Terms of Use.

Work Ninja Terms of Use

By subscribingto use the Service you acknowledge that You have read and understood these Terms, the Order Form and the terms of any Additional Termsand agree to be bound by them and that you and have the authority to act on behalf of any personor entity for whom You are using the Service.

1. TERM

(a)

This Agreement will remain in effect for the Term specified in the Order Form, or until this Agreement is terminated.

(b)

Except as otherwise specified in an order form, subscriptions will automaticallyrenew for a periodequal to the expiring Term unless either party gives the other notice of nonrenewal at least 30 days before the end of the Term. If our fees increase from the Fees payable in the prior term, the increased Fees will apply to the renewedTerm.

2. GRANT

(a)

to the terms and conditions of this Agreement, We grant You a non-exclusive, non-transferable, non-assignable right to use the Services solely for Your internal business purposes and only as specified in each fully executed Order Form.

(b)

We reserve the right to make changes, modifications and enhancements to Our Services and these Terms of Use from time to time, including, but not limited to, the addition of functionality and third party integrations for which additional charges may be required for their subscription and use.

3. OUR RESPONSIBILITIES

3.1. Provision of purchased services

We will:

(a)

make the Services and Platform available to you pursuant to this Agreement and the applicable Order Forms;

(b)

provide our standard support for the Services to You at no additional charge, and/or upgraded support if purchased;

(c)

use commercially reasonable efforts to make the Services available 24 hours a day, seven days a week, except for:

(i)

planned downtime, of which we shall give advance electronic notice;

(ii)

any unavailability caused by circumstances beyond our reasonable control, including, for example an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror industrial action, Internet service provider failure or delay, or denial of service attack.

4. USE OF SERVICES AND PLATFORM

4.1. Subscriptions

Our Services and your access to the Platform are purchased as subscriptions. You must only use the Services for Your internal business purposes, in accordance with these Terms and any amended Terms conditions posted on the Website.

4.2. Your responsibilities

You will

(a)

be responsible for Your compliance with this Agreement, the Order Form and any Special Conditions;

(b)

use commercially reasonable efforts to prevent unauthorised access to or use of Services and notify us promptly of any such unauthorised access or use;

(c)

use the Services only in accordance with this Agreement, Special Conditions Order Forms and applicable Laws and Government Regulations.

4.3 Access Conditions

You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify Us of any unauthorised use of Your passwords or any other breach of security and We will reset Your password and You must take all other actions that We reasonably deem necessary to maintain or enhance the security of Our computing systems and networks and Your access to the Services.

4.4 Usage restrictions

You must not:

(a)

Make the Service or Platform available to, or use the Service or Platform for the benefit of, anyone other than You or Users unless expressly stated otherwise in an Order Form;

(b)

not attempt to undermine the security or integrity of Our systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;

(c)

not use, or misuse, the Services in any way which may impair the functionality of the Services, or other systems used to deliver the Services or impair the ability of any other user to use the Services;

(d)

not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;

(e)

not transmit, or input into the Platform, any files that may damage any other person's computing devices or software; software material or Data or that may be offensive, or in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and

(f)

not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Platform except as is strictly necessary to use either of them for normal operation.

Any use of the Services in breach of this Agreement, Special Conditions or Order Forms by you or users that in our reasonable opinion threatens the security, integrity or availability of our services may result in our immediate suspension of the Services; however we will use commercially reasonable efforts under these circumstances to provide you with notice and an opportunity to remedy such breach or threat prior to such suspension.

4.5. Invited Users

You acknowledge and agree that, subject to any applicable written agreement between the You and Your Invited Users, or any other Applicable Laws;

(a)

You determine who is an Invited User and what level of user role access to the Service and Platform that Invited User has;

(b)

You are responsible and liable for all Invited Users’ use of the Service;

(c)

You control each Invited User’s level of access to the Service at all times and can revoke or change an Invited User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Invited User or shall have that different level of access, as the case may be;

(d)

if there is any dispute between You and an Invited User regarding access to the Service, You shall decide what access or level of access to the Service that Invited User shall have, if any, and We take no responsibility for this decision.

