Prosple Partner General Terms

Prosple has developed a unique website platform for job board and careers advice functionality (Prosple Platform). Client wishes to receive, and Prosple wishes to provide, a white-labelled version of the Prosple Platform which incorporates Client Style Elements (the Platform) for use on Client’s website, subject to Client’s payment of Fees to Prosple.

These Terms of Service (consisting of the Commercial Terms and the General Terms) (Terms) are between Prosple Pty Ltd (ABN 43 168 218 782) (Prosple) and the user, individual or business accessing or using the Platform (Client) and set out the terms and conditions that govern any use of or access to the Platform by the Client.

By accessing or using the Platform and related materials and services Client agrees to be bound by these Terms and warrants that it has the power and authority to enter into, be bound by, and deliver and perform obligations under, these Terms.

If Client does not agree to these Terms it cannot access or use the Platform, or any other materials or services made available to it in conjunction with the Platform, and Client must immediately cease accessing and using the Platform or related materials or services.

1 Term and Access to Platform
(a) These Terms commence on the date Client first uses or is provided with access to the Platform and shall continue until terminated in accordance with these Terms (Term).
(b) The Commercial Terms will outline the Fees and payment terms for access to the Platform. The Commercial Terms will form part of, and be subject to, these Terms.

2 Provision of Platform and Restrictions on Use
(a) Subject to the provisions of these Terms, Prosple grants Client a non-exclusive, limited, non-transferable, non-sublicensable, licence for the Term to display the Prosple Platform incorporating Client Style Elements on their domain and website.
(b) Client must not, and must not permit any third party to, without Prosple’s prior written approval:
(i) modify, adapt or amend the Platform;
(ii) disassemble, decompile, or reverse engineer all or any parts of the computer programs or source code which comprise the Platform (or attempt to do so); or
(iii) sub-licence, rent, sell, lease, distribute or otherwise transfer the Platform or any part of it except as permitted under these Terms.
(c) Prosple is responsible for maintaining control over and access rights to the Platform, and for uploading and updating any Content on the Platform. Unless otherwise agreed in writing, Prosple will not be required to include any Content requested by Client on the Platform or make any modifications to the Content or the Platform.
(d) Nothing in these Terms limits Prosple’s right to licence the Prosple Platform to third parties (without using Client Style Elements).

3 Upgrades and Enhancements
(a) From time to time Prosple may introduce adaptations, upgrades or enhancements to the Platform, or make changes to the tools and features of any part of the Platform including the availability of such tools and features or features dependent upon other services or software.
(b) Where such adaptations, upgrades or enhancements are applicable to the Platform, Prosple shall make them available to Client subject to the payment of the applicable Fees (if any), notified to Client at that time, provided that if Client does not wish to accept an upgrade or enhancement which would involve the payment of additional Fees, it may, within thirty (30) days of receiving notice of such upgrade or enhancement, terminate these Terms on written notice to Prosple.
(c) Any adaptations, upgrades or enhancements to the Platform, and any new features or tools that are added to it will be owned by, and will vest in Prosple upon creation.

4 Additional Services
(a) Prosple will provide support and hosting services in connection with the Platform in accordance with the provisions of these Terms and subject to the Fees (if any) set out in the Commercial Terms.
(b) Client may, from time to time, request that Prosple carry out customisation services or other services in connection with the Platform. Prosple may accept or reject such requests in its sole discretion. The scope, terms of and fees for, such services must be agreed in writing between the parties.

5 Intellectual Property
(a) Client acknowledges that Prosple owns or licences all intellectual property rights in any Content and the Prosple Platform, and that these Terms do not transfer ownership of any intellectual property rights of Prosple or any third party.
(b) Client must notify Prosple immediately if it becomes aware of any:
(i) unauthorised access to or use of the Platform or any Content; or
(ii) other infringement of Prosple’s intellectual property rights.
(c) Prosple acknowledges that Client owns or licenses all intellectual property rights in Client Style Elements, and that these Terms do not transfer ownership of any intellectual property rights of Client or any third party.
(d) Client grants to Prosple a royalty-free, non-exclusive licence for the Term to use and display Client Style Elements on the Platform and any portal or webpages in connection with the Platform.
(e) Prosple acknowledges that Client owns or licenses all intellectual property rights in Client Contributed Content, and that this Agreement does not transfer ownership of any intellectual property rights of Client or any third party.
(f) Client grants to Prosple a royalty-free, non-exclusive licence for the Term to use, display and modify Client Contributed Content on the Platform and any portal or webpages in connection with the Platform.

