1.1 Online Safety Systems Pty Ltd (ACN 109 565 273) (“Plant Assessor”, “we”, or “us”) provide cloud-based risk assessment, asset, site and personnel management, information storage and sharing Software called Plant Assessor (the Software). The Software is part of our broader range of Products and Services and enables you to produce Reports and conduct machine specific risk assessments, pre-operational checks, share documentation with other users and manage machinery safety. While some of our Products and Services are free, other Products and Services attract a Fee as specified in the Features and Pricing Schedule. If you or your related body corporates, related parties, representatives or affiliated parties (as reasonably determined by us in our sole discretion and collectively referred to herein as “you”), use the Software or any of our other Products and Services in any way, you do so on the basis of the terms of the Agreement and the disclaimers specified in the Products and Services.
1.2 The agreement between us comprises these Conditions of Licence and the Features and Pricing Schedule (Agreement).
1.3 You are entitled to request amendments to the Agreement prior to registering your Membership or utilising any of our Products and Services. Should you wish to request an amendment, please contact Us at firstname.lastname@example.org. You acknowledge that we may charge you a fee associated with considering and/or approving a requested amendment (Amendment Charge). You will be notified prior to incurring an Amendment Charge and you may avoid that fee by withdrawing the requested amendment. We may approve or reject a requested amendment at our discretion.
2.1 We grant to you a personal, non-exclusive, Australia-wide, non-transferable licence to use the Products and Services, which is conditional on your acceptance of the Agreement, payment of our Fees in the way required by the Agreement, and otherwise complying with and acting in accordance with the Agreement.
2.2 The Licence is granted to you on the day you register your Membership with us or otherwise engage our services, and ends in accordance with the terms of the Agreement. You are deemed to have accepted the terms of the Agreement by registering your Membership with us or by continuing to use our Products and Services.
You agree and warrant that you will not:
(a) use the Products and Services for any purpose or in any manner other than as set out in clause 2.1;
(b) use the Products and Services in any way that could damage our reputation or the goodwill or other rights associated with the Products and Services;
(c) permit any third party to use the Products and Services;
(d) copy, reproduce, or otherwise modify or adapt the Products and Services or any of our Intellectual Property Rights or create any derivative works based upon the Products and Services;
(e) de-compile, disassemble or otherwise reverse engineer the Software or permit any third party to do so; or
(f) modify or remove any copyright or proprietary notices on the Products and Services.
4.1 By using our Products and Services you acknowledge and agree that:
(a) The Product and Services relate only to the specific Assessed Item.
(b) The safety hazards associated with the operation and maintenance of the Assessed Item have been identified by you by visual inspection, and that no physical testing has been conducted (including but not limited to rope tests, stress tests, structural/non-destructive tests, noise tests, vibration tests, brake tests and insulation tests) unless otherwise stated in our Products and Services. Consequently, you acknowledge and agree that our Products and Services may not identify faults that might be identified by more rigorous tests and inspections.
(c) The output from our Products and Services may change through the use of the Assessed Item and with the passing of time.
(d) Any information relating to the standard features of the Assessed Item have been supplied to us by the manufacturer of the Assessed Item and other third parties, and such information should be used as a guide only. We disclaim responsibility for all information relating to the standard features supplied by the respective manufacturer and other third parties, and you agree that we are not responsible for any loss or damage you suffer from reliance on information supplied in accordance with this clause 4.1(d), and you agree to hold us harmless in relation to same.
(e) The Product and Services you order from us are generated from the information provided to us. Where relevant, you warrant that the User has comprehensive knowledge of the Assessed Item and reasonable comprehension skills.
(f) You are solely responsible for the information included in certain Products and Services provided to you, such as Reports, which arise from the information you or your representatives provide to us; and
(g) We are not responsible for any mistake or omission that you make in your supply of information to us, or in comprehending or answering any questions we ask of you.
