Terms of Service

1. Terms of Service

Thank you for using WeRoster. By using WeRoster, you agree to our Terms of Service, which is a legal agreement. If you are using WeRoster for your employer, you are agreeing on behalf of that employer (our Customer). Our Terms of Service apply to your use of our Websites and Services. This agreement applies to both Trial and Paid Subscription Customers and their Authorised Users.

Your use of WeRoster shall be deemed to be your agreement to abide by this agreement including any materials available on the WeRoster’s website incorporated by reference herein, including but not limited to WeRoster’s our Privacy Policy.

2. Definitions and Interpretations

In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:

Additional Fee

means any fee payable by the Customers to WeRoster for the provision of any Additional Services, charged at a rate as agreed between the parties, including the Subscription Fees payable under clauses

Additional Features

means any additional, customised or customisable services which WeRoster may provide at the request of its Customers, for an Additional Fee, at any time and from time to time, and includes without limitation, the provision of consulting, customisation, implementation, training, integration or any other additional services.

Agreement

means any agreements entered into between the Company and a Customer to which these standard Terms and Conditions apply;

Annual Subscription

means an annual Paid Subscription in respect of which the Subscription Fees are paid annually

Annual Subscription Period

means, in respect of an Annual Subscription, the annual period of a Paid Subscription that has been invoiced in advance.

Authorised User Data

Authorised User Data means all information stored in the WeRoster Application in respect of an Authorised User’s individual WeRoster profile.

Authorised User

means any current or former employees, officers, agents, contractors or any other representatives of the Customer, its subsidiaries or other related entities who have been issued with an Authentication Credential in accordance with this Agreement irrespective of whether their account to access the WeRoster Application is active and irrespective of whether they are acting in the capacity of the Customer.

Beta Services

means Our services that are not generally available to customers.

Business Day

means a day, which is not a Saturday, Sunday or gazetted public holiday, on which banks are open for trading in Melbourne, Victoria.

Commencement Date

means the date a Customer first deploys (Go-Live) WeRoster online to its authorised users.

Customer

means the individual, business, or other organization with whom the WeRoster contracts; or any party identified as the customer on any registration, order form or other similar form submitted to WeRoster

Fees

means any fees or other amounts payable by a Customer to WeRoster for any services provided pursuant to this Agreement, and includes without limitation the Subscription Fee, the Optional Usage Fee and the Additional Fee.

Liability

means any liability, loss, cost, expense, amount due, debt, damage, charge, penalty, and any other obligation, and whether fixed or contingent.

Loss

means any loss (direct and Consequential Loss), damage, claim, action, liability, cost, expense, charge, penalty, and legal costs and expenses on a full indemnity basis however arising.

Order Form

means an ordering document specifying the Services to be provided hereunder that is entered into between WeRoster and Customer, including any addenda and supplements thereto.

Products

means hardware, software and associated equipment that may be supplied by the Company;

Services

means any service supplied by the Company.

Supplier

means any supplier of Products or Services to the Company;

Third Party Application

means any product, service, system, application or internet site integrated or interfaced with the WeRoster Application which may be owned or operated by a Third Party Provider which is used by a Customer or its Authorised User in connection with the WeRoster Application.

Unacceptable Content

means any content which, in WeRoster’s reasonable opinion, is obscene, offensive, upsetting, defamatory, illegal or inappropriate, infringes or appears to infringe the intellectual property rights of any person or contravenes or appears to contravene any applicable laws, regulations or codes of conduct.

3. Term

The term of this Agreement (Term) commences on the Commencement Date and will continue to apply until it is terminated in accordance with clause 12. For the avoidance of doubt, the terms and conditions of this Agreement continue to apply regardless of any changes in the subscription service in accordance with clause 4, which may be varied at any time and from time to time.

4. Subscription Services

4.1 Provision of Subscription Services

For the duration of the Term, WeRoster grants a non-exclusive, non-transferable (except as expressly provided in this Agreement), limited license to the Customer and its Authorised Users to access and use:

(a) the Establishment of the WeRoster Application, but does not include any customisation beyond the scope of the Standard Establishment;

(b) the level of access to the WeRoster Application commensurate as agreed on the signed business proposal;

(c) the Support Services, subject to the terms of use as agreed on the signed business proposal

4.2 Additional Services

WeRoster may, at the request of the Customer and for an Additional Fee, may provide Additional Services to a Customer. Unless expressly agreed otherwise, any Additional Services will be provided on the terms and conditions of this Agreement.

If a Customer’s request for an Additional Service is accepted, WeRoster will provide the Customers with a notice containing a schedule of the Additional Fee (Fee Schedule) before the commencement of the Additional Service.

Additional Services are offered by WeRoster at its sole and absolute discretion and nothing in this clause 4.2 obliges WeRoster to provide any Additional Services requested by a Customer.

4.3 Beta Services 

From time to time, WeRoster may invite a Customer and its Authorised Users to try Beta Services at no charge. The Customer and its Authorised Users may accept or decline any such trial in their sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. WeRoster may discontinue Beta Services at any time in its sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.

4.4 Features may vary

WeRoster may, at any time and from time to time, amend, vary or remove any of the features, functions and other benefits made available to the Customers and its Authorised Users in respect of the WeRoster Application as it sees fit without any prior notice to the Customers.

