STANDARD TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND SERVICES
1.1. In these terms and conditions, the following words have the following meanings:
1.1.1. Assessment any of the questionnaires or tests made available by the Company or the Client to a Candidate further to this Contract, including Restricted Products;
1.1.2. Assessment Data any data relating to the Candidate (including Personal Data and Special Categories of Personal Data) collected through the Candidate’s use of the Products or Assessments which is not Research Data;
1.1.3. Candidate any respondent to any Assessment;
1.1.4. Client the person(s), firm or company who purchases the Products and/or Services from the Company or is otherwise given access to the Company’s Products and/or Services;
1.1.5. Company Macquarie Psychology Asia Pacific Pty Ltd trading as Saville Assessment Asia Pacific;
1.1.6. Contract these terms and conditions of supply of goods and services including all appendices attached hereto;
1.1.7. Data Protection Laws the General Data Protection Regulation (Regulation (EU) 2016/679), all national implementation laws in respect of the same, and any other laws and regulations relating to data protection or the privacy of individuals that are applicable to the processing of Personal Data under the Contract;
1.1.8. Delivery Point the place where delivery of the Products and/or Services is to take place under clause 5;
1.1.9. Distributor a Client that acts as a distributor or reseller of Products or Services of the Company;
1.1.10. Ethical Guidelines the ethical guidelines displayed on the Website;
1.1.11. Identification Data any data relating to the Candidate collected during the Client’s use of the Products, or collected by the Company during the Client’s use of the Products, used to identify a Candidate and may include the Candidate’s name, email address and other contact details;
1.1.12. Intellectual Property Rights copyright, rights to inventions, related rights, trademarks, service marks, trade, business, domain names, patents, rights in trade dress or get-up rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, algorithms, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets), and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extension of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
1.1.13. Oasys the Company’s online Assessment system;
1.1.14. Order a request or order for the supply of the Products and/or Services placed by the Client with the Company;
1.1.15. Output any reports the Company produces and provides to the Client: (i) about Candidates; or (ii) further to any consultancy Services undertaken by the Company;
1.1.16. Personal Data shall have the meaning ascribed to it in the Data Protection Laws;
1.1.18. Products any products or systems (including Restricted Products) supplied to the Client by the Company (including any part or parts of them);
1.1.19. Registered User an identified user who is qualified to use the Restricted Products and has registered with, and has been approved by, the Company in accordance with the Company’s registration procedures;
1.1.20. Research Data any optional biographical data, Personal Data, Special Categories of Personal Data, and other data, including equality and diversity data such as gender, age and cultural background provided by the Candidate or Client;
1.1.21. Restricted Products any psychometric tests or materials (including: online assessments, question booklets, answer sheets, profile sheets, assessment data extracts and assessment reports) referred to in an Order which at the time of purchase are identified: in the current catalogue; in other sales literature; on the Website; in our training materials; or on the tests or materials themselves, as requiring trained users to administer and/or interpret them;
1.1.22. Special Categories of Personal Data shall have the meaning ascribed to it in the General Data Protection Regulation (Regulation (EU) 2016/679);
1.1.23. Services any services provided to the Client pursuant to a Contract including without limitation: i) the provision of access to or links to Products; ii) and/or training courses to be supplied to the Client by the Company (including any part or parts of them); and/or iii) other Consultancy Projects
1.1.24. Taxes any sales, use, consumption, value added, withholding or similar tax whether chargeable in Australia or by a jurisdiction or taxing authority outside of Australia;
1.1.25. Website www.savilleassessment.com.au;
1.1.26. Willis Towers Watson Code of Conduct the code of conduct available here; and
1.1.27. Working Hour an hour during a day (other than a Saturday, Sunday or a public holiday) when business in New South Wales, Australia are open for business.
1.2. Headings will not affect the construction of this Contract. Use of the words include, including, in particular, or any similar expression are illustrative and do not limit the sense of the words following those terms. The singular tense of a defined term also includes the plural.
1.3. The additional terms and conditions set out in the appendices to this Contract shall also apply according to the type of Service being provided to the Client.
1.4. If there is any conflict or inconsistency between a term in the main part of the Contract and a term in any of its appendices, the term in the main part of the Contract shall take precedence, unless the appendix, or term contained in such appendix, is expressly stated to take precedence over the main part of the Contract.
