By requesting the Services, you agree that these terms and conditions, including the Schedules, govern their supply and we will supply our Services to you after we accept your request for the Services. No confirmation, shipment or delivery docket, quote, purchase order, invoice or other document issued by you or on your behalf (including the terms on any pre-printed purchase order form) in relation to the Services will vary of form part of these Terms and Conditions.
a. “Agreement” means these Terms and Conditions, any Schedule(s) and any document incorporated by express reference as part of these Terms and Conditions;
b. “Approved Purpose” means pre-employment and employment screening in accordance with the consent given to you by the relevant Individual;
c. “Change In Control” means a change in the control (as that term is defined in Division 6 of the Corporations Act) of a party.
d. “Client” means the company or entity that has requested to use our Services.
e. “Commencement Date” means the commencement date set out in the Schedule;
f. “Corporations Act” means the Corporations Act 2001 (Cth);
g. “Check The Ref”, “we”, “us” and “our” mean Check The Ref Pty Ltd;
h. “Individual” means each person on whom you request Check The Ref to perform the Services;
i. “Initial Term” means the date starting on the Commencement Date and ending on the Termination Date.
j. “Insolvent” means being an insolvent under administration or insolvent (each as defined in the Corporations Act) or having a controller (as defined in the Corporations Act) appointed, or being in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration, wound up, subject to any arrangement, assignment or composition, protected from creditors under any statute, dissolved (other than to carry out a reconstruction while solvent) or being otherwise unable to pay debts when they fall due or having something with the same or a similar effect happen under the laws of any jurisdiction.
k. “Law” means any statute, ordinance, or code and includes regulations, codes and other instruments under any of them and consolidations, amendments, re-enactments, or replacements of any of them;
l. “Personal Information” has the meaning given to it in the Privacy Act 1988 (Cth);
m. “Privacy Legislation” means the Privacy Act 1988 (Cth) and any legislation from time to time in any Australian jurisdiction (which includes the Commonwealth of Australia and any state or Territory of Australia) affecting privacy, Personal Information or the collection, handling, storage, processing, use or disclosure of Personal Information, data and other types of information and includes the Spam Act 2006 (Cth), Do Not Call Register Act 2006 (Cth), Commonwealth Electoral Act 1918 (Cth) and Telecommunications Act 1997 (Cth);
n. “Renewal Term” means the period set out in the Schedule;
o. “Schedule” means each Schedule executed by the parties containing terms which govern the provision and use of the services outlined in the Schedule and may include Third Party Services;
p. “Services” means the services provided to you including the information, data, products, services and reports provided to you by Check The Ref in response to your request;
q. “Termination Date” means the termination date set out in the Schedule;
r. “Terms and Conditions” means these terms and conditions and any additional terms and conditions in a Schedule;
s. “Third Party Services” means any services or data that has been supplied to Check The Ref by a third party, or any data that arises out of the performance of any Services which are provided to Check The Ref by a third party; and
t. “You” means the company or entity that has requested to use our Services.
a. Check The Ref agrees to undertake the checks that you request and report on these in the fastest time possible. We are not liable for any delay or failure to provide information arising from, caused by or contributed to by you or any third party, however we will always employ best endeavours to complete the checks and will always notify you if this cannot be done in a timely manner.
b. You must provide us with all information, materials, assistance and decisions required to enable us to provide the Services and otherwise perform our obligations under these Terms and Conditions.
c. We cannot commence any work in respect of a verification request until we receive the necessary consents that we require from the Individual who is the subject of the request.
d. We will make a maximum of three attempts to Check The Ref information or obtain missing information before closing a verification or search as “unverified”. 2
e. We reserve the right to close off an outstanding verification request after 15 working days from the date that the request is made by you, if you, or the Individual who is the subject of the request, have not responded to our notice for further instruction, and we have notified you of our intention.
f. You acknowledge that Check The Ref obtains all data supplied as part of the Services from third parties and relies on those suppliers of data to take reasonable steps to ensure that the data is accurate. You further acknowledge that Check The Ref does not independently verify the data and agree that Check The Ref does not provide any guarantee or warranty as to the accuracy or completeness of the data to you.
g. Check The Ref will provide the Services. You acknowledge and agree that Check The Ref may, after discussion with you, at its option and by providing 5 Business Days’ notice to you, suspend provision of the Services or terminate the agreement formed by these Terms and Conditions if:
i. the requirements of any law render (or are likely to render) the provision of the Services contrary to that or any other Law; or
ii. any regulatory policy or published view of a regulator renders (or is likely to render) the provision of the Services contrary to the established regulatory position. Where Check The Ref determines, acting reasonably, that it cannot continue to provide one or more of the Services under these Terms and Conditions, then it may cease to provide that Service, without any further obligation accruing to it under these Terms and Conditions.
