ProbityPeople Customer Agreement
Last Updated: 13 September 2021
This Agreement sets out the terms and conditions that apply to your access and use of the Services on behalf of Customer. By requesting a Service, you are agreeing on behalf of Customer to these terms and conditions and any Schedules.
This Agreement is made between:
- Personnel Pty Ltd (ABN: 51 050 096 485) trading as Probity People of Level 8 107 Mount St, North Sydney NSW 2060 (ProbityPeople); and
- the entity that is registered as the corporate user on ProbityPeople’s web-based platform (Customer).
This Agreement takes effect when you click an “I Accept” button or tick box presented alongside these terms, or when you otherwise access or use the Services
(Commencement Date).
- Term of Agreement
1.1 This Agreement will start on the Commencement Date and will remain in effect unless terminated under clause 18.
- Request for Services
2.1 Customer:
(a) must fully and accurately complete the registration process on the platform to ProbityPeople’s satisfaction before Customer may request any Services; and
(b) may only make a request for Services on the platform.
2.2 Subject to clause 3, ProbityPeople will:
(a) make a platform available on an as-is and as available basis for Customers to request, manage and view Services, and for Applicants to obtain and manage one or more Screening and Verification Checks; and
(b) provide Services requested by Customer.
2.3 Subject to clause 2.4,the Services are:
(a) sending an invitation to a named Applicant to obtain one or more Screening and Verification Checks;
(b) providing reasonable assistance to an Applicant to complete the Screening and Verification Checks;
(c) performing the Screening and Verification Checks requested by Customer based on information provided by an Applicant;
(d) preparing a Probity Report for each Applicant in relation to whom Screening and Verification Checks are requested; and
(e) making the Probity Report available to the Customer or Applicant or both (as specified by ProbityPeople from time to time) on the platform in accordance with the consent provided by the Applicant.
2.4 To the extent that Customer’s request for the Services relates to a Nationally Coordinated Criminal History Check, the Service is limited to:
(a) sending an invitation to a named Applicant to obtain a Nationally Coordinated Criminal History Check; and
(b) if the ProbityPeople performs the Nationally Criminal History Check for the Applicant and the Applicant consents to the results or reports being made available to the Customer, making such results or reports available on the Platform.
2.5 ProbityPeople may, at its discretion, refuse to accept or process any request by Customer.
- Provision of Services
3.1 The provision of each Service by ProbityPeople is conditional upon Customer:
(a) prior to making any request for a Service, obtaining the consent of the Applicant in relation to whom the Service is requested, in accordance with clause 3.2; and
(b) upon making a request for a Service, Customer providing ProbityPeople with:
(i) the full name and email address of the Applicant who is to be invited to obtain one or more Screening and Verification Checks; and
(ii) any other information as may be required by ProbityPeople to provide the requested Service, in a format that is acceptable to ProbityPeople.
3.2 Customer must obtain the valid authority or consent of the Applicant to enable ProbityPeople to:
(a) collect and use the Applicant’s Personal Information for the purposes of providing each requested Service and performing its obligations under this Agreement, including by contacting the Applicant; and
(b) disclose the Applicant’s Personal Information to Customer or any third parties to the extent necessary to provide the requested Service to Customer.
3.3 Customer must, and must procure the Applicant to, promptly provide all consents, information, materials, and assistance necessary for ProbityPeople to provide the Services or otherwise perform its obligations under this Agreement.
3.4 ProbityPeople will not be liable for any delay or failure to perform the Services arising from, caused by or contributed to, by Customer, the Applicant, or any third party.
- Cancellation or Suspension of Services
4.1 ProbityPeople may cancel or suspend a Service in the event of any delay or non-performance due directly or indirectly to a Force Majeure Event affecting either party or any supplier or third party involved in ProbityPeople’s supply of the Service.
Service Suspension
4.2 ProbityPeople may, in addition to its rights of termination, immediately suspend the provision of the whole or any part of the Services if it holds a reasonable belief that Customer is in breach of any terms set out in this Agreement until such time as it is satisfied that there is no breach or the breach has been remedied.
4.3 ProbityPeople will suspend Services in respect of an Applicant and notify Customer if the Applicant withdraws consent for ProbityPeople to provide those Services, in which case:
(a) Customer may cancel the request for those Services in accordance with clause 4.5; or
(b) if the Applicant subsequently provides written consent for Probity Services to provide those Services, ProbityPeople will recommence supply of the Services.
