TalentVine Terms & Conditions

This User Agreement describes the terms and conditions on which you are allowed to use our Website and our Services.

The Short Version

A 20% commission is payable to TalentVine by the recruitment agency for all recruitment and hiring projects undertaken with the client for 12 months after the most recent introduction.

Any consultant must be introduced to TalentVine by the main recruitment contact before engaging in a project.

Commencement Date: Date user most recently agreed to ‘terms and conditions’.

Commercial Model: As an Independent Contractor to TalentVine, any clients/contacts that are introduced to the Contractor, that are not currently working with the Contractor, will qualify.

Payment Schedule: Payment will be made by the client to an account of TalentVine’s nomination within 7 days of receiving an invoice. 80% of this payment will be made by TalentVine to an account of the recruiter’s nomination within 7 days of receiving payment.

Terms of Use: If you attempt to circumvent or manipulate TalentVine’s fee structure, the billing process, or introductions with employers or recruiters, we will ban all consultants that operate under your brand from accessing TalentVine’s services for up to 24 months. You will still be liable for any additional commissions owing to TalentVine during this time.

1. General

ALL USERS

1.1 Agreement

By accessing and/or using this and any associated Websites, you agree to the terms of this Agreement. You agree that this Agreement, as amended from time to time, applies each time you access and/or use the Website.

2. Conditions of Use

ALL USERS

2.1 Prohibited Users

You are prohibited from using the Website if you:

(a) are under 16 years of age;

(b) do not have the capacity or power to enter into legal and binding agreements;

(c) are prohibited by law from receiving or rendering services;

(d) are bankrupt or insolvent (as applicable); or

(e) have been prohibited from using the Website by us, and the prohibition has not been lifted by us.

3. Registration

ALL USERS

3.1 Information

When registering an Account, you agree and undertake:

(a) to provide true, accurate, current and complete information about yourself and your employer (if applicable)

3.2 Registration

(a) Registration is free.

(b) When registering we may require you to provide information such as:

(i) your name;

(ii) your email address;

(iii) your phone number;

(iv) your organisation; and

(v) your organisation’s location.

3.3 One Account Per User

You agree and undertake to not have more than one Account at any one time without our express written permission.

4. Your Responsibilities

ALL USERS

4.1 Responsibility

By accessing and/or using the Service you agree:

(a) to take responsibility for your use of the Service and any use of the Service using your Account;

(b) to act in a decent, reasonable, honest and responsible manner when dealing with other Users and candidates; and

(c) that your continued access to the Service and your Account is contingent on you adhering to these terms.

5. Our Role

ALL USERS

5.1 Restricted Role

We merely provide Employers with a location and the software tools to enable them to find and connect with Recruiters. Employers and Recruiters are solely responsible for any issues arising from the use of the Website and Services.

6. Posting of Positions, Applications and Recruiter Selection

ALL USERS

6.1 Accuracy of Information

Employers and Recruiters are solely responsible for the accuracy of the Content that they post on the Website. All Users represent and warrant that all Content submitted by them is accurate, truthful and not misleading.

RECRUITERS

6.2 Recruiter Applications

(a) A Recruiter’s decision to apply to work on a position remains the sole responsibility of the Recruiter. We make no statements or representations as to the accuracy of the Position Description or Employer information.

(b) An application to work on a position by a Recruiter for a certain fee (whether specified by the Employer or Recruiter) is binding on that Recruiter and may not be renegotiated.

(c) If an application is accepted by an Employer, a Recruiter may not withdraw his or her services without the express written consent of both the Employer and us.

(d) When applying to work on a position, the Recruiter acknowledges and agrees that TalentVine are entitled to and will deduct the Service Fee from the Recruitment Fee.

(e) By applying to work on a position, the Recruiter represents and warrants that the information that has and will be provided about the Recruiter’s experience, expertise and employment history is truthful, accurate and not misleading. The Recruiter also represents and warrants to provide truthful, accurate and not misleading information about candidates, including candidate summaries and resumes.

