End User Licence Agreement

End User Licence Agreement

(EULA)

1 About this EULA

(a) The My Future Workforce application (App) is a mobile and web application for end users to advertise and apply to regional-based employment positions and receive related support.

(b) The terms “we”, “us” and “our” refer to Regional Development Australia – Mid North Coast (ABN 94 866 952 886), “you” and “your” refer to the end user that downloads, installs, uses or otherwise accesses the App, “Apple” refers to Apple Pty Ltd (ABN 46 002 510 054) and “Google” refers to Google Asia Pacific Limited.

(c) This EULA is an agreement that is solely between you and us, and sets out the terms under which you are permitted to download, install and use the App. Please read this EULA carefully. You accept this EULA by clicking “Agree” or otherwise using this App (Start Date).

(d) This EULA comprises this agreement and any other policy or online terms incorporated in this EULA by reference. If there is a conflict between the parts of this EULA, then the provisions in this agreement prevail to the extent of the inconsistency.

2 App

(a) The App is designed as an intermediary to assist the introduction of Employers and Candidates registered on the App (each, a “Member”), who wish to advertise or apply to Job Listings, and access related services.

(b) You acknowledge and agree that we are not involved in, or responsible for, the advertisement of any Job Listing by an Employer, or a Candidate’s application to any Job Listing.

(c) We will ensure that the App is provided to you with due care and skill, and by suitably qualified personnel. We do not warrant that the App will be error-free, virus-free, continuous, suitable for you as an individual, or that the App will be compatible with your equipment.

(d) We do not take responsibility for any Member’s actions or omissions, or for the legality of any Job Listing advertised on the App.

(e) We may add to, change or remove the features and functionality of the App (including the Content) at any time (with or without notice to you). The features and functionality available on the App (including the Content) may also vary depending on the device or application that is used to access the App.

3 Term

This EULA commences on the Start Date and continues until it is terminated.

4 Membership

You agree not to:

(a) infringe any Intellectual Property Rights or Moral Rights of any person;

(b) collect Content or information on the App using automated means (such as harvesting bots, robots, spiders, or scrapers) without our prior permission;

(c) upload, transmit or distribute any virus, trojan horse, worm, or other harmful, disruptive or malicious component or code;

(d) create derivative works based on the App;

(e) reverse engineer or attempt to gain unauthorised access to the App’s systems or networks; and

(f) use the App to sell or advertise any goods or services other than employment positions or related services.

5 Licence

(a) Subject to you complying with the terms of this EULA, we grant you a limited, non-exclusive, non-transferable and revocable licence to use the App in object code format and the content provided through the App (Content) during the period we make the App available to you and, in each case, on any compatible iOS or Android device that you own or control, solely to access and use the App to advertise or apply for employment positions, as permitted by the usage rules set out in the App Store Terms of Service. Content does not include your User Material.

(b) Except as expressly permitted in this EULA, you must not circulate, reproduce, retransmit, distribute, disseminate, sell, publish, broadcast and/or communicate to the public or any person the App or Content (or any part of them).

(c) As between you and us, we solely and exclusively own all right, title and interest in and to the App and the Content, including all modifications and derivative works, and any documentation and other materials we make available to you in connection with the App. All such modifications, derivative works, documentation and other materials form part of the App for the purposes of this EULA. Other than the licence granted to you under paragraph (a) above, no other licences or rights are granted to you in respect of the App and the Content.

(d) You must not use our copyright or trade marks or any similar marks without our prior written consent (which may be given or withheld at our discretion).

(e) We may update the App from time to time (Updates). If so, you will need to update the App on your device.

6 Intellectual Property

(a) Nothing in this EULA operates to assign or otherwise transfer any right, interest or title in or to any Intellectual Property Rights (including Moral Rights) of a party, except as expressly stated.

(b) Any User Material published on the App by you is owned by you or whoever created it. You grant us a world-wide, royalty-free, perpetual, irrevocable, transferrable and non-exclusive licence to your User Material to:

(i) use, reproduce, modify, adapt, communicate, commercialise, display, perform, store and distribute your User Material for the purposes of performing our obligations under this EULA, for promotional purposes in relation to the App, and otherwise in connection with our business purposes;

(ii) create statistics, databases and compilations for use by us and third parties;

(iii) permit any person to assist us to do any of the things referred to in this paragraph; and

(iv) sub-licence any of the rights granted to us under this paragraph to any person.

