Terms & Conditions
In this Agreement the following definitions apply:
Account has the meaning given in clause 7.
Additional Account Holder means any party specified in the Service Details or otherwise notified in writing to Referoo by you that you would like to add to your Account.
Agreement means this Services Agreement, comprised of the Terms of Service, any Statements of Work and any schedules and annexures.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Background IP means Intellectual Property developed, owned by or licensed to a party as at the Commencement Date, or acquired or developed by a party during the Term, other than for the sole purpose of this Agreement, which that party has the right to license to third parties and which are necessary or desirable for the performance of the Services.
Candidate means any individual that you are completing reference checks for using the Services.
Commencement Date means either:
(a) the date that you accept these Terms of Service; or
(b) the date which is specified as the Commencement Date in the Statement of Work,
whichever is earlier.
Communication Tools means any forum, chat room or messaging service available as part of the Platform or on Referoo’s website.
Completed Reference Check means when at least one or more References are returned through the Platform for one Candidate.
Confidential Information of a party means all confidential, non-public or proprietary information exchanged between the parties before, on or after the Commencement Date relating to the business, technology or other affairs of each party including but not limited to products, features, know-how, data, process, technique, program, software and source code, design, drawing, formulae, test, work in progress, engineering, patents, patent applications, research and development plans, manufacturing, marketing, financial or personnel matter, sales, investor or business information, business methods or operations, business models or plans, other business information or intellectual property matters, or which comes into a party’s possession pursuant to, or as a result of, any negotiations or discussions in connection with this Agreement including the existence, nature and terms of this Agreement, whether disclosed verbally, in writing, graphic, in electronic form or by any other means;
Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties at the Commencement Date as a likely result of breach of this Agreement:
(a) incidental, special, remote or unforeseeable loss or damage;
(b) loss of revenue, profit, income, opportunity, use, business, contract, goodwill, or anticipated savings, loss caused by business interruption, but excluding loss of any amounts that would, but for the act or omission of a party, have otherwise been payable under this Agreement;
(c) costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or
(d) loss or damage of the nature set out above in clauses (a) to (c) (inclusive) that is incurred or suffered by or to a third party.
Data Breach means any actual, potential or suspected:
(a) impairment, compromise or damage to the confidentiality, reliability, integrity or assurance of the User Content;
(b) flaw or vulnerability of any kind in the security controls or other measures used to protect the User Content; or
(c) misuse or loss of, interference with or unauthorised access to, modification of or disclosure of User Content;
Fee means the fees for the Services and access to the Platform, as specified in the Service Details.
GST means the goods and services tax imposed by A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Infringement Claim is any actual, threatened or potential claim, demand, proceeding, suit, objection or other challenge:
(a) affecting either parties' ownership of, or rights in, that party's Background IP; or
(b) claiming that the supply or other use of the Material or Background IP, infringes or may infringe the Intellectual Property rights of a third party.
Intellectual Property means all rights conferred under statute, common law or equity, wherever in the world subsisting, in relation to trade marks, copyright, patents, patentable inventions and designs, whether existing now or in the future and whether or not registered or registrable, and includes any rights subsisting in or relating to Confidential Information, trade secrets, know-how, inventions, discoveries, geographical indications of origin, code, source code, microcode, methods, techniques, formulae, algorithms, modules, libraries and databases and further includes the right to apply for the registration or grant of any such intellectual property.
Monthly Subscription Tiers means the fees that apply to different levels of service, based upon the volume of reference checks performed through the Platform as set out on in the Service Details, or as otherwise agreed by the parties.
Personal Information means data by which a person may be personally identified, including a person's name, postal address, email address, telephone number and any other information a party collects, including that which is defined as personal or personally identifiable information under applicable Privacy Laws.
Payment Method means a financial instrument that you have added to your Account such as a credit card, debit card, or any payment processing services available on the Referoo website from time to time.
Platform is the online platform developed and owned by Referoo to conduct online automated reference checks of Candidates for our users.
Privacy Laws means all domestic and international privacy data protection and anti-spam laws, rules, regulations and regulatory guidance relating to privacy, data security, cybersecurity, anti-spam and the collection, storage, use and disclosure of Personal Information, as applicable to either party.
