Terms & Conditions
Your use of this Website is subject to these legally binding terms and conditions. Please read them carefully before proceeding to use the site. Proceeding with use of this site is your acceptance of these Terms and Conditions.
1. Definitions
(1) BMB means H.M Langstaff and S Mugwagwa trading as “Be My Boss” (ABN 77 854 228 315).
(2) GST Amount has the meaning given to it in clause 5.4.
(3) Intellectual Property Rights means, to the extent owned or controlled by BMB, all relevant (i) copyright rights (including copyright applications), (ii) rights to exploit trade secrets and other non-public or confidential information, (iii) patent rights (including patent applications, disclosures, renewals, divisions, continuations, extensions or continuations in part, and patentable inventions), (iv) moral rights, (v) trademarks, (vi) know-how and (vii) any other similar rights or intangible assets recognized under any laws or international conventions, in any country or jurisdiction in the world, including but not limited to the Goodwill and the registered trading name of “By My Boss” VIC B2132745M.
(4) Over Holding Date means the date of expiration of the term of the Service Contract between Be My Boss and the User.
(5) Service Contract means the subscription agreements between BMB and the User governing the use of the Websites and its contents including tiered access to BMB databases.
(6) Services means all the services supplied by Be My Boss to the User via the Websites and include the services described in clause 4.1.
(7) Terms and Conditions means the terms and conditions contained in this document.
(8) User means the person, entity or company (including its successors, personal representative/s and permitted assigns) acquiring the Services from BMB.
(9) User's Account means the person, entity or company (including its successors, personal representative/s and permitted assigns) acquiring the Services from BMB.
(10) Websites means the Internet web site at http://www.bemyboss.com.au/ or its related sites such as bemyboss.com.au and bemyboss.co.nz at which the Services are (or intended) to be provided to the User as stipulated on BMB's Invoice or Quotation, as the case may be.
2. Incorporation of Terms and Conditions
2.1 The User acknowledges and agrees to be bound by these Terms and Conditions upon creation of a User's Account with BMB to access the Services.
2.2 Any contract of sale, order, quotation or estimate made or accepted by or on behalf of BMB will be subject to the Terms and Conditions.
2.3 Any quotation or estimate made by BMB with a potential User will not constitute an offer for sale, but merely an invitation to treat containing these terms and conditions subject to which BMB will be prepared to consider an offer from the User to enter a Service Contract.
2.4 Any terms or conditions advanced by the User, whether in a purchase order, specification or otherwise, will not be binding on BMB insofar as they purport to amend, annul or augment any of these terms and conditions unless specifically agreed to by BMB in writing.
3. Privacy Policy
3.1 BMB may collect, use and disclose information about the User and send emails to the email addresses provided by the User.
3.2 The User acknowledges and agrees BMB will collect personal information in accordance with BMB's Privacy Policy as amended from time to time.
4. Services
4.1 Description of Services
Subject to the Service Contract, which governs the relationship between BMB and the User, the Services provided by BMB are specifically limited to the following:(1) Specific logins, the service level for which is nominated by the User;
(2) Free access to certain Users, for example prospective employees;
(3) Networking forum for prospective recruiters (employers) and prospective candidates (employees); and
(4) Access to database information including prospective candidate information.
4.2 Whilst BMB makes all reasonable efforts to host and facilitate access to candidate and employer lists and information suitable to the User and to require Users to ensure all prospective candidates' and prospective recruiters' details are accurate, BMB does not accept responsibility for any errors, omissions or misinformation. BMB does not accept responsibility for any losses, expenses or damages, however incurred in relation to the accuracy of the information provided.
4.3 The fee payable by the User to BMB for access to is set out on the Empoyers page.
4.4 The User agrees to pay the non-refundable Subscription Fee immediately upon clicking the button marked “I AGREE” at each level of subscriber access to the Websites.
