Employment Hero Platform Terms and Conditions – 08.19
These terms were superseded on August 12, 2019.
Contents
This Employment Hero Customer Agreement is between you and Employment Hero Pty Ltd (ABN 11 160 047 709). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “Customer” or “you” means your company, and you are binding your company to this Agreement.
The terms and conditions set out in this Agreement apply to the Services (as defined below).
Subject to Section 15 below, Employment Hero reserves the right, at its sole discretion, to change, modify, add or remove portions of this Agreement at any time by providing written notice to you. Employment Hero may do so by publishing the amended Agreement to the Site. If you have registered for an account with Employment Hero, it will notify you of the change via the notification facility in your account or via email. It is your responsibility to check this Agreement periodically for changes. Your continued use of the Services following the posting of changes will mean that you accept and agree to the changes.
1. Definitions and interpretation
1.1 Definitions
Agreement means these terms and conditions.
Authorised EH Party means a third party that is either contracted or licensed by Employment Hero to receive and use Your Data, to assist Employment Hero in fulfilling its obligations under the terms of this Agreement or which otherwise provides services to you or Employment Hero in connection with the Services.
Beta Versions refers to processes or operations within the Services which are still under development and are subject to change.
Biometric Authentication refers to any form of authentication using biometric information including but not limited to, Fingerprint, facial recognition, Iris scans and voice recognition.
EH Content means human resource documentation content available within the Services, consisting of, but not limited to, workplace contracts and workplace policies.
Employment Document refers to Employment Contracts and other Human Resource related documents.
Employment Hero or EH means Employment Hero Pty Ltd (ABN 11 160 047 709).
HR System refers to human resources system which is a paperless onboarding human resources management platform.
HR System Subscriptions refers to a Paid Service and made available via a subscription.
IP Rights means intellectual property or other rights, including any copyright, trademark, patent, trade secret, moral rights, proprietary information or materials, or any other intellectual property right or proprietary or contractual right.
No-Charge Services are services which Employment Hero may offer at no charge, these include, but are not limited to free accounts, trial use, access to Beta Versions.
Mobile Device refers to the eligible device that the Employment Hero mobile application downloaded from the Apple App Store or Google Play.
Paid Services refers to any component of the Services which are otherwise restricted for public use.
Reseller refers to an authorised reseller where Employment Hero Services are obtained.
Services refer to the Site and all websites owned or operated by Employment Hero or its associated entities, Employment Hero functions, services and content, Employment Hero web application and Employment Hero mobile applications.
Site refers to the Employment Hero websites including, but not limited to, www.employmenthero.com
Subscriptions are Paid Services offered by Employment Hero on a subscription basis.
Subscription Period refers to the set period from the date when a subscription has been entered into. Unless otherwise agreed between the parties in writing, the set period is one month and will commence on the day the first employee is onboarded.
Users refer to visitors, customers and others who access the Services whether on behalf of a company (as defined in the Corporations Act 2001 (Cth)) or on their own individual behalf, but not limited to, employers themselves, individual employees, third parties contractors of before mentioned companies and individuals otherwise using the Services.
Your Data refers to any data, content, code, video, images or other materials of any type that you upload, submit or otherwise transmit to or through the Services.
1.2 Interpretation
In this Agreement, unless the context otherwise requires, the singular includes the plural and vice versa, examples are descriptive not exhaustive (and “including” and similar expressions are without limitation), another grammatical form of a defined term has a corresponding meaning, and a reference to:
- a person includes a corporation, partnership, joint venture, association, authority, trust, state or government;
- a thing (including a right) includes any part of that thing;
- a reference to a section is to it as amended or replaced from time to time;
- a party includes its executors, administrators, substitutes, successors and permitted assigns; and
- legislation or a legislative provision includes any modification or re-enactment of, or substitution for, and any subordinate legislation issued under, it.
1.3 Binding legal contract
THIS AGREEMENT CONTAINS WARRANTY AND LIABILITY DISCLAIMERS. Please read this Agreement carefully before accessing or using the Services. By using the Services, you indicate your assent to the terms of this Agreement without any modifications, additions or deletions and are entering into a binding legal contract with Employment Hero. If you do not agree to the terms set out in this Agreement you are not authorised to use the Services.