(f) The recruitment agency will ensure they meet the requirements outlined under the Labour Hire Licensing Act 2017 and hold a current and valid licence to provide labour hire services within the relevant state, prior to engaging in any temporary recruitment services or labour hire arrangement.

EMPLOYERS

6.3 Recruiter Selection

(a) Once an Employer has posted a Position Description and Recruiters have applied, Employers may select one or multiple Recruiters to provide candidates for the position.

(b) By accepting a Recruiter to work on a position, the Employer accepts the Recruitment Fee to be charged by that Recruiter.

6.4 Selecting Recruiters

(a) An Employer’s selection of a Recruiter is not binding on the Employer or Us. A Recruiter’s ability to submit candidates and otherwise engage with an Employer may be terminated at any time, for any reason, and with or without notice.

(b) Nothing in 6.4(a), above, derogates from an Employer’s obligation to pay the Recruitment Fee on employing a Recruiter’s candidate

(c) Bids submitted by a Recruiter to an Employer through the application process are not binding on the Employer until the Employer accepts a Recruiter application and are only binding to the extent that the Employer must pay the Recruitment Fee if the Employer employs a candidate submitted by a Recruiter. The Employer must pay the Recruitment Fee for each candidate employed.

(d) During the application process the Employer may choose which Recruiter, if any, it wishes to accept. For the avoidance of doubt, an Employer is not obligated to accept any applications to work on a position from a Recruiter.

6.5 Double Representation

RECRUITERS

(a) Subject to 6.5(b), below, where two or more Recruiters working on the same position have submitted the same candidate, the first Recruiter to submit the candidate will receive the Recruitment Fee (minus the Service Fee) if the candidate is employed by the Employer.

(b) While we aim to prevent the submission of the same candidate by multiple Recruiters we make no representations, warranties or guarantees that this will not occur and, to the maximum extent possible by law, we disclaim any liability for any loss incurred as a result of double representation.

(e) TalentVine and the Employer are not under any obligation to notify Recruiters if double representation has occurred.

EMPLOYERS

(f) By accepting a Recruiter to work on a position, the Employer accepts that any candidates submitted by that Recruiter remain associated with that Recruiter for six-months from the date that the candidate’s details were uploaded to the Service. If a Recruiter’s candidate is employed by the Employer within the six-month period, the Employer is liable to pay the Recruitment Fee agreed with the Recruiter.

(h) If a candidate submitted by a Recruiter has previously applied directly to the Employer for employment in relation to a different employment opportunity, the Employer must still pay the Recruitment Fee if the candidate is hired after being submitted by the Recruiter.

7. Contracts Between Users

ALL USERS

7.1 Acceptance of Application

Upon the Employer accepting an application by a Recruiter, the Employer and Recruiter will be deemed to have entered into a User Contract under which the Employer agrees to pay the Recruitment Fee each time it employs a candidate submitted by the Recruiter.

7.2 No Conflict with this Agreement

You agree not to enter into any contractual provisions in conflict with this Agreement.

7.3 Responsibility

You are solely responsible for ensuring that you comply with your obligations to other Users. If you do not, you may become liable to that User. You must ensure that you are aware of any domestic laws (including common law), international laws, statutes, ordinances and regulations relevant to you as an Employer or Recruiter, or in any other way that you make of use of the Website.

7.4 Enforcement

If another User breaches any obligation to you, you are solely responsible for enforcing any rights that you may have. For the avoidance of doubt, we have no responsibility for enforcing any rights under a User Contract and are not party to any User Contracts.

7.5 Statutory Rights

Depending on their jurisdiction, Employers and Recruiters may have rights under statutory warranties that cannot lawfully be excluded. Nothing in this Agreement is intended to override a right that by applicable law may not be excluded.

