Terms & Conditions
This webpage contains the Terms & Conditions on which Employment Innovations Group Pty Limited (ABN 12 058 618 358) (EI) offers to provide its (HR Connect) services to the client detailed below (Client).
By signing an Order Form, the Parties agree to be bound by the Terms & Conditions (including Schedule A) from the Service Start Date.
Terms & Conditions
1. Provision of Services
1.1 In exchange for the payment of Fees, EI will provide the Services to the Client in accordance with the product or service inclusions that pertain to the subscription, service or product type paid for by the Client listed in Schedule A.
2. Fees & invoicing
2.1 The Client will pay EI the Fees for the Services and Products. The Fees are set out in the Order Form. Additional Fees, where applicable, are also payable in addition to the Fees set out in the Order Form.
2.2 All Fees and Additional Fees are in Australian dollars and are exclusive of GST. If any amount payable by the Client is the consideration for a Taxable Supply in respect of which the Client is liable to pay GST, the Fees will be increased by the amount of the GST payable in respect of that Taxable Supply. Such amount will be payable at the same time as the Client is liable to pay the Fees.
2.3 For any partial or incomplete monthly Service (meaning where the Service is provided for part of a month) periods the Fees will be calculated on a pro-rata basis.
2.4 The Client, if paying via a Direct Debit arrangement:
a. will complete an online form from a link provided to the Client after agreeing to these Terms & Conditions, and maintain throughout the Term, a valid Direct Debit Authorisation;
b. The Client may at any time terminate or replace an issued Direct Debit Authorisation, however, if it does, the Client must immediately thereafter issue EI a valid replacement Direct Debit Authorisation in accordance with clause 12;
c. authorises EI to debit the financial institution account nominated by the Client in the Direct Debit Authorisation for Fees, within 7 days of EI issuing a Tax Invoice;
d. will maintain sufficient funds in the financial institution account nominated in any Direct Debit Authorisation to meet the Fees as they fall due; and
e. agrees that EI may withhold or suspend the Services in the event of non-compliance with this clause.
2.5 EI will issue to the Client a Tax Invoice for the Fees in accordance with the Order Form on either a monthly or annual basis, as agreed.
2.6 If payment of Fees is not made in accordance with the Order Form and Terms & Conditions, EI may at its discretion withhold or suspend the Services until full payment is received.
2.7 EI’s Fees and the Additional Fees shall automatically increase by the annual increase in CPI on the 1st of July each year following 12 months from the Service Commencement Date. The annual increase in CPI shall be determined by taking the annual increase in CPI as at the most recently reported quarter prior to the anniversary of the Commencement Date.
2.8 EI may review and update the Fees at any stage, but only after 12 months from the Service Start Date. EI will give written notice to the Client of any Fee change, which will take effect no sooner than eight (8) weeks after notice is given. For the avoidance of doubt, the Client has a right to terminate the Subscription following any Fee change in accordance with clause 7.3.
2.9 50% of any HR Software Implementation Project Fees are payable upfront on commencement of this contract. The final 50% is payable upon Go-Live of the HR Software Service. Notwithstanding the above, the balance of the HR Software fee will become payable upon 6 months from commencement of this contract.
3. EI Obligations & Warranties
3.1 EI will:
a. provide the Services in accordance with the service inclusions listed in Schedule A, in good faith and with due care and skill;
b. use its best endeavors to ensure that its agents, contractors and employees observe the confidentiality and nondisclosure obligations contained in clause 5; and
c. comply with any Service specific obligations placed on EI set out in the Additional Terms.
3.2 EI warrants that:
a. it has the right and authority to enter into these Terms & Conditions and provide the Services;
b. the provision of the Services does not violate any laws or regulations or any agreements or undertakings to which EI is a party; and
c. all representations (whether made verbally or in writing)made by it or on its behalf to the Client are true and accurate and it will inform the Client of any fact, matter or circumstance which it becomes aware of which would make any such representation incorrect, false or misleading; and
d. it will comply with all applicable laws, regulations and standards of any relevant Commonwealth, State, Territory or Local Government authority.
