personnel means officers, employees, secondees, agents, contractors, and subcontractors.

hh. Police Check means a NCCHC or AFP check that seeks all the releasable details about a person’s conviction records in Australia, for purpose stated on the check application.

ii. Police Check Fees means the corresponding fees (including any applicable Regulatory Fees) payable for the Police Check undertaken by an Applicant.

jj. Police Check Results means the results of a background check on a person’s conviction records in Australia.

kk. Privacy Policy means the CTW privacy policy available at CTW Privacy Policy or provided on request, as updated from time to time.

ll. Regulatory Fees means any fees payable to an Authority by CTW in connection with the provision of a Police Check.

mm. Related Entities has the meaning given to that term in the Corporations Act 2001 (Cth).

nn. Retention Period means a period commencing on the expiry of the Term and ends on the later of:

i. the date notified by the Business Customer to CTW in writing, which date must not be later than the date that is 2 years after expiry of the Term; and

ii. the date that is 3 months after expiry of the Term.

nn. Security Incident means any actual or likely occurrence of accidental, unauthorised or unlawful destruction, loss, alteration, or unauthorised third-party access to or disclosure of Applicant Data.

oo. Services means the provision of access to the Dashboard, together with all other services that are provided by CTW to the Business Customer in connection with the Dashboard.

pp. Source Code means computer programs expressed in a source language or form which can be interpreted or compiled and then executed by a computer as commands and all documentation and tools reasonably required to enable a person having commercially available computer programming skills to read, understand and modify such computer programs.

qq. Subscription Fee means the annual fee payable by the Business Customer, as set out in the Offer.

rr. System Outage includes outages, unavailability, inaccessibility, or downtime to the Dashboard.

ss. Taxation or Tax means and includes:

i. all taxes levied, imposed or assessed under the Income Tax Assessment Act 1936, the Income Tax Assessment Act 1997, GST Law or any other law in Australia or elsewhere;

ii. superannuation guarantee and superannuation guarantee charge under the SGA;

iii. all taxes in the nature of sales tax, consumption tax, value-added tax, GST, payroll tax, group tax, PAYG tax, undistributed profits tax, fringe benefits tax, recoupment tax, withholding tax, land tax, water rates, municipal rates, stamp duties, gift duties or other State, Territorial, Commonwealth or municipal charges or impositions levied, imposed or collected by any Government Agency; and

iv. any additional tax, interest, penalty, charge, fee or other amount of any kind assessed, charged or imposed in relation to the non, late or short payment of the same or the failure to file any return.

tt. Taxable Supply means any supply made by a party as a consequence of a transaction contemplated by these Terms and Conditions in respect of which another party is or becomes liable to pay GST.

uu. Terms and Conditions or Terms means these Terms and Conditions, as updated by CTW from time to time.

vv. Term means the period commencing on the Effective Date and expiring after the number of months/years specified in the Offer, unless this agreement is terminated earlier in accordance with these Terms and Conditions.

ww. Business Customer Regulatory Obligations means the allocation of responsibilities of the parties, as set out in the Offer.

xx. Third Party Platforms means servers, platforms, software and hardware supplied or made available by third parties.

yy. Third Party Provider means a third-party provider of servers, platforms, software and hardware which are utilised by CTW in the providing the Services.

3.1. CTW will provide the Business Customer with the Services and use of the Dashboard during the Term on the terms set out in these Terms and Conditions.

3.2. During the Term, CTW grants the Business Customer a non-exclusive right to use and permit Administrators to use the Dashboard and the Documentation for the Business Customer’s own business purposes on the terms set out in these Terms and Conditions.

3.3. The Business Customer acknowledges and agrees that CTW may supply products or services similar to or the same as the Dashboard and related Services to its customers or other third parties in its sole and absolute discretion.