2.1. This Contract sets out the complete and exclusive agreement between the Company and the Client in respect of the matters referred to in it and supersedes and excludes any previous agreement and/or representations between the parties, whether oral or written unless the Company and the Client enter into a separate agreement in respect of the Products and Services, and such agreement has been duly signed by an authorized signatory of the Company.
3. ORDER ACCEPTANCES
3.1. No Order placed by the Client shall be deemed to be accepted by the Company until a written acknowledgement of Order is issued by the Company or (if earlier) the Company delivers the Products and/or Services to the Client on which date the Contract comes into existence.
3.2. The Client is responsible for ensuring that any purchase orders or other internal requirements of the Client are processed prior to placing an Order with the Company, including setting up Assessments on Oasys made available to the Client. In the event that a purchase order number is required for access by the Client or Candidates to Oasys, it is the Client’s responsibility to enter such number into the Oasys field provided, prior to setting up any Assessment. The Company may require evidence that such requirements have been fulfilled prior to accepting an Order.
3.3. Purchases of Restricted Products must be made by, or on behalf of, a Registered User.
3.4. When ordering Restricted Products, the Client must quote the name of the Registered User and his or her membership number. Orders may be refused by the Company if the delivery address is not that relating to a Registered User.
4.1. The descriptions of the Products and/or Services are set out in the Company’s statement of work, quotation, brochure, Website or other applicable literature. All drawings, descriptive matter, specifications and advertising issued by the Company are published for the sole purpose of giving an approximate idea of the Products and/or Services described in them. Such literature shall not form part of this Contract.
5.1. The Company shall deliver the Products and/or Services to/at the location set out in the Order at any time after the Company notifies the Client that the Products and/or Services are ready.
5.2. Any dates quoted for delivery of the Products and/or Services are approximate only, and the time of delivery is not of the essence. The Company shall not be liable for any delay in delivery of the Products and/or Services that is caused by an event beyond its control (“Force Majeure event”) or the Client’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Products and/or Services.
5.3. In the event that the Products and/or Services are not delivered within the quoted dates for delivery or to the agreed standard, the Client must inform the Company of the non-delivery of the Product and/or Services within seven days of the quoted delivery date.
5.4. Provision of web-based electronic assessment Products and/or Services provided by the Company will be subject to service levels as set out in Appendix 1.
6.1. Unless otherwise agreed by the Company in writing, the fee for the Products and/or Services shall be those set out in the Company’s current price list, valid as at the date of Order, as available on request from the Company.
6.2. The fee for the Products and/or Services shall be exclusive of any costs or charges relating to postage, packaging, insurance, transport, travelling expenses and/or any applicable import and/or export duties which shall be paid for by the Client.
6.3. Any fees or rates quoted or estimated are exclusive of any applicable sales, or similar taxes. Expenses are charged in addition.
7.1. The Company, at its absolute discretion, may require a Client to pay at the point Orders are accepted by the Company.
7.2. Unless otherwise agreed, invoices shall be paid within 30 days of invoice date (“Invoice Due Date”). In the event that invoices are not paid within that time, the Company is entitled to charge a late payment fee of the lesser of 1% per month or the maximum allowed by law.
7.3. All sums due under this Agreement shall be paid by the Client in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). If the Client deducts an amount in respect of taxes that the client is obliged to withhold by law, that amount shall remain payable by the Client to the Company until the Client has provided evidence to the Company that the Client has paid the amount of the withholding to the respective Tax or other Government authority.
7.4. The Company shall be entitled to withhold, without any liabilities, delivery of any Products and/or suspend any of the Services if the Client fails to pay to the Company any sum due under this Contract by the Invoice Due Date.
8. RETURN OF PRODUCTS
8.1. The Company will not accept any Products for return without prior notice and such request must be received in writing within 30 days of dispatch by the Company and such product will be returned to the Company within two weeks of such authorization having been given by the Company. No request for return or exchange of Products can be considered unless they are tendered to the Company in unaltered condition. Returns should be dispatched by the Client via traceable means to provide proof of dispatch and delivery.
8.2. For returns made, other than for damaged or unordered goods, a handling fee will be charged equivalent to 10% of the returned order value, subject to a minimum of $20.
