The iComply website application (the iComply Platform) is created, operated and controlled by iComply Australia Pty Ltd (ACN 646 092 220) (iComply, we, our or us).
In this Agreement, User, you and your means the person authorised by the Customer to access and use the iComply Platform, and whose details are listed in the User Access Portal (and includes anyone acting on your behalf or with your express or implied authority).
The iComply Platform is a website application that assists businesses to ensure its independent contractors or employees are complying with their disclosure and compliance obligations when providing goods and services to clients or customers. Our role in providing you with access and use of the iComply Platform should be construed strictly in this context only.
You have been invited to access and use the iComply Platform by the Customer. The Customer engaged you (as an independent contractor) to provide courier or delivery services to its client and customers. In order to carry your contractual obligations to the Customer, the Customer requires you to make continuous disclosure of certain personal, contractor, employment, health and safety and vehicle roadworthiness information and data (including, but not limited to, payment information, drivers licence details, vehicle registration and road worthiness information and work permit or visa entitlements information) (collectively, Compliance Data) to the Customer.
To assist the Customer to collect Compliance Data (including Personal Information) from you, the User agrees to access and use the iComply Platform, including publishing, uploading or submitting Compliance Data through the iComply Platform as and when required by the Customer.
REGISTRATION AND ACCESS
We do not charge you a fee to access and use the iComply Platform.
The Customer will arrange for iComply to send you an invitation via text message to your mobile device to access and use the iComply Platform. We will send you a text message which will contain a hyperlink to the User Access Portal. When you first access the User Access Portal, you will be invited to create and setup an account on the iComply Platform (User Profile). Your User Profile will be operated by a username and password which can be changed any time by you accessing the User Access Portal. To setup a User Profile on the Comply Platform, you will be required to provide Personal Information to us (including your full name, email and mobile number).
You are responsible for:
maintaining control over, and the confidentiality of, your User Profile, username and password;
keeping your username and password registration information current, complete, accurate, and truthful. You must not impersonate another account holder or provide false identity information to gain access to or use the iComply Platform;
notifying us in writing of any unauthorised access to, or use of, your User Profile, username and password; and
for all activities or transactions that occur using your User Profile. We are not liable for any loss or damage arising out of, or in connection with, any unauthorised access or use of, your User Profile, username and password.
Subject to the terms of this Agreement, we grant you a non-exclusive, personal, revocable, non-transferable and non-sub-licensable licence to access and use the iComply Platform. You will not acquire, or be entitled to, any rights other than those rights expressly set out in this Agreement.
When using the iComply Platform, you must at all times:
obtain and maintain all hardware, software and communications equipment necessary to access, and use the iComply Platform;
comply with all Relevant Laws with respect to your obligations under this Agreement; and
comply with all of our directions, policies and guidelines, advised in writing to you from time to time.
We will not be liable to you or anyone else if, for any reason, the iComply Platform is unavailable at any time or for any period. From time to time, we may suspend or restrict access to all, or some parts of the iComply Platform. You are responsible for making all arrangements necessary for you to access and use iComply Platform. You are also responsible for ensuring that all persons who access the iComply Platform (such as through your internet connection, mobile phone, computer or any other device) are aware of this Agreement, and that they comply with them.
You must not:
introduce, access, store, distribute or transmit any viruses, worm, trojan or other malicious code into the iComply Platform;
violate any iComply IP or any third party Intellectual Property Rights;
copy, modify, duplicate, create derivative works from, frame, mirror, republish, transmit or distribute all or any portion of the iComply Platform, or any other third party software that you may access or use through the iComply Platform, in any way;
access all or any part of the iComply Platform in order to build a product, service or code which competes or reproduces the iComply Platform (in full or part);
modify, alter, adapt, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the iComply Platform in any way, or otherwise learn the source code or algorithms underlying the iComply Platform;
licence, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the iComply Platform available to any third party who is not a User; and
provide, upload or submit false or misleading registration information (including Personal Information) or Compliance Information via the iComply Platform.
By uploading, publishing or submitting Compliance Data on, or via, the iComply Platform, you agree that the Compliance Data will be shared with the Customer for the purpose of assisting the Customer to confirm that you are complying with your contractual obligations to the Customer.
You are responsible for the accuracy, completeness and currency of all Compliance Data submitted, uploaded or published on, or via, iComply Platform. At all times, your warrant and represent to iComply that all Compliance Data submitted or uploaded by you on, or via, the iComply Platform is accurate, complete, reliable, current or error-free.
You acknowledge and agree that you upload, submit or publish Compliance Data on, or via, the iComply Platform at your own risk.
INTELLECTUAL PROPERTY RIGHTS
You acknowledge that we, or our licensors, are the owner of the iComply Platform (or any Intellectual Property Rights contained therein) including any information, Content, templates or technology that may be provided to, or accessed by, you in connection with your use of the iComply Platform (including any modifications, enhancements of the foregoing) (iComply IP). Accessing and using the iComply Platform does not give you (or anyone else) ownership of, or any right, title or interest in the iComply IP.
Ownership of any Compliance Data will vest in the creator of that Compliance Data, but excluding iComply IP.
