Terms and Conditions

1. Acceptance and Term

1.1 Alooba PTY LTD ABN 96 631 848 872 (we, us or our) provides the cloud-based software, including all instructions in hard copy or electronic form and any update, modification or release of any part of that software as described at https://www.alooba.com/ and as may also be available through other addresses and channels (together, the Platform). These Terms are entered into between you and us, together the Parties and each a Party.

1.2 In these Terms, “you” means the individual accessing or using the Platform as a user or customer.

1.3 You accept these Terms by accessing and using the Platform, and/or by completing the Order form. These Terms are a legally binding contract between you and Alooba. If you do not agree with these Terms, do not use the Platform. By using or accessing the Platform, you agree to be bound by these Terms. If you use the Platform on behalf of an entity, you agree to these Terms for that entity and represent and warrant to Alooba that you have the authority to bind that entity to these Terms, unless that entity has a separate paid contract in effect with Alooba, in which event the separate paid contract governs your use of the Services.

1.4 These Terms will commence on the date on which you accept these Terms either by using the Platform or by completing the Order Form. They continue until you cease using the Platform or after the end of the subscription period from the Order Form.

2. Licence

2.1 Subject to your compliance with the terms of this Agreement, we grant you a non-exclusive, non-transferable, non-sublicensable, personal and revocable licence to access and use the Platform for your use and enjoyment of the Platform as contemplated by this Agreement, for the Term (Licence).

3. Access

3.1. Subject to clause 3.2, we agree to use commercially reasonable endeavours to ensure that, once we commence providing the Platform, the Platform will be available and accessible at all times during the Term.

3.2 During the Term, from time to time, the Platform may be unavailable due to:

(a) an interruption caused or contributed to by you or an event outside our reasonable control (including a Force Majeure Event);

(b) scheduled or emergency maintenance; and

3.3 You agree that access to, or the functionality of all or part of the Platform, may need to be suspended for a time for us to perform maintenance or updates.

3.4 We will endeavour to provide you with reasonable notice, where possible, of any interruptions to access and availability of the Alooba.

4. Restrictions on Use

4.1 You must not access or use the Platform except as permitted by the Licence and you must not (and must not permit any other person to) use the Platform in any way which is in breach of any applicable Laws or which infringes any person's rights, including Intellectual Property Rights, including to:

(a) use the Platform to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing, unwanted, misleading or deceptive;

(b) use the Platform in any way that damages, interferes with or interrupts the supply of the Platform;

(c) use the Platform in any way that breaches any applicable Laws or infringes any person's rights, including Intellectual Property Rights and privacy rights, or interferes with any person’s privacy;

(d) introduce malicious programs into our software or systems, including viruses and malware through any channel;

(e) reveal or allow others access to your Account’s password or authentication details or allow others to use your Account or authentication details;

(f) carry out security breaches or disruptions of a network, including accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);

(g) use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the Platform;

(h) if applicable, send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages, or use the Platform in breach of any person’s privacy (such as by way of identity theft or “phishing”); or

(i) circumvent user authentication or security of any of our Platform, networks, accounts or hosts or those of our other users.

5. Third Party Inputs

5.1 You agree that the Platform may include Third Party Inputs that interface, or interoperate, with the Platform, including third party software or services and that the provision of the Platform may be contingent on, limited by or impacted by (for example, our data hosting provider is a third party provider).

5.2 You must comply with our instructions and directions, whether written or verbal, in relation to use of any Third-Party Inputs. Where we provide you with any terms and conditions for use of these Third Party Inputs, you agree that you will comply with these and are liable for any damages and/or loss that we incur as a result of any non-compliance by you.

5.3 You acknowledge that the Platform may also include certain optional functionalities or features that may interface or interoperate with third party software or services. To the extent that you choose to use such optional functionalities or features, you are responsible for the purchase of and any ancillary and/or licensing obligations related to the applicable third party software and services. It is your responsibility to ensure the requirements are met in order for you to benefit from the specific functionalities and features made available to you.

5.4 This clause 5 will survive the termination or expiry of these Terms.

6. Support

6.1 We may, at our sole discretion during the Term, provide you with support services in respect of any technical issues which arise in respect of the Platform (Support). If you would like to request such Support, you must email us with details of your Support request.

