These are the terms and conditions on which enableHR Ltd (NZBN: 9429 0413 75488) (“ENABLEHR”) licenses its online services and products and the Customer agree as detailed below (the Agreement):
Terms and Conditions
- 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.
- 2. Term of Agreement
- 2.1 The Agreement starts on the Commencement Date.
- 2.2 Subject to clause 4.1 and clause 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. License Fee
- 4.1 In consideration of ENABLEHR granting the License, the Customer will pay ENABLEHR the applicable Fee and other amounts in accordance with Schedule 1 and 2.
- 4.2 The Fee is calculated based on the number of Employees engaged and/or employed by the Customer as assessed on a monthly basis as detailed in Schedule 1.
- 4.3 The minimum Fee payable is based on 10 Employees.
- 4.4 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 percent.
- 4.5 Notwithstanding any limitations to the License as set out in Clause 3, ENABLEHR may increase the Fee by the CPI on the annual anniversary of the Commencement Date and on each subsequent anniversary 12 month date thereafter, or as otherwise agreed in writing between ENABLEHR and the Customer.
- 4.6 The Fee detailed in Schedule 1 (License Fee) is payable subject to the following conditions:
- (a)the Customer agrees that the Fee will be payable on a monthly basis;
- (b)the Fee is calculated based on the highest number of Employee records held in ENABLEHR for that month (the minimum Licence is payable monthly in advance and any additional Employee records for a particular month above the minimum is payable monthly in arrears); and
- (c)that all monthly Fees payable will be automatically processed through ENABLEHR’s chargify processing system which would be linked to a (current) credit card of the Customer.
- 4.7 The Fee detailed in Schedule 2 (Implementation Fee) 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.
- 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 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 on-line 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.
- 8. Assignment
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 within the 90 day period at the end of the Initial Term or within the 90 day period 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 employee / candidate records, 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
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. Definitions
In this agreement the following terms have the following meaning:
- Fee means the amounts set out in Schedule 1 and 2, as varied in accordance with Clause 4.
- Associated Entity means as defined in the Companies Act 1993.
- Commencement Date means the date when the terms and conditions of the Agreement were accepted by clicking the “I Agree” button.
- CPI means the Australian Consumer Price Index
- 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.
- Employee means any employee, contractor or volunteer of the Customer for whom a record is created and which remains activated within ENABLEHR on a monthly basis.
- Materials means all materials, excluding Customer Materials, forming part of the Services.
- 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.
- 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.
- 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.
- Technical and Admin Support Fee means those amounts set out in Schedule 2.
Licence Fee Formula (“Fee”):
- for up to 10 Employees $900 (minimum for any Licence)
- $7.50 per month per Employee for Employees up to 350
- $7.00 per month per Employee for Employees between 351 and 1000
- $6.00 per month per Employee for all Employees above 1000.
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.
||Costs (excl. GST)
|Indicative Implementation Fee
Note: Any quote provided for the Implementation Fee is an indicative cost only and may increase subject to the requirements of the Customer at the relevant time as notified by ENABLEHR.
|Configuration, Project Management & Training (if required)
||$245.00 per hour
|Product Development & Integration
||$245.00 per hour
|Technical and Admin Support Fee (as required upon instruction from Customer)
||$245.00 per hour
|Data Extraction Fee (if required)
||$245.00 per hour
|Disbursements – Travel, accommodation and any other costs are charged back at cost (if applicable)
Payment of the Implementation Fee is required to be paid up front in accordance with Clause 4.
Last updated 31/05/2017