(e)

Any breach of this Agreement by an Invited User, will be treated by Us as a breach of this Agreement by You, and will be dealt with in accordance with the terms of this Agreement.

(f)

You must implement suitable and appropriate terms and conditions for the use of the Services by Invited Users and indemnifyUsagainst any and all costs, claims, damages, compensation and expenses in respect same.

(g)

We provides no assurance guarantee or representation that the Services comply with the National Employment Standards, State or National Awards, entitlements or any other workplace laws and You unreservedly releases Usfrom any claims made in relation to workplace laws and regulations.

(h)

You warrant and agree that You will disclose and obtain consent and permission from Invited Userin relation to the Servicesability to track and store the information of the Invited User and indemnify Us absolutely in respect of same.

(i)

To the extent permitted by law, We accept no liability for the accuracy of any information made available using the Platform. Any reliance on the information available through the Platform is at the Individual’s own risk.

(j)

Any consent or statement made by an Individual through the Services is valid and binding unless and until revoked by the Invited User, and We may rely on a consent or statement made through the Services without any need to further verify the veracity of that consent;

(k)

The Services may be hosted on servers located outside Australia and may also use email servers located outside of Australia.

5. Fees and payment for services

5.1. Fees

You will pay all fees specified in Order Forms. Except as specified in these terms or in an order form fees are based on services subscriptions purchased and not actual usage.

5.2. Prepaid Subscriptions

We will not provide any refund for any remaining prepaid period for a prepaid Fee subscription.

5.3. GST

(a)

The Fees are exclusive of GST. If any GST is imposed on any supply made under this Agreement, then the party making the supply will collect the GST from the recipient in addition to the Fees. The GST is calculated by multiplying the amount or value of the consideration for the supply by the GST tax rate prevailing as at the date the supply is made.

(b)

The recipient will pay the increased amount in the same manner and at the same time as the consideration, which may be due under this Agreement.

(c)

The supplier of a taxable supply made in connection with this agreement must issue a tax invoice for the supply in accordance with GST Law to the recipient of the supply

(d)

Each party agrees to do all things, including providing invoices or other documentation in such form and detail that may be necessary to enable or assist the other party/ies to claim or verify any input tax credit, set off, rebate or refund in relation to any GST payable under this Agreement or in respect of any supply under this Agreement.

6. INDEMNITY

You indemnify us against: all claims, costs, damage and loss arising from Your breach of any of these Terms or any obligation You may have to Us, including (but not limited to) any costs relating to the recovery of any Fees that are due but have not been paid by You.

7. CONFIDENTIALITY AND PRIVACY

7.1. Confidentiality

Unless the relevant party has the prior written consent of the other or unless required to do so by law:

(a)

Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with this Agreement. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by this Agreement.

(b)

Each party's obligations under this clause will survive termination of the Agreement.

(c)

The provisions of this clause 8.1 shall not apply to any information which:

(i)

is or becomes public knowledge other than by a breach of this clause;

(ii)

is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;

(iii)

is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or

(iv)

is independently developed without access to the Confidential Information.

7.2. Privacy

(a)

We maintain a privacy policy that sets out the parties’ obligations in respect of personal information. You should read that policy at www.Work Ninja.com/privacy/ and You will be taken to have accepted that policy when You accept these Terms.

(b)

We shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Data.

(c)

We shall not:

(i)

disclose your Data except, as compelled by law, or as you expressly authorise in writing, or

(ii)

access your Data except to provide the Services and prevent or address service or technical problems, or at your request in connection with customer support matters.

(d)

You agree that is your responsibility to keep your Data up to date.

7.3. Use of Data

We may collect, use and disclose all such transactional and performance data for our business purposes (including Software use optimization and product marketing) provided that such use does not reveal your identity, any of your confidential information or any personally identifiable information that belongs to you.

7.4. Publicity

During the Term, We may disclose Your name as a customer of ours and/or subscriber of the Services, and You hereby grant us the right to display Your name and logo in our marketing materials and on the Platform, in each case in accordance with any branding guidelines you may provide to us.