Referee means any individual who is asked to provide a Reference for your Candidate through the Platform.
Reference means any references provided by Referees for Candidates through the Platform.
Services means providing the Platform and any support services.
Service Details means the technical and/or functional specifications (if any) for the Services set out in either:
(a) the Statement of Work; or
(b) on the Platform during the sign-up process.
Statement of Work means the schedule, proposal or scope of works specifying the Services to be provided by Referoo to you.
Subscription means the subscription payment model for access to the Platform which are available as:
(a) a monthly subscription where the Fees are withdrawn using your Payment Method on a monthly basis in accordance with clause 13.2;
(b) a quarterly, annual or pre-paid subscription where the Fees are invoiced in accordance with clause 13.3 or
(c) otherwise agreed by the parties in writing.
Support Levels means the general support services and levels as set out on the Referoo website from time to time or in the Service Details.
Term means the initial subscription term set out in the Service Details, together with any renewals in accordance with clause 3.
Third Party IP means any Intellectual Property Rights in material of any form owned by a third party.
User means an employee or contractor of the Client, or any Additional Account Holder, where applicable, who uses or has used the Platform.
User Content means material, content, data or information, References provided for your Users, your Candidates, your messages through the Communication Tools, and any other content created, generated or transmitted by you, your Users or Referees for your Candidates through the Services.
In this Agreement:
(a) words such as including and for example do not limit the meaning of the words preceding them;
(b) no provision of this Agreement will be construed to the disadvantage of a party merely because that party was responsible for preparing this Agreement or including the provision in this Agreement;
(c) all monetary amounts are expressed in Australian Dollars ($AUD); and
(d) the parties must perform their obligations on the dates and times fixed by reference to New South Wales, Australia.
2. Legally binding agreement
(a) You will be taken to have accepted, and will be legally bound by, this Agreement if you:
(i) sign any Statement of Work and return it to us electronically or by other means;
(ii) click “I accept” on these Terms of Service where the option is made available to you;
(iii) make a payment in respect of any of the Platform after receiving or being presented with these Terms of Service; or
(iv) access or use the Platform after receiving or being presented with these Terms of Service.
(b) This Agreement applies to all transactions between Referoo and you relating to the provision of the Platform and constitutes a separate legal agreement in respect of each Statement of Work that you receive and accept (either by signing or otherwise proceeding with a Service, including by making a payment in respect of a Service).
(c) In the event of any inconsistency between these Agreement and the Statement of Work, the terms of the Statement of Work will prevail to the extent of the inconsistency.
(a) This Agreement commences on the Commencement Date and continues for the initial term set out in the Service Details.
(b) At the end of the initial term or any further terms, the Agreement will automatically renew for a further term of the same period as the initial term, unless the Subscription is cancelled in accordance with clause 21 or this Agreement is otherwise terminated in accordance with clause 22.
4. Scope of our Services
(a) We act as an intermediary between you and any Referees for your Candidates and our role is limited to facilitating your access to the Platform.
(b) For the avoidance of doubt, we do not create, provide, control, deliver or supply any Referees or References.
(c) We do not become a party to or participant in any contractual relationship between you and a Candidate or you and a Referee.
5. Customer Obligations
You and your Users will work with Referoo to facilitate the provision of the Services including by:
(a) not unreasonably impeding Referoo’s provision of the Platform;
(b) ensuring you comply with the Payment Terms in the Service Details;
(c) not infringing any Third Party IP or any other contractual or proprietary rights of another client of Referoo or third party;
(d) not unreasonably withholding any payments; and
(e) complying with all applicable laws.
6. Referoo's Obligations
(a) Referoo will for the duration of the Term, provide the Services in accordance with this Agreement.
(b) Referoo must:
(i) perform its obligations under this Agreement with due care and skill and in a timely and professional manner;
(ii) take out and maintain adequate public liability insurance in the amount of $10 million with a reputable insurance provider to satisfy its liabilities arising out of this Agreement throughout the Term;
(iii) comply with all laws and maintain any licences or authorisations required for the purposes of providing the Services; or
(iv) to the extent possible, control, co-ordinate, supervise, direct and complete all activities necessary to provide the Services.
