GradAustralia Pty Ltd ABN 43 168 218 782 ("GradAustralia", "we" or "us") operates an online career platform allowing users ("User" or "You") to access, request or offer internship, graduate roles and programmes for university graduates (“Student”) and to access career information ("GradAustralia Services") via GradAustralia’s platform, including through our website at http://www.gradaustralia.com.au, any GradAustralia mobile software application available on the Apple or Android app stores or any other platform we may introduce in the future ("GradAustralia Platform").
Use of the GradAustralia Platform or use of the GradAustralia Services confirms that You agree to be bound by these Terms & Conditions.
1.1 GradAustralia provides career information (in print and electronic form) as well as a platform for persons (“Advertisers”) to promote to promote prospective internship, graduate roles and programmes (“Position”) to qualified Students.
1.2 A reference to a User in this agreement includes Students, Advertisers and any other person that accesses the GradAustralia Platform.
1.3 Users can access the GradAustralia Platform without registering, or where required, create an account with GradAustralia when they validly complete a registration form or link their social media account on the GradAustralia Platform (“User Account”). A User Account may be required to advertise, or apply for, a Position unless otherwise specified.
1.4 GradAustralia accepts no liability for any aspect of the Student and Advertiser interaction, including but not limited to the description of the Position offered and the performance of either the Student or the Advertiser. GradAustralia has no obligation to any User to assist in any way in any dispute between a Student and an Advertiser.
1.5 All information related to the Position is supplied by Advertisers and other Users. GradAustralia does not undertake any responsibility to review, approve or verify any User provided information prior to publication on the GradAustralia Platform.
1.6 You expressly agree that GradAustralia has no responsibility and makes no warranty as to the truth or accuracy of any aspect of any information provided by Users (including all Advertisers and Students), including, but not limited to, the ability of Advertisers to provide the Position, or the Students’ ability to perform in the Position.
1.7 GradAustralia makes no representation or warranty that:
(a) any material on the GradAustralia will be relevant, accurate, reliable or complete (nor does GradAustralia accept any responsibility arising in any way for errors in, or omissions from that material, even if those errors or omissions occur on account of GradAustralia’s negligence or gross negligence); or
(b) Your access to the GradAustralia Platform will be timely, secure or uninterrupted.
1.8 Your use of, or reliance upon, the material on the GradAustralia Platform is entirely at your own risk. Users agree to confirm and verify any material directly with the Advertiser before acting on the information.
1.9 The GradAustralia Platform contains contact details for various Advertisers. In placing these contact details on the GradAustralia Platform, GradAustralia makes no representation as to the relevance, currency or accuracy of such details.
1.10 Any third party name, contact details, hyperlink or trade mark depicted on the GradAustralia Platform is for information purposes only and is not intended, and nor shall it be, an endorsement or a recommendation by or on the part of GradAustralia of any person, product or service.
2.1 To create an account and use the GradAustralia Services You must be able to form legally binding contracts under applicable law. If You do not qualify to use the GradAustralia Services, You must not use the services.
2.2 You may register an account either directly or via your supported social media credentials, provided such registration does not breach the terms and conditions of use of that social media platform.
2.3 You must not establish more than one GradAustralia account.
2.4 While You are registered with GradAustralia You must maintain control of Your GradAustralia account. You may not deal with Your account (including Reviews and associated user id) in any way (including by allowing others to use Your account or by transferring or selling the account or any of its content to another person).
2.4 At its absolute discretion, GradAustralia may refuse to allow any person to register or create an account with GradAustralia or cancel or suspend any existing account.
2.5 Account names must not be:
(a) misleading or deceptive;
(b) offensive; or
(c) in violation of any law or Third-Party rights.
3.1 You warrant and agree that at all times:
(a) You will comply with this Agreement (including all GradAustralia Policies) and all applicable laws and regulations;
(b) You will post only accurate information on the GradAustralia Platform;
(c) You will promptly and efficiently perform all Your obligations to other GradAustralia Users;
(d) all content (whether provided by GradAustralia, a User or a Third-Party) on the GradAustralia Platform may not be used on Third-Party sites or for other business purposes without GradAustralia’s prior permission; and
(e) You will ensure that You are aware of any laws that apply to You as a Student or an Advertiser, or in relation to any other way(s) that You use the GradAustralia Platform;
(f) You have all right, title, and interest to any content you transmit to or via the GradAustralia Platform, including but not limited to any consent, authorization, release, clearance or licence from any third party (such as, but not limited to, any release related to rights of privacy or publicity) necessary for You to provide, post, upload, input or submit the posted content;
3.2 You must not use the GradAustralia Platform for any illegal or unlawful purpose or in such a manner as to cause loss or damage, including reputational damage, to GradAustralia. Your use of the GradAustralia Platform must not, in any way whatsoever, be potentially or actually harmful to GradAustralia or any other person. "Harm" includes, but is not limited to, economic loss that will or may be suffered by GradAustralia.
