- These General Terms and Conditions describe the legal rights and obligations that apply to the use of Services (defined below) provided by Xceptional Testing Pty Ltd ABN 24 617 787 836 of Level 2, 11 York Street Sydney NSW 2000 (“Xceptional”).
- Other terms or policies may also apply to specific services, content or benefits offered by Xceptional. These include:
- terms agreed in writing between a Customer and Xceptional, including in an Order (defined below).
- Together these General Terms and Conditions and the terms referred to in clause 1.2 form the agreement between Xceptional and the Customer (“Agreement”).
- If there is any inconsistency, the terms agreed in writing between a Customer and Xceptional (including in an Order) will take priority over these General Terms and Conditions.
- Xceptional is always improving its products and services. Xceptional may amend or add to these General Terms and Conditions from time to time by posting updated General Terms and Conditions to the Xceptional Website (defined below). Customers that have an account with Xceptional may also be notified of any changes through the Customer’s account or by email. Customer should check the Xceptional Website from time to time for changes.
- If the Customer is notified, or otherwise becomes aware of, a change in the General Terms and Conditions that adversely affects its use of the Services, the Customer may terminate its account with Xceptional and stop using the Services within 30 days of being notified of or becoming aware of the change. By continuing to use the Services the Customer agrees to the amended General Terms and Conditions.
Definitions And Interpretation
- In this Agreement:
Additional Services means ad hoc services that the Customer may request from time to time, the supply of which are outside the scope of the Services. Fees for Additional Services are charged in addition to fees for Services.
Assessment Services means the cloud-based online skills assessment technology, applications and game-based profiling and reporting tools (including those provided via a White Label Website), which may be available as a subscription or as stand-alone products and associated hosting services, maintenance and support services to be supplied by Xceptional under this Agreement as further specified in the Services Schedule and on the Xceptional Website.
Availability means that Customer is able to log into the Assessment Services.
Business Day means any day which is not a Saturday, Sunday or Public Holiday in New South Wales.
Business Hours means 9:00am to 5:00pm Sydney time Monday to Friday on Business Days.
Confidential Information means any information in any form whatsoever (including oral, written, and electronic information) of a personal, technical, business, corporate or financial nature of a party that has either been marked as confidential or due to its character or nature, a reasonable person under like circumstances would treat as confidential. Without limitation, confidential information of the Customer includes Customer Data.
Customer means the customer obtaining Services pursuant to an Order.
Customer Data means data and information associated with the Customer (including its End Users, customers, employees and applicants) that is entered, stored, generated or processed through the Assessment Services.
End User means a person who has been registered by the Customer with Xceptional as a user authorised to make use of the Assessment Services.
Fees means all fees payable by the Customer to Xceptional under this Agreement including as set out in an Order, any SOW or as set out on the Xceptional Website.
Intellectual Property Rights includes the protected rights attaching to all and any patents, patent applications, trade marks, service marks, trade names, registered designs, unregistered design rights, copyright, know how, trade secrets, domain names, internet addresses, rights in confidential information, and all and any other intellectual property rights, whether registered or unregistered, and including all applications and rights to apply for any of the same.
Order means an order for Services that has been accepted by Xceptional which may be an order form that incorporates these Terms and Conditions, a web-based order form or an SOW or other agreement in writing.
Professional Services mean consulting services, such as implementation, configuration, or development of a White Label Websites performed by Xceptional in connection with the provision of the Assessment Services, as further specified in each Services Schedule or SOW.
Related Company means any holding company or subsidiary of a company, or any subsidiary of the holding company or subsidiary of that company.
SOW means the specifications for the Services as stated in each Service Schedule, or as otherwise agreed in writing between the parties.
Services means the Assessment Services, Professional Services and Additional Services and any other services provided by Xceptional under this Agreement.
Services Schedule means a description of the particular Service either incorporated into an Order or set out on the Xceptional Website.
Services Start Date means the start date for Services agreed between the parties, for example in an Order.
