Welcome to Emes. Emes is our Online Workforce Planning Software.
Please read this document carefully. It governs Your commercial relationship with Us and regulates Your use of Our website platform (including any desktop and mobile versions of it) and the services that We make available through Our platform. This document is a legally binding contract between You and Us.
2. Definitions and Interpretation
- 1. Definitions
- 1. Australian Consumer Law means schedule 2 to the Competition and Consumer Act 2010 (Cth).
- 2. Business Day means Monday – Friday excluding public holidays in QLD.
- 3. Business Hours means 8:30am – 5:00pm on Business Days.
- 4. GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth)).
- 5. Intellectual Property Rights means all copyright, trademark rights, patent rights, and design rights, whether registered or unregistered, and all other rights to intellectual property as defined under article 2 of the convention establishing the World Intellectual Property Organization, and all rights to enforce any of the foregoing rights.
- 6. Moral Rights has the meaning given in the Copyright Act 1968 (Cth).
- 7. Non-Excludable Guarantee means a non-excludable guarantee implied by the Australian Consumer Law.
- 8. Personal Information has the meaning given in the Privacy Act 1988 (Cth).
- 9. Personal Property Securities Register means the Personal Property Securities Register established under the Personal Property Securities Act 2009 (Cth).
- 10. Platform means the Personnel Manager website platform owned and/or provided by Us, the homepage URL of which is www.personnelmanager.com.au and also includes the Platform Services and any content, images, text and other information appearing on any page or screen of the website platform and any source code and object code in the platform, and also refers to any desktop and mobile versions of the website platform.
- 11. Platform Account means Your account on the Platform that is setup when You register on the Platform or subscribe to the Platform Services.
- 12. Platform Services means as set out in the Platform Services Description.
- 13. Platform Services Description means any description of the Platform that we publish at www.personnelmanager.com.au.
- 15. Registered User means as set out in clause 5.1.
- 16. Registered User Data means as set out in clause 6.1.
- 18. We, Our and Us means Emes Pty Ltd of 14 Cox Rd, Windsor QLD 4030.
- 19. You means you, the person who accesses the Platform for any reason, whether or not You are a Registered User of the Platform.
- 3. Currency refers to Australian dollars.
- 4. A reference to a statute or regulation includes amendments thereto.
- 6. A reference to a subclause or paragraph is a reference to the subclause or paragraph in the clause in which the reference is made.
- 7. A reference to time is to time in NSW.
- 8. A reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity.
- 9. The words "includes", "including" and similar expressions are not words of limitation.
3. Access and use of the Platform by unregistered users
- 1. Unregistered users of the Platform may not use the Platform Services.
- 1. We reserve the right to accept or reject any person's registration on the Platform in Our absolute discretion.
- 2. If You submit an application to register on the Platform, You:
- 1. will be deemed to have irrevocably warranted that during the application process You provided truthful and accurate information only;
- 2. will be deemed to have irrevocably warranted that You applied for registration on the Platform on behalf of and with the authority and consent of any business entity that you entered into the Platform Account registration form;-
- 3. You must ensure that You provide a valid email address at the time of registration.
- 4. If any of Your contact details or other information which You provide during the application process change, You must promptly update those details in Your Platform Account with Your up-to-date details and information.
- 5. You must not provide Your Platform Account name or the password for Your Platform Account to any person. You agree and acknowledge that You shall be solely responsible for the confidentiality of Your username and password and any use of Your Platform Account (including unauthorised use).
- 6. You must immediately notify Us if You become aware of any unauthorised use of Your Platform Account.
5. Registered User plans and Service Charges
- 1. Only users who have registered on the Platform and/or who have a Platform Account ("Registered Users") may access the Platform Services. You may obtain a Platform Account by either registering on the Platform or by entering into an agreement with Us under which We agree to setup a Platform Account for You.
- 2. You agree and acknowledge that if You become a Registered User You will have a non-exclusive, non-assignable, non-sublicensable, revocable right to access the Platform Services for the purposes expressly described in the Platform Services Description.
- 3. Each Registered User must pay the fees and charges set out in the Platform Services Description (or as otherwise agreed between Us and the Registered User in writing) for the plan selected during signup for a Platform Account, in consideration for the Registered User's subscription to the Platform Services ("Service Charges") at the time and in the manner set out in the Platform Services Description, plus any GST that is applicable in respect of the supply of the Platform Services to the Registered User. Any applicable GST is payable at the same time as the Service Charges.
