iClue terms of service
1 APPLICATION OF TERMS
1.1 These Terms apply to your use of the Services (as that term is defined below). By accessing and using the Services:
a you agree to these Terms; and
b where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
1.2 If you do not agree to these Terms, you are not authorised to access and use the Services, and you must immediately stop doing so.
2.1 The Supplier may change these Terms at any time by updating them on the Website. Unless stated otherwise, any change takes effect immediately. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Services, you agree to be bound by the changed Terms.
2.2 The Supplier may change, suspend, discontinue, or restrict access to, the Services without notice or liability.
2.3 These Terms were last updated on 5 February 2016.
3.1 Definitions: In these Terms, the following terms have the stated meaning:
Candidate means an applicant for an employment or contracting role with you or (where you are a recruitment agency) a client of yours
Candidate Contact Details means Data that would enable someone to contact an identifiable Candidate, including phone numbers, physical and postal addresses, email addresses, social media account names and current employer
Candidate Test Results means test results relating to an identifiable Candidate (subject to clause 6.6)
Client Test Content means all test content owned or created by or on behalf of you that is stored using, or inputted into, the iClue Service
Confidential Information means these Terms and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, these Terms. Intellectual Property owned by the Supplier (or its licensors), including the Supplier software used to provide the iClue Service and the Supplier Test Content, is the Supplier’s Confidential Information. Candidate Contact Details, the Data inputted into the iClue Service by you and the Client Test Content are your Confidential Information
Data means test results and other data, content, and information (including Candidate CVs) that is stored using, inputted into, or generated by, or transmitted by you to us in connection with your use of, the iClue Service, excluding Client Test Content and Supplier Test Content
Fees means the fees set out in iClue’s current fees schedule located at www.iclue.io
Force Majeure means an event that is beyond the reasonable control of a party, excluding an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care, and excluding a lack of funds for any reason
Good Industry Practice means in relation to an undertaking, the exercise of that degree of skill and care which would reasonably be expected from an experienced operator engaging in the same or a similar undertaking
iClue Service means the Supplier’s online candidate skills testing service having the core functionality described on the Website, as the Website is updated from time to time
Intellectual Property Rights includes copyright and all worldwide rights conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property
Minimum Term means a minimum period of 6, 12, 24 or 36 months from the Start Date, as selected by you
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, or unlawful in any way
Personal Information has the meaning given in the Privacy Act 1993
Privacy Laws means the New Zealand Privacy Act 1993, applicable codes under that Act, and other applicable privacy and data protection laws
Related Services means any further services that the Supplier agrees to provide to you under these Terms
Services means the iClue Service and any Related Service
Start Date means the 1st of the month following your acceptance of these Terms or as otherwise selected by you
Supplier means iClue Limited, company number 5636492
Supplier Test Content means the test content owned by the Supplier (and its licensors) that is used to provide the iClue Service
Terms means these iClue Terms of Service and any other terms incorporated by reference
Underlying Systems means the software owned by the Supplier (and its licensors) that is used to provide the iClue Service and the other IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks
Website means the Internet site at the domain iClue.co.nz
Year means a 12 month period starting on the Start Date or the anniversary of that date
you means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting
3.2 Interpretation: In these Terms:
a clause and other headings are for ease of reference only and do not affect the interpretation of these Terms;
b words in the singular include the plural and vice versa;
c a reference to:
i a party includes that party’s permitted assigns;
ii personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include the Supplier;
iii a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
iv including and similar words do not imply any limit; and
v a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them;
d no term is to be construed against a party because the term was first proposed or drafted by that party; and
e if there is any conflict between these iClue Terms of Service and any terms incorporated by reference, these iClue Terms of Service prevail unless expressly stated otherwise.
4.1 General: The Supplier must use best efforts to provide the Services:
a in accordance with:
i Good Industry Practice;
ii Privacy Laws and other New Zealand law; and
iii these Terms;
b exercising reasonable care, skill and diligence; and
c using suitably skilled, experienced and qualified personnel.
4.2 Non-exclusive: The Supplier’s provision of the Services to you is non-exclusive. Nothing in these Terms prevents the Supplier from providing the Services to any other person.
4.3 Availability: The Supplier will use reasonable efforts to ensure the iClue Service is available on a 24/7 basis. However, it is possible that on occasion the iClue Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. The Supplier will use reasonable efforts to publish on the Website advance details of any unavailability.
4.4 Underlying Systems: The Supplier is responsible for procuring all Underlying Systems reasonably required for it to provide the iClue Service in accordance with these Terms.