4.5 WeRoster retains sole discretion

The Customer agrees and acknowledges that WeRoster retains the sole and absolute discretion regarding any of the features, functions and other benefits made available to the Customers and its Authorised Users in respect of the WeRoster Application. Nothing in this Agreement requires WeRoster to provide or maintain any features, functions or other benefits in respect of the WeRoster Application. The Customer also acknowledges and agrees that nothing in this Agreement limits WeRoster’s right to discontinue or alter any such features, functions or other benefits at any time and from time to time.

5. Subscription Type

5.1 Trial Subscription

A Customer who registers with WeRoster on the WeRoster Website or via an authorised application marketplace may be automatically subscribed for the Trial Subscription. A Customer on a Trial Subscription is provided with limited access to the WeRoster Application, designed to provide it with an opportunity to trial the features before subscribing to a paid subscription.

5.2 Paid Subscription

A Customer who wishes to gain access to more features of the WeRoster Application or add additional Authorised Users may choose to subscribe to a Paid Subscription on the WeRoster Website. The Subscription Fee and the applicable features of Subscription Services are explained on the Customer’s Business Proposal. Access to and features available on the WeRoster Application may differ between various Customers.

5.3 Additional Features

A Customer with a Paid Subscription may request additional features or functions, support, updates or other services to be provided by WeRoster as an Additional Service and these Additional Services will be provided pursuant to clause 4.2. WeRoster may publish or otherwise make available the additional features or functions, support, updates or other services on the WeRoster Website, which may be varied from time to time.

6. Third Party Applications

The Customer acknowledges and agrees that the WeRoster Application may in future interact with Third Party Applications or require Third Party Applications or Third Party Providers to be used when utilising certain features or functionality in the WeRoster Application. Where such Third Party Applications or Third Party Providers are used, the Customer acknowledges and agrees that:

(a) WeRoster makes no representations or warranties relating to the Third Party Providers or the Third Party Applications;

(b) the inclusion of any link to or integration with any Third Party Application does not constitute or imply any affiliation with, or sponsorship, endorsement or approval by WeRoster of the Third Party Provider or Third Party Application;

(c) the Customer agrees to and must abide by, and must ensure that each Authorised User agrees to and abides by, any obligations imposed upon it by such Third Party Provider, and WeRoster may notify the Customer of such obligations;

(d) access to Third Party Applications is at the Customer’s risk and WeRoster will not be responsible for any Loss that may result from the Customer’s use of any Third Party Application, even if the Third Party Application may interface with the WeRoster Application, or even if WeRoster may have provided installation or integration services with respect to the Third Party Application;

(e) the Third Party Providers may have practices, terms and policies, including those relating to privacy or data security, that are different from those of WeRoster and WeRoster is not responsible for any of these practices, terms and policies and specifically disclaim any liability for any of them;

(f) WeRoster makes no representations or warranties regarding the Third Party Applications or the Third Party Providers. Without limiting the above, WeRoster does not make any representations or warranties regarding the availability or timing of any availability of any interface between the WeRoster Application and any Third Party Applications;

(g) the Customer will maintain a direct, independent contractual relationship with all Third Party Providers in relation to the Customer’s access to or use of the Third Party Applications; and

(h) WeRoster is not responsible for and has no obligation to provide the Customer with any assistance or support in relation to the functioning or operation of the Third Party Applications.

7. Authentication Credentials

7.1 Provision of Authentication Credentials

Upon request from the Customer from time to time, WeRoster will provide the Customer with Authentication Credentials in order for Authorised Users to access the WeRoster Application.

7.2 Special Requirements for Authentication Credentials in use by customer infrastructure

If the Customer implements an Authentication Credential in a system or Third Party Application with the result that such a system is an Authorised User (Authorised System), the Customer will implement the Authorised System such that any person accessing the WeRoster Application via the Authorised System can be accurately identified to WeRoster upon its request, and the date, time and nature of such person’s access to the WeRoster Application via the Authorised System can likewise be accurately identified to WeRoster.

7.3 Obligations of the Customer in relation to the Authentication Credentials

The Customer must:

(a) ensure that each Authentication Credential is securely maintained and used only by the Authorised User to whom the Authentication Credential has been issued;

(b) comply with any policies, guidelines or other requirements issued by WeRoster from time to time in any way relating to Authentication Credentials;

(c) immediately notify WeRoster and take immediate steps to disable an issued Authentication Credential if: (i) an Authorised User ceases to be employed by, contracted to, or otherwise authorised to use the WeRoster Application by the Customer; (ii) an Authentication Credential is lost, stolen, missing or is otherwise compromised; or (iii) the Customer becomes aware of any breach of the provisions of this Agreement by the Authorised User, in which case the Authentication Credentials will be suspended until such time the breach is remedied to WeRoster satisfaction;

(d) not transfer or allow to be transferred Authentication Credentials between or amongst Authorised Users or other individuals or systems and take all reasonable steps to ensure that Authentication Credentials are not transferred;

(e) conduct regular checks to ensure the integrity of all issued Authentication Credentials, including regularly cross checking its list of Authorised Users with such list maintained by WeRoster and provided to the Customer; and

(f) periodically reset Authentication Credentials as and to the extent required by WeRoster from time to time.