4. Client Obligations & Warranties
4.1 The Client will:
a. at all times ensure that all information provided to EI is accurate, complete, provided in the agreed timeframes and in the agreed format, including those in the Order Form;
b. use the Services only in accordance with any instructions provided by EI and the Fair Use Code in clause 12;
c. ensure that its agents, contractors and employees observe the confidentiality and nondisclosure obligations contained in clause 5;
d. make available to EI at no charge all information, facilities and services reasonably required by EI to enable EI to perform the Services; and
e. comply with any specific obligations placed on the Client set out in these Terms & Conditions.
4.2 The Client warrants that:
a. it has the right and authority to enter into these Terms & Conditions and comply with its obligations;
b. the provision of any information, data or materials to EI (whether verbally or in writing), including the Order Form, does not violate any laws or regulations or any agreements or undertakings to which the Client is a party;
c. all representations (whether made verbally or in writing) made by it or on its behalf to EI are true and accurate and it will inform EI of any fact, matter or circumstance which it becomes aware of which would make any such representation incorrect, false or misleading; and
d. it will comply with all applicable laws, regulations and standards of any relevant Commonwealth, State, Territory or Local Government authority.
5. Confidentiality & Privacy
5.1 The Parties acknowledge that during the course of business they may gain access to or have disclosed to them (whether orally, written or in any other medium) Confidential Information of the other Party.
5.2 The Parties agree to keep confidential and secret the Confidential Information and only use the Confidential Information to perform their obligations under these Terms & Conditions, including not disclosing Confidential Information to any third party without the other Party’s prior written consent. Notwithstanding that, EI may from time to time, store the Client’s Confidential Information on cloud-based software, programs and/or platforms and the Parties acknowledge that such storage does not constitute a breach of this clause.
5.3 Where permission is required from the Client’s employees, personnel, official authorities or other individuals for:
a. the collection of Personal Information by EI (in accordance with applicable privacy legislation, tax legislation or other applicable laws);
b. the access of Personal Information by EI;
c. the transfer of Personal Information outside of Australia;
d. the storage of Personal Information and records outside Australia; or
e. any other purpose in connection with the provision of the Services,
the Client agrees to obtain such required permission. EI reserves the right to suspend the provision of the Services to the Client if the Client fails to obtain such permission.
5.4 At all times, EI will:
a. fully comply with their obligations under Privacy Laws;
b. maintain and enforce privacy, safety and security procedures and safeguards including procedures directed at protecting against the destruction, loss, disclosure, alteration or unauthorised use of the Client’s Personal Information, the Personal Information of the Client’s employees, or any other information of the Client; and
c. only permit Personal Information to be disclosed to individuals or entities for the sole purpose of, and to the extent necessary, of providing the Services to the Client.
6. Intellectual Property
6.1 The Parties acknowledges that:
a. any and all Intellectual Property owned by a Party prior to the commencement of these Terms & Conditions will remain the sole and exclusive property of that Party; and
b. all ownership, right, title and interest in the Services including any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the Client or any other party relating to the Services, and any copies thereof belong to and remain the sole property of EI.
6.2 A Party must not use the Intellectual Property of the other Party for any reason except in accordance with these Terms & Conditions without the other Party’s prior written consent.
7. Term & Termination
7.1 The Terms & Conditions will commence on the Agreement Date as per the Order Form and will continue until terminated in accordance with these Terms & Conditions or by operation of law.
7.2 Access to Services will commence on the Service Start Date and will continue until terminated in accordance with these Terms & Conditions or by operation of law.
7.3 Either Party may terminate the Services, for whatever cause, by giving 6 weeks’ written notice to the other Party.
7.4 Either Party may terminate the Services as a whole immediately by giving written notice to the other Party if:
a. An order is made or an effective resolution is passed for the winding up of the other Party (unless for the purpose of solvent reconstruction or amalgamation);
b. The other Party ceases or threatens to cease carrying on business, or is unable to pay its debts when due; or
c. The other Party enters into any form of insolvency administration.