Time and Materials Rate means the rate, as specified and amended from time to time by Xceptional, that Xceptional will charge for the supply of Additional Services unless otherwise agreed.
White Label Website means a website designed and hosted by Xceptional interfacing with the Assessment Services, which is branded and designed to appear as the Customer’s website as further specified in a Services Schedule or SOW.
Xceptional Website means a website owned or operated by Xceptional including the website at https://xceptional.io.
- In this Agreement unless the context otherwise requires:
- words importing the singular include the plural and vice versa;
- other parts of speech and grammatical forms of a word or phrase defined in this Agreement have a corresponding meaning;
- an expression importing a natural person includes a company, partnership, joint venture, association, corporation or other body corporate and a government agency;
- a reference to a thing includes a part of that thing;
- a reference to a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, bylaw judgment, rule of common law or equity or a rule of an applicable stock exchange and is a reference to that law as amended, consolidated or replaced;
- a reference to a party to a document includes that party’s successors and permitted assigns; and
- headings are for convenience only and do not affect the interpretation of this Agreement.
Assessment Services And End Users
- Xceptional grants Customer the right to access and use the Assessment Services that are the subject of an Order either as a subscription or on an individual product or service basis, for their internal business purposes in accordance with this Agreement.
- The Customer must, using the systems and methods specified by Xceptional, identify each End User, and each End User will be allocated a unique user name and password for the Assessment Services.
- Xceptional may update the Assessment Services from time to time at its discretion.
- During the term of the Agreement, Xceptional may offer additional features or services to be included in the Assessment Services at additional cost to the Customer. If the Customer accepts such additional features or services the Fees will be adjusted accordingly.
- Xceptional may monitor the Customer’s use of the Assessment Services for the purposes of maintaining the integrity of Assessment Services for all customers and ensuring compliance with this Agreement.
- Xceptional must provide the Services:
- in material accordance with the Services Schedule or relevant SOW;
- in a safe and efficient manner; and
- using appropriately qualified and trained personnel.
- Xceptional may involve subcontractors for the performance of the Services.
- Xceptional may offer services at no charge such as fee-free basic accounts, free trials or access to beta versions (No-charge Services). The Customer’s use of No-charge Services may be subject to additional terms that Xceptional specifies and may be available only for a limited time period. Xceptional may change, suspend or terminate the right to use No-charge Services at any time at its sole discretion.
- The Customer’s use of any reports or information arising from the use of the Assessment Services is at its own risk and the Customer is responsible for any business or hiring decisions or recommendations that it may make.
- The Customer will indemnify and hold harmless Xceptional and its affiliates, officers, agents, and employees from all liabilities, damages, and costs (including settlement costs and reasonable legal fees) arising out of a third party claim regarding or in connection with the Customer’s or its End Users’ use of the Services or breach of this Agreement.
- Xceptional may perform certain Professional Services related to the Assessment Services that may be specified in more detail in a Service Schedule or SOW.
- Xceptional shall use reasonable efforts to meet any specific time schedules mutually agreed by the parties in writing. Xceptional is not responsible for any delays that are not solely attributable to Xceptional.
- Customer shall reimburse Xceptional for reasonable travel expenses incurred in connection with performing the Professional Services as agreed by the parties.
Service Testing Period
- From the Services Start Date for the period of 14 days (“Service Testing Period”), the Customer may test the results of the Professional Services to confirm that they comply with the relevant SOW.
- If the Customer reasonably considers that the results of the Professional Services do not comply with the relevant SOW, it must notify Xceptional in writing of the defect before the expiry of the Service Testing Period (“Defect Notice”).
- On receipt of a Defect Notice, Xceptional will review the results of the Professional Services and make any commercially reasonable adjustments to the results of the Professional Services necessary to ensure the results of the Professional Services comply with the relevant SOW.
- Xceptional will notify the Customer in writing of any changes it has made to the SOW (“Correction Notice”), in which case the Service Testing Period will be extended for a further period of 14 days from the date of the Correction Notice.
