1. ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS OF SERVICES
The Services defined below are provided by Test Grid (Aust) Pty Ltd (ACN 090 542 911) (“we” or “Testgrid”) and is provided to you (“you” or “Customer”) under the terms and conditions as follows pursuant to any Proposal, Contract or Agreement provided to you ( “the Agreement”).
The agreement comprises the entire agreement between Customer and Testgrid and supersedes all prior agreements between us regarding the subject matter of the Agreement. However the Agreement will be modified by any subsequent written agreement signed by an authorised representative on behalf of each party.
2. DESCRIPTION OF THE SERVICES
2.1 During the term of the Agreement we licence you to access via the Internet a suite of assessment tools, programs, software, databases and other related items (‘the Services’) on the www.testgrid.com website (‘the Website’) for the purpose of assessing prospective and existing employees (‘Participants’).
2.2 We will sell you units (‘Units’) each of which represents one dollar in value, which can be applied to the purchase of Services. Units are transferable within your main account and any subsidiary accounts under your control. They remain current and usable only for one year after purchase and they are not refundable. You should ensure that Units are redeemed against Services before they expire.
2.3 If we have agreed to provide a white label site we will deliver a web page incorporating your logo and style elements as provided by you. We will make one set of reasonable changes requested by you if requested within 7 days of us delivering the first iteration of the black label site to you. Any further changes will be made at our then prevailing rates.
2.4 If we have agreed to work with you to deliver a project that requires us to deliver customized solutions or services, each of us agrees to carry out our respective obligations as set out in a project plan to be agreed between us.
2.5 We may choose not to retain your data after termination of the Agreement and we recommend that prior to termination you retain your own copies of data you may need. All historical data is archived after 2 years and access to the data will be charged at our then prevailing rates.
3. CUSTOMER OBLIGATIONS AND VERIFICATION OF RESULTS
3.1 You will:
a. provide all equipment, including a computer and modem, necessary to establish and maintain a connection to the internet to access the Services;
b. be responsible to configure your browser to meet the relevant specifications for those tests which are not accessible unless the browser is configured. It is our responsibility to advise you of the specifications;
c. only use the Services for the purpose of conducting assessments and analysing the results thereof and for no other purpose.
d. provide current, complete and accurate information about you and the Participants to enable proper and efficient use of the Services;
e. be responsible for the ethical administration of the Services and observe the test administration guidelines, the technical manual available from Testgrid for each test and professional requirements from time to time for the ethical administration of tests and provision of feedback to Participants. Testgrid does not accept any responsibility for administration of any test other than in accordance with the guidelines, the manual and professional requirements or for the use of any test other than for the published purpose;
f. pay the fees for the Services, in accordance with the terms set out in the Agreement;
g. You will nominate persons as your ‘Nominated Contacts’ to communicate with us and will specify the Primary Contact (to deal with contractual issues), the Admin Contact (to administer your Testgrid accounts) and the Invoice Contact (to be responsible for payment administration). You will advise us of any changes.
3.2 Given the inherent nature of unsupervised online testing, you acknowledge our recommendation that it is desirable to verify the results of unsupervised testing by interview and the use of parallel tests under supervised conditions. We accept no liability for Participant test results which have not been so verified and we do not guarantee the identity of Participants.
3.3 When you are accredited to sell tests restricted to a supervised environment, you undertake to administer them in accordance with the standards required by the Australian Psychological Society for the supervision of such tests.
4. MODIFICATIONS TO AGREEMENT
The Agreement may only be amended or modified in writing signed by both parties.
5. MODIFICATIONS TO SERVICES
The Testgrid website is being constantly developed and reviewed and we may modify the functionality and look and feel of the website in accordance with our normal site development practices from time to time provided that such modification does not adversely impact the provision of the Services.
6. CUSTOMER ACCOUNT, PASSWORD, AND SECURITY
6.1 We will issue you with an account and a password. You will issue Participants with usernames and passwords using the client administration function within the Testgrid website. You are entirely responsible for maintaining the confidentiality of this account and passwords and are entirely responsible for any and all use and access to the Services which occurs under this account. You may change the password at any time by following the appropriate instructions.
6.2 You agree to immediately notify us, on you becoming so aware, of any unauthorised use of your account or any other breach of security known to Customer.
7. PRICES, TAXES AND PAYMENT
7.1 The fees for the Services are set out in the Agreement.
You may pay the fees by way of credit card or electronic funds transfer.