4.5 All candidate introductions are confidential. If the User introduces a candidate that BMB has introduced to the User to any other prospective employer, including but not limited to any subsidiaries or associates of the User (Third Party Employer) and that candidate is employed by the Third Party Employer within 12 months of that introduction, then BMB will be deemed the effective cause of that introduction and Placement the User will be liable to pay the a commission to BMB for the placement in the amount of 10% of the gross annual remuneration paid to that candidate (Placement Fee) to BMB in accordance with clause 4.6.
4.6 The User must notify BMB immediately in writing of any Third Party Placement and agrees to pay the Placement Fee as directed by BMB within 7 days of the date an Invoice is rendered to the User.
4.7 The User agrees rights to access and use the information contained on the Websites are personal to the User and may not be licensed, assigned, sold, used or redistributed for any other purpose or to any other person.
4.8 If the User fails to satisfy the condition contained in clauses 4.6 or 4.7 above, BMB shall:
(1) be entitled to cancel the User's account with immediate effect;
(2) not be required to renew such subscription; and
(3) be entitled to pursue and enforce any of the remedies available to it in clause
4.9 BMB makes all reasonable efforts to source and market to prospective employees or prospective employers of a high, professional standard in terms of ability, skill, good character and repute and reliability. In the event that a candidate or employer does not meet the User's required standards, BMB will not be responsible for any loss, wage or salary, lost opportunity or other liability that the User may have incurred in respect of any relationship, contract, arrangement or any other matter arising outside the scope of the Service Contract.
4.10 The User agrees to comply with all relevant statutes, bylaws and legal requirements to which the User is subject in respect of the employer-employee relationship.
4.11 BMB may at its sole discretion refuse to provide services to the User, or delete any content that in our reasonable opinion breaches or is likely to breach the Terms and Conditions or ordinary ethical standards.
4.12 The User is responsible for the security of any username and/or password for access to the Websites and for the consequences of its use or misuse by any third party including but not limited to any liability contemplated in clause 4.6. The User must notify BMB immediately if it believes that someone else is or might by using its username and/or password.
4.13 The User acknowledges and agrees that BMB operates interactive, feedback-based Websites, upon which the User may post comments, compliments, criticisms and other observations regarding the use of the Websites that are honest, fair and reasonable and which can be substantiated.
4.14 The User acknowledges and agrees that in using the Websites or Services it must not:
(1) post or transmit any information or material on the Site which is offensive, defamatory, obscene, unlawful, vulgar, harmful, threatening, abusive, harassing or otherwise reasonably objectionable;
(2) interrupt or intervene in the flow of communications between other Users or otherwise act in a manner which negatively effects other Users of the Websites;
(3) impersonate any other person when posting information or material to the Websites; and
(4) use the Site for illegal purposes including without limitation by posting to the Site information encouraging conduct that would constitute a criminal offence;
(5) use any feature of the Site to send unsolicited commercial emails to Users, whether individually or as a group;
(6) copy, translate, reproduce, communicate to the public, adapt, vary or modify anything on the Website without BMB's prior written consent;
(7) use anything on the Websites for or in connection with any business or enterprise (whether for profit or otherwise) and in particular in any enterprise of a service which is in competition with BMB's business interests;
(8) post to the Websites or otherwise propagate material of any kind which contains computer worms, viruses or other types of malicious or harmful programs;
(9) take any action that imposes an unreasonable or disproportionately large load on BMB's Website infrastructure, including but not limited to "spam" or other such unsolicited mass e-mailing techniques;
(10) damage, modify, interfere with, disrupt or destroy the files, data, passwords, devices or resources that belong to BMB or do anything that compromises the security of the Websites; or
(11) use the Websites to engage in misleading or deceptive on-line marketing practices.
4.15 The User acknowledges and agrees that in using the Websites or Services:
(1) it must provide BMB with complete and accurate contact details when using the Websites enabling other Users to contact User as requested;
(2) any information or material, including but not limited to electronic files, photos or video images or files submitted by it to the Website either for publication on the Websites or for inclusion in the feedback system are and will be treated by BMB as non-confidential and non-proprietary and BMB may use such material without restriction; and
(3) any information or material it posts to the Website may be removed by BMB at its sole discretion from the Website without notice at any time.