7.4 Management of Authentication Credentials

WeRoster reserves the right at any time and from time to time to change and/or revoke any Authentication Credentials and will provide the Customer with a written notice of the change or revocation.

8. Customer Responsibilities and Obligations

8.1 Customer responsibilities

The Customer will be responsible for:

(a) uploading all Customer Data into the WeRoster Application and ensuring all Customer Data and its Authorised User Data is true and accurate;

(b) the day to day use of the WeRoster Application;

(c) obtaining all consents, permits or approvals necessary to upload the Customer Data and Authorised User Data into the WeRoster Application, store the Customer Data on the WeRoster Infrastructure and otherwise use the WeRoster Application;

(d) ensuring that the use of the WeRoster Application by the Customer and each of its Authorised Users and the uploading and storage of the Customer Data complies with all applicable laws, regulations or codes of conduct;

(e) satisfying itself that the WeRoster Application is compatible with its own hardware, software and internet and network capabilities and maintaining all hardware, software, Third Party Applications and other technology necessary to be able to access and use the WeRoster Application;

(g) satisfying itself that the WeRoster Application is compatible for all its Authorised users and their devices, including whether desktop, mobile or tablet devices;

(f) ensuring that it maintains back up or alternate systems for use if the WeRoster Application is unavailable or is otherwise unable to be used by the Customer;

(g) ensuring no Unacceptable Content is uploaded to the WeRoster Application or stored in the WeRoster Infrastructure; and

(h) any acts or omissions committed by the Authorised Users or the other employees, officers, contractors or representatives of the Customer or any of its related parties in relation to the WeRoster Application.

8.2 Customer Obligations

The Customer must:

(a) use the WeRoster Application only for its internal business purposes;

(b) only use and copy the Documentation to the extent necessary to use the WeRoster Application;

(c) comply with and ensure that its Authorised Users comply with the terms and conditions of this Agreement and any policies regarding the use of the WeRoster Application which WeRoster may notify of its Customer from time to time (notification of which may be made available or accessible on the WeRoster Website or through the Customer Installation), including without limitation, WeRoster’s Fair Use Policy; and

(d) ensure that each Authorised User is either an employee or contractor of the Customer who has all authority, permissions or other approvals required to be able to access and use the WeRoster Application.

The Customer must not, cannot and will not

(a) use the WeRoster Application or any other Intellectual Property in any way or for any purpose other than as contemplated by this Agreement;

(b) use any Intellectual Property or Confidential Information of WeRoster or any of its subsidiaries or other affiliates, or otherwise breach any other legal obligation, to build a competitive product or service or build a product or service using similar ideas, features, functions or graphics of the WeRoster Application;

(c) permit any person other than the Authorised Users to use the WeRoster Application and ensure that those Authorised Users, in using the WeRoster Application, comply with the terms and conditions of this Agreement as if they were the Customer;

(d) modify, adapt, translate, reverse engineer, decompile, disassemble or copy all or any part of the WeRoster Application;

(e) attempt to circumvent or break any encryption, decryption or other security device or technological protection measure contained in the WeRoster Application;

(f) send or store material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs;

(g) interfere with or disrupt the integrity or performance of the WeRoster Application or the data contained therein;

(h) attempt to gain unauthorised access to the WeRoster Application, WeRoster Infrastructure or its related systems or networks;

(i) create internet "links" to or from the WeRoster Application, or "frame" or "mirror" any content forming part of the WeRoster Application other than on the Customer’s own intranets or otherwise for its own internal business purposes;

(j) distribute any part of the WeRoster Application for commercial purposes or otherwise sublicence or resell the WeRoster Application;

(k) create derivative works from all or any part of the WeRoster Application;

(l) transfer, assign, rent, lease, lend, sell or dispose of all or any part of the WeRoster Application or any compilation derived from the WeRoster Application or otherwise commercially exploit or make the WeRoster Application;

(m) make any part of the WeRoster Application publicly available in violation of this Agreement or other legal obligation; or

(n) attempt or allow its Authorised Users or any other third parties to do or attempt to do any of the above.

8.3 Access to Customer’s system

The Customer acknowledges and agrees that, throughout the Term, the Customer grants WeRoster the right and permission to access (including by remote access) the Customer Installation and the computer systems of the Customer used to access the Customer Installation, including but not limited to, to provide support services to the Customer and to monitor the use of the WeRoster Application by the Customer. The Customer must do all things reasonably requested by WeRoster to ensure WeRoster has such the required access during the Term.

9. Support

9.1 Online Technical Support

For the duration of the Term and only for Customers who are eligible for Online Technical
Support, WeRoster will use its best commercial endeavours to provide the Customer and its
Authorised Users with Online Technical Support from the Customer Experience team during the Support Hours.

9.2 Support procedures

To be eligible for the Online Technical Support:
(a) the Subscription Type which the Customer currently subscribes for is eligible for
Online Technical Support; and
(b) the Customer and its Authorised Users must comply with all support procedures or
directions which WeRoster may have from time to time.

9.3 No obligations to provide other services

The Customer acknowledges that the support service described in clause 9.1 is the only
support services WeRoster will provide to the Customer as part of the Subscription Services. The Customer acknowledges that nothing in the Agreement imposes an obligation WeRoster to
develop, release or install for the Customer any updates, upgrades, patches, bug fixes, new
releases or new versions in respect of the WeRoster Application (Updates), provided however
that if WeRoster does develop or release any Updates, a Customer must use the Updates
Provided.

