BY COMPLETING THE REGISTRATION PROCESS ONLINE
AND SELECTING THE "I ACCEPT" OPTION ON THE REGISTRATION FORM OR BY AGREEING
FOR TESTGRID STAFF TO MANAGE THE ADMINISTRATION OF YOUR ASSESSMENT, YOU ARE
INDICATING YOUR AGREEMENT TO USE THE SERVICES IN AN ETHICAL MANNER AND TO BE
BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
2.
DESCRIPTION OF THE SERVICES
2.1
During the term of this agreement we
licence you to access via the Internet a suite of assessment tools,
programs, software, databases and other related items ('the Services')
on the www.testgrid.com website ('the Website') for the purpose of
assessing prospective and existing employees ('Participants').
2.2
We will sell you units ('Units')
each of which represents one dollar in value, which can be applied to the
purchase of Services.
Units are transferable within
your main account and any subsidiary accounts under your control. They
remain current and usable only for one year after purchase and they are not
refundable. You should ensure that Units are redeemed against Services
before they expire.
2.3
If we have agreed to provide a black label
site we will deliver a web page incorporating your logo and style elements
as provided by you. We will make one set of reasonable changes requested by
you if requested within 7 days of us delivering the first iteration of the
black label site to you. Any further changes will be made at our then
prevailing rates. If you request further changes after the site has been
posted to production servers those changes may be made at our standard rates
from time to time and as soon as our prevailing production plans reasonably
permit.
2.4
If we have agreed to work with you to
deliver a project that requires us to deliver customized solutions or
services, each of us agrees to carry out our respective obligations as set
out in a project plan to be agreed between us.
2.5
We may choose not to retain your data after
termination of this Agreement and we recommend that prior to
termination you retain your own copies of data you may need.
3.
CUSTOMER OBLIGATIONS AND VERIFICATION OF RESULTS
3.1 You will:
a.
provide all equipment, including a computer and modem, necessary to
establish and maintain a connection to the internet to access the Services;
b.
be responsible to configure your browser to meet the relevant
specifications for those tests which are not accessible unless the browser
is configured. It is our responsibility to advise you of the specifications;
c.
provide for your own access to the internet and pay any telephone and
data connection fees associated with accessing the Services;
d.
only use the Services for the purpose of conducting assessments and
analysing the results thereof and for no other purpose.
e.
provide current, complete and accurate information about you and the
Participants to enable proper and efficient use of the Services;
f.
be responsible for the ethical administration of the Services and
observe the test administration guidelines, the technical manual available
from TestGrid for each test and professional requirements from time to time
for the ethical administration of tests and provision of feedback to
Participants. TestGrid does not accept any responsibility for
administration of any test other than in accordance with the guidelines, the
manual and professional requirements or for the use of any test other than
for the published purpose;
g.
give us at least 7 days advance notice if you intend to conduct an
assessment program for more that 50 people so that we may effectively manage
the provision of our services; and
h.
pay the fees for the Services, as published from time to time, in
accordance with the terms set out in this agreement;
i.
You will nominate persons as your 'Nominated Contacts' to communicate
with us and will specify the Primary Contact (to deal with contractual
issues), the Admin Contact (to administer your TestGrid accounts) and the
Invoice Contact (to be responsible for payment administration). You will
advise us of any changes.
3.2
Given the inherent nature of unsupervised online testing, you
acknowledge our recommendation that it is desirable to verify the results of
unsupervised testing by interview and the use of parallel tests under
supervised conditions. We accept no liability for Participant test results
which have not been so verified and we do not guarantee the identity of
Participants.
3.3
When you are accredited to sell tests restricted to a supervised
environment, you undertake to administer them in accordance with the
standards required by the Australian Psychological Society for the
supervision of such tests.
3.4
You acknowledge our right to offer to sell to Participants a report
about their results containing personal data supplied by Participants any
time from 4 weeks after the close date you set for their evaluations.
4.
MODIFICATIONS TO AGREEMENT
4.1
We may change the terms of provision of the Services from time to
time in the normal course of our business. Upon any change in the terms we
will notify you by posting the changes as a start-up screen prior to your
subsequent use of the Services. If you agree to be bound by the changes, you
must again click the I Accept button that will follow the posted changes.
Notwithstanding clause 13.3, if you do not click the I Accept button, you
may terminate your use of the Services at that time.
4.2
Your continued use of the Services constitutes an affirmative
acknowledgment by you of the terms as amended in accordance with clause 4.1
and your agreement to abide and be bound by the terms as amended.
5.
MODIFICATIONS TO SERVICES
The
TestGrid website is being constantly developed and reviewed and we may
modify the functionality and look and feel of the website in accordance with
our normal site development practices from time to time.
6.
CUSTOMER ACCOUNT, PASSWORD, AND SECURITY
6.1
We will issue you with an account number and a password. You will
issue Participants with usernames and passwords using the client
administration function within the TestGrid website. You are entirely
responsible for maintaining the confidentiality of this account number and
passwords and are entirely responsible for any and all use and access to the
Services which occurs under this account. You may change the password at any
time by following the appropriate instructions.
