foundU Agreement Terms

General Terms

 

1.  What Are These Terms?

1.1  This Agreement

These terms form part of a legally binding agreement (Agreement) between you and foundU Holdings Limited ABN 59 603 695 914 (foundU). 

This Agreement may have various parts and may include:

1. any Order Form you have signed for a foundU Product; or
2. emails or other written requests from you where you have requested and foundU has agreed to provide Services (we call this a Written Order).

Either way, this Agreement also includes:

     c. clauses 1 to 23 of these terms (General Terms);
     d. any applicable Annexures below; and
     e. any other terms we specifically tell you and you agree are included in this Agreement.

Subject to clause 12.1, if there is any inconsistency between the parts of this Agreement, special conditions in Item (a), then Items (e), (d), (c), (b) and the rest of item (a), will prevail in that order.

1.2  How do I Enter Into This Agreement?

You can enter into this Agreement either as a Customer or a User, or both.

You are a Customer if you give foundU a signed Order Form requesting a foundU Product or if you make a Written Order with foundU. You are also a Customer if there is no Order Form or Written Order but foundU has given you access to the Platform at your request.

You are a User if you click ‘Login’ from our website.

You are accepting the terms of this Agreement as they were at the time you become a Customer or a User.

If you are not the Customer, then the Customer is your employer or someone else you work for who has authorised you to be an End User.

1.3  Commencement Date

This Agreement commences on the Commencement Date and will terminate at the end of the Subscription Term, unless earlier terminated under clause 16.

2.  Definitions and Interpretation

2.1 Definitions

In this Agreement, unless the context requires otherwise:

ACICA means the Australian Centre for International Commercial Arbitration.

Active User means any User who, in any given week and whether as an employee or contractor:

1. works for;
2. has a timesheet to evidence work for;
3. has a draft or finalised (but not simply adjusted) payslip from; or
4. has the right to be paid any sum by way of pay or work related entitlement by, any Customer.

Additional Services means the Additional Services (if any) specified in the Order, but for the avoidance of doubt do not include Support Services.

Administrators means the Customer’s personnel who administer the Platform to End Users on the Customer’s behalf.

Agreement has the meaning given under heading 1 above.

Annexure means an enumerated annexure (for example, Annexure A) to this document.

Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Beta Features means pre-release and beta products or features that foundU makes available in the Platform from time to time.

Business Day means a day, not being a Saturday, Sunday or public holiday, on which banks are generally open for business in Brisbane, Queensland, Australia.

Commencement Date means:

Complimentary Basis means where foundU gives the Customer access to (or permits the Customer to enable its End Users to access) the Platform at no charge to the Customer.

Confidential Information of a Discloser means any information which the Discloser tells the Recipient is confidential or which the Discloser communicated to the Recipient confidentially or which pursuant to this Agreement is deemed confidential, provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Recipient to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure, but in any event does not include Feedback. Where foundU is the Discloser, for the avoidance of doubt foundU’s Confidential Information includes any performance information relating to the Platform whether or not it is specifically designated at the time of communication as being confidential.

Custom Training means any Custom Training referred to in Training: Part B.

Customer has the meaning given under heading 1 above.

Customer Application means a software application created by or for the Customer which the Customer proposes to use in or in conjunction with Your Platform and which is proposed to access data via the foundU API.

Customer Data means all and any Materials that the Customer or its End Users enter into the Platform, including by submitting, uploading, transmitting or otherwise making available to or through the Platform.

Customer Materials means any Materials or systems owned by the Customer or the User.

Discloser means the party disclosing Confidential Information to the Recipient.

Documentation means the details and specifications set out in the user guides located at foundU Help Desk.

End User means an individual who is the Customer or who is permitted by the Customer or anyone else on its behalf to access the Platform and includes the User.

End User Account means an account established by the Customer or an End User to enable the End User to use or access the Platform.

Excluded Sensitive Data means Sensitive Data about you or another individual who has been onboarded to the Platform by foundU, being Sensitive Data which foundU has specifically asked you to submit to the Platform.

Feedback means comments, questions, ideas, suggestions or other feedback, provided by End Users via, or relating to, the Platform, Support or Additional Services.

Fees means all fees payable under this Agreement and includes any Fees set out in Annexures and fees for Additional Services.

foundU has the meaning given under heading 1 above.

foundU API means the application programming interface to which foundU may give the Customer or third parties access so they can access data on the Platform using that interface and tailor their applications (including Customer Applications) to use that method of access to their data.

foundU Deliverables means any Materials, deliverables, modifications, derivative works or developments that foundU provides in connection with any Additional Services.

foundU Policies means the Privacy Policy and any other policies of foundU of which foundU notifies you in writing from time to time.

foundU Technology means the Platform, foundU Deliverables, the foundU API, all modifications, improvements or derivative works of any of them and all Intellectual Property Rights in or arising out of any of the foregoing.

Free Training means any Free Training referred to in Training: Part A.

General Terms has the meaning given under heading 1 above.

Intellectual Property Rights means all industrial and intellectual property rights throughout the world protected by statute or common law including all current and future registered and unregistered rights (whether or not registrable) relating to:

1. trade marks, business names and domain names, copyright works, circuit layouts, designs, patents, know-how, inventions and discoveries, and all other intellectual property as defined in article 2 of the Convention Establishing the World Intellectual Property Organisation 1967; and
2. any application or right to apply for the registration of any of the rights referred to in paragraph (a) above.

Invoice Frequency means, unless an Order provides otherwise, the frequency set out in clause 12.2.

Laws means common law, principles of equity, and laws made by parliament (laws made by parliament include State, Territory and Commonwealth laws and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them).

Materials means any data, content, code, video, text, writings, images or other materials of any type.

Notification Email Address means the email address(es) you used to register for use of the Platform or otherwise notifies foundU is your email address for notification.

Order means the Order Form or the Written Order (as applicable).

Order Form means the Order Form (if any) signed by the Customer in respect of access to the Platform.

Platform means the foundU cloud based human resources and payroll software platform (including online portals, phone applications and iPad applications) to which you are gaining access by clicking “I Agree” acknowledging these terms, and will include the foundU Products set out in the Order if any (including any client software foundU provides as part of those products), and includes Your Platform (as the context allows).

Price List means the price list located here.

Privacy Policy means foundU’s privacy policy located here.

Project Plan means foundU’s written plan for the proposed scoping, build, configuration and implementation of Your Platform.

Recipient means the party receiving Confidential Information from the Discloser.

Sensitive Data means:

1. “sensitive information” as defined in the Privacy Act 1988 (Cth);
2. categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation;
3. credit, debit or other payment card data subject to PCI DSS;
4. social security numbers, driver’s licence numbers or other government identifiers or ID numbers; or
5. any data similar to the foregoing that is protected under any foreign or domestic Laws.

Services means products and services set out in an Order which foundU agrees to provide to the Customer.

Subscription Fee has the meaning given under Clause 12.3 of this Agreement.

Subscription Term means the Customer’s permitted period for subscription to the Platform as set out in the Order (and if none, the period during which foundU allows the Customer (and its End Users) to access the Platform).

Support means support for the Platform as agreed in the Order (if any).

Training means any training services provided by foundU, including Custom Training and Free Training.

Usage Fees means the Usage Fees set out in the Order and the Price List.

User has the meaning given under heading 1 above.

Written Order means (if any) exchanges in writing (including by email) between you and foundU in which and to the extent (but only to the extent) to which you have requested and foundU has agreed to provide Services, where the same has not been set out in an Order Form signed by the parties.

Your Platform means a version of the Platform tailored to specifications agreed between foundU and the Customer and to be available to the Customer and its End Users.

