WorkinEarlyLearning

Definitions

Capitalised terms used throughout this Agreement have the meaning given to them indicated below:

(a) Account Information means all information about you (or the Employer you represent) that you provide to us in connection with the creation or administration of your account on the Platform. This may include names, usernames, phone numbers, email addresses, billing information or employment information.
(b) Agreement means these General Terms, Listing Terms (where applicable) and other policies and guidelines referenced within our Platform, including the Privacy Policy.
(c) Content means all content and information available through the Platform, whether written, visual, audio or audio-visual, and includes User Content and Third Party Material, but excludes Account Information.
(d) Employer means the entity responsible for uploading a Listing in respect of a job opportunity.
(e) Fee means the fees as specified on the Platform, which may apply to account creation, posting of Listings or other uses of the Platform as specified by WorkinAUS.
(f) Intellectual Property Rights means all intellectual and industrial property rights and interests of whatever nature throughout the world conferred under statute, common law or equity, and includes rights in respect of, or in connection with, copyright, trade marks, domain names, designs, patents, confidential information, trade secrets, know-how, business or company names, or other proprietary rights (whether registered, unregistered or not registrable) and any rights to register such rights.
(g) Listing means a job listing, and all User Content submitted by an Employer in respect of that job listing.
(h) Listing Terms means the terms under which an Employer may use the Platform to submit Listings and review applications, as amended from time to time.
(i) Platform means the website www.workinaus.com.au and the app of the same name available on the Google Play store and the App Store, all of which is owned and operated by WorkinAUS.
(j) Privacy Policy means the privacy policy available at https://hire.workinaus.com.au/employer/privacy-policy
(k) Terms means these terms of use, including the General Terms and Listing Terms, of the Platform.
(l) Third Party Material has the meaning given it in clause 8.1.
(m) User Content means content that you provide to us through the Platform for processing, storage or hosting, including content in respect of a Listing and any Ratings or Reviews, but excludes Account Information.
(n) WorkinAUS, we, us, our means Philled Pty Ltd (ABN 44 656 428 483).
(o) You, your means you as an individual user of the Platform and/or the entity or organisation that you represent, including the Employer.

1. Application of the Terms

1.1 By accessing and using the Platform, you agree to be bound by these Terms. You warrant that should you act on behalf of an Employer, you have all due authorisation, right and power to bind the Employer to these Terms. If you do not accept these Terms, you must not use or access the Platform. For the avoidance of any doubt, this Platform is owned and operated by WorkinAUS.
1.2 If you are an Employer or a Recruiter, you acknowledge and agree that the Listing Terms also apply to your use of the Platform in addition to these Terms. To the extent of any inconsistency, the Listing Terms shall prevail.
1.3 We may amend these Terms from time to time. Any amendment will be effective immediately upon being posted on the Platform. Your continued use of the Platform after any amendment becomes effective will constitute your agreement to be bound by these Terms, as amended.
1.4 We reserve the right to vary or modify the Content or other information contained on or available via the Platform and to change or discontinue any feature or part of the Platform, without notice and without liability.

2. Account creation

2.1 Before you can use certain parts of the Platform, you may be prompted to register an account on the Platform and to submit Account Information to do so. You must provide complete, current and accurate information when registering your account.
2.2 Unless stated otherwise, each account is for a single user only and not for multiple users. You must maintain the confidentiality and security of your login and password details, and you agree that you will not share your password, let anyone else access your account, or do anything that might put the security of your account at risk. You are responsible for all activities which occur under your account. You must also notify us where there is any unauthorised use of your account.
2.3 We may suspend, terminate or cancel your account and/or your access to any or all of the Platform in our sole discretion. Where we suspend, terminate or cancel your account, you must not attempt to re-register without our prior written consent.

3. Security of information

3.1 No data transmission over the internet can be guaranteed as totally secure. Whilst we strive to protect such information, we do not warrant and cannot ensure the security of any information provided by you which you transmit to us. Accordingly, any information which you transmit to us is transmitted at your own risk. You acknowledge that it is your responsibility to satisfy yourself that your own information technology is protected against computer viruses or similar malicious code or software.
3.2 Nevertheless, once we receive your transmission, we will take reasonable steps to preserve the security of such information. Further information is available in our Privacy Policy.