6.2
You agree to immediately notify us, on you becoming so aware, of any
unauthorised use of your account or any other breach of security known to
Customer.
7.
PRICES, TAXES AND PAYMENT
7.1
The fees for the Services are set out in this agreement or, if none
is set out, in the TestGrid price list on the Website from time to time.
7.2
You will pay the annual subscription as published from time to time
on the Website. If you do not pay by due date and if you continue to use the
Services, we may deduct units from your account to pay the subscription.
7.3
Unless otherwise agreed in writing our standard fee arrangements are:
System
Access:
Payable upon acceptance of this
proposal.
Assessment &
Reports: Payable upon acceptance
of the proposal. Purchases are valid for 12 months and are transferable for
other products on the TG platform or within cost centres.
Project Delivery:
40% of the Project Delivery cost is payable upon acceptance of this
proposal. The balance will be invoiced upon project completion.
Standard Payment Terms:
14 days
upon invoicing.
7.4
You may pay the fees by way of credit card or electronic funds
transfer.
7.5
In the event that any payment is in arrears, the amount of the
arrears shall bear interest at the rate of 1% per month, or the maximum
amount allowed by law, if lower. We reserve the right to discontinue your
access to the Services pending payment of any outstanding moneys. Any costs
or fees incurred by TestGrid in the collection of unpaid invoices will be
borne by you.
7.6
All prices quoted, all orders accepted, and all billings rendered are
exclusive of all taxes, fees, or charges imposed by any governmental
authority on any transaction. You will reimburse us for any such tax, fee or
charge at the time of sale or thereafter that TestGrid is required to pay.
7.7
You will pay our reasonable out of pocket expenses reasonably
incurred in delivering the Services in the manner required by you including,
without limitation, courier fees, travel and accommodation.
7.8
If we agree to provide data to you in a customized format you will
pay our then current fee for that service.
8.
CONFIDENTIALITY
8.1
We will use reasonable endeavours to maintain the confidentiality of
information added to our website by you and your Participants. We will not
copy or reproduce any part of your information except for the purposes of
providing the Services, we will not make your information available to any
third party and we will only use your information pursuant to any agreement
between us. We may disclose your information to third parties if required by
law or with your prior consent. We may use information in a broad aggregated
and de-identified manner, which does not reveal the identity of you, a
candidate, an employer or an agency.
8.2
You agree that we may name you as a client on our website and in
associated marketing collateral but we may not attribute opinions or
statements to you without your express written consent.
9.
SERVICE DELIVERY
9.1
We will exercise all due care and skill when providing the Services.
9.2
We do not accept responsibility for any delay in, or failure to
complete the Services where that delay is the result of any act of God,
industrial dispute, act of a third party or failure on your part to meet
your obligations.
9.3
We do not accept responsibility for the accuracy of any information
provided to us by you, candidates or third parties.
9.4
We warrant that the Services do not contain any spyware.
10. LIMITATION OF
LIABILITY
10.1
Except as stated in this agreement, TestGrid expressly disclaims all
warranties and conditions, express or implied, to the fullest extent to
which these warranties and conditions can be excluded under applicable laws.
10.2
Nothing in this agreement will exclude, restrict or modify any
condition, warranty, right or remedy implied or imposed by any statute or
regulation if it cannot lawfully be excluded, restricted or modified.
10.3
If any condition or warranty is implied into this agreement under any
applicable law, and cannot be excluded, the liability of TestGrid for breach
of the condition or warranty will be limited to one or more of the following
as determined by TestGrid and the Customer:
a.
in the case of goods, any one or more of the following:
i.
the replacement of the goods or the supply of equivalent goods;
ii.
the repair of the goods;
iii.
the payment of the cost of replacing the goods or of acquiring
equivalent goods; or
iv.
the payment of the cost of having the goods repaired; and
b.
in the case of Services:
i.
the supplying of the Services again; or
ii.
the payment of the cost of having the Services supplied again.
10.4
The liability of TestGrid to the Customer in contract or in tort
(including negligence) or otherwise, for any loss or damage (other than
indirect or consequential loss or damage) which may be suffered or incurred
or which may arise directly or indirectly in respect of the Services or any
act or omission on the part of TestGrid to comply with its obligations under
this agreement, shall be limited to the value of the Fees paid for the
Services.
10.5
TestGrid will not liable for any indirect or consequential loss or
damage including without limitation loss of revenue, profits, bargain,
goodwill or loss or corruption of data however caused, whether or not such
loss or damage was foreseeable or contemplated by any party and whether or
not the other party has been advised of the possibility of such loss.
10.6
For the avoidance of doubt, Customer acknowledges that TestGrid is
the provider of the Services. Customer's selection of tests and
interpretation of the results of any tests undertaken as part of the
Services, and any decisions based on such interpretation are the sole
responsibility of the Customer.