h. In respect of Third Party Services, the liability and indemnities of the parties are set out in the respective Schedule(s) or if not specified therein, then in accordance with the terms of this clause.
a. You must use the Services, and any information provided to you as a part of the Services for the Approved Purpose only and at all times comply with these Terms and Conditions and all applicable Laws in all jurisdictions that relate to your access to and use of the Services.
b. You must:
i. in your use of the Personal Information, comply with the Privacy Act 1988 (Cth) and any additional Privacy Legislation by which you are bound. If you are a small business operator under the Privacy Act, then you agree to choose to be treated as an organisation bound by the Privacy Act in accordance with section 6EA of the Privacy Act;
ii. use the Personal Information only for the Approved Purpose in accordance with your obligations under these Terms and Conditions;
iii. restrict access to the Personal Information to employees who need to access the Personal Information to fulfil your obligations under these Terms and Conditions;
iv. take all reasonable steps to ensure that the Personal Information is protected against misuse and loss, or unauthorised access, modification or disclosure, including:
A. undertaking any staff training as may be required;
B. monitoring staff and third party use of the Personal Information;
C. obtaining a written agreement from any third party to whom the Personal Information is disclosed to comply with Privacy Laws and contractual provisions having the same effect as this clause 3 of these Terms and Conditions;
D. during and after the term of this Agreement not do anything with the Personal Information that will cause you or Check The Ref to breach any Privacy Legislation and co-operate with Check The Ref to resolve any complaint made under any Privacy Legislation;
E. not transfer any Personal Information provided in connection with these Terms and Conditions to a country or territory outside of Australia, without Check The Ref’s prior written consent;
F. immediately notify Check The Ref if you become aware of a breach of the Privacy Legislation in connection with this Agreement.
c. Check The Ref must:
i. comply with all applicable privacy laws, rules and regulations, including the Privacy Act 1988 (Cth);
ii. only collect Personal Information under or in connection with this Agreement that is required in order to provide the Services to you;
iii. only use and disclose the Personal Information it receives under or in connection with this Agreement for the purposes of providing the Services to you;
iv. provide individuals a collection notice that meets the requirements of the Privacy Act 1988 (Cth);
v. be responsible for ensuring that any sub-contractors engaged in providing the Services also comply with this clause 3(c);
vi. hold data provided by the Client or their candidates (Data) securely and take steps to prevent misuse, interference and loss of the Data and to prevent unauthorised access, modification or disclosure of the Data;
vii. advise the client if it receives a complaint about the handling of the Data and take steps to resolve the complaint;
viii. advise client in the event of a data breach or incident involving the Data, take steps to remedy the breach and prevent it from re-occurring;
ix. permit client to undertake annual privacy and security reviews to monitor compliance with this clause 3(c) of the Agreement: 3
x. destroy the Data when it is no longer legally required to be kept unless otherwise notified by the client or the extent that it is required by law to retain a copy of the Data;
xi. return or destroy all of the Data at the end of the Term, as directed by the client, and certify in writing that it has done so.
d. In addition to the above, you acknowledge and agree that where in order to provide the Services Check The Ref needs to pass Personal Information to a third party, you have or will obtain valid authority of the relevant Individual to allow Check The Ref to provide the Services.
e. Except as expressly permitted by these Terms and Conditions and subject to clause 3(e) below, you must:
i. not re-sell, re-package or re-use information or permit third parties to use information supplied as part of the Services otherwise than as expressly permitted under these Terms and Conditions; or
ii. not use the information supplied as part of the Services for any purpose other than your internal business use and for the purposes for which it was supplied, save for disclosure as part of your statutory obligations including under the Privacy Legislation.
f. Where you are placing orders for the Services on behalf of your customer (Authorised Clients), you are permitted to use the Services and any information provided to you as a part of the Services for the sole purpose of providing recruitment or other employment-related services to the Authorised Client, provided that you do not use the Services for your own benefit. You:
i. warrant that you the authority to act as agent for the Authorised Client;
ii. shall ensure that each Authorised Client complies with this Agreement as if it were a party hereto;
iii. will be responsible for the acts and omissions of all Authorised Clients as fully as if they were your acts or omissions;
iv. indemnifies Check The Ref and its related bodies corporate (as that term is defined in the Corporations Act) against any liabilities, damages, losses, expenses, demands, claims, suits or judgements, including solicitors’ fees, costs and expenses as a result of any acts or omissions of your Authorised Clients.
g. You warrant that the contact details you provide us for correspondence are suitable for maintaining the confidentiality of the information we send you and you agree to notify us immediately if you change it.
h. Each party owns, and will continue to own, all Intellectual Property Rights subsisting in any material it provides or makes available to the other party under or in connection with these Terms and Conditions (Pre-existing Intellectual Property).