3.3 Without limiting any provision of this Agreement, any information You supply to GradAustralia or published on the GradAustralia Platform must be up to date and kept up to date and must not:
(a) be false, inaccurate or misleading or deceptive;
(b) be fraudulent or involve illegal conduct;
(c) infringe any Third-Party's copyright, patent, trademark, trade secret or other proprietary rights or intellectual property rights, rights of publicity, confidentiality or privacy;
(d) violate any applicable law, statute, ordinance or regulation (including, but not limited to, those governing export and import control, consumer protection, unfair competition, criminal law, antidiscrimination and trade practices or fair trading laws);
(e) be defamatory, libellous, threatening or harassing;
(f) be obscene or contain any material that, in GradAustralia's sole and absolute discretion, is in any way inappropriate or unlawful, including, but not limited to obscene, inappropriate or unlawful images;
(g) advertise for goods and services or solicit funds; or
(h) contain any malicious code, data or set of instructions that intentionally or unintentionally causes harm or subverts the intended function of the GradAustralia Platform, including, but not limited to viruses, Trojan horses, worms, time bombs, cancelbots, Easter eggs or other computer programming routines that may damage, modify, delete, detrimentally interfere with, surreptitiously intercept, access without authority or expropriate any system, data or personal information.
3.4 You grant to GradAustralia an unrestricted, worldwide, royalty-free licence to use, reproduce, modify and adapt any content and information posted on the GradAustralia Platform for the purpose of including that material and information on the GradAustralia Platform and as otherwise may be required to provide the GradAustralia Service, for the general promotion of the GradAustralia Service and as permitted by this Agreement.
4.1 “Intellectual Property” means anything which is or can be the subject of intellectual property rights including any:
(a) work or sound recording as defined in the Copyright Act 1968 (Cth);
(b) trade mark as defined in the Designs Act 2003 (Cth), whether registrable or not;
(c) invention as defined in the Patents Act 1990 (Cth), whether patentable or not;
(d) trade secrets, know how or other information protected by law, and in each case, whether registered or unregistered, and including all applications (and rights to apply) for, and renewals or extensions of such rights and all rights of action for infringement of such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world and any improvements and/or modifications to such rights.
4.2 GradAustralia is the owner or the licensee of all Intellectual Property rights in the GradAustralia Platform and in the material published thereon (“Content”).
4.3 You acknowledge that all Intellectual Property rights in the Content anywhere in the world belong to GradAustralia or our licensors, that rights in the Content are licensed, and not sold, to You, and that You have no rights in, or to, the Content other than the right to use each of them in accordance with these terms.
4.4 You grant GradAustralia an irrevocable, non-exclusive, royalty-free, perpetual, and worldwide licence to use and sub-license content and Intellectual Property You publish or transmit on or through the GradAustralia Platform.
4.5 You irrevocably, voluntarily and unconditionally consent to all or any acts or omissions by GradAustralia, or persons authorised by GradAustralia, concerning any and all of the moral rights made or to be made by You in relation to content You upload or otherwise place on the Sites which would otherwise infringe Your moral rights.
5.1 GradAustralia grants you a non-exclusive licence to access and use the Content owned by, but not licensed to, GradAustralia for your personal, non-commercial purposes.
5.2 You must not use, modify, reproduce, distribute, deal with, assign, sub-license, compile or adapt any Content for any purpose other than as set out in this Agreement.
6.1 GradAustralia may at its discretion include tools to help Users to verify the identity or bona fides of other Users, or to match Students with potential Advertisers (“Identity Verification and Matching Services”). These Identity Verification and Matching Services may include mobile phone verification technology, algorithms, verification of payment information, a "Reviews" feature (allowing a User of the GradAustralia Service to request other Users to post a reference on the GradAustralia Platform endorsing that User), and integration with social networking sites such as Facebook, Twitter and LinkedIn.
6.2 You agree that Identity Verification and Matching Services may not be accurate as they are dependent on User-supplied information, and that GradAustralia makes no warranty as to the accuracy of the Identity Verification Services, or the suitability of any GradAustralia User or Advertiser so matched. Identity Verification and Matching Services are provided for Your convenience only and are not recommendations by GradAustralia.
6.3 The GradAustralia Services Identity Verification and Matching Services may be modified at any time.
7.1 Registering and creating a basic User Account with GradAustralia is free. There is no charge for a Student to request Position, or for other GradAustralia Users to review content on the GradAustralia Platform, including requested Position.
7.2 If You are an Advertiser the applicable fees are set out in the Advertiser Terms and Conditions which form part of this Agreement.
8.1 GradAustralia may from time to time include on the GradAustralia Platform promotions for and links to services offered by third parties ("Third-Party Services"). These Third-Party Services are not provided by GradAustralia.
