TERMS AND CONDITIONS
These terms and conditions apply to the services provided by Cloak Investigations Pty Ltd T/A Employment Screening Australia (herein referred to as ESA) ACN 153 946 484.
By requesting an ESA service (including, without limitation, a Police Check, Bankruptcy Check or VEVO Check) you (Customer) agree that you:
have read and understood these terms of service; and
will be bound by, and will abide by, these terms of service.
If you do not wish to be bound by these terms and conditions, please do not request an ESA check or use any service provided by ESA.
For Legal Entity Customers, these terms of service are to be read in conjuction with the Legal Entity Customer Agreement.
1. Defined Terms & Interpretation
In these terms and conditions, unless the contrary intention appears
ACIC - means Australian Criminal Intelligence Commission the, Accrediting Body and principal provider of Police History Information.
Agency Check - includes Police Checks, VEVO Checks, Bankruptcy Checks and any other check, verification, document or data file containing Agency Information that ESA provides to the Customer in conducting the Services.
Agency Information - includes the information about an individual received by ESA from a Government Agency or other authorised third party in conducting the Services, including, without limitation, Police History Information, Visa Entitlement and/or insolvency information.
Bankruptcy Check - means the document or data file that ESA provides to Customer(s) containing personal insolvency information received from the Australian Financial Security Authority (AFSA) about an individual.
Business Day - means a day in Queensland, Australia, that is not a Saturday, a Sunday or a gazetted public holiday in that State.
Business Hours - means the period between 9.00am and 5.00pm on a Business Day.
Claim - means a claim, demand or proceeding arising out of a cause of action, including breach of contract, tort (including negligence) and any other common law, equitable or statutory cause of action.
Commencement Date - means the date that ESA notifies the Customer of acceptance of the Customer Request submitted by the Customer through the Website or other manner accepted by ESA (and whether such notification is by email, by onscreen confirmation of acceptance or otherwise).
Confidential Information of a Disclosing Party means;
- the following information, regardless of its form and whether the Receiving Party becomes aware of it before or after the date of these terms and conditions;
information that is by its nature confidential;
- information the Receiving Party knows, or ought to know, is confidential;
all notes and other records prepared by the Receiving Party based on or incorporating information referred to in paragraph (5a);
- all copies of the information, notes and other records referred to in paragraphs (1) and (2), but excludes information that the Receiving Party creates (whether alone or jointly with any third person) independently of the Disclosing Party; or is public knowledge (otherwise than as a result of a breach of confidentiality by the Receiving Party or any of its permitted disclosers).
Customer - mean individual person applying for their own checks.
Customer Data - means data and information relating to the Customer or Legal Entity Customer and its operations, facilities, personnel, assets, products, sales and transactions.
Customer Request - means the completed application form, request to provide Services, or similar application or request completed or submitted by the Customer or Legal Entity Customer to ESA requesting an Agency Check.
Damages - means all liabilities, losses, damages, costs and expenses (including all legal costs determined on a solicitor and own client basis) whether incurred or awarded against a party, disbursements, costs of investigation, litigation, settlement and judgment, and interest, fines and penalties, regardless of the Claim under which they arise.
DIBP - means the Australian Government Department of Immigration and Border Protection.
Disclosing Party - means a party who discloses or makes available Confidential Information to a Receiving Party.
External Factors has the meaning given in clause 2.3(b).
Fees - means the fees to be paid by the Customer to ESA at or about the time that the Customer submits a Customer Request for Services.
Force Majeure means act of God, lightning, storm, flood, fire, earthquake, explosion cyclone, tidal wave, landslide or adverse weather conditions; act of public enemy, war (declared or undeclared), act of terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion or epidemic; the effect of any applicable laws, orders, rules or regulations of any government or other competent authority; embargo, power or water shortage or lack of transportation; any External Factors; or any other event beyond the reasonable control of a party.
