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    3.3

    The Customer acknowledges and agrees that, notwithstanding paragraph (1), ESA may, in their

    absol

    ute discretion, monitor Customer Requests being lodged by or on behalf of the Customer

    using the services.

    3.4

    The Customer must bear all costs arising out of any complaints made in connection with the

    Customer Requests lodged (including complaints made by any

    Governmental Agency

    .

    3.5

    On request by ESA from time to time, the Customer must provide ESA with information that ESA

    may reasonably request concerning the Customer use of the Services.

    4

    Payment and Charging

    Variation to Fees

    4.1

    ESA may from time to time, in its

    absolute discretion, vary the Fees with respect to Services.

    4.2

    ESA undertakes to inform the Customer in advance, of any fee increases.

    4.3

    In lodging a Customer Request, the Customer is considered to have acknowledged and accepted

    the fees that are current on t

    he date of lodgement.

    Basis for charging

    4.4

    The Customer agrees that;

    (a)

    each time a Customer Request is lodged the Customer will be charged the Fees (which

    may be varied by ESA from time to time in accordance with this clause

    4

    );

    (b)

    when a Customer Request is received, the Fees will be charged to the Customer as soon

    as a Customer Request is entered into the ESA Systems and regardless of whether or not

    the Custome

    r Request has been checked for accuracy or completeness; and

    (c)

    the Fees will be set by ESA and as varied by this clause

    4

    .

    4.5

    ESA is under no obligation to pro

    vide the

    s

    ervices if the Customer has not paid Fees to ESA in

    clear funds on the due date for payment.

    4.6

    If the Customer fails to comply with any of

    this Agreement

    :

    (a)

    any money which the Customer has paid to ESA on account of any Customer Request

    may be

    forfeited to ESA

    ; and

    (b)

    ESA may also take legal action against a Customer to recover the balance of the Fees and

    any other amounts owing to it under

    this Agreement

    .

    Refunds

    -

    Extenuating Circumstances

    4.7

    ESA only offers refunds where ESA determines, at its disc

    retion, that extenuating circumstances

    apply to the Customer. Customers will not be eligible for a refund of any amounts paid with

    respect to the Services if the Customer has not;

    (a)

    provided true and correct information with respect to any relevant Customer

    Request;

    (b)

    properly and accurately completed any online application with respect to the relevant

    Agency Check;

    (c)

    properly provided all consents (including by signing and dating any pre

    -

    populated informed

    consent form) required by ESA with respect to the releva

    nt Services; or

    (d)

    properly provided all identification information required by ESA with respect to the relevant

    Services.

    No Refund

    4.8

    ESA is not responsible for, and the Customer acknowledges that the Customer is not entitled to,

    any refund with respect to;

    (a)

    da

    ta entry errors that have been made by the Customer, the failure by the Customer to

    provide required details and other information (including identification information), or the

    provision by the Customer of false or incorrect information with respect to th

    e relevant

    Customer Request;

     
     
  •  
     
     

    (b)

    Customers that have changed their mind after completing a Customer Request;

    (c)

    selection by the Customer of the wrong Agency Check type and/or reason for the Agency

    Check when completing the relevant Customer Request; or

    (d)

    failure

    by the Customer to properly complete a Customer Request, including by failing to

    sign, date and return any informed consent form required with respect to the services.

    Refund Charge

    4.9

    ESA may charge a non

    -

    negotiable refund

    -

    processing fee of $7.50 (GST inclu

    sive) with respect

    to any request for a refund.

    4.10

    The refund

    -

    processing fee will be subtracted from any refund amount that is approved by ESA

    and will be retained by ESA.

    4.11

    To request a refund, please email

    admin@employmentscreeningaustralia.com.au

    .

    4.12

    Refund requests must include the first name and surname, date of birth for the relevant person

    for whom the request was made, the reference number with respect to the relevant Services (if

    possible), a

    nd a brief description of why the refund is required. ESA will then assess the refund

    request and determine if the Customer is eligible for a refund.

    4.13

    To the full extent permitted by Law, ESA reserves the right to reject any application for a refund

    in its

    absolute discretion.

    5

    Termination of Customer Request

    Right to not proceed with a Customer Request

    6

    ESA may, at its sole discretion, choose to withdraw and not proceed with completion of a

    Customer Request if;

    (a)

    for individuals applying online, the application

    process cannot be completed without a valid

    credit card/ payment

    (b)

    fees are not paid in full by the due date; or

    (c)

    ESA is unable to contact the Customer for any reason.

    Incomplete Customer Requests

    6.2

    The Customer must complete all Customer Requests within three

    months after the

    Commencement Date.