3.4. The Business Customer acknowledges and agrees that:

a. The Business Customer must ensure that all Administrators accept and comply with (and will be bound by) all terms and conditions (and any other rules, protocols or policies) implemented or imposed by CTW in connection with the Dashboard or Services from time to time, including these Terms and Conditions and the Privacy Policy;

b. CTW may amend, supplement, or replace these Terms and Conditions and the Privacy Policy (and any other terms and conditions, rules, protocols or policies) from time to time by posting the amended or new Terms and Conditions or Privacy Policy (or other terms and conditions, rules, protocols or policies), as the case may be, to CTW’s website and, where reasonably practicable, by email notification;

c. unless otherwise noted by CTW, the amended or new Terms and Conditions and the Privacy Policy (or other terms and conditions, rules, protocols or policies) as the case may be, will become effective immediately after they are posted; and

d. if the Business Customer or Administrators do not agree to the amended or new Terms and Conditions and the Privacy Policy (or other terms and conditions, rules, protocols or policies) as the case may be, the Business Customer must immediately stop using the Dashboard and notify CTW in writing.

4.1. The Business Customer must:

a. provide CTW with all information and co-operation reasonably necessary to enable CTW to provide the Services;

b. provide and maintain the appropriate technology, equipment, and facilities to enable the Business Customer to access and use the Dashboard; and

c. promptly notify CTW of any event or incident that is likely to or will impact on access and use of the Dashboard, the provision of the Services or any other obligation of CTW.

4.2. The Business Customer must not, and must not permit others to:

a. use the Dashboard in an unlawful manner at any time;

b. use the Dashboard to send or distribute any messages, materials or content that may be considered to be unlawful;

c. access any Applicant Data without the prior consent of the Applicant;

d. engage in any illegal or unethical business practice;

e. remove or tamper with any legal or copyright notices on, or contained in, the Dashboard;

f. do anything which could adversely impact on the operation of the Dashboard or Services.

5.1. The Business Customer is responsible for all access and use of the Administrative Access whether or not authorised by the Business Customer, and the Business Customer must:

a. maintain the confidentiality of the Administrative Access;

b. take all reasonable security measures to ensure that each Administrative Access is not disclosed to any person, other than to Administrators; and

c. ensure that each person accessing and using the Dashboard, the Services, or the Documentation in any way:

i. is aware of, and complies with, all of the Business Customer Obligations under these Terms and Conditions (including those Obligations regarding use of and access to the Dashboard, the Services and the Documentation); and

ii. does not do any act, matter or thing which, if done by the Business Customer, would constitute a breach of the Obligations on the part of the Business Customer under these Terms and Conditions.

5.2. The Business Customer is responsible for all Administrators’ use of and access to the Dashboard (including level of access).

5.3. For Business Customers who are approved to be ACIC Customers, you are also bound by the ACIC Terms of Use.

a. CTW will invoice the Business Customer for the Fees, and the Business Customer must pay any such Fees (without any deduction, setoff or counterclaim) within 14 days following its receipt of an invoice from CTW for such Fees, unless otherwise agreed upon.

b. CTW must provide all information reasonably requested by the Business Customer in order for the Business Customer to confirm the Fees payable.

c. CTW may vary the Fees payable under these Terms and Conditions from time to time. In the event of an increase of more than 10%, CTW will provide 7 days’ notice to the Business Customer (subject to the rights of the parties under clauses 17.2 and 17.3).

d. The Business Customer acknowledges that Regulatory Fees, payable by CTW to an Authority, may be subject to change by the Authority at any time. The Business Customer agrees that such fees are required to be paid by the Business Customer (as part of the Police Check Fees) and the Business Customer indemnifies CTW in respect of such fees.

e. The Business Customer is not liable for any Fees that have been expressly nominated (as part of the application process) to be paid by the Applicant.

a. The consideration for any Taxable Supply under these Terms and Conditions will, unless expressly provided to the contrary, be exclusive of GST.

b. If a party (Supplier) is obliged pursuant to the GST Law to pay an amount of GST in respect of a Taxable Supply made by the Supplier to another party (Recipient), pursuant to the provisions of these Terms and Conditions, the Recipient shall pay the Supplier on demand that amount of GST upon production of a valid Tax Invoice by the Supplier in addition to the moneys otherwise payable by the Recipient to the Supplier on account of that Taxable Supply.

c. Each of the parties warrants and covenants to the other party that it is and will continue to be at all times during the Term, registered under the GST Law.

a. The Business Customer must pay interest to CTW on each amount that is not paid when due, from (and including) the day on which it falls due to (but excluding) the day on which it is paid in full, at the rate of 10% per annum. This interest must be paid on demand.

b. Interest on an unpaid amount:

i. accrues daily;

ii. is capitalised (if not paid) every 7 days; and

iii. is calculated on the basis of the actual number of days on which interest has accrued and of a 365-day year.

c. This clause 6.3 does not affect the Business Customer’s Obligation to pay each amount under these Terms and Conditions when it is due.