i. All Intellectual Property Rights in documents, ideas, equipment, processes and systems which are acquired or created by Check The Ref in the course of supplying the Services to you are retained by Check The Ref (New Intellectual Property). Check The Ref grants you a perpetual, irrevocable royalty free licence to use the New Intellectual Property for the purposes of these Terms and Conditions.
j. You further acknowledge and agree that the Services and the information we provide to you are proprietary to us and comprise works of original authorship, including compiled information containing our selection, arrangement, coordination and expression of such information or pre-existing material it has gathered or assembled, confidential and trade secret information, and information that has been created, developed and maintained by us at considerable expense of time and money, such that misappropriation or unauthorised use by you or others for commercial gain would unfairly (and may irreparably) harm us.
a. Nothing contained in this Agreement excludes, restricts, limits or modifies any:
i. implied condition, warranty or other term of these Terms and Conditions where pursuant to applicable Law to do so is unlawful or void; or
ii. liability in respect of a default or other breach of these Terms and Conditions where pursuant to applicable Law to do so is unlawful or void.
b. You acknowledge that the conditions and warranties contained in these Terms and Conditions are the only conditions and warranties in relation to these Terms and Conditions (other than those which cannot be excluded or limited by law) and to the maximum extent permitted by law:
i. that the Services are provided “as is” without warranty of any kind;
ii. we are not in any way providing advice to you in respect of your obligations under, or your compliance (or otherwise) with, any Law, and we disclaim all responsibility for any use by you of the Services in assisting you to comply with any Law;
iii. We do not warrant that the provision of the Services will achieve any particular result. The Services are not a replacement for any other information, or for your decision making policies and procedures. Accordingly, Check The Ref does not accept liability for any employment decision you or your Authorised Clients make using any information provided to you as a part of the Services and you assume all risk in connection with your use of, or reliance on, the Services (including any information obtained or derived through the Services); and
iv. Check The Ref makes no warranties or representations about information and data, including Personal Information, sourced from third parties that it provides under this Agreement, or its reliability, accuracy, completeness, or currency.
c. If applicable Law implies any guarantee in respect of the Services, the liability of Check The Ref for breach of any such implied guarantee will be limited to the cost of replacing those services or providing those services again.
d. Subject only to clause 4(a) above, in no event will Check The Ref be liable to you or to any third party for:
i. any loss, damage, cost or expense of any nature arising or caused directly or indirectly by any breach of your obligations or responsibilities set out in these Terms and Conditions; 4
ii. any and all liability for any loss or damage in relation to any decisions made as a result of the use of the Services;
iii. any loss or damage in relation to the accuracy, completeness, currency or quality of information sourced from third parties that is provided as part of the Services;
iv. any damages or losses which are not direct or do not flow naturally from the relevant default, even if those damages or losses may reasonably be supposed to have been in the contemplation of both parties as a probable result of the default;
v. any indirect, incidental or consequential loss or damage or special, exemplary or punitive damages; or
vi. any economic loss (including without limitation any loss of profits, business interruption, loss of revenue, loss of business opportunity, business advantage and/or expectation benefit), whether such liability is asserted on the basis of any common or civil law, in equity, pursuant to any statute, under any contract, in tort (including negligence or strict liability) or otherwise (and notwithstanding that Check The Ref has been advised of the possibility of any particular liability, loss or damage).
e. In respect of any default or other breach of this Agreement by Check The Ref (but subject always to the exclusion and/or limitation of Check The Ref’s liability set out elsewhere in these Terms and Conditions), Check The Ref’s total liability shall be limited to the value of the total fees paid or payable by you for Services the subject of the default or to which the default relates. f. The parties acknowledge and agree that clause 4(e) does not apply to:
i. a breach of clause 3(c);
ii. the death of or injury to any agent, employee, invitee, visitor or other person to the extent caused by an act or omission of Check The Ref;
iii. any fraudulent acts or omissions, willful misconduct, dishonesty, misrepresentation, misleading or deceptive or illegal conduct by Check The Ref.
a. You indemnify and hold harmless Check The Ref and its related bodies corporate, its officers employees and agents (“those indemnified”) against all damages, loss, costs, expenses (including legal costs) or liabilities incurred or suffered by those indemnified arising out of:
i. any unauthorised disclosure by you of Confidential Information;
ii. any act or omission by you in reliance upon the Services;
iii. any failure by you to comply with all Laws applicable to these Terms and Conditions; and
iv. any warranty you provide being incorrect or misleading in any way.
b. Notwithstanding any other provision in this Agreement, your total aggregate liability in relation to this Agreement, including in relation to any indemnity in this Agreement (other than under clause 5.a), shall be limited to the value of the fees paid or payable by you to Check The Ref for the Services.