(c) Referoo may, but is not obliged to, monitor the use of the Platform. Referoo may remove or block, or direct you to remove or block, any User Content from the Platform if it believes, in its absolute discretion, that such User Content breaches this Agreement.
(a) You and your Users may be allowed to create an account (Account) for the purposes of accessing the Platform. Registration may require you to provide personal details including a valid email address, telephone number, and a username and password for log in purposes (Registration Details).
(b) If you or your Users’ registration information changes, you and your Users must promptly update your Account to reflect those changes.
(c) You and your Users are responsible for keeping your Account details, including username and password, secure and confidential at all times.
(d) You and your Users must immediately notify Referoo of any unauthorised use of or access to your Accounts, or any other breaches of security.
(e) Referoo has the right to suspend your and your Users’ access to your and your Users’ Accounts, or to terminate your and your Users’ Account at any time if you breach this Agreement.
(f) You may add Additional Account Holders to your Account at any time by:
(i) by agreeing with us in advance to vary your Statement of Work (if applicable); or
(ii) through the relevant function in your Account; and
(iii) paying any Fees for the Additional Account Holders in accordance with clause 13.
(g) You acknowledge that:
(i) it is your responsibility to verify the identity of your Users, including the Additional Account Holders;
(ii) it is your responsibility to ensure the security of your Account; and
(iii) Referoo will not be held liable or responsible for any unauthorised access to or use of your Account.
8. Use of Platform
8.1 By accessing the Platform and Services, you and your Users must:
(a) use the Platform for lawful purposes only;
(b) not commit any act or engage in any practice that:
(i) is harmful to our systems, reputation or goodwill; or
(ii) interferes with the integrity of the Platform, including, but not limited to, by hacking, transmitting any viruses, spyware, malware or any other code of a destructive or disruptive nature;
(c) not create Accounts with us through unauthorised means, including by using an automated device, script, bot or other similar means;
(d) not restrict, or attempt to restrict, another Client or any Referees from using the Platform;
(e) not encourage or facilitate violations of this Agreement;
(f) not distribute or send communications that contain spam, chain letters, or pyramid schemes;
(g) not harvest or otherwise collect information about others, including Registration Information, without their consent;
(h) not bypass measures used to prevent or restrict access to the Platform;
(i) not interfere with the privacy of, harass, intimidate, act violently or inappropriate towards or be discriminatory against a Candidate or Referee; and
(j) not infringe any intellectual property rights or any other contractual or proprietary rights of a Candidate, Referee or third party.
8.2 By accessing the Platform and using our Services, you agree and acknowledge that:
(a) you are responsible for determining who your Users are and are responsible for your Users’ use of the Platform and Service;
(b) you and your Users are authorised to access and use the User Content accessible on the Platform;
(c) you and your Users are responsible for complying with any relevant legislation and regulations that may become applicable as a result of any contractual relationship you enter into with a Candidate or Referee;
(d) we are not obliged to confirm the identity of the Referees;
(e) we have no control over of the conduct of Referees or your interactions with Referees (whether in person or online). Your obtaining of (and a Referee’s provision of) any Reference, is at your own risk;
(f) we do not guarantee the existence, availability, suitability, legality of any Referee’s Reference; and
(g) we reserve the right, but are not obliged, to monitor, review, verify, edit, modify or delete User Content and we do not control the accuracy or completeness of User Content.
9. Usage Limits
(a) Your Service Details may include limits on the number of reference checks or Completed Reference Checks that can be conducted by you during the Term (Usage Limit) and your use of the Platform is subject to such Usage Limits.
(b) If you or your Users reach your Usage Limit, you and your Users will not be able to conduct further reference checks during the Term (Additional Reference Checks) unless you add Additional Reference Checks either:
(i) by agreeing with us in advance to vary your Statement of Work (if applicable); or
(ii) through the function in your Account, and
(iii) pay any fees for the Additional Reference Checks in accordance with clause 13 and the Monthly Subscription Tiers set out in the Service Details.