8. INTELLECTUAL PROPERTY

8.1. General

(a)

Title to, and all Intellectual Property Rights in the Services, the Platform and any documentation relating to the Services remain the property of Us (or Our licensors).

(b)

We grant You a royalty free, perpetual, licence to use, and otherwise exercise all Intellectual Property Rights in the Software which is required to enable You to fully Utilise the Services and the Software.

8.2. Ownership of Data

(c)

Title to, and all Intellectual Property Rights in, the Data remain Your property. However, Your access to the Data is contingent on full payment of Fees when due.

(d)

You grant Us a licence to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Services and for any other purpose related to provision of services to You.

9. WARRANTIES AND ACKNOWLEDGEMENTS

9.1 Acknowledgement:

You acknowledge that:

(a)

You are authorised to use the Services and the Plaform and to access the information and Data that You input into the Plaform, including any information or Data input into the Plaform by any person you have authorised to use the Service.

(b)

We have no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. If You use the Services or access the Platform on behalf of or for the benefit of anyone else You agree that:

(i)

You are responsible for ensuring that You have the right to do so;

(ii)

You are responsible for authorising any person who is given access to information or Data, and you agree that we have no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address; and

(ii)

You will indemnify Us against any claims or loss relating to:

a.

Our refusal to provide any person access to Your information or Data in accordance with these Terms,

b.

Our making available information or Data to any person with Your authorisation.

(c)

The provision of, access to, and use of, the Services is on an as is basis and at Your own risk.

(d)

We do not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. We are not in any way responsible for any such interference or prevention of Your access or use of the Services.

(e)

It is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used. We take no responsibility for your legal obligations to any employee or contractor employed or contracted by you or otherwise acting under your instruction and direction. You are liable to provide to your own employees the benefits and conditions normally paid or provided to employees pursuant to contracts of service including superannuation contribution, workers compensation cover, sick leave, paid public holidays, Pay As You Go payment summaries, paid annual holidays, long service leave, and a safe working environment.

(f)

Nothing in this Agreement shall be construed to create a joint venture, partnership or agency relationship between you and us and neither party shall have the right or authority to incur any Liability debt or cost or enter into any contracts or other arrangements in the name of or on behalf of the other.

9.2. No warranties:

We do not warrant that the Services will meet Your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.

9.3. Defects

You acknowledge that Software is never wholly free from defects, errors and bugs, and We give no warranty or representation that the Software will be wholly free from such defects, errors and bugs.

9.4. Consumer guarantees:

You warrant and represent that You are acquiring the right to access and use the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services, the Platform or these Terms.

10. LIMITATION OF LIABILITY

(a)

To the maximum extent permitted by law, We exclude all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any direct or indirect loss howsoever caused (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or Website.

(b)

If You suffer loss or damage as a result of Our negligence or failure to comply with these Terms, any claim by You against Us arising from Our negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Fees paid by You in the previous twelve (12) months.

(c)

If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with this Agreement.

11. TERMINATION

If You

(a)

materially breach this Agreement and do not remedy such breach within thirty (30) days of written notice provided by Us;

(b)

fail to pay the Access Fee as required by this Agreement, We may elect to suspend your access to the Service, but is not obliged to do so. We may terminate this Agreement if You have not made the required payments within seven (7) days of notice from Us;

(c)

breach any of these Terms and the breach is not capable of being remedied (which includes (without limitation) any payment of Fees that are more than 30 days overdue); or

(d)

or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction,

We may take any or all of the following actions, in our sole discretion:

(a)

Terminate this Agreement and Your use of the Services and the Platform;

(b)

Suspend for any definite or indefinite period of time, Your use of the Services and the Platform;

(c)

Suspend or terminate access to all or any Data.

12. DISPUTE RESOLUTION

13. Mediation

(a)

If a dispute arises out of or relates to these Terms, Special Conditions or the Order Form, or the breach, termination, validity or subject matter thereof, or as to any related claim in restitution or at law, in equity or pursuant to any statute, the parties to the agreement and the dispute expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation.

(b)

The mediation shall be conducted in accordance with the ACDC Guidelines for Commercial Mediation which are operating at the time the matter is referred to ACDC.