8.2 Third-Party Services are offered to You pursuant to terms and conditions offered by the Third-Party. Third-Party Services may be promoted on the GradAustralia Platform as a convenience to our Users who may find the Third-Party Services of interest or of use.
8.3 If You engage with any Third-Party Service provider Your agreement will be directly between You and that Third-Party Service provider.
8.4 GradAustralia makes no representation or warranty as to the Third-Party Services.
9.1 Except for liability in relation to breach of any implied condition, warranty or guarantee, including under the Competition and Consumer Act 2010 (Cth), the exclusion of which from a contract would contravene any statute or cause any part of this Agreement to be void ("Non-excludable Term"), to the extent permitted by law GradAustralia specifically disclaims all liability for any loss or damage (actual, special, direct, indirect and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed (including, without limitation, loss or damage relating to any inaccuracy of information provided, or the lack of fitness for purpose of any goods or service supplied), arising out of or in any way connected with any use of the GradAustralia Platform, GradAustralia Services or any transaction between Students and Advertisers.
9.2 Except for liability in relation to a breach of any Non-excludable Term, to the extent permitted by law, GradAustralia specifically disclaims all liability for any loss or damage (actual, special, direct, indirect and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed (including, without limitation, loss or damage relating to any inaccuracy of information provided, or the lack of fitness for purpose of any goods or service supplied), arising out of or in any way connected with any transaction between You and any Third-Party who may be included from time to time on the GradAustralia Platform.
9.3 Except for liability in relation to a breach of any Non-excludable Term, GradAustralia's liability to any User of this service is limited to the total amount of fees paid by that User to GradAustralia during the twelve month period prior to any incident causing liability of GradAustralia.
9.4 GradAustralia's liability to You for a breach of any Non-excludable Term (other than a Non-excludable Term that by law cannot be limited) is limited, at our option to any one of resupplying, replacing or repairing, or paying the cost of resupplying, replacing or repairing goods in respect of which the breach occurred, or supplying again or paying the cost of supplying again, services in respect of which the breach occurred.
9.5 Your right to bring an action against GradAustralia in relation to any alleged contravention by GradAustralia of section 18 of the Australian Consumer Law (or equivalent State or Territory legislation) is modified such that You can only make such a claim if You have issued notice of the claim and legal proceedings within 60 days after the right to bring such an action arose. You are barred from bringing any such action and waive any rights to bring any such action after that time.
10.3 You acknowledge and agree that internet transmissions are never completely private or secure. You understand that any message or information You send using the GradAustralia Platform or GradAustralia Services may be read or intercepted by others, even if there is a special notice that a particular transmission is encrypted.
Except for liability in relation to any Non-excludable Term, the GradAustralia Platform and GradAustralia Service is provided on an "as is" basis, and without any warranty or condition, express or implied. To the extent permitted by law, we and our suppliers specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement to extent allowed by law. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
(a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful Third-Party conduct, or theft, destruction, alteration or unauthorised access to records;
(b) the accuracy, suitability or currency of any information on the GradAustralia Platform, the GradAustralia Services, or any related products (including Third-Party material and advertisements on the GradAustralia Platform);
(c) costs incurred as a result of you using the GradAustralia Platform or the GradAustralia Services; and
(d) the services or operation in respect to hyperlinks which are provided for Your convenience.
12.1 GradAustralia may vary this Agreement from time to time. GradAustralia will notify you of variations by sending a message to Your User Account, Your email address held on file, or by posting the information on the GradAustralia website.
12.2 Except as stated in this Agreement, in a Policy, or as otherwise notified to You, all amended terms will automatically be effective 14 days after they are initially notified to You. Each time You use the GradAustralia Platform in any manner after the expiry of that 14-day period or such other notice period notified to You, You acknowledge any changes to the Agreement (including the Policies) and confirm Your agreement to be bound by the Agreement as it may have been varied.
12.3 If You do not agree with any changes to this Agreement (or any of our Policies), You must terminate Your GradAustralia account and stop using the GradAustralia Services. Except as specifically described in or authorised by this Agreement, the terms of this Agreement and any GradAustralia Policy cannot be amended except in writing signed by You and GradAustralia.
13.1 No agency, partnership, joint venture, employee-employer or other similar relationship is created by this Agreement. In particular, You have no authority to bind GradAustralia, its related entities or affiliates in any way whatsoever. GradAustralia confirms that all Third-Party Services that may be promoted on the GradAustralia service are provided solely by such Third-Parties. To the extent permitted by law, GradAustralia specifically disclaims all liability for any loss or damage incurred by You in any manner due to the performance or non-performance of such Third-Party service.
13.2 Without limiting 13.1, each Advertiser is an independent contractor and no agency, partnership, joint venture, employee-employer or other similar relationship is created by this Agreement. GradAustralia acts as a mere introducer.
