End User Licence Agreement – Terms and Conditions
1. Emprevo Application
1.1 The relationship between Emprevo (“we”, “us”, “our”) and you in connection with the Emprevo Application, and any related services is governed by:
(b) these Terms and Conditions; and
(c) where the Emprevo Application is provided to you via another application (such as Apple’s App Store, or Google’s Play Store), that platform provider’s Application End User Licence Agreement (General Conditions),
1.2 To the extent there is a conflict between the Terms and Conditions and the General Conditions, the Terms and Conditions prevail to the extent of any inconsistency.
2. Grant of Licence
2.1 Subject to this Agreement, by accepting your registration as a user, Emprevo grants you a revocable, personal, non-exclusive and non-transferable licence and right to use the Emprevo Application for the Intended Purpose.
3.1 This Agreement commences on the date that you activate your Emprevo account and or download the Emprevo Application, and will remain in force until terminated in accordance with this Agreement.
4.1 Emprevo provides, or may provide, you with the ability to list and accept working shifts from your employer and related services, for example to record when you are available or unavailable for a shift, through an interactive, real-time, data collection platform using the Emprevo Application (Intended Purpose):
4.2 In providing the Emprevo Application to you, Emprevo may allow you to enter User Content into your User Account for the purpose of:
(a) creating and updating your information on the Emprevo Application;
(b) communicating with your employer; and
(c) any other purpose at Emprevo’s discretion which is consistent with the Intended Purpose.
5. User Content
5.1 You must ensure that at all times the User Content:
(a) is accurate, complete and up to date:
(b) is not defamatory, offensive, abusive, pornographic, profane or otherwise unlawful
(c) does not infringe the Intellectual Property Rights of another person
(d) is not false, misleading or deceptive;
(e) does not create a privacy or security risk to any person;
(f) does not solicit information or money from any person;
(g) is not likely to harm, abuse, harass, threatened or otherwise offend;
(h) does not breach any applicable laws.
5.2 We reserve the right to review User Content and modify or remove any User Content which we reasonably believe violates this Agreement.
5.3 Subject to the terms of this Agreement, you retain ownership of all your User Content.
5.4 You grant us a non-exclusive, worldwide, royalty-free licence to disclose, use, copy and modify User Content as required by us but only for the purposes of us providing services to you (including access to the Emprevo Application and Emprevo Platform) and complying with our obligations under this Agreement, and:
(a) you warrant that you have the right to grant such licence; and
(b) you indemnify us (including our directors, officers, employees and contractors) and hold us harmless from any claim made by a third party arising out of the disclosure, use, copying and modification of User Content, other than as a result of our breach of the permissions under this clause 5.4.
6. Conditions of use of the Emprevo Application
6.1 Unless otherwise stated in writing by Emprevo, you must only use the Emprevo Application and access the Emprevo Platform for purposes that are consistent with the Intended Purpose or as otherwise permitted in writing by Emprevo.
6.2 You must at all times comply with the terms and conditions of this Agreement.
6.3 You acknowledge and agree that:
(a) you are responsible for ensuring that no unauthorised persons access your User Account;
(b) it will be necessary for Emprevo to record in a database all data received by it via your use of the Emprevo Application and such database will at all times be the property of Emprevo;
(c) Emprevo may send you emails, text messages, notifications and any other alerts in connection with your use of the Emprevo Application and access to the Emprevo Platform;
(d) the Emprevo Application and Emprevo Platform is a tool to match individuals seeking work with companies seeking to fill vacant shifts. Your use of the Emprevo Application and Emprevo Platform does not create any employment relationship whatsoever between you and Emprevo, and Emprevo makes no representations or warranties whatsoever in regards to the users of its Emprevo Application or Emprevo Platform;
(e) Emprevo is not liable in respect of any employment entitlements owed to or by its users pursuant to arrangements entered into by its users on the Emprevo Application or the Emprevo Platform.
