License Agreement.

To read the T&Cs applicable to customers who signed up pre 1^st July 2022: Click here

 

These are the terms and conditions on which enableHR Pty Limited (NZBN: 9429 0413 75488) (“enableHR”) licenses its online services and products and the Customer agrees as detailed below (the Agreement):

 

• 1.  Terms of License

• 1.1    By clicking on the “I Agree” button, the Customer agrees to be bound by the terms and conditions of this Agreement.
• 1.2   The Customer cannot make any changes to this Agreement without first obtaining the written consent of enableHR.
• 1.3   The Customer must ensure that any person that the Customer allows to use the Services and Materials complies with this Agreement as if they were the Customer.
• 1.4   EnableHR reserves the right to vary the Agreement from time to time by notice in writing. By continuing to use and access the Services following such changes, you agree to be bound by any variation made by us.

• 2.   Term of Agreement

• 2.1   The Agreement starts on the Commencement Date.

• 2.2   Subject to clauses 4 and 9, the Agreement will continue for the Initial Term followed by successive 12-month periods.

• 3.   License of the Services

• 3.1   Subject to any supplementary terms agreed in writing, enableHR grants the Customer a license to use the enableHR Services and enableHR Materials on the terms of this Agreement.

• 3.2  All Intellectual Property Rights in the Services and the Materials (in both print and machine-readable forms) belong to enableHR or enableHR’s third party suppliers. enableHR will update the enableHR Material as required from time to time to meet the relevant legislation.

• 3.3  In entering into this Agreement and using the Services and Materials, the Customer does not acquire any ownership of copyright or other Intellectual Property Rights or proprietary interests in the Services or Materials and they at all times remain the property of enableHR.

• 3.4  Except as provided in this Agreement, the Customer may not use the Services or Materials retrieved from the on-line Services in any manner that infringes the copyright or proprietary interests of enableHR.

• 4.   Applicable Fee

• 4.1    No individual or organisation may use the Services and Materials without entering into a License Agreement and paying the Applicable Fee.

• 4.2   In consideration of enableHR granting the License, the Customer will pay enableHR the Applicable Fee and other amounts in accordance with Schedules 1 and 2.

• 4.3   The Licence Fee is calculated based on the number of Workers engaged and/or employed by the Customer as assessed on a monthly basis as detailed in Schedule 1.

• 4.4   The minimum Licence Fee payable is based on 15 Workers.

• 4.5   If any payment remains outstanding for more than 14 days from the due payment date, enableHR may suspend its remaining obligations under this Agreement, including suspension of the Customer’s access to enableHR and in addition may charge interest on any outstanding amount at the rate of the ninety-day bank bill plus 3 per cent.

• 4.6   Notwithstanding any limitations to the License as set out in Clause 3, from the first anniversary of the Commencement Date, enableHR may once per year increase the Fee by 5% or the CPI (whichever is higher).

• 4.7   The Licence Fee detailed in Schedule 1 is payable subject to the following conditions:

  • a)     the Customer agrees that the Licence Fee will be payable on a monthly basis;

  • b)     the Licence Fee is calculated based on the highest number of Workers held in enableHR for that month (the minimum Licence Fee is payable monthly in advance and any additional Workers for a particular month above the minimum is payable monthly in arrears); and

  • c)     that all monthly Licence Fees payable will be automatically processed through enableHR’s Chargify processing system which would be linked to a (current) credit card of the Customer.

• 4.8   The optional Implementation Fee detailed in Schedule 2 is payable by the Customer on presentation of an invoice from enableHR as an upfront payment and in advance of the Implementation services being provided.

• 5.   Confidentiality

• 5.1    Information that is disclosed by one party to the other party, and that is marked “confidential”, or which under the circumstances the receiving party ought reasonably to know that the disclosing party treats as confidential information (including this Agreement and all Customer Materials), will be treated as confidential by the receiving party. The receiving party will not disclose to a third party such information or use such information other than for the purposes for which it was provided, without the written consent of the other party. The foregoing limitations do not apply to the extent such information is:

  • a)     or subsequently becomes publicly available other than through a breach of these limitations:

  • b)     already known to the receiving party at the time of disclosure;

  • c)     developed by the receiving party independent of such information; or

  • d)     rightfully received from a third party without restrictions on disclosure or use.

• 5.2   The Customer authorises enableHR and its authorised personnel to access and log into their account/s in order to give effect to its promises under this Agreement, which includes, but may not be limited to, carrying out technical work, undertaking troubleshooting, completing testing and activating approved configuration.

• 6.   enableHR Warranties and Service Levels

• 6.1   enableHR warrants that the Services will:

  • a)     be performed with due care, skill and diligence;

  • b)     be fit for the purposes of which these type of Services are commonly bought;

  • c)     meet the service levels outlined in 6.2 below; and

  • d)     comply with all applicable laws, regulations, standards, or other legal requirements concerning safety and quality.