7.5 Either Party may terminate the Services immediately by giving written notice to the other Party if the other Party is in material breach of an obligation under these Terms & Conditions and fails to remedy that breach within 30 days of being directed in writing by the other Party to do so.
7.6 The Parties acknowledge that if the Client terminates the Services as a whole in accordance with clause 7.3 before the 12-month anniversary of the Service Start Date, the Client will become liable for an early cancellation fee, equivalent to 100% of the last invoiced monthly fee for Subscription, multiplied by the months remaining until the date of the 12 month anniversary of the Service Start Date.
7.7 EI may terminate the Services with 30 days written notice in the event it becomes aware of any apparent non-compliance with the Fair Work Act 2009 (Cth) by the Client and fails to rectify the apparent non-compliance within 14 days, or if the client breaches these Terms and Conditions.
8. Effect of Termination
8.1 For the avoidance of doubt, termination of the Subscription for any reason will not relieve the Client of any obligation to pay EI the Fees which arose prior to, or on, the date of termination of the Subscription.
8.2 Upon termination of the Subscription:
a. EI will immediately cease providing the Services;
b. the Client must cease all use of the Services and ensure their employees do the same;
c. where the Client stores EI’s Confidential Information on any device, software (including Cloud-based software) the Client will irretrievably delete that Confidential Information;
d. where relevant, EI will return to the Client all original hard copy documents in its possession, custody or control regarding the Client and their employees’ information including payroll information if requested; and
e. EI will not be liable to the Client for any Claim for direct or indirect damages including consequential loss, economic loss, loss of profits or loss of business arising from or as a result of termination of the Subscription.
8.3 Clauses 5, 6, 8, 9, 10, 11 and 12 will survive any expiry or termination of the Subscription and shall continue in full effect.
9. Limit of Liability & Indemnification
9.1 The Client acknowledges that the Services are provided on an “as is, as available” basis. EI excludes any and all express or implied warranties, guarantees or representations regarding the Services, to the full extent permitted by law. For the avoidance of doubt, the Services are not to be constructed or interpreted as legal advice.
9.2 In no event will EI be liable to the Client for:
a. any direct, incidental, special, consequential, aggravated, exemplary and/or punitive damages or loss, including but not limited to loss of sales, loss of revenue, loss of profits, loss of data, loss of opportunity and loss of reputation howsoever arising;
b. any loss, damage, costs, expenses or claims arising from any information or instructions supplied by the Client to EI, including information which is incomplete, inaccurate, illegible, in the wrong form or not provided within the required timeframe;
c. the merchantability, reliability or fitness of any software provided as part of the Services; or
d. the accuracy and compliance of the Services to the extent that a reasonable person would deem to be outside the control and/or supervision of EI.
9.3 To the extent that any limitation of liability contained in these Terms & Conditions is prohibited by law, the Parties agree that EI’s liability under these Terms & Conditions will be limited to the total monies paid by the Client to EI (or estimated to be paid to EI) over a 12-month period for the Subscription up to the date of any loss, injury, claim, liability or damage.
9.4 Where a Party (in this clause “the First Party”):
a. breaches these Terms & Conditions (including a breach of a warranty), provides inaccurate or incomplete information or makes any form of misrepresentation;
b. is negligent or commits intentional misconduct in the performance of the First Party’s obligations under the Services; or c) provides any material or information to the other Party for the purpose of the Services;
then the First Party must indemnify and hold harmless the other Party (including its directors, officers, employees and agents) from and against any damages, claims, costs and expenses (including legal costs as assessed) arising from or relating to these matters, including in relation to any form of claim by a person other than the other Party.
10.1 Any notice or other communication to be given to a Party under these Terms & Conditions must be in writing (which includes email and fax) and may be delivered or sent by email, post or fax to the Party to the contact details as advised by the Parties from time to time.
10.2 Any notice or other communication is deemed to have been given:
a. If delivered, on the date of delivery;
b. If sent by post, on the third day after it was put into the post (for post within the same country) or on the fifth day after it was put into the post (for post sent from one country to another);
c. If sent via email, immediately upon receipt by the sender of an email delivery receipt (unless the Party sending the email knows or reasonably ought to suspect that the email and the attached communication were not delivered to the addresses’ email); or
d. If sent by fax, at the time shown in the transmission report as being the time at which the whole fax was sent.