Governmental Agency - means any governmental, semi-governmental or judicial entity or authority, in Australia or overseas, and including without limitation ACIC and DIBP.
Harmful Code - means any virus, worm, trojan horse, trapdoor, software switch, time bomb, slicing routine, corruptive code, logic bomb, disabling code, disabling routine or expiration dates as these words are generally understood within the technology industry and any equivalent or similar corruptive mechanism.
Intellectual Property Rights - means the current and future registered and unregistered rights comprised in;
- any patents, patentable invention, discoveries, copyright, rights in circuit layouts, designs, registered designs, trade and service marks, trade names and any right to have confidential information kept confidential;
- computer program material (including computer software computer object code, computer source code, user manuals, tables, charts, flow charts, programming manuals, algorithms, formulas, diagrams, plans, drawing techniques, data, data structures, logical ideas, concepts and processes);
- any application or right to apply for registration of any of the rights referred to in paragraph (a); and all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist anywhere in the world (including Australia).
International Check - means the document or data file that ESA provides to Customer(s) containing Agency Information received by ESA from a Government Agency or other authorised third party located in a jurisdiction outside of Australia.
Legal Entity Customer (LEC) – means a registered business which has;
- Entered into an approved services agreement with the Accredited Agency; and
- receives police history information from that Accredited Agency.
Laws - means all laws, rules and regulation in any jurisdiction, including (without limitation);
- the common law and equity;
- any statute, regulation, by-law, ordinance or subordinate legislation (including the Privacy Laws);
- any licence, permit, authorisation, accreditation, code of practice, code of conduct, order, direction or other requirement which is enforceable against the Customer or ESA (as the case may be) or which is issued under an instrument referred to in paragraph (b), and includes any amendment, change, update or replacement to any of them that may be implemented or take effect during the term of this terms and conditions;
- and with respect to any International Check, anything specified in sub-paragraphs (a), (b) or (c) of this definition applicable in the relevant overseas jurisdiction.
ESA Pre-Existing IPR - means any Intellectual Property Rights owned and created by ESA prior to the Commencement Date (together with any improvements, modifications and enhancements made to those rights during the term of terms and conditions).
ESA Systems - means all hardware, software, materials and resources used by (or on behalf of) ESA to provide the Services (and includes the Web Tools).
Police Check means the document or data file that ESA provides to Customer containing the relevant Police History Information.
Police History Information - means the police history information received from ACIC about an individual.
Personal Information - means any information or opinion about a natural person (whether true or not), including 'personal information' as that term is defined in the Privacy Act, which either party collects or has access to, stores or discloses, or otherwise handles, in the course of performing, or receiving the benefit of, the Services.
Personnel - means officers, employees, agents and contractors, including representatives.
Privacy Act - means the Privacy Act 1988 (Cth).
Privacy Laws – means;
- the Privacy Act, the Health Records Act 2001 (Vic), the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth);
- all codes, guidelines, service standards and procedures issued by a Governmental Authority; and all other laws, rules and regulation in any relevant jurisdiction (including Australia), to the extent they relate to the privacy, protection, use or disclosure of Personal Information or data.
Receiving Party - means a party to these terms and conditions who obtains Confidential Information of the other party to these terms and conditions.
Services - means the services provided by ESA to Customers under these terms and conditions, including specifically the provision of Agency Checks.
VEVO Check - means the document or data file that ESA provides to Customer(s) containing the relevant Visa Entitlement Information.
Visa Entitlement Information - means the visa status, work entitlement(s) and other information received from DIBP about an individual.
Website - means the ESA website located at employmentscreeningaustralia.com.au (or any successor website as notified to the Customer from time to time).
Web Tools - means any software, interface or other tools made available to the Customer by ESA to enable the Customer to receive the benefit of the Services.
