1. Ability is the owner of the Ability Map Tool.
  2. The Licensee wishes to use the Ability Map Tool within its business.
  3. Ability agrees to grant to the Licensee a non-exclusive licence to use the Ability Map Tool on the terms and subject to the conditions set out in this Agreement.


    • Definitions. In this Agreement:

Ability or Licensor means Ability Map Pty Ltd of Level 29, 66 Goulburn Street, Sydney NSW 2000.

Ability Map Competencies means the name and detailed description of the behaviours, characteristics and performance expectations that an individual may have from time to time that will impact on their performance in a job or role; for example, the ability to manage resources, and the ability to work with words and numbers.

Ability Imprint means the report generated by the Ability Map Tool relating to an individual Candidate after that Candidate has completed an assessment, which report sets out a summary of their position across the Ability Map Competencies and other benchmark measures from time to time, an explanation of the Ability Map Competencies and other information including the individual’s name, email address, contact details, education, work history and assessment results from time to time; for clarity, excludes the processes and algorithms applied to convert or translate Data relating to the individual into (a) the content set out in the report and (b) scales, competencies and other benchmark measurements.

Ability Map Tool means the online service, located on the Website, which, amongst other things, matches applicants to jobs.

Administrator means the individual nominated by the Licensor to be the key contact for the Licensee pursuant to clause 3.6 (Administrators and Users).

Agreement or Master Agreement means the Master Agreement – Terms & Conditions and the Order Form.

Associate in relation to a party means the employees, officers, directors, contractors and agents of that party.

Business Days means a day other than a Saturday, Sunday or a public holiday in Sydney, Australia.

Candidate means an individual registered on the Website and who has created an Ability Imprint.

Commencement Date means the date that this Agreement starts, as set out in the Order Form.


Confidential Information of a party means the confidential, proprietary or commercially sensitive information of that party or its related bodies corporate (irrespective of the form or the manner in which the information is disclosed, or the time of such disclosure) including:


  • Information and materials in any tangible form including source code, data, designs, know-how, trade secrets, formulae, processes, techniques, methods, results, information regarding sources of supply, business plans and opportunities, business processes and methodologies, partners, clients, potential agreements and the existence, scope and activities of any research, design, development, marketing or other projects and other similar information with like characteristics, regardless of whether the information is transferred or stored in writing, visually, electronically or by any other means, which is:
    • not generally known to the public or in the applicable trade; and
    • either designated in writing as confidential or is of a nature that a reasonable person who deals with such information or materials would believe that the disclosing party expects it to be maintained as confidential or intends or is obligated to maintain it as confidential,
  • in the case of Candidates and Ability, Ability Imprints;
  • in the case of Ability, without limiting paragraph (a) of this definition, the Ability Map Competencies, Ability Imprints, Job Fit Reports, the Licensed Software and the processes and algorithms applied to convert or translate Data relating to an individual into (a) the content set out in the report and (b) scales, competencies and other benchmark measurements, but, in each case, does not include information which is in, or comes into, the public domain other than by the receiving party’s (or its Associate’s) breach of an obligation of confidence or of this Agreement, or which is independently known to, or developed by the receiving party (or its Associate) as evidenced by contemporaneous written records.


Corporations Act means the Corporations Act 2001 (Cth).

Data means:

  • facts and statistics;
  • in relation to Candidates, Ability Imprints and Job Profiles: means facts and statistics about Candidates, individuals and/or roles, including: names, contact details (such as address, email address, telephone number and other personal contact information), educational level, work history, job classification, interests, professional and other background information, an individual’s answers to questions with respect to the Ability Map Competencies and other benchmark measures, and other personal information about individuals.

Documentation means printed or published materials referred to in the Order Form, including FAQs, videos, user manuals, programming manuals, modification manuals, flow charts, drawings and software listings which are designed to assist or supplement the understanding or application of the Ability Map Tool, provided to the Licensee at the sole and absolute discretion of the Licensor.

End Date means the last day of this Agreement, as set out in the Order Form (unless this Agreement is extended or earlier terminated in accordance with its terms, in which case the End Date will be such extended or earlier terminating date).