You grant us a worldwide, non-exclusive, royalty-free, perpetual, non-transferable licence to use, disclose, reproduce, store, distribute, publish, export, adapt, edit, translate, produce derivative works from or copy and Compliance Data (and all Intellectual Property contained therein) for the purpose of:
enabling us to provide you with access to, and use of the iComply Platform and otherwise perform our obligations and exercise our rights under this Agreement;
sharing the Compliance Data with the Customer, our Affiliates or other third party (with whom we may contract or be affiliated with from time to time) for the purposes of performing or improving the iComply Platform.
Subject to your compliance with the terms of this Agreement, we will use reasonable endeavours to provide you with access to and use of the iComply Platform.
In the event that we fail to provide you with access and use of the iComply Platform and the Services in accordance with clause 7.1, we will use reasonable endeavours to correct any such non-conformance, or provide you with an alternative means of accomplishing the desired performance. The foregoing constitutes your sole and exclusive remedy for any breach of clause 7.1.
To the maximum extent permitted by Relevant Laws, we exclude all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), in connection with the iComply Platform.
Nothing contained in this Agreement excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other national, State or Territory legislation where to do so is unlawful.
You acknowledge, and agree that to the maximum extent permitted by Relevant Laws, we make no representation, warranty or guarantee in relation to the availability, continuity, reliability, accuracy, currency or security of the iComply Platform (or any products or services provided in connection with the iComply Platform) and we will not be liable if the iComply Platform is, or becomes unavailable for any reason, including directly, or indirectly as a result of:
telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
negligent, malicious, wilful acts or omissions of third parties (including third party service providers) or other users;
maintenance (scheduled or unscheduled) carried out by us or any third party service provider, including in respect of any of the systems or network used in connection with the provision of the iComply Platform;
services provided by third parties (including internet service providers) ceasing or becoming unavailable; or
a Force Majeure Event.
You acknowledge that, to the maximum extent permitted by Relevant Laws, we do not make any warranty or representation that any information uploaded or made available to you by us or the Customer or any Content made available to you or offered on, or via the iComply Platform is accurate, complete, reliable, current or error-free, virus free or is suitable for any particular purpose or use under any specific conditions, and so is provided on an “as is” basis; and
You acknowledge that your access to, and use of, the iComply Platform and use may be interrupted or unavailable during scheduled or unscheduled maintenance.
LIMITATION OF LIABILITY
To the maximum extent permitted by Relevant Laws, we will not be liable to you, the Customer or any third party for any:
Consequential Loss; or
Loss of, or damage to, any property or any personal injury or death to you, any other user or any third person, arising out of, relating or connected to, the provision or use of, the iComply Platform (including any products or services provided in connection with the iComply Platform) and this Agreement, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.
All risk in using the iComply Platform passes to you upon creating a User Profile, or otherwise using the iComply Platform (whichever is earlier). We do not control or direct what Compliance Data is uploaded, shared, published, posted or otherwise transmitted by you on, or via, the iComply Platform, and we are not liable to you or anyone else for any Loss arising out of, or in connection with, the use of the Compliance Data by the Customer
To the maximum extent permitted by Relevant Laws, under no circumstances will our aggregate liability to you or anyone else, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed ten dollars (AUD $10).
You agree to defend, indemnify and hold us, our Affiliates and our Personnel (collectively, the Indemnified) harmless from and against any and all Claims and Loses (including legal costs on a full indemnity basis) that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of or arising out of:
your access to, and use of, or reliance on the iComply Platform or any products or services acquired on, or via, the iComply Platform; and
any breach by you of this Agreement.
it has been collected in accordance with Privacy Laws;
you have the authority to upload, post, publish or otherwise transmit such information on, or via, the iComply Platform; and
you have obtained the informed consent of the individuals who are the subject of such Personal Information in order for us to use, disclose, store, transfer, process or handle it.
You agree that we may, at any time and at our sole discretion, with or without cause or any notice to you, terminate, suspend or block your access to (either temporarily or permanently):
your User Profile;
the iComply Platform; and/or
the website and related social media pages, networks, products and services offered on, or via the iComply Platform.
Cause for such suspension or termination may include, but are not be limited to:
serious or repeated breaches or violations of another person’s Intellectual Property Rights or privacy rights;
the iConcept Licence Agreement is terminated for any reason or the Customer terminates your engagement or employment;
your activities, conduct or transactions on, or, via, the iComply Platform, which brings, or has the capacity to bring, iComply into disrepute;
any alteration, modification, manipulation of any Compliance Data without the consent of the owner or the Customer; and
requests by law enforcement or other government agencies.
You agree that all such suspensions or terminations shall be made at our sole discretion and that we shall not be liable to you or any third party for any such suspension or termination.
We shall not be responsible to you (or anyone else) if we are prevented from or delayed in performing our obligations, by acts, events, omissions or accidents beyond our reasonable control, including but not limited to, acts of God, governmental actions, shipping, postal or other relevant transport strike, failure or accident, lockouts or other labour difficulty, war or national emergency, acts of terrorism, fire, explosion, flood, an act or omission of a third party, epidemic, pandemic, mandatory government shutdown or lockdown, shortage of or inability to obtain any necessary materials, equipment, facilities or services, the failure of performance provided by others, internet interruption or virus, accidents or breakdown of plant, machinery, software, hardware or communication network, or default of hosting or data centre providers (Force Majeure Event).