In these terms and conditions, unless the contrary intention appears;
- headings are for ease of reference only and do not affect the meaning of these terms and conditions;
- the singular includes the plural and vice versa and words importing a gender include other genders;
- other grammatical forms of defined words or expressions have corresponding meanings;
- a reference to a clause, paragraph, schedule or attachment is a reference to a clause or paragraph of or schedule or attachment to these terms and conditions and a reference to these terms and conditions includes any schedules and attachments;
- a reference to a document or agreement, including these terms and conditions, includes a reference to that document or agreement as novated, altered or replaced from time to time;
- a reference to a party includes its executors, administrators, successors and permitted assigns;
- the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
- any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
- words and expressions importing natural persons include partnerships, bodies corporate, associations, governments and governmental and local authorities and agencies; and
- a reference to any statute or other legislation is to a statute or other legislation as amended or replaced from time to time.
2. Service Delivery and Use
2.1 Performance of Services
ESA will, from the date that Customer pays the Fees;
a. provide the Services; and
b. permit the Customer to access and use the Web Tools for the purposes of receiving the benefit of the Services.
2.2 Access to the Web Tools
The Customer or LEC must;
a. at its cost, provide appropriate access devices, software, operating conditions, cabling, telephone lines, modems and internet connections required for it to access the Web Tools and otherwise receive the benefit of the Services;
b. ensure that no unauthorised use is made of the Web Tools;
c. comply with all of ESA operating and security requirements and procedures relating to;
i. access to the Web Tools; and
ii. the use of the Services, (including in respect of passwords and other security information) as displayed on the Website or otherwise notified to the Customer or LEC from time to time.
d. other than as expressly permitted under these terms and conditions, not obtain (nor attempt to obtain) any access to, or interfere with;
i. any programs or data of ESA or any other client of ESA; or
ii any part of the ESA Systems, hardware, software or networks.
e. not introduce any Harmful Code into the ESA Systems.
f. If the Customer or LEC becomes aware of, or suspects that a breach of any of the obligations set out in this clause 2.2 has occurred, the LEC must promptly notify ESA, in which case ESA may take such action as it considers appropriate (which may include changing the Customer's passwords and other security information).
2.3 No Guarantee of continuity of Services
- Despite anything else in these terms and conditions, ESA does not undertake, warrant or guarantee that the Services (including access to the Web Tools or other ESA Systems) will be uninterrupted, continuous or error or defect free.
- The Customer or LEC acknowledges and agrees that its use of the Services is dependent on, and affected by, a number of environmental and other factors outside of the reasonable control of ESA (‘External Factors’).
- To the maximum extent permitted by law ESA (and its directors, employees and agents) will have no liability whatsoever relating to any failure of, or interruption in the performance of, the Services resulting from any External Factors.
- In the event of failure of the Services, ESA will use reasonable commercial endeavours to restore the Services to an operational state with the minimum practicable delay.
- The Customer or LEC acknowledges that, from time to time ESA will conduct routine and other maintenance on the Website and the ESA Systems.
- The Customer or LEC acknowledges and agrees that ESA may suspend the Services (including the Customer's or LEC access to the Web Tools) if;
a. ESA is required to do so by Law or any Governmental Agency; or
b. the Customer or LEC breaches any provision of these terms and conditions.
2.4 Agency Information
- Agency Information is provided to ESA by Government Agencies and authorised third parties (including ACIC, AFSA and DIBP in Australia), and ESA uses this information to provide Agency Checks to Customers (including, without limitation, Police Checks, VEVO Checks and Bankruptcy Checks).
- ESA does not have direct access to any Agency Information, and ESA relies on the information provided to it from the relevant Government Agency or authorised third party (as the case may be) to perform the Services and provide Agency Checks to Customers.
