Terms and conditions
- Terms and conditions
These terms and conditions apply to the services provided by National Crime Check Pty Ltd ACN 139 183 145 (National Crime Check) to you.
By requesting an Agency Check (including without limitation a Police Check or VEVO Check) or otherwise registering for, or using, the Services, you (Customer) agree that you:
a. have read and understood these terms and conditions; and
b. will be bound by, and will abide by, these terms and conditions.
If you do not wish to be bound by these terms and conditions, please do not request an Agency Check, or otherwise register for, or use the Services.
1. Defined Terms & Interpretation
1.1 Defined Terms
In these terms and conditions, unless the contrary intention appears:
Access Link has the meaning given in clause 2(c).
ACIC means Australian Criminal Intelligence Commission the principal provider of Police History Information.
Agency Check includes Police Checks, VEVO Checks, Bankruptcy Checks, International Checks and any other check, verification, document or data file containing Agency Information that National Crime Check provides to the Customer in conducting the Services.
Agency Information includes the information about an individual received by National Crime Check from a Government Agency or other authorised third party in conducting the Services, including without limitation Police History Information and Visa Entitlement Information.
Bankruptcy Check means the document or data file that National Crime Check provides to Customer(s) containing personal insolvency information received from the Australian Financial Security Authority about an individual.
Business Day means a day in the State of South Australia, Australia that is not a Saturday, a Sunday or a gazetted public holiday in that State.
Business Hours means the period between 9.00am and 5.00pm on a Business Day.
Claim means a claim, demand or proceeding arising out of a cause of action, including breach of contract, tort (including negligence) and any other common law, equitable or statutory cause of action.
Commencement Date means the date that National Crime Check notifies the Customer of National Crime Check's acceptance of the Customer Request submitted by the Customer through the Website or other manner accepted by National Crime Check (and whether such notification is by email, by onscreen confirmation of acceptance or otherwise).
Confidential Information of a Disclosing Party means:
- the following information, regardless of its form and whether the Receiving Party becomes aware of it before or after the date of these terms and conditions;
i. information that is by its nature confidential;
ii. information that is designated by the Disclosing Party as confidential; and
iii. information the Receiving Party knows, or ought to know, is confidential;
- all notes and other records prepared by the Receiving Party based on or incorporating information referred to in paragraph (a); and
- all copies of the information, notes and other records referred to in paragraphs (a) and (b), but excludes information that:
- the Receiving Party creates (whether alone or jointly with any third person) independently of the Disclosing Party; or
- is public knowledge (otherwise than as a result of a breach of confidentiality by the Receiving Party or any of its permitted disclosees).
Customer Data means data and information relating to the Customer and its operations, facilities, personnel, assets, products, sales and transactions.
Customer Request means the application form, request to provide Services, or similar application or request completed or submitted by the Customer to National Crime Check requesting an Agency Check.
Damages means all liabilities, losses, damages, costs and expenses (including all legal costs determined on a solicitor and own client basis) whether incurred or awarded against a party, disbursements, costs of investigation, litigation, settlement and judgment, and interest, fines and penalties, regardless of the Claim under which they arise.
DIBP means the Australian Government Department of Immigration and Border Protection.
Disclosing Party means a party who discloses or makes available Confidential Information to a Receiving Party.
External Factors has the meaning given in clause 2.3(b).
Fees means the fees to be paid by the Customer to National Crime Check at or about the time that the Customer submits a Customer Request for Services.
Force Majeure means:
- act of God, lightning, storm, flood, fire, earthquake, explosion cyclone, tidal wave, landslide or adverse weather conditions;
- act of public enemy, war (declared or undeclared), act of terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion or epidemic;
- the effect of any applicable laws, orders, rules or regulations of any government or other competent authority;
- embargo, power or water shortage or lack of transportation;
- any External Factors; or
- any other event beyond the reasonable control of a party.
Governmental Agency means any governmental, semi-governmental or judicial entity or authority, in Australia or overseas, and including without limitation ACIC and DIBP.
Harmful Code means any virus, worm, trojan horse, trapdoor, software switch, time bomb, slicing routine, corruptive code, logic bomb, disabling code, disabling routine or expiration dates as these words are generally understood within the technology industry and any equivalent or similar corruptive mechanism.