    6.3

    If the Customer fails to complete a Customer Request within this time (including

    where ESA has

    requested further information from the Customer and the Customer has failed to respond)

    :

    (a)

    ESA may, in its absolute discretion

    , cancel or archive the Customer Request and any

    money that has been paid to ESA, on account of that Customer Request, will be forfeited

    to ESA

    ;

    and

    (b)

    ESA is released from all Claims and any obligations to provide the Services in connection

    with that Custom

    er Request.

    7

    GST

    7.1

    Terms used in this clause have the meaning given to them in GST Law and all amounts payable

    under this Agreement are excluding GST.

    7.2

    Where the Goods and Services provided under this Agreement are:

    (a)

    a taxable supply; and

    (b)

    the consideration for

    that supply excludes GST,

    the recipient must pay an amount equal to the GST in addition to the consideration payable for

    the supply.

    7.3

    The amount of GST will be calculated at the prevailing GST rate.

     
  •  
     
     

    7.4

    If the GST rate is varied, the consideration payable for

    any supply under this Agreement will be

    varied to reflect the change of rate and any reduction in any other tax, duty or statutory charge

    connected with the rate change.

    7.5

    Where GST applies to a supply made under this Agreement, the supplier will deliver to

    the

    recipient a valid tax invoice or adjustment note at, or before the time payment for the supply is

    required.

    7.6

    If an adjustment event occurs in connection with any taxable supply made under this Agreement:

    (a)

    the amount payable by the recipient will be recal

    culated to reflect the adjustment event;

    and

    (b)

    payment for the adjustment event will be made by the recipient to the supplier or by the

    supplier to the recipient (as the case requires).

    7.7

    Where a party is required under this Agreement to pay or reimburse an

    expense or outgoing of

    another party, the amount to be paid or reimbursed will be the sum of:

    (a)

    the amount of the expense or outgoing less any input tax credits for the expense or

    outgoing to which the other party is entitled; and

    (b)

    if the payment or reimburse

    ment is subject to GST, an amount equal to that GST.

    8

    Intellectual Property

    8.1

    Title to and ownership of all Intellectual Property Rights in New Material developed through

    services performed under this Agreement, will vest in ESA upon its creation.

    8.2

    In consider

    ation of the receipt of payment and subject to the Customer performing its obligations

    under this Agreement, ESA gives the Customer a non

    -

    exclusive, non

    -

    transferrable, royalty free

    licence to use the New Material for commercial purposes.

    8.3

    To remove doubt, t

    he Customer is not permitted to sub

    -

    licence New Material developed through

    services performed under this Agreement without ESA written consent.

    8.4

    Paragraph

    8.1

    does not affect the ownership of any Existing Material belonging to another party

    that is used in connection with performing the Services under this Agreement.

    8.5

    For Existing Material, each party grants the other a perpetual, non

    -

    exclusive,

    non

    -

    transferable,

    royalty free licence to use Existing Material belonging to the other party for purposes related to:

    (a)

    performing the services under this Agreement; and

    (b)

    developing any New Material which may result from the performance of those services

    unde

    r this Agreement.

    8.6

    Each party warrants that it owns or is legally authorised to use all Existing Material provided by

    it that used in connection with performing the services.

    8.7

    ESA also grants the Customer a non

    -

    exclusive, non

    -

    transferable, royalty

    -

    free lice

    nce to use any

    Existing Material belonging to or relied on by ESA that is incorporated into New Material

    developed under this Agreement to:

    (a)

    use, reproduce and adapt the Existing Material in accordance with the licence terms

    proposed under clause

    8.2

    ; and

    (b)

    perform any other act in relation to copyright subsisting in the Existing Material (including

    infringing any Moral Rights in the Existing Material).

    8.8

    This clause survives the expiry or early termination of this Agreement.

    8.9

    To remove doubt, each party warrants that all employees, officers, agents, contractors or sub

    -

    contractors involved in delivering any of the Services will be bound by this clause.

    9

    Conf

    idential Information

     
     
  •  
     
     

    9.1

    Parties must ensure that Confidential Information is kept confidential and is not disclosed to any

    person except:

    (a)

    to its employees, officers, agents, contractors and sub

    -

    contractors to the extent needed

    for the performance of this

    Agreement;

    (b)

    where disclosure is authorised or required by law; or

    (c)

    with the Disclosing Party’s consent.

    9.2

    Each party must:

    (a)

    ensure that all Confidential Information is kept reasonably secure;

    (b)

    ensure that all Confidential Information is only used for purposes di

    rectly related to the

    provision and use of Goods and Services, and only the relevant purpose for which it is

    originally disclosed;

    (c)

    immediately notify the other party if it becomes aware of any breach of this clause, or if a

    disclosure of Confidential Infor

    mation is required by law;

    (d)

    if requested by the Disclosing Party:

    i.

    deliver or destroy all documents, records or files in its possession or control which

    contain Confidential Information in accordance with the Disclosing Party’s

    instructions; or

    ii.

    obtain from

    its officers, employees, agents and sub

    -

    contractors a deed of

    confidentiality in a form acceptable to the Customer.

