TERMS OF BUSINESS
These are the standard Terms of Business for the use of ebilities, a web based assessment platform of Lewis Cadman Consulting Pty Ltd, a company incorporated in Australia (ABN 43068339739) whose principal place of business is Paramount Building, 55 Brisbane Street, Surry Hills, NSW, 2010, Australia (“LCC”).
LCC reserves the right to change these Terms of Business at any time without prior notice to you, so please check them regularly. Any new features that improve or supplement ebilities, including the release of new material and/or functionality, shall be subject to these Terms of Business and continued use of ebilities after their introduction, shall constitute acceptance of such.
In the event of any conflict between these Terms of Business and those elsewhere, these Terms of Business shall prevail.
By using or accessing ebilities, you agree to be bound by these Terms of Business, together with our Ethics Guidelines and our Privacy Policy that govern the relationship between LCC (“us”) and ebilities users (“you”). If you do not agree to these Terms of Business, Ethics Guidelines and/or Privacy Policy, do not use ebilities or its associated services.
1. Definitions
1.1 “Ability” means a person’s cognitive abilities, including their general mental ability.
“Assessment” means a series of questions, made available via the Service, designed to be answered by Test Takers to assess Ability and/or Personality.
“Credits” means any pre-paid credits purchased by Customers or issued to Customers to enable Users to request Assessments and receive ebilities Reports.
“Customers” means an entity or individual who has contracted with LCC for subscription to ebilities and the Service (who may or may not be a User and whose account has not been suspended or terminated); a Customer may use ebilities for free on a trial basis, but may also be a purchaser of a subscription to ebilities and the Service; Customers may be referred to herein as “you” or “they”.
“Data” means any and all data gathered via ebilities and/or LCC by use of the Service and/or any other functions of ebilities, and includes Personal Data.
“ebilities” means LCC’s proprietary web-based assessment platform known as ebilities, or any successor to such platform, together with the Service and any other services or functions associated therewith and made available to Customers, as owned and controlled by LCC.
“ebilities Report(s)” means LCC proprietary reports which shall be generated after completion by Test Takers of Assessments, and delivered to Test Takers and/or Customers, as applicable, via ebilities and which shall integrate data from the results of Assessments.
“Information” means any data, facts and other information about you, including actions you take, and includes Data and Personal Data.
“Materials” means all electronic products and materials available via ebilities, including Assessments and ebilities Reports.
“Personal Data” means all data relating to a living person who can either be identified by such data or who can be identified by such data and other information which is in the possession of ebilities and/or LCC and/or its licensors; such Personal Data may include: User registration information; Test Taker responses to Assessments; Test Taker scores derived from such responses; personal details given by or about Test Takers and Users (e.g. age, gender, education, qualifications, occupation, etc); other information given and comments provided by Users.
“Personality” means a typical style of behaviour as assessed by a series of questions made available via the Service;
“Service(s)” means the service, available through ebilities, to which Customers subscribe, for the online evaluation and selection of Test Takers based on Ability and/or Personality assessment determined through completion by Test Takers of Assessments
“Test Taker” means an individual who is registered by a Customer to use the Service in order to complete Assessments.
“User” means a user or administrator who is registered to use the Service (whose account has not been suspended or terminated). A User may be the Customer or may be an individual acting on behalf of a Customer where such Customer is an entity; Users may be referred to herein as “you” or “they”.
1.2 The headings in these Terms of Business are for convenience, and do not affect the interpretation of the provisions.
2. Customer subscription eligibility
2.1 In order to be eligible to subscribe for ebilities, you must be a legal entity or a living person of 18 years of age or more.
2.2 Each Customer, whether a legal entity or person, may only maintain one account but may register an unlimited number of Users.
2.3 Any individual subscribing to ebilities on behalf of a Customer that is a legal entity shall have, and be deemed, by LCC, to have, all requisite authority to act on behalf of such Customer in entering into binding contractual obligations.