4. Privacy

4.1 Our Privacy Policy sets out the types of personal information we collect, how we collect, use and disclose that personal information, and your rights.
4.2 By providing us with your personal information through the Platform, your consent to us collecting, using and disclosing your personal information in accordance with our Privacy Policy.

5. Intellectual property

5.1 Subject to your ongoing compliance with these Terms, WorkinAUS grants to you, a limited, non-exclusive, non-transferable, and non-sublicensable right to access and use the Platform as follows:
- (a) access the Content;
- (b) submit a Listing and receive applications to that Listing;
- (c) respond to a Listing;
- (d) access and submit an inquiry form to contact us;
but in each case, solely for your personal use or, if you are an Employer, for your internal business purposes.
5.2 To the extent that you are an Employer purchasing access on behalf of its personnel, you irrevocably and unconditionally guarantees the compliance of each user with the Terms.
5.3Except for the limited rights set forth above, no Intellectual Property Rights or other rights, express or implied, in or relating to the Platform will be acquired by you. Unless otherwise expressly stated in these Terms, WorkinAUS (and its licensors) owns all title, ownership, and all other rights to the Platform and the Content. All Intellectual Property Rights are reserved.
5.4 All trade marks and trade names which appear on the Platform are proprietary to WorkinAUS and/or its affiliates or licensors. Nothing on the Platform or contained in the Content should be interpreted as granting any rights to use or distribute any names, logos or trade marks except with the express written consent of the respective owner.

6. User Content

6.1 You retain all of your rights to any User Content you submit to the Platform.
6.2 You are responsible for all User Content you submit via the Platform. You warrant that all User Content you submit:
- (a) is accurate, complete and not misleading;
- (b) does not infringe the rights (including Intellectual Property Rights and privacy rights) of any third party;
- (c) complies with these Terms and all applicable laws;
- (d) is owned by you, or you otherwise have the right to use such User Content, and that the submission, publication or display of the User Content on the Platform will not cause you or us to breach any law, regulation, rule, code or other legal obligation; and
- (e) does not contain any obscene, inappropriate, defamatory, disparaging, indecent, offensive, pornographic, threatening, abusive, racially insensitive or discriminatory material.
6.3 By submitting User Content to the Platform that is an application in response to a Listing, you acknowledge and agree that:
- (a) we will provide that application to the entity that submitted the Listing;
- (b) the entity of the Listing is under no obligation to provide an acknowledgement of receipt or a response in relation to the status of the application;
- (c) that entity may use your User Content to review your application and to contact you in relation to your application; and
- (d) we may use that information to comply with government requirements relating to labour market testing for the Listing.
6.4 By submitting any other User Content (including as part of a Listing), you grant us the royalty-free, non-exclusive and worldwide licence to use, modify, publicly display, reproduce and distribute such User Content on and through the Platform and such other locations as agreed by you, including to comply with government requirements relating to labour market testing for the Listing. Any public display of User Content shall exclude personal information, unless otherwise agreed by you to be shared.
6.5 Where WorkinAUS receives your application to a Listing, we will use our best endeavours to provide the application to the Employer.
6.6 We are under no obligation to regularly monitor the accuracy or reliability of the User Content posted by you. However, we reserve the right to modify or remove any User Content from the Platform at any time if we believe, in our sole discretion, that the User Content may breach any of these conditions or any law.
6.7 WorkinAUS may collect anonymized, de-identified information relating to use of the Platform in order to improve our products and services and for other reasonable internal uses. Further, WorkinAUS may aggregate such anonymized, de-identified information with anonymous, de-identified information of its other users and clients for purposes of creating and distributing case studies or industry reports as part of its products and services.
6.8 Where you provide any feedback, comments or suggestions regarding the Platform and its functionality, you agree that WorkinAUS is free to use, disclose and distribute the feedback for its internal business purposes without any obligations or restrictions of any kind.
6.9 You must:
- (a) act efficiently, honestly and fairly and with due care and skill in relation to your obligations under this Agreement, including when interacting with other Users; and
- (b) comply with all relevant laws that are applicable to its obligations under this Agreement, including any data privacy laws.