11. COMPLIANCE WITH
LAWS
11.1
Customers use of the Services is subject various laws and
regulations and Customer agrees to:
a.
comply with the laws of Australia regarding the export or
transmission of technical data through the Services
b.
not to use the Services for illegal or unethical purposes; and
c.
not to intentionally interfere or disrupt networks connected to the
Services.
11.2
The Services make use of the internet to send and receive certain
messages and Customer must observe the generally accepted proper practices
for use of the internet including not transmitting obscene or pornographic
material or spamming.
11.3
TestGrid may, at its sole discretion, immediately terminate Services
should the Customer breach this agreement.
12. INDEMNIFICATION
Customer agrees to indemnify and hold TestGrid, its related bodies
corporate, officers and employees, harmless from any claim or demand,
including reasonable legal fees, made by any third party due to a breach of
this agreement by Customer, or the infringement by Customer of any
intellectual property right of TestGrid in the Services.
13. TERM AND
TERMINATION
13.1
Subject to any term agreed in writing, this agreement shall commence
on the date of Customer's first registration and shall continue until
terminated in accordance with this clause 13.
13.2
Either party may terminate this agreement upon 30 days written notice
to the other. If you terminate the agreement under this clause 13.2:
a.
any fees paid or Units purchased but unused will not be refunded; and
b.
if you purchased Units at a discount price based on an agreed volume
and that volume will not be achieved because of the termination, you will
pay the difference between the discounted price and the price applicable for
the volume of Units actually used;
but if
we terminate the agreement under this clause 13.2 we will refund you for
Units purchased but unused.
13.3
Either party may terminate this agreement by written notice where the
other party is in material breach of this agreement and such breach has not
been resolved within 30 days of written notice of such breach in which case
you will be entitled to a refund for any Units purchased but unused.
13.4
Upon termination of this agreement, Customer's right to use the
Services immediately ceases.
13.6 Clauses 8,10, 12 and 15 shall
survive termination.
14. NOTICE
All
notices to a party shall be in writing and shall be made either via email or
conventional mail.
15. PROPRIETARY RIGHTS
TO CONTENT
15.1
Customer acknowledges that the content of the Services and of
TestGrid's web site, including but not limited to text, software, sound,
data, photographs, video, graphics or other material contained in or
presented to Customer as part of the Services ("Content") is protected by
copyrights, trademarks, Services marks, patents or other proprietary rights
and laws. Customer is only permitted to use this Content in accordance with
the terms of this agreement. Customer may not reverse engineer, recompile,
disassemble, copy, reproduce, distribute, or create derivative works from
this Content without expressly being authorised to do so by TestGrid.
15.2
Customer shall own the physical copies of all test reports generated
by the Customer using the Services, and shall be entitled to use such
reports for its internal business purposes only. As between TestGrid and
Customer, TestGrid shall own all data and intellectual property rights in
reports and information derived from reports. For the avoidance of doubt,
such reports are subject to the obligations of confidentiality outlined in
clause 8.
16. PRIVACY
16.1
We will comply with our obligations under the Privacy Act. We may use and
disclose Personal Information provided by you for the purpose of providing
the Service.
16.2
If you provide Personal Information to us about your employees or
prospective employees, you must comply with the terms of the Privacy Act
regarding that Personal Information. In particular you should ensure that
before disclosing any Personal Information to us you are entitled to
disclose that information.
16.3
If you become aware of any breach or alleged breach of the Privacy Act
concerning information disclosed by you to us or us to you, you should
immediately notify us.
16.4
In this clause 'Personal Information' means information or an opinion
(including information or an opinion forming part of a database), whether
true or not, and whether recorded in a material form or not, about an
individual whose identity is apparent, or can reasonably be ascertained,
from the information or opinion.
17. GENERAL
17.1 TestGrid represents and
warrants that:
a.
it is entitled to enter into this Agreement and perform its
obligations under this Agreement;
b.
it has all licences, authorisations, consents, approvals and permits
required by applicable laws in order to perform its obligations under this
agreement; and
c.
it will at all times comply with any applicable laws.
17.2
This agreement shall be governed by and construed in accordance with the
laws of the state of Victoria, Australia and the Customer and TestGrid
hereby submit to the exclusive jurisdiction of the courts of Victoria,
Australia.
17.3
If any provision(s) of this agreement is held by a court of competent
jurisdiction to be contrary to law, then such provision(s) shall be
construed, as nearly as possible, to reflect the intentions of the parties
with the other provisions remaining in full force and effect.
17.4
Customer must not assign, sublicense or otherwise transfer its rights under
this agreement without the prior written consent of TestGrid, such consent
not to be unreasonably withheld. TestGrid may assign or otherwise transfer
its rights under this agreement in whole or in part to a related body
corporate.
17.5
TestGrid's failure to exercise or enforce any right or provision of this
agreement shall not constitute a waiver of such right or provision unless
acknowledged and agreed to by TestGrid in writing.
17.6
The headings in this agreement are solely used for the convenience of the
parties and have no legal or contractual significance.
17.7
If there is a conflict between a term of this agreement and a written
proposal given by us and accepted by you or a project plan agreed with you,
the terms of this agreement will prevail unless expressly varied in writing.