- Customer or LEC acknowledges that;
a. ESA does not have direct access to Agency Information (including without limitation Police History Information or Visa Entitlement Information);
b. ESA is not responsible for Agency Information (including without limitation Police History Information or Visa Entitlement Information) provided to Customer or LEC on any Agency Check;
- ESA cannot change, modify or adapt any Agency Information on any Agency Check (including without limitation any Police Check, VEVO Check or Bankruptcy Check); and
- the accuracy and quality of Agency Information is dependent on the relevant Government Agency or authorised third party (as the case may be), and ESA is not responsible for any inaccurate information provided to Customers or LECs.
2.5 Information provided by the Customer or LEC
Without limitation to any other consent(s) or approval(s) the Customer or LEC provides in relation to the Services the Customer or LEC acknowledges and agrees that;
- the Customer consents to ESA using and disclosing the Customer’s Personal Information:
i to conduct any Agency Check that is the subject of the Customer or LECs Request;
- as required by ESA to provide the Services and perform its obligations under these terms and conditions; and
- The Customer or LEC is solely responsible and liable for ensuring that all information provided to ESA by the Customer or LEC (including any Personal Information) is accurate, complete and up to date, is not misleading, does not infringe any other person’s rights and is not in provided in breach of any applicable Law. ESA is not responsible for any consequences if ESA has relied on information provided by the Customer or LEC, and such information is inaccurate or incomplete.
3. Customer’s obligations
3.1 Licenses and Compliance
The Legal Entity Customer must:
a. comply with all applicable Laws and industry codes and practices relevant to the collection, storage and handling of personal information and police history information;
b. comply with ESA directions, policies and procedures relating to the use of the ESA Systems and the Service including, but not limited to;
i. any applicable Law (including the Privacy Laws) or industry code or practice; or
ii. any other rules or guidelines posted on the Website or otherwise notified to the LEC by ESA from time to time;
c. not act in any way that may have a detrimental effect on the good will or good standing of ESA;
d. not act in a way that may expose ESA to the risk of any legal or administrative action including prosecution under any Laws; or
e. not act in a way that will interfere with or disrupt ESA's business.
3.2 Responsibility for Usage of Services
a. The Customer or LEC is solely responsible for all lodgements of Customer Requests (whether on its own behalf or on behalf of a third party).
b. The Legal Entity Customer acknowledges and agrees that, notwithstanding paragraph (1), ESA may, in their absolute discretion, monitor the Customer Requests being lodged by or on behalf of the Customer using the Services.
c. The LEC must bear all costs arising out of any complaints made in connection with the Customer Requests lodged (including complaints made by any Governmental Agency).
d. on request by ESA from time to time, provide ESA with information that ESA may reasonably request concerning the Customer or LEC.
4. Payment and charging
4.1 Variation to Fees
a. ESA may from time to time, in its absolute discretion, vary the Fees with respect to Services.
b. ESA undertakes to inform The Customer or LEC, in advance, of any fee increases.
c. In lodging a Customer Request, the Customer or LEC is considered to have acknowledged and accepted the fees that are current on the date of lodgement.
4.2 Basis for charging
The Customer or LEC agrees that:
a. each time the Customer lodges a Customer Request the Customer or LEC will be charged the Fees (which may be varied by ESA from time to time in accordance with clause 3);
b. when a Customer Request is received from a Customer or LEC, the Fees will be charged to the Customer or LEC as soon as a Customer Request is entered into the National Police Checking Service database and regardless of whether or not the Request has been checked for accuracy or completeness; and
c. the Fees will be set by us and as varied under clause 3.
d. ESA is under no obligation to provide the Services if the Customer or LEC has not paid Fees to ESA in clear funds on the due date for payment.
e. If Customer fails to comply with any of these terms and conditions, any money which Customer or LEC paid to ESA on account of any Customer Request may be forfeited to ESA. ESA may also take legal action against Customer or LEC to recover the balance of the Fees and any other amounts owing to it under these terms and conditions.
