Organisation T&C’s

BrilliantFIT’s Organisation License Agreement

Please read the following BrilliantFIT Member Organisation License Agreement (‘Agreement’) carefully before continuing. This is a legal contract between BrilliantFIT Pty Ltd ACN 609 490 735 (‘BrilliantFIT’) and your Member Organisation business or company (‘You’, ‘Member Organisation’, ‘Your Member Organisation’, ‘The Member Organisation’). BrilliantFIT is willing to license you to use the career, recruitment, talent development and related services provided by BrilliantFIT (Services) and any software provided to you, whether by download, via the Internet, as part of a device or piece of equipment, or on software media, including all databases, data, and documentation contained in and/or provided in this Agreement, including any subsequent updates (‘Local Software’) to you only upon the condition that you accept all of the terms and conditions contained in this Agreement.

This Agreement, together with the BrilliantFIT Privacy Policy (‘Privacy Policy’) constitute the entire agreement between you and BrilliantFIT in relation to the Services and Software. Our Privacy Policy details the types of personal information we collect, who can access the information and the purposes for which it may be used. BrilliantFIT takes the privacy of Individual Members and Member Organisations data very seriously. A copy of the latest version of our Privacy Policy can be found at: https://brilliantfit.co/privacy-policy/.

By clicking on the ‘Accept’ button, or otherwise accessing or using the Services or Software, you accept all of the terms and conditions of this Agreement and the Privacy Policy and agree to be bound by their terms. If you do not accept the terms of this Agreement, or the Privacy Policy, you are not permitted to use the Services or Software and should immediately close or cancel this page/window/screen (where applicable) and not download, access or use the Services or Software.

This Agreement details the terms upon which:

(a)             you are permitted to access and use BrilliantFIT’s website published at brilliantfit.co (“Site”) and any information, text, graphics, or other materials published on the Site (“Content”);

(b)            BrilliantFIT provides Services to you;

(c)             the terms upon which any Local Software made available to you by BrilliantFIT (by any means) is licensed to you by BrilliantFIT, and upon which you may communicate with the Remote Software; and

(d)            you grant BrilliantFIT the right to access your Files and System and to Transmit Raw Data (as defined in this Agreement) for the purpose of BrilliantFIT providing the Services.

TERMS AND CONDITIONS

1. DEFINITIONS

In this Agreement, unless the subject or the context otherwise requires, the terms defined below have a corresponding meaning and:

“Agreement Details” means the document of that name appearing as the cover sheet to this Agreement;

“Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of state and territory fair trading legislation.

“Business” means your Member Organisation’s own business;

“Consumer Guarantee” means a consumer guarantee contained in the Australian Consumer Law;

“Customer” means your customer, being a customer or potential employee of your Member Organisation;

“Feedback” means your feedback, comments and suggestions for improvements to the Site, Services, Software or Content including where you post content to the Site and/or communicate with BrilliantFIT or other users of the Site or the Services or Software via forums on the Site;

“Files” has the meaning set out in clause 6.1;

“GST” means and includes GST payable in Australia. Where the context requires a reference to GST in Australia, GST means GST within the meaning of A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended) and GST Act refers to that Act;

“Intellectual Property Rights” means all present and future intellectual and industrial property rights conferred by statute, at civil, common law or in equity and wherever existing, including patents, designs, copyright, rights and circuit layouts, database rights, trade marks, know-how, domain names, brand names, inventions, product names, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration and including any application or right to apply for registration and any renewal or extension of rights;

“License” means the license referred to in clause 2;

“License Fee” means the monthly, annual license or other license fee agreed between you and BrilliantFIT;

“Output Data” means the outcomes of BrilliantFIT’s processing of Raw Data that are transmitted or made available to you by BrilliantFIT (including any such outcomes made available to you in an automated fashion by the Local Software);

“Personal Information” has the meaning set out in section 6(1) of the Privacy Act;

“Privacy Act” means the Privacy Act 1988 (Cth), as amended or replaced from time to time and including all regulations and statutory instruments made under that Act;

“Raw Data” means the data that you transmit or make available to BrilliantFIT (including to any Local Software) for the purposes of receiving the Services;

“Remote Software” means any software used by BrilliantFIT to provide the Services that is not Local Software, such as software that BrilliantFIT installs on its own or a third party’s computers and uses to process or receive Output Data;

“Services” means the Services described in paragraph (b) of the Introduction by BrilliantFIT; “Site” has the meaning described in paragraph (a) of the Introduction;

“Software” means the Remote Software and the Local Software;

“System” means the computers, used or operated in connection with your Business from time to time;

“Transmit” means to upload, submit, link, transmit, transfer or make available (in a manner approved by BrilliantFIT in its discretion) information and data to BrilliantFIT pursuant to this Agreement and “Transmission” has a corresponding meaning; and

2. LICENSE

2.1       BrilliantFIT grants you a license to use the Services (via communication with the Remote Software) and use the Local Software on the terms and conditions of this Agreement.