6 Fees and Payments
(a) Client must pay Prosple the Fees (if any), in accordance with the Commercial Terms.
(b) Prosple may revise the Fees at any time on 90 days’ written notice to Client, provided that if such revision would result in Client paying additional Fees, Client may, on written notice to Prosple terminate these Terms with effect from the end of such 90 day notice period.

(a) If GST is payable on a supply made under or in connection with these Terms, the party providing the consideration for that supply must pay as additional consideration an amount equal to the amount of GST payable on that supply. Any amount of GST is payable at the same time as the payment for the Taxable Supply to which it relates.
(b) Unless otherwise stated, all amounts referred to in these Terms are stated on a GST exclusive basis.
(c) If an adjustment event occurs in relation to a supply made under or in connection with these Terms, the GST payable on that supply will be recalculated to reflect that adjustment and an appropriate payment will be made between the parties.
(d) If GST is applicable, a party, in providing an invoice under these Terms shall provide a proper Tax Invoice.
(e) Terms which have a defined meaning in the GST Law shall have that meaning in these Terms.

8 Confidential Information
(a) Client acknowledges that information relating to or embodied in the Platform is confidential to Prosple and that any disclosure thereof would cause damage to Prosple. Subject to clause 8(b) each party must not use or disclose the Confidential Information of the other party.
(b) Each party:
(i) may use Confidential Information of the other party solely for the purposes of exercising its rights and performing its obligations under these Terms;
(ii) except as permitted under subclause (iii), must keep, and take all reasonable steps to ensure its Personnel keep, confidential all Confidential Information of the other party; and
(iii) may only disclose the other party’s Confidential Information:
(A) to its Personnel to the extent they have a need to know such Confidential Information and provided they are bound by obligations of confidentiality;
(B) to its professional advisors who have entered into a confidentiality agreement including provisions substantially similar to this clause 8; or
(C) as required by Law, a court order, stock exchange regulations or professional and industry standards organisations.
(c) The restrictions outlined in clause 8(b) do not apply to information which:
(i) becomes public knowledge during the Term; or
(ii) a party becomes aware of from a third person,
in each case, provided there has been no breach of any obligation of confidence by the party wishing to use or disclose the information or, to that party’s knowledge, any third party.

9 Privacy
(a) During and after the Term, Client must comply with the Privacy Act and any Privacy Law by which Client is bound and must:
(i) take all reasonable steps to ensure that Personal Information is protected against misuse, loss and unauthorised use, access or disclosure (including to unauthorised third parties);
(ii) not do anything which may cause Prosple to breach any Privacy Law and provide all reasonably requested assistance for Prosple to comply with Privacy Law; and
(iii) if requested by Prosple, co-operate with Prosple to resolve any actual or suspected data breach, or complaint or investigation under any Privacy Law.
(b) Client acknowledges that Prosple may provide the Platform and any other services under these Terms from locations and/or using contractors located overseas and Client agrees to provide all information and notifications and obtain all necessary consents relevant to its use of the Platform.
(c) If Prosple detects a security breach that affects or compromises the service provided to Client, Prosple shall without undue delay and, where feasible, not later than 72 hours after having become aware of it, notify Client of the security breach. Where the notification to Client is not made within 72 hours, it shall be accompanied by reasons for the delay.

10 Warranties

Each Party warrants that it:
(a) has the authority to enter into and perform it obligations under these Terms and that these Terms are a legal, valid and binding agreement; and
(b) will comply at all times with applicable Laws.

11 Content
(a) Client acknowledges that Content on the Platform may incorporate open source software or other third party content, and that while Prosple will use commercially reasonable endeavours to ensure that Content is accurate, complete and reliable, Prosple is not responsible for the accuracy, quality, integrity or reliability of any Content.
(b) To the extent permitted by Law (including the Australian Consumer Law if applicable), Prosple does not give any representation or warranty as to the reliability, accuracy or completeness of any Content or the Platform, including open source software, and Prosple will have no responsibility or liability to Client or any other person arising from or in connection with any error, defect or inaccuracy in any Content or the Platform.