4.3.1 Extenuating Circumstances
ESA only offers refunds where ESA determines, at its discretion, that extenuating circumstances apply to the Customer or LEC. Without limitation, Customers or LEC will not be eligible for a refund of any amounts paid with respect to the Services if the Customer or LEC 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 relevant Services; or
d. properly provided all identification information required by ESA with respect to the relevant Services.
4.3.2 No Refund
ESA is not responsible for, and the Customer or LEC acknowledges that the Customer is not entitled to, any refund with respect to:
a. data entry errors that have been made by the Customer or LEC, the failure by the Customer or LEC to provide required details and other information (including identification information), or the provision by the Customer or LEC of false or incorrect information with respect to the relevant Customer Request;
b. Customers or LECs that have changed their mind after completing a Customer Request;
c. selection by the Customer or LEC of the wrong Agency Check type and/or reason for the Agency Check when completing the relevant Customer or Request; or
d. failure by the Customer or LEC to properly complete a Customer Request, including by failing to sign, date and return any informed consent form required with respect to the Services the subject of that Customer Request.
4.3.3 Refund Charge
ESA may charge a non-negotiable refund-processing fee of $7.50 (GST inclusive) with respect to any request for a refund. This refund-processing fee will be subtracted from any refund amount that is approved by ESA and will be retained by ESA.
To request a refund, please email email@example.com. Refund requests must include the Customer’s first name and surname, date of birth, the reference number with respect to the relevant Services (if possible), and a brief description of why the Customer requests a refund. ESA will then assess the refund request and determine if the Customer is eligible for a refund.
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
5.1 Right to not proceed with a Customer Request
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. For LECs fees are not paid in full by the due date; or
c. ESA is unable to contact the Customer or LEC for any reason.
5.2 Incomplete Customer Requests
The Customer or LEC must complete all Customer Requests within three months after the Commencement Date. If for whatever reason the Customer or LEC fails to complete a Customer Request within this time (including, without limitation, where ESA has requested further information from the Customer or LEC and the Customer or LEC has failed to respond), ESA may in its absolute discretion cancel or archive the Customer Request and any money which that Customer has paid to ESA on account of that Customer Request will be forfeited to ESA and ESA is released from all Claims and any obligations to provide the Services in connection with that Customer Request.
6.1 Defined terms
In this clause 6, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that Act.
6.2 GST inclusive amounts
For the purposes of these terms and conditions, where the expression GST inclusive is used in relation to an amount payable or other consideration to be provided for a supply under these terms and conditions, the amount or consideration will not be increased on account of any GST payable on that supply.
6.3 Consideration GST exclusive
Any consideration to be paid or provided for a supply made under or in connection with these terms and conditions, unless specifically described in these terms and conditions as GST inclusive, does not include an amount on account of GST.
6.4 Gross up of consideration
Despite any other provision in these terms and conditions, if a party (Supplier) makes a supply under, or in connection with, these terms and conditions on which GST is imposed (not being a supply the consideration for which is specifically described in these terms and conditions as GST inclusive):
a. the consideration payable or to be provided for that supply under these terms and conditions but for the application of this clause (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supplier, an amount equal to the GST payable by the Supplier on that supply; and
b. the amount by which the GST exclusive consideration is increased must be paid to the Supplier by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
6.5 Reimbursement (net down)
If a payment to a party under these terms and conditions is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.
7. Other Taxes
Except as otherwise specified in these terms and conditions, the Fees and any other fees and charges payable by the Customer or LEC under these terms and conditions are exclusive of all taxes, duties and charges imposed or levied in Australia or overseas in connection with these terms and conditions or the Services, which are the responsibility of the Customer or LEC. Without limiting the foregoing, the Customer or LEC is solely responsible for any taxes, duties or charges imposed subsequent to the Commencement Date in respect of these terms and conditions.