5.1 Nothing in the Agreement constitutes a transfer of any Intellectual Property Rights from us to you.
5.2 You acknowledge that we have exclusive and perpetual ownership of all Intellectual Property Rights in our Products and Services including the Software, the Documentation and the Reports.
5.3 You are licensed to use our Intellectual Property Rights for the purpose of clause 2.1 only.
5.4 You agree and warrant not to do anything that would or might invalidate or put in dispute our Intellectual Property Rights.
5.5 You agree and warrant not to use our Intellectual Property Rights in a way that might damage our reputation or goodwill or otherwise diminish the value to the Intellectual Property Rights.
5.6 You acknowledge that our Intellectual Property Rights are fundamental to our business and therefore you agree to indemnify and keep us so indemnified against all Claims, liability, harm, damage, cost, expense or other Loss incurred by us in relation to or in any way directly or indirectly connected with:
(a) a misrepresentation or breach of warranty by you in relation to Intellectual Property Rights;
(b) your use of any of our Intellectual Property Rights; or
(c) any unauthorised use by you of any of our Intellectual Property Rights.
5.7 and Services as notified to you from time to time.
5.8 You acknowledge that any breach of these terms related to our Intellectual Property Rights may cause significant harm including substantial consequential losses to our business, for which monetary damages may not be a sufficient remedy. As such we are entitled to specific performance or injunctive relief (as appropriate) as a remedy for any breach or threatened breach of the Agreement in addition to any other remedies available to us at law or in equity.
5.9 If we reasonably believe that you are misusing our Intellectual Property Rights, then without prejudice to any other rights we may have, we reserve the right to:
(a) suspend your Membership and access to any of our Products and Services;
(b) take all reasonable steps to enforce our Intellectual Property Rights; and
(c) obtain injunctive relief against you for any infringement or misuse, or threatened infringement or misuse, of our Intellectual Property Rights.
5.10 You acknowledge that by using the Products and Services, and by uploading, inputting, proving or otherwise submitting information and data to us through our Products and Services or otherwise (Submissions), you are granting us permission and an irrevocable licence to use or otherwise exploit your Submissions in connection with the operation of our business or the operation of our Products and Services including, but not limited to, a licence to copy, distribute, transmit, display, reproduce, edit and reform your Submissions.
6.1 You must pay us the Fees as outlined in the Features and Pricing Schedule. We will issue you with a tax invoice to your nominated email address on a periodic basis, and you authorise us to debit your Credit Card or alternative payment method for payment for the amount set out in our tax invoice.
6.2 You agree to pay us by Credit Card unless we otherwise agree in writing for you to make payment in some other way.
6.3 You are deemed to have accepted the Fees set out in our tax invoice if you do not within 14 days from the receipt of our tax invoice write to us setting out the basis on which you allege that our tax invoice is incorrect together with any other information or materials we ask for that we believe is relevant. We may arrange a refund at our discretion.
6.4 You must update your Credit Card details from time to time so that we have at all times during the term of the Agreement a valid Credit Card with sufficient funds on it to debit to meet the Fees.
6.5 If we are unsuccessful in debiting your Credit Card (or any other payment method that we have accepted in accordance with clause 6.2), then despite our rights arising from your default we will contact you to arrange another payment method. You acknowledge that we may at our absolute discretion suspend your Membership if we are unable to debit your Credit Card.
6.6 Enterprise/Subscription Members acknowledge that the payment of the Minimum Monthly Fee entitles that Member to Limited Usage Rights as specified in their Membership. If an Enterprise/Subscription Member’s usage of the Product and Service exceeds the Limited Usage Rights (Excess Usage), we reserve the right to invoice you and debit your payment method for the Fees associated with the Excess Usage, which shall be calculated at the rates set out in your Membership and Features and Pricing Schedule.