5. Prices
5.1 Prices quoted are for supply of the Services to the Site indicated on the invoice or quote unless otherwise stipulated on BMB's invoice or quote. Prices are subject to alteration without notice.
5.2 The User acknowledges and agrees that Prices quoted shall (at BMB's sole discretion) be adjusted to compensate BMB for any additional costs incurred by BMB in providing any new or changed payment or benefits which BMB is required to provide in accordance with the User's original or additional instructions and or requests.
5.3 The User is not entitled to withhold payment of any amount invoiced by BMB by way of Retention.
5.4 Unless stated to the contrary all costs and prices quoted are exclusive of goods and services tax, value added tax or any other like tax (GST). The User must pay to BMB any amount (GST Amount) which is payable by BMB on account of GST as a consequence of any supply made or deemed to be made or any other matter or thing under or in connection with this Agreement. The GST Amount must be calculated by multiplying the amount on which the GST is calculated by the prevailing rate of GST.
5.5 Where the User enters into a Service Contract with BMB for a specified term, in the event that BMB continues to provide the Services to the User after the Over Holding Date (unless the Service Contract has been expressly renewed and a new Service Contract entered into):
(1) the Terms and Conditions of the Service Contract shall be deemed to continue on an over holding basis save that all amounts, costs, charges, prices and fees quoted in the Service Contract shall be increased by five percent (5%) on the Over Holding Date and annually thereafter on the anniversary of the Over Holding Date by five percent (5%);
(2) all payments payable pursuant to the Service Contract including those payments due and payable in relation to any over holding period shall be paid by the User every three (3) calendar months in advance of the Services, the performance of which is required under the Service Contract; and
(3) notwithstanding any period of over holding, BMB may at its sole option cease providing the Services to the User.
6. Payment
6.1 The User must pay any GST Amount at the same time and in the same manner as making payment of any consideration on which the GST Amount is calculated. If the GST Amount is not calculated on consideration, the User must pay the GST Amount within seven days of receipt of a written demand from BMB.
6.2 If the User fails to make any payment on the due date, then without prejudice to any other right or remedy available to BMB, BMB shall (at its option) be entitled to:
(1) treat the contract as repudiated by the User and suspend any further provision of services to the User, claim damages from the User and charge the User interest (both before and after any judgment) on the amount unpaid, at the rate prescribed from time to time by the Penalty Interest Rates Act 1983 (Vic); and/or
(2) affirm the contract, claim damages from the User and charge the User interest (in accordance with clause 6.2(1)); and/or
(3) Suspend delivery of all Services until all outstanding accounts have been paid; and/or
(4) Suspend trading with the User.
6.3 The User agrees to pay BMB's costs of recovering or attempting to recover from the User all outstanding payments and charges owing to BMB, including any mercantile agent's costs, and legal costs on a full indemnity basis.
6.4 The User acknowledges and agrees that:
(1) it is not entitled to the contact details (i.e. name, telephone number, email address, etc.) of other Users or other paid elements of the Services until such time as it has made payment in full of all outstanding accounts owing by it to BMB; and
(2) BMB may in it's absolute sole discretion, withhold the provision of the Services until such time as the User makes payment of all outstanding accounts owing to BMB.
7. Risk
The risk in any components or features of the Website provided to the User with or incidental to the Services will pass to the User immediately upon the provision of a subscription for access to the Website via which the Services are to be provided or upon first use by the User of the Website (whichever is the earlier).
8. Retention of title and suspension of access
8.1 BMB will retain title to (but not risk in) any data provided to the User until BMB has received payment in full for them and all other sums owing to it by the User.
