These Terms & Conditions of Service (“Terms”) constitute an agreement relating to the provision of behavioural assessment tools and human resources services and related tools by HR Profiling Solutions Limited (“Company”) to the client, a recipient of services provided by the Company (“Client”).
PROVISION OF SERVICES
- The Company will provide the behavioural assessment tools and associated human resources products and services (including without limitation Extended DISC® and FinxS assessments, any services through any websites linked to the Company, any content on the Company’s website or such other websites or any services obtained through the Company’s website or such other websites) as described in these Terms or in the associated reseller agreement or licence agreement or any other attached document or otherwise as requested orally or in writing by the Client from time to time (“Services”). Where there is a direct conflict between these Terms and the associated reseller agreement or licence agreement, the reseller agreement or licence agreement shall take precedence. The Client in availing the Services provided by the Company agrees to be bound by these Terms.
- In providing the Services, the Company will exercise the reasonable degree of skill, care and diligence normally expected of a competent professional and in accordance with any applicable laws or regulations.
- Where the Services are acquired for the purpose of a business, the provisions of the Consumer Guarantees Act 1993 will not apply and are excluded from these Terms.
- Except as provided in the Consumer Guarantees Act 1993 (if applicable) or as expressly provided for under these Terms, all other descriptions, representations or conditions as to the fitness or suitability of the Services for any purpose, are expressly excluded.
- The Client may request variations to the Services. All requests and responses under this clause must be in writing.
FINXS ONLINE PLATFORM
- The Client may have access to or provide its customers with access to the FinxS online platform as part of the Services provided by the Company. Access to the FinxS online platform will be through an account provided by the Company. If the FinxS online platform account of a Client is inactive for a period of two years from the date the account was last accessed, the account and all of the data contained on that account will be automatically permanently deleted and the Services are deemed to have been terminated. For clarity, on termination under this clause, any unused credits or points on the account are forfeited and no refunds shall be issued. The Client is responsible for ensuring it has retained the data it requires from its FinxS online platform account prior to a period of inactivity and has advised its customers of this feature of the FinxS online platform.
TERMS OF PAYMENT
- The Client shall pay the Company’s fees for the Services and all expenses and disbursements at the times and in the manner set out in these Terms and any attached documents. Unless otherwise stated, all fees and expenses and disbursements for products and services provided in New Zealand are in New Zealand Dollars (NZD) and for products and services provided in Australia or in any other country are in Australian dollars (AUD). All fees, expenses and disbursements for products and services provided by the Company are exclusive of the goods and services tax as applicable in the relevant jurisdiction (GST) and will have GST added when invoiced.
- Where the Client is party to a licence agreement or reseller agreement with the Company, payment for Services must be made prior to the Services being provided or as otherwise specified in the licence agreement or reseller agreement.
- In all other circumstances, all fees for the Services, other fees, expenses and amounts payable by the Client shall be paid within seven days of the date of the Company’s invoice. Notwithstanding this provision the Company may at its sole discretion require payment from the Client before providing any Services.
- Unless otherwise agreed by the Company, all fees, expenses and amounts payable shall be paid to the Company by direct credit (aka Electronic Funds Transfer).
- Late payment of all fees, expenses or amounts payable by the Client shall constitute a default. In the event of a default by the Client, the Company reserves the right to suspend access to the Services, including the FinxS online platform or terminate the Services including the FinxS online platform, if payment (including without limitation any overdue fees, expenses, amounts or default interest) is not received in full within 14 days from the Company’s written request to the Client. In addition the Company shall have the right to repossess any points credited to the account of the Client that remain unpaid by the Client or on termination, demand payment of any unpaid fees, expenses or amounts that remain payable by the Client. The Client will be liable for default interest on overdue or unpaid amounts from the date payment falls due until the date of payment at the rate of 12% per annum (calculated daily). The Client will also be liable for any costs and expenses (including legal and debt collection costs) resulting from any actions taken by the Company to recover the debt.