7.6 Relationships

Each User acknowledges and agrees that the relationship between Employers and Recruiters is that of an independent contractor. Nothing in this Agreement creates a partnership, joint venture, agency or employment relationship between Users. Nothing in this Agreement shall in any way be construed as forming a joint venture, partnership or an employer-employee relationship between us and a User.

7.7 Contractual Obligations

(a) An Employer is not obligated to employ any candidate submitted by a Recruiter and may, for the avoidance of doubt, reject any or all candidates submitted by any or all Recruiters.

(b) An Employer must not reject a candidate and then subsequently hire that candidate to fill the same or a similar Position Description using a different service, website or company.

(c) If an Employer subsequently hires a rejected candidate in breach of 7.7(b), above, within six-months of rejecting the candidate, the Employer will be liable to pay the Recruitment Fee plus any other costs incurred by us in recovering the Recruitment Fee.

(d) Employers and Recruiters must not in any other way attempt to circumvent the Website or Service.

(e) If an Employer has posted a position on the Website, Recruiters must not seek to, or actually, provide services relating to that Position Description to the Employer outside of the Service or otherwise attempt to circumvent the Service.

8. Recruitment Fees – Permanent Employees

ALL USERS

8.1 Fixed Fee

Where a fixed Recruitment Fee has been agreed, in accordance with clause 7.1, the Employer agrees to pay the Recruitment Fee on employing a Recruiter’s candidate.

9. Recruitment Fees – Non-Permanent Employees

ALL USERS

9.1 Fixed-Fee

Where the Users have agreed a fixed-fee as the basis for the Recruitment Fee, the fixed-fee, in its entirety, will be payable if the employee is employed by the employer.

9.2 Extension of Non-Permanent Employment

(a) If an Employer extends the employment of a non-permanent employee, an Additional Recruitment Fee is payable.

(b) Where the Recruitment Fee is a fixed-fee, the Additional Recruitment Fee will be calculated in accordance with the following formula: Fixed Fee / duration of contract months x contract extension in months

9.3 Conversion to Permanent Employment

(a) If an Employer converts the employment of a non-permanent employee to permanent employment, an Additional Recruitment Fee is payable.

(b) The Additional Recruitment Fee will be the difference between the initial Recruitment Fee paid plus any Additional Recruitment Fees already paid, and the Recruitment Fee that would have been applicable had the employee been employed for one year.

(i) In the case of a fixed-fee the Additional Recruitment Fee will be calculated as: 12 x (Fixed fee / contract duration in months) – recruitment fee already paid.

10. Replacement Guarantee

RECRUITERS

10.1 Recruiter Agreement

Recruiters acknowledge and agree that subject to clause 10.2, below, each permanent employee employed through the Service is subject to the replacement guarantee set out in this clause 10 and in clause 12, below unless stated otherwise at the time of submitting a bid.

ALL USERS

10.2 No Application to Certain Employees

The replacement guarantee does not apply to non-permanent employees unless agreed with the employer.

10.3 Responsibility to Notify

In order to claim under the guarantee, Employers must notify us within five business days of the employee’s employment ending. Notification must be in writing and must outline, in detail, the reasons why the employee is no longer employed by the Employer.

10.4 Investigation

If an Employer notifies us within the time period specified in clause 10.3 that the Employer no longer employs an employee who is subject to the replacement guarantee, we will investigate the claim in order to establish whether the guarantee is applicable. This may, among other things, include contacting the former employee.

10.5 Failure to Notify

If an Employer does not notify us within the time period specified in clause 10.3, the recruiter will not be under any obligation to replace the candidate for the Employer.

10.6 Period

The replacement guarantee period begins from the date that the employee commences employment with the Employer’s organisation.

10.7 Basis On Which a Candidate Replacement Will Be Provided

The recruiter will provide a candidate replacement to an Employer if:

(a) the employee misrepresented his or her qualifications, experience or expertise;

(b) the employee has bullied, harassed or otherwise discriminated against another employee;

(c) the employee committed fraud or another criminal offence against the organisation, a client, a customer or another employee;

(d) the employee is incapable or unwilling to perform the role, functions or responsibilities as specified in the Position Description; or

(e) the employee, by his or her own volition, decided to terminate his or her employment (but not as a result of any of the conditions outlined below).