- 4. If the Platform Services Description specifies a minimum term for any subscription plan, then the subscription of a Registered User for the Platform Services is for that minimum term ("Minimum Term") and, unless otherwise specified in the Platform Services Description, cannot be cancelled or terminated by the Registered User prior to the expiry of the Minimum Term.
- 5. If You are a Registered User, upon expiry of the Minimum Term, your subscription to the Platform Services shall automatically renew for subsequent successive terms equal to the Minimum Term (each a "renewal term") on the same terms and conditions, unless either We or you provide at least 30 days written notice prior to the expiry of the Minimum Term or any renewal term to the other of termination of Your Platform Account, in which case where such notice is provided Your subscription to the Platform Services shall terminate at the end of the Minimum Term or the then current renewal term, as applicable.
- 7. You must pay all costs associated with accessing the Platform, including internet access costs, web browser and computer and smartphone equipment costs, telecommunications costs, data costs, roaming charges and, if You are a Registered User, Service Charges.
6. Responsibility for and ownership of Registered User Data
- 1. If You are a Registered User, We agree that as between You and Us, We own all data that You upload into the Platform Services ("Registered User Data").
- 2. You agree and acknowledge that We may not own or operate the infrastructure upon which the Platform Services and/or the Registered User Data is hosted.
- 3. If You are a Registered User, You warrant, agree and represent that:
- 1. You will only upload, input and transfer Registered User Data into and/or via the Platform Services or disclose Registered User Data to Us, which You are fully entitled and authorised to upload, input, transfer and disclose; and
- 2. Your Registered User Data and Our collection, use, storage and/or disclosure thereof in the course of providing the Platform Services, will not breach any applicable law or right of any person.
- 4. If You are a Registered User, You license us on an irrevocable, non-exclusive, royalty-free, worldwide basis to use and publish your Registered User Data on the Platform as required by Us to provide the Platform Services.
- 5. Each Registered User is solely responsible for the accuracy, legality and quality of all its Registered User Data and for obtaining any permissions, licenses, rights and authorisations necessary for Us to use, host, transmit, store and disclose the Registered User Data in connection with the provision of the Platform Services.
- 7. Except in respect of any Non-Excludable Guarantee, You agree that We are not responsible for any loss, corruption or hacking of any Registered User Data.
- 8. You indemnify Us in respect of any loss and damage We or any of Our suppliers incur in respect of any claim that any of Your Registered User Data is lost, unavailable or corrupted or the transmission, storage, disclosure, or access to any of Your Registered User Data infringes the Intellectual Property Rights or other rights of any person or breaches any law, regulation, code or standard.
7. Availability of Platform Services
- 1. Subject to clauses 7.2, 7.3 and 7.4, while You are a Registered User of the Platform, We agree to use Our best endeavours to procure hosting of the Platform Services and the Registered User Data and to ensure that the Platform Services are available.
- 3. You agree and acknowledge that the accessibility and use of the Platform, the Platform Services and the Registered User Data hosted by the Platform Services is highly dependent on the proper function of the Internet and any other computer and telecommunications networks and infrastructure upon which the Platform and/or Platform Services and/or Registered User Data operate, interface with or connect to, and that We are not responsible for any non-performance of the Platform associated with any of those matters.
- 4. Except in respect of any Non-Excludable Guarantee, We do not guarantee that the Platform, Platform Services or Registered User Data or access thereto will be uninterrupted or error-free and You release and indemnify Us in respect of any loss and damage that We may incur and/or claims and/or complaints You or your customers may have against Us in respect of any interruption, error or unavailability of the Platform, Platform Services or any Registered User Data.
8. Usage Restrictions
- 1. copy, alter, modify, adapt, reproduce, republish, frame, translate, reverse assemble, reverse engineer, reverse compile, transfer, sell, licence, create derivative works from or enhance the Platform and/or any content in the Platform (except any of Your Registered User Data) (except as expressly permitted by the Copyright Act 1968 (Cth));
- 2. do any act that would or might invalidate or be inconsistent with Our Intellectual Property Rights or those of Our licensors;
- 3. use the Platform in any way that infringes Our rights or the rights of any third party;
- 4. use the Platform to create any product or service that competes with the Platform; or
- 5. take any steps to circumvent any technological protection measure or security measures in the Platform.
- 2. You must not use the Platform or any part of the Platform in any way which is in breach of any statute, regulation, law or legal right of any person.
9. Acceptable Use Policy
- 1. You agree that:
10. Intellectual Property Rights
- 2. As between You and Us, We own all Intellectual Property Rights in the Platform.
