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 Terms
PART A
GENERAL TERMS AND CONDITIONS OF USE
YOUR DUTIES, RIGHTS AND OBLIGATIONS AS A NIFNEX USER
1.INTRODUCTION
This page contains the General Terms and Conditions of Use and Special Terms and Conditions of Use (together and separately the Terms) under which you (User) may access and use the Nifnex Site and the Nifnex Services (each of which is defined below).
2.NO REPRESENTATIONS OR WARRANTY
Without in any way limiting any other disclaimers of representation, warranty and or guarantee set out expressly or by implication in these Terms, Nifnex does not make any representation whatsoever as to the quality, nature and fitness for purpose of any products and or services provided by third persons (including, without limitation, advertisers) through or on the Nifnex Site, or any other representation, warranty or guarantee. Any such representation, warranty and or guarantee would be a matter to be agreed between the User and the third person.
3.GENERAL EXPLANATION
THE TERMS CONSTITUTE A LEGAL AND BINDING AGREEMENT BETWEEN YOU THE USER AND NIFNEX PTY LTD (ACN 145 474 853) (NIFNEX) AND ARE DEEMED TO BE, AND ARE, ACCEPTED BY YOU THE USER EACH TIME THAT YOU THE USER USES OR ACCESSES THE NIFNEX SITE AND OR THE NIFNEX SERVICES.
The Nifnex Site is any website under Nifnex's ownership and or control (in whole or in part) and includes, without limitation, the website at www.nifnex.com.au and on and from which the Terms are made available, published, accessed or accessible (Nifnex Site). The Nifnex Site contains a number of services, including but not limited to an on-line service for:
(a) candidates register and upload their profiles and to promote themselves through the Nifnex Site;
(b) employment recruiters to promote their publications;
(c) employers to seek candidates who may (subject to the employer's undertaking their own due diligence enquiries on each and every occasion) match their criteria and needs;
(d) advertisers to advertise employment and business related goods and services which may be of interest to candidates, recruiters and employers; and
(e) models advertise themselves and their personal profiles on the Nifnex Site and on occasions as and when Nifnex approves, in any Nifnex publication
(together and separately the Nifnex Services).
Employers, recruiters, and advertisers are required to pay fees to and Nifnex is entitled to receive fees in accordance with Nifnex's scale of fees and charges for the Nifnex Services they use.
The Nifnex Site also allows Users to create their own individual profiles, which may include limited personal information (User Profiles), and to make these User Profiles, or aspects thereof, public. Under no circumstances must any part of any publically accessible User Profiles contain any personal information which could or may reasonably identify the User or contain any information or means to contact the User (other than through Nifnex).
The Terms include the Nifnex Privacy Statement which is incorporated into these Terms by express reference. Users are strongly advised to read the Terms in full and very carefully. If a person wishing to use the Nifnex Site and or Nifnex Services does not understand the Terms (or any part) and or does not accept the Terms (or any part), the User must not access and or use the Nifnex Site and or the Nifnex Services. If a person uses or continues to use the Nifnex Site and or Nifnex Services, they are and are deemed to be a User and irrevocably agree, or is deemed to agree, to be bound by the Terms (including the Nifnex Privacy Statement).
Nifnex reserves the right to alter, vary or modify the Terms (including the Nifnex Privacy Statement) at any time by uploading a revised version on this page of the Nifnex Site. It is strongly recommended that the User visits this page regularly to review the latest version of the Terms because they apply to and irrevocably bind the User.
Any breach or non-compliance by a User with the Terms will likely lead to the suspension or termination of the offending User's access to, and use of, the Nifnex Site and the Nifnex Services, at Nifnex's sole and absolute discretion.
4.MINIMUM REQUIREMENTS FOR ACCESS
Any User who is under 18 years of age or the age of majority and contractual capacity (in the jurisdiction in which the User is situated) must not use and or access the Nifnex Site and or the Nifnex Services, except with the express written consent and supervision of a parent or a legal guardian.
5.ACCESS TO AND USAGE OF CONTENT
(a) Nifnex authorises the User to access a single copy of the materials on the Nifnex Site solely for the User's own personal use and in accordance with the Terms.
(b) All materials on the Nifnex Site, for example text, pictures, audio, video, information, designs, layout and other materials (together and separately the Nifnex Materials) are governed by the laws of Australia (including but limited to those laws concerning copyright and trademark). The User must not in any way interfere with, alter or modify the Nifnex Materials (and the intellectual property contained therein).
(c) The Nifnex Materials (including the underlying source code) are the property of, and belong exclusively to, Nifnex. For the avoidance of doubt, the User is not granted any licence or interest in or over the intellectual property in the Nifnex Materials under the Terms.
(d) Any improper or unauthorized access to and or use of the Nifnex Materials may constitute an actionable breach of law (including Australian law) and is strictly prohibited.
(e) The User must not alter any part of the Nifnex Materials (including the underlying source code) or sell, reproduce, distribute or use the Nifnex Materials in any way without first obtaining Nifnex's prior written consent on each occasion. This restriction does not apply to User Materials (as that term is subsequently defined in these Terms) properly and lawfully uploaded on the Nifnex Site by a User in compliance with these Terms.
(f) The User is granted a limited licence on the Terms to access and use the Nifnex Site and the Nifnex Materials and to download or print one copy of the Nifnex Materials solely for the User's own personal and non-commercial use.
(g) Except for the User Materials, the User must not use any of the Nifnex Materials in or on any website or other digital environment.
(h) The User must not use any data mining or extraction devices to obtain any part of the Nifnex Materials.
(i) If the User does not comply strictly with the Terms in relation to the access to and use of the Nifnex Site and or the Nifnex Materials, the licence granted under the Terms is immediately terminated without notice.