(c) If you do not reach your Usage Limit during the Term, any unused reference checks will not be rolled over to any further term(s).
10. Employment Checks
(a) Your Service Details may include pre-employment screening checks (Employment Checks) that can be conducted during the Term through the Platform.
(b) The Employment Checks that are available through the Platform are set out on Referoo’s website.
(c) You can conduct Employment Checks where:
(i) Employment Checks are included in your Statement of Work;
(ii) you have agreed with us in advance to vary your Statement of Work to include Employment Checks; or
(iii) you have sought Employment Checks through the function in your Account; and
(iv) you pay any fees for the Employment Checks in accordance with clause 13.
11. User Content
(a) You are solely responsible for User Content:
(b) You must ensure that the User Content does not contain anything which:
(i) is offensive, abusive or menacing;
(ii) is pornographic, obscene or indecent;
(iii) is unlawful;
(iv) is an invasion of privacy
(v) infringes any Third Party IP; or
(vi) incites, or is capable of inciting, violence, racial hatred, cruelty or which encourages any unlawful or illegal act or omission.
(c) You grant Referoo a non-exclusive, non-transferable, non-assignable, royalty-free, irrevocable, worldwide licence to access, copy, modify and store the User Content to the extent necessary for the purposes of providing the Service and performing our obligations under this Agreement.
12. Maintenance and Support
(a) Referoo may amend, upgrade or conduct maintenance of the Platform at any time. Where practicable, Referoo will advise you of any material changes to the Platform by providing written notice to you and publishing information on the Referoo website.
(b) Referoo does not guarantee that any change, error correction or patch will be compatible with any application, other software or interface that connects to or interfaces with the Platform.
12.2 Support levels and assistance requests
(a) Referoo will provide requested assistance that aligns with the Support Levels set out in the Service Details (if applicable), or otherwise, the support as set out on its website during the hours on its website (accessible here) provided that you give Referoo notice in accordance with this clause 12.2 and reasonably assist Referoo where necessary.
(b) Requests for assistance should be made by:
(i) using the chat bot on our website; or
(ii) emailing us at firstname.lastname@example.org.
(c) You agree to assist Referoo with investigating and ascertaining the cause of any error and provide Referoo with all necessary information relevant to the error (including but not limited to any act or omission by you or your Users which may have contributed to the error).
(d) If Referoo agrees to provide any requested assistance, Referoo may charge you for that assistance at Referoo’s standard rates in force at that time.
13. Fees and payment terms
(a) In consideration for Referoo providing the Services, you must pay Referoo the Fees in accordance with this clause 13 unless otherwise specified in your Payment Terms.
(b) There will be no increase in your Fees regardless of any changes in the Usage Limit during the Term, unless you provide Referoo with written notice to upgrade your Usage Limit or do so through the function on your Account. Referoo will upgrade your Usage Limit and apply the associated Usage Limited Fees effective as at the start of the next billing period.
(c) On each anniversary of the Term or any further terms, the Fees payable for the further terms will be increased in accordance with the Monthly Subscription Tiers that are current as at the commencement date of the further term and are applicable based on your usage in the previous term.
13.2 Monthly Subscription
(a) If you select a monthly Subscription for access to and use of the Platform (Monthly Subscription), Referoo will charge Fees to you on a monthly basis using the Payment Method selected by you.
(b) You acknowledge that any Payment Method may be subject to its own terms and conditions and you agree to review and be bound by those terms and conditions before using the Payment Method.
(c) Referoo reserves the right to delay or cancel any payments of your Monthly Subscription for purposes of preventing unlawful activity, fraud, risk assessment, security or investigation.
(d) Referoo will take steps to rectify any payment processing errors that we become aware of. These steps may include crediting or debiting (as appropriate) the same Payment Method used for the original payment by you, so that you end up receiving or paying the correct amount.
(e) You are responsible for:
(i) ensuring that your nominated Payment Method has sufficient funds to pay the Fees;
(ii) paying all bank fees, including fees charged by your bank for an overdraw of your account as a result of payment of the Fees; and
(iii) if any payment fails, any reasonable administration fees.