14.1 You agree to indemnify, defend and hold harmless us and our officers, directors, employees, agents, information providers, partners, advertisers, licensors and suppliers from and against all losses, expenses, damages and costs, including reasonable solicitor's fees, resulting from any violation of this Agreement, including but without limitation, breaches of Your obligations under this Agreement, or any activity related to Your User Account (including infringement of third parties' intellectual property rights anywhere in the world or negligent or wrongful conduct) by you or any other person accessing the GradAustralia Platform using Your User Account.
15.1 Except as stated otherwise, any notices must be given by registered ordinary post or by email, either to GradAustralia's contact address as displayed on the GradAustralia Platform, or to Your contact address as provided at registration. Any notice shall be deemed given:
(a) if sent by email, 24 hours after email is sent, unless the Student is notified that the email address is invalid or the email is undeliverable, and
(b) if sent by pre-paid post, three Business Days after the date of posting, or on the seventh Business Day after the date of posting if sent to or posted from outside Australia. In this section, "Business Day" means a day on which banks are open for general business in Sydney, New South Wales, other than a Saturday, Sunday or public holiday.
(c) Notices related to performance of any Third-Party Service must be delivered to such Third-Party as set out in Third-Party Service Provider terms and conditions.
16.1 You must resolve disputes with other Users directly. You acknowledge and agree that GradAustralia may, in its absolute discretion, provide such of Your information as it decides is suitable to other parties involved in the dispute.
16.2 If You have a complaint about the GradAustralia Service please contact us at contact@GradAustralia.com.au.
16.3 If GradAustralia provides information of other GradAustralia Users to You for the purposes of resolving disputes under this clause, You acknowledge and agree that such information will be used only for the purpose of resolving the dispute (and no other purpose) and that you will indemnify GradAustralia against any claims relating to any other use of information not permitted by this Agreement.
17.1 Subject to the Advertiser Terms & Conditions, if applicable, either party may terminate an account and this Agreement at any time for any reason.
17.2 Termination of this Agreement does not affect any agreement that has been formed between GradAustralia Users. If You have entered an agreement with another User, You must comply with the terms of that agreement.
17.3 Clauses 3, 9, 11 and 14 and any other terms, which by their nature should continue to apply, will survive any termination or expiration of this Agreement.
18.1 This Agreement is governed by the laws of New South Wales, Australia. You and GradAustralia submit to the exclusive jurisdiction of the courts of that State.
18.2 The provisions of this Agreement are severable, and if any provision of this Agreement is held to be invalid or unenforceable, such provision may be removed and the remaining provisions will be enforceable.
18.3 This Agreement may be assigned or novated by GradAustralia to a Third-Party without Your consent. In the event of an assignment or novation You will remain bound by this Agreement.
18.4 This Agreement sets out the entire understanding and agreement between You and GradAustralia with respect to its subject matter.
All capitalised terms not otherwise defined have the same meaning as in the General Terms & Conditions.
In the event of any conflict or inconsistency between these Advertiser Terms & Conditions and the General Terms & Conditions, these Advertiser Terms & Conditions shall take precedence to the extent of any such conflict or inconsistency.
In these Terms & Conditions ("Conditions") the words/expressions referred to below shall have the following meanings except where the context otherwise requires:
2.1. The Promotion Agreement shall be formed when the Client's Order Confirmation or the Client’s Advertisement copy is received and then either acted upon by virtue of performance of all or any part of the Promotion Services by GradAustralia, or accepted in writing or by electronic means such as email by GradAustralia’s authorised representative.
2.2. The Promotion Agreement incorporates:
(a) the General Terms & Conditions;
(b) these Advertiser terms & Conditions; and
2.3 In the event that a person submits an Order Confirmation as agent on behalf of its principal, then the agent must specify the principal's name as well as its own on the Order Confirmation failing which GradAustralia will reject the same.
2.3. The acceptance by GradAustralia of the Client's Order Confirmation does not confer the right to renew on similar terms.
3.1. The Client warrants that:
(a) any description relating to itself and its products or services in the Advertisement is true and accurate and is not likely to mislead or deceive;
(b) the Advertisement does not contravene any law or regulation and is not defamatory;
(c) it will at all times comply with all relevant advertising standards guidelines and regulations including those issued by the Advertising Standards Bureau;
(d) it will supply a copy for Advertisements prior to copy deadlines, as notified or published by GradAustralia;
(e) where applicable, it will attend and participate in Events where it is agreed that it will do so as part of the delivery of the Promotion Services;
(f) it has all the necessary consents, approvals and authority to licence to GradAustralia all Intellectual Property it, or its agents or contractors provide to GradAustralia for the purpose of GradAustralia carrying on its business;
(g) information and Intellectual Property the Client provides to GradAustralia does not violate or constitute the infringement of any patent, copyright, trademark, trade secret, right of privacy, right of publicity, moral rights, or other Intellectual Property right recognized by any applicable jurisdiction of any person or entity, or otherwise constitutes a breach of any agreement with any other person or entity;
(h) information the Client provides to GradAustralia is true, and accurate and is not misleading or deceptive in any way or particular; and
(i) where the Client is acting as agent, that it will procure compliance of clauses 3.1(a) to3.1(h) by its principal for whom Promotion Services are being procured.