Fee means any amount payable by the Licensee to Ability for the Licensed Material or other services from time to time, including the Subscription Fee.

GST means the Goods and Services Tax as defined under the GST Act.

GST Act means A New Tax system (Goods and Services Tax) Act 1999 (Cth).

Insolvency Event means (a) a liquidator or provisional liquidator is appointed and the appointment is not terminated within 10 days; (b) an administrator or a controller (as defined in the Corporations Act), trustee or analogous person is appointed to it or any of its property and the appointment is not terminated within 10 days of it being made; (c) entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors, being the subject of a winding up or any analogous event (in each case, except for the purposes of a corporate reconstruction or amalgamation while solvent); (d) being unable to pay its debts or is otherwise insolvent, the taking of any step that could result in the person becoming insolvent under administration (as defined in section 9 of the Corporations Act) and the proceeding is not withdrawn, struck out, dismissed or terminated within 10 days of the date action is taken; (e) being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand.

Intellectual Property Rights means patents, rights in inventions, works of authorship, designs, databases, know-how, trade secrets, confidential information, trademarks, service marks, trade, business and domain names, logos, trade dress, assumed names, get-up and goodwill, along with copyrights, Moral Rights and any other intellectual property and proprietary rights, in each case whether registered or unregistered and including all applications and registrations for renewals, continuations, continuations in par, divisions or extensions of such rights, and all similar or equivalent rights or forms of protection in any jurisdiction.

Invited Users means third party users of the Ability Map Tool and/or Documentation including Candidates, clients and/or Associates of the Licensee.

Job Fit Report means the report generated by the Ability Map Tool which scores a Candidate’s suitability for a specific job or role; which score is generated by, amongst other things, comparing a Candidate’s Ability Imprint against the Ability Map Competencies for a specific Job Profile.

Job Profile means the report generated by the Ability Map Tool relating to a specific job or role within an organisation, including the competencies and other characteristics of suitable and/or high performing candidates for that job or role.

Licence has the meaning given in clause 3.1 (Grant of Licence).

Licensed Material means any one or more of the Ability Map Tool, Licensed Software, Documentation, Ability Imprint, Job Profile and Job Fit Report as may be included in a module or service ordered and paid for by the Licensee as detailed in the Order Form.

Licensed Software means the software comprised in the Ability Map Tool, consisting of a set of instructions or statements in machine readable medium and any enhancement, modification, update or New Module of that software or part thereof.

Licensee means the party named as such in the Order Form.

Licensee’s Business means the ordinary business activities of the Licensee from time to time.

Moral Rights means the rights defined as “moral right” under the Copyright Act 1968 (Cth) and any other similar right capable of protection under laws of any applicable jurisdiction.

New Module means a new product or any improvements, additions to, derivatives of or replacement of the functionality of the Ability Map Tool, as determined by Licensor acting reasonably.

Order Commencement Date means the date that a particular order starts, as set out in the Order Form.

Order End Date means the last day of this Agreement with respect to a particular order, as set out in the Order Form (unless extended or earlier terminated in accordance with this Agreement, in which case the Order End Date will be such extended or earlier terminating date).

Order Form means the selections and entries made by the Licensee, based on the products and services related to the Ability Map Tool as presented by https://abilitymap.com/product/executive-assistant-matches/, and confirmed through the Licensee’s purchase using https://abilitymap.com/checkout/ under this Agreement, as amended from time to time.

Order Term has the meaning given in clause 3.3 (Term and Order Term).

Permitted Use has the meaning given in clause 3.2  (Permitted Use).

related body corporate has the meaning given in the Corporations Act.

Subscription Fees means the amount payable by the Licensee to Ability for the Licence, as set out in the Order Form.

Term has the meaning given in clause 3.3 (Term and Order Term).

Updates means all corrections for defects, fixes, enhancements, refinements, changes, extensions, alterations, variations or additional minor functionality, made to the Ability Map Tool, including the Licensed Software, from time to time, and related amendments to the Documentation.

Use means access and use.