    9.3

    To remove doubt, each party warrants that:

    (a)

    all employees, officers, agents, contractors or sub

    -

    contractors involved in the provision or

    rec

    eipt of Goods and Services under this Agreement will be bound by this clause; and

    (b)

    they will immediately notify the other party upon discovering there has been a breach of

    this clause.

    10

    Personal Information

    10.1

    This clause

    10

    applies if the goods and services under this Agreement will involve:

    (a)

    the transfer of Personal Information; or

    (b)

    the provision of services to a third party for a relevant person to whom

    the Personal

    Information belongs.

    10.2

    Unless authorised by law, each party must:

    (a)

    ensure that Personal Information is protected against loss and unauthorised access, use,

    modification, disclosure or other misuse;

    (b)

    not use Personal Information other than for the

    purposes directly related to providing the

    Goods and Services under this Agreement;

    (c)

    not disclose Personal Information without the prior written consent of the relevant person

    to whom it belongs;

    (d)

    ensure that access to Personal Information is restricted to t

    hose persons who require

    access in order to perform their duties under this Agreement;

    (e)

    ensure that its employees, officers, agents, contractors and sub

    -

    contractors comply with

    the same obligations imposed on ESA under this clause;

    (f)

    fully and promptly coope

    rate with the Disclosing Party in order to respond to any

    applications or privacy complaints which require access to, or amendment of, a document

    containing a person’s Personal Information;

    (g)

    immediately notify the Disclosing Party if the Receiving Party bec

    omes aware or any

    unlawful use or disclosure of Personal Information in its possession or control;

     
  •  
     
     

    (h)

    comply with such other privacy and security measures as agreed to in writing from time to

    time; and

    (i)

    if requested by the Disclosing Party, promptly return or

    destroy any record, document or

    file which contains Personal Information.

    10.3

    Each party must also:

    (a)

    ensure its employees, officers, agents, contractors and sub

    -

    contractors are bound by this

    clause; and

    (b)

    immediately notify the Disclosing Party upon becoming awa

    re of any breach of this clause.

    11

    Data Protection

    11.1

    ESA will, in accordance with its information security policy

    only use Customer Data held by ESA

    (or to which ESA has access)

    :

    (a)

    for the purpose of fulfilling its obligations under

    this Agreement

    ;

    (b)

    as required b

    y Law and, where applicable, under any agreement ESA has with a

    Government Agency in relation to the provision of the Services (including specifically any

    agreement ESA has with ACIC with respect to the National Police Checking Service

    established by ACIC)

    ; and

    (c)

    where applicable, in accordance with ESA’s Privacy Policy.

    11.2

    ESA will also:

    (a)

    establish and maintain reasonable safeguards against the destruction, loss or alteration of

    Customer Data in the possession, custody or control of ESA; and

    (b)

    use its best

    endeavours to protect the Customer Data from destruction, loss, alteration or

    security breaches while the Customer Data is stored in the ESA Systems.

    12

    Customer Warranties

    12.1

    The Customer warrants to ESA that;

    (a)

    it has the requisite power and authority to enter

    into

    this Agreement

    and to carry out the

    obligations contemplated by

    this Agreement

    ;

    (b)

    the transmission of Customer Requests (or related data or information) will not infringe the

    Intellectual Property Rights or other rights of any person, it holds (and will at all times

    continue to hold) all rights permits, licences, authorisations and accr

    editations required for

    it to perform its obligations under

    this Agreement

    ; and

    (c)

    the performance of its obligations under

    this Agreement

    will comply with all such rights,

    permits, licences, authorisations and accreditations; and

    (d)

    not contravene any applicabl

    e Laws.

    13

    Limitation of Warranties and Liability

    13.1

    Subject to clauses

    13.1

    -

    13.5

    and to the fullest extent permitted by law, the sole obligation of the

    ESA under this Agreement is to:

    (a)

    use its best endeavours to provide the goods and services; or

    (b)

    where statutory conditions or statutory warranties are applica

    ble, to:

    i.

    supply the services again;

    ii.

    repair or replace (at the ESA’s discretion) any part of a goods which is found to be

    defective during the relevant warranty period; or

    iii.

    where (

    i

    ) or (

    ii

    ) are not capable of providing an appropriate remedy, to provide a

    refund

    equal to the value of the amount paid for a Customer Request.