2.2  Interpretation

In this Agreement, unless the context otherwise requires:

1. a reference to a Party includes a reference to that Party's executor, administrator, heirs, successors, permitted assigns, guardian, and trustee in bankruptcy, all of whom, respectively, are bound by the provisions of this Agreement;
2. headings shall not affect the meaning and interpretation;
3. words importing the singular or plural shall include the plural and singular respectively;
4. words importing persons include all persons, entities and associations, including companies, trusts, bodies corporate, statutory bodies, partnerships, and joint venturers;
5. where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
6. the words includes, including or similar expressions are not to be read as words of limitation;
7. if something must be done on a day that is not a Business Day, it may be done on the next day that is a Business Day;
8. a reference to any statute is a reference to that statute as amended and in force from time to time;
9. a reference to an amount of money is a reference to that amount in Australian dollars; and
10. all amounts payable pursuant to this Agreement shall be paid in Australian dollars.

3.  Build and Provision of Access

3.1  Access to foundU Platform

From the Commencement Date, foundU will give the Customer access to the Platform in accordance with this Agreement. End Users are given access from the respective dates they are enabled as End Users.

3.2  Your Platform Build

1. provide the Customer with a Project Plan;
2. use reasonable commercial endeavours to scope, configure and build Your Platform at no cost (subject to clauses 3.4 and 3.5) in accordance with the Project Plan; and
3. as part of the Project Plan, work with you to understand your interpretation of relevant awards and industrial instruments.

1. the work performed or to be performed is not contained or provided for in the Project Plan;
2. the necessity for the work has arisen out of the provision by You to foundU of inaccurate information;
3. bespoke software development unique to Your Platform is required (by foundU or by third-party suppliers);
4. the Customer requests a development on foundU’s existing software development roadmap be prioritised;
5. You make (and foundU subsequently agrees to meet) ad hoc requests for Services such as Award Interpretation, Rate Rise Assistance, Platform Development, Project Support or Administration Assistance, Payroll Services or other Services including but not limited to the Services available here.
6. migration of data from the Customer’s existing or legacy system requires development of bespoke migration scripts (by foundU or by third-party suppliers); or
7. the Customer is unable to provide data for migration to the Platform in a format reasonably requested by foundU, with the result that foundU is required to perform additional formatting or data entry.

4.  Platform Administration


4.1 Administrators and End Users

You agree that:

1. via the Platform, you may be able to specify certain End Users as Administrators, who will have important rights and controls over End Users’ use of the Platform, which may include entering into further transactions that may incur Fees, modifying End User accounts, setting End User usage permissions, and managing access to Customer Data by End Users or others;
2. the Customer is and will remain (and foundU will not be) responsible for all actions taken by Administrators and End Users in relation to or during their access to the Platform, including as described above;
3. you are and will remain (and foundU will not be) responsible for all actions taken by you in relation to or during your access to the Platform, including as described above; and
4. foundU’s responsibilities do not extend to the internal management or administration of the Platform for the Customer.

4.2  End User Consent

The Customer must use best endeavours to provide:

1. all required disclosures to and will obtain and maintain all required consents from End Users to allow:
   1. Administrators to have the access described in this Agreement and the Privacy Policy; and
   2. foundU’s provision of access to the Platform to Administrators and End Users; and
2. evidence of such consents upon reasonable request from foundU.

4.3  Credentials

The Customer must use best endeavours to ensure that all End Users:

1. keep their (and you must ensure that you keep your) user IDs and passwords or other access credentials for the Platform strictly confidential; and
2. do not (and you must not) share such information with any unauthorised person.

4.4  Unauthorised Use or Access

You agree to notify foundU immediately on becoming aware of any unauthorised use of access credentials or unauthorised use of or access to the Platform. 

4.5  Age Requirement 

The Platform is not intended for, and should not be used by, anyone under the age of 13. The Customer must use best endeavours to ensure that all End Users are at least 13 years old. 

5.  Customer Responsibility

You must (and the Customer must procure that its End Users):

1. access and use the Platform in accordance with reasonable directions and instructions given by foundU;
2. have sole responsibility for the accuracy, quality, integrity, reliability and appropriateness of all Customer Data that is entered into the Platform;
3. use commercially reasonable efforts to prevent unauthorised access to or use of the Platform and notify foundU promptly of any such unauthorised access or use;
4. comply with all applicable Laws in accessing and using the Platform; and
5. provide and maintain your/their own equipment, software, networks and communications lines, including any public lines required to properly access the Platform and any relevant content or data.

6  Rules of Access

6.1  Access 

Subject to this Agreement, during the Subscription Term, you may access and use the Platform for and only for the Customer’s business purposes or your own personal use, as applicable, all in accordance with the terms of this Agreement. The rights granted to you in this clause are non-exclusive, non-sublicensable and non-transferable. 

6.2  Support

During the Subscription Term, foundU will provide Support (if any) agreed in the Order together with applicable Support referred to in clause 8. 

6.3  Restrictions

Except as otherwise expressly permitted in this Agreement, you must not:

1. reproduce, modify, adapt or create derivative works of all or any part of the Platform;
2. rent, lease, distribute, sell, sublicense, transfer or provide access to the Platform to a third party;
3. provide to any third party (without first obtaining written permission from foundU to do so) copies of any Materials produced by foundU or by or via the Platform;
4. use the Platform for the benefit of any third party;
5. incorporate any part of the Platform into a product or service you provide to a third party;
6. interfere with or otherwise circumvent mechanisms in the Platform intended to limit your (or anyone’s) use;
7. reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any part of the Platform, except to the extent expressly permitted by applicable Law (and then only upon advance notice to foundU in writing);
8. remove or obscure any proprietary or other notices contained in any part of the Platform;
9. submit to the foundU API or any other part of the Platform any viruses, worms, defects, Trojan horses, malware or any items of a destructive nature;
10. use any part of the Platform to defame, abuse, harass, stalk or threaten others, promote unlawful activities or send disruptive or offensive messages or advertisements;
11. try to exceed or circumvent limitations within the foundU API or any other part of the Platform;
12. download, scrape, post or transmit (in any form or means) any part of the Platform or content within it except as expressly permitted under this Agreement;
13. use any data accessed via the foundU API or Your Platform to assist with any unsolicited marketing communication (electronic or otherwise) to any person;
14. resell (for a fee, or any other commercial benefit) any data accessed via the foundU API or Your Platform;
15. use the Platform for competitive analysis or to build competitive products;
16. publicly disseminate information regarding the performance of the Platform; or
17. encourage or assist any third party to do any of the foregoing.

7.  Platform Availability

7.1  Uptime

 

7.2. Maintenance Windows

1. A maintenance window may include standard maintenance and emergency maintenance. foundU will notify the Customer in writing of standard maintenance windows at least 72 hours in advance of the start of the standard maintenance window. Emergency maintenance will occur as needed.
2. foundU will make reasonable efforts to notify the Customer directly in advance of any emergency maintenance window, but it is possible that advanced notification of an emergency window may not occur, and foundU will not be liable to the Customer or anyone else arising out of failure to notify.

1. your acts, omissions, negligence or wilful misconduct or that of any End Users, or any unauthorised modifications of Your Platform or its operating environment;
2. any failure or defect of your or a third party’s equipment, software, facilities, third party applications, or internet connectivity (or other causes outside of foundU's firewall);
3. Customer Applications;
4. your use of Your Platform other than in accordance with this Agreement; or
5. a Force Majeure event within the meaning of clause 23.3.

7.4  Updates

foundU will at foundU’s sole discretion deliver updates to Your Platform at no additional charge to enhance or improve the functionality or operation of Your Platform, which may include any patch, bug fix, release, version, reports, modification or successor to the Platform.