(a) Unless otherwise specified in your Payment Terms or in this clause 13, Referoo will issue you an invoice for the Fees.
(b) You must pay each invoice within 14 days of the date of the invoice (Due Date).
13.4 Dispute of invoices
(a) If you dispute any invoices issued or Fees charged by Referoo under this Agreement, you must:
(i) notify Referoo of the amount in dispute and the reason for dispute by the Due Date; and
(ii) pay any amounts not in dispute.
(b) The parties must resolve any dispute under this clause 13.4 in accordance with clause 25.
(c) If it is resolved some or all of the amount in dispute should have been paid by the Due Date, you must pay the amount finally resolved together with interest on that amount calculated in accordance with clause 13.5(a).
13.5 Failure to pay
If you do not make a payment by the Due Date or in accordance with your Service Details, Referoo is entitled to:
(a) charge interest on the outstanding amount at a rate equivalent to the reference rate charged by Referoo's principal bank, accruing daily;
(b) suspend your access to the Platform until such time as payment is received;
(c) terminate this Agreement without notice; and/or
(d) recover any losses suffered by Referoo as a result of your failure to pay.
(a) Unless otherwise specified, the Fees are exclusive of GST.
(b) If GST is payable in respect of a supply made under or in relation to this Agreement, you must pay to Referoo, an amount equal to the GST payable on the supply (GST Amount). The GST Amount is payable by you in addition to and at the same time as any consideration for the supply.
15. Confidential Information
15.1 Protection of Confidential Information
Each party must keep confidential any Confidential Information disclosed to it or made available to it by the other party.
15.2 Removal of Confidential Information
At the reasonable request of the party to whom the Confidential Information belongs, each party must deliver, erase or destroy all electronic and physical documents in its possession or control that contain Confidential Information.
15.3 Return exceptions
If a party must retain the other party's Confidential Information for the purpose of:
(a) complying with any law;
(c) internal quality assurance and record-keeping; or
(d) performing its obligations or exercising its rights under this Agreement,
it may retain and use it solely for this purpose but must deal with the Confidential Information in accordance with clause 15.2 promptly after it is no longer required for this purpose.
(b) Each party must:
(i) take all reasonable steps to ensure that Personal Information held or accessed in connection with this Agreement is protected against misuse, interference and loss, and from unauthorised access, modification and disclosure;
(ii) comply with all Privacy Laws in relation to Personal Information, even if a party is not an entity regulated under those Privacy Laws;
(iii) only collect, store, use, disclose or otherwise deal with Personal Information in accordance with all Privacy Laws;
(iv) only use or disclose Personal Information to the extent necessary to use or provide the Services; and
(v) not do any act, engage in any practice, or omit to do any act or engage in any practice that:
(A) would result in a breach of a Privacy Law if the Privacy Law applies to those things done, engaged in or omitted to be done by the party; or
(B) would cause the other party to breach or be taken to breach a Privacy Law.
(c) You must:
(i) immediately notify Referoo of any Data Breach and provide information, assistance and other cooperation as requested by Referoo in respect of the Data Breach;
(ii) co-operate with any reasonable requests or directions of Referoo relating to the security, use, disclosure, and transfer of Personal Information handled under this Agreement, including:
(A) Referoo’s legal obligations relating to the Personal Information,
(B) complaints relating to the Personal Information; and
(C) the rights of individuals to access and correct their Personal Information, and
17. Intellectual Property
(a) Background IP will remain the sole property of the owner. Neither party acquires any right, title or interest in or to the Background IP of the other party by virtue of this Agreement or the disclosure or use of the Background IP during the performance of the Services, other than as expressly set out in this Agreement.
(b) We own or are the licensee of all rights, title and interest (including Intellectual Property Rights) in the Platform or to the material (including all text information and content, graphics, logos, type forms and software) made available to you on the Platform (Platform Content). Your use of and access to the Platform does not grant or transfer any rights, title or interest to you in relation to the Platform Content.
(c) You may access the Platform using a web browser or mobile device, and electronically copy and print hardcopies of the Platform Content solely for your personal, non-commercial use.