- The Customer will be deemed to have accepted that the results of the Professional Services comply with the relevant SOW from the date of expiry of the Service Testing Period or if it uses the results of the Professional Services in a production or live environment. Defects in the results of Professional Services which do not substantially interfere with Customer’s use of the Assessment Services shall not preclude acceptance of the results.
Problems With Services
- Xceptional does not warrant that the Services will be uninterrupted or error free.
- Xceptional will notify the Customer when it becomes aware of anything (whether caused by Xceptional, the Customer or otherwise) that is likely to or will result in a disruption to the supply of Services, specifying the nature of the problem, the steps being taken to minimise the impact of the problem and whether the problem is caused by something outside Xceptional’s reasonable control.
- Xceptional will make reasonable efforts to keep the Customer fully informed of its plans to work around any problem, including cost effective and practical recommendations as to how the Customer could minimise the loss or damage likely to be suffered as a consequence of the problem.
- From time to time during the term of this Agreement, the Customer may request the supply of Additional Services. Any such request for Additional Services must be in writing.
- On receipt of a request for Additional Services, Xceptional may provide an estimate of its fees to supply the Additional Services (“Additional Services Quote”) and include with the Additional Services Quote any additional terms and conditions that will apply (which terms will take precedence over the terms of this Agreement).
- The Customer may accept an Additional Services Quote by signing it and returning it to Xceptional, in which case Xceptional will supply the Additional Services.
- Unless the Additional Services Quote states it is for a fixed price, all Additional Services are charged at the Time and Materials Rate. Xceptional will make reasonable efforts to advise the Customer if the cost of Additional Services is likely to exceed the Additional Services Quote.
- For the duration of each Additional Services engagement, the Time and Materials Rate will be fixed, unless otherwise stated in an Additional Services Quote. Xceptional may otherwise vary the Time and Materials Rate at any time without notice.
- The Customer must provide Xceptional such information and assistance as may reasonably be required for the provision of the Services.
- The Customer is responsible for all training of End Users in the use of the Services. For clarity, if the Customer requires that Xceptional provide any training to End Users, such training must be requested as Additional Services.
- The Customer is responsible for ensuring that End Users take all reasonable steps to protect their user names and passwords, and otherwise preventing unauthorised use of the Services.
- The Customer acknowledges that it is responsible for all use, including unapproved use, of the Services by any person who uses the user name and password of a End User, unless and to the extent such used is caused by any negligence by Xceptional.
- The Customer acknowledges that it must not:
- make the Services available to any third party (other than a contractor of the Customer performing the Customer’s internal business purposes);
- use or permit the use of the Services to provide any form of bureau service similar to the Services;
- use the Service in any manner that will, or is likely to, impede or disrupt the supply of services to any other customer of Xceptional;
- use or permit the use of the Services for any illegal purpose;
- use or permit the Services to be used to assess candidates, offer employment or for any other purpose that is in any way discriminatory or otherwise breaches any applicable employment, discrimintation or other laws;
- modify, copy, adapt, reproduce, disassemble, decompile, reverse engineer or extract the source code, algorithms or data of any part of the Services; or
- undermine the security or integrity of our systems, Services or networks or override any security feature incorporated into the Services.
- Customer is responsible for
- evaluating and ensuring suitability of the Services for its business purposes and needs;
- ensuring its systems and networks comply with the agreed technical requirements;
- notifying Xceptional promptly of security incidents or misuse related to the Services that the Customer becomes aware of;
- ensuring the confidentiality of authentication credentials associated with the use of the Assessment Services is adequately maintained.
- Xceptional acknowledges that the Customer Data is at all times, and will remain, the property of the Customer.
