1. Definitions and Interpretation
In these Terms and Conditions, the following words have the following meanings:
Terms and Conditions means these terms and conditions.
You or User means all people who access or use the Platform and includes Centres and Workers, and Your and Users have corresponding meanings.
Venue means the place or location at which Childcare Services are to be provided.
ACECQA means the Australian Children’s Education & Care Quality Authority.
App means Talent Now’s mobile application that is available for download via the App Store or the Google Play Store.
Centre means a User who uses or accesses the App or Website to recruit or engage the services of a Worker as a childcare educator.
Worker means a User who uses or accesses the App or Website to seek casual employment with a Centre which provides care for children.
Data means any data that You input into the Platform or that is collected with Your authority.
Penalty or Penalties means the fee or penalty imposed on Centres for failing to meet Your obligations as detailed in Clause 8 of these Terms and Conditions.
Talent Now, Us or We means Talent Now Pty Ltd (ABN 85 619 217 613).
Fees means the fees for the Services as published on the Platform or as otherwise agreed with Us or notified to You from time to time.
GST means Goods and Services Tax, or equivalent value added tax in Your jurisdiction.
Intellectual Property Right means any patent, trademark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
Services or Platform means the services offered via the platform operated by Us including the App and the Website which allows Centres to interact with and engage Workers.
Shift(s) means work that takes place in a single day by a Worker.
Software Subscription Plans means the alternative ways under which Centres are able to access the Website and App to engage the services of a Worker, and include:
1.1.1 the 12 Shift Plan, which provides Centres access to the Website for a period which ends on twelve shifts being completed by a Worker(s) via the App and or Website, or after 365 days, whichever is the earliest.
1.1.2 the 40 Shift Plan, which provides Centres access to the Website for a period which ends on forty shifts being completed by a Worker(s) via the App and or Website, or after 365 days, whichever is the earliest.
1.1.3 the 100 Shift Plan, which provides Centres access to the Website for a period which ends on one hundred shifts being completed by a Worker(s) via the App and or Website, or after 365 days, whichever is the earliest.
1.1.4 the 200 Shift Plan, which provides Centres access to the Website for a period which ends on two hundred shifts being completed by a Worker(s) via the App and or Website, or after 365 days, whichever is the earliest.
1.1.5 the 500 Shift Plan, which provides Centres access to the Website for a period which ends on five hundred shifts being completed by a Worker(s) via the App and or Website, or after 365 days, whichever is the earliest.
In these Terms and Conditions, unless the context otherwise requires:
1.2.1 a reference to a word in its singular form shall be taken to include its plural form, and vice versa;
1.2.2 the words “include”, “including” and “includes” are not words of limitation;
1.2.3 a reference to a party or person in these Terms and Conditions includes a reference to any agent of such party or person; and
1.2.4 a reference to these Terms and Conditions or any other document shall be taken to be reference to the most recent revision of the document referred to.
2.1 The Platform, including the App and the Website, are owned, and operated by Talent Now.
2.3 Please read the Terms and Conditions carefully as they contain important information about Your rights and obligations.
2.4 If You do not wish to be bound by the Terms and Conditions, then do not use the App or Website.
2.6 If You do not understand any of the Terms and Conditions, or You have any questions, please contact Talent Now at firstname.lastname@example.org.
3. The Basics – About the Platform
3.1 The App and Website operates as a platform that allows Centres to interact with and recruit or engage Workers. Talent Now is not an agent for Centres or Workers, nor is it an agent for any third-party suppliers of other goods or services that may be advertised on the App.
3.2 As the App and Website acts only as a platform for Centres and Workers to interact, Talent Now is not, and does not become, a party to any contractual relationship between the Centre and the Worker.
3.3 Save as set out in these Terms and Conditions, We do not mediate between the Centre and the Worker in the event of any dispute arising between them. Where a complaint is made, Talent Now will investigate the complaint to determine whether there has been a breach of the Terms and Conditions and make a determination in this regard. Any decision made by Talent Now regarding whether there has been a breach of the Terms and Conditions will be final.