7.1. Through the Business Customer’s use of the Dashboard, and the provision and receipt of the Services, CTW will receive and have Business Customer Data and Applicant Data stored on CTW’s (or Third Party Providers’) servers. Not only is all data stored in Australia as per our ACIC Conditions of Approval, our server provider is 100% Australian owned and operated. Our provider is the only Australian Tier IV facility that can cater for data sovereignty and critical infrastructure.

7.2. The Business Customer grants CTW a non-exclusive perpetual licence to host and store Business Customer Data for the sole purpose of providing the Services, and CTW may sublicense these rights to CTW’s subcontractors.

7.3. CTW will:

a. only process Business Customer Data as part of providing the Services (including in relation to developing improvements to the Dashboard) and in accordance with the Business Customer’s reasonable and lawful instructions from time to time; and

b. not purport to sell, let for hire, assert a lien over, assign rights in or otherwise dispose of any of the Business Customer’s Data.

7.4. During the Retention Period, if requested by the Business Customer, CTW must use reasonable endeavours to:

a. provide the Business Customer with access to, and copies of, the Business Customer’s data;

b. return all data in a form reasonably accessible by the Business Customer; and/or

c. if requested by the Business Customer:

i. securely destroy the Business Customer’s Data; and

ii. promptly certify to the Business Customer in writing that CTW has done so.

For the avoidance of doubt, CTW’s obligations under this clause will cease to apply upon expiry of the Retention Period.

7.5. Notwithstanding clause 7.4, the Business Customer acknowledges and agrees that the Business Customer is solely responsible for making backups of Business Customer Data and CTW will not be responsible for, or have any Liability in relation to, backups of Business Customer Data (or the loss of Business Customer Data for any reason).

8.1. Support Services During the Term, CTW will (subject to the Business Customer complying with the Business Customer’s Obligations under these Terms and Conditions, and subject to any other limitation or exclusion set out in these Terms and Conditions) provide the following services to the Business Customer:

a. CTW will provide information to the Business Customer regarding the configuration, customisation and maintenance of any software used in relation to the Dashboard and of any software required to be loaded upon the Business Customer’s systems for the purpose of accessing and using the Dashboard in accordance with, and for the purposes contemplated in, these Terms and Conditions.

b. CTW will provide other email support services (as determined by CTW from time to time) as is reasonably required to ensure that the Dashboard is made accessible to Administrators in a functional and operational state in accordance with, and for the purposes contemplated in, these Terms and Conditions.

8.2. Service Levels

a. Subject to the Business Customer complying with its Obligations under these Terms and Conditions, and subject to any other limitation or exclusion set out in these Terms and Conditions, CTW must use all commercially reasonable endeavours to ensure the Dashboard is available for at least the following minimum availability percentage:

b. The availability of the Dashboard will be calculated as the number of available hours during the measurement period, divided by the total number of hours during the measurement period.

8.3. Downtime and Limitations Notwithstanding any provision of these Terms and Conditions to the contrary, the Business Customer acknowledges and agrees that:

a. CTW does not warrant that any person will have continuous access to the Services or the Dashboard;

b. the provision of and access to the Services and the Dashboard is reliant upon various factors beyond CTW’s control, including but not limited to:

i. Force Majeure Events;

ii. the provision of goods and services by Third Party Providers (including the availability, capacity, operation and performance of Third Party Platforms);

iii. acts or omissions by the Business Customer, the Administrators, or third parties (including Third Party Providers); and

iv. the Business Customer or the Administrator’s internet service provider, telecommunications provider or equipment used to access the Dashboard;

c. from time to time, CTW may (but is not obliged to):

i. make modifications to, or enhancements, updates or new releases of, the Dashboard; or

ii. undertake certain maintenance activities in relation to the Dashboard; and

d. certain activities or occurrences, including:

i. those referred to in clauses 8.3(b) and 8.3(c); or

ii. any act or omission of any third party (including any Third Party Provider); or

iii. any act or omission of the Business Customer, the Administrator or Business Customer Personnel, may cause System Outages.