Intellectual Property Rights means the current and future registered and unregistered rights comprised in:
- any patents, patentable invention, discoveries, copyright, rights in circuit layouts, designs, registered designs, trade and service marks, trade names and any right to have confidential information kept confidential;
- computer program material (including computer software computer object code, computer source code, user manuals, tables, charts, flow charts, programming manuals, algorithms, formulas, diagrams, plans, drawing techniques, data, data structures, logical ideas, concepts and processes);
- any application or right to apply for registration of any of the rights referred to in paragraph (a); and
- all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist anywhere in the world (including Australia).
International Check means the document or data file that National Crime Check provides to Customer(s) containing Agency Information received by National Crime Check from a Government Agency or other authorised third party located in a jurisdiction outside of Australia.
Laws means all laws, rules and regulation in any jurisdiction, including (without limitation):
- the common law and equity;
- any statute, regulation, by-law, ordinance or subordinate legislation (including the Privacy Laws);
- any licence, permit, authorisation, accreditation, code of practice, code of conduct, order, direction or other requirement which is enforceable against the Customer or National Crime Check (as the case may be) or which is issued under an instrument referred to in paragraph (b), and includes any amendment, change, update or replacement to any of them that may be implemented or take effect during the term of this terms and conditions; and
- with respect to any International Check, anything specified in sub-paragraphs (a), (b) or (c) of this definition applicable in the relevant overseas jurisdiction.
National Crime Check Pre-Existing IPR means any Intellectual Property Rights owned and created by National Crime Check prior to the Commencement Date (together with any improvements, modifications and enhancements made to those rights during the term of terms and conditions).
National Crime Check Systems means all hardware, software, materials and resources used by (or on behalf of) National Crime Check to provide the Services (and includes the Web Tools).
Police Check means the document or data file that National Crime Check provides to Customer containing the relevant Police History Information.
Police History Information means the police history information received from ACIC about an individual.
Personal Information means any information or opinion about a natural person (whether true or not), including 'personal information' as that term is defined in the Privacy Act, which either party collects or has access to, stores or discloses, or otherwise handles, in the course of performing, or receiving the benefit of, the Services.
Personnel means officers, employees, agents and contractors, including representatives.
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Laws means:
- the Privacy Act, the Health Records Act 2001 (Vic), the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth);
- all codes, guidelines, service standards and procedures issued by a Governmental Authority; and
- all other laws, rules and regulation in any relevant jurisdiction (including Australia),
to the extent they relate to the privacy, protection, use or disclosure of Personal Information or data.
Receiving Party means a party to these terms and conditions who obtains Confidential Information of the other party to these terms and conditions.
Services means the services provided by National Crime Check to Customers under these terms and conditions, including specifically the provision of Agency Checks.
VEVO Check means the document or data file that National Crime Check provides to Customer(s) containing the relevant Visa Entitlement Information.
Visa Entitlement Information means the visa status, work entitlement(s) and other information received from DIBP about an individual.
Website means the National Crime Check website located at www.nationalcrimecheck.com.au (or any successor website as notified to the Customer from time to time).
Web Tools means any software, interface or other tools made available to the Customer by National Crime Check to enable the Customer to receive the benefit of the Services.
In these terms and conditions, unless the contrary intention appears:
- headings are for ease of reference only and do not affect the meaning of these terms and conditions;
- the singular includes the plural and vice versa and words importing a gender include other genders;
- other grammatical forms of defined words or expressions have corresponding meanings;
- a reference to a clause, paragraph, schedule or attachment is a reference to a clause or paragraph of or schedule or attachment to these terms and conditions and a reference to these terms and conditions includes any schedules and attachments;
- a reference to a document or agreement, including these terms and conditions, includes a reference to that document or agreement as novated, altered or replaced from time to time;
- a reference to a party includes its executors, administrators, successors and permitted assigns;
- the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
- any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
- words and expressions importing natural persons include partnerships, bodies corporate, associations, governments and governmental and local authorities and agencies; and
- a reference to any statute or other legislation is to a statute or other legislation as amended or replaced from time to time.
2.1 Performance of Services
National Crime Check will, from the date that Customer pays the Fees:
- provide the Services; and
- permit the Customer to access and use the Web Tools for the purposes of receiving the benefit of the Services.