• 6.2   enableHR undertakes to provide the following service levels to the Customer:

  • a)     99.5% Service availability, subject to events resulting in unavailability which are outside the reasonable control of enableHR;

  • b)     availability of technical support to the Customer within business hours (Australian eastern seaboard time); and

  • c)     enableHR’s best endeavours to respond to a technical support request within 4 business hours or otherwise within 24 hours of receipt of the request.

• 7.   Limitation of Liability

• 7.1   The Services and Materials are provided on an “as is available” basis and enableHR makes no express warranty under this Agreement, including without limitation that the Services and Materials are or will be complete or free from errors.

• 7.2   Data loss is an unavoidable risk when using any technology. The Customer is responsible for maintaining copies of critical data that has been entered into the enableHR account.

• 7.3   To the maximum extent permitted by law, enableHR will not be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from:

  • a)     any errors in or omissions from the Services or any Materials beyond the reasonable control of enableHR;

  • b)     the unavailability or interruption to the supply of the Services;

  • c)     the Customer’s use or misuse of the Services or Materials (regardless of whether the Customer received any assistance from enableHR in using or misusing the Service);

  • d)     the content of the Customer’s Materials;

  • e)     loss of or damage to the Customer’s Materials;

  • f)      the Customer’s use of any equipment in connection with the on-line Services;

  • g)     any delay or failure in performance beyond the reasonable control of enableHR.

• 7.4   Without limiting clauses 7.1-7.3 above, EnableHR’s total aggregate liability to the Customer in connection with the Agreement for any loss in any year is limited to the total Fees which are paid or due in that year.

• 8.   Assignment

• 8.1   enableHR may assign the benefits of this Agreement to an Associated Entity.

• 9.   Termination

• 9.1   For the purposes of this Agreement, the following are terminating events:

  • a)     a breach by either party of any of fundamental or essential term of this Agreement (including but not limited to clause 4);

  • b)     the appointment of any type of insolvency administrator in respect of the property or affairs of either party;

  • c)     the entry or proposed entry by either party into any scheme, composition or arrangement with any of its creditors;

  • d)     the permanent discontinuance of the enableHR’s Services; or

  • e)     any event described in this Agreement as a terminating event. 

• 9.2   The License may be terminated immediately on the happening of a terminating event at the option of the affected party.

• 9.3   If the terminating event is one detailed in clause 9.1 the affected party will give to the other party notice of the event and require the breach to be remedied (if possible).  If the breach is not capable of remedy or, if the breach is capable of remedy but is not remedied (as the case may be) within 14 days of such notice, the Licence may be terminated by the affected party.

• 9.4   Notwithstanding clause 9.1, either party may terminate the Agreement by providing a minimum of 90 days’ notice prior to the end of the Initial Term or by providing a minimum of 90 days’ notice prior to the end of any subsequent anniversary of the Commencement Date of the Agreement in writing.

• 9.5   Within a reasonable period of termination, but no later than 60 days from termination of the license, and subject to the Customer having paid all other outstanding Fees and amounts owed under this Agreement to enableHR in full, enableHR will return to the Customer all materials hosted on the enableHR database, including wWorkers, documents, notes and workflows, tailored policies, contracts, letters and forms, belonging to the Customer.  To the extent possible, such materials will be in a form capable of importation into an alternative system.

• 9.6   The Customer agrees to pay enableHR a Data Extraction Fee in the circumstances of clause 9.5.

• 9.7   All rights expressed to continue beyond termination of this Agreement will continue despite the terms of this clause.

• 10.   Counterparts

• 10.1   This Agreement may be executed in any number of counterparts and all those counterparts taken together are regarded as one instrument.

• 11.   Governing Law and Jurisdiction

• 11.1   This Agreement is governed by the law of New Zealand.

• 11.2   Each party irrevocably and unconditionally submits to the non‑exclusive jurisdiction of the Courts of New Zealand.

• 12.   Use of our API and Other Integration Services

• 12.1   The Customer acknowledges and agrees that:

  • a)     the Customer is solely responsible for all information (Including Personal Information) entered and stored within the Customer’s enableHR account/s as part of the Customer license; and

  • b)     where the Customer gives enableHR instructions to process and share Personal Information that the Customer has entered and stored in the Customer’s enableHR account/s, including but not limited to sharing such information through our API with the Customer’s nominated payroll provider, that the Customer is the discloser of that information and the role of enableHR is limited to facilitating that disclosure on the Customer behalf.

• 12.2   The Customer warrants and represents that:

  • a)     the Customer will comply, and will ensure the Customer instructions for the processing and sharing of Personal Information will comply with Privacy Laws;

  • b)     the Customer is authorised by the relevant data subjects, or is otherwise permitted pursuant to Privacy Laws, to disclose Personal Information including by the permitted use of enableHR;

  • c)     the Customer will, where necessary, and in accordance with Privacy Laws, obtain all necessary consents and rights and provide all necessary information and notices to data subjects in order for:

    •         i.   the Customer to disclose Personal Information to enableHR; and

    •         ii.    enableHR to process and share Personal Information for the purpose of the services enableHR delivers to the Customer and in accordance with Privacy Laws.