8.4. Suspension and Termination The Business Customer acknowledges and agrees that CTW may suspend or terminate the Services (and access to the Dashboard) at any time without prior notice to the Business Customer, including where:

a. the Business Customer has breached these Terms and Conditions, including non-payment of Fees;

b. the Business Customer has exceeded the applicable usage limitations (if any);

c. there is a malfunction, fault or breakdown of any of CTW’s (or its Third Party Providers’) equipment or if CTW (or any of its Third Party Providers) undertakes repair, maintenance, updates, modifications or replacement of any part of the Dashboard;

d. there is a security breach of any kind in relation to the Dashboard, Business Customer Data, or Applicant Data;

e. CTW is (or any of its Third Party Providers are) required by an Authority or otherwise by law to do so;

f. a Force Majeure Event occurs, which affects or may affect CTW’s ability to provide access to the Dashboard;

g. there is a Claim made that the continued provision of access to the Dashboard infringes the rights of any person, or there is a Claim made that exposes CTW to liability or prosecution for an offence.

h. Business Customer is also an ACIC Customer (subject to the ACIC Terms of Use) and any violation of the ACIC Terms of Use are found.

8.5. No Liability CTW will not be liable to the Business Customer or any other person for any Claim or to any other extent for Liability or damage caused by loss of access or functionality to the Dashboard or Services (or where the Dashboard is not available for the minimum availability percentage under clause 8.2).

9.1. The Business Customer acknowledges and agrees that:

a. All Applicants nominated by the Business Customer are independent to the Business Customer and are considered CTW customers for the purpose of the provision of the Police Check application;

b. any Applicant Data is not legally or beneficially owned by the Business Customer, and the Business Customer must not disclose any Applicant Data or allow access of such data, to any third party or anyone who is not an Administrator or Business Customer Personnel with appropriate obligations of confidentiality, on a need-to-know basis;

c. Applicant Data will only be made available on the Dashboard if consented to by the Applicant;

d. CTW does not make or give any representation, assurance or warranty, express or implied, as to the origin, validity, accuracy, completeness, currency or reliability of the Applicant Data or information provided by an Applicant or any other fact, matter, circumstance or thing which comes to the knowledge or attention of the Business Customer.

9.2. The Business Customer must:

a. ensure its use, storage and disclosure of Applicant Data complies with all applicable Data Privacy Laws;

b. take appropriate technical and organisational measures against unauthorised or unlawful use, storage or disclosure of Applicant Data;

c. ensure the Administrators are bound by appropriate obligations of confidentiality and have been provided with adequate training on the handling of Personal Information and take all reasonable steps to ensure the reliability of such Personnel;

d. ensure compliance with ACIC Customer Terms of Use (if applicable).

9.3. The Business Customer warrants, represents and undertakes that it will secure and protect the Applicant Data that it has access to including by:

a. ensuring that access to Applicant Data is restricted on a strict need-to-know basis and that the Administrators are bound by appropriate obligations of confidentiality and take all reasonable steps in accordance with good industry practice to ensure the reliability of such Personnel;

b. maintaining and enforcing safeguards against the accidental, unauthorised, or unlawful destruction, loss, disclosure or alteration of, or access to, Applicant Data that are no less rigorous than those maintained by the Business Customer for its own information of a similar nature, or otherwise in accordance with good industry practice; and

c. in the event of a Security Incident:

i. taking immediate action to investigate any Security Incident, to identify, prevent and mitigate the effects of such Security Incident and carry out any other action necessary to remedy the Security Incident; and

ii. emailing corporate@cleartowork.com.au or otherwise providing CTW, as soon as practicable (and in any event within 48 hours) upon becoming aware of any Security Incident, with a detailed description of the Security Incident, the type of Applicant Data impacted, the identity of any affected individuals and all other information and cooperation which CTW may reasonably request; and

iii. not issue, publish or otherwise make available to any third party any press release or other communication concerning the Security Incident without CTW’s prior approval.