10. Fees and Expenses

10.1 Fees

For the duration of the Term, any Customer who subscribes for:

(a) a Paid Subscription must pay to or as directed by WeRoster the Subscription Fee applicable to that Paid Subscription;

(b) any optional features available on the WeRoster Application must pay to or as directed by WeRoster any Optional Usage Fees which may be applicable; and

(c) any Additional Services must pay to or as directed by WeRoster any Additional Fee which may be applicable, and all payments must be made in accordance with clause 20.2.

10.2 Payment Facility

Any Customers who wish to subscribe for a Paid Subscription must, on the Commencement Date of the subscription, provide WeRoster with details of its Payment Facility and duly authorised WeRoster and WeRoster designee (if any) to direct debit the Fees from its Payment Facility in accordance with clause 10.3 below.

10.3 Invoices and payment

Where payments are made by a Customer to WeRoster and not through an authorised third party application marketplace, WeRoster will:

(a) in respect of an Annual Subscription: (i) on or before the Commencement Date and each anniversary of the Commencement Date, issue the Customer with an invoice or the Subscription Fees (if applicable) payable by the Customer (First Annual Invoice) for the following year; and (ii) at the end of each calendar month, issue the Customer with an invoice (or valid tax invoice if Customer is an Australian tax resident) for the Optional Usage Fees and Additional Fees (if applicable) payable by the Customer (Second Annual Invoice) for the preceding month; and

(b) deduct payment of the amount payable on the Monthly Invoice, First Annual Invoice and/or Second Annual Invoice, as applicable (Invoice, from the nominated Payment Facility at any time within three days of the date of issue of the Invoice

10.4 Failure to Pay

10.4.1 If a Customer makes payments through the Payment Facility and not an authorised third party application marketplace and any amount cannot be deducted from the Payment Facility at the time specified in clause 10.3 and the Customer fails to rectify any non-payment of amounts due to WeRoster’s under this Agreement within 7 days of the payment due date, then (without prejudice to WeRoster’s other rights):

(a) WeRoster may charge the Customer interest on all outstanding amounts at an interest rate of 1.5% per month, calculated daily, and will accrue from the first day on which such amounts become overdue until the outstanding amount (including all interest) has been paid in full; and (b) WeRoster may issue a notice to the Customer stating that the Invoice is overdue (Overdue Notice). If WeRoster does not receive payment of the relevant Fees within 3 days from the date of the Overdue Notice, WeRoster may cease to provide the Subscription Services and any Additional Services and may disable the Customer’s and any of its Authorised User’s access to the WeRoster Application

10.4.2 WeRoster will not be liable for any Loss suffered by the Customer as a result of WeRoster exercising its rights under this clause 10.4.

10.5 Fee changes

Subject to clause 10.6, WeRoster may, at any time and from time to time, change any Fees it may charge its Customers. In doing so, it will: (a) promptly notify the Customers by notice in writing to the Customer for any change in the Optional Usage Fees, which will be effectively on notification; or (b) provide the Customers with at least 30 days written notice with respect any changes to the Subscription Fees or any other Fees specified in the Rates Sheet, which will be effective 30 days from the date of the written notice, and any written notice made pursuant to this clause will be effectively provided if WeRoster publishes in a visible location the changes on the WeRoster Website or the Customer Installation.

10.6 Third party fees

Where a Customer registers to use the WeRoster Application through an authorised third party application marketplace and makes payment to or through that third party application marketplace in respect of its use of the WeRoster Application, variations in the Fees payable will be governed by the terms relating to changes of fees contained in the agreements as between the Customer and the third party application marketplace provider, if any.

10.7 Third party agreements

This Agreement governs the relationship between Customers and WeRoster and, for the avoidance of doubt, does govern or vary any agreement, contract or other arrangement between the Customers and third parties. The payment of the Subscription Fees or other amounts to WeRoster is without prejudice to amounts that may otherwise be payable to third parties, including without limitation fees payable by a Customer in respect of any authorised third party application marketplace.

11. Unacceptable Content

11.1 Request to remove content

If WeRoster, in its reasonable opinion, believes that Unacceptable Content has been uploaded into the WeRoster Application or is being stored on the WeRoster Infrastructure, WeRoster may request the Customer immediately to disable access to and remove the Unacceptable Content.

11.2 WeRoster may remove content

If the Customer does not respond within five (5) days of receiving the request made under clause 11.1, WeRoster has the right, but is not obliged to, disable access and remove any Unacceptable Content from the WeRoster Application and/or WeRoster without further notice to the Customer and WeRoster may seek reimbursement from the Customer for any reasonable costs incurred by WeRoster in doing so.

11.3 No obligation to monitor

Nothing in this clause 11 imposes an obligation on WeRoster to monitor or screen the WeRoster Application, WeRoster Infrastructure or their contents for any Unacceptable Content and WeRoster will not be responsible for any Unacceptable Content uploaded but not removed.