Cancellation by ProbityPeople
4.4 ProbityPeople may, at its discretion, cancel a request for Services after 30 days if it has made ongoing efforts, but been unsuccessful at providing, the Services for reasons beyond its control. If ProbityPeople cancels a request for Services in these circumstances, Customer will not be entitled to a refund or credit.
Cancellation by Customer
4.5 Customer may cancel a request for a Service at any time prior to ProbityPeople starting to process the request or if ProbityPeople notifies Customer that processing has been suspended (e.g., due to an Applicant withdrawing consent). ProbityPeople commences processing a request on the earlier of:
(a) Customer paying the fees for the request in accordance with clause 6.3; or
(b) ProbityPeople updating the status of the request to “Processing”.
4.6 Once a Service request is updated to Processing, Customer must pay the related fees and Disbursements in accordance with clause 6.
4.7 If Customer cancels an order after being notified by ProbityPeople that:
(a) the Service requested is no longer available; or
(b) ProbityPeople declines to accept or process the request,
Customer will receive a credit or a refund (at Customer’s election) of the fees paid, in accordance with clause 6.2.
4.8 If a request for Services is cancelled by Customer:
(a) after the Service request is updated to Processing, Customer must pay the applicable Disbursements and no refund will be payable by ProbityPeople;
(b) before the Service request is updated to Processing, the Customer may request a refund. Customer must pay all Disbursements and an administration fee of 30%.
4.9 For clarity, this clause 4 applies separately to the cancellation of each Screening and Verification Check performed as part of the Service.
- Customer’s use of Services
5.1 Customer must use the Services and the platform for the Approved Purpose only and at all times comply with the terms of this Agreement and all applicable Laws that relate to Customer’s access to and use of the platform and the Services.
5.2 Customer must not re-sell, re-package or re-use the platform or the Services, or otherwise permit third parties to access or use the platform or the Services.
5.3 Customer must, in respect of any Personal Information collected, used or disclosed in connection with the request and supply of Services:
(a) comply with the Privacy Act as if it is an APP Entity and with any additional Privacy Laws;
(b) use the Personal Information only for the Approved Purpose in accordance with the terms of this Agreement; and
(c) take all reasonable steps to ensure that the Personal Information is protected from misuse, interference and loss, as well as unauthorised access, modification or disclosure, including:
i. undertaking any staff training as may be required;
ii. monitoring staff and third party use of the Personal Information;
iii. obtaining a written agreement from any third party to whom the Personal Information is disclosed, committing that they will comply with Privacy Laws and contractual provisions having the same effect as this clause 5;
iv. during and after the term of this Agreement, not doing anything with the Personal Information that will cause Customer or ProbityPeople to breach any Privacy Laws and co-operating with ProbityPeople to resolve any complaint made under Privacy Laws; and
v. not transfer any Personal Information provided in connection with the Services to a country or territory outside of Australia without the prior written consent (which may be withheld or given subject to conditions) of ProbityPeople.
5.4 Customer must immediately notify ProbityPeople if Customer becomes aware of an actual or suspected Security Incident or breach of the Privacy Laws in connection with the Services.
- Fees and Payment
6.1 Customer must pay the fees for requested Services in accordance with:
(a) the price list available on the ProbityPeople website at the time Customer requests the Service; or
(b) as otherwise agreed in writing.
6.2 Customer must pay for any applicable Disbursements associated with providing the Services.
6.3 Customer must pay the fees and any Disbursements either by:
(a) at the time of each request for Service is made, using methods provided or approved by ProbityPeople from time to time (such as credit card or direct deposit); or
(b) if Customer is approved for a credit account, in accordance with clause 6.4.
6.4 If Customer is approved for a credit account:
(a) ProbityPeople will calculate and invoice fees and any Disbursements Monthly or as otherwise agreed in writing;
(b) Customer must pay the fees and Disbursements by the due date for payment as invoiced by ProbityPeople (without any set-off, counterclaim, deduction or other withholding); and
(c) ProbityPeople may charge Customer interest at the Overdue Interest Rate on unpaid fees and Disbursements from the date such unpaid fees or Disbursements became due until the date payment is received by ProbityPeople’s account in cleared funds.