8.2 BMB's right to retain title does not affect its rights as an unpaid seller.
8.3 If the User:
(1) fails to make any payment when due; or
(2) becomes bankrupt; or
(3) commits an act of bankruptcy; or
(4) or becomes insolvent; or
(5) has judgment entered against it in any court; or
(6) enters into or seeks to enter into any scheme of arrangement, composition, assignment for the benefit of, or other arrangement with its creditors or any class of creditors, or an application is made for an order, a meeting is convened to consider a resolution, a resolution is passed or an order is made that the User be wound up or otherwise dissolved and/or that a liquidator or a provisional liquidator be appointed, or if a receiver or receiver and manager or administrator of the Company is appointed in respect of all or part of its assets, then
BMB is entitled, and the User grants BMB permission to suspend the User's Account with or without notice and to remove at the User's cost and expenses, the data in respect of which title has not passed to the User. BMB shall be entitled to use the User's name and to act on the User's behalf in exercising these rights and BMB is not liable for any costs, losses, damages or other expenses suffered by the User or any third party in respect of BMB's removing the data from or suspending the User's Account.
9. Warranty
(1) BMB will use its best endeavors to meet the User's expectations of the Services provided to the User. Subject to correct and proper usage of the Websites and the User's Account by the User, BMB will remedy defects in data or components of the Services supplied by BMB that arise within 1 month of delivery of such data or components to the User. The said warranty will be separate for each such item or component with the warranty period for such item or component commencing on and from the date of delivery of or access to such item or component to or by the User regardless of whether the overall Services under which such items or component were delivered, have been completed. For the purposes of this clause, proper usage includes maintenance in accordance with the recommendations of the manufacturers or relevant regulatory authority.
(2) The User expressly acknowledges and agrees that it has not relied upon, and BMB is not liable for, any advice given by BMB, its servants, agents, representatives or employees in relation to the suitability for any purposes of the Services.
(3) Subject to clause 9(4), to the full extent permitted by law, all conditions, warranties and representations express or implied by statute, common law or otherwise in relation to the Services supplied are hereby excluded and to the full extent permitted by law, BMB will be under no liability to the User for any damages (including but not limited to incidental, special, consequential or general damages) in connection with or arising out of the supply or use of the Services howsoever arising, even if due to BMB's negligence, or the negligence of BMB's servants, agents, sub-contractors or suppliers.
(4) These terms and conditions do not affect the rights, entitlements and remedies compulsorily conferred on the User under the Trade Practices Act 1974 (Commonwealth) and other statutes, rules or regulations for the time being in force, and nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law and which by law cannot be excluded, restricted or modified.
(5) In the event that liability cannot be excluded, to the fullest extent permitted by law, BMB's liability to the User shall be restricted at BMB's sole option to:
(a) Refund of the portion of the sale price which relates to that part of the Services, components or items that BMB deems needs to be rectified; or
(b) Replacement of that part of the Services, components or items that BMB deems needs to be replaced; or
(c) A refund of such amount which BMB deems is necessary to rectify or compensate the User for any alleged defect or liability; or
(d) Refund of the Sale Price; or
(e) In the event of a defective component or item supplied in the course of providing the Services:
(i) replacement of that defective component; or
(ii) a refund of the amount charged by BMB for the supply of that defective component.
(6) Notwithstanding any other provision of this Agreement, the User acknowledges and agrees it is not engaged in the business of personnel recruitment and/or placement and will use the Websites, its access to BMB's database or enable access to third parties or organizations or individuals engaged in the business of personnel recruitment and/or placement.
10. Cancellation
In the event of the User canceling an order for Services after 30 days from the date of the ordering of the said Services, the User shall be liable and agrees to pay BMB an amount equal to 20 percent of the total contract value of the Services, together with BMB's costs of any non standard equipment or items purchased or hired by BMB for the provision of the Services.
11. Miscellaneous
11.1 Unless otherwise advised in writing by BMB, the quoted price for the delivery of the Services is based onBMB's standard 38 hour Monday to Friday week (excluding Public Holidays), details of which such standard hours are available to the User upon request, with a requirement that the User provides hours notice for anticipated access requirements outside standard hours of business.
