Welcome to Employee Life, an online cloud based service which helps employees, managers and organisations to improve day-to-day performance, customer satisfaction, employee productivity and overall business performance. These Terms of Use are intended to explain our obligations as a service provider and your obligations as a customer. Please read them carefully.
This Agreement is binding on any use of the Service and applies to You from the time that Optimum Consulting provides You with access to the Service.
The Employee Life Service will evolve over time based on user feedback. This Agreement is not intended to answer every question or address every issue raised by the use of the Employee Life Service. Optimum Consulting reserves the right to change this Agreement at any time, effective upon the posting of modified terms on the Website and Optimum Consulting communicating these changes to You via email. It is likely this Agreement will change over time. It is Your obligation to ensure that You have read, understood and agree to the most recent terms of this Agreement available on the Website. If any changes to the Agreement are detrimental to You and You do not agree to the changes you may terminate the Agreement by giving Optimum Consulting 30 days' written notice of the termination. You will remain liable for any Access Fees payable up to the date of termination.
By registering to use the Service You acknowledge that You have read and understood this Agreement and have the authority to act on behalf of any person for whom You are using the Service. You are deemed to have agreed to this Agreement on behalf of any entity for whom You use the Service.
This Agreement was last updated on 20 September 2013.
- DEFINITIONS
"ACL" means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) as amended or replaced from time to time.
"Agreement"
means these Terms of Use together with Your Quote (if any)
"Access Fee"
means the monthly or annual fee (excluding any taxes and duties) payable by You in accordance with clause 3, the amount of which is set out in Your Quote or if there is no Quote, set out in the fee schedule published on the Website (which Optimum Consulting may change from time to time on notice to You).
"Confidential Information"
includes all information exchanged between the parties to this Agreement and designated as being confidential, whether in writing, electronically or orally, including the Service, Quote and any preferential pricing for the Service, but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
"Data"
means any information or data inputted by You or with Your authority into the Website.
"Intellectual Property Right"
means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
"Invited User"
means any person or entity, other than the Subscriber, that uses the Service with the authorisation of the Subscriber from time to time.
"Optimum Consulting"
means Optimum Consulting Group Pty Ltd which is a privately owned company in Queensland, Australia.
"Quote"
means the quote (if any) provided by Optimum Consulting and accepted by You which sets out the number of employees and the amount of the Access Fees.
"Service"
means the online Employee Life engagement survey services made available (as may be changed or updated from time to time by Optimum Consulting) via the Website.
"Subscriber"
means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
"Website"
means the Internet site at the domain www.employeelife.com or any other site operated by Optimum Consulting.
"You"
means the Subscriber, and where the context permits, an Invited User. "Your" has a corresponding meaning.
- USE OF SOFTWARE
(a) Optimum Consulting grants You the right to access and use the Service via the Website with the particular user roles available to You according to Your subscription type. This right is non-exclusive, non-transferable, and limited by and subject to Your compliance with this Agreement. You acknowledge and agree that, subject to any applicable written agreement between the Subscriber and the Invited Users, or any other applicable laws:
(i) the Subscriber determines who is an Invited User and what level of user role access to the relevant organisation and Service that Invited User has;
(ii) the Subscriber is responsible for all Invited Users’ use of the Service.
(b) Your rights to use the Service via the Website includes one free trial use by You to survey up to 10 employees. Once you have exceeded the limit of 10 employees, You must pay an Access Fee in accordance with clause 3 below.
3. YOUR OBLIGATIONS
3.1 Payment obligations:
(a) Where there is a Quote, An invoice for the Access Fee will be issued annually or quarterly (as specified in Your Quote) starting from the date You accept the Quote.
(b) Subject to clause 3.1 (a) and the terms of an applicable Quote, where You have exceeded Your trial allowance of 10 employees, Optimum Consulting will issue you an invoice based on the fee schedule set out on the Website starting from the date on which you exceed Your trial allowance.