2. Accounts
2.1 Registration
You may need to register for an account/s in order to access and use some parts of the Services. Any registration information that you provide must be accurate, current and complete. You must update your information (when such information changes) so that Employment Hero may send notices, statements and other information to you by email or through your account/s.
2.2 Passwords
During the registration process you will be required to establish a password. You are responsible for safeguarding this information and any other confidential identifiers. Each account is exclusive and non-transferrable. You will immediately notify Employment Hero of any, or any suspected, unauthorised use of your account/s. You are responsible for all actions and losses arising from use of your account as a result of your failure to keep your information secure and confidential.
2.3 Notices in relation to your account
You agree that Employment Hero may provide you with notices in relation to your account, the Services or this Agreement via a notification facility within the Site, and that such notices shall constitute provision of written notice for all purposes (including but not limited to any requirement for written notice under this Agreement).
2.4 Credit card or other payment methods
You may be required, either as part of the registration process or prior to accessing parts of the Services, to provide a valid payment method and other payment information (such as your credit card or PayPal details). By providing such information, you authorise Employment Hero to debit monies via that method of payment in respect of any purchases made by you for the Services subject to the terms of this Agreement. To avoid any doubt: you will only be debited when you actually make a purchase through the Site, and entering payment details of itself will not trigger payment obligations.
2.5 Biometric authentification
Should you have access to enable biometric authentication to log on to Employment Hero mobile application using a biometric identifier registered on your Mobile Device. You are responsible for the safeguarding of your biometric identifier. You will immediately notify Employment Hero of any, or any suspected unauthorised use or loss of your biometric details. You must not activate Biometric Authentication if you have any other person’s fingerprint or facial data on your device. You are responsible for all actions and losses arising from the use of your biometric information as a result of failure to keep your information secure and confidential, including but not limited to, sharing device and biometric verification on Mobile Devices. A biometric identifier includes a fingerprint, facial data and any other means by which a Mobile Device manufacturer allows a user to authenticate their identity for the purposes of unlocking their Mobile Device (“Biometric Identifier”). Employment Hero does not collect or store this Biometric Identifier, it is stored on the user’s Mobile Device. Authentication occurs when your Mobile Device provides confirmation that the provided biometric identifier.
3. Your License to Use the Services
ANY USE OF THE SERVICES NOT SPECIFICALLY PERMITTED UNDER THIS AGREEMENT IS STRICTLY PROHIBITED
3.1 Subject to the terms of this Agreement (and your compliance with it) and your payment of any required fees, Employment Hero grants you a limited, non-exclusive, non-transferable licence to access and use the Services. Employment Hero reserves all right, title and interest not expressly granted under this licence to the fullest extent possible under applicable laws.
3.2 Where you are provided access to EH Content, you will also have a limited, non-exclusive and non-transferrable licence to reproduce the EH Content.
3.3 The licences granted above are given only with respect to the relationship between you and your employees and contractors, or the relationship between you and the persons who provide personal services to you as a business. If you wish to access or use those parts of the Services for any other purpose, including but not limited to assisting another person (including any of your associated entities) to prepare documents pertaining to a relationship between that other person and its employees or contractors, you must first purchase a licence from Employment Hero or its approved Resellers that permits that form of use. Alternatively, that other person must register to the Site and obtain its own licence to access and use those restricted parts of the Site.