6.4 You must not directly or indirectly:
(a) copy, alter, modify, reverse engineer, translate, disassemble or de-compile any part of the Emprevo Application or the Emprevo Platform;
(b) grant any party a sub-licence to access or use the Emprevo Application or the Emprevo Platform for any purpose;
(c) distribute or resell access to the Emprevo Application or the Emprevo Platform to any person;
(d) adapt, create derivative works from, or otherwise modify any part of the Emprevo Application or the Emprevo Platform;
(e) circumvent the operation of any part of the Emprevo Application or the Emprevo Platform in any way or undermine or attempt to undermine the security or integrity of the Emprevo Application or the Emprevo Platform;
(f) use the Emprevo Application or the Emprevo Platform if you are under the age of 13;
(g) remove any copyright or proprietary notice from the Emprevo Application or the Emprevo Platform;
(h) distribute viruses, spyware, corrupted files, or any other similar software or programs that may damage the operation of any computer hardware or software;
(i) use the Emprevo Application or the Emprevo Platform in any way that:
(ii) represents that Emprevo endorses, has reviewed or in any way agrees with the material communicated by you;
(iii) is misleading or deceptive;
(iv) infringes any third party’s rights, e.g. Intellectual Property Rights;
(v) breaches any law;
(vi) may affect the availability of the Emprevo Application or causes interference to the normal operation of the Emprevo Application;
(vii) is obscene, offensive, amounts to harassment or exploits another person;
(viii) is defamatory or may be defamatory;
(ix) is otherwise reasonably considered inappropriate by Emprevo;
(x) contains or purports to contain financial, legal, medical or other professional advice; or
(xi) encourage, assist, or grant the right or ability to any other party to engage in conduct similar to that in this clause 6.4.
6.5 From time to time, Emprevo may alter or vary the Emprevo Application or the Emprevo Platform. These alterations may, among other things, have the effect of:
(a) providing a means of using enhanced or added functionality; or
(b) removing access to functionality that had previously been available.
6.6 This clause 6 survives termination of this Agreement for any reason.
7. User Accounts
7.1 Upon registering for the Emprevo Application, you will be provided with a User Account. Your User Account will consist of User Content uploaded by yourself, Emprevo and/or your employer.
7.2 You must keep confidential and safeguard from unauthorised use any user names and passwords required to access any facility forming part of, or made available while using, the Emprevo Application and the Emprevo Platform.
7.3 If you become aware or have reason to suspect that there has been any unauthorised use of a user name or password you must notify us immediately.
7.4 We may suspend access to the Emprevo Application or Emprevo Platform if we reasonably believe that there has been unauthorised use of the Emprevo Application or Emprevo Platform. Where we do so, we will notify you within a reasonable time of the suspension occurring and the parties shall work together to resolve the matter. Nothing in this clause 7.4 limits any other rights or remedies we may have in such circumstances.
8. Intellectual Property
8.1 You acknowledge that the Emprevo Application and the Emprevo Platform are the subject of copyright and other Intellectual Property Rights and that Emprevo shall have and retain all right, title, interest, including copyright and Intellectual Property Rights in and to the Emprevo Application and Emprevo Platform (including the “look and feel”), and any related or underlying technology, and any modifications or derivative works of the foregoing created by Emprevo. You must not at any time do or permit any act to be done that infringes those Intellectual Property Rights.
8.2 Subject to the right to use User Content in clause 5.4, you retain all Intellectual Property Rights in, and to, your User Content.
8.3 This clause 8 survives termination of this Agreement for any reason.
9.1 During the term of this Agreement, Emprevo will take reasonable steps to ensure the availability of the Emprevo Application at all times.
9.2 Emprevo may provide support in relation to the Emprevo Application and the Emprevo Platform, at its absolute discretion.
9.3 When reporting a problem or issue to Emprevo, you are responsible for providing such information and doing such things as are reasonably necessary (as requested by Emprevo) to assist Emprevo in identifying or resolving that problem or issue.
10. Acceptable Use Policy
10.1 In accessing and using the Emprevo Application, or using any related service, you will at all times adhere to Emprevo’s then current Acceptable Use Policy. Any breach of the Acceptable Use Policy may result, at our discretion, in termination of this Agreement and your access to or use of the Emprevo Application and the Emprevo Platform, without notice to you.
10.2 Emprevo may investigate any alleged or suspected violation of this Agreement or of Emprevo’s policies (including the Acceptable Use Policy), or any third party complaints.
12.1 Each party (Receiving Party) may only use the Confidential Information disclosed or revealed by the other party (Disclosing Party) for the purposes of performing its obligations or exercising its rights under this Agreement and must keep such Confidential Information otherwise confidential.