9. CLIENT’S OBLIGATIONS
9.1. The Client represents, warrants and undertakes that it shall:
9.1.1. ensure that the Assessments are used in compliance with the then current Ethical Guidelines;
9.1.2. ensure that only a Registered User uses the Restricted Products in accordance with the Ethical Guidelines;
9.1.3. not, and shall ensure that the Registered User shall not, make the Restricted Products available for administration by any individual who is not a Registered User;
9.1.4. ensure only those users it has authorized have access to Oasys;
9.1.5. not copy, reproduce, modify or adapt, translate, disassemble or reverse engineer, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of Product and/or Services (as applicable) in any form or media or by any means, except as permitted in accordance with the Contract;
9.1.6. administer and use the Products and/or any Services (including any related materials), in compliance with all relevant laws, procedures or guidelines applicable in the jurisdiction in which the assessment is being administered;
9.1.7. comply with applicable law with respect to the Contract; and
9.1.8. enter into the Contract as a business customer and is not a consumer for the purposes of any consumer protection regulation.
9.2. The Company will rely on the documentation and information provided by the Client or its representatives and do not take responsibility for verifying the accuracy or completeness of it.
9.3. The Client may rely only upon the final work product and not on any drafts or oral statements made by the Company in the course of performing the Services.
9.4. Distributors represent, warrant and undertake that it shall comply with the principles of the Willis Towers Watson Code of Conduct.
10. THE COMPANY’S OBLIGATIONS
10.1. The Company shall provide the Services in a professional manner with reasonable skill and care. The Company will assign to the project team members of staff with adequate education, training and experience to perform the tasks assigned to them.
10.2. The Company does not provide any legal advice.
11. LIMITATION OF LIABILITY
11.1. The aggregate liability, taken together, of the Company, its affiliates and our and their respective employees, directors, officers, agents and subcontractors (“Related Persons”) arising from or in any way connected with the Products, the Services or any claim under this Contract whether in contract, tort (including, without limitation, negligence and misrepresentation), or for breach of statutory duty or otherwise (all of these being what we call “Theories of Law”), shall not exceed in aggregate the total fees paid (plus fees payable) to the Company during the twelve months immediately preceding the claim giving rise to such damages.
11.2. Subject to clause 11.3, in no event shall the Company or any of its Related Persons be liable under any Theories of Law under or in connection with, or arising out of, this Contract, with respect to any: (i) loss of income; (ii) loss of actual or anticipated profits; (iii) loss of business; (iv) loss of revenue or the use of money; (v) loss of contracts; (vi) loss of anticipated savings; or (vii) any indirect or consequential loss (all these categories being referred to herein as “Special Losses”). This exclusion of liability for Special Losses applies regardless of whether any of them are foreseeable, known, foreseen or otherwise contemplated, unless otherwise agreed in writing between the Parties. Also, the particular Special Losses in that list (i) to (vi) inclusive apply whether such Special Losses are direct, indirect, consequential or otherwise.
11.3. In the rare circumstances where the only damages that can be suffered under this Contract Special Losses, then clause 11.2 shall not have effect but, in that case, the limitation in clause 11.1 shall apply to such Special Losses.
11.4. Without limiting anything else in this clause 11, where we or any of the Related Persons are jointly liable to you with another third party under or in any way connected with this Contract, any Products or any Services, we and the Related Persons shall, to the extent permitted by law, only be liable to you for those losses that correspond directly with our or our Related Persons’ proportionate share of responsibility for the losses in question, whether or not such other third party is made a party to the same proceedings as us or any related proceedings and whether or not such party satisfies (or is able to satisfy) any judgment against it.
11.5. Nothing in this Contract shall exclude or limit the liability of the Company or its Related Persons: (i) for death or personal injury resulting from the negligence of the Company or the Related Persons; (ii) for fraudulent acts or omissions of the Company or the Related Person; or (iii) to the extent that the law does not permit the same to be excluded or limited.
12. WARRANTY DISCLAIMER
12.1. The Company makes no warranties of any kind concerning the Products and the Services and disclaims the implied warranties of merchantability and fitness for a particular purpose. The Company does not warrant that the web-based electronic assessment Services will operate without interruption or that it is free from errors.
12.2. In particular, the Company gives no warranties and shall not be liable to either the Client or any third parties as to the appropriateness of the Products and/or Services including but not limited to the completeness or accuracy of any computer scored reports. The Company excludes all liability for any disparate impact or disparate treatment and sexual or racial discrimination by the Client in connection with the use of any Products and/or Services provided by the Company.