3.2 If the Client breaches clause 3.1 it shall immediately rectify the breach and fully indemnify GradAustralia against any fines, losses, costs, damages, charges, claims, demands, expenses direct losses, loss of profits and indirect and consequential losses incurred by GradAustralia as a result of the Client's breach.
3.3 The Client shall be responsible for insuring all films, artwork, photographic and other advertising materials delivered to GradAustralia and GradAustralia shall not be liable to any loss or damage thereto while the same is in its possession or control.
3.4 The Client shall be responsible for collecting any films, artwork, photographic and other materials submitted to GradAustralia for the purposes of the Advertisement. GradAustralia shall accept no responsibility for any such items which are not collected by the Client.
3.5 The Client grants GradAustralia an irrevocable, non-exclusive, royalty-free, perpetual, and worldwide license to use content and Intellectual Property the Client provides GradAustralia, including, without limitation:
(a) the rights to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, modify, alter, translate and reformat the Client’s content, and/or to incorporate it into a collective work; and
(b) the right to sublicense any or all of GradAustralia’s license rights to others.
3.6 For the avoidance of doubt, this means GradAustralia has the right to use any and all Intellectual Property and other material the Client submits (including articles, features, photographs, and audio-visual materials, ideas about GradAustralia products, services, publications or advertising campaigns) in any manner GradAustralia determines, without notice.
3.7 The Client irrevocably, voluntarily and unconditionally consents to all or any acts or omissions by GradAustralia, or persons authorised by GradAustralia, concerning any and all of the moral rights made or to be made by the Client in relation to content the Client provides GradAustralia which would otherwise infringe the Client’s moral rights.
4.1 All Advertisements must be submitted by the Client for the approval of GradAustralia prior to publication. GradAustralia reserves the right to refuse, omit, alter, suspend, withdraw or otherwise deal with any Advertisement at its absolute discretion and without explanation or liability to the Client. The Client acknowledges that GradAustralia’s approval does not include any approvals relating to the Advertisements not infringing Intellectual Property rights of any person.
4.2 Banner Advertisements run on a calendar monthly basis. All visuals and copy for Banner Advertisements must be supplied to GradAustralia at least 10 Working Days prior to the first day of the calendar month in which the Banner Advertisement is to first appear.
4.3 Visuals and copy shall be supplied in accordance with GradAustralia’s publication deadlines as published/advised on a periodic basis or, in the case of Banner Advertisements, in accordance with clause 4.2. If the Client fails to comply with this clause 4.3:
(a) GradAustralia shall not be under an obligation to supply proofs to the Client and reserves the right to use the copy last supplied by the Client; and
(b) GradAustralia shall be entitled to payment of its fee in accordance with clause 6, even if no visuals or copy have been supplied.
4.4 If the Client fails to approve and return any proof submitted by GradAustralia, GradAustralia reserves the right to print the Advertisement as prepared.
4.5 GradAustralia cannot accept responsibility for changes to approved copy although it will use its reasonable endeavours to make these if they are submitted prior to the final copy deadline as published/advised from time to time, provided always where changes are made pursuant to this clause 4.5 the Client shall be responsible for any additional costs thereby incurred by GradAustralia.
5.1 GradAustralia shall use its best endeavours to ensure the appearance of contracted for Advertisements but does not accept liability for the non-appearance of any Advertisement. In the case of Advertisements for Publications, it is hereby agreed that GradAustralia’s best endeavours shall not extend to reprinting any Publication, but the Client will be offered the next available and/or relevant alternative.
5.2 Unless the parties have agreed to the position of the Advertisement in the Publication or on the Website (in which case this shall be agreed in writing by the parties) GradAustralia does not guarantee the position of any Advertisement in the Publication or on the Website. Where the Client has expressed a preference only as to the position of its Advertisement in the Publication or on the Website GradAustralia shall use its reasonable endeavours to comply with the Client's preference but shall have no liability to if the Advertisement is not published in the preferred position.
5.3 GradAustralia shall use its reasonable endeavours to procure attendance at Events, and shall use its best endeavours to act reasonably to all sponsors in the case of Events sponsored by a number of clients (always taking into account any difference in the level of sponsorship purchased by sponsors). GradAustralia will advise clients of its experience of the usual acceptance/subsequent attendance ratios, but GradAustralia shall not be liable for actual attendance levels being lower than those anticipated.
5.4 The Client also acknowledges that the Website and associated services GradAustralia provides may be liable to disruption, disconnection or other like event, being beyond the control of GradAustralia and that the Client must still pay for the services GradAustralia provides notwithstanding that such services may not have been active for the whole time they were intended to be provided.