3.4 We may add, remove or change the Service, including its features, its functions, and Our content, from time to time, at Our absolute discretion without notice to You.
3.5 These Terms and Conditions relate to the use of Our Platform. Centres and Workers are free to agree the terms and conditions which apply to the terms upon which Workers will be engaged by a Centre. However, the Platform will require that certain terms and conditions be agreed, including:
3.5.1 the duration of the engagement, including the date and time of when the services are to start and finish;
3.5.2 the Venue(s) at which the engagement will take place; and
3.5.3 whether the Worker is to be paid award rates of pay or above award rates of pay.
4. Mandatory Requirements Including Working with Children, ACECQA, Visa and Vaccination
4.1 Laws in each State and Territory govern and limit the ability of persons to work at Centres and be involved in child-related work. These laws require that Workers have certain qualifications and undergo certain identity, background and criminal checks, have the right to work in Australia, and also may require Workers to be vaccinated.
4.2 It is important to be aware that a working with children check in one State or Territory will not necessarily be valid for use in another State or Territory and that these checks expire after a certain period of time. Qualification requirements also differ between States. There are significant differences between the laws of each State and Territory. It is the responsibility of Centres and Workers to check and comply with the laws which apply to them.
4.3 If a Worker’s profile states that they have a working with children check, hold an ACECQA approved qualification or have a valid working visa, We do not guarantee that such checks are valid or current. Centres are obliged to check that any Worker has a valid working with children check for their State or Territory, has relevant qualifications and valid visa before engaging that Worker.
4.4 Notwithstanding the above, We may, in our absolute discretion, require a Worker to provide evidence of their compliance with any working with children check, ACECQA and visa requirement and suspend and/or terminate a User’s Account where such evidence is not provided.
4.5 If You are a Worker, You consent to Us and any Centre undertaking checks to determine any visa and/or working with children status, including with the VEVO database maintained by the Australian Department of Home Affairs.
5. Use of Software
Subject to the terms of these Terms and Conditions, We grant You the right to access the Platform, and to use the Service via the Platform. This right is non-exclusive, non-transferable, and limited by and subject to the terms of these Terms and Conditions.
6. Our Fees and Charges
6.1 If You are a Worker, it is free to register and use the Service.
6.2 If You are a Centre, in consideration for the Service, You must pay the Fees specified at the time of purchase plus any applicable GST.
6.3 All Fees quoted are exclusive of GST.
6.4 We will issue You with a Tax Invoice in respect of the Fees in accordance with the GST Act or taxes applicable in Your jurisdiction.
6.5 Depending on the Services You acquire, You may be charged the following Fee types:
6.5.1 Software Subscription Plans – You will be charged in advance of the commencement of the subscription period.
6.5.2 Product or Service – Subject to receipt of an invoice in accordance with this clause, You may be required to pay Fees upfront for any product, service or third-party service purchased.
6.5.3 Permanent Placement Fees – You will be charged when You directly engage or assist another related party to directly engage, a Worker in ongoing permanent employment.
6.6 We reserve the right to change the Fees advertised on the Platform at any time.
6.7 We may run temporary promotions and offer discounts. Such promotions and discounts may be subject to additional terms and conditions.
6.8 All times and dates specified in promotions are deemed to be the local time in Sydney, Australia, unless otherwise stated.
7. Usage, Restrictions, Obligations
7.1 Account Creation and Security
7.1.1 You must create an account in order to receive the Services and access the benefits of the Platform.
7.1.2 You may not create an account if You lack the capacity to enter into a binding agreement with Us.
7.1.3 In order to create an account, You must provide Us with Your full name, Your postal address, Your email address, Your mobile phone number and other information requested during the account registration process. If You are a Worker, this may include providing details of a current and up-to-date working with children check, vaccination and visa status. For Centres, this may include Your Service Approval Number or Provider Approval Number and details regarding the number of children You are authorised to care for. It may also include nominating authorised Users who are able to access Your account.