Being a User of Check The Ref., you recognize our past and ongoing development of state of the art proprietary technology. You agree that during the usage of our Platform and Site, during the term of this Agreement and for eighteen (18) months after termination, you will not develop or market any website that copies or duplicates the Checkster Site functionality.
a. You must pay the fees for the Service you request as set out in the Schedule including any cancellation fees you have incurred.
b. We will send you invoices monthly for all our fees and charges unless you are set up for pre-billing. Payments terms shall be set out on the relevant invoice or if none are specified, then 30 days from the date of the invoice. We reserve the right to suspend or cease providing services if our invoices are not paid promptly.
c. You agree to keep confidential the terms of supply including our fees, charges and pricing arrangement with you under this and any other agreement between us.
d. Pricing under this agreement is confidential and must not be disclosed to third parties.
e. In addition to the fees at 6(a) above, Check The Ref will charge additional fees for searches it conducts outside of Australia and New Zealand which are based on the country and type of verification request. Check The Ref will notify you of these additional fees and obtain your prior written consent to proceed before commencing the search.
f. Check The Ref will also charge any disbursements levied by third party information providers such as academic institutions, agencies, professional bodies etc. These will be charged at cost and capped at $250. g. A verification request cannot be cancelled without our express agreement and subject to your payment of the following cancellation fees, expenses and third party costs (if any): Applicable cancellation fee Where consent and administration has commenced Request is cancelled within 5 working days for consent and administration $10 + GST Request is cancelled between 5 – 40 working days for consent and administration $25 + GST Request is cancelled more than 40 working days or Check The Ref has not received any communication from you with respect to an outstanding request for services for consent and administration 100% fee for the request Where checks have commenced 100% fee for the request 5
a. This agreement begins on the Commencement Date and continues for the Initial Term, unless terminated earlier in accordance with these Terms and Conditions. This agreement will continue beyond the Initial Term for one or more Renewal Terms unless a party notifies the other party at least 30 days prior to expiry of the Initial Term or then current Renewal Term that it does not wish the agreement to continue.
b. You may immediately terminate this Agreement, in whole or in part, by notice to Check The Ref:
i. if Check The Ref breaches clause 3(c)(i), 3(c)(v) or 3(c)(vi);
ii. if the continued provision of the Services would jeopardise the client’s ability to comply with its independence obligations;
iii. if Check The Ref breaches a provision of this Agreement and fails to remedy it within 30 days of receiving a notice from you detailing the breach and requesting that it be rectified;
iv. Check The Ref becomes Insolvent.
c. Check The Ref may terminate this Agreement, in whole or in part, by notice to you:
i. if you breach a provision of this Agreement and fails to remedy it within 30 days of receiving a notice from Check The Ref detailing the breach and requesting that it be rectified;
ii. You become Insolvent;
iii. You have a Change in Control;
iv. Under clause 2g.
d. In addition to its other rights of termination, where Check The Ref holds a reasonable belief that you are in breach of any of the conditions set out in this Agreement Check The Ref may suspend provision of the whole or any part of the Services until such time as the breach is remedied. e. The termination of this agreement does not affect any remedies which either party may have under this agreement or otherwise.
a. This agreement is governed by the laws of Victoria and you submit to the non-exclusive jurisdiction of the courts of that State.
b. If there is any inconsistency between these Terms and Conditions or a Schedule, the following order of priority shall apply (in descending order): terms of the Schedule, these Terms and Conditions.
c. Each indemnity is a continuing obligation separate and independent from any other obligations and survives termination of this Agreement.
d. It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity conferred by this Agreement.
e. Check The Ref may cancel or suspend delivery of any Services in the event of any delay or non-performance due directly or indirectly to, wars, terrorism, strikes, lockouts, act of God, governmental or quasi-governmental restraint, or any other cause beyond our reasonable control.
f. Where you have provided us with an email contact address or mobile phone number, you consent to receiving electronic correspondence concerning the Services from us at the email address or mobile phone number provided, unless you notify us otherwise.
g. You acknowledge and agree that the agreement formed by these Terms and Conditions is particular to you. If you wish to obtain the Services on behalf of a related body corporate (as that term is used in the Corporations Act) you must first obtain Check The Ref’s consent, such consent to be given in Check The Ref’s absolute discretion and on such terms as Check The Ref determines. If Check The Ref consents you will act in your own right and as the agent of each related body corporate with respect to the obligations of each related body corporate under these Terms and Conditions and you:
i. warrant that you have the authority to act as agent for that Related Body Corporate; and
ii. will continue to be liable for the obligations of that related body corporate, despite the relationship of agency. Nothing in the agreement shall prevent Check The Ref from enforcing its rights against any related body corporate to whom Check The Ref provides the Services and for whom you act as agent.