(j) Despite and without limiting Nifnex's rights under paragraph (i) or as a matter of law, the licence granted under the Terms is revocable by Nifnex at any time without notice and regardless of cause.
6.RESTRICTIONS ON USAGE
(a) The User must not access or use the Nifnex Site to upload, distribute or destroy any materials, including the Nifnex Materials:
(i) in breach of any applicable laws (including with respect to privacy laws);
(ii) in a way that will infringe the intellectual property, property or privacy of Nifnex or other third parties; and or
(iii) that is immoral, obscene, abusive or defamatory.
(b) The User must not breach or try to breach the integrity and security of the Nifnex Site, including but not limited to, attempting to:
(i)access information that does not belong to the User or is not intended for the User; and
(ii)interfere with the provision of the Nifnex Services to any other User.
Nifnex will investigate any such occurrences that may amount to a breach of the Terms and or any applicable laws and will cooperate with the appropriate authorities to prosecute any offending person.
(c) In order to ensure the best possible experience for all Users, Nifnex reserves the right, in its absolute discretion, to limit the amount of information (including User profiles) that may be accessed by the User and the duration for which such access may be granted in any given time period. Nifnex reserves the right to vary, alter or modify the time periods from time to time.
7.USER'S ACCOUNT
The User:
(a) is required to create a Nifnex account when the User registers with Nifnex. The User will be required to provide particular information, including but not limited to the User's full name, address and contact details (together and separately User Information); and
(b) acknowledges and accepts that Nifnex may offer third party services and products to the User through the Nifnex Site based on the information provided by the User at any time while the User's registration with Nifnex is and remains current.
8.CONFIDENTIALITY
(a) It is the responsibility of each User to keep safe and maintain the confidentiality of their User account, User registration, User profile and User passwords. The User must not disclose any of their personal and confidential information with any other person at any time and or for any purpose.
(b) The User is responsible for any access to and use of the Nifnex Site and Nifnex Services using its User account or User profile, regardless of whether access and use is actually authorised by the User. The User must immediately notify Nifnex in writing if it comes to know of any unauthorised use of the User account, User profile or User passwords.
9.OWNERSHIP OF THE USER PROFILE AND USER INFORMATION
The User acknowledges and agrees that the User has no property in and or ownership of the User profile and User Information, and that property and ownership of the User profile vests in Nifnex upon its uploading onto the Nifnex Site.
10.DELETION OF USER INFORMATION UPON TERMINATION
(a) Nifnex reserves the right to terminate this licence and the access to, and use of, the Nifnex Site and Nifnex Services after a 3 month period of inactivity. Nifnex may, but is not obliged to, provide the User with an email notice as to the date on which the User account and User profile will be terminated. Upon termination, Nifnex reserves the right, in its sole and absolute discretion, to delete and erase the User account, User profile and any and all User information provided by or on account of the User save to the extent required for auditing or record keeping purposes (if any).
(b) If the User account is terminated at the request of the User or by Nifnex:
(i) all User account information, including User profiles, curriculum vitae, covering letters and saved information (including as to jobs) will, subject to paragraph (a), be deleted from the Nifnex Site;
(ii) the User account information may continue to be accessible on the Nifnex Site for a time after termination on account of the time lag required for the information to be removed from the Nifnex Site and servers. If after 3 months there is User account information which continues to be accessible on the Nifnex Site, the User may make request in writing to Nifnex for the User account information to be removed from the Nifnex Site and servers; and
(c) the User acknowledges and accepts that third persons may have retained copies of the User Information and that Nifnex has no liability and or responsibility for and the User releases Nifnex absolutely from anything that third person does or does not do with, arising from or connection with the User Information.
11.USE OF NIFNEX SITE AND NIFNEX SERVICES
The User's access to and use of the Nifnex Site and or the Nifnex Services is subject to any other prior written agreement that the User has or may have with Nifnex.
PART B
TERMS APPLICABLE TO ALL USERS, INCLUDING CANDIDATES, EMPLOYERS, RECRUITERS AND ADVERTISERS
1. NEGATIVE PROMISES
A User must not:
(a) abuse or misuse the Nifnex systems and infrastructure (including the Nifnex Site);
(b) use any tool to search or navigate the Nifnex Site other than those made available on the Nifnex Site;
(c) deconstruct or otherwise reverse engineer any part of the Nifnex Site;
(d) except with the prior written consent of Nifnex, reproduce or transmit the Nifnex Materials from the Nifnex Site (in whole or in part) for or to any third person or for any purpose not specifically authorised under the Terms;
(e) link the Nifnex Materials or the Nifnex Site to any other website or digital media;
(f) upload any information or materials that deal with, concern or promote illegal or immoral activities or activities either not contemplated by the Terms or prohibited (expressly or by implication) by the Terms;
(g) except in the case of employment recruiters, create a User profile or upload any curriculum vitae on behalf of another person;
(h) direct or refer any contact from Nifnex or an employer to any agent or representative of the User;
(i) share or make known any User account, User Information or User passwords to any third person;
(j) upload or submit to the Nifnex Site any incomplete, false, misleading, deceptive or inaccurate information about the User (or any other person) or information which is not about the User or which does not belong to the User;
(k) upload any content which has restricted access or contains hidden information or graphics which, amongst others, tends to disclose the User's identity or User's contact information;
(l) obtain or try to obtain User account information, passwords or other information which might identify other Users or their contact information;
(m) vary, alter, modify or remove any materials or information uploaded by Nifnex or any other User on the Nifnex Site;
(n) disturb or harass or cause disturbance or harassment to Nifnex, any other User or third person;
(o) make or attempt to make any unauthorised contact with any User for any purpose including, without limitation, sending of unsolicited junk mail or e-mail to Users;
(r) upload any materials that are or may be offensive (including any which relates to race, ethnicity and or discrimination of persons or groups of persons or organisations), illegal, immoral or obscene, as determined by Nifnex in its reasonable discretion;
(s) use the Nifnex Site or Nifnex Services for any unlawful, immoral or improper purpose; and
(t) promote any false, deceptive or misleading information, illegal, immoral or improper conduct or activities.