11. Dispute Resolution
11.1 The Parties agree that any dispute arising from the operation of these Terms & Conditions will be dealt with as follows:
a. the Party claiming there is a dispute will send to the other Party a notice setting out the nature of the dispute;
b. if the dispute cannot be informally resolved between the Parties, the Parties will meet (in person or by phone) to resolve the dispute by direct negotiation with representatives from each Party who has the authority to act on behalf of the Party and direct some form of resolution;
c. if the Parties cannot resolve the matter within 14 Business Days from when the notice is sent, the dispute will be referred to mediation conducted by the Australian Disputes Centre. The cost of any such mediation will be shared equally between the Parties unless otherwise agreed in writing by the Parties;
d. if there is no resolution or agreement 14 Business Days after the dispute was submitted to mediation (or such extended period as agreed in writing between the Parties), then either Party may commence legal proceedings.
12 Fair Use Code
12.1 EI’s Fair Use Code applies to Services that are stated to be subject to the Fair Use Guidelines.
12.2 EI’s Fair Use Code is intended to ensure the availability of Services to all eligible Clients when they need it and that the Services are not used or abused in a manner deemed unreasonable or excessive by EI.
12.3 Use of the Services will be deemed unreasonable where the Client’s use of the service is reasonably considered by EI to:
a. be for the benefit of other parties; or
b. involve non-ordinary or excessive use comparative to Headcount.
12.4 Without limitation, for the benefit of other parties includes resupplying or reselling a Service without EI’s written consent so that someone else may access, use or commercially exploit a Service.
13.1 Force Majeure: No Party will be liable for any delay in performing or failure to perform its obligations under these Terms & Conditions where such delay or failure is caused by a Force Majeure Event, provided that the Party so affected takes all reasonable steps to mitigate such failure or delay and notifies the other Party in writing of such delay and failure.
13.2 Entire Agreement: The Terms & Conditions constitute the entire agreement between the Parties in connection with its subject matter and supersedes all previous agreements or understanding between the Parties in connection to the Services.
13.3 Assignment: Neither Party shall assign, transfer or subcontract any part of the obligations under the Terms & Conditions directly or indirectly, without the other Party’s prior written consent.
13.4 Amendments: The Terms & Conditions may only be amended, modified, superseded or varied by written notice.
13.5 Waiver: No waiver by any Party of any conditions, or of any breach of any term contained in the Terms & Conditions, in any one or more instances, shall be deemed to be further or continued waiver of that or any other conditions or breach.
13.6 Invalidity: If any one or more of the provisions in the Terms & Conditions is invalid or unenforceable in any respect, such invalidity or unenforceability will not affect the other provisions contained in the Terms & Conditions and will be construed as if such invalid or unenforceable provision had never been contained herein.
13.7 Relationship between the Parties: Both Parties acknowledge and agree that the relationship between the Parties is that of service provider and customer. No employment, agency, trust, partnership or fiduciary relationship is created by this relationship.
13.8 Governing Law: The Terms & Conditions will be governed by the laws of New South Wales, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of New South Wales.
13.9 Assurances: Each Party must do all things necessary to give full effect to the Terms & Conditions.
14.1 Associated Entities has the meaning set out in section 50AAA of the Corporations Act 2001 (Cth).
14.2 Authorised Contacts are those defined by the Client upfront and as amended from time to time who have direct permission to access the defined Services. The number of Authorised Contacts for the Client is limited to a maximum of 10% of the Headcount, rounded to the nearest integer.
14.3 Business Day means a day which banks are open for normal business in New South Wales, Australia, but in any event excludes Saturdays, Sundays and public holidays in New South Wales, Australia.
14.4 Service Start Date means the date that the Services will accessible, as set out in the Order Form.
14.5 Confidential Information means any information of any kind disclosed or revealed by one of the Parties (“Disclosing Party”) to the other (“Receiving Party”) under or in relation to the Subscription that, without limitation, relates to the Disclosing Party, its business, products, services, customers, suppliers, contractors and employees, including but not limited to business plans and reports, marketing plans, customer/supplier lists, strategies and reports, pricing information, financial information, accounts, data and reports, technical data, concepts, trade secrets, and know how.