The Customer acknowledges and agrees that where the Services include the provision of an Agency Check (including specifically a Police Check):
- National Crime Check may provide the Customer with a weblink to download and access the relevant Agency Check online (Access Link);
- the Access Link may be provided on the basis that it is only accessible for a period of three months from the date National Crime Check sends the Access Link (or such other period notified by National Crime Check), after which period the Access Link will expire and the Customer will no longer be able to use the Access Link to obtain the relevant Agency Check;
- the Customer is solely responsible for making all arrangements necessary for the Customer to obtain the relevant Agency Check using the Access Link before the Access Link expires;
- to the fullest extent permitted by law, where National Crime Check provides the Customer with an Access Link for an Agency Check, National Crime Check is not obliged to:
- provide the Agency Check to the Customer by any other means; or
- provide any refund or replacement Agency Check to the Customer,
including without limitation if the Access Link expires before the Customer has obtained the relevant Agency Check; and
- the Customer is responsible for protecting the Access Link from unauthorised use.
2.2 Access to the Web Tools
The Customer must:
- at its cost, provide appropriate access devices, software, operating conditions, cabling, telephone lines, modems and internet connections required for it to access the Web Tools and otherwise receive the benefit of the Services;
- ensure that no unauthorised use is made of the Web Tools;
- comply with all of National Crime Check operating and security requirements and procedures relating to:
- access to the Web Tools; and
- the use of the Services, (including in respect of passwords and other security information) as displayed on the Website or otherwise notified to the Customer from time to time.
- other than as expressly permitted under these terms and conditions, not obtain (nor attempt to obtain) any access to, or interfere with:
- any programs or data of National Crime Check or any other client of National Crime Check; or
- any part of the National Crime Check Systems, hardware, software or networks.
- not introduce any Harmful Code into the National Crime Check Systems.
If the Customer becomes aware of or suspects that a breach of any of the obligations set out in this clause 2.2 has occurred, the Customer must promptly notify National Crime Check, in which case National Crime Check may take such action as it considers appropriate (which may include changing the Customer's passwords and other security information).
2.3 No Guarantee of continuity of Services
- Despite anything else in these terms and conditions, National Crime Check does not undertake, warrant or guarantee that the Services (including access to the Web Tools or other National Crime Check Systems) will be uninterrupted, continuous or error or defect free.
- The Customer acknowledges and agrees that its use of the Services is dependent on, and affected by, a number of environmental and other factors outside of the reasonable control of National Crime Check (‘External Factors’). Subject only to clause 13.4, to the maximum extent permitted by law National Crime Check (and its directors, employees and agents) will have no liability whatsoever relating to any failure of, or interruption in the performance of, the Services resulting from any External Factors. In the event of failure of the Services, National Crime Check will use reasonable commercial endeavours to restore the Services to an operational state with the minimum practicable delay.
- The Customer acknowledges that, from time to time National Crime Check will conduct routine and other maintenance on the Website and the National Crime Check Systems.
- The Customer acknowledges and agrees that National Crime Check may suspend the Services (including the Customer's access to the Web Tools) if:
- National Crime Check is required to do so by Law or any Governmental Agency; or
- the Customer breaches any provision of these terms and conditions.
2.4 Agency Information
Agency Information is provided to National Crime Check by Government Agencies and authorised third parties (including ACIC and DIBP in Australia), and National Crime Check uses this information to provide Agency Checks to Customers (including without limitation Police Checks, VEVO Checks and International Checks). National Crime Check does not have direct access to any Agency Information, and National Crime Check relies on the information provided to it from the relevant Government Agency or authorised third party (as the case may be) to perform the Services and provide Agency Checks to Customers.
Customer acknowledges that:
- National Crime Check does not have access to Agency Information (including without limitation Police History Information or Visa Entitlement Information);
- National Crime Check is not responsible for Agency Information (including without limitation Police History Information or Visa Entitlement Information) provided to Customer on any Agency Check;
- National Crime Check cannot change, modify or adapt any Agency Information on any Agency Check (including without limitation any Police Check, VEVO Check or International Check); and
- that accuracy and quality of Agency Information is dependent on the relevant Government Agency or authorised third party (as the case may be), and National Crime Check is not responsible for any inaccurate information provided to Customers.