6.1 Where the Promotion Services include Workplace Surveys (including graduate satisfaction surveys) the provisions of this clause 6 shall additionally apply.
6.2 The Client must make best efforts to invite those of its employees who have graduated in the last three years to take part in a Workplace Survey carried out by GradAustralia. The Workplace Survey may be completed on an anonymous basis but respondents are given the opportunity to have a copy of the synopsis/review prepared by GradAustralia as part of the Workplace Survey (“Report”) sent to them, in which case each individual respondent requesting a copy will need to provide his/her name and email address to GradAustralia for such purpose.
6.4 The Client agrees that if it collects the completed Workplace Survey from respondents on behalf of GradAustralia, it shall forward them all to GradAustralia and shall not use them for any purpose, in particular but without limitation the Client agrees not to supply the completed Workplace Survey or Report to any third party.
6.5 The Client agrees that GradAustralia shall own all copyright and other Intellectual Property rights in the Workplace Survey, the responses contained in the Workplace Survey and the Report and the Client shall take all steps reasonably required by GradAustralia to give effect to this clause 6.5. The Client acknowledges that it has no licence, implied or otherwise, to use the Intellectual Property rights comprised in and/or from the Workplace Survey or Report, other than to the extent necessary to pass such information on to GradAustralia. In particular but without limiting the foregoing, the Client has no right to copy or transfer any Workplace Survey, responses contained in the Workplace Survey or Report to any third party without the prior written consent of GradAustralia.
6.6 GradAustralia shall use reasonable care and skill when conducting the Workplace Survey and preparing the Report. GradAustralia shall provide the Client with a draft of the Report prior to publication and shall take reasonable account of any request by the Client for changes to be made to the Report, provided always that GradAustralia shall have ultimate editorial control over the Report. If the Client objects to the Report it may request that GradAustralia does not publish it but in such event the Client shall not be entitled to any refund of the fees due or already paid to GradAustralia.
6.7 Unless otherwise agreed, the Client must not copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, modify, alter, translate and reformat the Client's content, and/or to incorporate it into a collective work, and must not sublicense any or all of GradAustralia's rights to others.
7.1 The fee payable by the Client to GradAustralia shall be in accordance with GradAustralia’s published rates or as otherwise agreed in writing by the parties.
7.2 All fees are exclusive of Goods and Service Tax, but any fees for which Goods and Services Tax is payable shall be recoverable from the Client in addition to the fees.
7.3 GradAustralia shall be entitled to invoice the Client immediately following GradAustralia’s acceptance of the Client's Order Confirmation or the Client’s Advertisement Copy as the case may be
7.4 The Client shall pay GradAustralia within 30 days of the date of GradAustralia’s invoice. The fees shall be payable in full and the Client shall not be entitled to make any deduction or exercise any right or set-off counterclaim or contribution howsoever arising. The time of payment of the fees shall be of the essence of the Promotion Agreement.
7.5 GradAustralia reserves the right to request and receive full payment prior to acceptance of an Order Confirmation if, in the opinion of GradAustralia, the credit-worthiness of the Client is not satisfactory or the Client has not paid previous invoices within GradAustralia’s usual payment terms. Furthermore, if at any time in the opinion of GradAustralia the credit-worthiness of the Client shall have deteriorated prior to performance by GradAustralia of any Promotion Services GradAustralia may require full or partial payment of the fees prior to such supply, or the provision of security for payment for the Client in a form acceptable to GradAustralia.
7.6 If the Client fails to make any payment on the due date then without prejudice to any other right or remedy available to GradAustralia, GradAustralia shall (at its option) be entitled to:
(a) treat the Promotion Agreement as repudiated by the Client and cancel publication of any Advertisement or cease the Promotion Services (as the case may be), claim damages from the Client and charge the Client interest both before as well as after any judgment on the amount unpaid at the rate of 4% per annum above the base rate from time to time of the Commonwealth Bank of Australia from the date payment is due until payment is made; or
(b) affirm the Promotion Agreement, claim damages from the Client and charge the Client interest in accordance with clause 7.6(a).
7.7 Where the Client pays a subscription for an agreed number of Banner Advertisements or advertisements on any Website during an agreed period of time ("Subscription Period") and the Client fails to take up the agreed number during the Subscription Period:
(a) the Client shall not be entitled to a refund of the fees in respect of the Advertisements which has failed to take up during the Subscription Period; and
(b) the Client shall not be entitled to carry forward Advertisements which has failed to take up during one Subscription Period into a subsequent Subscription Period.
7.8 In addition to other rights GradAustralia has, the Client indemnifies and must keep indemnified GradAustralia for any costs of enforcement or recovery relating to the payment of fees the Client owes GradAustralia (including legal fees).
The Client may not cancel an Order Confirmation which has been accepted by GradAustralia.