(c) Without limiting the foregoing, you unconditionally consent to our use of your User Material that would, but for this consent, constitute a breach of your Moral Rights.

(d) You acknowledge that you are solely liable for any losses, damages, claims and expenses (including legal costs) resulting from any User Material that violates third party Intellectual Property Rights or Moral Rights.

(e) All materials, text, images, software, code, sounds, applications and other content located on the App, or otherwise provided by us, are owned or licensed by us. You must not copy, modify or transmit any content, except your own User Material, without our prior written permission.

(f) The App may contain trademarks, logos, service names and trade names of us and third parties that may be registered or otherwise protected by law. You are not permitted to use any such trademarks, logos, service names or trade names without our prior written permission.

7 Data, personal information and records

(a) We and our service providers may collect, retain and commercially use records and other data and information relating to your use of the App and the Content, including your User Material; history of use and technical information about the device, system and application software and peripherals you use to access and use the App. You consent to such collection, and agree that we and our service providers may use that information for our business purposes and to improve our and their products, services and technologies and otherwise in accordance with our Privacy Policy.

(b) Without limiting paragraph (a), you agree and will ensure that any person whose information is disclosed to us, in connection with the App and/or this EULA, consents to our collection of that information and is aware that we may use and disclose such information (including personal information) about you and each of them in accordance with our Privacy Policy.

(c) We may:

(i) perform all or any part of our obligations under this EULA outside Australia;

(ii) collect, transfer and disclose your information to entities that are in other countries, as set out in our Privacy Policy; and

(iii) sub-contract the performance of all or any part of our obligations under this EULA to any person, including any third parties.

(d) You grant us a non-exclusive, transferrable, sub-licensable and royalty-free licence to use the User Material to enable us to perform our obligations and exercise our rights under this EULA.

(e) You agree that, if you provide us with any feedback or suggestions in relation to the App, we may use such information for our planning, marketing and product development purposes without the need to reference you and without any liability to you.

8 Changes, suspension and termination

(a) We may, without notice or liability to you or any person and at our sole discretion, change, withdraw, suspend or discontinue the App or any functionality or feature of the App.

(b) We may, without notice to you or any person, disable your access to the App or otherwise limit or restrict your access if you:

(i) breach this EULA; or

(ii) infringe the rights of a third party (including intellectual property rights).

(c) You may suspend or terminate this EULA at any time by ceasing to use the App.

(d) On the date that we disable your access to the App, any Job Listing and User Material that you have uploaded to the App will be deleted.

(e) Expiration or termination of the whole or any part of this EULA does not prejudice any right or liability that accrued to a party before the date of such expiration or termination. Clauses 5 (Intellectual Property), 8 (Warranty and Exclusion of Liability), 9 (Dispute Resolution), 11 (General) and 12 (Definitions) continue to apply after expiration or termination of this EULA, as does any other clause that, by its nature, is intended to survive such expiry or termination.

9 Warranty and exclusion of liability

8.1 No guarantee

(a) We do not guarantee that the App or Content (or any part of either of them) will be provided on a continuous basis or that either of them (or any part of them) is accurate, complete or fault free.

(b) You acknowledge and agree that:

(i) you access and use the App entirely at your own risk;

(ii) we are not responsible in any way for User Material; and

(iii) to the maximum extent permitted by law, the App and other Content is provided “as is” and “as available” and without any warranty of any kind, express or implied. Apple and Google have no obligations under this EULA.

8.2 Australian Consumer Law

(a) If you are a “consumer” for the purposes of Schedule 2 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law), our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law.

(b) For major failures with the Services, you are entitled to:

(i) cancel your service contract with us; and

(ii) a refund for the unused portion, or compensation for its reduced value.

(c) You are also entitled to choose a refund or replacement for major failures with goods.