10.8 Basis On Which a Candidate Replacement Will Not Be Provided

The recruiter will not provide a candidate replacement to an Employer if the employee is no longer employed by the Employer because:

(a) the employee was not the right ‘cultural fit’ or there was a difference of personalities at the organisation;

(b) the Employer changed the role, functions or responsibilities from those specified in the Position Description;

(c) the employee is now employed by or otherwise affiliated with another organisation or entity associated with the Employer;

(d) the position no longer exists at the organisation;

(e) the organisation ‘downsized’ or made the employee redundant for reasons not relating to the employee’s performance;

(f) the employee was bullied, harassed or otherwise suffered discrimination at the organisation;

(g) the Employer has breached any law in relation to the employee; or

(h) the employee suffers from or has suffered from a disability or mental impairment, illness or injury, or the employee has died.

10.9 Unfair Dismissal

In addition to the conditions outlined in clause 10.7, we reserve the right to delay providing a candidate replacement under the replacement guarantee if we believe that a claim of unfair dismissal is likely or has been initiated. We may withhold any repayment until a determination is made by a court or tribunal of competent authority.

10.10 No Legal Advice

In making a decision to either provide or not provide a candidate replacement, you agree and acknowledge that:

(a) we are not providing legal services;

(b) we will not advise you regarding any legal matters; and

(c) if you desire to have legal counsel, you will seek an independent legal counsel from those licensed to practice law in your jurisdiction. You will not rely on us for any such counsel.

10.11 Indemnity

You agree to indemnify and (to the maximum extent permitted by law) hold us and any of our affiliates harmless against any damages or liability you may suffer as a result of the replacement guarantee.

10.12 Our Role

You acknowledge and agree that:

(a) we are not a bank or other licensed financial institution and do not provide banking services or any financial services to you;

(b) to the extent that we are required to release the Recruitment Fee minus the Service Fee to you, you will become our unsecured creditor until such funds are paid to you;

(c) we are not acting as a trustee or fiduciary with respect to such funds or payments;

11. Our Fees

By using the Service and Website you acknowledge and agree that we charge a fee for the Website and Service. These fees are outlined below.

RECRUITERS

11.1 Account Fee

We reserve the right to charge Recruiters a yearly subscription fee. The subscription fee entitles Recruiters to access to the Website and Service, but does not preclude us from exercising rights under other provisions of this Agreement.

11.2 Service Fee

We charge Recruiters 20% of the Recruitment Fee when a candidate submitted by a Recruiter is employed by an Employer.

11.3 Payment

The Service Fee is deducted from the Recruitment Fee and retained by us prior to the Recruiter’s share of the Recruitment Fee being disbursed to the Recruiter.

ALL USERS

11.4 Other Fees

(a) We may charge a fee for Services that we provide.

(b) When you use a Service that has a fee, you have an opportunity to review and accept the fees that you will be charged, which we may change from time to time in accordance with clause 1.2, above. We may choose to temporarily change the fees for our Services for promotional events (for example, discounts on memberships) or new Services, and such changes are effective when we post the temporary promotional event or new service on the Websites.

(c) Unless otherwise stated, all fees are quoted in Australian Dollars.

12. Payment by Employers

EMPLOYERS

(a) We will issue you with an invoice for any fees that you incur.

(b) Invoices must be paid within 7 days of issue.

13. Taxes

EMPLOYERS

13.1 Recruitment Fee

Recruitment Fees agreed with Recruiters do not include any applicable goods and services or value added taxes. Such taxes will be added to the Recruitment Fee when you are invoiced.

RECRUITERS

13.2 Responsibility

(a) You are responsible for paying any taxes, including any goods and services or value added taxes, which may be applicable depending on the jurisdiction of the services provided.