10.1. The Business Customer acknowledges the Confidential Information is valuable to, and is legally and beneficially owned by, CTW.

10.2. The Business Customer must undertake to keep the Confidential Information secret and to protect and preserve the confidential nature and secrecy of the Confidential Information and must not disclose except with the prior written consent of CTW.

10.3. At the request of CTW, the Business Customer must return to CTW or destroy (and certify that it has been destroyed) all the Confidential Information.

10.4. The Business Customer acknowledges that a breach of this clause may cause CTW irreparable damage for which monetary damages may not be an adequate remedy. Accordingly, in addition to other remedies that may be available, CTW may seek and obtain injunctive relief against such a breach or threatened breach.

11.1. The Privacy Policy sets out how CTW treats Personal Information, Business Customer Data, and Applicant Data. The Business Customer agrees that CTW can use the Business Customer Data and Applicant Data in accordance with the Privacy Policy.

11.2. The Business Customer consents to the transfer of Data to the relevant hosting locations for storage, processing and use by CTW.

12.1. Ownership Ownership of the Dashboard and Documentation is not modified or transferred by these Terms and Conditions. The Intellectual Property Rights in the Dashboard and Documentation (including all associated Source Code and all components and parts of the Dashboard) remain vested in CTW (or its licensors).

12.2. New IP

a. The New IP will be the sole and exclusive property of CTW.

b. The Business Customer irrevocably assigns to CTW all right, title, and interest in and to the New IP.

c. In the event that CTW provides new features or services based on requests or suggestions made by the Business Customer, the Business Customer acknowledges that the Intellectual Property Rights in any such new features or services (including all associated Source Code and all associated components and parts of the Dashboard) belong exclusively to CTW and the Business Customer will not be compensated for the request or suggestion.

d. In the event New IP is created by the Business Customer, the Business Customer will:

i. promptly disclose the New IP to CTW;

ii. promptly cause that New IP to be assigned to CTW; and

iii. not be compensated for the assignment of the New IP.

12.3. Prohibited Activities The Business Customer must not:

a. allow or permit any person other than Administrators to access, view or use the Dashboard (or any associated Source Code or component or part of the Dashboard), or the Services, for any purpose or for any reason;

b. allow or permit any Direct Competitor to access, view or use the Dashboard (or any associated Source Code or component or part of the Dashboard), or the Services, for any purpose or for any reason;

c. share Applicant Data without an Applicant’s consent;

d. unless otherwise expressly authorised in writing by CTW:

i. reverse engineer or decompile the Dashboard;

ii. reproduce, make error corrections to or otherwise modify or adapt the Dashboard (including to create any derivative works based on the Dashboard);

iii. challenge the validity of any Intellectual Property Rights of CTW;

iv. merge or interface any third party software (including Source Code or open source software) with the Dashboard;

v. access or permit the Dashboard to be accessed in any unauthorised way or unintended way, including via interfaces (including exposing or “passing through” a software API);

e. represent that any Courses are delivered, undertaken, assessed, or managed by the Business Customer or the Business Customer Personnel;

f. do, or permit, or omit to do any act which infringes CTW’s Intellectual Property Rights (or those of its licensors);

g. use, or permit the use of, the Dashboard or Services in a way that could infringe a third party’s Intellectual Property Rights;

h. use the Dashboard, or the Services, in any way (or otherwise do anything else) that could damage the reputation of CTW or the Dashboard;

i. enter into any agreement or understanding to do any of the acts referred to in this clause; or

j. attempt, counsel, procure or otherwise assist any person (including but not limited to a Direct Competitor) to do any of the acts referred to in this clause.