- In order to supply the Services to the Customer, the Customer grants to Xceptional a licence to use, reproduce, modify and communicate all Customer Data. Xceptional may use Customer Data for the purpose of providing support services and to internally to develop and improve its Services and develop new products, including by using deidentified anonymised Customer Data to develop services and products using machine learning and artificial intelligence techniques.Xceptional will take commercially appropriate measures to protect the security and integrity of the Customer Data, including physical security measures to protect Xceptional’s data storage hardware and technical security measures to impede unauthorised access to Xceptional’s systems via the internet or other electronic means.
- Customer Data may be stored by our third party hosting service providers.
- The Customer acknowledges that prior to its use of the Service, it is solely responsible for complying with all laws, including privacy laws and Intellectual Property Rights laws, of any relevant jurisdiction, and that the Customer Data must not infringe any such laws and Xceptional must not use the Customer Data otherwise than is accordance with this Agreement.
- The Customer acknowledges that Xceptional may be obliged by law to disclose some or all Customer Data to government or regulatory authorities. If it is legally entitled to do so, Xceptional will make best efforts to advise the Customer prior to, where possible consult with the Customer and otherwise use reasonable endeavours to minimise any such mandatory disclosure.
- The Customer must at all times indemnify and keep Xceptional indemnified against all losses, damages, expenses, claims, demands, actions and proceedings suffered or incurred by Xceptional, as a result, directly or indirectly, of any claim by any third party (including any regulator or enforcement authority) in connection with:
- the Customer Data;
- any infringement of any law (including any privacy laws) arising from or in connection with the Customer Data; and
- any claim that the Customer Data infringes the Intellectual Property Rights or moral rights of any person.
Assessment Service Availability
- Subject to clauses 10.2, Xceptional will use reasonable commercial efforts to make the Assessment Services available 24/7, but a failure to meet this target does not constitute a breach of this Agreement.
- Xceptional may suspend access to the Assessment Services:
- for purposes of routine or emergency maintenance;
- if Xceptional considers it necessary for the protection of its systems or other users of the Assessment Services; or
- due to a systems event external to Xceptional including without limitation failure of Xceptional’s third party hosting provider, power outage or telecommunications outage that are beyond the reasonable control of Xceptional.
- Xceptional will use commercially reasonable efforts to respond to Customer support calls from authorised Customer support contacts promptly during Business Hours.
Fees And Invoicing
- The Customer must pay for Services in accordance with this clause.
- Xceptional will invoice the Customer for the applicable Fees.
- Xceptional may debit the applicable Fees against the Customer’s payment card or method provided by the Customer.
- At any time after expiry of the Initial Subscription Period Xceptional may increase the Fees by giving 30 days’ written notice.
- Xceptional will issue a tax invoice for any Additional Services supplied.
- The Customer must pay any invoice provided to it by Xceptional within 14 days of its receipt.
- If the Customer disputes any invoice, then the Customer must pay any portion of the invoice that is not in dispute, and the remainder will be payable if the dispute is resolved in favour of Xceptional.
- The Customer is liable for payment of all taxes (including goods and services tax and withholding tax), duties or other government charges or imposts payable in connection with any invoice.
- Any Intellectual Property Rights existing prior to the date of this Agreement will not be affected by this Agreement.
- Unless otherwise agreed, any Intellectual Property Rights arising in the course of the use and supply of the Services will vest in Xceptional.
- Xceptional grants to the Customer a licence for the for the relevant subscription period, or the term agreed for stand-alone services, to use the Assessment Services, and authorise End Users to use the Assessment Services, in accordance with this Agreement. The Customer acknowledges that the Services may incorporate third party software subject to, and licensed in accordance with, terms and conditions prescribed by such third parties, and the Customer must use such third party software in accordance with such third party conditions.
- Xcpetional may use any feedback or suggestions that the Customer provides in relation to the services without restriction.
Term, Suspension, Termination And Disengagement
- For services provided on a subscription basis, following the Initial Subsciption Period, this Agreement will automatically renew for periods equal to the Initial Subscription Period unless terminated by either party by providing 30 days notice prior to the end of the then current subscription period.
