6. Payment

6.1.  The fees payable for each of the Services, Deliverables and the PredictiveHire Platform (as the context permits) as agreed to separately and from time to time by the Customer’s representative(s) (Fees) are payable in the currency indicated immediately upon presentation of an invoice. All Fees are exclusive of GST (or VAT or other similar tax, as the context permits), which shall be payable in addition (where applicable).

6.2.  If the Customer fails to pay the Fees (or any other amounts) by the due date, without limiting any other remedies available to PredictiveHire under this MSA or at law, PredictiveHire may, in its absolute discretion, either: (a) suspend access to, and use of, the Services, Deliverables and the PredictiveHire Platform until all outstanding amounts (including interest) that are due to PredictiveHire are paid in full; or (b) terminate this MSA in accordance with clause 11.

6.3.  The Customer will pay PredictiveHire all costs and expenses incurred in recovering any outstanding amounts (including interest) that are due to PredictiveHire, including legal costs or other expenses incurred by PredictiveHire in relation to enforcement steps or mercantile or collections agents.

7. Customer Data

7.1. The Customer may be required to provide data to PredictiveHire, including: (a) data relating to the Customer’s business and its Personnel, candidates and applicants, including, but not limited to, information relating to the Customer’s business processes, organisational structure, performance and Personnel behaviours; (b) data relating to its Personnel, candidates and applicants, including Personal Information contained in candidate applications; and (c) any other data disclosed by the Customer or otherwise brought to the attention of PredictiveHire (and all Intellectual Property Rights contained therein), (collectively, Customer Data).

7.2. The Customer will have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data. The Customer will ensure that its Personnel, candidates, applicants or other third parties have given their authority and consent for the provision by the Customer of their data to PredictiveHire (including Personal Information) and its use in accordance with provision of the Services, Deliverables and the PredictiveHire Platform (as the context permits).

7.3.The Customer authorises PredictiveHire to: (a) use Customer Data to perform (and improve the performance of) the Services and Deliverables, and in the course of performing the Service and delivering the Deliverables to use Customer Data (and all Intellectual Property Rights contained therein); (b) use Customer Data to inform the Customer of other products or services that PredictiveHire may offer from time to time or in relation to Third Party Products and Services; and (c) share Customer Data, in aggregated anonymized form, with its Affiliates or other third parties (with whom PredictiveHire may contract or be affiliated with from time to time) for the purposes of performing or improving the Service or delivering the Deliverables.

8. Third party providers

8.1. The Customer acknowledges that the Services, Deliverables and PredictiveHire Platform (as the context permits) may require the Customer to use or access Third Party Products and Services and that the Customer does so solely at its own risk.

8.2. PredictiveHire makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of any such Third Party Products and Services, or any transactions completed, and any contract entered into by the Customer, with the owner, licensor or operator of such Third Party Products and Services.

8.3. PredictiveHire recommends that the Customer refer to the third party’s terms and conditions and privacy policy prior to using the relevant Third Party Products and Services.

8.4. PredictiveHire does not endorse, sponsor or approve any Third Party Products and Services used in conjunction with the Services, Deliverables or the PredictiveHire Platform. It is Customer’s sole responsibility to determine that specific products or services, meets the needs of the Customer’s business and are suitable for the purposes for which they are used.

8.5. Any rights the Customer may have to access Third Party Products and Services shall be limited to: (a) the extent of PredictiveHire‘s ability to pass on such rights to Customer; or (b) the relevant third party licensor terms.

9. Intellectual Property Rights

9.1. The Customer acknowledges that, notwithstanding anything else, PredictiveHire and/or its licensors own all Intellectual Property Rights in the Services, Deliverables, PredictiveHire Platform and the Documentation (and anything arising or generated therefrom) (collectively, the IP). Using the Services, the Deliverables, PredictiveHire Platform and the Documentation (as the context permits) does not give the Customer (or anyone else) ownership of, or any right, title or interest in any of the foregoing (or any PredictiveHire IP contained therein), or any information, content or technology that may be provided to, or accessed by, the Customer in connection with their use, all of which is, and will remain, owned by PredictiveHire or its licensors.