Users means any person or entity, other than the Administrator, that Uses the Licensed Material with the authorisation of the Licensee from time to time including Invited Users.

Website means the internet site at the URL https://app.abilitymap.com/ or any other site operated by Ability or its related bodies corporate from time to time.

  • In this Agreement, unless the context requires otherwise: (a) a reference to any gender includes all genders; (b) in calculating any period of time commencing from a particular day, the period commences on the following day and the following day counts as part of that period; (c) where an expression, word or phrase is given a particular meaning, then other parts of speech based on that expression, word or phrase and other grammatical forms of that expression, word or phrase, have corresponding meanings; (d) the rule of interpretation which sometimes requires that a document be interpreted to the disadvantage of the party which put the document forward, does not apply; (e) a reference to this Agreement or any other agreement or document, includes any variation, novation, supplementation or replacement of them; (f) where an expression is defined anywhere in this Agreement, it has the same meaning throughout; (g) headings and sub-headings are for convenience of reference only and do not affect interpretation; (h) the phrase include, includes or including, or similar phrase does not limit what else might be included; (i) a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and also any subordinate legislation issued under, that legislation or legislative provision; (j) a reference to “law” means all laws, codes, guidelines and the like, including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles and requirements, statutory rules of an industry body, statutory and mandatory codes of conduct, in force from time to time; (k) a reference to dollars or $ is to an amount in Australian currency; (l) the singular includes the plural and vice versa; (m) a reference to any party to this Agreement or to any other document, includes that party’s legal personal representatives, substitutes (including any person taking by novation), successors and permitted assigns; (n) a reference to a person includes a body corporate, partnership, joint venture, incorporated or unincorporated association, authority, State, government, or government or quasi-government body, and vice versa; (o) any schedule, attachment or exhibit, all form part of this Agreement.
    • Order Form and precedence. This Agreement consists of the Master Agreement – Terms & Conditions and the Order Form. If there is any inconsistency between the terms set out in the Master Agreement – Terms and Conditions and the Order Form, the Order Form will prevail to the extent of the inconsistency.
    • This Agreement is made between Ability and the Licensee.
    • Grant of Licence. Ability hereby grants the Licensee, and the Licensee accepts, a non-exclusive, worldwide, non-transferable and revocable licence to Use the Licensed Material (in relation to the order as set out in the Order Form) via the Website for the Permitted Use subject to and in accordance with the terms and conditions set out in this Agreement (“Licence”).
    • Permitted use. Subject to clause 4(a) (Permitted use of Ability Imprint), the Licensee may Use the Licensed Material solely in connection with the following (“Permitted Use”):
      • Business purposes. The ordinary course of the Licensee’s Business;
      • Sub-licence: The Licensee may sub-licence the Use of the Ability Map Tool, Licensed Software and Documentation to Invited Users, in accordance with the terms and conditions of this Agreement save that the Licensee will at all times be responsible for such Use by any sub-licensees;
      • Back up. The Licensee may make such number of copies of the Documentation as is necessary to serve its internal needs for systems backup and security. All copies of the Documentation in which the copies are contained shall be and remain Ability’s property. The Licensee shall maintain records of all copies of the Documentation made by it and the place at which those copies are situated. Such records shall be furnished to Ability upon reasonable notice.
    • Term and Order Term. This Agreement will start on the Commencement Date and will end on the End Date, unless extended or earlier terminated in accordance with this Agreement (“Term”). The Licensee’s subscription period for a specific order will start on the applicable Order Commencement Date and end on the applicable Order End Date, unless earlier terminated in accordance with this Agreement (“Order Term”). A party may request the extension of the Term or the Order Term by notifying the other party in writing no later than thirty (30) days before the then-current End Date or Order End Date (as applicable) and the Term or Order Term will be extended if mutually agreed between the parties. Notwithstanding the foregoing, if the Order End Date is later than the End Date, then the Term is automatically extended to the same date as the Order End Date.