- 4. You agree that any Intellectual Property Rights in any comments that You may provide to Us in connection with the Platform or requests for new Platform features (each, an "Improvement Suggestion") becomes Our sole and exclusive property immediately upon You uploading or posting that Improvement Suggestion to the Platform or otherwise providing the Improvement Suggestion to Us, and You hereby assign all Intellectual Property Rights in all and any such Improvement Suggestions to Us effective as soon as You provide each Improvement Suggestion to Us or upload or post an Improvement Suggestion to the Platform, pursuant to section 197 of the Copyright Act 1968 (Cth) and in equity. You consent to the infringement by Us and any third party We authorise, of all Moral Rights that You may have in any Improvement Suggestions.
11. Responsibility for other users
- 1. We do not accept responsibility for the conduct of any users of Our Platform.
- 3. We are not a party to any transaction for the supply of goods or services advertised by any user of the Platform. Before entering into any transaction with any other user of the Platform, You should carefully consider the applicable terms and conditions applicable to the transaction, obtain all appropriate advice and take all appropriate precautions.
- 4. Any dispute You have with another user of Our Platform is between You and the other user. You release Us from any claims that You may otherwise have against Us in relation to any conduct of any user of Our Platform and in respect of any content uploaded by or on behalf of any user into the Platform.
- 5. We check content entered into or uploaded into the Platform from time to time, but We do not review or moderate all content. If We become aware of content that breaches our Acceptable Use Policy (see clause 9) We will remove the content and send an email to the person who uploaded or entered it explaining why it was removed. If You become aware of any content that You think breaches the Acceptable Use Policy set out in clause 9 above, please contact Us.
12. Responsibility for third party claims
- 1. You agree and acknowledge that You are solely responsible for and You indemnify Us in respect of any loss and damage We may incur in connection with any claims and/or complaints made by any third party where the claim is caused directly or indirectly by:
- 1. Your use of the Platform;
- 2. Your underpayment of any person;
- 3. Your breach of any applicable award, law or regulation;
- 4. Your goods and/or services and/or your advertising and/or sales and/or marketing practices.
13. Third Party Tools
- 1. Our Platform can be used in connection with third party software, applications, products and platforms (Third Party Tools) some of which may be used to input Your Registered User Data into the Platform, process Your Registered User Data and for other purposes.
- 2. If You elect to use or interface any Third Party Tools with Your Registered User Data and/or Your Platform Account, You indemnify Us from and against any loss and/or damage that We may incur as a result of Your use thereof and/or interfacing therewith.
- 3. If You use any Third Party Tools or interface any Third Party Tools with Your Registered User Data and/or Your Platform Account:
- 1. You agree and acknowledge that: (i) the suppliers (a.k.a providers) of the applicable Third Party Tools, and not Us, are the suppliers and publishers of the Third Party Tools; (ii) We are not responsible for the accuracy, quality or correctness of any Third Party Tools and/or their providers; and (iii) Your use of Third Party Tools is pursuant to a contract between You and the applicable Third Party Tool provider(s), and not pursuant to a contract between You and Us;
- 2. Your use of Third Party Tools is at Your sole risk, and not Our risk;
- 3. We do not make any representations or warranties with respect to any Third Party Tools (whether as to their performance, availability, compatibility with the Platform and/or otherwise) and/or with respect to any providers of Third Party Tools;
- 4. We are not responsible for the practices, and/or terms and/or policies of Third Party Tool providers;
- 5. You agree that We have no obligation to provide any technical support or other assistance in connection with any Third Party Tools and that if We do provide any such technical support or other assistance, You will pay Us for all time that We incur in connection therewith at a rate agreed prior to commencement of the technical support or other assistance, to be paid by You into our nominated bank account within 30 days of invoice by Us from time to time;
- 6. You shall be deemed to have irrevocably released Us from any claims that You may otherwise have had against Us with respect to any non-performance of the Platform, and with respect to any loss, damage or corruption of Your Registered User Data, caused by Third Party Tools and/or the interfacing between any Third Party Tools and Your Registered User Data and/or the Platform.
- 4. You agree that providers of Third Party Tools are not Our partners, co-joint venturers, representatives or agents and any link to any Third Party Tool from the Platform and/or interfacing and/or integration of the Platform with a Third Party Tool does not imply that We are affiliated with or sponsor, endorse or approve the Third Party Tool and/or its provider.
14. Customer System Access Rights
1. You agree that We may access Your Platform Account, Your Registered User Data and any computer systems that You use in connection with Your Platform Account, as deemed necessary by Us to manage and provide the Platform, including as required to support, monitor usage, and perform maintenance and upgrades of the Platform.