13. INTELLECTUAL PROPERTY AND LIMITED LICENSE
13.1. The Client shall retain ownership of all material provided to the Company by the Client or its representatives and the intellectual property rights in that material.
13.2. The Company shall own all Intellectual Property Rights arising out of or in connection with the Contract (including any Intellectual Property Rights subsisting in the Identification Data, Assessment Data, Research Data and any other data created or collected in connection with the Contract and/or material produced by the Company in connection with the Contract and the Output). The Company shall retain the intellectual property rights in any materials provided by the Company to the Client and the skills, know-how and methodologies used or acquired during the course of providing any of the Services.
13.3. Subject to payment by the Client of all sums due under the Contract, the Company hereby grants to the Client a perpetual, revocable, worldwide, royalty-free, non-exclusive, license to use the Output and any Products for the Client’s own internal human resource management purposes. The Services, including the Products and any material provided during the performance of the Services, are provided solely for the intended purpose and may not be referenced or distributed to any other party without our prior written consent.
13.4. The Company grants to the Client a limited, non-exclusive, non-transferable right to access Oasys commencing on the date that Oasys is first made available to the Client and continuing during the agreed term and any agreed extensions thereto. The Client shall not permit any other party to use Oasys and the Client shall not use Oasys on behalf of any other party. The Client shall not, and shall not permit any third party to, (a) decipher or decompile Oasys or develop or derive source code for Oasys; (b) develop passwords or other mechanisms that enable Oasys for any use or periods of time not covered by this Contract or (c) disassemble, decompile, reverse engineer, transmit, or hack into Oasys in any form or by any means.
13.5. Upon written request by the Client and provided such data has not already been anonymized in accordance with paragraph 2 of Appendix 1, the Company shall provide to the Client a copy of the Identification Data and Outputs derived from Assessment Data that have been purchased by the Client within a reasonable time period of such a request.
14.1. Each Party (the “Recipient”) shall protect all confidential information which the other Party (the “Discloser”) provides to it (whether orally, in writing or in any other form) (“Confidential Information”) using the same standards as the Recipient applies to its own comparable confidential information, but in no event less than reasonable measures. Confidential Information shall not include information that is: (a) already known to the Recipient at the time of disclosure; (b) in the public domain or publicly available; (c) provided to it by a third party who is under no such obligation of confidentiality; (d) independently developed by it; or (e) is required to be disclosed by court order, regulatory authority or other legal process, provided that prior to disclosing any Confidential Information, the Recipient shall, if permitted by law, notify, and cooperate with the Discloser, at Discloser’s expense, to lawfully limit and/or obtain appropriate protective orders with respect to such portion(s) of the Confidential Information which is the subject of any such required disclosure. The Recipient shall only disclose the Confidential Information to those of its and its affiliates’ employees, agents and subcontractors who need to know it for the purpose of discharging the Recipient’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors are bound by confidentiality obligations equivalent to those contained in this clause 14. The Receiving Party may also disclose such of the Disclosing Party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
15. DATA PROTECTION
15.2. The Company warrants that it has made all necessary registrations of its particulars where required, in accordance with the Data Protection Laws.
15.3. The Client warrants that it has made all necessary registrations of its particulars where required, in accordance with the Data Protection Laws.
15.4. Subject to clauses 15.5 and 15.6 below, in respect of any Assessment Data and Identification (to the extent that it constitutes Personal Data) that is processed in connection with the Contract, the parties agree that they shall each be data controllers for the purposes of the Data Protection Laws and each party shall comply with its respective obligations under the Data Protection Laws and shall only process such data in connection with the Contract.
15.5. The parties acknowledge and agree that the Company will act as a processor in respect of the Assessment Data and Identification Data for the purposes of the Data Protection Laws, and that the Company’s processing activities in carrying out the Client’s instructions shall be governed by the terms of Appendix 5, in the event the Client instructs the Company to:
15.5.1. classify or categorize any Candidates based on their Assessment results,
15.5.2. exclude any Candidate from any part of the Assessment process,
15.5.3. omit any Candidate Data from the Output, or
15.5.4. otherwise take any steps which may affect a Candidate’s prospects of employment or have a similarly significant impact on a Candidate.