3. Registration and use of ebilities by Users
3.1 Use of ebilities is subject to these Terms of Business, our Ethics Guidelines and Privacy Policy. In the event that a Customer and/or User fails to comply with any of them, we reserve the right to refuse or suspend access to ebilities and the Service and/or to terminate your subscription to ebilities in accordance with clause 10.
3.2 Whilst use of our Materials available via ebilities does not require qualification in use of psychometric instruments, Customers shall adhere to the ethical use guidelines relating to our Materials contained in the Ethics Guidelines. Where further information on the ethical use of psychometric instruments is required, contact us ask@ebilities.com
3.3 Customers shall not substitute or replace use of the ebilities Reports for Customer’s independent professional qualified assessment and judgment in assessing Test Takers for employment or related purpose. ebilities Reports are not intended to be a replacement to the usual pre-employment checks performed by employers, including without limitation, interview, references and criminal records bureau and right to work checks.
3.4 If a User ceases to be an employee of, or associated with, its employer (the Customer), the Customer shall inform us as soon as reasonably possible, and we shall delete the name of the individual from our register of Users. For the avoidance of doubt, if the Customer fails to inform us of any change to its list of permitted Users, and a former employee or associate of the Customer continues to use ebilities, the Customer shall be and remain liable for any such use of ebilities.
4. Subscription payment terms
4.1 Your subscription to ebilities shall commence on the day you subscribe to the Service and will continue until expiry, according to the relevant subscription model subscribed to, unless earlier terminated by either party in accordance with clause 10 or extended by renewal of subscription.
4.3 Subscription for the Service (after expiry of any trial) shall be invoiced as one payment and is non-refundable.
4.4 There will be no refunds, reimbursements or credit for partial months of subscription, upgrade/ downgrade refunds, nor will there be any refunds, reimbursements or credits in the event of early cancellation or termination of subscription by a Customer for months or partial months which remain within the subscription term or for unused Credits.
4.5 Prices for subscription to the Service shall be at the prevailing rates provided to the Customer by LCC or its licensors. GST or other applicable taxes according to jurisdiction will be added to the price where applicable.
5. Credits
5.1 Credits shall have a duration of use of twelve (12) months from the date of purchase, subsequent to which any unused Credits shall expire. Credits shall be utilised on a first purchased-first used basis.
5.2 Credits are non-refundable.
5.3 In the event that Credits are issued by LCC as part of a trial or other offer, for which the price is integrated into the trial or offer, the duration of use of such Credits shall be limited to 14 days (14) days, subsequent to which any such Credits that are unused shall expire.
5.4 Only when a Test Taker fully completes the Assessment does ebilities record a Credit as having been used. Uncompleted orders do not result in a Credit being deducted from the Customer’s subscription.
6. User obligations
6.1 The Customer and User shall use ebilities, the Service and the Materials only in accordance with all applicable laws and regulations, and in compliance with these Terms of Business, Ethics Guidelines and Privacy Policy.
6.2 The Customer and any User acknowledge that they will not give, sell, or otherwise dispose of, the Materials, or any part of the Service, to third parties or act as agent or distributor of the Materials or Service. Any on-selling or any unauthorized use, reproduction or modification of the Materials and/or Service is strictly prohibited.
6.3 The Customer and any User may not make use of any information (including Data and Personal Data) collected as a result of the Customer’s use of ebilities to create products for commercial sale or other commercial exploitation.
6.4 The Customer and any User shall comply with the Ethics Guidelines.
6.5 Where a Customer is an entity with Users within its employ, it shall ensure that any and all Users comply with the obligations set out in clauses 6.2 to 6.4 as if such Users were the Customer.
6.6 The Customer shall indemnify LCC and/or its licensors in the event that LCC or any of its licensors suffer any losses, claims, liabilities, damages, expenses or costs as a result (whether direct or indirect) of any breach by the Customer or any associated User(s), of clauses 6.2 to 6.5.
