DIVTAL PTY. LTD. (ACN 635 879 907)
Welcome to DivTal, an online platform connecting employers to job candidates DIVTAL PTY. LTD. (ACN 635 879 907) (DivTal).
These terms and conditions apply to the provision of the Services (as defined below) by DivTal to you, the user (you). This Agreement forms a binding legal agreement between you and DivTal. You should read the terms and conditions of this Agreement carefully. Without limiting the way in which you may be bound by this Agreement, by signing a document agreeing to be bound by this Agreement, by clicking a button on your computer screen, smart phone or tablet indicating your acceptance of this Agreement, or by proceeding to use the DivTal platform or the Services, you will be deemed to have accepted and will be bound by the terms and conditions of this Agreement.
- Engagement of DivTal
1.1 Provision of the Services
- DivTal agrees to provide you with the Services, and you agree to obtain the Services from DivTal, in accordance with and subject to, the terms and conditions of this Agreement.
1.2 The Services
- Subject to the terms and conditions of this Agreement, DivTal will provide you with the following Services:
- DivTal will provide certain employers access to job candidates through the DivTal platform.
- You may use the DivTal platform to register as an Employer and/or Job Candidate.
- Registered Employers may use the DivTal platform to request the provision of Job candidates in accordance with the Employer Terms of Business.
- Registered Job candidates may use the DivTal platform to seek job opportunities.
1.3 Reporting Services to Employers
1.4 Approval process
- An Employer or Job candidate will not be able to use the Services as an Employer or Job candidate (as the case may be) until they have completed the registration and approval process with DivTal.
- The approval process may include (but is not limited to) providing any information requested by DivTal. In the case of prospective Job candidates, the approval process may also include (but is not limited to) completing a profile on the DivTal platform (to a satisfactory standard). DivTal reserves the right to withhold approval at any time.
1.5 Services may change at any time
You agree that the Services which DivTal may provide you via the DivTal App, may be modified or discontinued by DivTal at any time with or without notice to you.
1.6 How you are bound
- Depending on how you use the Services, you will be bound by this Agreement in your capacity as an Employer, a Job candidate, or both.
- If you use the Services as an Employer, then you will be deemed to have agreed to, and be bound by, the Employer Terms of Business.
- The Employer Terms of Business forms a separate binding agreement to this Agreement. If there is any conflict between the Employer Terms of Business (as applicable to you) and this Agreement, then the Employer Terms of Business (as applicable to you) will override this Agreement to the extent of the conflict.
- DivTal Account Setup
2.1 DivTal may require you to create an Account on the DivTal platform for the purposes of using the Services.
2.2 Depending on how you use the Services, you will be directed when setting up an Account or after the approval process to carefully read and agree to the Employer Terms of Business (as the case may be).
2.3 The Account on the DivTal platform will be created using DivTal’s online sign up process, or any other method specified by DivTal from time to time.
2.4 The Account will permit you to login to the DivTal platform to manage your Account and other details involving your relationship with DivTal.
2.5 You agree to keep confidential and secure any username or password used to access the Account.
2.6 You warrant that all information provided to DivTal in the setup of your Account or requested by DivTal from time to time is true and correct in every detail.
2.7 You agree that you will only use the Account and the DivTal platform for the purposes of using the Services and for no other purpose.
2.8 You will be responsible for all use of your Account by your employees and agents.
2.9 You must be over the age of 18 years to use the Services. If you are a minor, then you must only use the Services via an Account created by an adult member of your family, as contemplated above.
- Intellectual Property
3.1 You acknowledge and agree that DivTal retains ownership at all times of all Intellectual Property which subsists in the DivTal platform and in the Services.
3.2 DivTal grants to you a personal, royalty-free and non-exclusive licence to use the DivTal App, solely for the use of the Services, as contemplated by this Agreement. This licence will terminate immediately upon the termination of this Agreement.
3.3 You must not infringe the Intellectual Property of DivTal or a third party in connection with the Services. You continually indemnify DivTal against any Loss that DivTal incurs or suffers, as a direct or indirect result of a breach of the Intellectual Property of DivTal or a third party in connection with the Services.