  • d)     the Customer instructions to enableHR relating to processing of Personal Information, will not breach of Privacy Laws.

• 13.   Definitions

• In this agreement the following terms have the following meaning: 

  • Associated Entity means as defined in the Corporations Act 2001.

  • Commencement Date means the date when the terms and conditions of the Agreement were accepted by clicking the “I Agree” button.

  • CPI means the Consumer Price Index, as published by the Reserve Bank of New Zealand.

  • Customer means the business that agrees to the terms of this Agreement in accordance with clause 1.1.

  • Customer Materials means all materials supplied by the Customer to form part of the Services, including the addition, amendment, customisation or tailoring of any template, form, agreement, supporting documentation and associated documents compiled by the Customer, or by enableHR on behalf of the Customer.

  • Data Extraction Fee means the cost quoted by enableHR at the relevant time to extract the Customer’s data from the system upon request by the Customer.

  • Applicable Fee means the amounts set out in Schedule 1 and 2, as varied in accordance with Clause 4.

  • Implementation Fee means additional costs incurred in the setting up of the system to the specifications required by the Customer as set out Schedule 2.

  • Initial Term means from the Commencement Date for the period of 12 months.

  • Intellectual Property means any intellectual or industrial property rights, including registered or unregistered trademarks, patents, designs, or copyright including copyright in and to all enableHR products or Services, templates, forms, agreements, reports and associated documents.

  • License Fee means the amounts set out in Schedule 1, including any monthly Top Up for additional workers.

  • Materials means all materials, excluding Customer Materials, forming part of the Services.

  • Services means the use of the enableHR software including the online hosting, creation, storage, recall and management of workplace documentation and human resources processes through the standard web-based application “enableHR “ software product.

  • Worker means any current (not terminated or deleted) employee, contractor or volunteer of the Customer for whom a record is created, and which remains activated within enableHR on a monthly basis. Candidates are not considered Workers.

 

SCHEDULE 1

 

• 1.   Workers are charged $8.27 per worker per month, with a minimum of 15 workers (Licence Fee Formula).

• 2.   The Customer might have received exceptional discounts that apply to the above Licence Fee Formula. 

• 3.   The License fee is payable on a monthly basis in accordance with Clause 4. All license Fees will be renewed and increased annually in accordance with the terms of the Agreement.

 

SCHEDULE 2

The table below represents the optional Implementation Fee on the commencement date. enableHR reserves the right to change the unit price of Additional Services at any time and without notice.

Type of Additional Service	Costs (excl. GST)
Product Development work, including QA & Deployment	$345.00 per hour
Non-Development work, such as but not limited to  –        Account / module set up; –        implementation; –        configuration; –        customization;  –        project management; –        training; and –        any other no-development work.	$295.00 per hour
Data Extraction Fee	$295 per hour with a minimum of $5,000
Disbursements – Travel, accommodation, and any other costs	At cost

The following rules apply to any Implementation Fee.

 

–        Payments – Payments of Implementation Fee are required in full and upfront, in accordance with Clause 4.

 

–        Length of Projects – Projects are not permitted to extend beyond 6 months, except under exceptional circumstances agreed by both parties. All requests require prior authorisation from enableHR.  If approved, an extension of 2 months will be applied together with an up-front fee for this additional time period. If the project is not complete within this period, the project will close, and all remaining hours will be forfeited.

 

–        ‘On-Hold’ Projects – Projects are not permitted to be placed on hold, except under exceptional circumstances. All requests require prior authorisation from enableHR. If approved, an up-front fee will be applied for each week the project is scheduled to be on hold.

 

–        Allocation and Usage of Hours – Hours agreed to as part of the Agreement are not transferable and cannot be allocated to any work outside of the Scope of Implementation Project as outlined above. Any such non included work is not part of this Agreement and will require a separate Quote and Statement of work. Hours of the Implementation Project that are unused after the project has closed will be forfeited.

 

–        Extra Hours – Should the execution of the Implementation Project exceed the Indicative Number of Hours above by more than 10%, the Customer agrees to pay enableHR another $295 (non-development work) or $345 (development & integration work), plus GST, for every additional hour needed to complete the scope of work.

 

–        Change of Scope – As part of the implementation project, a rigorous scoping and design process is undertaken prior to the technical configuration.  Requests for change during the testing phase should be minimal to none.  If there are requests to fundamentally change what has already been configured, the additional time taken by enableHR’s Project Manager to undertake this further change will be charged.

 

–        Change in Client’s Project Managers – Where there is a change in the Customer’s Project Manager, the onus is upon the Customer to provide a comprehensive handover of the project and upskill the member to ensure that there is sufficient technical understanding of enableHR’s functionality, the configuration process and project management approach.  Any additional time taken by enableHR’s Project Manager to undertake this on behalf of the client will be charged.

 

– – – End of Agreement – – –

Last Updated: 2022-07-1