7.2 In the event that any payment is in arrears, the amount of the arrears shall bear interest at the rate of 1.5% per month, or the maximum amount allowed by law, if lower. We reserve the right to discontinue your access to the Services pending payment of any outstanding moneys.
7.3 All prices quoted, all orders accepted, and all billings rendered are exclusive of all taxes, fees, or charges imposed by any governmental authority on any transaction.
7.4 You will pay our reasonable out of pocket expenses reasonably incurred in delivering the Services in the manner required by you including, without limitation, courier fees, travel and accommodation provided that we obtain your written consent before incurring such expenses and provide you with proof by way of receipt of those expenses.
In an effort to effectively manage resources and provide our clients with a timely service, our cancellation terms and conditions are:
8.1 Workshops: For cancellations and reschedules more than 48 hours prior to the event, there is a $500 + GST booking fee. Cancellations that occur less than 48 hours prior to the event will incur a fee equal to 50% of the total project cost.
8.2 Debriefs: For cancellations and reschedules more than 48 hours prior to the debrief, there is a $100 + GST booking fee. Cancellations that occur less than 48 hours prior to the debrief will incur a fee equal to 50% of the total project cost.
9.1 We will maintain the confidentiality of information added to our website by you and your Participants. We will not copy or reproduce any part of your information except for the purposes of providing the Services, we will not make your information available to any third party and we will only use your information pursuant to any agreement between us. We may disclose your information to third parties if required by law or with your prior consent. We may use information in a broad aggregated and de-identified manner, which does not reveal the identity of you, a candidate, an employer or an agency.
9.2 You agree that we may name you as a client on our website and in associated marketing collateral but we may not attribute opinions or statements to you without your express written consent.
10. SERVICE DELIVERY
10.1 We will exercise all due care and skill when providing the Services.
10.2 We will use our best endeavours to provide the Services with due diligence and in a proper, timely and efficient manner.
10.3 We do not accept responsibility for any delay in, or failure to complete the Services where that delay is the result of any act of God, industrial dispute, act of a third party or failure on your part to meet your obligations.
10.4 We do not accept responsibility for the accuracy of any information provided to us by you, candidates or third parties.
10.5 We warrant that the Services do not contain any spyware.
11. LIMITATION OF LIABILITY
11.1 Except as stated in the Agreement, Testgrid expressly disclaims all warranties and conditions, express or implied, to the fullest extent to which these warranties and conditions can be excluded under applicable laws.
11.2 Nothing in the Agreement will exclude, restrict or modify any condition, warranty, right or remedy implied or imposed by any statute or regulation if it cannot lawfully be excluded, restricted or modified.
11.3 If any condition or warranty is implied into the Agreement under any applicable law, and cannot be excluded, the liability of Testgrid for breach of the condition or warranty will be limited to one or more of the following as determined by Testgrid and the Customer:
a. in the case of goods, any one or more of the following:
i. the replacement of the goods or the supply of equivalent goods;
ii. the repair of the goods;
iii. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
iv. the payment of the cost of having the goods repaired; and
b. in the case of Services:
i. the supplying of the Services again; or
ii. the payment of the cost of having the Services supplied again.
11.4 The liability of Testgrid to the Customer in contract or in tort (including negligence) or otherwise, for any loss or damage (other than indirect or consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of the Services or any act or omission on the part of Testgrid to comply with its obligations under the Agreement, shall be limited to the value of the total value of the Fees paid for the Services.
11.5 Testgrid will not liable for any indirect or consequential loss or damage including without limitation loss of revenue, profits, bargain, goodwill or loss or corruption of data however caused, whether or not such loss or damage was foreseeable or contemplated by any party and whether or not the other party has been advised of the possibility of such loss.
10.6 For the avoidance of doubt, Customer acknowledges that Testgrid is the provider of the Services. Customer’s selection of tests and interpretation of the results of any tests undertaken as part of the Services, and any decisions based on such interpretation are the sole responsibility of the Customer.
12. COMPLIANCE WITH LAWS
12.1 Customer’s use of the Services is subject various laws and regulations and Customer agrees to:
a. comply with the laws of Australia regarding the export or transmission of technical data through the Services;
b. not to use the Services for illegal or unethical purposes; and
c. not to intentionally interfere or disrupt networks connected to the Services.
12.2 The Services make use of the internet to send and receive certain messages and Customer must observe the generally accepted proper practices for use of the internet including not transmitting obscene or pornographic material or spamming.