6.7 We may at our absolute discretion do any of the following at any time during the term of the Agreement on terms we deem to be reasonable:
(a) apply a credit limit to your Membership (Credit Limit);
(b) grant you a credit account on Credit Terms upon submission to us of an appropriately completed Credit Application Form (Credit Account);
(c) provide you with revised payments terms (Revised Payment Terms); or
(d) permit you to make payments through a payment plan (Payment Plan).
6.8 Furthermore, you:
(a) acknowledge that we may suspend your Membership if outstanding Fees exceed the Credit Limit or if you breach the Credit Terms, Revised Payment Terms or terms of any Payment Plan; and
(b) authorise us to debit your Credit Card once you reach the Credit Limit or otherwise breach the Credit Terms, Revised Payment Terms or terms of any Payment Plan.
7.1 All amounts payable under the Agreement are expressed exclusive of GST.
7.2 In respect of any taxable supply, you must pay to us an additional amount equal to the prevailing GST rate, payable at the same time and in the same manner as the Fees, subject to the receipt by you of a valid tax invoice.
8.1 You must permit us (or our nominated auditor) to audit the records and your premises at any time during the term of the Agreement and for 3 years following the end of the Term, on at least 5 days written notice, for the purpose of confirming your compliance with the Agreement.
9.1 You must not, without our prior written consent, use or disclose our Confidential Information unless expressly permitted by the Agreement or required to do so by law or any regulatory authority.
9.2 You may:
(a) use our Confidential Information solely for the purposes of complying with your obligations and exercising your rights under the Agreement; and
(b) disclose the Confidential Information to your personnel or advisers to the extent necessary for them to know the information for purposes related to the Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the Confidential Information is retained.
9.3 You must implement and maintain effective security measures to prevent unauthorised use and disclosure of our Confidential Information whilst it is your possession or control.
9.4 You must return, or at our option destroy, all of our Confidential Information in your possession or control, on the earlier of our request or on termination of the Agreement for any reason.
9.5 You agree to indemnify us against all liabilities, costs, loss and expenses which we may suffer or incur as a result of any breach by you of this clause 9, and you acknowledge that damages may be an inadequate remedy for breach of this clause 9 and that we may obtain injunctive relief against you.
10.1 You agree that you indemnify us in relation to any cost (including legal costs on a solicitor-client basis), loss, liability, or damage that any of you, your employees, contractors, agents or a third party suffers:
(a) because you fail to obtain formal advice from a professional adviser concerning whether the Product or Service you order is suitable for its intended purpose or is suitable for particular circumstances;
(b) because of the answers you provide to the questions asked when using the Software;
(c) because you do not answer all questions completely and accurately;
(d) because you modify the Product or Service, in particular, Reports, after it is provided to you;
(e) because you, your employee, contractor, agent or someone authorised by you infringes our Intellectual Property Rights; or
(f) because you breach these terms and conditions in some other way.
10.2 You agree that you continually indemnify us against any cost (including legal costs on a solicitor-client basis), loss, liability, or damage that we incur as a result of your use or misuse of our Software contrary to the terms of the Agreement.
10.3 Our liability to you for any matter related to the subject matter of the Agreement will not include any special, indirect, incidental or consequential damages or loss of profits, and we exclude all liability in respect of loss of data and interruption of business, and our total aggregate liability for all claims relating to the Agreement is limited to the Fees payable under the Agreement.
10.4 We give no warranty as to the accuracy, reliability, completeness, currency or suitability of any information submitted or contained in the Products and Services and we accept no liability (including without limitation, liability in negligence) for any loss, damage or costs (including consequential damage) relating to your use of information submitted.
10.5 We do not warrant that the operation of our service will be uninterrupted or that our service is error free, and you acknowledge that use of the Software when not connected to the internet may result in a delay in information being uploaded to the Software.
10.6 We do not warrant, represent or guarantee that the Software is free of malware or potentially damaging viruses, and we expressly disclaim all liability for any loss, damage or injury caused by installation of viruses or malware on your computer, software, equipment or other property due to your use of the Software.