4.5 Related Services:
a The Supplier may, from time to time, make available additional services to supplement the iClue Service.
b At your request and subject to you paying the applicable Fees, the Supplier may agree to provide to you a Related Service on these Terms.
5 CLIENT OBLIGATIONS
5.1 General use: You and your personnel must:
ii lawful purposes (including complying with the Unsolicited Electronic Messaging Act 2007); and
b except as set out in clause 5.1ai, not resell or make available the Services to any third party, or otherwise commercially exploit the Services.
5.2 Access conditions: When accessing the iClue Service, you and your personnel must:
a not impersonate another person or misrepresent authorisation to act on behalf of others or the Supplier;
b correctly identify the sender of all electronic transmissions;
c not attempt to undermine the security or integrity of the Underlying Systems;
d not use, or misuse, the iClue Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the iClue Service;
e not attempt to view, access or copy any material or data other than that to which you are authorised to access; and
f neither use the iClue Service in a manner, nor transmit, input or store any Data or Client Test Content, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.
5.3 Indemnity: You indemnify the Supplier against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by the Supplier’s solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data transmitted, inputted or stored by you or any Client Test Content infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that such Data or Client Test Content is Objectionable, incorrect or misleading.
5.4 Personnel: A breach of any of these Terms by your personnel is deemed to be a breach of these Terms by you.
5.5 Authorisations: You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Services, including to use, store and input Data and Client Test Content into, and process and distribute Data and Client Test Content through, the Services.
6.1 Personal Information: In accessing, collecting, holding, processing or distributing any Personal Information, including any Personal Information about Candidates, the Supplier will comply with:
b the Privacy Laws.
b If the Candidate does not agree to the Supplier’s terms and conditions for Candidates, he or she will not be able to take any tests using the iClue Service. The Supplier will not be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by a Candidate failing to agree to the Supplier’s terms and conditions for Candidates.
6.3 Candidate Contact Details: Without limiting clause 6.1, the Supplier will not disclose, or use for its own purposes, any Candidate Contact Details other than:
a to provide the Services and to perform its other obligations under these Terms, and to exercise its rights under these Terms; and
b as required by law (including as required by Privacy Laws);
6.4 Supplier use of Candidate Test Results: The Supplier may use Candidate Test Results to:
a conduct research and statistical analysis (on an anonymised basis in relation to Candidate, employer or potential employer and (if applicable) recruitment agencies); and
b rank Candidates against other test subjects whose test results are held in the iClue Service (on an anonymised basis in relation to the test subjects, employers or potential employers and (if applicable) recruitment agencies).
6.5 Disclosure of Candidate Test Results: The Supplier may disclose Candidate Test Results:
a to the Candidate;
b subject to clause 6.5c and to the Candidate having given his or her consent, to any other client of the Supplier to or through whom the Candidate has previously applied, or subsequently applies, for an employment or contracting role;
c to third parties (on an anonymised basis in relation to Candidate, employer and (if applicable) recruitment agencies); and
d as required by law.
6.6 Identity verification: Candidates are invited to take tests by email to the email address provided by you, and Candidate Test Results are recorded against this email address. The Supplier is not able to verify that, and provides no assurances that, the Candidate that you wish to take a test is the actual person sitting the test, or that any Candidate Test Results do not include results from previous tests taken by a person other than the Candidate using the Candidate’s email address. You accept all risk as to the identity of the actual person who sits, or has sat, a test included in any Candidate Test Results.
6.7 Backups of Data: The Supplier will comply with Good Industry Practice to back up all Data stored using the Services, but does not guarantee that all Data will be backed up or restorable in the event of a failure of the Underlying Systems.
6.8 International storage of Data: You agree that the Supplier may store Data (including any Personal Information relating to Candidates) in secure servers outside New Zealand and may access that Data (including any Personal Information relating to Candidates) from time to time in accordance with these Terms.
6.9 Use of API: The Supplier may provide you with an application programing interface (API) that enables you to download Data from the iClue Service. You are responsible for connecting to the iClue Service using the API on a regular basis to ensure that Data is up to date. The Supplier will not be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by you failing to keep Data downloaded through the API up to date.
7.1 Fees: You must pay to the Supplier the Fees. Monthly recurring Fees are invoiced based on a calendar month.
7.2 Invoicing and payment:
a The Supplier will provide you with valid GST tax invoices monthly in arrears for the Fees due in relation to the previous month.
b The Fees exclude GST, which you must pay on taxable supplies under these Terms (if applicable).
c You must pay the Fees:
i by the 20th of the month following the date of invoice; and
ii electronically in cleared funds without any set off or deduction.