14.6 Direct Debit Authorisation means a written authority from the Client to direct debit a financial institution as set out in an online form provided by EI’s financial institution.
14.7 Fee or Fees means the amount payable by the Client for the Services, as set out in the Order Form.
14.8 Force Majeure Event means an event which is outside the reasonable control of a Party (“Affected Party”) which directly precludes the Affected Party from performing all, or a significant part, of its obligations under these Terms & Conditions; including but not limited to any governmental order or restriction, war, threat of war, hostility, riots, civil disorder, national strike, an act of God, fire, flood or explosion, but not including any event which is caused by any negligent act or omission of the Affected Party.
14.9 Order Form means the form signed by the Parties to which these Terms & Conditions are attached.
14.10 GST means Goods and Services Tax as defined in the GST Act.
14.11 GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
14.12 Headcount for the purposes of calculating the “Per Employee” Fees for the Client will be derived from the number of total users in the HR software at the end of each month or the number of employees provided for on the Order Form at the Service Start Date, whichever is greater.
14.13 Intellectual Property means industrial and intellectual property, whether protectable by statute, at common law or in equity and whether existing now or in the future, including without limitation, unpatented inventions, patent applications, patents, design rights (whether registrable or not), copyrights, trade-marks (whether registered or not), trade names, domain name rights, integrated circuit topographies, know-how and other trade secret rights, and all other intellectual property rights, derivatives or adaptations thereof, and forms of protection of a similar nature anywhere in the world, whether created before, on or after Service Start Date, but does not include information which is:
a. published or has otherwise entered the public domain without a breach of these Terms & Conditions;
b. obtained from a third party who has no obligation of confidentiality to the Disclosing Party; or
c. independently developed or obtained without breach of these Terms & Conditions.
14.14 Particulars means all information about the Client that EI requires in order to properly provide the Services.
14.15 Party refers to EI or the Client as applicable and Parties refers to both EI and the Client.
14.16 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, as defined in the Privacy Laws.
14.17 Privacy Laws means the Privacy Act 1988 (Cth), the Australian Privacy Principles and any other applicable law relating to privacy or Personal Information as amended from time to time.
14.18 Service or Services means the services specified in Schedule A.
14.19 Service Levels means, where applicable, the standard of service that EI undertakes to meet in relation to the provision of a Service, that is applicable to the Service accessed by the Client, as described in the Additional Terms.
14.20 Tax Invoice has the meaning set out in the GST Act.
14.21 Taxable Supply has the meaning set out in the GST Act.
Schedule A: Products & Services
1. Subscription Details & Inclusions
1.1 HR Connect Lite includes the following Services:
a. Unlimited Workplace Advice.
1.2 HR Connect includes the following Services:
b. All HR Documents;
c. Unlimited Workplace Advice; and
1.3 Add-Ons & Standalone Services are also available, where noted on the Order Form:
a. HR Document Review
b. HR Software;
c. HR Software Implementations; and
d. Employee Assistance Provider (EAP).
1.4 HR Software, HR Connect Lite and HR Connect are not applicable to New Zealand employees where a Client has both Australian and New Zealand employees.
2. Services Defined
2.1 Compliance: The audit covers Award or Enterprise Agreement compliance, best practice, systems integration, and obligations under the Fair Work Act including the National Employment Standards. The Client is obliged to schedule a consultation with one of EI’s workplace consultants in order to receive this Service. EI will upload the included documents into the HR software, where applicable. The Client will also be informed if there are any changes to legislation that may affect contracts, policies or Award or Enterprise Agreement compliance. The Service is also subject to the Fair Use Code, as defined in clause 12.