15.6. The parties acknowledge and agree that the Company will act as a processor in respect of the Assessment Data and Identification Data (to the extent that such data has not been fully anonymized) when the Company carries out a Consultancy Project (as defined in Appendix 4), and the Company shall process personal data under such Consultancy Project in accordance with the Data Processing Protocol.
15.7. The Client will ensure that any and all decisions about the Candidates on the basis of their Assessment results are made in a manner that complies with the Data Protection Laws and all other applicable laws.
15.8. The Client warrants that:
15.8.1. all fair processing notices have been given to any Candidates and explicit consents obtained (as applicable) in accordance with the Data Protection Laws, and/or any local applicable data laws to which the Client is subject, for the Client to provide any Identification Data to the Company and for the Company to process such Identification Data for the purpose of providing the Products and/or Services; and
15.9. The Client shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct losses, all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Company arising out of or in connection with the Client’s breach of this clause 15 and/or the Data Protection Laws to which the Client is subject.
16. TERMINATION OF CONTRACT
16.1. Either party may terminate this Contract immediately in the event that the other party: (a) is in material breach of any of its obligations under this Contract and either the breach is: (i) not capable of remedy; or (ii) capable of remedy but the other party has failed to remedy the breach within 30 days of being given written notice asking for it to be remedied; (b) does not act in accordance with the Ethical Guidelines; or (c) if the other party suspends payment of its debts or experiences any other insolvency or bankruptcy-type event.
16.2. Either party may terminate this Contract at any time for convenience on giving not less than three months’ written notice to the other party, except where the Contract is subject to an agreed minimum term or agreed subscription term, the effective date of such termination shall be on the date of the expiry of such agreed minimum term or agreed subscription term.
16.3. On termination of the Contract for any reason:
16.3.1. the Company shall not be under any obligation to supply any further Products or Services under any such Contract and the Client shall pay for the Product delivered and Services rendered up to the effective date of any such termination, and for expenses incurred;
16.3.2. the Client shall return any materials for which the Company owns the Intellectual Property Rights and which have not been fully paid for. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract; and
16.3.3. any provisions contained in the Contract that would be reasonably intended to apply after termination will do so including clauses 9.1, 11, 12, 13, 14, 15 and 16.3.
16.4. If a Distributor breaches its obligations under clause 9.4, the Company may terminate the Contract immediately on written notice to the Distributor.
17.1. If any provision (or part of any provision) of the Contract is found by any court or tribunal to be void or unenforceable, that provision or part provision shall be deleted, and the validity and enforceability of the other provisions shall continue in full force. If any invalid or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum changes to make it valid, enforceable and legal.
17.2. A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
17.3. Nothing in the Contract shall be deemed or construed to constitute a party or its employees, as the agent, partner, joint venture or legal representative of the other party for any reason whatsoever. Neither party is granted any right or authority to act for, or to incur, assume or create any obligation, responsibility or liability, express or implied, in the name of or on behalf of the other party or to bind the other party in any manner whatsoever.
17.4. A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
17.5. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
17.6. A person who is not a party to the Contract shall not have any rights under or in connection with it.
17.7. The Company accepts no responsibility for any consequences arising from any third party relying on the Services. The Client shall reimburse the Company for all costs (including reasonable legal fees) that are incurred in responding to any requests or demands from third parties, pursuant to legal process or otherwise, for data or information related to the Services provided by the Company.
17.8. The Client shall not assign, novate, transfer, charge or subcontract the Contract or any part of it without the prior written consent of the Company except in the case of a corporate restructuring that does not result in a change of control of the Client. The Company may at any time assign, transfer, mortgage, charge or deal in any other manner with any or all of its rights and obligations under the Contract.
17.9. All communications between the parties about this Contract must be in writing and: delivered by hand; sent by first class post; sent by facsimile transmission; or sent by email to the parties’ registered office or such address as notified by one party to the other.
17.10. The Company reserves the right to defer the date of delivery or payment or to immediately terminate the Contract if it is prevented from performing its obligations under the Contract due to any Force Majeure event.
17.11. Any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by the parties.
17.12. This Contract and any dispute or claim arising out of or in relation to it is governed by Australian law and the parties irrevocably submit to the exclusive jurisdiction of the Australian courts
17.13. Translations of the Contract into languages other than English may be provided for information and convenience. For the definitive and binding version, please refer to the English language version which shall prevail in the case of any discrepancies between it and the translated versions.