2.5 Information provided by the Customer
Without limitation to any other consent(s) or approval(s) the Customer provides in relation to the Services, the Customer acknowledges and agrees that:
- the Customer consents to National Crime Check using and disclosing the Customer’s Personal Information:
- to conduct any Agency Check that is the subject of the Customer’s Customer Request;
- as required by National Crime Check to provide the Services and perform its obligations under these terms and conditions; and
- to comply with National Crime Check’s obligations under any agreement National Crime Check has with the ACIC with respect to the provision of Police Checks,
- the Customer is solely responsible and liable for ensuring that all information provided to National Crime Check by the Customer (including any Personal Information) is accurate, complete and up to date, is not misleading, does not infringe any other person’s rights and is not in provided in breach of any applicable Law. National Crime Check is not responsible for any consequences if National Crime Check has relied on information provided by the Customer, and such information is inaccurate or incomplete.
3. Customer's obligations
3.1 Licenses and Compliance
The Customer must:
- comply with all applicable Laws and industry codes and practices;
- comply with National Crime Check directions, policies and procedures relating to the use of the National Crime Check Systems and the Service including, but not limited to:
- any applicable Law (including the Privacy Laws) or industry code or practice; or
- any other rules or guidelines posted on the Website or otherwise notified to the Customer by National Crime Check from time to time;
- not act in any way that may have a detrimental effect on the goodwill or good standing of National Crime Check;
- not act in a way that may expose National Crime Check to the risk of any legal or administrative action including prosecution under any Laws; or
- not act in a way that will interfere with or disrupt National Crime Check's business.
3.2 Responsibility for Usage of Services
a) The Customer is solely responsible for all lodgements of Customer Requests under their unique username and password (whether on its own behalf or on behalf of a third party).
b) The Customer acknowledges and agrees that, notwithstanding paragraph (a), National Crime Check may, in their absolute discretion, monitor the Customer Requests being lodged by or on behalf of the Customer using the Services.
c) The Customer must bear all costs arising out of any complaints made in connection with the Customer Requests lodged (including complaints made by any Governmental Agency).
3.3 Volumes and forecasting
The Customer must:
- on request by National Crime Check from time to time, provide National Crime Check with volume forecasts for the use of the Services and such other information that National Crime Check may reasonably request concerning the Customer's use of the Services; and
- provide National Crime Check with revised volume forecasts for its use of the Services if the Customer anticipates, from time to time, that there is likely to be a significant increase or decrease in its use of the Services.
4. Variation to Fees
National Crime Check may from time to time, in its absolute discretion, vary the Fees with respect to the Services by updating the Website. The Customer acknowledges that it is responsible for checking and confirming that it accepts the relevant Fees for Customer Requests at the time of submission of such Customer Requests.
5. Payment and charging
5.1 Basis for charging
The Customer agrees that:
- each time the Customer lodges a Customer Request the Customer will be charged the Fees (which may be varied by National Crime Check from time to time in accordance with clause 4);
- when a Customer Request is received from a Customer the Fees will be charged to the Customer as soon as a Customer Request is entered into the National Crime Check Systems and regardless of whether or not the Customer Request has been checked for accuracy or completeness; and
- the Fees will be set by us and as varied under clause 4.
The Customer must have paid National Crime Check the Fees (in clear funds) in order for the Customer to use the Services. National Crime Check is under no obligation to provide the Services if the Customer has not paid the Fees to National Crime Check.
5.2 National Crime Check rights to not proceed with a Customer Request
National Crime Check may in its sole discretion choose to withdraw and not proceed with completion of a Customer Request if:
- Customer’s credit card payment is not processed in the first run whether or not due to card entry errors (including an incorrect or expired card expiry date) made by Customer;
- there are insufficient funds or the credit limit is insufficient to cover the Fees amount;
- Customer does not pay the amount into a bank account nominated by National Crime Check within two business days; or
- National Crime Check is unable to contact Customer for any reason.
If Customer fails to comply with any of these terms and conditions, any money which Customer paid to National Crime Check on account of any Customer Request may be forfeited to National Crime Check. National Crime Check may also take legal action against Customer to recover the balance of the Fees and any other amounts owing to it under these terms and conditions.
5.3 Incomplete Customer Requests
The Customer must complete all Customer Requests within three months after the Commencement Date. If for whatever reason the Customer fails to complete a Customer Request within this time (including, without limitation, where National Crime Check has requested further information from the Customer and the Customer has failed to respond), National Crime Check may in its absolute discretion cancel or archive the Customer Request and any money which that Customer has paid to National Crime Check on account of that Customer Request will be forfeited to National Crime Check and National Crime Check is released from all Claims and any obligations to provide the Services in connection with that Customer Request.