6.5 In respect of clause 6.4(c), if the Overdue Interest Rate exceeds the maximum permitted legal interest rate, the interest chargeable will be reduced to reflect the maximum permitted legal interest rate.
- GST
7.1 Unless expressly stated otherwise, all amounts payable or consideration to be provided under this Agreement are inclusive of GST.
7.2 If GST is payable on any taxable supply made under this Agreement, for which the consideration is expressly stated to be exclusive of GST, the recipient must pay to the supplier an additional amount equal to the GST payable at the same time that the consideration for the supply is to be provided, subject to the supplier giving the recipient a tax invoice.
7.3 A term that has a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the same meaning when used in this clause 7.
- Representations and Warranties
Customer representations and warranties
8.1 Customer represents and warrants that:
(a) Customer has legal authority to accept these terms of this Agreement;
(b) the contact details of Customer’s Authorised Officer are complete and up-to-date, and Customer will promptly notify ProbityPeople of any changes;
(c) Customer will obtain all necessary consents required under this Agreement; and
(d) Customer will comply with all applicable Laws and all provisions of this Agreement.
ProbityPeople representations and warranties
8.2 ProbityPeople represents and warrants that:
(a) it has, and will maintain, all approvals, accreditations and licences it may require to provide the Services, including accreditation by ACIC as an Accredited Body entitled to provide Nationally Coordinated Criminal History Checks;
(b) it will only collect, use and disclose Personal Information it receives in connection with the Agreement:
(i) for the purposes of providing the Services to Customer and in accordance with Applicant’s consent; or
(ii) otherwise in accordance with the ProbityPeople Privacy Policy;
(c) it will take reasonable steps to hold Personal Information provided by Customer and Applicants securely and to prevent the misuse, interference and loss, as well as unauthorised access, modification or disclosure of that Personal Information;
(d) it will notify Customer if it receives a complaint about the handling of Personal Information which is relevant to the Customer or knows of, or suspects, an Eligible Data Breach has occurred in relation to the Services which is relevant to the Customer; and
(e) destroy Personal Information when it is no longer legally required or permitted to be kept in accordance with applicable Laws.
- Intellectual Property Rights
9.1 ProbityPeople and its licensors own all rights, title, and interest in and to the Services, including to Intellectual Property. Subject to the terms of this Agreement, ProbityPeople grants Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferrable licence for the Term of this Agreement to access and use the Services solely in accordance with this Agreement. Customer obtains no rights under this Agreement from ProbityPeople or its licensors to the Services, including any related Intellectual Property Rights.
- Privacy and Confidentiality
10.1 The Customer acknowledges that the Probity Reports prepared by ProbityPeople under this Agreement are prepared for the exclusive use of the Applicant and access to each Probity Report is made available to the Customer, the Customer’s officers, employees, agents, and nominees to use only in accordance with the terms of the relevant Applicant’s consent.
10.2 Other than as permitted under this Agreement or in order to comply with any law or requirement of any regulatory agency, Customer and its officers, employees, agents, and nominees must maintain the confidence of, and not disclose to any person or company:
(a) Customer’s Account Information, including platform username, password and other credentials;
(b) the substance or content of any conclusion, results or other information contained in any Probity Report; or
(c) any other information provided by ProbityPeople to Customer as part of the supply of the Services.
10.3 Both parties must, and must ensure its officers, employees, agents or nominees, comply with the Privacy Act and any other applicable Privacy Laws.
- Security
11.1 Customer must not use the Services or platform in any manner or for any purpose other than as expressly permitted by this Agreement. The examples described in this clause are not exhaustive. If customer does not comply with this clause, ProbityPeople may suspend or terminate Customer’s use of the Services in accordance with clauses 4 or 18 as appropriate.
11.2 Customer must not use, or authorise, encourage, promote, facilitate or instruct others to use, the Services or platform in a manner that is illegal, harmful, fraudulent, offensive or that infringes on the right of any person, or to transmit, store, display, distribute or otherwise make available content that ProbityPeople considers to be illegal, harmful, fraudulent, or offensive.
11.3 Customer must not use the Services or platform to host or distribute any computer technology that may damage, interfere with, intercept, or expropriate any system, program, or data (including viruses, Trojan horses, worms, time bombs, cancelbots or other malware).