7.1.4 You warrant that all information You provide during the account registration process is accurate and that You will keep Your information up to date.
7.1.5 Your logon credentials must be kept confidential to You and Your authorised Users.
7.1.6 You must immediately notify Us of any unauthorised use of Your logon credentials or any other breach of security.
7.1.7 You agree that You will be responsible for Your use and any activity that occurs as a result of the use of Your logon credentials.
7.2 Acceptable Use
You agree that, subject to any applicable laws:
7.2.1 You may only use the Platform and the Service for lawful purposes, in accordance with this Agreement and any condition posted on the Platform;
7.2.2 You must not provide false information when registering or changing Your registration details;
7.2.3 You must not attempt to undermine the security, functionality or integrity of Our systems and networks or, where the Services are hosted by a third-party, that third-party’s computing systems and networks;
7.2.4 You must not attempt to gain access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
7.2.5 You must not transmit, or input into the Platform, any files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use);
7.2.6 You must not use the Platform or any communication tool available on the Platform for posting or disseminating any material unrelated to the use of the Services, including (but not limited to): the recruitment of permanent staff, offers of goods or services for sale, unsolicited commercial e-mail, content that may be offensive to any other Users of the Services or the Platform;
7.2.7 When You make any communication on the Platform, You represent that You are permitted to make such communication, and You recognise that We are under no obligation to ensure that the communications on the Platform are legitimate, or that they are related only to the use of the Services, however, We reserve the right to remove any communication at any time in Our sole discretion;
7.2.8 You must not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Platform except as is strictly necessary to use either of them for normal operation; and
7.2.9 You agree to accept sole responsibility for the legality of Your actions under the laws which apply to You. You agree that We and Our directors, officers, employees, agents, contractors, successors, assignees and suppliers have no responsibility for the legality of Your actions. Moreover, You agree to comply with the laws and regulations of Your jurisdiction.
7.3 Worker Usage Restrictions
Use of the Service may be subject to limitations, including but not limited to use of the Service in order to seek engagement as a Worker depending upon whether You have a current and valid working with children check for the jurisdiction in which You propose offering those services and, if You are a not an Australian citizen or permanent resident, You have a right to work in Australia.
7.4 Obligations of Centres
The Service only operates as a communication tool which enables Centres to engage Workers. It does not offer payment services. Centres are therefore responsible for paying Workers that are engaged by them. It is a condition of using the App or Website that Centres comply with all legislative requirements relating to the employment of Workers.
It is the responsibility of Centres:
7.4.1 to satisfy and/or assess the suitability and appropriateness of any Worker from whom they acquire Childcare services, including the credentials, identity, background details, skills or expertise of that Worker;
7.4.2 to provide appropriate instructions regarding the supervision, safety, transport, health, medical, dietary requirements or other matters regarding children to be cared for by a Worker;
7.4.3 to comply with all laws relating to the acquisition and provision of childcare services; and
7.4.4 to comply with all laws relating to the engagement of Workers including those dealing with health and safety.
7.4.5 to engage any Workers with a Talent Now account exclusively via the App or Platform, or advise Talent Now within forty-eight hours if work has not been offered via the App or Platform.
7.4.6 to agree that You will not recruit or engage Workers who have been introduced to the Centre via Talent Now in direct employment whether temporary, contract or permanent for a period of 6 months (following the date of the Workers last Shift with You) without paying a permanent placement fee. This is irrespective of whether the Centre or the Worker is a current User of Talent Now.
7.4.7 to advise Talent Now when a Worker is engaged in permanent ongoing employment and pay the Permanent Placement Fee in accordance with Clause 6.
7.5 Obligations of Workers
7.5.1 ensure that they receive appropriate instructions regarding the supervision, safety, transport, health, medical, dietary requirements or other matters regarding a child;
7.5.2 ensure that they comply with any working with children regulation, health and safety or other laws which apply to that Worker.
7.5.3 ensure that they only accept work that is offered via the App or Platform or advise Talent Now within forty-eight hours if work has not been offered via the App or Platform.