(d) You must not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, commercially exploit, reverse engineer, create derivative works from, transfer, or sell any Platform Content or any other material in whatever form contained within the Platform unless expressly stated otherwise in this Agreement.
(e) Referoo may request the use of your name and any of your User Content for the business or commercial (including marketing and promotional) purposes of Referoo. If you consent to the request, you grant Referoo a royalty free, worldwide, perpetual, irrevocable, non-exclusive, transferable, assignable, sub-licensable licence to use, reproduce, modify, copy, store, share, and exploit any such User Content for the business or commercial purposes of Referoo.
18. Third Party Links
The Platform may contain links and other pointers to Internet websites or applications operated by third parties. Referoo does not control these linked websites and is not responsible for the contents of any linked website. Your access to any such website is entirely at your own risk. You should contact the relevant third-party directly to enquire as to the accuracy and completeness of that information prior to entering into a transaction in relation to the third-party products and services.
19.1 Mutual warranties
Each party represents and warrants to the other party as at the Commencement Date and during the Term that:
(a) it has full power and authority to enter into, perform and observe its obligations under this Agreement, and that its execution, delivery and performance of this Agreement has been duly and validly authorised by all necessary corporate action; and
(b) its obligations under this Agreement are valid, binding and enforceable.
19.2 Referoo's warranties to you
Referoo represents and warrants to you as at the Commencement Date and at all times during the Term that:
(a) to the best of its knowledge, it has the right and power to grant to you the licences under this Agreement; and
(b) it has the level of skill, knowledge, experience and ability which may be reasonably expected of a professional organisation or individual, as applicable, experienced in providing services of the type and complexity of the Services.
19.3 No warranties in relation to completion
(a) Referoo provides no warranty that any result or objective can or will be achieved or attained through the use of the Platform.
(b) Referoo provides no warranty or representation that any References or other objectives will be attained by using the Platform.
19.4 No warranties in relation to fitness for purpose
(a) Referoo provides no warranty as to the Platform being fit for purpose, continuous, uninterrupted, accurate, error-free, virus-free, secure or accessible at all times.
(b) Referoo provides no warranty as to the suitability of the Platform for any purpose other than that specified in this Agreement or in the Service Details, which it may interpret, and apply using its experience, skill and judgment.
20.1 To the fullest extent permitted by law, you agree and acknowledge that:
(a) our Platform is provided “as is” and “as available” and the entire risk arising out of your use of the Platform remains solely with you;
(b) we do not control, endorse and are not responsible for any Referees, References or User Content, including whether or not Referees provide any References through the Platform and Services;
(c) we retain complete control over the Platform and may alter, amend or cease the operation of the Platform in our discretion;
(d) while we adhere to best practice policies and procedures to prevent data loss or unauthorised access or disclosure, including regular system back-ups, we do not make any guarantees that there will be not loss of or unauthorised access to or disclosure of your User Content; and
(e) we may remove any content, material and/or information, including any User Content, without giving any explanation or justification for removing the material and/or information.
(a) You may cancel your Subscription at any time through the function in your Account.
(b) Your cancellation will take effect at the end of the then current subscription billing period.
(c) Referoo will not provide a refund for the remainder of the subscription billing period in which you cancel your Subscription.
(d) If you cancel your Subscription under this clause 21, your Account will be removed and your User Content will be dealt with in accordance with clauses 22.4 and 22.5.
22.1 Termination upon notice
Referoo may terminate this Agreement for convenience by providing 30 days written notice to you.
22.2 Termination for cause
Either party may terminate this Agreement by notice with immediate effect if the other party:
(a) commits a material breach of the Agreement that is not capable of remedy;
(b) commits a material breach of the Agreement capable of remedy, and does not remedy that breach within 14 days after receipt of notice of the breach; or
(c) is bankrupt, or is liquidated or wound up, or if a controller, administrator, receiver, manager or similar insolvency administrator is appointed to a party, or over any substantial part of its assets.
