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Advertiser Terms & Conditions

These Advertiser Terms & Conditions, together with the General Terms & Conditions, Promotion Agreement, Prosple Controller to Controller Advertiser Data Sharing Addendum and Privacy Policy governs the relationship between Prosple Pty Ltd ABN 43 168 218 782 ("Prosple", "we" or "us") and a person that wishes to advertise on the Prosple Platform.

All capitalised terms not otherwise defined have the same meaning as in the General Terms & Conditions.

In the event of any conflict or inconsistency between these Advertiser Terms & Conditions and the General Terms & Conditions, these Advertiser Terms & Conditions shall take precedence to the extent of any such conflict or inconsistency.

1. Definitions

In these Terms & Conditions ("Conditions") the words/expressions referred to below shall have the following meanings except where the context otherwise requires:

   (a)  "Advertisement" means an advertisement or series of advertisements for the Client and/or its products and services including (but not limited to) employee profiles, user and third party content, articles and features, advertisements in any Publication, advertisements on any Website, Banner Advertisements, and Exhibition Advertisements.

   (b)  "Promotion Agreement" means any contract between Prosple and the Client for advertising which is formed in accordance with clause 2.

   (c)  "Banner Advertisement" means a banner advertisement on any Website, including but not limited to sponsoring advertisements.

   (d)  "Client" means the person, firm, body corporate or other entity stated in any Order Confirmation accepted by Prosple pursuant to clause 2.2.

   (e)  "Event" means an event organised and conducted by Prosple for the Client to enable the Client to meet potential employees or work experience candidates or any other purpose.

   (f)  "Event Sponsorship" means sponsorship by the Client of an Event organised by Prosple (for example without limitation Prosple Student Challenge/ Prosple National Graduate Recruitment Awards) such sponsorship being for the purpose of promoting the Client and/or its products and services.

   (g)  "Exhibition" means an exhibition organised by Prosple.

   (h)  "Exhibition Advertisement" means an advertisement for the Client and/or its products and services which is displayed at an Exhibition or Event.

   (i)  "Exhibition Space" or "Event Space" means floor area taken (and any additional Promotion Services agreed between Prosple and the Client) at an Exhibition or Event.

   (j)  “Intellectual Property” has the same meaning as in the General Terms & Conditions.

   (k)  "Order Confirmation" means the completed order form sent by the Client to Prosple specifying inter alia the price and details of Advertisements, Banner Advertisements, Exhibition Space, Event Space, Exhibition Advertisement, Event, Event Sponsorship, Workplace Survey or Package requested.

   (l)  "Package" means any combination of Advertisements, Banner Advertisements, Exhibition Space, Event Space, Exhibition Advertisement, Events and/or Event Sponsorship and/or Workplace Survey purchased by the Client on any one occasion.

   (m)  "Publication" means in the case of printed Advertisements the publication published by Prosple in which the Advertisement shall appear.

   (n)  "Promotion Services" means any one or more of Advertisements, Banner Advertisements, Exhibition Space, Event Space, Exhibition Advertisement, Event Sponsorship, Events and Workplace Surveys, whether or not purchased in a Package, published or conducted by Prosple from time to time.

   (o)  "Website" means in the case of website Advertisements and Banner Advertisements, the Prosple website on which the Advertisement is to appear.

   (p)  "Working Day" means a day which is not a weekend or public holiday in Sydney, New South Wales.

   (q)  “Workplace Survey” means any survey, interview or other material collected from the Client’s employees or graduates placed with the Client with the assistance of Prosple.

2. Promotion Agreement

   2.1.  The Promotion Agreement shall be formed when the Client's Order Confirmation or the Client’s Advertisement copy is received and then either acted upon by virtue of performance of all or any part of the Promotion Services by Prosple, or accepted in writing or by electronic means such as email by Prosple’s authorised representative.

   2.2.  The Promotion Agreement incorporates:

       (a)  the General Terms & Conditions;

       (b)  these Advertiser terms & Conditions;

       (c)  the Privacy Policy; and

       (d)  the Prosple Controller to Controller Advertiser Data Sharing Addendum

   2.3.  In the event that a person submits an Order Confirmation as agent on behalf of its principal, then the agent must specify the principal's name as well as its own on the Order Confirmation failing which Prosple will reject the same.

   2.4.  The acceptance by Prosple of the Client's Order Confirmation does not confer the right to renew on similar terms.

3. Client's Obligations

   3.1.  The Client warrants that:

       (a)  any description relating to itself and its products or services in the Advertisement is true and accurate and is not likely to mislead or deceive;

       (b)  the Advertisement does not contravene any law or regulation and is not defamatory;

       (c)  it will at all times comply with all relevant advertising standards guidelines and regulations including those issued by the Advertising Standards Bureau;

       (d)  it will supply a copy for Advertisements prior to copy deadlines, as notified or published by Prosple;

       (e)  where applicable, it will attend and participate in Events where it is agreed that it will do so as part of the delivery of the Promotion Services;

       (f)  it has all the necessary consents, approvals and authority to licence to Prosple all Intellectual Property it, or its agents or contractors provide to Prosple for the purpose of Prosple carrying on its business;

       (g)  information and Intellectual Property the Client provides to Prosple does not violate or constitute the infringement of any patent, copyright, trademark, trade secret, right of privacy, right of publicity, moral rights, or other Intellectual Property right recognized by any applicable jurisdiction of any person or entity, or otherwise constitutes a breach of any agreement with any other person or entity;

       (h)  information the Client provides to Prosple is true, and accurate and is not misleading  or deceptive in any way or particular; and

       (i)  where the Client is acting as agent, that it will procure compliance of clauses 3.1(a) to3.1(h) by its principal for whom Promotion Services are being procured. 

   3.2.  If the Client breaches clause 3.1 it shall immediately rectify the breach and fully indemnify Prosple against any fines, losses, costs, damages, charges, claims, demands, expenses direct losses, loss of profits and indirect and consequential losses incurred by Prosple as a result of the Client's breach.

   3.3.  The Client shall be responsible for insuring all films, artwork, photographic and other advertising materials delivered to Prosple and Prosple shall not be liable to any loss or damage thereto while the same is in its possession or control.