(c) All invoices will include the Access Fee for the forthcoming period of use. This will be every three months unless otherwise specified in a Quote..
(d) Optimum Consulting will continue invoicing You until this Agreement is terminated in accordance with clause 8.
(e) All Optimum Consulting invoices will be sent to You, or to a billing contact whose details are provided by You, by email. You must pay or arrange payment of all amounts specified in any invoice by the due date for payment (that is, within 7 days of the invoice date). You are responsible for payment of all taxes and duties in addition to the Access Fee.
3.2 Preferential pricing or discounts:
(a) You may from time to time be offered preferential pricing or discounts for the Access Fees as a result of the number of organisations (such as Your related bodies corporate) (Your Organisations) or the number of employees that You have added to the Service or that have been added with Your authority or as a result of Your use of the Service.
(b) Eligibility for such preferential pricing or discounts is conditional upon Your acceptance of responsibility for payment of any Access Fees by Your Organisations. Separate invoices will be sent to each of Your Organisations for payment of the Access Fees that reflect the number of employees for each of Your Organisations. However, if any invoices are not paid by one or more of Your Organisations, and without prejudice to any other rights that Optimum Consulting may have under this Agreement or at law, Optimum Consulting may at its sole discretion:
(i) render to You invoices for the full (non-discounted) Access Fees due; and
(ii) suspend or terminate Your use of the Service in respect of any or all of Your Organisations.
3.3 General obligations:
You must only use the Service and Website for Your own lawful internal business purposes, in accordance with this Agreement and any notice sent by Optimum Consulting or condition posted on the Website. You may use the Service and Website on behalf of others or in order to provide services to others but if You do so You must ensure that You are authorised to do so and that all persons for whom or to whom services are provided comply with and accept all terms of this Agreement that apply to You.
3.4 Access conditions:
(a) You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify Optimum Consulting of any unauthorised use of Your passwords or any other breach of security and Optimum Consulting will reset Your password and You must take all other actions that Optimum Consulting reasonably deems necessary to maintain or enhance the security of Optimum Consulting's computing systems and networks and Your access to the Services.
(b) As a condition of this Agreement, when accessing and using the Services, You must:
(i) not attempt to undermine the security or integrity of Optimum Consulting's computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;
(ii) not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;
(iii) not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
(iv) not transmit, or input into the Website, any: files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
(v) not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website except as is strictly necessary to use either of them for normal operation.
3.5 Usage Limitations:
Use of the Service may be subject to limitations, including but not limited to monthly transaction volumes You are permitted to make against Optimum Consulting’s application programming interface. Any such limitations will be advised.
3.6 Indemnity.
You indemnify Optimum Consulting against: all claims, costs, damage and loss arising from Your breach of this Agreement or any obligation You may have to Optimum Consulting, including (but not limited to) any costs relating to the recovery of any Access Fees that are due but have not been paid by You.
- CONFIDENTIALITY AND PRIVACY
4.1 Confidentiality:
Unless the relevant party has the prior written consent of the other or unless required to do so by law:
(a) Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with this Agreement. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by this Agreement.
(b) Each party's obligations under this clause will survive termination of this Agreement.
(c) The provisions of clauses 4.1.a and 4.1.b shall not apply to any information which:
(i) is or becomes public knowledge other than by a breach of this clause;
(ii) is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
(iii) is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
(iv) is independently developed without access to the Confidential Information.
4.2 Privacy:
Optimum Consulting maintains a privacy policy that sets out the parties’ obligations in respect of personal information. You should read that policy at www.employeelife.com/privacy/ and You will be taken to have accepted that policy when You accept this Agreement.
- INTELLECTUAL PROPERTY
5.1 General:
Title to, and all Intellectual Property Rights in the Services, the Website and any documentation relating to the Services remain the property of Optimum Consulting (or its licensors).
5.2 Ownership of Data:
(a) Title to, and all Intellectual Property Rights in, the Data remain Your property. However, Your access to the Data is contingent on full payment of the Optimum Consulting’s Access Fee when due.