6.2 You agree, where we provide any Support to you, to assist us in investigating and ascertaining the cause of any issues and provide us with access to all necessary information relevant to the issue (including what you have done in relation to the issue).

7. Warranties

Our obligations:

7.1 We warrant, represent and agree:

(a) that we are properly constituted and have the right and authority to enter into this Agreement;

(b) that we will provide the Services in accordance with all applicable Laws; and

(1) by suitably competent and trained Personnel; and

(2) in an efficient and professional manner.

7.2 We further agree that the Services will be provided in accordance with this Agreement.

Your obligations:

7.3 You warrant, represent and agree:

(a) you have the legal capacity to enter into a legally binding agreement;

(b) there are no legal restrictions preventing you from entering into this Agreement;

(c) that you have reviewed and understand the terms of this Agreement and will use the Services in accordance with them, our reasonable requests or requirements, and all applicable Laws;

(d) you will be responsible for the use of any part of the Services, and you must ensure that no person uses any part of the Services to break any Law or infringe any person’s rights (including Intellectual Property Rights and privacy rights) or in any way that damages, interferes with or interrupts the supply of the Services;

(e) to cooperate with us and provide all reasonable assistance, information, documentation, access, facilities, authorities, consents, licences and permissions reasonably necessary to enable us to comply with our obligations under this Agreement or at Law, in a timely manner and at your cost;

(f) the Platform is a secondary tool provided solely for your convenience, we cannot guarantee the completeness or accuracy of any Results and you are solely responsible for, and will review, all Results prior to relying on them;

(g) all information and documentation that you provide to us in connection with this Agreement is true, correct and complete and that we will rely on such information and documentation in order to provide the Services;

(h) you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes) or any Third Party Inputs, unless expressly stipulated in this Agreement;

(i) you have not made any representations or warranties to any third parties (including Invitees) that could be construed as being representations or warranties from us in relation to the Services or any other matter;

(j) you are responsible for all your Authorised Users and Invitees and you will resolve any dispute or complaint from any Invitee;

(k) the Services and any associated programs and files are used at your own risk;

(l) we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you, your Authorised Users, your Personnel or Invitees;

(m) the Services are provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties without our prior written consent; and

(n) you have all hardware, software and services which are necessary to access and use the Services (other than those expressly required to be provided by us under this Agreement).

7.4 To the extent contemplated, this clause 7 will survive termination or expiry of this Agreement.

8. Intellectual Property Rights

8.1 This clause 8 will survive termination or expiry of these Terms.

8.2 The Parties agree that nothing in these Terms constitutes a transfer or assignment of any Intellectual Property Rights.

Our Intellectual Property Rights:

8.3 You agree that we (or the relevant third party) own all Intellectual Property Rights in:

(a) Our Materials;

(b) New Materials or Improvements (including Your Results);

(c ) Analytics; and

(d) any Feedback,

and these Intellectual Property Rights will at all times vest, or remain vested, in us (or, if applicable, our third-party service providers). To the extent that ownership of these Intellectual Property Rights does not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.

8.4 We grant you a non-exclusive, non-transferrable, non-sublicensable licence during the Term to export, copy and use Your Results solely for your personal purposes.

8.5 You agree that we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of Feedback.

8.6 In the use of any Intellectual Property Rights in connection with these Terms, you agree that you must not commit any Intellectual Property Breach. Where you reasonably suspect that such a breach may have occurred including where you become aware of a claim or potential claim of infringement of third party Intellectual Property Rights, you must notify us immediately.

Your Materials:

8.7 We agree that you own all Intellectual Property Rights in Your Materials.

8.8 You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Your Materials, solely for the purposes for which they were developed and for the performance of our obligations under these Terms, and as otherwise contemplated by these Terms.

8.9 If you have any Moral Rights in any material provided, used or prepared in connection with these Terms, you agree to consent to our use or infringement of those Moral Rights.

User Data

8.10 As between you and us:

(a) all User Data is and remains your property; and

(b) you retain any and all rights, title and interest in and to the User Data, including all copies, modifications, extensions and derivative works.