10.7 You agree that we will not be responsible or liable for any consequences to you or any third party that may result from user error or technical or telecommunications problems, whether foreseeable or otherwise, including but not limited to slow, inconsistent or no internet connection, traffic congestion, server problems, network outage, network overloading, network delay and network interruptions.
10.8 To the full extent permitted by law, we exclude all representations, warranties or terms (whether express or implied) other than those expressly set out in the Agreement.
10.9 Either party’s liability for any claim relating to the Agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.
10.10 The Agreement is to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible, we limit our liability in respect of any claim (including for our negligence) to, at our option:
(a) in the case of goods:
1. the replacement of the goods or the supply of equivalent goods;
2. the repair of the goods;
3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
4. the payment of having the goods repaired, and
(b)in the case of services:
1. the supply of the services again; or
2. the payment of the cost of having the services supplied again.
10.11 In the event that you owe us money under the Agreement and those monies are outstanding for more than 14 days, then you are liable to pay interest to us at a rate of 10% per annum calculated from the day immediately following the day on which each liability is due for payment, at a daily rate, until the liability is discharged in full by payment. We may capitalise interest calculated up to the end of each calendar month.
10.12 You acknowledge and agree that we may charge any land owned by you as security for any unpaid Guaranteed Monies and that we may register a caveat against the title to any such land.
10.13 In respect of any claim made by us under or in connection with the Agreement, you agree that to the maximum extent permitted by law, the operation of Part 4 of the Civil Liabilities Act 2002 (NSW) or of any laws having a similar effect in the Commonwealth and other states and territories of Australia with respect to proportionate liability, are excluded and have no application or effect.
11.1 You acknowledge that Personal Information collected, used and disclosed by us may be used for a variety of purposes including:
(a) to supply our Products and Services;
(b) to generate Reports;
(c) to monitor use of our products for the purposes of further development and to ensure they meet your needs and interests;
(d) to administer your Membership and to enforce the Agreement;
(e) for marketing purposes; and
11.3 You agree to advise us in writing if you do not want us to use Personal Information disclosed by you to us for marketing purposes.
11.4 If you fail to provide any Personal Information requested by us, we may be unable to license the Products and Services to you.
11.5 You agree that if you provide us with Personal Information about another individual, you will ensure that that individual is aware:
(a) that you have supplied their Personal Information to us and the reason; and
(b) of the details in this clause 11 which apply to information we collect about them.
11.6 You are responsible for ensuring that any third party (including employees, contractors, agents or otherwise) given access to the Software by you is aware of their privacy obligations under the Privacy Act, and you indemnify us from all liability arising from any such non-compliance by yourself or a third party.
11.7 You are responsible for ensuring that if a third party is required to disclose Personal Information to us for the purposes of the Agreement on your behalf or at your request, such disclosure by the third party complies with the Privacy Act.
11.8 Whilst we take reasonable steps to ensure the security of the information provided through our Products and Services, we do not guarantee or warrant the security of any Personal Information uploaded into the Software, and you acknowledge that any Personal information uploaded into the Software or shared with other users of the Products and Services is uploaded and shared at your own risk.
11.9 You agree that we may give certain information about you including Personal Information to a credit reporting agency, and may obtain from a credit reporting agency a credit report containing personal credit information about you or, where you are a Company, your directors, and any guarantor/s named in the Credit Application Form. Any credit reports obtained by us are only to be relied upon by us and may not be provided to a third party without your consent.
11.10 You agree that we exchange information about you and any guarantor/s named in the Credit Application Form with credit providers either named as trade referees or named in a credit report issued by a credit reporting agency.
11.11 You consent to us being given a consumer credit report to collect overdue payment on commercial credit (pursuant to Section 18K(1)(h) Privacy Act 1988)
11.12 If we are required to retain any Personal Information by law:
(a) you warrant that you have taken all steps to ensure that we are permitted to do so; and
(b) on reasonable notice, and the payment of a reasonable charge, we will make such information available for inspection by you and your auditors.