    13.2

    In no event shall the ESA be liable for any Loss that is the subject of any Claim related to:

    (a)

    faulty design;

    (b)

    the negligent or faulty use of the goods and services supplied by ESA to the Customer

    ;

    (c)

    negligent or misleading advice;

     
     
     
     
  •  
     
     

    (d)

    direct Loss resulting from the Customer’s actual, attempted or failure to use or rely the

    relevant services; and

    (e)

    any indirect, special or consequential Loss or injury to any person, corporation or other

    entity that arises

    through the ESA’s negligence, breach of contract or under any other

    theory of liability.

    13.3

    If any goods supplied under this Agreement are supplied to the Customer as a 'consumer' under

    the Australian Consumer Law:

    (a)

    the consumer will have the benefit of certa

    in non

    -

    excludable rights and remedies for those

    goods or services; and

    (b)

    nothing in

    this Agreement

    excludes or restricts or modifies any condition, warranty, right

    or remedy available under the Australian Consumer Law.

    13.4

    If the Goods are not acquired for ord

    inary personal, domestic or household use under the

    Australian Consumer Law, the Seller limits its liability for payment to the Customer (or any person

    claiming through the Customer) of an amount equal to the lowest of:

    (a)

    supplying the services again;

    (b)

    the co

    st of replacing the goods or supplying equivalent goods;

    (c)

    the cost of repair of the goods;

    (d)

    the cost of having the goods repaired or replaced; or

    (e)

    where

    (a)

    -

    (d)

    are not capable of providing an appropriate remedy, to provide a refund equal

    to the value of the Customer Request.

    13.5

    The Customer also ack

    nowledges that if the ESA suffers a loss in connection with attending to

    and servicing a request from the Customer that is not covered by:

    (a)

    a voluntary warranty; or

    (b)

    a statutory warranty under Australian Consumer Law,

    the Customer must reimburse the Seller

    for reasonable losses suffered and other costs incurred

    in connection with attending to such requests.

    14

    Indemnity

    14.1

    The Customer indemnifies ESA and its Personnel (those indemnified),

    from all Loss resulting

    from any Claim that directly or indirectly arises

    out of or in connection with;

    (a)

    a breach of

    this Agreement

    by the Customer;

    (b)

    the transmission of any Customer Requests or Agency Checks;

    (c)

    any negligent or fraudulent act, error or omission on the part of the Customer or its

    P

    ersonnel;

    (d)

    loss of or damage to any

    property or injury to or death of any person caused by any act or

    omission of the Customer; or

    (e)

    any Claim by a third party against ESA relating to the Services or the subject matter of

    this

    Agreement

    .

    14.2

    The Customer’s indemnity under clause

    14.1

    is proportionately reduced to the extent that ESA

    has caused or contributed to the Loss that is the subject of the Claim.

    15

    Termination and Suspension of Service

    Termination by the LEC for conven

    ience

    15.1

    If the Customer is a LEC, t

    he LEC may terminate

    this Agreement

    at any time, for convenience,

    by giving ESA five business days’ notice in writing to that effect.

    Termination by ESA

    15.2

    Notwithstanding any other provision in

    this Agreement

    , ESA reserves it

    s right to withdraw or

    suspend any Services for any reason that ESA deems appropriate.

    15.3

    ESA may, at its absolute discretion and without giving any reason, refuse to provide Services to

    a Customer or any person or persons.

    Termination by ESA for cause

     
     
     
  •  
     
     

    15.4

    ESA m

    ay terminate

    this Agreement

    immediately by notice to the Customer if;

    (a)

    the Customer commits any breach of

    this Agreement

    that is;

    i.

    capable of remedy and the Customer fails to remedy the breach within 14 business

    days after receiving written notice requiring

    it to do so; or

    ii.

    incapable of remedy.

    (b)

    the Customer ceases to be able to pay its debts as they become due or fails to comply

    with a statutory demand;

    (c)

    any step is taken by a mortgagee to take possession or dispose of the whole or part of the

    Customer’s assets

    , operations or business;

    (d)

    any step is taken to enter into any arrangement between the Customer and its creditors;

    (e)

    any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a

    provisional liquidator, a liquidator, an administr

    ator or other like person of the whole or part

    of the Customer assets, operations or business;

    (f)

    the Customer disposes of the whole or part of its assets, operations or business other than

    in the ordinary course of business;

    (g)

    the Customer ceases to carry on b

    usiness; or

    (h)

    where the Customer is a partnership, any step is taken to dissolve that partnership; or

    (i)

    the ESA is satisfied on reasonable grounds that the Customer is unable or unwilling to

    satisfy the terms of this Agreement.

    15.5

    This clause

    15.4

    does not affect ESA’s other rights under this Agreement or otherwise at law.