(d) If a failure with the goods or service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

8.3 Exclusion of liability and warranties

(a) To the maximum extent permitted by law, we exclude all other warranties, rights, remedies and liability to you and any third party for breach of contract, negligence or breach of any other law. Under no circumstances will we, our related bodies corporate, any licensor, supplier, Apple or Google be liable in any way for:

(i) the availability of the App;

(ii) the quality, completeness, accuracy, suitability or fitness for purpose of the App;

(iii) all links to or from the App;

(iv) the Job Listings and services advertised or accessible on the App;

(v) the safety of the computer systems of users of the App;

(vi) User Material, your use of the App or any Content accessed, including any errors or omissions in any Content or User Material, any infringement by any Content of the intellectual property rights or other rights of third parties, or for any loss or damage of any kind incurred as a result of the use of any Content or User Material; and

(vii) any Consequential Loss, punitive, exemplary, incidental, indirect or special damages, personal injury, lost profits, loss of revenue, capital gains, business interruption, loss of programs or other data or loss of or corruption to data, howsoever arising from or in connection with User Material and your use of the App or Content.

(b) For any liability which cannot lawfully be excluded, but may be limited, we limit our liability to (at our sole discretion):

(i) in the case of services, re-supplying or paying the cost of re-supplying the services; and

(ii) in the case of goods, repairing, replacing or paying the cost of repairing or replacing the goods.

(c) Notwithstanding any other provision of this EULA, our liability will be reduced to the extent the loss or damage is caused by you or your representatives.

8.4 Service Providers

(a) If the App on a device fails to conform to any applicable warranty, you may notify Apple or Google, and Apple or Google will refund the purchase price for the App to you (if applicable). To the maximum extent permitted by applicable law, you agree that Apple and Google will have no other warranty obligation whatsoever with respect to the App, and (subject to the other terms of this EULA) any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our sole responsibility.

(b) You release and agree to hold harmless us, our licensors, suppliers, Apple and Google from any and all claims, demands, liabilities, losses and damages of every kind and nature (including, without limitation, actual, special, incidental and consequential, including any personal injury, lost profits, business interruption, loss of programs or other data or otherwise), known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with your use of the App and Content.

(c) You agree that Apple and Google:

(i) are not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including:

(A) product liability claims;

(B) any claim that the App fails to conform to any applicable legal or regulatory environment; and

(C) claims arising under consumer protection, privacy or similar legislation in relation to the App; and

(ii) have no obligations under this EULA, including no obligation to indemnify you for any third party claims, any responsibility for the operation of the App, or any provision of maintenance or support for the App.

8.5 Limitation of Liability

(a) For all other claims or liability that are not excluded or limited under clause 8.3 above, our (including our related bodies corporate) maximum liability for any loss, damage, claim, cost or expense howsoever arising, whether in breach of contract, tort (including negligence) or under statute, in connection with this EULA, the App, the Content, all links to or from the App and the products and services advertised or accessible through the App will, to the full extent permitted by law, is limited to $10 for all claims in the aggregate.

(b) We are solely responsible for the investigation, defence, settlement and discharge of any claim by a third party that the App or the Content (excluding User Material) infringes the intellectual property rights of that third party.

(c) Notwithstanding anything else in this EULA, our liability will be reduced to the extent the loss or damage is caused or contributed to by you.

10 Dispute Resolution

(a) You agree to notify us of any issue or dispute with us (Dispute Notice).

(b) Following notification of the dispute, the parties agree to try to resolve the dispute in the Dispute Notice in good faith, before commencing any formal proceedings (other than for urgent interlocutory or other relief).

11 Notices

(a) All notices and consents:

(i) from us to you must be sent to the contact details provided by you; and

(ii) from you to us must be sent to the contact details provided on the App for this purpose.

(b) Notices sent:

(i) by email are taken to be received when the email is capable of being retrieved by the addressee at its nominated email address;

(ii) by hand are taken to be received when delivered; and

(iii) by post are taken to be received three Business Days after posting (or seven Business Days after posting if sent to or from a place outside Australia).