CODE OF ETHICS
The Company shall not be responsible in any way for the actions of the Client or its customers taken in relation to the Services provided by the Company. However, the Client shall ensure that both the Client and its customers comply with the Company’s Code of Ethics set out below, in relation to the Extended DISC products or other reports generated on the FinxS online platform provided as part of the Services:
- Extended DISC® products provided as part of the Services are designed to complement the interview, reference checks and other sound hiring practices and should never be used:
Alone in making a hire/no hire decision;
As the sole or principal cause or excuse for not hiring;
As the sole or principal cause or excuse for transferring or promoting candidates for hire; or
As the sole or principal cause or excuse for termination or cessation of employment.
Extended DISC® and FinxS Reports must be treated as confidential material, and must not be further analysed, interpreted, discussed or revealed, except directly with the candidate of the Extended DISC® and or FinxS assessment and/or with other employees of the Client on a ‘need to know’ basis and in accordance with the Client’s privacy obligations.
- The Client accepts full responsibility for compliance with privacy law obligations and maintaining the confidentiality of the Extended DISC® and FinxS assessments accessed by them or in their possession.
- The Client shall be responsible for determining and reviewing their own job requirements, qualifications, selection procedures and job relativity, employment procedures and decisions, to ensure compliance with all requirements of applicable law.
- The Client shall be responsible, when marketing and selling Extended DISC products or access to the FinxS online platform to a customer, for providing accurate information relating to the assessment products and services and their recommended uses, known inappropriate uses and limitations of assessment products and services.
- The Client shall be responsible for recommending and ensuring that no assessments are administered, amended or analysed and used in situations that are misleading and/or prejudicial for members of various groups in our society for reasons of race, ethnicity, gender, age, disability, language background, socioeconomic status, religion or national origin.
- The Client shall be responsible to take every precaution to avoid actions or conditions that would permit or encourage individuals or groups to invalidate the assessments.
- The Client shall be responsible for informing all their customers, prior to their administration of the system/s, of the purposes, uses and consequences of Extended DISC® and/or FinxS products, explain how the assessment information will be analysed and computed, how the assessments will be kept on file, who will have access to the assessment, how the assessments will be distributed, and candidates’ rights before, during and after the assessment.
- The Client shall be responsible for making their customers aware of and obtaining their agreement to comply with this Code of Ethics.
LIMITATION OF LIABILITY
- The Company makes no representation, warranty or guarantee whatsoever with regard to the Services and accepts no responsibility in relation to the actions taken by the Client or its customers in relation to the Services provided by the Company.
- The Client warrants that it has not relied upon any representation made by the Company and the Client further acknowledges and agrees that it engages the Services of the Company on its own judgement and initiative and not in reliance on any express or implied statement, warranty or representation of the Company or any of the Company’s agents, officers or employees.
- To the extent permitted by law, the liability of the Company, its affiliates, its licensors, service providers, employees, agents, officers or directors, whether in contract, in tort or otherwise, in respect of all claims for loss, damage, expenses or injury arising under or in connection with these Terms, from any cancellation of these Terms or from any negligence, misrepresentation or other act or omission on the part of the Company, its representatives, agents or sub-contractors shall not in aggregate exceed the fees payable for the Services or $2,000, whichever is the lesser amount.
- The Company its affiliates, its licensors, service providers, employees, agents, officers or directors shall not be liable for any loss of profits or any consequential, indirect or special loss, damage or injury of any kind arising under or in connection with these Terms or from any cancellation of these Terms or the Services or from any negligence, misrepresentation or other act or omission on the part of the Company, its representatives, agents or sub-contractors.
- To the maximum extent permitted by law, if the Company is found liable to the Client (whether in contract, tort or otherwise), and the Client or a third party has contributed to the loss or damage, the Company shall only be liable to the proportional extent of its own contribution.
- In Australia the Company does not exclude or limit in any way the Company’s liability to the Client where under Australian Consumer Law, it would be unlawful to do so. Where the Company’s liability cannot be excluded, the Company limits its liability as set out in clause 23 and to the fullest extent permitted by the Australian Consumer Law.