(b) You grant Optimum Consulting a:
(i) a non-transferrable royalty-free licence to use, copy, transmit, store, and back-up Your Data for the purposes of enabling You to access and use the Services and for any other purpose related to provision of services to You; and
(ii) a perpetual, irrevocable, transferrable royalty free licence (including a right to sublicense) to use the Data in a de-identified form for the purposes of benchmarking Your and Your Organisations' data with other organisations' data (Benchmark Data). In return, Optimum Consulting will grant you access to the Benchmark Data for your internal purposes for the period of the Services
(c) Where the Data is not Your Data, you agree to obtain a licence for Optimum Consulting to use the Data on the same terms as the licence granted by You in clause 5.2 (b).
6. WARRANTIES AND ACKNOWLEDGEMENTS
6.1 Authority:
You warrant that where You have registered to use the Service on behalf of another person (such as your employer), You have the authority to agree to this Agreement on behalf of that person and agree that by registering to use the Service You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of this Agreement, without limiting Your own personal obligations under this Agreement.
6.2 Acknowledgement:
You acknowledge that:
(a) You are authorised to use the Services and the Website and to access the Data that You input into the Website, including any Data input into the Website by any person You have authorised to use the Service. You are also authorised to access the processed Data that is made available to You through Your use of the Website and the Services (whether that Data is Your own or that of anyone else).
(b) Nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. If You use the Services or access the Website on behalf of or for the benefit of anyone other than Yourself (whether a body corporate or otherwise) You agree that:
(A) Optimum Consulting's refusal to provide any person access to Your Data in accordance with this Agreement,
(B) Optimum Consulting making available Data to any person with Your authorisation.
(i) You are responsible for ensuring that You have the right to do so;
(ii) You are responsible for authorising any person who is given access to Data, and You agree that Optimum Consulting has no obligation to provide any person access to such Data without Your authorisation and may refer any requests for information to You to address; and
(iii) You will indemnify Optimum Consulting against any claims or loss relating to:
(c) The provision of, access to, and use of, the Services is on an "as is " basis and at Your own risk.
(d) Optimum Consulting does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. Optimum Consulting is not in any way responsible for any such interference or prevention of Your access or use of the Services.
(e) It is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used.
6.3 No warranties and exclusion of implied obligations
(a) To the fullest extent permitted by law Optimum Consulting provides no warranties concerning the Services, including any warranty that the Services will meet Your requirements or will be suitable for any particular purpose.
(b) To the fullest extent permitted by law, all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied by custom, under the general law or by statute are expressly excluded under this Agreement. .
6.4 Business use:
(d) You warrant and represent that You are acquiring the right to access and use the Services for the purposes of a business.
7. LIMITATION OF LIABILITY
7.1 To the fullest extent permitted by law, Optimum Consulting's liability to You arising directly or indirectly under or in connection with this Agreement or the performance or non-performance of this Agreement and whether arising under any indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity is limited as follows:
(a) Optimum Consulting will have no liability whatsoever to You for any loss, harm, damage, cost or expense (including legal fees) in relation to loss of contract, loss of profit or revenue, loss of savings, loss of opportunity, loss of production, production stoppage or loss of data or any loss, harm, damage, cost or expense in the nature of special, indirect or consequential loss or damage; and
(b) the aggregate of Optimum Consulting's liability to You is otherwise limited to an amount not exceeding the total Access Fees paid by You in the 12 months period prior to the loss or damage arising.
7.2 To the extent permitted by section 64A of the ACL, Optimum Consulting's liability to You for a failure to comply with a guarantee under the ACL is limited to supplying the Services again or payment of the cost of having the Services supplied again.
- TERMINATION
8.1 Trial policy
When You first sign up for access to the Services You can evaluate the Services under the defined trial usage conditions, with no obligation to continue to use the Services. If You choose to continue using the Services thereafter, You will be billed from the day You first added Your billing details into the Services or from acceptance of a Quote, whichever occurs first.