22.3 Termination by Referoo for your default
Referoo may immediately terminate this Agreement by notice to you, if:
(a) you fail to pay one or more undisputed amounts due and payable;
(b) Referoo issues a notice to you that it intends to terminate this Agreement pursuant to this clause 22.3 if payment of the outstanding amount, plus interest, is not received within 14 days of you receiving the notice; and
(c) you fail to make payment of the outstanding amount plus interest within 14 days of receiving a notice in accordance with the clause 22.3(b).
22.4 Effect of termination
(a) If this Agreement is terminated by Referoo under clause 22 or by you under clause 21 or 22:
(i) all money owing by you to Referoo under this Agreement will immediately become due and payable by you to Referoo;
(ii) your access to the Platform will be limited to viewing your existing References only;
(iii) you may request in writing for Referoo to delete your User Content, which Referoo will do within a reasonable amount of time;
(iv) the parties will negotiate in good faith for the completion or early termination of any References commenced but not completed as at the effective date of termination; and
(v) Referoo will not be liable to you for any costs, losses or damages arising as a result of terminating your access to the Platform.
22.5 Return or destruction of User Content
(a) If this Agreement is terminated under clause 22, you may request in writing within 30 days of the date of termination:
(i) if you have been using the Services longer than 6 months, one free copy of your User Content, with additional copies for a fee to be determined at Referoo’s discretion, acting reasonably; or
(ii) if you have been using the Services for less than 6 months, a copy of your User Content for a fee to be determined at Referoo’s discretion, acting reasonably.
(b) Referoo will provide you with reasonable assistance, as determined by Referoo, to enable the transfer of the User Content or backups to you or a third party nominated by you.
(c) If you do not request a copy of your User Content within 30 days of the date of termination in accordance with clause 22.5(a) Referoo may permanently erase your User Content.
22.6 Preservation of rights
Expiry or termination of this Agreement for any reason does not affect any rights of either party against the other which arose prior to the time at which such termination or expiry occurred, or which otherwise relate to or which may arise at any future time for any breach or non-observance of obligations under this Agreement occurring prior to the termination or expiry.
23. Indemnity and Infringement Claim
23.1 Mutual indemnities
(a) Subject to the limitation of liability under clause 26.1, each party (Indemnifying Party) indemnifies the other party (Indemnified Party) and their directors, employees and representatives (together, Indemnified Persons) against all and any reasonable Claims (including, but not limited to, reasonable legal costs and defence or settlement costs) directly arising out of:
(i) any fraudulent or unlawful act or omission of the Indemnifying Party or its representatives;
(ii) any third-party claim; and
(iii) any Infringement Claim,
except to the extent the liability, loss, damage, cost or reasonable expense is caused or contributed to by the act or omission of the Indemnified Persons or its representatives.
(b) It is not necessary for a party to incur expense or make a payment before enforcing a right of indemnity conferred by this clause 23.1.
23.2 Conduct of Infringement Claims
If an Infringement Claim is made:
(a) the Indemnified Party must promptly notify the Indemnifying Party of the Infringement Claim and provide assistance at the Indemnifying Party's expenses for the purposes of managing the Infringement Claim, as reasonably requested by the Indemnifying Party; and
(b) the Indemnifying Party is responsible for and will have the right solely to control the defence and settlement of the Infringement Claim.
24. Force Majeure
(a) For the purposes of this Agreement, Force Majeure means anything outside the reasonable control of a party regardless of whether it is reasonably contemplated by the parties at the Commencement Date as a likely result of breach of the Agreement.
(b) If a Force Majeure event prevents Referoo from providing the Services, Referoo will notify you of the Force Majeure event and the anticipated impact on Referoo's performance of the Services.
(c) If a Force Majeure event continues for more than 45 days, either party may terminate the Agreement by written notice to the other without liability for damages of any kind, including for Consequential Loss.
25. Dispute Resolution
(a) A party must not commence legal proceedings relating to this Agreement unless the party wishing to commence proceedings has complied with this clause 25. However, this clause will not apply where a party seeks urgent interlocutory relief from a court.