12. Termination

12.1 Termination with notice

This Agreement will continue to apply until terminated by either the Customer or WeRoster in accordance with this Agreement. The Customer may terminate the agreement at any time from within the WeRoster Application. To learn how to terminate a WeRoster account, the Customer should contact WeRoster through [email protected]. Clauses 8, 9, 11, 15, 18, 19, 20, 21, 22.2, 22.3, 22.4, 22.5 and 22.6 herein, as well as any other clauses of the Agreement that, either explicitly or by their nature, must remain in effect even after termination of the Agreement, shall survive termination or expiry.

12.2 Termination by WeRoster

WeRoster may terminate this Agreement without cause at any time by giving written notice to a Customer no less than four (4) weeks before the termination date specified by WeRoster in its written notice; provided, however, as to Trial Subscriptions, WeRoster may immediately terminate a Trial Subscription at any time without cause and without notice.

12.3 Immediate Termination

Without limiting clauses 12.1, 12.2 and 12.3, a party may immediately terminate this Agreement at any time if:

(a) the other party materially breached this Agreement and has failed to rectify such breach within seven (7) Business Days of the notice provided by the other party;

(b) Customer breaches its obligations with regard to Intellectual Property, or a party commits a breach of this Agreement which is incapable of being remedied;

(c) the other party suffers an Insolvency Event or bankruptcy; or

(d) a Force Majeure Event occurs and continues for more than 28 Business Days.

13. Consequences of Termination

13.1 Effect of Termination

Upon termination of this Agreement:

(a) the Customer must immediately: (i) cease using and ensure that each of its Authorised Users ceases using the WeRoster Application; (ii) pay to WeRoster all Fees, expenses or other amounts payable to WeRoster under this Agreement which have accrued or are otherwise payable at the date of termination; (iii) return to WeRoster any Documentation in the Customer’s possession or control; and (iv) provide WeRoster with written confirmation that it has completed its obligations under this clause 13.1(a).

(b) WeRoster will, upon request from a Customer but only where such request is made before the date of termination, return to the Customer all Customer Data stored on the WeRoster Infrastructure, other than the Authorised User Data, in such format as WeRoster may, at its sole discretion, see fit; and (c) WeRoster may cease to provide any Subscription Services or Additional Services and may disconnect the Customer’s access to the WeRoster Application and disable all Authentication Credentials

13.2 No refunds

In the case of Annual Subscriptions and except where this Agreement is terminated as a result of a breach by WeRoster or as required by law, the Customer is not entitled to any refund of all or part of the Fees paid but not used (whether in respect of the number of Authorised Users or length of use of the Application or otherwise) and on termination and in all other circumstances WeRoster is entitled to retain all Fees and amounts paid by the Customer.

14. Changes to terms

Notwithstanding any other provision of this Agreement, WeRoster may, in its sole discretion, modify any of the terms and conditions contained in this Agreement, at any time, with consent of the Customer or by notifying the Customer at any Administrator Email Address or by posting the new agreement on the WeRoster Website. If the Customer gives consent, the amendments are effectively immediately. If the Customer does not give consent and the terms are modified by notifying the Customer by email or by posting the terms on the WeRoster Website, the Customer may terminate this Agreement at any time within fourteen (14) days of the earlier of the date that the new agreement is posted on the WeRoster Website or emailed to the Customer. The Customer’s continued use of the WeRoster Application after this period is irrevocable and unconditional acceptance of the new agreement and its terms by the Customer.

15. Confidentiality

15.1 Access

WeRoster, its Customers and their Authorised Users may, from time to time, receive, become aware of, or be given access to Confidential Information of the other party (or of a subsidiary or other affiliate of WeRoster) in the course of or incidental to exercising its rights or performing obligations under this Agreement.

15.2 Non-disclosure obligations

Where a party (Recipient) receives Confidential Information from the other party in respect of this Agreement or otherwise, the Recipient agrees and warrants that it must:

(a) hold the Confidential Information in trust and confidence;

(b) not use, disclose, copy or reproduce the Confidential Information for any purpose other than to perform this Agreement, except expressly permitted under this clause 15; and

(c) use its best endeavours to establish and maintain effective security measures to safeguard the Confidential Information from unauthorised use or disclosure; and

(d) ensure that its officers, employees, and agents comply with this clause 15.2.

15.3 Permitted Disclosure

Notwithstanding clause 15.2, the Recipient is expressly permitted to use or disclose Confidential Information to the extent necessary to:

(a) give effect to the operation in this Agreement;

(b) comply with any law, binding directive of a regulator, a Government Authority or a court order; or

(c) obtain professional advice in relation to matters arising under or in connection with this Agreement.

15.4 Promotion and marketing
The Customer agrees and expressly permits the disclosure of its name and its relationship with WeRoster for any advertising, marketing or other commercial activities which WeRoster may undertake in promoting the WeRoster Application and its services. In doing so, the Customer agrees and acknowledges that WeRoster may disclose the Subscription Services and any Additional Services which the Customer may subscribe to, from time to time, as WeRoster sees fit.

15.5 Survival

The obligation imposed by this clause 15 survives termination of this Agreement for sixty (48) months following the termination of this Agreement; provided, however, to the extent the Confidential Information is a trade secret, the restrictions and obligations concerning the use and disclosure of Confidential Information shall continue for such longer period as such remains a trade secret. The software computer programs, code and algorithms of WeRoster and its subsidiaries and other affiliates are trade secrets.