8.11 You grant us a limited licence to copy, transmit, store and back-up or otherwise access the User Data during the Term (and for a reasonable period after the Term), to:

(a) supply the Platform to you (including to enable you to access and use the Platform);

(b) diagnose problems with the Platform;

(d) perform Analytics;

(e) develop other services or products, provided we de-identify the User Data; and

(f) as otherwise reasonably required to perform our obligations under these Terms.

9. Our liability

9.1 Despite anything to the contrary, to the maximum extent permitted by law:

(a) we will not be liable for Consequential Loss;

(b) a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party, including a failure to mitigate that Liability; and

(c) our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying the Platform to you or, in our sole discretion, to us paying you $100.

9.2 Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:

(a) failure or delay in providing the Platform or the User Data, or the User Data being unavailable to you, for any reason;

(b) breach of these Terms or any Laws by you;

(d) the Computing Environment;

(e) your acts or omissions;

(f) any use or application of the Platform by a person or entity other than you, or other than as reasonably contemplated by these Terms;

(g) any User Data, including where our use of it, as contemplated by these Terms, infringes on the rights of a third party;

(h) any works, services, data, hardware, materials or items which do not form part of the Platform (as expressed in these Terms), or which have not been provided by us;

(i) any Third Party Inputs; and/or

(j) any event outside of our reasonable control, including a force majeure event.

9.3 To the maximum extent permitted by law, you indemnify and continue to indemnify us against all Liability we suffer or incur arising from or as a consequence of a breach of clause 8 (Intellectual Property) and/or from any claim relating to our use of the User Data in accordance with these Terms.

9.4 Certain legislation, including the Australian Consumer Law, and similar consumer protection Laws and regulations may confer you with rights, warranties, guarantees and remedies relating to provision of our services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in these Terms attempts to exclude, restrict or modify your Statutory Rights as a consumer under the Australian Consumer Law. Any and all other warranties or conditions which are not guaranteed by the Australian Consumer Law are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in these Terms.

9.5 You acknowledge and agree that:

(a) you are responsible for your use of the Platform;

(b) you use the Platform and any associated programs and files at your own risk;

(c) the technical processing and transmission of the Platform, including the User Data, may be transferred unencrypted and involve:

i. transmissions over various networks; and

ii. changes to conform and adapt to technical requirements of connecting networks or devices;

(d) we may use third-party service providers to assist in transmitting or hosting the Platform, including for the collection of and provision of the User Data. If the providers of third party applications or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features without liability or entitling you to any compensation;

(e) the Platform may use third party products, facilities or services. We do not make any warranty or representation in respect of the third party products, facilities or services;

(f) any Third Party Inputs and/or reliance on these Third Party Inputs, for example reliance on any data from third parties;

(g) we do not guarantee that any file or program available for download and/or execution from or via the Platform is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used and we are not responsible for any corruption or loss of any User Data if such corruption or loss is due to an act or omission by you; and

(h) we are not responsible for the integrity or existence of any User Data on the Computing Environment, or any network or device controlled by you.

9.6 This clause 9 will survive the termination or expiry of these Terms.

10. Termination

10.1 As a customer, you may terminate these Terms by logging into your account and cancelling your subscription. The Terms cease at the end of the subscription period.

10.2 If we have reason to believe you are misusing the Platform or are otherwise in breach of these Terms, we may suspend and/or terminate your Account at any time, by providing you with notice, in which case we will immediately cease providing the Platform to you.

10.3 On termination of these Terms you must cease to access the Platform.

10.4 Clause 10.3 will survive the termination or expiry of these Terms.

11. Disputes

11.1 A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties.

11.2 Nothing in this clause 11 will operate to prevent a party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

11.3 This clause 11 will survive the termination or expiry of these Terms.

12. Privacy

12.1 We understand that the security of your personal data is important to you. All personal data that you give to us or we receive from any third party will be collected and handled in accordance with our privacy policy, which is located at https://www.alooba.com/privacy-policy.

13. General

13.1 Changes to the Platform: You agree that we may make changes to the Platform. If you have any concerns about any such changes, you may choose to terminate your Account and these Terms in accordance with clause 10.1.

13.2 Changes to the Terms: We may amend these Terms at any time, by providing email notice to you. By continuing to use the Platform, you agree to the amended terms. If you do not agree to the amendment, you must terminate these Terms in accordance with clause 10.1.