- Without prejudice to its termination rights under this clause 13, Xceptional may suspend the supply of Services 7 days after giving notice in writing of its intention to do so if the Customer fails to pay any correctly rendered invoice by its due date. Xceptional will have no liability to the Customer for any suspension or delay in accordance with this clause.
- Either party may terminate the Agreement immediately by notice to the other party, if the other party:
- materially breaches any term of this Agreement and that party has failed to rectify such breach within 30 days of receiving notice in writing requiring it to do so; or
- to the extent permitted by law, becomes bankrupt or insolvent, executes a personal insolvency agreement, enters into liquidation, administration, receivership or ceases to carry on business.
- Xceptional will not retain a copy of the Customer Data after termination of this Agreement for any reason, however Xceptional will provide a copy of such Customer Data to the Customer if requested as Additional Services in accordance with clause 13.5.
- Following a notice of termination from either party until termination of this Agreement for any reason, Xceptional must, if requested by the Customer, supply a copy of the Customer Data in an industry standard format reasonably specified by Xceptional.
- This clause and clauses 12, 15, 16 and 17 survive expiry or termination of this Agreement.
- Each party warrants that it has all necessary right, title, license and authority to enter into the Agreement and to perform all its obligations under this Agreement.
- Xceptional warrants that no third party Intellectual Property Rights are violated by Xceptional’s performance of its obligations or by the Customer’s use of the Assessment Services as permitted by this Agreement.
Indemnity And Liability
- Xceptional will be liable for and will indemnify the Customer and keep the Customer indemnified from and against any liability and/or any loss or damage of any kind whatsoever arising directly or indirectly from any third party claim that the Assessment Services or the Customer and its End Users’ use of the Assessment Services as permitted by this Agreement infringes the Intellectual Property Rights of any person, except and to the extent that any liability, loss or damage arises as the result of an act or omission of the Customer, its representatives or any of its subcontractors (other than Xceptional) or any End User.
- Other than express terms of the Agreement and warranties, conditions, rights or guarantees implied by relevant legislation, the exclusion of which from an agreement would contravene a statute or cause part or all of this clause to be void (“Non-excludable Rights”), the Customer agrees that Xceptional excludes all liability arising from any implied or express guarantees, representations, terms, conditions or warranties that would otherwise apply to the Services.
- Except for liability in relation to breach of any Non-excludable Rights, Xceptional’s maximum aggregate liability to the Customer in contract, including for one or more breaches of any express term or terms of this Agreement, tort (including negligence), statute or otherwise, is limited to any amount equal to the total amount paid by the Customer to Xceptional under the Agreement during the 6 months before the first event giving rise to a liability occurred.
- For breach of any Non-excludable Rights (other than where by law liability for breach of Non-excludable Rights cannot be limited), Xceptional’s liability is limited, at its option to:
- where the breach relates to goods:
- the replacement of the goods;
- the repair of the goods;
- the payment of the cost of replacing the goods; or
- the payment of the cost of repairing the goods; and
- where the breach relates to services:
- the supplying again of those services; or
- the payment of the cost of having those services supplied again.
- Except for liability in relation to breach of any Non-excludable Rights, Xceptional excludes all liability to the Customer for lost profits, lost revenue, lost savings, loss of data and any consequential or indirect loss arising out of, or in connection with any Services and any claims by any third person (including any Customer, End User or applicant of the Customer) or otherwise arising under the Agreement, even if Xceptional knew that the loss was possible, or the loss was otherwise foreseeable.
- The Customer agrees to defend, indemnify and hold harmless Xceptional and its Related Companies, representatives, partners, directors, agents and employees from and against any and all liabilities, claims, costs, losses, damages and expenses, including legal fees, that arise out of or in connection with:
- any claim made, or action brought, by any third party in connection with the Customer’s use of the Services;
- the acts or ommissions of its Related Companies; or
- any deliberate, unlawful or negligent act or omission of the Customer or any of its representatives, except to the extent any loss was caused or contributed to by an act or omission of Xceptional.