7.5  Award and Other Law Changes

1. Updates to awards or other industrial instruments and Laws, including to things such as minimum wages, leave rules and other pay rule changes, in Your Platform are not included in updates.
2. foundU may (but is not required to) from time to time notify the Customer of any legal or regulatory changes and foundU’s interpretation of how to make the necessary changes to update Your Platform for legal compliance purposes, but foundU will not be responsible for any such changes and the Customer acknowledges that:
   1. the Customer:
      1. does not and must not rely upon foundU or foundU’s interpretation in this regard; and
      2. must obtain its own legal advice on any legal and regulatory changes; and
   2. foundU will provide any such information only on an “as is” basis and does not and will not provide any legal advice or legal services and will have no liability to the Customer arising out of the Customer’s reliance upon any such information.
3. At the Customer’s request, foundU will assist the Customer to configure new awards in Your Platform from information supplied by the Customer.
4. foundU may from time to time implement into Your Platform pre-set award templates which implement specific rules and information flows developed by foundU.
5. All services and implementations provided under this clause 7.5 constitute Additional Services and may attract specific Fees.
6. In any award template implementations, whether pre-set award templates under clause 7.5(d) or separate or further configurations under clauses 7.5(b) or (c), You acknowledge that:
   1. while foundU will take all reasonable care in providing such implementations, foundU’s only warranty in relation to such implementations is that they will follow the specific rules and information flows which foundU documents and provides to the Customer for acceptance before implementation;
   2. the Customer’s acceptance of those rules in writing, and Your use of the implementation, each separately constitutes acceptance of all risks associated with any use of such implementation;
   3. foundU does not warrant that any such implementation will be legally compliant, cause You to comply fully with relevant Law nor necessarily cover all scenarios;
   4. to the extent permitted by Law, all such implementations are provided “as is” and foundU will have no liability to You or anyone else in any way for any consequence arising out of implementation and use of those implementations; and
   5. all calculations shown or provided to You when using such implementations are estimates only and foundU does not guarantee their accuracy nor legal compliance.

7.6  New Modules

New modules not currently part of the functionality of the Platform may be offered to the Customer and may involve additional fee arrangement.

7.7  Six Month Review

At the end of the first 6 months of the Customer’s use of Your Platform, foundU may (but is not required to) conduct a review of Your Platform and discuss potential configuration improvements with You. We encourage You to actively participate in any such review as it presents an opportunity to enhance the value You derive from the Platform. Based on such a review, You may choose to implement any suggested improvements yourself, or You may engage foundU to carry out any relevant work as an Additional Service (at an additional cost).

8.  Platform Support

8.1  Support

foundU will use commercially reasonable efforts to make Your Platform available to End Users and to correct all platform errors or provide a reasonable workaround as soon as is possible using its reasonable efforts.

8.2  Support Desk

foundU will provide support to the Customer and End Users provided the Customer and End Users make reasonable efforts to resolve issues by reference to the frequently asked questions and other resources on Your Platform.

8.3  Support Fees

foundU has the right to bill you at its standard services rates for any support issues excluded by clause 7.3.

8.4  Service Level Commitment

1. If you experience a Platform outage and are unable to access Your Platform, you should immediately contact foundU’s help desk, providing any/all necessary information that may assist foundU in determining the cause of the outage.
2. foundU will determine in good faith whether the outage was within foundU’s reasonable control.
3. If foundU determines that a timely reported outage was attributable to foundU, then foundU will credit the Customer 1­day of the Usage Fees for every 4 hours of downtime you experienced, up to a maximum of half of the Usage Fees in any given 4-week period.
4. foundU cannot guarantee network availability between Your Platform and the foundU hosting servers, as such availability can involve numerous third parties and is beyond the control of foundU. foundU will not be liable for nor provide any service credits for any downtime caused in whole or part by a third-party data centre provider nor for any downtime that you experience because of your or End Users’ own network connectivity issues.  

9.  Customer Data

9.1  Title to Customer Data

The Customer, or the User as applicable, retains ownership of and all rights to Customer Data submitted to the Platform.

9.2  Access to and Use of Customer Data

1. Subject to this Agreement, and solely to the extent necessary to provide access to the Platform to you, you grant foundU a worldwide, limited term licence to access, use, process, copy, distribute, perform, export, display and modify for display Customer Data you submit to the Platform.  
2. foundU may also access the Customer’s and End Users’ accounts in order to respond to support requests (but is not obliged to provide any support unless a specific agreement for that has been entered into). 
3. You agree that foundU may at any time produce anonymized versions of the Customer Data so they contain no personal information nor information that includes the name or other identifying details of any legal entities (Anonymized Data) and may collate, use, copy, disclose and commercialise that Anonymized Data in any way foundU sees fit.

9.3  Customer Data Compliance

1. You must ensure that you and your End Users’ use of the Platform complies at all times with this Agreement and all Laws.
2. You warrant that:
   1. you have obtained all necessary rights, releases and permissions to submit all Customer Data to the Platform and to grant the rights granted to foundU in this Agreement; and
   2. Customer Data and its submission and use as you authorise in this Agreement will not violate:
      1. any Laws;
      2. any third-party rights (including Intellectual Property Rights); or
      3. any of your or third-party policies or terms governing any of the Customer Data.
3. Other than foundU’s express obligations set out in this Agreement, foundU assumes and will have no responsibility or liability for Customer Data, and you agree that you are solely responsible for Customer Data and the consequences of submitting and using it with the Platform.

9.4  No Sensitive Data

You agree that, save for Excluded Sensitive Data:

1. you will not (and will ensure that your End Users do not) submit to the Platform (or use the Platform to collect) any Sensitive Data; and
2. notwithstanding any other provision of this Agreement to the contrary, foundU has no liability under this Agreement for Sensitive Data.

9.5  Indemnity

You agree to defend, indemnify and hold harmless foundU, its officers, directors, agents and employees, from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable legal fees and costs) resulting from any claim arising from or related to:

1. your breach of this Agreement;
2. any claims or disputes brought by your End Users arising out of their use of the Platform; or
3. Customer Materials you or your End Users submit to the Platform.

9.6  Content Monitoring

foundU has no obligation to monitor any content uploaded to the Platform. However, if foundU deems such action necessary based on your or an End User’s violation of this Agreement, including any foundU Policies, or in response to lawful takedown requests that foundU receives, foundU may:

1. remove the relevant Customer Data from the Platform; or
2. suspend your (and/or any End Users’) access to the Platform.

9.7  Notification

foundU will use reasonable efforts to provide the Customer with advance notice of any removals and suspensions when practicable, but if foundU determines that the Customer’s (or any End User’s) actions are in breach of any Laws or endanger the operation of the Platform or other users, foundU may suspend the Customer’s (or any End Users’) access or remove any Customer Data immediately without notice.

9.8  Liability

You agree that foundU will have no liability to you for removing or deleting Customer Data from or suspending the Customer’s or any End Users’ access to any part of the Platform as described in this clause 9.

10.  Third-Party Products

foundU does not warrant that the Platform will function correctly or as intended when used in combination with any particular third party products. You agree that your use of any third party products in conjunction with the Platform is entirely at your sole risk and foundU will not have any responsibility or liability to you or any End Users in any way for any outcome arising out of use of third party products in conjunction with the Platform.

11.  Additional Services

11.1  Applicability

This clause 11 only applies if the Order specifies that foundU will provide Additional Services to the Customer.

11.2  foundU’s Deliverables

foundU will retain all right, title and interest in and to all foundU Deliverables and all Intellectual Property Rights in or arising out of any of them.

11.3  Customer Materials

The Customer:

1. agrees to provide foundU with reasonable access to Customer Materials as reasonably necessary for the provision of Additional Services, failing which performance of Additional Services will not be required until such access is provided;
2. retains all rights in all Customer Materials, subject to foundU’s ownership of all parts of the Platform, foundU Deliverables and of foundU Technology; and
3. licenses foundU to use the Customer Materials for the purpose of performing the Additional Services, and warrants that the Customer has all necessary rights in all Customer Materials to provide access to foundU for such purposes.

11.4  Custom Training Not Included

For the avoidance of doubt, unless Custom Training is specifically included as an Additional Service in an Order, foundU’s provision of Training (other than Free Training as referred to in clause 3) is not included with provision of access to the Platform and will only be provided if agreed under a separate agreement.

12.  Billing, Payment and Fee Increases

12.1  Order Prevails

This clause 12 is subject to any terms relating to billing, payment for and renewal of access to the Platform or specific features set out in the Order or the Annexures to this document, with any inconsistency in that regard between the Order and Annexures being resolved in favour of the Order.