7. Ratings and Reviews

7.1 To the extent that you are asked to rate and post reviews (including in the form of video content) in relation to Listings or other users (“Ratings” and “Reviews”), such Ratings and Reviews are not endorsed by WorkinAUS and do not represent the views of WorkinAUS or any of its affiliates.
7.2 Because we strive to maintain a high level of integrity with respect to Ratings and Reviews on the Platform, you agree that:
- (a) you will base any Rating or Review on actual first-hand experience with the Listing or user;
- (b) any Rating or Review submitted will reflect your true and honest opinion only;
- (c) you will not provide a Rating or Review in respect of any entity for which you have an ownership interest, employment relationship or other affiliation or for any of that company’s competitors;
- (d) you will not submit a Rating or Review in exchange for payment or other benefits; and
- (e) your Rating or Review will comply with these Terms.
7.3 If we determine, in our sole discretion, that any Rating or Review does not comply with the requirements in this clause 7, we may exclude such Rating or Review without notice.

8. Third Party Material

8.1 The Platform will contain hypertext, links, or other connections that allow you to access and use third party websites, products, services, materials or software, which are not owned, controlled or operated by WorkinAUS (“Third Party Material”). To use or access Third Party Material, you may be required to sign up or log into such third party websites or applications, which are solely governed by the terms and conditions and privacy policy of such Third Party Material.
8.2 You acknowledge and agree that:
- (a) we do not endorse and we are not liable for any Third Party Material, including its content, features, service quality or how information may be used, stored or processed;
- (b) we do not grant, or license to you, any rights in respect of the Third Party Material and therefore, any features or functionality of Third Party Material may be changed or terminated without notice to you or WorkinAUS;
- (c) we are not responsible for examining or evaluating the content or accuracy of the Third Party Material;
- (d) we are not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use or loss of use of, or reliance on, any Third Party Material.

9. Limitations of use

9.1 In accessing and using the Platform, including when providing User Content and interacting with other users of the Platform, you must not, and must not attempt to:
- (a) store or transmit:
  - (i) unlawful, defamatory, false, misleading, untrue, abusive, obscene or tortious material;
  - (ii) material in violation of any third party rights; or
  - (iii) harmful codes, malware or viruses;
- (b) harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate any other user of the Platform;
- (c) infringe the intellectual property rights or privacy rights of any third party in connection with the use of the Platform;
- (d) interfere with or disrupt the integrity or performance of the Platform or the experience of any other user of the Platform;
- (e) scrape, copy, modify, create derivative works of, reverse engineer, decompile or otherwise extract the source code of the Platform or any of its Content or gain unauthorised access to the Platform or WorkinAUS’s networks;
- (f) republish, redistribute, sell, rent, sub-license, scrape, duplicate or copy any Content;
- (g) sell, rent, sub-licence, republish, redistribute or otherwise exploit the Platform or its Content or otherwise use the Platform or its Content to create a competing service;
- (h) sell, rent, license, lease, transfer, outsource, sublicense or otherwise provide access to the Platform or utilize the Platform for the benefit of a third party (subject to the Listing Terms);
- (i) allow any non-users to use any of your Account Information, identification information or passwords to access the Platform;
- (j) remove in whole or in part any trademarks, copyright and other proprietary notices contained in or appearing on any material you download and/or print from the Platform;
- (k) use the Platform for any unlawful purpose or in any way that would violate any law.