   3.4.  The Client shall be responsible for collecting any films, artwork, photographic and other materials submitted to Prosple for the purposes of the Advertisement. Prosple shall accept no responsibility for any such items which are not collected by the Client.

   3.5.  The Client grants Prosple an irrevocable, non-exclusive, royalty-free, perpetual, and worldwide license to use content and Intellectual Property the Client provides Prosple, including, without limitation:

       (a)  the rights to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, modify, alter, translate and reformat the Client’s content, and/or to incorporate it into a collective work; and

       (b) the right to sublicense any or all of Prosple’s license rights to others.

   3.6.  For the avoidance of doubt, this means Prosple has the right to use any and all Intellectual Property and other material the Client submits (including articles, features, photographs, and audio-visual materials, ideas about Prosple products, services, publications or advertising campaigns) in any manner Prosple determines, without notice.

   3.7.  The Client irrevocably, voluntarily and unconditionally consents to all or any acts or omissions by Prosple, or persons authorised by Prosple, concerning any and all of the moral rights made or to be made by the Client in relation to content the Client provides Prosple which would otherwise infringe the Client’s moral rights.

4. Approval of Advertisements

   4.1.  All Advertisements must be submitted by the Client for the approval of Prosple prior to publication. Prosple reserves the right to refuse, omit, alter, suspend, withdraw or otherwise deal with any Advertisement at its absolute discretion and without explanation or liability to the Client. The Client acknowledges that Prosple’s approval does not include any approvals relating to the Advertisements not infringing Intellectual Property rights of any person.

   4.2.  Banner Advertisements run on a calendar monthly basis. All visuals and copy for Banner Advertisements must be supplied to Prosple at least 10 Working Days prior to the first day of the calendar month in which the Banner Advertisement is to first appear.

   4.3.  Visuals and copy shall be supplied in accordance with Prosple’s publication deadlines as published/advised on a periodic basis or, in the case of Banner Advertisements, in accordance with clause 4.2. If the Client fails to comply with this clause 4.3:

       (a)  Prosple shall not be under an obligation to supply proofs to the Client and reserves the right to use the copy last supplied by the Client; and

       (b)  Prosple shall be entitled to payment of its fee in accordance with clause 6, even if no visuals or copy have been supplied.

   4.4.  If the Client fails to approve and return any proof submitted by Prosple, Prosple reserves the right to print the Advertisement as prepared.

   4.5.  Prosple cannot accept responsibility for changes to approved copy although it will use its reasonable endeavours to make these if they are submitted prior to the final copy deadline as published/advised from time to time, provided always where changes are made pursuant to this clause 4.5 the Client shall be responsible for any additional costs thereby incurred by Prosple.

5. Prosple’s Obligations

   5.1.  Prosple shall use its best endeavours to ensure the appearance of contracted for Advertisements but does not accept liability for the non-appearance of any Advertisement. In the case of Advertisements for Publications, it is hereby agreed that Prosple’s best endeavours shall not extend to reprinting any Publication, but the Client will be offered the next available and/or relevant alternative.

   5.2.  Unless the parties have agreed to the position of the Advertisement in the Publication or on the Website (in which case this shall be agreed in writing by the parties) Prosple does not guarantee the position of any Advertisement in the Publication or on the Website. Where the Client has expressed a preference only as to the position of its Advertisement in the Publication or on the Website Prosple shall use its reasonable endeavours to comply with the Client's preference but shall have no liability to if the Advertisement is not published in the preferred position.

   5.3.  Prosple shall use its reasonable endeavours to procure attendance at Events, and shall use its best endeavours to act reasonably to all sponsors in the case of Events sponsored by a number of clients (always taking into account any difference in the level of sponsorship purchased by sponsors). Prosple will advise clients of its experience of the usual acceptance/subsequent attendance ratios, but Prosple shall not be liable for actual attendance levels being lower than those anticipated.

   5.4.  The Client also acknowledges that the Website and associated services Prosple provides may be liable to disruption, disconnection or other like event, being beyond the control of Prosple and that the Client must still pay for the services Prosple provides notwithstanding that such services may not have been active for the whole time they were intended to be provided.

6. Workplace Surveys

   6.1.  Where the Promotion Services include Workplace Surveys & Interviews (including graduate satisfaction surveys and graduate interviews and profiles) the provisions of this clause 6 shall additionally apply.

   6.2.  The Client must make best efforts to invite those of its employees who have graduated in the last three years to take part in a Workplace Survey carried out by Prosple. The Workplace Survey may be completed on an anonymous basis but respondents are given the opportunity to have a copy of the synopsis/review prepared by Prosple as part of the Workplace Survey (“Report”) sent to them, in which case each individual respondent requesting a copy will need to provide his/her name and email address to Prosple for such purpose.

   6.3.  The respondent’s name, e-mail address and other personal information constitutes personal data which Prosple will hold and use only for the purpose of sending the respondent a copy of the Report. Prosple will hold and use such personal data in accordance with current data protection legislation and the privacy policy.

   6.4.  The Client agrees that if it collects the completed Workplace Survey from respondents on behalf of Prosple, it shall forward them all to Prosple and shall not use them for any purpose, in particular but without limitation the Client agrees not to supply the completed Workplace Survey or Report to any third party.

   6.5.  The Client agrees that Prosple shall own all copyright and other Intellectual Property rights in the Workplace Survey, the responses contained in the Workplace Survey and the Report and the Client shall take all steps reasonably required by Prosple to give effect to this clause 6.5. The Client acknowledges that it has no licence, implied or otherwise, to use the Intellectual Property rights comprised in and/or from the Workplace Survey or Report, other than to the extent necessary to pass such information on to Prosple. In particular but without limiting the foregoing, the Client has no right to copy or transfer any Workplace Survey, responses contained in the Workplace Survey or Report to any third  party without the prior written consent of Prosple.

   6.6.  Prosple shall use reasonable care and skill when conducting the Workplace Survey and preparing the Report. Prosple shall provide the Client with a draft of the Report prior to publication and shall take reasonable account of any request by the Client for changes to be made to the Report, provided always that Prosple shall have ultimate editorial control over the Report. If the Client objects to the Report it may request that Prosple does not publish it but in such event the Client shall not be entitled to any refund of the fees due or already paid to Prosple.