11.4 Customer must not access or use the Services or platform to threaten, attempt or engage in conduct that would violate the security or integrity of (including though a malicious act or negligent omission), or otherwise gain unauthorised access to, any communication, other account, network, computer or communications system, software application, or network or computing device.
11.5 Customer must not threaten, attempt, or engage in, conduct that is likely to interfere with, pose a security risk to, or adversely impact ProbityPeople’s Services, platform, website, or other systems of ProbityPeople, including the information of other customers or applicants and their use of the Services, platform, website or other systems. For clarity, this includes monitoring or crawling systems in a way that impairs or disrupts them, denial of service attacks or intentionally interfering with any computer system or network.
11.6 Customer must not perform any penetration or other security testing in connection with the Services, platform, website or other systems of ProbityPeople. If required, Customer may request that ProbityPeople provide reasonable details of security testing and validation it has performed and ProbityPeople will not unreasonably withhold such information.
11.7 ProbityPeople may, but is not obliged to, investigate any violation of this clause 11 or any other misuse of the Services, platform, website or other system. ProbityPeople may:
(a) report any activity that ProbityPeople suspects violates any Law or this Agreement to law enforcement officials, regulators, or other appropriate third parties. Reporting may include disclosing Account Information; and
(b) cooperate with law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this clause.
- Indemnity
12.1 Customer will defend, indemnify, and hold harmless, ProbityPeople and its related bodies corporate and each of its and their respective employees, officers, directors, and representatives from and against all damages, loss, costs, expenses (including legal costs) and liabilities incurred or suffered arising out of or in connection with any one or more of the following:
(a) any unauthorised use of the Services, Probity Reports or information provided by ProbityPeople to Customer as part of the supply of the Services;
(b) any unauthorised disclosure by Customer of Probity Reports or confidential information provided by ProbityPeople to Customer as part of the supply of the Services;
(c) any act or omission by Customer in reliance upon the Services, Probity Reports or information provided by ProbityPeople to Customer as part of the supply of the Services; or
(d) any failure by Customer to comply with applicable Laws or any part of this Agreement.
12.2 Each indemnity is a continuing obligation separate and independent from any other obligations and survives the termination of this Agreement.
- Exclusions
13.1 The Services and platform are made available and provided on an “as is” and “as available” basis. To the maximum extent permitted by law, ProbityPeople makes no warranties, express, implied, statutory or otherwise with respect to the Service, the platform, to their use or operation, and specifically disclaims the implied warranties of merchantability, accuracy, fitness for a particular purpose and non-infringement.
13.2 Nothing in this Agreement excludes, restricts, limits or modifies any statutory guarantee, condition or warranty, where doing is unlawful or void pursuant to applicable Law.
13.3 Without limiting clause 13.1, Customer acknowledges that:
(a) each Probity Report contains information supplied by third parties;
(b) ProbityPeople does not independently verify information supplied by third parties;
(c) ProbityPeople is an information intermediary and does not provide any guarantee or warranty as to the reliability, accuracy, completeness or currency of the information provided in any Probity Report (or otherwise provided as part of any Service);
(d) ProbityPeople does not warrant that the supply of the Services will achieve any particular result;
(e) the Services are not a replacement for any other information, or for Customer’s decision-making policies and procedures;
(f) ProbityPeople does not accept liability for any employment or contracting decisions Customer makes using any information provided to Customer in any Probity Report (or otherwise as part of any Service); and
(g) Customer assumes all risk in connection with its use of, or reliance on, Probity Reports and the Services (including any information obtained or derived through the Services).
13.4 To the extent any applicable Law provides Customer with a guarantee in respect of the Services or Probity Reports, the liability of ProbityPeople for breach of any such guarantee will be limited to the cost of replacing those Services or Probity Reports or providing the Services or Probity Reports again.