8. Intellectual Property Rights
8.1 ESA IP Rights
Customer or LEC acknowledges that, unless and to the extent stipulated to the contrary in these terms and conditions, ESA remains the sole owner of and retain all Intellectual Property Rights with respect to the Services, including specifically all Intellectual Property Rights in and;
a. to the Website and the ESA Systems;
b. all ESA Pre-Existing IPR; and
c. all documentation, know-how, methodologies, equipment, systems, processes and other materials supplied or made available to the Customer or LEC under, or in connection with, these terms and conditions, and nothing in these terms and conditions transfers or assigns to the Customer or LEC any of those rights.
8.2 Customer IP Rights
ESA acknowledges and agrees that, as between the parties, the Customer or LEC retains all Intellectual Property Rights in the Customer or LEC Data.
The Customer grants to ESA a non-exclusive, non-transferable, royalty-free licence to use and reproduce the Customer or LEC Data solely for the purpose of enabling ESA to discharge its obligations under these terms and conditions.
a. agrees to be bound by the Privacy Laws applicable to it with respect to any act done, or practice engaged in, by the party for the purposes of these terms and conditions (including, in relation to the LEC, in respect of the collection, use, disclosure and storage of the Personal Information);
b. must (and must ensure that its Personnel) comply with;
i. the Privacy Laws and all guidelines issued by applicable privacy offices (and any similar regulatory bodies); and
c. must notify the other party immediately;
i. of any complaint from any person alleging a breach of the Privacy Laws;
ii. if it becomes aware of a breach, or a suspected or possible breach, by it of any of its obligations under this clause 9; or
iii. if it becomes aware that any disclosure of Personal Information may be required by Law.
d. cooperate with the other party in;
i. resolving any complaint alleging a breach of the Privacy Laws or any privacy statement regarding any Personal Information; and
ii. providing access to any record of Personal Information following a request from an individual; and
e. take appropriate technical and organisational measures to prevent (to the extent reasonably practicable);
i. unauthorised or unlawful use or disclosure of; and
ii. accidental loss or destruction of, or damage to, Personal Information.
10. Data protection
ESA will, in accordance with its Information Security Policy;
a. only use Customer or LEC Data held by ESA (or to which ESA has access);
i. for the purpose of fulfilling its obligations under these terms and conditions;
ii. as required by any applicable 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
b. establish and maintain reasonable safeguards against the destruction, loss or alteration of Customer or LEC Data in the possession, custody or control of ESA; and
c. use its reasonable endeavours to protect the Customer or LEC Data from destruction, loss, alteration or security breaches while the Customer or LEC Data is stored in the ESA Systems.
The Customer or LEC warrants to ESA that;
a. it has the requisite power and authority to enter into these terms and conditions and to carry out the obligations contemplated by these terms and conditions;
b. the transmission of the 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 accreditations required for it to perform its obligations under these terms and conditions; and
c. the performance of its obligations under these terms and conditions will:
d. comply with all such rights, permits, licences, authorisations and accreditations; and
e. not contravene any applicable Laws.
12. Exclusion of warranties and limited liability
12.1 Exclusion of warranties
ESA excludes all express and (to the maximum extent permitted by law) implied conditions, warranties and liabilities, except for any liability or implied condition or warranty the exclusion or limitation of which would contravene any applicable statute or cause any part of this clause to be void (Non-excludable Condition).
To the maximum extent permitted by law, ESA’s liability to the LEC for breach of any Non-excludable Condition is limited, at ESA's option, to;
a. in the case of goods, repair or replacement of the goods or payment of the cost of the repair or replacement; and
b. in the case of services, resupply of the services or payment of the cost of the resupply.