10. Limitation of liability

10.1 The Platform and Content is provided by us in good faith on an “as is” basis.
10.2 These Terms set out our entire liability to you in respect of all losses, claims or liabilities arising under or in connection with these Terms and your use of the Platform and its Content, whether in contract, tort (including negligence), breach of statutory duty, or otherwise.
10.3 To the maximum extent permitted by law:
- (a) your use of the Platform and its Content is at your own risk;
- (b) all warranties, representations and any liability which may arise in relation to your access to or use of (including any inability to use) the Platform or the Content is expressly excluded. Specifically, we do not warrant, guarantee or make any representation:
  - (i) regarding the accuracy, adequacy, reliability, completeness or timeliness of the Content;
  - (ii) that the Content is suitable for your intended use;
  - (iii) that the Platform or Content is free from human or mechanical error, technical inaccuracies or other typographical errors or defects; and
- (c) we are not liable to you or any other party for any:
  - (i) direct, indirect, incidental, special or consequential loss or damage, including personal injury, loss of programs or data, loss of business, loss of opportunity, business interruption, adverse effect on reputation and/or goodwill or lost profits, to the extent permitted by law;
  - (ii) loss, damage or inconvenience suffered due to the unavailability, withdrawal, corruption or loss of any Content; or
  - (iii) the actions of any other user of the Platform.
10.4 Nothing in this Agreement excludes, restricts or modifies any consumer guarantee, right or remedy available to either party, including any available under Schedule 2 of the Competition and Consumer Act 2010 (Cth), or any other applicable law that cannot be excluded, restricted or modified by agreement. To the extent that WorkinAUS is able to limit the remedies available under this Agreement, WorkinAUS expressly limits its liability for breach of a non-excludable statutory guarantee to the following remedies:
- (a) the supply of the services again; or
- (b) the payment of the cost of having the services supplied again.

11. Maintenance

11.1 You acknowledge and agree that from time to time we may need to suspend access to all or a part of the Platform or Content made available via the Platform, including for maintenance purposes. As a result, there may be times that the Platform and/or its Content may not be accessible or unavailable to you. For the avoidance of doubt, nothing in these Terms requires us to take such actions.

12. Dispute Resolution

12.1 In the event of a dispute, the parties must, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this Agreement (a "dispute") prior to commencing any proceedings in any court or otherwise in respect of that dispute ("proceedings"). The parties acknowledge that compliance with those provisions is a condition precedent to any entitlement to claim relief or remedy by way of proceedings in respect of a dispute.
12.2 If a party requires resolution of a dispute, it must immediately submit full details of the dispute to the other party. Both parties must nominate their representatives to meet within 10 business days to resolve the dispute by formal negotiation.
12.3 If a dispute is not resolved within 20 business days of the date of meeting or within such other longer period as they agree, the dispute shall be referred to mediation in accordance with the below process.
12.4 The dispute must be submitted to mediation by the party requiring resolution of that dispute in Sydney, NSW to be administered by Australian Centre for International Commercial Arbitration (ACICA) in accordance with the ACICA Mediation Rules before a mediator to be agreed. If the parties cannot agree on a mediator, the chief executive for the time being of ACICA (or nominee) will be requested to appoint a mediator within 10 business days of the request.
12.5 A party may not commence proceedings in respect of a dispute unless that dispute is not settled by mediation within 20 business days of submission to mediation or within such other longer period as the parties agree in writing.
12.6 Any costs of mediation will be equally shared by the parties.
12.7 While any dispute remains unresolved, the parties agree to continue to perform the Agreement to the extent that such performance is possible, given the nature of the dispute.
12.8 This clause does not limit in any way a party’s right to seek any form of equitable relief including, without limitation, injunctive relief.

13. Miscellaneous

13.1 These Terms are governed by the laws of New South Wales, Australia. By accessing and using the Platform, you agree to submit to the exclusive jurisdiction of the Courts of New South Wales, Australia. If you access the Platform from other jurisdictions, you are responsible for compliance with local laws.
13.2 Any term by its nature intended to survive termination or expiry of these Terms survives termination of these Terms.
13.3 Our failure to enforce any of these Terms shall not be construed as a waiver of any of our rights.
13.4 These Terms do not create a relationship of employment, trust, agency or partnership between the parties.
13.5 If any term is unenforceable, it shall be read down so as to be enforceable or, if it cannot be read down, the term shall be severed from these Terms without affecting the enforceability of the remaining terms.
13.6 If you have any questions, complaints, concerns, or legal notices, please contact us through the form at https://workinaus.com.au/contact or by sending an email to [email protected]
13.7 These Terms set out the entire agreement between the parties in relation to the use of this Platform.