    Termination of Website access

    15.6

    Access to the Website may be terminated at any time by ESA without notice. Any provisions of

    this Agreement

    that can survive termination will nevertheless survive any such termination.

    Termination of Accredited Body’s Agreement with ACIC

    15.7

    ESA may terminate

    this service or reduce the scope of the service (including by reducing or

    removing any

    Nationally Coordinated Criminal History Check

    categories) by notice at any time,

    as a result of a termination or reduction of Scope of ESA’s agreement with

    ACIC

    .

    15.8

    The LEC

    will not be entitled to any compensation whatsoever including for loss of prospective

    profits or loss of any benefits that would have been conferred on the LEC if the termination or

    reduction had not occurred. ESA will only be liable for repayment of any

    outstanding nationally

    coordinated criminal history checks requested, and paid for, by the LEC prior to the effective date

    of termination.

    15.9

    This clause

    15

    does not affect ESA’s other rights under this Agreement or otherwise at law.

    16

    Consequences of Termination

    16.1

    On expiry or termination of

    this Agreement

    for any reason the Customer must;

    (a)

    promptly return or delete all materials, information and documentation provided to it by

    ESA in connection with

    this Agreement

    ;

    (b)

    refrain from accessing or using any ESA Systems (including the Web Tools), and ensure

    that none of its Personnel access or use a

    ny of the ESA Systems

    16.2

    Subject to this Agreement, ESA may;

    (a)

    retain any Fees that have been paid to it;

    (b)

    terminate all means or modes of access and use of the ESA Systems by the Customer

    and its Personnel; and be regarded as discharged from any further obligat

    ions under

    this

    Agreement

    .

    16.3

    The Customer acknowledges and agrees that ESA may keep a reasonable number of copies of;

    (a)

    the Customer's Confidential Information disclosed to ESA under

    this Agreement

    ; and

     
     
  •  
     
     

    (b)

    the Customer Data, for record keeping and quality contro

    l purposes, to allow ESA to

    comply with all applicable Laws.

    17

    Dispute Resolution

    Criminal History Check Disputes

    17.1

    Disputes arising from

    the goods and services provided under this Agreement

    are to be handled

    by ESA in accordance with ESA’s ACIC Agreement.

    17.2

    T

    he Customer agrees to provide ACIC with any information or materials reasonably requested

    by

    ACIC

    , in order to allow

    ACIC

    to resolve any dispute between itself and ESA.

    Terms and Conditions Disputes

    17.3

    This clause

    17

    applies only to disputes about

    this Agreement

    .

    17.4

    If the parties have a dispute about

    this Agreement

    or any dispute arising under this contract that

    is not related

    17.1

    -

    17.2

    :

    (a)

    the Party claiming that there is a dispute will send the other Party a notice setting out the

    nature of the dispute (

    Dispute Notice

    ); and

    (b)

    the Parties will try to resolve the dispute through dir

    ect negotiation, including by referring

    the matter to persons who have the authority to intervene and direct some form of

    resolution.

    18

    Accrued Rights and Remedies

    18.1

    Termination of

    this Agreement

    will not prejudice any right of action or remedy which may have

    accrued to either party prior to such termination.

    19

    Notices and Other Communications

    Service of notices

    19.1

    Except as otherwise provided under

    this Agreement

    , a notice, demand, consent, approval o

    r

    communication under

    this Agreement

    (Notice) must be;

    (a)

    in writing, in English and signed by a person duly authorised by the sender; and

    (b)

    hand delivered or sent by prepaid post or email to: PO Box 908, Maroochydore Q4556 OR

    admin@employmentscreeningaustralia.com.au

    Effective on receipt

    19.2

    A notice given in accordance with this clause takes effect when taken to be received (or at a later

    time specified in it), and is taken to be received;

    (a)

    if hand

    delivered, on delivery;

    (b)

    if sent by email, two hours after the time that the email is sent (unless the sender receives

    notification during that time that delivery of the email was not successful);

    (c)

    if sent by prepaid post, on the second Business Day after th

    e date of posting (or on the

    seventh Business Day after the date of posting if posted to or from a place outside

    Australia); or

    (d)

    if sent by facsimile, when the sender's facsimile system generates a message confirming

    successful transmission of the

    entire no

    tice

    .

    20

    Verification Functionality

    20.1

    ESA may embed, incorporate or use verification functionality or features with respect to Agency

    Checks, which may include

    :

    (a)

    the provision of

    access to an online verification of the Agency Information contained in the

    releva

    nt Agency Check

    ;

    or

    (b)

    other security or integrity measures as determined by ESA.