12.2  Invoicing and Payment

1. foundU will deliver invoices to the Customer for any Fees due under this Agreement from time to time:
   1. at the frequency set out in the Order, or as foundU otherwise notifies the Customer in writing from time to time; or
   2. in the absence of any such provision in the Order or any such notification, on (or as soon as practicable after) the Commencement Date in advance and every four (4) weeks in advance after the Commencement Date.
2. Unless otherwise specified in the Order or on a given invoice, the Customer must pay all invoices within 30 days of the invoice date.
3. If foundU offers the Customer different methods of payment and the method chosen by the Customer incurs a processing fee, foundU will include such Fees in its invoice.

12.3  Usage Fees

1. The Customer must pay all Usage Fees to foundU.
2. foundU will charge the Customer a Subscription Fee during the Subscription Term, every 4-weeks from the Subscription Fee start date set out in the Order, until the Customer goes live on Your Platform (to ensure that the necessary resources and support are provided during critical periods).
3. From the time the Customer goes live on Your Platform, the Subscription Fee will serve as the minimum 4-weekly Usage Fee payable (which means if the Usage Fees for any given month do not exceed the Subscription Fee, foundU will charge the Customer the Subscription Fee amount).
4. Discounts set out in the Order do not apply to the Subscription Fee.

12.4  Fee Increases

1. Unless the Order or an Annexure provides otherwise, all Fees and rates in the Order or set out in an Annexure will remain fixed for the first calendar year commencing on the Commencement Date, and will (unless foundU elects within its sole discretion not to apply a given increase) increase on each anniversary of the Commencement Date during the term of this Agreement, such increases to be by the greater of 3% and any increase in the Consumer Price Index (Brisbane) over that period.
2. Unless foundU has specifically agreed in an Order not to do so, and notwithstanding the above clause or any provisions of an Annexure, foundU may from time to time (but not more than once per calendar year in addition to any increase under clause 12.4(a) give written notice to the Customer of a Proposed Fee Increase.
3. If notice is given under clause 12.4(b), the Customer may within 10 Business Days of receipt of that notice give written notice to foundU that the Customer does not accept the Proposed Fee Increase.
4. If notice is given under clause 12.4(c), foundU may within 10 Business Days of receipt of that notice give written notice to the Customer either:
   1. revoking the Proposed Fee Increase (in which case there is no consequent change to Fees);
   2. suggesting an alternative Proposed Fee Increase, in which case foundU’s notice will constitute a fresh notice under clause 12.4(b); or
   3. terminating the Agreement with effect one calendar month after the giving of that notice.
5. If notice is given under clause 12.4(c) but no notice is given under clause 12.4(d), the proposed Fee Increase is deemed revoked and there will be no consequent change to the Fees.
6. If notice is given under clause 12.4(b) but no notice is given under clause 12.4(c), the Fees under this Agreement will change in accordance with the Proposed Fee Increase at the beginning of the calendar month that is two months after the month in which the notice is given.

13.  Evaluation and Trial Products & Beta Features

13.1  Complimentary Basis

Where access to the Platform or Beta Features is offered on a Complimentary Basis, use of the Platform or Beta Features is subject to any additional terms that foundU specifies and is only permitted during the Subscription Term foundU designates (or, if not designated, until terminated in accordance with this Agreement). foundU may modify or terminate access to the Platform or any Beta Features provided on a Complimentary Basis at any time in its sole discretion, without liability to you.

13.2  Beta Features

1. You understand that any Beta Features are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than the Platform as generally available.
2. In some circumstances, a fee may be charged in order to allow access to Beta Features, but the Beta Features will remain subject to this clause.
3. All information regarding the characteristics, features or performance of any part of the Platform or Beta Features provided on a Complimentary Basis constitutes foundU’s Confidential Information.

13.3  Liability Limitation

To the maximum extent permitted by applicable law, foundU disclaims all obligations or liabilities with respect to any part of the Platform or Beta Features offered or provided on a Complimentary Basis, including any support, warranty and indemnity obligations. Notwithstanding anything else in these terms, foundU’s maximum aggregate liability to you in respect of any part of the system or beta features offered or provided on a complimentary basis will be AUD $100.

14.  Intellectual Property Rights

14.1  foundU Technology

The Platform and its components (including all foundU Technology) are provided under a limited licence only on these terms and all ownership of and rights in the Platform and foundU Technology and all Intellectual Property Rights in or arising out of any of those remains solely with foundU and its licensors.

 

14.2  Feedback

foundU may use, copy, disclose, license, distribute and exploit any Feedback in any manner without restriction and any obligation, royalty or restriction based on Intellectual Property Rights or otherwise.

15.  Confidentiality

15.1  Confidential Information

Except as otherwise set out in this Agreement, each party agrees that all Confidential Information disclosed to that party as a Recipient by the other party as Discloser constitutes the Confidential Information of the Discloser.

15.2 Must Be Kept Confidential

Except as expressly authorised in this Agreement, the Recipient:

1. must hold in confidence and not disclose any Confidential Information to third parties;
2. must not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement; and
3. may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Discloser than (and that the Recipient remains responsible for compliance by them with the terms of) this clause 15.

15.3  Exceptions

Clause 15.2 will not apply to information which the Recipient can document:

1. was lawfully in its possession or known to it prior to receipt of the Confidential Information;
2. is or has become public knowledge through no fault of the Recipient;
3. is lawfully obtained by the Recipient from a third party without breach of any confidentiality obligation; or
4. is independently developed by employees of the Recipient who had no access to such information.

15.4  Disclosure by Legal Obligation

The Recipient may disclose Confidential Information if so required pursuant to a Law but only to the minimum extent required to comply with such Law and with advance written notice to the Discloser.

15.5  Equitable Relief

The Recipient acknowledges that disclosure of the Discloser’s Confidential Information could cause substantial harm to the Discloser for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure or threat of disclosure by the Recipient, the Discloser will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

15.6  Publicity

Notwithstanding any other provision of this Agreement, foundU may identify the Customer as an foundU customer in foundU’s promotional materials, unless and until the Customer requests that foundU refrain from doing so, such request to be sent by email to hello@foundu.com.au.

16.  Termination and Suspension

16.1  Termination for Cause

The Customer or foundU may terminate this Agreement (where this Agreement is between the Customer and foundU) by written notice with immediate effect if the other party:

1. fails to cure any material breach of this Agreement (or the other party is the Customer and has failed to make a due payment under this Agreement) within ten (10) Business Days after receiving from the party not in breach written notice of such breach;
2. ceases operation without a successor; or
3. seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days).

16.2  Termination for Convenience

1. The Customer may choose to stop using the Platform and terminate this Agreement at any time for any or no reason upon giving written notice of no less than forty (40) Business Days to foundU and, unless such early termination is pursuant to clause 16.1, upon any such termination:
   1. the Customer will not be entitled to a refund of any pre-paid Fees; and
   2. all outstanding applicable Fees for the then-current Subscription Term or related services period (as applicable) will become immediately due and payable.
2. foundU may terminate this Agreement (where this Agreement is between the Customer and foundU):
   1. under clause 12.4(d)(iii); or
   2. for convenience by giving written notice of forty (40) Business Days to the Customer.
3. If foundU terminates this Agreement under clause 16.2(b) then foundU will refund to the Customer any pre-paid Fees (on a pro rata basis as applicable) covering periods after the end of the relevant notice period.