2. FALSE OR MISLEADING OR DECEPTIVE CONDUCT BY A USER
If Nifnex is presented with, alerted to or obtains information which leads Nifnex to reasonably believe that a User has not been truthful about themself, their profile or their business experience and or activities or that misrepresentations have been made in relation to same, this will be treated as a breach of the Terms and Nifnex will have the right to terminate the User's access to and use of the Nifnex Site and Nifnex Services.
3. FURTHER TERMS APPLICABLE TO USER PROFILES
(a) A User profile must not contain any:
(i)internet hyperlinks;
(ii)hidden keywords, repeated keywords or other keywords that in any way identify the User or which would allow other Users to contact the User concerned or access his or her personal information;
(iii)any false, misleading or deceptive information about the User or any other person, including, without limitation, the User's educational and professional qualifications, entitlement to reside and work in Australia as well as work experience; or
(iv)irrelevant, illegal, immoral or offensive material or information.
(b) Nifnex reserves the right, in its absolute discretion, to remove or delete any User profile from the Nifnex Site, which does not comply with the paragraph (a) or if any information or content is uploaded to the Nifnex Site that Nifnex reasonably believes may be harmful or detrimental to Nifnex or its business.
4. USER CONTENT AND MATERIALS
(a) The User is solely responsible for their User account information, User profiles, and materials uploaded to the Nifnex Site (User Materials).
(b) By virtue of the User uploading their User Materials to any public area of the Nifnex Site, including without limitation, message boards and contests, the User grants Nifnex and its affiliates an irrevocable, royalty-free, perpetual and non-exclusive right (including all moral rights) and worldwide licence to use, copy, reproduce, modify, adapt, publish, translate, communicate to the public, perform, display, and distribute the User Materials and to assign or transfer that right or licence.
(c) The User represents and warrants to Nifnex that the:
(i) uploading of User Materials to the Nifnex Site does not breach the intellectual property rights of any other person; and
(ii) User has the right to grant the licence referred to in paragraph (b).
(d) If the User uploads any User Materials to the Nifnex Site, the User irrevocably permits any other User to access, store and reproduce the User Materials for personal and non-commercial use.
(e) The User acknowledges and accepts that Nifnex:
(i) is simply a means for the online distribution, publication and exchange of User Materials;
(ii)has no obligation to screen and will not be screening User Materials prior to or consequent upon its uploading onto the Nifnex Site; and
(iii)is not responsible for screening, monitoring or censoring User Materials uploaded by Users.
(f) Despite paragraph (e), Nifnex may, on its own volition or upon written request, review and remove any User Materials that, in its absolute discretion, Nifnex believes:
(i) breaches the Terms or any law of Australia;
(ii) is offensive or illegal; or
(iii) breaches or threatens to breach the rights and interests of other Users of the Nifnex Site and Nifnex Services.
(g) Nifnex reserves its right to expel Users and prevent their further access to and use of the Nifnex Site and the Nifnex Services for their breach of the Terms and any law.
(h) Nifnex reserves its right to take action with respect to User Materials that it deems necessary or appropriate, if it believes that User Materials could expose Nifnex to liability or otherwise damage its reputation and business interests.
(i) Nifnex does not represent, warrant or guarantee the truthfulness, accuracy or reliability of User Materials content or any other communications uploaded by Users. Further, Nifnex does not endorse any opinions expressed by Users. The User acknowledges that any reliance on materials uploaded by other Users will be at the User's sole risk.
(j) Any User profile created or submitted must accurately describe the User, an individual person. Despite that a User profile is being created on behalf of a separate business entity (in the case of an employer or an advertiser), the User must be an individual person who is authorised to act on behalf of the business entity concerned.
(k) User profiles must not be created for non-existent persons or inappropriate entities, for example, inanimate objects or animals.
(l) Although full information about the User must be provided to Nifnex at the time of registration of the account and the creation of the User profile, the User must not include in the User profile any information that could identify the User or provide any means of contacting the User (for example, telephone numbers, street addresses, email addresses etc) (Prohibited Information). Nifnex will automatically generate a reference number for the User profile. This reference number will provide the means, amongst others, for employers to select candidates that match their requirements and criteria.
(m) If a User profile contains Prohibited Information or if Nifnex has any reasonable belief that the information in the User profile is not accurate, Nifnex will have the absolute right to make whatever changes it deems fit to the User profile and will have no liability and the User will have no claim against Nifnex for any cost, loss damage or expense suffered or incurred by the User arising from and or in connection with any Nifnex generated changes.
(n) While Nifnex will endeavour to ensure that the information provided by User is reflected in the User's profile, there may be instances, due to oversight or system error, where there are errors, inconsistencies or differences from the information provided by Users. Nifnex will not be responsible or liable for any errors, inconsistencies and differences, and it is the sole responsibility of the User concerned to highlight the error to Nifnex for rectification.