(c)

The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved.

(d)

The terms of the Guidelines are hereby deemed incorporated into this agreement.

(e)

This clause shall survive termination of this Agreement.

(f)

This clause may be pleaded asa plea in bar in any proceeding commenced without the terms ofthe clause being complied with.

14. GENERAL

14.1. Entire agreement:

This Agreement, together with any Special Conditions, our Privacy Policy and the terms of any other notices or instructions given to You under these Terms of Use, supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between You and Us relating to the Services and the other matters dealt with in these Terms.

14.2. Waiver:

If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.

14.3. Delays:

Neither party will be liable for any delay or failure in performance of its obligations under this Agreement if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.

14.4. No Assignment:

You may not assign or transfer any rights to any other person without Our prior written consent.

14.5. Governing law and jurisdiction:

These Term are governed by and construed in accordance with the law of New South Wales and both parties hereby submit to the exclusive jurisdiction of the courts of New South Wales.

14.6. Severability:

If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.

14.7. Notices:

Unless otherwise stated within this Agreement, notices to be given to either party shall be in writing and shall be delivered by electronic mail at the email address you supplied to us or to us at our registered office.

14.8. Survival:

The provisions of clauses that either are expressed to survive its expiry or termination or from their nature or context it is contemplated that they are to survive such.

14.9. Electronic Records and Signature:

It is agreed by the Parties that, notwithstanding the use herein of the words “writing,” “execution,” “signed,” “signature,” or other similar words, the Parties intend that the use of an Electronic Signatures and the keeping of records in electronic form be granted the same legal effect, validity or enforceability as a signature affixed by hand or the use of a paper-based record keeping system (as the case might be) to the extent and as provided for in any applicable law including Electronic Transactions Act 2000 (NSW), or any other similar laws.

15. Definitions

Agreement means these Terms of Use, and any other documents that these Terms of Use refer to, including the Individual Conditions.
Business Day means any day other than a Saturday, Sunday, bank holiday or public holiday in New South Wales, Australia.
Confidential Information includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
Data means any information and data provided, inputted or uploaded by You or with Your authority into the Platform.
Electronic signature means data in electronic form in, affixed to or logically associated with, a data message, which may be used to identify the signatory in relation to the data message and to indicate the signatory’s approval of the information contained in the data message;
Fee means the monthly fee (excluding any taxes and duties) payable by You in accordance with the fee schedule set out in the Order Form (which We may change from time to time on notice to You).
GST means any tax imposed on the supply of goods or services which is imposed or assessed under GST Law.
GST Law means A New Tax System (Goods and Services Tax) Act 1999 (as amended) and all related ancillary legislation which provides for a broad based consumption tax on the supply of Goods and Services.
Individual Conditions mean the specific deal dependent conditions between You and Us that are to be read, and included as annexed to this Agreement.
Intellectual Property Rights means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
Invited User means any person or entity, other than the Subscriber, that uses the Service with the authorisation of the Subscriber from time to time.
Platform means the Work Ninja platform as accessed by the Website or mobile application by you or your Invited Uses.
Service means the provision of HR services available (as may be changed or updated from time to time by Us) via the Website.
Subscriber means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
Term means the period that the Agreement remains in effect as set out in the Order Form or Special Conditions, or until terminated in accordance with this Agreement.
Website means the Internet site www.workninja.com or any other site operated by Us, and any associated mobile applications
Work Ninja We, Our, Us or the Company means Work Ninja Pty Ltd and its representatives, subsidiaries, affiliates, related parties, officers, directors, employees, agents, partners and independent contractors.
You means the Subscriber as specified on the Order Form, and where the context permits, an Invited User. Your has a corresponding meaning.

16. Interpretation

(a)

Headings are for ease of reference only and shall not affect the interpretation or construction of this Agreement.

(b)

Words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include every gender and references to persons shall include an individual, company, corporation, firm or partnership.

(c)

Words denoting persons includes natural persons, partnerships, limited Liability partnerships, bodies corporate and unincorporated associations of persons.

(d)

References to includes or including or like words or expressions shall mean without limitation.