    • Use and Disclosure of Ability Imprints. The parties acknowledge and agree that:
      • Permitted use of Ability Imprint. The Licensee must only Use the Candidate’s Ability Imprintfor purposes related to assessing the Candidate’s suitability for roles, teams or projects that the Licensee is or may be seeking to fill, or for assessing the Candidate’s competencies, strengths and development needs for various purposes
      • Licensor disclosure of Ability Imprint. Notwithstanding paragraph (a) above and clause 1(b) (Ownership of Intellectual Property Rights in Licensed Material and anonymised Data), with respect to any Candidate that the Licensee has invited to Use the Ability Map Tool (and who has accepted that invitation) Ability will not disclose that Candidate’s name or Ability Imprint to any other licensee of the Ability Map Tool unless the other licensee has separately invited that Candidate to Use the Ability Map Tool (and the Candidate has accepted that invitation).
    • What Licensee must do. The Licensee must:
      • Use and ensure that Users Use the Licensed Material and Ability Imprints only for the Permitted Use and the purpose set out in clause 3.4(a) (Permitted use of Ability Imprint) respectively, and only to the extent permitted by, and in accordance with, applicable laws;
      • Preserve notices. Preserve any notices relating to the proprietary rights of Ability in the Licensed Material;
      • Privacy law compliance. Comply with all applicable data and personal information protection, privacy and export laws, and
      • Protect and maintain adequate security measures to safeguard the Licensed Material, including Ability Imprints, at all times from unauthorised Use (including by maintaining security of logins and passwords) or damage and it acknowledges and agrees that it is the Licensee’s sole responsibility to do so.
    • Administrators and Users. The Licensee agrees the Administrator is a Licensor-designated i The Licensee acknowledges and agrees that:
      • The Administrator will be responsible for providing the Licensee a link to the Website for the Licensee’s Invited Users;
      • The Licensee is responsible for all Users’ Use of the Licensed Material;
      • The Administrator controls each User’s level of access and can revoke or change a User’s access, or level of access, at any time, for any reason.
    • What Licensee must not do. The Licensee must not:
      • Unlawful use. Use or permit the Use of the Licensed Material in any way that may contravene any laws from time to time.
      • Damage to Licensor. Use the Licensed Material in any way that could damage the reputation of Ability, the applicable Candidate or the goodwill or other rights associated with the Licensed Material, including Ability Imprints.
      • No third party Use. Disclose the Licensed Material or permit any third party to Use, the Licensed Material other than as expressly permitted under this Agreement.
      • No modifications. Reproduce, make error corrections to or otherwise modify, alter or adapt the Licensed Material, or merge all or any part of the Licensed Material with any other software or material, or tamper with the Licensed Material, in each case without Ability’s or the Candidate’s (in the case of Ability Imprints) written permission and payment of any applicable fees to Ability or the Candidate, as the case requires.
      • No cloning or reverse engineering. Clone, interfere with, de-compile, disassemble or otherwise reverse engineer the Licensed Software or create any derivative works based upon the Licensed Material, or directly or indirectly permit any third party to do so.
    • Modified Licensed Materials. If the Licensed Material is modified or altered:
      • Ability owns modifications. Such modified or altered Licensed Material remains Ability’s property in all respects, whether modified by the Licensee, Ability or a third party and whether or not authorised.
      • Assignment of modifications to Ability. If Ability so requests, the Licensee shall, at its cost, assign to Ability all Intellectual Property Rights arising out of any modifications or alterations to the Licensed Material. The Licensee irrevocably appoints Ability’s directors (or any one of them from time to time) as its lawful and authorised attorney to sign any document or do anything and generally to use its name so as to give Ability the full benefit of this clause. A certificate in writing, signed by a director of Ability that a document or act has been executed by Ability as the Licensee’s attorney under this clause will be conclusive evidence of this.
      • Agreement applies to modifications. This Agreement shall apply to the Licensed Material as modified or altered.
    • Licensee must implement Updates. Ability may provide Updates of the Ability Map Tool from time to time, but is under no obligation to provide Updates.
    • Old versions not For the remainder of the Term, Ability may, in its absolute discretion, continue to support the superseded version of the Ability Map Tool, but it is not obliged to do so.