Service Level Agreement
These service levels apply where the Client is purchasing web-based electronic assessment Services from the Company:
1. Subject to the Client meeting the Client’s obligations under this Contract, the Company shall use all reasonable endeavours to ensure that the web-based electronic assessment service is available to the Client throughout the term of this Contract. The Company will schedule downtime between 8am and 8pm UK time on Saturdays as necessary. Such downtime will be notified on the Company Website or other such website as notified to the Client from time to time and via email to the project administrator, Registered User or other designated employee of the Client.
2. Identification Data and Assessment Data will be made available to the Client for a period of 24 months from the date the Candidate completes the Assessment or until the date the Assessment is anonymized at the request of the Client or Candidate, whichever is earlier. Reports may be run against this data subject to the fees set out in the Company’s current price list.
3. The Company’s help desk support (“Help Desk Support”) will be provided to the Client between the hours of 8:30am and 5:30pm NSW time Monday to Friday except NSW public holidays (“Normal Working Hours”). The fees for the Help Desk Support (“Help Desk Fees”) shall be as set out in the Company’s current price list.
4. Queries received via email at email@example.com by the Help Desk during Normal Working Hours will be responded to within two Working Hours of the email receipt. For the avoidance of doubt, the meaning of a response within this paragraph 4 will include an acknowledgement of the Client’s initial email stating that a query has been raised and shall not necessarily mean a resolution. Failure to respond within two Working Hours will entitle the Client to a payment equivalent to thirty five AUD dollars ($35.00) for every hour the queries are left unanswered, to a maximum of one thousand and two hundred and twenty five AUD dollars ($1,225.00).
5. The Company makes no guarantee of resolving the problem.
6. The Company will generate a price quote and time estimate for work to be performed based on the results of an investigation.
7. The Client must give specific consent for work to proceed at the agreed price and the Company may decline to perform such requested work.
8. The Company does not guarantee fee-based work. If the Client experiences further problems, the Client must submit a new request.
9. Network uptime, excluding planned downtimes notified to the Client by the Company in accordance with paragraph 1, shall be as follows:
9.1. 99.5% availability based on network average during the hours of 8am on Monday to 6pm on Friday UK time except UK public holidays and 99% availability at other times; and
9.2. for every hour above the acceptable outages in a calendar month, the Company will make a reimbursement of 5% of the fees payable by the Client under the Contract during the relevant month to a maximum of 25% of the total fees payable by the Client in the month. This is active only after a report of failure from the Client is received by the Company.
10. The Company shall not be liable for any defect or failure in the performance of the web-based electronic assessment for reasons beyond the Company’s control including but not limited to link failures, power difficulties, telephone outages, network overload, issues related to Client systems, default or failure of a third party, government actions, failure in the supply of a third party’s access line or any event of Force Majeure.
11. The Company reserves the right to terminate the use of any bespoke reports, bespoke Products or Oasys previously delivered to Clients in the event that the reports or Oasys have, in the absolute discretion of the Company, low usage or activity. The Company will provide the Client with at least 90 days’ notice prior to terminating the use of such reports or Oasys.
Additional Terms and Conditions for Booking Public Training Courses
1. Public Training Courses and Prices:
1.1. The details of the design and content of courses and the prices are correct at the time of publication but are subject to change without notice.
1.2. The cost of optional overnight accommodation is not included in the course fees.
1.3. Invoices will be raised upon booking a course and all invoices will be payable within 7 days of the invoice date, unless the course start date is less than 30 days from the invoice date in which case the course fees will be payable immediately. In any event, course fees should be paid in full prior to the commencement of the course.
1.4. The Company reserves the right to cancel or reschedule courses without penalty or liability if there are insufficient bookings, or for reasons outside its control. The Company will try to notify participants as soon as reasonably possible if a course has to be cancelled.
2. Cancellation Policy:
2.1. In respect of cancellation by the Company, a full refund will be given upon return to the Company of any pre-course materials already dispatched.
2.2. Training course bookings are to be paid 28 days prior to the commencement of the course. Immediate payment by credit card will be required for any Booking made within 28 days of the course start date.
2.3. The full course fee will be payable for any cancellation by a participant for any reason within 21 days of the start of the training course. No fees will be payable, except a charge for any course material already dispatched, for any cancellation received in writing more than 21 days before the course start date.