12 Disclaimer

To the extent permitted by Law (including the Australian Consumer Law if applicable):
(a) the Platform, Content and any other products or services provided by Prosple under these Terms are provided “as is” without warranty or guarantee; and
(b) Prosple and each of its third party suppliers expressly disclaim any and all warranties, guarantees and representations of any kind, including as to:
(i) the quality, accuracy, reliability, completeness or timeliness of the Platform, Content or any services provided by Prosple, non-infringement, or fitness for a particular purpose;
(ii) continuity of supply, or use free from interruption, errors, viruses or harmful components;
(iii) errors or defects being corrected; and
(iv) use or operation in combination with any other hardware, software or system.

13 Indemnities
Client shall indemnify Prosple, its affiliates and their Personnel (the Prosple Indemnified Parties) from and against any Loss arising out of or in connection with:
(a) any breach by Client of clauses 2, 5, 8 or 9; or
(b) a claim that the Client Style Elements infringe any third party intellectual property rights.

14 Limitation of Liability
(a) To the extent permitted by Law, (including the Australian Consumer Law if applicable):
(i) subject to clause 14(b), each Party’s aggregate liability for any Loss arising under these Terms is limited to the greater of:
(A) $20,000; and
(B) Fees paid or payable by Client in the 12 months prior to the event giving rise to the Loss.
The limitation of liability under this clause 14(a)(i) is cumulative and not per incident or claim;
(ii) Prosple will not be liable for any Consequential Loss;
(iii) Prosple will not be liable to Client or any third party for any Loss resulting from:
(A) termination of these Terms for any reason;
(B) any changes made, or updates, to the Platform;
(C) the transmission of viruses;
(D) Client’s use of, or inability to use, or reliance on the Platform or Content, including where the Platform or Content is inaccurate, incomplete or not up-to-date; or
(E) any delays, interruptions, service failures and other problems inherent in use of the internet and electronic communications or other systems outside the reasonable control of Prosple.
(iv) if the consumer guarantees under the Australian Consumer Law apply, to the extent that the goods or services provided under these Terms are goods or services other than goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption, Prosple’s liability for failure to comply with a consumer guarantee is limited to (at Prosple’s election):
(A) for goods: the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
(B) for services: the supplying of the services again, or the payment of the cost of having the services supplied again.
(b) Clauses 14(a)(i) and 14(a)(ii) do not apply to, and shall not limit, any party’s liability for death or personal injury caused by that party or its Personnel or for fraud.

15 Termination
(a) Either party may terminate these Terms on ninety (90) days’ written notice to the other party.
(b) Client may terminate these Terms in accordance with clauses 3(b) and 6(b).
(c) Prosple may immediately terminate these Terms or suspend access to the Platform on written notice to Client if:
(i) Client breaches clause 2, 5, 8 or 9;
(ii) Client breaches any other provision of these Terms and does not rectify such breach within 20 days after written notice of such breach;
(iii) Client undergoes a change in control of more than half the issued voting shares in Client, and Prosple considers that such a change in control will be detrimental to Prosple’s interests; or
(iv) the liability of Client for Loss arising under these Terms exceeds the limit under clause 14(a)(i).
(d) On expiration or termination of these Terms for any reason the rights granted to Client in respect of the Platform terminate and:
(i) Prosple will cease providing, and Client must (and must ensure its Personnel) immediately stop using, the Platform and any other Content or services; and
(ii) each party must, at the other party’s election, return or destroy all copies of the other party’s Confidential Information in its possession or control.
(e) Termination or expiry of these Terms shall not relieve the parties of any accrued rights or liability (including with respect to outstanding or accrued Fees). Rights and obligations which are intended or by their nature survive termination will still continue to have effect, including clauses 5, 8, 9, 10, 12, 13, 14, 15(d), 16, 18 and this clause 15(e).

16 Publicity
Client grants Prosple a royalty-free, non-exclusive licence to use and display Client’s logo and other Client Style Elements on Prosple’s website or other marketing materials to promote the Prosple Platform.

17 Notices
(a) A party giving notice under these Terms must do so in English, in writing and addressed and delivered to the other party at the address set out in the Commercial Terms (or in the case of notices sent to Client, to the email address associated with Client’s account), as may be updated from time to time by written notice.
(b) A notice given under this clause is taken to be received:
(i) if hand delivered, on delivery;
(ii) if sent by prepaid post, 3 days after the date of posting;
(iii) if sent by email, at the time of sending the email.