2.2       The License is limited to use on your System unless you have obtained the prior written consent of BrilliantFIT to use the Software on alternative equipment. Such consent shall not be unreasonably withheld.

2.3       The License is limited to use for the purposes of your Business (excluding, for the avoidance of doubt, any business of providing career, recruitment, talent development or related services for use in any business that is competitive in any way with BrilliantFIT.

2.4       The License is limited to use of the Services and features, and within the usage or any other limits, agreed by you and BrilliantFIT when you agreed the License Fee.

2.5       The License is suspended during any time when you are not compliant with this Agreement (including if you have not paid the License Fee).

2.6       The License may only be transferred or assigned by you:

(a)     with the prior written consent of BrilliantFIT; or

(b)     in the event of transfer of your business to a third party .
The exercise of any rights by the assignee will be subject to the assignee also assuming all accrued but unsatisfied and all future liabilities and obligations.

3. SOFTWARE UPDATES

3.1       BrilliantFIT will update the Software from time to time. You consent to BrilliantFIT providing updates at BrilliantFIT’s discretion.  You are responsible for making any changes to your System or practices that are
required as a result of any updates.

4. LICENSE FEE AND CHANGES TO TERMS

4.1       BrilliantFIT reserves the right, at any time, to change any terms of this Agreement including in respect of your access to and use of the Services upon giving 30 days’ notice to you. Subject to the last sentence of this paragraph, such notified changes are binding on you unless you terminate this Agreement by written notice to BrilliantFIT within that 30 day notice period. BrilliantFIT will not impose the changed terms or any changes until the 30 day period has expired and will otherwise charge the fees for the use of the free sections of the Site, Content and the Software installed on your System.  If your License Fees are calculated by reference to a period such as a month or year, then any changes to those License Fees will not bind you until the period that is current at the time of the notice expires.

4.2       Payment of License Fee

In consideration of BrilliantFIT granting you a license to use the Software, Your Member Organisation must pay BrilliantFIT for the License Fee.  Unless agreed otherwise, monthly License Fees must be paid monthly in advance and annual License Fees must be paid annually in advance. Other kinds of License Fees must be paid at the times agreed between you and BrilliantFIT when the License Fee was agreed.

4.3       Unpaid License Fees

In the event the Member Organisation does not pay the License Fee to BrilliantFIT in accordance with the Payment Terms in clause 4.4, BrilliantFIT may terminate this Agreement in accordance with clause 15.

5. GOODS AND SERVICES TAX (GST)

5.1       Preliminary

Words or expressions used in this clause that are defined in A New Tax System (Goods and Services Tax) Act 1999 (GST Act) have the same meaning given to them in that Act.

5.2       GST exclusive

Unless otherwise stated, any amount specified in this Agreement or in the License Fee as the consideration payable for any taxable supply excludes any GST payable in respect of that supply.

5.3       Tax invoice

Each party agrees to do all things, including providing valid tax invoices and other documentation that may be necessary or desirable to enable or assist the other party to claim any input tax credit, adjustment or refund in relation to any amount of GST paid or payable in respect of any supply made under or in connection with this Agreement.

5.4       Reimbursement of expenses

If a third party makes a taxable supply and this Agreement requires a party to this Agreement (the payer) to pay for, reimburse or contribute to (pay) any expense or liability incurred by the other party to that third party for that taxable supply, the amount the payer must pay will be the amount of the expense or liability plus the amount of any GST payable in respect thereof but reduced by the amount of any input tax credit to which the other party is entitled in respect of the expense or liability.

5.5       Adjustment event

If an adjustment event arises in relation to a taxable supply made by a party under this Agreement (Supplier), the amount paid or payable by the party to whom the taxable supply is made (Recipient) pursuant to clause 5.2 will be amended to reflect this and a payment will be made by the Recipient to the Supplier or vice versa as the case may be.

5.6       Non merger

This clause does not merge on completion and will continue to apply after expiration or termination of this Agreement

6. ACCESS TO AND USE OF YOUR RAW DATA

6.1       You grant BrilliantFIT and its employees, agents and contractors the right to access, retrieve, transmit, use, store, copy, modify and create derivative works based on information and data in your Files that relates to:

(a)     jobs and the selection of suitable candidates for roles you have or will advertise through BrilliantFIT;

(b)     usage of the BrilliantFIT system in accordance with the stated privacy policy;

(c)     such other information and data:

1. you allow BrilliantFIT to access and use; or
2. that you do not object to BrilliantFIT accessing and using.