12.4. Notification of infringement claim The Business Customer must notify CTW within 48 hours of the time the Business Customer becomes aware of:

a. any actual or suspected breach or infringement of the Business Customer’s Obligations under these Terms;

b. any actual or suspected infringement of CTW’s Intellectual Property Rights by the Business Customer, Administrators, Business Customer Personnel or any third party; or

c. any actual or threatened claim by a third party that the third party’s Intellectual Property Rights have or will be infringed by any act, omission or permission by a party in connection with these Terms.

a. keep the Dashboard, Business Customer Data and Applicant Data secure;

b. prevent loss of, damage to, and unauthorised access to or use or disclosure of, any Business Customer Data and Applicant Data;

c. protect the Dashboard; and

d. prevent intrusions, viruses, trojan horses, worms, time bombs and other similar harmful software which may affect the Services or Business Customer Data, as well as vulnerabilities which may expose the Dashboard to the risk of intrusion or attack.

a. implement a risk management program that includes:

i. identifying all reasonably foreseeable internal and external risks to the Services which may impact the Services or Business Customer Data or Applicant Data; and

ii. establishing and maintaining appropriate safeguards (as determined by CTW) against the risks identified;

b. promptly respond to any security related questions made by the Business Customer when requested and provide related materials upon request;

c. notify the Business Customer promptly if CTW becomes aware of any actual or potential security breach, being any failure to achieve the matters referred to in clause 13.2(a), and make available appropriately skilled Personnel to address such breach or occurrence, including taking reasonable steps to rectify it and prevent it from recurring.

14.1. Indemnity Without limiting any other obligation or indemnity given by the Business Customer under these Terms and Conditions, the Business Customer must at all times indemnify and hold harmless the Indemnified Parties from and against any Claim or Liability incurred or suffered by any of the Indemnified Parties which is caused or contributed to by any of the following:

a. a breach by the Business Customer of its Obligations pursuant to these Terms and Conditions or any warranty, representation or guarantee given by the Business Customer under or in connection with these Terms and Conditions (whether express or implied);

b. any failure by the Business Customer or Administrators to fully comply with:

i. applicable laws (including all applicable accounting, tax, industrial relations, payroll, and employment laws); and

ii. Obligations owed to Business Customer Personnel (whether under contract, award, law or otherwise);

c. any breach or infringement of the Intellectual Property Rights of any person (including CTW) by the Business Customer, Administrators or Business Customer Personnel; or

d. any wilful, unlawful or negligent act or omission by the Business Customer, Administrators or Business Customer Personnel.

15.1. Force Majeure Events CTW will not be liable for any failure to perform its obligations under or in connection with these Terms (or any associated agreement or document) where that performance is delayed, prevented, restricted or interfered with as a result of a Force Majeure Event.

15.2. Exclusion of liability To the extent permitted by law, the Business Customer acknowledges and agrees that:

a. the Dashboard and Services are provided “as is”, the Dashboard and Services are never completely error or defect free and that CTW will not have any Liability in connection with any defects or errors in the Dashboard or Services or System Outages;

b. the use of the Dashboard and the Services is at the Business Customer’s own risk;

c. the Business Customer is responsible for determining the suitability of the Dashboard and the Services for the Business Customer’s purposes;

d. the Business Customer’s use of the Dashboard and the Services does not constitute the receipt of accounting, legal, financial, tax, payroll, industrial relations, employment or any other professional advice from CTW or its Related Entities (or their respective Personnel);

e. the Business Customer is solely responsible for obtaining its own accounting, legal, financial, tax, payroll, industrial relations, employment and other professional advice from suitably qualified professionals;

f. the Business Customer is solely responsible for (and CTW accepts no Liability or responsibility in relation to):

i. fulfilling statutory obligations or making any payment required by law that may arise in connection with any employer/employee relationship or arrangement;

ii. payment of applicable taxes in relation to any employer/employee relationship or arrangement;

iii. compliance with all applicable laws (including all applicable accounting, tax, industrial relations, payroll, employment and other laws, and other requirements relating to employee entitlements) or compliance with any Obligations owed by the Business Customer to any Business Customer Personnel (whether under contract, award, law or otherwise);