6.7 The Customer shall further indemnify LCC and/or its licensors in respect of any claims brought by a Test Taker or User of the Customer against us or our licensors in relation to the Customer’s use of ebilities, the Service and/or the Materials.
6.8 All Customers shall be required, in using Materials to verify any local requirements and/or restrictions on using psychometric tests in general and the Materials in particular, in that jurisdiction, whether imposed by law, regulation or by a local regulatory or governmental body, as well as end-user, end-use and destination restrictions which may be issued by any other government. Where any local requirements and/or restrictions exist that prevent use of Materials within a particular jurisdiction, it shall be the responsibility of the Customer to ensure that it fully complies with any and all local requirements and/or restrictions.
6.9 Where any individual or entity uses Materials in a particular jurisdiction in contravention of any local requirements and/or restrictions, as referred to in Clause 6.8, whether knowingly or inadvertently, such individual or entity shall be solely responsible and liable for such use and shall hold harmless and indemnify LCC in respect of any loss or claim by a third party against LCC arising from such. Further, in the event that a Customer has failed to ensure that any Materials may be legitimately used within a particular jurisdiction and subsequently purchases Materials for use in that jurisdiction, such Customer shall be liable for the costs thereof, and LCC shall bear no responsibility or liability for return of such Materials or the reimbursement of any associated costs.
7. Intellectual property
7.1 ebilities, the Service and the Materials are owned by, or licensed to, LCC and LCC owns and/or licenses from third parties all proprietary rights therein including all trademarks, patents, rights to inventions, copyright, moral rights, design rights, business names and domain names, rights in get-up and trade dress, database rights, goodwill and the right to sue for passing-off, including know-how and trade secrets, whether registered or unregistered, and any other intellectual property rights therein, subsisting now or in the future in any part of the world.
7.2 Your subscription to ebilities and the Service gives a Customer and/or User(s) no rights in or to, other than the licence to use, the intellectual property in ebilities, the Service or the Materials.
7.3 No proprietary notice, including any copyright or trademark notices, shall be removed from any version or copy of the Materials.
7.4 ebilities, the Service and/or the Materials may not be resold, rented, lent, leased, exchanged, given or otherwise disposed of to third parties unless permission is expressly granted in writing by LCC.
7.5 Neither Customers nor Users shall be permitted to modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based on ebilities, the ebilities website, the Service and/or the Materials.
7.6 Reproduction of ebilities, the Service and/or the Materials, in whole or in part, in any form or media, by any process (including posting on the internet or any intranet, unauthorised emailing, being stored in a retrieval system, or transmitted in any form or by any means, whether electronic, mechanical, photocopying, recording or otherwise), is prohibited except where: (i) expressly permitted by law; or (ii) such reproduction is for the purposes of using ebilities in accordance with these Terms. For the avoidance of doubt:
7.6.1 reproduction of Assessments is not permitted; and
7.6.2 any ebilities Reports copied, may only be copied a reasonable number of times and only used for the purpose of internal record-keeping and other similar purposes related directly to the applicable Test Takers.
8. Term of Subscription; Cancellation and termination of subscription; Effects of termination
8.1 The term of subscription shall commence on receipt of a subscription order and will continue until expiry, according to the relevant subscription model subscribed to, or earlier terminated in accordance with this clause 8, or extended by renewal of subscription.
8.2 Any cancellation or termination of subscription to ebilities by a Customer, during the subscription term, shall automatically cancel and terminate any associated User’s access to ebilities and the Service. Upon such cancellation or termination, all User-generated content and other Customer content may be deleted from ebilities and shall not be accessible or recoverable. Any loss or damage caused by deletion of any such User-generated content or other Customer content as a result of such cancellation shall be solely the responsibility and liability of the Customer.
8.3 LCC may suspend or terminate your subscription to ebilities: (i) forthwith in the event of any actual or threatened breach by a Customer or its associated Users of these Terms of Business or Ethics Guidelines or Privacy Policy; or (ii) upon thirty (30) days written notice to you at will. In such event, you will be notified of such suspension or termination. Such suspension or termination may result in the de-activation or deletion of all User-generated content and other Customer content, Data and other Information, and, where termination is for cause under this clause 10.3 (i), forfeiture of all such Customer content, Data and other Information.