9.1 The content and terms of this Promotion Agreement shall be confidential as between the parties and there shall be no breach of that confidence by either party.
9.2 Save as provided in clause 9.1, each party agrees and undertakes that it will keep confidential and will not use for its own purposes nor without the prior written consent of the other party disclose to any third party all information of a confidential nature, (including but not limited to trade secrets and information of commercial value) which may become known to such party from the other unless such information is public knowledge (other than by breach of this clause 9) or is required to be disclosed by a court of competent jurisdiction. Breach of this clause 9.2 shall not be subject to the terms of clause 10 (Limitation of Liability).
9.3 The obligations in this clause 9 continue:
(a) for matters in the nature of a trade secret, for an unlimited period of time; and
(b) for all other matters comprised in the confidential information, the latest date to which it would be reasonable to protect the interests of the party which owns the information, but in any event not less than 24 months after this Promotion Agreement terminates or otherwise expires (whichever is the later).
10.1 Except for liability in relation to breach of any implied condition, warranty or guarantee, including under the Competition and Consumer Act 2010 (Cth), the exclusion of which from a contract would contravene any statute or cause any part of this Agreement to be void, or as otherwise provided in this Promotion Agreement, all conditions, warranties and representations expressed or implied by statute, common law or otherwise in relation to GradAustralia’s obligations hereunder are hereby excluded.
10.2 Without prejudice to any other terms in this Promotion Agreement the aggregate liability of GradAustralia shall not in any circumstances (except in respect of death or personal injury caused by GradAustralia’s negligence) exceed the total sum payable by the Client to GradAustralia under this Promotion Agreement. Where GradAustralia fails to provide a service, its total liability to the Client shall be limited to a refund of the fees paid or payable by the Client for the service or the cost of resupply of that service (the choice of which is at GradAustralia’s discretion). Where the service not so performed has been ordered as part of a Package, GradAustralia shall reasonably determine the proportion of the total payment relating to the unpublished/unperformed service its total liability to the Client in respect of the unpublished/unperformed service shall be limited to such proportion.
10.3 GradAustralia shall not be liable to the Client for any indirect or consequential losses or damages (including but not limited to loss of profits) whether arising from breach of contract negligence or howsoever.
10.4 Nothing in these terms shall limit or exclude our liability for any other liability that cannot be excluded or limited by Australian law. Where such liability cannot be excluded, the Client’s remedy is limited, in the case of goods, to the resupply or cost of resupply of such goods, and in the case of services, to the resupply of such services or cost of such resupply and in all cases (goods and services) at the election of GradAustralia.
10.5 The Client agrees to indemnify and hold GradAustralia and its employees and agents harmless from and against any claims, actions or demands including without limitation, the Client’s breach of any one or more warranties or terms of this Promotion Agreement.
11.1 Notwithstanding and without prejudice to clause 7 above GradAustralia shall be entitled to terminate this Promotion Agreement immediately by giving written notice to the Client if the Client fails to make payment in accordance with this Promotion Agreemen.
11.2 Either party is entitled to terminate this Promotion Agreement immediately in any of the following events:
(a) if the other party convenes a meeting of its creditors, becomes insolvent, is unable to pay its debts, has an administrative receiver or receiver or administrator appointed over its assets or business or is the subject of a petition presented to put it in into liquidation; or
(b) if the other party in is in breach of any material term of this Promotion Agreement, such material term being incapable of remedy or incapable of remedy within 7 days.
11.3 In any such case the party exercising the right of termination shall be entitled to charge the other party any costs, charges or expenses (direct or consequential) howsoever arising incurred by the terminating party.
11.4 Termination of this Promotion Agreement howsoever, shall not affect the accrued rights or the liabilities of either party.
12.1. The Client shall not be entitled to assign or otherwise transfer the benefit of its obligations under this Promotion Agreement without the prior written consent of GradAustralia.
12.2. GradAustralia may assign or otherwise transfer the benefit of its obligations under this Promotion Agreement by giving notice to the Client.
13.1 If either party is unable to perform its obligations by reason of matters beyond its control including but not limited to any act of terrorism, war, riot, civil commotion, compliance with any law or governmental order, fire, flood or storm, strikes, lock-outs or other industrial disputes (whether involving the workforce of the party so prevented or of any other party) delay in transit, power failure, postal delay, the party so affected will notify the other party and the parties agree to delay the performance of this Promotion Agreement for as long as may be reasonably necessary until the cause(s) giving rise to force majeure has/have ceased.
14.1 Before court or arbitration proceedings other than for urgent interlocutory relief may be commenced, the following steps must be taken to attempt to resolve any dispute that arises out of or in connection with this contract (including any dispute as to the validity, breach or termination of the contract, or as to any claim in tort, in equity or pursuant to any statute).
14.2 Notice (the notice of dispute) must be given in writing by the party claiming that a dispute has arisen to the other party (or parties) to this contract specifying the nature of the dispute.