18 General
(a) Client must not sublicense or assign these Terms or its rights arising out of these Terms without Prosple’s prior written consent. Prosple may assign or subcontract all or part of these Terms to any other party with the Client’s prior written consent (not to be unreasonably withheld).
(b) To the extent Prosple is precluded from performing under these Terms by any event or circumstance beyond its control, Prosple shall be excused from performance (and associated liability) for the duration of such event or circumstance.
(c) Nothing in these Terms gives a party any right to bind the other party in contract or otherwise at law, or hold itself out as a representative, partner, agent or employee of the other party.
(d) These Terms (including, for the avoidance of doubt, the Commercial Terms) contain the entire agreement between the parties with respect to its subject matter. Client acknowledges and agrees that these Terms will prevail over and supplant any separate terms provided by Client.
(e) A failure or delay in exercising any right or remedy under these Terms does not operate as a waiver. A single or partial exercise of a waiver does not preclude any other further exercise of that right, power or remedy. A waiver is not valid or binding unless made in writing.
(f) Any provision of these Terms that is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of these Terms nor affect the validity or enforceability of that provision in any other jurisdiction.
(g) These Terms are governed by the laws of New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of courts with jurisdiction there, and waives any right to object to the venue on any ground.

19 Definitions and Interpretation

19.1 Definitions
The following definitions apply unless the context requires otherwise:

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Client Contributed Content means any articles, videos, images or other content which has been developed by Client independently of Prosple and contributed to the Platform.

Client Style Elements means the navigational elements, trade names, trademarks, and/or other visual representations, including logos, designs, symbols and images, or other indicia of ownership owned or used by Client.

Commercial Terms means the commercial terms which set out applicable Fees and payment terms, that are provided under these Terms, or as otherwise notified to the Client pursuant to clause 6(b).

Confidential Information of a party means all confidential or proprietary information relating to that party, its suppliers or customers, or an affiliate from time to time, of which the other party becomes aware, before or after the date of these Terms, which is either marked as confidential or which a reasonable person would understand to be confidential. Prosple’s Confidential Information includes the design, specification and content of the Platform including its source code and the terms of this Agreement.
Consequential Loss means any loss not arising naturally (that is according to the usual course of things) from the relevant breach, which may include loss of profits, loss of income or revenue, loss of data, loss of or damage to reputation or goodwill, and loss of business opportunities.

Content means any and all data or other material input, entered onto or added to the Platform.

Fees means all amounts payable by Client to Prosple under these Terms as set out in the Commercial Terms.

GST means any goods and services tax imposed by the GST Law.

GST Law means the A New Tax System (Goods and Services Tax) Act 1999, and any associated legislation and regulations to the extent they relate to GST.

Laws means all applicable laws including rules of common law, principles of equity, statutes, regulations, orders, rules, subordinate legislation or other document enforceable under any statute, regulation, rule or subordinate legislation applicable to the Platform or the parties’ rights and obligations under these Terms in force from time to time.

Loss means any claim, loss, liability, cost or expense (including legal expenses on a full indemnity basis).

Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion, which is accessed or made available to a party as a consequence of, or otherwise in connection with, these Terms.

Personnel means in respect of a person any director, officer, employee, contractor, servant, agent, or other person under the person’s direct or indirect control and includes any sub-contractors.

Privacy Act means the Privacy Act 1988 (Cth).

Privacy Law means all legislation, principles, industry codes and policies, which relate to the collection, use, disclosure, storage or handling of Personal Information, and includes the Privacy Act.

Term has the meaning given in clause 1(a).

19.2 Interpretation
Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise.
(a) the singular includes the plural and conversely;
(b) a reference to a clause is to a clause of these Terms;
(c) a reference to a party to these Terms or any other agreement or document includes the party’s successors and permitted assigns;
(d) a reference to any agreement or document (including to these Terms) is to that agreement or document as amended, supplemented or replaced from time to time;
(e) a reference to legislation (or a provision thereof) includes any modification or re-enactment of it, any legislative provision substituted for it and all regulations and statutory instruments issued under it;
(f) a reference to includes, means includes without limitation; and
(g) all references to $ are to Australian dollars, unless otherwise noted.