5. CONTACT IN EVENT OF BREACH OF THIRD PERSON INTELLECTUAL PROPERTY RIGHTS
If any User or third person believes that any other User has appropriated or misused works and or materials in breach of their intellectual property rights the aggrieved person should contact Nifnex immediately and provide full written details of the breach. Nifnex's contact details are:
BY LETTER:
Nifnex Pty Ltd
PO Box 1186, Technology Park, BENTLEY WA 6983
BY EMAIL:
nifnex@nifnex.com.au
BY TELEPHONE:
1300 NIFNEX / 1300 643 639
6. TERMINATION OF ACCESS FOR INFRINGING A THIRD PERSONS INTELLECTUAL PROPERTY RIGHTS
(a) It is a condition on which access to and use of the Nifnex Site and the Nifnex Materials is granted that the User does not infringe the intellectual property rights of Nifnex or other third person. Nifnex reserves the right to immediately terminate the accounts of any User who infringes another person's intellectual property, and or to restrict their access to the Nifnex Site and the Nifnex Services.
(b) If a User is of the view that a wrongful complaint of breach of intellectual property rights has been made against them, the User is requested to contact Nifnex (through the means identified in the preceding clause) and provide full written details.
7. SCOPE OF SERVICES & NIFNEX LIMITATIONS
(a) The Nifnex Site is simply a forum for:
(i) candidates to upload their User profiles;
(ii) recruiters to upload User profiles of their candidates;
(iii) employers to search for candidates who match their requirements and criteria;
(iv)advertisers to provide related goods and services to the candidates, recruiters and employers; and
(v)models to advertise themselves and their personal profiles on the Nifnex Site and on occasions as and when Nifnex approves, in any Nifnex publication.
(b) Unless a written complaint is received by Nifnex and or Nifnex deems it necessary or desirable from time to time to do so, Nifnex does not and will not screen or censor the User Material.
(c) For a fee (paid in accordance with the then current Nifnex fee scale) a potential employer may request that Nifnex provide an introduction to up to 5 candidates who, according to the potential employer based on the User profiles, seem to match the employer's employment candidate requirements.
(d) If an employer so requires and on payment of the relevant fee (paid in accordance with the then current Nifnex fee scale), Nifnex may conduct limited scope background enquiries on the User candidate and each User candidate irrevocably and unconditionally authorises Nifnex to make those enquiries.
(e) If Nifnex's introduction of the 5 candidates to the employer leads to any 1 of them gaining employment with the employer within 6 months of the introduction, the employer must, on demand, pay a commission to Nifnex based on (paid in accordance with the then current Nifnex fee scale).
(f) Nifnex reserves the right, in its absolute discretion, to delete or remove User Material, uploadings, curriculum vitae or other material and information from the Nifnex Site from time to time. Despite this, Nifnex does not, in any way, assume any obligation to do so and, to the maximum extent permitted by law, disclaims and rejects any liability for failing to take any such action.
(g) Nifnex does not in any way screen, censor or monitor the User profiles or User Materials on the Nifnex Site. Nifnex has no control over the accuracy, reliability, completeness, or timeliness of the User profiles or User Materials uploaded to the Nifnex Site and makes no representations or warranties about any User profile or User Material.
(h) The Nifnex Site is revised and updated periodically as and when Nifnex considers it necessary or desirable to do so.
(i) Each User irrevocably acknowledges and agrees that the User is solely responsible for the substance, accuracy, completeness and truthfulness of their User profile and User Materials.
(j) Advertisers are solely responsible for their uploadings and advertisements on the Nifnex Site and in any (if any) Nifnex print publications and nothing in the Nifnex Site, Nifnex Materials or the Nifnex print publications and each User acknowledges and accepts no print publications has an endorsement of the advertisers or as a representation as to the quality, nature and suitability of the goods or services provided by those advertisers.
(k) Nifnex is not in any way responsible for any employment decisions made by Users.
(l) Nifnex does not guarantee or provide any warranty or make any representations as to any specific results from the use of the Nifnex Site, the Nifnex Services and or any Nifnex print publication, to any User.
(m) Users are advised to keep back-up copies of the User Materials. In no event shall Nifnex be liable for any loss, modification or removal of the User Materials from the Nifnex Site.
8. USER RISK
(a) There are risks, including the risk of physical, emotional and financial harm and loss and dealing with people who may act with malice or who may make false or misleading representations. Each User acknowledges and accepts all risks arising from and or in connection with any dealings with other Users with whom the User comes into contact through the use or misuse of Nifnex Site and or the Nifnex Services.
(b) Nifnex does not screen, censor or monitor User profiles and or User Materials and relies entirely on the honesty, integrity and completeness of the Users, their User profiles and or User Materials. By accepting these Terms each User acknowledges and accepts the risk that some User profiles and or User Materials may be misleading, deceptive, offensive, inaccurate and or incomplete and, in some cases, deliberately mis-stated or deceptively described. As such, each User is expected to exercise all care, due diligence and prudence when accessing and using the Nifnex Site and Nifnex Services and in dealing with other Users.
(c) The Nifnex Site and Nifnex Materials may contain errors, factual or typographical. Nifnex makes no representations about the truthfulness, reliability, completeness, or timeliness of the Nifnex Site or the Nifnex Materials. Access to, and use of, the Nifnex Site and the Nifnex Materials is entirely and solely at the User's risk and each User releases absolutely Nifnex from all claims, cost, loss damage and or expense suffered by, arising from and or in connection with the User's use of the Nifnex Site and the Nifnex Materials.
9. DEALINGS AND DISPUTES WITH OTHER USERS AND THIRD PERSONS
(a) Nifnex is not able to, and does not, confirm the identity of Users because identity verification over the internet is extremely difficult.
(b) If User has a dispute with one or more other Users, the User agrees to, and does, release Nifnex, its affiliates, officers, employees and agents from all claims, demands and damages (actual and consequential and direct and indirect) of every kind and nature, known and unknown, actual and unascertained, disclosed and undisclosed, arising out of or in any way connected with such disputes.