WorkinAUS Listing Terms

14. Application

14.1 These Listing Terms apply to Employers and are incorporated by reference into the Platform Terms.
14.2 By visiting or using the Platform, creating an Account, and/or posting a Listing through the Platform, you agree:
- (a) to be bound by these Listing Terms as an Employer until such time as this Agreement is terminated; and
- (b) that you are at least the age of majority in your state or territory of residence, or that you are the age of majority in your state or territory of residence.
- (c) unless your primary business is that of a recruitment agency or appointed migration specialist (with a migration agent registration number or legal practicing number), you warrant that you will not post Listings on behalf of a third party; and
- (d) you warrant you that you will not allow a third party access to your account to post their own Listings.

15. Appointment

15.1 You appoint WorkinAUS to promote and facilitate the distribution of your Listings via the Platform. Without limitation, this includes the non-exclusive right for WorkinAUS to advertise the Listings on the Platform, including by using the User Content you provide to us. Where WorkinAUS receives an application to your Listing, we will use our best endeavours to provide the application to you.
15.2 Nothing in the Agreement restricts WorkinAUS from advertising, marketing or selling products that are the same as, or similar to, your Listings on the Platform.

16. Payment processor terms

16.1 By using the Platform, you agree to adhere to Stripe’s Connected Account Agreement found here: https://stripe.com/au/connect-account/legal, which governs your use of Stripe Connect, and describes how you and the Platform uses Stripe’s services to process payments. Please review and agree to Stripe’s terms before continuing to use this Platform.
16.2 You acknowledge and agree that we may, from time to time, change our payment provider.

17. Listings

17.1 Subject to payment of any relevant Fee, Employers may use the Platform to submit a Listing, which may be placed by the categories set out in the Platform.
17.2 You warrant that each Listing you submit:
- (a) complies with all applicable legislation (including the Australian Consumer Law and labour laws), and in particular does not contain any information that may mislead or deceive any person as to the availability, nature, terms of, or any other matter, relating to the relevant opportunity;
- (b) complies with these Listing Terms; and
- (c) relates to a single, current, genuine, paid employment opportunity offered by you, your employer or an entity who has authorised you to post the Listing on their behalf; and
- (d) does not relate to any illicit activities, including any modern slavery.
17.3 You must promptly remove a Listing once the employment opportunity has been fulfilled.
17.4 You must promptly provide us with any information that we request relating to any Listing to verify that a genuine, paid employment opportunity exists, to confirm the accuracy of information in the Listing or to confirm that a Listing submitted by you is posted in the correct category on the Platform.
17.5 We reserve the right to refuse or subsequently remove any Listing, including where:
- (a) the Employer has not complied with its obligations under this Agreement;
- (b) WorkinAUS reasonably believes that the Listing infringes any third party rights, contravenes any law or is prohibited or offensive; or
- (c) WorkinAUS has not been able to verify the information provided to WorkinAUS by the Employer.
17.6 If we do so, we may notify you by contacting the e-mail and/or billing address/phone number provided at the time the Listing was made.
17.7 The Employer acknowledges and agree that WorkinAUS has no control over the quality, truth or accuracy of information received by the Employer through the use of the Platform, including any applications in response to Listings. The Employer acknowledges and agrees that it is responsible for ensuring the reliability of any information or material accessed via the Platform, and any reliance on such information is entirely at its own risk.

18. Adpost and Aptrack

18.1 The following additional terms apply when the Employer purchases access to the services identified as Adpost and/or Aptrack (and any references to “Platform” in these Terms shall be understood to include use of such services).
18.2 “Adpost” and “Aptrack” mean products owned and controlled by oneworldmarket Ltd (trading as IDIBU) that is integrated into the Platform. The Employer acknowledges and agrees that the use of Adpost and Aptrack shall be governed by the applicable terms set out at https://ww2.idibu.com/terms, and the Employer agrees to comply with such terms.