8.4 Upon cancellation or termination of subscription, Customer and any and all associated Users shall immediately cease all use of ebilities and the Service.
8.5 Any cancellation or termination of subscription by a Customer or User during the term of subscription, and any termination by LCC pursuant to clause 10.3 (i) shall not entitle the Customer to any refund, reimbursement or credit of subscription in relation to any months or partial months which remain within the subscription term or for unused Credits.
8.6 Refunds may be provided by LCC, at its sole discretion, in the event that LCC terminates the Service pursuant to clause 10.3(ii) without cause.
8.7 Termination or expiry of your subscription shall not terminate the obligations of Customers and Users in respect of LCC’s intellectual property rights, indemnity and data protection and clauses 7, 9 and 10 shall survive any such termination or expiry.
9. Undertakings and Disclaimers of Warranties
9.1 LCC warrants that it has the right to make the Service available to Customers and undertakes to endeavour to ensure that ebilities, the Service and Materials are available to Customers and Users and updated as reasonably necessary.
9.2 THE FOREGOING WARRANTY IS THE ONLY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, GIVEN BY LCC IN RELATION TO USE OF EBILITIES, THE SERVICE AND/OR THE MATERIALS. EBILITIES, THE SERVICE AND MATERIALS ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS AND WE MAKE NO WARRANTY, EXPRESS OR IMPLIED, OTHER THAN AS EXPRESSLY SET OUT HEREIN, GIVEN BY LCC IN RELATION TO USE OF EBILITIES, THE SERVICE AND/OR THE MATERIALS. FURTHER AND, EXCEPT AS EXPRESSLY SET OUT IN THESE TERMS OF BUSINESS, LCC EXCLUDES TO THE FULLEST EXTENT PERMITTED BY LAW ALL WARRANTIES, REPRESENTATIONS, TERMS, CONDITIONS AND UNDERTAKINGS, WHETHER IMPLIED BY STATUTE, COMMON LAW, CUSTOM, TRADE USAGE, COURSE OF DEALING OR OTHERWISE. LCC EXPRESSLY MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO THE ACCURACY, COMPLETENESS, CURRENCY, PERFORMANCE, FITNESS FOR PARTICULAR PURPOSE OR NON-INFRINGEMENT OF EBILITIES, THE SERVICE AND/OR MATERIALS OR OTHER DOCUMENTATION PROVIDED PURSUANT TO EBILITIES AND THE SERVICE AND/OR THESE TERMS INCLUDING NO WARRANTY THAT EBILITIES OR THE SERVICE WILL OPERATE IN A TIMELY MANNER, WITHOUT INTERRUPTION OR DELAY OR BE ERROR- OR VIRUS-FREE OR THAT ANY DEFECTS CAN OR WILL BE CORRECTED. FURTHERMORE, WITHOUT LIMITATION, LCC DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF EBILITIES, THE SERVICE OR MATERIALS OR OTHER DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, MEETING OF CUSTOMER REQUIREMENTS, OR OTHERWISE.
9.3 The Customer warrants and undertakes to be fully responsible and liable for all of its acts and omissions and those of its associated Users as if such acts or omissions had been its own. The Customer shall indemnify and hold harmless LCC against any claim, demand, suit, damages, or judgment, including reasonable attorney’s fees, costs and expenses incurred, arising, or alleged to have arisen, out of the use of ebilities, the Service and/or the Materials by Customer or any of its associated Users, including in relation to any Customer or User-generated content, or which may be sustained or suffered by or secured against or imposed by reason of breach of any of the Customer’s or User’s obligations under these Terms of Business.