- 1. We do not represent, recommend or endorse any websites to which We have linked from the Platform via hyperlink or otherwise.
- 1. Except in respect of any Non-Excludable Guarantees, We do not represent that the information on this Platform is accurate, correct, up-to-date or error free.
- 2. Except in respect of any Non-Excludable Guarantees, We do not represent that the information on this Platform is accurate, correct, up-to-date or error free.
- 3. Without limiting the foregoing provisions of this clause 16, You agree and acknowledge that:
- 1. you are responsible for checking and updating any invoices and quotes that are generated by the Platform;
- 2. it is your sole responsibility to keep up to date with and check all relevant award rates, pay requirements and other applicable award terms and conditions and any applicable laws and regulations which may require rates of pay that are different to the rates of pay specified by the Platform, and to ensure that you pay any personnel without contravening any applicable awards, laws or regulations.
- 4. To the extent possible by law, We are not liable to You for any indirect, special or consequential loss or damage incurred by the other party, including liability for loss of profits, loss of business opportunity, loss of savings, or loss of data.
- 5. Except in respect of any Non-Excludable Guarantees, to the maximum extent permitted by law (and if permitted by law), We will not have any liability to You for any loss or damage howsoever incurred in relation to Your use of or inability to use the Platform, or with respect to any of the circumstances described in clause 12.1 or 16.3.
- 6. Any goods and services supplied by Us through the Platform (which for the avoidance of doubt, includes the Platform Services supplied by Us, but does not include goods or services supplied by any user or Registered User of the Platform to any person) may come with implied non-excludable guarantees which are regulated by the Australian Consumer Law. The extent of the implied guarantees depends on whether You are a "consumer" of goods or services within the meaning of that term pursuant to the Australian Consumer Law as amended.
- 7. If the goods or services supplied by Us to You through the Platform (which for the avoidance of doubt, includes the Platform Services supplied by Us, but does not include goods or services supplied by any user or Registered User of the Platform to any person) are supplied to You in Your capacity as a "consumer" of goods or services within the meaning of that term in the Australian Consumer Law as amended You will have the benefit of certain non-excludable guarantees in respect of those goods or services and nothing in these terms and conditions excludes or restricts or modifies any guarantee which pursuant to the Competition and Consumer Act 2010 (Cth) is so conferred. However, if the goods or services are subject to a non-excludable guarantee implied by the Australian Consumer Law and the goods or services are not ordinarily acquired for personal, domestic or household use or consumption, then pursuant to s 64A of the Australian Consumer Law, We limit Our liability for breach of any such non-excludable guarantee implied by the Australian Consumer Law (other than a guarantee implied by sections 51, 52 or 53 of the Australian Consumer Law) or expressly given by Us to You, in respect of each of the goods and services at Our option, to one or more of the following:
- 1. if the breach relates to goods:
- 2. the replacement of the goods or the supply of equivalent goods;
- 3. the repair of such goods;
- 4. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- 5. the payment of the cost of having the goods repaired; and
- 6. if the breach relates to services:
- 7. the supplying of the services again; or
- 8. the payment of the cost of having the services supplied again.
- 8. Any warranty against defects provided by Us to You in Your capacity as a "consumer" under the Australian Consumer Law is in addition to Your other rights and remedies under a law in relation to the goods or services to which the warranty relates.
17. Beta versions of the Platform
- 1. From time to time We may release an updated version of the Platform that is a beta release of the Platform (“Beta Platform”). You hereby expressly agree and acknowledge that each Beta Platform is released for testing only and is likely to have numerous defects, bugs and errors. You acknowledge that no version of the Platform is likely to be error-free. You agree not to hold Us responsible for any consequences of any defects, bugs and errors in any Beta Platform, including any defects, bugs or errors that result in loss or corruption of data, or any miscalculations or inaccurate reports of any kind.
- 2. To the extent permitted by law, We will not be liable for any damage arising from the use or non-use of any Beta Platform.
- 2. where reasonably necessary to protect Our legitimate commercial interests.
- 4. We may take down the Platform or any part of it or take the Platform or any part of it offline at any time without notice where reasonably necessary to protect Our legitimate commercial interests.
- 1. Any notice issued to You from Us or from Us to You shall be in writing and sent by hand delivery, post or email. Where sent from Us to You, We shall use Your contact details for your Platform Account.
- 2. You may contact Us or send a notice to Us using Our contact details that are specified on Our website at www.personnelmanager.com.au.
- 3. Any notice issued by hand shall be deemed delivered upon delivery.
- 5. We may send You email or other electronic messages concerning Your Platform Account and the Platform from time to time.