3.4 You agree that you will not (unless expressly permitted by this Agreement, or with the express written consent of Employment Hero):
- decompile, reverse engineer, disassemble, rent, lease, loan, sell, sublicence without Employment Hero’s authority, or create derivative works from the Services
- use any network monitoring or discovery software to determine the site architecture, or extract information about usage, individual identities or Users from the Services
- use any software, device or manual process to monitor or copy the Services (including but not limited to the use of data mining, robots, screen scraping or other similar automated data gathering)
- modify or copy the layout of the Services, or any computer software or code contained in the Services
- in any way compromise the integrity of Employment Hero systems (including without limitation probing, scanning or testing the vulnerability of any system or network that hosts the Services)
- tamper with, reverse-engineer or hack the Services, circumvent any security or authentication measures, or attempt to gain unauthorised access to the Services, related systems, networks or data
- modify, disable or compromise the integrity or performance of the Services or related systems, network or data
- decipher any transmissions to or from the servers running the Site
- overwhelm or attempt to overwhelm Employment Hero infrastructure by imposing an unreasonably large load on the systems that consume extraordinary resources, CPUs, memory, disk space, bandwidth etc, including without limitation by: using robots, spiders, offline readers or other automated systems to send more request messages to the servers than a human could reasonably send in the same period by use of a normal browser; or by going far beyond the use parameters for the Services
- access or search any part of the Site by any means other than Employment Hero’s publicly supported interfaces
- use meta tags or any other hidden text on the Site
- misrepresent yourself, or disguise the origin of any content (including without limitation by spoofing, phishing, manipulating headers or other identifiers, impersonation or falsely implying any relationship or association with Employment Hero or any third party)
- use the Services to violate the privacy of others, including publishing or posting other people’s private and confidential information without their express permission, or collecting or gathering the personal information of others from the Services
- upload, post or in any way publish material to the Services that infringes another party’s IP Rights or legal rights to confidentiality or privacy
- use the Services or content derived from the Services to stalk, harass, bully or intimidate others
- use the Services or content derived from the Services for any illegal purpose
- use the Services in any manner that does not comply with all applicable laws of Australia, or of any other relevant jurisdiction
- upload, repost and/or frame the content of the Services to any other site or location, online service or bulletin board
- reproduce the content of the Services (including but not limited to EH Content) in any material form
- distribute the content of the Services in any material form
- transmit or retransmit the content of the Services by any medium of communication
- use any feature of the Services to send any unsolicited commercial electronic messages to other Users of the Services
- post, upload, share, submit, or otherwise provide content using the Services that:
- infringes Employment Hero’s or a third party’s (including an Authorised EH Party’s) IP Rights
- constitutes an offer for a pyramid scheme, or asks or requires any candidate to pay a fee, charge, cost or any other money whatsoever to apply for any job vacancy advertised via the Services irrespective of whether it is asked for or required in the advertisement itself or in any communication with the candidate that takes place as a result of a job advertisement posted via the Services
- is deceptive, fraudulent, illegal, obscene, defamatory, threatening, harmful, pornographic, indecent, harassing, hateful
- encourages illegal or tortious conduct or that is otherwise inappropriate
- attacks others based on their race, ethnicity, national origin, religion, sex, gender, sexual orientation, disability, or medical condition
- contains viruses, bots, worms, scripting exploits, or other similar materials
- intended to be inflammatory
- could otherwise cause damage to Employment Hero or any third party.
4. Paid Services
4.1 General
If you elect to access Paid Services, you agree to pay all fees and charges associated with those Services unless they have been specifically waived in writing by Employment Hero. Those fees and charges shall be as notified when you elect to access the Paid Services (and some are also expressly referred to in this Agreement). All such fees, including any taxes and dishonour fees as applicable, will be charged to your supplied method of payment.
4.2 Subscriptions
Paid Services may be offered by Employment Hero on a subscription basis. If you elect to enter a subscription, it will operate for a Subscription Period. Your subscription will automatically renew at the end of the Subscription Period, unless you cancel it before the end of your current Subscription Period. You may cancel your subscription by submitting a ticket here. Where that occurs, the cancellation will come into effect at the end of the Subscription Period and you will be downgraded to the free Services offered by Employment Hero, if applicable. You will not be entitled to any credits or refunds for amounts accrued or paid prior to such cancellation.
4.3 HR System Subscriptions
The HR system provided on the Site is a Paid Service and made available via a subscription.
The price of the services, subject to 5.5 below, are $6.00 Standard plan and $9.00 for the Premium plan (the “Price”).
The fees for the subscription are charged on a per employee per month basis. This fee will be calculated as follows:
- In the initial Subscription Period: Price for each employee onboarded into the HR System during the initial Subscription Period
- In each subsequent Subscription Period: Price x the number of onboarded employees with active access in the HR System as at the first day of that subsequent Subscription Period.