12.1 We may without prejudice to any other rights or remedies, terminate the Agreement immediately on provision of written notice to you, if you:
(a) fail to rectify a breach or default by you of the Agreement within fourteen (14) days of service of a written notice specifying the breach or default;
(b) breach the Agreement and such breach is not capable of being remedied (such as a breach of your obligations relating to confidentiality and Intellectual Property Rights)
(c) are unable to pay the Fees as they fall due;
(d) commit an act of bankruptcy;
(e) enter into a composition or arrangement with your creditors or call a meeting of creditors with the view to entering into a composition or arrangement;
(f) have execution levied against you by creditors, debenture holders or trustees under a floating charge;
(g) take or have taken or instituted against you any actions or proceedings, whether voluntary or compulsory, which has the object of or which may result in your winding up (except for the purposes of reconstruction);
(h) have a winding up order made against you or (except for the purposes of reconstruction) passes a resolution for winding up;
(i) are a party to the appointment of or have an official manager, receiver, receiver/manager, provisional liquidator or liquidator appointed to the whole or part of your property or undertaking; or
(j) repudiate the Agreement.
12.2 Notwithstanding clause 12.1, we may unilaterally suspend your Membership or terminate the Agreement at any time by providing you with written notice of at least 30 days prior to the desired termination date.
13.1 If the Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available:
(a) the parties are immediately released from their obligations under the Agreement except those obligations that, by their nature, survive termination (such as your obligations to pay any credit granted to you on the Credit Terms);
(b) each party retains the claims it has against the other;
(c) your right to use the Software immediately ceases and the licences granted under the Agreement terminates.
14.1 If we discover that we have lost revenue through your misuse of our service or your breach of the Agreement (including misuse of our Intellectual Property Rights), then you agree that we may recover from you each of the following:
(a) the revenue we have lost;
(b) our costs of discovering our loss and the extent of it;
(c) our costs of recovering the revenue (including legal costs on a solicitor-client basis); and
(d) default interest on any amount owing under this clause at a rate of 12% per annum.
14.2 Also, if we can show that we have lost revenue through your misuse of our service or breach of these terms and conditions, then you agree that we have the right to audit your operations (at your cost) to determine the extent of our loss.
14.3 We reserve our right to cancel or otherwise refuse to provide our Products or Services to you for any reason at any time.
14.4 If you are in breach of the Agreement, you expressly acknowledge and authorise us to notify any relevant third parties (as determined by us in our sole discretion) of such a breach and take any other steps necessary to preclude you from receiving the benefit arising from our Products or Services.
15.1 You must not assign, sub-licence or otherwise deal in any other way with any of your rights under the Agreement without first obtaining our prior written consent. We may assign the Agreement at our absolute discretion.
15.2 Nothing contained in the Agreement creates any relationship of partnership or agency between the parties.
15.3 If a provision of the Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
15.4 Each party must at its own expense do everything reasonably necessary to give full effect to the Agreement and the events contemplated by it.
15.5 The Agreement (and any documents executed in connection with it) is the entire Agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in the Agreement, no party has relied on any representation made by or on behalf of the other.
15.6 We may vary the terms of the Agreement from time to time by providing you with prior written notice.
15.7 A provision of or a right under the Agreement may not be waived or varied except in writing signed by the person to be bound.
15.8 You agree that a failure at any time to enforce any of the provisions of the Agreement or any rights in respect hereto or to exercise any election herein provided will not be a waiver of those provisions, rights or elections or affect the validity of the Agreement.
15.9 A party will not be responsible for a failure to comply with its obligations under the Agreement to the extent that failure is caused by a Force Majeure Event, provided that the party keeps the other closely informed in such circumstances and uses reasonable endeavours to rectify the situation.