13.3 Assignment: You must not assign or deal with the whole or any part of your rights or obligations under these Terms without our prior written consent (such consent is not to be unreasonably withheld).

13.4 Entire agreement: These Terms contain the entire understanding between the Parties, and supersede all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of their subject matter.

13.5 Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and their obligations under it.

13.6 Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control.

13.7 Governing law: These Terms are governed by the laws of New South Wales, Australia. Subject to clause 11.1, each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales, Australia and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

13.8 Notices: Any notice given under these Terms must be in writing addressed to the relevant email address last notified by the recipient to the Parties. Any notice may be sent by email, and will be deemed to have been served at the time of transmission.

13.9 Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

13.10 Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.

14. Fees, Credits & Payment

The fees, credits and payment terms are set out here, unless explicitly agreed otherwise.

14.1 You will pay Alooba all Fees as agreed in the Order Form (the "Fees").

14.2 Subscriptions have a duration of either 1 month or 1 year. The subscription term is shown on the Order Form.

14.3 The subscription payments are made in advance of the period.

14.4 Subscriptions renew automatically for the next period at the end of the billing cycle. You can cancel your subscription by logging into the Platform and cancelling your subscription.

14.5 All amounts payable to Alooba under the Agreement shall be paid by you in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.

14.6 You shall provide Alooba with accurate and fully complete billing information, which includes the full name, address, state, post code, country, phone number, and a valid GST or relevant tax registration number. You will also notify us of any changes to this information. By submitting the payment information, you automatically authorise Alooba to charge all Fees incurred through your account to any such selected payment instruments. You are responsible for keeping your payment information up-to-date, including ensuring that the credit card does not expire and has sufficient funds to be successfully charged.

14.7 All the Fees payable by you are exclusive of taxes, duties, levies and fees, as well as any other costs including transaction costs, exchange fees or bank transfer fees. Without limiting the foregoing, you are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental or regulatory authority on any amounts payable by you hereunder.

14.8 Alooba is entitled to invoice you if for any reason the appropriate taxing authorities determine that you are not exempt from any taxes and Alooba is required to pay such taxes. Any applicable penalties or interest that might be imposed will be added to such invoices. The Fees shall in no event be decreased by any taxes and/or fees of any nature owed by you in connection with your purchase of the Services.

14.9 If you fail to make any payment when due then, in addition to all other remedies that may be available: (a) Alooba may charge interest on the past due amount at the rate of 3% per month of the value of the applicable Fees, calculated daily and compounded monthly or, if higher, the maximum rate permitted under applicable law; (b) You shall reimburse us for all costs incurred by Alooba in collecting any late payments or interest, including lawyers’ fees, court costs, and collection agency fees; and (c) If such failure continues for more than seven (7) days following written notice thereof, we may suspend performance of the Services until all past due amounts, and interest thereon, have been paid, without incurring any obligation or liability to you or any other person by reason of such suspension.

14.10 If you have a monthly plan, your nominated credit card will be charged monthly for the subscription fees. If your credit card cannot be successfully charged, you will be notified and you will need to update your credit card information. If you do not update your credit card information within 3 days of notice, your access to the Service will be blocked and you will need to update your card card information in order to resume use of the Services. There will be no refunds or credits for partial months of service.

14.11 All payment obligations are non-cancelable, and Fees and taxes are non-refundable once they have been paid. You will pay the Fees due under these Terms in accordance with the following applicable payment method, unless agreed otherwise: (a) if you choose to pay the Fees using a credit card, you represent and warrant that you are authorised to use that credit card, that any and all Fees may be billed to that credit card, and that the payment will not be declined; or (b) if you choose to receive invoices and Alooba approves this, then the Fees are due within 7 days of the date of the invoice.

14.12 We are entitled to increase the Fees and change the credit calculations from time-to-time. Any changes will only take place after your initial subscription period. We will notify you of these changes via email.

14.13 Credits serve as the currency within Alooba, providing access to various features and services as your needs dictate. Each subscription plan includes a certain number of credits, and additional credits can be purchased in the platform. The credits and credit calculations are agreed in the Order Form. All Credits are non-refundable, non-cancellable and non-transferable.

14.14 Subscription Credits are included as part of your monthly or yearly subscription plan with Alooba. These credits are allocated at the beginning of each billing cycle and are designed to cover your core platform usage, including accessing users, assessments, and invites. They expire at the end of the billing cycle.