(Please note: if you had an active HR System account (other than a free trial) as at 30 November 2014, the fee per employee will be as per the original terms rather than $9.00. Employment Hero reserves its rights with respect to amending this fee in the future)
If you cancel your paid HR System subscription, your access to the HR System will convert to “read only” access at the end of the Subscription Period. You will not be entitled to any credits or refunds for amounts accrued or paid prior to such cancellation.
The provisions of this Section 4.3 apply to the extent of any inconsistency with Section 4.2.
4.4 Other paid Services
Paid Services may also be offered by Employment Hero on any other basis, including on an ad hoc basis. The existence and price of any such Paid Services will be disclosed to you upon confirmation of the scope of work required and prior to your purchase. Paid Services may include (without limitation):
- System Implementation – setting up employee files and data within the system, configuration of business settings and uploading existing employee documents to each employee file. (You can perform this task at no charge, and this Service is offered as an optional alternative if you do not want to undertake implementation yourself).
- Development of Template Documents – The system contains EH Content that are available for use by you. Employment Hero provides additional document uploads and amendment as a service. Further information on this service can be obtained by contacting Employment Hero. The conditions of this service is subject to change at any time based on the discretion of Employment Hero.
5. Fees
5.1 Invoice and payment timing
All fees for Paid Services (whether for subscription services or otherwise will be invoiced and debited from your payment method as follows:
- Subscriptions (HR System): During the initial Subscription Period, fees will be debited on the first day an employee is onboarded into the HR System in the Subscription Period. A single invoice will be issued at the end of the Subscription Period for all fees so debited
- In each subsequent Subscription Period: fees will be debited and invoiced on the first day of the subsequent Subscription Period
- Other paid Services: Either on the Paid Service being provided, or at the end of the month – as determined by Employment Hero in its sole discretion.
5.2 Dishonour fee
In the event that a direct debit of nominated payment method is declined for any reason while processing a fee, you will incur a dishonour fee of $50 per occasion to Employment Hero. The dishonour fee will be invoiced and debited from your payment method at the time of Employment Hero’s discretion. You agree that this dishonour fee represents the fair cost to Employment Hero of the administrative action arising for Employment Hero in the payment being declined.
5.3 GST and other Taxes
All fees and amounts appearing in this Agreement or referred to by Employment Hero (whether within the Services or otherwise) are exclusive of Goods and Services Tax, and any other applicable taxes and duties, unless expressly stated otherwise. To the extent that any such taxes or duties are payable by Employment Hero, you must pay to Employment Hero the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Employment Hero any such exemption information, and Employment Hero will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
5.4 Australian Dollar
All fees and amounts appearing in this Agreement or quoted by Employment Hero (whether within the Services or otherwise) are in Australian dollars and are exclusive of GST.
5.5 Change to fees
Employment Hero may change the pricing of fees for any Services (including adding additional Paid Services) at its sole discretion on providing at least 30 days written notice to you. Price changes for subscriptions will take effect at the start of the next Subscription Period following the date of the price change. By continuing to use the Services after the price change takes effect, you accept the new price.
6. Free Trial and No-Charge Services
6.1 No-Charge Services
Employment Hero may offer No-Charge Services including but not limited to, free accounts, trial use, and access to Beta Versions. Your use of No-Charge Services is subject to any additional terms that Employment Hero specifies (which may be amended at any time) and is only permitted for the period designated by Employment Hero. You may not use No-Charge Services for competitive analysis or similar purposes. Employment Hero may amend, suspend or terminate your right to use No-Charge Services at any time and for any reason in its sole discretion, without liability to you. You understand that any pre-release and beta products or services made available (“Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available services or products. Employment Hero makes no promises that any Beta Versions will ever be made generally available. In some circumstances, Employment Hero may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this Section 6.1. All information regarding the characteristics, features or performance of Beta Versions constitutes Employment Hero’s Confidential Information. To the maximum extent permitted by applicable law, Employment Hero disclaims all obligations or liabilities with respect to No-Charge Services, including any warranty, and indemnity obligations.