CLIENT’S LIABILITY AND INDEMNITY
- The Client warrants that it has the full authority to engage the Company to provide the Services.
- The Client indemnifies the Company from and against any and all damages, claims, losses, demands, liabilities (including vicarious liability), injuries, suits, actions, judgments, costs and expenses of any kind whatsoever (including, without limitation, legal fees, service costs and costs of recovering unpaid amounts) arising out of or in any way connected with the Client’s own or its customers’ breach of these Terms particularly and without limitation clauses 30 to 40.
- The provision of Services will not operate so as to transfer or vest in the Client any trade mark, patent, copyright or other intellectual property. All intellectual property rights in respect of the Company and the Services provided by the Company remain the Company’s or in the case of the Company’s suppliers; the applicable supplier’s or owner’s property and the Client may not use, reverse engineer, interfere with or alter the intellectual property in any way.
All users of the FinxS online platform or other Services provided by the Company, who are natural persons (“Individuals”) irrevocably authorise:
The Company to collect, retain and use such information about that Individual as the Company may necessarily require for the purposes of:
- Providing the Services to the Client;
- Carrying out credit checks, assessing the Client’s credit worthiness or responding to any credit enquiry about the Client;
- Dealing with requests, enquiries or complaints and other customer care related activities and all other general administrative and business purposes;
- Enforcing the Company’s rights under these Terms;
- Marketing any services provided by the Company and carrying out market and product analysis and research;
- Carrying out any activity in connection with any legal, governmental or regulatory requirements that the Company is subject to or in connection with legal proceedings, crime or fraud prevention, detection or prosecution; and
- Any other purpose as consented to by that Individual in writing from time to time,
(collectively referred to as the “Purposes”).
- Any person or entity to provide the Company such information as the Company may necessarily require about that Individual for the Purposes;
The Company to disclose information about an Individual as necessarily required for the Purposes, or as otherwise authorised by that Individual, including to:
- Third parties who provide products or services related to the Services that the Company provides, such as dealers and suppliers;
- Credit reference agencies;
- Third parties to whom the Company may be required to disclose information by reason of legal, governmental or regulatory authority or where the Company believes in good faith that disclosure is necessary to protect or enforce the Company’s rights or the rights, property or safety of others;
- Trusted third parties to provide services or perform functions on the Company’s behalf; and
- To any other third party where that Individual has given its express consent for the Company to do so.
- The Company to collect, retain and use such information about that Individual as the Company may necessarily require for the purposes of:
- In addition to clause 31, the Company shall be entitled to collect, use and disclose information about an Individual where authorised by the individual or permitted by law.
- An Individual is entitled to request access to and correction of any such information held about them by the Company.
- The Company will maintain reasonable security safeguards to protect an Individual’s information and take reasonable steps to ensure an Individual’s information is not disclosed to an unauthorised person or entity.
- The Company will retain an Individual’s information for so long as is reasonably necessary to fulfil the Purposes for which it was collected, including for the purposes of satisfying any legal, regulatory, tax or accounting requirements.
- If an Individual fails to provide any information that is reasonably requested by the Company, that Individual acknowledges that the Company may not be able to provide the Services to the Client.
- Any information about an Individual that is collected by the Company will be held by the Company. The Company’s address is 159 Postman Road, Dairy Flat, Auckland 0794, New Zealand.
- The Client shall be solely responsible for ensuring that both the Client and its customers comply with all relevant privacy obligations, including the European Union General Data Protection Regulation (GDPR), and the New Zealand Privacy Act 2020 or the Australian Privacy Act 1988, including the Australian Privacy Principles (APP’s), as relevant.
- The Client acknowledges that the Company will receive an email copy and/or have access to all reports generated using the FinxS online platform and other Services. The Company will comply with its privacy obligations with respect to such information.