National Crime Check only offers refunds where National Crime Check determines in its discretion that extenuating circumstances apply to the Customer. Without limitation, Customers will not be eligible for a refund of any amounts paid with respect to the Services if the Customer has not:
- confirmed that the relevant Agency Check will be acceptable for the purpose(s) that the Customer intends to use it;
- provided true and correct information with respect to any relevant Customer Request;
- properly and accurately completed any online application with respect to the relevant Agency Check;
- properly provided all consents (including by signing and dating any pre-populated informed consent form) required by National Crime Check with respect to the relevant Services; or
- properly provided all identification information required by National Crime Check with respect to the relevant Services.
National Crime Check is not responsible for, and the Customer acknowledges that the Customer is not entitled to any refund with respect to:
- data entry errors that have been made by the Customer, the failure by the Customer to provide required details and other information (including identification information), or the provision by the Customer of false or incorrect information with respect to the relevant Customer Request;
- the expiry of any Access Link, including where the Access Link expires before the Customer has obtained the relevant Agency Check;
- Customers that have changed their mind after partially or fully completing a Customer Request;
- selection by the Customer of the wrong Agency Check type and/or reason for the Agency Check when completing the relevant Customer Request; or
- failure by the Customer to properly complete a Customer Request, including by failing to sign, date and return any informed consent form required with respect to the Services the subject of that Customer Request.
National Crime Check may charge a non-negotiable refund-processing fee of $7.50 (GST inclusive) with respect to any request for a refund. This refund-processing fee will be subtracted from any refund amount that is approved by National Crime Check and will be retained by National Crime Check.
To request a refund, please email firstname.lastname@example.org. Refund requests must include the Customer’s first name and surname, date of birth, the reference number with respect to the relevant Services (if possible), and a brief description of why the Customer requests a refund. National Crime Check will then assess the refund request and determine if the Customer is eligible for a refund.
To the full extent permitted by Law, National Crime Check reserves the right to reject any application for a refund in its absolute discretion.
6.1 Defined terms
In this clause 6, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that Act.
6.2 GST inclusive amounts
For the purposes of these terms and conditions, where the expression GST inclusive is used in relation to an amount payable or other consideration to be provided for a supply under these terms and conditions, the amount or consideration will not be increased on account of any GST payable on that supply.
6.3 Consideration GST exclusive
Any consideration to be paid or provided for a supply made under or in connection with these terms and conditions, unless specifically described in these terms and conditions as GST inclusive, does not include an amount on account of GST.
6.4 Gross up of consideration
Despite any other provision in these terms and conditions, if a party (Supplier) makes a supply under or in connection with these terms and conditions on which GST is imposed (not being a supply the consideration for which is specifically described in these terms and conditions as GST inclusive):
- the consideration payable or to be provided for that supply under these terms and conditions but for the application of this clause (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supplier, an amount equal to the GST payable by the Supplier on that supply; and
- the amount by which the GST exclusive consideration is increased must be paid to the Supplier by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
6.5 Reimbursement (net down)
If a payment to a party under these terms and conditions is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.
7. Other Taxes
Except as otherwise specified in these terms and conditions, the Fees and any other fees and charges payable by the Customer under these terms and conditions are exclusive of all taxes, duties and charges imposed or levied in Australia or overseas in connection with these terms and conditions or the Services, which are the responsibility of the Customer. Without limiting the foregoing, the Customer is solely responsible for any taxes, duties or charges imposed subsequent to the Commencement Date in respect of these terms and conditions.
8. Intellectual Property Rights
8.1 National Crime Check Intellectual Property Rights
Customer acknowledges that, unless and to the extent stipulated to the contrary in these terms and conditions, National Crime Check remains the sole owner of and retain all Intellectual Property Rights with respect to the Services, including specifically all Intellectual Property Rights in and to:
- the Website and the National Crime Check Systems;
- all National Crime Check Pre-Existing IPR; and
- all documentation, know-how, methodologies, equipment, systems, processes and other materials supplied or made available to the Customer under or in connection with these terms and conditions, and nothing in these terms and conditions transfers or assigns to the Customer any of those rights.