7.5.4 ensure that for a period of 6 months from the cessation of their last Shift, they will not accept a direct offer of employment whether temporary, contract or permanent from any Centre or former Centre of Talent Now for whom they worked without first notifying Talent Now.
7.6.1 You are exclusively responsible for ensuring that all communications You send using the App or Platform or send to Us are true, complete and accurate. If You are or ought reasonably to be aware that a communication has been corrupted, You must re-transmit or re-send that communication as soon as practicable.
7.6.2 We are not responsible for the accuracy of anything another User posts or submits to Our App or Platform, nor are We responsible for the online or offline conduct of other Users.
7.6.3 You agree not to use any of the communication Services offered by the App or Platform to transmit or communicate inappropriate, unlawful or offensive material or to discriminate based on race, gender, sexuality, age, disability or any other attribute protected by law.
7.6.4 You agree not to engage in abusive, defamatory or harassing behaviour, or to engage in any other conduct that may bring Us into disrepute.
8. Penalties for Failure to Meet Obligations
8.1 For Centres, failure to meet clause 7.4.5 will incur a penalty of $200 per Shift.
8.2 For Centres, failure to meet clauses 7.4.6 and 7.4.7 will incur a penalty of $8000.
9. User Testimonials
9.1 Users may provide reviews of the Workers or Centres they have had dealings with on the App or Platform, as appropriate (User Reviews). User Reviews are aggregated in order to derive an aggregate score. These aggregate scores are published on the Service.
9.2 Users must provide only accurate and truthful User Reviews.
9.3 User Reviews that are posted onto the App or Platform should only relate to genuine interactions. We do not tolerate spam or unsolicited commercial electronic communications of any kind.
9.4 We do not verify the accuracy or otherwise of User Reviews and You release Us from any and all liability in respect of a User Review. We nevertheless reserve the right to disregard a User Review.
10.1 Centres cannot cancel a booking once it has been accepted. Workers may cancel bookings, however they are actively discouraged from doing so. If it is necessary to vary or cancel a booking, particularly where this occurs within three hours of the scheduled commencement time, the Worker should directly contact and speak with the Centre concerned.
11. Warranties You Make
11.1 You represent and warrant that:
11.1.1 all information (including Personal Information) and data provided by You to Us through the App or Platform is true, accurate, complete and up to date;
11.1.2 You have read, understood and agreed to these Terms and Conditions;
11.1.3 You will not breach any law or agreement if You agree to an engagement with another User of the Service; and
11.1.4 You have complied with all laws.
12. Using the App or Platform
12.1 You agree that You will not engage in any activity that directly or indirectly interferes with or disrupts the operation of the App or Platform or its Services in anyway (or the servers and networks which are connected to the App or Platform) or use the App or Platform in a manner that adversely affects the availability of its resources to others.
12.2 Talent Now cannot guarantee that any file or program available for download and/or execution from or via the App or Platform is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used. You assume all risk of use of all programs and files on this site, and You release Talent Now entirely of all responsibility of any consequences of its use.
12.3 The App or Platform and its contents are provided to You on “as is” basis; the site may contain errors, faults and inaccuracies and may not be complete and current.
12.4 Talent Now reserves the right to change the App or Platform at any time.
13. Intellectual Property Rights
13.1 The App or Platform and all content forming part of the App or Platform, including without limitation all photographs, images, designs, information, interfaces, text, graphics, brand names, logos and trademarks, are protected by copyright, trademark and other intellectual property laws.
13.2 You acknowledge and agree that Talent Now owns, controls or is licensed all legal right, title and interest in and related to the App or Platform, including all intellectual property rights.
13.3 You may not:
13.3.1 modify or copy the layout or appearance of the App or Platform or any software or code contained in the App or Platform; and/or
13.3.2 decompile or disassemble, reverse engineer or otherwise attempt to discover or access any source code related to the App or Platform.