- Limitation of Liability
14.1 Subject to clause 13.4, and without otherwise limiting clause 13, in no event will ProbityPeople be liable to Customer or to any third party for any compensation, reimbursement, or damages:
(a) for loss or profits, revenues, customers, opportunities, goodwill, use or data, or for any indirect, incidental, special, consequential or exemplary damages, even if ProbityPeople has been advised of the possibility of such damages;
(b) arising or caused directly or indirectly by Customer’s breach of this Agreement;
(c) arising out of or in connection with the accuracy, completeness, currency or quality of information supplied by third parties that is provided as part of the Services;
(d) arising out of or in connection with any delays or failure to provide the Services which is caused or contributed to by third-parties;
(e) arising out of or in connection with the accuracy, completeness, currency or quality of the information provided by any Applicant;
(f) arising out of or in connection with any delays or failure to provide the Services which is caused or contributed to by Customer or any Applicant;
(g) arising out of or in connection with any decision made by Customer or any other person as a result of, or in connection with, use of the Services;
(h) arising out of or in connection with Customer’s inability to use the Services as a result of:
i. this Agreement or Customer’s use of or access to the Services or platform being terminated or suspended for any reason;
ii. ProbityPeople discontinuing some or all of the Services in whole or in part; or
iii. any downtime, processing delay, interruption or unavailability of any part of the Services, or
(i) arising out of or in connection with Customer’s use of the Services or platform resulting in:
i. investment, expenditures or commitments by Customer;
ii. any unauthorised access to, alteration of, or the deletion, destruction, damage, loss or failure to store any information.
14.2 ProbityPeople’s total aggregate liability to Customer under this Agreement is limited to the value of the total fees paid or payable by Customer for the Services in respect of which the liabilities arise, or where the Services include multiple Screening and Verification Checks, the total fees paid or payable by you in respect of the specific Screening and Verification Check(s) in respect of which the liability arises.
- Mutual Cooperation if required
15.1 If, in connection with any aspect of the Services, either party is the subject of any audit, review or investigation by a privacy commissioner, government body or other competent authority, then the other party must promptly provide all reasonable assistance to, and cooperate with, the other party to enable a timely response to the relevant authority.
- Changes to the Agreement and Services
16.1 This Agreement and any Services may be amended at any time if:
(a) ProbityPeople provides 30 days’ notice (Notice Period) to the Customer of an amendment, by email or by providing a notification on the website; and
(b) following the Notice Period, either:
i. a representative of Customer accepts the amended terms on behalf of the Customer (for example, by clicking an “I Accept” button); or
ii. Customer makes further requests for Services.
- Notices
17.1 A notice or other communication in connection with this Agreement has no legal effect unless it is in writing.
17.2 ProbityPeople may provide notices to Customer under this Agreement by sending a message to the Authorised Officer or the email address associated with Customer’s account, or by posting a visible notice on the website or through the platform on which the Services are available.
17.3 Notices posted on the website or the platform will be effective upon posting, and notices provided by email will be effective when ProbityPeople sends the email. Customer is responsible for ensuring that the email address associated with its account is current and accurate. Customer is deemed to have received any email sent to the email address then associated with Customer’s account when the email is sent by ProbityPeople, whether or not Customer actually receives the email and whether or not ProbityPeople receive a “bounce-back” or other notice of non-delivery, provided that any notice provided after 5 PM AEST or AEDT (as applicable) on a Working Day, will be deemed effective at 9 AM AEST or AEDT (as applicable) on the next Working Day.
17.4 Customer may provide notice to ProbityPeople under this Agreement by sending a message to support@probitypeople.com.au and such notice will be effective upon receipt into that inbox, provided that if received after 5 PM AEST or AEDT (as applicable) on a Working Day, the notice will be deemed received at 9 AM AEST or AEDT (as applicable) on the next Working Day.
- Termination
Termination without cause
18.1 Customer may terminate the Agreement for any reason by closing Customer’s account using the tools provided in the platform.
18.2 ProbityPeople may terminate this Agreement by providing you with at least 30 days’ notice.
Termination for cause
18.3 Either party may terminate this Agreement if the other party is in material breach of this Agreement and the breach remains uncured for a period of 30 days after notice is provided to the breaching party.
Immediate termination by ProbityPeople
18.4 ProbityPeople may terminate this Agreement or cease supplying a Service immediately if:
(a) a relationship with a third party who supplies information or services (including technology) used to provide a Service expires, terminates or requires a change to systems or processes that ProbityPeople declines to make;
(b) Customer becomes Insolvent;
(c) necessary or desirable to comply with any applicable Law or a binding order of a governmental body; or
(d) ProbityPeople is subject to any legal or regulatory changes that it considers make it technically or commercially burdensome for it to continue providing Services to Customer.
Effect of termination
18.5 The termination of this Agreement does not affect any remedies which either party may have under this Agreement or otherwise.