14.15 Additional Credits can be purchased separately at any time to extend your platform's capabilities or to access premium features. While subscription credits reset at the end of each billing cycle, additional credits have a longer lifespan and only expire 365 days after purchase, offering more flexibility for longer-term planning.

14.16 Both Subscription Credits and Additional Credits have the same value, and can be used interchangeably within Alooba. The only difference is in the allocation and expiry of the credits.

14.17 Credits used for any time-based activities - such as Active Users and Active Assessments - will be deducted at the start of the month, for the full month.

14.18 You are solely responsible for monitoring your credit usage. If your account's total credit balance (subscription plus additional credits) falls below a certain threshold, the auto-top up feature will automatically purchase more credits for you. If your account has auto-top up enabled, you authorise us to charge your credit card for the top-up amount specified.

14.19 If auto-top up is disabled or if a purchase fails (e.g., due to a declined payment method), your account may face restrictions on further usage until additional credits are successfully acquired.

14.20 If your account runs into negative credits, your account may be restricted. Once your billing period has renewed, any negative credit balance will be consumed from the new subscription payment.

15. Updates

15.1 You agree that we may make changes to the Platform at any time without your consent, provided those changes do not substantially and adversely affect your use and enjoyment of the Platform.

By way of example, a change that would substantially or adversely affect your use and enjoyment of the Platform:

(a) would include a fundamental change to the Platform, such as us removing the SQL test; and

(b) would not include changing minor features or the look or feel of the web platform.

15.2 In relation to changes to the Platform that would substantially and adversely affect your use and enjoyment of the Platform, we agree to provide you with notice of any such change at least 3 days prior to the change taking place.

16. Variation to the Services

16.1 Subject to clause 16.2, you may request a variation or change to the Services, including the timing for the provision of the Services, by providing written notice (including by email) to us, with details of the variation or change, (Variation Request).

16.2 We will not be obliged to comply with a Variation Request unless we:

(a) accept the Variation Request, including any variation to the Fees to affect the Variation Request (Fee Variation), in writing; and

(b) the Fees have been adjusted to reflect the Fee Variation, if applicable.

16.3 If we consider that any instruction or direction from you constitutes a variation, then we will not be obliged to comply with such instruction or direction unless a Variation Request has been issued and accepted in accordance with this clause 8.

17. Applicant Tracking Systems

17.1 You agree that we may facilitate, on your instructions, the integration, interface, or interoperation of, the Services with your Applicant Tracking System, and that the provision of the Platform may be contingent on, limited by, or impacted by your Applicant Tracking System.

17.2 To the extent that you instruct us to integrate, interface or interoperate the Platform with any Applicant Tracking Systems, you are solely responsible for:

(a) the purchase of;

(b) the requirements (including any consents or permissions); and

(c) the licensing obligations (including compliance with those obligations), related to the Applicant Tracking System, and

(d) for ensuring that the integration, interface, or interoperation of, the Platform with your Applicant Tracking System and the extraction, receipt and/or disclosure of any Customer Data is legally and contractually permitted (including with respect to Data Protection Laws).

17.3 You agree that the benefit of any Applicant Tracking System’s interface, or interoperation with, the Services, is subject to your compliance with clause 10.2 and that we have no Liability to you (including for any loss of access to Customer Data or corruption of Customer Data, except in the case of our negligence) if any Applicant Tracking System is delayed, fails or withdraws your access to their services or withdraws their services from integration with the Platform.

17.4 Despite anything to the contrary, to the maximum extent permitted by law, you are liable for, and agree to indemnify us and hold us harmless in respect of, any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with your Applicant Tracking System, except as a result of our own negligence.