    • Subscription Fees payable. In consideration of the grant of the Licence pursuant to clause 1 (Grant of Licence), the Licensee will pay Ability the Fees on the terms set out in the Order Form.
    • Changes to Subscription Fee. The Subscription Fee may be varied from time to time by agreement in writing between the parties.
    • Effect of non-payment. Without prejudice to any other rights or remedies that Ability may have, if the Licensee fails to pay any sum payable under this Agreement, Ability may immediately suspend the Licence.
    • All prices payable under this Agreement are, unless specified otherwise, exclusive of GST. Where any fees or supply by Ability under this Agreement is or becomes subject to a GST, an amount equal to the GST paid or payable in respect of the supply shall be added to such fees or amounts paid for that supply.
    • Notification of New Module. Ability may release new functional capabilities within the Ability Map Tool and may, but is not obliged, to notify Licensee.
    • Other services. The Licensee and Ability hereby agree, no other services are to be provided under this Agreement.
    • Ownership of Intellectual Property Rights in Licensed Material and anonymised Data. The parties acknowledge and agree that Ability owns the Intellectual Property Rights in:
      • the Ability Map Tool, the Licensed Software and Documentation (including all modifications, updates and New Modules);
      • Ability Imprints (including all modifications and updates of the same);
      • Job Profiles and Job Fit Reports (including all modifications and updates to the same); and
      • the anonymised Data generated or otherwise collected or processed from the Job Profiles, Job Fit Reports, Ability Imprints and the processes and algorithms applied to convert or translate Data relating to a Job Profile, Job Fit Report and/or individual into (i) the content set out in the Job Profiles, Job Fit Reports and/or Ability Imprints and (ii) scales, competencies and other benchmark measurements, which the parties further acknowledge Ability has expended significant effort and resources to anonymise such Data, and nothing in this Agreement constitutes a transfer of any Intellectual Property Rights in any of the foregoing.
  • Must not invalidate Ability’s ownership. The Licensee agrees that it will not directly or indirectly do anything that would or might invalidate or put in dispute Ability’s right, title and interest in the Licensed Material or anonymised Data.
  • Warranty – Data in Job Profiles. As part of its Use of the Ability Map Tool, the Licensee may upload into, or integrate with, the Ability Map Tool certain Data which will be incorporated into or otherwise used to generate Job Profiles. The Licensee warrants that it is authorised to Use the Data in this way and such use will not infringe any third party Intellectual Property Rights, third party privacy or confidentiality rights or any other applicable laws.
  • Notification of infringement. The Licensee must notify Ability as soon as reasonably practicable after becoming aware of any infringement or suspected infringement of Ability’s Intellectual Property Rights in the Licensed Materials or anonymised Data or of a Candidate’s Intellectual Property Rights in an Ability Imprint.
    • Each party acknowledges and agrees that it has had or will have access to or has received or will receive Confidential Information of the other party (and of Candidates) either before or after the date of this Agreement. Each party agrees not to, directly or indirectly, in whole or part, without the prior written consent of the party making the disclosure:
      • Use the disclosing party’s Confidential Information for any purpose, except to the extent required to perform its obligations or exercise its rights under this Agreement; or
      • divulge, discuss, provide, transmit, copy, make available or otherwise communicate the disclosing party’s Confidential Information to any third party or cause a third party to Use Confidential Information except as may be permitted under this Agreement.
    • Protect Confidential Information. Without limiting the foregoing, each party who is a recipient of another party’s Confidential Information will use commercially reasonable efforts, but no less than a reasonable degree of care, to hold the Confidential Information in strict confidence.
    • Without prejudice to clause 9.1 (Acknowledgement), a party who is a recipient of Confidential Information may disclose that Confidential Information:
      • to its professional advisers on a need to know basis provided that such persons are bound by confidentiality obligations substantially similar to those set out in clause 1 and 9.2 (Protect Confidential Information) in respect of such Confidential Information and provided further that notwithstanding such disclosure, the receiving party shall remain fully and completely liable to the disclosing party in accordance with the provisions of this clause 9.3 for any breach of those obligations by those persons;
      • if the disclosure is required by law or is required or compelled pursuant to a court order; or