(b) We collect GST and pass on the requisite GST to Recruiters. It is the Recruiter’s responsibility to be registered to make GST payments to the Australian Taxation Office and to make such payments if required.

(c) As we are a company incorporated in Australia, all fees earned by us from Australian Users will be subject to a 10% GST on all fees, which will be shown separately on all invoices.

(d) You must also comply with your obligations under income tax provisions in your jurisdiction.

14. Limitation on Liability

ALL USERS

14.1 Limited liability

To the maximum extent possible by law, in no event shall we be liable, whether in contract, warranty, tort (including negligence), or any other form of liability, for:

(a) any indirect, special, incidental or consequential damages that may be incurred by you;

(b) any loss of income, business or profits (whether direct or indirect) that may be incurred by you; or

(c) any claim, damage, or loss which may be incurred by you as a result of any of your transactions involving the Website.

14.2 Limited liability for actions of Recruiters or candidates

Without limiting the generality of 14.1, above, to the maximum extent possible by law, in no event shall we be liable, whether in contract, warranty, tort (including negligence), or any other form of liability, for the actions of Recruiters or candidates.

14.3 Prior Knowledge

The limitations on our liability to you outlined in clause 14.1, above, shall apply whether or not we have been advised of the possibility of such losses or damages arising.

14.4 No Prohibited Exclusion of State or Federal Laws

(a) Notwithstanding the above provisions, nothing in this Agreement is intended to limit or exclude any liability on the part of us and our affiliates and related entities where and to the extent that applicable law prohibits such exclusion or limitation including those within the Competition and Consumer Act 2010 (Cth) and relevant State fair trading legislation.

(b) To the extent that we are able to limit the remedies available under this Agreement, we expressly limit our liability for breach of a non-excludable condition or warranty implied by virtue of any legislation to the following remedies (the choice of which is to be at our sole discretion) to the supply of the Services again or the payment of the cost of having the Services supplied again.

15. Intellectual Property

ALL USERS

15.1 Our Policy

It is our policy to respond to clear notices of alleged intellectual property rights infringement. If you believe that your intellectual property rights have been violated, please notify us by email and we will investigate.

16. Content

ALL USERS

16.1 Granting of Rights

When you give us content, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right to exercise any and all copyright, trademark, publicity, and database rights (but no other rights) you have in the content, in any media known now or in the future.

16.2 Acknowledgment

You acknowledge and agree that:

(a) We only act as a portal for the online distribution and publication of User content. We make no warranty that User content is actually made available on the Website. We have the right (but not the obligation) to take any action deemed appropriate by us with respect to Content.

(b) We have no responsibility or liability for the deletion or failure to store any content, whether or not the content was actually made available on the Website.

(c) Any and all content submitted to the Website is subject to our approval. We may reject, approve or modify your User content at our sole discretion.

16.3 Representation and Warranty

You represent and warrant that your content:

(a) will not infringe upon or misappropriate any copyright, patent, trademark, trade secret, or other intellectual property right or proprietary right or right of publicity or privacy of any person;

(b) will not violate any law or regulation;

(c) will not be defamatory or libellous;

(d) will not be obscene, contain pornography or child abuse material;

(e) will not contain the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons;

(f) will not contain material linked to terrorist activities;

(g) will not include incomplete, false or inaccurate information about a User or any other individual; and

(h) will not contain any viruses or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.

16.4 Personal Information

You acknowledge and agree that:

(a) We may transfer your personal information, and any personal information of any other person that you provide to us, to a related body corporate and your information may be transferred outside of Australia and the EEC-area. If you wish to withdraw your consent, you acknowledge and agree that we may be unable to provide you with access to the Website and Service and may terminate your Account.

(b) Where you provide us with the personal information of another person (for example candidates), you represent and warrant to us that you have that person’s express permission to provide us with that information and that that person has consented to us retaining and using that information for any purpose and for any period of time permitted by law. You also indemnify us against any action relating to a person’s personal information that a person may bring against us if you have provided us with that person’s personal information.