18. Definitions

In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in the body of these Terms and:

Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time;
Account means an account set up by you to use the Platform;
Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and IT systems;
Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise;
Intellectual Property means any copyright, registered and unregistered trademarks, designs (whether or not registered or registrable), domain names, know-how, inventions, processes, trade secrets or confidential information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing;
Intellectual Property Breach means any breach by you of any of our Intellectual Property Rights (or any breaches of third-party rights including any Intellectual Property Rights of third parties), including using or exploiting our Intellectual Property for purposes other than as expressly stated in these Terms (including, without limitation, using our Intellectual Property for commercial purposes or on-selling our Intellectual Property to third parties);
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property;
Improvements means any development, modification, adaptation or improvement of Our Materials or any New Materials made by or on behalf of either Party (or any of our personnel), or in respect of which Intellectual Property Rights are acquired by, either Party during the Term;
Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with these Terms or the provision of the Platform;
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise;
New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of either Party (or any of our personnel) in connection with these Terms and the Platform (including anything generated by the Platform as a result of your use of the Platform, Your Results and any machine learning algorithms output from the Platform, but excluding User Data and Your Materials), whether before, during or after the Commencement Date;
Order Form means the online form in the Platform where you choose your subscription package and agree to the associated Fees.
Our Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property and the Platform) that we may provide to you under these Terms, and which may contain material which is owned by or licensed to us, and is protected by Australian and international laws;
The Services are as follows: a) Alooba testing platform and b) the Support Services. We may provide services outside of the above scope however these will be a variation for the purposes of this Agreement.
Terms means these terms and any terms agreed under it and any documents attached to, or referred to in them;
Third Party Inputs means third parties or any goods and services provided by third parties, customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Platform may be contingent on, or impacted by;
User Data means the information, materials, logos, documents, qualifications and other Intellectual Property or data inputted by you into the Platform and any personal data collected, used, disclosed, stored or otherwise handled in connection with these Terms. User Data expressly excludes Our Materials, New Materials (including Your Results) and Improvements; and
Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of you before the Commencement Date and/or developed by or on behalf of you independently of these Terms.

For any questions and notices, please contact us here

ADDENDUM 1 - Data Processing Addendum

This Data Processing Addendum (including the annexures, the Addendum) forms part of and supplements the Alooba terms and conditions and is entered into between Alooba PTY LTD ABN 96 631 848 872 (we, us or our) and you, the counterparty executing this Agreement (you or your), and together the Parties and each a Party.

You enter into this Addendum by executing and returning the Agreement to us.

1. Processing of Your Personal Data

1.1 Application: This Addendum will only apply to the extent the GDPR applies to the processing of Your Personal Data, as defined in Article 3 of the GDPR.

1.2 Role of Parties: The Parties acknowledge that for the purposes of this Agreement:

(a) Annex 1 describes the subject matter and details of the processing of Your Personal Data;

(b) we act as a Processor of Your Personal Data; and

1.3 Compliance: Each Party will comply with all Data Protection Laws applicable to it in the Processing of Your Personal Data.

1.4 Authority: If you act as a Processor of Your Personal Data, you represent and warrant to us that you are authorised by the relevant Controller to provide your instructions and take any actions you take with respect to Your Personal Data.

1.5 Your instructions: By entering into this Addendum, you instruct us to Process Your Personal Data only:

(a) to provide the Services and any related technical support;

(b) as specified by you during your use of the Services and any related technical support;

(d) as otherwise further instructed by you.

1.6 Compliance with your instructions: We will only Process Your Personal Data in accordance with your instructions as set out in clause 1.5, unless other Processing is required by an Applicable Law to which we are subject, in which case, we will immediately inform you of that legal requirement before Processing Your Personal Data for that purpose, unless the Applicable Law prohibits us from doing so on important grounds of public interest.

2. Subprocessors

2.1 Existing Subprocessors: You specifically authorise our engagement of the Subprocessors already engaged by us as at the date of this Agreement.

2.2 New Subprocessors: We will give you prior written notice of the appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor. If, within 14 days of the date of that notice:

(a) you have not taken this opportunity to object by notifying us in writing of any objections (on reasonable grounds) to the proposed appointment of that Subprocessor, we will deem you to have authorised the appointment of that Subprocessor; or

(b) you notify us in writing of any objections (on reasonable grounds) to the proposed appointment we will do one of the following, at our election: (i) not appoint that Subprocessor; (ii) not disclose any of Your Personal Data to that Subprocessor; (iii) not disclose any of Your Personal Data to that Subprocessor until reasonable steps have been taken to address the objections you raised and you have been informed of and agreed to that Subprocessor based on the reasonable steps taken; or (iv) inform you that you may terminate the Agreement immediately upon written notice to us. You agree that the remedies in this clause 2.2(b) are the only remedies available if you object to any new Subprocessor.

