These are the terms and conditions on which enableHR Pty Limited (ACN 123 231 005) (“enableHR”) is able to grant a licence (“the License”) to the Licensee to use the Services.
By using this system, the Licensee agrees to be bound by the terms and conditions set out below.
Undertakings and Obligations of the Licensee
The maximum number of employees and users under the License will be as outlined in the Invoice.
The Licensee agrees that the Intellectual Property of the Product will at all times remain with the ENABLEHR PTY LIMITED and that the Product is the exclusive property of the ENABLEHR PTY LIMITED.
ENABLEHR PTY LIMITED reserves the right to charge the Licensee a licence fee as outlined in the Invoice.
The licence fee charged may be increased annually by the greater of 5% or the Australian Consumer Price Index, effective as of 1st January each year.
Payment of the License will be due by the Licensee to ENABLEHR PTY LIMITED upon the granting of the License in accordance with the Invoice, and every 12 months thereafter.
Limitation of Liability
The Services are provided to the Licensee by the ENABLEHR PTY LIMITED on an as is available basis and the Licensee acknowledges that the ENABLEHR PTY LIMITED does not make any express warranty under this Agreement, including without limitation that the Services are or will be complete or free from errors.
To the maximum extent permitted by law, the ENABLEHR PTY LIMITED will not be liable for any loss, injury, claim, liability or damage of any kind resulting in any way from:
- any errors in or omissions from the Services;
- the unavailability or interruption to the supply of the Services;
- the Licensee’s use or misuse of the Services (regardless of whether the Licensee received any assistance from the ENABLEHR PTY LIMITED in using or misusing the Service);
- the content of the Licensee’s materials;
- loss of or damage to the Licensee’s materials;
- the Licensee’s use of any equipment in connection with the Services;
- any delay or failure in performance beyond the reasonable control of the ENABLEHR PTY LIMITED;
- any negligence of ENABLEHR PTY LIMITED or its employees, contractors or agents in connection with the Services.
For the purposes of this Agreement, the following are terminating events:
- the breach or threatened breach by either party of any of its obligations under this agreement;
- the appointment of any type of insolvency administrator in respect of the property or affairs of either party;
- the entry or proposed entry by either party into any scheme, composition or arrangement with any of its creditors;
- the permanent discontinuance of the EnableHR Pty Limited on-line services; or
- any event described in this Agreement as a terminating event.
This agreement may be terminated immediately on the happening of a terminating event at the option of the affected party. If the terminating event is one specified in clause 6.1 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.
All rights expressed to continue beyond termination of this Agreement will continue despite the terms of this clause.
Upon request by the Licensee, the ENABLEHR PTY LIMITED will forward to the Licensee all data hosted by EnableHR Pty Limited in a reasonable timeframe.
If there is a dispute between the parties then:
- the parties must discuss the dispute initially with a view to settling the dispute on an amicable basis;
- if the parties fail to reach agreement within thirty (30) days of the dispute arising the dispute must be referred to mediation;
- the parties will agree on the appointment of a competent mediator, such mediator to hold registration with the relevant professional association and have at least five (5) years’ experience in the relevant field;
- if the parties cannot agree to the appointment of a mediator within ten (10) business days of the day referred to in paragraph (b), above, the parties must ask the President of the Law Society of New South Wales to nominate a suitably experienced and qualified person;
- the parties must co-operate to the extent necessary to enable the mediator to settle the dispute within twenty-eight (28) days of appointment;
- any mediation process between the parties will be conducted by teleconference at a mutually convenient time;
- the determination of a mediator or any agreement reached by the parties as a result of the mediation will be binding upon the parties.
Each party will bear its own costs in relation to the mediation of any dispute pursuant to this clause.
Notwithstanding the terms of this clause, either party may elect to proceed to mediation prior to expiration of the thirty (30) day period by serving a notice on the other party of their intention so to proceed.
Each party must bear and is responsible for its own costs costs in connection with the preparation, execution, completion and carrying into effect of this Agreement.
- is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement; and
supersedes any prior agreement or understanding on anything connected with that subject matter.
- Each party has entered into this Agreement without relying on any representation by any other party or any person purporting to represent that party.
Part or all of any clause of this Agreement that is illegal or unenforceable will be severed from this Agreement and will not affect the continued operation of the remaining provisions of this Agreement.
EnableHR Pty Limited may assign the benefits of this Agreement to an Associated Entity.
The failure of any party at any time to insist on performance of any provision of this Agreement is not a waiver of its right at any later time to insist on performance of that or any other provision of this Agreement.
A party notifying or giving notice under this Agreement must notify:
- in writing (by pre-paid post), facsimile or electronic communication (subject to satisfactory evidence of receipt of such facsimile or electronic communication); and
- addressed to the details of the recipient advised by the other party.
A notice given in accordance with clause 13.1 will be deemed received:
- if sent by pre-paid post, five (5) days after the date of posting; and
- if sent by facsimile or electronic communication then at the time that such a transmission receipt is received.
This Agreement is governed by the laws of the State of New South Wales and the Commonwealth of Australia to the exclusion of any other laws and the parties submit to the exclusive jurisdiction of the Courts of New South Wales and the Commonwealth of Australia in relation to this Agreement.
Definitions and Interpretation
In this Agreement unless the context requires otherwise:
- Associated Entity means as defined in the Corporations Act 2001;
- Confidential Information means all confidential information disclosed by that party to the other party for the purposes of this Agreement;
- Intellectual Property means copyright, all rights conferred under statute, common law or equity in relation to inventions (including patents), registered and unregistered trade marks, registered and unregistered designs, domain names, confidential information and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields;
- Invoice means the invoice, in either electronic, paper or other form, issues by EnableHR Pty Limited to the Licensee and payable by the Licensee to EnableHR Pty Limited, detailing the costs associated with licensing of the Services by the Licensee from EnableHR Pty Limited and the relative entitlements of the Licensee under the terms of the License.
- Licensee means the business for which whose benefit the License of the Product has been granted;
- Product means enableHR as owned by ENABLEHR PTY LIMITED and includes the Services;
- Services means the ENABLEHR PTY LIMITED services which the Licensee elects to use as set out in the Agreement and Invoice;
In this Agreement, unless the context otherwise requires:
- headings are for convenience only and do not affect the interpretation of this Agreement;
- words importing the singular include the plural and vice versa;
- words importing a gender include any gender;
- cognate or derivative parts of speech and grammatical forms of a word or phrase which are defined in this Agreement have a corresponding meaning;
an expression importing a natural person includes any Licensee, partnership, joint venture, association, corporation or other body corporate and vice versa;
- a reference to a party to a document includes that party’s successors and permitted assigns;
- a reference to a statute, regulation, proclamation, ordinance or by-laws varying, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute; and
- a reference to a document or agreement includes all amendments or supplements to, or replacements or notations of, that document or agreement.