      • to any Associates of the receiving party but only to the extent necessary to permit such Associates to perform the receiving party’s obligations in accordance with this Agreement and provided further that, notwithstanding such disclosure, the receiving party shall remain fully and completely liable to the disclosing party in accordance with the provisions of this clause 3 for any breach of those obligations by those persons, provided however, if the receiving party is required to disclose any Confidential Information under paragraph (b) above, it shall, to the extent legally permissible to do so, promptly provide the disclosing party with notice of the required disclosure and use reasonable efforts to assist it in its attempts to obtain confidential treatment of such information.
  • The obligations of confidence set out in clause 9.1 (Acknowledgement) and 9.3 (Disclosure) do not apply to Confidential Information:
    • that is in the public domain otherwise than as a result of a breach of this Agreement or other obligation of confidence;
    • that is already known by, or rightfully received, or independently developed by a party free of any obligation of confidence as established by contemporaneous written records.
    • Separate obligations. The obligations in this clause 10 operate in respect of the Licensee separately and independently from, and without limiting any other non-competition or non-solicitation obligation the Licensee owes to Ability or its related bodies corporate and are to be construed and interpreted so as to have the maximum enforceable effect.
    • For the Term and 12 months after the Term, the Licensee must not either directly or indirectly (whether as principal, agent, director, shareholder, partner, consultant, adviser or otherwise) solicit, interfere with, canvas, induce, encourage, endeavour to entice away from Ability or any of its related bodies corporate or to cease providing services to Ability or any of its related bodies corporate, or employ, any person who was an Associate of Ability or any of its related bodies corporate and with whom the Licensee had contact during the last 12 months of this Agreement.
    • Restrictions reasonable. The Licensee acknowledges that: (i) the restraints imposed by this clause 10 go no further than is reasonably necessary to protect the legitimate business interests of Ability and its related bodies corporate; (ii) the Licensee makes the covenants in this clause 10 in consideration of Ability entering into this Agreement, and such consideration is adequate consideration for the obligations under this clause; and (iii) in the event of any breach or threatened breach of this clause 10 damages may not be an adequate remedy and Ability will be entitled to seek and obtain, without limitation, injunctive relief.
    • If Ability wishes to: (a) name the Licensee in any case studies, (b) name the Licensee in connection with specific use cases, or (c) quote individuals who are commenting on the Licensee’s use cases, Ability must obtain the Licensee’s written consent. Subject to the foregoing, Ability and its related bodies corporate may refer to the Licensee for the purpose of publicising the products and services offered by Ability or its related bodies corporate from time to time, or for the purposes of publicity, credentials, presentations and award entries provided that such reference is not (in Ability’s reasonable opinion) likely to be detrimental to the reputation or standing of the Licensee.
    • Ability’s warranties.
      • Ability warrants that: (i) the Licensed Software will have substantially similar functionality and features as set out in any Documentation from time to time; and (ii) the Licensee’s use of the Licensed Material in accordance with this Agreement and any reasonable directions of Ability from time to time will not infringe any third party Intellectual Property Rights or third party privacy or confidentiality rights under Australian law.
      • Subject to paragraph (a) above, to the greatest extent permitted by law, Ability does not warrant that: (a) the Licensed Material will be error free or that the Ability Map Tool will run without interruption; (b) the Data that the Licensee uploads or integrates with the Ability Map Tool or the Ability Imprints provided by Candidates will not be subject to inadvertent damage, corruption, loss or removal, and Ability will not be responsible to any person for any such damage, corruption, loss or removal. Nothing in this Agreement excludes, restricts or modifies any terms, conditions or warranties that are imposed or implied by any statue, including the Competition and Consumer Act 2010 (Cth); limitations and exclusions are made only to the extent that Ability may legally do so.
    • Mutual warranties. Each party represents and warrants to the other that: (a) it has the right and capacity to enter into this Agreement; (b) its execution of this Agreement has been properly authorised by all necessary corporate or other action by it and the person who executes this Agreement on the party’s behalf is properly authorised to do so, (c) upon execution, this Agreement will be legally binding on it, and (d) this Agreement does not conflict with or result in the breach of or default under its constituent documents or any material term or provision of any agreement or deed or document to which it is a party.