10. WARRANTIES
(a) Nothing in the Terms limit or exclude any conditions, warranties and undertakings mandated by the Trade Practices Act 1973 (Cth) and the Fair Trading Act 1987 (WA) to the extent they may apply to these Terms.
(b) No information, material or advice obtained by a User from Nifnex through the Nifnex Site will create or engender any warranty, guarantee or other similar rights, except and to the limited extent mandated by law or as expressly provided in the Terms.
(c) Subject to any limitations imposed by law, Nifnex does not and cannot warrant or assure that the Nifnex Site and or the Nifnex Services will operate error-free or that the Nifnex Site and or the Nifnex web servers are free of computer viruses or other harmful devices. If the User's use of the Nifnex Site or the Nifnex Materials results in the need for repairs to, or replacing of, equipment or data or any other costs, Nifnex is not responsible for those costs. The Nifnex Site and Nifnex Materials are provided on an "as is" basis without any warranties or representations of any kind except to the limited extent implied by law or provided for expressly in these Terms. To the maximum extent allowed by law, Nifnex disclaims and rejects all warranties, guarantees and representations, whether express or implied, whether oral or written. Further, Nifnex makes no warranties about the accuracy, reliability, completeness, or timeliness of the Nifnex Materials and or Nifnex Services.
11. LIMITATION OF LIABILITY
To the maximum extent permitted by law, the User agrees irrevocably and unconditionally with Nifnex that Nifnex's maximum liability arising out of or in connection with the Nifnex Site and the Nifnex Services, regardless of the cause of action (whether in contract, tort, breach of warranty or representation or otherwise), will not in any event exceed (a) the amount paid by the user to Nifnex; and (b) if no monies have been paid by the User, the sum of $200.00. This amount includes and takes into account any and all cost, loss and damage suffered or incurred by the User (including, without limitation, consequential damages, loss of profits, or damages on account of a loss of chance to find employment), whether based in contract, tort, warranty or any other legal basis, and regardless of whether Nifnex is advised of the possibility of such damages.
12. LINKS TO OTHER WEB SITES
The Nifnex Site may contain internet links to other third person websites. These links are provided merely as a convenience to the User and, as such, should not be construed as being an endorsement as to the reliability or suitability of the goods or services provided by those third person websites. If the User decides to access the linked third person websites or to undertake transactions at or through those third person websites, the User does so at the User's sole risk.
13. INDEMNITY
The User agrees irrevocably and unconditionally to indemnify and hold harmless Nifnex, its affiliates, and their respective officers, directors, employees and agents, from and against any claims, actions or demands, including legal fees on an indemnity basis, arising from:
(a) any User Materials or other material provided by a User to the Nifnex Site;
(b) the User's use of the Nifnex Materials; and
(c) the User's breach of the Terms,
except and to the extent that the deliberate act or gross negligence on the part of Nifnex solely gave rise to such a claim, action or demand.
14. GENERAL
Access Outside Australia
(a) The Nifnex Materials are meant to be accessed and used only within Australia. Accordingly, Nifnex makes no claims or representations that the Nifnex Materials may be lawfully accessed elsewhere.
(b) By accessing and using the Nifnex Site and Nifnex Services, the User warrants to Nifnex that the User has not breached Australian export control, anti-money laundering and terrorism related laws or has assisted another to do so in relation to the Nifnex Materials and Nifnex Services.
Governing Law and Jurisdiction
(a) The Terms are subject to and governed by the laws of the state of Western Australia.
(b) The User agrees with Nifnex that any claims or disputes arising under or in relation to the Terms will be heard exclusively before the state or federal Courts within Western Australia and that the User submits to the exclusive jurisdiction of the those Courts.
Severability
If at any time any term or provision of the Terms is or becomes illegal, invalid or unenforceable under any relevant law, then to the extent necessary to give effect to the Terms, that offending provision or term is to be read down or severed from the Terms so that the remaining terms or provisions remain valid and enforceable to the fullest extent permitted by law.
Waiver
No waiver or failure to enforce any provision of the Terms will be deemed to be a further or continuing waiver of that term or any other term and Nifnex will, in no way, be prejudiced or restricted from enforcing that Term.
Whole agreement
The User acknowledges and accepts that it enters into the Terms without reliance on any promise, representation, warranty or undertaking given by or on behalf of Nifnex in respect of the Nifnex Site, Nifnex Materials and or Nifnex Services and the terms and conditions set out in these Terms (as may be amended from time to time) and any current fee schedule provided by Nifnex comprise the whole agreement between Nifnex and the User concerning the access to, and use of, the Nifnex Site and Nifnex Services.
15. SUPPLEMENTARY TERMS
To the extent that the Nifnex Site incorporates or otherwise refers to materials of third person goods or service providers, the User unconditionally and irrevocably agrees to and agrees to be bound by all additional terms and conditions which apply to the access to, and use of, those third person goods or services.
16. APPLICABILITY OF TERMS AND TERMINATION
(a) The Terms will remain in full force and effect for the duration of the User's uses of and accesses to the Nifnex Site and or Nifnex Services.
(b) If a User breaches any of the Terms or Nifnex arrives at the view that it is unable, if Nifnex considers the need arises, to reasonably ascertain the veracity of any information:
(i) Nifnex will have the right to terminate the User's access to the Nifnex Site and Nifnex Services (A) with notice (by email or otherwise) where convenient or practicable (Termination Notice); or (B) without notice otherwise, at Nifnex's absolute discretion.
(ii) The User's account may be suspended by Nifnex at anytime from the time of the Termination Notice until (A) the User's account is terminated in accordance with this clause; or (B) Nifnex decides not to proceed with the Termination Notice or withdraws the Termination Notice.