7. YOUR RESPONSIBILITIES

7.1       From time to time, BrilliantFIT may conduct audits on the information that it receives from your account. This requires a BrilliantFIT representative to contact you and check information. You agree to promptly assist BrilliantFIT, act in accordance with all reasonable requests from BrilliantFIT and provide the information requested by BrilliantFIT in connection with such audits.

8. OUR RESPONSIBILITIES

8.1       BrilliantFIT will use reasonable endeavours to ensure that the Software:

(a)     is reasonably free from errors;

(b)     is free from malicious code; and

(c)     will not harm your computer or unduly interfere with its performance,

however, BrilliantFIT does not otherwise warrant these attributes and you use the Software and Services at your own risk.

8.2       BrilliantFIT will use reasonable endeavours to ensure that the information made available to or transmitted to you is accurate, however you acknowledge and agree that:

(a)     BrilliantFIT is not responsible or liable for any inaccuracies in the information made available to or transmitted to Customers to the extent that such inaccuracies are caused directly or indirectly by the Raw Data not being true, complete and accurate or by information provided by third parties not being true, complete or accurate; and

(b)     The information should be used only subject to reasonable and experienced human judgment, and is an aid to business decision-making rather than being conclusive.

9. INTELLECTUAL PROPERTY RIGHTS

9.1       All right, title, and interest in all Intellectual Property Rights (collectively “Rights”) in and to the Software, the Site, Content, Output Data, and any works created by BrilliantFIT that are derived from or based on Raw Data or your Feedback vest in BrilliantFIT immediately upon creation and will remain the exclusive property of BrilliantFIT. To the extent that any Rights vest in you, by this Agreement you immediately assign all such Rights to BrilliantFIT and agree to do all things reasonably necessary to confirm or register such Rights as being the property of BrilliantFIT.
9.2       Except as expressly permitted in this Agreement, you must not reproduce, modify or prepare derivative works based upon, distribute, sell, transfer, publish, Transmit, or otherwise use the Site, Content or Output Data. You must not copy or modify the HTML or other code used to generate web pages on the Site.

9.3       BrilliantFIT is able to utilize and disclose the information generated by the Software or in the provision of the Services in an aggregated, non-identifiable form.

10. GENERAL PROHIBITIONS

10.1    You agree not to do any of the following:

(a)     Transmit or make available for Transmission by BrilliantFIT any Files, Raw Data, data, text, graphics, or material that:

1. is false or misleading;
2. is defamatory;

iii.      does not comply with your privacy policy and our privacy policy;

1. is obscene, pornographic, or offensive;
2. promotes bigotry, racism, hatred or harm against any individual or group;
3. infringes another’s rights, including any Intellectual Property Rights; or

vii.     violates, or encourages any conduct that would violate, any applicable law or regulation giving rise to civil liability;

(b)     access, tamper with, or use non-public areas of the Site (including but not limited to user folders not designated as ‘public’ or that you have not been given permission to access), BrilliantFIT’s computer systems, or the technical delivery systems of BrilliantFIT’s providers;

(c)     attempt to probe, scan, or test the vulnerability of any part of the Site or Software or any related system or network or breach any security or authentication measures;

(d)     attempt to access or search the Site, Content or Raw Data with any engine, software, tool, agent, device or mechanism other than the software and/or search agents provided by BrilliantFIT or other generally available third-party web browsers (such as Microsoft Internet Explorer or Mozilla Firefox), including but not limited to browser automation tools;

(e)     use the Site or Content to send unsolicited email, junk mail, “spam,” or chain letters, or promotions or advertisements for products or services;

(f)      forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site to send altered, deceptive or false source-identifying information;

(g)     attempt to decipher, decompile, disassemble or reverse engineer the Software, the Site, Content or Output Data;

(h)     interfere with, or attempt to interfere with, the access of any user, host or network to the Site, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site; or plant malware on BrilliantFIT’s computer system, those systems of BrilliantFIT’s providers, or otherwise use the Site;

(i)      fail to take reasonable precautions to prevent the transmission of malicious or harmful code (including links); or

(j)      use the Site, Content or Output Data to impersonate or misrepresent your affiliation with any person or entity.

10.2    BrilliantFIT has the right (but not the obligation) to investigate and take action for breach of any of the above, including Intellectual Property Rights infringement and breach of Site security. BrilliantFIT may involve and cooperate with law enforcement authorities if applicable.

11. SITE SERVICES, LINKS

11.1    BrilliantFIT may change the Site, Content, Software or Services without notice at any time.

11.2    The Site may contain links to third-party websites or resources. You acknowledge and agree that BrilliantFIT is not responsible or liable for:

(a)     the availability or accuracy of such websites or resources; or

(b)     the content, products, or services on or available from such websites or resources.