   6.7.  Unless otherwise agreed, the Client must not copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, modify, alter, translate and reformat the Client's content, and/or to incorporate it into a collective work, and must not sublicense any or all of Prosple's rights to others.

7. Fees

   7.1.  The fee payable by the Client to Prosple shall be in accordance with Prosple’s published rates or as otherwise agreed in writing by the parties.

   7.2.  All fees are exclusive of Goods and Service Tax, but any fees for which Goods and Services Tax is payable shall be recoverable from the Client in addition to the fees.

   7.3.  Prosple shall be entitled to invoice the Client immediately following Prosple’s acceptance of the Client's Order Confirmation or the Client’s Advertisement Copy as the case may be

   7.4.  The Client shall pay Prosple within 30 days of the date of Prosple’s invoice. The fees shall be payable in full and the Client shall not be entitled to make any deduction or exercise any right or set-off counterclaim or contribution howsoever arising. The time of payment of the fees shall be of the essence of the Promotion Agreement.

   7.5.  Prosple reserves the right to request and receive full payment prior to acceptance of an Order Confirmation if, in the opinion of Prosple, the credit-worthiness of the Client is not satisfactory or the Client has not paid previous invoices within Prosple’s usual payment terms.  Furthermore, if at any time in the opinion of Prosple the credit-worthiness of the Client shall have deteriorated prior to performance by Prosple of any Promotion Services Prosple may require full or partial payment of the fees prior to such supply, or the provision of security for payment for the Client in a form acceptable to Prosple.

   7.6.  If the Client fails to make any payment on the due date then without prejudice to any other right or remedy available to Prosple, Prosple shall (at its option) be entitled to:

       (a)  treat the Promotion Agreement as repudiated by the Client and cancel publication of any Advertisement or cease the Promotion Services (as the case may be), claim damages from the Client and charge the Client interest both before as well as after any judgment on the amount unpaid at the rate of 4% per annum above the base rate from time to time of the Commonwealth Bank of Australia from the date payment is due until payment is made; or

       (b)  affirm the Promotion Agreement, claim damages from the Client and charge the Client interest in accordance with clause 7.6(a).

   7.7.  Where the Client pays a subscription for an agreed number of Banner Advertisements or advertisements on any Website during an agreed period of time ("Subscription Period") and the Client fails to take up the agreed number during the Subscription Period:

       (a)  the Client shall not be entitled to a refund of the fees in respect of the Advertisements which has failed to take up during the Subscription Period; and

       (b)  the Client shall not be entitled to carry forward Advertisements which has failed to take up during one Subscription Period into a subsequent Subscription Period.

   7.8.  In addition to other rights Prosple has, the Client indemnifies and must keep indemnified Prosple for any costs of enforcement or recovery relating to the payment of fees the Client owes Prosple (including legal fees).

8. Cancellation of Promotion Services

The Client may not cancel an Order Confirmation which has been accepted by Prosple.

9. Confidentiality

   9.1.  The content and terms of this Promotion Agreement shall be confidential as between the parties and there shall be no breach of that confidence by either party.

   9.2.  Save as provided in clause 9.1, each party agrees and undertakes that it will keep confidential and will not use for its own purposes nor without the prior written consent of the other party disclose to any third party all information of a confidential nature, (including but not limited to trade secrets and information of commercial value) which may become known to such party from the other unless such information is public knowledge (other than by breach of this clause 9) or is required to be disclosed by a court of competent jurisdiction. Breach of this clause 9.2 shall not be subject to the terms of clause 10 (Limitation of Liability).

   9.3.  The obligations in this clause 9continue:

       (a)  for matters in the nature of a trade secret, for an unlimited period of time; and

       (b)  for all other matters comprised in the confidential information, the latest date to which it would be reasonable to protect the interests of the party which owns the information, but in any event not less than 24 months after this Promotion Agreement terminates or otherwise expires (whichever is the later).

10. Limitation of Liability

   10.1.  Except for liability in relation to breach of any implied condition, warranty or guarantee, including under the Competition and Consumer Act 2010 (Cth), the exclusion of which from a contract would contravene any statute or cause any part of this Agreement to be void, or as otherwise provided in this Promotion Agreement, all conditions, warranties and representations expressed or implied by statute, common law or otherwise in relation to Prosple’s obligations hereunder are hereby excluded.

   10.2.  Without prejudice to any other terms in this Promotion Agreement the aggregate liability of Prosple shall not in any circumstances (except in respect of death or personal injury caused by Prosple’s negligence) exceed the total sum payable by the Client to Prosple under this Promotion Agreement. Where Prosple fails to provide a service, its total liability to the Client shall be limited to a refund of the fees paid or payable by the Client for the service or the cost of resupply of that service (the choice of which is at Prosple’s discretion). Where the service not so performed has been ordered as part of a Package, Prosple shall reasonably determine the proportion of the total payment relating to the unpublished/unperformed service its total liability to the Client in respect of the unpublished/unperformed service shall be limited to such proportion.

   10.3.  Prosple shall not be liable to the Client for any indirect or consequential losses or damages (including but not limited to loss of profits) whether arising from breach of contract negligence or howsoever.

   10.4.  Nothing in these terms shall limit or exclude our liability for any other liability that cannot be excluded or limited by Australian law. Where such liability cannot be excluded, the Client’s remedy is limited, in the case of goods, to the resupply or cost of resupply of such goods, and in the case of services, to the resupply of such services or cost of such resupply and in all cases (goods and services) at the election of Prosple.

   10.5.  The Client agrees to indemnify and hold Prosple and its employees and agents harmless from and against any claims, actions or demands including without limitation, the Client’s breach of any one or more warranties or terms of this Promotion Agreement.

11. Termination

   11.1.  Notwithstanding and without prejudice to clause 7 above Prosple shall be entitled to terminate this Promotion Agreement immediately by giving written notice to the Client if the Client fails to make payment in accordance with this Promotion Agreement.