- General Provisions Relating to Content
4.1 The User Content and all other content and information on the DivTal platform including, but not limited to, messages, data, information, text, music, sound, photos, graphics, video, maps, icons, software, code or other material, as well as the infrastructure used to provide such content and information, is proprietary to DivTal. You agree not to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any information, software, products, or Services obtained from or through the DivTal App. Additionally, you agree not to:
- use the DivTal platform or its content for any purpose, other than as permitted by this Agreement or separately agreed in writing by DivTal;
- use another person’s name, account, identity or password without permission, or use the DivTal platform while impersonating another person;
- access, monitor or copy any content or information of the DivTal platform using any robot, spider, scraper or other automated means or any manual process for any purpose without DivTal’s express written permission;
- violate the restrictions in any robot exclusion headers on the DivTal platform or bypass or circumvent other measures employed to prevent or limit access to the DivTal platform;
- take any action that imposes, or may impose, as measured by DivTal in its sole and absolute discretion, an unreasonable or disproportionately large load on its server infrastructure;
- deep-link to any portion of the DivTal platform (including any website through which you access the DivTal platform) for any purpose apart from where expressly permitted by this Agreement or with the prior written consent of DivTal;
- “frame”, “mirror” or otherwise incorporate any part of the DivTal platform into any other website or software without DivTal’s prior written consent; or
- attempt to modify, translate, adapt, edit, decompile, disassemble, or reverse engineer any software programs used by DivTal in connection with the DivTal platform or the Services.
4.2 You agree that DivTal will be the owner of all Intellectual Property in any written content which you submit to the DivTal platform, including, without limitation, postings on the DivTal platform (including in any communication functionality offered by the DivTal platform), data on the DivTal Platform (including any data available in material form or code form) in respect of any online communications between Employers and Job candidates or any suggestions or ideas, or any other work, item or thing you upload to the DivTal Platform or provide to DivTal (User Content).
4.3 To the extent that you have any moral rights (as that term is defined in the Copyright Act 1968 (Cth)) in any User Content you provide to DivTal, then you waive all such moral rights, and to the extent that such waiver is not possible, then you consent to DivTal making all uses, edits and modifications of the User Content in its sole discretion, including, without limitation, as further described in this Agreement.
4.4 You agree that:
- your User Content is not confidential;
- you are solely responsible for the User Content you post to the DivTal platform;
- DivTal may reproduce all User Content on the DivTal platform and will determine in its sole and absolute discretion how it presents your User Content on the DivTal platform;
- DivTal may make any modifications to your User Content in its sole and absolute discretion, before presenting your User Content on the DivTal platform, except in respect of any of your trademarks and/or brands; and
- DivTal may determine whether or not to attribute the User Content to you or remain silent on any attribution.
4.5 You agree that DivTal is under no obligation to edit, monitor or control the User Content which is published to the DivTal platform by you or any other user, however DivTal reserves the right to do so.
4.6 You agree that you will not post, upload to, transmit, distribute, store, create or otherwise publish on the DivTal platform, any of the following (Infringing Content):
- User Content that may infringe the Intellectual Property of any person;
- User Content that impersonates any person or entity or otherwise misrepresents your relationship with DivTal or any other person;
- User Content that is false, unlawful, misleading, libellous, defamatory, slanderous, obscene, pornographic, indecent, lewd, harassing or advocates harassment of another person, threatening, invasive of privacy, abusive, inflammatory, fraudulent or otherwise objectionable;
- User Content that can reasonably be considered to be offensive, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- User Content that would constitute, encourage, promote, or provide instructions for the conduct of an illegal act or omission, any criminal activity, or violate the rights of any person;
- unsolicited promotions or SPAM;
- User Content which contains the private and/or personal information of any person; and/or
- User Content which contains the private and/or personal information of any person; and/or
4.7 You agree that:
- DivTal will have no responsibility or liability for any User Content or Infringing Content posted, stored or uploaded on the DivTal platform, or for any Loss or damage suffered by you or any other person as a result of the DivTal platform storing, holding, or making available, any User Content or Infringing Content to any user; and
- DivTal is under no obligation to review any User Content to determine its accuracy, truthfulness, or whether it is defamatory, slanderous or contains falsehoods.