6.2 HR System Free Trial
Any free trial of the HR System shall be effective for 14 days only. In order to continue to have full access the HR System at the conclusion of the free trial period you will be required to enter into a paid subscription pursuant to Section 4.3. The fee for the subscription shall be as set out in 4.3. Fees will be invoiced and debited from your payment method on the first day of the Subscription Period (and any subsequent Subscription Period thereafter). If you do not enter a paid subscription at the conclusion of your trial period, your account will convert to “read only” access.
The provisions of this Section 6.2 apply to the extent of any inconsistency with Sections 4 or 5.
7. Reseller Orders
This Agreement applies whether you obtain the Services directly from Employment Hero or through a Reseller. If you are provided the Services through a Reseller, you must comply with this Agreement as well as any terms of use or contract imposed on you by the Reseller. Resellers are not authorised to make any promises or commitments on Employment Hero’s behalf, and Employment Hero is not bound by any obligations to you other than what it specifies in this Agreement.
8. Not Used
9. Confidentiality
9.1 You acknowledge that in the course of accessing the Services or complying with this Agreement, you may gain access to or have disclosed to you Confidential Information of Employment Hero or any other third party (including without limitation other Users of the Services or Authorised EH Parties). You hereby agree to only use Confidential Information to perform your obligations under this Agreement, or in compliance with your rights under this Agreement, and not to disclose Confidential Information to any third party without the prior written consent of that party.
9.2 Where your permission is required (in accordance with applicable privacy legislation, tax legislation or other applicable laws or policies) for the collection of personal information by Employment Hero, for the transfer of personal information outside of Australia, for the storage of records outside Australia, for the access of personal information by Employment Hero or otherwise in connection with the provision of the Services, you hereby agree that you provide such authority and permission.
9.3 Employment Hero agrees to only use Confidential Information to perform its obligations under this Agreement and to provide the Services. Employment Hero may disclose your Confidential Information to any Authorised EH Party. Employment Hero may also disclose your Confidential Information to its associated entities for the purpose of providing you with additional information about products or services.
9.4 Notwithstanding any of the above, the possibility exists that information you provide Employment Hero could be unlawfully observed by a third party while in transit over the internet or while stored on Employment Hero’s systems or the Site. Employment Hero disclaims all liability to you to the greatest extent possible pursuant to law should this occur.
9.5 “Confidential Information” means information in whatever medium concerning the business, operations, assets, liabilities, affairs, trade secrets, financial, accounting, marketing and technical information, client lists, supplier lists, pricing information, ideas, concepts, know-how, operating procedures and knowledge and other information which is designated as confidential and/or is not in the public domain.
10. Data
10.1 Your data
“Your Data” means any data, content, code, video, images or other materials of any type that you upload, submit or otherwise transmit to or through the Services. You will retain all right, title and interest in and to Your Data in the form provided to Employment Hero. Subject to the terms of this Agreement, you hereby grant to Employment Hero and each Authorised EH Party a non-exclusive, worldwide, royalty-free right to:
- collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the applicable Services to you; and
- for Services that enable you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as you direct or enable through the Service. Employment Hero may also access your account or instance in order to respond to your support requests.
10.2 Security
Employment Hero implements security procedures to help protect Your Data from security attacks. However, you understand that use of the Services necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by Employment Hero, and Employment Hero is not responsible for any of Your Data lost, altered, intercepted or stored across such networks. Employment Hero cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorised third parties will never be able to defeat Employment Hero security measures or those of its third party service providers.
10.3 Indemnity for your data
You will defend, indemnify and hold harmless Employment Hero and each Authorised EH Party from and against any loss, cost, liability or damage, including legal fees, for which Employment Hero or an Authorised EH Party becomes liable arising from or relating to any claim relating to Your Data, including but not limited to any claim brought by a third party alleging that Your Data, or your use of the Services in breach of this Agreement, infringes or misappropriates the IP Rights of a third party or violates applicable law.
10.4 Removals and suspension
Employment Hero has no obligation to monitor any content uploaded to the Services. Nonetheless, if such action is deemed necessary based on your violation of this Agreement or in response to takedown requests, Employment Hero may (at its complete discretion) remove Your Data from the Services. Employment Hero will generally alert you when Employment Hero takes such action and give you a reasonable opportunity to cure your breach, but may at its absolute discretion suspend or terminate your access pursuant to Section 15. Employment Hero shall have no liability to you for removing or deleting Your Data as described in this Section 10.4.