13.4 If You post material to the App or Platform or correspond or otherwise communicate with Us, You automatically grant to Us an irrevocable, perpetual, non-exclusive, royalty-free, world-wide licence to use, copy, display and distribute the content of Your correspondence or communication and to prepare derivative works of the content or incorporate the content into other works in order to publish and promote such content. This may include, but is not limited to, publishing testimonials on our App or Platform and developing Your ideas and suggestions for improved products or Services We provide.
14. The App Store and Google Play Store
14.1 By downloading and/or using the App, You agree that You have entered into an agreement with Us, and not with Apple or Google. We are solely responsible for any product warranties, if any, pertaining to the App, whether express or implied by law, to the extent they are not otherwise effectively disclaimed in these Terms and Conditions.
14.2 By downloading the App from the App Store or from Google Play, Talent Now grants You a non-transferable license to use the App on any iPhone or other relevant device that You own or control as permitted by the usage rules of the Google Play Store, the App Store, the App Store terms of service and the Google Play Store terms of service.
14.3 The parties, namely You and Us, acknowledge that neither Apple nor Google have any obligation whatsoever to furnish any maintenance or support services with respect to the App.
14.4 In the event of any failure of the App to conform to any applicable warranty and where the warranty relates to Your use of a version of the App downloaded through the App Store You may notify Apple, and Apple will refund the purchase price for the App to You (if any); and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the app to conform to any warranty, if any, will be our sole responsibility.
14.5 The parties acknowledge that Talent Now, and not Apple or Google, are responsible for addressing any of Your claims relating to the App or Your possession and/or operation of the App, including, but not limited to: (i) product liability claims made in respect of the App; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation in respect of the App.
14.6 The parties acknowledge that Talent Now, and not Apple or Google, are responsible for any claim that the App infringes any third party intellectual property rights and that Talent Now, and not Apple or Google, will be solely responsible for the investigation, defence, settlement or discharge of any intellectual property infringement claim.
14.7 You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
14.8 The parties each acknowledge and agree that Apple and Google, and Apple’s and Google’s respective subsidiaries, are third party beneficiaries of this Agreement, and that Apple and Google will each have the right (and will be deemed to have accepted the right) to enforce these Terms and Conditions against You as a third party beneficiary of these Terms and Conditions.
14.9 Apple and App Store are trademarks of Apple Inc., registered in the U.S. and other countries. Google and Google Play are trademarks of Google Inc.
14.10 For the avoidance of doubt, the parties state that nothing in this clause is intended to limit, exclude or modify any other provision of these Terms and Conditions.
15. Third-Party Websites
15.1 The App or Platform may contain links to other websites controlled by third parties (Third-Party Websites).
15.2 Talent Now is not responsible for the content or privacy practices of Third-Party Websites.
15.3 Links to Third-Party Websites are provided solely for Your convenience and do not constitute, expressly or impliedly, an endorsement by Talent Now of the third party or the products or services provided by the third party or any affiliation between Talent Now and the third party.
15.4 You access Third-Party Websites and/or use those Third-Party Website’s products and services solely at Your own risk and should make Your own enquiries before relying on any content contained in such Third-Party Websites.
16.1 Cookies are small pieces of information that Your browser stores on Your computer hard drive.
16.3 If You disable Cookies on Your web browser, You may not be able to fully experience all features of the Platform.
17. Availability, Withdrawal and Suspension of Service
17.1 Whilst We endeavour to provide continuous access to the App or Platform, We do not warrant that Your access will be safe, uninterrupted, timely, secure or error free.
17.2 Talent Now may at its discretion withdraw completely, or suspend for a period of time, the App or Platform, or Your access to it for any reason including without limitation:
17.2.1 if there is an interruption, system failure, fault, virus, maintenance or repair requirement, unauthorised access, denial of service or other malicious attack on any part of our computer or telecommunications system;
17.2.2 if You breach any part of these Terms and Conditions; or
17.2.3 if You use or assist others to use the App or Platform for an inappropriate or unlawful purpose, including the storage or transmission of inappropriate, unlawful or offensive material.
18. Exclusion and Limitation of Liability
18.1.1 do not warrant that the App or Platform will be available at all times or that it will be provided without fault or disruption.