11.2 The User acknowledges that the quoted Price does not include costs relating to any site specific exclusions contained on BMB's quotation, removal of software viruses and/or similar hazardous programs and/or removal, penetrations and make good, giving of clear access to the Websites in all areas including the removal and replacement of data as required for the smooth operation and stable architecture of the Websites, overtime and out of business hours work, pre-existing faults not previously covered by the Service Contract, variations or unanticipated work, and any items not specifically raised or included in BMB's quotation. Amounts for such charges which will be charged to the User in addition to the quoted price.
11.3 The pricing information provided to the User by BMB is not to be provided by the User to a third party in any form without the written consent of BMB.
12. Force Majeure
If BMB is prevented or delayed (directly or indirectly) from delivering the Services or any part thereof on the agreed date of delivery or from otherwise performing any contract between BMB and the User or any part thereof by reason of act(s) of God, war embargo, riot(s), strike(s), lock-out(s), trade dispute(s), fire(s), break-down, inclement weather, interruption of transport, Government action, delay in delivery to BMB of any of the goods or materials required for the delivery of the Services to the User, or by any cause whatsoever (whether or not of like nature to those specified above) outside of BMB's control, BMB shall be under no liability whatsoever to the User and shall be entitled at its option (to be notified in writing to the User) either to cancel the contract or without any liability to extend the time or times for delivery or performance of the contract, or any part thereof by a period equivalent to that during which such delivery or performance has been prevented by any of the restrictions referred to in this clause.
13. Intellectual Property
The sale to and purchase by the User of the Services does not confer on the User any license or right under copyright, patent, design or trademark or any other intellectual property right which is the property of BMB.
14. Disclaimer
The User acknowledges and agrees that
(1) BMB provides the Services and Websites on an 'as is' basis and without any warranty, express, implied or statutory as to the quality, efficacy, reliability, fitness for any particular purpose, merchantability or other attribute or characteristic of any User, participant or component or feature of the Services or Websites.
(2) To the fullest extent legally possible, BMB excludes any representation or warranty concerning the Services and Websites, the Site or any third party website referred to or connected via the Websites or any User's website.
(3) The Websites may experience interruptions and access difficulties from time to time and that BMB will not be responsible for such interruptions or access difficulties;
(4) To the extent permitted by law Be My Boss excludes all liability to the User or any other person for any loss claim or damage (whether arising in contract, negligence, tort, equity or otherwise for any loss, whether it be consequential, indirect, incidental, special, punitive, exemplary or otherwise, including, without limitation any loss of profits, loss or corruption of data or loss of or damages to reputation or goodwill) arising out of or in connection with any:
(a) removal or termination of User's access to the System and Site; or
(b) use of the Site or the System or information on or provided through the Site or the System or any information or advice otherwise provided by Be My Boss or a Supplier or Provider, even if Be My Boss has been advised of the possibility of such loss or damage.
(5) To the extent permitted by law, BMB and all associates and related parties of BMB expressly limit their 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 Be My Boss's sole discretion), in the case of the supply of the Services:
(a) the supply of the services again; or
(b) the payment of the cost of having the services supplied again.
15. General
15.1 BMB's failure to enforce or exercise, at any time or for any period of time, any term of any contract incorporating these terms and conditions will not constitute, and will not be construed as, a waiver of such term and will in no way affect BMB's right later to enforce or exercise it.
15.2 These Terms and conditions will in all respects be construed and have effect according to the laws of the State of Victoria and the parties agree to submit to the exclusive jurisdiction of the courts of that State.
15.3 The rights conferred on BMB by these Terms and Conditions are in addition to and not in substitution for and do not derogate from the rights conferred on BMB pursuant to any other agreement in force between the User and BMB, including but not limited to any Deed of Guarantee and Indemnity or other terms and conditions of BMB.
15.4 If any provision of these Terms and Conditions are judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of these Terms and Conditions to the intent that the invalid or unenforceable provision will be treated as severed from these Terms and Conditions.
15.5 If the Users account has not been used for 12 months then that account may at BMB's sole option, be closed without notice. In the event that the Users account is closed, the User will be required to open a new account and complete a new credit application.
16. Relationship
The User acknowledges and agrees that entering this agreement creates no relationship of agency, associated enterprise, related party, partnership or joint venture relationship.