12.2 The Receiving Party may disclose the Confidential Information of the Disclosing Party:
(a) to those directors, employees, agents, contractors, representatives and/or advisors of the Receiving Party (Representatives) reasonably requiring that Confidential Information on a need to know basis, provided that the Receiving Party ensures that such Representatives keeps such Confidential Information confidential in accordance with this clause 12l
(b) to the extent required by law;
(c) with the prior written consent of the Disclosing Party.
12.3 We may refer to the fact that you are a user of the Emprevo Application or Emprevo Platform in marketing and promotional materials and such reference shall not be a breach of this clause 12.
12.4 The obligations under this clause 12 survive termination of this Agreement for any reason.
13.1 You acknowledge that the internet is an insecure public network which means there are risks that information sent to or from or using the Emprevo Application or Emprevo Platform may be intercepted, corrupted or modified by third parties.
13.2 We take all reasonable steps of a prudent and competent provider of services such as the Emprevo Application and Emprevo Platform would be expected to take to maintain the security and integrity of the Emprevo Application and Emprevo Platform and your User Content.
13.3 We will use commercially reasonable efforts to prevent unauthorised access to your User Content and we will adhere to good industry practice and procedures to prevent loss of your data, including daily back-ups but we do not give any guarantees in relation to loss of your User Content.
13.4 If we become aware of any security breach which affects you or your User Content (including personal information), including any unauthorised access, we will:
(a) immediately notify you;
(b) provide you with as much information as we can practicably and lawfully disclose to you about the incident to enable you to assess and manage the impact of the security breach or unauthorised access; and
(c) take all reasonable steps to remedy the issue, secure or recover your User Content and, as applicable, prevent a reoccurrence of the event; and
(d) share with you any non-confidential post-incident reports regarding the security breach or unauthorised access.
14.1 We represent and warrant that:
(a) we have the right to enter into this Agreement;
(b) we have the right to provide you with access to the Emprevo Application and Emprevo Platform.
14.2 You acknowledge that:
(a) access to the Emprevo Application may not be uninterrupted, and the Emprevo Application and the Emprevo Platform may not be error-free;
(b)the performance of the Emprevo Application and the Emprevo Platform (including response times) will depend on factors outside the parties’ control including the design and performance of your information technology systems or device, and the state of the relevant telecommunications networks and their interconnections and network status;
(c) although Emprevo will implement reasonable security procedures, it cannot warrant that unauthorised access to information and data will not occur;
(d) you have relied on your own independent assessment and judgment in determining whether the Emprevo Application meets your needs and requirements; and
(e) you are solely responsible for the accuracy, quality, integrity and legality of, and the method of collection of, any data submitted via the Emprevo Application and the Emprevo Platform by you or your agents.
14.3 Nothing in this Agreement restricts, excludes or modifies any consumer rights under any statute including the Competition and Consumer Act 2010 (Cth).
14.4 Unless this Agreement provides otherwise, to the extent permitted by law, Emprevo expressly excludes all guarantees, conditions and warranties whether express or implied, statutory or otherwise.
14.5 If any guarantee, warranty, term or condition is implied or imposed in relation to this Agreement under the Competition and Consumer Act 2010 (Cth) or any other applicable legislation and cannot be excluded (a Non-Excludable Provision), and Emprevo is able to limit your remedy for a breach of the Non-Excludable Provision, then Emprevo’s liability for breach of the Non-Excludable Provision is limited to the resupply of the Emprevo Application again or the cost of having the Emprevo Application supplied, at Emprevo’s election.
14.6 To the extent permitted by law, in no event will Emprevo be liable to you or any other party for any indirect, punitive, special, incidental or consequential loss or damage in connection with or arising out of this Agreement or your access to or use of the Emprevo Application (including for damage to reputation or loss of profits, use, data, or other economic advantage), regardless of how it arises (including if it arises due to Emprevo’s negligence), whether for breach of this Agreement or on any other basis (including in negligence), and even if it has been previously advised of the possibility of such damage.
14.7 To the extent permitted by law, Emprevo will have no liability in respect of any claim, loss or damage arising from:
(a) an unauthorised party’s access or use of your User Account (unless that party’s access is attributable to the negligence or wilful misconduct of Emprevo);
(b) any addition to or modifications to the Emprevo Application and the Emprevo Platform made or procured by you which are not created or supplied by or on behalf of Emprevo; or
(c) your use of the Emprevo Application and the Emprevo Platform in any way other than in accordance with this Agreement or as otherwise specified by Emprevo.