2.2 Employee Assistance Program (EAP): A Service provided by EI’s partner, Acacia Connection (the “EAP Provider”). The EAP services will commence for the Client upon receipt of the completed Reporting Requirements by the Acacia Connection. The EAP Provider shall provide business and human resource risk management services to the company by providing EAP sessions to the Client’s employees. The EAP Provider shall perform the services in a diligent and professional manner according to any standards that normally apply to the services and liaise with and report to the Client with respect to all aspects of the services. The EAP Provider agrees to use clinicians who are registered with an approved body, who are experienced in the delivery of EAP counselling and services. All clinicians under the EAP are required to undergo supervision and are not permitted to have any restrictions placed on their practice by their registering body. The EAP is limited to up to six (6) sessions per employee per annum, including family members of the employee. The Client will be bound by additional terms with the EAP Provider, as amended from time to time.
2.3 HR Document Review: Means reviewing and updating the Client’s existing HR documents (such as employment contracts and workplace policies). An Employee Handbook comprising of multiple policies will be deemed to be a number of separate documents, rather than one document, for the purposes of fees.
2.4 HR Documents: Means access to best practice and proven HR documents (including employment contracts, tools and workplace policies) that EI has available on an as needs basis only. HR Documents are template documents and are not tailored to the Client and are provided without any warranty as to appropriateness or enforceability.
2.6 HR Software Implementation: Means the setup of the HR Software, specifically employee details, teams, policies (upload), company settings and organisation chart. The implementation includes the following elements:
a. Dedicated HR Systems Implementation Consultant;
b. Initial Scoping session with the HRIS Consultant;
c. Basic system configuration;
d. Advanced module configuration based on specific business requirements Customised training documentation and handbooks based on system configuration for admins, managers and users (4 hours); and
e. Complex systems training before go-live for system admins, managers and users (capped at 4 hours).
2.7 Representation: Means representation for the Client provided by EI or EI Legal for any alleged unfair dismissal, general protections, bullying or sexual harassment matter in the Fair Work Commission or any discrimination or harassment complaint made in the Australian Human Rights Commission or relevant State Anti-Discrimination Commission or Board, up to and including the first conciliation conference (where this is the first step in the matter). Representation will not be provided where a matter is listed for a mention, directions hearing, jurisdictional hearing or arbitration. Representation does not include any representation in an Australian Court of competent jurisdiction. EI and EI Legal reserves the right to refuse to offer Representation to the Client in situations where workplace advice was not sought through EI in respect of the matter where it was reasonably practicable to do so, or in the case where workplace advice had been sought from EI yet that advice was not followed. Representation does not cover claims which relate to conduct or events which occurred wholly or partly prior to the Agreement Date. The Service is also subject to Fair Use Code, as defined in clause 12. Where representation is not provided under this clause and the Client chooses to engage EI Legal to provide representation under a separate costs agreement, the Client will be entitled to a discount on EI Legal’s usual rates.
2.8 Unlimited Workplace Advice: Means that EI will offer an unlimited advisory telephone line and email advice to Authorised Contacts to provide workplace relations and performance management advice – available between 8:30 am and 5:30 pm AEST (or AEDT during Day Light Savings) Monday to Friday (excluding Public Holidays) over the telephone or alternatively via email. The Client acknowledges and agrees that Workplace Advice does not constitute legal advice and cannot be relied on as legal advice. Workplace Advice is designed to guide and assist the Client only and EI does not accept any liability for any loss (or alleged loss) suffered as a result of the Client relying on the Workplace Advice. The Service is also subject to the Fair Use Code, as defined in clause 12.
3. Client Obligations in Relation to the Services
3.1 Compliance: The Client must schedule an appointment with EI for the purposes of carrying out this Service.
3.2 Employee Assistance Program (EAP): The Client must complete a Reporting Requirements document and send it to EI in order to access the Employee Assistance Program.
3.3 Representation: The Client is obliged to notify EI of any matter within three (3) business days of receiving any claim for which it intends to engage EI’s Representation.
4. Additional Fees
4.1 Additional Authorised Contact: $50 per month per contact.
4.2 Additional HR software Training & HR Consulting (including termination calculation modelling, ad-hoc & ongoing pay rule creation, building & testing and maintenance): $230 per hour / $1,850 per day.