10. Liability and limitations
10.1 Our liability arising under or as a result of the provision or use of ebilities, the Service and/or the Materials, whether in contract, tort, breach of statutory duty or otherwise, will be limited to one of the following, at LCC’s discretion:
10.1.1 replacement of the goods or services; or
10.1.2 reimbursement of the price paid by the Customer for subscription to ebilities and the cost of any associated Service, within the prior twelve (12) month period.
10.2 Nothing in these Terms will exclude or limit our liability for death or personal injury caused by our negligence, or for any fraud on our part, or for any liability that cannot be excluded by law.
10.3 SUBJECT TO CLAUSE 10.2, WE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSS, OR SPECIAL DAMAGES FOR LOSS OF BUSINESS, PROFIT, REVENUE, DATA OR GOODWILL, OR FOR THE COST OF PROCUREMENT OF REPLACEMENT GOODS OR SERVICES, OR FOR LOST OR WASTED MANAGEMENT TIME OR THE LOST TIME OF OTHER EMPLOYEES ARISING FROM THE CUSTOMER AND/OR USER’S USE OF EBILITIES, THE SERVICE AND/OR THE MATERIALS (WHETHER DIRECT OR INDIRECT) OR ARISING OUT OF THE USE OR INABILITY TO USE EBILITIES, THE SERVICE AND/OR THE MATERIALS, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF ADVISED OF SUCH.
10.4 We will not be liable to any Customer or User or third party for any loss or damage caused to any Customer or User or third party for any content made available by any Customer or User.
10.5 We will not be liable to any Customer or User or third party for any loss or damage caused by any ebilities modification or price variation, interruption to or loss of service, or for any content or loss of content, Data or other Information as a result of suspension or termination of subscription to the Service except where such loss of content, Data or other Information is caused directly and solely by termination by LCC without cause.
10.6 We have no liability for the inability of any User to access ebilities, any aspect of the Service that form part of ebilities at any time. We reserve the right to carry out maintenance and development on ebilities, which may cause interruption.
10.7 We do not warrant or represent that the use of ebilities, the Service and/or ebilities Reports is a replacement for Customer’s independent professional qualified assessment and judgment in assessing Test Takers. ebilities and the use of ebilities Reports are not intended to be, and LCC shall have no responsibility or liability for, replacement to the usual pre-employment checks performed by employers, including without limitation, interview, references and criminal records bureau and right to work checks.
10.8 We do not make any representation or warranty regarding any linked sites. We will not be liable to any Customer or User in relation to any linked site or your use thereof.
10.9 Except as expressly set out in these Terms of Business, we exclude to the fullest extent permitted by law all warranties, representations, terms, conditions and undertakings, whether implied by statute, common law, custom, trade usage, course of dealing or otherwise.
11. General
11.1 These Terms of Business, together with our Ethics Guidelines and Privacy Policy which are supplemental to, and made a part hereof, contain the entire agreement between the parties regarding ebilities, unless otherwise stated here or therein, and are binding on the Customer and any associated User.
11.2 If we fail to enforce, or delay enforcement of, any of these Terms of Business, it will not be considered a waiver of our rights to do so.
11.3 In the event that any provision of these Terms of Business shall be declared to be invalid by any court of competent jurisdiction, such invalidity shall not render any other provision invalid, and the balance of the Terms of Business shall continue in full force and effect and shall be binding on the parties hereto.
11.4 LCC will not be liable to you for any lack of performance, or unavailability or failure of ebilities, the Service and/or Materials or any failure or delay by to comply with these Terms, where such lack, unavailability or failure arises from any cause beyond our reasonable control.
11.5 No provision of these Terms shall be enforceable by any person who is not a party to these Terms unless otherwise expressly provided herein.
11.6 LCC reserves the right to change these Terms of Business at any time without prior notice to you, so please check them regularly.
11.7 These Terms of Business and all contracts entered into with LCC in relation to ebilities and the Service, are governed by the laws of England and Wales. You agree to submit to the jurisdiction of the courts of England.
12. Further information
Please contact ask@ebilities.com if you require assistance or have questions about any of these Terms of Business.