2.4. Transfers from one course to another on an alternative date are treated as cancellations. A booking is then required for the new course date at the full price.
2.5. Participant substitutions can be accepted, without charge, at any time provided that the substitute fills the entrance requirement and has completed any pre-course study.
3. Qualification of Participants:
3.1 Registrants on qualification courses should note that successful completion of such courses requires participants to demonstrate an understanding of the underlying principles and competence in the selection, administration and feedback of the instrument(s) concerned. Whilst the Company will make every effort to ensure a high standard of training and impartiality in such awards, no guarantee is given that every participant attending will receive such qualification.
Additional Terms and Conditions for Booking In-house Training Courses
In-company training course programs can produce significant savings where a client has a number of participants wishing to attend public training courses. Fees for these courses will be provided on request.
1.1. The details and requirements for the in-company courses will be agreed at the time the course is booked. Unless otherwise agreed, in addition to the agreed course fees, the Client shall be responsible for providing, and the cost of, the following:
1.1.1. the training venue, audio visual equipment and wireless broadband internet connectivity;
1.1.2. all meals and refreshments during the course;
1.1.3. travel and accommodation for the trainer(s) and, when required, observers;
1.1.4. the cost of transport by courier of equipment and materials to and from the venue; and
1.1.5. volunteers for administration and feedback practice.
2. The additional terms and conditions applicable to public training courses set out in Appendix 2 shall also apply to in-company training courses.
Additional Terms and Conditions Applicable to Consultancy Services
1. Consultancy Projects:
1.1. “Consultancy Projects” are defined as assignments undertaken by the Company or its agents and sub-contractors on behalf of the Client in relation to the Assessments.
1.2. Consultancy Projects will only commence following agreement with the Client of a clear written specification or proposal.
2. Fees and Cancellation:
2.1. A “Consultant Day” is a maximum of eight hours between the hours of 8:30am and 5:30pm unless otherwise agreed in writing between the parties. If evening, weekend or public holiday work is involved and/or if the Consultancy Project involves work outside Australia, higher rates will apply as agreed in writing.
2.2. Travel time will be charged at 50% of the prevailing Consultant Day rate.
2.3. Fees for any Consultancy Projects supplied by the Company will be invoiced to the Client at the prevailing sales price.
2.4. Unless otherwise agreed in writing between the parties, 30% of the total fees for the Consultancy Project will be invoiced on commencement of the Consultancy Project. 50% of the fees will be invoiced on a monthly basis as the Consultancy Project proceeds, with the final 20% invoiced on completion of the Consultancy Project.
2.5. Charges for cancellation or postponement before the commencement of a Consultancy Project are as follows:
2.5.1. within two weeks of the commencement of the Consultancy Project: the full fee; or
2.5.2. within two to four weeks of the commencement of the Consultancy Project: 50% of the full fee.
2.6. If the Client requests any change to the Consultancy Project, the Company will make reasonable efforts to meet the request. If these changes result in extra time being required, this will be charged at the prevailing rate per Consultant Day.
2.7. Expenses incurred in the course of undertaking the project, including but not limited to travel, accommodation, subsistence and courier costs, will be charged in addition to the fees charged by the Company for the Consultancy Project.
3.1. The Client will give the Consultant such access to their offices, personnel and to client information as the Consultant may require in the performance of the assignment. Any increase in time spent as a result of the Consultant’s reasonable access being denied will result in an increase in the project cost.
3.2. The Client will ensure that the Consultant has sufficient working space and facilities and will secure and keep safe all of the Consultant’s and the Company’s property.
Data Processing Protocol
This Data Processing Protocol (the “Protocol”) explains how the Company handles personal data on behalf of the Client.
Where this Protocol uses terms, which are defined in the General Data Protection Regulation (Regulation (EU) 2016/679) (the “Regulation”), then the definitions set out in that Regulation shall apply.
With respect to personal data processed by the Company on the Client’s behalf (see Annex 1), the Company will comply with the following requirements:
Limitations on Use. The Company will process personal data only to deliver the relevant service, as instructed in writing by the Client from time to time, or as otherwise required by law.
Confidentiality. The Company will hold personal data in confidence and require Company personnel who will process personal data to protect all personal data in accordance with the requirements of this Protocol.
Information Security Program. The Company will maintain a written information security program that contains appropriate administrative, technical and physical safeguards to protect personal data against anticipated threats or hazards to its security, confidentiality or integrity.