14.8 Emprevo’s liability arising out of or in connection with this Agreement or your access to or use of the Emprevo Application and the Emprevo Platform (whether in contract, equity, negligence, tort or for breach of statute or otherwise) will be reduced by the extent, if any, to which you or any other party contributed to the loss.
14.9 To the extent permitted by law, the cumulative liability of Emprevo for any breach of any condition or warranty in this Agreement, or any breach of a consumer guarantee by Emprevo, and your sole and exclusive remedy in relation to such breaches will be limited to, in the case of the Emprevo Application, at Emprevo’s option:
(a) supplying the Emprevo Application again; or
(b) paying the cost of having the Emprevo Application supplied again.
14.10 This clause 14 survives termination of this Agreement for any reason.
15.1 Emprevo may suspend the Emprevo Application or your access to the Emprevo Application at any time, by providing you notice if:
(a) Emprevo reasonably believes that you or your agents are in breach of this Agreement, or the Acceptable Use Policy;
(b) any action taken or required to be taken in accordance with this Agreement contravenes or may contravene any law or code of conduct;
(c) you use the Emprevo Application or access or use the Emprevo Platform in a manner which is illegal, fraudulent or anti-social, as deemed by Emprevo;
(d) there has been unauthorised (or suspected unauthorised) access to a User Account; or
(e) such suspension would assist in achieving the Intended Purpose.
15.2 Without limiting clause 15.1, in the event that Emprevo determines in its sole and discretion that your actions or conduct are obscene, defamatory, unlawful, potentially infringing or otherwise violate this Agreement, the Acceptable Use Policy, or other applicable policy, Emprevo may take any action that it deems appropriate and reasonable under the circumstances to protect its systems, facilities, its other customers and/or third parties. Such corrective action includes, but is not limited to:
(a) issuing a warning;
(b) immediately suspending or terminating your access to or use of the Emprevo Application and the Emprevo Platform; and/or;
(c) restricting or prohibiting access to any User Content that is non-compliant or otherwise violates this Agreement or applicable policy.
16.1 This Agreement and your User Account may be terminated by Emprevo at its sole discretion by providing notice to you.
16.2 You may terminate this Agreement by uninstalling and deleting all copies of the Emprevo Application provided to you pursuant to this Agreement.
16.3 On termination of this Agreement for any reason:
(a) you will cease to have any rights to access or use the Emprevo Application or access or use the Emprevo Platform through your User Account or otherwise;
(b) each party will return to the other, all Confidential Information of the other party however Emprevo may, at its discretion and subject to applicable laws, either delete or retain copies of any or all data (including any personal information) that you have provided to Emprevo in connection with your User Account until it is no longer required in relation to Emprevo’s relationship with your employer.
16.4 Termination of this Agreement is without prejudice to any other rights or remedies that a party may have under this Agreement or at law, and will not affect any accrued rights or liabilities of either party.This clause 16 shall survive termination or expiry of this Agreement for any reason.
17 .Electronics Transactions and Verification
17.1 You acknowledge and agree that:
(a) any consent, agreement or authority that you provide via the Emprevo Application or your access to the Emprevo Platform may be made as an electronic transaction and, in those circumstances, such transaction will be binding on you; and
(b) Emprevo may send you communications through the Emprevo Application and any such communication will be taken to be received by you 1 hour after it is sent.
18 .Dispute Resolution
18.1 If a dispute arises out of or in relation to this Agreement, a party may not commence any court proceedings relating to the dispute unless it has first complied with this clause 18, except where a party seeks urgent interlocutory relief.
18.2 A party claiming that a dispute has arisen under or in connection with this Agreement must give written notice to the other party specifying the nature of the dispute. On receipt of that notice, the parties must endeavour in good faith to resolve the dispute.
19. General Provisions
Any notices, consent, or other communication given under this Agreement is only effective if it is writing, signed by or on behalf of the party giving it and received in full and legible form at the addressee’s address as notified by each party to the other from time to time.
Emprevo reserves the right to amend the terms and conditions of this Agreement from time to time. Amendments will be effective immediately upon notification on the Emprevo Website. Your continued use of the Emprevo Application following such notification will represent an agreement by you to be bound by the terms and conditions as amended.
You must not transfer any right or liability under this Agreement without Emprevo’s prior written consent, except where this Agreement provides otherwise.