16. Intellectual Property

16.1 Limited rights

The Customer’s rights in the WeRoster Application will be limited to those expressly granted in this Agreement. WeRoster reserves all rights and licences in and in relation to the WeRoster Application not expressly granted to the Customers in this Agreement.

16.2 Ownership of Intellectual Property

(a) All Intellectual Property, however created, is the sole and absolute property of WeRoster and may not be used, sold or modified by the Customers, its Authorised Users or any third parties in any circumstances whatsoever other than to exercise their rights or fulfil their obligations under this Agreement.

(b) The Customer agrees and acknowledges that: (i) nothing in this Agreement grants the Customer any ownership of or rights in respect of the Intellectual Property, whatsoever; and (ii) any Intellectual Property created by, for, on behalf of or otherwise vested in the Customer during the Term is unconditionally and irrevocably assigned to WeRoster immediately when the Intellectual Property is created and the Customer agrees to do all things and execute all documents as is reasonably necessary to effect such assignment.

16.3 Use of Intellectual Property

(a) For the duration of the Term, WeRoster grants to the Customer and its Authorised Users a limited, non-exclusive, non-transferable and revocable licence to use the Intellectual Property solely to the extent necessary for the Customer to exercise its rights under this Agreement.

(b) Subject to the other provisions of this Agreement, the licence referred to in clause 15.3(a) will continue for the duration of the Term, which license may be suspended by WeRoster at any time for any or no reason.

16.4 Customer Data

All Customer Data, other than Authorised User Data, however created, are the sole and absolute property of the Customer. Notwithstanding any other provision of this Agreement, the Customer grants to WeRoster and its subsidiaries and other affiliates a non-exclusive, irrevocable and perpetual licence to use, reproduce and otherwise exploit and search the Customer Data:

(a) for the purposes of providing the Subscription Services and the Additional Services to the Customer and for any purposes which WeRoster considers are ancillary to its provision of the Subscription Services or Additional Services or are otherwise necessary for the proper operation of the WeRoster Application;

(b) in accordance with WeRoster’s Privacy Policy https://www.weroster.com/privacy-policy;

(c) for the purposes of contacting Authorised Users in relation to and providing to Authorised Users the Services and/or any service offering outside of the WeRoster Application;

(d) to determine whether any Customer Data or use of the WeRoster Application by Customer or its Authorised Users is illegal or violates this Agreement; and/or

(e) to generate statistical or other information used by WeRoster (or its subsidiaries or affiliates) or provided to third parties directly or indirectly through incorporation in a database, marketing list, report or otherwise; however any use of the Customer Data under this subsection will be in an aggregate or statistical composite form and combined with other similar information, and will not specifically identify Customer or any of its employees or clients. This authorized use, and the right to keep backup copies of Customer Data, continues after the termination or expiration of this Agreement.

16.5 Trade Marks

Except otherwise permitted in clause 16.4, nothing in this Agreement grants either party any ownership of or rights to use the trademarks of the other party and each party must not, cannot and will not, adopt, register or attempt to register or use any trademarks which are identical or deceptively similar to the trademarks owned by the other party

17. Security of WeRoster Application

17.1 WeRoster’s obligations

(a) WeRoster will use all reasonable endeavours to protect the security and safety of all Customer Data and any other Confidential Information stored on the WeRoster Infrastructure, including the implementation and maintenance of reasonably adequate and current data protection and virus screening procedures and technologies.

(b) WeRoster agrees to use firewalls and other technology generally used in the trade to prevent unauthorised third party access to its computer systems storing Customer Data and available encryption technology generally used in the trade to prevent unauthorised third party access to Customer Data transmissions.

(c) Nothing in this clause 17.1 constitutes a representation or warranty by WeRoster that Customer Data storage or transmission will be inaccessible to unauthorised third parties. WeRoster will notify Customer of any such unauthorised access to Customer Data promptly following WeRoster’s detection, or upon becoming aware of, such unauthorised access.

17.2 Limitation of liabilities

The Customers acknowledges that regardless of the security precautions taken, no physical, internet or other electronic transmission or storage of data can be fully secure or error free. WeRoster does not accept any liabilities, and neither WeRoster nor any WeRoster subsidiary or affiliate will be liable to the Customer or any affected third parties for any Losses suffered by them as a result of or arising from:

(a) any computer viruses being transferred to or obtained by the Customer, its Authorised Users or any other third parties as a result of their use of the WeRoster Application;

(b) any hacking into or other similar attacks on the WeRoster Application or the WeRoster Infrastructure; or

(c) any other data security issues in respect of the WeRoster Application or the WeRoster Infrastructure, which are beyond the reasonable control of WeRoster, having implemented the protection procedures and technologies referred to in clause 17.1.

18. No Back Up Records

The Customer acknowledges that WeRoster does not provide back-up or other similar services in respect of the Customer Data and the Customer is responsible for implementing its own backup and data retrieval procedures in respect of the Customer Data. WeRoster will maintain a 7 day rotating backup of Customer Data solely for the purpose of disaster recovery. Upon termination of this Agreement, Customer Data and/or backups of the Customer Data may, at the discretion of WeRoster, be deleted from the WeRoster Application.