7.3 Overdue amounts: The Supplier may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by the Supplier’s primary trading bank as at the due date (or, if the Supplier’s primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.
a By giving at least 30 days’ notice, the Supplier may increase the Fees once each Year (but not the first Year) by the percentage change in the New Zealand Consumer Price Index (or similar or equivalent index if that index ceases to be published) over the 12 months preceding the last quarterly publication of that index issued by Statistics New Zealand prior to the date of the notice. Fees updated under this clause are deemed to be the Fees.
b If you do not wish to pay the increased Fees, you may terminate these Terms on no less than 10 days’ notice, provided the notice is received by the Supplier before the effective date of the Fee increase. If you do not terminate these Terms in accordance with this clause, you are deemed to have accepted the increased Fees.
a Subject to clauses 6 and 8.1b, title to, and all Intellectual Property Rights in, the Services, the Data, the Website, and all Underlying Systems is and remains the property of the Supplier (and its licensors). You must not dispute that ownership.
b Title to, and all Intellectual Property Rights in, the Data inputted into the iClue Service by you and the Client Test Content (as between the parties) remains your property. You grant the Supplier a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data inputted into the iClue Service by you and the Client Test Content as necessary to provide the Services and to perform its other obligations under these Terms, and to exercise its rights under these Terms.
8.2 Know how: To the extent not owned by the Supplier, you grant the Supplier a royalty-free, transferable, irrevocable and perpetual licence to use any know how, techniques, ideas, methodologies, and similar Intellectual Property used by the Supplier in the provision of the Services.
8.3 Feedback: If you provide the Supplier with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):
a all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by the Supplier; and
b the Supplier may use or disclose the feedback for any purpose.
8.4 Third party Intellectual Property Rights indemnity:
a The Supplier indemnifies you against any claim or proceeding brought against you to the extent that claim or proceeding alleges that your use of the iClue Service in accordance with these Terms constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim). The indemnity is subject to you:
i promptly notifying the Supplier in writing of the IP Claim;
ii making no admission of liability and not otherwise prejudicing or settling the IP Claim, without the Supplier’s prior written consent; and
iii giving the Supplier complete authority and information required for the Supplier to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for the Supplier’s account.
b The indemnity in clause 8.4a does not apply to the extent that an IP Claim arises from or in connection with:
i your breach of these Terms;
ii use of the iClue Service in a manner or for a purpose not reasonably contemplated by these Terms or otherwise not authorised in writing by the Supplier; or
iii any third party data, any Data inputted into the iClue Service by you or any Client Test Content.
i obtain for you the right to continue using the items which are the subject of the IP Claim; or
ii modify, re-perform or replace the items which are the subject of the IP Claim so they become non-infringing.
9.1 Security: Each party must, unless it has the prior written consent of the other party:
c disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of clauses 9.1a and 9.1b.
9.2 Permitted disclosure: The obligation of confidentiality in clause 9.1a does not apply to any disclosure or use of Confidential Information:
a for the purpose of performing these Terms or exercising a party’s rights under these Terms;
b required by law (including under the rules of any stock exchange);
c which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
d which was rightfully received by a party to these Terms from a third party without restriction and without breach of any obligation of confidentiality; or
e by the Supplier if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that the Supplier enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 9.
10.1 Mutual warranties: Each party warrants that it has full power and authority to enter into and perform its obligations under these Terms which, when accepted, will constitute binding obligations on the warranting party.
10.2 No implied warranties: To the maximum extent permitted by law:
a the Supplier’s warranties are limited to those set out in these Terms, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under the Sale of Goods Act 1908) are expressly excluded; and
b except as set out in clauses 4.1, 4.3 and 4.4, the Supplier makes no representation concerning the quality of the Services and does not promise that the Services will:
i meet your requirements or be suitable for a particular purpose; or
ii be secure, free of viruses or other harmful code, uninterrupted or error free.
10.3 Consumer Guarantees Act: You agree and represent that you are acquiring the Services, and entering into these Terms, for the purpose of a business and that the Consumer Guarantees Act 1993 does not apply to the supply of the Services or these Terms.
10.4 Limitation of remedies: Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms. However, the liability of the Supplier for any breach of that condition or warranty is limited, at the Supplier’s option, to:
a supplying the Services again; and/or
b paying the costs of having the Services supplied again.