    • Notice of dispute to be given. If a dispute arises in connection with this Agreement, then either party may give written notice of the dispute to the other identifying the dispute and providing details of it.
    • Good faith to resolve. Within three (3) Business Days of the other party receiving the notice the parties must meet to attempt in good faith to resolve the dispute.
    • If the parties fail to reach a decision or resolve the dispute within seven (7) days of the date of receipt of the notice referred to in clause 13.1 (Notice of dispute to be given) either party may submit the dispute to mediation in accordance with the current (at the date of this Agreement) provisions of the rules published by the Resolution Institute (to be found on its website https://www.resolution.institute/), whose decision shall bind the parties. Such mediation shall take place in Sydney or as may be agreed between the parties.
    • No restriction on other relief. Nothing in this Agreement will prejudice the right of a party to seek urgent injunctive or declaratory relief in respect of a dispute or any matter arising under this Agreement.
    • Licensee’s liability. The Licensee agrees to indemnify Ability and keep Ability indemnified from and against any liability, actions, claims, demands, damages, costs and expenses incurred or suffered by Ability arising from: (a) a breach of this Agreement by the Licensee (including its Associates); (b) any use or misuse by the Licensee or its Associates of Ability’s or a Candidate’s Intellectual Property Rights, and (c) any claims made by a third party in respect of a breach or alleged breach of the Intellectual Property Right, confidentiality or privacy law rights in any Data that is uploaded by the Licensee (or its Associates) to the Ability Map Tool. Except in relation to a claim in connection with a matter set out in paragraph (b) or (c) (where liability is unlimited), the Licensee’s total liability in connection with this Agreement, whether based upon indemnity, warranty, contract, statute or tort (including negligence) will not exceed the cost incurred by Ability in defending itself in relation to a claim.
    • Licensor’s liability. The Licensee hereby irrevocably releases Ability and waives all claims which the Licensee may have in the future against Ability, in respect of any action, claim or remedy whatsoever in any way attributable to the Use of the Licensed Material. Ability is not liable to any Users. Ability’s total liability in connection with this Agreement, whether based upon indemnity, warranty, contract, statute or tort (including negligence) will not exceed the total aggregate Fees received by Ability from the Licensee within the term of the Order Form in which the event giving rise to the claim occurred.
    • No liability for consequential loss. Neither party will be liable to the other for any loss of profit, loss of revenue, loss of business opportunities, loss of reputation or goodwill or any indirect or consequential loss arising in connection with this Agreement.
    • Termination by Ability. If the Licensee breaches clauses 5 (What Licensee must do), 8.2 (Must not invalidate Ability’s ownership), 9 (Confidential Information) or 10 (Non-Solicitation), or commits any of the acts identified in clause 3.5 (What Licensee must not do), or fails to pay any Fees by the due date, then in addition to and without prejudice to or limiting any other rights and remedies available to Ability at law or in equity, Ability may in its sole discretion terminate this Agreement provided it has notified the Licensee of the alleged breach and the Licensee has failed to remedy such breach within 14 days of receipt of such notice (or the breach cannot be remedied).
    • Insolvency Event. Ability may terminate this agreement if the Licensee suffers an Insolvency Event.
    • Obligations on end of Agreement. Upon expiry or termination of this Agreement or an Order Term:
      • the Licensee’s right to Use the Licensed Material immediately ceases and the licences granted under this Agreement terminate (with respect to the specific order, as applicable);
      • the Licensee must, within seven (7) days of the effective date of termination, remove or destroy all recordings and copies (in any form) of the Licensed Material and it must confirm to Ability in writing that it has done so save that the Licensee may continue to use any Job Profile and Job Fit Report previously licensed to it under this Agreement (and for which it has paid the applicable Fee); and
      • all monies owed to Ability must be paid in accordance with the applicable tax invoice.
    • No effect on other duties. The parties agree that this Agreement can only be terminated in accordance with this clause 15 (Termination). Except as otherwise provided herein, termination of this Agreement for any reason shall not relieve or discharge either party from any duty, obligation or liability hereunder which was accrued as of the date of such termination.