18.6 The following clauses, and any other terms that expressly or by necessary implication or their nature, survive termination:
(a) clause 8 (Representations and Warranties);
(b) clause 9 (Intellectual Property Rights);
(c) clause 10 (Privacy and Confidentiality);
(d) clause 12 (Indemnity);
(e) clause 13 (Exclusions); and
(f) clause 14 (Limitation of Liability).
- Dispute Resolution
19.1 If a dispute, disagreement, question, difference or claim arises between the parties in connection with this Agreement, or in relation to any question regarding its existence, breach, termination or validity (Dispute), either party may give the other written notice (Dispute Notice) requiring that the Dispute be determined in accordance with this clause 19.
19.2 Within 10 Working Days of the Dispute Notice, the parties will enter into good faith negotiations with a view to resolving the Dispute.
19.3 If the Dispute has not been resolved within 20 Working Days of the Dispute Notice being issued, either party may refer the Dispute to mediation.
19.4 If a Dispute is referred to mediation under clause 19.3, the parties must engage in mediation in accordance with the Resolution Institute Mediation Rules as in force at the time of the referral.
19.5 If a Dispute is referred to mediation under clause 19.3, and not settled within 30 days of such referral (or such longer period as agreed by the parties for mediation), the Dispute will be and is (without any further act or consent of either party) submitted to arbitration in accordance with, and subject to, Resolution Institute Arbitration Rules in force at that time. Unless the parties agree upon an arbitrator, either party may request a nomination from the Chair of Resolution Institute.
19.6 Except as set out in clause 19.7, neither party may commence court proceedings in relation to any Dispute until clauses 19.1 to 19.5 have been complied with.
19.7 Nothing in this Agreement will prevent either party seeking or obtaining any order or relief by way of injunction or declaration or other equitable or statutory remedy against the other party where such party believes such order or relief is necessary for the urgent protection of its rights or property.
- General
20.1 Nothing in this Agreement creates a partnership, joint venture or agency between the parties for any purpose whatsoever.
20.2 This Agreement is governed by the laws of New South Wales.
20.3 Each party submits to the non-exclusive jurisdiction of the courts of New South Wales.
20.4 Customer must not transfer any right or liability under this Agreement without the prior written consent of ProbityPeople.
20.5 ProbityPeople may novate this Agreement, or assign its rights under this Agreement, without Customer’s consent:
(a) in connection with a merger, acquisition or sale of all or substantially all of its assets; or
(b) to any related company or as part of a corporate reorganisation,
and Customer must take any reasonable steps notified by ProbityPeople to perfect any such novation or assignment.
20.6 Any failure by any party to exercise any right under this Agreement does not operate as a waiver and the single or partial exercise of any right by that party does not preclude any other or further exercise of that or any other right by that party.
20.7 The rights of a party under this Agreement are cumulative and not exclusive of any rights provided by law.
20.8 If any provision of this Agreement is invalid, unenforceable or unlawful, then it is severed without invalidating or affecting the remaining provisions of the Agreement.
- Interpretation and Definitions
21.1 In this Agreement:
“Account Information” means information about Customer and its representatives that are provide in connection with the creation or administration of Customer’s account. For example, names, usernames, passwords, phone numbers, email addresses and billing information associated with the Account.
“Accredited Body” means a body approved by the Australian Criminal Intelligence Commission (ACIC) pursuant to section 46A(5) of the Australian Crime Commission Act 2002 (Cth).
“APP Entity” has the same meaning as given in the Privacy Act 1988 (Cth).
“Applicant” means a person that is the subject of one or more Screening and Verification Checks by Customer.
“Authorised Officer” means officer appointed, or otherwise identified, by Customer as the person authorised to receive notices under this Agreement.
“Commencement Date” has the meaning set out at the start of this Agreement.
“Disbursement” means any third party charge or fee incurred by Probity in connection with providing the Services.
“Eligible Data Breach” has the same meaning as given in the Privacy Act 1988 (Cth).
“Force Majeure Event” means any delay or non-performance caused or contributed, directly or indirectly, by wars, terrorism, pandemics, epidemics, strikes, lockouts, acts of God, governmental of quasi-governmental act or omission, or any other cause beyond the affected party’s reasonable control.
“In Progress” means the status of a request for a Service which is labelled as such.