   11.2.  Either party is entitled to terminate this Promotion Agreement immediately in any of the following events:

       (a)  if the other party convenes a meeting of its creditors, becomes insolvent, is unable to pay its debts, has an administrative receiver or receiver or administrator appointed over its assets or business or is the subject of a petition presented to put it in into liquidation; or

       (b)  if the other party is in in breach of any material term of this Promotion Agreement, such material term being incapable of remedy or incapable of remedy within 7 days.

   11.3.  In any such case the party exercising the right of termination shall be entitled to charge the other party any costs, charges or expenses (direct or consequential) howsoever arising incurred by the terminating party.

   11.4.  Termination of this Promotion Agreement howsoever, shall not affect the accrued rights or the liabilities of either party.

12. Assignment

   12.1.  The Client shall not be entitled to assign or otherwise transfer the benefit of its obligations under this Promotion Agreement without the prior written consent of Prosple.

   12.2.  Prosple may assign or otherwise transfer the benefit of its obligations under this Promotion Agreement by giving notice to the Client.

13. Force Majeure

   13.1.  If either party is unable to perform its obligations by reason of matters beyond its control including but not limited to any act of terrorism, war, riot, civil commotion, compliance with any law or governmental order, fire, flood or storm, strikes, lock-outs or other industrial disputes (whether involving the workforce of the party so prevented or of any other party) delay in transit, power failure, postal delay, the party so affected will notify the other party and the parties agree to delay the performance of this Promotion Agreement for as long as may be reasonably necessary until the cause(s) giving rise to force majeure has/have ceased.

14. Dispute Resolution

   14.1.  Before court or arbitration proceedings other than for urgent interlocutory relief may be commenced, the following steps must be taken to attempt to resolve any dispute that arises out of or in connection with this contract (including any dispute as to the validity, breach or termination of the contract, or as to any claim in tort, in equity or pursuant to any statute).

   14.2.  Notice (the notice of dispute) must be given in writing by the party claiming that a dispute has arisen to the other party (or parties) to this contract specifying the nature of the dispute. 

   14.3.  Upon receipt of the notice of dispute, the parties must attempt to agree upon an appropriate procedure for resolving the dispute. 

   14.4.  If within 10 business days of receipt of the notice of dispute the dispute is not resolved or an appropriate alternative dispute resolution process is not agreed, then the parties shall refer the dispute to Resolution Institute, (ACN 008 651 232; Level 2, 13-15 Bridge Street, Sydney NSW 2000; email: [email protected]; telephone: (61-2) 9251 3366, for facilitation of a mediation in accordance with Resolution Institute's Mediation Rules.  

   14.5.  The parties must co-operate with Resolution Institute as facilitator. 

   14.6.  If within 10 business days after referral of the dispute to Resolution Institute the parties have not agreed upon the mediator or other relevant particular the mediator and any other relevant particular will be determined in accordance with Resolution Institute’s Facilitation Rules. 

   14.7.  This clause will remain operative after the contract has been performed and notwithstanding its termination.

15. General

   15.1.  Any representations made by Prosple prior to the making of the Promotion Agreement shall not form part of the Promotion Agreement and shall be of no effect. The Promotion Agreement supersedes all prior agreements, arrangements and undertakings between Prosple and the Client relating to the subject matter hereof. No variation or addition shall be binding upon the parties unless made in writing and signed by the authorised representatives of both parties. 

   15.2.  If any provision or part of a provision of this Promotion Agreement shall be or be found by any court of competent jurisdiction to be invalid or unenforceable such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of this Promotion Agreement all of which shall remain in full force and effect.

   15.3.  Any notice hereunder shall be deemed to have been duly given if sent by prepaid first class registered post or by electronic mail to the party concerned at its registered office or principal place of business or such other address as may have been notified pursuant to this provision to the party giving the notice. Notices sent by first class registered post shall be deemed to have been given 7 days after despatch and notices sent by electronic mail shall be deemed to have been given on the date of despatch, unless the sender receives an automated notice of non-delivery or receipt.

   15.4.  Address for Notices:

       (a)  For Prosple notices should be sent to The Finance Director, Prosple Pty Ltd, PO BOX 256, Blackheath, NSW, 2785, Australia, or via electronic mail to: [email protected]

       (b)  For the Client the address to which notices should be sent shall be that on the Order Confirmation unless otherwise advised in writing by the Client.

       (c)  Calls made to Prosple by the Client may occasionally be recorded for training purposes. The Client consents to such recording.

   15.5.  If Prosple fails to insist that the Client perform any of its obligations under this Promotion Agreement, or if Prosple does not enforce its rights against the Client, or if Prosple delays in doing so, that will not mean that Prosple has waived its rights against the Client and will not mean that the Client does not have to comply with those obligations. If Prosple does waive a default by the Client, Prosple will only do so in writing, and that will not mean that Prosple will automatically waive any later default by the Client.

   15.6.  No agency, partnership, joint venture, employee-employer or other similar relationship is created by this Agreement. In particular, the Client has no authority to bind Prosple, its related entities or affiliates in any way whatsoever.  

   15.7.  This Promotion Agreement, its subject matter and formation, is governed by the law of New South Wales, Australia. The Client and Prosple both agree that the Courts of that State will have exclusive jurisdiction.

   15.8.  Each provision of this Promotion Agreement operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.

16. Interpretation

   16.1.  Provisions in this Promotion Agreement must not be construed against Prosple because Prosple was responsible for or put forward that provision or because that provision benefits Prosple.

   16.2.  In this Promotion Agreement unless the context indicates a contrary intention:

       (a)  headings are for convenience and do not affect interpretation;

       (b)  the plural shall include the singular and vice versa;

       (c)  a reference to any gender shall be taken to include every other gender;

       (d)  if a word or phrase is defined, its other grammatical forms have a corresponding meaning;

       (e)  a reference to this Promotion Agreement includes a reference to any amendment, novation, variation, supplemental deed or replacement from time to time in existence;

       (f)  a reference to an agreement or document (including these terms) is to the agreement or document as amended, varied, supplemented, novated or replaced, except to the extent prohibited by these terms or that other agreement or document;

       (g)  a reference to writing includes any method of representing or reproducing words, figures, drawings, or symbols in a visible form;

       (h)  reference to any statute, or any subordinate legislation or instrument includes all statutes, subordinate legislation or instruments amending, modifying, consolidating, re-writing, re-enacting or replacing them and a reference to a statute includes all subordinate legislation and instruments made under that statute.