g. the Dashboard:

i. is provided “as is” without warranty of any kind;

ii. may from time to time contain features that are not finalised or are in a ‘beta’ or test phase;

iii. is not error or defect free;

iv. may become unavailable or inaccessible to the Business Customer without notice or warning for an undetermined or indefinite period of time, System Outages in relation to the Dashboard may occur and clause 8.2 does not apply;

v. will be used by the Business Customer at its own risk;

h. it is the Business Customer’s responsibility to check that storage of and access to Business Customer Data via the Dashboard will comply with laws applicable to the Business Customer (including any laws requiring the Business Customer to retain records);

i. the Business Customer is responsible for the cost of hardware, software, network upgrades and any goods and services used in connection with the Dashboard.

15.3. Without limiting the foregoing, and to the extent permitted by law, CTW does not represent or warrant that:

a. the Services or the Dashboard are suitable or fit for the proposed use by the Business Customer;

b. the Services and the Dashboard will not be affected by System Outages, suspension or downtime;

c. the Services and the Dashboard will be uninterrupted or error free;

d. the Services or the Dashboard will provide any functions or satisfy any requirements not expressly stated in these Terms.

15.4. Without limiting the foregoing and to the extent permitted by law the Business Customer represents and warrants that the Business Customer is aware of (and appropriately trained in respect of compliance with) all applicable industrial relations requirements and other laws and requirements relating to its Personnel within all relevant jurisdictions (and will ensure that rostering and payment of Personnel complies with such requirements).

15.5. To the extent permitted by law, CTW is not liable (and the Business Customer will not in any circumstances have any Claim against CTW) for or in respect of:

a. any Claim or Liability suffered or incurred by the Business Customer (or any other person) in connection with:

i. any defect, failure or non-performance of the Dashboard or Services or their design;

ii. System Outages;

iii. the Dashboard’s and the Service’s quality, merchantability or fitness for a particular purpose, or the suitability of the Dashboard for the Business Customer’s business, products or service;

iv. any acts or omissions of the Business Customer, Administrators, Business Customer Personnel or Applicants;

v. any acts or omissions of any Third Party Provider or internet service provider;

vi. any failure, error or non-performance of Third Party Platforms;

vii. the unavailability or non-performance of the internet;

viii. the security of the Dashboard, Business Customer Data, Applicant Data and any information stored on the Business Customer’s servers;

ix. any interception or corruption of Business Customer Data, Applicant Data or other information or data during any transmission over the internet or any telecommunications network or at any customer network access point;

x. any content, products and deliverables displayed or offered via or in relation to the Dashboard, Police Check applications;

xi. any loss or damage incurred by the Business Customer as a result of third party Claims;

b. any Consequential Loss of any kind, however caused, and whether arising under contract, tort (including negligence) or otherwise, (even if the Business Customer has advised CTW of their possibility), except to the extent caused by CTW’s gross negligence or wilful misconduct.

15.6. The Business Customer agrees that CTW is not liable to third parties in connection with these Terms and CTW will have no Liability for Claims made by third parties arising out of or in connection with these Terms, including on account of Claims made by any Authority whether due to the Business Customer’s non-compliance with applicable laws or otherwise.

15.7. Exclusions of warranties and representations To the extent permitted by law, all warranties and representations concerning the Services and the Dashboard (other than those expressly set out in these Terms) are excluded.

15.8. Implied terms

a. To the full extent permitted by law, any term which would otherwise be implied into these Terms is excluded.

b. In the event any statute implies terms into these Terms which cannot be lawfully excluded, such terms will apply to these Terms, save that the liability of CTW for breach of any such implied term will be limited in accordance with the immediately following limitation of liability clause below.

15.9. Limitation of liability

a. If the Business Customer is not satisfied with the Services, the Business Customer’s sole and exclusive remedy is to terminate the agreement in accordance with clause 17.

b. Irrespective of any other clause in these Terms and Conditions, to the fullest extent permitted by law, CTW’s cumulative Liability in the aggregate arising out of or in connection with this agreement (whether in contract, tort, statute or otherwise) shall in no event exceed the aggregate Subscription Fees paid by the Business Customer to CTW in the previous 3 months.