11.3    Links to such websites or resources do not imply any endorsement by BrilliantFIT of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.

12. TERMINATION

12.1    If you breach your obligations under this Agreement, your permission (if any) to use the Site, Content, Software or Services will automatically be suspended.

12.2    BrilliantFIT reserves the right to revoke your access to and use of the Site, Content, Software and Services (or any of them) at any time without notice.

12.3    BrilliantFIT may terminate this Agreement immediately upon written notice to if applicable fees are not paid to BrilliantFIT.

12.4    You may terminate this Agreement without cause on 30 days’ written notice to BrilliantFIT, but if your License Fees are calculated by reference to a period such as a month or a year you will forfeit (and still be required to pay) the License Fees applicable to the remainder of the period in which termination occurs.

12.5    On termination of this Agreement, BrilliantFIT is entitled to retain or delete any or all of the Output Data, including any previous versions and/or prior backups of the Output Data.

13. BrilliantFIT SERVICES ARE AVAILABLE “AS-IS”

13.1    To the full extent permitted at law the Software, Site, Content and Services are provided “as is”, without warranty or condition of any kind, either express or implied.

13.2    To the extent that BrilliantFIT is able to limit the remedies available to you or the Customer under the Australian Consumer Law, BrilliantFIT expressly limits its liability for breach of a Consumer Guarantee to any of the following (the choice of which is to be at BrilliantFIT’s discretion, to be exercised reasonably):

(a)     in the case of goods, any one or more of the following:

1. the replacement of the goods or the supply of equivalent goods;
2. the repair of goods;

iii.      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; and

(b)     in the case of services:

1. supplying of the services again; or
2. the payment of the cost of having the services supplied again.

13.3    BrilliantFIT is a technology tool and a communications platform between Your Member Organisation and a user of the BrilliantFIT Service. BrilliantFIT disclaims any responsibility for any third party communications.

14. LIMITATION OF LIABILITY AND ACKNOWLEDGEMENT

14.1    To the fullest extent permitted by law in no event will BrilliantFIT be liable to you (whether arising in contract, tort or otherwise) for any indirect, special, incidental, punitive or consequential loss and damage of any kind, even if such loss was known, reasonably foreseen or in the reasonable contemplation of you or BrilliantFIT (including, without limitation, loss of use, loss of data, loss of business or profits, business interruption or loss of information) arising out of or in connection with:

(a)     this Agreement, the Site, Content, Software or Services;

(b)     a breach of this Agreement by BrilliantFIT or any wrongful act or omission by BrilliantFIT in connection with this Agreement;

(c)     your access to or use of, or inability to access or use, the Site, Content and/or Services; or

(d)     the Transmission of the Raw Data or BrilliantFIT’s access to the Files,

And BrilliantFIT’s sole liability to you for any direct loss and damage (whether arising in contract, tort or otherwise) in connection with the matters referred to in paragraphs (a) to (d) (both inclusive) of this clause is limited to the amount of the fees received by BrilliantFIT for the Services provided to you under this Agreement.

15. MISCELLANEOUS

15.1   Any notice, demand or other communication to be given or required to be made pursuant to this Agreement is to be in writing and is to be given by post, facsimile, email or hand to a party at the party’s address as is notified in writing by one party to the other party.

15.2    BrilliantFIT may assign its rights and obligations under this Agreement at any time upon written notice to you.

15.3   Each provision that is capable of having effect after the termination of this Agreement and each representation and warranty made in this Agreement will survive the termination of this Agreement and the performance of all obligations under this Agreement and will not merge on termination.

15.4    The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because the party was responsible for the preparation of this Agreement or part of it.

15.5    Each party agrees to do all things that may be necessary or desirable to give full effect to every part of this agreement if asked in writing by another party to do so.

15.6    In the event that any provision of this Agreement is held to be illegal, invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.

15.7    The failure of BrilliantFIT to enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision.

15.8    This Agreement and any action related thereto will be governed by the laws of the State of Victoria. The exclusive jurisdiction and venue of any action with respect to the subject matter of this Agreement will be the courts of the State of Victoria.

15.9    This Agreement is the entire agreement (as amended from time to time under clause 4.2) between BrilliantFIT and you regarding the subject matter of it, and this Agreement supersedes and replaces any prior agreements between BrilliantFIT and you in relation to that subject matter. For the avoidance of doubt, this Member Organisation License Agreement supersedes and replaces any previous Member Organisation License Agreement or other license agreement between BrilliantFIT and you.

This BrilliantFIT Member Organisation License Agreement was last updated on 31ST July 2018.