(iii)The Termination Notice will contain particulars of the breach said to have been committed by the User. Nifnex will be entitled to terminate the provision of access to and use of the Nifnex Site and Nifnex Services without further notice if (A) the breach is not able to be remedied; (B) the User fails to remedy the breach within 7 days of the date of the Termination Notice; or (C) the User fails to respond to the Termination Notice within 7 days of the date thereof.
(iv) Once access to the Nifnex Site and Nifnex Services is terminated, Nifnex expressly reserves the right, at its absolute discretion, to exercise all its legal rights and remedies. Without in any way limiting what Nifnex is entitled to do, Nifnex can remove the User Profile and any User Materials uploaded to the Nifnex Site.
17. SURVIVAL OF TERMS
The Terms remain binding and effective on the User even if the User ceases use of and access to the Nifnex Site and or Nifnex Services to the extent that the continuation and survival is not repugnant to the cessation of use and access to the Nifnex Site and or Nifnex Services. Without limitation, the following clauses of the Terms remain binding and effective despite the User's cessation of use and access to the Nifnex Site and Nifnex Services, Part A in its entirety and Part B in its entirety.
PART C
SPECIAL TERMS AND CONDITIONS OF USE
These Special Terms and Conditions of Use are to be read together with the General Terms and Conditions of Use save that, in the event of any conflict, the Special Terms and Conditions of Use prevail.
C.1. Candidates
1. Each candidate is required to log into their User account at least once in 3 months, failing which Nifnex has the right to set the User profile as 'inactive' and or to delete the User profile and User account at its sole and absolute discretion.
2. No candidate must include within their User profile any information (hidden or otherwise) which could identify the candidate or provide the means by which the candidate can be contacted (except through Nifnex).
3. In addition to the candidate's User profile being uploaded on the Nifnex Site, Nifnex may, at its absolute discretion, also publish the User profile in its fortnightly (or whatever other frequency of publication Nifnex considers appropriate) print publication (if any).
4. Nifnex makes no assurances and the candidate accepts the position that Nifnex makes no claim or representation that the candidate will be able to find a job consequent upon registration with Nifnex or by virtue of the uploading of the candidate's User profile on the Nifnex Site or by the User profile being included (if at all) in the fortnightly (or whatever other frequency of publication Nifnex considers appropriate) print publication (if any).
5. A candidate who does not wish to be contacted in relation to possible job opportunities must set their User profile to 'Inactive'. If a candidate does not do so, they are deemed to be interested in receiving communications from Nifnex on possible job opportunities.
6. A candidate who desires additional publicity may seek to have their photograph published together with the candidate's profile in Nifnex's fortnightly (or whatever other frequency of publication Nifnex considers appropriate) print publication (if any). Nifnex, in its absolute discretion, will decide whether or not to accede to the candidate's request. In order for Nifnex to consider the request, the candidate must provide copies of their photograph and Australian driving licence or passport, together with a written request for consideration (setting out reasons why they should be featured, highlighting any particular information that ought to or ought not to be published in the print publication (if any)).
7. Nifnex makes no representation as to its fortnightly (or whatever other frequency of publication Nifnex considers appropriate) print publication and especially as to the enhancement or otherwise of the candidate's job prospects and reputation arising from the candidate being featured in Nifnex's print publication (if any).
8. The candidate agrees irrevocably that Nifnex will not be liable for any errors and inaccuracies in the User profile uploaded on the Nifnex Site and or the fortnightly (or whatever other frequency of publication Nifnex considers appropriate) publication (if any). It is the duty of each candidate to promptly bring to Nifnex's attention any errors and or inaccuracies and Nifnex will take reasonable steps to correct those errors and or inaccuracies and update the User's profile.
9. Nifnex will take reasonable steps to keep the candidate's personal information (other than that contained in the User profile) confidential. In no event will Nifnex release any information about the candidates which would identify the candidates to the employer without the prior consent (preferably by way of email) of the candidate concerned.
10. Despite Nifnex taking reasonable steps to conceal the identity of a candidate, it may be possible to ascertain the identity of a candidate (amongst others) from the candidate's previous place of employment. Except where Nifnex has acted deliberately or in a grossly negligent manner, Nifnex will not be liable for and a candidate will have no claim against Nifnex for any loss, cost, damage and or expense suffered or incurred by the candidate arising from the disclosure of the candidate's identity. The candidate acknowledges and accepts that the duty is on the candidate concerned to promptly alert Nifnex in writing whether there is any information that the candidate wishes or does not wish to disclose to a potential employer.
11. If an employer requests a candidate's User profile, Nifnex will notify the candidate of the request by email or telephone. If the employer wishes to interview the candidate, Nifnex will make no less than 3 attempts to contact the candidate by email or telephone. If the candidate is not contactable, Nifnex reserves the right to put forward User profiles of other candidates for the potential employer's consideration.
12. Unless otherwise agreed in writing with the candidate, Nifnex will not provide the contact details and other personal particulars of the candidate to any third person (including employers).
13. Should the candidate be successful in their interview with the employer and an offer of employment made by the employer to the candidate, the candidate remains free to decide whether or not to accept the offer. The candidate is advised to make all enquiries as a prudent job seeker would as regards the proposed employer and the job offered before making a decision. In this regard, the candidate acknowledges that Nifnex is not making any representation as regards the proposed employer or the suitability of otherwise of the job and that the candidate's decision is based solely on their own independent enquiries. The candidate further agrees to and does release Nifnex from any and all liability arising from or in connection with the candidate's decision to accept employment with the employer.
C.2. Employers
1. As Nifnex does not screen, censor or monitor the User profiles, Nifnex makes no representations as to the truthfulness, completeness or accuracy of the User profiles.