9.2.  All Intellectual Property Rights discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with, the Services, the Deliverables or the PredictiveHire Platform will automatically vest in, and are assigned to, PredictiveHire (Developed IP).

9.3.  Subject to clauses 9.1, 9.2 and 9.4, the Customer will remain the owner of its Customer Data, provided the Customer grants PredictiveHire a royalty-free, transferable, worldwide and perpetual licence for PredictiveHire (and its Affiliates) to use and sub-license any Customer Data that the Customer makes available to PredictiveHire on or via the PredictiveHire Platform (and all Intellectual Property Rights contained therein) for the purpose of providing the PredictiveHire Platform or any ancillary services.

9.4.  All trade marks, logos, trade dress and service marks on or via the PredictiveHire Platform are either trade marks or registered trade marks of PredictiveHire, or third parties that have authorised such use, and may not be copied, imitated, or used, in whole or in part.

10. Liability

10.1.  To the maximum extent permitted by law, PredictiveHire  excludes all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), in connection with the access to, and use of, the Services, Deliverables, PredictiveHire Platform or the Documentation. 

10.2.  Nothing contained in this MSA excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other equivalent legislation in other jurisdictions (as the context permits) where to do so is unlawful.

10.3.  To the maximum extent permitted by law, PredictiveHire will not be liable to the Customer or any third party for: (a) indirect, consequential, incidental, special or exemplary damages, expenses, losses or liabilities; or (b) loss of anticipated or actual profits, loss arising from business interruption, loss of anticipated or actual revenue, economic loss, loss of goodwill, loss, corruption or alteration of data, downtime costs, loss of use, failure to realise anticipated savings, loss of contracts or interest, loss of opportunity or expectation loss or loss of production; or (c) loss of or damage to any property or any personal injury or death to the Customer or any third person, arising out of, relating to or connected to the provision or use of the Services, Deliverables, PredictiveHire Platform, Documentation, this MSA, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.

10.4. Under no circumstances will PredictiveHire’s aggregate liability, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the Fees paid by the Customer to PredictiveHire in the preceding  12 months of the claim.

10.5. Except as expressly provided in this MSA, the Customer assumes sole responsibility for results obtained from the use of the Services and the Deliverables, and for conclusions drawn from such use. PredictiveHire shall have no liability for any damage caused by errors or omissions in any information or instructions provided to PredictiveHire by the Customer in connection with the Services or the Deliverables, or any actions taken by PredictiveHire at the Customer’s direction.

10.6. To the maximum extent permitted by law, the Customer agrees to defend, indemnify and hold PredictiveHire, its Affiliates and its Personnel (collectively, the Indemnified) harmless from and against any and all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of or arising out of: (a) the access to, and use of, the Services, Deliverables, PredictiveHire Platform or the Documentation by the Customer or any third party; (b) any breach of any third party’s Intellectual Property Rights or other rights caused by the Customer or its Personnel; or (c) any breach by Customer or its Personnel of this MSA.

11. Termination

11.1. Either party may terminate this MSA immediately by notice in writing if: (a) the other party is in breach of any term of this this MSA and such breach is not remedied within 20 Business Days after receiving notice requiring it to do so; (b) the other party is in breach of any term of this this MSA and such breach is not capable of remedy; or (c) an Insolvency Event occurs in respect of the other party.

11.2. On termination of this MSA for any reason: (a) the Customer must immediately pay all outstanding Fees and any other amount owing to PredictiveHire (including interest); (b) the Customer must immediately return to PredictiveHire all Confidential Information, PredictiveHire IP, Developed IP, Documentation and any other property belonging to PredictiveHire in its possession, custody or control and certify to PredictiveHire, in writing, that it has done so; and (c) all licences and rights granted to the Customer under this MSA shall immediately terminate.

12. Confidentiality and privacy

12.1.  A Receiving Party: may use Confidential Information of the
Disclosing Party only for the purposes of this MSA and must keep confidential all Confidential Information of the Disclosing Party except: (i) for disclosures permitted under this clause 12; and (ii) to the extent (if any) the Receiving Party is required to disclose any Confidential Information by law or in accordance with the rules of an applicable stock exchange.