Emprevo may subcontract, novate or assign any of its rights or obligations under this Agreement and you must provide all reasonable co-operation requested by Emprevo. Emprevo shall remain liable for the acts and omissions of its contractors as if they were our acts or omissions.
Failure, delay or neglect by a party to enforce a term of this Agreement is not to be construed as a waiver of that term or the party’s rights, or a consent to, waiver of, or excuse for any other, continuing, or subsequent breach.
19.6 Governing Law
This Agreement and the licence granted under it, will be governed and construed in accordance with the laws of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of the courts of Victoria and courts which may hear appeals from those courts in respect of any proceedings in connection with this Agreement.
Any provision of this Agreement which is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.
19.8 Entire Agreement
This Agreement sets out the entire agreement between you and Emprevo in relation to the Emprevo Application and the Emprevo Platform.
Any provision of this Agreement that is expressed to survive, or by its nature survives, termination of this Agreement will continue in effect beyond termination.
20. Definitions and Interpretation
In this Agreement, unless the context otherwise requires:
Acceptable Use Policy means the policy available on Emprevo’s website at www.emprevo.com as may be updated from time to time by Emprevo;
Agreement has the meaning given to that term in clause 1.1;
Emprevo means Emprevo Health Pty Ltd ACN 603 309 860;
Emprevo Application means the software and services provided by Emprevo in connection with the delivery of the Emprevo Platform mobile application accessible from mobile application marketplace;
Emprevo Platform means the proprietary rostering software owned or licenced by Emprevo, including any version upgrades and components released by Emprevo for that software;
Confidential Information means all information disclosed in any form by the Disclosing Party to the Receiving Party, whether before, on or after the date of this Agreement, including:
(a) intellectual property, technical information, specifications, materials, samples, compounds, processes, data, software, registration information, marketing procedures, plans or strategies, pricing information, customer and client records, business and corporate or trade information; and
(b) any information that the Discloser indicates in writing to the Recipient is information of a confidential nature or which is marked ‘confidential’,
but does not include information that:
(c) has or becomes publicly available otherwise than as a result of a breach of this deed or a breach of any obligation of confidence owed to either party;
(d) was already known to the Recipient by lawful means at the time of receipt;
(e) was obtained by the Recipient from a third party who has a lawful right to disclose it, provided that the information is used, disclosed or otherwise dealt with in accordance with the rights or permissions granted to the Recipient by the third party and provided further that the information has not been obtained directly or indirectly from the Discloser; or
(f) comprises information which had been, is being or is later developed by the Recipient without use of, or resort to, Confidential Information and this can be proven by written records.
Emprevo Website means Emprevo’s website at www.emprevo.com
Intellectual Property Rights means all intellectual property rights throughout the world including but not limited to the following rights:
(a) patents, copyright, rights in circuit layouts, designs, trade marks (including goodwill in those marks) and domain names and any right to have confidential information kept confidential;
(b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and
(c) all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist in Australia or elsewhere,
whether or not such rights are registered or capable of being registered.
Intended Purpose has the meaning given to that term in clause 4.1;
Related Corporation means a “related body corporate” as defined in the Corporations Act 2001 (Cth);
User Account means the account referred to in clause 6 of this Agreement; and
User Content means data in any format uploaded onto a User Account, including all information, data, email, text, bulletin board postings, hypertext links, meta tags, pictures, graphics, interactive media, and audio/visual materials which you or a third party uploads to a User Account.
In this Agreement, unless the context requires otherwise:
(a) the singular includes the plural and vice versa and words of one gender include the other genders;
(b) the headings to clauses or schedules are for ease of reference only and do not form part of this deed or affect its interpretation;
(c) where a word or phrase is defined, its other grammatical forms have corresponding meanings;
(d) words importing natural persons include corporations, firms, unincorporated associations, partnerships, trusts, authorities and other entities or groups recognised by law;
(e) a reference to include or including or for example or similar expressions does not limit what else is included unless there is express wording to the contrary;
(f) a reference to a part, clause, schedule, annexure or attachment is a reference to a clause, schedule, annexure or attachment to this Agreement;
(g) if a party consists of more than one person, this deed binds each of them separately and any two or more of them jointly;
(h) reference to any law is a reference to that law as amended, consolidated or replaced;
(i) a rule of construction does not apply to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any part of it.