UPDATES AND VARIATIONS
Without notice to you, we may, at our absolute discretion, from time to time:
change, add or delete the functions, features, performance, or other characteristics of the iComply Platform; or
apply or install updates to, or new versions of, the iComply Platform.
You acknowledge that the Content on the iComply Platform is subject to change at any time and may be out of date at any given time. We are under no obligation to:
provide any user support services, update, correct or fix any Content or the iComply Platform; or
notify you of any changes to the Content or the iComply Platform unless required by Relevant Laws to do so.
Some of the provisions contained in this Agreement may also be superseded by provisions or notices published elsewhere on the iComply Platform. Any changes are effective immediately upon posting to the iComply Platform. Your continued use of the iComply Platform thereafter constitutes your acceptance of all such changes to the Agreement.
Please read this Agreement before using the iComply Platform as the Agreement may have changed since the last time you accessed and used the iComply Platform. If you do not agree to any change, then you must immediately stop using the iComply Platform.
If any provision in this Agreement is found to be invalid or unenforceable by a court of law, such invalidity or unenforceability will not affect the reminder of this Agreement which will continue in full force and effect.
No agency, principal-agent, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created between you and us by this Agreement.
This Agreement, any other documents referred to in it, represent the entire agreement between us and you in relation to the subject matter and supersedes any previous arrangements, agreements, representations, understandings or statements (whether verbal, in writing, or in some other format).
JURISDICTION AND APPLICABLE LAW
The iComply Platform is created and controlled by us in the State of Victoria, Australia. As such, the laws of the State of Victoria will govern this Agreement.
By using the iComply Platform you submit to the exclusive jurisdiction of the courts of Victoria and agree that any legal action will only be commenced in this forum.
In this Agreement, the following words shall have the following meanings:
Affiliate means in relation to any party, a person which, directly or indirectly, (i) is Controlled by that party; or (ii) Controls that party; or (iii) is Controlled by a person referred to in (ii) above, and for this purpose Control means the power of a person to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership agreement or other document regulating such person) that the affairs of another are conducted in accordance with its wishes.
Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise.
Compliance Data has the meaning in clause 2.2.
Content means all the information, text, materials, graphics, logos, button icons, images, video and audio clips, trade marks (whether registered or not), advertisements, layout, arrangement, graphical user interface, look and feel, databases, functionality and control features of the iComply Platform.
Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties as a likely result of breach of the agreement:
direct, indirect, consequential, incidental, special, remote or unforeseeable loss, damage, cost or expense;
loss of revenue, profit, income, bargain, opportunity, use, production, customers, business, contract, goodwill, or anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, loss of or corruption to data, loss of use of data or reputational loss or damage;
costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by another user of third party; or
loss or damage of the nature set out above in clauses (i) to (iii) (inclusive) that is incurred or suffered by or to a third party.
Customermeans OnDeck Resources Pty Ltd (ACN 635 109 581) and where the context permits, its Affiliates.
Force Majeure Event has the meaning in clause 12.
iConcept Licence Agreement means the licence agreement or software-as-as-service agreement between iConcept Pty Ltd (ACN 166 202 277) and the Customer in relation to the provision of the iComply Platform.
iComply IP has the meaning given to it by clause 6.1.
iComply Platform means the online platform application owned, operated and managed by us and made available through the Website, including any systems, Content and server software, the computer hardware on which the platform, application, database, system, Content and server software is installed, and all Intellectual Property Rights contained therein, provided or otherwise made available by us.
Intellectual Property Rights means designs, copyright, trade marks, patents, operations, software or systems, trade names and domain names, rights in goodwill, rights in confidential information or other intellectual property rights, whether under statute, common law, equity, and whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights and all similar rights which subsist or will subsist now or in future in any part of the world.
Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including legal and other professional costs and Consequential Loss.
Personnel means any director, officer, employee or contractor of a party
Personal Information means data by which a person may be personally identified, including a person’s name, postal address, email address, telephone number and any other information a party collects, including that which is defined as personal or personally identifiable information under any applicable Privacy Laws.
Privacy Laws means any applicable laws and codes of practice dealing with privacy, including the Privacy Act 1988 (Cth) (as amended) and the Australian Privacy Principles, and any other legislation, codes and policies relating to the handling of Personal Information applicable to the jurisdiction in which the user is located.
Relevant Laws means any relevant rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations, proclamations, ordinances and by-laws and other subordinate legislation, rulings, or legal requirements and Privacy laws, anywhere in the world.
we, our or us means iComply Australia Pty Ltd (ACN 646 092 220), and where the context permits, includes our Personnel and Affiliates.
Website means the iComply website or any other site notified by iComply from time to time.
User, you or your has the meaning in clause 1.3.
User Access Portal means the self-service portal provided to the User to access and use the iComply Platform.