10.5 Deletion at end of Subscription
Employment Hero may remove or delete Your Data within a reasonable period of time after the cancellation of your Subscription Period.
11. Intellectual Property
The Services contain IP Rights owned by Employment Hero and/or its licensors and Authorised EH Parties. You agree that all ownership, right, title, intellectual property rights and other rights and interests in and to the IP Rights and the Services, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Services, and any copies thereof, belong to and remain solely the property of Employment Hero or the applicable third party or Authorised EH Party (as the case requires). This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Services or the EH Content, or any IP Rights owned by Employment Hero and/or its licensors or Authorised EH Parties, including without limitation, the Employment Hero name, pending or approved patents, logo,the produce names associated with the Services and any other trademarks or copyright used in the Services.
12. Legal Disclaimers and Limitation of Liability
12.1 The Services are provided on an “as is, as available” basis. To the maximum extent permitted by law, Employment Hero disclaims any and all express or implied warranties, guarantees or representations including but not limited to:
- the accuracy, reliability, timeliness or otherwise of any information provided with the Services;
- the merchantability, reliability or fitness for any particular purpose for any service or product contained in or referred to on the Site.
12.2 Employment Hero reserves the rights to reasonable suspend the Services provided to you for the purposes of: planned or unplanned downtime for updates and/or maintenance (if this is needed, Employment Hero will try to inform you beforehand); or for any circumstances beyond Employment Hero’s reasonable control including but not limited to, a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a licence by a government agency.
12.3 To the maximum extent permitted by law, Employment Hero does not warrant, guarantee or make any representation that:
- the Services, or the server that makes the Services available on the worldwide web are free of software viruses;
- the functions contained in any software contained within the Services will operate uninterrupted or are error-free;
- errors and defects in the Services will be corrected; or
- the Services meet the client’s requirements.
12.4 The Services contain links to external websites. Employment Hero:
- provides the link or links to external websites as a convenience to you and the existence of a link or links to external websites does not imply any endorsement by Employment Hero of them;
- is not responsible for the material contained on those external websites; and
- makes no warranties and accepts no liability in relation to material contained on those external websites.
12.5 Some of the Services (including but not limited to the Employment Hero content) includes general summaries of the law which may not deal with or be applicable to your particular circumstances. You acknowledge that the Services do not constitute legal, financial, accounting or taxation advice, and nor should it be relied upon as such by you. For the avoidance of doubt, you are responsible for compliance with the workplace laws or other laws that apply to its business.
12.6 Employment Hero gives no guarantees of the availability or accuracy of any particular job or opportunity posted on the site and will not be liable to you should an advertised role have been filled or withdrawn at any time prior to the removal of the post from the site.
12.7 Employment Hero accepts no responsibility or liability for:
- any errors in your posts or advertisements within the Services or the Site; or
- the information, accuracy or representations made in candidate resumes provided with the Services.
12.8 Neither Employment Hero or any Authorised EH Party will be liable to you, or any person associated with you including but not limited to any of your employees, potential employees, contractors, potential contractors, officers, directors, visitors or associated entities and their employees, potential employees, contractors, potential contractors, officers, directors and visitors under any circumstances for any loss of profits or any damages of any kind recognised by law (even if it has been advised of the possibility of such loss or profits or damages) which are the consequence of you:
- acting, failing to act, on any of the information contained in the Employment Hero content and/or any of the external websites; or
- using, or your failure and/or inability to use, any of the Employment Hero content and/or any of the information contained on external websites.
12.9 Neither Employment Hero or any Authorised EH Party is liable to you for:
- errors or omissions within the Services;
- delays to, interruptions of or cessation of the Services; or
- defamatory, offensive or illegal content within the Services, whether caused through negligence of Employment Hero or its employees or contractors or associated entities or an Authorised EH Party or their respective employees or contractors, or through any other cause.
12.10 Employment Hero is not liable to you for, but not limited to, errors, omissions, defamatory, offensive or illegal use of Your Data caused by third parties.