TERMINATION OR SUSPENSION OF SERVICES
- If not terminated earlier, these Terms and the Services expire on completion of the Services. In the event of expiry, the Company shall retain any data including personal information for a period of no longer than 30 days. The Client is solely responsible for ensuring it has retained the data it requires from its FinxS online platform account prior to expiry of its account.
- In the event of the late payment of any fees, expenses or amounts payable by the Client, the Company may suspend or terminate the Services iin accordance with clause 11.
Subject to clause 39, the Company may immediately terminate the Services at any time by written notice to the Client, if the Client:
commits a Material Breach of any of the Terms and either:
- the breach is irremediable; or
- the breach is remediable, and the Client fails to remedy that breach within a period of 14 days after the Client has, or is deemed to have, received written notice requesting it to do so;
- repeatedly breaches any of Terms in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these Terms.
- commits a Material Breach of any of the Terms and either:
For the purposes of clause 43(a), a Material Breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the Company would otherwise derive from.
Termination shall not prejudice or affect the accrued rights or claims of either party
- The parties shall meet and discuss in good faith any dispute between them arising out of the Terms.
If the discussions fail to resolve the dispute within 14 days’ after the dispute has been notified in writing to the other party, any party may (by written notice to the other party) require that the dispute be submitted for expert determination by a single expert nominated by the President for the time being of Auckland District Law Society. In the event of any such submission to expert determination:
- The determination of the expert shall be final and binding on the parties; and
- The cost of the expert for the purposes of their determination shall be shared equally between the parties.
The Company shall not be liable for any breach of these Terms in the event of force majeure, being any failure or delay in the provision of Services or any other breach of these Terms caused by strike, industrial dispute, natural disaster, shortage or unavailability of reports, failure of any of the Company’s suppliers to supply reports or other related products, delay in transmission of reports or related products, import restrictions, legislative, governmental or other prohibition or restriction, fire, flood, pandemics, hostilities, commotions or any other causes whatsoever (whether similar to the foregoing or not) beyond the Company’s reasonable control (“Force Majeure Event”).
If the Company considers that a Force Majeure Event has occurred and the Company will be unable to perform the Services as a result of a Force Majeure Event, the Company will promptly notify the Client of that fact and may suspend the Services. Any suspension of the Services by the Company will be limited to the period during which the Force Majeure Event continues. Where the provision of the Services by the Company has been suspended for a period of 30 consecutive days or more, the Company may immediately terminate the Services by giving written notice to the Client.
Each notice or other communication under these Terms is to be made in writing by personal delivery or by post to the addressee at the address, and marked for the attention of the person or office holder (if any), from time to time designated for the purpose by the addressee.
A communication will be deemed to be received:
In the case of a letter, on the seventh Working Day after posting;
In the case of personal delivery, when delivered; and
In the case of emails upon delivery to the recipient’s last known email address provided that no notification of failed delivery has been received by the sender, provided that any notice given after 5:00pm or on a day which is not a Working Day shall be deemed to be given at 9:00am on the next Working Day.
- Subject to clause 1 of these Terms, these Terms set out the entire agreement and understanding between the parties and merges all prior discussions between them. No party will be bound by any conditions, warranties or representations except as expressly provided in these Terms or the associated reseller agreement or licence agreement.
- Any waiver, delay or failure to execute any rights by the Company shall not be deemed a waiver of that right or any further or other right of the Company. No waiver is effective unless it is in writing.
- If any provision of these Terms is, or becomes, unenforceable, illegal or invalid for any reason, the relevant provision shall be deemed to be modified to the extent necessary to remedy such unenforceability, illegality or invalidity or if this is not possible then such provision shall be severed from these Terms, without affecting the enforceability, legality or validity of any other provision of these Terms.
- The Client may not assign its rights and obligations under these Terms without the Company’s written consent.
- The Company reserves the right to update or change these Terms at any time. The Company will notify the Client of any amendment to these Terms in writing. By continuing to engage the Services after any such amendment, the Client is deemed to have agreed to the amended terms.