12.2.  A Receiving Party may disclose Confidential Information of the Disclosing Party to persons who: have a need to know for the purposes of this MSA (and only to the extent that each has a need to know); and (b) before disclosure: (i) in the case of the Receiving Party’s Personnel, have been directed by the Receiving Party to keep confidential all Confidential Information of the Disclosing Party; and (ii) in the case of other persons, have agreed in writing with the Receiving Party to comply with substantially the same obligations in respect of Confidential Information of the Disclosing Party as those imposed on the Receiving Party, (each a Direction).

12.3.  A Receiving Party must: (a) ensure that each person to whom it discloses Confidential Information of the Disclosing Party under clause 12.2 complies with its Direction; and (b) notify the Disclosing Party of, and take all steps to prevent or stop, any suspected or actual breach of a Direction.

12.4.  If a Receiving Party is required by law to disclose any Confidential Information of a Disclosing Party to a third person (including government or regulatory authority) the Receiving Party must before doing so: (a) notify the Disclosing Party; and (b) give the Disclosing Party a reasonable opportunity to take any steps that the Disclosing Party considers necessary to protect the confidentiality of that information; and (c) notify the third person that the information is confidential to the Disclosing Party.

12.5.  The Customer warrants that, in relation to any Personal Information comprising the Customer’s Data or otherwise disclosed to, or brought to, the attention of, PredictiveHire pursuant to this MSA: (a) it has been collected in accordance with the Privacy Laws; (b) the Customer has the authority to provide PredictiveHire, or otherwise make available to PredictiveHire, such information; and (c) the Customer has obtained the informed consent of the individuals the subject of such Personal Information in order for PredictiveHire to use, disclose, store, transfer, process or handle it.

13. Force Majeure

13.1.  PredictiveHire will have no liability to the Customer under
this MSA if it is prevented from or delayed in performing its obligations under this MSA, or from carrying on its business, by acts, events, omissions or accidents beyond control including, but not limited to, acts of God, failure of a utility service or transport or telecommunications network, riots, civil commotion, computer hacking, war, acts of terrorism, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or earthquake, any disaster or adverse weather, governmental actions, default or non-performance of hosting or data centre providers or other suppliers or sub-contractors, labour disputes, or any other failure, act or omission in PredictiveHire’s supply chain (Force Majeure Event).

13.2.  The Customer accepts that access to, and use of, the Services, Deliverables and the PredictiveHire Platform may be temporarily suspended as required during a planned or unplanned service outage, technical failure, maintenance work or excessive server load on the technical equipment used by PredictiveHire. In some cases, PredictiveHire may be unable to notify the Customer of such an occurrence.

14. Dispute resolution

The parties must, before resorting to court proceedings (except interlocutory or interim relief), refer any dispute under or relating to this MSA initially to a nominated representative of each party to endeavour to resolve the dispute within 20 days. If the dispute is not resolved within this period, then either party may initiate court proceedings. Notwithstanding the existence of a dispute, each party must continue to perform its obligations.

15. General

15.1.  A waiver of any right under this MSA is only effective if it is
in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

15.2.  If any provision (or part of a provision) of this MSA is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

15.3.  If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, then the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

15.4.  This MSA, confirmations of Services required provided by the Customer’s representative(s) and all documents referred to therein, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

15.5.  Neither party shall, without the prior written consent of the other party (which will not be unreasonably withheld), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement, except that PredictiveHire may assign, sell or transfer its rights or obligations under this agreement to an Affiliate or bona fide third party purchaser of PredictiveHire’s business.

15.6.  Nothing in this MSA is to be construed as constituting a partnership, employment relationship, joint venture, or any other form of association between the parties in which 1 party may be liable for the acts or omissions of any other party.

15.7.  The laws of the state of Victoria, Australia govern this this MSA. The parties agree to submit to the exclusive jurisdiction of the courts of Victoria.

16. Definitions

The definitions in this clause apply in this MSA:

Affiliate means in relation to any party, a person which, directly or indirectly, (i) is Controlled by that party; or (ii) Controls that party; or (iii) is Controlled by a person referred to in (ii) above, and for this purpose

Control means the power of a person to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership agreement or other document regulating such person) that the affairs of another are conducted in accordance with its wishes.