Assistance. The Company will:
I. taking into account the nature of the processing and in so far as is possible, implement technical and organisational measures to assist the Client in fulfilling its obligation to respond to any requests from individuals exercising their rights under Chapter III of the Regulation;
II. taking into account the nature of the processing and the information available to the Company, assist the Client in complying with the Client’s obligations to implement appropriate security measures, to notify personal data breaches to supervisory authorities and to individuals and to conduct data protection impact assessments and consult with supervisory authorities in relation to data protection impact assessments where required; and
III. make available to the Client all information which the Client reasonably requests to assist the Client in demonstrating that the obligations set out in Article 28 of the Regulation relating to the appointment of processors have been met and allow for and contributes to audits conducted by the Client or another auditor nominated by the Client.
The Company may charge a reasonable fee for all such assistance described above, save where assistance was required directly as a result of the Company’s own acts or omissions, in which case such assistance will be at the Company’s expense. The Client shall provide the Company with thirty (30) days advance notice of any audit request; may not engage in an audit which would compromise confidentiality obligations to any other clients and customers of the Company and, if it wishes to nominate another auditor to undertake the audit, shall ensure that the auditor enters into a confidentiality agreement with the Company in such form as the Company shall reasonably require.
Security Incident. The Company will without undue delay notify the Client whenever the Company reasonably believes that there has been a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data processed by the Company in the context of this Protocol (“Security Incident“). After providing notice, the Company will investigate the Security Incident, take necessary steps to eliminate or contain the impact of the Security Incident and keep the Client advised of the status of the Security Incident and all related matters.
Erasure of Personal Data. Unless the Client or the Candidate requests the Company to anonymize personal data sooner, the Company will retain personal data for a period of 24 months following the date of completion of the Assessment or the data the Candidate was invited to take an Assessment if no Assessment was completed to assist the Client in complying with any data subject requests or other obligations, after which the Company will retain the right to anonymize the personal data (and such anonymized data will be used by the Company for research purposes).
The Client understands that the Company may use sub processors to provide the services under the Agreement. The sub processors used by the Company can be found here. The Company shall remain primarily responsible for the performance of its obligations under this Protocol and shall ensure that its agreements with such sub processors are at least as restrictive as this Protocol. The Company may change or add sub processors from time to time upon giving reasonable notice in writing to the Client so that the Client may express an objection, on reasonable grounds, to the proposed change.
The Client confirms that the Company may transfer personal data to its affiliates and sub processors inside and outside the European Economic Area (EEA) for purposes of support and back-up. The Company has established safeguards to protect personal data transferred to countries outside the EEA, including appropriate contractual protections.
Description of processing of personal data
1. Subject matter, nature and purpose
All processing activities (including the collection, organization and analysis of personal data) as are reasonably required to facilitate or support the provision of the services described under clauses 15.5 and 15.6 of the Contract.
2. Duration of processing of personal data
The Company will process the personal data for as long as it provides the Services to Client. The Company retains Assessment Data for a period of 24 months, after which time the Company may anonymize the data and use it for research purposes. The Company will also anonymize Assessment Data at the request of the Client or the Candidate.
3. Categories of individuals:
The data subjects are the Candidates.
4. Types of personal data:
The services under the Agreement may involve the processing of the following types of personal data:
- “Identification Data” which means information such as the Candidate’s name, email address, and other contact details.
- “Assessment Data” which means the Candidate’s responses in Assessments, this may include, or may allow the Company to deduce, information such as:
- interests; and
- behaviour in the workplace
- “Research Data” which means responses to questions about the Candidate which will include information such as:
- cultural background;
- qualifications; and
- work experience
From time to time, Candidates may volunteer additional personal information about themselves to the Company, which may include special categories of personal data. For example, Candidates may inform the Company about a health issue or disability which may impact the way in which they undertake the Assessment. The Company will obtain explicit consent before further processing any special categories of personal data that a Candidate provides. If consent is obtained, this information will be communicated to the Client requesting the Assessment whose responsibility it is to take any decisions regarding the impact on the Assessment process as a result of the information.
5. Types of special categories of personal data referred to in Article 9 of the Regulation:
The personal data processed by the Company on behalf of the Client in connection with clause 15.6 may include:
- information concerning race and ethnicity; and
- information concerning health and disability
Last updated: 30 May, 2018.
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