       (i)  a reference to conduct includes, an omission, statement or undertaking, whether or not in writing;

       (j)  a reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement, whether or not in writing;

       (k)  a reference to a document includes an agreement (as so defined) in writing and any certificate, notice, instrument and document of any kind;

       (l)  a reference to dollars and $ is to Australian currency;

       (m) the meaning of general words is not limited by specific examples introduced by including, or for example, or similar expressions; and

       (n)  references to agree, approve or consent are references to agreement, approval or consent (as the case may be) in writing.
 

Prosple Controller to Controller Advertiser Data Sharing Addendum

This Advertiser Data Sharing Addendum (Addendum) is supplementary to, and forms part of, the Advertiser Terms and Conditions available at https://prosple.com/advertiser-terms-and-conditions, as updated from time to time (the Agreement) between Prosple Pty Ltd (ABN 43 168 218 782) (Prosple) and Advertiser. This Addendum applies where and only to the extent Prosple is acting as “Controller” of Personal Data in the course of providing the Promotion Services to Advertiser (Advertiser) (who is also acting as a “Controller”) under the Agreement. 

This Addendum is intended to demonstrate the parties’ compliance with the Applicable Privacy Laws. 

IT IS AGREED: 

1. Definitions 

In this Addendum, the following terms shall have the following meaning:

Advertiser has the meaning given to that term in the Agreement. 

Applicable Privacy Laws means all worldwide data protection and privacy laws and regulations applicable to the Prosple User Data including, where applicable: 

i. Australian Privacy Act 1988 (Cth); 

ii. New Zealand Privacy Act 2020; 

iii. Philippines Republic Act No. 10173, also known as the Data Privacy Act of 2012; 

iv. Indonesian Government Regulation no.71 of 2019 (GR 71/2019, Law no. 11 of 2008 on Electronic Information and Transactions and its amendment law no.19 of 2016 and MOCI regulation no.20 of 2016 (Protection of Personal Data in an Electronic System); 

v. European Privacy Laws; 

vi. India’s Information Technology Act 2000; and 

vii. California Consumer Privacy Act of 2018 and its regulations, in each case as amended, superseded or replaced from time to time. 

Data Subject means an identified or identifiable individual whose Personal Data is processed. 

EEA/UK Adequate Countries means: 

i. in respect of Personal Data which is subject to the GDPR, the European Economic Area and any other territory which the European Commission has determined ensures an adequate level of protection for Personal Data pursuant to Article 45 of the GDPR; and 

ii. in respect of Personal Data which is subject to the UK GDPR, the United Kingdom and any other territory which the UK Secretary of State has by regulations specified ensures an adequate level of protection for Personal Data pursuant to Article 45 of the UK GDPR and Section 17A of the UK Data Protection Act 2018. 

European Privacy Laws means: 

i. Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (GDPR); 

ii. the GDPR as incorporated into United Kingdom domestic law pursuant to Section 3 of the European Union (Withdrawal) Act 2018 (UK GDPR); 

EU Directive 2002/58/EC on Privacy and Electronic Communications; and

iv. any EU Member State or UK law made under or pursuant to items (i) – (iii); in each case as amended, superseded or replaced from time to time.

Promotion Services means any of the services provided by Prosple pursuant to the Agreement. 

Prosple User Data means any Personal Data shared with Advertiser by Prosple in accordance with the Agreement, of the type and categories described in Annex I.B. 

Personal Data means any information relating to an identified or identifiable individual or any other information defined as 'personal data' or 'personal information' under Applicable Privacy Laws. 

Privacy Officer has the meaning given in clause 3.6. 

Restricted Transfer means a transfer of Personal Data that is subject to European Privacy Laws outside of the EEA/UK Adequate Countries. 

Security Incident has the meaning given in clause 3.1. 

Sensitive Information means the Personal Data described as sensitive data in Annex 1.B. 

SCCs means: (i) where the GDPR applies, the standard contractual clauses annexed to the European Commission’s Decision (EU) 2021/914 of 4 June 2021 (EU SCCs); and (ii) where the UK GDPR applies, the standard data protection clauses for controllers to controllers adopted pursuant to or permitted under Article 46 of the UK GDPR (UK SCCs); in each case as may be amended, superseded or replaced from time to time. 

The terms Controller, Data Subject and processing have the meanings given to them in Applicable Privacy Laws or, if not defined, the GDPR (and process, processes and processed shall be interpreted accordingly). 

2. Roles and Restrictions 

2.1 Both parties are Controllers: Subject to clause 2.4, each party to this Addendum: 

2.1.1 is an independent controller of the Prosple User Data under Applicable Privacy Laws; and 

2.1.2 will individually determine the purposes and means of its processing of Prosple User Data. 

2.2 Concept of Controller: Where the concept of Controller is not expressly contemplated by Applicable Privacy Laws, the parties’ obligations in connection with this Addendum shall be interpreted under those Applicable Privacy Laws to align as closely as possible with the scope of those roles while still complying fully with those Applicable Privacy Laws. 

2.3 Limits on collection: Advertiser must only collect the Prosple User Data as reasonably necessary for lawful purposes connected with its functions or activities. Advertiser must ensure that its methods of collection are lawful, fair and do not intrude unreasonably on the affairs of any person. 

2.4 Limits on processing: Advertiser will process the Prosple User Data solely and exclusively for the specific purpose(s) of the transfer as set out in Annex I.B. 

3. Protection of Prosple User Data 

3.1 Security: Advertiser will protect the Prosple User Data by implementing reasonable and appropriate technical, administrative, operational and physical safeguards and measures, consistent with Applicable Privacy Laws, prior to and during processing any Prosple User Data to protect against, without limitation, the accidental, unlawful or unauthorised access to or use, transfer, destruction, loss, alteration, commingling, disclosure or processing of Prosple User Data (a Security Incident) and ensure a level of security appropriate to the risks presented by the processing of Prosple User Data and the nature of such Prosple User Data, and these measures shall remain in place throughout the duration of Advertiser’s processing of Prosple User Data or until Advertiser ceases to process Prosple User Data (whichever is later). At a minimum, such safeguards and measures shall include those identified in Annex II. 