16.3  Effect of Termination

Upon any expiration or termination of this Agreement (where this Agreement is between the Customer and foundU):

1. all use of the Platform must cease and all copies of foundU’s Confidential Information or other materials must be deleted upon foundU’s request, including from any third-party systems;
2. foundU is not required to provide access  to Customer Data (which foundU may delete irretrievably unless legally prohibited from doing so) after such expiration or termination, but if the Customer has paid all amounts owed to foundU under this Agreement, foundU may upon written request provide the Customer with access to Your Platform for a limited period for the limited purpose of exporting Customer Data;
3. subject to the above paragraph, the Customer is solely responsible for ensuring that all Customer Data is exported using the functionality of the Platform during the applicable Subscription Term;
4. if termination was by the Customer pursuant to clause 16.1, any prepaid Fees covering the remainder of the then-current Subscription Term will be reimbursed after the effective date of termination;
5. if termination was by foundU pursuant to clause 16.1, any unpaid Fees covering the remainder of the then-current Subscription Term after the effective date of termination will become immediately due and payable; and
6. in no event will termination relieve the Customer of its obligation to pay any Fees payable for periods up to the date of termination.

16.4  Suspension

Where foundU reasonably forms the view that the Customer is and remains in breach of any term of this Agreement (including an obligation to pay Fees), without prejudice to any other rights that foundU may have, foundU may suspend the Customer’s (and any End Users’) access to the Platform or any Services until such breach has been remedied. foundU will have no liability to the Customer or any End User arising out of any such suspension.

16.5  Other Remedies

Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, whether by law or otherwise.

16.6  Surviving Terms

The following provisions will survive any termination or expiration of this Agreement, namely clauses 6.3 (Restrictions), 9.5 (Indemnity), 10 (Third-Party Products), 12.4(f), 13 (Evaluation and Trial Products & Beta Features), 14 (Intellectual Property Rights), 15 (Confidentiality), 16 (Termination), 17.5 (Australian Consumer Law), 17.6 (Disclaimers), 18 (Limitation of Liability), 19 (Indemnity for Third Party IP Claims) (but solely with respect to claims arising from Customer’s use of foundU Products during the Subscription Term), 20 (Dispute Resolution) and 23 (General Provisions).

17.  Warranties & Disclaimer

17.1  Power

Each party warrants that it has the legal power and authority to enter into this Agreement. 

17.2  foundU Warranties

foundU will use commercially reasonable efforts to:

1. prevent introduction of viruses, Trojan horses or similar harmful materials into the Platform (but foundU will not have any liability for harmful materials submitted by the Customer or End Users); and
2. ensure the Platform functions in accordance with the Documentation.

17.3  Warranty Remedy

If foundU determines (within its sole discretion) that corrections or costs required to comply with clause 17.2 have become or are likely to become uncommercial or impracticable, foundU may terminate this Agreement (where this Agreement is between the Customer and foundU) with immediate effect by giving written notice to the Customer, in which case any Fees that have been pre-paid for use of the Platform will be reimbursed for the terminated portion of the applicable Subscription Term.

17.4  Claim Under Warranty

Clause 17.2 will not apply:

1. unless the Customer notifies foundU in writing of a claim under that clause within thirty (30) days of the date on which the non-conformity was first noticed;
2. if the non-conformity was caused by misuse, unauthorised modifications or third-party products, software, services or equipment; or
3. to any access, products or services provided on a Complimentary Basis.

17.5  Australian Consumer Law

1. Nothing in this Agreement is intended to limit any liability that foundU may have that may not by Law be limited.
2. For the purposes of section 64A of the Australian Consumer Law, if foundU is liable to the Customer for breach of any consumer warranties under the Australian Consumer Law in respect of its supply or proposed supply of products or services under this Agreement, foundU’s liability is limited, at its option, to:
   1. in respect of the supply of any goods, and one or more of:
      1. the replacement of the goods or the supply of equivalent goods;
      2. the repair of the goods;
      3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
      4. the payment of the cost of having the goods repaired; and
   2. in respect of the supply of any services:
      1. the supplying of the services again; or
      2. the payment of the cost of having the services supplied again.

17.6  Disclaimers

1. Except as otherwise provided in this clause 17, all products and services provided or to be provided by foundU to you are provided “as is,” and to the maximum extent permitted by Law, foundU expressly disclaims any and all warranties and representations of any kind, including any warranty of non-infringement, title, fitness for a particular purpose, functionality or merchantability, whether express, implied or statutory.
2. foundU does not warrant that your use of the Platform will be uninterrupted or error-free, that foundU will review Customer Data for accuracy or that foundU will preserve or maintain Customer Data without loss.
3. You agree that:
   1. use of the Platform necessarily involves transmission of Customer Data over networks that foundU does not own, operate or control;
   2. foundU is not responsible for any of the Customer Data lost, altered, intercepted or stored across such networks;
   3. foundU cannot guarantee that its security procedures will be error-free, that transmissions of Customer Data will always be secure or that unauthorised third parties will never be able to defeat foundU’s security measures or those of its third party service providers;
   4. foundU will not be liable for delays, interruptions, service failures or other problems inherent in use of the internet and electronic communications or other systems outside foundU’s reasonable control; and
   5. you may have other statutory rights, but the duration of statutorily required warranties, if any, will be limited to the shortest period permitted by Law.

18.  Limitation of Liability

18.1  Consequential Damages

Subject to clauses 17.5 and 18.3, neither party will have any liability arising out of or related to this Agreement for any loss of use, lost or inaccurate data, lost profits, failure of security mechanisms, interruption of business, costs of delay, or any indirect, special, incidental, reliance or consequential damages of any kind, even if informed of the possibility of such damages in advance. 

18.2  Liability Cap

Subject to clauses 17.5 and 18.3, foundU’s aggregate liability to you arising out of or related to this Agreement will not exceed the amount actually paid or payable by the Customer to foundU under this Agreement in the twelve (12) months immediately preceding the claim. 

18.3  Excluded Claims

Clauses 18.1 and 18.2 do not apply to:

1. the Customer’s liability to pay Fees owed to foundU under this Agreement;
2. either party’s express indemnification obligations in this Agreement; and
3. your liabilities under clauses 4 (Platform Administration) or 5 (Customer Responsibility) or for breach of clause 6.3 (Restrictions).

18.4  Application

The parties agree that the waivers and limitations specified in this clause 18 apply regardless of the form of action, whether in contract, tort including negligence, strict liability or otherwise.

19.  Indemnity for Third Party IP Claims

19.1  Defence of Claims

foundU will defend you against any claim brought by a third party alleging that the Platform, when used as authorised under this Agreement, infringes that party’s copyright, or a patent right granted in the United States, Australia or a member nation of the European Union (Claim), and foundU will indemnify and hold you harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by foundU (including reasonable legal fees), provided that foundU has received from you:

1. prompt written notice of the Claim (but in any event notice in sufficient time for foundU to respond without prejudice);
2. reasonable assistance in the defence and investigation of the Claim, including providing foundU a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and
3. the exclusive right to control and direct the investigation, defence, and settlement (if applicable) of the Claim.

19.2  Injunctions

If your use of the Platform is (or is likely to be) enjoined, whether by court order or by settlement, or if foundU determines such actions are reasonably necessary to avoid material liability, foundU may, at its option and discretion:

1. procure the right for your continued use of the Platform in accordance with this Agreement;
2. substitute a substantially functionally similar product or service; or
3. terminate your right to continue using the Platform and (where you are the Customer) refund any prepaid amounts for the terminated portion of the Subscription Term.

19.3  Exceptions

foundU’s obligations under clause 19.1 do not apply:

1. if the Platform is modified by any party other than foundU (or contractors at its request), but solely to the extent the alleged infringement is caused by such modification;
2. if the Platform is used in combination with any non-foundU product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination;
3. to unauthorized use of the Platform;
4. to any Claim arising as a result of:
   1. Customer Data or circumstances covered by Your indemnification obligations under this Agreement; or
   2. any third-party deliverables or components contained with the Platform; or
5. if you settle or make any admissions with respect to a Claim without foundU’s prior written consent.

19.4  Sole Remedy

This clause 19 states foundU’s sole liability and your exclusive remedy for any infringement of Intellectual Property Rights in connection with the Platform or any product or service provided under this Agreement.

20.  Dispute resolution

20.1  Proceedings

If any dispute arises in relation to this Agreement (Dispute), including in relation to its interpretation or any aspect of its performance, no party may commence any form of legal proceedings, unless and until the parties have complied with the procedures set out in this clause 20, except where a party seeks urgent interlocutory relief or the dispute relates to compliance with this clause 20.