    20.2

    The Customer consents

    to

    and agrees that

    :

     
     
     
  •  
     
     

    (a)

    such third party may also access the relevant Agency Information of the relevant individual

    (being the subject of the Agency Check)

    ;

    a

    nd

    (b)

    the

    use such verification functionality or features with respect to Agency Check

    s

    .

    20.3

    The Customer agrees that providing such third parties with access to the relevant Agency

    Information in accordance with such verification functionality or features is

    appropriate and

    reasonable, and required to maintain security and integrity of the relevant Agency Check.

    21

    Police Checks

    21.1

    The Customer must:

    (a)

    not provide use of the Service or access to Nationally Coordinated Criminal History Checks

    other parties;

    (b)

    not send

    any Police Information or Personal Information about a relevant person to an

    overseas recipient unless the Customer has the prior approval of the relevant person;

    (c)

    act as if it were an APP Entity;

    (d)

    grant ESA a right of access to the Customer ’s premises (an

    d to data, records and other

    material relevant to the use of the Service and the handling of Police Information, including

    the right to copy), which ESA must exercise reasonably and subject to the

    Customer

    ’s

    reasonable safety and security requirements;

    21.2

    ESA

    will not submit to ACIC any request for a Nationally Coordinated Criminal History Check

    unless it has collected the relevant person’s application and Informed Consent in accordance

    with the requirements set out in ACIC national security and intelligence f

    ramework.

    22

    Limitations of Service

    22.1

    The Customer agrees that the provision of a Nationally Coordinated Criminal History Check to

    the Customer is for use on the following conditions:

    (a)

    ACIC makes no representation or warranty of any kind in respect to accuracy;

    and

    (b)

    ACIC does not accept responsibility or liability for any omission or error in the

    Nationally

    Coordinated Criminal History Check

    .

    23

    ACIC Suspension

    23.1

    If:

    (a)

    ACIC suspends or reduces ESA’s level of access to, or use of, the service; and

    (b)

    that suspension or reduction affects ESA’s ability to provide the Service to the

    Customer

    ,

    the Customer

    ’s level

    of access to, or use of, the

    s

    ervice

    may

    be suspended or reduced by ESA

    or ACIC.

    24

    Protection of Police Information and other Personal

    Information

    24.1

    The Customer acknowledges that its use of the

    s

    ervice involves the collection, use and possible

    disclosure by the Customer of Personal Information or Police Information.

    24.2

    The Customer must in its use of the Service;

    (a)

    collect, use or disclose Pers

    onal Information and Police Information only for the Nationally

    Coordinated Criminal History Check Category and related administration;

    (b)

    not collect, transfer, store or otherwise use Police Information outside Australia, or allow

    parties outside Australia t

    o have access to Police Information, unless a Permitted Offshore

    Transfer circumstance applies;

    (c)

    not disclose Police Information other than for the purpose for which the relevant person

    gave Informed Consent unless it has the prior written approval of ACIC;

    (d)

    not commit any act, omission or engage in any practice which is contrary to Privacy Law;

    (e)

    not do any act or engage in any practice that would be a breach of

    the Australian Privacy

    Principles to the extent they are applicable

    ;

     
  •  
     
     

    (f)

    implement

    Information

    Safeguar

    ds to keep Personal Information and Police Information

    secure;

    (g)

    comply with any directions or guidelines in relation to the treatment of Personal Information

    and Police Information, notified to the Customer by ESA; and

    (h)

    ensure that all Personnel who are requ

    ired to deal with Personal Information and Police

    Information are made aware of the obligations of the Customer set out in this clause.

    24.3

    The Customer must, on request by the ESA or ACIC, promptly provide ESA or ACIC with a copy

    of the Customer’s privacy pol

    icy to the extent that it is required to have one.

    24.4

    The Customer must not alter the content of a Nationally Coordinated Criminal History Check

    provided to the Customer by ESA or by ACIC, including;

    (a)

    any Police Information; and

    (b)

    any Personal Information

    24.5

    The Cu

    stomer must destroy or securely dispose of all hard and electronic copies (including

    backed up versions held on servers or other media) of each Nationally Coordinated Criminal

    History Check within fifteen (15) months following the receipt of the nationally

    coordinated

    criminal history check.

    24.6

    The Customer must notify ESA immediately if the Customer becomes aware of a breach or

    possible breach of any of the obligations contained in or referred to in this clause

    24

    .

    25

    Audits and Access to Premises and Information.

    25.1

    ACIC may conduct audits relevant to the Customer’s compliance with this Agreement.

    25.2

    Audits may be conducted of:

    (a)

    the Customer’s operational pract

    ices and procedures as they relate to police checks.