“Insolvent” means, in respect of a person, that the person:
(a) is declared bankrupt;
(b) is unable to pay its debts as they become due or otherwise becomes insolvent;
(c) is the subject of an order made or a resolution passed for the administration, winding-up or dissolution (otherwise than for the purpose of a solvent amalgamation or reconstruction);
(d) has an administrative or other receiver, manager, trustee, liquidator, administrator, or similar officer appointed over all or any substantial part of its assets;
(e) enters into or proposes any composition or arrangement with its creditors; or
(f) is the subject of any events or circumstances analogous to the foregoing in any applicable jurisdiction.
“Intellectual Property Rights” means all intellectual property rights, including:
(a) patents, designs, trademarks, service marks, copyright, registered designs, trade names, symbols and logos (whether registered or unregistered); and
(b) all formulae, methods, plans, data, drawings, specifications, characteristics, algorithms, source and object code, equipment, designs, inventions, discoveries, improvements, know-how, software, trade secrets and other proprietary information.
“Laws” means:
(a) any statute, regulation, bylaw, ordinance or subordinate legislation;
(b) any binding court order, judgment or decree; and
(c) any mandatory industry code or standard enforceable by law.
“Monthly” means the period from a day of one month to the corresponding day of the next month, or if such does not exist, the last day of the next month.
“Nationally Coordinated Criminal History Check” means a criminal history and police information check conducted about an Applicant by the ACIC and the result of that checking process provided by the ACIC to ProbityPeople.
“Overdue Interest Rate” means the interest rate quoted by Australia and New Zealand Banking Group as its business overdraft rate (Published Rate) plus 1.5% per annum or, should there cease to be a Published Rate, the rate which that bank designates as being an appropriate substitute for the Published Rate.
“Personal Information” has the meaning given to that term under the Privacy Act.
“Privacy Act” means the Privacy Act 1988 (Cth)
“Privacy Laws” means the Privacy Act and other laws affecting privacy, Personal Information or the collection, handling, storage, processing, use or disclosure of Personal Information, data and other types of information that apply from time to time to the Services, and includes the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth)).
“Probity Report” means the information prepared, compiled and produced in relation to an Applicant in respect of whom the Services are supplied to Customer.
“Security Incident” means the actual or suspected misuse, interference and loss, as well as unauthorised access, modification or disclosure of Services, and includes any “Eligible Data Breach” as defined in the Privacy Act.
“Services” has the meaning set out in clause 2.3 and includes the information, data products, services and Probity Reports provided to Customer as part of those Services.
“Screening and Verification Checks” means each of the screening and verification checks as described on the ProbityPeople website which are made available through the platform from time to time, which may include:
(a) Nationally Coordinated Criminal History Checks;
(b) bankruptcy checks;
(c) credit history checks;
(d) directorship and shareholding checks;
(e) employment confirmation checks;
(f) comprehensive reference checks;
(g) education verifications;
(h) qualification verifications;
(i) licence and membership certifications (e.g., contractor or tradesperson licence, driver’s licence, safe work licence or RSA/RCG);
(j) registration and accreditation validations (i.e., registration or accreditation for specialised roles such as health practitioners, tax agents, migration agents, accountants, lawyers and approved registered training organisations);
(k) medical screening
(l) drug and alcohol testing
(m) visa entitlement to work checks (VEVO checks); and
(n) any other screening and verification checks made available by ProbityPeople.
“Working Day” means any day other than Saturday, Sunday or a public holiday observed in Sydney, New South Wales, Australia.
- In this Agreement, unless the context otherwise requires:
(a) references to the ‘platform’ are to any web-based platform used by ProbityPeople to supply the Services from time to time;
(b) any term used in the body of the Agreement, not defined in clause 28.1 and defined in Schedule 1, has the same meaning as given in Schedule 1;
(c) clause headings are for reference purposes only;
(d) the singular includes the plural and vice versa;
(e) reference to a person includes any other entity recognised by law and vice versa;
(f) where a word or phrase is defined its other grammatical forms have a corresponding meaning;
(g) any reference to a party to the Agreement includes its successors and permitted assigns;
(h) the use of the word includes or including is not to be taken as limiting the meaning of the words preceding it;
(i) the expression at any time includes reference to past, present and future time and the performance of any action from time to time.