2. Each employer acknowledges and accepts that it is their duty to undertake whatever enquiries they consider necessary (including background and reference enquiries) to satisfy themselves that statements, claims and or representations made by a candidate in their User profile is true, accurate and complete and that the candidate meets the employer's requirements. The employer further acknowledges and accepts that Nifnex has not made any representations as regards the User profiles and the candidates themselves and therefore agrees to and does hold harmless and release Nifnex from any and all claims and liability arising from and or in connection with the truthfulness, accuracy and completeness (or otherwise) of the User profile.
3. If an employer requires Nifnex's assistance to carry out enquiries about a candidate, an additional fee is payable to Nifnex in accordance with the then current Nifnex scale of fees.
4. An employer may select up to 5 User profiles and request that interviews with the candidates behind those User profiles be arranged for an administration fee of $224.00 (plus GST). Additional administration fees apply if the employer selects more than 5 User profiles and those additional administration fees will be calculated in accordance with the then current Nifnex scale of fees.
5. Nifnex makes no representation that any or all 5 candidates will be suitable for the employer's purposes and or meet the employer's requirements. Nifnex further makes no assurances that any or all 5 candidates will accept a request for an interview with the employer or actually attend an interview.
6. In no circumstance is the administration fee refundable as the fee is charged (amongst others) to cover the cost of making contact with the 5 candidates and endeavoring to arrange candidate interviews with the employer.
7. In the event that the employer decides to employ any of the 5 candidates at any time within 6 months of Nifnex arranging for an interview with the candidate, the employer agrees to pay a commission to Nifnex in accordance with Nifnex's then current scale of fees for each and every candidate employed by the employer from information or leads obtained from, arising from and or in connection with the Nifnex Site. The commission must be paid by the employer to Nifnex within 7 days of each candidate entering into an employment contract with the employer or the candidate commencing work with the employer, whichever is earlier.
8. The employer acknowledges that Nifnex is not in any way liable if a candidate employed by the employer fails to commence work or leaves the employ of the employer and the employer irrevocably releases Nifnex from any and all liability in relation to any loss and damage suffered by the employer due to the candidate not commencing work or leaving the employ of the employer. No part of a commission is repayable by Nifnex to the employer.
9. The employer acknowledges and agrees that it will pay and will remain obliged to pay the commission to Nifnex in accordance with paragraph 7 despite that the candidate employed fails to commence work or leaves the employ of the employer.
10. However, the employer may, at the time it requests the 5 User profiles, agree with Nifnex on a replacement candidate substitute option (for a fee in accordance with the then current Nifnex's scale of fees). If this option is taken by the employer Nifnex will use reasonable efforts (subject to candidate availability) to suggest up to 3 substitute User profiles of candidates (who approximate the User profile of the candidate referred to in the preceding paragraph) in the event replacement candidates need to be considered. The substitute candidate option is only valid and effective in the event that a chosen candidate fails to commence work with the employer or leaves the employ of the employer within 90 days of commencing work. In the event that the employer is not satisfied with the 3 substitute candidates, Nifnex will have no further obligation to offer further substitute candidates or to refund the substitute option fee (in whole or in part).
11. An employer may request and Nifnex may agree that other candidates not on the Nifnex Site or Nifnex's candidate databases be identified for the employer's consideration. In such event, additional fees will be payable in accordance with the then current Nifnex scale of fees.
12. In no event will Nifnex be liable for any loss, cost, damage or expense suffered or incurred by an employer arising from or in connection with their employment of a candidate or continued employment of a candidate or termination of employment of a candidate. It is the employer's duty to carry out all necessary enquiries with respect to a candidate before offering employment and Nifnex makes no representation whatsoever as to the suitability, reliabilty or competence of any candidate.
C.3. Recruiters
1. A recruiter must only create true and accurate User profiles of their candidates. The creation of false or misleading User profiles or User profiles of individual persons who either do not exist or are not the recruiter's candidates is a breach of the Terms entitling Nifnex to terminate the licence provided and cease providing access to the Nifnex Site and Nifnex Services immediately, without being obliged to effect any repayment of fees (either in whole or in part) to the recruiter.
2. For a fee, the User profile of the recruiter's candidate will be published on the Nifnex Site for a period of 30 days. Unless otherwise agreed in writing with the recruiter, Nifnex is not obliged to but may publish a recruiter's candidate's User profile in any (if any) Nifnex print publication during the aforementioned 30 day period. If there is an agreement to publish the User profile in the print publication (if any) and Nifnex fails to do so for any reason, the recruiter agrees and accepts that (a) Nifnex will not be in any way liable on account of any failure to publish the User profile; and (b) Nifnex's sole obligation is to ensure that the User profile is published in the print publication (if any) within a subsequent 30 day period.
3. Nifnex makes no representation that a recruiter's candidate will find employment through the Nifnex Site or the Nifnex Services. In no event will Nifnex be obliged to effect any repayment of fees (either in whole or in part) to a recruiter.
4. If an employer requests a User profile of a recruiter's candidate, Nifnex will reasonably endeavor to contact the recruiter by email and telephone. If the recruiter fails or refuses to contact Nifnex to arrange for an interview with the employer within 48 hours of Nifnex notifying the recruiter, Nifnex reserves the right to offer other candidates to the employer for consideration. In the event that the employer chooses to employ 1 of the candidates offered, Nifnex will be under no liability to make payment of any fee, charge or commission to the recruiter or to refund any monies paid by the recruiter (in whole or in part).
5. As a recruiter's candidate may separately register with Nifnex and create a User profile directly, Nifnex makes no representations that an employer will choose the User profile created by the recruiter over that created by the candidate directly. In the event that an employer requests the User profile created by the candidate and the candidate obtains employment with the employer, the recruiter acknowledges and accepts that (a) no commission or other payment will be due or payable by Nifnex to the recruiter; and (b) Nifnex will be entitled to receive a commission in accordance with its then current scale of fees from the employer.