    (b)

    the Customer’s compliance with its privacy and confidentiality obligations under this

    Agreement including that the Nationally Coordinated Criminal History Check has been

    used only for the Nationally Coor

    dinated Criminal History Check Category; and

    (c)

    any other matters determined by ACIC to be relevant to the use of the Services or the

    performance of the service.

    25.3

    The Customer must participate promptly and cooperatively in any audits conducted by ACIC or

    its

    authorised Personnel.

    25.4

    Each Party must bear its own costs associated with any audits.

    25.5

    For the purposes of ACIC conducting audits under this clause 20 (5), the Customer must, as

    required by ACIC or its authorised Personnel;

    (a)

    grant ACIC and its authorised Pers

    onnel access to the Customer’s premises and data,

    records and other material relevant to the performance of this Agreement; and

    (b)

    arrange for ACIC and its authorised Personnel to inspect and copy data, records and other

    material relevant to the performance o

    f this service.

    25.6

    The rights referred to in this clause are, wherever practicable, subject to the Customer’s

    reasonable security requirements or codes of behaviour, except where ACIC or its authorised

    Personnel believes that there is a suspected or actual b

    reach of law.

    25.7

    The rights of ACIC under this clause apply equally to;

    (a)

    the Auditor

    -

    General or a delegate of the Auditor

    -

    General;

    (b)

    the Privacy Commissioner or a delegate of the Privacy Commissioner;

    (c)

    the Commonwealth Ombudsman or a delegate of the Commonwealth

    Ombudsman, for

    the purpose of performing the Auditor

    -

    General’s, Privacy Commissioner’s or the

    Commonwealth Ombudsman’s statutory functions or powers.

    26

    Access to Documents

     
  •  
     
     

    26.1

    If the Commonwealth receives a request for access to a document created by or in th

    e

    possession of the Customer that relates to the services provided by ACIC or ESA, they may at

    any time by notice require the Customer to provide the document to ACIC and the Customer

    must, at no additional cost to the Commonwealth or ESA, promptly comply

    with the notice.

    26.2

    If the Customer receives a request for access to a document in its possession that relates to this

    Service, the Customer must consult with ESA and ACIC upon receipt of the request.

    27

    Miscellaneous

    Amendments

    27.1

    ESA reserves the right to amend

    this Agreement

    from time to time

    .

    27.2

    Amendments will be effective immediately upon uploading on the Website. The Customer’s

    continued use of the Website (or submission of any Customer Requests) following such

    uploading will represent an agreement by the Custo

    mer to be bound by

    this Agreement

    as

    amended.

    27.3

    The Customer agrees that it is responsible for checking the Website and reviewing the latest

    version of

    this Agreement

    to ensure that it is satisfied with the terms and conditions as applicable

    at any given tim

    e.

    Approvals and consents

    27.4

    Except where

    this Agreement

    expressly states otherwise, a party may, in its discretion, give

    conditionally or unconditionally or withhold any approval or consent under

    this Agreement

    .

    Assignment

    27.5

    The

    Customer

    may only assign its r

    ights under

    this Agreement

    with the prior written consent of

    ESA.

    Force Majeure

    27.6

    Neither party is liable for any failure to perform or delay in performing its obligations under

    this

    Agreement

    if that failure or delay is due to anything beyond that party's r

    easonable control.

    27.7

    This clause does not apply to any obligation to pay money.

    27.8

    The deadline for any obligation that is affected by the Force Majeure will be extended by a period

    equivalent to the period for which the Force Majeure has prevented that obligat

    ion being

    performed.

    Further action

    27.9

    Each party must do, at its own expense, everything reasonably necessary (including executing

    documents) to give full effect to

    this Agreement

    and any transaction contemplated by it.

    Survival

    27.10

    Any indemnity or any obligati

    on of confidence under

    this Agreement

    is independent and survives

    termination of

    this Agreement

    .

    27.11

    Any other term by its nature intended to survive termination of

    this Agreement

    survives

    termination of

    this Agreement

    .

    Severability

    27.12

    Each clause of

    this Agreeme

    nt

    and each part of each clause must be read as a separate and

    severable provision.

    27.13

    If any provision is found to be void or unenforceable, that provision may be severed and the

    remainder of

    this Agreement

    will continue in force.

    Waiver

    27.14

    A party does not

    waive a right, power or remedy if it fails to exercise or delays in exercising the

    right, power or remedy.

    27.15

    A single or partial exercise of a right, power or remedy does not prevent another or further

    exercise of that or another right, power or remedy.

     
  •  
     
     

    27.16

    A wa

    iver of a right, power or remedy must be in writing and signed by the party giving the waiver.

    27.17

    If we waive any rights available to us under

    this Agreement

    on one occasion, this does not mean

    that those rights will automatically be waived on any other occas

    ion.