12.2 Exclusion of liability
ESA excludes all liability;
a. in relation to Customer Requests (or related data or information) transmitted by the Customer or LEC using the Services (including any liability to third parties arising as a result of the transmission of any Customer Requests (or related data or information));
b. for loss of revenue, loss of goodwill, loss of customers, loss of capital, downtime costs, loss of profit, loss of or damage to reputation, loss under or in relation to any other contract, loss of data, loss of use of data, loss of anticipated savings or benefits, the cost of procuring any substitute services, or any indirect, consequential or special loss, damage, cost or expense or other Claims for consequential compensation, incurred by or awarded against the Customer under or in any way connected with these terms and conditions or the provision of the Services;
c. in relation to any condition, warranty, right or liability which would otherwise be implied in these terms and conditions or protected by law;
d. in relation to any error or omission in any ESA Check;
e. in relation to the accuracy or completeness of the Agency Information, to the extent that it is dependent on a number of factors outside ESA’s control (such as the accuracy and operation of ACIC’s National Police Checking Service or DIBP’s online visa checking service); and
f. in relation to the security and operation of the Services and the process of provision of any Agency Checks, to the extent that they may be dependent on matters beyond the control of ESA (such as the respective Government Agencies’ or police authorities’ systems and databases, internet connectivity and network issues as well as routine maintenance or downtime).
12.3 Liability cap
Subject to Clause 12.2 and 12.4, but despite any other provision of these terms and conditions, ESA’s total aggregate liability for any and all Damages suffered or incurred by the Customer or LEC under or in any way connected with these terms and conditions or the provision of the Services is limited to an amount equal to the Fees paid by the Customer to ESA under these terms and conditions.
12.4 Application of exclusions and limitations
The exclusions and limitations of liability in Clause 12.2 and 12.3 apply whether the relevant Claim is made under statute, in tort (for negligence or otherwise), under an indemnity, in equity or otherwise; and
a. do not exclude or limit the application of any provision of any statute (including the Competition and Consumer Act 2010 (Cth)) where to do so would:
b. contravene that statute; or
c. cause any part of this clause to be void.
The Customer indemnifies ESA and its Personnel (those indemnified), and will hold those indemnified harmless, against all Damages suffered or incurred by any or all of those indemnified arising, directly or indirectly, out of or in connection with:
a. a breach of these terms and conditions by the Customer or LEC;
b. the transmission of any Customer Requests or Agency Checks (including any Damages sustained or incurred by those indemnified in connection with complaints or Claims relating to any Customer Requests or Agency Checks);
c. any negligent or fraudulent act, error or omission on the part of the Customer, LEC or its Personnel;
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, LEC or its Personnel; or
e. any Claim by a third party against ESA relating to the Services or the subject matter of these terms and conditions.
14. Termination and Suspension
14.1 Termination by the Customer for convenience
The Customer or LEC may terminate these terms and conditions at any time, for convenience, by giving ESA five business days’ notice in writing to that effect.
14.2 Termination by ESA for cause
ESA may terminate these terms and conditions immediately by notice to the LEC if;
a. the LEC commits any breach of these terms and conditions that is;
i. capable of remedy and the LEC fails to remedy the breach within 2 business days after receiving written notice requiring it to do so; or
ii. incapable of remedy.
b. the LEC ceases to be able to pay its debts as they become due;
c. any step is taken by a mortgagee to take possession or dispose of the whole or part of the LEC's assets, operations or business;
d. any step is taken to enter into any arrangement between the LEC 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 administrator or other like person of the whole or part of the LEC's assets, operations or business;
f. the the LEC disposes of the whole or part of its assets, operations or business other than in the ordinary course of business;
g. the LEC ceases to carry on business; or
h. where the LEC is a partnership, any step is taken to dissolve that partnership.
14.3 Termination of Website access
Access to the Website may be terminated at any time by us without notice. Any provisions of these terms and conditions that can survive termination will nevertheless survive any such termination.
15. Consequences of termination
15.1 On expiry or termination of these terms and conditions for any reason the LEC must;
a. promptly return or delete all materials, information and documentation provided to it by ESA in connection with these terms and conditions except where the Customer is required to keep a copy by law, for internal record-keeping or compliance purposes and provided that nothing in this clause requires the Customer to delete such materials, information and documentation held on back-ups or automatic archives or in legal or personnel records or files;
b. refrain from accessing or using any ESA Systems (including the Web Tools), and ensure that none of its Personnel access or use any of the ESA Systems
15.2 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 LEC and its Personnel; and be regarded as discharged from any further obligations under these terms and conditions.