4.8 Subject to clause 4.7, you may notify DivTal at any time of any User Content which you consider to be Infringing Content on the DivTal platform, and which you request that DivTal remove from the DivTal platform or modify (Take Down Notice). You agree to follow any procedures which DivTal specifies from time to time in relation to you providing a Take Down Notice, and provide DivTal with all information which it requests in considering your Take Down Notice, including information verifying your identity and the basis upon which you consider the relevant User Content to be Infringing Content. You acknowledge that notwithstanding your Take Down Notice, DivTal is under no obligation to remove any Infringing Content other than where stated in this Agreement or where required by law. If DivTal does remove allegedly Infringing Content, then you acknowledge that such removal is done on a without prejudice basis, and upon such removal, you agree to release DivTal from any action, claim, proceedings, damages or other obligation which you may make, institute or claim against DivTal due to the publication of the allegedly Infringing Content on the DivTal platform.
4.9 You indemnify and agree to keep indemnified, DivTal, its agents, employees and officers against all Loss which DivTal, its agents, employees or officers suffer or incur, as a direct or indirect result of:
- you posting or uploading any Infringing Content to the DivTal platform; or
- any legal proceedings or any claim made against DivTal by a third party, which arises directly or indirectly from any Infringing Content posted or uploaded by you to the DivTal platform.
- Suspension of the Services
5.1 Without limiting DivTal’s other rights arising under this Agreement, DivTal may suspend your use of the Services at any time, and for any reason (even if you are not in default of this Agreement), with or without notice to you. DivTal may also suspend your use of the Services in accordance with the terms of the Employer Terms of Business (as applicable).
5.2 DivTal’s suspension of the Services may, in DivTal’s sole and absolute discretion, apply to only some of the Services and/or for a fixed or indefinite period of time.
5.3 DivTal may in its sole and absolute discretion reactivate the Services for you at any time following their suspension.
6.3 DivTal is not responsible for the disclosure of any personal information you disclose to an Employer or Job Candidate (as the case may be) and the Employer’s or Job Candidate’s (as the case may be) collection or disclosure of such personal information.
- Your General Obligations
7.1 You warrant and agree that:
- you will not use the Services for any illegal or fraudulent purpose or for any purpose other than as permitted by this Agreement or Employer Terms of Business;
- you will comply with the terms of this Agreement, the Employer Terms of Business, and all laws which must be complied with in relation to the Services and any other services described in this Agreement;
- you will comply with all security precautions which DivTal puts in place for your use of the Services;
- you warrant that you will not, by engaging DivTal to provide the Services, place DivTal in breach of any law or obligation owing to a third party;
- you will not undertake any act or cause any omission which will bring DivTal into disrepute;
- you will provide DivTal with all information requested by DivTal which DivTal requires to provide the Services; and
- all information provided by you to DivTal in relation to the Services and this Agreement, is true and correct in every detail.
- Term and Termination
8.1 This Agreement commences at the earliest of:
- the time it is entered into by you and DivTal, as described at the commencement of this document, unless varied by the Employer Terms of Business (where applicable); or
- your first use of the DivTal platform or the time you first create an Account.
8.2 This Agreement may be terminated by DivTal at any time, and for any reason, with or without notice to you. DivTal may effect such termination by written notice to you, by deleting your Account, and/or by removing your access to the DivTal Platform and your use of the Services.
8.3 You may terminate this Agreement at any time, and for any reason, by written notice to DivTal or by using functionality in the DivTal Platform to delete your Account (to the extent available).
8.4 Termination of this Agreement under clauses 8.2 and/or 8.3 will also be deemed to be notice from the terminating party to the other party, that the terminating party is terminating the Employer Terms of Business (where you are an Employer). The provisions relating to such termination under those agreements will then take effect.