11.1 Maximum liability: The maximum aggregate liability of the Supplier under or in connection with these Terms or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the Fees paid by you under these Terms in the previous Year (which in the first Year is deemed to be the total Fees paid by you from the Start Date to the date of the first event giving rise to liability).
11.2 Unrecoverable loss: Neither party is liable to the other under or in connection with these Terms or the Services for any:
a loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
b consequential, indirect, incidental or special damage or loss of any kind.
11.3 Unlimited liability:
a Clauses 11.1 and 11.2 do not apply to limit the Supplier’s liability:
i under the indemnity in clause 8.4a; or
▲ fraud or wilful misconduct; or
b Clause 11.2 does not apply to limit your liability:
i to pay the Fees;
ii under the indemnity in clause 5.3; or
iii for those matters stated in clause 11.3aii.
11.4 No liability for other’s failure: Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.
11.5 Mitigation: Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms.
12 TERM, TERMINATION AND SUSPENSION
12.1 Duration: These Terms start on the Start Date and continue until terminated under clause 7.4b or this clause 12.
12.2 No fault termination: Either party may terminate these Terms after the expiry of the Minimum Term (if applicable) and with effect from the last day of a calendar month by giving no less than 30 days’ notice to the other party.
a Either party may, by notice to the other party, immediately terminate these Terms if the other party:
i breaches any material provision of these Terms and the breach is not:
▲ remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or
▲ capable of being remedied;
ii becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
iii is unable to perform a material obligation under these Terms for 30 days or more due to Force Majeure.
b If the remedies in clause 8.4c are exhausted without remedying or settling the IP Claim, the Supplier may, by notice to you, immediately terminate these Terms.
a Termination or expiry of these Terms does not affect either party’s rights and obligations that accrued before that termination or expiry.
b On termination or expiry of these Terms, you must pay all Fees for Services provided prior to that termination or expiry.
c Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination or expiry of these Terms, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
12.5 Obligations continuing: Clauses which, by their nature, are intended to survive termination or expiry of these Terms, including clauses 5.3, 6, 8, 9, 11, 12.4, 12.5 and 13, continue in force.
12.6 Suspending access: Without limiting any other right or remedy available to the Supplier, the Supplier may restrict or suspend your access to the iClue Service where you (including any of your personnel):
a undermine, or attempt to undermine, the security or integrity of the iClue Service or any Underlying Systems;
b use, or attempt to use, the iClue Service:
i for improper purposes; or
ii in a manner, other than for normal operational purposes, that materially reduces the operational performance of the iClue Service; or
c have otherwise materially breached these Terms (in the Supplier’s reasonable opinion).
12.7 Notice: The Supplier must notify you where it restricts or suspends your access under clause 12.6.
13.1 Good faith negotiations: Before taking any Court action, a party must use best efforts to resolve any dispute under, or in connection with, these Terms through good faith negotiations.
13.2 Obligations continue: Each party must, to the extent possible, continue to perform its obligations under these Terms even if there is a dispute.
13.3 Right to seek relief: This clause 13 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.
14.1 Force Majeure: Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure, provided that the affected party:
a immediately notifies the other party and provides full information about the Force Majeure;
b uses best efforts to overcome the Force Majeure; and
c continues to perform its obligations to the extent practicable.
14.2 Rights of third parties: No person other than the Supplier and you has any right to a benefit under, or to enforce, these Terms.
14.3 Waiver: To waive a right under these Terms, that waiver must be in writing and signed by the waiving party.
14.4 Independent contractor: The Supplier is an independent contractor of yours, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.
14.5 Notices: A notice given by a party under these Terms must, except where expressly permitted otherwise under these Terms, be delivered to the other party via email using the email address notified by the other party for this purpose. The Supplier’s email address for notices is firstname.lastname@example.org. If the notice is a notice of termination, a copy of that email must be immediately delivered (by hand or courier) to the Chief Executive or equivalent officer of the other party at the other party’s last known physical address.
14.7 Variation: Any variation to these Terms must be in writing and signed by both parties.
14.8 Entire agreement: These Terms set out everything agreed by the parties relating to the Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the subject matter of these Terms that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986.
14.9 Subcontracting and assignment:
a You may not assign, novate, subcontract or transfer any right or obligation under these Terms without the prior written consent of the Supplier, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing.
b Any change of control of you is deemed to be an assignment for which the Supplier’s prior written consent is required under clause 14.9a. In this clause change of control means any transfer of shares or other arrangement affecting you or any member of your group which results in a change in the effective control of you.
14.10 Law: These Terms are governed by, and must be interpreted in accordance with, the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with these Terms.