12 General

11.1 Content

Any information we provide on this App is of a general informational nature only, and is provided solely for information purposes. We do not guarantee the accuracy of any information provided, and such information does not constitute advice or recommendations, nor is intended to be the sole information resource guiding any decision. You are responsible for undertaking any research and analysis required to verify any information provided on the App.

11.2 Performance

We may perform all or any part of our obligations under this EULA outside Australia.

11.3 Entire Agreement

This EULA constitutes the entire agreement between the parties about its subject matter.

*11.4 Governing law *

(a) This EULA is governed by the laws applicable in New South Wales, Australia, and each party submits to the non-exclusive jurisdiction of the courts of that place and the courts of appeal above them. The parties exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.

(b) We may change the terms of this EULA from time to time. We will notify you if we do so. You agree to review any such changes and, if you continue to use the App after any such changes, you agree that you are taken to have agreed to all such changes and have agreed to be bound by them.

(c) You represent and warrant that you are not: (i) located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) listed on any U.S. Government list of prohibited or restricted parties.

(d) Apple and Google, and their subsidiaries, are third party beneficiaries of this EULA and as such have the right (and will be deemed to have accepted the right) to enforce the terms and conditions of this EULA against you as a third party beneficiary of this EULA.

11.5 Assignment

We may assign or novate this agreement to a related body corporate of ours (within the meaning of the Corporations Act 2001 (Cth)) on notice to you. Other than as set out in this paragraph, no party may assign or novate this EULA without the other party’s prior written consent, with such consent not to be unreasonably withheld or delayed.

11.6 Force Majeure

If an event beyond a party’s reasonable control (Force Majeure Event) causes that party to be unable to perform or be delayed in performing an obligation under this EULA (other than, in your case, an obligation to pay the Fees), that obligation is suspended for so long as it is prevented or delayed by the Force Majeure Event.

11.7 Waiver of rights

A right created by this EULA may only be waived in writing by the party giving the waiver. Any failure to exercise or any delay in exercising a right or remedy provided by this EULA or by law does not waive the right or remedy. A waiver of a breach of this EULA does not waive any other breach.

11.8 Invalidity

If any provision of this EULA is held by a court to be invalid or unenforceable, the remainder of this EULA will otherwise remain in full force, apart from such provision which will be regarded as having been deleted.

11.9 Interpretation

(a) Headings are for convenience only and do not affect the interpretation of this EULA.

(b) In this EULA, the singular includes the plural, and vice versa.

(c) Including and includes (and any other similar expressions) are not words of limitation and a list of examples is not limited to those items or to items of a similar kind.

11.10 Severability

To the extent that any part of this EULA is illegal, invalid, void, voidable or unenforceable, then that part shall be severed from this EULA and the remaining parts of this EULA will continue in full force and effect.

11.11 Responsibility for drafting

Neither this EULA nor any part of it is to be construed against a party on the basis that the party or its lawyers were responsible for its drafting.

13 Definitions

Capitalised terms used in this EULA are defined in this EULA, including in this clause 12:

Business Day means any day except a Saturday, a Sunday or a public holiday in New South Wales, Australia.

Candidate means a Member that applies for, or intends on applying for, job opportunities advertised through Job Listings on the App.

Consequential Loss means any loss or damage which, although in the contemplation of the parties at the time they entered into this EULA (as applicable), is not a loss or damage which may fairly and reasonably be considered to arise naturally (that is, in the usual course of things) from the breach or other act or omission.

Content means any material, communications, links or information contained on the App.

Employer means a Member that advertises, or intends to advertise, a Job Listing on the App.

Job Listing means a listing of an employment opportunity on the App.

Intellectual Property Rights means all intellectual property rights, including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, invention and discoveries and all other intellectual property as defined in Article 2 of the convention establishing the World Intellectual Property Organisation 1967.

Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, as defined and as set out in Part IX of the Copyright Act 1968 (Cth) and any corresponding rights that exist or that may come to exist in the Commonwealth of Australia and anywhere else in the world.

Privacy Policy is our privacy policy available at myfutureworkforce.com.au/privacypolicy.

User Material is any information, content, feedback or data that you submit on the App.

Last modified: June 2020