15.3 Despite anything else in these terms and conditions,
the Customer or LEC acknowledges and agrees that ESA may keep a reasonable number of copies of;
a. Confidential Information disclosed to ESA under these terms and conditions; and
b. Customer or LEC Data, for record keeping and quality control purposes, to allow ESA to comply with all applicable Laws.
16. Accrued rights and remedies
Termination of these terms and conditions will not prejudice any right of action or remedy which may have accrued to either party prior to such termination.
17. Withdrawal or Suspension
Notwithstanding any other provision in these terms and conditions, ESA reserves its right to withdraw or suspend any Services for any reason that ESA deems appropriate. ESA may, at its absolute discretion and without giving any reason, refuse to provide Services to a Customer or LEC or any person or persons.
18. Notices and other communications
18.1 Service of notices
Except as otherwise provided under these terms and conditions, a notice, demand, consent, approval or communication under these terms and conditions (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
18.2 Effective on receipt
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 the 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 Notice unless, within eight Business Hours after the transmission, the recipient informs the sender that it has not received the entire Notice, but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.
19. Verification functionality
ESA may embed, incorporate or use verification functionality or features with respect to Agency Checks, which may include providing access to an online verification of the Agency Information contained in the relevant Agency Check, or such other security or integrity measures as determined by ESA.
Customer or LEC acknowledges and agrees that, by forwarding or making available, or by permitting ESA or another party to forward or make available, an Agency Check to a third party, the Customer or LEC consents and agrees that such third party may also access the relevant Agency Information of the relevant individual (being the subject of the Agency Check), and use such verification functionality or features with respect to the Agency Check.
Customer or LEC acknowledges and 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.
ESA reserves the right to amend these terms and conditions from time to time. Amendments will be effective immediately upon uploading on the Website. The Customer or LECs continued use of the Website (or submission of any Customer Requests) following such uploading will represent an agreement by Customer or LEC to be bound by these terms and conditions as amended. The Customer or LEC agrees that it is responsible for checking the Website and reviewing the latest version of these terms and conditions to ensure that it is satisfied with the terms and conditions as applicable at any given time, before submitting Customer Requests which will be subject to the applicable terms and conditions at that time.
20.2 Approvals and consents
Except where these terms and conditions expressly states otherwise, a party may, in its discretion, give conditionally or unconditionally or withhold any approval or consent under these terms and conditions.
The Customer or LEC may only assign its rights under these terms and conditions with the prior written consent of ESA.
20.4 Force Majeure
Neither party is liable for any failure to perform or delay in performing its obligations under these terms and conditions if that failure or delay is due to anything beyond that party's reasonable control. This clause does not apply to any obligation to pay money. 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 obligation being performed.
20.5 Further action
Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to these terms and conditions and any transaction contemplated by it.
Any indemnity or any obligation of confidence under these terms and conditions is independent and survives termination of these terms and conditions. Any other term by its nature intended to survive termination of these terms and conditions survives termination of these terms and conditions.
Each clause of these terms and conditions and each part of each clause must be read as a separate and severable provision. If any provision is found to be void or unenforceable, that provision may be severed and the remainder of these terms and conditions will continue in force.
A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. 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. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver. If we waive any rights available to us under these terms and conditions on one occasion, this does not mean that those rights will automatically be waived on any other occasion.
Except where these terms and conditions expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.
20.10 Governing law and jurisdiction
These terms and conditions 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.
The Website may contain links to other websites (linked websites). Those links are provided for convenience only and may not remain current or be maintained.
ESA is not responsible for the content or privacy practices associated with linked websites.
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.