8.2 Customer Intellectual Property Rights
National Crime Check acknowledges and agrees that, as between the parties, the Customer retains all Intellectual Property Rights in the Customer Data.
The Customer grants to National Crime Check a non-exclusive, non-transferable, royalty-free licence to use and reproduce the Customer Data solely for the purpose of enabling National Crime Check to discharge its obligations under these terms and conditions.
- agrees to be bound by the Privacy Laws applicable to it with respect to any act done or practice engaged in by the party for the purposes of these terms and conditions (including, in relation to the Customer, in respect of the collection, use, disclosure and storage of the Personal Information);
- must (and must ensure that its Personnel) comply with:
- the Privacy Laws and all guidelines issued by applicable privacy offices (and any similar regulatory bodies); and
- the privacy procedures or policies set out at https://www.nationalcrimecheck.com.au/privacy_policy, as varied by National Crime Check from time to time;
- must notify the other party immediately:
- of any complaint from any person alleging a breach of the Privacy Laws;
- if it becomes aware of a breach, or a suspected or possible breach, by it of any of its obligations under this clause 10; or
- if it becomes aware that any disclosure of Personal Information may be required by Law;
- cooperate with the other party in:
- resolving any complaint alleging a breach of the Privacy Laws or any privacy statement regarding any Personal Information; and
- providing access to any record of Personal Information following a request from an individual; and
- take appropriate technical and organisational measures to prevent (to the extent reasonably practicable):
- unauthorised or unlawful use or disclosure of; and
- accidental loss or destruction of, or damage to, Personal Information.
10. Data protection
National Crime Check will:
- only use Customer Data held by National Crime Check (or to which National Crime Check has access):
- for the purpose of fulfilling its obligations under these terms and conditions;
- as required by any applicable Law and, where applicable, under any agreement National Crime Check has with a Government Agency in relation to the provision of the Services (including specifically any agreement National Crime Check has with ACIC with respect to the National Police Checking Service established by ACIC); and
- establish and maintain reasonable safeguards against the destruction, loss or alteration of Customer Data in the possession, custody or control of National Crime Check; and
- use its reasonable endeavours to protect the Customer Data from destruction, loss, alteration or security breaches while the Customer Data is stored in the National Crime Check Systems.
The Customer warrants to National Crime Check that:
- it has the requisite power and authority to enter into these terms and conditions and to carry out the obligations contemplated by these terms and conditions;
- the transmission of the Customer Requests (or related data or information) will not infringe the Intellectual Property Rights or other rights of any person;
- it holds (and will at all times continue to hold) all rights permits, licences, authorisations and accreditations required for it to perform its obligations under these terms and conditions; and
- the performance of its obligations under these terms and conditions will:
- comply with all such rights, permits, licences, authorisations and accreditations; and
- not contravene any applicable Laws.
12. Exclusion of warranties and limited liability
12.1 Exclusion of warranties
- National Crime Check excludes all express and (to the maximum extent permitted by law) implied conditions, warranties and liabilities, except for any liability or implied condition or warranty the exclusion or limitation of which would contravene any applicable statute or cause any part of this clause to be void (Non-excludable Condition).
- To the maximum extent permitted by law, National Crime Check’s liability to the Customer for breach of any Non-excludable Condition is limited, at National Crime Check's option, to:
- in the case of goods, repair or replacement of the goods or payment of the cost of the repair or replacement; and
- in the case of services, resupply of the services or payment of the cost of the resupply.
12.2 Exclusion of liability
Subject to clause 12.4(b), but despite any other provision of these terms and conditions, National Crime Check excludes all liability:
- in relation to Customer Requests (or related data or information) transmitted by the Customer using the Services (including any liability to third parties arising as a result of the transmission of any Customer Requests (or related data or information));
- for loss of revenue, loss of goodwill, loss of customers, loss of capital, downtime costs, loss of profit, loss of or damage to reputation, loss under or in relation to any other contract, loss of data, loss of use of data, loss of anticipated savings or benefits, the cost of procuring any substitute services, or any indirect, consequential or special loss, damage, cost or expense or other Claims for consequential compensation, incurred by or awarded against the Customer under or in any way connected with these terms and conditions or the provision of the Services;
- in relation to any condition, warranty, right or liability which would otherwise be implied in these terms and conditions or protected by law;
- in relation to any error or omission in any Agency Check;
- in relation to the accuracy or completeness of the Agency Information, to the extent that it is dependent on a number of factors outside National Crime Check’s control (such as the accuracy and operation of ACIC’s National Police Checking Service or DIBP’s online visa checking service); and
- in relation to the security and operation of the Services and the process of provision of any Agency Checks, to the extent that they may be dependent on matters beyond the control of National Crime Check (such as the respective Government Agencies’ or police authorities’ systems and databases, internet connectivity and network issues as well as routine maintenance or downtime).