15.10 You must pay all stamp duties and other government charges in relation to the Agreement, if any.
15.11 The Agreement is governed by the laws of New South Wales and each party submits to the jurisdiction of the courts of New South Wales.
15.12 You warrant to us that you will not use the Products and Services for any purpose that is unlawful or prohibited by the Agreement, and you warrant that you will not use the Products and Services in a manner which could damage or impair the Products and Services or interfere with any other parties use of the Products and Services.
15.13 To the extent of any inconsistency between these Conditions of Licence and the Features and Pricing Schedule, the terms of the Features and Pricing Schedule shall prevail.
Assessed Item means an item of plant, machinery, equipment, site or any other subject of a Report.
Claim means any claims, demands, suits, proceedings, causes of action, damages, debts, costs, verdicts and judgements whatsoever whether at law or under any statute brought by any party for a loss of profit or any other direct, indirect, special or consequential loss or damage, cost, expenses or similar.
Commencement Date means the date on which you register your Membership with us.
Conditions of Licence means this document.
Confidential Information means all information provided by us to you in connection with the Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excluding:
Credit Application Form means the application form provided to you by us for the application of credit.
Credit Card means the credit card details that you supply to us as part of your Membership registration or when otherwise required by us.
Credit Terms means the terms as annexed to the Credit Application Form.
Documentation means any and all proprietary documentation made available to you by us for use with the Products and Services, including any documentation available online.
Enterprise/Subscription Members means a Member who elects in their Membership to pay a Minimum Monthly Fee for Limited Usage Rights.
Features and Pricing Schedule means the schedule which sets out the Fees for the provision of our Products and Services and the pricing structure for the same, as may be amended from time to time.
Fees means the fees incurred by you as detailed in the Features and Pricing Schedule.
Force Majeure Event means any event beyond the control of the relevant party, and includes (but is not limited to) an act of God, labour dispute, industrial strike, slow down, act of government, war, blockade, revolution, riot, insurrection, civil disturbance, epidemic, pandemic, cyclone, tidal wave, landslide, lightning, earthquake, flood, storm, fire or explosion.
GST has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other similar tax.
Guaranteed Monies means all monies owing by you to us under the Agreement for Fees or otherwise.
Insolvency Event means:
Intellectual Property Rights means all our intellectual property rights in connection with the Products and Services subject to the Agreement (including but not limited to the Software, Documentation and Reports), and includes all copyright, patents, trade marks, design rights, trade secrets, domain names, know-how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.
Limited Usage Rights means the right of an Enterprise/Subscription Member to have limited access to the Products and Services per month as specified in the Membership.
Loss includes, but is not limited to, costs (including, but not limited to, party to party legal costs and our legal costs), expenses, fines, penalties, lost profits, award of damages, personal injury and property damage.
Member means the person or entity specified in the Membership.
Membership means an account you register with us via the Website to access the Products and Services.
Minimum Monthly Fee means the minimum monthly Fees to be paid by an Enterprise/Subscription Member for the Limited Usage Rights, as specified in the Membership.
Moral Rights has the meaning given under the Copyright Act 1968 (Cth) and includes any similar rights existing in other countries.
Unless the context requires otherwise:
Personal Information has the meaning given in the Privacy Act.
Privacy Act means the Privacy Act 1988 (Cth).
Products and Services means any product or service offered or provided by us, including but not limited to the Software, Documentation, Features and Reports.
Reports means the reports, procedures and checks as specified in the Features and Pricing Report and made available through the Products and Services, and includes (but is not limited to):
Software means the Plant Assessor software owned by us and downloaded by you or accessed by you pursuant to the terms of this Agreement.
User means the person entering data for the purpose of generating a Report.
We and Us means Online Safety Systems Pty Ltd ACN 109 565 273.
Website means www.assessor.com.au You means the person or entity as specified in your Membership and your representatives.
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