18.1.2 do not endorse or recommend any User;
18.1.3 do not warrant that We have reviewed, undertaken, verified or approved regulatory checks, the credentials, identity, background details, skills, expertise or experience of any User or that any User is in any respect compliant with regulatory requirements;
18.1.4 do not warrant that We believe the User is in all circumstances an appropriate person with whom You should be dealing with;
18.1.5 do not warrant that any User is suitable to be a User of the App or Platform; and
18.1.6 do not provide any training to Users in respect of the services they may provide.
18.2 Talent Now and its related bodies corporate, directors, officers, employees, agents, contractors, successors or assignees makes no representations or warranties of any kind, express or implied as to the operation of this site or the information, content, material or Services included on the App or Platform, except as otherwise provided under applicable laws.
18.3 Subject to any rights You have under any consumer protection law, Talent Now excludes to the fullest extent possible under law, all implied terms and warranties whether statutory or otherwise, relating to the subject matter of these Terms and Conditions.
18.4 Where any law (including the Australian Consumer Law) provides a consumer guarantee which may not be lawfully excluded, Our liability will be limited to that provided by law. Without limiting the foregoing, to the extent permitted by law, the liability of Talent Now for any claim will at all times be limited to supplying You the Services offered by Talent Now again.
18.5 To the maximum extent permitted by applicable law, Talent Now, nor its Related Bodies Corporate, directors, officers, employees, agents, contractors, successors, or assigns will not be liable in any way to You or anyone else for any loss or damage, however it arises (whether in contract, tort including negligence, or otherwise) out of or in connection with Your access and use of the App or Platform.
18.6 You agree to accept sole responsibility for the legality of Your actions under the laws which apply to You. You agree that We, Our affiliates and related entities have no responsibility for the legality of Your actions.
You will at all times indemnify, and keep indemnified, Talent Now and Talent Now’s directors, officers, employees and agents from and against any loss (including reasonable legal costs and expenses) or liability incurred or suffered by You or by Us arising from any claim, demand, suit, action or proceeding by any person against You or Us where such loss or liability arose out of, in connection with or in respect of Your conduct or breach of these Terms and Conditions.
20.1 You may stop using the App or Platform at any time for any reason. In order to cancel Your account, please contact Us at email@example.com. Access to the App or Platform will be automatically suspended for Centres where the Centre has not paid its subscription renewal fee prior to the due date.
20.2 Talent Now may suspend or limit Your access to the App or Platform in Our absolute discretion without notice or liability to You for any reason.
20.3 Talent Now reserves the right to, at its discretion, terminate these Terms and Conditions and Your access to and use of the Platform at any time.
20.4 The exclusions and limitations of liability made by Us in these Terms and Condition will survive termination or suspension of Your access to the App or Platform.
21.1 Talent Now may in its sole discretion amend these Terms and Conditions at any time. Any variations to these Terms and Conditions will take effect from posting on the App or Platform.
21.2 Talent Now may give notice to You by electronic mail. You may give notice to Talent Now by electronic mail to firstname.lastname@example.org.
21.3 Any provision of these Terms and Conditions that is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of these Terms and Conditions nor affect the validity or enforceability of that provision in any other jurisdiction where it may be lawful.
21.4 A failure or delay by Talent Now to exercise a power or right under these Terms and Conditions does not constitute as a waiver of that power or right, and the exercise of a power or right by Talent Now does not preclude its future exercise or the exercise of any power or right by or on behalf of Talent Now.
21.5 Your use of the App or Platform is governed by, construed and enforced in accordance with the laws of New South Wales, Australia. Disputes arising from Your use of this Platform are exclusively subject to the jurisdiction of the courts of New South Wales, Australia.
21.6 The App or Platform may be accessed throughout Australia and overseas. Talent Now makes no representations that the content of the App or Platform complies with the laws (including intellectual property laws) of any country outside Australia. If You access the App or Platform from outside Australia, You do so at Your own risk and are responsible for complying with the laws in the place where You access the App or Platform.