3.2 Confidentiality: Advertiser will treat Prosple User Data with strict confidence and shall ensure any person it authorises to process the Data (including Advertiser's staff, agents and subcontractors) are aware of and comply with this Addendum and are under a duty of confidentiality with respect to Prosple User Data no less restrictive than the duties set forth in this clause 3. 

3.3 Accuracy: Advertiser will take reasonable steps to ensure that the transferred information is accurate, up to date, complete, relevant and not misleading before using it. 

3.4 Destruction or return of Prosple User Data: Upon termination or expiry of the Agreement, Advertiser shall (at Prosple’s election) destroy or return to Prosple all Prosple User Data (including all copies of the Prosple User Data) in its possession or control. Advertiser will promptly notify Prosple in writing once such action has been taken. This requirement shall not apply to the extent that Advertiser is required by any law to retain some or all of the Prosple User Data, in which event Advertiser shall isolate and protect the Prosple User Data from any further processing except to the extent required by such law until deletion is possible. 

3.5 Sensitive Information: Advertiser acknowledges and agrees that a failure to protect the Sensitive Information is particularly likely to cause harm to Data Subjects. Advertiser will have in place the additional precautions set out in the Annex I.B in relation to the Sensitive Information. 

3.6 Privacy officer: Advertiser will maintain a person with responsibility for monitoring and ensuring Advertiser’s compliance with this Addendum (Privacy Officer). Advertiser will ensure the Privacy Officer provides reasonable co-operation to Data Subjects and Prosple for the purposes of clause 5 and 6. Advertiser will notify Prosple of its Privacy Officer and will keep Prosple updated with the details of any new Privacy Officer if this changes. The Privacy Officer will be authorised on behalf of Advertiser to respond to enquiries concerning Personal Data. 

3.7 Cooperation on breach: Advertiser will promptly give written notice to and fully cooperate with Prosple if for any reason: 

3.7.1 it cannot comply, or has not complied, with any portion of this Addendum; 

3.7.2 it has breached or, or if it continues to process Prosple User Data, would breach, any Applicable Privacy Laws. In such cases, Advertiser will take reasonable and appropriate steps to remedy any non-compliance, or cease further processing of Prosple User Data and Prosple may immediately suspend any transfer of, or access to, Prosple User Data, terminate the Agreement or access to Prosple User Data, or take any other reasonable action. 

4. Sharing with third parties 

4.1 Where third parties process personal information for Advertiser: Without limiting clause 3.2, Advertiser will not transfer Prosple User Data to third parties except under binding and enforceable agreements that guarantee at least a level of data protection and information security as provided for in this Addendum, and Advertiser will remain fully liable to Prosple for any third party’s failure to so comply. 

4.2 Notice of transfers to third parties: Advertiser must provide reasonable prior written notice to Prosple at least 14 days before the proposed transfer of Prosple User Data to any third party, identifying the third party and purpose of the proposed transfer of Prosple User Data, to allow Prosple to raise any reasonable objections on grounds of data protection. 

4.3 Disclosures required by law and other third-party transfer safeguards: Clause 4.1 does not apply to any disclosure required by law, and this clause 4 is subject to any comparable safeguards for disclosures to a third party as required by the Applicable Privacy Laws. 

5. Security Incidents 

5.1 Notification of Security Incidents: Upon becoming aware of a Security Incident occurring or likely to occur, Advertiser shall inform Prosple without undue delay and shall provide all such timely information and cooperation as Prosple may reasonably require in order for Prosple to fulfil its data breach reporting obligations under (and in accordance with the timescales required by) Applicable Privacy Laws. 

5.2 Steps to remedy Security Incidents: Advertiser shall further take all such measures and actions as are reasonably necessary to remedy or mitigate the effects of the Security Incident and keep Prosple informed of all material developments in connection with the Security Incident. 

5.3 Publication: Advertiser will refrain from communicating or publish any notice or admission of liability concerning any Security Incident, for or on behalf of Propel, or which directly or indirectly identifies Prosple, (including in any legal proceeding or in any notification to regulatory authorities or affected Data Subjects) without Prosple’sprior written approval, unless Advertiser is compelled to do so under Applicable Privacy Law. In any event, Advertiser shall provide Prosple with reasonable prior written notice of any such communication or publication. 

6. Cooperation and Data Subjects' rights

6.1 Data Subject requests: Advertiser shall provide all reasonable and timely assistance to Prosple to enable Prosple to respond to: 

6.1.1 any request from a Data Subject to exercise any of its rights under Applicable Privacy Laws (including its rights of access, correction, objection, erasure and data portability, as applicable); and 

6.1.2 any other correspondence, enquiry or complaint received from a Data Subject, regulator or other third party in connection with Prosple’s or Advertiser’s processing of the Data. 

6.2 Notification to Prosple: If any such request, correspondence, enquiry or complaint is made directly to Advertiser, Advertiser shall promptly inform Prosple providing full details of the same. 

6.3 Sharing with government: Advertiser agrees and acknowledges that if Prosple receives a request from a government or regulatory agency, Prosple may share the terms of this Addendum, the Agreement, and other information you provide to demonstrate compliance with this Addendum or Applicable Privacy Law. 

7. Compliance with Laws 

7.1 Compliance with Applicable Privacy Laws: Prosple and Advertiser shall each comply with their respective obligations under Applicable Privacy Laws and further guidance from data protection authorities with respect to processing of Personal Data. 

7.2  Most protective requirements to apply: Where a requirement of the Applicable Privacy Laws is less protective than the other requirements of this Addendum, to the extent permitted by law, Advertiser will comply with the requirement that is the most protective of the Prosple User Data and the interests of the relevant Data Subjects. 

7.3 Notification of relevant laws: Advertiser shall provide Prosple, on request, with copies of Applicable Privacy Laws or references to them (where relevant, and not including legal advice) of the country in which Advertiser is established. 