16.1. The Business Customer represents and warrants to CTW that:

a. if a corporation, the Business Customer is a corporation duly incorporated and validly existing under the laws of its jurisdiction of incorporation;

b. the Business Customer has full power, legal right and authority to enter into this agreement, and to do all acts and things and execute and deliver all other documents as are required hereunder to be done, observed or performed by it in accordance with these Terms;

c. the Business Customer has taken all necessary corporate action to authorise the creation, execution, delivery and performance of this agreement, and to observe and perform the provisions of this agreement in accordance with the Terms;

d. the Business Customer has all Authorisations required by applicable laws in order to perform the Business Customer’s Obligations under these Terms and Conditions;

e. the Business Customer and Administrators are authorised to use the Dashboard and other relevant Services;

f. the Business Customer and Administrators are authorised to use, upload and otherwise deal with Business Customer Data in relation to the Dashboard and the Services;

g. all information and data provided by the Business Customer and Administrators in connection with the Services and Dashboard is true, complete and accurate in all respects;

h. the use by CTW of third-party materials provided by the Business Customer and Administrators does not, and will not, breach any legal rights of a third party, including any Intellectual Property Rights and nothing contained in the third party materials is misleading or deceptive, or likely to mislead or deceive; and

i. the Business Customer will be responsible for obtaining all necessary Authorisations in relation to the use by CTW of third-party materials in providing the Dashboard and Services, and payment of all royalties and other fees associated with the use of such third-party materials.

17.1. Termination for cause

a. CTW may terminate this agreement immediately by written Notice to the Business Customer if the Business Customer has failed to pay the Fees in accordance with clause 6 and fees are over 30 days overdue.

b. Either party may terminate this agreement immediately by written Notice to the other party upon the occurrence of one of the following events:

i. if the other party is in breach of these Terms and Conditions and that other party has failed to remedy the breach within ten (10) Business Days of a written Notice to it from the first-mentioned party, specifying the breach and requiring it to be remedied;

ii. if the other party is in breach of these Terms and Conditions and that breach is not capable of remedy (as reasonably determined by the non-breaching party); or

iii. an Insolvency Event occurs in respect of the other party.

17.2. Termination for convenience Subject to clause 17.1, either party may terminate this agreement for convenience (and without having to give reasons) by giving the other party written Notice.

17.3. No prejudice of rights Termination shall not prejudice or affect any right or action which shall have accrued or shall thereafter accrue to either party.

17.4. Consequences of Termination

a. the Business Customer’s access to the Dashboard will terminate;

b. all monies owing to CTW under these Terms and Conditions become immediately payable and due;

c. each party must immediately return or (if requested to do so by the other party) destroy all Documentation belonging to the other party in its possession or control;

d. each party must return to the other party or (if requested by the other party) destroy, and certify the destruction of (in a statutory declaration) all confidential information belonging to the other party, and the Business Customer will not be entitled to any refund of Fees paid in advance.

18.1. Assignment The Business Customer cannot assign, novate or otherwise transfer the Business Customer’s rights or obligations under these Terms and Conditions without the prior written consent of CTW.

18.2. CTW Assignment CTW can assign, novate or otherwise transfer its rights or obligations under these Terms and Conditions without the Business Customer’s prior written consent. Business Customer Regulatory Obligations If there is/are any conflict or inconsistencies between these Terms and Conditions and the Business Customer Regulatory Obligations, these Terms and Conditions shall prevail, to the extent of such inconsistency.

18.3. Severance If a provision of these Terms and Conditions is held by a court to be illegal, void or unenforceable, the offending provision will be severed from these Terms to the extent and in the manner that best gives effect to the remaining provisions.

18.4. Governing law These Terms and Conditions and the transactions contemplated by these Terms and Conditions are governed by the law in force in the State of Queensland, Australia. The parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of the State of Queensland, and all courts competent to hear appeals from those courts.

18.5. Contra proferentem No provision of these Terms and Conditions is to be interpreted to the disadvantage of a party because that party (or its representative) drafted that provision.