12.3 Liability cap
Subject to clauses 12.2 and 12.4(b), but despite any other provision of these terms and conditions, National Crime Check total aggregate liability for any and all Damages suffered or incurred by the Customer under or in any way connected with these terms and conditions or the provision of the Services is limited to an amount equal to the Fees paid by the Customer to National Crime Check under these terms and conditions.
12.4 Application of exclusions and limitations
The exclusions and limitations of liability in clauses 12.2 and 12.3:
- apply whether the relevant Claim is made under statute, in tort (for negligence or otherwise), under an indemnity, in equity or otherwise; and
- do not exclude or limit the application of any provision of any statute (including the Competition and Consumer Act 2010 (Cth)) where to do so would:
- contravene that statute; or
- cause any part of this clause to be void.
The Customer indemnifies National Crime Check and its Personnel (those indemnified), and will hold those indemnified harmless, against all Damages suffered or incurred by any or all of those indemnified arising, directly or indirectly, out of or in connection with:
- a breach of these terms and conditions by the Customer;
- the transmission of any Customer Requests or Agency Checks (including any Damages sustained or incurred by those indemnified in connection with complaints or Claims relating to any Customer Requests or Agency Checks);
- any negligent or fraudulent act, error or omission on the part of the Customer or its Personnel;
- loss of or damage to any property or injury to or death of any person caused by any act or omission of the Customer or its Personnel; or
- any Claim by a third party against National Crime Check relating to the Services or the subject matter of these terms and conditions.
14. Termination and suspension
14.1 Termination by the Customer for convenience
The Customer may terminate these terms and conditions at any time for convenience by giving National Crime Check five business days’ notice in writing to that effect.
14.2 Termination by National Crime Check for cause
National Crime Check may terminate these terms and conditions immediately by notice to the Customer if:
- the Customer commits any breach of these terms and conditions that is:
- capable of remedy and the Customer fails to remedy the breach within 2 business days after receiving written notice requiring it to do so; or
- incapable of remedy;
- the Customer ceases to be able to pay its debts as they become due;
- any step is taken by a mortgagee to take possession or dispose of the whole or part of the Customer's assets, operations or business;
- any step is taken to enter into any arrangement between the Customer and its creditors;
- any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator or other like person of the whole or part of the Customer's assets, operations or business;
- the Customer disposes of the whole or part of its assets, operations or business other than in the ordinary course of business;
- the Customer ceases to carry on business; or
- where the Customer is a partnership, any step is taken to dissolve that partnership.
14.3 Access to Website may be terminated
Access to the Website may be terminated at any time by us without notice. Any provisions of these terms and conditions that can survive termination will nevertheless survive any such termination.
14.4 Consequences of termination
On expiry or termination of these terms and conditions for any reason:
- the Customer must:
- promptly return or delete all materials, information and documentation provided to it by National Crime Check in connection with these terms and conditions;
- refrain from accessing or using any National Crime Check Systems (including the Web Tools), and ensure that none of its Personnel access or use any of the National Crime Check Systems; and
- National Crime Check may:
- retain any Fees that have been paid to it;
- terminate all means or modes of access and use of the National Crime Check Systems by the Customer and its Personnel; and
- be regarded as discharged from any further obligations under these terms and conditions.
Despite anything else in these terms and conditions, the Customer acknowledges and agrees that National Crime Check may keep a reasonable number of copies of:
- the Customer's Confidential Information disclosed to National Crime Check under these terms and conditions; and
- the Customer Data, for record keeping and quality control purposes, to allow National Crime Check to comply with all applicable Laws.
14.5 Accrued rights and remedies
Termination of these terms and conditions will not prejudice any right of action or remedy which may have accrued to either party prior to such termination.