3. Data Subject Rights

3.1 Our assistance with requests: If you require assistance with accessing, porting, rectify, deleting, objecting or restricting the use of Your Personal Data in connection with your obligations under the Data Protection Laws with respect to responding to requests from Data Subjects, you agree to contact us and we will use commercially reasonable efforts to assist you to the extent legally required.

3.2 Notifying you: We will promptly notify you if we receive a request from a Data Subject under the GDPR in respect of Your Personal Data, and we will not respond to that request except:

(a) to acknowledge the request and/or direct the Data Subject to you;

(b) on your documented instructions; or

(c) as required by Applicable Laws to which we are subject, in which case we will, to the extent permitted by Applicable Laws, inform you of that legal requirement before responding to the request.

3.3 Expenses: Any assistance we provide to you in accordance with clauses 3.1 and/or 3.2(b) is at your expense (on a time and materials basis).

3.4 No restriction: For the avoidance of doubt, nothing in this Addendum will restrict or prohibit us from responding to any Data Subject Request with respect to Personal Data for which we are the Controller.

4. Data Protection Impact Assessment and Prior Consultation

4.1 Other compliance assistance: Upon your written request and to the extent required by Data Protection Laws, we will (taking into account the nature of the Processing and the information available to us) provide all reasonably requested assistance to you where you are fulfilling your obligations under the Data Protection Laws, including by carrying out a data protection impact assessment or engaging in prior consultations with Supervisory Authorities, as follows:

(a) by complying with clauses 6 and 7 of this Addendum;

(b) by providing the information contained in the Agreement, including this Addendum; and

(c) if you reasonably require further assistance to fulfil your obligations under the Data Protection Laws, by providing such further assistance at your expense (on a time and materials basis).

5. Restricted Transfers

5.1 Data importer and exporter: Subject to clause 5.2, we (as data importer) and you (as data exporter) (notwithstanding that you may be located outside the EU) hereby enter into the Standard Contractual Clauses in respect of any Restricted Transfer from you to us. The Parties agree that for the purpose of the Standard Contractual Clauses, Annex 1 to this Addendum will replace Appendix 1 to the Standard Contractual Clauses.

5.2 Application: The Standard Contractual Clauses will come into effect under clause 5.1 on the commencement of the relevant Restricted Transfer, unless the jurisdiction to which Your Personal Data is transferred is recognised by the European Commission as providing an adequate level of protection for Personal Data.

6. Security

6.1 Our security measures: Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk to the rights and freedoms of natural persons (in particular from a Personal Data Breach), we will implement appropriate technical and organisational measures to ensure a level of security appropriate to that risk. We may update our security measures, including, from time to time, provided that such updates and modifications do not result in the degradation of the overall security of the Services.

6.2 Your security measures: You agree that, except as expressly provided by this Addendum, you are solely responsible for:

(a) assessing and using the Services so as to ensure an acceptable level of risk to Your Personal Data;

(b) keeping your account credentials confidential and secure; and

(c) protecting Your Personal Data that you elect to store or transfer outside of the Services (and for which we will have no obligation).

6.3 Confidentiality: We will take reasonable steps to ensure any of our personnel who Process Your Personal Data, have been informed of the confidential nature of Your Personal Data and have committed themselves to keeping Your Personal Data confidential.

6.4 Personal Data Breach: We will notify you after we become aware of a Personal Data Breach promptly and without undue delay (and at least within 48 hours) and, to the extent possible, provide you with information about the Personal Data Breach to assist you to meet your obligations under the GDPR. We will take all such measures and actions as are reasonably necessary to remedy or mitigate the effects of the Personal Data breach and keep you informed of all material developments in connection with the Personal Data Breach. Further, upon your reasonable request we will take such reasonable commercial steps as are directed by you to assist in the investigation, mitigation and remediation of any Personal Data Breach. Our notification of or response to a Personal Data Breach in connection with this clause 6.4 should not be construed as an acknowledgment by us of any fault or liability with respect to the Personal Data Breach. We will not communicate or publish any notice or admission of liability concerning any Personal Data Breach which directly or indirectly identifies you (including in any legal proceeding or in any notification to regulatory authorities or affected Dat Subjects) without your prior approval, unless we are compelled to do so under Applicable Law. In any event, we will provide you with reasonable prior written notice to any such communication or publication.