Business Day means each day excluding Saturdays, Sundays and public holidays in Victoria.

Confidential Information means in the case of a Disclosing Party:

(a) the following information, regardless of its form and whether the Receiving Party becomes aware of it before or after the date of this MSA: (i) information that is by its nature confidential; (ii) information that is designated by the Disclosing Party as confidential; (iii) information the Receiving Party knows, or ought to know, is confidential;

(b)  all notes and other records prepared by the Receiving Party based on or incorporating information referred to in paragraph (a) above;

(c)  all copies of the information, notes and other records referred to in paragraphs (a) and (b) above;

(d)  the PredictiveHire Platform (including any data stored in the PredictiveHire Platform) (in the case of PredictiveHire), but in all cases excludes information that the Receiving Party creates (whether alone or jointly with any third person) independently of the Disclosing Party or is public knowledge (otherwise than as a result of a breach of confidentiality by Receiving Party).

Customer Data has the same meaning in clause 7.1.

Deliverables means the tangible deliverables produced or generated a result of the Services.

Developed IP has the meaning in clause 9.2.

Disclosing Party means a party to this MSA who discloses or makes available Confidential Information to the Receiving Party.

Documentation means the documents made available to the Customer by PredictiveHire which sets out the description of the Services, Deliverables and the PredictiveHire Platform (including operating instructions, user guides, manufacturer’s specifications, policies and procedures), and any updates, replacements revisions or additions such documentation, provided or made available PredictiveHire from to time to time, but does not including training materials).

Fee has the meaning in clause 6.1.

Force Majeure Event has same meaning in clause 13.1.

Insolvency Event means any of the following:

(a)  a receiver, receiver and manager, liquidator, provisional liquidator, controller or any form of external administrator has been appointed over either party or any property belonging to either party;

(b)  an event occurs which gives any person the right to seek an appointment referred to in paragraph (a);

(c)  a party proposes or takes any steps to enter into a scheme, arrangement, agreement or compromise with its creditors or call a meeting of creditors;

(d)  a party suspends payment of its debts generally; 

(e)  a party becomes insolvent or bankrupt within the meaning of the Corporations Act 2001 (Cth) or a party has a bankruptcy petition presented against it;

(f)  an application is made to a court or a resolution is passed or an order is made for the winding up or dissolution of a party or an event occurs that would give any person the right to make an application of this type; or

(g)  any event under any law which is analogous to, or which has a substantially similar effect to, any of the events referred to in paragraphs (a) to (f).

Intellectual Property Rights means all designs, copyright, trade marks, patents, operations, software or systems, trade names and domain names, rights in goodwill, rights in confidential information or other intellectual property rights, whether under statute, common law, equity, and whether registered or unregistered and including all applications for, and renewals or extensions of, such rights and all similar rights which subsist or will subsist now or in future in any part of the world.

Personal Information means information or an opinion (including information or an opinion forming part of a database) whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion, disclosed to or made available to PredictiveHire in the course of providing the Services or delivering the Deliverables.

Personnel means any officer, employee, agent, contractor, sub- contractor or consultant of a party.

PredictiveHire IP has the meaning in clause 9.1.

PredictiveHire Platform means the platform managed by PredictiveHire and used by PredictiveHire to provide the Services and Deliverables, including the application and database software for the Services, the system and server software used to provide the Services and the Deliverables, the computer hardware on which that application, database, system and server software is installed, and associated technology and code.

Privacy Laws means any applicable laws and codes of practice dealing with privacy, including the Privacy Act 1988 (Cth) (as amended) and the Australian Privacy Principles, the Data Protection Act 1998 (UK) and any other legislation, codes and policies relating to the handling of Personal Information applicable to the jurisdiction in which Customer carries on its business.

Receiving Party means a party to this MSA who obtains Confidential Information of the other party to this MSA.

Services means the services to be provided by PredictiveHire to the Customer

Term has the meaning in clause 2.1.

Third Party Products and Services means any software, products, services or content (including all Intellectual Property Rights contained therein) that:

(a) are provided by third parties;

(b) interoperate with the Services, the Deliverables or PredictiveHire Platform; or

(c) may be identified as third party products or services.