12.11 You agree to accept the full cost of any necessary repair, correction or maintenance of any of its computer software or hardware, which may be necessary in order for you to use the licence provided under this agreement, or as a consequence of you accessing the Services.
12.12 To the extent that the limitation of liability contained in this section 12 is prohibited by law, you agree that Employment Hero’s sole obligation to you for any loss, injury, claim, liability or damage of any kind resulting from your use of Services will be limited to the total value of fees (if any) paid by you to Employment Hero in the 12 months preceding the date of any loss, injury, claim, liability or damage or else $1,000 (whichever is greater).
13. Your indemnification of Employment Hero
You will indemnify and hold Employment Hero, and its associated entities, the Authorised EH Parties and their respective directors, officers, employees, agents and licensors harmless with respect to any suits or claims arising out of:
- your breach of this Agreement, including but not limited to, any infringement by you of the IP Rights of any third party; or
- any third party claims arising out of your use or misuse of the Services.
14. Publicity Rights
Employment Hero may identify you as an Employment Hero customer on the Site or in its promotional materials. Promotional materials may include references to Employment Hero partners and third parties. You may request that Employment Hero stop doing so by submitting a ticket here any time. Please note that it may take Employment Hero up to 30 days to process your request.
15. Term and Termination
15.1 This Agreement may be terminated at any time by provision of written notice to the other party, provided that Sections 9, 10, 11, 12, 13, 14, 16, 17 and 18 will survive any expiration or termination and continue in effect.
15.2 Employment Hero may also, at its sole discretion, suspend your access to the Services for any reason at any time.
15.3 If the Agreement is terminated, or your access to the Services is suspended, you agree that Employment Hero shall have no liability or responsibility to you and Employment Hero will not refund any amounts that you have already paid, to the fullest extent permitted under applicable law.
15.4 To avoid any doubt, where you terminate this Agreement (including part way through a Subscription Period), the Agreement and the subscription will terminate with immediate effect and you will not be entitled to any credits or refunds for amounts accrued or paid prior to such cancellation. You always have the option, however, to merely cancel your subscription pursuant to Section 4.2 instead rather than terminate the Agreement as a whole.
16. Dispute Resolution
16.1 In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognising their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of 60 days, then either party may commence legal proceedings.
16.2 In the event of any controversy or claim arising due to third party involvement, the parties shall consult and negotiate with each other and, recognising their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of 60 days, then either party may commence legal proceedings against each other subject to section 16.3
16.3 Employment Hero and its associated entities and the Authorised EH Parties and their, but not limited to, employees, officers, agents, licensors, and directors, shall be indemnified by you with respect to any suits or claims arising out of legal proceedings in accordance with 16.2.
17. General Provisions
17.1 Any notice under this Agreement must be given in writing. Employment Hero may provide notice to you via email or through your account. Employment Hero’s notices to you will be deemed given upon the first business day after it is sent. You may provide notice to Employment Hero by submitting a ticket here. Your notices will be deemed given upon actual receipt by Employment Hero.
17.2 Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a licence by a government agency.
17.3 You may not assign this Agreement without Employment Hero’s prior written consent. Employment Hero will not unreasonably withhold such consent if the assignee agrees to be bound by the terms and conditions of this Agreement. Employment Hero may assign its rights and obligations under this Agreement (in whole or in part) without your consent.
17.4 This Agreement and any terms and conditions you agree to on the Site OR IN A SERVICE ORDER FORM, represents the entire agreement between you and Employment Hero relating to the Services and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Services or any other subject matter covered by this Agreement. If any provision or part of a provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions or parts of provisions shall continue in full force and effect.
17.5 This Agreement may not be modified or amended by you without Employment Hero’s written agreement (which may be withheld in its complete discretion without any requirement to provide any explanation).
17.6 No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity.
17.7 The parties are independent contractors. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give one party the express or implied right, power or authority to create any duty or obligation of the other party.
18. Governing Law
This Agreement will be governed by the laws of the State of New South Wales, and any action brought arising out of this Agreement may be brought only in the State of New South Wales and you specifically consent to the jurisdiction and venue of New South Wales courts for the purposes of enforcing any provision of this Agreement.
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