8.2 Prepaid Subscriptions
Optimum Consulting will not provide any refund for any remaining prepaid period for a prepaid Access Fee subscription.
8.3 No-fault termination:
This Agreement will continue for the period covered by the Access Fee paid or payable under clause 3.1. At the end of each billing period this Agreement will automatically continue for another period of the same duration as that period, provided You continue to pay the prescribed Access Fee when due, unless either party terminates this Agreement by giving written notice to the other party at least 30 days before the end of the relevant payment period. If You terminate this Agreement You shall be liable to pay all relevant Access Fees on a pro-rata basis for each day of the then current period up to and including the day of termination of this Agreement.
If Optimum Consulting is not in breach of this Agreement but You are not satisfied with the Service, Your sole and exclusive remedy is to terminate this Agreement in accordance with this clause 8.3.
8.4 Breach:
If You:
(a) breach this Agreement (including, without limitation, by non-payment of any Access Fees) and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
(b) breach this Agreement and the breach is not capable of being remedied (which includes (without limitation) any breach of clause 3.4 or any payment of Access Fees that are more than 30 days overdue); or
(c) You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed over any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction,
Optimum Consulting may take any or all of the following actions, at its sole discretion:
(d) Terminate this Agreement and Your use of the Services and the Website;
(e) Suspend for any definite or indefinite period of time, Your use of the Services and the Website;
(f) Take either of the actions in sub-clauses (d) or (e) of this clause 8(4) in respect of any or all other persons whom You have authorised to have access to the Service.
For the avoidance of doubt, if payment of any invoice for Access Fees due in relation to any of Your Billing contacts, billing plans or any of Your Organisations (as defined at clause 3) is not made in full by the relevant due date, Optimum Consulting may: suspend or terminate Your use of the Service, and the authority for all or any of Your Organisations to use the Service.
8.5 Accrued Rights:
(a) Termination of this Agreement is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:
(i) remain liable for any accrued charges and amounts which become due for payment before or after termination; and
(ii) immediately cease to use the Services and the Website.
(b) On termination of this Agreement and upon request by You, Optimum Consulting will provide you with a copy of the de-identified Data as soon as reasonably practicable and in a form it considers fit as long as it can be read by You.
Expiry or termination:
Clauses 3.1, 3.6, 4, 5, 6, 7, 8 and 10 survive the expiry or termination of this Agreement.
- HELP DESK
9.1 Technical Problems:
In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting Optimum Consulting. If You still need technical help, please check the support provided online by Optimum Consulting on the Website or failing that email us at elsupport@ogroup.com.au.
9.2 Service availability:
Whilst Optimum Consulting intends that the Services should be available 24 hours a day, seven days a week, it is possible that on occasions the Services or Website may be unavailable to permit maintenance or other development activity to take place.
If for any reason Optimum Consulting has to interrupt the Services for longer periods than Optimum Consulting would normally expect, Optimum Consulting will use reasonable endeavours to publish in advance details of such activity on the Website.
- GENERAL
10.1 Entire agreement:
This Agreement and the terms of any other notices or instructions given to You under the Agreement, supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between You and Optimum Consulting relating to the Services and the other matters dealt with in this Agreement.
10.2 Waiver:
If either party waives any breach of this Agreement, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
10.3 Delays:
Neither party will be liable for any delay or failure in performance of its obligations under this Agreement if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
10.4 Severability:
If any part or provision of this Agreement is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
10.5 Notices:
Any notice given under this Agreement by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Optimum Consulting must be sent to support@myemployeelife.com or to any other email address notified by email to You by Optimum Consulting. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.
10.6 Rights of Third Parties:
A person who is not a party to this Agreement has no right to benefit under or to enforce any term of these Terms.
10.7 Governing law
This Agreement is governed by the law applicable in the State of Queensland. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of the State of Queensland.