20.2  Notice of Dispute

If any Dispute arises, either party may give written notice (Notice of Dispute) to the other party claiming that a Dispute has arisen, specifying the nature of the Dispute, and request that a meeting be held between one duly authorised representative of each party within ten (10) Business Days.

20.3  Meetings Between Authorised Representatives

If a party receives a Notice of Dispute from the other party in accordance with clause 20.2, that party, and the party that gave the Notice of Dispute, must cause an authorised representative to attend at the meeting referred to in that notice, which may be held by contemporaneous linking by telephone or live audio visual transmission (or similar).

20.4  Dispute Resolution and Mediation

If the parties have not resolved the Dispute within twenty (20) Business Days of the meeting referred to in clause 20.3 (or such further period as agreed in writing by them), the parties must attempt to resolve the Dispute by participating in a mediation (Mediation), which must be conducted in Brisbane (or as agreed in writing between the parties), in accordance with the ACICA Mediation Rules (in operation from time to time) by the ACICA, except where they conflict with this clause 20 in which case this clause 20 will prevail.

20.5  Appointment of Mediator

If the parties are required by clause 20.4 to mediate the dispute, the parties agree that:

1. ACICA will appoint the mediator unless the parties agree on a mediator (Mediator);
2. the role of the Mediator is to assist in negotiating a resolution of the dispute via the Mediation;
3. the Mediator may not make a decision that is binding on the parties unless the disputing parties otherwise agree in writing;
4. the costs of the Mediator (and of the venue for the Mediation, if there are any such costs) must be paid equally by the disputing parties but otherwise each disputing party must pay their own costs of the Mediation; and
5. if the Dispute is not resolved within twenty (20) Business Days after referral to the Mediator, any disputing party may take legal proceedings to resolve the Dispute.

21.  Taxes

21.1  Consideration GST Exclusive

Unless otherwise stated in this Agreement, all Fees are exclusive of and contain no allowance for any GST that the Customer may be obliged to withhold and pay and if payable by foundU or the Customer will be treated as a debt due by the Customer to foundU and the Customer must indemnify foundU and keep foundU indemnified against any GST claim.

21.2  Payment of GST

If GST is payable by foundU on any supply made under this Agreement, the Customer must pay to foundU an amount equal to the GST payable on the supply (in addition to the relevant Fees).

21.3  Tax Invoice

Unless otherwise set out in the Order:

1. foundU must deliver a tax invoice or an adjustment note to the Customer before foundU is entitled to payment of an amount under this Agreement; and
2. the Customer can withhold payment of the amount until foundU provides a tax invoice or an adjustment note, as appropriate.

21.4  Adjustment Event

If an adjustment event arises in respect of a taxable supply made by foundU under this Agreement, the amount payable by the Customer will be recalculated to reflect the adjustment event and a payment will be made by the Customer to foundU or by foundU to the Customer as the case requires.

21.5  Reimbursements

Where a party is required under this Agreement to pay or reimburse an expense or outgoing of another party, the amount to be paid or reimbursed by the first party will be the sum of:

1. the amount of the expense or outgoing less any input tax credits in respect of the expense or outgoing to which the other party is entitled; and
2. if the payment or reimbursement is subject to GST, an amount equal to that GST.

21.6  Withholding Tax

 

22.  Changes

22.1  Changes to Terms

1. foundU may modify this Agreement and any foundU Policies from time to time, with effect from the next time you or any End User logs in and accepts these terms (as amended) by clicking “I Agree”.
2. Where you are the Customer, you will also be bound by any changes to this Agreement and any foundU Policies upon your receipt of notice in writing by foundU of those changes, unless foundU receives from you within ten (10) Business Days after your receipt of foundU’s notice a written notice confirming you reject the changes and wish to terminate this Agreement.
3. Such written notice from you will be treated as a notice under clause 16.2(a) (Termination for Convenience) and this Agreement will until the end of the notice period provided in that clause continue on foot upon the terms as they were before you received foundU’s written notice.

22.2  Changes to the Platform

You acknowledge that the Platform is an online subscription-based product, and that in order to provide improved customer experience or to comply with changes to Laws (or for other reasons relevant to foundU’s business), changes may be made to the Platform, and foundU may update the applicable Documentation accordingly.

22.3  Discontinuation

Notwithstanding foundU’s obligation to provide access to the Platform and Additional Services under relevant Orders, any or all of the Platform, Additional Services and any other product or service of foundU or any portion or feature of any of the same may be discontinued at any time without liability to you. You agree that foundU’s only liability arising out of having discontinued any features, products or service will be a pro rata refund to the Customer of any sums prepaid for periods after the date of such discontinuation.

23.  General Provisions

23.1  Notices

The parties agree that:

1. any notices under this Agreement must be given in writing;
2. foundU may notify you through the Notification Email Address, your account or in-product notifications;
3. any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing;
4. any notice from:
   1. foundU to you will be deemed given upon the first Business Day after it has been sent;
   2. you to foundU will be deemed given upon receipt;
5. You must provide notices to foundU by post to 2B Mayneview Street, Milton QLD 4056.

23.2  Exclusion of Conventions

The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act will also not apply to this Agreement regardless of when or where adopted.

23.3  Force Majeure

Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a licence by a government agency (but not including economic hardship, changes in market conditions or insufficiency of funds). 

23.4  Assignment

Neither party may, or shall have the power to, assign this Agreement without the prior written consent of the other, except that foundU may assign its rights and obligations under this Agreement without your approval to an entity which acquires all or substantially all of foundU’s assets.

23.5  Entire Agreement

This Agreement represents the entire agreement between the parties relating to the Platform and any other subject matter covered by this Agreement, and supersedes all prior or contemporaneous oral or written communications, proposals and representations between the parties with respect to the Platform or any other subject matter covered by this Agreement. No provision of any purchase order or other business form employed by the Customer will supersede or supplement this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.

23.6  Waivers

No failure or delay by an injured party in exercising any right, power or privilege under this Agreement will operate as a waiver of any of those things, nor will any single or partial exercise of those things preclude any other or further exercise of them or the exercise of any right, power or privilege under this Agreement at law or equity.

23.7  Severance

If any clause or part of any clause is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed from this Agreement without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.

23.8  No Merger

Any right or obligation of any party that is expressed to operate or have effect on or after the completion, expiration or termination of this Agreement for any reason, will not merge on the occurrence of that event but will remain in full force and effect.

23.9  Relationship of Parties

Unless otherwise stated:

1. Nothing in this Agreement creates a joint venture, partnership, or the relationship of principal and agent, or employee and employer between the parties; and
2. No party has the authority to bind any other party by any representation, declaration or admission, or to make any contract or commitment on behalf of any other party or to pledge any other party’s credit.

ANNEXURE A – ON DEMAND WAGES

A1.  Application of this Annexure

This Annexure applies (in addition to the General Terms) where you use the Platform’s on-demand wages feature (ODW Feature).

A2.  Definitions

In addition to the definitions in the General Terms, in this Annexure, unless the context requires otherwise:

Deductions means in relation to an Eligible Employee all usual gross deductions from the employee’s wages for items such as phone, car and kilometres, accrual type allowances, entitlement accruals, superannuation, reimbursements, workcover pay items, bonus payments, long service leave payments, annual and personal leave, toil balances/accruals and salary sacrificed amounts.

Eligible Amount means, in relation to an Eligible Employee, an amount between $100 and the Eligible Employee’s full earned wages approved by the Customer due to be paid to the employee on the next Payday less tax, Deductions and certain pay items where applicable.

Eligible Employee means, subject to clauses A3.4(d) and A4.2, an individual (not being a Politically Exposed Person nor a person in respect of whom a Relevant Person is a Politically Exposed Person) employed by the Customer on a casual, part-time or full-time basis who has earnt a wage where the hours associated with those earnings have been approved by the Customer and where the employee’s payroll is processed by the Customer using the Platform.