14.6 Withdrawal or Suspension
Notwithstanding any other provision in these terms and conditions, National Crime Check reserves its right to withdraw or suspend any Services for any reason that National Crime Check deems appropriate. National Crime Check may, at its absolute discretion and without giving any reason, refuse to provide Services to a Customer or any person or persons.
15. Notices and other communications
15.1 Service of notices
Except as otherwise provided under these terms and conditions, a notice, demand, consent, approval or communication under these terms and conditions (Notice) must be:
- in writing, in English and signed by a person duly authorised by the sender; and
- hand delivered or sent by prepaid post or facsimile or email to:
- in relation to the Customer, the Customer's address for Notices the specified in the Customer Request; and
15.2 Effective on receipt
A Notice given in accordance with this clause takes effect when taken to be received (or at a later time specified in it), and is taken to be received:
- if hand delivered, on delivery;
- if sent by email, two hours after the time that the email is sent (unless the sender receives notification during that time that delivery of the email was not successful);
- if sent by prepaid post, on the second Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia); or
- if sent by facsimile, when the sender's facsimile system generates a message confirming successful transmission of the entire Notice unless, within eight Business Hours after the transmission, the recipient informs the sender that it has not received the entire Notice,
but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.
16. Verification functionality
National Crime Check may embed, incorporate or use verification functionality or features with respect to Agency Checks, which may include providing access to an online verification of the Agency Information contained in the relevant Agency Check, or such other security or integrity measures as determined by National Crime Check.
Customer acknowledges and agrees that by forwarding or making available, or by permitting National Crime Check or another party to forward or make available, an Agency Check to a third party, the Customer consents and agrees that such third party may also access the relevant Agency Information of the relevant individual (being the subject of the Agency Check), and use such verification functionality or features with respect to the Agency Check.
Customer acknowledges and agrees that providing such third parties with access to the relevant Agency Information in accordance with such verification functionality or features is appropriate and reasonable, and required to maintain security and integrity of the relevant Agency Check.
National Crime Check reserves the right to amend these terms and conditions from time to time. Amendments will be effective immediately upon uploading on the Website. The Customer’s continued use of the Website (or submission of any Customer Requests) following such uploading will represent an agreement by Customer to be bound by these terms and conditions as amended. The Customer agrees that it is responsible for checking the Website and reviewing the latest version of these terms and conditions to ensure that it is satisfied with the terms and conditions as applicable at any given time, before submitting Customer Requests which will be subject to the applicable terms and conditions at that time.
17.2 Approvals and consents
Except where these terms and conditions expressly states otherwise, a party may, in its discretion, give conditionally or unconditionally or withhold any approval or consent under these terms and conditions.
The Customer may only assign its rights under these terms and conditions with the prior written consent of National Crime Check.
17.4 Force Majeure
Neither party is liable for any failure to perform or delay in performing its obligations under these terms and conditions if that failure or delay is due to anything beyond that party's reasonable control. This clause does not apply to any obligation to pay money. The deadline for any obligation that is affected by the Force Majeure will be extended by a period equivalent to the period for which the Force Majeure has prevented that obligation being performed.
17.5 Further action
Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to these terms and conditions and any transaction contemplated by it.
Any indemnity or any obligation of confidence under these terms and conditions is independent and survives termination of these terms and conditions. Any other term by its nature intended to survive termination of these terms and conditions survives termination of these terms and conditions, including clauses 8, 9, 11, 12, 13, 14, 14.4 and this clause 17.6.
Each clause of these terms and conditions and each part of each clause must be read as a separate and severable provision. If any provision is found to be void or unenforceable, that provision may be severed and the remainder of these terms and conditions will continue in force.
A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver. If we waive any rights available to us under these terms and conditions on one occasion, this does not mean that those rights will automatically be waived on any other occasion.
Except where these terms and conditions expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.
17.10 Governing law and jurisdiction
These terms and conditions are governed by the laws of South Australia, Australia and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of South Australia, Australia.
The Website may contain links to other websites (linked websites). Those links are provided for convenience only and may not remain current or be maintained.
National Crime Check is not responsible for the content or privacy practices associated with linked websites.
The links with linked websites should not be construed as an endorsement, approval or recommendation by National Crime Check of the owners or operators of those linked websites, or of any information, graphics, materials, products or services referred to or contained on those linked websites, unless and to the extent stipulated to the contrary.