C.4 Advertisers
1. Advertisers may place advertisements on the Nifnex Site and in the fortnightly (or whatever other frequency of publication Nifnex considers appropriate) print publication (if any) for a fee calculated in accordance with the then current Nifnex scale of fees.
2. The fortnightly (or whatever other frequency of publication Nifnex considers appropriate) print publication (if any) may include not only candidates' User profiles but also industry specific articles, case studies, personal development articles and advertisements. Nifnex currently intends to publish between 50,000 to 100,000 copies of the fortnightly (or whatever other frequency of publication Nifnex considers appropriate) publication and to deliver those copies by hand, post and or email or made available on the Nifnex Site to businesses in Perth city and select suburbs and candidates registered with Nifnex. Depending on prevailing circumstances and strategy, the actual number of copies of some issues of the publication may fall outside the range provided (i.e. the actual number may be lower or higher). In such event, Nifnex will endeavour to promptly notify the advertiser.
3. It is the sole responsibility of an advertiser to ensure that the text, graphics, layout and presentation of their advertisement is accurate and complete and is to the satisfaction of the advertiser. Nifnex is not in any way responsible or liable to the advertiser or any other person for any errors or misprints in advertisement caused or contributed to (in whole or in part) by the advertiser. The advertiser further acknowledges and accepts that, except where caused by Nifnex's deliberate or grossly negligent conduct, Nifnex's sole responsibility and liability in the event of an error or misprint not caused or contributed to by the advertiser is to update and correct the advertisement (on the Nifnex Site) and to print a correction (in the Nifnex fortnightly (or whatever other frequency of publication Nifnex considers appropriate) publication (if any)).
4. Nifnex does not endorse the advertiser or the advertiser's goods and or services.
5. Each advertiser acknowledges and agrees that its goods and services and the form and content of its advertisements for those goods and services fully comply with all applicable laws and regulations (including but not limited to the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (WA)).
6. As Nifnex is merely a conduit for the advertisements and does not in any way scrutinize the advertisements, the advertiser agrees irrevocably and unconditionally to indemnify and keep Nifnex indemnified and held harmless against any and all liability, claims, loss, damage and or expense (including legal costs on a full indemnity basis) arising from or in connection with the advertiser's advertisement.
C.5. Models
1. These parts of the Terms are related to those persons using the Nifnex model services. A model for the purpose of these Terms is a person who sends to Nifnex a photograph of themselves and requests in writing that Nifnex publish their photograph in a Nifnex employment related publication and whose photograph Nifnex subsequently publishes in a Nifnex publication.
2. Models acknowledge and accept that neither Nifnex or any of its affiliates, including any of their respective officers, directors, employees or agents will be liable for any claims, loss, damage or expense whether in contract, tort or otherwise arising out of or in connection with the use of the model services provide by Nifnex.
3. The model services may include e-mail services, personal web pages and portfolios (photographic and personal information).
4. In using the Nifnex Site, models must not:
(a) publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful material or information;
(b) in using or misusing any of the model services provided by Nifnex, breach or cause or Nifnex to breach or be liable for any breach of any intellectual property laws or any third person's intellectual property rights, including but not limited to, copyright and trademark laws or rights concerning any third person's privacy;
(c) upload files that contain viruses, trojan horses, worms, time bombs, cancel bots, corrupted files or any other similar malicious software or programs that may damage the operation of any computer equipment or programs;
(d) falsify or delete any copyright management information, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of an image or other material contained in a file that is uploaded;
(e) breach any laws, rules or code of conduct or guidelines which may be applicable for any services that NIFNEX offers to its users;
(f) harvest or otherwise collect information about third persons, including e-mail addresses;
(g) breach any applicable laws or regulations;
(h) create a false identity for the purpose of misleading third persons;
(i)create more than one user account or register more than one email address with Nifnex;
(j) circumvent or attempt to circumvent Nifnex restrictions relating to the model services of any kind.
5. Nifnex reserves its right, in its sole and absolute discretion, to:
(a) review all material posted on the Nifnex Site and to remove and delete any and or all material;
(b) disclose any information concerning the model which Nifnex deems necessary or desirable to comply with law, regulation, legal process or governmental authority requirement;
(c) edit, refuse to edit, post or refuse to post, remove or refuse to remove any information or materials, in whole or in part on or from the Nifnex Site.
6. Nifnex strongly advises all models using the Nifnex Site to at all times use extreme caution when uploading or otherwise revealing personal information about themselves to any person they do not know well or any information which may enable any third person to identify them or their family.
7. Nifnex makes no representations to any person that photographs and or information uploaded and or made available on the Nifnex Site by models are true or correct and Nifnex expressly disclaims specifically disclaims any and all liability with regard to the model materials and or information and persons acting in reliance on any model materials and or information do so at their own risk in all things.
8. Nifnex provides its model services free of charge and consequently without warranty of any nature or description.
9. All Nifnex publications are copyrighted materials and nothing contained in any Nifnex publication may be used or reproduced in any manner or by any means without the prior written permission of Nifnex and the model concerned.
10. Nifnex is not obliged to pay to any model or any other person any money (whether by way or damages or compensation or otherwise) for any material or information uploaded or displayed on the Nifnex Site by a model or for any material or information published or not published in any Nifnex publication at the request of a model.
11. Models must allow at least 30 days after giving written notice of request to Nifnex for:
(a) the removal of the model's material or information from the Nifnex Site; and
(b) the cessation of further publication in future Nifnex publications (if any).
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