- Each party must keep all Confidential Information of the other party confidential and must not use that Confidential Information except as necessary for the purposes of this Agreement.
- A party may disclose the Confidential Information of the other party to those of its employees and subcontractors who are aware that such Confidential Information must be kept confidential, and who have a need to know (and only to the extent they have a need to know), or as otherwise have been specifically authorised by the other party.
- A party’s obligations under this clause do not apply to any information which the party is required to disclose by law or order of a court. In the event that a party is so obliged, that party must, to the extent legally permissible, immediately give notice to and consult with the other party as soon as reasonably practicable and use reasonable endeavours consistent with its obligations to minimise any such disclosure.
- At any time during this Agreement if requested by the Customer, and on termination of this Agreement for any reason, Xceptional must return to the Customer all materials (in any format, physical, electronic or otherwise) which incorporate any of the Customer’s Confidential Information, or, if directed by the Customer, permanently delete or destroy all live data held by it.
Non-Solicitation – Non Disparagement
- From the date of this Agreement and for a period of 12 months following its termination, neither party will, without the prior written consent of the other, solicit or entice or cause the solicitation or enticement of any employee, officer, contractor, consultant or client of the other party to reduce or cease working for, servicing or patronising the other party.
- During the term or following termination of this Agreement for any reason, the parties agree that they must not make any disparaging or derogatory remark about the other party.
Security And Privacy
- Each party must, and must ensure that their personnel and subcontractors will comply at all times with the applicable data protection and privacy laws (“Privacy Law”)
- Xceptional must in the course of supplying Services take all reasonable steps to protect the security and integrity of personal information, sensitive information and Confidential Information which it handles or comes into contact with.
- Each party must:
- immediately notify the other party as soon as it becomes aware that it has suffered a data breach in relation Customer Data;
- provide all reasonable assistance required by the other party to allow that other party to comply with its regulatory obligations under the Privacy Law (if any); and
- cooperate in good faith with the other party in relation to the content of, and who will issue, any notices required to be issued under the Privacy Law in relation to an eligible data breach.
- Nothing in clause 18.3 is intended to exclude, restrict or modify any obligations that a party has under the Privacy Law.
- Assignment: The Customer may not assign, transfer or otherwise deal with its rights and/or obligations under this Agreement without Xceptional’s prior written consent (such consent not to be unreasonably withheld).
- Notices: Each party notifying or giving notice under this Agreement must notify the recipient in writing and hand deliver or send by pre-paid post to the address of the recipient or send by email to the email address specified on the signing page of this Agreement.
- Relationship: Xceptional is an independent contractor of the Customer. Nothing in this Agreement will be deemed to constitute a partnership, joint venture, agency or fiduciary relationship between the Customer and Xceptional.
- Variation: Unless otherwise stated in this Agreement or any Service Schedule or SOW, a variation to this Agreement must be in writing and duly executed by both parties.
- Force Majeure: Neither party shall be chargeable with, liable for or responsible to the other for anything (or in any amount) for any failure to perform or delay caused by any event beyond the reasonable control of the party, including without limitation acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires, natural disasters, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, revolution, acts of war, war, general strikes, embargo, power, water or utility shortage, pandemics, epidemics or government actions or orders and any such failure or delay due to such causes will not be deemed a breach of or default in the performance of the Agreement by either party.
- No Waiver: No failure on the part of either party to exercise any right, and no delay in exercising any right, remedy or power under this Agreement, will operate as a waiver, nor will any single or partial exercise of any such right, remedy or power preclude any other or further exercise of any other right, remedy, or power. No waiver will be valid unless it is in writing and signed by the waiving party.
- Severability: If any part of this Agreement becomes void or unenforceable for any reason then that part will be severed with the intent that all remaining parts will continue to be in full force and effect and be unaffected by the severance of any other parts.
- Governing Law: This Agreement is governed by the laws of New South Wales, Australia and both parties agree to submit to the exclusive jurisdiction of the courts of New South Wales.