19. Subcontractors

The Customer agrees and acknowledges that WeRoster may subcontract the performance of all or part of its obligations under this Agreement or assign any of its rights under this Agreement to any subcontractor of its choice without the Customer’s consent and on such terms and conditions as WeRoster sees fit from time to time. The Customer further acknowledges that any fees payable by WeRoster to its subcontractors may be calculated as a percentage of all or part the Fees payable by the Customer to WeRoster under this Agreement.

20. Notices and other Communications

WeRoster may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in WeRoster’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in WeRoster’s account information. Such notice shall be deemed to have been given upon the expiration of 12 hours after sending (if sent by email). You may give notice to WeRoster (such notice shall be deemed given when received by WeRoster) at any time by any of the following: WeRoster.com certified email message from your user account to [email protected].

21. Warranties

21.1 No warranties

To the extent permitted by law, WeRoster does not warrant or guarantee:

(a) that the WeRoster Application will meet the Customer’s requirements and expectations;

(b) that the WeRoster Application will be compatible with, or capable of being used on or in connection with, the Customer’s computer and communications systems;

(c) that the Customer’s access to the WeRoster Application will be uninterrupted or error free; (d) that the WeRoster Application will be accurate, reliable or fit for any particular purpose;

(e) anything that WeRoster does not expressly warrant in this Agreement or Signed Business Proposal.

Except as may be expressly set forth in this agreement or in the business proposal, WeRoster makes no weroster warranty with regard to the WeRoster application and/or the WeRoster infrastructure and/or the subscription services and/or any other service to the fullest extent allowed under applicable law, WeRoster disclaims all implied and statutory warranties with regard to the WeRoster application, WeRoster infrastructure, the subscription services and any and all other services, including, but not limited to, warranties of merchantability, title, non-infringement, and fitness for a particular purpose and warranties related to third-party equipment, material, services or software. Certain laws imply terms and conditions into contracts for the supply of goods or services that cannot be excluded (for example, that services must be provided with due care and skill and fit for any specified purpose) (“non-excludable condition”). in the event that a term, condition or warranty is implied by law into this agreement and WeRoster breaches that non-excludable condition, WeRoster’s liability will be the minimum permitted under such law.

21.2 Customer’s warranties

The Customer acknowledges and warrants that:

(a) relied on its own skill and judgment in the choosing to use the WeRoster Application;

(b) it has satisfied itself that the WeRoster Application is fit for all the purposes which the Customer requires it for;

(c) it has not relied on any representation of WeRoster in entering into this Agreement other than those expressly stated on the WeRoster Website and/or in this Agreement;

(d) it has full corporate power and lawful authority to execute and deliver this Agreement and to consummate and perform or cause to be performed its obligations under this Agreement; and (e) this Agreement constitutes a legal, valid and binding obligation on it, enforceable in accordance with its terms by appropriate legal remedy.

22. Limitation of liability

22.1 Internet performance disclaimer

WeRoster does not and cannot control the flow of data via the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt the internet. WeRoster is NOT responsible for any delays, delivery failures, or any damage resulting from such problems.

22.2 Commencement of Claims

A Customer may not make a Claim for breach of this Agreement by WeRoster unless it has given written notice to WeRoster of the general nature of the claim in question within three (3) months after the Customer became aware or ought to have become aware of such a Claim and in any event within six (6) months immediately following any termination of this Agreement. A Customer will be barred from raising any Claims not made in accordance with this clause. This clause does not and shall not be deemed to toll or extend any statute of limitations.

22.3 Duty to mitigate

If a Customer becomes aware of any fact, circumstance or matter which is reasonably likely (whether alone or with any other possible fact, circumstance or matter) to lead to a Claim on the part of WeRoster in respect of a breach of this Agreement by WeRoster, the Customer must take reasonable steps to mitigate any Loss which may give rise to such a Claim against WeRoster.

22.4 Maximum liability

The maximum aggregate liability of WeRoster for or in connection with its breaches of the Agreement is the greater of: (a) the total amount of the Subscription Fees and Additional Fees (if any) paid by the Customer to WeRoster under this Agreement in the 12 months immediately preceding the breach; or (b) if no Subscription Fees or Additional Fees have been paid, an amount of AUD $500.

22.5 No claim for Consequential Loss

A Customer agrees and acknowledges that WeRoster is not liable for any Consequential Loss (however caused) suffered or incurred by the Customer arising out of or in respect of any breach of this Agreement by WeRoster. This exclusion applies even if WeRoster knew or ought to have known of the Consequential Loss suffered or may be suffered.

23. Indemnity

The Customer shall and hereby does indemnify and hold WeRoster harmless against any Loss suffered or incurred or likely to be suffered or incurred, directly or indirectly resulting from:

(a) any breach of this Agreement by the Customer, including any breach in respect of which WeRoster may exercise a right to terminate;

(b) the Customer, its Authorised Users or any other person’s use or access of the WeRoster Application;

(c) the Customer or its Authorised Users causing or procuring any Unacceptable Content being uploaded into the WeRoster Application or stored on the WeRoster Infrastructure;

(d) the Customer or its Authorised Users causing or procuring: (i) the upload of any Customer Data into the WeRoster Application; (ii) the storage of any Customer Data on the WeRoster Infrastructure; or (iii) otherwise using the WeRoster Application, in a way which is contrary to or infringes any applicable law, including privacy law, of any applicable jurisdiction;

(e) the Customer Data being stored or displayed on the WeRoster Application; or

(f) any negligent or unlawful acts of the Customer, its related entities or their Authorised Users, employees, officers, contractors or representatives, unless the Loss is a direct result of WeRoster breach of this Agreement or any unlawful act carried out by WeRoster.