    • Neither party will be liable to the other for any failure to perform its obligations under this Agreement where such failure or delay is caused by events beyond its reasonable control, including industrial disputes, strikes, lockouts, acts of god, acts or threats of terrorism or war (“Force Majeure”) provided such failure or delay could not have been prevented by reasonable precautions or could not have reasonably been circumvented by the non-performing party by means of alternate sources, workarounds or by using its best endeavours. However, the foregoing does not apply if the Force Majeure event is caused by a breach of this Agreement by the non-performing party.
    • Notice to be in writing. Every notice required or permitted to be served (“Notice”) by any party (“Sender”) on another party (“Recipient”) pursuant to this Agreement must be in writing.
    • When notices are effective. Subject to clause 1 (Notice to be in writing), a Notice will be deemed to have been effectively served:
      • if sent by prepaid post to the Recipient at the address of the Recipient as set out in the Order Form on the third Business Day following the date of postage by the Sender;
      • if hand delivered, on the date of delivery to the Recipient’s address as set out in the Order Form unless such delivery occurs after 5.00pm or at any time on a day which is not a Business Day, in which case the Notice will be deemed to have been effectively served on the next Business Day; and
      • if transmitted by email to a party’s email address as set out in the Order Form and a correct and complete transmission report is received by the Sender, on the day of transmission if a Business Day, or otherwise on the next Business Day (but only if no intimation has been received by the Sender that the notice has not been received, whether that intimation comes from the party to whom the notice is addressed or from the operation of an email system or otherwise).
    • Changes to details. A party may change its details for notices by written notice to the other party.
    • No agency. Nothing in this Agreement shall have the effect of making either party an agent, partner or representative of the other party or create any trust or partnership between or amongst the parties, and neither party has authority to make any representation on behalf of the other party.
    • Entire agreement. This Agreement contains the entire understanding between the parties concerning the subject matter of the agreement and supersedes all prior communications.
    • If any term or provision of this Agreement is held by a court to be illegal, invalid or unenforceable under any applicable law, that term or provision will be severed from this Agreement, and the remaining terms and conditions will be unaffected.
    • Clauses 8 (Intellectual Property), 9 (Confidential Information), 10 (Non-Solicitation), 11 (Promotional Activities), 12 (Warranties), 14 (Liability and Indemnity), together with any other clauses which contemplate that a party has any rights or obligations after the end of this Agreement, survive the expiry or termination of this Agreement.
    • The Licensee may not assign any of its rights under this Agreement (except to a related body corporate as part of a corporate restructure provided that prior written notice is given to Ability of such assignment) without Ability’s prior written. Ability may assign all or any of its rights under this Agreement.
    • Amendment and waiver. Any amendment, variation or modification of any provision of this Agreement must be in writing signed by all parties, and any waiver must be in writing and signed by the party giving it. A failure to exercise or a delay in exercising, on the part of any party, any right under this Agreement does not operate as a waiver, nor does any single or partial exercise of any right preclude any other or further exercise of that or any other right
    • Legal advice. The parties acknowledge that they have had the opportunity to obtain independent legal advice about the operation and effect of this Agreement.
    • Costs. Each party will pay its own costs of and incidental to this Agreement and the transactions contemplated by it.
    • Counterparts and electronic execution. This Agreement may be executed in multiple counterparts, each of which shall have the effect of an original and all of those counterparts taken together constitute one and the same instrument. To facilitate execution, the parties agree that this Agreement may be executed through the use of email transmission in portable document format (PDF) or other electronic mechanism, and a counterpart of this Agreement that contains the electronic signature of a party, which counterpart has been transmitted by email or other electronic transmission to the other party, shall constitute an executed counterpart of this Agreement.
    • Governing law and jurisdiction. This Agreement is governed by, shall be and construed in accordance with the laws of New South Wales. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and the courts hearing appeals therefrom.