16.5 Information Provided by Us

You acknowledge and agree that:

(a) Information on the Website may contain general information about legal, financial and other matters.

(b) The information is not advice, and should not be treated as such. You must not rely on the information on the Website as an alternative to professional advice.

(c) If you have specific questions about any matter you should consult a professional adviser.

16.6 Third Party Content

(a) We provide unmonitored access to third party content, including User feedback and articles with original content and opinions (or links to such third party content). We only act as a portal and have no liability based on, or related to, third party content on the Website, whether arising under the laws of copyright or other intellectual property, defamation, libel, privacy, obscenity, or any other area of law.

(b) The Website may contain links to other third party websites. We do not control the websites to which we link from the Website. We do not endorse the content, products, services, practices, policies or performance of the websites we link to from the Website. Use of third party content, links to third party content and/or websites is at your risk.

17. Ratings, Reviews and Comments

ALL USERS

17.1 Copyright

You acknowledge and agree that:

(a) You transfer copyright of the feedback, reputation and reviews you leave consisting of comments and a multidimensional rating (e.g. quality, communication etc.) together with a composite rating by us.

(b) Such feedback, reputation and reviews belong solely to us, notwithstanding that we permit you to use it on our Website while you remain a User.

(c) You must not use, or deal with, such feedback, reputation and reviews in any way inconsistent with our policies as posted on the Website from time to time without our prior written permission.

(d) You may not do (or omit to do) anything that may undermine the integrity of our feedback system. We are entitled to suspend or terminate your Account at any time if we, in our sole and absolute discretion, are concerned by any feedback about you, or your feedback rating, where we believe our feedback system may be subverted.

(e) Our feedback ratings belong to us and may not be used for any purpose other than facilitating the provision of the Services via the Website. You may, without our prior written permission, not use your feedback (including, but not limited to, marketing or exporting your any or all of your composite rating or feedback comments) in any real or virtual venue other than a website operated by us or our related entities.

18. Advertising

ALL USERS

18.1 Prohibition

You acknowledge and agree that unless otherwise agreed with us, you must not advertise an external website, product or service on the Website. Any website address posted on the Website, including in a listing, bid, listing description, clarification board or the message board, must relate to a position, User or Service being performed on the Website. An example of a permissible website address would be a LinkedIn profile.

18.2 Permitted Advertising

We may display sponsor advertisements and promotions on the Website. You acknowledge and agree that we shall not be responsible for any loss or damage of any kind incurred by you as result of the presence of such advertisements or promotions in the Website or your subsequent dealings with advertisers. Furthermore, you acknowledge and agree that content of sponsor advertisements or promotions are protected by copyright, trademarks, service marks, patents or other intellectual property or proprietary rights and laws. Unless expressly authorised by us or third party right holders, you agree not to modify, sell, distribute, appropriate or create derivative works based on such advertisement or promotions.

19. Monitoring

ALL USERS

19.1 Monitoring Permitted

We may read all correspondence posted to the Website and download or access, and test (if necessary), all uploaded files, programs and websites related to your use of the Website for the purpose of investigating fraud, for risk management, for customer service and related purposes.

20. Fraud Prevention

ALL USERS

20.1 Suspension of Account

(a) We reserve the right to suspend a User’s Account if the source of funds is suspected to be fraudulent.

(b) We reserve the right to refuse to pass on payment if the source of the funds is suspected to be fraudulent.

(c) If we become aware that any funds received by us is the result of a fraudulent transaction it will be reversed immediately. If those funds have already been released to you, you must repay the funds to us. If you do not do so, we may suspend, limit or cancel your Account, or take action against you to recover those funds.