12.3 Testgrid may, at its sole discretion, immediately terminate Services should the Customer breach the Agreement.
13.1 Customer agrees to indemnify and hold Testgrid, its related bodies corporate, officers and employees, harmless from any claim or demand, including reasonable legal fees, made by any third party due to a breach of the Agreement by Customer, or the infringement by Customer of any intellectual property right of Testgrid in the Services.
13.2 Testgrid agrees to indemnify and hold the Customer, its related bodies corporate, officers and employees, harmless from any claim or demand including reasonable legal fees, made by any third party due to a breach of the Agreement by Testgrid, or the infringement by Testgrid of any third party intellectual property rights.
14.TERM AND TERMINATION
14.1 Subject to any term agreed in writing, the Agreement shall commence on the Service Commencement Date and shall continue for a period of 12 months unless extended or terminated in accordance with the Agreement.
14.2 Either party may terminate the Agreement upon 30 days written notice to the other. If you terminate the Agreement under this clause 13.2:
a. any fees paid or Units purchased but unused will not be refunded; and
b. if you purchased Units at a discount price based on an agreed volume and that volume will not be achieved because of the termination, you will pay the difference between the discounted price and the price applicable for the volume of Units actually used;
but if we terminate the Agreement under this clause 13.2 we will refund you for Units purchased but unused.
14.3 Either party may terminate the Agreement by written notice where the other party is in material breach of the Agreement and such breach has not been resolved within 30 days of written notice of such breach in which case you will be entitled to a refund for any Units purchased but unused.
14.4 Upon termination of the Agreement, Customer’s right to use the Services immediately ceases.
14.5 Clauses 8,10, 12 and 15 shall survive termination.
All notices to a party shall be in writing and shall be made either via email or conventional mail.
16. PROPRIETARY RIGHTS TO CONTENT
16.1 Customer acknowledges that the content of the Services and of Testgrid’s web site, including but not limited to text, software, sound, data, photographs, video, graphics or other material contained in or presented to Customer as part of the Services (“Content”) is protected by copyrights, trademarks, Services marks, patents or other proprietary rights and laws. Customer is only permitted to use this Content in accordance with the terms of the Agreement. Customer may not reverse engineer, recompile, disassemble, copy, reproduce, distribute, or create derivative works from this Content without expressly being authorised to do so by Testgrid.
16.2 Customer shall own the physical copies of all test reports generated by the Customer using the Services, and shall be entitled to use such reports for its internal business purposes only. As between Testgrid and Customer, Testgrid shall own all data and intellectual property rights in reports and information derived from reports. For the avoidance of doubt, such reports are subject to the obligations of confidentiality outlined in clause 9.
17.1 We will comply with our obligations under the Privacy Act (1988). We may use and disclose Personal Information provided by you for the purpose of providing the Service.
17.2 If you provide Personal Information to us about your employees or prospective employees, you must comply with the terms of the Privacy Act (1988) regarding that Personal Information. In particular you should ensure that before disclosing any Personal Information to us you are entitled to disclose that information.
17.3 If you become aware of any breach or alleged breach of the Privacy Act (1988) concerning information disclosed by you to us or us to you, you should immediately notify us.
17.4 In this clause ‘Personal Information’ has the meaning given in the Privacy Act (1988).
18.1 Testgrid represents and warrants that:
a. it is entitled to enter into the Agreement and perform its obligations under the Agreement;
b. it has all licences, authorisations, consents, approvals and permits required by applicable laws in order to perform its obligations under the Agreement; and
c. it will at all times comply with any applicable laws.
18.2 The Agreement shall be governed by and construed in accordance with the laws of the state of Victoria, Australia and the Customer and Testgrid hereby submit to the exclusive jurisdiction of the courts of Victoria, Australia.
18.3 If any provision(s) of the Agreement is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect.
18.4 Customer must not assign, sublicense or otherwise transfer its rights under the Agreement without the prior written consent of Testgrid, such consent not to be unreasonably withheld. Testgrid may assign or otherwise transfer its rights under the Agreement in whole or in part to a related body corporate.
18.5 A party’s failure to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the other party in writing.
18.6 The headings in the Terms and Conditions are solely used for the convenience of the parties and have no legal or contractual significance.
18.7 If there is a conflict between a term of the Terms and Conditions and a written proposal given by us and accepted by you or a project plan agreed with you, the terms of the Terms and Conditions will prevail unless expressly varied in writing.
18.8 Upon acceptance of the Agreement the customer authorises Testgrid to use the customer’s logo on the Testgrid website.
18.9 Upon acceptance of the Agreement the customer authorises Testgrid to use statistical data obtained during the term of the Agreement for the purpose of case study material.