8.5 Termination of the Employer Terms of Business (where you are an Employer) in accordance with their terms, will automatically act to terminate this Agreement.
8.6 Upon termination of this Agreement:
- you must immediately pay to DivTal, all outstanding amounts which you owe to DivTal under the Employer Terms of Business or on any other account whatsoever;
- you must cease all use of the DivTal platform, the Services and your Account;
- DivTal may prohibit you from accessing or using the Services, the DivTal platform or your Account; and
- DivTal may withdraw all use of the Services from you. Clauses 3.1, 6, 8, 9, 10, 11 and 13 will survive the termination of this Agreement.
8.7 Clauses 3.1, 6, 8, 9, 10, 11 and 13 will survive the termination of this Agreement.
- Limitation of Liability and Implied Terms
9.1 You acknowledge that DivTal has made no warranties that the Services or the DivTal Platform will be error free or available at all times.
9.2 You agree that DivTal will not be liable or responsible for any failure in, or delay to, the provision of the Services or in DivTal complying with its obligations under this Agreement where such failure or delay has arisen as a direct or indirect result of:
- any conduct by you or any person who uses the DivTal platform on your behalf;
- fire, earthquake, storm, flood, hurricane, inclement weather or other act of God, war, terrorism, explosion, sabotage, industrial accident or an industrial strike;
- denial of service attacks, telecommunications failure, hardware failure or the failure of software provided by a third party to function in accordance with its specifications;
- a significant demand is placed on DivTal’s Services or the DivTal platform which is above the usual level of demand and which results in a failure of DivTal’s software and hardware to function correctly (including the DivTal platform);
- the failure of any third party to fulfil any obligation to DivTal; or
- any other circumstances or event similar to the above which is beyond the reasonable control of DivTal.
9.3 You acknowledge that DivTal has not made and will not make any express or implied warranties in relation to the Services or any other services provided by DivTal under this Agreement other than those warranties expressly contained in this Agreement. Subject to clauses 9.6 and 9.8, any term that would be implied into this Agreement, including without limitation any condition or warranty, is hereby excluded to the maximum extent permitted by law.
9.4 You agree that the maximum liability of DivTal under this Agreement for any and all breaches of this Agreement and for any negligence in relation to this Agreement, will not exceed any amount paid for the Services by you, and if no amount has been paid by you, then an amount of AUD $1.
9.5 You agree that DivTal will not be liable or responsible for any thing or act other users post to the DivTal Platform or do.
9.6 If the Competition and Consumer Act 2010 (Cth) (or analogous legislation in a relevant jurisdiction) applies to this Agreement and permits the limitation of liability for breach of warranty implied by statute, the liability of DivTal is limited, at the option of DivTal, to:
- in the case of services:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again; and
- in the case of goods, any one or more of the following:
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired.
9.7 Any of the terms and conditions of this Agreement which limit or exclude any term, condition or warranty, express or implied, or the liability of DivTal will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting your statutory rights or remedies, arising by virtue of the breach of any implied term of this Agreement where such exclusion, qualification or limitation would be prohibited by statute or by the Australian Consumer Law.
9.8 If you are a consumer (as defined in the Competition and Consumer Act 2010 (Cth)), then nothing in this Agreement restricts, limits or modifies your rights or remedies against DivTal for the failure of a statutory guarantee under the Australian Consumer Law where such restriction, limitation or modification would be prohibited by the Competition and Consumer Act 2010 (Cth).
You indemnify DivTal, its agents, officers, employees and subcontractors (Indemnified) against all Loss which the Indemnified suffer or incur as a direct or indirect result of any breach of this Agreement by you, or any breach of any warranties given by you under this Agreement.
- Definitions and Interpretation
11.1 In this document, in addition to terms defined separately in this document, the Employer Terms of Business (where applicable), the following terms will have the following meanings, unless the context otherwise requires:
- Account means an account with the DivTal platform which allows you to access and use the Services through the DivTal platform.