Fee means, unless the Order provides otherwise for the ODW Feature, the ODW Fixed Fee set out in the Price List.

ODW Feature has the meaning given in clause A1.

Payday has the meaning given in clause A3.3.

Politically Exposed Person means an individual who is or has been entrusted with prominent public functions, such as a head of state, head of government, minister, politician, member of senior government, judicial or military official, senior executive of a state-owned corporation, or a senior official of a registered political party.

Relevant Person in relation to a person means the person, their spouse or partner, children or their spouses or partners, or any parents, brothers or sisters of any of them, nor any individuals with whom the person shares joint beneficial ownership of any property or who has the benefit of a legal entity or arrangement the person has (or has had) set up for their benefit.

Requested Amount has the meaning given in clause A3.2.

Us means, jointly and severally, foundU and DayPay Pty Ltd ABN 76 625 245 060, and We and Our will have similar meanings.

A3.  Your Use of this Feature

A3.1  The ODW Feature allows you as an Eligible Employee to request an Eligible Amount by way of early payment by Us of your earned and approved wages.  

A3.2  If you are an Eligible Employee, you may request up to the Eligible Amount (Requested Amount) to be paid before the your next regular Payday, and We may (within Our sole discretion) pay that (or another amount) to you.

A3.3  If you request and We pay to you a sum up to the Requested Amount:

1. the Customer must repay to Us on the Customer’s next regular payroll processing day (Payday) such of the Requested Amount as We have paid you; and
2. in addition, you will pay Us (deducted from the Requested Amount for each such request) the Fee.

A3.4  In making a request under clause A3.2, as an Eligible Employee you:

1. are providing an irrevocable written authority for the Requested Amount and the Fee to be deducted from your wages on Payday and paid to Us in full;
2. warrant that all information you have provided to Us is accurate;
3. warrant that, subject to (d) below, no Relevant Person is a Politically Exposed Person;
4. agree that if you believe you are or may be a Politically Exposed Person, you must obtain Our approval before making a request under clause A3.2, by seeking such approval by email to chat@wageflo.com.au, such approval to be granted or withheld by Us at Our sole discretion and which will be communicated to you via that same email address;
5. agree that you have not entered into any new arrangement that may provide a third party with rights to deduct amounts from your Requested Amount;
6. irrevocably agree that We may pay your Requested Amount by electronic transfer to the primary bank account recorded in the Platform (or as notified to Us by the Customer as applicable) as being the bank account into which your wages are ordinarily paid; and
7. authorise Us to:
   
   1. make any enquiries We consider necessary to verify your identity; and
   2. disclose to third parties, to the extent required by any applicable Laws, any information in relation to you.

A4.  Customer and Employee Duties

A4.1  The Customer must immediately notify foundU in writing if the Customer stops or intends to stop processing payroll (for any or all employees) via the Platform.

A4.2  As the Customer or as an Eligible Employee, you:

1. grant Us upon your request under clause A3.2 a perpetual, royalty-free licence to access and use any relevant information contained in Your Platform or your profile on the Platform profile required for Us to provide the on-demand wages service;
2. agree that We may communicate directly with you (or your employee where you are the Customer) with respect to any such request, wages generally or the ODW Feature; and
3. agree to keep your employee records, including name, address, date of birth, and proof of identity documents, accurate and up to date (and acknowledge that any failure to do so may render an employee no longer an Eligible Employee).

A4.3  The Customer agrees:

1. in relation to any casual employees or employees who have timesheets approved by the Customer, to keep Your Platform updated by accurately approving hours and days worked on a regular basis;
2. that We will only include in the calculation of any Eligible Amounts hours that have been approved by the Customer;
3. to allow a deduction of any Requested Amounts from all relevant employees on the next Payday (or next and following Paydays where the deduction is insufficient to repay the Requested Amount); and
4. where an employee who has received and not repaid a Requested Amount resigns, is terminated, or stops working for the Customer for any reason, the Customer must:
   1. allow the deduction of the Requested Amount that has not yet been repaid to Us from the employee’s final payment; and
   2. if there is no or insufficient deduction referred to at (i) above to repay Us the full Requested Amount, repay Us upon written request from Us however much of the Requested Amount remains unrepaid to Us.
      
      
      

A5.  Limitation of Liability

A5.1  Notwithstanding clause 18 of the General Terms, to the extent permitted by Law:

1. Our liability (to the Customer or anyone else) for all claims arising under or related in any way to your use of the ODW Feature, no matter how arising, and whether in contract, tort (including negligence), or otherwise, will not exceed the total Fees payable in respect of a Requested Amount;
2. except for liabilities arising under clause A6, your liability for all claims arising under or related in any way to your use of the ODW Feature, no matter how arising, and whether in contract, tort (including negligence), or otherwise, will not exceed the total Fees payable in respect of a Requested Amount; and
3. a party’s liability to the other party under or in connection with your use of the ODW Feature is reduced to the extent, if any, to which the other party’s acts or omissions cause or contribute to its own loss or damage.

A5.2  The parties agree to take all reasonable steps to mitigate any loss incurred by them arising out of your use of the ODW Feature.

A6.  Indemnity

A6.1  You are responsible to Us for any loss, costs (including reasonable legal fees), expense or damage We suffer or incur arising out of:

1. claims made by the Customer in relation to any Requested Amount requested by you;
2. any claim, demand made by or actions of any third party due to or arising out of your breach of this Agreement, or your breach of any Law or of the rights of a third party relating to your use of the ODW Feature; or
3. directly or indirectly, unauthorised persons accessing your account as a result of your negligence.

A6.2  Your liability under clause A6.1 will be reduced proportionately to the extent that We, our contractors or agents:

1. caused or contributed to the relevant claim, demand, loss or damage; or
2. failed to take reasonable steps to mitigate the relevant claim, demand, loss or damage.

 

ANNEXURE B – WORKPLACE RELATIONS SUPPORT SERVICE

B1.  Application of this Annexure

This Annexure applies (in addition to the General Terms) where you use the Platform’s workplace relations support service (WRS Service).

B2.  Definitions

In addition to the definitions in the General Terms, in this Annexure, unless the context requires otherwise:

Authorised User means a person nominated by the Customer and notified in writing to foundU as an authorised user of the WRS Service.

Fee means, unless the Order provides otherwise for the WRS Service, the WRS Fee set out in the Price List.

Workplace Relations Support means telephone and email support including ad hoc non-legal transactional verbal and email advice in relation to:

1. general award/agreement interpretation;
2. performance management, disciplinary action and termination;
3. discrimination;
4. bullying and harassment;
5. general employment contract issues and employment relations aspects of recruitment, induction and onboarding;
6. employee entitlements, termination payments and leave;
7. work health and safety compliance;
8. compliance with Fair Work Act 2009, National Employment Standards and related Laws;
9. independent contracting, including the correct classification of engaged parties;
10. long service leave; and
11. such other areas as are notified in writing to the Customer by foundU from time to time.

WRS Service has the meaning given in clause B1.

B3.  Customer Use of this Feature

B3.1  The WRS Service gives the Customer access to the Workplace Relations Support by means of a telephone and email service provided by foundU.  

B3.2  The Customer agrees:

1. to nominate Authorised Users from time to time and to notify foundU in writing of such Authorised Users as soon as practicable after they are nominated;
2. to follow all reasonable directions and instructions given by foundU about the use of the WRS Service; and
3. that foundU may subcontract all or part of the WRS Service from time to time to third parties who will provide the (or that part of the) WRS Service on behalf of foundU.

B4.  foundU Responsibilities

B4.1  Service Levels: foundU will ensure that, in providing the WRS Service:

1. no less than 90% of calls received within normal business hours of 8.30am to 5.30pm (AEST) Monday to Friday (in Brisbane) will be answered on a first-time response basis within an accepted call answer tolerance of 180 seconds;
2. calls received outside the hours set out at (a) above will be either answered or will receive a call back within an eight-hour period;
3. emails received into the HRA foundU email inbox within the business hours set out at (a) above will be answered within a two-hour period; and
4. emails received into the HRA foundU email inbox outside the business hours set out at (a) above will be answered within an eight-hour period.