7. Audit

7.1 Your audit rights: Subject to written notice of not less than 30 days, and no more than once annually, on receiving a reasonable request from you for us to demonstrate compliance with this Addendum, we will (subject to our obligations of confidentiality):

(a) make available information directly relating to Your Personal Data and necessary to demonstrate our compliance with Article 28(3) of the GDPR; and

(b) if the information provided under clause 7.1(a) is not sufficient to confirm compliance, allow you or an independent and suitably qualified auditor appointed by you, to carry out audits, including inspections, in relation to the Processing of Your Personal Data by us, and you agree to:

(d) take all reasonable measures to limit any adverse impact on us.

7.2 Remedies for Non-Compliance: We shall immediately notify you in writing (unless prohibited from doing so under applicable law) if we are unable to comply with our obligations under this Addendum and/or Applicable Privacy Laws. In the event that you have reason to believe that we have breached or will breach our obligations under this Addendum and/or Applicable Privacy Laws, then without prejudice to any other right or remedy available to you: (i) we shall work with you and promptly take all reasonable and appropriate steps to remediate (if remediable) any such non-compliance; and (ii) you may elect to suspend or terminate the processing of Data or terminate the Agreement without any further liability or obligation to us, and we shall refund you any amounts which were paid for work not yet performed under the Agreement.

8. Deletion or return of Your Personal Data

8.1 Deletion or return process: Following the expiry or termination of our provision of the Agreement, we will, within 90 days of the date of expiry or termination, destroy or return to you (where you request for Your Personal Data to be returned to you within 3 days of the date of termination), all Your Personal Data in our possession or control unless any Applicable Laws require that we retain Your Personal Data.

9. General Terms

9.1 Liability: Each Party’s liability taken together in the aggregate arising out of or related to this Addendum (including the SCCs) will be subject to the exclusions and limitations of liability in the Agreement.

9.2 Term: This Addendum will commence on the Commencement Date and will remain in effect until, and automatically terminate on deletion or return of Your Personal Data in accordance with clause 8.1.

9.3 Order of Precedence: The parties agree that this Addendum will replace any existing data processing agreement or substantially similar document that the parties may have previously entered into in connection with the Services. In the event of any conflict or inconsistency between the agreements entered into between the Parties, the Standard Contractual Clauses will prevail, then this Addendum, the Schedule and terms and conditions of the Agreement.

9.4 Severance: If a provision of this Addendum is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Addendum without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Addendum.

9.5 Governing law: This Addendum is governed by the laws of New South Wales, Australia.

10. Definitions and Interpretation

10.1 In this Addendum, capitalised terms have the meaning given to them in the Agreement and the following terms will have the meanings set out below and cognate terms will be construed accordingly:

(a) Addendum means this data processing agreement and all annexures included, or referred to, in this Addendum;

(b) Applicable Laws means (a) any Data Protection Laws applying to the Processing of any Your Personal Data; and (b) any other law applicable to a Party;

(d) GDPR means the EU General Data Protection Regulation 2016/679;

(e) Restricted Transfer means a transfer of Your Personal Data where such transfer would be prohibited by the GDPR (or by the terms of data transfer agreements put in place to address the data transfer restrictions of Data Protection Laws) in the absence of the Standard Contractual Clauses or another lawful data transfer mechanism as set out at clause 5 above;

(f) Standard Contractual Clauses means the contractual clauses set out by the European Commission available at https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32010D0087, as updated or replaced from time to time;

(g) Subprocessor means any person (including any third party, but excluding our employees or contractors) appointed by or on behalf of us to Process Your Personal Data; and

(h) Your Personal Data means any Personal Data Processed by us on your behalf including any Personal Data you provide us about your team members or job candidates pursuant to, or in connection with the Services.

10.2 The terms, Commission, Controller, Data Subject, Member State, Personal Data Breach, Processor, Processing and Supervisory Authority will have the same meaning as in the GDPR, and their cognate terms will be construed accordingly.

10.3 The word include will be construed to mean include without limitation, and cognate terms will be construed accordingly.

Alooba PTY LTD ABN 96 631 848 872

Last updated: 5th May 2024