7.4 Disclosure required by law: If Advertiser is required by a court or government agency under any law to disclose or use the Prosple User Data in a way that would not otherwise be permitted by this Addendum, then to the extent law allows Advertiser must notify Prosple to give it the opportunity to contest that legal requirement (for example, by taking the matter to court). 

7.5 Laws preventing fulfillment of obligations: Advertiser has no reason to believe any Applicable Privacy Laws, including any requirements to disclose Personal Data or measures authorising access by a public authority, prevent it from fulfilling its obligations under this Addendum. 

8. Standard Contractual Clauses 

8.1 Incorporation where Restricted Transfer: To the extent that the transfer of Prosple User Data from Prosple to Advertiser involves a Restricted Transfer, the SCCs shall be incorporated by reference and form part of this Addendum with Prosple as "data exporter" and Advertiser as "data importer": 

8.1.1 For the purposes of the EU SCCs: the module one (controller to controller) terms shall apply and the module two, three and four terms shall be deleted in their entirety; in Clause 11, the optional language shall be deleted; in Clause 17, Option 1 shall apply and the EU SCCs shall be governed by Irish law; in Clause 18(b), disputes shall be resolved before the courts of Ireland; and the Annexes of the EU SCCs shall be populated with the information set out in the Annexes to this DPA. 

8.1.2 For the purposes of the UK SCCs: the Appendices or Annexes of the UK SCCs shall be populated with the relevant information set out in the Annexes to this Addendum; and the UK SCCs shall be governed by the laws of and disputes shall be resolved before the courts of England and Wales. 

8.2 Conflicts: If and to the extent the SCCs conflict with any provision of this Addendum regarding the transfer of Prosple User Data from Prosple to Advertiser, the SCCs shall prevail to the extent of such conflict. 

9. Other Requirements 

9.1 Data Protection Impact Assessment: Advertiser shall provide Prosple with all such reasonable and timely assistance as Prosple may require in order to comply with its obligations under Applicable Privacy Laws to conduct data protection impact assessments and, if necessary, to consult with its relevant data protection authority. 

9.2 Audits: Advertiser will allow for and contribute to audits as follows: 

9.2.1 Prosple or a third party auditor reasonably acceptable to Advertiser may conduct an on-site audit of Advertiser’s processing activities as required by a supervisory authority or Applicable Privacy Law. Such on-site audit must be scheduled on at least 45 days advance notice at a mutually agreed date and time; occur during Advertiser’s normal business hours; be permitted only to the extent required to assess Advertiser’s compliance with this Addendum; comply with the policies, procedures, and other restrictions reasonably imposed by Advertiser; and not unreasonably interfere with Advertiser’s business activities. 

9.2.2 Prosple’s auditor will not be entitled to access information subject to third-party confidentiality obligations. 

9.2.3 Prosple will provide written communication of any audit findings to Advertiser, and the results of the audit will be the confidential information of Advertiser. 

9.2.4 Prosple agrees that Prosple shall exercise its rights under Clause 8.9 of the SCCs by instructing Advertiser to comply with the audit measures described in this clause 9.2. 

10. General 

10.1 Liability: Advertiser shall be liable for and shall indemnify Prosple and keep Prosple indemnified against all claims and direct, indirect and consequential losses, including, but not limited to, fines, penalties, legal costs and disbursements, arising from or incurred by reason of, or as a result of, or in connection with any wrongful Processing of any Prosple User Data by Advertiser, or any person on Advertiser’s behalf or a breach by Advertiser of any provision under this Addendum. 

10.2 Effect on Agreement: Except as amended by this Addendum, the Agreement will remain in full force and effect. 

10.3 Inconsistency: In the event of any conflict between this Addendum and the Agreement, this Addendum shall prevail to the extent of such conflict. 

10.4 Relationship with Applicable Privacy Laws and other Data Subject rights: Nothing in this Addendum is intended to modify or contradict the applicable terms in Applicable Privacy Laws or prejudice the fundamental rights or freedoms of Data Subjects under the Applicable Privacy Laws.

Annex I

A. List of Parties

Prosple - Data exporter:

Name

Prosple Pty Ltd (ABN 43 168 218 782)

Address

174-184 Shipley Road, Blackheath NSW 2785

Contact person’s name, position and contact details

Privacy Officer
[email protected]
+61 2 829 493 91
PO Box 256 Blackheath NSW 2785

Activities relevant to the data transferred under these Clauses

The data exporter operates an online career & study platform allowing users to access career information and to request or offer/promote jobs, internships, courses and scholarship opportunities for students and recent graduates.

Signature and date 

If the SCCs are incorporated into this Addendum in accordance with clause 8, Prosple is deemed to have signed this Annex I on the effective date of the Agreement.

Role

Controller

 

Data importer(s): 

Name

The entity identified as the “Client” in an Order Confirmation accepted by Prosple pursuant to clause 2.2 of the Agreement.

Address

The billing address described in the data importer’s Order Confirmation.

Contact person’s name, position and contact details

The contact name, contact position and contact email described in the data importer’s Order Confirmation. 

Activities relevant to the data transferred under these Clauses

The data importer is an advertiser on the data exporter’s platform and uses the data exporter’s Promotion Services pursuant to the Agreement. 

Signature and date 

If the SCCs are incorporated into this Addendum in accordance with clause 8, the Advertiser is deemed to have signed this Annex I on the effective date of the Agreement.

Role

Controller 

 

B. Description of Transfer

Categories of Data Subjects whose Personal Data is transferred

Data exporter may submit Personal Data to data importer the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of Data Subjects:

  • Users of Prosple’s online career & study platform who use the platform to access career information and apply for jobs, internships, courses and scholarship opportunities, such as students and recent graduates (who are natural persons)

Categories of Personal Data transferred

Data exporter may submit Personal Data to data importer the extent of which is determined and controlled by the data exporter in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:

☒ Personal details, including any information that identifies the data subject and their personal characteristics, including: name, address, contact details, age, date of birth, sex, career interests and physical description.

☒ Personal details issued as an identifier by a public authority, including passport details, national insurance numbers, identity card numbers, driving licence details.