B4.2  Warranties: foundU warrants that it:

1. will provide the WRS Service in a professional, conscientious, expeditious and workmanlike manner, with the skill, due care and prudence reasonably to be expected of skilled and experienced workplace relations services suppliers, and in accordance with this Agreement and all applicable Law;
2. will ensure that all of its personnel providing the WRS Service are appropriately qualified and experienced;
3. has sufficient resources to provide the WRS Service in accordance with this Agreement; and
4. has and will maintain all licences, authorisations, consents, approvals and permits required by applicable Law to provide the WRS Service in accordance with this Agreement.

B5.  Termination of Service

B5.1  foundU will provide the WRS Service to the Customer until this Agreement ends or until foundU gives the Customer or the Customer gives to foundU written notice that the party providing the notice wishes the WRS Service to terminate.

B5.2  If a notice is given by one party to the other under clause B5.1, then foundU will cease providing the WRS Service 20 Business Days after receipt of the notice (Termination Date).

B5.3  All Fees will remain payable for all periods up to the Termination Date.

B6.  Limitation of Liability

B6.1  Notwithstanding clause 18 of the General Terms, to the extent permitted by Law:

1. foundU’s liability (to the Customer or anyone else), and the Customer’s liability to foundU (not including for unpaid Fees) for all claims arising out of or related in any way to the WRS Service will not exceed three (3) times the maximum Fees payable by the Customer for the WRS Service in any given month before the claim arose (or any period less than that extrapolated out to a month where WRS Service commenced less than a month before the claim);
2. a party’s liability to the other party under or in connection with the WRS Service is reduced to the extent, if any, to which the other party’s acts or omissions cause or contribute to its own loss or damage.

B6.2  The parties agree to take all reasonable steps to mitigate any loss incurred by them arising out of the WRS Service.

ANNEXURE C – FOUNDU API

C1.  Application of this Annexure

This Annexure applies (in addition to the General Terms) where foundU grants the Customer use of (or in any event any personnel of the Customer uses) the foundU API.

C2.  Definitions

In addition to the definitions in the General Terms, in this Annexure, unless the context requires otherwise:

Customer Terms has the meaning given in clause C3.1.

User Data means data, content or information of any individual contained on the Platform, including where such data is aggregated across more than one individual.

C3.  Customer or Third Party Use of this Feature

C3.1  The Customer must ensure that:

1. the Customer and its personnel only use the foundU API to enable Customer Applications to access or interface with Your Platform;
2. all Customer Applications proposing to access the foundU API require users to be legally bound to specific terms of use and a privacy policy (Customer Terms) and which are publicly available to users of the Customer Application; and
3. all third parties and contractors the Customer proposes to permit to access the foundU API for any reason enter into a binding legal agreement with the Customer or with foundU agreeing to the terms of this Annexure, including terms that they may not use any data accessed via the foundU API other than to simply provide it to you.

C3.2  If you allow a Customer Application to access the foundU API to retrieve any User Data, you must:

1. access only the minimum data fields the Customer Application needs to work properly; and
2. ensure the User Data is collected, processed, transmitted, maintained and used in accordance with (in addition to all terms of this Agreement) the Customer Terms, all relevant Law and reasonable measures that protect the privacy and security of the User Data.

C3.3  The Customer agrees:

1. that at all times, foundU retains all rights in relation to User Data and any other data or content contained on the Platform (but foundU does not hold any rights in relation to Customer Applications other than contractual rights as set out in this Agreement);
2. to follow all reasonable directions and instructions given by foundU about the use of the foundU API;
3. to provide foundU with a reasonable number of copies of or other access to Customer Applications;
4. to grant foundU a paid-up, royalty-free, non-exclusive, worldwide, irrevocable licence to:
   1. investigate, use and display the Customer Application and their content for foundU’s internal testing purposes (including security testing) and for making the Customer Applications available to End Users; and
   2. link to and direct End Users to the Customer Applications;
5. not to allow the Customer Applications to be run in a live environment nor to access live data on the Platform until foundU has given unconditional written consent to the Customer to do so.

C3.4  You agree that all access by you or by anyone else to the foundU API is at your or their sole risk and will under no circumstances lead to the incurring of any liability by foundU.

C4.  Fee Free Access

Unless the parties agree otherwise, there is no fee payable for access to the foundU API.

C5.  foundU Responsibilities

C5.1  No Obligation: foundU may, but is not required to, provide you or any other person with support or modifications for the foundU API, and has no obligation to fix or respond to errors any person may encounter in seeking to access the foundU API.

C5.2  Documentation: foundU may, in its discretion and without liability to any person:

1. add, remove or modify any features of the foundU API;
2. impose additional or reduce eligibility requirements or restrictions for access to the foundU API; or
3. discontinue access to the foundU API.

C5.3  Modification: If foundU modifies the foundU API, you may be required to use the modified version, which may not be compatible with all or any Customer Applications developed using previous versions.

C5.4  Changes Without Notice: foundU is not obliged to give any person notice of changes it makes to any aspect of or access to the foundU API and will not bear any liability to any person in relation to having made any such changes without notification.

C6.  Indemnity

You are responsible to foundU and will indemnify, defend (at foundU’s request) and hold harmless each of foundU and its affiliates and their respective directors, officers, employees, agents, contractors, End Users and licensees for any loss, costs (including reasonable legal fees), expense or damage any of them suffers or incurs arising out of:

1. your use of the foundU API; or
2. Customer Applications and your relationships or interactions with any users or third-party distributors of the Customer Applications.

 

 

ANNEXURE D – FOUNDU SMS SERVICE

D1.  Application of this Annexure

This Annexure applies (in addition to the General Terms) where the Customer requests and foundU grants to the Customer (which foundU may grant or refuse at its sole discretion) access to the SMS Service.

D2.  Definitions

In addition to the definitions in the General Terms, in this Annexure, unless the context requires otherwise:

Fee means, unless the Order provides otherwise, the sum of 5 cents per SMS communication sent or received using the SMS Service.

Service Provider means a third party engaged by foundU to provide the SMS Service (currently, SMSGlobal Pty Ltd).

SMS Service means the messaging service foundU may make available through Your Platform and which is provided by foundU or a Service Provider.

D3.  Customer and Users Use of this Feature

D3.1  You agree that by using the SMS Service, you are agreeing to the SMSGlobal Terms or such other Service Provider terms of which foundU notifies you in writing, in addition to the terms of this Agreement.  

D3.2  You agree:

1. to ensure that the content of any SMS communications are not for an illegal purpose or violate a person’s right of privacy or contravene any applicable Law;
2. to keep your username and password always protected and secure from unauthorised use, and that foundU and the Service Provider are entitled to treat any access by or use of your username and password as access by you;
3. not to send any SMS communications that are defamatory, offensive, abusive, indecent, explicit, menacing or harassing or cause damage or injury to any person or property, or contravene any applicable Law, or may result in the release of a computer virus, Trojan horse or harmful computer code, or that are misleading or deceptive.

D4.  foundU Responsibilities

foundU will:

1. provide the Customer with passwords and usernames enabling access to the SMS Service from Your Platform within three (3) Business Days of receiving the Customer’s request to activate the SMS Service;
2. request that the Service Provider allows you to send SMS communications via the SMS Service using the usernames and passwords provided by us pursuant to the above paragraph;
3. procure that the Service Provider provides (and you acknowledge that foundU will not be providing) support for the SMS Service.

D5.  Fee Increase

D5.1  Notwithstanding clause 12.4(a) of the General Terms, foundU may increase the Fee for the SMS Service by giving the Customer 30 days written notice, after which the Fee is increased in accordance with that notice.

D5.2  Delivery of the notice under clause D5.1 does not constitute delivery of a Proposed Fee Increase under the General Terms.

 

 

 

 

Last updated 29 October 2024