(d) We may, in our sole discretion, place a limit on any or all of the funds received by us (thereby preventing any use of the funds) if:

i. we believe there may be a high level of risk associated with you, your Account, or any or all of your transactions, including if we believe that there is a risk that such funds will be subject to reversal or chargeback;

ii. we believe that the beneficiary of the payment is someone other than you;

iii. we believe that the payment is being made to a country where we do not offer our Service; or

iv. we are required to do so by law.

(e) If you are involved in a dispute, we may (in certain circumstances) place a temporary limit on the funds received by us on your behalf and your Account to cover the amount of any potential liability. If the dispute is resolved in your favour, those funds may be released to you. If the dispute is not resolved in your favour, we may refuse to release the funds.

21. Inactive Accounts

ALL USERS

We reserve the right to close Accounts that have not been accessed for a continuous period of six months.

22. Disputes With Us

ALL USERS

(a) If a dispute arises between you and us, our goal is to address your concerns and, if we are unable to do so to your satisfaction, to provide you with a means of resolving the dispute quickly. We strongly encourage you to first contact us directly to seek a resolution.

(b) For any claim, we may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. If we elect arbitration, such arbitration will be initiated through an established alternative dispute resolution (ADR) provider, which is to be selected by you from a panel of ADR providers that we will provide to you. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

(c) All claims you bring against us must be resolved in accordance with the terms of this Agreement. All claims filed or brought contrary to this Agreement shall be considered improperly filed and a breach of this Agreement. Should you file a claim contrary to the terms of this Agreement, we may recover our legal fees and costs (including in-house lawyers and paralegals), provided that we have notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.

(d) If any proceeding by or against you is commenced under any provision of any bankruptcy or insolvency law, we will be entitled to recover all reasonable costs or expenses (including reasonable legal fees and expenses) incurred in connection with the enforcement of this Agreement.

(e) Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.

23. Indemnity

ALL USERS

(a) You will indemnify us (and our officers, directors, agents, subsidiaries, joint venturers and employees) against any claim or demand, including legal fees and costs, made against us by any third party due to or arising out of your breach of this Agreement, or your infringement of any law or the rights of a third party in the course of using the Website and Service.

(b) In addition, we can apply any funds held by us that you may be entitled to, now or in the future, against any liabilities you owe to us, or loss suffered by us, as a result of your non-performance or breach of this Agreement.

24. Choice of Law

ALL USERS

This Agreement will be governed in all respects by the laws of Queensland. We encourage you to try and resolve disputes using certified mediation (such as online dispute resolution processes). If a dispute cannot be resolved then you and we irrevocably submit to the non-exclusive jurisdiction of the courts of Queensland, Australia.

25. Interpretation

ALL USERS

Headings are for convenience only and do not affect interpretation.

The following rules apply unless the context requires otherwise.

(a) The singular includes the plural and conversely.

(b) A gender includes all genders.

(c) Where a word or phrase is defined, its other grammatical forms have a corresponding meaning.

(d) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of the foregoing.

(e) A reference to a clause, annexure or schedule is a reference to a clause of, or annexure or schedule to, this Agreement.

(f) A reference to a party to this Agreement or another agreement or document includes the party’s successors and permitted substitutes or assigns (and, where applicable, the party’s legal personal representatives).

(g) A reference to an agreement or document is to the agreement or document as amended, novated, supplemented or replaced from time to time.

(h) Where in this Agreement a term is stated to have the meaning given in another document or agreement or Regulation, the term has the meaning given in that document or agreement or Regulation as in effect on the date of this Deed (or, if a document or agreement does not come into effect until a subsequent date, on that subsequent date), notwithstanding any subsequent amendment, variation, novation or termination of that other document or agreement or any invalidity or subsequent amendment or repeal of that Regulation.

(i) A reference to any legislation or regulation, or to a provision of any legislation or regulation, includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.

(j) A reference to writing includes a facsimile transmission and any means of reproducing words in a tangible and permanently visible form.

(k) A reference to conduct includes, without limitation, an omission, statement or undertaking, whether or not in writing.