☒ Family, lifestyle and social circumstances, including any information relating to the family of the data subject and the data subject’s lifestyle and social circumstances, including current marriage and partnerships, marital history, details of family and other household members, habits, housing, travel details, leisure activities, and membership of charitable or voluntary organisations.

☒ Education and training details, including information which relates to the education and any professional training of the data subject, including academic records, qualifications, skills, training records, professional expertise, student and pupil records.

☒ Employment details, including information relating to the employment of the data subject, including employment and career history, recruitment and termination details, attendance records, health and safety records, performance appraisals, training records, work permit details, nationality and security records.

☐ Financial details, including information relating to the financial affairs of the data subject, including income, salary, assets and investments, payments, creditworthiness, loans, benefits, grants, insurance details, and pension information.

☐ Goods or services provided and related information, including details of the goods or services supplied, licences issued, and contracts.

☐ Personal data relating to criminal convictions and offences.

☒ Other (please provide details of other categories of data)

Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures

Personal data which is on, which reveals, or which concerns:

☒ racial or ethnic origin

☐ political opinions

☐ religious or philosophical beliefs

☒ trade union membership

☐ genetic data

☐ biometric data (if used to identify a natural person)

☐ health

☒ sex life or sexual orientation

☐ criminal convictions and offences

☐ none of the above

See Annex II for restrictions and safeguards. 

The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).

The transferred information consists of all Personal Data disclosed by Prosple to the Advertiser while the Agreement is in place, i.e. from the start date up to and including the end date. Transfer of Personal Data is anticipated to be on a continuous basis depending on the use of the Promotion Services by Advertiser pursuant to the Agreement. 

Nature of the processing

The Personal Data transferred may be subject to the following Processing activities: collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction and other activities as determined by the parties from time to time.

Purpose(s) of the data transfer and further processing 

The purpose of the transfer is to permit the data importer to use the Prosple User Data in accordance with the Agreement.

  • to allow Advertisers to manage candidates who have applied for jobs with them via Prosple in systems outside of Prosple.
  • to allow Advertisers to contact candidates with updates about their application
  • to allow targeted advertisements;
  • to allow Advertisers to proactively reach out to candidates that are good fits for the roles they’re hiring
  • for evaluation of potential suitability for employment offers;

Duration of Processing

The period for which the Personal Data will be retained, or, if that is not possible, the criteria used to determine that period

The Personal Data will be retained until termination or expiry of the Agreement, in accordance with clause 3.6 of this Addendum.

Subprocessor transfers

For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing:

N/A

 

C. Competent Supervisory Authority

For EU SCCs - The supervisory authority of the EEA Member State in which Prosple is established or, if Customer is not established in the EEA, the EEA Member State in which Prosple’s representative is established or in which Prosple’s end users are predominantly located.

For EU SCCs - UK Information Commissioner 

 

Annex II Technical and Organisational Measures to Ensure the Security of Prosple User Data

  1. In this Annex II the following terms are defined to mean:

Information Security Controls means a prevention, detection or response measure to reduce the likelihood, or impact, of an Information Security Incident.

Information Security Controls Framework means the totality of policies, standards, guidelines, procedures and other documents pertaining to Advertiser’s Information Security Controls.

Information Security Incident means an actual or potential breach of an Applicable Privacy Law or other compromise of:

a) restrictions limiting access only to those authorised;

b) the accessibility and usability when required; or

c) the completeness, accuracy and freedom from unauthorised change or usage,

of, or relating to, any Relevant Processes and the Prosple User Data.

Relevant Processes means the processes for the collection, use, handling, disclosure or storage of, or the granting of access rights to the Prosple User Data. 

  1. Advertiser, as the recipient of Prosple User Data under this Data Sharing Addendum must take appropriate and proportionate measures including, where relevant those specified in this Annex II. 

General Security Measures

Technical and organisational measures that comply, with or exceed applicable industry best practices and are commensurate with the size and extent of threats to the Relevant Processes and the Prosple User Data. 

Information Security Controls Framework 

Have and keep up to date an Information Security Controls Framework that:

a) defines Information Security Controls that are appropriate to, and commensurate with:

i) the criticality and sensitivity of the Relevant Processes and the Prosple User Data;

ii) any vulnerabilities (including weaknesses that could be exploited) and threats to the Relevant Processes and the Prosple User Data; and

iii) the potential impact and consequences of any Information Security Incident.

b) includes mechanisms and processes to ensure that Information Security Incidents are detected and responded to in a timely manner.

c) identifies all types of Information Security Incidents that could plausibly occur and specifies plans to respond to those Information Security Incidents covering:

i) mitigation, containment and response actions; 

ii) management of all relevant stages of an Information Security Incident, from detection to post-incident review; 

iii) escalation and reporting of Information Security Incidents to responsible persons and appropriate governing bodies within Advertiser, and to Advertiser’s customers (including Prosple);  

iv) retention and preservation of logs and other evidence regarding Information Security Incidents to help in determining cause, damage and likely source.

Information Security Testing

Advertiser must test the effectiveness of its Information Security Controls through systematic testing that is commensurate with:

a) the rate at which vulnerabilities and threats change;

b) the criticality and sensitivity of its Relevant Processes and the Prosple User Data;

c) the consequences of an Information Security Incident;

d) the risks associated with exposure to other environments; and

e) the materiality and frequency of change to its Relevant Processes.

Business continuity management

a) In the event of a failure or disruption to the services or Relevant Processes of Advertiser, Advertiser must ensure that normal services are restored and available in the shortest practicable time.

b) Advertiser must:

i) have in place appropriate plans and procedures (including a business continuity plan and / or disaster recovery plan) that ensures the continuity of services;

ii) promptly update the plans and procedures from time to time to reflect changes in the scope of the services or the way in which Advertiser supplies the services; 

iii) activate the plans and procedures in accordance with their terms to address any interruptions to services; and

iv) test the plans and procedures regularly.

Implementation and Independent Review

a) Advertiser must ensure that the Information Security Controls Framework and underlying Information Security Controls:

i) are fully implemented at all times;

ii) are kept up to date; and

iii) are regularly reviewed for effectiveness, including annual reviews by an independent party with sufficient expertise to conduct such review and updated to reflect any findings of that third party.