14.3 Upon receipt of the notice of dispute, the parties must attempt to agree upon an appropriate procedure for resolving the dispute.
14.4 If within 10 business days of receipt of the notice of dispute the dispute is not resolved or an appropriate alternative dispute resolution process is not agreed, then the parties shall refer the dispute to Resolution Institute, (ACN 008 651 232; Level 2, 13-15 Bridge Street, Sydney NSW 2000; email: firstname.lastname@example.org; telephone: (61-2) 9251 3366, for facilitation of a mediation in accordance with Resolution Institute's Mediation Rules.
14.5 The parties must co-operate with Resolution Institute as facilitator.
14.6 If within 10 business days after referral of the dispute to Resolution Institute the parties have not agreed upon the mediator or other relevant particular the mediator and any other relevant particular will be determined in accordance with Resolution Institute’s Facilitation Rules.
14.7 This clause will remain operative after the contract has been performed and notwithstanding its termination.
15.1 Any representations made by GradAustralia prior to the making of the Promotion Agreement shall not form part of the Promotion Agreement and shall be of no effect. The Promotion Agreement supersedes all prior agreements, arrangements and undertakings between GradAustralia and the Client relating to the subject matter hereof. No variation or addition shall be binding upon the parties unless made in writing and signed by the authorised representatives of both parties.
15.2 If any provision or part of a provision of this Promotion Agreement shall be or be found by any court of competent jurisdiction to be invalid or unenforceable such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of this Promotion Agreement all of which shall remain in full force and effect.
15.3 Any notice hereunder shall be deemed to have been duly given if sent by prepaid first class registered post or by electronic mail to the party concerned at its registered office or principal place of business or such other address as may have been notified pursuant to this provision to the party giving the notice. Notices sent by first class registered post shall be deemed to have been given 7 days after despatch and notices sent by electronic mail shall be deemed to have been given on the date of despatch, unless the sender receives an automated notice of non-delivery or receipt.
15.5 Address for Notices:
(a) For GradAustralia notices should be sent to The Group Finance Director, GradAustralia Pty Ltd, Level 3, 793 George Street, Haymarket, NSW, 2000, Australia, or via electronic mail to: email@example.com
(b) For the Client the address to which notices should be sent shall be that on the Order Confirmation unless otherwise advised in writing by the Client.
(c) Calls made to GradAustralia by the Client may occasionally be recorded for training purposes. The Client consents to such recording.
15.6 If GradAustralia fails to insist that the Client perform any of its obligations under this Promotion Agreement, or if GradAustralia does not enforce its rights against the Client, or if GradAustralia delays in doing so, that will not mean that GradAustralia has waived its rights against the Client and will not mean that the Client does not have to comply with those obligations. If GradAustralia does waive a default by the Client, GradAustralia will only do so in writing, and that will not mean that GradAustralia will automatically waive any later default by the Client.
15.7 No agency, partnership, joint venture, employee-employer or other similar relationship is created by this Agreement. In particular, the Client has no authority to bind GradAustralia, its related entities or affiliates in any way whatsoever.
15.8 This Promotion Agreement, its subject matter and formation, is governed by the law of New South Wales, Australia. The Client and GradAustralia both agree that the Courts of that State will have exclusive jurisdiction.
15.9 Each provision of this Promotion Agreement operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
16.1 Provisions in this Promotion Agreement must not be construed against GradAustralia because GradAustralia was responsible for or put forward that provision or because that provision benefits GradAustralia.
16.2 In this Promotion Agreement unless the context indicates a contrary intention:
(a) headings are for convenience and do not affect interpretation;
(b) the plural shall include the singular and vice versa;
(c) a reference to any gender shall be taken to include every other gender;
(d) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(e) a reference to this Promotion Agreement includes a reference to any amendment, novation, variation, supplemental deed or replacement from time to time in existence;
(f) a reference to an agreement or document (including these terms) is to the agreement or document as amended, varied, supplemented, novated or replaced, except to the extent prohibited by these terms or that other agreement or document;
(g) a reference to writing includes any method of representing or reproducing words, figures, drawings, or symbols in a visible form;
(h) reference to any statute, or any subordinate legislation or instrument includes all statutes, subordinate legislation or instruments amending, modifying, consolidating, re-writing, re-enacting or replacing them and a reference to a statute includes all subordinate legislation and instruments made under that statute.
(i) a reference to conduct includes, an omission, statement or undertaking, whether or not in writing;
(j) a reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement, whether or not in writing;
(k) a reference to a document includes an agreement (as so defined) in writing and any certificate, notice, instrument and document of any kind;
(l) a reference to dollars and $ is to Australian currency;
(m) the meaning of general words is not limited by specific examples introduced by including, or for example, or similar expressions; and
(n) references to agree, approve or consent are references to agreement, approval or consent (as the case may be) in writing.