    Relationship

    27.18

    Except where

    this Agreement

    expressly states otherwise, it does not create a relationship of

    employment, trust, agency or partnership between the parties.

    Governing law and jurisdiction

    27.19

    This Agreement

    are governed by the laws of Queensland, Australia, and each party irrevocably

    and unconditionally submits to the non

    -

    exclusive jurisdiction of the courts of Queensland,

    Australia.

    Links

    27.20

    The Website may contain links to other websites (linked websites). Th

    ose links are provided for

    convenience only and may not remain current or be maintained.

    27.21

    ESA is not responsible for the content or privacy practices associated with linked websites.

    27.22

    The links with linked websites should not be construed as an endorsement,

    approval or

    recommendation by ESA of the owners or operators of those linked websites, or of any

    information, graphics, materials, products or services referred to or contained on those linked

    websites, unless and to the extent stipulated to the contrary.

     
  •  
     
     

    Attachment One (

    Information Safeguards

    )

    28

    Introduction

    28.1

    In accessing the service, LECs must implement the security management measures set out in

    Attachment Two to ensure against:

    (a)

    misuse, interference, loss, unauthorised access, modification or disclosure o

    f a relevant

    person’s Personal Information;

    (b)

    unauthorised access to and use of the service;

    (c)

    unauthorised access to Police Information in the Service Support National Police Checking

    Service Support System (NSS); and

    (d)

    loss and unauthorised access, use,

    modification or disclosure of Police Information stored

    outside of NSS.

    28.2

    This information is provided to assist LECs to understand their obligations and comply with

    ACIC

    ’s security management standards.

    29

    Information Security Policy

    29.1

    The LEC must develop, docu

    ment and maintain an Information Security Policy (

    Policy

    ) that

    clearly describes how it protects information and which is consistent with this Agreement.

    29.2

    The Policy should be supported by the LEC’s senior management and be structured to include

    any legal f

    ramework relevant to the Policy, such as the Australian Crime Commission Act 2002

    (Cth) and this Agreement.

    29.3

    The Policy must include adequate details on how it is enforced through physical, technical and

    administrative controls, including details on:

    (a)

    the ty

    pe or class of information that the Policy applies;

    (b)

    information security roles and responsibilities relating to the Service;

    (c)

    security clearance requirements and its Personnel’s responsibilities;

    (d)

    configuration and change control;

    (e)

    technical access controls;

    (f)

    staff training;

    (g)

    networking and connections to other systems;

    (h)

    physical security (including media security); and

    (i)

    incident management.

    29.4

    The LEC’s privacy policy must reference the Policy, in terms of how Personal Information is held.

    30

    Technical Access

    30.1

    The LEC’s

    ICT environment must be secured in accordance with the Policy and should:

    (a)

    be protected by appropriately configured gateway environment (including firewalls);

    (b)

    include technical access controls protecting any National Police Information stored

    electronicall

    y outside of NSS, for example, restricted file system permissions; and

    (c)

    maintain a static IP address to avail web services (if applicable).

    31

    Technical Infrastructure

    31.1

    Workstations and server infrastructure involved in the storage or processing of National

    Police

    Information and Personal Information should be secured in accordance with the Policy and

    should:

    (a)

    run current and patched operating systems;

    (b)

    run current and patched software, including browsers (N

    -

    1 on browsers is acceptable

    providing patching is ma

    intained);

     
  •  
     
     

    (c)

    have anti

    -

    virus software application installed up

    -

    to

    -

    date virus definition files; and

    (d)

    run application whitelisting software (desirable).

    31.2

    Administrative or privileged access to infrastructure is to be minimised and only used when an

    administrativ

    e function is required.

    32

    Password policy

    32.1

    System accounts that are involved in the storage or processing of National Police Information

    should be subject to a password policy that sets out;

    (a)

    no less than 10

    -

    character passwords including a minimum of one numer

    ical and one upper

    case character;

    (b)

    password reset cycle no longer than 90 days;

    (c)

    users to select strong passwords (avoid dictionary words);

    (d)

    ensure unused accounts are disabled and removed; and

    (e)

    computers lock after 15 minutes of inactivity.

    Training

    32.2

    All LEC

    Personnel involved in storage or processing of National Police Information and Personal

    Information must be provided with the information security awareness training related to;

    (a)

    their responsibilities as defined in the Policy;

    (b)

    what constitutes authorised

    access to information; and

    (c)

    their obligations with regard to reporting of information security issues or incidents.

    33

    Incident Management

    33.1

    Any information security issues or incidents must be reported immediately to ESA where the

    consequence may impact or

    has impacted on ESA or ACIC’s systems or information. This

    includes loss or compromise of digital certificates or associated passwords.