- Australian Consumer Law means the law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
- Employer Terms of Business means the terms of business between an Employer and DivTal.
- Intellectual Property means all present and future rights, title and interest in and to inventions, know-how, patents, patent applications, registered and unregistered trademarks, service marks, registered and unregistered designs, copyrights, circuit layouts, domain names, internet addresses, computer programmes, confidential information, trade secrets, trade or business names and brand names.
- Loss means any loss including any liability, cost, expense (including legal costs on a full indemnity basis) or damage.
- Services means the services described in clause 1.2 together with all other goods and services which DivTal agrees to provide you under this Agreement
- DivTal means DIVTAL PTY. LTD. (ACN 635 879 907) of 7/667 La Trobe St, Docklands VIC 3008, Australia.
- DivTal means DivTal’s platform and any computer software (including source code) or a smartphone or tablet application DivTal publishes which allows you to access and use the Services.
11.2 In the interpretation of this Agreement, unless the contrary intention appears:
- a reference to this Agreement means a reference to an agreement between you and DivTal on the terms and conditions of this document and includes an amendment or supplement to, or replacement or novation of this Agreement;
- the words “includes” or “including” mean “includes without limitation” or “including without limitation”;
- a reference to a person includes a reference to a corporation, firm, association or other entity, and vice versa;
- the singular includes the plural and vice versa;
- a reference to any gender includes a reference to all other genders;
- a reference to any legislation or to any provision of any legislation includes a reference to any modification or re-enactment of or any provisions substituted for such legislation or provisions;
- an agreement, representation or warranty made by two or more persons is made by them jointly and by each of them severally;
- where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and
- headings are inserted for convenience only and do not affect the interpretation of this Agreement.
- Disputes, Questions, Concerns
Any concerns or issues relating to your use of the Services should be directed to DivTal in writing by sending an email to [email protected].
13.1 This Agreement may be amended at any time by DivTal in its sole and absolute discretion. You will become bound by any amended version of this Agreement the first time you use the DivTal platform after those amendments are first published to DivTal’s website, or displayed to you upon you accessing the DivTal platform. If you do not agree with any amendments made by DivTal to this Agreement, then you must immediately terminate this Agreement as described in clause 8.3 and cease all use of the DivTal platform and the Services.
13.2 Any notice given under this Agreement must be in writing and must be signed by the party or its agent giving the notice. A notice is taken to be received:
- in the case of a notice delivered by hand, when so delivered;
- in the case of a notice sent by pre paid post, on the third day after the date of posting;
- in the case of a notice sent by facsimile, upon the receipt by the sender of a transmission report from the despatching facsimile machine which confirms that the facsimile has been successfully sent; or
- in the case of a notice sent by email, upon the receipt by the sender of a confirmation from the recipient or the recipient’s email server that the email has been received by the recipient.
13.3 This Agreement supersedes all prior representations, arrangements, understandings and agreements between the parties relating to the subject matter of this Agreement and sets forth the entire and exclusive agreement and understanding between the parties relating to the subject matter of this Agreement.
13.4 A provision of or a right created under this Agreement may not be waived except in writing signed by the party or parties to be bound by the waiver. No single or partial exercise by any party of any right, power or remedy under this Agreement will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies provided in this Agreement are cumulative with and not exclusive of any rights, powers or remedies provided independently of this Agreement.
13.5 If any provision of this Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of this Agreement to the intent that the invalid or unenforceable provision will be treated as severed from this Agreement.
13.6 DivTal may assign its rights and novate or transfer obligations which arise under this Agreement, with or without notice to you. You must not assign, novate or otherwise transfer your rights or obligations under this Agreement without the prior written consent of DivTal (which may be withheld). You must not subcontract your rights or obligations under this Agreement without the prior written consent of DivTal (which may be withheld).
13.7 The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or part of it.
13.8 This agreement is governed by, and must be construed in accordance with, the laws of the State of Victoria, Australia and the parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria, Australia and their Courts of Appeal.