19. Fees

19.1 Depending on the package purchased by the Employer, WorkinAUS will either: (a) for the on demand packages, charge on a pay-as-you-go manner; or (b) for subscriptions, calculate and bill fees monthly in advance. The Employer must pay the Fee for the Listing in full and in advance, using one of the payment methods we support. Any credit card information provided by the Employer must be correct and kept up to date.
19.2 WorkinAUS reserves the right to obtain a credit, or similar, check before conducting or continuing to conduct business with you. If so, you must either comply with WorkinAUS’ reasonable requirements or immediately stop using the Platform.
19.3 The Fees are subject to change without notice. Any such changes will apply on a prospective basis only.
19.4 If WorkinAUS offers any discounts on any Fees, it may do so subject to additional terms and conditions with which you must comply before you can take advantage of the discount.
19.5 Where GST, or an equivalent tax, is payable in respect of the Fees or any other payment under these Listing Terms, you are solely responsible for all such taxes payable under this Agreement.
19.6 Unless otherwise stated, all amounts are quoted in Australian Dollars.
19.7 Where the Employer has purchased the on-demand package, we reserve the right to suspend your access to the Platform, and any of your Listings, if your credit card provider declines payment at any time. Where the Employer has purchased a recurring month-to-month or fixed period subscription, if your credit card provider declines payment, we will retry the payment again over the next few days. Where the payment is declined again, we reserve the right to downgrade the Employer to the on-demand package or otherwise suspend your access to the Platform and any of your Listings. We may also charge you interest on late payments at the applicable cash rate specified by the Reserve Bank of Australia plus 2%, and any costs we incur in collecting payment from you.

20. Privacy

20.1 In addition to any obligations under our privacy policy, you agree that if you receive personal information of a candidate through the Platform (Candidate Information), then:
- (a) you must collect all necessary consents and inform the candidate on how the Employer collects, uses, transfers, disclosures and protects the personal information of its candidates and employees;
- (b) at all times, you must comply with all relevant privacy laws in respect of the Candidate Information;
- (c) the Candidate Information must only be used by you in relation to your genuine employment and/or recruitment activities. In particular, you must not sell or offer for sale any eservices or products to candidates; and
- (d) you must not disclose Candidate Information to any third party, except with the candidate’s express prior consent.

21. Modern Slavery

21.1 You shall comply with any and all applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force, including but not limited to the Australian Modern Slavery Act 2018 (Cth) (MSA).
21.2 You must not engage in any activity, practice or conduct that would constitute an offence under the MSA if such activity, practice or conduct were carried out in Australia.
21.3 You must include in their contracts with their direct subcontractors, recruiters, vendors and suppliers anti-slavery and human trafficking provisions that are at least as onerous as those set out in this clause.
21.4 You must implement due diligence procedures for its own business, its suppliers, subcontractors and other participants in its supply chains, to ensure that there is no slavery or human trafficking in its supply chains.
21.5 You shall notify WorkinAUS as soon as it becomes aware of any actual or suspected slavery or human trafficking in any part of the Employer’s business or in a supply chain which has a connection with this Agreement.

22. Disclaimer and Indemnity

To the maximum extent permitted by law neither WorkinAUS nor its licensors are migration or legal advisors and nothing contained in the Platform will be construed as to make a representation or warranty, express or implied, regarding the results, outcomes or decisions of any migration or visa application, or labour market testing. The Platform licensed under this Agreement does not constitute, and should not be construed, as legal or migration advice and you understand and agree that you may need to obtain relevant professional advice for assistance in these areas.
Except for any liability of a party under any indemnity, to the maximum extent permitted by law, in no event will the aggregate liability of either party or its related bodies corporate arising out of or in connection with this Agreement (whether caused by breach of contract or tort (including negligence) or breach of statutory duty, in equity or arising in any other way) exceed the total fees paid or payable by the Employer to WorkinAUS under the Agreement during the twelve (12) month period prior to the time at which the loss, cost, claim or damages arose.

23. Indemnity

23.1 You agree to indemnify, defend and hold WorkinAUS and our affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from and against any claim or demand, including reasonable legal fees: (a) made by any third party (including in respect of any User Dispute) due to, or arising out of or in connection with, any of your User Content or Listings, , or your violation of any law or the rights of a third-party, including privacy and intellectual property rights; (b) for any breach of intellectual property rights of WorkinAUS.

24. Termination

24.1 This Agreement may be terminated by either party on written notice if the other party commits a breach of any term of these Terms which it has failed to remedy within 30 days of the date of the notice.
24.2 The Employer may terminate its month-to-month subscription with WorkinAUS at any time by providing written notice and the subscription will terminate at the end of the then-current paid month. Where the Employer has engaged WorkinAUS on a longer fixed term, the Employer may terminate such a subscription at any time and the subscription will terminate at the end of the fixed term period.

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