(b) If a dispute arises between the parties out of or relating to this Agreement, then:
(i) the party alleging the dispute must notify the existence and nature of the dispute to the other party within 10 days of the dispute arising (Notification);
(ii) upon receipt of a Notification, the parties must, within 5 days of receipt of the Notification, engage in good faith negotiations and use best endeavours to resolve the dispute;
(iii) if the dispute is not resolved as provided in paragraph (ii) within 14 days of receipt of the Notification, then any party may refer the dispute to mediation as provided in paragraph (iv) and must do so before initiating proceedings in a court to resolve the dispute;
(iv) any dispute which is referred to mediation must be referred to the Resolution Institute and must be conducted in accordance with the Mediation Rules of the Resolution Institution or the parties may appoint a mediator by mutual agreement; and
(v) if the dispute is not resolved within 30 days of referral to mediation, any party is free to initiate proceedings in a court in respect of the dispute.
26. Liability and Exclusion
26.1 Limitations on liability
(a) To the fullest extent permitted by law, the total liability of a party to the other party under or in connection with this Agreement in respect of all claims will not exceed the Fees paid or payable for the Services in the 12 months prior to the claim.
(b) Referoo will not be liable for any loss or damage suffered by you as a result of any deficiency or alleged deficiency in the Platform or Service which is attributable to:
(i) the use of any Third Party IP or asset in the provision of the Services;
(ii) any use of the Platform by you;
(iii) incorrect or inaccurate information provided by you; or
(iv) failure by you to provide sufficient or accurate information for the correct functioning of the Platform or as reasonably required for Referoo to perform the Services.
26.2 Implied terms
(a) Subject to clause 26.2(b), any condition or warranty which would otherwise be implied in this Agreement is excluded.
(b) Pursuant to s64A of the Australian Consumer Law, this clause applies regarding any services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption. Liability for breach of a guarantee conferred by the Australian Consumer Law is limited:
(i) to re-supplying the Services; or
(ii) making full payment for the cost of having the services supplied again.
26.3 Exclusion of consequential loss
Neither party is liable to the other for any kind of Consequential Loss arising out of or in connection with this Agreement.
26.4 Australian Consumer Law
Nothing in this Agreement is intended to limit or exclude your consumer guarantees under the Australian Consumer Law.
27.1 Basis of engagement
Referoo is a non-exclusive independent contractor to you. Nothing in this Agreement is intended to create an employment or agency relationship between you and Referoo.
(a) A notice, consent, approval, waiver or other communication provided in connection with this Agreement must be in writing.
(b) A notice may be given by hand delivery, post or by email and is effective upon receipt.
27.3 Entire agreement
This Agreement represents the entire agreement between the parties and supersedes all prior discussions, negotiations, understandings and agreements in relation to the subject matter of this Agreement.
27.4 Subcontracting and assignment
(a) Referoo may, at its sole discretion, subcontract, assign or delegate any part of its obligations, rights and responsibilities under this Agreement, provided that Referoo will not be relieved of its obligations.
(b) You may not subcontract, assign or delegate any part of its obligations, rights or responsibilities under this Agreement without the written consent of Referoo (which may not be unreasonably withheld but which may be given subject to reasonable conditions).
27.5 Waiver and variation
A provision of the Agreement, or right, power or remedy created under it, may not be varied or waived except in writing signed by the party or parties to be bound.
This Agreement may be signed in any number of counterparts. All signed counterparts taken together constitute one agreement.
If any provision is unenforceable or invalid, it will be ineffective to the extent it is unenforceable or invalid, without affecting the validity or enforceability of the remaining provisions of the Agreement.
Termination or expiration in whole or in part of the Agreement does not affect those provisions and those obligations of a party which by their very nature survive termination, including clause 14 (GST), clause 15 (Confidential Information), clause 17 (Intellectual property), clause 19 (Warranties), clause 22.4 (Consequences of Termination), clause 23 (Indemnity and Infringement Claim), clause 25 (Dispute Resolution), clause 26 (Liability and Exclusion) and clause 27.9 (Governing law and jurisdiction).
27.9 Governing law and jurisdiction
(a) This Agreement is governed by the laws in force in New South Wales, Australia.
(b) The parties submit to the exclusive jurisdiction of the courts of New South Wales, Australia.