24. Dispute Resolution

24.1 Dispute resolution procedure

If a party believes that there is a dispute regarding this Agreement or the Subscription Services, it must not commence court proceedings (unless permitted by below clause 24.4) without first complying with the following dispute resolution procedure:

(a) the party must give notice in writing to the other party in dispute (together, the Disputing Parties) specifying: (i) the nature of the dispute; (ii) the outcome required by the party; and (iii) the action the party believes will settle the dispute, (Dispute Notice).

(b) Upon receipt of a Dispute Notice, the Disputing Parties shall use their best efforts and endeavours to resolve the dispute by mutual negotiation;

24.2 Mediation

(a) If the Disputing Parties are unable to resolve a dispute within twenty (20) Business Days (or within a longer period agreed in writing by them) of receipt of a Dispute Notice, either party may serve a notice on the other requiring the Disputing Parties to refer the dispute to a mediator and to participate in the mediation (Mediation Notice). If the Disputing Parties are unable to determine within fifteen (15) Business Days of receipt of a Mediation Notice referred to in this clause: (i) the procedures to be adopted in the mediation; and (ii) the timetable for all the steps in those procedures; and (iii) the identity and fees of the mediator, the President of the Law Society of Victoria, Australia or his representative will appoint the mediator and determine all procedural matters in relation to the mediation.

(b) The Disputing Parties or their designated representatives must attend the mediation and make a determined and genuine effort to resolve the dispute.

24.3 Costs

The Disputing Parties must bear its own costs of complying with this clause and the Disputing Parties must bear equally the costs of any mediator engaged.

24.4 Court Action

Nothing in this clause 24 prevents a party taking any court action where the proceedings are to seek injunctive, interlocutory or declaratory relief in respect of a dispute to preserve property or rights or to avoid any irreparable losses, costs, charges, claims, liabilities or expenses.

25. General Provisions

25.1 Binding effect of this Agreement

This Agreement binds the parties to it and any executor, administrator, transferee, successors and assigns, liquidator or trustee in bankruptcy appointed in respect of them, subject to clause 25.5.

25.2 Entire Agreement

This Agreement, including the Rate Sheet and Statement of Works, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all previous communications, representations, inducements, undertakings, agreements or arrangements between the parties or their respective officers, employees or agents.

25.3 No adverse construction

Nothing in this Agreement is to be interpreted against a party solely on the grounds that the party put forward the Agreement or a relevant part of it.

25.4 Force Majeure

If a party is prevented, hindered or delayed from performing its obligations under this agreement (money payments excepted and Customer’s obligations with respect to WeRoster’s Intellectual Property excepted) by a Force Majeure Event, then as long as that situation continues, that party will be excused from performance of the obligation to the extent it is so prevented, hindered or delayed, and the time for performance of the obligation will be extended accordingly. If a party is affected by a Force Majeure Event it will immediately give the other party a notice of its occurrence and its effect or likely effect, and use all reasonable endeavours to minimise the effect of the Force Majeure Event and to bring it to an end.

25.5 Assignment

The Customer may not assign or otherwise deal with any of its rights or obligations under this Agreement without the prior written consent of WeRoster. WeRoster may assign, novate or otherwise deal with all or part its rights under this Agreement at any time and from time to time, which will be effective immediately upon WeRoster notifying its Customers of the assignment or novation.

25.6 Partial invalidity

In the event that any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable, then such provision shall be severed from this Agreement. In all other respects, the remaining provisions of this Agreement shall remain in full force and effect.

25.7 Attorneys

Each person who executes this Agreement on behalf of a party under a power of attorney or other authority warrants that he or she has no notice of the revocation of that power or authority or of any fact or circumstance that might affect his or her authority to execute this Agreement under that power or other authority.

25.8 Rights, remedies additional

Any rights and remedies that a person may have under this Agreement are in addition to and do not replace or limit any other rights or remedies that the person may have; provided, however, Customer agrees to look solely to WeRoster for recovery of any claim that Customer has with regard to the WeRoster Application and services provided or to be provided by WeRoster.

25.9 Waiver

The failure by a party to enforce at any time or for any period any one or more of the terms and conditions of this Agreement shall not be a waiver of those rights nor of the right at any time subsequent to enforce all of the terms and conditions of this Agreement. A waiver of any power or right under this Agreement: (a) must be in writing signed by the party entitled to the benefit of that power or right; and (b) is effective only to the extent set out in that written waiver.

25.10 Governing law

All references to ‘WeRoster,’ ‘we’, or ‘us’ under the Subscription Agreement and what law will apply in any dispute or lawsuit arising out of or in connection with the Subscription Agreement depends on where the Customer is domiciled.

Domicile

WeRoster Entity

Governing Law

Venue

Australia

Clova Co Pty Ltd

Laws of the State of Victoria

Victoria

The Subscription Agreement, and any disputes arising out of or related hereto, are governed exclusively by the applicable Governing Law above. The courts located in the applicable Venue above will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Subscription Agreement or its formation, interpretation or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts.